Facially Inflammatory Rebuttal Argument by Gov't Was Not Improper; Obstruction Guideline Applies to Indirect Threats

U.S. v. Fleming, 2011 WL 6188749 (12/14/11) (Wyo.) (Published) - After defense counsel argued the government witnesses were unreliable drug dealers with long records, the prosecutor argued that s/he wished s/he could bring nuns and priests to testify, but that wasn't possible, the witnesses were going to bring meth to pollute the community with meth's poison and take money back to Denver, so they don't have real jobs." The 10th says that read in isolation this might seem like an attempt to inflame the jury to obtain a verdict to protect the community, but it was actually a proper response to the defense's argument.

And the prosecutor's statement that "it's ironic to read a prosecution witness's felonies when she and the defendant have been friends for 30 years" may or may not have asked the jury to infer guilt by association. But the defendant did not show it affected the verdict under plain error review, given the judge's cautionary instructions and the small portion of the closing taken up by the comment.

Agreeing with several circuits and disagreeing with the 4th Circuit, the 10th holds that attempting to threaten or influence a witness through a third-party intermediary may constitute a substantial step sufficient to justify application of the obstruction-of-justice enhancement. § 3C1.1 applies to indirect threats. In this case, the district court did not clearly err when it found the defendant's statement to a jail visitor: "Tell [a potential government witness] not to be talking to anybody about this stuff" was meant to suppress testimony, not to advise the witness of her right to an attorney during police questioning.