Fifth Amendment:
A. Prosecutor Conduct
B. Brady
C. Confessions and Testimonial Rights
D. Double Jeopardy
E. Miscellaneous Fifth Amendment
Prosecutor Conduct
Sixth Circuit Decisions
• Due Process - Selective ProsecutionU.S. v. Jones, 03-6016 (3/3/05)
> Defendant moved to dismiss a narcotics indictment based upon selective prosecution where officers in the department had engaged in widespread, racially offensive conduct, wore t-shirts with the defendant’s picture the day they arrested him, and sent a taunting postcard to the defendant with a black woman on the front holding bananas.
* Holding: To prove selective prosecution, the defendant must establish both discriminatory intent, and discriminatory effect. The court found plenty of evidence of discriminatory intent on the part of the officers, but held that discriminatory effect was lacking. The defendant was unable to show that similarly situated individuals of a different race were not similarly federally prosecuted. Therefore, the conviction was affirmed.
• Due Process - Selective Prosecution
U.S. v. Thorpe, 05-2220 (12/27/06)
> Defendant was charged with being a felon in possession of a firearm and moved to dismiss the indictment by claiming that he was selectively prosecuted because he was black. Defendant presented evidence to show that the federal gun initiative under which he was prosecuted targeted counties with a varied percentage of black populations, but that 88% of the defendants represented by the local Federal Public Defender Office in the E.D. of Michigan for firearm charges were black. The district court ordered the government to produce discovery pertaining to the parameters and statistics involved with the federal gun initiative. The government complied only partly with the district court’s discovery order and, as a result, the district court dismissed the indictment. The government appealed.
* Holding: To obtain an order for discovery regarding a selective prosecution claim, a defendant must present a credible showing of “discriminatory effect” and “discriminatory intent.” First, the court found that defendant had failed to present any evidence to show discriminatory effect because defendant had not demonstrated how similarly situated non-black defendants were not prosecuted by the government. The court noted that defendant could easily have tried to make this showing by reference to state court records. Second, the court found absolutely no evidence of discriminatory intent. Accordingly, the district court’s dismissal of the indictment and its discovery order were reversed and the case remanded.
• Due Process - Selective Prosecution
Keene v. Mitchell, 05-3538 (4/25/08)
> Defendant was convicted in state court for multiple homicides, and was sentenced to death. Defendant argued in the state court that the prosecution violated his right to equal protection by pursuing the death penalty against him based upon his race. First, defendant introduced statistics that 17% of the county’s population was black, but that 64% of capital defendants were black. Further, Defendant pointed to white individuals, including his codefendant, who were prosecuted for murder, but the death penalty was not sought or imposed. Defendant lost his state court appeal, and filed a federal habeas petition. The district court denied the petition and defendant appealed.
* Holding: In order to establish an equal protection violation, a defendant must show purposeful discrimination, which requires that the defendant establish a discriminatory purpose, and discriminatory effect. First, the court held that the statistical evidence introduced by defendant was insufficient to establish that “racial considerations played a part in his sentence.” Second, the court ruled that the white defendants who were not prosecuted were not similarly situated to defendant in terms of culpability, and thus, defendant did not show adequate discriminatory effect. Accordingly, the district court ruling was affirmed.
• Due Process - Vindictive Prosecution
U.S. v. Poole, 04-5016 (5/10/05)
> Defendant was indicted for being a felon in possession of a firearm and the trial ended in a mistrial due to jury deadlock. The government then returned a superceding indictment adding two additional charges for possession of cocaine with intent to distribute and possession of a firearm in relation to a drug trafficking offense. The additional charges arose out of the same set of facts as the original indictment. Defendant challenged the superceding indictment as being a vindictive prosecution; the district court denied the motion. Defendant was convicted in the second trial of all counts and sentenced to 322 months in prison.
* Holding: Prosecutorial vindictiveness may be shown through one of two approaches. Actual vindictiveness may be proven by objective evidence that a prosecutor acted in order to punish defendant for exercising his rights. In the case, there was no evidence of actual vindictiveness. Second, a defendant may show a presumption of vindictiveness by weighing the prosecutor’s stake in preventing the assertion of the protected right and the reasonableness of the prosecutor’s actions. If a prima facie case is made by defendant, the government may rebut the presumption by showing that there was objective information in the record to justify the additional charges. In the case, the court found that the prosecutor did not object to the mistrial, but agreed to it. Further, the court found that the government’s decision to add charges in the superceding indictment was based upon the government’s desire to introduce evidence about the drug transaction in which defendant was engaged shortly before the officers saw the gun. The drug evidence had been excluded by the district court at the first trial because it was not relevant to the felon in possession of a firearm charge. Accordingly, the court found the prosecutor’s actions to be reasonable, and sufficient to rebut any presumption, and the conviction was affirmed.
• Prosecutorial Vindictiveness
U.S. v. Roach, 06-6266 (9/11/07)
> Defendant was a police officer charged with conspiracy and violation of a person’s civil rights. The first trial ended in a mistrial and the government then obtained a superceding indictment, adding a charge of being an accessory after the fact. Defendant moved to dismiss the charge, claiming prosecutorial vindictiveness. The district court denied the motion, defendant was convicted, and he appealed.
* Holding: Prosecutorial vindictiveness may be evidenced by “actual” vindictiveness or by a “realistic likelihood” of vindictiveness. Actual vindictiveness is shown by objective evidence that a prosecutor punished a defendant based on an exercise of the defendant’s legal rights. The “realistic likelihood” of vindictiveness standard considers the prosecutor’s stake in deterring a protected right and the reasonableness of the prosecutor’s actions. In the case, the court held that the following factors showed a lack of vindictiveness: (1) the government claimed that it made a “reasoned re-evaluation of the evidence” after the first trial; (2) the accessory after the fact charge was a less severe charge than the others in the indictment; (3) the grand jury found probable cause for the new charge; and (4) the evidence presented at trial supported the new charge. Accordingly, the conviction was affirmed.
• Due Process - Prosecutorial Misconduct
U.S. v. Hargrove, 04-3338 (7/19/05)
> Defendant was charged with being a felon in possession of a firearm, and during closing arguments, the prosecutor made reference to the fact that the gun defendant possessed – a derringer – was the same kind of gun that killed Abraham Lincoln. The prosecutor made the statement in response to defendant’s testimony that he considered the gun to be a defensive gun, and that he possessed it by necessity to defend himself. Defendant was convicted, and appealed, claiming prosecutorial misconduct.
* Holding: The court held that, even assuming the prosecutor’s remark was improper, it did not warrant reversal of the conviction. The court concluded that the remark was not flagrant because it was an isolated comment. Further, the court considered that the evidence against defendant was overwhelming. Therefore, the prosecutor’s comment did not prejudice defendant’s case, and the conviction was affirmed.
•Due Process - Prosecutorial Misconduct
Hodge v. Harley, 03-3166 (10/12/05)
> Defendant was charged with rape of a child, and the only substantial witness against him was his girlfriend who claimed to be an eyewitness to the rape. The medical evidence was inconclusive. During closing argument, the prosecutor made a series of comments stating personal opinions about the witnesses and misrepresenting the evidence. Defendant’s counsel failed to object to the comments, and defendant was convicted. Defendant appealed through the state court system, and then filed a federal habeas petition claiming that his attorney was ineffective for failing to object to the prosecutor misconduct. The district court denied the petition, and defendant appealed.
* Holding: The court held that defendant’s counsel was ineffective for failing to object to an “egregiously improper closing argument” by the prosecutor. The prosecutor repeatedly vouched for witnesses’ credibility, inserted personal opinion by calling defense witnesses liars, and misrepresented the evidence that had been introduced at trial. Throughout all of the improprieties, defendant’s counsel failed to object. Accordingly, the court found defendant’s counsel to be ineffective and reversed the district court ruling.
• Due Process - Prosecutorial Misconduct
U.S. v. Owens, 04-1655 (10/13/05)
> Defendant went to trial on bank robbery charges, and during closing argument the prosecutor argued that a defense witness had an incentive to lie for defendant, and argued that a prosecution witness was truthful. Defendant challenged the statements on appeal as prosecutor misconduct.
* Holding: First, the court held that a prosecutor may argue that a witness was untruthful, as long as the argument is based upon the evidence and not personal opinion. The court found no misconduct on this point because the prosecutor properly argued that the witness also was under investigation for bank robbery, and might lie for defendant to gain his favorable testimony in the witness’ bank robbery case. Second, the court held that a prosecutor may refer to a plea agreement that a witness has with the government, especially where, as in this case, the defense has argued that the witness has a motive to lie based upon the agreement. Accordingly, the conviction was affirmed.
• Due Process - Prosecutorial Misconduct
U.S. v. Jamieson, 02-3403 (10/28/05)
> Defendant was charged in an insurance fraud scheme and he challenged on appeal several statements the prosecutor made during the closing arguments at trial.
* Holding: In assessing a claim of prosecutor misconduct, the court considers (1) whether the comments were improper, and (2) whether the comments were flagrant enough to warrant reversal. Non-flagrant comments can lead to reversal if the proof against the defendant is not overwhelming, defendant objected at trial, and the court failed to cure the impropriety with an instruction to the jury. In the case, the court found that the prosecutor had not improperly characterized evidence or misstated evidence as suggested by defendant. The court noted that the prosecutor made an improper statement in closing argument by referring to defendant’s attorney’s use of the same expert in three other cases. Because defendant failed to object, however, and because it was an isolated comment, it did not warrant reversal.
• Due Process - Prosecutorial Misconduct
U.S. v. Abboud, 04-3942 (2/17/06)
> Defendant was charged with bank fraud and tax violations and during closing arguments before the jury the prosecutor made reference to defendant’s lavish lifestyle and juxtaposed it with defendant’s failure to pay taxes. Defendant did not object to the prosecutor’s comments at trial, but argued on appeal that they were improper.
* Holding: Courts utilize a two-step inquiry in assessing whether prosecutor misconduct requires reversal of a conviction. First, the court considers whether the statements were improper. Second, the court determines whether the comments were flagrant by examining four factors: (1) whether the remarks were misleading or prejudicial, (2) whether they were isolated or extensive, (3) whether they were deliberate or accidental, and (4) the strength of the evidence. In the case, the court first found that the prosecutor’s comments were improper. The prosecutor had not argued that defendant had a motive to commit the tax violations in order to support his lavish lifestyle, (a permissible inference) but instead had juxtaposed the fact that defendant was wealthy with the fact that he did not file taxes and “left the jury to use its imagination.” The court held, however, that the comments were not flagrant. Even though the court ruled that the purpose of the remarks was to prejudice defendant and that the remarks were intentional, the court found no flagrancy because the comments were isolated and defendant’s defense was extremely weak. Accordingly, the court found no plain error and the conviction was affirmed.
• Due Process - Prosecutorial Misconduct
Carter v. Mitchell, 99-3207 (4/6/06)
> Defendant was charged in state court with a prison murder. At trial, an eyewitness testified during direct examination that he had an agreement with the state to testify. During cross examination, however, the witness denied any such agreement. The state prosecutor did nothing to correct the witness’ testimony after cross examination. Defendant appealed through the state court system, and then filed a federal habeas petition. The district court denied the petition, and defendant appealed.
* Holding: Generally, a prosecutor may not deliberately mislead a jury, or allow misleading testimony to go uncorrected, with respect an agreement to testify. In the case, the court held that the witness’ false testimony on cross examination did not require reversal of the conviction because the prosecutor had elicited the correct information on direct examination, the prosecutor made no reference to the witness’ false testimony in argument, and the witness was not critical to the state’s case, there being three other eyewitnesses to the murder. Accordingly, the court affirmed the district court ruling.
• Due Process - Prosecutorial Misconduct
Gillard v. Mitchell, 03-4261 (4/26/06)
> During defendant’s state murder trial, the prosecutor occasionally referred to defendant as “Dirty John,” questioned him about his membership in motorcycle gangs, claimed that defendant was a “lie” and a “fraud” because he wore a suit during the trial, and displayed crime scene photos during closing argument. Defendant appealed through the state court system and then filed a federal habeas petition claiming prosecutorial misconduct. The district court granted the petition based upon the cumulative errors committed during the trial and the state appealed.
* Holding: The court held that any misconduct that occurred did not prejudice defendant’s case such that a reversal was required. First, the court found that “Dirty John” was defendant’s nickname, and an eyewitness had identified “Dirty John” as the shooter; thus, the references were entirely proper. Second, the court held that the reference to the motorcycle gangs was proper because (1) defendant got his nickname “while working on motorcycles during his youth,” and (2) the affiliation was elicited on cross examination of defendant and “went to his credibility.” Third, the court found that the reference to defendant’s clothing had only a “slight tendency to divert the jury.” Fourth, any impropriety in showing the pictures to the jury was outweighed by the overwhelming evidence against defendant. In general, the court found that any misconduct was isolated in the context of a six-week trial that contained substantial evidence of defendant’s guilt. Accordingly, the district court’s decision was reversed and the conviction affirmed.
• Due Process - Prosecutorial Misconduct
United States v. Gardiner, 05-1247 (9/12/06)
> During defendant’s trial on RICO conspiracy charges, a witness and a codefendant testified that defendant may have Mafia ties. They based this conclusion upon the people defendant knew and the fact that he was Italian. During closing argument, defense counsel argued that it was ludicrous for the witnesses to believe that defendant was in the Mafia. In rebuttal, the prosecutor outlined the evidence that tended to show that defendant was in the Mafia, but stated that it was not an issue in the case. Defendant was convicted and argued for the first time on appeal that the prosecutor committed misconduct by making the Mafia references.
* Holding: Applying the plain error rule, the court found no misconduct. The initial Mafia references came from witnesses and not the government. Further, the prosecutor referred to the Mafia in closing only in response to the defense attorney’s closing argument, and the prosecutor reminded the jury that it was not an issue in the case. Accordingly, the court found no prejudice to defendant and affirmed the conviction.
• Due Process - Prosecutorial Misconduct
Joseph v. Coyle, 05-3111 (11/9/06)
> During defendant’s state trial for kidnaping and murder, the prosecutor made the following comments in closing argument: (1) the evidence was uncontroverted regarding the kidnaping; (2) that there was no evidence that defendant did not commit the crime; and (3) repeatedly used the phrases “I think” and “I believe.” Defendant was convicted and argued on appeal that the prosecutor’s improper comments violated his due process right to a fair trial. Defendant lost his state court appeals and filed a federal habeas petition, which the district court denied. Defendant appealed.
* Holding: In determining whether prosecutorial misconduct requires reversal of a conviction, the court considers whether the comments were improper, and if so, whether they were so flagrant as to render the trial fundamentally unfair. First, the court held that
the prosecutor’s statement that the evidence was uncontroverted was not an improper comment on defendant’s failure to testify. Second, the court ruled that the prosecutor’s statement about the lack of evidence that defendant didn’t commit the crime might have been improper as it impinged on the burden of proof. The court found, however, that the trial was not rendered unfair because the trial judge sustained an objection to the statement, instructed the jury to disregard it, and properly instructed the jury on the burden of proof. Third, the court held that the prosecutor’s statements that were prefaced with “I think” and “I believe” were more of a nervous habit than an attempt to express personal opinion. Further, the trial court repeatedly chastised the prosecutor for the comments and instructed the jury to disregard them. Thus, the district court ruling was affirmed.
• Due Process - Prosecutorial Misconduct
U.S. v. Jackson, 05-6014 (1/12/07)
> Defendant was charged in a drug conspiracy and during the prosecutor’s closing argument he repeatedly indicated that government witnesses were “telling the truth,” or “being truthful.” Defendant did not object to the statements and he was convicted. Defendant appealed.
* Holding: In assessing a claim of prosecutorial misconduct, the court considers first whether the remarks were improper, then whether the impropriety amounted to reversible error considering prejudice to the defendant, the isolated or extensive nature of the remarks, the deliberateness of the remarks, and the strength of the evidence against the accused. First, the court found that the prosecutor’s remarks were repeated and improper. Second, the court ruled that the remarks did not require reversal because the prosecutor had at least tried, although ineptly, to tie the comments to the evidence, the testimony of the witnesses was corroborated, and the evidence against defendant was otherwise “undeniably strong.” Thus, applying the plain error standard, the court affirmed defendant’s conviction.
• Prosecutorial Misconduct
Girts v. Yanai, 05-4023 (9/5/07)
> Defendant was charged with murdering his wife. Defendant did not testify at trial, and during closing arguments the prosecutor commented on three separate occasions about defendant’s failure to testify or present evidence. Defendant’s trial counsel failed to object to the prosecutor’s comments. Defendant was convicted and lost his state court appeals. Defendant filed a federal habeas petition claiming that the prosecutor’s comments violated his Fifth Amendment rights and that his attorney was ineffective for failing to object to the comments. The district court denied the petition and defendant appealed.
* Holding: In order to prove prosecutorial misconduct, a defendant must first show that the comments were improper. Second, the defendant must prove that the remarks were sufficiently flagrant to warrant reversal, considering the following four factors: (1) whether they misled the jury or prejudiced defendant; (2) whether they were isolated or extensive; (3) whether they were deliberate or accidental; and (4) whether the evidence against the defendant was strong. In the case, the court found that the prosecutor’s comments were both prejudicial and misleading to the jury about defendant’s right to remain silent, that the comments were not isolated, that they were deliberately made, and that the evidence against defendant was not overwhelming. Accordingly, defendant’s conviction was reversed.
• Prosecutorial Misconduct
U.S. v. Roach, 06-6266 (9/11/07)
> Defendant was a police officer charged with violating two Hispanic men’s civil rights. During trial, evidence was adduced that the first person to ask the victims about their cellular phone was the defense investigator. The prosecutor argued in closing that the only way the defense investigator could have known about the victims having a cell phone was if the defendant told him. Further, the prosecutor commented that the Ten Commandments do not say only that “thou shalt not steal from white people.” Defendant was convicted and appealed.
* Holding: Applying the circuit law on prosecutorial misconduct, the court found that neither of the prosecutor’s comments warranted reversal of the conviction. Specifically, the court ruled that the statements about the cellular phone were a reasonable inference based upon the evidence and thus were not improper. Further, the court found that the statements did not impinge on defendant’s Fifth Amendment right not to testify. Additionally, the court held that the racial comment about the Ten Commandments was properly made in response to improper racial comments by the defense. The court ruled that the defense attorney’s closing argument, which suggested that Hispanics “know how to work the system,” was part of a pattern of “racial baiting,” and that the prosecutor’s comment was simply a response to the defense’s inappropriate statement. Thus, defendant’s conviction was affirmed.
• Due Process - Prosecutorial Misconduct
U.S. v. Gonzalez, 05-4230 (1/9/08)
> Defendant was charged with drug trafficking after he was caught traveling from Buffalo to Chicago and back with cocaine. Defendant told police, and his attorney stated in opening at trial, that defendant was traveling for the purpose of his cell phone and jewelry business. During closing, the prosecutor argued briefly that defendant produced no evidence to support his defense that he was traveling in relation to his cell phone and jewelry business. Defendant did not object to the comments, but argued on appeal that they amounted to prosecutorial misconduct.
* Holding: In determining whether a prosecutor’s remarks are improper, the court must consider them within the context of the trial as a whole, and whether the comments were invited by defense counsel’s comments. The court must also consider four factors: (1) whether the comments were meant to reflect on the accused’s silence; (2) whether they were isolated or extensive; (3) whether the evidence of guilt was overwhelming; and (4) whether a curative instruction was given. In the case, the court found that the prosecutor’s comments were not improper at all but were instead invited by the defense and statements of defense counsel. Further, the prosecutor’s comments were isolated, and were not calculated to mislead the jury. No curative instruction was given because defendant did not object to the comments. Accordingly, the court found no plain error and affirmed the conviction.
• Due Process - Prosecutorial Misconduct
U.S. v. Coker, 06-6504 (1/24/08)
> Defendant was convicted for an illegal conflict of interest for her role in defrauding the federal government while employed by the VA outpatient pharmacy. At sentencing, the government pursued a loss amount that was higher than the amount stipulated with a codefendant. Defendant argued on appeal that the prosecutor commmitted misconduct by arguing different loss amounts for defendant and her codefendant.
* Holding: The court ruled that the differences in the loss amounts could not be prosecutorial misconduct because the government is not necessarily under any obligation to stipulate identical loss amounts with coconspirators. Specifically, the court found that the differing loss amounts were justified in the case because the prosecutor chose to credit the codefendant for taxes he paid as money returned to the victim (the government). This “credit” reduced the defendant’s loss amount under the guidelines. Although the applicability of the “credit” was questionable as a reduction under the guidelines, the court held that the agreement to it by the prosecutor certainly did not amount to prosecutorial misconduct. Accordingly, the sentence was affirmed.
• Due Process - Prosecutorial Misconduct
U.S. v. Davis, 06-5883 (1/30/08)
> Defendant was charged with drug trafficking based, in part, on crack cocaine that was found on a juvenile with defendant at the time of his arrest. During cross examination at trial, defendant’s counsel asked the officer multiple times whether the juvenile was prosecuted, and the prosecutor eventually objected and stated, “We don’t prosecute innocent people.” Defendant immediately moved for a mistrial, and the district court denied the motion, but gave a curative instruction to the jury. During closing argument, the prosecutor insinuated her personal beliefs about the case, called the defense attorney’s arguments “offensive,” and referred to defendant as a “predator” for using a minor in the offense. Defendant failed to object to the statements in closing. On appeal, defendant claimed prosecutorial misconduct required reversal of his conviction.
* Holding: In assessing a claim of prosecutorial misconduct, the court must determine whether the comments were improper and flagrant. In examining flagrancy, the court must consider the following: (1) the likelihood that the remarks tended to mislead the jury or prejudice the defendant; (2) whether the remarks were isolated or extensive; (3) whether the remarks were deliberate or accidental; and (4) the total strength of the evidence. Regarding the first comment, to which defendant objected at trial, the court held that the prosecutor’s remark was improper. The statement that he did not prosecute “innocent people” tended to establish the credibility of the juvenile/witness and to improperly suggest that defendant was guilty. However, the court found that the remark was isolated, and unintentional, and that a proper curative instruction was given.
Regarding the comments during closing argument, the court applied plain error analysis. The court ruled that none of the prosecutor’s comments were so egregious as to affect the “fairness, integrity or public reputation of the proceedings.” Accordingly, defendant’s conviction was affirmed.
• Prosecutorial Misconduct
U.S. v. Martin, 06-5605 (3/31/08)
> Defendant was charged with multiple drug and firearm offenses and the case proceeded to trial. Defendant was convicted and argued on appeal that the prosecutor committed misconduct in closing argument by misstating evidence, denigrating defense counsel, and urging the jury to convict based upon improper considerations.
* Holding: The court found no misconduct on the part of the prosecutor. First, defendant’s claim that the prosecutor misstated evidence was incorrect. During closing, the prosecutor read a rap song written by defendant, and the rap song was, in fact, admitted into evidence. Second, the prosecutor did not denigrate defense counsel, but instead responded to defense arguments regarding the lack of fingerprints, videos, or audiotapes. Finally, the prosecutor did not urge conviction on an improper basis such as the need to protect the community from drug dealers. Instead, the prosecutor simply urged the jury to convict defendant for his own crimes. Thus, the conviction was affirmed.
• Prosecutorial Misconduct
U.S. v. Rose, 06-1642 (4/8/08)
> Defendant was charged with selling a firearm to a known felon in violation of 18 USC § 922(d)(1). During opening statements at trial, the prosecutor indicated that defendant had been in prison with the person to whom he sold the firearm. Defendant did not object to the statement, and he was convicted by the jury. Defendant argued on appeal that the comment in opening statement constituted prosecutorial misconduct.
* Holding: The court held that the prosecutor’s comment was not improper. In a prosecution for § 922(d)(1), the government must prove that defendant knew that the person buying the gun was a convicted felon. The court ruled that the fact that defendant was previously in prison with the purchaser of the firearm showed defendant’s knowledge that the purchaser may be a convicted felon. Accordingly, the evidence would be relevant in the case, and not unduly prejudicial under FRE 403. Therefore, the court found no plain error in the prosecutor’s comment in opening statement.
• Prosecutorial Misconduct
Johnson v. Bell, 04-5377 (4/29/08)
> Defendant was charged with murder during a store robbery. During the prosecutor’s closing argument at trial, he told the jury that one of the victims in the case went to school with his daughter, and suggested to the jury that it could have been his daughter, or any one of the jurors who happened to be in the store, and consequently killed, by defendant. Defendant was convicted, lost his state court appeal, and filed a federal habeas petition. The district court denied the petition and defendant appealed.
* Holding: If a prosecutor’s comment in closing argument is improper, the court must determine if it is “flagrant” by considering the following factors: (1) the likelihood that the remarks mislead the jury or prejudiced defendant; (2) whether the remarks were isolated or extensive; (3) whether the remarks were deliberate or accidental; and (4) the total strength of the case against the defendant. If the comments are not “flagrant,” the court will only reverse the conviction if the proof against the defendant was not overwhelming, opposing counsel objected to the conduct, and the district court failed to give a curative instruction. In the case, the court held that the comments of the prosecutor were clearly improper. The court found, however, that the comments were not “flagrant,” because, although they were clearly intentional, they did not tend to mislead the jury, they were made in the context of a correct recitation of the facts of the case, and the comments were isolated. Finally, the court ruled that reversal was not warranted because the evidence against defendant was substantial, defendant did not object in the trial court to the comments, and the trial court provided an appropriate curative instruction. Thus, the district court ruling denying the petition was affirmed.
• Prosecutorial Misconduct
U.S. v. Henry, 05-2084 (10/17/08)
> Defendant went to trial and was convicted on drug trafficking charges. Defendant appealed and argued for the first time on appeal that, during closing argument, the prosecutor misstated evidence, improperly vouched for witnesses, and shifted the burden of proof to defendant.
* Holding: A two-step inquiry is utilized by the court in assessing a claim of prosecutorial misconduct: (1) Was the statement improper, and if so, (2) was the statement so flagrant as to warrant reversal. In evaluating flagrancy, the court considers whether the remarks were intended to mislead the jury or prejudice defendant, whether the remarks were isolated or extensive, whether the remarks were intentional, and the overall strength of the evidence. First, the court held that the prosecutor did not misstate the evidence. All of the prosecutor’s comments were reasonably based on inferences from the evidence presented.
Second, the court found no personal vouching for witnesses. Improper vouching occurs where the prosecutor either (1) bluntly states a personal belief in a witness’ credibility, or (2) implies that the testimony is corroborated by evidence unknown to the jury. The only problematic statement by the prosecutor occurred when the prosecutor stated that a witness was “highly credible.” The court ruled that the statement was isolated and unlikely to mislead the jury.
Finally, the court found error in an argument made by the prosecutor during rebuttal where, in analyzing reasonable doubt, the prosecutor asked the jury to consider whether they would let a child work for defendant, or whether they would be concerned that he was a drug dealer. The court ruled that the statement had the tendency to invert the burden of proof, suggesting that the jury decide how certain they were that defendant was not a drug dealer. Nonetheless, the court found that the evidence was otherwise overwhelming against defendant, and thus held that the possible inversion did not amount to plain error. Accordingly, defendant’s conviction was affirmed.
• Prosecutorial Misconduct
U.S. v. Carson, 05-1812 (3/30/09)
> Defendants were police officers prosecuted for conspiracy and civil rights violations when they severely beat a motorist. One of the officers broke ranks, pled guilty, and testified against the others at trial. During closing argument, the prosecutor suggested that the beating must have happened, otherwise the cooperating officer would not have pled guilty. Defendants did not object to the statements, but argued on appeal that they constituted prosecutorial misconduct.
* Holding: The court follows a two-step inquiry in assessing claims of prosecutorial misconduct: (1) were the statements improper; (2) if so, then were the remarks flagrant, thus requiring reversal. In evaluating flagrancy, the court considers whether the comments tended to mislead the jury or prejudice the defendant, whether they were isolated or extensive, whether they were deliberately made, and whether the evidence was otherwise strong. The court held that evidence of a codefendant’s guilty plea is never admissible as substantive evidence of a defendant’s guilt. The court noted, however, that both the defense and the government mentioned the cooperating officer’s guilty plea throughout the trial as it related to the issue of the officer’s credibility. Further, the district court gave a proper limiting instruction about the use of the officer’s guilty plea. Thus, considering the trial record as a whole, the court found that the prosecutor’s comments in closing were meant only to address the attacks on the cooperating officer’s credibility. Accordingly, the court found no plain error and affirmed defendants’ convictions.
• Prosecutorial Misconduct
U.S. v. White, 07-2404 (4/16/09)
> Defendant was charged with narcotics and firearm violations. Defendant challenged several of the prosecutor’s tactics at trial: (1) repeated interruption of defendant during cross examination; (2) reference in closing to defendant making “millions and millions of dollars”; (3) injection of personal opinion; and (4) shifting the burden of proof in closing argument. Defendant did not object at trial, but raised the issue of prosecutorial misconduct for the first time on appeal.
* Holding: First, the court held that the repeated interruption of a witness is improper, but that defendant’s tactics on the witness stand invited the interruptions because defendant failed to answer many of the questions posed. Second, the reference to “millions and millions of dollars” was actually supported by the evidence at trial. Third, the prosecutor’s injection of personal opinion was improper. However, the court found that the error was not flagrant because the prosecutor “argued the facts primarily, and only punctuated his remarks by calling the stories conjured up by [defendant] and his witnesses ‘ridiculous.’” Fourth, the court found that the prosecutor did improperly shift the burden of proof by stating: “What other kind of proof did defendant bring in to establish that he’s not a drug dealer?” However, the court found no plain error because the district court gave proper instructions about the burden of proof both before and after the presentation of evidence which cured any prejudice. Accordingly, defendant’s conviction was affirmed.
• Prosecutorial Misconduct
U.S. v. Johnson, 08-1662 (9/18/09)
> Defendant was charged with conspiracy, bank robbery, and murder during a bank robbery. At trial, defendant presented testimony from his wife and a friend to establish that he was recovering from an injury and surgery at the time of the offense. The government cross examined the wife about a potential false identity she had allegedly used, but the district court determined that the government had no good faith basis for the questions. Accordingly, the district court instructed the jury to disregard the questions. Regarding the friend, the government disclosed after his testimony on direct that he was potentially involved in the conspiracy, and the government wanted him to get counsel before it cross examined him. This resulted in the witness asserting his Fifth Amendment rights, and the district court struck all of his testimony. Defendant was convicted after trial, and argued on appeal that the prosecutor committed misconduct requiring reversal.
* Holding: In assessing prosecutorial misconduct, the court analyzes first whether the comments were improper, and second whether they were flagrantly improper considering the following factors: (1) whether the comments tended to mislead the jury; (2) whether they were isolated or pervasive; (3) whether they were deliberately made; and (4) the weight of the evidence. Regarding cross of the wife, the court held that, even assuming that the comments were improper, they were isolated and the district judge gave a proper and timely limiting instruction. Regarding the friend’s testimony and the impeachment evidence, the court found that the prosecutor’s actions were not improper. The evidence withheld by the government was solely impeachment evidence and it was favorable to defendant, and thus not discoverable pursuant to Brady. The court found that the government’s delay in disclosing the evidence was reasonable, particularly given that the defense told the government that it was not calling the friend as a witness. Accordingly, defendant’s conviction was affirmed.
• Prosecutorial Misconduct
U.S. v. Beasley , 08-5164 (10/8/09)
> Defendant was charged with being a felon in possession of ammunition. Defendant’s girlfriend testified in his behalf at trial. During defendant’s testimony, the prosecutor asked defendant in cross examination whether he told his girlfriend to go see his lawyer, and that his lawyer would “tell her what to say.” The prosecutor played a recording of the jailhouse conversation and the recording revealed that defendant actually said “tell her what to do.” The prosecutor then corrected himself. Defendant was convicted and argued on appeal that the cross examination question was misconduct because it suggested to the jury that defendant and his attorney were conspiring to commit perjury.
* Holding: The court found that the prosecutor’s statement was improper. However, the court ruled that it was not so flagrant as to require reversal based on the following: (1) it did not mislead or prejudice the jury because the tape was played and the prosecutor quickly corrected himself; (2) the misconduct was isolated to one question; (3) the question was a mistake and not a deliberate act; and (4) the evidence against defendant was otherwise strong. Accordingly, defendant’s conviction was affirmed.
• Prosecutorial Misconduct
U.S. v. Benson, 08-1131 (1/12/10)
> Defendant was charged with being involved in a drug conspiracy. At trial, the government referred to the guilty pleas of codefendants in the case and suggested that the pleas supported the fact that a conspiracy existed. Defendant did not object to the statements, she was convicted, and she appealed.
* Holding: In assessing a claim of prosecutorial misconduct, the court must first determine whether the prosecutor’s remarks were improper. If so, the court must assess whether the comments were flagrant considering four factors: (1) whether they tended to mislead the jury or prejudice the defendant; (2) whether they were isolated or extensive; (3) whether they were deliberately or accidentally made; and (4) the weight of the evidence. In the case, the court held that the prosecutor’s remarks “may have been improper.” A codefendant’s guilty plea may only be used by the government regarding issues of credibility, not as substantive evidence of defendant’s guilt. The court found, however, that the comments were isolated, were not intended to inflame the jury, and that the evidence against defendant was strong. Accordingly, the court found no plain error and affirmed defendant’s conviction.
• Prosecutorial Misconduct
Jaradat v. Williams, 09-3193 (1/14/10)
> Defendant was charged in state court with five counts of rape, one count of kidnaping, and one count of gross sexual imposition. During trial, the prosecutor elicited testimony from an officer and commented in closing regarding defendant’s post-arrest silence and assertion of his right to counsel. Defendant testified at trial that the encounter with the victim was consensual, however, he denied that a vaginal penetration occurred. This latter statement was contradicted by scientific evidence that defendant’s semen was found in the victim’s vagina. The jury convicted defendant only of the vaginal penetration rape count and kidnaping. Defendant lost his state court appeal, and filed a federal habeas petition. The district court denied the petition and defendant appealed.
* Holding: The court held that the prosecutor clearly violated defendant’s rights by commenting on his post-arrest silence. Nonetheless, the court held that the error was harmless because the physical evidence regarding the count of conviction was strong and defendant did not claim consent on this count, but instead testified that it did not occur. Accordingly, defendant’s conviction was affirmed.
• Prosecutor Misconduct
U.S. v. Thornton, 08-3349 (2/12/10)
> Defendant was charged with participating in a drug conspiracy. At trial, the prosecutor elicited testimony from a cooperating codefendant about his plea of guilty to the conspiracy charge and the details of his plea agreement. Defendant did not object to the testimony and, during cross examination, questioned the witness regarding his plea deal in an effort to impeach him. Defendant was convicted and he appealed.
* Holding: A codefendant’s guilty plea may not be used as substance evidence of the defendant’s guilt, but may be considered as evidence regarding a witness’ credibility. Thus, the prosecutor may use the evidence, under proper instruction, to help the jury assess the credibility of the witness. Further, the prosecutor may introduce the plea before the jury on direct examination of the witness in order to “blunt the defense efforts at impeachment and dispel the suggestion that the government witness has something to hide.” In the case, the court found that the government did not use the witness’ plea for an improper purpose, did not mention it in closing argument, the defense cross examined the witness based on the plea agreement, and the district court gave a proper limiting instruction. Accordingly, the court found no plain error in the introduction of the witness’ testimony regarding the plea agreement.
• Prosecutorial Misconduct-False Testimony
Rosencrantz v. Lafler, 07-1403 (6/9/09)
> Defendant was charged in state court with rape and felonious assault. At trial, the victim identified defendant as the offender, but testified falsely or inconsistently regarding four matters: (1) the time the assault occurred; (2) her level of certainty regarding the identification of defendant; (3) her level of sobriety at the time of the assault; and (4) whether she met with prosecutors pretrial. Defendant was convicted, lost his state court appeal, and filed a federal habeas petition claiming prosecutorial misconduct for knowingly presenting false testimony. The district court denied the petition and defendant appealed.
* Holding: The knowing presentation of false testimony is analyzed based on a framework outlined in Brady and Giglio, which requires consideration of three factors: (1) whether the statement was actually false; (2) the materiality of the statement; and (3) the prosecution’s knowledge of the statement’s falsity. The court held that the materiality standard for a false testimony case is less stringent than a strict Brady violation case; the defendant need only show that there is a reasonable likelihood that the false testimony could have affected the judgment of the jury. In the case, the court held that the first three instances were either mere inconsistencies in the victim’s testimony, or were not indisputably false. However, the fourth instance, regarding the non-existence of pretrial meetings with the prosecutor, was indisputably false and was material. Specifically, the court ruled that the victim’s testimony, and thus credibility, were critical to the state’s case, and thus the lies should have been corrected by the prosecutor. Accordingly, the court found constitutional error.
The court held, however, that a Brady/Giglio violation for presenting false testimony was subject to harmless error analysis. The court ruled that the error in the case was a “trial error,” not the kind of “structural error” that requires automatic reversal of a conviction. As such, the court found that the prosecutorial misconduct constituted harmless error because the evidence against defendant was strong, and the victim’s credibility and character had otherwise been thoroughly impugned by the defense. Therefore, the district court’s ruling was affirmed.
• Prosecutorial Misconduct-False Testimony
Akrawi v. Booker, 07-1984 (7/10/09)
> Defendant was charged with drug trafficking and an informant testified against him at trial. Although the informant acknowledged an expectation that he may receive favorable treatment in a pending case for his testimony, the prosecution’s witnesses testified uniformly that no deal was made with the informant for his testimony. Defendant was convicted. During his state post-conviction proceedings, defendant presented evidence from the informant’s attorney that a deal was made with the prosecution, and a letter was found from the attorney in the prosecutor’s file confirming the deal. The state court granted post-conviction relief based on a Brady violation, but the state appellate court reversed. Defendant filed a federal habeas petition, and the district court denied the petition. Defendant appealed. Defendant argued on appeal that the prosecution’s presentation of false testimony constituted a structural error requiring automatic reversal.
* Holding: In order to prevail on a false-testimony claim, a defendant must prove that (1) false testimony was presented, (2) the prosecution knew it was false, and (3) the testimony was material. The court held that false testimony must be shown to be “indisputably false” rather than “merely misleading.” The court found that, because there was no express agreement between the informant and the prosecution, the testimony was at most misleading, but that it was not clearly false. Further, because defendant’s claims of false testimony were of “relatively minor significance,” they were not of the sort that could constitute a structural error in the proceedings. Accordingly, defendant’s conviction was affirmed.
• Due Process - Prosecutorial Vindictiveness
U.S. v. Moon, 06-5581 (1/16/08)
> Defendant was charged with three counts of health care fraud and moved to dismiss the indictment based upon the failure to allege an interstate nexus. The district court granted the motion, and the government obtained a superseding indictment. Defendant again moved to dismiss based upon interstate nexus, and again the district court granted the motion. In obtaining a second superseding indictment, the government added a count of making false statements to a government official. Defendant moved to dismiss the additional count based upon prosecutorial vindictiveness. The district court denied the motion, defendant was convicted after trial, and she appealed.
* Holding: In order to prove prosecutorial vindictiveness in charging decisions, a defendant must show that the prosecutor had a “stake” in deterring the exercise of defendant’s rights, and that the prosecutor’s conduct was unreasonable. In the case, the court held that the fact that the prosecutor had to repeat prosecutorial efforts, in the form of a second and third superseding indictment, did not rise to the level of vindictiveness. The minimal burden on the prosecutor in having to seek a new indictment at the pretrial stage did not establish that the government had a “stake” in deterring defendant’s exercise of her rights. Further, the court ruled that the government’s conduct was not unreasonable. The court found credible the government’s assertion that it did not bring the false statement charge in the earlier indictments because “it did not want to delay the trial start date.” Accordingly, the conviction was affirmed.