United States v. Michael Anderson (11th Cir. June 2021)

The Federal Docket

July 13, 2021

Sixth Amendment/Right to Testify – A district court does not violate a defendant’s right to testify when it advises him of his right to testify and gets an on-the-record waiver of that right.

Rule 30(b)/Jury Instructions – The district court’s violation of Rule 30(b) in sua sponte amending the jury instructions after defendant’s closing arguments did not warrant reversal where the amendments corrected a misstatement of law and the defense counsel was not caused undue prejudice or surprise by the correction.

Michael Anderson owned a shrimping business in Savannah and was convicted of fraud relating to his application for government subsidies under the Continued Dumping and Subsidy Act of 2000. The Act was designed to pay domestic businesses for losses caused by foreign producers “dumping” underpriced goods into the U.S. market. Anderson was accused of submitting forms that falsely inflated his business’s expenditures in order to qualify for bigger government payments.

On appeal, Anderson raised several challenges based on the district court’s jury instructions and the district court questioning Anderson whether he wanted to exercise his right to testify or waive that right. Anderson ultimately testified in his defense.

The Court first rejected Anderson’s argument that the district court erred when it advised Anderson of his right to testify and asked whether he was going to waive it. The Court held the trial court’s inquiry was a “limited, neutral colloquy” and ultimately helpful to advise the defendant of his right. The Court engaged in a lengthy explanation concerning counsel’s right to advise a defendant of his right (and the strategic implications of exercising it) and Eleventh Circuit precedent.

In particular, the Court discussed its opinion in US v. Ly, where the Court reversed a pro se defendant’s conviction after the defendant expressed to the trial court that he did not believe he had the right to testify. Though the Eleventh Circuit had stated in that case that a trial court “generally should not probe a defendant’s reasoning as to whether or not to testify,” the Court now held that a district court is not prohibited from obtaining an “on-the-record waiver of a criminal defendant’s right to testify.”

The Court stressed that the colloquy here was brief and neutral, though it cautioned trial courts not to delve too deeply into a defendant’s decision. Ultimately, the Court opined that these colloquy are helpful to defendants and ensure they are advised of their rights, though the Court also reiterated that trial courts are “not required to inquire on this subject. And if it does so, it should avoid questions that probe trial-strategy issues or suggest the court’s own opinion as to what choice the defendant should make.”

The Court also rejected Anderson’s challenge to the jury instructions. Anderson argued that the district court violated Rule 30(b) of the Federal Rules of Criminal Procedure, which states that a court “must inform the parties before closing arguments how it intends to rule on the requested instructions.”

Here, the district court had amended its jury instructions after the defendant’s closing arguments. Prior to trial, the district court had adopted the defendant’s proposed jury instruction, without objection from the Government, which omitted that defendant could be convicted based on using a private postal carrier instead of just U.S. mail. The Government’s evidence relied on finding that Anderson used a private carrier. After closing arguments, where defendant argued that he could not be convicted because he had not used the US mail, the district court realized its mistake and sua sponte amended the instructions to allow a conviction based on the use of a private carrier. Defense counsel argued that this constructively amended the indictment The district court would not give a curative instruction after the prosecution’s rebuttal.

The Court more or less recognized that the district court had violated Rule 30(b) but held that Anderson was not prejudiced, or at least “no unfair prejudice.” The Court emphasized that, though the district court had approved of the instruction at issue, it would have been instructing the jury contrary to the law. The defense counsel knew the law, therefore argued the law incorrectly in closing, and she was not subjected to undue surprise by the district court’s sua sponte change to the instructions. Moreover, the defense had not focused too much on this argument during closing, so the district court’s purported violation of Rule 30(b) did not have the effect of “repudiating the thrust of defense counsel’s summation.”

That said, the Eleventh Circuit acknowledged “it was not defense counsel’s job to coach the Government as tot he need to object to an instruction for which an objection was clearly in order.” The Court concluded that “the matter could have been handled better.”

The Court also rejected the defendant’s challenge to the trial court’s modified Allen charge.

On appeal from the Southern District of Georgia
Opinion by J. Carnes, joined by Wilson and Branch

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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