United States v. Flournoy, 2016 U.S. App. LEXIS 21033

Flournoy was tried by jury and convicted of conspiracy to possess with intent to distribute six kilograms of cocaine and attempting to possess cocaine; sentenced to 204 months and five years supervised release.
On July 30, 2012, Flournoy, Jose Sanabria, and Cesar Sanabria met an undercover agent in Rockford; surveillance showed Flournoy handling a black bag of cash and delivering buy money to the undercover truck; arrests followed.
Jose and Cesar pleaded guilty; Jose testified at Flournoy’s trial but his plea agreement contained language inconsistent with his trial testimony about who moved the cash from the trunk.
Defense counsel emphasized missing government witnesses (e.g., Deputy Boomer) during closing; prosecutor replied that the defense could subpoena witnesses, prompting an objection and a curative jury instruction that defendants need not testify or present evidence.
Flournoy moved for a new trial arguing prosecutorial misconduct (closing argument and vouching) and that the government presented testimony inconsistent with co-defendants’ plea agreements; the district court denied the motion.
On appeal the Seventh Circuit affirmed the conviction but remanded for resentencing because the district court imposed discretionary supervised-release conditions without explaining reasons per § 3583(d) and § 3553(a).

Issue	Flournoy's Argument	Government's Argument	Held
Prosecutor’s comment that defense could call witnesses shifted burden	Comment impermissibly shifted burden to defendant	Prosecutor repeatedly acknowledged government’s burden; comment permitted to respond to defense attack on missing witnesses	Not reversible; argument did not shift burden and district court instruction cured any concern
Prosecutorial vouching in closing	Prosecutor vouched for case quality and facts outside record, warranting new trial	Statements concerned facts presented at trial and were not blatant vouching; no timely objection	No plain error; at most borderline but not egregious enough to warrant reversal
Use of cooperating witness testimony inconsistent with plea agreements	Presenting Jose’s trial testimony (that differed from plea language) violated due process/constituted inconsistent theories	Discrepancy was drafting/template error; evidence otherwise strongly supported verdict; no showing of false testimony or prejudice	No due process violation; discrepancy would only impeach Jose and would not have changed outcome
Imposition of discretionary supervised-release conditions	District court imposed discretionary conditions without articulating § 3583(d)/§ 3553(a) reasons	Government conceded error under controlling Seventh Circuit precedent	Remand for resentencing so court can state reasons for discretionary conditions

United States v. Miller, 276 F.3d 370 (7th Cir.) (prosecutor may note defendant’s power to subpoena so long as government’s burden remains clear)
United States v. King, 150 F.3d 644 (7th Cir.) (response to defendant’s attacks on missing witnesses can justify prosecutor’s comments)
United States v. Alexander, 741 F.3d 866 (7th Cir.) (plain-error standard for unpreserved prosecutorial misconduct claims)
United States v. Wolfe, 701 F.3d 1206 (7th Cir.) (two types of improper vouching defined)
United States v. Alviar, 573 F.3d 526 (7th Cir.) (vouching jurisprudence explaining limits on prosecutor statements)
United States v. Kuzniar, 881 F.2d 466 (7th Cir.) (standard of review for Rule 33 new-trial denial)
United States v. Thompson, 777 F.3d 368 (7th Cir.) (district court must state reasons when imposing discretionary supervised-release conditions)