2020 Investigative Summary 15

INVESTIGATION OF ALLEGED IMPROPER COMMENTS DURING CLOSING ARGUMENTS

A district court granted a defendant’s post-trial motion for a mistrial due to improper closing and rebuttal arguments made by the government.  The court concluded that the Assistant U.S. Attorney (AUSA) committed misconduct by mischaracterizing evidence; arguing that facts not in the record proved the defendant’s guilt; and inappropriately characterizing the jurors as future victims of the defendant.

OPR conducted an investigation and concluded that the former AUSA who presented the government’s closing and rebuttal arguments engaged in professional misconduct by recklessly disregarding his obligation to base summation arguments only on evidence that was in the record when he referred to recorded telephone calls that had not been introduced into evidence.  In addition, OPR concluded that the former AUSA engaged in intentional professional misconduct when, during closing arguments, the attorney referenced other facts not in the record, including the amount of time the AUSA and an agent had spent listening to the recorded telephone calls and the fact that a witness had a pending case in which he faced significant imprisonment.  Finally, OPR concluded that the AUSA engaged in professional misconduct during rebuttal argument in reckless disregard of the attorney’s obligation to refrain from improper argument when he characterized jurors as victims.  OPR referred its findings to the Professional Misconduct Review Unit.