Filed: Nov. 11, 2013
Latest Update: Mar. 02, 2020
Summary: Case: 12-20486 Document: 00512436738 Page: 1 Date Filed: 11/11/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED November 11, 2013 No. 12-20486 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff–Appellant, versus CHRISTOPHER BRIAN POOLE, Defendant–Appellee. *************** Consolidated with No. 12-20485 UNITED STATES OF AMERICA, Plaintiff–Appellee, versus CHRISTOPHER BRIAN POOLE, Defendant–Appellant. Case: 12-20486 Document
Summary: Case: 12-20486 Document: 00512436738 Page: 1 Date Filed: 11/11/2013 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED November 11, 2013 No. 12-20486 Lyle W. Cayce Clerk UNITED STATES OF AMERICA, Plaintiff–Appellant, versus CHRISTOPHER BRIAN POOLE, Defendant–Appellee. *************** Consolidated with No. 12-20485 UNITED STATES OF AMERICA, Plaintiff–Appellee, versus CHRISTOPHER BRIAN POOLE, Defendant–Appellant. Case: 12-20486 Document:..
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Case: 12-20486 Document: 00512436738 Page: 1 Date Filed: 11/11/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 11, 2013
No. 12-20486 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellant,
versus
CHRISTOPHER BRIAN POOLE,
Defendant–Appellee.
***************
Consolidated with
No. 12-20485
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
versus
CHRISTOPHER BRIAN POOLE,
Defendant–Appellant.
Case: 12-20486 Document: 00512436738 Page: 2 Date Filed: 11/11/2013
Appeals from the United States District Court
for the Southern District of Texas
Before SMITH, DENNIS, and HIGGINSON, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Christopher Poole was convicted of one count of felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). After a hearing, the district court
vacated the jury verdict and granted a new trial but denied Poole’s motion to dis-
miss the indictment on double-jeopardy grounds. In separate, consolidated
appeals, the government challenges the grant of a new trial (No. 12-20486), and
Poole attacks the denial of his motion to dismiss the indictment (No. 12-20485).
Because the district court erred in ordering a new trial, we reverse that
order and remand with instructions to reinstate the jury verdict and proceed to
sentencing. We dismiss Poole’s appeal as moot.
I.
Two deputy United States marshals conducted a sex-offender registry
check at Poole’s house to verify that Poole, a registered sex offender, was still
residing there. Poole’s girlfriend Alida Fuentes answered the door and gave the
marshals written consent to search the house. The marshals uncovered, among
other things, two pistols and a semi-automatic rifle; Fuentes told them that the
three firearms belonged to Poole. Poole later confirmed during a custodial inter-
view, after being given his Miranda warnings, that he owned and had control
over the firearms. He described the weapons and their location in his house,
explained where he bought them, how much he paid for them, how long he
owned them, and why he had them.
2
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No. 12-20485
Because he was a convicted felon, Poole was charged with one count of fel-
ony possession in violation of 18 U.S.C. § 922(g)(1). At his jury trial, he testified
that he had lied to ATF officers about owning the firearms in question so that
they would help him get out of jail.
The defense moved for a mistrial three times: (1) after Deputy Marshal
Alfredo Lujan (who discovered Poole’s gun) had testified on direct examination
that one of his duties as a marshal is “to locate and apprehend local and federal
fugitives”; (2) after the prosecutor had stated during closing arguments that it
was not Poole’s “first time in this situation”; and (3) after the prosecutor had
asked the jury, also during closing arguments, “Are you going to believe a liar,
ladies and gentlemen?” The court overruled the first motion for a mistrial but
deferred ruling on the second two.
After the jury returned a guilty verdict, Poole orally renewed his motion,
which he then reduced to writing with supporting argument and authorities. The
written motion added a fourth objection in support of a mistrial, namely that
during closing argument, the government had impermissibly referred to Poole’s
gun as an “assault rifle.” At a hearing the next day, the court vacated the ver-
dict and granted a new trial.
II.
Federal Rule of Criminal Procedure 33(a) provides, in pertinent part:
“Upon the defendant’s motion, the court may vacate any judgment and grant a
new trial if the interest of justice so requires.” FED. R. CRIM. P. 33(a). Where,
as in Poole’s case, a district court grants a motion for a new trial on the basis of
allegedly improper comments by the government at trial, our review proceeds in
two steps.
First, we must determine whether the challenged comments were actually
3
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improper.1 If not,2 the court would have no discretion to order a new trial. If the
prosecutor did make improper comments, we would review the decision to grant
a new trial deferentially under the familiar “abuse-of-discretion” standard. At
that step, we consider the magnitude of the statement’s prejudice, the effect of
any cautionary instruction, and the strength of the evidence of guilt.3
III.
We turn to the propriety of the challenged comments by the prosecutor.
Poole ultimately alleged four errors by the government in his various motions
for a new trial (including his penultimate, written motion):
1. Asking Marshal Lujan what his duties were as a U.S. marshal in
such a way that suggested Poole was a “fugitive;”
2. Describing Poole’s firearm as an “assault rifle” during closing;4
3. Making inappropriate use of Poole’s criminal history during closing;
1
See United States v. Wall, 389 F.3d 457, 466, 474 (5th Cir. 2004) (reversing a grant
of a Rule 33 motion because, inter alia, the prosecutor’s comment on the defendant’s failure
to call witnesses did not, under the facts of that case, implicate the right not to testify).
2
By “improper” we mean legally improper, see, e.g., United States v. Mendoza, 522 F.3d
482, 491 (5th Cir. 2008) (holding a prosecutor’s comment on the courtroom demeanor of a non-
testifying defendant was “legally improper” because “[a] prosecutor is confined in closing argu-
ment to discussing properly admitted evidence and any reasonable inferences or conclusions
that can be drawn from that evidence”).
3
E.g., United States v. Turner, 674 F.3d 420, 439–40 (5th Cir.) (affirming use of a cura-
tive instruction instead of granting a motion for mistrial), cert. denied,
133 S. Ct. 302 (2012);
United States v. Cruz-Padilla,
227 F.3d 1064, 1068-69 (8th Cir. 2000) (affirming grant of new
trial based on improper prosecutor’s comments during closing).
4
Poole expands on this second argument to challenge the prosecutor’s questions related
to the gun’s stock and ammunition. But Poole’s Rule 33 motion was not so broad: It chal-
lenged only the prosecutor’s “assault rifle” comment at closing argument. Because “a district
court does not have the authority to grant a motion for a new trial under Rule 33 on a basis
not raised by the defendant,” United States v. Nguyen, 507 F.3d 836, 839 (5th Cir. 2007), we
limit our inquiry to the closing argument.
4
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and
4. Calling Poole a “liar” during closing.
A.
Poole’s first motion for a mistrial came after direct examination of Lujan,
who discovered the firearms in Poole’s room. The court (sensibly) forbade the
government from explaining that Lujan was at Poole’s residence because Poole
was a registered sex offender, but it permitted testimony on Lujan’s “back-
ground.” The offending portion of the direct examination went as follows:
[Prosecutor]: How are you employed?
[Marshal Lujan]: I’m a deputy U.S. Marshal.
[Prosecutor]: And how long have you been with the United States
Marshals?
[Marshal Lujan]: I have been with the Marshal’s service over nine
years.
[Prosecutor]: Could you summarize your duties as a Marshal for the
jury[?]
[Marshal Lujan]: One of my missions with the Marshal’s service is
to locate and apprehend local and federal fugitives.
At that point, defense counsel objected and moved for mistrial. The court
overruled the objection and denied the motion but gave an immediate curative
instruction: “Ladies and gentlemen, Mr. Poole is not a fugitive. He was not a
fugitive at the time. His fugitive assessment had nothing to do with this case.
So put it out of your mind.”
The court then indicated that the prosecutor could not provide any more
of Lujan’s background, adding, “And now we are going to move to the facts of this
5
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case.” According to the government, had the prosecutor been able to continue
exploring Lujan’s background, the next questions would have been related to his
previous employment as a police officer and U.S. Marine.
This episode does not suggest anything that should trigger a new trial. It
was reasonable for the government to give the jury some context for the encoun-
ter by allowing Lujan to explain his duties as a marshal and to clarify that he
was lawfully present at Poole’s residence, without specifying that he was per-
forming a sex-offender verification. Otherwise, the jury might be confused as to
what a marshal does or might be suspicious of Lujan’s reason for being there.
For that reason, we routinely affirm decisions permitting police officers to
explain their duties and give context for their arrival at a scene.5 The govern-
ment, at least ostensibly, was trying to provide Lujan’s “background” (explicitly
permitted by the in limine order) and to explain what a “U.S. Marshal” is to a lay
jury, even as the government was not allowed to explain why Lujan was at
Poole’s house that day.
It is therefore not obvious that the government erred at allSSmuch less
committed error that would give us doubt as to the integrity of the verdict. Had
the court said nothing to the jury after Poole’s objection, the chain of inferences
required to find unfair prejudice would be too attenuated to require a new trial.6
Yet the court even derailed that speculation by immediately clarifying that Poole
was and is not a fugitive.7 And if Poole remained concerned that the jury might
5
See, e.g., United States v. Parker, 133 F.3d 322, 328 (5th Cir. 1998) (citing United
States v. Carrillo,
20 F.3d 617, 619 (5th Cir. 1994)).
6
Cf. United States v. Goodwin, 492 F.2d 1141, 1146–48 (5th Cir. 1974) (remanding for
a new trial where, inter alia, the prosecutor described the defendant as a “fugitive” twice dur-
ing closing).
7
See United States v. McMillan, 600 F.3d 434, 452–53 (5th Cir. 2010) (affirming denial
(continued...)
6
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continue to believe that he was a fugitive despite the curative instruction, his
counsel could have put the matter to rest on cross-examination.8
In short, there was no error in the direct examination of Lujan. If there
was, it was an error so lacking in prejudice that it could not form the basis on
which to set aside a jury verdict and, hence, no basis for us to affirm the order
of a new trial.
B.
Poole urges that the district court was within its discretion to grant the
Rule 33 motion because during closing the prosecutor impermissibly referred to
his semi-automatic rifle as an “assault rifle.” This argument lacks any merit.
Poole’s rifle was referred to as an “assault rifle” in almost every stage of
the prosecution: in the government’s opening statement (“That was the assault
rifle, ladies and gentlemen);during the suppression proceedings (“she showed the
Marshalls [sic] a large assault rifle in the closet”); on the government’s exhibit
list (“Photo of assault rifle in closet”); during direct examination of Lujan (“That
is the same SKS assault rifle that we located within the closet”); and during the
government’s closing. Poole lodged no objection to that characterization of the
rifle.
Poole’s only objection was to the question “what defines that that is an
assault rifle?” The objection was sustained, so the witness did not answer. Even
here, the objection was not to calling Poole’s rifle an “assault rifle” but to
7
(...continued)
of motion for mistrial based on improper prosecutorial comment on defendant’s silence where
judge immediately gave a curative instruction); Turner, 674 F.3d at 439–40 (same).
8
Cf. Young v. Sirmons, 551 F.3d 942, 952 (10th Cir. 2008) (“Although [the defendant]
complains that this portion of the statement implied he was responsible for a third death, we
note . . . that his trial counsel made no attempt to cross-examine [the witness] on this point.”).
7
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explaining the term “assault rifle.”
The first time Poole raised issue with the characterization was in his sixth,
written motion for a mistrial. In fact, he made a total of five motions for a mis-
trial during and immediately after the government’s closing, and only in the
final, written motion did he challenge the “assault rifle” moniker. He objected
to the government’s calling Poole a “liar” and to its statement referring to Poole’s
criminal history. He renewed those motions twice. But he stated no objection
to the government’s several references to Poole’s “assault rifle” in the same clos-
ing argument.
That Poole was apparently uninterested with the description of his rifle
betrays its insignificance. There was no error in the prosecutor’s calling the
weapon an “assault rifle” and surely no reason to suggest that the nomenclature
created a manifest injustice requiring a new trial. Poole has provided no author-
ity to the contrary.
C.
During summation, the prosecutor stated:
Special Agent Jovianne Marquez told you the agents warned [Poole]
about his rights. They warned him that any statements he said
could be used here in court. He knows this system. He has been
convicted three times of a felony before. This is not his first time in
this situation.
The defense objected and moved for a mistrial. The court then stated, “Convic-
tions are useful only to establish the element of a crime, not that he is generally
a crook and might be punished because of that fact”; the court deferred ruling on
the mistrial motion.
Poole’s convictions were relevant and admissible for three purposes: to
establish his felon status, to impeach his trial testimony, and to challenge his
8
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character for truthfulness.9 But the government could not use them as evidence
of criminal propensity.10 The challenged portion of the government’s closing
statement was apparently a rebuttal to Poole’s primary defense at trial: that he
made up the story about owning the rifle in a desperate attempt to get out of jail.
That is, the statement appears to have been intended to imply that Poole would
not so casually admit to felony possession to a federal police officer after having
been given Miranda warnings and after having already dealt with law
enforcement.
That is not to say there was no inherent prejudice. Any time past convic-
tions are admitted for impeachment, there is a risk that a jury will ignore limit-
ing instructions and consider the convictions as propensity evidence. Yet, the
scope of our review is limited to prejudice stemming from this objected-to closing
argument.
And that marginal prejudice is likely non-existent. The prior convictions
were already entered into evidence by Poole, so the jury was already aware of
them.11 Poole’s convictions were repeatedly mentioned to the jury in the short
trial, including in defense counsel’s closing.
Moreover, the transcript of Poole’s custodial interview, which was also
9
See United States v. Miller, 673 F.3d 688, 696 (7th Cir. 2012) (“Because felon status
is an element of the felon-in-possession charge, . . . . [t]he fact of his prior conviction of an
unspecified felony was admissible for that purpose.”); United States v. DeLoach,
34 F.3d 1001,
1004 (11th Cir. 1994) (“Two examples of the proper evidentiary use of [prior convictions] are:
1) to impeach trial testimony; and 2) to reflect on the witness’ credibility.”).
10
See United States v. West, 22 F.3d 586, 593 (5th Cir. 1994) (“[T]he government may
not introduce evidence of prior conviction[s] under the guise of impeachment for the primary
purpose of placing before the jury substantive evidence which is not otherwise admissible.”)
(internal quotation marks omitted).
11
Example: “Q: Mr. Poole, let’s get one thing out right away. You are a felon, right?
A: Yes, sir. Q: And you have been convicted of something like three felonies; is that correct?
A: Yes.”
9
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entered into evidence, supports the inference that he was familiar with the
criminal-justice system: He asked the agents whether and when “the feds” were
going to “pick up the case,” told them, “I know how ya’ll work,” and stated his
interest in entering into a deal that would “benefit[]” him. At trial, he admitted
both that he was given Miranda warnings and that he was familiar with them.
Finally, any lingering prejudiceSSthough there appears to be noneSS
created by the prosecutor’s closing argument was remedied by the instructions
that “[w]hat the lawyers say is not evidence,” United States v. Duffaut, 314 F.3d
203, 211 (5th Cir. 2002), “[c]onvictions are useful only to establish the element
of a crime, not that he is generally a crook and might be punished because of
that fact.” The jury was repeatedly told about Poole’s convictions, and there was
already evidence manifesting his familiarity with the criminal-justice system.
And the government was well within its right to suggest that the jury infer the
implausibility of Poole’s testimony based on that evidence. Even if there was
error, the prejudice was surely not enough to set aside the verdict and award a
new trial.12
D.
During summation, the prosecutor stated:
[Poole] was warned of his rights, ladies and gentlemen, and he
chose to speak to those agents. He told those agents, as you read for
yourself through the transcripts, where he bought those firearms.
He described the firearms to the agents without the agents even
prompting him. He told them how much he paid for the firearms.
12
See United States v. Logan, 861 F.2d 859, 863–66 (5th Cir. 1988) (holding that district
court abused its discretion by granting new trial on ground of ineffective assistance where
record did not fairly support the conclusion that, but for the advice, the jury verdict would in
reasonable probability have been any different); United States v. Sanchez,
969 F.2d 1409, 1415
(2d Cir. 1992) (holding that it was an abuse of discretion to award a new trial, even in the case
of clear perjury, without a showing that jury might have acquitted otherwise).
10
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He told them how long he had the firearms and why he had the
firearms.
Now, today, ladies and gentlemen, he wants you to believe that
he lied to those agents. Are you going to believe a liar, ladies and
gentlemen?
The defense argues on appeal that the prosecutor acted improperly by
interjecting her personal opinion of Poole’s veracity and character into the
decision-making process. In response, the government points out that it was the
defense that first used the term during its opening statement13 and later during
direct examination of Poole.14 In light of those references, the government
frames the remark as a “straightforward comment on the evidence, not an
improper assertion of the prosecutor’s personal opinion.”
The defense is correct that there is sometimes a distinction between com-
menting that a defendant lied on a particular occasion and calling him a liar.15
One is an “inference drawn from specific evidence,” the other “an attack on [the
defendant]’s character.” Delgado, 672 F.3d at 336. Where a defendant does not
testify, and his character or veracity is otherwise not at issue, it is improper for
the government to sully his character by calling him a liar. See
id.
But the same is not true where the defendant elects to testify and, in so
doing, puts his veracity at issue.16 As long as “such a characterization is reason
13
“[Poole] is going to tell you he lied to the agents.”
14
“[Prosecutor]: Did you lie to the ATF? [Poole]: Yes. I did.”
15
See United States v. Delgado, 672 F.3d 320, 336 (5th Cir. 2012) (en banc) (stating that
“reciting the conclusion that the defendant lied on a particular occasion is not, as [defendant]
contends, equivalent to calling the defendant a liar.”).
16
See United States v. Bush, 451 F. App’x 445, 451 (5th Cir. 2011) (holding that “[t]he
prosecutor was permitted to call [the defendant] a liar” because he “admitted on the stand that
he lied to the DEA”); United States v. Loney, 959 F.2d 1332, 1343 (5th Cir. 1992) (holding that
it was “entirely appropriate” for the prosecutor to call the defendant a “liar” during closing
(continued...)
11
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ably seen as drawing conclusions from, and is actually supported by, the evi-
dence,” Bush, 451 F. App’x at 451, the prosecutor does not commit error by char-
acterizing the defendant as a liar. This principle must be especially true where
the defendant’s entire defense is that he lied to law enforcement.
The decision in United States v. Anchondo-Sandoval, 910 F.2d 1234 (5th
Cir. 1990), which Poole cites for the opposite conclusion, is inapposite. There the
prosecutor stated during closing: “I am going to tell you my feelings in this case
—the defendant in this case is one of the most artful liars I have ever met.”
Id.
at 1237. In dictum, we admonished the prosecutor against “interject[ing her]
personal opinion of the defendant’s veracity into the decision-making process.”
Id. at 1238. The situation here is different: The prosecutor did not share her
personal view of Poole’s veracity; she took his word for it.
Poole’s reliance on Delgado, 672 F.3d at 336, is similarly misplaced. In
that case, this court affirmed a conviction where the prosecutor stated in his
closing statement that the defendant had lied. The defendant argued that “recit-
ing the conclusion that the defendant lied on a particular occasion is . . . equiva-
lent to calling the defendant a liar,” which the court said would be an impermis-
sible “attack on Delgado’s character.”
Id.
The two principles alluded to in this dictum from Delgado are not helpful
16
(...continued)
argument where defendant’s testimony at trial was contradicted by his actions); see also
United States v. Moreland, 622 F.3d 1147, 1161 (9th Cir. 2010) (“[T]he prosecution may refer
to a defendant as a liar if it is commenting on the evidence and asking the jury to draw rea-
sonable inferences.”); United States v. Andreas,
216 F.3d 645, 671 (7th Cir. 2000); United
States v. Donato,
99 F.3d 426, 432 (D.C. Cir. 1996); United States v. Goodapple,
958 F.2d 1402,
1409–10 (7th Cir. 1992) (explaining that “the government is allowed to comment on the credi-
bility of a witness, including the defendant, as long as the comment reflects reasonable infer-
ences from the evidence adduced at trial rather than personal opinion” and noting that “the
prosecution may even characterize the defendant as a liar”); United States v. Peterson,
808
F.2d 969, 977 (2d Cir. 1987) (“Use of the words ‘liar’ and ‘lie’ to characterize disputed testi-
mony when the witness’s credibility is clearly in issue is ordinarily not improper unless such
use is excessive or is likely to be inflammatory.”).
12
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to Poole. One is that a prosecutor could not (as the government did in Anchondo-
Sandoval) provide her own personal opinion of a witness’s veracity divorced from
the evidence in the case as a sort of expert witness in closing. That maxim is not
implicated here because the fact that Poole lied was indeed in evidence (and
came from Poole himself). The second principle is that the government may not
attack a defendant’s character to prove up an offense, sometimes called the “pro-
pensity bar.” In Delgado, the defendant’s character was irrelevant because she
did not testify. Here, by contrast, Poole was a witness in this case, so his char-
acter for truthfulness (viz., whether he was a “liar”) was at issue. See FED. R.
EVID. 608. The government was well within its rights to suggest to the jury that
Poole was a liar.
There was no error. In summary, “[t]he substantially appropriate nature
of the prosecutor’s comments, the repeated correction of any possible deficien-
cies, and the strong government case all lead to the conclusion that the district
court abused its discretion in taking the rare step of ordering a new trial.”
United States v. Glantz, 810 F.2d 316, 324 (1st Cir. 1987).
IV.
Both the new-trial order and Poole’s briefing suggest that it was a permis-
sible exercise of discretion to set aside the verdict and order a new trialSSnot
because of any inherently prejudicial character of the prosecutor’s commentsSS
but because of the prosecutor’s manifest contemptuousness in violating the in
limine orders (described by Poole as “prophylactic measure[s]”) as a sort of pun-
ishment. To be sure, any overbreadth in the in limine order did not give the gov-
ernment license to ignore it. The government acted ill-advisedly, for example,
by proceeding with a delicate line of inquiry when it questioned Lujan before
first clearing it with the court. “The prosecutor’s improper behavior offers a
13
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reminder that attorneys should hew closely to the orders excluding evidence and
seek clear permission when they are approaching those topics at a later point in
trial.” United States v. Dugue, 690 F.3d 636, 638 (5th Cir. 2012) (per curiam).
Nevertheless, a new trial is not a mechanism for punishing contempt, by
a prosecutor or otherwise, but a way to avoid injustice generally and to avoid a
jury verdict for which one has compromised confidence specifically. Consistent
with this principle, courts have affirmed or ordered a new trial for verdicts
against the weight of the evidence; for failure to disclose Brady material, but
only if the evidence is material to guilt or punishment and only where the defen-
dant did not already have access to the evidence,17 for evidence otherwise newly
discovered, but only if that evidence “would . . . probably have resulted in acquit-
tal,”18 and for failing to grant a separate trial for a co-defendant, but only where
“there is a serious risk that a joint trial would compromise a specific trial right
of one of the defendants or prevent the jury from making a reliable judgment
about guilt or innocence.”19 More immediately analogous here is that courts
have affirmed or ordered the grant of a new trial where a prosecutor has had ex
parte communications with jurors,20 but not if the court has taken care to ascer-
tain from each juror a total lack of prejudice in the incident,21 where a prosecutor
knowingly uses false testimony, but only where the jury “might” have acquitted
17
E.g., Rector v. Johnson, 120 F.3d 551, 558–59 (5th Cir. 1997).
18
Wall, 389 F.3d at 471–72 (emphasis added).
19
E.g., United States v. Tarango, 396 F.3d 666, 672–73 (5th Cir. 2005).
20
E.g., United States v. Betner, 489 F.2d 116, 118–19 (5th Cir. 1974).
21
E.g., United States v. Henderson, 404 F.2d 832, 835 (9th Cir. 1968).
14
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absent the perjury,22 and where prosecutors make impermissible comments dur-
ing their closing arguments, but not if the court instructed the jury that coun-
sel’s arguments were not evidence and where the weight of the evidence against
the defendant satisfied that court that none of his substantial rights was
prejudiced.23
Rule 33 caselaw cannot be understood except through the lens of avoiding
the injustice of a compromised verdict. Counsel has brought to our attention no
caseSSand we know of noneSSin which an appellate court affirmed the grant of
a Rule 33 motion on grounds of prosecutorial misconduct unrelated to confidence
in the jury verdict, merely as a way to punish contemptuous prosecutors.24
In No. 12-20486, the order granting a new trial is REVERSED, and that
matter is REMANDED with instruction to reinstate the verdict and proceed to
sentencing. In No. 12-20485, the appeal of the order denying the motion to dis-
miss the indictment is DISMISSED as moot.
22
E.g., United States v. Stofsky, 527 F.2d 237, 246 (2d Cir. 1975).
23
E.g., United States v. Phillips, 664 F.2d 971, 1030–31 (Former 5th Cir. Dec. 1981).
24
If the lawyers here were in contempt, there are ways of punishing them short of
resorting to a new trial. And even if those mechanisms are sometimes ineffective, see David
Keenan et al., The Myth of Prosecutorial Accountability After Connick v. Thompson: Why Exist-
ing Professional Responsibility Measures Cannot Protect Against Prosecutorial Misconduct, 121
YALE L.J. ONLINE 203, 223–24 (2011), that fact would not give us license to make Rule 33
something it is not. A new trial is a remedy inapposite to the harm where the putative
“wrong” has no effect on our confidence in the verdict or the fairness of the trial.
15
