Two months ago, I posted here about the Seventh Circuit’s sharp rebuke of a prosecutor in United States v. Farinella, in which the defendant was charged with selling mislabeled bottles of salad dressing. The court’s concerns focused, in part, on the prosecutor’s repeated suggestions to the jury that the salad dressing was spoiled, despite the absence of any evidence to that effect. The court, per Judge Posner, rightly took the prosecutor to task for attempting to inflame the jury’s emotions through evocative, but misleading, characterizations of the evidence. We can and should expect prosecutors to act with integrity and restraint in carrying on their critically important public functions, rather than playing the adversarial system for all it’s worth. In my experience, the vast majority of prosecutors appreciate — apologies to Vince Lombardi — that winning is not the only thing. But, when prosecutors do occasionally cross the line, as in Farinella, I am happy to see the courts call them out.
I was reminded of Farinella when reading the court’s decision last week in United States v. Mannava (No. 07-3748), in which the court, again per Judge Posner, overturned the defendant’s child enticement conviction based, again, on the prosecutor’s repeated use of misleading and inflammatory language in front of the jury.
This was yet another of those cases in which the defendant attempted via the Internet to arrange a sexual liaison with a teenager who turned out to be a police officer in disguise. The defendant was charged under 18 U.S.C. § 2422(b), which makes it a crime to entice (or attempt to entice) a minor to engage in “any sexual activity for which any person can be charged with a criminal offense.” More specifically, the two underlying “criminal offenses” that Mannava was accused of attempting to accomplish were (1) a violation of Indiana’s vicarious sexual gratification statute and (2) a violation of Indiana’s child solicitation law. At trial, Mannava defended himself by asserting that he knew the police officer was really an adult posing as a teenager, but the jury convicted him anyway.
The Seventh Circuit reversed, based on “the prosecutor’s incessant harping at the trial on the theme that Mannava had been intending to ‘rape’ a 13-year-old.” Although the term “statutory rape” is colloquially used to describe illegal sex with a minor, the legal term for this under Indiana law is not “rape,” but “child molestation.” Judge Posner concluded that the term “rape” had a different (and, in this case, misleading) connotation:
[S]aying that someone intends to rape a person implies that he intends to use force, and there is no evidence of that in this case. . . . By repeatedly accusing Mannava of intending rape, the prosecutor was undoubtedly trying to inflame the jury. The case was sufficiently close to make the trial judge’s permitting such improper advocacy a reversible error.
I am pleased to see now in two recent cases that Judge Posner has subjected prosecutorial language to careful scrutiny. I hope this will serve to reinforce the high standards for professional integrity that federal prosecutors set for themselves.
Besides raising a yellow flag whenever the “R” word is used at trial, Mannava also had a couple of other interesting things to say about § 2422(b) prosecutions. First, the court indicated that, when the prosecution identifies more than one predicate offense (here, the predicates were vicarious sexual gratification and child solicitation), a single, general verdict is improper: “it was an error to allow the jury to convict without a unanimous determination that the defendant had violated one or both of the Indiana statutes.” Thus, for instance, it would have been improper for the jury to convict if half of Mannava’s jurors thought he was guilty of attempting vicarious sexual gratification, but not child solicitation, while the other half reached the opposite conclusion.
Second, the court clarified — notwithstanding the literal terms of the statute — that conviction requires more than that the defendant could be “charged with” a predicate offense. Because a person may be charged on mere probable cause, a literal interpretation of the statute would undermine the normal standard of proof in a criminal prosecution. The court concluded that this would be an absurd reading of the statute. Thus, trial judges should take care to instruct juries that “although the statute uses the term ‘can be charged with a criminal offense,’ the meaning is . . . ‘committed a criminal offense.'”
In addition to Mannava, the Seventh Circuit’s other criminal opinions last week were:
United States v. Sanner (No. 07-3738) (affirming defendants’ sentences in two consolidated cases; disputes regarding guidelines calculations did not have to be decided because same end result could have been reached regardless of guidelines calculation; see Jon Deitrich’s helpful post on the case here).
United States v. Berry (No. 07-3243) (holding that trial judge was not required to reject defendant’s request to represent himself at trial, distinguishing Supreme Court’s recent decision in Indiana v. Edwards, 128 S. Ct. 2379 (2008)).
United States v. Loera (No. 08-2324) (affirming conviction and sentence in drug-trafficking case).
United States v. Strahan (No. 07-1494) (affirming conviction and sentence in drug-trafficking case).