In two summary orders issued on the same day by the same panel (Cabranes, Bianco, and Merriam), the Second Circuit considered several different claims of prosecutorial misconduct. Ultimately, neither defendant prevailed, although for different reasons.
During the main summation and rebuttal of United States v. Saunders, No. 22-569 (2d Cir. May 3, 2023) (summary order), an 18 U.S.C. 922(g)(1) felon-in-possession trial, prosecutors described the facts of the case in vivid detail that emphasized the dangers posed to the public and bystanders. Comments included: “Samuel Saunders . . . sprayed bullets into the middle of a city street”; “he barely missed other innocent bystanders”; “That’s why we’re here, because Samuel Saunders sprayed bullets into a public street and almost killed someone”; “The defendant acted with a complete disregard for human life. He could have killed multiple people that night. There were kids in the street. You saw them running for their lives. They were feet from where he shot.” Slip Op. at 3-4.
The Court held that these comments “were not improper under the circumstances of this case.” Slip Op. at 4. First, they accurately summarized the evidence. Second, the statements were not inflammatory even though Saunders was not charged with assault or attempted murder because, in the Court’s view, these facts were “inextricably intertwined” with the government proving Saunders’s knowing possession of ammunition. Moreover, the government was allowed to “call attention to the unsavory nature and the social consequences of the crime.” Slip Op. at 5 (quoting United States v. Ramos, 268 F.2d 878, 880 (2d Cir. 1959)). Holding that the comments were, therefore, proper, the Second Circuit affirmed the conviction.
In United States v. Ballard, No. 21-1494 (2d Cir. May 3, 2023) (summary order), the Court again affirmed the conviction in the face of claims of misconduct during closing argument. (And other defense claims.) Although it held that the comments at issue were improper, in the Circuit’s view they were not “so severe as to warrant a new trial.” Slip Op. at 8.
At Ballard’s trial, the government had introduced a “limited” Cellebrite analysis of the sex trafficking victim’s phone that included texts, contacts, and call logs, but did not include “all of the deleted data from a phone.” Slip Op. at 6. During rebuttal, the prosecutor argued that the absence of photographs from her phone confirmed that no photos were stored on it, to counter the defense claim that the victim, not Ballard, had placed prostitution advertisements. The Court agreed with the defense that this argument “was improper given the lack of any evidentiary basis for it.” Slip Op. 7.
However, “Ballard has failed to demonstrate that it warrants a new trial.” Id. The comments were isolated. Although no curative instructions were given, the district court’s general instructions at the beginning and end of trial helped mitigate any danger. As to “the certainty of conviction absent the misconduct,” the Court noted: there was evidence that the victim had participated in placing the advertisements, thus “it is difficult to discern how the prosecutor’s improper argument regarding the contents of her phone could have materially impacted the outcome of the trial”; and three witnesses testified as to Ballard’s incriminating statements. Accordingly, the Court affirmed, concluding that the improper comments did not infect the trial such that Ballard was denied due process. Slip Op. at 9-10.