accepting district court's reconstruction of the record under F.R.A.P. 10(e) unless "intentionally falsified" or "plainly unreasonable."
How later courts described this case
- accepting district court's reconstruction of the record under F.R.A.P. 10(e) unless "intentionally falsified" or "plainly unreasonable."
- noting that closing arguments are limited to the facts in evidence
- applying the standard to F.R.A.P. 10(c)
- trial court’s reconstruction of the record under Fed.App. R. 10 must be accepted “unless it was intentionally falsified or plainly unreasonable”
Written by the judges who cited it.
The opinion
WILL, Senior District Judge,
concurring.
While I agree with most of the majority opinion and the result, I do not agree that in the words of the majority opinion the Assistant U.S. Attorney’s suggesting facts to the jury which he knew were false to possibly explain Stilwell’s absence after he had told the jury that Stilwell would testify for the government was “a valid response” to the defense counsel’s closing argument.
As the majority correctly points out, a prosecutor or any counsel may of course reply to an argument by opposing counsel that the absence of some witness counts against the side having control of the witness but not calling him or her. See United States v. Sblendorio, 830 F.2d 1382, 1392 (7th Cir.1987), ce rt. denied, — U.S. -, 108 S.Ct. 1034 , 98 L.Ed.2d 998 (1988). This, however, does not warrant counsel in such a response making false statements of fact or suggesting explanations or facts which counsel knows are false. The prosecutor’s doing so here was clearly improper and not, in the words of the majority opinion, merely the result of “poor judgment.” He knew that his reason for not calling Stilwell was none of the possible reasons he suggested to the jury for Stil-well’s absence. There is no excuse or justification for false statements by counsel to either a judge or a jury. I regret that the majority has not seen fit to say so, but has instead stated that lying in court may be and was here “a valid response” to an opponent’s argument. In my opinion, it is never justifiable and we should say so as emphatically as possible.
Notwithstanding, I do not believe that the response by the prosecutor constituted plain error. Stilwell was not a key witness and whether or not he was present at the closing was not a material fact. It went only to the question of whether or not Keskey saw Stilwell sign the documents before he notarized them. Considering the testimony of other witnesses establishing Keskey’s knowing participation in the scheme to obtain mortgage loans from federally insured financial institutions by filing false statements, I agree with the majority opinion that the government’s suggested false explanations for Stilwell’s not testifying as promised could not have so misled the jury as to result in a “miscarriage of justice.”