Grant of New Trial Based on Prosecutor’s Comments Reversed

United States v. Poole, Nos. 12-20485 & 12-20486 (5th Cir. Nov. 11, 2013) (Smith, Dennis, Higginson)

A jury convicted Poole of being a felon in possession of a firearm, but the district court vacated the jury verdict and granted a new trial based on certain comments and cross examination by the prosecutor.  The panel reversed and remanded so that the jury verdict could be reinstated.

Poole first asked for a mistrial when deputy marshal testified on direct examination that one of his duties is “to locate and apprehend local and federal fugitives.”  Defense counsel objected, and the court instructed the jury that Poole was not a fugitive.  The panel found that this line of questioning, which allowed the marshal to explain his duties and give context for being at the scene, is permissible and was not erroneous.

Poole also asked for a mistrial because, during closing arguments, the prosecutor stated that it was not Poole’s “first time in this situation”; asked the jury if it was “going to believe a liar,” referring to Poole; and referred to Poole’s gun as an “assault rifle.”  These arguments eventually convinced the court to grant the mistrial.

However, the panel found that none of these comments in the context of the trial indicated that the verdict was compromised.  The jury was already aware of Poole’s convictions, and the prosecutor referred to them in order to rebut Poole’s defense that he made up the story about owning the rifle, not to demonstrate criminal propensity.  Further, “[t]he government was well within its rights to suggest to the jury that Poole was a liar” since Poole himself testified that he lied.  The panel also rejected Poole’s argument that calling his gun an “assault rifle” justified the court’s grant of a new trial, noting that the gun was referred to as an “assault rifle” throughout the trial but Poole never objected to it.

Since the panel found that none of the challenged comments were improper, the court did not have the discretion to order a new trial.  The panel also rejected the argument that a new trial was necessary because of the prosecutor’s contemptuous conduct.  “[A] new trial is not a mechanism for punishing contempt, by a prosecutor or otherwise, but a way to avoid injustice generally and to avoid a jury verdict for which one has compromised confidence specifically.”