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Court Error – New Trial – Improver Vouching

By: Derek Hawkins//December 5, 2016//

Court Error – New Trial – Improver Vouching

By: Derek Hawkins//December 5, 2016//

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7th Circuit Court of Appeals

Case Name: United States of America v. Juan Briseno

Case No.: 15-2347

Officials: POSNER, MANION, and WILLIAMS, Circuit Judges.

Focus: Court Error – New Trial – Improver Vouching

Juan Briseno was convicted of multiple racketeering crimes relating to his participation in a street gang. On appeal he seeks a new trial, arguing that during closing arguments, the government improperly referenced evidence pertaining to a prior acquittal, impermissibly shifted the burden of proof to him, and vouched for government witnesses in an inappropriate fashion. But Briseno failed to object at trial to any of these statements, and none was so egregious that the trial judge should have intervened. Although earlier in the trial the government highlighted evidence relating to an attempted murder for which Briseno had been acquitted, that evidence was also relevant to several other distinct charges that were submit‐ ted to the jury. And while the government did erroneously shift the burden of proof by suggesting that Briseno could be acquitted only if the jury concluded that the government’s witnesses had testified falsely, that error was made harmless by multiple curative instructions from the judge and by the significant evidence weighing in the government’s favor. Finally, the statements that Briseno argues constitute improper vouching are better viewed as permissible appeals to the jurors’ common sense. In addition, Briseno complains that the jury instruction on the RICO conspiracy charge was internally inconsistent and confusing, since it required the government to prove an agreement as to the commission of “at least two acts of racketeering” but not “two or more specific acts.” We find no error in this instruction, as it mirrors our pattern jury instruction on the topic and comports with our case law. So we affirm Briseno’s conviction.

Affirmed

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.

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