Assistant U.S. Attorney Who Told Jury That Reasonable Doubt Is the Confidence of “Having a Meal” Without Getting “Sick” Earns the Defendant a New Trial, Holds Ninth Circuit

In United States v. Velazquez, No. 19-50099 (9th Cir. June 22, 2021), a 2-1 panel orders a new trial for a defendant where “the prosecutor trivialized” the reasonable-doubt standard during closing argument, comparing it to “something that you use every single day in your life” such as “having a meal … firmly convinced that the meal you’re going to have is not going to make you sick.”

In a drug-trafficking trial, the prosecutor “began his closing argument … describ[ing] the reasonable doubt standard: ‘Reasonable doubt is something that you make decisions about every single day.’ Defense counsel objected.” The district court did not rule on the objection, though it directed the jury to only follow the jury charge on the law.

The Assistant U.S. Attorney continued on reasonable doubt:

“It is something that you do every single day. So things like getting up, having a meal. You’re firmly convinced that the meal you’re going to have is not going to make you sick. But it is possible that it might not—that it might actually make you sick.

“You got in your car or you travel to the court today. It is possible that you may have gotten in an accident, but you are firmly convinced that—the likelihood that you’ll be able to get to court safely.”

Defense counsel objected again that the closing argument “diminishes the burden of proof.” The district court overruled the objection and did not admonish the jury a second time. The jury returned a guilty verdict.

The panel reverses. The panel majority holds that the government’s comment on reasonable doubt violated the defendant’s Fifth Amendment Due Process rights.

“The prosecutor’s comments here regarding the government’s burden of proof diverged significantly from what we require in a criminal trial. The prosecutor compared the reasonable doubt standard to making decisions like going for a drive or eating a meal—with the confidence that things will not go awry. Such decisions involve a kind of casual judgment that is so ordinary and so mundane that it hardly matches our demand for ‘near certitude’ of guilt before attaching criminal culpability.”

The panel majority holds that the argument tarnishes the gravity of the trial. “The process of adjudicating guilt is a major and meticulous undertaking. People do not, ‘every single day,’ bear the solemn task of examining evidence and determining an accused’s guilt. The comparison—to reflexive, quotidian decisions like ‘getting up,’ ‘having a meal,’ and ‘travel[ing] to . . . court’—is flagrant and seriously distorts the standard.”

The panel majority also holds that the district court’s corrective measures did not remove the taint. “Although the district court initially instructed the jury to follow its instruction on reasonable doubt and ‘not as to what any attorney says the standard of reasonable doubt is,’ the prosecutor then provided numerous improper examples that served to reduce the government’s burden of proof—all without further admonishment.”

Finally, the record was close enough that the error deprived the defendant of a fair trial. “Reasonable doubt was the central theme of his defense. The prosecutor’s comments, however, created an unacceptable risk that an honest, fair-minded juror would succumb to the prosecutor’s personal—rather than constitutional—view of the government’s burden of proof to obtain a conviction and therefore overlook his or her reasonable doubts.”

In dissent, Judge Bade agrees that the closing argument was “potentially misleading” but would hold that the defendant was not prejudiced, especially in the light of “overwhelming” evidence of guilt. “The majority … fails to consider the prosecutor’s comments in context with the jury instructions, the court’s repeated admonitions to the jury to ignore counsels’ arguments interpreting the reasonable doubt standard and to rely only on the court’s instructions, and defense counsel’s closing argument.”

“Here, the prosecutor’s comments comprised about ninety seconds of the hour-and-forty minutes of closing arguments from both attorneys. These arguments followed a two-day trial, during which five witnesses testified, including Velazquez, and forty-two exhibits were admitted into evidence. Thus, the prosecutor’s comments were not prominent in the context of the entire trial and were not likely to have affected the jury’s ability to weigh the evidence fairly.”

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