                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-1959
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                             Gillman Roddy Long,
                       also known as Dave Gillman Long

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                    Appeal from United States District Court
                  for the District of South Dakota - Rapid City
                                  ____________

                          Submitted: November 16, 2012
                              Filed: July 25, 2013
                                 ____________

Before MURPHY, BENTON, and SHEPHERD, Circuit Judges.
                          ____________

SHEPHERD, Circuit Judge.

     Gillman Roddy Long was convicted after a jury trial of two counts of
Aggravated Sexual Abuse of a Child in violation of 18 U.S.C. §§ 1153, 2241(c), and
2246(2). The district court1 sentenced Long to life imprisonment. Long now appeals
his conviction and sentence. We affirm.

                                          I.

       In early 2008, Long was living in the home of his girlfriend Brenda Brewer and
her niece A.P. on the Pine Ridge Indian Reservation. A.P. alleged that Long sexually
assaulted her 40 to 50 times between January and April. The assaults varied from
inappropriate touching to rape. After A.P. told her grandmother about the assaults,
authorities were notified.

       The Federal Bureau of Investigation investigated A.P.’s allegations. On June
4, 2009, FBI Special Agent Sherry Rice interviewed Long at the FBI’s Rapid City
office. Agent Rice informed Long that he was not under arrest and would not be
arrested that day, that the interview was voluntary, that Long could leave at any time,
that the door to the interview room was unlocked, and that Long could stop the
interview at any time. After discussing background information, Long terminated the
interview because he did not feel well.

       Agent Rice interviewed Long again on June 11, 2009. She traveled to Long’s
home and requested that he meet her at a nearby tribal attorney general’s office in
Pine Ridge. Long agreed. When he arrived at the appointed location, Agent Rice
informed him he was not under arrest, that she did not have a warrant for his arrest,
that he would not be arrested that day, and that he would be leaving at the end of the
conversation. She also told him the interview was voluntary and he could leave at
any time.



      1
       The Honorable Karen E. Schreier, United States District Judge for the District
of South Dakota.

                                         -2-
At Long’s trial, Agent Rice testified for the government about the interview.

Q. How did you begin this interview?

A. I reminded him that we were there to talk to the—talk to him about
the allegations that had been made regarding himself and [A.P.], and
asked him again when was it that he met Brenda . . . and began a
relationship with her.

Q. At one point did you turn his attention specifically to his contact
with [A.P.]?

A. Yes.

Q. How did you do that?

A. Well, I was asking him when he lived with Brenda and then I said
that we wanted to talk about specifically what happened between he and
[A.P.].

Q. What did he say?

A. He described an incident—sorry. I wanted to talk to him about any
kind of sexual contact. He described an incident in which he said he
was sitting at the computer in the house where he lived with Brenda . . .
and described that [A.P.] came up and rubbed her breasts on his back.
Then he said that he stood up and pushed [A.P.] away from him.

Q. How did the interview go from there?

A. Well, he wanted to—he wanted to discuss peripheral issues and I
said that I really want to just concentrate on the sexual contact between
you and [A.P.].

Q. What did he say?



                                  -3-
      A. He said, “I do not want to incriminate myself. I would like to stop
      talking.”

      Q. What did you do?

      A. We stopped the interview.

(Trial Tr. 281-82.)

      On cross-examination, Long’s attorney questioned Agent Rice as follows:

      Q. Now, you talked about the fact he said, “I do not want”—at the end
      of the second statement he said, “I do not want to incriminate myself.”
      You said something along those lines?

      A. That’s exactly what he said.

      Q. You don’t know what he meant by that? You don’t know what he
      thinks that word means, correct? You don’t know what he meant by it,
      do you?

      A. It seemed pretty clear to me.

      Q. Well, you don’t know if he maybe thought that just saying he lived
      there during a time frame was going to get him into trouble, correct?

      A. That didn’t seem to be the meaning.

      Q. Well, he didn’t say anything else around it, did he?

      A. He said, “I don’t want to incriminate myself; I want to stop talking.”

      Q. Okay. So—but you don’t know what he’s referring to as what he
      might say that would incriminate himself, do you? You have no idea
      what he was referring to?


                                         -4-
      A. I had an idea.

      Q. Well, you had—you had what you thought it was, but you are not in
      his brain, right?

      A. I am not in his brain.

      Q. You don’t know what he was thinking about, do you?

      A. No.

      Q. Because you don’t read minds?

      A. Correct.

(Trial Tr. 290-91.)

      On redirect examination, the government revisited the issue, briefly
questioning Agent Rice:

      Q. Agent Rice, during the second interview when right before the
      defendant said, “I don’t want to incriminate myself,[”] the question
      immediately before that where you reported you asked him about what
      happened between him and [A.P.], correct?

      A. Yes.

(Trial Tr. 296.)

       Before moving to the next witness, the court gave the jury the following
instruction in regards to Long’s statement that he “did not wish to incriminate
himself”:



                                      -5-
      Right before we took our break, you heard testimony from Agent Rice
      that Gillman Roddy Long, also known as Dave Gillman Long, made a
      statement to the Federal Bureau of Investigation and it’s for you to
      decide first whether Gillman Roddy Long, also known as Dave Gillman
      Long, made the statement; and second, if so, how much weight you
      should give to it. In making these two decisions, you should consider
      all of the evidence including the circumstances under which the
      statement may have been made.

(Trial Tr. 305.)

       Prior to closing arguments, the court instructed the jury that “the fact that the
defendant did not testify must not be discussed or considered by you in any way when
deliberating and arriving at your verdict.” (Trial Tr. at 408.) Then during the
government’s rebuttal closing argument, the prosecutor started her argument to the
jury this way:

             MS. COLLINS: “I don’t want to incriminate myself.” That was
      what Gillman Long said to Agent Sherry Rice when she asked him about
      sexual contact between him and [A.P.]. . . . What was his response? “I
      don’t want to incriminate myself.
             Ladies and gentlemen, you can never use against somebody when
      they invoke their right to remain silent. You can’t use that Mr. Long
      didn’t testify in this trial; you cannot use that against him. The law says
      he has an absolute right to remain silent and he had the right not to talk
      to Agent Sherry Rice either time she spoke to him, but he chose to speak
      to her. And when he did that, that gives you the ability to scrutinize
      what he said. He blames [A.P.] a couple different times; he blamed her
      saying, “Yeah, she came up behind me.” You know what he didn’t say?
      He sure didn’t say, “I didn’t do it.”

             MS. COLBATH: I am going to object, Your Honor. He did.

            THE COURT: Ladies and gentlemen, you need to rely on what
      you believe the evidence is and what you find the evidence is.

                                          -6-
             MS. COLLINS: And there was a couple different things I am
      going to rely—ask you to rely on your memory as well that defense
      counsel said were certainly not correct either. But if you will go back
      and listen and look at your notes, at no point did Gillman Long say, “I
      didn’t do this,” when he was confronted with these accusations. He
      says, “[A.P.] came up behind me at the computer and put her arms
      around me, pressing her breasts up against my back.” And then he
      ended the interview by saying, “I don’t want to incriminate myself.”
             We are asking you not to leave your common sense at the door.
      If somebody doesn’t want to incriminate themselves, it means any sort
      of statement as to that topic that they are being asked for would get them
      in trouble.

(Trial Tr. 442-43.)

       The jury convicted Long of two counts of aggravated sexual abuse and
acquitted him of one count. Prior to sentencing, Long argued that the court should
depart downward from the Sentencing Guidelines because Agent Rice’s testimony
about his “incriminate myself” statement constituted a Fifth Amendment violation.
Long then filed an out-of-time motion for a new trial, arguing the Fifth Amendment
violation and stating his counsel was ineffective for (1) failing to object to the
statement, (2) returning to the statement on cross-examination, and (3) failing to file
a timely motion for a new trial.

        Despite the untimely nature of the motion for a new trial, the district court
assumed without deciding that Long had satisfied the excusable neglect requirements
for filing an untimely motion and proceeded to address the merits of Long’s motion.
The district court held that the use of Long’s “incriminate myself” statement did not
violate his Fifth Amendment rights because at the time he made the statement he was
not under a compulsion to speak. For that reason, his trial counsel could not be
ineffective for failing to object to the statement, addressing the statement on cross-



                                         -7-
examination, or failing to file a motion for a new trial on that basis. The district court
later sentenced Long to life imprisonment.

                                            II.

       Long appeals his conviction, arguing (1) the use of his “incriminate myself”
statement by the government in its case-in-chief as a confession to the crime violated
the Fifth Amendment because the statement was made in an effort to invoke his Fifth
Amendment right to remain silent after he had agreed to answer Agent Rice’s
questions, (2) the district court plainly erred in not finding prosecutorial misconduct
when the government referenced Long’s decision not to testify at trial, and (3) the
district court abused its discretion when it determined by denying the motion for a
new trial, that Long had not received ineffective assistance of counsel. He requests
that his case be remanded for a new trial.

                                            A.

       Long argues that when he made his pre-arrest, pre-Miranda “incriminate
myself” statement during the FBI questioning, he was invoking his privilege against
self-incrimination as guaranteed by the Fifth Amendment. Thus, Long argues the
statement should not have been admitted in the government’s case-in-chief.

       Long acknowledges that he did not preserve this issue through a proper
objection or motion for mistrial, and therefore our review is for plain error. See
United States v. Mickelson, 378 F.3d 810, 819 (8th Cir. 2004) (applying plain error
standard to the defendant’s challenge of statements admitted into evidence because
the defendant did not object to the statements when they were admitted). “To obtain
relief under a plain-error standard of review, the party seeking relief must show that
there was an error, the error is clear or obvious under current law, the error affected
the party’s substantial rights, and the error seriously affects the fairness, integrity, or

                                           -8-
public reputation of judicial proceedings.” United States v. Poitra, 648 F.3d 884, 887
(8th Cir. 2011).

       We have yet to directly address the question presented in Long’s argument. In
United States v. Frazier, 408 F.3d 1102 (8th Cir. 2005), however, we considered
“whether the use of [a defendant’s] postarrest, pre-Miranda silence during the
government’s case-in-chief was constitutional.” Id. at 1109. We recognized the
conflict of authority on the question of whether “the use of postarrest, pre-Miranda
silence during the government’s case-in-chief constitute[s] an impermissible use of
an accused’s coerced incriminating ‘statement.’” See id. at 1110. We reasoned that
because an arrest “is not governmental action that implicitly induces a defendant to
remain silent,” the defendant “was under no government-imposed compulsion to
speak.” Id. at 1111. Therefore, “the use of [the defendant’s] silence in the
government’s case-in-chief as evidence of guilt did not violate his Fifth Amendment
rights.” Id. at 1111.2

       The government cites United States v. Davenport, 929 F.2d 1169 (7th Cir.
1991), wherein the Seventh Circuit held “[t]he privilege against self-incrimination is
not a privilege to attempt to gain an advantage in the criminal process, whether in its
investigatory or its trial stage, by selective disclosure followed by a clamming up.”
Id. at 1174; see also United States v. Jumper, 497 F.3d 699, 705 (7th Cir. 2007)
(limiting Davenport to noncustodial questioning by authorities). In Davenport, the


      2
       Shortly after deciding Frazier, we reaffirmed that decision in United States v.
Osuna-Zepeda, 416 F.3d 838, 844 (8th Cir. 2005). After this case was submitted, the
Supreme Court granted certiorari in Salinas v. Texas, 133 S. Ct. 2174 (2013), “to
resolve a division of authority in the lower courts over whether the prosecution may
use a defendant’s assertion of the privilege against self-incrimination during a
noncustodial police interview as part of its case in chief.” Id. at 2179. The Court did
not reach the question, however, because it held the defendant’s silence in response
to a police officer’s question did not invoke the privilege. Id. at 2179-80.

                                         -9-
defendants were told that they did not have to answer an Internal Revenue Service
agent’s questions; however, they agreed to answer the questions, “no doubt hoping
that they could satisfy [the agent] and ward off further investigation.” Davenport,
929 F.2d at 1174. The Seventh Circuit reasoned that “once [defendants] start[] down
this path of self-exculpation, any statement they made—including ‘I won’t tell
you’—was fair game.” Id. We have acknowledged the Davenport reasoning. See
United States v. Shoff, 151 F.3d 889, 893 (8th Cir. 1998).

       We conclude that this issue is determined by application of the elements of
plain error review. Accordingly, in light of our decision in Frazier and our citing with
approval the decision in Davenport, even if it was error for the government to admit
Long’s pre-arrest, pre-Miranda “incriminate myself” statement as part of the
government’s case-in-chief—a question we do not reach—it was certainly not an
error that is “clear or obvious under current law.” Poitra, 648 F.3d at 887.
Accordingly, the district court did not plainly err when it failed to sua sponte strike
the testimony of Agent Rice or the closing argument reference to the statement by the
government.

                                          B.

        Long’s second argument on appeal is that the government improperly called
the jury’s attention to Long’s election not to testify at trial. Long maintains that the
prejudicial impact of this error was enhanced by the government’s coupled reference
to his “incriminate myself” statement. Because Long’s counsel failed to object to the
reference on the constitutional grounds now being argued, our review is for plain
error. See United States v. Davis, 534 F.3d 903, 914 (8th Cir. 2008) (“If the
defendant does not object to an allegedly improper statement [made by the
government in closing], . . . the alleged error is not properly preserved for appellate
review, with the result that we review only for plain error and reverse only under
exceptional circumstances.”).

                                         -10-
       In Griffin v. California, 380 U.S. 609 (1965), the Supreme Court held that the
Fifth Amendment “forbids either comment by the prosecution on the accused’s
silence or instructions by the court that such silence is evidence of guilt.” Id. at 615.
Although this holding appears broad and would seem to prohibit any direct reference
by the court or prosecution concerning a defendant’s decision not to testify,
subsequent cases have given a narrower interpretation of the Griffin holding. For
instance, in Lakeside v. Oregon, 435 U.S. 333 (1978), the Court held that a
defendant’s Fifth Amendment rights were not violated when the court, over
objections from defense counsel, instructed the jury that it could not draw any adverse
inferences from the defendant’s decision not to testify. Id. at 340-41. Later in United
States v. Robinson, 485 U.S. 25 (1988), the Court declined to give Griffin the broad
reading “that any ‘direct’ reference by the prosecutor to the failure of the defendant
to testify violates the Fifth Amendment.” Robinson, 485 U.S. at 31. Instead, the
Court emphasized that the context of the statement must be taken into consideration
and that the Fifth Amendment is violated when the prosecutor “treat[s] a defendant’s
exercise of his right to remain silent at trial as substantive evidence of guilt.” Id. at
34.

       Here, the government’s comment merely rephrased the instruction the court
presented to the jury moments before closing arguments and was not presented in a
context to suggest that the jury construe Long’s decision not to testify against him.
Rather, the government made the comment to contrast the prohibition on considering
Long’s decision not to testify with the consideration of his statement to Agent Rice.
As such, we hold the district court did not clearly err in allowing the statement during
closing argument. Furthermore, even if it was error which was clear, we do not see
how Long suffered prejudice by this statement or how the error threatened the
fairness, integrity, or public reputation of the judicial proceedings. Poitra, 648 F.3d
at 889 (discussing elements of plain error review); see also United States v. Robinson,
627 F.3d 941, 956 (4th Cir. 2010) (“Plain error review exists to correct only the most
grievous of unnoticed errors.”). Accordingly, we find that the district court did not

                                          -11-
plainly err in failing to sua sponte strike the government’s closing argument comment
about Long’s election not to testify.

                                          C.

       Finally, Long argues he received ineffective assistance of counsel based on his
trial attorney’s (1) failure to object to the “incriminate myself” statement,
(2) questioning about the “incriminate myself” statement in the cross-examination of
Agent Rice, and (3) failure to object to the government’s closing argument comment
on Long’s decision not to testify. “Generally, ineffective assistance of counsel claims
are better left for post-conviction proceedings” under 28 U.S.C. § 2255. United
States v. Cook, 356 F.3d 913, 919 (8th Cir. 2004). We will not hear ineffective
assistance claims on direct appeal unless the record is fully developed, see United
States v. Orr, 636 F.3d 944, 950 (8th Cir. 2011), our failure to act would be a “plain
miscarriage of justice,” or the counsel’s errors are “readily apparent,” United States
v. Ramirez–Hernandez, 449 F.3d 824, 827 (8th Cir. 2006).

       Here, our decision to affirm Long’s conviction is based largely on the plain
error standard of review. We employed this standard of review because the defense
failed to object to the relevant portions of the trial—the “incriminate myself”
statement during Agent Rice’s testimony and the government’s closing argument
reference to Long’s decision not to testify. As such, to evaluate the claim of
ineffective assistance of counsel, it will be necessary to develop facts outside of the
record presently before the court, such as whether the decision not to object was due
to trial strategy. Thus, we decline to consider Long’s ineffective assistance of
counsel claim in this direct appeal of his conviction.




                                         -12-
                                III.

Accordingly, we affirm Long’s conviction and sentence.
               ______________________________




                               -13-
