October 15, 2019

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Sixth Circuit Vacates Convictions Due to “Flagrant Misconduct” by Prosecutor

On Wednesday, the Sixth Circuit vacated the convictions of two defendants charged with possession with intent to distribute methamphetamine.  Although there was sufficient evidence to support their convictions, the Court held—on plain error review—that certain “remarks made by the prosecutor rose to the level of flagrant misconduct and deprived [defendants] of a fair trial.”

Writing for the panel, Judge John K. Bush identified nine improper and prejudicial remarks made by the prosecutor.  Three of those statements constituted improper vouching or bolstering of government witnesses (e.g., asserting a detective was “a fine young man” who “testified very well, he understood and remembered everything he did”).  An additional three statements constituted improper attacks on the credibility of defense witnesses (e.g., asserting a key defense witnesses was “a proven liar” who was “lying” from the stand).

The final three statements were perhaps the most interesting.  During a search of defendants’ home, police found “a shrine to a statue of Jesus Malverde,” who is apparently the patron saint of marijuana dealers.  The prosecutor repeatedly referenced this statue at trial, describing it as an “idol” worshipped by “drug traffickers” and asking whether defendant “prayed” to the idol for protection from police.  The prosecutor also asked the defendant whether he understood, as “a Catholic believer,” “that there is a Commandment that says thou shall not have any god before me.”  The prosecutor referenced the same drug “deity” and Commandment during closing argument.

These comments were plainly improper, Judge Bush explained, because they were “utterly irrelevant” to the question of guilt and appeared intended to arouse the passions and prejudices of the jury.  The Court could find “no nonprejudicial explanation” for the prosecutor’s references to the Ten Commandments.  And to the extent the prosecutor offered such statements to impeach defendant’s credibility, Federal Rule of Evidence 610 specifically prohibited such attacks.  (“Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.”)

Defense counsel had not objected to any of the improper remarks at trial, but the Court held they were sufficiently “flagrant” to constitute plain error.  Judge Kethledge and Judge White joined Judge Bush’s opinion.  In a separate concurrence, Judge White (joined by Judge Kethledge) explained that in her view, “the prosecutor’s questions and argument regarding [defendant’s] religious practices and beliefs necessitate reversal in and of themselves.”

Trial lawyers throughout the Sixth Circuit should be aware of this decision, which (as Judge Bush noted) illustrates the difference between a prosecutor striking “hard blows” and “foul ones.”  The case is United States v. Acosta, available here.

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About this Author

Scott Coyle, Senior Attorney, Squire Patton Boggs, Cincinnati, White Collar, Criminal Defense,Foreign Corrupt Practices Act
Senior Attorney

Scott Coyle’s practice focuses on government investigations, white collar criminal defense and appellate litigation. He has successfully represented clients in high-profile criminal investigations and administrative proceedings and has extensive experience drafting briefs in state and federal appellate courts. He also advises clients on compliance with US trade sanctions programs and the Foreign Corrupt Practices Act (FCPA).

Prior to joining us, Scott was a litigation associate with full-service law firms in Washington DC and San Francisco. He represented elected officials and...

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