UNITED STATES V. WHITE, NO. 12-68-cr (2D CIR. NOV. 26, 2013) (SACK, HALL, AND LIVINGSTON) (SUMMARY ORDER), AVAILABLE HERE
The defendant appealed from his 18 U.S.C. § 1001 conviction and claimed three errors. First, he was deprived of a fair trial when the prosecutor acted as an “unsworn witness” by eliciting testimony about the prosecutor’s decision not to call the defendant as a grand jury witness in a murder investigation because the defendant falsely disavowed a prior statement to law enforcement regarding the murder. Second, the district court delivered an erroneous materiality instruction, which told the jury that materiality depended on whether the false statement “could have influenced” the government’s decision. The defendant argued that the proper instruction was whether the false statement “had the natural tendency to influence” that decision. Third, the prosecutor made improper remarks during closing argument by using “we” and “our” when discussing the false statement’s impact on the government’s decisions and murder prosecution, by arguing that government witnesses could have devised more convincing lies if they had decided to fabricate their version of events for trial, and by telling jurors they would have to conclude that government witnesses lied after swearing to tell the truth in order to credit the defense. The Court denied all three claims, and reviewed the first two for plain error.
First, the Court assumed that elicitation of the testimony was improper, but held that the challenged testimony did not affect the outcome of the trial. The testimony was not sufficiently integral to the materiality of the defendant’s false statement to cause prejudice. Furthermore, the defendant did not demonstrate a reasonable probability that the jury would not have found his false disavowal of his prior statement had the tendency of capability to influence the government’s investigation of the murder.
Second, the Court “generously” assumed that the instruction was erroneous, but held that the error was not plain. According to the Court, the defendant’s false disavowal had the “natural tendency to influence” the government’s investigation of the murder. As a result, the defendant did not demonstrate that the error affected his substantial rights.
Finally, the Court assumed that the closing remarks were improper, but held they did not substantially undermine the certainty of the conviction. Accordingly, the defendant could not satisfy this particular prong of the test used to determine whether inappropriate remarks constituted prejudicial error.