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                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-10437
                       ________________________

                  D.C. Docket No. 1:13-cr-00143-CG-C-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                   versus

ALFRED OMEGA FOSTER,
a.k.a. Alpha Omega Foster,

                                                          Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Alabama
                       ________________________

                             (September 11, 2015)

Before ED CARNES, Chief Judge, JILL PRYOR and BLACK, Circuit Judges.

ED CARNES, Chief Judge:
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      After a trial lasting less than seven hours from start to finish, a jury

convicted Alfred Foster of one count of possession of a firearm by a felon, in

violation of 18 U.S.C. § 922(g). He contends that the district court committed

plain error, and the government engaged in plain misconduct, when Assistant

United States Attorney Gina Vann commented extensively, repeatedly, and

improperly on his valid invocation of his Fifth Amendment privilege against self-

incrimination. He asserts other government misconduct, including the AUSA’s

remark during closing argument that “when [Foster] testified he said: ‘I traded

meth for sex with a white female.’” As Foster argues, that remark was improper

because: he had not given that testimony; it violated the court’s earlier ruling that

evidence of Foster trading meth for sex was irrelevant and inadmissible; and it

unnecessarily injected race and sex into the case.

                                           I.

      Given the position of the parties and the undisputed evidence, the only

contested element of the charged offense was whether Foster intended to exercise

dominion and control over, and thereby constructively possess, a shotgun and a

rifle seized by law enforcement from a bedroom Foster occupied in a house owned

by a friend of his who also lived there. There was no fingerprint or DNA evidence

that Foster had ever touched either firearm. The government attempted to prove

that he intended to constructively possess them by establishing that they were


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located next to several methamphetamine labs, that Foster admitted to officers that

he had distributed meth, and that firearms are common tools of the drug trade.

       In her opening argument, the AUSA told the jury that the evidence would

show that Foster told law enforcement that he “ma[d]e and s[old] meth to make

money, and sometimes [he] trade[d] meth for sex.”1 Deputy John Cassady testified

for the government about his interview of Foster on the day that the firearms were

seized:

       AUSA:                 . . . [W]hat did the defendant tell you?

       CASSADY:              He advised that he was a convicted felon. He then
                             advised he had been cooking methamphetamine
                             since November 2012, but he advised he only
                             cooked       three    successful      batches     of
                             methamphetamine. He advised that he first shared
                             the batch, the successful batch, with a white female
                             named Sadie, and the second and third batches he
                             advised were unsuccessful cooks. He said the
                             reason they were bad was because they were
                             gooey. He then later told me that he cooked some
                             meth because he trades it for sexual favors.

       DEFENSE:              Judge, we object again[2] to the relevancy of this.

       THE COURT:            All right. I sustain the objection to that portion of
                             the interview.


       1
          This statement was made during opening argument without objection. The court later
ruled that evidence that Foster had traded meth for sex was irrelevant and inadmissible.
       2
          Foster had filed a pretrial motion in limine arguing that evidence of meth and meth
paraphernalia, which was found throughout the house where he lived with his friend, was not
relevant to a firearms charge. The court denied the motion as to the meth and meth paraphernalia
found in the bedroom Foster occupied. He does not challenge that ruling.
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      AUSA:               Well, may we approach, Your Honor?

      THE COURT:          Yes.

      (At the side bar, jury not present.)

      AUSA:               Your Honor, I believe what the witness testified
                          about was the distribution of meth, and it is our
                          position that he is a drug dealer and drug dealers
                          have guns as tools of the drug trade. We have to
                          establish that he was distributing meth, and
                          whether he traded it —

      THE COURT:          I don’t have any problem with you establishing
                          that he was distributing it. But the fact that he was
                          trading it for sexual favors —

      DEFENSE:            Yeah.

      THE COURT:          — you can just — I think you can fashion your
                          question so that you don’t have to get into that
                          kind of details about it.

      ....

      (In open court, defendant and jury present.)

      AUSA:               Okay. Officer, I guess what I should ask you, a
                          better way, is did the defendant admit that he was
                          distributing or giving the drugs, the meth, to other
                          people?

      CASSADY:            Yes, ma’am.

      Foster’s defense depended on the jury crediting his testimony that he had no

intent to possess the firearms found in the bedroom he was occupying in his

friend’s home. He testified that while he did have two drug-related convictions


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and another conviction for receiving stolen property, he had never been convicted

of an offense involving a firearm and he “d[id]n’t particularly care for them.”

Regarding the two firearms in question, Foster testified that he had no knowledge

of the one found in the closet of the bedroom because he did not use that closet and

he believed the one hanging on the wall of the bedroom belonged to his friend.

      On cross-examination, the AUSA attacked Foster’s credibility, as she was

entitled to do. In response to a question about whether he was distributing

methamphetamine from his friend’s house, Foster invoked his Fifth Amendment

privilege against self-incrimination. The court ruled that the invocation was valid

and Foster would not be required to answer the question. The court then told the

AUSA that she could “ask him as many questions as [she] want[ed] and him claim

the Fifth if he want[ed] to.” But she went beyond that and asked argumentative

questions designed to show that Foster was invoking his constitutional rights

because he was guilty of a crime or crimes:

      AUSA:               When you say you take the Fifth, that means you
                          don’t want to answer that question because it’ll get
                          you in trouble?

      FOSTER:             It means that I’m exercising my Fifth Amendment
                          rights.

      AUSA:               And your Fifth Amendment means you don’t have
                          to answer the question because it’ll get you in
                          trouble; right? Yes or no?

      FOSTER:             The Fifth Amendment —
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AUSA:            Yes or no, sir? That’s a yes or no question.

FOSTER:          You would be more familiar with it than I am.

DEFENSE:         Judge, she’s asking him to draw a legal conclusion.

AUSA [to court]: I’m asking him to tell the jury why he says that
                 he’s taking the Fifth.

AUSA [to Foster]: Yes or no?

FOSTER:          Because the question that you asked involves a
                 case that is still pending in the grand jury in the
                 state of Alabama.

AUSA:            And any answer truthfully could hurt you?

FOSTER:          I have the right against self-incrimination.

AUSA:            Absolutely, sir. And the reason you’re taking that
                 right is because the answer would incriminate you;
                 right?

FOSTER:          Again —

AUSA:            Yes or no?

FOSTER:          — I plead the Fifth.

AUSA:            You take the Fifth on that, on that question, too?

FOSTER:          It’s a clever way around me not answering the
                 question.

AUSA:            It is a clever way. So one question you won’t
                 answer is whether you’re distributing, the second
                 one is you won’t answer why you won’t answer
                 the question; right? Twice?


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       FOSTER:               That’s correct.

       AUSA:                 Okay. So you take the Fifth twice?

       FOSTER:               That’s correct.

Foster never testified that he traded meth for sex.

       During her closing argument, the AUSA emphasized Foster’s “many lies.”

She argued: “[W]hen he wasn’t lying and backtracking on what he said on the

scene, he was trying to take the Fifth Amendment. So I submit to you that he was

lying.” Later, during her rebuttal argument, the AUSA commented again — and

this time extensively — on Foster’s invocation of his right to remain silent:

       Now, this is not the defendant’s first rodeo. Okay. He’s been in
       trouble before. And he came in here today and he tried to take the
       Fifth about some things. Now, if the Fifth was really a viable option
       and . . . taking the Fifth was really something he wanted to do, why
       didn’t he take it on the scene that night? Because if he had taken it on
       the scene — his motive for taking it today was to protect himself and
       his friend. (Indicating.) Well, if he had taken the Fifth on the scene,
       he wouldn’t have been telling on himself and he wouldn’t have been
       telling on his friend.[3]

       So to come in here now and say he’s taking the Fifth, again, that’s just
       something that just belies logic. Because if his whole motivation was
       to protect his friend, he would have just taken the Fifth on the scene.




       3
          On the scene, Foster told Deputy Cassady that the meth labs found in his bedroom
belonged to him. On the stand, he changed his story and testified that the labs actually belonged
to the other person living in the house at the time, his friend Mark Bush. When pressed to
explain the inconsistent statements, he stated that he claimed possession on the scene out of a
desire to protect his friend.
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       The AUSA also argued that Foster’s intent to possess the firearms was

shown by evidence that he was distributing meth from his friend’s house. In

summarizing that evidence, she stated:

       Do you remember when [Foster] testified he said: “I traded meth for
       sex with a white female”? And the only reason I’m saying “white
       female” is because that’s the way the defendant described it.

At no time during the AUSA’s closing arguments did defense counsel object.

                                            II.

       “An appellate court may not correct an error the defendant failed to raise in

the district court unless there is: (1) error, (2) that is plain, and (3) that affects

substantial rights.” United States v. Rodriguez, 398 F.3d 1291, 1298 (11th Cir.

2005) (quotation marks omitted). “If all three conditions are met, an appellate

court may then exercise its discretion to notice a forfeited error, but only if (4) the

error seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (quotation marks omitted).

       In Johnson v. United States, the Supreme Court held that where the Fifth

Amendment privilege against self-incrimination is asserted on a matter by a

testifying defendant and “unqualifiedly granted” by the court, it is error for the

court to allow the prosecutor to comment on the defendant’s refusal to testify on

that matter. 318 U.S. 189, 196, 63 S. Ct. 549, 553 (1943). The Court explained:

       If the privilege claimed by the witness be allowed, the matter is at an
       end. The claim of privilege and its allowance is properly no part of
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      the evidence submitted to the jury, and no inferences whatever can be
      legitimately drawn by them from the legal assertion by the witness of
      his constitutional right. The allowance of the privilege would be a
      mockery of justice, if either party is to be affected injuriously by it.
      . . . [I]f [the privilege] is claimed and granted outright, [the accused]
      has every right to expect that the ruling is made in good faith and that
      the rule against comment will be observed.

Id. at 196–97, 63 S. Ct. at 553 (quotation marks and citations omitted).

      The government does not challenge the district court’s ruling that Foster

could invoke, and did properly and validly invoke, his right to remain silent on the

issue of whether he was distributing meth. So we will take it as given, for

purposes of this appeal only, that he did. Once the privilege was asserted by Foster

and “unqualifiedly granted” by the court, the AUSA should not have commented

on it. That is the plain holding of the Supreme Court’s Johnson decision. See id.

at 196, 63 S. Ct. at 553. And as our predecessor court explained:

      [T]o meet the requirements of a fair trial as embodied in the Fifth
      Amendment, the trial judge must protect an accused’s right of silence.
      The trial judge’s approval of an improper comment or refusal to
      disapprove the comment and do whatever is necessary to protect a
      defendant from being penalized by relying on his constitutional right
      amounts, in our opinion, to sufficient participation in the comment or
      sanction of the comment so that it may be properly characterized as a
      violation of the Fifth Amendment.




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De Luna v. United States, 308 F.2d 140, 154 (5th Cir. 1962) 4; see also McGahee v.

Massey, 667 F.2d 1357, 1362 (11th Cir. 1982) (“The [F]ifth [A]mendment stands

as a sentinel for the protection of a defendant’s constitutional right to remain silent.

Concomitant with that right is the prohibition of prosecutorial comment on its

exercise.”). The AUSA, by her improper questions and comments, “manifestly

intended to urge the jury to draw an inference from [Foster’s] silence that he [was]

guilty.” United States v. Thompson, 422 F.3d 1285, 1299 (11th Cir. 2005). We

conclude that her conduct plainly violated Foster’s Fifth Amendment right to

remain silent and it was plain error for the court to permit it.

      Unfortunately, there was more. During closing argument the AUSA

remarked that Foster, who is black, had testified that he “‘traded meth for sex with

a white female.’” That statement is egregiously improper for three reasons. First,

it falsely attributes to Foster testimony he did not give. See Davis v. Zant, 36 F.3d

1538, 1548 (11th Cir. 1994) (“Little time and no discussion is necessary to

conclude that it is improper for a prosecutor to use misstatements and

falsehoods.”). Second, even if we assume that the AUSA confused Foster’s

testimony with Deputy Cassady’s testimony about what Foster had told him, it

misrepresents even that. Cassady testified that Foster told him that he shared one


      4
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.
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batch of meth with a white female named Sadie, but not that he had traded it to her

for sex. Cassady further testified that Foster “later told me that he cooked some

meth because he trades it for sexual favors,” but he did not say that those with

whom Foster had traded it were white females. See Brooks v. Kemp, 762 F.2d

1383, 1413 (11th Cir. 1985) (en banc) (“Even if brief, use of race as a factor in

closing argument obviously would be improper and would have great potential for

prejudice.”) (citation omitted), vacated on other grounds, 478 U.S. 1016, 106 S. Ct.

3325 (1986); United States v. Rodriguez, 765 F.2d 1546, 1560 (11th Cir. 1985)

(“A prosecutor is forbidden to make improper suggestions, insinuations and

assertions calculated to mislead the jury and may not appeal to the jury’s passion

or prejudice.”) (quotation marks and alteration omitted). Third, the AUSA’s

statement violated the court’s earlier ruling — surely not forgotten over the lunch

break — that evidence Foster had traded meth for sex was irrelevant and

inadmissible. In short, the AUSA’s argument misrepresented testimony, violated a

clear ruling of the court, and injected race and sex into a case that had nothing to

do with either.

      The question is whether the combination of these errors and misconduct

warrant the reversal of Foster’s conviction under the plain error rule. Based on the

unique circumstances and facts of this case, we conclude that it does. There is no

doubt that there were errors and that they were plain as could be. We also


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conclude that the errors affected Foster’s substantial rights because the entire case

turned on his credibility. It all boiled down to the simple, solitary question of

whether the jury believed Foster’s testimony that he did not intend to possess the

firearms that were found in close proximity to him in his friend’s house. He

testified he did not; the government argued he did. This brief trial was rife with

prosecutorial misconduct that was designed to, and likely did, destroy Foster’s

credibility.

       That leaves us with the fourth requirement of the plain error test, which is

that the error “seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Rodriguez, 398 F.3d at 1298. The meaning of those words

is not always clear, but they clearly fit here. It is unfair, undermines the integrity

of the trial process, and affects the public reputation of judicial proceedings to

allow a prosecutor in cross-examination and closing argument to assail a defendant

for invoking his constitutional rights, argue that it is proof of guilt, misrepresent

testimony to the jury, and inject race and sex into a case where neither belonged.

We do not decide whether we would reach the same result based on one of the

errors alone, or any combination less than all of them, because we do not have to. 5



       5
        Out of a desire to be fair to AUSA Vann, we asked her to attend oral argument in this
case. After hearing argument on the merits by the Public Defender and another AUSA, we gave
Ms. Vann the opportunity to explain her conduct. Suffice it to say, the proffered explanation was
unconvincing.
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      We REVERSE Foster’s conviction, VACATE his sentence, and REMAND

the case for a new trial.




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