U.S. v. Steinkoetter
| Decision Date | 24 October 1980 |
| Docket Number | No. 79-5346,79-5346 |
| Citation | 633 F.2d 719 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Leigh Ann STEINKOETTER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
J. Martin Hadican, St. Louis, Mo., for defendant-appellant.
Albert Jones, U. S. Atty., Timothy J. Gilenwater, Asst. U. S. Atty., Louisville, Ky., for plaintiff-appellee.
Before EDWARDS, Chief Judge, WEICK and JONES, Circuit Judges.
Steinkoetter appeals from her second conviction for possession of an unregistered firearm in violation of 26 U.S.C. §§ 5861(d) and 5871. The firearm, as to which the jury found her guilty of possession in both the first and the second trial on this charge, was a homemade bomb fabricated by her husband with her assistance, designed for the purpose of killing defendant Leigh Ann Steinkoetter's stepmother in order to procure an inheritance from her.
Steinkoetter's basic defense at both trials upon this charge was that she was acting entirely under duress from her dangerous husband. While there was evidence from which the jury could have found duress in both trials of the possession charge, the jury did not do so.
The judgment and sentence in the first trial was reversed by this court, 593 F.2d 747, because of prejudicial prosecutorial misconduct in the opening statement by the United States Attorney which referred to bombing and murders resulting from them which bombings and murders were not the subject of the indictment, nor of any proofs offered at trial.
Following this second trial, we are now confronted by the argument that we should reverse because of similarly prejudicial prosecutorial misconduct in the closing argument made by the same United States Attorney which included these comments:
"John could tell the police about the bombs and what happened, but Leigh Ann, I think you will all agree, is not a stupid person, a clever, diabolical woman." (T.549).
(T.593, 594).
In the controlling case upon prosecutorial misconduct at the criminal trial, Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), the United States Supreme Court held that the prosecutor could "strike hard blows but not foul ones." We believe that on this record, the first of the sentences above describing defendant as a clever diabolical woman would pass the Berger test as a hard blow but not a foul one. The references in the second paragraph, however, to Pontius Pilate and Judas Iscariat convey strong prejudicial overtones and have no place in a case being presented by a direct representative of the United States Department of Justice, particularly in a case which has previously been reversed for new trial solely on the ground of the deliberate introduction of inadmissible and highly prejudicial material. In pursuance of the standards set by the United States Supreme Court in Berger v. United States, this Circuit reiterates that it will enforce the ban on "foul blows" even where to do so requires still another trial of the same case.
We do not ignore appellant's contention that she should have been exempted from the second trial on the possession count and must now be freed from any charge because after her first trial in which a jury found her guilty of possession and failed to reach agreement on two other counts of transporting the same "firearm" that she was alleged to have possessed, she was subsequently retried on the two transportation counts and found not guilty.
We measure this argument made by appellant against the language of the Supreme Court in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct....
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...Supreme Court's statement that in his arguments "the prosecutor could 'strike hard blows but not foul ones.' " United States v. Steinkoetter, 633 F.2d 719, 720 (6th Cir.1980) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935)). In this case, however, ......
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