In United States v. Nastri, 15-489, the Circuit held that the District Court did not err either by declining to dismiss a juror or by applying USSG 4B1.3’s criminal livelihood enhancement, and that the prosecutor’s remarks in summation were not improper.
The juror in question learned from a third party that another juror had been dismissed after seeing the defendant in shackles. The District Court questioned the juror and the juror told the Court that the knowledge she obtained from the third person would not affect her ability to be impartial. On these facts, absent a specific showing of harm, the defendant could not show that his right to a fair trial was prejudiced.
On summation, the prosecutor called certain defense arguments “red herrings” and “distractions.” The defense did not object at the time, so the Circuit reviewed these comments for plain error and, after comparing the comments to …