First Circuit Finds No Issue With Prosecutor Critiquing Defense Counsel's Citation to the Indonesian Tsunami & Walter Raleigh's Trial in Identity Theft Case

During closing arguments, it's perfectly proper for the prosecutor to criticize defense theories and tactics, which is why there was no error in United States v. Aceituno, 2025 WL 1553681 (1st Cir. 2025).

In Aceituno, "[a]fter a jury trial in 2024, Lester Aceituno was convicted of conspiracy to commit bank fraud...and of two counts of aggravated identity theft."

At the end of the trial defense's closing included the following statements:

1. “But I do need to talk to you about something that may happen in the deliberation room just based on human experience and ask you to resist that. You know, in 2004 there was an earthquake that caused a tsunami. Just in Indonesia 170,000 people were killed. I actually remember that day looking on my computer at this news of this terrible event. A couple of hours later I was going on with my life. You know, you get absorbed in your own concerns.”

2. “Almost exactly 400 years ago Sir Walter Raleigh was accused of treason and ultimately executed in London. The evidence against him was that there was a Baron Cobham who was interrogated outside the presence of Sir Walter Raleigh, and he claimed, or he was made to, it's not clear, write out that he and Raleigh had agreed to treason. To kill King James I, basically. At Raleigh's trial he said bring my accuser face-to-face. He was denied that right, and he was put to death. But after that case 400 years ago there was a widespread belief in England that that is the wrong way to try people. That if you are accused of a crime, you should meet your accuser face-to-face.”

Thereafter,

The prosecution, in response to defense counsel's several references to events distant in time and place from the case, stated: “[y]ou heard a closing that spent a lot of time talking about a lot of things that did not happen in this courtroom and that are not evidence in front of you. That is to confuse and distract you.” Aceituno objected, and the court overruled the objection. The prosecution continued: “[t]he defendant was given the fair trial required under the Constitution. The government has met the burden required under the Constitution to prove his guilt beyond a reasonable doubt. Not confusion about tsunamis and Sir Walter Raleigh.”

On appeal, Aceituno argued that the prosecutor improperly mounted a “unsubstantiated, personal attack on defense counsel.” The First Circuit quickly turned this argument aside, concluding that

The government was responding to defense counsel's reference to a 2004 tsunami in Indonesia and the trial of Sir Walter Raleigh 400 years ago in England, each of which were far afield from the facts in this case. The prosecution's rebuttal was meant to redirect the jury's attention to the facts of this case....It was fair commentary that the defense's statements were meant “to confuse and distract [the jury].”

-CM