United States v. Diffoot

COX, Senior Judge, with whom CRAWFORD, Chief Judge,

joins (dissenting):

I disagree that the purpose of trial counsel’s closing argument was to urge conviction on the basis of Hispanic ethnicity or guilt by association. Therefore, I dissent.

The question of the effect of improper prosecution argument was addressed by the Supreme Court in Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), and in Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). Applying these cases, the question is whether trial counsel’s argument “so infected the trial with…