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May 23, 1986


The opinion of the court was delivered by: DIAMOND


 The respondent, Adam O. Renfroe, Jr., was lead counsel for one Curtis Strong who had been charged in this District in a fourteen-count indictment with distributing, and possessing with the intent to distribute, cocaine, in violation of 21 U.S.C. § 841(a)(1). Mr. Strong's trial commenced on September 3, 1985, and a guilty verdict was returned by the jury on September 20, 1985. Immediately following the verdict, the court held the respondent in contempt and sentenced him to thirty days imprisonment for arguments he had made in his summation which were in violation of specific rulings and orders made by the court the previous day and during respondent's summation.

 Respondent's oral motion for reconsideration was denied by the court, but execution of the sentence of imprisonment was stayed and respondent was granted two weeks within which to engage counsel to file and brief appropriate motions to reconsider.

 Subsequently, counsel entered an appearance for the respondent and filed petitions "for an arrest of judgment, for a new trial and for reconsideration", "to modify and reconsider sentence", and "to add an amendment to his petition for arrest of judgment, for a new trial and for reconsideration". Briefs were filed and oral argument held. At the conclusion of oral argument, the court indicated that it would deny the petitions, but that it would not enter a final order until it could file a written opinion.

 I. Background

 The government's case against the defendant Curtis Strong consisted essentially of the testimony of a number of major league baseball players to whom Mr. Strong allegedly had sold cocaine. Each of these witnesses testified under a grant of immunity conferred by the court on applications filed by the government pursuant to 18 U.S.C.A. § 6001 et seq.

 During his opening argument, at several side bar conferences, in statements to the news media, and throughout his cross-examination of these witnesses, the respondent Renfroe expressed criticism of the immunity policy of the government which he characterized variously as "scapegoating" the defendant Strong while permitting the witnesses to go unpunished; or as prosecuting the "little guy" while letting the "big guy" go; or as condoning the use of drugs by the immunized ballplayers. As a result, it became apparent to the court that in his summation to the jury the respondent would argue in effect that the jury should express its disapproval of the immunity policy of the government by acquitting the defendant Strong. It was equally apparent that counsel for the government would respond with an argument justifying the immunity grants and a call for endorsement of its policy. It was clear, therefore, that unless the court intervened, the jury's deliberations would be diverted from consideration of the issues properly before it to matters quite irrelevant, and that it would be invited to render a verdict on wholly inappropriate grounds.

 Of course, it was the duty of the court to prevent this subversion of the judicial process. In United States v. Billy G. Young, 470 U.S. 1, 84 L. Ed. 2d 1, 105 S. Ct. 1038 (1985), the Court addressed the question of how trial courts should deal with improper argument of defense counsel and the so-called "invited response" of counsel for the government. The Court stated at page 8:


It is clear that counsel on both sides of the table share a duty to confine arguments to the jury within proper bounds. Just as the conduct of prosecutors is circumscribed, "the interests of society in the preservation of courtroom control by the judges are no more to be frustrated through unchecked improprieties by defenders." Sacher v. United States, 343 U.S. 1, 8, 96 L. Ed. 717, 72 S. Ct. 451 (1952).

 470 U.S. at 13, it continued:


"Invited responses" can be effectively discouraged by prompt action from the bench in the form of corrective instructions to the jury, and when necessary, an admonition to the errant advocate.


Plainly, the better remedy in this case, at least with the accurate vision of hindsight, would have been for the District Judge to deal with the improper argument of the defense counsel promptly and thus blunt the need of the prosecutor to respond.

 The Court cited with approval the ABA Standards for Criminal Justice 4-7.8 (2d.ed 1980), which provide, inter alia :


"(d) A lawyer should refrain from argument which would divert the jury from its duty to decide the case on the evidence by injecting issues broader than the guilt or innocence of the accused under the controlling law or by making predictions of the consequences of the jury's verdict.


"(e) It is the responsibility of the court to ensure that final argument to the jury is kept within proper, accepted bounds."

 Young, 84 L. Ed. 2d at 9 n.7.

 In view of the foregoing, on Wednesday afternoon, September 18, 1985, after both sides had rested and the court had ruled on their points for charge, the court raised two additional matters relative to closing arguments.

 First, because during cross-examination counsel for the defendant had suggested that the witnesses against the defendant were trying to put him in jail, the court ruled that counsel was prohibited from discussing possible punishment and from making any reference to jail. Mr. Renfroe indicated that this was "fine". (V. 12, p. 174). *fn1" The court then opened for discussion the matter of counsel's argument concerning the grants of immunity in the case and stated:


I think, and counsel can disabuse my mind if I'm wrong, I believe that it is improper to suggest to the jury that they should express in their verdict their attitude about the propriety or wisdom of the Government's policy in granting immunity to some witnesses and choosing to prosecute others. I don't believe that's the jury's function.


If you have a desire to make that kind of an argument to the jury, now is the time to determine whether that is proper argument, rather than for you to make that argument and then for the court to attempt to neutralize it by instructing the jury that it is improper. . . .

 (V. 12, p. 175).

 An extended discussion then ensued between counsel and the court during which the court indicated a number of times that it was proper for counsel to argue the effect of the grants of immunity on the credibility of the witnesses, but repeatedly emphasized that it would be improper to implant in the mind of the jury the thought that somehow its verdict should reflect its approval or disapproval of the government's immunity policy. (V. 12, pp. 176-187).

 The court noted the clear distinction between arguing immunity as it affected credibility, which was proper, and arguing to the jury that its verdict should somehow reflect its approval or disapproval of the policy of granting immunity, which the court stated was improper. (V. 12, pp. 177-178).

 Indeed, the record reveals that counsel for both sides had intended to engage in the very argument which the court believed to be inappropriate, (see, e.g., V. 12, pp. 176, 181, 182, 183). So, in an attempt to remove any doubt as to its position on the matter, the court read the instruction which it intended to give to the jury:


Because this is going to be the charge, unless you change my mind about it. . . . "It is equally important for you to understand that it would be grossly improper and in violation of your oath to permit any attitude or opinion you may have as to the wisdom or propriety of the Government's policy of obtaining immunity for certain witnesses to affect your verdict one way or the other. It is not your function, it simply is not your function as jurors to express your approval or disapproval of the Government's immunity policy. You may do that at the ballot box when you vote as citizens, if you wish, but you may not do it in the jury box when you vote as jurors, because, as I have instructed you a number of times, your function as jurors is to determine the facts from the evidence and to apply those facts to the law as the court instructs you on the law in order to arrive at a verdict of guilty or not guilty as to each count of the indictment; and the matter of immunity is relevant, as I have instructed you, only as to your consideration of the credibility of witnesses who have been immunized."

 (V. 12, pp. 184-85).

 After inviting counsel to correct the court if they thought that the instruction was erroneous, Mr. Johnson, the United States Attorney, stated: "Okay, very well. I don't have a problem, then." The court then asked: "Do you have any problem with that, Mr. Renfroe?" and Mr. Renfroe replied: "Sir, I do not." (V. 12, pp. 185-186, see also, V. 13, pp. 11-12). Respondent began his summation at 11:35 A.M. the following morning, Thursday, September 19, 1985. After preliminary comments, during which he several times violated our order of the previous day by reminding the jury that its verdict could result in his client going to jail (V. 13, p. 67), Mr. Renfroe commenced his attack on the government's use of immunity: n2 p. 73 L. 24 MR. RENFROE: Now, ladies and gentle- men, as far as -- as long as I can remember, as p. 74 far back as I can recollect, in any courthouse L. 1 around the country, in order to get the big men, the little boy, the little guy, the low man on the totem pole has always been given immu- nity so he can testify against the big guy. Never, ever in my life, in this country, until now, has the big guy been receiving immunity and he is supposed to testify against the little guy. L. 7 MR. JOHNSON: I object to that statement, Your Honor. L. 8 THE COURT: Sustained. L. 9 MR. RENFROE: That special treatment, Your Honor -- that special treatment, ladies and gentlemen. L. 11 THE COURT: The objection is sustained -- L. 12 MR. RENFROE: Yes sir. L. 13 THE COURT: -- as you were instructed yes- terday as to the limits of the argument with regard to immunity, and the court will instruct the jury as to the use that the jury properly may make of the immunity in this case and the use to which the jury may not make in this regard. L. 18 MR. RENFROE: May I proceed? L. 19 THE COURT: Yes. L. 20 MR. RENFROE: Now, I submit to you, la- dies and gentlemen, that the Government seeks to have you, as jurors, to legalize the sale and use of cocaine among the major league baseball players by prosecuting my client, Curtis Strong, so long as the ballplayers testify against him. I ask you now, is your sense of justice, ladies and gentlemen, so bizarre that you would look favorably upon these witnesses p. 75, called by the government -- L. 1 L. 3 MR. JOHNSON: Objection to that state- ment, Your Honor. L. 4 THE COURT: The objection is sustained. That is simply another variation on the same theme, Mr. Renfroe. Do not make that argument.


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