Prosecutor's "Golden Rule" Argument to Jury Criticized by Court of Appeals (3/25/14)

In United States v. Hunte, 2014 U.S. App. LEXIS 4729 (11th Cir. 2014), an unpublished opinion, here,  the Eleventh Circuit sustained convictions for conspiracy and tax perjury.  The defendants had a scheme to claim refunds related to income tax allegedly withheld (but not actually withheld).  It worked at first, but not later.  Hence, the criminal case.  The opinion is standard fare for this genre of case.  The opinion does have an interesting discussion of prosecutorial misconduct in the closing jury argument.  I offer that discussion:

The Court first discusses the standard of review.  Because there was no objection at trial (which would have permitted the judge to clarify with instructions), the standard of review is for plain error, requiring that the error be plain or obvious and affect the defendant's substantial rights.  Applying this standard, the Court held (bold face supplied by JAT):

Mr. George's prosecutorial misconduct claim on appeal is one of cumulative error. He contends the cumulative effect of the various improper remarks made by the prosecution throughout its opening and closing arguments served to deny him a fair trial. "Even where individual judicial errors or prosecutorial misconduct may not be sufficient to warrant reversal alone, we may consider the cumulative effects of errors to determine if the defendant has been denied a fair trial." United States v. Ladson, 643 F.3d 1335, 1342 (11th Cir. 2011) (quoting United States v. Lopez, 590 F.3d 1238, 1258 (11th Cir. 2009)). "In addressing a claim of cumulative error, we must examine the trial as a whole to determine whether the appellant was afforded a fundamentally fair trial." United States v. Calderon, 127 F.3d 1314, 1333 (11th Cir. 1997). 

Of the various remarks Mr. George challenges, we find that three in particular were improper. During its closing argument and final summation, the prosecution made the following remarks: (1) that the defendants "were stealing from you and they were stealing from me and everyone else that's paying into the system"; (2) that the defendants were "living large off of your tax dollars"; and (3) that without citizens filing accurate tax returns, "we would have no tax revenue, . . . no way to build schools . . . no way to fight wars." There is no doubt that these "golden rule" remarks were improper, as they directly suggested that the jurors had personal stakes in the outcome of the case and they placed the prosecution together with the jury in a joint effort to combat fraud. See United States v. McGarity, 669 F.3d 1218, 1246 (11th Cir. 2012) ("[B]y telling the jury that the victims of the child pornography are 'our daughters and granddaughters, neighbors, friends,' the prosecutor here crossed the line . . . 'demarcating permissible oratorical flourish from impermissible comment.'"). See also United States v. Lopez, 590 F.3d 1238, 1256 (11th Cir. 2009) ("Improper suggestions, insinuations and assertions calculated to mislead or inflame the jury's passions are forbidden in the presentation of closing arguments.").  We expect prosecutors from the Tax Division of the Department of Justice to refrain from this kind of argument in the future. 

Nonetheless, as in McGarity, 669 F.3d at 1246-47, the improper remarks did not so prejudicially affect Mr. George's rights that a different outcome might have been achieved in their absence. First, the district court instructed the jury on at least three separate occasions that the arguments of counsel were not evidence. See United States v. Rodriguez, 765 F.2d 1546, 1560 (11th Cir. 1985) (holding issuance of three curative instructions was sufficient to cure damage arising from prejudicial comments made by prosecutor). Second, there was overwhelming evidence against Mr. George. The improper remarks did not affect Mr. George's substantial rights, even when considered cumulatively. See Ladson, 643 F.3d at 1342 ("There is no cumulative error where the defendant cannot establish that the combined errors affected his substantial rights.") (internal quotation marks omitted). As a result, the prosecution's improper statements do not require reversal.