                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0737n.06

                                 Case Nos. 13-1375 & 13-1387
                                                                                        FILED
                                                                                   Sep 22, 2014
                          UNITED STATES COURT OF APPEALS
                                                                               DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCIT


                                                    )
UNITED STATES OF AMERICA,                           )
                                                    )
       Plaintiff-Appellee,                          )
                                                    )
v.                                                  )
                                                    )
SARA JOHNSON (13-1375 ) and KEVIN                   )
ROMANDO JOHNSON (13-1387),                          )       ON APPEAL FROM THE UNITED
                                                    )       STATES DISTRICT COURT FOR
       Defendants-Appellants.                       )       THE WESTERN DISTRICT OF
                                                    )       MICHIGAN


       BEFORE: COOK and GRIFFIN, Circuit Judges; RICE, District Judge.*

       COOK, Circuit Judge.         A jury convicted Kevin and Sara Johnson of mail fraud,

see 18 U.S.C. § 1341, and Kevin of making a false statement to a federal agent during an

investigation, see 18 U.S.C. § 1001. In addition to imposing prison sentences, the district court

ordered each defendant to pay restitution. The Johnsons appeal, pointing to prejudicial remarks

by the prosecutor throughout trial; the district court’s failure to cure that prejudice with an

appropriate jury instruction; and the district court’s determination of the amount of restitution

without placing the issue before the jury. Kevin also challenges the district court’s denial of his


       *
         The Honorable Walter H. Rice, United States District Judge for the Southern District of
Ohio, sitting by designation.
Case Nos. 13-1375/1387 United States v. Johnson, et al.


motion for a continuance so that he could seek new counsel, and Sara contends that the district

court improperly excluded certain evidence. Discerning no reversible error, we affirm.

                                                   I.

        Kevin Johnson owned a landscaping/snow-removal company, Lansing Total Lawn Care

(“LTLC”), in Michigan. The indictment charged him and his mother Sara (the company’s

Human Resources officer) with orchestrating a scheme to “cause[] the payment of

[unemployment] benefits to LTLC . . . employees who had not in fact been laid off.”

        The morning prior to voir dire, Kevin moved the court to postpone trial to allow him to

seek new counsel, asserting that his attorney’s lack of preparedness caused a breakdown of trust.

The court questioned the attorney and Kevin before denying the motion, assessing the situation

as not sufficiently egregious to justify delaying trial.

        At trial, the government presented voluminous evidence of Kevin and Sara’s fraud.

Several former LTLC employees testified that Kevin or Sara typically would (1) apply for

unemployment benefits on the employees’ behalf (R. 170, Trial Tr. (Husband) at 172−73;

see also R. 119, Trial Tr. (Heddens) at 15−16; id. (Graham) at 91−92; id. (Therrian) at 112−13;

id. (Alfaro) at 160−63); (2) report inflated past wages on the applications in order to increase the

employees’ benefit (see, e.g., R. 171, Trial Tr. (Bognar) at 112); (3) require the employees to

continue working without a regular paycheck, sometimes threatening to “cut [the employees] off

unemployment” for failing to come to work or reporting the scheme to authorities (R. 170, Trial

Tr. (Husband) at 175; see also R. 119, Trial Tr. (Heddens) at 25−27; id. (Graham) at 94); and

(4) instruct the employees to report biweekly to the Michigan Unemployment Insurance Agency

(UIA) to describe themselves as “unemployed” and thus eligible for continuing benefits (see,

e.g., R. 170, Trial Tr. (Kellogg) at 62; R. 119, Trial Tr. (Alfaro) at 162−63). According to a



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Case Nos. 13-1375/1387 United States v. Johnson, et al.


federal investigator who prepared a chart analyzing LTLC’s false representations, UIA overpaid

$315,471 to LTLC employees.

        Kevin and Sara attempted to downplay their role in the scheme. Sara painted herself as

absent from the office; and after several witnesses mentioned that her husband suffered from an

illness during the relevant time period, she requested that the court admit his hospitalization

records so that “the jury can take into consideration . . . her focus and attention not necessarily

being directed to the[] business.” (R. 120, Trial Tr. at 11.) The court excluded the records as

irrelevant.

        Moreover, the defendants pointed the finger at a non-defendant co-manager, Amanda

Evans, because many witnesses tied her to the fraud.         During closing arguments, Kevin’s

attorney asked the jury rhetorically, “Why did we not hear from [Evans]?” (R. 121, Trial Tr. at

47.) The prosecutor rebutted by questioning “why they didn’t call Amanda Evans.” (Id. at

61−62 (emphasis added).) “Maybe,” the prosecutor continued, “because Amanda Evans knew

where all the bodies were buried and they wouldn’t have liked the answers she was going to give

you.” (Id. at 62.)

        The jury found the Johnsons guilty as charged. Sara then moved for a new trial, arguing

that many of the prosecutor’s comments constituted misconduct. The court denied her motion,

finding that no comment reflected both impropriety and flagrancy.

        The district court sentenced Kevin to 48 months’ imprisonment, Sara to 36 months, and

ordered the defendants to pay restitution in the amount shown on the federal investigator’s chart,

$315,470, without placing the issue before the jury.

        This appeal followed.




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Case Nos. 13-1375/1387 United States v. Johnson, et al.


                                                 II.

       A. Kevin’s Motion to Continue His Trial

       Kevin first argues that the district court abused its discretion in denying his motion to

postpone the start of trial to allow him to seek new counsel. The trial judge enjoys “broad

discretion” in deciding not to delay trial when a defendant requests a change of an attorney.

See Morris v. Slappy, 461 U.S. 1, 11−12 (1983) (“[O]nly an unreasoning and ‘arbitrary

insistence upon expeditiousness in the face of a justifiable request for delay’ violates the right to

the assistance of counsel.”). In United States v. Mack, 258 F.3d 548 (6th Cir. 2001), we

identified the relevant considerations that guide our review of the issue:

       [W]e generally must consider (1) the timeliness of the motion, (2) the adequacy of
       the court’s inquiry into the matter, (3) the extent of the conflict between the
       attorney and client and whether it was so great that it resulted in a total lack of
       communication preventing an adequate defense, and (4) the balancing of these
       factors with the public’s interest in the prompt and efficient administration of
       justice.

Id. at 556. Assessing these factors, each weighs in favor of upholding the court’s exercise of its

discretion to deny the motion.

       First, Kevin waited until the start of voir dire to request a change of lawyers, and we find

motions untimely under such circumstances. See United States v. Vasquez, 560 F.3d 461, 467

(6th Cir. 2009) (request made a week prior to the original trial date and again two weeks before

the rescheduled trial date); United States v. Chambers, 441 F.3d 438, 447 (6th Cir. 2006)

(request made one and a half months before trial). Kevin counters that the day of voir dire was

the first reasonable opportunity after the government disclosed, just 72 hours earlier, “witnesses

and the Jencks Act material.” But he fails to explain what information in those materials ignited

a sudden disagreement with his attorney.




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Case Nos. 13-1375/1387 United States v. Johnson, et al.


       Second, the district court thoroughly questioned both Kevin and his attorney about the

alleged conflict between them.     (See R. 169, Trial Tr. at 4−21.)      Kevin thus “had ample

opportunity to discuss in detail his complaints regarding [his attorney] and to respond to [the

attorney]’s representations regarding their relationship.” See Vasquez, 560 F.3d at 467.

       Third, nothing in the record reflects that the conflict could “result in a total lack of

communication between attorney and client, preventing an adequate defense.” See United States

v. Mooneyham, 473 F.3d 280, 292 (6th Cir. 2007). When asked to articulate his conflict with

counsel, Kevin offered only vague complaints that, for example, “nothing has been investigated”

and the attorney “didn’t do what he’s supposed to do.” (R. 169, Trial Tr. at 9−10.) See United

States v. Jennings, 83 F.3d 145, 149 (6th Cir. 1996) (noting that “some dissatisfaction with

counsel” is not enough to sustain motion). And though counsel expressed a general concern that

the case was “not set . . . up properly” and “under-funded,” he assured the court that he was

“prepared to go forward.”

       Fourth, “the public’s interest in the prompt and efficient administration of justice”

supports the court’s decision. “When the granting of the defendant’s request would almost

certainly necessitate a last-minute continuance, the trial judge’s actions are entitled to

extraordinary deference.” Vasquez, 560 F.3d at 461 (internal quotation marks and brackets

omitted). Prior to the time Kevin moved to replace counsel, an entire jury venire traveled to

Grand Rapids for selection, and the government incurred considerable costs to transport

witnesses to the area. Under these circumstances, we defer to the district court’s decision to

deny a continuance.




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Case Nos. 13-1375/1387 United States v. Johnson, et al.


       B. Admissibility of Sara’s Husband’s Medical Records

       Next, Sara argues that the district court abused its discretion in excluding her husband’s

medical records because they supported her defense of being distracted from work during the

relevant time frame. “Evidence is relevant if . . . (a) it has any tendency to make a fact more or

less probable than it would be without the evidence; and (b) the fact is of consequence in

determining the action.” Fed. R. Evid. 401. “If a district court incorrectly excludes evidence, we

will not reverse unless the error affected the defendant’s ‘substantial rights,’ Fed. R. Crim. P.

52(a), asking whether it is ‘more probable than not that the error materially affected the

verdict,’” United States v. Dimora, 750 F.3d 619, 628 (6th Cir. 2014) (quoting United States v.

Davis, 577 F.3d 660, 670 (6th Cir. 2009)).

       Even if the district court erred in excluding the records that showed the “number of [her

husband’s] hospitalizations,” the jury heard ample testimony that Sara attended work “pretty

much every day” and that she “[d]id [not] seem confused or distracted” at the office. (R. 119,

Trial Tr. (Heddens) at 12; R. 170, Trial Tr. (Husband) at 168−69.) Witnesses testified that she

“ran a lot of the business” (R. 170, Trial Tr. (Boak) at 7), often threatening workers to participate

in the scheme (see, e.g., R. 170, Trial Tr. (Husband) at 175). Any error therefore did not

prejudice Sara.

       C. Prosecutorial Misconduct

       The Johnsons together argue that various comments made by the prosecution violated due

process, warranting the court’s declaring a mistrial. Sara also contends that the court abused its

discretion in denying her new-trial motion premised on prejudicial comments. “To prevail, [the

defendants] must show that the prosecutor’s remarks were not just improper but that they were

‘flagrant.’” Bedford v. Collins, 567 F.3d 225, 233 (6th Cir. 2009) (quoting United States v.



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Case Nos. 13-1375/1387 United States v. Johnson, et al.


Carson, 560 F.3d 566, 574 (6th Cir. 2009)). Flagrancy turns on “(1) whether the comment was

likely to mislead the jury or otherwise prejudice the defendant; (2) whether it was an isolated

occurrence or part of an extensive pattern; (3) whether it was made deliberately or by accident

and (4) whether the prosecution’s other evidence was strong.”          Bedford, 567 F.3d at 233.

Though the Johnsons provide a litany of allegedly improper and flagrant prosecutorial

comments, we distill them into four categories, none of which requires a new trial.

        1. Comments conflating the defendants.         Kevin and Sara first argue that various

prosecutor comments “lump[ed] the two defendants together to paint the picture that the

evidence offered was against both of them.” But much of the evidence was against both of them,

and neither defendant points to anything in the record that actually was improper. For example,

the prosecutor’s closing comment that “[t]he two of them were running this business” (R. 121,

Trial Tr. at 66) comports with evidence that Kevin owned the company and Sara ran much of the

business. Kevin cites a remark that incorrectly tied Sara to Kevin’s lie to the investigator, but the

prosecutor promptly corrected his mistake by saying, “I’ll leave [Sara] out of that one.” (R. 121,

Trial Tr. at 64.)

        2. Comment regarding Amanda Evans. The Johnsons next argue that the prosecutor’s

rebuttal comment about Evans—noting the possibility that the Johnsons did not call Evans

because she would have offered unfavorable testimony—shifted the burden of proof to the

defendants.    But the prosecutor never suggested that the burden of proof belonged to the

Johnsons and, instead, merely rebutted a similar comment made by Kevin’s attorney. When a

defendant “implie[s] at closing that the government failed to call a witness because the evidence

would be favorable to the defendant,” the prosecutor may properly comment that the “defense

[too] could have called the witness if desired.” United States v. Newton, 389 F.3d 631, 638 (6th



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Case Nos. 13-1375/1387 United States v. Johnson, et al.


Cir. 2004) (vacated on other grounds); see also United States v. Henry, 545 F.3d 367, 381 (6th

Cir. 2008) (“[I]f the prosecutor’s remarks were ‘invited,’ and did no more than respond

substantially in order to ‘right the scale,’ such comments would not warrant reversing a

conviction.”). Kevin’s counsel insinuated in his closing argument that the government failed to

call Evans because her testimony would undermine its case.1 (R. 121, Trial Tr. at 48.) So the

prosecutor’s rebutting suggestion “was . . . fair comment designed to meet the defense counsel’s

argument.” United States v. Clark, 982 F.2d 965, 969 (6th Cir. 1993).2

       Kevin and Sara also insist that the prosecutor “bolstered” Evans’s hypothetical testimony

and implied that the prosecutor bore specialized knowledge that Evans would testify in favor of

the government. But the prosecutor raised only the common-sense notion that “[m]aybe” Evans

would testify unfavorably. (R. 121, Trial Tr. at 62.)

       Even if we were to consider the prosecutor’s comment improper, it prejudiced neither of

the defendants given the overwhelming evidence against them.          Several witnesses offered

personal knowledge of Kevin and Sara participating in the scheme—that they placed employees

on unemployment, threatened them into coming to work anyway, and taught employees how to

lie to the UIA. No evidence suggested that Evans played an overriding role.



       1
          Sara argues that the government’s comment prejudiced her more than Kevin because it
was Kevin’s attorney who insinuated that Evans would testify against the government. But
because Kevin’s attorney did not limit his comment to Kevin specifically, the government’s
rebuttal affected both defendants equally. Similarly, Kevin contends that the comment
prejudiced him more because the prosecutor commented that Evans was “under . . . defense
subpoena” even though only Sara issued the subpoena. This comment lacked relevance,
however, because the key point of the government’s contention was that neither defendant called
Evans—not that defendants subpoenaed Evans.
        2
          Kevin makes a similar argument regarding a prosecutor’s comment that Kevin could
have played the end of a tape recording that formed the basis for his false-statement conviction.
(R. 121, Trial Tr. at 63−64.) Kevin’s attorney invited this comment, too, by saying to the jury,
“Why did we not hear the rest of the tape?” and thus insinuated that the end of the tape would
hurt the government’s case. (Id. at 47.)
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Case Nos. 13-1375/1387 United States v. Johnson, et al.


       3. Comment regarding defense counsel’s tactics. In his closing rebuttal argument, the

prosecutor commented on defense counsels’ aggressive cross-examination technique, calling it

“the same thing” as the “threat[s]” the employees faced from Kevin and Sara at LTLC. 3 Citing

no authority, the defendants interpret this comment as “suggesting it was trial counsel themselves

who had been engaged with the defendants in some kind of protective scheme.” The prosecutor

merely drew an analogy to Kevin and Sara’s conduct, however, and the comment falls within its

“‘wide latitude’ [permitted] during closing argument to respond to the defense’s strategies,

evidence and arguments.” Bedford, 567 F.3d at 233 (finding no impropriety in comment that

defense attorney tried to “confuse” the jury by “fill[ing] the courtroom with . . . smoke”

(citations omitted)).

       4. Comment that the defendants abused a “sacred trust.” The final challenged comment

involves a prosecutor’s remark that “[u]nemployment is a sacred trust” and that the “two

defendants abused that trust for their own greed.” (R. 121, Trial Tr. at 71.) Case law makes

clear that “[n]othing prevents the government from appealing to the jurors’ sense of justice.”

Bedford, 567 F.3d at 234. Though the defendants analogize to a case where the prosecutor

suggested that a conviction would maintain national security during World War II, see Viereck v.

United States, 318 U.S. 236, 247−48 (1943), this case reflects a more innocuous appeal to “send

a message,” see United States v. Wiedyk, 71 F.3d 602, 610−11 (6th Cir. 1995) (finding that “send

a message” remarks do not rise to the level of denying a fair trial); see also Bedford, 567 F.3d at




       3
         Sara also quotes the prosecutor’s comments that Kevin’s attorney “basically . . . called
[one witness] stupid” and that Sara’s attorney “called [another witness] a crack-head over and
over again.” She offers no separate argument, however, that these fleeting comments deprived
her of a fair trial. Moreover, though she complains that the prosecutor said she “seems to have
been trying to evade paying her taxes, she develops no argument that this comment
mischaracterized the evidence or prejudiced her in any way.
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Case Nos. 13-1375/1387 United States v. Johnson, et al.


234 (finding no impropriety in prosecutor’s comment that each juror could say, “I did [the

victim] justice”).

       D. Jury Instruction

       The Johnsons’ penultimate contention concerns the court’s failure to issue a curative

instruction regarding the Evans aspect of the prosecutor’s comments. During jury deliberations,

the judge gathered the parties to propose a curative instruction because he “became a bit

concerned” about the Evans comment. (R. 122, Trial Tr. at 4.) The judge’s proposal would have

told the jury that (1) “the government bears the burden of proving guilt beyond a reasonable

doubt,” (2) the jury “must make [its] decisions based only on the evidence . . . heard in this

courtroom,” and (3) the jury “may not engage in speculation as to what Ms. Evans may have said

had she been called as a witness.” (R. 97-2, Proposed Jury Instruction.) Kevin’s attorney

wanted the instruction, but Sara’s attorney disagreed because “the instructions that the Court

gave previously were quite clear as is.” The judge agreed with Sara’s attorney and offered no

curing instruction.

       Refusal to deliver a proposed jury instruction warrants reversal only if it is “not

substantially covered by the charge actually delivered to the jury.” United States v. Carson, 560

F.3d 566, 578 (6th Cir. 2009). Here, the judge told that jury that (1) “It is up to the government

to prove that [the defendants] are guilty, and this burden stays on the government from start to

finish,” (2) “the lawyers’ statements and arguments are not evidence,” and (3) “Do not speculate

about what a witness might have said . . . .” (R. 121, Trial Tr. at 7−8.) The proposal covered no

new ground, and the district court thus committed no error in not delivering it.




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       E. Restitution

       Last, the Johnsons contend that the district court violated the Sixth Amendment by

determining the amount of restitution on its own without presenting the issue to the jury.

See Apprendi v. New Jersey, 530 U.S. 466 (2000). Kevin and Sara acknowledge that their

argument directly contradicts our holding in United States v. Sosebee, 419 F.3d 451, 461–62 (6th

Cir. 2005), that restitution falls outside the bounds of the Sixth Amendment.

       The Johnsons instead argue that Southern Union Co. v. United States, 132 S. Ct. 2344

(2012)—which held that a jury must determine the amount of a fine to the extent that the amount

exceeds a statutory maximum—calls Sosebee into question. We recently rejected an identical

contention in United States v. Jarjis, 551 F. App’x 261, 261−62 (6th Cir. 2014) (per curiam)

(citing cases from three other circuits), “because restitution has no statutory maximum and

because the Mandatory Victim Restitution Act mandates that judges determine the amount.”

       Kevin and Sara similarly cite Alleyne v. United States, 133 S. Ct. 2151 (2013). But that

case, which held that facts increasing the statutory minimum sentence of imprisonment must be

presented to a jury, lacks relevance for reasons similar to those noted in Jarjis. The district court

thus committed no error in calculating restitution. 4

                                                 III.

       We AFFIRM.




       4
          Sara also attempts to extend Apprendi beyond statutory penalties to guideline
calculations, arguing that the jury should have determined the loss amount attributable to her and
whether a sentencing enhancement for managing a criminal scheme applied. But she again cites
no authority for this novel proposition, and case law clearly dictates that Apprendi applies only to
statutory penalties. See, e.g. United States v. Johnson, 732 F.3d 577, 584 (6th Cir. 2013)
(“Alleyne did not extend Apprendi to facts that do not increase the prescribed statutory
penalties.”).
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       RICE, District Judge, concurring. I concur fully with the conclusions reached by the

majority. I write separately only to discuss the comments made by the prosecutor. Like the

majority, I ultimately conclude that his comments did not violate either defendant’s right to a fair

trial. I do, however, believe that several of them were improper, even if they were not flagrant

enough to constitute prosecutorial misconduct. My discussion is confined to the following four

categories of comments: 1) the prosecutor’s comments regarding the absence of testimony from

Amanda Evans and his invocation of the invited reply doctrine; 2) the prosecutor’s comments

about the tactics of defense counsel; 3) the prosecutor’s reference to unemployment insurance as

“a sacred trust”; and 4) the prosecutor’s insinuation that Sara had evaded paying her taxes.

       The Sixth Circuit applies a two-step test to claims of prosecutorial misconduct. United

States v. Carson, 560 F.3d 566, 574 (6th Cir. 2009) (citing United States v. Gardiner, 463 F.3d

445, 459 (6th Cir.2006)).     First, the court determines if the prosecutor’s statements were

“improper.” Id. Second, if the statements were improper, a determination must be made as to

“whether the remarks were flagrant and thus warrant reversal.” Id.

       1. Comments regarding Amanda Evans and the invocation of the “invited response”

doctrine. “Under the ‘invited response’ rule, a ‘reviewing court must not only weigh the impact

of the prosecutor's remarks, but must also take into account defense counsel's opening salvo.’”

United States v. Henry, 545 F.3d 367 (6th Cir. 2008) (quoting United States v. Young, 470 U.S.

1, 11-12 (1985)). If the defendant “invites” the prosecutor’s remarks, which only “respond

substantially in order to ‘right the scale,’ such comments would not warrant reversing a

conviction.” Id. Thus, a prosecutor’s “legitimate reply to defense assertions that the government

hid evidence from the jury” would not constitute improper burden shifting. United States v.

Newton, 389 F.3d 631, 638 (6th Cir. 2004), rev’d on other grounds by Newton v. United States,



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Case Nos. 13-1375/1387 United States v. Johnson, et al.


546 U.S. 803 (2005) (rejecting defendant’s argument that the “prosecutor improperly shifted the

burden during closing argument by arguing to the jury that [defendant] could have played an

audiotape that the government chose not to play for the jury” where the prosecutor’s argument

“was made to rebut defense insinuations that the government intentionally kept evidence away

from the jury”); see also United States v. Clark, 982 F.2d 965 (6th Cir. 1993) (holding that no

improper burden shifting occurred when prosecutor remarked upon defendant’s failure to call a

witness in response to defense counsel’s assertion that the witness would not have corroborated

testimony of another government witness).

       J. Nicholas Bostic, Kevin’s attorney, made repeated references to Amanda Evans during

his closing arguments. The first thing that Bostic said after greeting the jury was “reasonable

doubt in this case has a name and that name is Amanda Evans.” On several occasions, Bostic

asked “Why did we not hear from Amanda?” Bostic also stated:

       The reasonable doubt in this case is Amanda Evans. They want you to do the
       heavy lifting for them. They want you to make logical leaps that are unsupported
       by the evidence or any inferences from it. They have simply failed to prove their
       case. They have left open the entire question of who is Amanda Evans, what did
       she do, where is she and why is she not here. (emphasis added)

       “In every criminal case, the mosaic of evidence that comprises the record before a jury

includes both the evidence and the lack of evidence on material matters. Indeed, it is the absence

of evidence upon such matters that may provide the reasonable doubt that moves a jury to

acquit.” United States v. Poindexter, 942 F.2d 354, 360 (6th Cir. 1991) (reversing trial court’s

decision to prevent defense counsel from commenting on prosecution’s failure to introduce

fingerprint test results that did not reveal defendant’s prints on contraband). In this instance,

Kevin’s counsel cannot be faulted for attempting to leverage the absence of testimony from a

person that was repeatedly referred to by Defendants’ testifying employees into a jury finding of



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reasonable doubt. However, his remarks also invited the jury to speculate on the Government’s

motive for not calling Amanda Evans as a witness, and to infer that her testimony would have

been unfavorable to the Government. This “opening salvo” justified some response by the

Government. United States v. Young, 470 U.S. 1, 12 (1985).

       Sara’s counsel, Richard Stroba, also mentioned Amanda Evans, but he did not launch a

comparable “opening salvo.” Rather, his comments were only directed towards testimony that

the jury had heard or evidence in the record:

       . . . the only evidence in this record is that [exhibits] H and I weren't signed by
       Sara Johnson; they were signed by somebody else. We don’t know who. I would
       suggest the reasonable inference, based upon the testimony you heard, is Amanda
       Evans or perhaps Kevin Johnson, but not Sara.

       Ms. Heddens testified that from time to time she would put things in these
       binders. I suspect, too, that Amanda Evans put things in the binders.

       Every other employee who testified essentially similarly, and I think that you can
       find this to be true, that Amanda Evans was the one who filled out the UI forms
       and filed them, took their information, inputted it into the computer, sent it off
       and brought them back their PIN number and told them what to do, not Sara
       Johnson.

       In contrast to Bostic’s remarks, Stroba’s remarks did not invite a comparable response

from the Government. Rather, his references to Evans all attempted to cast reasonable doubt on

his client’s participation in the scheme. Stroba never mentioned Evan’s absence as a witness,

much less associated it with the prosecution’s strategy. Thus, although the Government may

have been warranted in responding to Bostic’s statements, it was not proper for the prosecutor to

state that he was responding to what both Defendants’ attorneys had said when he stated the

following in his rebuttal:

       First and foremost, you heard both defense counsel repeatedly say, “Where is
       Amanda Evans? Why haven't you heard from her?” And this is what we call the
       Invited Reply Doctrine. This is where I get to tell you she was right out there
       under defense subpoena and they didn't call her. So ask yourselves why they

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Case Nos. 13-1375/1387 United States v. Johnson, et al.


       didn't call Amanda Evans. Maybe the same reason Kevin and Sara didn't fire
       Amanda Evans even two years after she supposedly did everything and got them
       in all this trouble, because Amanda Evans knew where all the bodies were buried
       and they wouldn't have liked the answers she was going to give you.

       It was improper for the prosecutor to invoke the invited response doctrine with regards to

comments made by Sara’s counsel. It was only Bostic, Kevin’s attorney, who made comments

suggesting that the Government made a strategic decision to not call Amanda Evans as a witness.

Thus, it was also improper for the prosecutor to assert that the “defense” had subpoenaed Evans,

when only Sara had done so.

       2. Comments regarding the conduct of Defendants’ attorneys.

       On rebuttal, the prosecutor also stated:

       Now, both defense attorneys have been telling you that you shouldn't believe any
       of these workers, that they're all suspect. You know what? You're hearing the
       same thing in the courtroom that was happening to these workers the whole time
       they were there: You don't play along, you get cut off, you get no paycheck, you
       get no job. And what did you hear these people say? “Nobody will believe you
       because we have good lawyers.” And you saw that threat playing out right in
       front of you. Mr. Bostic, you saw him cross-examining Angela Heddens who got
       up here and seemed pretty upset to basically be called stupid. Mr. Bostic stood up
       here and said, “Can you read the English language?” That's the kind of treatment
       she could expect and why she probably kept her mouth shut.

       You heard Mr. Stroba saying to Mike Husband, who admitted to you that he used
       to use drugs, that he had a criminal history, that's why he couldn't find another
       job, and Mr. Stroba called him a crack-head over and over again. “Were you
       using crack that day, the day before? Are you a crack-head now?” That's the
       treatment he could expect.

       It is true that “[t]he prosecution necessarily has ‘wide latitude’ during closing argument

to respond to the defense's strategies, evidence and arguments.” Bedford v. Collins, 567 F.3d

225, 234 (6th Cir. 2009) (citing United States v. Henry, 545 F.3d 367, 377 (6th Cir. 2008)). But

such latitude does not allow the prosecutor to equate the criminal conduct of the Defendants with

their attorneys’ cross-examination of the witnesses. In this instance, the association carried



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particular force because part of the Government’s theory of the case was that the witness-

employees were vulnerable people that Kevin and Sara had preyed upon in order to carry out

their fraud scheme. The prosecutor even referred to the former testifying employees as “victims”

of Defendants’ fraud (“You've heard from all those people and the ways in which they were

victimized”). It was improper for the prosecutor to suggest that the witnesses’ treatment by

defense counsel during cross-examination fulfilled a threat that Sara made to them during the

execution of the fraud. The prosecutor’s rhetoric risked undermining the jurors’ perception of

the integrity of the cross-examination process by blurring the distinction between the conduct

that Kevin and Sara were accused of with the defense tactics of their attorneys.

       3.   The Government’s appeal to civic duty.         Defendants argue that the following

comments of the prosecutor amount to an improper appeal to civic duty:

       You’ve heard from all those people and the ways in which they were victimized,
       but let me suggest to you there’s another victim, too. The Unemployment
       Insurance Agency. All that money is the people’s money, it’s the taxpayers’
       money, and I’m not suggesting to you that you should feel bad for the
       Unemployment Insurance Agency because it’s some big government program.
       Unemployment is more than that. Unemployment is all of us caring for each
       other, reaching a hand out to a neighbor who’s down on their luck and helping
       them up, helping out a worker who needs to get back up on their feet. Some of us
       in this room have been there before. Many of us will be there again or people we
       love will be there again. Unemployment is a sacred trust.

       “Nothing prevents the government from appealing to the jurors’ sense of justice” during

closing arguments. Bedford, 567 F.3d at 234 (citing Coe v. Bell, 161 F.3d 320, 351 (6th Cir.

1998)). Certain appeals are patently improper, however, such as encouraging jurors to identify

with crime victims. Johnson v. Bell, 525 F.3d 466 (6th Cir. 2008). “The prosecutor must avoid

‘undignified and intemperate’ arguments and arguments that may contain ‘improper insinuations

and assertions calculated to mislead the jury’ by inciting passion and prejudice.” United States v.




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Case Nos. 13-1375/1387 United States v. Johnson, et al.


Lawrence, 735 F.3d 385, 432 (6th Cir. 2013) (quoting United States v. Solivan, 937 F.2d 1146,

1150 (6th Cir.1991)).

       Here, the prosecutor’s remarks walk a fine line between appealing to the jurors’ sense of

justice and identifying with the victim. By describing the Unemployment Insurance Agency, the

victim of the Johnson’s fraud, as a “sacred trust” comprised of “all of us caring for each other,”

and that has helped “[s]ome of us in this room,” the prosecutor’s remarks appear designed to

align the jury, as members of society, with the victim. Nevertheless, the remarks were not

calculated to mislead, nor do they seem likely to have resulted in juror passion that might have

overcome the ability to make a reasoned determination of Kevin and Sara’s guilt. While the

prosecutor’s remarks certainly gave the jury reason to connect the effects of their crimes to

society at large, the remarks were not an improper appeal to civic duty.

       4. Comment about Sara not paying taxes. Sara argues that the following statement of the

prosecutor was improper:

       You know why she was getting paid under the table and not on the official
       payroll. When you’re on the official payroll, the IRS gets a W-2. So the fact she
       seems to have been trying to evade paying her taxes doesn’t make her innocent,
       does it?

       These remarks were improper. Sara was on trial for mail fraud, not the unrelated offense

of tax evasion. Furthermore, the prosecutor’s statement suggested that her alleged failure to pay

taxes was somehow probative of her guilt for the offense of mail fraud, and its strength relied

upon a suggestion of Sara’s bad character. “A fundamental rule of evidence is that a defendant's

‘bad character’ cannot be used to argue that the defendant committed the crime for which he is

being tried, or had the propensity to commit that crime.” Washington v. Hofbauer, 228 F.3d 689,

699 (6th Cir. 2000) (citing Fed. R. Evid. 404(a)); see also Hodge v. Hurley, 426 F.3d 368 (6th

Cir. 2005) (finding prosecutor’s suggestion improper that child rape defendant “regularly drank

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Case Nos. 13-1375/1387 United States v. Johnson, et al.


alcohol illegally by passing himself off as being over twenty-one years of age—a claim that in no

way relates to the crime charged” because it emphasized the defendant’s “bad character”). The

prosecutor’s remarks suggested that Sara was a tax evader and was therefore not “innocent.”

The suggestion was wholly improper.

          5. No comment was sufficiently flagrant to warrant a new trial. Even if several of the

prosecutor’s remarks were improper, however, they were not sufficiently flagrant to grant either

defendant a new trial when considered within the context of the trial as a whole.

          The following four factors are used to evaluate flagrancy: “(1) whether the conduct and

remarks of the prosecutor tended to mislead the jury or prejudice the defendant; (2) whether the

conduct or remarks were isolated or extensive; (3) whether the remarks were deliberately or

accidentally made; and (4) whether the evidence against the defendant was strong.” United

States v. Carson, 560 F.3d 566 (6th Cir. 2009) (quoting United States v. Carter, 236 F.3d 777,

783 (6th Cir. 2001). Considering the first factor, the prosecutor’s remarks may have misled the

jury as to which of the defense attorneys’ statements warranted the invited reply. As discussed,

only Kevin’s attorney made comments that invited a reply. However, none of the other improper

comments could have misled the jury in their consideration of the actual evidence the jurors

considered.

          The comments were “isolated,” which weighs against a finding of flagrancy under the

second factor, because the prosecutor made them only in the rebuttal to Bostic’s closing

argument. The remarks were clearly “deliberate,” and not “accidentally made,” as the prosecutor

was directly addressing Bostic’s remarks. This weighs in favor of flagrancy under the third

factor.




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Case Nos. 13-1375/1387 United States v. Johnson, et al.


       The fourth factor, which asks “whether the evidence against the defendant was strong,”

decidedly does not weigh in the Defendants’ favor. Id. The former employees testified that Sara

had given them instructions on how to fill out unemployment insurance paperwork and operate

its phone system, threatened the employees that they would go to jail if they reported the scheme,

and even demanded kickbacks from the checks. The evidence also showed that Sara contacted

the unemployment agency and the payroll companies and kept two sets of binders in her office

that evidenced the fraud. Kevin went to the unemployment office in person to pose as an

employee and applied for benefits himself, in addition to taking an unemployment check from an

incarcerated employee’s mailbox. The Government had strong, compelling evidence of Sara and

Kevin’s guilt. In short, although the prosecutor made several improper comments during the

trial, they were not flagrant enough to warrant a new trial.

       As the foregoing discussion indicates, my only difference with the majority concerns the

propriety of several of the prosecutor’s comments. None of them amounted to prosecutorial

misconduct, however. In that conclusion and in all others reached in the majority’s opinion, I

wholly concur.




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