United States v. Seneca Barnes, 704 F. App'x 435

Seneca Barnes, a mid-level manager, was convicted by a jury of conspiracy to commit bank fraud for driving recruits to cash counterfeit payroll checks and handling communications within the scheme led by Randolph and Maddox.
Five bottom-level participants testified for the government; the defense rested without calling witnesses.
In closing, defense counsel emphasized the government’s failure to call certain witnesses (e.g., Randolph, Maddox, LeQuisha/Smith) and implied their absence suggested exculpatory testimony.
In rebuttal, the prosecutor replied that the defense had the same subpoena power as the United States; defense moved for a mistrial and requested a cautionary instruction, both denied.
Barnes was sentenced to 37 months based in part on a sentencing loss calculation attributing $89,880.85 in intended loss to her; she objected, arguing the loss should be limited to $28,183.67 (actual loss proven at trial).
Barnes appealed, arguing (1) prosecutorial misconduct for shifting the burden via the subpoena remark, and (2) error in the district court’s intended-loss calculation at sentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Prosecutorial misconduct — prosecutor said defense had same subpoena power	Prosecutor’s remark shifted burden to Barnes to produce witnesses, improperly relieving government of proof	Remark was a permissible response to defense insinuation that missing witnesses would have been exculpatory; did not shift burden	Statement was not improper; defense “opened the door” and jury instructions/burden statements cure any risk; misconduct claim rejected
Sentencing loss amount — use of intended loss ($89,880.85)	Barnes: Guidelines loss must be limited to actual loss proven beyond a reasonable doubt ($28,183.67); jury should find sentence-affecting facts	Court: Booker permits judicial factfinding by preponderance for Guidelines; intended loss may include checks found in her vehicle that she intended to have cashed	District court’s finding of intended loss by preponderance upheld; 37-month sentence affirmed

United States v. Eaton, 784 F.3d 298 (6th Cir.) (two-step test for prosecutorial misconduct)
United States v. Newton, 389 F.3d 631 (6th Cir.) (defense ‘opens the door’ by arguing government omitted potentially exculpatory evidence)
United States v. Clark, 982 F.2d 965 (6th Cir.) (not improper for prosecutor to note defendant’s subpoena power in response)
Zafiro v. United States, 506 U.S. 534 (Sup. Ct.) (presumption that juries follow court instructions)
United States v. Mickens, 453 F.3d 668 (6th Cir.) (application of §2B1.1 and intended-loss analysis)
United States v. Carboni, 204 F.3d 39 (2d Cir.) (intended loss includes amounts defendant sought to cause victims to lose)
United States v. Booker, 543 U.S. 220 (Sup. Ct.) (Guidelines are advisory; judicial factfinding by preponderance permitted)
United States v. Conaster, 514 F.3d 508 (6th Cir.) (Booker did not eliminate judicial factfinding)