United States v. Lathrop

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1099

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

P HILLIP C. L ATHROP,

Defendant-Appellant.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 08-CR-124—Barbara B. Crabb, Judge.

A RGUED D ECEMBER 7, 2010—D ECIDED M ARCH 2, 2011

Before R IPPLE, K ANNE, and SYKES, Circuit Judges.

K ANNE, Circuit Judge. Phillip Lathrop owned Player’s

Bar and Grill, a sports bar located in Hayward, Wisconsin.

Confronted with dwindling profits and escalating in-

surance premiums, Lathrop paid an employee to torch

the bar for the insurance proceeds. His employee—loyal

only to a point—eventually confessed and told police

of Lathrop’s involvement. Lathrop was ultimately

found guilty of one count of arson, four counts of mail

2 No. 10-1099

fraud, and one count of criminal forfeiture. After the

district court denied Lathrop’s motion for a new trial, he

appealed his conviction, arguing that his trial counsel

rendered ineffective assistance and that the govern-

ment engaged in misconduct when it made improper

remarks during its closing argument. Because trial

counsel was constitutionally competent and the govern-

ment’s various remarks were either proper or not so

prejudicial as to warrant a new trial, we affirm Lathrop’s

conviction.

I. B ACKGROUND

Business was not exactly booming at Player’s Bar and

Grill, a bar Lathrop owned and operated in Hayward,

Wisconsin. Between 2002 and 2003, unruly patrons

began starting fights in the bar, scaring off Player’s more

peaceful clientele. Believing that his Native American

customers were the primary instigators, Lathrop changed

his identification policy: he no longer accepted tribal

identifications for service, instead taking only state iden-

tifications. This change upset a number of his Native

American customers. One of these customers—Joe

Morey—made threats against the bar, going so far as

to state that if Lathrop didn’t make a change, Lathrop

wouldn’t have a bar left to turn him away from.

By mid-2003, Player’s business was still nothing to write

home about. Lathrop had already tried—unsuccess-

fully—to sell the bar. Faced with diminishing profits,

Lathrop decided to have the bar torched for the insurance

money. To that end, Lathrop met with bar employee

No. 10-1099 3

David Maki, who routinely performed odd tasks for

Lathrop in exchange for money and drugs. Lathrop told

Maki of the bar’s woes and offered him $5000 and some

cocaine if he would burn Player’s to the ground. Maki

agreed.

On the night of August 15, 2003, Maki and Lathrop

met at Lathrop’s home. Lathrop’s insurance policy on

the bar with Capitol Indemnity was set to expire soon,

and Lathrop told Maki that the fire had to happen now.

Lathrop directed Maki to break into the bar through the

game room door, remove Tiki torches from the bar’s patio,

and use the torch fuel to set a fire in the attic. Lathrop

informed Maki that a fire in the attic would cause the

roof to collapse, obliterating the bar (and his financial

woes). Maki was also ordered to break into the gambling

machines, to make the arson look like a robbery, and to

remove the videotape from the bar’s security camera

recorder to cover his tracks. As a down payment for

Maki’s performance, Lathrop gave him two eight balls

of cocaine.

In the wee hours of August 16, 2003, Maki broke into

Player’s and set the fire as instructed. By the time emer-

gency services responded, there was little left of the bar.

Lathrop arrived at the scene shortly thereafter and acted

hysterical at the sight of the bar’s remains. He informed

police that he had no insurance on the bar, began

hyperventilating, and was sent to the hospital for evalua-

tion.

Police soon discovered traces of an accelerant in the

rubble and ruled the fire an arson. Analysis showed that

4 No. 10-1099

the accelerant was the same type of fuel used in

Player’s tiki torches. Mike Van Keuren, a state arson

investigator, was assigned to investigate the fire.

About a week after the fire, Lathrop and Maki met to

debrief. Maki told Lathrop that things went as planned

save for one wrinkle: Maki ran out of time and did not

break into the gambling machines. He also told Lathrop

that he still had the videotape from the bar’s security

cameras. Lathrop chastised him for these oversights

and told him to destroy the tape immediately. All in all,

however, Lathrop did not think Maki’s slip-ups were

worthy of serious concern—he told Maki that he faked

a heart attack at the scene and that his theatrics con-

vinced the police. The two shared a laugh about

Lathrop’s act. Shortly thereafter, Lathrop filed a claim

with Capitol Insurance, a claim that was later paid out.

As the arson investigation continued, Lathrop evidently

became concerned about his ability to get away with the

scheme. He decided to try to divert attention away from

himself and Maki. Two weeks after the fire, Lathrop

met with Maki and another bar regular, Tom Crowley.

Lathrop offered $5000 to Crowley if he would tell

police that he heard Morey boast about paying someone

to set fire to Player’s. Crowley declined.

One month after the fire, Investigator Van Keuren

contacted Maki and set up an interview. Shortly

before the interview, Lathrop and Maki again met.

Still attempting to implicate Morey, Lathrop asked Maki

to tell the investigator that Morey had unsuccessfully

attempted to hire Maki to burn down the bar before

the fire. Maki agreed.

No. 10-1099 5

On October 1, 2003—the day of Maki’s interview with

Van Keuren—Lathrop and Maki had yet another sit-down.

This time, another bar regular, Ryan Magnuson, was

present. Magnuson observed the two openly discuss the

arson. Lathrop then asked Magnuson to go with Maki

and back up his lie about Morey. While Magnuson

first agreed, he got cold feet at the interview and said

nothing. Maki, however, stuck to the plan during his

discussion with Van Keuren and claimed Morey tried

to hire him to burn down the bar.

Morey did not take being falsely implicated lying

down. In June 2004, Morey and four of his associates

confronted Maki about his statements to police. Maki

and Morey went on a long walk, during which Morey

told Maki that he was upset about Maki’s statements.

Maki eventually told Morey that he set the fire and ad-

mitted that Lathrop had hired him to do so. Maki also

told Morey that he would eventually turn himself in

to police.

In early August 2007, Maki confessed to police about

his role in the insurance scheme. He told officers that

he had committed the arson and that Lathrop had paid

him to do so. He admitted that his statement to Investiga-

tor Van Keuren about Morey was a lie Lathrop concocted

to divert attention away from himself and Maki. He went

on to state that Lathrop had faked chest pain when he

arrived at the scene of the fire to throw police off.

In August 2008, Lathrop was charged with one count of

arson, four counts of mail fraud, and one count of criminal

forfeiture. Four days before trial, Lathrop’s attorney,

6 No. 10-1099

Chris Van Wagner, appeared for the final pretrial hearing

and moved for a continuance. Van Wagner claimed that

he had only recently received materials from the govern-

ment that gave him notice of the government’s theory

that Lathrop had the bar torched because business was

slow. The court initially denied the motion, but it later

granted a brief continuance when Van Wagner stated

he had not yet done what was ethically necessary to

prepare for trial.

Trial began on February 23, 2009. At voir dire, all of the

jurors were asked whether they were related to anyone

affiliated with the insurance industry. Some prospective

jurors responded affirmatively and were dismissed. On

the following day, one juror, Paul Ritschard, advised the

court that his brother worked for Capitol Indemnity (the

insurer of the bar). The court advised Van Wagner of

this. After briefly discussing the matter with Lathrop,

Van Wagner told the court that he would need to give

the manner “some thought” and asked the court to

bring it up again later.

Over the course of five days, the government presented

evidence regarding the arson and the insurance scheme.

The government showed that the bar’s profits had de-

creased over the course of 2002 and 2003, that Lathrop

had unsuccessfully tried to sell the bar during that

period, that his insurance premium was set to increase

mere days before the fire, and that his policy expired soon

after the bar was burned down. The government also

proffered testimony from investigators that the fire was

arson and from Maki and others regarding Lathrop’s

No. 10-1099 7

involvement in the scheme. The defense provided

evidence that the bar’s business was stable, that Lathrop

had obtained other insurance which lowered his premi-

ums, that Maki was lying, and that Morey was a viable

alternative suspect.

During its closing argument, the government high-

lighted Lathrop’s motive for having the bar torched—

essentially, business was bad and Lathrop’s premiums

were skyrocketing. The government went on to bolster

Maki’s credibility, observing that Maki had made state-

ments to others regarding Lathrop’s acts consistent

with his testimony at trial. The government also noted

that Maki confessed in part to fulfill a promise to his

dying mother. Lathrop objected to this part of the gov-

ernment’s closing, but the objection was overruled.

Prior to sending the jury out for deliberation, the

district court again reminded Van Wagner at sidebar

of juror Ritschard’s possible conflict of interest. Van

Wagner told the court that he had forgotten about

the matter and wanted to keep the juror on. On

February 27, 2009, the jury, with Ritschard as foreman,

convicted Lathrop on all counts. After the verdict, the

court reprimanded Van Wagner for his earlier pretrial

continuance request.

On June 3, 2009, after being appointed new counsel,

Lathrop filed a motion for a new trial, arguing that

Van Wagner’s various errors constituted ineffective

assistance of counsel. The district court denied the

motion after an evidentiary hearing and ultimately sen-

tenced Lathrop to 84 months’ imprisonment. Lathrop

timely appealed his conviction.

8 No. 10-1099

II. A NALYSIS

On appeal, Lathrop again claims that his trial counsel

rendered ineffective assistance based on a litany of trial

errors. He also claims that several of the government’s

remarks during its closing argument were improper. In

sum, Lathrop presents nearly a dozen sources of error,

effectively ignoring our advice that the equivalent of a

laser light show of claims may be so distracting as to

disturb our vision and confound our analysis. Cf. United

States v. Pearson, 340 F.3d 459, 464 (7th Cir. 2003) (the

“kitchen-sink” metaphor); Howard v. Gramley, 225 F.3d

784, 791 (7th Cir. 2000) (more discussion of the kitchen-

sink approach); Gagan v. Am. Cablevision, Inc., 77 F.3d

951, 955 (7th Cir. 1996) (advising appellants to use a

rifle approach to briefing rather than bringing “their

shotgun to Chicago”); United States v. Levy, 741 F.2d

915, 924 (7th Cir. 1984) (again with the dreaded shotgun

tactic). Nevertheless, we forge on, considering each

of Lathrop’s many claims in turn.

A. Ineffective Assistance of Counsel

Lathrop first complains that Van Wagner rendered

ineffective assistance throughout the guilt phase of his

trial. He claims that trial counsel did not obtain

adequate assurances of impartiality from an allegedly

biased juror, neglected to investigate evidence and testi-

mony that would show Lathrop’s innocence, and failed

to call crucial witnesses in his defense.

We typically do not review ineffective assistance of

counsel claims on direct appeal. United States v. Best,

No. 10-1099 9

426 F.3d 937, 944 (7th Cir. 2005). That said, we have

recognized an exception to this rule for cases in which

the defendant’s claim “can be fully evaluated only on

the record below,” without resort to extrinsic evidence.

United States v. Holman, 314 F.3d 837, 839 (7th Cir. 2002).

Lathrop’s case represents just such an exception: he

moved for a new trial on ineffective assistance grounds

and the district court conducted an evidentiary hearing

regarding counsel’s performance. The record thus suffi-

ciently developed, we may proceed to the merits of

Lathrop’s ineffective assistance claims.

To prevail on an ineffective assistance of counsel claim,

Lathrop must show that trial counsel’s performance

was deficient and that the deficient performance preju-

diced his defense. Strickland v. Washington, 466 U.S.

668, 689-92 (1984). Under the procedural posture of this

case, “[w]e review those two questions de novo.” Best, 426

F.3d at 945. We begin with the presumption that

Lathrop’s counsel “rendered adequate assistance and

made all significant decisions in the exercise of reasonable

professional judgment,” Strickland, 466 U.S. at 690, and

we place the onus on Lathrop to defeat this presumption

by showing that counsel’s performance “fell below an

objective standard of reasonableness” based on prevailing

norms of professional conduct, id. at 688. Assuming

Lathrop clears this hurdle, he can establish prejudice

by showing that “there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694.

We note at the outset that our review of an attor-

ney’s tactical decisions is highly deferential. Johnson v.

10 No. 10-1099

Thurmer, 624 F.3d 786, 792 (7th Cir. 2010). “Trial tactics

are a matter of professional judgment, and . . . we will

not play ‘Monday [or Tuesday] morning quarterback’

when reviewing claims that an attorney rendered con-

stitutionally deficient representation in making decisions

on how to best handle a case.” United States v. Malone,

484 F.3d 916, 920 & n.1 (7th Cir. 2007). In other words,

it is not our task to second-guess counsel’s judgment

and replace it with our own. So long as an attorney articu-

lates a strategic reason for a decision that was sound at

the time it was made, the decision generally “cannot

support a claim of ineffective assistance of counsel.” United

States v. Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005).

Lathrop first argues that his counsel’s failure to obtain

an assurance of impartiality from one juror after the juror

disclosed a possible conflict of interest constituted inef-

fective assistance. It is true that an attorney’s failure to

question jurors regarding possible bias can potentially

constitute deficient performance. See United States v.

Monigan, 128 F.3d 609, 612-13 (7th Cir. 1997). But trial

strategy can also justify an attorney’s decision not to

seek an assurance of impartiality from a juror, even after

a juror has made statements implying possible bias. Cage

v. McCaughtry, 305 F.3d 625, 627 (7th Cir. 2002). So long

as counsel’s reasons for not questioning further were

not “so far off the wall that we can refuse the usual defer-

ence that we give tactical decisions by counsel,” his

performance will not qualify as deficient. Id.

At the evidentiary hearing, Van Wagner laid out his

trial strategy regarding the juror at issue. Van Wagner

No. 10-1099 11

testified that he asked Lathrop about Ritschard after

the possible conflict came to light and that, after their

consultation, Van Wagner decided to keep Ritschard on

without further questioning. According to Van Wagner,

both he and Lathrop liked Ritschard because he was

a sports afficionado who might be sympathetic to

Lathrop (a former sports bar owner). Van Wagner

claimed that he did not seek an assurance of impartiality

from Ritschard because he was concerned that further

questioning would reveal his preference for that juror

and thus lead the government to strike Ritschard. He

delayed informing the court because he didn’t want the

government to inquire further. He was also nervous

about replacing Ritschard with one of the alternates,

who were both unknowns and thus potential liabilities.

Taking Van Wagner’s reasons in sum, we believe the

strategy employed—like the strategy in Cage—was satis-

factory, especially under the forgiving Strickland standard.

As such, this ineffective assistance claim fails for want

of deficient performance.

Lathrop claims that the Sixth Circuit’s decision in

Hughes v. United States, 258 F.3d 453 (6th Cir. 2001), com-

pels a finding of ineffective assistance. In Hughes, the

court held that no strategy could support counsel’s deci-

sion to not strike a juror or forego obtaining an assurance

of impartiality once the juror manifested actual bias;

such a decision was per se ineffective assistance. See id.

at 463. We need not decide whether to adopt this rea-

soning, as the case at bar is dissimilar to Hughes in

one critical respect: there was no actual statement of

bias by a juror here, but only a statement suggesting a

12 No. 10-1099

possible conflict of interest. Even when jurors have gone

so far as to make a statement of implied bias and

no clear assurance of impartiality was subsequently

obtained, we have recognized that a strategy of silence

by counsel could be reasonable. See Cage, 305 F.3d at 627.

Clearly then, silence may be a reasonable strategy when

a juror has not even gone so far as to imply bias, but

has instead merely revealed a potential, attenuated

conflict of interest. Van Wagner had such a reasonable

strategy in this case, vitiating a finding of ineffective

assistance.

Lathrop next complains that counsel was deficient for

not investigating three witnesses—David Maki, Jaclyn

Rohlfing, and Richard Martin 1 —before trial. It is well

recognized that counsel must engage in a reasonable

investigation or come to a defensible decision that a

particular investigation is unnecessary. Strickland, 466

U.S. at 691. When counsel determines that investigation

is unnecessary, his decision “must be directly assessed

for reasonableness in all the circumstances, applying

a heavy measure of deference to counsel’s judgments.” Id.

Under this standard, we find Van Wagner’s conduct

involving Maki constitutionally competent. Lathrop

claimed that Van Wagner was deficient for not inter-

viewing Maki regarding his motive for confessing

(Maki allegedly came clean to honor his recently

1

With one exception, the parties refer to Martin as “John

Martin” in their briefs, yet their citations to the record reflect

that his name was actually “Richard R. Martin.”

No. 10-1099 13

deceased mother) and for not attacking Maki about

his motive at trial. But Van Wagner did try to question

Maki through his investigator, and Maki ignored those

efforts. Van Wagner was convinced that further

attempts would be fruitless, and that judgment was

reasonable given Maki’s already-manifested resistance.

Cf. Brown v. Sternes, 304 F.3d 677, 692 (7th Cir. 2002) (“It

is often times a reasonable exercise of professional judg-

ment to limit or terminate further investigation when

counsel determines that a particular investigation would

be fruitless.”).

Van Wagner’s decision to avoid the “dead mother”

motive at trial was also defensible. Van Wagner was

concerned that any attack on Maki regarding his

mother might backfire and garner Maki sympathy

points with the jury. He also believed that Maki’s state-

ments at trial regarding his motive to confess were not

as strong as they were at the grand jury proceedings, so

he was reasonably fearful that pressing the matter

might result in the grand jury testimony being admitted

into evidence as prior consistent statements. Instead,

Van Wagner opted for a strategy of drawing out the

inconsistencies in Maki’s story regarding the arson—a

reasonable tactic given the circumstances of the case.

Lathrop goes on to claim that Van Wagner was

deficient for failing to arrange pretrial interviews with

Jaclyn Rohlfing and Richard Martin. Even if we were

to assume this conduct was deficient—a highly unlikely

leap given that Lathrop did interview these two

witnesses before they testified—this claim would still

14 No. 10-1099

fail for lack of prejudice. When a petitioner alleges

that counsel’s failure to investigate resulted in inef-

fective assistance, the petitioner has the burden of pro-

viding the court with specific information as to what

the investigation would have produced. Hardamon v.

United States, 319 F.3d 943, 951 (7th Cir. 2003). For these

two witnesses, Lathrop has neglected to tell us

what evidence would have been gleaned from addi-

tional investigation, and his generalized claim that addi-

tional testimony would have made a difference is insuf-

ficient to satisfy his burden.

Lathrop’s final ineffective assistance argument is that

counsel was deficient for not calling two witnesses—

Kevin Mell and Jennifer Rohlfing—at trial. We can dis-

pense with this claim quickly, as counsel investigated

these witnesses enough to discover defects about their

proposed testimony that led him to decide not to call

them during his case in chief. See Best, 426 F.3d at 945

(noting that “[i]f counsel has investigated witnesses

and consciously decided not to call them, the decision

is probably strategic” and generally not subject to re-

view). Van Wagner did not call Mell because he dis-

covered that the tax returns Mell would have relied on

were likely inaccurate, were based on hearsay, and could

be used by the government to show that Lathrop

engaged in tax fraud. Van Wagner did not call Jennifer

Rohlfing based on his observations of her during trial

preparation; he was concerned that she would fall apart

during the government’s cross-examination. Counsel’s

decisions regarding Mell and Jennifer Rohlfing were

reasonable, and thus this claim fails.

No. 10-1099 15

B. Prosecutorial Misconduct

Lathrop next complains that the prosecutor engaged

in misconduct at several points during his closing. “In

reviewing a claim of prosecutorial misconduct, we

consider first whether the challenged remark by the

prosecutor was improper, and second, whether it preju-

diced the defendant.” United States v. Klebig, 600 F.3d

700, 718 (7th Cir. 2009).

Lathrop first claims that the government acted improp-

erly when it knowingly relied on perjured testimony

proffered by Maki during its closing. At trial, Maki

testified that his mother was “the most important person

in [his] life at the time” and that his mother “had just

passed away not too long before” he confessed to po-

lice. Lathrop argues that Maki lied when he made

these statements, as evidence discovered after the trial

showed that Maki’s mother died in January 2003, over

four years before he confessed to police.

For the government to have committed misconduct in

the manner alleged, Lathrop must first show that Maki

perjured himself. “One commits perjury if, while under

oath, he or she gives false testimony concerning a

material matter with a willful intent to provide false

testimony, rather than as a result of confusion, mistake, or

faulty memory.” United States v. White, 240 F.3d 656, 660

(7th Cir. 2001). We are perplexed as to how Maki’s first

statement—that his mother was an important part of

his life—could ever qualify as perjury. Lathrop seems to

argue that Maki’s sentiment could be truthful only if

Maki’s mother was alive at the time that Maki claimed

16 No. 10-1099

she was important to him, but we are fairly sure that

relatives can be important to their kin long after they

have departed. Even if we accept Lathrop’s supposition,

we would still find no perjury. Maki’s statement was in

response to a question involving the time spanning

from 2001 to 2004; during most of that period, Maki’s

mother was indeed alive. Either way, Lathrop has not

shown that Maki’s sentiment regarding his mother was

a lie (a difficult—and cold—burden to shoulder).

Maki’s second statement—that his mother passed away

not long before he confessed—also did not qualify as

perjury. First, his statement is subject to a number of

interpretations. Reasonable parties could disagree about

what time span is too long to qualify as “recent,” especially

when a person is discussing the death of a loved one.

Second, his statement was given in response to the gov-

ernment’s efforts to clarify previous defense questioning

regarding a long, muddled period of time. It is therefore

just as likely that Maki’s statement was the product of

confusion; he could have been trying to indicate that

his mother passed away shortly before the August 2003

arson. Lathrop has failed to show that Maki’s statement

was not the product of confusion, much less that it rose

to the level of willful deceit. With no showing of perjury,

Lathrop has not established that the government acted

improperly when it relied on Maki’s statements.

Lathrop next argues that the government’s remark

that Maki confessed to fulfill “a promise to his dying

mother” during its closing was improper, as Maki’s

mother died long before he confessed. We agree with

No. 10-1099 17

Lathrop that the prosecutor’s remark was improper, as

he misconstrued Maki’s statements regarding the timing

of his mother’s death vis-à-vis his confession. But to

warrant reversal, Lathrop must also show that this

single error robbed him of a fair trial. Klebig, 600 F.3d at

720. To determine the effect of improper remarks on

the fairness of the trial, we look to a number of factors,

including the nature and seriousness of the remarks,

whether the remarks were invited by the defense,

whether the remarks could be rebutted by defense

counsel, whether the district court provided a curative

instruction, and the weight of the evidence against the

defendant. United States v. Bell, 624 F.3d 803, 813 (7th

Cir. 2010); Klebig, 600 F.3d at 720-21.

While it is a close case, we find that these factors

weigh against a finding of prejudice. It is true that

the remarks were neither invited by the defense nor

rebuttable. But we do not believe that the prosecutor’s

remark was so seriously improper as to cause Lathrop

prejudice, as Maki’s testimony made clear to the jury

that his mother had died before he confessed to police.

Moreover, the prosecutor backpedaled from his state-

ment regarding the timing of Maki’s confession after

defense counsel objected. He advised the jury that, if

it remembered Maki’s testimony differently, its recol-

lection controlled. In addition, the district court,

while not striking the prosecutor’s statements, did pro-

vide a cautionary instruction to the jury that the prose-

cutor’s remarks were not evidence and that if the

jury’s recollection of Maki’s testimony was contrary to

the prosecutor’s statement, its recollection won out.

18 No. 10-1099

Finally, we note that there was overwhelming evidence

of Lathrop’s guilt: Maki implicated Lathrop, Maki’s

testimony was corroborated by other witnesses, and

multiple witnesses testified that Lathrop discussed his

role in the arson and went so far as to ask for their help

in implicating another party as the arsonist.2 See United

States v. Alviar, 573 F.3d 526, 543 (7th Cir. 2009) (noting

that overwhelming evidence can eliminate “any lingering

doubt that the prosecutor’s remarks unfairly prejudiced

the jury’s deliberations”). Accordingly, we conclude that

the government’s remark did not render the trial unfair.

The remainder of Lathrop’s prosecutorial misconduct

claims do not warrant extended attention. Lathrop did not

object to the government’s discussion of his insurance

motive or to its assertion that Maki made consistent

statements regarding Lathrop’s involvement “right after”

the arson, and thus our review is for plain error. United

States v. Hills, 618 F.3d 619, 635 (7th Cir. 2010). The gov-

2

Lathrop argues that the district court’s statements during the

evidentiary hearing preclude a finding that there was over-

whelming evidence of Lathrop’s guilt. But the district court’s

statements—that this was “not an open and shut case” and that

“there were a lot of questions in [the district court’s] mind after

the trial was over”—were in reference to Lathrop’s ineffective

assistance claim and the reasons given by counsel for not cross-

examining another possible suspect regarding his alibi. The

statements had nothing to do with the weight of the evi-

dence against Lathrop, and the court went on to hold that trial

counsel’s failure to attack the other suspect’s alibi caused

no prejudice to Lathrop’s defense.

No. 10-1099 19

ernment’s remark that Maki discussed Lathrop’s involve-

ment in the arson scheme “right after” the fire was a

fair inference from the facts, as at least one witness

testified that Maki began discussing the events within

one to two months of the fire and another witness

testified that Maki hinted about the circumstances

one week after the fire. The remarks about Lathrop’s

possible insurance motive were also fair inferences from

facts in evidence, even if weakened by evidence put

forth by the defense regarding Lathrop’s second insurance

policy. In sum, neither statement was improper, much

less so improper as to constitute “a particularly egregious

error that resulted in a miscarriage of justice.” United

States v. Myers, 569 F.3d 794, 800 (7th Cir. 2009).

III. C ONCLUSION

For the foregoing reasons, we A FFIRM Lathrop’s con-

viction.

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