Curative instruction issued in response to timely objection is reviewed for plain error where defendant does not object to instruction’s sufficiency

APPEAL/STANDARD OF REVIEW United States v. Taylor, No. 06-1449, ___ F.3d ___ (10th Cir. Jan. 29, 2008)(Colorado). Appeal of conviction for assault resulting in serious bodily injury, or aiding and abetting such an assault in violation of 18 U.S.C. §§ 2, 113(a)(6), and 1153. HELD: (1) Where defense counsel objects to improper comment by prosecutor, but does not object to sufficiency of district court’s curative instruction, content of instruction is reviewed only for plain error. (2) Prosecutor’s use of “societal alarm” argument urging jury to convict in order to tell defendant “ that he had no justifiable sufficient legal right to sucker punch [victim], to scar him permanently, and to end the cycle of violence out there [at the Southern Ute Reservation],” was impermissible argument. Such argument increases risk of erroneous conviction because it may cause jury to look for reasons to convict that are outside the charged statutory violation and because it does not address the question of whether the accused committed the crime alleged, but instead diverts attention from that question in a way that “confuses the task of the jury-as finder of fact-with the task of elected officials-as the authors of social policy.” Nevertheless, while prosecutor’s argument was improper, district court’s issuance of curative instruction that did not fully address prejudice resulting from that improper argument was not plain error. The instruction that was issued was reasonably designed to address defendant’s concern, and it cannot be said that district court’s failure, on its own, to offer more robust instruction rises to level of plain error. Read the opinion here.