305 371-8101

Prosecutor Misconduct was Not Sufficient to Reverse Tax Conviction

U.S. v. Guinn,  2012 U.S. App. LEXIS 5103 (11th Cir. 2012)

        James J. Guinn appealed his convictions for failing to file tax returns for the years 2003 through 2006, in violation of 26 U.S.C. 7203. He presented one ground for the reversal of his convictions and a new trial,  whether he was deprived of a fair trial because the prosecutor made improper and prejudicial comments during his opening statement and closing argument that appealed to the jurors' pecuniary interests.

        The court reviewed the allegations of prosecutorial misconduct de novo because it is a mixed question of law and fact.  United States v. Eckhardt, 466 F.3d 938, 947 (11th Cir. 2006).

        A prosecutor's comments in opening statement and closing argument are to be viewed  in the context of the trial as a whole. See United States v. Bailey, 123 F.3d 1381, 1400 (11th Cir. 1997).

        A defendant demonstrates prosecutorial misconduct by showing that (1) the prosecutor's  comments were improper, and (2) the comments prejudicially affected substantial rights. Eckhardt, 466 F.3d at 947. A prosecutor may not, in his opening statement or closing argument, invoke the individual pecuniary interests of the jury as taxpayers. United States v. Smyth, 556 F.2d 1179, 1185 (5th Cir. 1977). In determining whether a
prosecutor's conduct prejudicially affected the defendant's substantial rights by changing the trial's outcome, the Court considered: (1) whether the challenged comments had a tendency to mislead the jury or prejudice the defendant,   (2) whether the comments were isolated or extensive,   (3) whether the comments were deliberately or accidentally placed before the jury, and   (4) the strength of the proof establishing the guilt of the defendant. United States v. Lopez, 590 F.3d 1238, 1256 (11th Cir. 2009).

        The Court found that the prosecutor made improper comments before the jury in his opening statement and closing argument, comments that appealed to the jurors' pecuniary interests as taxpayers.  However, Guinn has not shown that the result of his trial would have been different  but for these improper  comments. The proof of Guinn's guilt was overwhelming and the improper comments were isolated to a small portion of what the prosecutor had to say.

        The judgment of the court was affirmed.

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