United States v. Moon, PICS Case No. 14-0239 (E.D. Pa. Feb. 6, 2014) Baylson, J. (9 pages).

U.S. DISTRICT COURT - EASTERN

The Legal Intelligencer

CRIMINAL LAW

Jury Instructions • Unavailability of Witnesses • Improper Prosecutor Comments

United States v. Moon, PICS Case No. 14-0239 (E.D. Pa. Feb. 6, 2014) Baylson, J. (9 pages).

Where the court instructs a jury not to speculate on the participation in the crime of a witness unavailable to both sides of a criminal trial, such instruction does not undermine defendant's defense; and where improper comments by a prosecutor are corrected by the court in jury instructions and no unfair prejudice had occurred, a new trial is unwarranted. Denied.

Defendant Ronald Moon was arrested for a bank robbery committed by an individual in female Muslim clothing, who fled in the bank in a vehicle linked to defendant's address, and which was found being driven by another individual, Naijah Glenn, who had a large amount of cash on her corresponding to the amount stolen from the bank, with defendant as a passenger. Defendant later made a confession to the bank robbery.

At trial, defendant's counsel suggested, via surveillance photos and cross-examination of prosecution witnesses, that another unidentified individual committed the robbery with Ms. Glenn. Ms. Glenn was also subpoenaed by both sides; however, she refused to testify in exercise of her 5th Amendment rights. The trial court instructed the jury not to "speculate" about Ms. Glenn or her involvement in the robbery because her testimony was not available to either side.

Defendant brought the instant motion for new trial, arguing that the trial court's instructions regarding Ms. Glenn precluded a defense of the defendant. However, the court found that defendant was well within his rights to argue another individual committed the crime in question, and found that the trial court had simply instructed the jury not to speculate as to Ms. Glenn, and reminded the jury that the issue was whether the government had proved the defendant guilty beyond a reasonable doubt. The court further noted the holdings in the Second Circuit cases of U.S. v. Daniel and U.S. v. Caccia, where the courts held that "missing witness" instructions were generally the discretion of the trial judge.

Defendant also argued that improper comments made by the prosecutor during closing arguments supported his motion for a new trial. The instant court noted controlling precedent that held a new trial was not required for improper prosecutor comments where there was correction by the court and no unfair prejudice had resulted. The court found that in this case, the trial court had instructed the jury to ignore the improper comments made by the prosecutor.