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Friday, December 02, 2016

Ind. Decisions - 7th Circuit decides one Indiana criminal case today

In USA v. Juan Briseno (ND Ind., Simon). a 17-page opinion, Judge Williams writes:

Juan Briseno was convicted of multiple racketeering crimes relating to his participation in a street gang. On appeal he seeks a new trial, arguing that dur ing closing arguments, the government improperly referenced evidence pertaining to a prior acquittal, impermissibly shifted the burden of proof to him, and vouched for gov ernment witnesses in an inappropriate fashion.  

But Briseno failed to object at trial to any of these state‐ ments, and none was so egregious that the trial judge should have intervened. Although earlier in the trial the govern ment highlighted evidence relating to an attempted murder for which Briseno had been acquitted, that evidence was also relevant to several other distinct charges that were submit ted to the jury. And while the government did erroneously shift the burden of proof by suggesting that Briseno could be acquitted only if the jury concluded that the government’s witnesses had testified falsely, that error was made harmless by multiple curative instructions from the judge and by the significant evidence weighing in the government’s favor. Fi nally, the statements that Briseno argues constitute improper vouching are better viewed as permissible appeals to the ju rors’ common sense.

In addition, Briseno complains that the jury instruction on the RICO conspiracy charge was internally inconsistent and confusing, since it required the government to prove an agreement as to the commission of “at least two acts of rack eteering” but not “two or more specific acts.” We find no er ror in this instruction, as it mirrors our pattern jury instruc tion on the topic and comports with our case law. So we af‐ firm Briseno’s conviction. * * *

In addition, Briseno has failed to demonstrate cumulative error, since he has failed to identify any error that individu ally or in combination with others deprived him of a fair tri al. See United States v. Powell, 652 F.3d 702, 706 (7th Cir. 2011) (Cumulative error requires proof “(1) that multiple errors occurred at trial; and (2) those errors, in the context of the entire trial, were so severe as to have rendered his trial fun‐ damentally unfair.”); Alvarez v. Boyd, 225 F.3d 820, 825 (7th Cir. 2000) (“[C]ourts must be careful not to magnify the sig nificance of errors which had little importance in the trial setting.”). So Briseno has failed to show that he is entitled to a new trial.

Posted by Marcia Oddi on December 2, 2016 03:47 PM
Posted to Ind. (7th Cir.) Decisions