United States v. Keith Drake (88-2175), Reginald Clark (88-2176), 885 F.2d 323 (6th Cir. 1989). · Go Syfert
United States v. Keith Drake (88-2175), Reginald Clark (88-2176), 885 F.2d 323 (6th Cir. 1989). Cases Citing This Book View Copy Cite
41 citation events (18 in the last 25 years) across 4 distinct courts.
Treatment trajectory · 1990 → 2026 · click a year to view as-of
1990 2008 2026
Top citers, strongest first. 27 distinct citers. How cited ↗
discussed Cited as authority (rule) Joseph Ambrose v. Raymond Booker
6th Cir. · 2015 · confidence medium
Though “a defendant in a criminal trial need not . . . produce any evidence,” United States v. Drake, 885 F.2d 323, 323 (6th Cir. 1989), to successfully argue that it is reasonably probable that a different jury would have accepted the defense theory, and thus have reached a different result, a defendant must show that there is some support for that theory.
cited Cited as authority (rule) Ambrose v. Booker
E.D. Mich. · 2014 · confidence medium
Now it is “black-letter law that a defendant in a criminal trial need not ... produce any evidence.... ” United States v. Drake, 885 F.2d 323, 323 (6th Cir.1989) (citation omitted).
cited Cited as authority (rule) United States v. Clark
6th Cir. · 2009 · confidence medium
United States v. Drake, 885 F.2d 323, 323 (6th Cir.1989) (citing Griffin v. California, 380 U.S. 609 , 85 S.Ct. 1229 , 14 L.Ed.2d 106 (1965)).
discussed Cited as authority (rule) United States v. White
6th Cir. · 2009 · confidence medium
These arguments fail because the prosecutor is permitted to “summarize the evidence and comment upon both its quantitative and qualitative significance.” United States v. Drake, 885 F.2d 323, 324 (6th Cir.1989).
discussed Cited as authority (rule) United States v. Karl White, Jr.
6th Cir. · 2009 · confidence medium
These arguments fail because the prosecutor is permitted to “summarize the evidence and comment upon both its quantitative and qualitative significance.” United States v. Drake, 885 F.2d 323, 324 (6th Cir. 1989).
discussed Cited as authority (rule) United States v. Ables
6th Cir. · 2008 · confidence medium
“It is axiomatic that a defendant in a criminal trial need not testify or produce any evidence, and that a prosecutor may not comment on the absence of such.” United States v. Bond, 22 F.3d 662, 669 (6th Cir.1994) (citing United States v. Drake, 885 F.2d 323, 323 (6th Cir.1989)).
discussed Cited as authority (rule) United States v. Kidwell
6th Cir. · 2007 · confidence medium
Furthermore, while “prosecutors are not allowed specifically to call attention to a defendant’s failure to produce evidence,” they are allowed to “summarize the evidence and comment upon both its quantitative and qualitative significance.” United States v. Drake, 885 F.2d 323, 324 (6th Cir.1989).
discussed Cited as authority (rule) United States v. Brown
6th Cir. · 2006 · confidence medium
The government had properly introduced into evidence the matters it summarized during closing argument, United States v. Drake, 885 F.2d 323, 324 (6th Cir.1989), and did not violate Brown’s Fifth Amendment rights by asking the jury to consider hypothetically whether his postarrest statements were those of an innocent party, United States v. Green, 305 F.3d 422, 430 (6th Cir.2002). *349 Brown argues that the court lacked authority to ask a jury that had returned a verdict to answer additional, sentence-related interrogatories.
cited Cited as authority (rule) United States v. Chucks Emuegbunam
6th Cir. · 2001 · confidence medium
United States v. Drake, 885 F.2d 323, 324 (6th Cir.1989).
discussed Cited as authority (rule) John W. Byrd, Jr. v. Terry L. Collins, Warden (2×)
6th Cir. · 2000 · signal: cf. · confidence medium
Cf. Rodriguez v. Peters, 63 F.3d 546, 565 (7th Cir. 1995) (victim impact comments comprising one of 35 pages of closing argument transcript did not render trial unfair). 41 Although a prosecutor may not comment on the failure of a criminal defendant to produce evidence, the prosecutor may "summarize the evidence and comment on its quantitative and qualitative significance." United States v. Bond, 22 F.3d 662, 669 (6th Cir. 1994) (citing United States v. Drake, 885 F.2d 323, 323-24 (6th Cir. 1989)).
discussed Cited as authority (rule) Byrd v. Collins
6th Cir. · 2000 · confidence medium
The trial court refused to grant or even hear Byrd’s motions. 41 Although a prosecutor may not comment on the failure of a criminal defendant to produce evidence, the prosecutor may “summarize the evidence and comment on its quantitative and qualitative significance.” United States v. Bond, 22 F.3d 662, 669 (6th Cir. 1994) (citing United States v. Drake, 885 F.2d 323, 323-24 (6th Cir. 1989)).
discussed Cited as authority (rule) United States v. Patrick Gray and Anthony Gray
6th Cir. · 1996 · confidence medium
In United States v. Drake, the court set forth a four-part test for improper comment by a prosecutor: 26 1) Were comments "manifestly intended" to reflect on the accused's silence or of such a character that the jury would "naturally and necessarily" take them as such; 27 2) Were the remarks isolated or extensive; 28 3) Was the evidence of guilt otherwise overwhelming; [and] 29 4) What curative instructions were given, and when? 30 885 F.2d 323, 324 (6th Cir.1989), cert. denied, 493 U.S. 1033 (1990). 31 A balancing of the Drake factors demonstrates a reversal of Patrick Gray's conviction is no…
discussed Cited as authority (rule) United States v. Jose Mejorado-Soto
6th Cir. · 1995 · confidence medium
United States v. Drake, 885 F.2d 323, 324 (6th Cir.1989), cert. denied, 493 U.S. 1033 (1990). 15 The second prosecutorial remark to which defendant objects is as follows: 16 Was there any evidence in this case--first of all, there is no question Jesse Arrieta was here.
discussed Cited as authority (rule) United States v. Bruce Clark Reliford
6th Cir. · 1995 · confidence medium
A prosecutor in closing argument may review the evidence that has been presented, and may comment on the strength of the Government’s proof, see United States v. Drake, 885 F.2d 323, 323-24 (6th Cir.1989), cert. denied, 493 U.S. 1049 , 110 S.Ct. 852 , 107 L.Ed.2d 846 (1990), so long as these com *251 ments do not constitute improper vouching, see Carroll, 26 F.3d at 1389 , and are not made to inflame the jury, see United States v. Solivan, 937 F.2d 1146, 1151 (6th Cir.1991).
cited Cited as authority (rule) United States v. Ronald J. Pike
6th Cir. · 1995 · confidence medium
United States v. Drake, 885 F.2d 323, 324 (6th Cir.1989), cert. denied, 493 U.S. 1049 (1990).
discussed Cited as authority (rule) United States v. Brett Lang
6th Cir. · 1994 · confidence medium
However, a prosecutor may summarize the evidence in closing and "comment upon both its quantitative and qualitative significance." United States v. Drake, 885 F.2d 323, 324 (6th Cir.1989), cert. denied, 493 U.S. 1033 (1990).
cited Cited as authority (rule) United States v. Dexter O'Bryant Bond (92-2266) Ervin Brown, Jr. (92-2268)
6th Cir. · 1994 · confidence medium
United States v. Drake, 885 F.2d 323, 323 (6th Cir.1989), ce rt. denied, 493 U.S. 1033 , 110 S.Ct. 750 , 107 L.Ed.2d 767 (1990).
discussed Cited as authority (rule) United States v. Jerry Nichols and Charlotte Nichols
6th Cir. · 1992 · confidence medium
See United States v. Robinson, 485 U.S. 25, 33-34 (1988); United States v. Young, 470 U.S. 1 (1985); United States v. Beddow, 957 F.2d 1330, 1336 (6th Cir.1992); United States v. Drake, 885 F.2d 323, 324 (6th Cir.), cert. denied, 493 U.S. 1033 (1990).
discussed Cited as authority (rule) Johnny Ray Roach, Sr. v. Neil Rone, Warden
6th Cir. · 1992 · confidence medium
We must not lose sight of the fact that what is sought to be prevented is the government conveying to the jury that a defendant is under some kind of duty to testify or produce evidence. 21 United States v. Drake, 885 F.2d 323, 323-24 (6th Cir.1989), cert. denied, 493 U.S. 1049 (1990) (footnote omitted) (emphasis in original).
discussed Cited as authority (rule) United States v. Daniel E. Brickley and Rick Seefeldt
6th Cir. · 1990 · confidence medium
In United States v. Drake, 885 F.2d 323, 324 (6th Cir.1989), cert. denied, 110 S.Ct. 750 (1990), this court set forth a four part test for determining whether comments on an accused's failure to testify require reversal: 12 1) Were the comments "manifestly intended" to reflect on the accused's silence or of such character that the jury would "naturally and necessarily" take them as such; 13 2) Were the remarks isolated or extensive; 14 3) Was the evidence of guilt otherwise overwhelming; 15 4) What curative instructions were given, and when. 16 In this case, the remarks were limited to a singl…
discussed Cited as authority (rule) Daniel Cruz Rivera v. Martin Makel, Warden, Michigan Dunes Correctional Facility
6th Cir. · 1990 · confidence medium
There was no per se due process violation because the reference to Rivera's assertion of his rights was not used to "impeach an explanation that he subsequently offered at trial." Compare Doyle v. Ohio, 426 U.S. 610, 617 (1975) with United States v. Drake, 885 F.2d 323, 324 (6th Cir.1989) and Paprocki, 869 F.2d at 287-88 .
cited Cited "see" United States v. Daniel Gallegos
6th Cir. · 2014 · signal: see · confidence high
See United States v. Drake, 885 F.2d 323, 324 (6th Cir.1989).
cited Cited "see" United States v. Kuehne
6th Cir. · 2008 · signal: see · confidence high
See United States v. Drake, 885 F.2d 323, 324 (6th Cir.1989) (noting that a prosecutor may “summarize the evidence and comment upon both its quantitative and qualitative significance”).
discussed Cited "see" United States v. Kuehne
6th Cir. · 2008 · signal: see · confidence high
See United States v. Drake, 885 F.2d 323, 324 (6th Cir. 1989) (noting that a prosecutor may “summarize the evidence and comment upon both its quantitative and qualitative significance”).
discussed Cited "see" United States v. Stephen Martin Beddow
6th Cir. · 1992 · signal: see · confidence high
See United States v. Drake, 885 F.2d 323, 324 (6th Cir.1989) (not every statement highlighting the fact that the defense produce no contrary evidence is improper; a prosecutor must be able to summarize the evidence and comment on its quantitative and qualitative significance), cert. denied, 493 U.S. 1049 , 110 S.Ct. 852 , 107 L.Ed.2d 846 (1990). *1337 Moreover, considered in light of the context of the arguments and the entire trial, any prejudice to the defendant was minimal and does not warrant reversal.
discussed Cited "see, e.g." United States v. Michael R. Burns
8th Cir. · 2005 · signal: see also · confidence medium
He maintains that “the jury may have drawn the next logical inference” from the government’s argument and wondered “why [Mr. Burns] did ... not simply take the stand and explain that and tell them when the conspiracy began?” We agree with Mr. Burns that the prosecution “may not improperly suggest that the defendant has the burden to produce evidence.” United States v. Balter, 91 F.3d 427, 441 (3d Cir.1996), cert, denied, 519 U.S. 1011 , 117 S.Ct. 518 , 136 L.Ed.2d 406 (1996); see also United States v. Drake, 885 F.2d 323, 323 (6th Cir.1989), cert, denied, 493 U.S. 1033 , 110 S.Ct…
discussed Cited "see, e.g." United States v. Michael R. Burns
8th Cir. · 2005 · signal: see also · confidence medium
He maintains that "the jury may have drawn the next logical inference" from the government's argument and wondered "why [Mr. Burns] did ... not simply take the stand and explain that and tell them when the conspiracy began?" We agree with Mr. Burns that the prosecution "may not improperly suggest that the defendant has the burden to produce evidence." United States v. Balter, 91 F.3d 427, 441 (3d Cir. 1996), cert. denied, 519 U.S. 1011 (1996); see also United States v. Drake, 885 F.2d 323, 323 (6th Cir. 1989), cert. denied, 493 U.S. 1033 & 1049 (1990).
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Keith DRAKE (88-2175), Reginald Clark (88-2176), Defendants-Appellants
88-2175, 88-2176.
Court of Appeals for the Sixth Circuit.
Sep 18, 1989.
885 F.2d 323
Robert Haviland, Asst. U.S. Atty. (argued), Flint, Mich., for U.S., Thomas E. Kuhn (argued), Detroit, Mich., for Keith Drake.
Guy, Boggs, Norris.
Cited by 35 opinions  |  Published
RALPH B. GUY, Jr., Circuit Judge.

In this consolidated appeal, defendants Keith Drake and Reginald Clark appeal their convictions for conspiracy to distribute cocaine. The only error claimed concerns a comment made by the prosecutor during closing argument. It is alleged that the prosecutor, to the prejudice of the defendants, commented on their failure to testify or otherwise produce evidence. The district judge denied a timely motion for a mistrial.

Upon review, we conclude that no error requiring reversal occurred and we affirm the convictions of both defendants.

It is black-letter law that a defendant in a criminal trial need not testify or produce any evidence, and that no comment on a failure to do so is appropriate. Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). During the trial of Clark and Drake, the assistant United States Attorney, in his closing argument, made the following statement:

Now there was some dispute in the evidence as to whether Mr. Bonaparte was himself handing out the crack cocaine or whether he just opened the door and collected the money. Well that kind of dispute doesn’t make any difference. And Mr. Bonaparte to his credit, knows that and admitted that. He admitted on the stand I’m guilty, I pleaded guilty. I know I’m guilty. It doesn’t matter whether he was handing out the cocaine or just collecting the money and answering the door with a gun in his hand. He knew he was part of that conspiracy and he pleaded guilty.
Now as to the two defendants that are on trial. The evidence is not at all in dispute. Well, I’m sorry. It’s not at all unequivocal. I’m sure that it will be disputed. But the evidence is overwhelming. It is unrebutted and it is consistent.

Juries routinely are instructed in criminal cases that defendants need not testify or produce evidence and that no adverse infer-[*324] enees may be drawn therefrom. [1] Thus, prosecutors are not allowed specifically to call attention to a defendant’s failure to produce evidence. This does not mean, however, that a prosecutor cannot summarize the evidence and comment upon both its quantitative and qualitative significance. Arguably, every time a prosecutor says “the evidence is overwhelming” or “the evidence is 100 percent,” or “every witness who testified told you the same story,” it could be construed as highlighting the fact that the defense produced no contrary evidence. Yet, such comments are certainly proper. The government is not forbidden to comment on the strength of its proofs; otherwise we take the “argument” out of closing argument and reduce it to a flaccid resumé of the evidence. We must not lose sight of the fact that what is sought to be prevented is the government conveying to the jury that a defendant is under some kind of duty to testify or produce evidence.

In Hearn v. Mintzes, 708 F.2d 1072 (6th Cir.1983), we suggested four criteria to use in reviewing claims of improper comment by a prosecutor:

1) Were the comments “manifestly intended” to reflect on the accused’s silence or of such a character that the jury would “naturally and necessarily” take them as such;
2) Were the remarks isolated or extensive;
3) Was the evidence of guilt otherwise overwhelming;
4) What curative instructions were given, and when.

Id. at 1077.

Although such tests are always illustrative rather than exhaustive, we have followed this test in subsequent cases. [2] When these criteria are applied to the case at bar, it is clear that we are dealing with isolated comments not intended to reflect on the accused’s silence in a case in which the evidence was susceptible of no reasonable interpretation other than guilt. As for the “curative instruction” prong of the test, we would make the following observations. First, no curative instruction was requested. Second, the court’s preliminary and final instructions to the jury made clear the respective burdens, or lack thereof, of the government and a defendant in a criminal case. Third, and perhaps most important, a curative instruction given at the point in time when the comment was made likely would have done more harm than good. The remark more than likely escaped the jurors’ attention, but if the court had highlighted it at that time with a “curative” instruction, then the jury most certainly would have been reminded of defendant’s failure to testify, albeit with a caution to disregard same. Indeed, many skilled defense lawyers do not want the court to give even the standard instruction concerning a defendant’s failure to testify. [3] There are other types of alleged improprieties in which an immediate curative instruction may be very important, but, here, the less said the better.

In this case, the trial was neither lengthy nor complex. The government produced a parade of accomplice witnesses, all of whom clearly implicated the defendants. The fact that two of the witnesses had trouble identifying defendant Clark (who had made a considerable change in his appearance prior to trial) does not materially detract from the strength of the government’s case. Although we do not think resorting to the “harmless error” doctrine[*325] is necessary, if such an analysis is made, the strength of the government’s case was such as to render the remark of the prosecutor harmless as a matter of law. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

AFFIRMED.

1

.The trial judge instructed the jury on this point in the following language:

None of the defendants have chosen to testify. The law does not compel a defendant in a criminal case to take the witness stand and testify, and no presumption of guilt may be raised, and no inference of any kind may be drawn from the fact that a defendant has not testified.
The law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.
2

. See, e.g., Spalla v. Foltz, 788 F.2d 400, 404 (6th Cir.), cert. denied, 479 U.S. 935, 107 S.Ct. 410, 93 L.Ed.2d 362 (1986).

3

. In United States v. Kirby, 838 F.2d 189 (6th Cir.1988), we upheld the trial judge’s discretion to give the standard instruction over the vigorous objection of the defendant.