In United States of America vs. Ballard, No. 17-427 CR, 2018 WL 1357392, the Second Circuit vacated and remanded a case for a new trial after the prosecutor used improper argument in their summation.
Ballard was charged with trafficking minors, coercion and enticement to engage in interstate travel for illegal sexual activity. In the government’s rebuttal, the prosecutors said the defense theory of the trial was a “government frame-up.” This was a serious mischaracterization of the defense’s argument and the court said in front of the jury that they “didn’t hear” the defense counsel say that the police had framed Ballard. Ballard asked for a motion for new trial under Rule 33, but was denied because the district court observed that the prosecutor’s remarks were a response to an allegation by the defense that one victim was encouraged to lie by an investigator.
Ballard also complained because the government insinuated that it had more evidence than what they were allowed to offer in the trial. The defense objected, and the court said:
“Well, I’m not sure if it is [improper] or not. It certainly is the law. There’s an item of evidence that people are permitted to bring into this Court and get on the stand and ask questions and put that information out to the jury, but there are rules to say there’s some evidence you can’t. So, you have to decide the case based on the proof you heard, not on something you didn’t hear or wasn’t presented to you here in the courtroom. If you do that, you’ll be okay.”
This was improper. The Court did not instruct the jury that they should not assume that such evidence exists or that the jury can find reasonable doubt from a lack of evidence regardless of why the evidence was lacking. Further, because this was after summation arguments (so right at the very end), the defense did not have the chance to clarify the burden of proof, and the jury did not get further instruction as to the burden of proof.
The court considered errors together and found them both to be improper. The court further noted that vacating a conviction based on substantially improper remarks when a defendant’s guilt is established by overwhelming evidence. But that was not the case here given that the government’s evidence was the testimony of the alleged victims. There were also several problems in their credibility as there were several times where there were great contradictions. In a close case like this where the government has made improper summation arguments this, vacating the sentence is appropriate.
The Second Circuit vacated the sentence and remanded the case back to the district court for a new trial. No. 17-427-CR, 2018 WL 1357392.
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