Criminal Procedure
Prosecutorial misconduct

It was misconduct for the prosecutor in closing argument to dismiss the defendant's defense as the same as that of every other defendant in prison, but the error was harmless.

"Although the prosecutor did not equate the defendant's argument with other defendants who had been convicted and incarcerated for a similar offense, the underlying intent of the statement was to do as much. The fact that other drug conspiracy defendants have made the same argument in their defense (that they had a buyer-seller relationship, not a conspiratorial agreement) is irrelevant to the defendant's guilt or innocence and thus is an improper argument. '[O]ne accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion . . . or other circumstances not adduced as proof at trial.' Taylor, 436 U.S. at 485 (citing Estelle v. Williams, 425 U.S. 501 (1976)). The prosecutor's classification of Valtierra's anticipated defense as the 'standard argument' for drug defendants sought to persuade the jury of Valtierra's guilt on a third-party propensity-style argument: because other defendants had argued this before Valtierra, Valtierra's defense must not be sincere. We conclude that the categorization of Valtierra's anticipated defense was improper."

Affirmed.

07-1336 and 07-1411 U.S. v. Clark

Appeals from the United States District Court for the Western District of Wisconsin, Crabb, J., Bauer, J.

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