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01-2300 U.S. v. Sandoval-Gomez

By: dmc-admin//July 15, 2002//

01-2300 U.S. v. Sandoval-Gomez

By: dmc-admin//July 15, 2002//

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“We will first address the prosecutor’s statement that defense counsel ‘”is a dignified man and he’s a man of certain … classic lawyerly spirit. He doesn’t want to say Special Agent Rickey is a liar. Never called him a liar on the stand, but at the heart of it, he’s asking you to believe that Special Agent Rickey got up on the stand and lied to you.’ This remark responded to Sandoval-Gomez’s claim that he told agent Rickey about his reasonable belief that he reentered the country lawfully and that agent Rickey ignored him.

Sandoval-Gomez argues that this remark tainted the jury’s decision-making process because the prosecutor told the jury that its verdict rested on whether the government’s witnesses were liars, instead of on the elements required for guilt.”

“In United States v. Vargas, we explained that a similar statement made by a prosecutor constituted misconduct if the prosecutor actually told the jury that they had to choose between two alternatives. See 583 F.2d 380, 387 (7th Cir. 1978) (finding misconduct where prosecutor told jury that they had to choose between finding that four federal agents lied on the stand or that the defendant was guilty). Subsequently, in Scott, we clarified Vargas and explained that such remarks do not constitute misconduct when the prosecutor ‘stop[s] short of giving the jury [an] ultimatum …’ 267 F.3d at 741. In Scott, ‘the prosecutor did not link directly the allegations of perjury with a defense acquittal, [and therefore,] we [did] not believe that the prosecutor engaged in any impropriety.’ Id. In other words, the prosecutor did not tell the jury to acquit only if it found that the government’s witness lied. See id. Similarly, in the case at bar, the prosecutor’s comment did not directly link the allegation of perjury with a defense acquittal. The prosecutor in this case did not say to the jury that in order to acquit Sandoval-Gomez, it must believe that agent Rickey lied on the stand. Thus, we conclude that the prosecutor’s remark was not improper.”

Affirmed.

Appeal from the United States District Court for the Western District of Wisconsin, Crabb, J., Kanne, J.

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