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Sixth Circuit: Prosecutor’s Numerous Improper Comments Constitute Flagrant Misconduct Depriving Defendants of a Fair Trial

by Anthony Accurso

The U.S. Court of Appeals for the Sixth Circuit vacated the conviction of two defendants on possession with intent to distribute methamphetamine charges because the prosecutor’s numerous improper comments amounted to flagrant misconduct.

Luis Morales-Montanez and Jessica Acosta pleaded guilty to charges involving marijuana, cocaine, and guns found in their home. They also were charged with possession with intent to distribute approximately 2 pounds of meth located in the closet of an apartment they had sublet to Brian Barnes.

At trial, testimony by officers linked Morales-Montanez and Acosta to the apartment and linked the meth to the apartment. However, the evidence linking them to the meth was circumstantial, and Morales-Montanez and Barnes offered testimony that the meth belonged to Barnes, who had by this point been convicted on separate meth-trafficking charges.

During trial, the prosecutor referred to the detective as a “fine young man” who “testified very well, he understood and remembered everything he did” and referred to another detective by commenting on “the fine work of Detective Evans.” On appeal, the Sixth Circuit found these comments, absent any separate evidence regarding the reliability of the officers’ testimony, improperly vouched for the credibility of their statements.

These vouching statements were determined to be even more prejudicial when compared to the prosecutor’s remarks about Barnes and Morales-Montanez. The prosecutor referred to Barnes as a “huge drug dealer, “a weapons trafficker,” and “a money launderer.” The latter two descriptions were unsupported by facts in evidence. The prosecutor failed to link these comments to Barnes’ credibility by actually mentioning his conviction; they were made as freestanding comments used to bolster his assertion that Barnes lacked “any credibility whatsoever.”

The most prejudicial comments by the prosecution were related to Morales­Montanez’s faith. The prosecutor directly questioned him about his Catholic belief in Jesus Malverde, the patron saint of marijuana traffickers. The prosecutor accused Morales-Montanez of having “prayed to the idol for drug traffickers for protection” and said doing so violated the Ten Commandments.

The Sixth Circuit said such comments about the defendant’s faith were strategically used to undermine Morales-Montanez’s credibility.

The Court found the testimonies of the two witnesses for the defense were key to refuting the Government’s otherwise merely circumstantial evidence, and the prosecutor’s repeated improper comments rose to the level of flagrant misconduct under the Sixth Circuit’s four-factor test under United States v. Carter, 236 F.3d 777 (6th Cir. 2001), which is used to determine whether misconduct was “so exceptionally flagrant that it constitutes plain error, and is grounds for reversal even [though] the defendant did not object to it.” The Court concluded that such improper and prejudicial remarks, together with several others for a total of nine, by the prosecutor resulted in a fundamentally unfair trial for both defendants.

Accordingly, the Court vacated the convictions of Luis Morales-Montanez and Jessica Acosta for possession with intent to distribute methamphetamine and remanded the case for a new trial. See: United States v. Acosta, 924 F.3d 288 (6th Cir. 2019). 

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