United States v. Hills
618 F. 3d 619, 106 A.F.T.R.2d (RIA) 5909, 2010 U.S. App. LEXIS 17186 (2010)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A prosecutor's negative commentary during closing arguments on a defendant's invocation of their Fifth Amendment right to remain silent constitutes plain error requiring a new trial when the evidence against the defendant is entirely circumstantial and they are the only co-defendant who did not testify.
Facts:
- Kenton Tylman worked for Aegis Corporation, a company that marketed and sold fraudulent trust packages designed to help clients evade federal income taxes.
- In 1999, Tylman founded his own company, Worldwide Financial Services (WFS), to continue promoting and selling the Aegis trusts.
- Debra Hills worked as an employee at WFS and was Tylman's girlfriend; Brent Winters served as an attorney for the company.
- Undercover IRS Special Agent Michael Priess met with Tylman and Hills, posing as a potential client seeking to hide $60,000 in income from taxation.
- Tylman offered to manage Priess's trusts and use an accountant who could "play games" to conceal the income.
- Hills was actively involved in WFS's operations, participating in sales pitches, serving as a director for trusts, and holding signature authority over a company bank account.
- For tax year 2000, Hills and her then-husband filed a joint tax return that significantly underreported their income by inflating business expenses and omitting income Hills received from WFS.
- During a search of WFS offices, agents found an IRS bulletin in Hills's office warning against abusive trusts, along with other articles detailing IRS crackdowns on such schemes.
Procedural Posture:
- A grand jury indicted Kenton Tylman, Debra Hills, and Brent Winters in federal district court for conspiracy to impede the IRS.
- Hills and Winters were also charged with individual counts of filing false tax returns.
- The defendants filed pretrial motions to dismiss the case for violations of their statutory and constitutional rights to a speedy trial, which the district court denied.
- The defendants also moved to suppress evidence obtained from a search of their offices, which the district court also denied.
- After a joint five-week trial, a jury found Tylman and Hills guilty of conspiracy.
- The jury acquitted Winters of the conspiracy charge but convicted both Hills and Winters on their individual counts of tax fraud.
- Tylman, Hills, and Winters (Appellants) appealed their convictions to the United States Court of Appeals for the Seventh Circuit.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a prosecutor's commentary during closing arguments that negatively characterizes the invocation of the Fifth Amendment constitute plain error violating a defendant's constitutional rights when that defendant is the only one among co-defendants who chose not to testify?
Opinions:
Majority - Kanne, Circuit Judge
Yes, the prosecutor's commentary constituted plain error that violated Hills's Fifth Amendment rights. The Fifth Amendment prohibits the prosecution from commenting on a defendant's refusal to testify to prevent the jury from inferring guilt from silence, as established in Griffin v. California. In this case, the prosecutor made two negative references to 'taking the Fifth Amendment' during closing arguments, suggesting it was a tactic used by the guilty, despite a direct warning from the trial judge to refrain from doing so. Because Hills was the only defendant who did not testify, the jury would 'naturally and necessarily' view the remarks as a comment on her silence, regardless of the government's claim that the comments referred to Tylman. This error was plain and affected Hills's substantial rights, as the evidence against her was entirely circumstantial, and the improper comments could have tipped the scales in the jury's decision. Allowing such comments to stand would undermine the integrity of the judicial system and the fundamental protection of the Fifth Amendment, thus requiring her conviction to be vacated and the case remanded for a new trial.
Analysis:
This decision reinforces the stringent constitutional protections afforded by the Fifth Amendment's right against self-incrimination, particularly within the context of multi-defendant trials. It establishes that even indirect prosecutorial commentary on a defendant's silence can amount to plain error, especially when only one defendant exercises that right, making them a conspicuous target for jury speculation. The ruling serves as a strong precedent and a cautionary tale for prosecutors, highlighting that violating a court's explicit order on this matter, combined with a case built on circumstantial evidence, creates a high probability of reversal on appeal. This strengthens the 'Griffin rule' by demonstrating that its violation can be grounds for vacating a conviction even without a contemporaneous objection from defense counsel.
