noting that "[c]ounsel may be allowed some latitude in illustrating their arguments by reference to notorious or historical events without being automatically found to have committed irreparable prejudice"
How later courts described this case
- noting that "[c]ounsel may be allowed some latitude in illustrating their arguments by reference to notorious or historical events without being automatically found to have committed irreparable prejudice"
- holding that a district court can' cure the effect of an "improper prosecutorial comment!]" with a jury instruction
- unassembled silencer may constitute an illegal firearm only if jury finds beyond reasonable doubt that all of its component parts are readily available and only a brief and a minimal effort is required to assemble the complete design by reason of the nature and location of the parts
- "[c]ounsel may be allowed some latitude in illustrating their arguments by reference to notorious or historical events without ... commit[ting] irreparable prejudice"
Written by the judges who cited it.
The opinion
NORRIS, Circuit Judge,
concurring in part and dissenting in part:
I concur in all aspects of the majority opinion with respect to Endicott’s conviction. I must dissent, however, from the majority’s unsupported assertion that, in a trial for violations of the Gun Control Act, the “latitude” permitted a prosecutor in closing argument encompasses inflammatory references to political assassination and murder. As evidence of Robertson’s guilt was less than overwhelming and as the trial court took only mild corrective action judged in relation to the prosecutor’s grossly excessive rhetoric, I would reverse Robertson’s conviction on the ground of prosecutorial misconduct and remand for a new trial.
The majority properly finds censurable the prosecutor’s repeated references to “celebrities shot by firearms” and his plea that the jury “ask [themjselves ... why it is necessary to trace a gun, what kinds of guns you’re tracing. John Hinckley comes to mind.” Even after the trial court sustained a defense objection to the latter remark, the prosecutor immediately continued: “[TJhere are millions like that.” However, the majority analyzes the misconduct solely in terms of the prosecutor’s disregard for courtroom discipline and the court’s rulings. Neither analysis nor citation supports the majority’s assertion that remarks conjuring up the emotionally supercharged images of the assassinations of President Kennedy, Senator Kennedy and Martin Luther King; the murder of John Lennon; and the attempted assassination of President Reagan were not “so prejudicial as to deny Robertson a fair trial.”
I disagree. Such remarks serve no purpose other than to “inflame the jury to act as the conscience of the community,” United States v. Ledezma-Hernandez, 729 F.2d 310, 314 (5th Cir.1984), see also United States v. Lester, 749 F.2d 1288, 1301 (9th Cir.1984), and “divert the jury from its duty to decide the case on the evidence by injecting issues broader than guilt or innocence” into the trial. United States v. Perez, 491 F.2d 167, 174 (9th Cir.), cert denied, 419 U.S. 858 , 95 S.Ct. 106 , 42 L.Ed.2d 92 (1974).
When a prosecutor indulges in such excessive and overzealous conduct, it is our duty to inquire whether “the behavior, considered in the light of the whole trial ... affected the jury’s ability to judge the evidence fairly.” United States v. McKoy, 771 F.2d 1207, 1213 (1985), citing United States v. Young, 470 U.S. 1 , 105 S.Ct. 1038, 1045 , 84 L.Ed.2d 1 (1985). Applying a harmless error test, the court must consider whether it is more probable than not that the prosecutor’s conduct materially affected the fairness of the trial, id., considering both the prejudice to the defendant and whether or not the prejudice was cured by the trial judge. See United States v. Potter, 616 F.2d 384, 392 (9th Cir.1979); United States v. Mikka, 586 F.2d 152, 155 (9th Cir.1978); United States v. Parker, 549 F.2d 1217, 1222 (9th Cir.) cert. denied, 430 U.S. 971 , 97 S.Ct. 1659 , 52 L.Ed.2d 365 (1977).
Here, evidence of Robertson’s guilt, which largely depended on the credibility of one government witness, was not so compelling that a jury might not have been swayed by the prosecutor’s diversionary tactics. Moreover, where such inflammato *516 ry references are used, neutralization of the prejudice may require the trial judge to do more than sustaining a defense objection or reminding the jury that counsel’s arguments are not evidence. (See United States v. Segna, 555 F.2d 226 (9th Cir.1977) (reversible error where prosecutor misstated law on insanity defense so as to shift burden of proof to defendant even though the law was properly stated in defense argument and in instructions to jury).) Such spectres, once invoked, are not so easily laid to rest.
Our courts should not tolerate a prosecutor’s use of cultural nightmares to enhance the odds of a conviction. I would reverse Robertson’s conviction and remand for a new trial.