In United States v. Ballard, 17-427-cr, the Second Circuit reversed a sex trafficking conviction by summary order (JAC, RR, Villardo, J. by designation) due to improper argument by the government during rebuttal summation.

The Court rejected the defendant’s arguments that some of the rhetoric in the government’s main summation amounted to error. Defense counsel did not object to these comments, which included calling the defendant a “dead beat,” a “pimp,” and similar to “Genghis Khan or some other Wall Street person.”

However, the defense did object to several arguments made during rebuttal summation, and the government conceded on appeal that these arguments were improper. These included its characterization of the defense theory as a government “frame-up,” and its insinuation that the government had more incriminating evidence than it offered at trial. Although the district court appeared to sustain an objection to the first line of argument, the government continued to press this. There was no curative instruction. One the second issue—the assertion that there was additional incriminating evidence not presented at trial—the district court gave an “equivocal[]” direction to the jury discouraging reliance on this concept. The district court did not, however, tell that the jury that it should not assume that such evidence existed, nor did it remind the jury that the burden of proof rested with the government.

The Court held that this was the “rare” case in which the defendant “demonstrated that prosecution error resulted in a conviction violative of due process.” The Court briefly evaluated the trial evidence—without providing much context—and stated that the victims who testified had “disputed” credibility and “presented occasional irreconcilable differences on material matters.” Therefore, the Court could not “conclude that Ballard’s conviction was certain even absent the prosecution’s admitted misconduct in its rebuttal summation.”

In one sentence, the Court also stated that on remand, the district court should “charge the jury as to the victim age element” of the sex trafficking of minors count in the indictment.

The facts of this case were not presented in the summary order, but one can imagine given the nature of the charges that they were lurid and tragic for the victims. It is also very unfortunate that due to a trial error, the victims will likely need to give stressful and emotionally difficult trial testimony for a second time. At the same time, the government’s summation arguments were improper, especially the suggestion that there is more evidence than the jury saw. How can a defense lawyer defend against innuendo like this? Rebuttal summation is unique to criminal cases. It is highly improvised and delivered on adrenaline. Overstatement can occur. But this was too much invective for the Circuit to allow. Given the Circuit’s acknowledgment that a reversal on these grounds is “rare,” it would have been useful for the development of the law for the Circuit to have written a short published per curiam decision rather than a summary order.