United States v. John Smithson

MEMORANDUM

John Smithson appeals his conviction for conspiracy to defraud the United States in violation of 18 U.S.C. § 286 . We have jurisdiction pursuant to 28 U.S.C. § 1291 . We reject his arguments and affirm.

Where defense counsel failed to object to alleged acts of prosecutorial misconduct at trial, we review for plain error. United States v. Cabrera, 201 F.3d 1243, 1246 (9th Cir.2000). Smithson’s objection to the proposed missing witness jury instruction, where one was never given, cannot act as an objection to the missing witness closing argument. See Bird v. Glacier Elec. Coop., Inc., 255 F.3d 1136 , 1148 (9th Cir.2001) (if counsel fails to raise a timely objection during closing arguments or move for a new trial before the verdict is delivered, attacks on allegedly improper comments in closing arguments are reviewed for plain error).

Smithson alternatively argues that the prosecutor’s comment during closing argument on Smithson’s failure to call Smithson’s brother as a corroborating witness constituted prosecutorial misconduct. “A prosecutor’s comment on a defendant’s failure to call a witness ... is ... permissible, so long as the prosecutor does not violate the…