ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before: SEITZ, Chief Judge, ADAMS, Circuit Judge and LACEY, District Judge*fn*
William Curtis, III, was tried and convicted of several criminal offenses. Because of prosecutorial misconduct prejudicial to Curtis, this Court reversed his conviction and remanded the matter for a new trial. On remand, the district court held that further prosecution of Cutis was barred by the double jeopardy clause of the fifth amendment and consequently dismissed the indictments. We now reverse the district court's ruling and remand the case once again for retrial.
In late 1979 and early 1980, the Government indicted Curtis on three counts of distributing methamphetamine, in violation of 21 U.S.C. § 841, and one count of possession of a firearm during the commission of a felony, in violation of 18 U.S.C. § 924. At trial Curtis stipulated that the alleged drug transactions had taken place but testified that his involvement in the drug sales had been the result of government inducement and coercion. The prosecutor, in an apparent effort to discredit Curtis' proffered entrapment defense, sought to ask Curtis why he had waited until trial to make any allegation of entrapment or coercion. With regard to Curtis' conduct when initially taken into police custody, the prosecutor asked:
And then in this hour and a half or two hours [that you were in police custody], you never said to those officers, "You got the wrong guy; I was forced into it"?
Transcript of April 23, 1980, at 3:120. Curtis' attorney objected to the question, asserting that it violated Curtis' right against self-incrimination. The court overruled the objection, and Curtis explained that he made no comments regarding his alleged entrapment to the arresting officers because he did not have a lawyer and "didn't want to say anything that would be harmful for [him]. . . ." Prior to the closing arguments, the court cautioned the prosecutor against reminding the jury of Curtis' failure to express his entrapment argument to the arresting officers. The court instructed:
I don't want the prosecutor to argue to the jury, "Why didn't he tell them?" . . . I don't want you to capitalize on the fact that he said nothing and I will tell the jury that a person arrested has no obligation to say anything and so forth. So avoid that in your argument. I don't think there is any legal basis for you to argue it on the facts of the case for the reason I gave.
Id. at 3:160-161. During the Government's closing argument, the prosecutor stated to the jury:
Well, ladies and gentlemen of the jury, you remember the direct examination of William Curtis and you remember the cross-examination of William Curtis and there was just one question that was asked of Mr. Curtis.
And by that I ask the Court's leave to argue this, your Honor.
And that is, whey didn't you tell the story to anyone before?
Id. at 3:47. Curtis' attorney objected to this remark, and the court immediately issued a curative instruction to the jury. The following day Curtis' attorney, after "a chance to reflect on the events of yesterday," moved for a mistrial. The prosecutor responded that, despite the court's previous instruction, his remark had become justified as an "invited response" to certain statements that the defense counsel had made in summation. The court denied Curtis' mistrial request, observing that the prosecutor's utterance was ambiguous and that any undue prejudice to Curtis was cured by the court's instruction. Transcript of April 24, 1980, at 4:53-56. The jury subsequently found Curtis guilty.
Curtis appealed his conviction to this Court. Although it rejected a separate ground for reversal -- assertedly improper cross-examination of a character witness -- as harmless error, the Court held that the proscutor's statements about Curtis' silence, made in direct contravention of the district judge's warning, violated Curtis' right against self-incrimination under Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976), and United States v. Hale, 422 U.S. 171, 45 L. Ed. 2d 99, 95 S. Ct. 2133 (1975). The Court further concluded that the errors, "cumulative in effect," could not be deemed harmless, and ...