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Prosecutor Comment Does Not Provoke New Trial

A woman convicted of participating in a cockfighting venture with her husband and son is not entitled to a new trial because the prosecutor improperly said during rebuttal that defense counsel knew defendant was guilty; the moral is that lawyers should simply refrain from personal references to opposing counsel, an Abingdon U.S. District Court says.

In her motion, defendant contends she is entitled to a new trial because the court should have allowed her to testify that she thought cockfighting was legal. She argues her lack of knowledge of this illegality “was pivotal in this case.” She also argues that the court erred in not granting her motion for a mistrial based upon the prosecutor’s statement to the jury that defense counsel “knows she’s guilty.” This statement by the prosecutor allegedly violated her due process right to a fair trial.

I find the first asserted ground for a new trial unavailing. Conviction of conspiracy under 18 U.S.C. § does not require the government to prove that defendant knew that her conduct would violate the law, unless the underlying crime included such specific intent. The cockfighting offenses charged in this case do not require such intent, but only that the conduct at issue be performed “knowingly.” Unless Congress has otherwise clearly specified, mens rea requires not that a defendant know his conduct was illegal, but only that he know the facts that make his conduct illegal.

The court properly instructed the jury that it must find that defendant knew the unlawful purpose of the agreement and joined it with the intent to further that purpose. The jury was not instructed that she must have known that the purpose of the conspiracy was illegal. Whether defendant believed that cockfighting was legal or not was irrelevant to the issues in the case and her spontaneous statement to the jury in that regard was properly struck by the court.

Turning to the prosecutor’s statement during closing argument, the tendency of the statement to mislead the jury was likely cured by defense counsel’s immediate objection and the court’s instruction to the jury to disregard the prosecutor’s statement. The prosecutor’s improper comment was isolated, having occurred only once during the rebuttal statement.

I find the evidence of defendant’s guilt was overwhelming in this case. She was deeply involved in the operation of the cockfighting venture and the jury had ample evidence to conclude that she had joined the conspiracy and was liable for her coconspirators’ conduct in furtherance of that conspiracy. The statement at issue, while regretful, was clearly prompted by defense counsel’s mischaracterizations of the applicable standard of guilt during argument. He argued that because defendant had never transported a fighting cock or otherwise actually participated in cockfighting, she was innocent of the charges; but under the court’s instructions, she could in fact be found guilty based solely upon her coconspirators’ conduct.

I find the prosecutor’s statement was not prejudicial and the court’s refusal to declare a mistrial was not error.

U.S. v. Stumbo (Jones) No. 1:14cr14-003, Sept. 11, 2014; USDC at Abingdon, Va.; Randy Ramseyer, AUSA; Ned Pillersdorf for defendant. VLW 014-3-487, 12 pp.


VLW 014-3-487

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