*1 (6th Cir.2003). 414, 419, 423-24 F.3d
Here, however, there is no evidence that
Rodriguez, capacity either her as an private company of a or as an
employee FAA,
agent statutorily was author- a search or
ized to make border was em- delegation authority
powered
conduct such search. government’s argu- also note the
We that, Rodriguez if acting
ment even agent, the rights defendant’s violated he
were not because consented to by signing the airbill
the search and en- package to DHL’s
trusting despite his care
the statement on the airbill that DHL
might open package. The district argument.
court declined to address this holding Rodriguez our
Given was not
acting government agent, as a we also argument. to address this
decline
III. Conclusion above,
For the reasons set forth we
affirm the order district court.
Affirmed. America,
UNITED STATES
Appellee, YAKOBOWICZ,
Samuel Defendant-
Appellant.
Docket No. 04-0201-CR.
United States of Appeals, Court
Second Circuit.
Argued: Jan. 2005.
Decided: Oct. 2005. *2 York, Gutman, York New
Jeremy New Defendant-Appellant. Davis, Attorney, Depart- composition types Victor ence of the two Gregory Division, (Roslynn However, Tax R. ment Justice fuel. clear low sulfur diesel fuel Attorney for the Mauskopf, tax, United States to a federal excise while the York, of New Eileen J. Eastern District high product Twenty-Four sulfur is not. *3 General, O’Connor, Attorney Assistant prepaid Hour the federal excise tax on Lindsay Hechtkopof, E. and Alan Robert pur- some of the low sulfur diesel when Tax Di- Attorneys, Department Justice chased and was entitled to a refund of vision, brief), D.C., Washington, for on the prepaid taxes for low fuel sulfur diesel Appellee. later sold to nontaxable entities. One of Twenty-Four Hour’s customers was the WINTER, SOTOMAYOR, Before: and (“LIRR”), Long Island Railroad a tax-ex- PARKER, Judges. B.D. Circuit empt entity. WINTER, Judge. Circuit Appellant quarterly filed excise tax re appeals Samuel Yakobowicz from his Twenty-Four turns for Hour for four by jury Judge conviction S. Gwin1 quarters in 1996 and 1997 sought and re filing on four counts of false federal excise prepaid funds of taxes on low sulfur diesel 7206(1) § tax returns under 26 and U.S.C. that it sold to the LIRR. The IRS disa attempting impede one count of greed, Twenty-Four Hour commenced administration of revenue laws un- internal suit in the challenge Eastern District 7212(a)(1). charges § der 26 U.S.C. These liability. the IRS’s assessment of tax by arose from excise tax returns Ya- filed Twenty Four Hour Fuel Corp. Oil v. Unit company kobowicz on of his behalf Twen- States, (E.D.N.Y. ed F.Supp.2d ty-Four Corporation. ap- Hour Fuel On 1999). Following an hearing, extensive alia, inter peal, argues, Yakobowicz that district court ordered the IRS to reconsid right compromised his to a fair trial was Twenty-Four er Hour’s claims for refunds. that govern- allowed the Id. at 224. This order was later vacated ment to make summation comments at the agreed when the IRS re-examine Twen testimony. conclusion of each witness’s ty-Four using Hour’s claims a new team of agree We and vacate the conviction. Twenty Four Hour Fuel Oil agents. tax States, Corp. v. United F.Supp.2d BACKGROUND (E.D.N.Y.1999). Appellant Twenty- operated owned and The IRS’s re-examination led to the Hour, Four business sold and deliv- present charges against appellant. ered various types Among of diesel fuel. A five-count superseding indictment Twenty-Four other products, Hour sold charged defendant with four fil- counts of high low sulfur and sulfur diesel fuel. ing false federal tax excise returns viola- fuel, High commonly sulfur diesel used for 7206(1), § tion of 26 U.S.C. and one count heating, dyed may home red and not be corruptly endeavoring to obstruct or used on-road vehicles. Low sulfur die- impede the sel fuel is clear administration of the internal be used on- Apart road vehicles. from revenue the sulfur con- laws violation of 26 U.S.C. 7212(a). dye, § tent and artificial no there is differ- Gwin, Ohio, 1. sitting by designation. The Honorable James S. Judge Stales District for the Northern District theory argue cedure on several occasions to factual government’s reargue theory its of the case. Rhetorical sought refunds improperly appellant posed were as to the defendant’s by falsely claiming questions Twenty-Four Hour clear, regarding low sul- state of mind events recounted only that it had delivered witnesses, in fact and the was asked LIRR when some phur diesel to the the interim summations to “decide for dyed red home heat- deliveries had been yourself’ various critical factual issues. ap- claimed that ing oil. The Any distinction between the content of the delivery false tickets re- pellant submitted interim summations and its dyed heating government’s red home oil cording sales Fuel, customer, final was all invisible. City to account summation but to another *4 actually to LIRR. The for oil delivered example, Twenty-Four For after one appellant that government also claimed driver, Koc, testified, prose- Hour Mr. accountants produced provided his following cutor in interim stated the sum- information and doctored docu- with false mation: his claims for refund. support ments to Twenty Mr. Koc is another driver of trial, judge Four, the district told the you Before that he who told delivered red at the conclusion of the testi- parties that to dye heating oil the railroad and re- witness, mony every party each would dye it corded as clear diesel fuel. make a short statement be allowed to got Now whether the railroad red jury. style this the “interim sum- We oil, dyed oh or clear the fact is he wasn’t judge, ap- who procedure. mation” The delivering what he said he was deliver- procedure have used this rather pears to explained Mr. that Mr. ing and Koc past, explained that regularly “[t]he him explained part Yakobowicz it’s the statements of comments are limited to Long his contract with the Island Rail- testimony that fits in that witness and how diesel, road that he had to deliver so we He fur- the overall scheme of the case.” everything recorded as diesel. That “to make it clear ther stated that he tried delivering. wasn’t what he was He was jury that interim [an summation] delivering something else. testimony and it’s never to be consid- Everyone told to of the drivers was objected on testimony.” Appellant ered as going fuel miseharacterize what was au- grounds that the is not Long Railroad. That mis- Island thorized the Federal Rules of Criminal characterization carried over to the rec- gives Procedure and Twenty car- ords of Four Hour and it’s strong advantage. judge The overruled their ried over to the documents objection. the tax get preparing accountants would inspector returns and whether the IRS mun- The trial that followed involved that, maybe the told him he couldn’t do regarding dane factual issues what kind they get- railroad didn’t care what were to which customers and fuel was delivered it all ting, maybe they thought burned ac- Twenty-Four whether Hour’s records trains, why do we care. The curately reflected actual deliveries. is, doing what he was char-
principal Twenty-Four witnesses were The issue drivers, the tax return? acterizing truck the fuel on Hour’s accountants and you, they weren’t agents. stating In how the As Ms. Bornstein told well as IRS refunds, he paying the claims for the but particular witnesses “fits case,” he said he was gov- delivering was not what the overall scheme pro- delivering to the railroad. ernment used the interim summation suggestions heard office what the did. question also driver We’ve Hour, Trucking people Four Concord is whether the in the Twenty office re- delivering product compa- ported going for other to the accountant what was was telling you, Mr. Koc on. nies. But we have
well, Street, King put my I went to Ozgur Mr. confirmed he made deliver- into dye heating red oil the other trucks. Street, King ies to 197 no than more ten delivering product If he’s to other twenty, might you have If been less. why loading up is he these companies, Twenty look at the documentation that product going other trucks with the accountants, Four Hour gave they to its companies? this other selling gallons were over a million of oil could not
He indicated that he remem- driving? to Citifuel. You Who many ber how times he had been to 197 heard from drivers who delivered hun- out the King Street. He threw numbers gallons dreds of thousands of of oil for that he five or ten and said wasn’t sure. Mr. Yakobowicz. It have been to of, any got What he was sure he never King this 197 and prepared Street their delivery Fuel tickets to Sea filled out particulars. own *5 anybody got any else. He never deliver- Ozgur Mr. could not recall whether ies, delivery tickets to Citifuel that he the tickets were written out for him did not fill out himself. there, they went the others driv- delivery All tickets Mr. ers did. out, Neeman that he filled what testified Colaiani, testimony Agent After the of IRS they were for? used prosecutor following made the state- driver, testified, Ozgur, After Mr. another ments. prosecutor stated: gentleman, Ladies and Twenty driver of We have another of Agent significant Colaiani is in a num- Fuel, you, Four Hour confirms for ladies respects. important respect ber Most gentlemen, he was mischaracteriz- gives you ability are—is it to follow ing delivering Long what he was to the where the fuel went. him Island Railroad. Sam told to write Look at his schedules—and Mr. Scar- required
diesel. Whatever the contract ing job pointing did fine out he that’s what should have been delivered. typing made an error in in this informa- Mr. him to writing Yakobowicz told information, tion or that but look at the something being that wasn’t [sic] deliv- schedules themselves. Look at the doc- manifest, Yes, kept ered there. he he they uments that corollate to and look at records, kept all he all gave of it all of the information that compiled he day. to Mr. at the end of Yakobowicz you, for gentlemen. ladies and Mr. accounted for all Yakobowicz of his every day. exactly fuel He knew what doing—what produc- What he is he’s product He went where. would know you for in these schedules is not the charge, who to much sup- how he was you evidence that rely need to on to posed getting. to be your make guide decision. It is a to
The question you is whether Mr. Yako- lead to the evidence and check bowicz accurately accounted for what he schedules and look at what the evidence was buying selling to his accountant shows. Look at what these of lad- bills produce to ing say the tax returns. The mani- pick up. to Look at what the fest reports people delivery back to the in the bill say of—the tickets Twenty-Four Hour up. provide It doesn’t add The didn’t trucks should deliver. him the records a format that made it up. It add doesn’t easy him figure for to out where the fuel Scaring spent a lot of And—and Mr. yourselves why went. Decide for how much credit talking time about they it easy wouldn’t want make for get Hour should for this Twenty-Four figure the IRS to out where the fuel they get shouldn’t or how much credit they they went if wanted their refund that. were being audited for. remember, Well, Mr. Yakobowicz The documents CitiFuel were used charged not tax evasion this with heating explain home eat fuel that [sic] government doesn’t have to case. The going Long Island Railroad fact, any tax. In prove he owed summary pro- and the schedule that he 1997, Agent testi- quarter third Colaiani duced of those CitiFuel documents illus- incomplete so fied that the records were clearly you trates these docu- much tax Twen- figure he can’t out how phoney ments were documents. These ty-Four Hour owed. punched documents were double deliv- question they isn’t whether or not tickets, ery punched double when deliv- question tax. The is whether or owed being Long eries were made Is- they accurately recorded the infor- Railroad, just punch land like the double tax That’s what mation on their return. you right document that we showed with, charged Yakobowicz is inten- Mr. there, that in the was left files Twen- tionally providing false information on ty-Four Hour. *6 tax returns. his don’t have the records We CitiFuel yourself or not he Decide for whether anymore. punch do have the We double bought all fuel that he reported ticket. quarters. during
tax free each of these response by way The defense of interim yourself whether or not Decide for he largely along summation was the lines of accurately recorded the amount of clear by lack of pointing out the concealment going Long to diesel fuel presented no wit- appellant. The defense Island Railroad or whether or not he Appellant nesses. was convicted on all oil, heating it was clear picked up said appeals five counts. He now on the ac- gave diesel fuel and records to his alia, ground, inter that the interim sum- saying countant it was all clean diesel him procedure mation denied a fair trial. fuel. DISCUSSION yourself Decide for whether or not he provided accurate information to his ac- argues that we government yourself countants. Decide for whether decision should review the district court’s accurately or not he subscribed to those employ to interim summations abuse tax returns. discretion out of to interfere “reluctan[ce] judges’ management of their you
He also tells about this audit that with district Lacara, very busy Whiting He to dockets.” v. was conducted 1999. described (2d Cir.1999) (reviewing you the Citifuel documents that he re- 187 F.3d attorney’s motion to withdraw for during ceived the course of that audit. denial of discretion); United States v. Those Citifuel documents were to be abuse Blackwood, try him 529-30 Cir. analyze figure used for and 1972) (district court’s refusal to allow re- out where the fuel went. The traditional order of events at a reviewed for abuse dis- call of witness statements, cretion). trial'—opening pres- manage- that a trial agree We evidence, summations, jury entation and review for is involved ment issue purposes. instructions—has numerous abuse of discretion. Among juries purposes these is to enable that the used We first note forming opinions to avoid before the close fully argumentative summa- here allowed of evidence and deliberations. This is re- only stated prosecution tions. The in trial repeated flected courts’ instruc- (and witness some- particular what juries keep open tions to mind until witnesses) argued said but also prior times deliberations. The traditional order also by jury. to be drawn the inferences relying upon pre- aids the defense in questions repeatedly Rhetorical were sumption principal of innocence as a de- posed appellant’s as to state mind re- by forcing prosecution fense to set witnesses, recounted garding events theory forth its entire before a defense is to “decide for and the was asked framed. yourself’ various critical issues. goals require Those that a distinc practice criminal cases The standard argument tion between evidence and be only after the clos is allow summations until Opening observed summations. just ing of before the the evidence generally statements are to ex confined jury. judge’s instructions to the This pectations as to what the evidence will anticipation of Fed.R.Crim.P. the clear usually show and large do not contain 29.1, closing argu which states argument. amounts of See United States first, government ment of then that Dinitz, 600, 612, U.S. defense, followed C.J., (Burger, L.Ed.2d 267 con rebuttal. Fed.R.Crim.P. 29.1 This (“An curring) opening statement has a was made ordering of summations effec purpose scope. narrow It is to state tive 1975. It reflected view that the presented, what evidence will be to make justice “fair and effective administration of jurors it easier for the to understand what *7 is best if the defendant knows the served follow, is to and to parts relate actually prosecu the arguments made whole; evidence and it is tion in behalf of conviction before the de argument.”) (empha not occasion for fendant faced with the decision whether is supplied); sis A. Thomas Mauet & War reply reply.” and what Fed. (3d Wolfson, ren D. Trial Evidence 29-43 advisory R.Crim.P. 29.1 committee’s note ed.2005) (explaining that opening state B. to 1975 Enactment. This version of ments should not mention inadmissible or closing argu Rule 29.1 also stated the evidence, unprovable argu should not be “[ajfter ments to be held closing were the mentative, and should not state the attor of Fed.R.Crim.P. 29.1 evidence”. ney’s personal opinions op or mention the Although current version the omits that case); ponent’s see also United States Advisory language, (11th Cir.1984) the Committee Notes Zielie, 1447, 734 F.2d 1455 (trial make clear that the amendment eliminat judge can exclude irrelevant facts language part the of an overall opening from stop argu statements and restyling of the criminal them); rules that was to being ments from in made “stylistic only.” Salovitz, 17, Fed.R.Crim.P. 29.1 ad States v. 701 21 F.2d Cir.1983) visory committee’s notes to 2002 (recognizing Amend that opening state ments. argument). ments are not occasions for proce of evidence one We believe that use of this During presentation in present justified dure matter is not commonly objec- of the most sustained by the authorities cited. The district court particular question argu- is that a tions proce assumed that use of this or similar 611(a) mentative, advisory Fed.R.Evid. prohibited every dures is not in (a) note to committee’s Subdivision point case—a not before us and not decid Rules, any Proposed and summation- ed—and that use in criminal eases did not during pres- remarks counsel like not in generally present raise issues civil improper and entation of evidence are point decidedly cases—a before us and being as a routine matter discussed Even if assump those infra. stricken, Wolfson, supra, at 30. Mauet & correct, tions were use of the However, interim summations some findings should be based on that the case at hand from garden variety differs of permitted lengthy form have been only cases which summations at the complex civil trials. See In re and/or close of evidence are sufficient. These Brooklyn Navy Litigation, Yard Asbestos exist, all, if at length differences of a (2d Cir.1992) (as part issues, complexity or the and handling the consolidated trial of 79 asbes commonly most in a combination of the injury wrongful personal tos-related present The length, two. case involved no jurors death actions “to ensure that complexity, no and no need. amounts of infor could assimilate the vast evidence, presentation The including claims,” necessary mation to assess the statements, opening began Monday on a employed district court an interim summa Friday, afternoon and ended on the next procedure); tion In re New York Asbestos days four and one-half later. The final (S.D.N.Y. 149 F.R.D. Litigation, summations and instructions took 1993) (interim summations “considered place Monday; on was reached verdict adopted appropriate during where Tuesday. key on witnesses were consolidated trial” of tort actions based on accountants, Twenty-Four Hour’s its truck exposure). proce asbestos Use such drivers who delivered fuel and filled out lengthy civil complex dures trials tickets, delivery Agents and two IRS who favorably by upon has been looked com performed Twenty-Four had an audit of Dees, III, e.g., mentators. Tom M. See entirely simple Hour. The issues were not Verge Extinction? A Juries: On certainly complex, but were as is re- Jury Reform, Discussion S.M.U. quoted flected in the interim summations (summarizing L.Rev. 1778-80 largely above. The issues involved what *8 arguments against for and interim summa to certain kind of oil was delivered custom- citing tions and state task forces advocat ers, invoices, prepared particular who and said); Smith, Douglas use of G. Struc accurately whether some invoices reflected Aspects Jury: tural and Functional the therefore, of was, deliveries. There no dem- Comparative Analysis Proposals departure onstrated need for the from Reform, Ala. L.Rev. allowing in practice standard interim sum- (interim lengthy summations in desirable fact, In mations. the district court did not cases). not, complex or There does howev the interim summation view this case or er, appear any authority to exist or advo If procedure exceptional. as we allow use cacy in here, therefore, for the use of interim summations we will cases, in virtually much less the form used it in all criminal have to allow here. cases. generally raises are disfavored this Circuit of interim summations
The use ....”). in civil and criminal very issues different Bifurcation of issues is not uncom- cases. addition, pro- In the interim summation cases, special verdicts mon in civil will, in great cedure the bulk of criminal factu- disposition the of discrete separating cases, systematically strengthen prose- the specifically are au- legal al issues and/or cution’s case. This is obvious even at the by the Federal Rules Civil thorized cases, In criminal superficial most level. (permit- Procedure. See Fed.R.Civ.P. always almost calls more prosecution any separate “of issue or ting bifurcation defense, witnesses than the which not un- claims”); Fed.R.Civ.P. any number commonly calls none. Interim summations 49(a); League Football States prosecution after each enable the witness F.2d League,
National Football argue repeatedly to the merits of its theo- Cir.1988) (reproducing entire 1365-66 ry party’s of the case. Because a witness complicated form in anti- special verdict generally gives testimony favoring that case). in civil Multiple summations trust party, of a has more proponent witness not, therefore, inconsistent with cases are to work with in its interim summation than growing allowance of judicial system’s adversary. does the The effect of interim dispositions of discrete issues separate is, summations most criminal cases civil cases. therefore, strengthen government’s to theory cumulatively repetitively. as well as cases,
Also, procedure does in civil plaintiffs favor or defen- systematically not level, deeper At a somewhat advan- uncontrolled, proce- if dants. Even tage grows. discovery There is limited likely to have random effects dure is cases, defendants in criminal whereas the and defendants. More- plaintiffs between prosecution grand jury subpoenas has at over, of interim summations is easi- control disposal. government generally its in criminal In a civil than cases. er civil has, therefore, a clearer vision of the en- properly what is case, said and control tire than case does defense and can summation can be cali- in an interim when unveil its evidence with interim summa- particular issues of the to discrete brated tions in mind. this informational Given foreclose an undue advan- in order to case disadvantage, may very the defense find it This any party. calibration—limit- tage to risky respond particular interim sum- points summations certain ing interior evidentiary mations emphasizing gaps trial, restricting argu- scope immediately be filled thereafter ment, by pretrial facilitated discov- etc.—is by promising implying or defense parties to see or hear ery that allows the A ultimately presented. is failure to pretrial all ahead of time. A the evidence respond government’s interim sum- ensuing pretrial mation, hand, order al- conference gov- on the other leaves the in place controls to be appropriate growing advantage. lows the ernment with a the first witness is called. largely before Finally, a criminal defendant contrast, By way presumed in criminal prosecu innocent. Unless the bifurcation, guilt beyond no proves cases there is least as tion reasonable *9 indictment, doubt, guilt of an as to to acquittal each count the the defendant is entitled “(or determination, and without to offer evidence in general having verdicts are preferred. lift in strongly finger) United States v. deed his defense.” United Pfor (2d Cir.1987) zheimer, 200, Jackson, 59, 826 F.2d 205 States v. 368 F.3d 66 Cir.2004). Supreme gone (“[JJury interrogatories criminal cases Court has
153
presumption
to
the
of defense was forced to choose either to
so far as
describe
description”
respond
appear
acquiescing
innocence as a “shorthand
to be
in the
right “to remain
government’s argument.
being
the criminal defendant’s
Instead of
secure,
prosecution
until the
presumption
inactive and
allowed to assert the
of inno-
up
produced
burden and
poke
viewing
has taken
its
cence and
holes after
the
”
....
persuasion
whole,
and effected
prosecution’s
case as a
the defense
478, 483 fn.
Taylor Kentucky,
had,
matter,
v.
436 U.S.
a practical
respond
after
1930,
12,
L.Ed.2d 468
56
testimony
the
of several witnesses. More-
(internal quotation marks and citations
over,
jury
again
again
was asked
omitted).
by
prosecution
opinions—“de-
to form
yourself’—on key
cide for
issues before
that use of the interim
We conclude
sure,
the government rested. To be
present
in the
case
summation
judge repeatedly
jury
told the
not to form
unjustified
only
was not
the authorities
opinions,
allowing
such
but
interim sum-
appellant’s
cited above but also violated
mations was so inconsistent with those
right
to a fair trial. For
constitutional
jury
cautions that
quite
confusion was
like-
worse,
system justice
or for
our
better
ly-
anticipates that a criminal defendant
case
prosecution’s
entitled to see the
whole
A constitutional error does not
deciding
on
defense and
always require reversal of a criminal con
judged by jury
strongly
that is
warned to
Chapman
California,
viction.
v.
386 U.S.
keep
open
an
mind until deliberations.
18, 22,
824,
87
tation that, also that the Having said we note of the other tively assessed the context to do gravamen of our concerns has with in order to determine presented summations, pre- at least as argumentative its admission was harmless be- whether in the context of this case. Noth- sented doubt,” automati- a reasonable do not yond say prevent is intended to the use we at cally require reversal. Id. 307-08. jurors lengthy that procedures aid interim Allowing argumentative complex by clarifying cases what and/or case was a structural summations this of a criminal case are the elements reversal. The “entire con requiring by clarifying of a witness’s beginning the trial from to end is duct of pres- at what issues are then stake as the 309-10, affected,” obviously id. at evidentiary portion of the entation of the systematically procedure that proce- The model for such proceeds. case after argumentative allowed summations dures, showing if a of a need for them is any par showing each witness without made, opening found in statements is to be length of the ticularized need based on which, noted, generally are limited to as issues, without complexity trial or to the evi- expectations statements of pro in a of criminal any authorization rule arguments. rather than dence cedure, any attempt and without to limit aspects of the interim argumentative
the
CONCLUSION
summations.
above,
judg-
For the reasons stated
any
problem
particular
The
is not
ment of the district court is vacated.
unduly prejudicial.
interim summation was
repetitive
is that
problem
SOTOMAYOR,
Judge,
Circuit
cumulative summations altered and under-
dissenting.
presump-
mined the defense’s use of the
fully
majority
I
that the
agree
tion of innocence as
defense and had
with
trials
strategy
indeterminable effects on defense
use of interim summaries
simply beyond
power
suspect
tactics.
It is
at best. District courts should
practice
light
signifi-
harmless error
determine
avoid this
analysis
impact
repet-
pressure
procedure
place
of a
that had a
cant
can
on a
right
itive and cumulative effect. It
be that
defendant’s Fifth Amendment
re-
put
main
and to
government’s
case would have been
silent
overwhelming
using
proof
deciding
even
the traditional
its burden of
wheth-
respond.
disagree
structure. All
can
this
er and how to
with
we
discern
however,
however,
majority,
stage,
is that the interim summa-
district
court,
certainly
by permitting
made it seem overwhelm-
interim summaries
tions
case,
testimony in
following witness
this
ing.
*11
155
3101,
(1986);
requiring
error
re-
Third, majority although the asserts majority, apply- It that the well be judge impact that we cannot analysis, traditional harmless “repetitive error in this case because its repeated would conclude that the summa- measurable, and cumulative effect” is not in this case harmed the tion-like error appellate routinely courts consider the cu disagree. parties em- defendant. errors, including mulative effect of the ef summary ployed the interim repeated, improper fect of statements a only twenty-six eleven of the witnesses prosecutor. Chapman, See 386 U.S. at who testified at trial. The 25-26, 824; only United States v. New interim Of made ten summaries. Cir.2004) ton, summaries, (noting those ten the three cited majority insofar assessing suspect, whether a defendant are the most “[i]n jury to reach conclu- invited they MURPHY, began sug- Kevin administrator deliberations sions defendant’s about the inference Lawrence Martin ESTATE gested regarding the events re- mind PAYNE, al., Plaintiffs-Appellants, state et Although some by the witnesses. counted interim comments thus prosecution’s jury to draw conclu- invited the
improperly America, et UNITED STATES testimony, trial court from sions al., Defendants-Appellees. that it was instructed repeatedly any conclusions until the close to form No. 04-6265-CV. Docket Notwithstanding of the evidence. of all *14 Appeals, Court of United States govern- the case the improprieties, these to the detailed conformed Second Circuit. presented ment crime described the indict- theory of the 6, 2005. Argued: Oct. ment, pressured was not so the defense signifi- of obscure respond 19, 2005. Decided: Oct. pointed cance. The defendant has any way in his defens- suggested which of the interim es were altered because
summary government’s procedure. and, although overwhelming amplified by improp-
it have been summaries, unfairly it was not bolstered
er comments. prosecutor’s admoni-
Heeding Supreme Court’s a crimi-
tion that “the Constitution entitles trial, perfect to a fair not a
nal defendant Arsdall,
one,” at Van 475 U.S. 1431, I “find that the record would
developed guilt beyond at trial establishes doubt, [and, concluding that]
a reasonable satisfied,”
the interest fairness has been
Rose, I reject Yakobowicz’s contention that
would automatically
the conviction should be on the error.
overturned based asserted
CONCLUSION allowing par-
Because I believe is a trial
ties to make interim summaries analysis to harmless error that the error in this case was harm-
less, respectfully dissent.