United States v. Flournoy, No. 14-2325 (7th Cir. 2016)
Annotate this CaseFlournoy was convicted of conspiring to possess cocaine and of attempting to possess cocaine (21 U.S.C. 846). During closing arguments, the defense referred to the prosecution’s failure to call certain witnesses; the prosecutor responded that “the defense can call witnesses too, if they want.” The court rejected defense counsel’s objection that a defendant has an absolute right not to testify, but instructed the jury not to consider the defendant’s failure to testify. The Seventh Circuit affirmed Flournoy’s conviction, rejecting his argument that he was entitled to a new trial because of the prosecutor’s inappropriate comments during closing argument and because the government presented testimony from a cooperating witness that conflicted with that witness’s plea agreement. If it is clear to jurors that the government carries the burden of proof, the prosecutor may tell the jury that a defendant has the power to subpoena witnesses. There was no indication that the witness testified falsely or that the discrepancy between the testimony and the plea agreement was prejudicial. The court remanded Flournoy’s 204-month sentence, which imposed discretionary conditions of supervised release without considering the sentencing factors (18 U.S.C. 3583(d); 18 U.S.C. 3553(a)), and without stating the reasons for the specific conditions.
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