17-427-cr
United States v. Ballard

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 16th day of March, two thousand eighteen.

PRESENT: JOSÉ A. CABRANES,
                 REENA RAGGI,
                                 Circuit Judges,
                 LAWRENCE J. VILARDO,
                                 District Judge.*
----------------------------------------------------------------------
UNITED STATES OF AMERICA,
                                 Appellee,


                           v.                                            No.   17-427-cr

ANTONIO T. BALLARD, AKA TONE,
                                 Defendant-Appellant.
----------------------------------------------------------------------

APPEARING FOR APPELLANT:                         DEVIN MCLAUGHLIN, Langrock Sperry &
                                                 Wool, LLP, Middlebury, Vermont.




*
  Judge Lawrence J. Vilardo, of the United States District Court for the Western District
of New York, sitting by designation.


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APPEARING FOR APPELLEE:                  STEVEN D. CLYMER, Assistant United States
                                         Attorney (Miroslav Lovric, Assistant United
                                         States Attorney, on the brief), for Grant C.
                                         Jaquith, United States Attorney for the Northern
                                         District of New York, Syracuse, New York.

      Appeal from a judgment of the United States District Court for the Northern

District of New York (Thomas J. McAvoy, Judge).

      UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on February 2, 2017, is VACATED and the

case is REMANDED for a new trial.

      Defendant Antonio T. Ballard stands convicted, following trial, of six counts of

sex trafficking of minors, see 18 U.S.C. § 1591(a)(1), (2); and two counts of coercion and

enticement to engage in interstate travel for illegal sexual activity, see 18 U.S.C.

§ 2422(b).1 Presently serving a below-Guidelines 210-month sentence, Ballard appeals

his conviction, arguing that the district court erred in (1) denying him a new trial based

on prosecutorial misconduct in summation, see Fed. R. Civ. P. 33; (2) denying Ballard a

trial continuance; and (3) failing to charge the jury as to the government’s burden to

prove the victims’ ages on the § 1591(a) counts. We assume the parties’ familiarity

with the facts and record of prior proceedings, which we reference only as necessary to

explain our decision to vacate and remand based on summation error.




1
  Ballard was acquitted on a third count of coercion and enticement, which is not a
subject of this appeal.

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1.     Summation Challenge

       Ballard’s summation challenge rests on several statements in the government’s

main summation, to which he did not object at trial; and two statements in the

government’s rebuttal summation, to which he did object.

       To secure a new trial based on these statements, Ballard had to show improprieties

“so severe and significant” as to deny a “fair trial.”   United States v. Coplan, 703 F.3d

46, 86 (2d Cir. 2012) (internal quotation marks omitted). Such cases are “rare,” United

States v. Caracappa, 614 F.3d 30, 41 (2d Cir. 2010), and arise only when the improper

comments so infect the trial as a whole as to result in a conviction violative of due

process, see United States v. Truman, 688 F.3d 129, 144 (2d Cir. 2012); United States v.

Ferguson, 676 F.3d 260, 283 (2d Cir. 2011) (stating that improper comments do not deny

due process “unless they constitute egregious misconduct” (internal quotation marks

omitted)). “We review for abuse of discretion a district court’s denial of a Rule 33 motion

alleging prosecutorial misconduct,” mindful of the district court’s particular advantage in

observing both the conduct at issue and its effect on the jury. United States v. Banki, 685

F.3d 99, 119–20 (2d Cir. 2012).

       In evaluating whether Ballard has demonstrated abuse of discretion in the denial of

his Rule 33 motion, we consider (1) the severity of the alleged prosecutorial misconduct,

(2) the measures adopted by the district court to cure it, and (3) the certainty of

conviction absent the misconduct. See United States v. Coplan, 703 F.3d at 86. When

a defendant did not object to challenged remarks, we review for plain error, and we will

reverse the denial of a new trial “only where the remarks amounted to a ‘flagrant abuse.’”

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United States v. Coriaty, 300 F.3d 244, 255 (2d Cir. 2002) (quoting United States v.

Germosen, 139 F.3d 120, 128 (2d Cir. 1998)).

       Applying these principles here, we conclude that the unobjected-to prosecutorial

comments were not improper so as to mandate a new trial. The prosecution’s repeated

characterization of Ballard’s treatment of the minor victims as “pieces of meat” and of

Ballard himself as a “dead beat,” App’x at 475–77, is strong rhetoric, but no more so than

other comments we have held not improper, see, e.g., United States v. Newton, 369 F.3d

659, 681 (2d Cir. 2004) (holding that summation comments implying defendant was a

“predator” were not so improper as to warrant reversal); United States v. Simmons, 923

F.2d 934, 955 (2d Cir. 1991) (determining, in heroin distribution case, that prosecutor’s

references to “swollen arms” and “collapsed veins of junkies” were “blunt and to the

point” but “not . . . improper”). As this court has long recognized, summations are not a

“detached exposition as would be appropriate in a lecture.” United States v. Wexler, 79

F.2d 526, 530 (2d Cir. 1935).        The same reasoning applies to the prosecutor’s

suggestion that Ballard’s prostituting of minors for profit would be approved only by

“Genghis Khan or some other Wall Street person,” App’x at 481, and that a picture of

Ballard would appropriately be included in the dictionary definition of “pimp,” id. at 475.

       As to unobjected-to comments about Ballard being a “real man,” these were

immediately followed by comments as to a “real person” and a “human being,” id. at 477,

which show that the prosecutor’s point was to question not Ballard’s masculinity, a

matter irrelevant to the case, but his basic decency in prostituting minors, which did bear

on his mens rea, see United States v. Farhane, 634 F.3d 127, 167 (2d Cir. 2011) (stating

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that courts will not lightly infer that every summation comment is intended to carry its

most dangerous meaning). Such “vigorous advocacy” is not improper. United States

v. Rivera, 971 F.2d 876, 884 (2d Cir. 1992).

      Finally, because Ballard attempted to discredit one of the victims, in part, by

emphasizing her willingness, without Ballard’s help, to prostitute herself and to recruit

other minors for prostitution, the government did not act improperly in arguing that

evidence of that victim’s reformation showed her now to be a more mature and

responsible person and, therefore, credible. See United States v. Millar, 79 F.3d 338,

343 (2d Cir. 1996) (holding prosecution comments that “were at least in part a legitimate

rejoinder” to defense argument did “not constitute misconduct sufficient to warrant a new

trial”); see also United States v. Salameh, 152 F.3d 88, 138 (2d Cir. 1998) (affording

prosecution “broad latitude” as to reasonable inferences it could argue to jury). That

conclusion is only reinforced by the fact that Ballard could—and did—argue opposing

inferences based on the same evidence. See United States v. Parkes, 497 F.3d 220, 234

(2d Cir. 2007) (holding that inappropriate government statements did not warrant vacatur

and observing that defense had adequate opportunity to dispute government’s assertions

in its own summation).

      In sum, the unobjected-to statements are not so abusive—much less indicative of

plain error—as to have required the district court to order a new trial. See United States

v. Carr, 424 F.3d 213, 227 (2d Cir. 2005) (holding that where defendant “did not object

at trial to the prosecutor’s remarks that he now challenges,” court must reject claim



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“unless it, inter alia, seriously affects the fairness, integrity, or public reputation of

judicial proceedings” (internal quotation marks omitted)).

       We reach a different conclusion, however, as to the challenged rebuttal arguments

to which Ballard objected at trial. The government now concedes that it was improper

for it both to mischaracterize the defense theory as a government frame-up, see App’x at

525 (arguing that FBI and police “planted, concocted, did everything to frame” Ballard),

and to insinuate that it had more evidence incriminating Ballard in the charged crimes

that it had not been allowed to offer in evidence, see id. at 532. Both errors are serious,

the first because it undermines a defendant’s constitutional right to present a defense, see

United States v. Almonte, 956 F.2d 27, 30 (2d Cir. 1992); the second because it appears to

reduce the government’s burden to prove guilt beyond a reasonable doubt at trial, see

Patterson v. New York, 432 U.S. 197, 210 (1977). The district court responded to the

first error by stating, in front of the jury, that the court “didn’t hear” Ballard’s counsel say

that law enforcement officers had framed Ballard. App’x at 525. Such a rebuke in

open court undoubtedly damaged the government’s credibility with the jury, but it did not

remove the suggestion that, to acquit Ballard, the jury had to find that law enforcement

officers knowingly and deliberately framed Ballard. Indeed, it appears that the attorneys

themselves did not so understand the district court’s remark, because the prosecutor

continued to mischaracterize the defense without further objection from Ballard.

       In denying Rule 33 relief, the district court observed that the challenged

prosecution remarks responded to the defense’s implication “that the government,

through [an investigator], permitted, and even encouraged [one victim] to feel protected

                                               6
and immune from harm if she lied about Defendant’s role,” and thus the government’s

argument “that Defendant had attempted to pin his prosecution on government

malfeasance” was not wholly unsupported by the record, as in some cases in which we

have found error. Supplemental App’x at 77. To be sure, “the government is allowed

to respond to an argument that impugns its integrity or the integrity of its case,” United

States v. Carr, 424 F.3d at 227, and we generally accord considerable deference to a

district court’s conclusion that the prosecution did not cross that line. But here, the

government itself concedes that its “framing” argument was not a fair response to the

particular integrity challenge argued by the defense. Indeed, the argument “came close

to urging the jury to find the officers credible because of their official positions, an

argument not permitted by the law.” United States v. Newton, 369 F.3d at 682 n.12.

No curative instruction addressed this aspect of the error.

       We need not decide whether prosecutorial mischaracterization of the defense

would alone warrant retrial because here we consider that error together with the

wrongful suggestion of incriminating evidence not put before the jury. Cf. United States

v. Williams, 690 F.3d 70, 76 (2d Cir. 2012) (faulting prosecutorial vouching because it

“impl[ies] the existence of evidence not placed before the jury” (internal quotation marks

omitted)). In response to defense objection, the district court told the jury, somewhat

equivocally,

       Well I’m not sure if it is [improper] or not. It certainly is the law.
       There’s an item of evidence that people are permitted to bring into this
       Court and get on the stand and ask questions and put that information out to
       the jury but there are rules to say there’s some evidence you can’t. So you
       have to decide the case based on the proof you heard, not on something you

                                             7
       didn’t hear or wasn’t presented to you here in the courtroom. If you do
       that, you’ll be okay.

App’x at 532–33. While this instructed the jury to base its verdict only on admitted

evidence, it might nevertheless appear to reinforce the government’s suggestion that there

was still more evidence that the jury had not heard. In short, the instruction did not tell

the jury that it should not assume the existence of such evidence. Nor did it instruct that

a reasonable doubt could arise from a lack of evidence no matter what the reason for that

lack. Thus, the government’s improper argument risked minimizing its burden of proof.

The concern is rendered all the more real here by the fact that the district court charged

the jury generally before, rather than after, summations. Thus, not only did the defense

have no opportunity to clarify its burden argument in response to the prosecution’s

improper rebuttal argument, but also, the jury did not have the benefit of further

instruction from the district court as to the government’s burden of proof. Cf. Chalmers

v. Mitchell, 73 F.3d 1262, 1271 (2d Cir. 1996) (stating that when “proper instruction was

nearly the last thing the jury was told before deliberating,” it was “more likely that it is

what they remembered”).

       Of course, even “substantially improper remark[s]” may not warrant vacatur when

a defendant’s guilt is established by “overwhelming evidence” of the relevant crime.

United States v. Rivera, 971 F.2d at 885.        That, however, is not this case.      The

government principally relied on the testimony of the three alleged victims, whose

credibility was disputed, and whose testimony, as the government acknowledged,

presented occasional irreconcilable differences on material matters.         Although the


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government argues that in a recorded call with one victim, “Ballard tacitly conceded his

involvement with” the other two victims, Appellee’s Br. 41, the transcript of the call is at

best ambiguous. Moreover, in the call, the victim evinced knowledge of important

events that had allegedly taken place while she was institutionalized, and, at trial, she was

unable to explain how she possessed such knowledge.            On this record, we cannot

conclude that Ballard’s conviction was certain even absent the prosecution’s admitted

misconduct in its rebuttal summation. Rather, this is one of the “rare” cases in which a

defendant has demonstrated that prosecution error resulted in a conviction violative of

due process, compelling vacatur and a new trial.

2.     Continuance and Jury Instructions

       Our decision to vacate and remand because of the prosecutorial misconduct makes

it unnecessary to consider whether the denial of a trial continuance also warrants such

relief. In any event, we conclude that the district court did not abuse its discretion in

denying Ballard’s motion for a continuance. See United States v. Griffiths, 750 F.3d

237, 242 (2d Cir. 2014). As for the charge challenge, we expect that on retrial the

district court will charge the jury as to the victim age element of the § 1591(a) counts.

       We have considered Ballard’s remaining arguments and conclude that they are

without merit. The judgment of the district court is thus VACATED and the case is

REMANDED to the district court for a new trial consistent with this order.

                                   FOR THE COURT:
                                   CATHERINE O’HAGAN WOLFE, Clerk of Court




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