Eighth Circuit Rejects Argument of Prosecutor Abuse in Closing Argument (9/8/17)

In United States v. Melton, ___ F.3d ___, 2017 U.S. App. LEXIS 16753 (8th Cir. 2017), here, the Court affirmed the conviction and sentence for for twelve counts of mail fraud (18 USC § 1341) and five counts of failure to pay employment taxes (§ 7202).  The defendant raised a number of arguments on appeal, mostly related to the mail fraud and its background.  I excerpt here only the discussion of the defendant's argument that the prosecutor improperly argued in closing argument that the prosecutor believed the defendant was guilty or that a witness was credible or not credible, rather than leaving those determination to the jury.  E.g., United States v. Warshak, 631 F.3d 266, 301-308 (6th Cir. 2010), reh'g and reh'g en banc denied, 2011 U.S. App. LEXIS 5007 (6th Cir. 2010) (involving a litany of improper prosecutor assertions); United States v. Bess, 593 F.2d 749, 755 (6th Cir. 1979) ("Implicit in an assertion of personal belief that a defendant is guilty, is an implied statement that the prosecutor, by virtue of his experience, knowledge and intellect, has concluded that the jury must convict. The devastating impact of such 'testimony' should be apparent."); United States v. Wolfe, 701 F.3d 1206 (7th Cir. 2012) (noting as a tyope of impermissible vouching: "a prosecutor may not express her personal belief in the truthfulness of a witness, and a prosecutor may not imply that facts not before the jury lend a witness credibility."); and United States v. Woods, 710 F.3d 195, 202 (4th Cir. 2013) ("highly improper for the government to refer to a defense witness as a liar.).

Here is the excerpt from Melton:

B. Government's Closing Argument 

Melton asserts a new trial should be granted because the government's remarks during closing affected his right to a fair trial. Because Melton did not object on those grounds during trial, we review for plain error. See United States v. White, 241 F.3d 1015, 1023 (8th Cir. 2001). The burden is on Melton to demonstrate the district court plainly erred by allowing the government's comments. See id. "We will reverse an improper remark during closing argument without an objection only under 'exceptional circumstances.'" United States v. Branch, 591 F.3d 602, 609 (8th Cir. 2009) (quoting United States v. Eldridge, 984 F.2d 943, 947 (8th Cir. 1993)). Reversal for prosecutorial misconduct requires proof that "'the prosecutor's remarks were improper,'" and "'such remarks prejudiced the defendant's rights in obtaining a fair trial.'" Id. (quoting United States v. Bentley, 561 F.3d 803, 809 (8th Cir. 2009)). 

Melton calls our attention to several statements made during closing. Referring to Melton's testimony, counsel for the government remarked, "His lips are moving, things are going through his brain coming out his mouth and it's just flat out lies. That pretty much typifies Mr. Melton." Counsel repeated he believed Melton was lying, and Melton was selling "magic" on the stand. Counsel also called Melton's testimony "silly" and "made up," and remarked, "there is just arrogance flowing from that man [Melton] right there." Near the end of his closing, counsel concluded: "The evidence is Andrew Melton is lying. . . . It's amazing what that man got up there and testified about and lied to you. . . . That man right there is guilty. Convict him." 

While these comments taken together and out of context arguably may be inappropriate for a federal government prosecutor, we liken their effect to those discussed in United States v. White, where we determined the prosecutor's comments were "questionable," but did "not rise to the level of plain error affecting [the defendant's] substantial rights." White, 241 F.3d at 1023. In White, under plain error review, the defendant challenged the prosecutor's statements that the defendant was "'lying bold face to you,'" and "'tried to lie to you,'" by suggesting he had not used drugs for several decades. Id. at 1022-23. The prosecutor also stated, "'If he can suggest to the government that witnesses are willing to lie, what kind of lies do you think he would tell in order to evade responsibility entirely?'" Id. at 1023. We determined the comments did not warrant reversal because the prosecutor "outlined the evidence and highlighted the reasons he believed [the defendant's] testimony was not credible," and "we [chose] not to employ the discretion conferred by Rule 52(b)" because it was not "a miscarriage of justice." Id. (citation omitted); see also Fed. R. Crim. P. 52(b). We reasoned it was "permissible for a prosecutor to interpret the evidence as indicating that the defendant [was] not telling the truth." Id. "So long as prosecutors do not stray from the evidence and the reasonable inferences that may be drawn from it, they, no less than defense counsel, are free to use colorful and forceful language in their arguments to the jury." United States v. Robinson, 110 F.3d 1320, 1327 (8th Cir.1997); cf. United States v. Holmes, 413 F.3d 770, 775 (8th Cir. 2005) (holding the prosecutor's closing comments implying defense counsel was "conspiring with the defendant to fabricate testimony" were "highly improper because they improperly encourage the jury to focus on the conduct and role of [the defendant's] attorney rather than on the evidence of [the defendant's] guilt"); United States v. Johnson, 968 F.2d 768, 772 (8th Cir. 1992) (granting a new trial where closing remarks improperly ignited "fear and concern engendered by the national drug epidemic").

Here, the government's case hinged on whether the jury believed Melton's defense. Once the payroll tax liability was discovered, Melton told a series of stories in an attempt to keep up appearances. At their core, the challenged prosecution comments attacked Melton's testimony, a fair topic for closing remarks. See United States v. Frokjer, 415 F.3d 865, 874 (8th Cir. 2005) (holding "there is nothing wrong with the prosecutor arguing that the evidence proved that [the defendant] was lying" where the charge involved making false statements). Any error in the government's statements was not a miscarriage of justice. The evidence of guilt was "'overwhelming,'" and therefore "'an improper argument is less likely to affect the jury verdict.'" United States v. Barrera, 628 F.3d 1004, 1008 (8th Cir. 2011) (quoting Johnson, 968 F.2d at 772). We do not exercise our Rule 52(b) discretion to recognize any plain error.

JAT Comments:

1. This is an issue prosecutors often face in closing arguments and must be careful not to assert the prosecutor's personal belief in guilt or credibility of the defendant, but clearly assign leave determination to the jury.  Of course, a jury could infer that a prosecutor believed in the defendant's guilt or in a witness' (including the defendant's) credibility or lack of credibility.  But the prosecutor should not say or imply that.

2. The prosecutor may be and usually will be chastised and the jury given a cautionary jury instruction if the court becomes aware of the problem during closing argument.  However, it is incumbent upon counsel for the defendant to raise the issue by objection.  Where, as in this case and many like it, the defendant's counsel does not object, the trial court will frequently not address the issue either by admonishment to the prosecutor or by cautionary jury instruction.  Then, as in this case, relief for the defendant is by plain error review requiring the defendant to show prejudice which is often difficult.