United States v. Lathrop
2011 U.S. App. LEXIS 3961
| 7th Cir. | 2011Background
- Phillip Lathrop owned a Wisconsin bar and hatched an arson-for-insurance scheme with employee David Maki.
- Maki set the fire in August 2003; Lathrop sought insurance proceeds and allegedly manipulated witnesses to mislead investigators.
- Investigation uncovered plan to feign a robbery, remove videotape, and use accelerant identical to tiki-torch fuel.
- Lathrop faced one arson count, four mail-fraud counts, and one criminal-forfeiture count; trial occurred in 2009.
- Defense asserted trial counsel was ineffective and the government made improper closing remarks; the district court denied a new trial.
- Seventh Circuit affirmed conviction, concluding counsel’s performance was constitutionally reasonable and prosecutorial remarks not prejudicial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance for juror handling | Lathrop argues trial counsel failed to secure impartiality assurance from a juror with potential bias. | Van Wagner reasonably strategized to keep the juror on board to avoid untested alternates and disclosure risks. | No deficient performance; strategy reasonable and not prejudicial. |
| Ineffective assistance—failure to investigate witnesses | Counsel neglected to interview Maki and Rohlfing, and failed to arrange pretrial interviews with Martin. | Investigation was reasonable; attempts to interview were futile or strategically untenable. | No prejudice; strategic, reasonable decisions; no ineffective assistance. |
| Prosecutorial misconduct in closing | Prosecutor relied on perjury and asserted motive related to a dying mother to bolster Maki’s testimony. | Remarks were either not perjury or not prejudicial enough to warrant reversal. | No reversible prejudice; remarks not sufficiently prejudicial in the context of the evidence. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. Supreme Court 1984) (establishes the two-prong deficient performance/prejudice test)
- United States v. Best, 426 F.3d 937 (7th Cir. 2005) (excuses ineffective-assistance review on direct appeal when record is fully developed)
- Cage v. McCaughtry, 305 F.3d 625 (7th Cir. 2002) (silence may be reasonable strategy regarding potential juror bias)
- United States v. Klebig, 600 F.3d 700 (7th Cir. 2009) (test for prosecutorial misconduct includes prejudice to defendant)
- United States v. Alviar, 573 F.3d 526 (7th Cir. 2009) (overwhelming evidence can negate prejudice from improper remarks)