                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 07a0072n.06
                             Filed: January 29, 2007

                                            No. 05-2634

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                         )
                                                  )
          Plaintiff-Appellee,                     )
                                                  )
v.                                                )   ON APPEAL FROM THE UNITED
                                                  )   STATES DISTRICT COURT FOR THE
ALLEN EDWARDS, also known as Allen                )   EASTERN DISTRICT OF MICHIGAN
Donnell Edwards,                                  )
                                                  )
          Defendant-Appellant.                    )




          Before: SUHRHEINRICH, GIBBONS, and COOK, Circuit Judges.


          COOK, Circuit Judge. Detroit Police witnessed defendant Allen Edwards firing a SKS Saiga

assault rifle into the air on December 31, 2004. Three police officers testified at his trial, each

providing an eyewitness account of the events. As a paroled felon, Edwards’s possession of the

weapon violated 18 U.S.C. § 922(g). A jury found Edwards guilty, and the district court sentenced

him to 70 months. Edwards now appeals his conviction. For the reasons discussed below, we

affirm.


                                      I. Rebuttal Comments


          Edwards claims his trial was tainted by prosecutorial misconduct from a comment by the
No. 05-2634
United States v. Edwards


government during its closing argument. These excerpts illustrate the context for this challenge.


       Edwards’s counsel made the following statement during his closing argument:


       You know, when you see that supposedly you’re saying that Mr. Edwards had the
       gun and later you find out you put in your report Mr. Moore had the gun, why don’t
       you fingerprint the gun? Why don’t you send it out for fingerprints? Incontrovertible
       proof, fingerprints. No two people have the same fingerprints. Fingerprint the
       firearm. Mr. Edwards’ fingerprints on the firearm? Mr. Moore’s fingerprints on the
       firearm?


       During its closing argument, the government responded to this assertion as follows:


       Defendant mentions these fingerprints, why don’t we have fingerprints? Well, the
       evidence had been touched by so many people, who were we going to get fingerprints
       back from? We couldn’t get fingerprints, and besides that, the officers saw the
       Defendant with this firearm. You have direct testimony. Someone sees something.
       You see me standing here right now; it’s unrefuted. You see this pen in my hand
       right now; it’s unrefuted. Do you need a fingerprint for this pen to know that I’m
       touching this pen right now? I don’t think so.


       Because Edwards did not object at trial, we review his prosecutorial misconduct claim for

plain error using a two-step analysis. United States v. Jackson, ___ F.3d ___, No. 05-6014, 2007

WL 77964, at *9 (6th Cir. Jan. 12, 2007). We first determine whether the prosecutor’s comments

were improper. Id. If the comments were improper, we consider the following four factors in

determining if the comments were flagrant: “whether the conduct or remarks tended to mislead the

jury or to prejudice the accused; whether they were isolated or extensive; whether they were

deliberately or accidentally placed before the jury; and the strength of the evidence against the


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United States v. Edwards


accused.” Id. (quoting United States v. Collins, 78 F.3d 1021, 1039 (6th Cir. 1996)).


                                         A. Impropriety


       In determining the impropriety of the prosecutor’s comment, we “view the conduct at issue

within the context of the trial as a whole.” United States v. Beverly, 369 F.3d 516, 543 (6th Cir.

2004). “It is also appropriate to consider whether, and to what extent, a prosecutor’s improper

argument is invited by defense counsel’s statements.” United States v. Jacobs, 244 F.3d 503, 508

(6th Cir. 2001). Edwards characterizes the prosecutor’s comments as improperly discussing

additional evidence not introduced at trial. See Berger v. United States, 295 U.S. 78, 84 (1935). He

contends that the government never introduced evidence that other people touched the firearm, as

the prosecutor seems to imply; moreover, Edwards construes the statement “[w]e couldn’t get

fingerprints” as an implicit admission that the government conducted a fingerprint test. This

overstates the inferences which can be drawn from the prosecutor’s comment. Although the

comment does imply that a number of people touched the gun, the inference that the government

actually conducted a test that contained too many fingerprints to be useful is fairly attenuated.

Nevertheless, to the extent the prosecutor’s comment introduced additional evidence about

fingerprints on the weapon, they were arguably improper.


                                          B. Flagrancy


       Edwards cannot establish reversible error, however, because the prosecutor’s brief comment


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cannot plausibly constitute flagrant prosecutorial misconduct under the relevant four-factor test. See

Collins, 78 F.3d at 1039. First, the advantage the government could have gained by misrepresenting

that it performed an inconclusive test is minimal, if not illusory. Edwards claims that this remark

“bolstered” what he contends was an error-prone and incomplete police investigation and that it

“implied all possible steps were taken to develop the evidence, when, in fact, they had not been.”

Evidence elicited by the prosecutor during the trial belies this argument, as the government freely

admitted it did not test the weapon for fingerprints.1 Viewing the statement in context, it is difficult

to see how the remarks tended to mislead the jury or prejudice the accused. United States v. Barnett,

398 F.3d 511, 522 (6th Cir. 2005). Examining the second factor, the comment was isolated and

limited to one sentence in the government’s summation. Id. Third, nothing about the remark

suggests a deliberate attempt to mislead the jury; rather, the context of the statement suggests the

prosecutor was searching for an additional response to Edwards’s fingerprints argument beyond her

already well-grounded assertion that eyewitness testimony suffices to prove the crime charged. Id.

The government’s brief denies any deliberateness, characterizing the statement as “nothing more

than [an] overzealous, emotional response[] to strained exculpatory arguments advanced by the

defense,” United States v. Smith, 561 F.2d 8, 13 (6th Cir. 1977), and the context of the statement

supports this characterization. And finally, the strength of the evidence against Edwards minimizes

any harm the statement could cause. Barnett, 398 F.3d at 522. Although Edwards emphasizes a


       1
         This information was conveyed as a question directed to an investigating officer: “Officer
Hull, if you see a person in possession of a firearm, is it necessary that you submit it for
fingerprints?” The officer responded, “No ma’am.”

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United States v. Edwards


mistake the police made in one section of their report,2 the government produced eyewitness

testimony from three police officers who witnessed Edwards possess and fire the gun. We hold the

prosecutor’s arguably improper comment was not flagrant, and thus the district court did not plainly

err.


                                 II. Oral Jury Instruction Error


       While charging the jury, the court made the following statement, which, in part, erroneously

put the burden on the defendant to prove his innocence beyond a reasonable doubt:


       Your verdict, ladies and gentlemen, whether it is guilty or not guilty must be unanimous and
       to find the defendant guilty, each and every one of you must agree that the Government has
       overcome his presumption of innocence and with evidence that proves his guilt beyond a
       reasonable doubt. To find the Defendant not guilty, every one of you must agree that the
       Defendant has failed to convince you beyond a reasonable doubt. Either way, guilty or not
       guilty, your verdict must be unanimous.
Because Edwards did not object to this instruction, we review his claim under the plain-error

standard. United States v. Jones, 108 F.3d 668, 670 (6th Cir. 1997). Edwards must show a plain

error that affected his substantial rights. Id. We have discretion under Fed. R. Crim. P. 52(b) in


       2
         In preparing the police department report, Sergeant Decker mistakenly stated in the
“Property Section” of the report that the firearm was recovered by Allen Moore (no person named
Allen Moore was involved in the situation). Because the “Property Section” of the report is
reproduced in the other officers’ reports, the mistake appeared in those “Property Sections” as well.
In the narrative section, however, Decker correctly identified Edwards as having possessed the
firearm. Additionally, Decker apparently misspoke during his testimony, referring to Edwards as
“Mr. Allen.” His testimony makes clear that there was no ambiguity at trial about whom Decker was
speaking. Edwards attempts to discredit the government’s case based on these errors, but these
inconsistencies appear clearly outweighed by the officers’ testimony.

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United States v. Edwards


choosing whether to correct a plain error, and we generally decline to exercise that discretion unless

“the plain error affecting substantial rights seriously affected the fairness, integrity or public

reputation of judicial proceedings.” Id. (citation omitted).


        Here, although Edwards has no difficulty demonstrating an error by the district court that was

plain—the government must convince the jury beyond a reasonable doubt—he cannot make any

meaningful showing that the court’s misstatement affected his substantial rights. First, the district

court correctly stated the government’s burden of proof in the written instructions provided to the

jury. Second, as the government’s brief illustrates in detail, the court repeatedly stated the

government’s burden correctly during its preliminary instructions to the jury and its final charge to

the jury. Viewing the court’s misstatement in context, Edwards clearly cannot meet his burden to

show that the error affected his right to a fair trial in any meaningful way—there is no reason to

believe the jury required Edwards to prove his innocence beyond a reasonable doubt. We decline

to grant Edwards a new trial.


                                III. Ineffective Assistance of Counsel


        Edwards advances three ineffective-assistance-of-counsel claims based on his trial counsel’s

alleged failures: (1) trial counsel failed to object to the prosecutor’s comment about fingerprints on

the gun (discussed in Section I); (2) trial counsel failed to object to the district court’s error in

reading the jury instructions (discussed in Section II); (3) trial counsel failed to seek a test-firing of

the weapon Edwards is charged with possessing. Edwards faces a bar to bringing these claims on

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United States v. Edwards


direct appeal, however, because, “[g]enerally . . . ‘this court will not review [such claims] on direct

appeal because the record has not been sufficiently developed for assessing the merits of the

allegation.’” United States v. Aguwa, 123 F.3d 418, 423 (6th Cir. 1997) (quoting United States v.

Goodlett, 3 F.3d 976, 980 (6th Cir.1993)). But, Edwards urges—and the government agrees—that

the record is sufficiently developed for our review.


         To establish ineffective assistance of counsel, Edwards must show both that counsel’s

performance was deficient, Strickland v. Washington, 466 U.S. 668, 687 (1984), and “a reasonable

probability that, but for counsel’s unprofessional error, the result of the proceeding would have been

different.” Id. at 694. We need not engage in a formalistic assessment of counsel’s performance,

however, in cases where defendants clearly cannot show prejudice. Id. at 697 (“If it is easier to

dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect

will often be so, that course should be followed.”).


         First, Edwards’s trial counsel’s failure to object to the prosecutor’s brief discussion about

fingerprints on the weapon does not rise to the level of constitutionally deficient assistance of

counsel. Just as Edwards could not show that the prosecutor’s improper remark was flagrant, he

cannot demonstrate how a well-timed objection by his attorney would have changed the outcome of

his trial.


         Second, Edwards’s trial counsel’s failure to object to the court’s brief misstatement of the

standard of proof did not prejudice him in any significant sense. Because the court instructed the

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United States v. Edwards


jury properly numerous times and provided them with correct written instructions, Edwards fails to

show how an objection by his trial counsel would have led to his acquittal.


        Finally, Edwards claims his trial counsel was deficient in failing to obtain a test-firing of the

weapon he was charged with possessing. Although Edwards likely cannot show his trial counsel’s

performance was deficient, he fails to explain how “the result of the proceeding would have been

different.” Id. at 694. The facts surrounding his challenge illustrate this difficulty. Four months after

his trial, at Edwards’s direction, the Federal Defender Office filed a motion requesting a test-fire of

the weapon because, they explained, “Defendant believes that the firearm will not operate with the

magazine which was introduced into evidence, and, therefore it is impossible for Officer Channells

to have seen him firing the weapon with the magazine which was introduced at trial.” The

government tested the weapon for fire-ability prior to trial, and it was operable (18 U.S.C. § 922(g)

requires only that the firearm be made readily operable).


        Edwards essentially sought to have the weapon tested with that particular magazine to make

a belated attack on the testifying officers’ credibility. This challenge is unavailing, however, because

Edwards provides no evidence other than his own assertion to support his position that the magazine

attached to the firearm at the trial would render the weapon inoperable. Moreover, the police

recovered the weapon on the ground near Edwards and then tested that weapon and proved that it

was capable of firing. Three officers then testified they saw Edwards with this same weapon in his

possession. Even assuming the government accidentally attached the wrong magazine to the weapon


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United States v. Edwards


when it was displayed at trial—an assumption for which we have no basis other than Edwards’s own

post-conviction assertion—there is no reason to believe the government could not have corrected its

mistake and displayed the gun with the correct magazine.


       As a final point, we note that were Edwards advancing this argument as a challenge to the

sufficiency of the evidence against him (which it essentially is, though he casts it as an ineffective-

assistance claim), we would decline to entertain it: an appellate court does “not consider the

credibility of witnesses or weigh the evidence.” United States v. Jamieson, 427 F.3d 394, 402 (6th

Cir. 2005).


       Thus, because Edwards cannot prove he was prejudiced by any of his counsel’s decisions at

trial, we deny his ineffective-assistance claims.


                                           IV. Conclusion


       Edwards cannot show that any of the errors require us to grant him a new trial; thus, we

affirm his conviction.




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