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00-3884 U.S. v. Harris

By: dmc-admin//November 12, 2001//

00-3884 U.S. v. Harris

By: dmc-admin//November 12, 2001//

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“The prosecutor’s comment was made in the context of an assessment of Young’s explanation of the tape recorded conversation. In the interest of presenting the complete picture, the prosecution introduced both the tapes and Young’s testimonial explanation as to what was being discussed, and the accuracy of Young’s explanations was subsequently tested on cross-examination. The contested portion of the prosecutor’s closing argument focused only on the accuracy and reasonableness of Young’s explanations. Viewed in this context, we are convinced that the prosecutor’s statements during argument would more logically and naturally be interpreted as mere commentary on the trustworthiness of Young’s explanation of the taped conversation, contrary to the dissent’s view that the statement could only refer to Harris’ decision not to testify. It needs to be pointed out that the dissent, sitting as a reviewing court, must not ‘assume that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations,’ for ‘the government should not be restricted to a sterile recitation of uncontroverted facts,’ and counsel certainly can ‘make arguments reasonably inferred from the evidence presented.’ United States v. Rose, 12 F.3d 1414, 1424 (7th Cir. 1994) (emphasis added). Furthermore, we wish to make clear that Harris was not the only person who could have rebutted Young’s explanation of the taped conversations because had the defendant so desired, he could have presented his own ‘expert’ to challenge Young’s testimony and to possibly offer alternative explanations for the code language and other conversation used on the tapes, and for reasons unexplained in this record he chose not to call such an expert, probably because he was convinced it would be of no avail. Harris has failed to demonstrate that permitting the jury to hear the ‘uncontested evidence’ statements was plainly erroneous.”

Affirmed.

Appeal from the United States District Court for the Central District of Illinois, Mills, J., Coffey, J.

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