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April 24, 2003


The opinion of the court was delivered by: John F. Keenan, United States District Judge.



On July 26, 2002, defendant was charged in a one-count Indictment with possessing a firearm after having been convicted of a felony, and after having had three previous convictions for violent felonies, in violation of 18 U.S.C. § 922 (g)(1) and 924(e). Trial began on January 6, 2003 and concluded on January 9, 2003, when the jury convicted the defendant. Mr. Thomas testified at trial on his own behalf. He now moves, pursuant to Rule 33 of the Federal Rules of Criminal Procedure, to vacate the judgment and for a new trial.


The main defense argument is that the Government, in its summation, created prejudice by shifting the burden of proof to the defense. The statements in the summation about which the complaint is primarily made are at page 243, line 25, to page 244, line 3:

"The defendant has the same power as the government to call witnesses to corroborate his story. Nothing that the defendant though tells you that cannot be corroborated may be believed."
And page 250, line 23, to page 251, line 6:
"But as he [the defendant] mentioned during his direct testimony, there are several people he talked to during that day. He talked to kids in the street. He talked to people who were consoling him. He had relatives there. He has called no one to back up his tale. There is no corroborating evidence. What about the woman who helped him, his wife? He never talked about this. This is the woman who is a home attendant, took off when the cops showed up. He didn't want you to know about that . . ."
As then Chief Judge Oakes wrote in United States v. McDermott, 918 F.2d 319 (2d Cir. 1990) at page 327:
"While it is axiomatic that the Government may not comment on a defendant's failure to testify at trial, we have held that a prosecutor is entitled to comment on defendant's failure to call witnesses to contradict the factual character of the Government's case, as well as on defendant's failure to support his own factual theories with witnesses. See United States v. Bubar, 567 F.2d 192, 199 (2d Cir.), cert. denied, 434 U.S. 872, 98 S.Ct. 217, 54 L.Ed.2d 151 (1977); see also United States v. Gotchis, 803 F.2d 74, 81 (2d Cir. 1986). It is only when the evidence that the defendant has not adduced is in the control of the defendant alone or where the jury would naturally and necessarily interpret the Government's summation as a comment on the defendant's failure to testify that the Government's comments run afoul of the Fifth Amendment. 567 F.2d at 199. Here, the Government's remarks amounted to no more than an allusion to appellants' failure to call witnesses to support their theory . . ."
That is the case here. The Government was not shifting the burden, but merely commenting on the evidence and the fact that the defendant did not call a witness to support his version of the events as he testified to them.

Moreover, the prosecutor at page 249, line 22, prefaced his remarks with the following:

"Now, again, the defendant is not required to put on a case. He is not required to call any witnesses. He is not required to put in any evidence."
Further, in my charge at page 278, lines 11 to 14, the jury was instructed as follows:
"Remember this also, the law does not impose upon a defendant the duty of producing any witnesses or any evidence whatsoever. There is no duty upon the defendant to call witnesses or produce any evidence or testimony of any kind."
Nothing the prosecutor said in the portions of his summation quoted above or in other parts thereof alluded to in this motion or in his rebuttal shifted the burden of proof. The jury was repeatedly told, during voir dire and in my preliminary remarks and before any evidence was offered, that the burden was on the Government to prove guilt beyond a reasonable doubt. During my jury charge at page 276, lines 1 to 3, they were instructed:
"The government has the burden of proving the charges, that is, the guilt of the defendant beyond a reasonable doubt, and that burden never shifts."
The portions of the cross-examination of the defendant referred to in the defense application were improper, but the Court sustained the objections by the defense and directed the prosecutor to desist from such cross-examination which he did.

There is no reason to set aside the conviction ...

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