Witness Testimony About Defendant’s Incarceration was not Improper, Where Defense Counsel’S Questions on Cross-Examination Invited the Response

United States v. Zitt, 714 F.3d 511 (7th Cir. 2013). In prosecution for conspiracy to distributed heroin, the court affirmed the district court’s refusal to grant a mistrial. During the government’s case, one of its witnesses on cross-examination testified that he was in prison at the same time as the defendant. The defense moved for a mistrial, but the court denied it and gave an instruction to ignore the answer as irrelevant. The Court of Appeals found that the answer was not improper. Examining another party’s witness entails risk in deciding what to ask and how to craft questions, and the witness here gave an answer that surprised everyone. Specifically, a logical answer to the question of whether the defendant had known the witness had gone to jail was “yes,” because the two were in prison at the same time. The answer was therefore responsive, fair, and proper in light of the line of questioning.

United States v. Keskes, 703 F.3d 1078 (7th Cir. 2013). In prosecution for wire and mail fraud arising out of the defendant’s receipt and sale of stolen merchandise over the Internet, the court affirmed the district court’s denial of the defendant’s motion for a mistrial after the prosecutor, in opening statement, told the fury that FBI agents went to a judge and obtained a search warrant for premises controlled by the defendant. The defendant argued that the comment suggested that there had been a judicial finding of guilty. Consistent with United States v. Hendrix, 509 F.3d 362 (7th Cir. 2007), where the court concluded that a single “statement from a witness that a judge approved a search warrant for [the defendant’s apartment did not inappropriately strengthen the prosecution’s case and was not unfairly prejudicial,” the court found that the passing, lone comment in this case did not deprive the defendant of a fair trial.

United States v. Wolfe, 701 F.3d 1206 (7th Cir. 2012). The defendant was convicted on one count of bank theft and one count of interstate transportation of stolen goods under 18 U.S.C. §§ 2113(b) and 2314 for his role in a copper theft scheme. On appeal, he challenged his conviction based upon the prosecutor’s statements during closing argument, his sentence, and the court’s order of restitution. The prosecutor made the following statement regarding one of its key witnesses, which the defendant characterized as improper vouching: “I think [Ms. Gurgon] was—and I think you would agree with me, hopefully you’ll agree with me, one of the clearest, sharpest witnesses on trial. Obviously she’s a very bright person.” The court found this statement to be, at worst, borderline inappropriate. Although the prosecutor should not have injected his own personal beliefs into the trial, the evidence supported his characterization and this misstep in the context of the entire case did not support a finding that the defendant was denied a fair trial.