United States v. McCaskill
202 F. App'x 70 (2006)
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Rule of Law:
A prosecutor's indirect comment on a defendant's failure to testify requires reversal only if the comment was manifestly intended by the prosecutor as such or was of a character that the jury would naturally and reasonably take it to be a comment on the defendant's failure to testify.
Facts:
- In 1997, Eric Hoberg sought financing to build a grain mill and was eventually connected with Sheila Greenspan.
- Greenspan put Hoberg in touch with individuals claiming to represent Nigella Insurance Company, who offered to provide an insurance binder to help Hoberg secure a loan.
- Nigella was a sham company created by Luther McCaskill, an insurance businessman, to perpetrate fraud.
- McCaskill and his co-conspirators instructed Hoberg to wire $35,000 for the insurance binder.
- On September 8, 1998, Hoberg wired the $35,000 as instructed.
- The money was split among McCaskill and his co-conspirators, and Hoberg never received the insurance bond, the financing, or a refund of his deposit.
Procedural Posture:
- Luther McCaskill and three co-conspirators were indicted in the U.S. District Court (trial court) in a 32-count indictment.
- Charges against one co-defendant were dismissed, another entered a plea agreement, and a third was placed in a pretrial diversion program.
- McCaskill, representing himself pro se, proceeded to a jury trial on three remaining counts.
- The jury found McCaskill guilty on all three counts: conspiracy, wire fraud, and possessing a forged security.
- The district court sentenced McCaskill to a total of 188 months of imprisonment.
- McCaskill (appellant) appealed his conviction and sentence to the United States Court of Appeals for the Sixth Circuit against the United States (appellee).
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Issue:
Does a prosecutor’s comment, made in response to a pro se defendant's improper closing argument, suggesting the defendant 'be put under oath,' constitute plain error by improperly commenting on the defendant's failure to testify?
Opinions:
Majority - Stafford, District Judge
No. The prosecutor's comment did not constitute plain error because it was not manifestly intended as a comment on Luther McCaskill's failure to testify, nor would a jury naturally interpret it as such. The court found it abundantly clear that the prosecutor's isolated remark was made in direct response to McCaskill's repeated attempts, during his closing argument, to introduce facts that were not in evidence. Citing precedent, the court noted that manifest intent will not be found if another explanation for the prosecutor's remarks is equally plausible. Here, the most plausible explanation was that the comment was triggered by and reflected on McCaskill’s improper argument, not his decision to remain silent.
Analysis:
This case reinforces the high bar for establishing prosecutorial misconduct based on an indirect reference to a defendant's silence, particularly under the plain error standard of review. The court's focus on an 'equally plausible' alternative explanation for the prosecutor's comment provides significant latitude to the prosecution, especially when a pro se defendant's conduct invites a response. The decision underscores that the context of a remark is critical; a comment that might be improper in isolation can be deemed permissible when it is a direct and provoked response to the defendant's own improper courtroom behavior.
