00-3073 U.S. v. Alanis

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“[T]he prosecutor’s comments were directed towards reinforcing that the government’s case was undisputed in material respects. … While the prosecutor’s comments would have been improper if Alanis was the only person who could have contradicted, denied, rebutted, or disputed the evidence, see Aldaco, 201 F.3d at 987, such was not the case here. The defense could have produced evidence to explain why the phone calls ceased without Alanis having to testify; for example, phone company records showing that his phone was disconnected or a friend’s testimony that Alanis, Selke, and Moore had a falling- out. Similarly, with the trips to Texas the defense could have presented proof that Alanis was attending a conference for work or visiting relatives with his family. As for the bill of lading, a witness from the steel company named on the bill could have testified that the bill was genuine… We do not believe that the prosecutor’s comments were plainly erroneous and find that they did not improperly burden Alanis’s Fifth Amendment privilege not to testify.”

Affirmed.

Appeal from the United States District Court for the Northern District of Indiana, Miller, J., Kanne, J.