The opinion of the court was delivered by: BLANCHE M. MANNING
MEMORANDUM OPINION AND ORDER
Defendants Michael D. Andreas, Mark E. Whitacre, and Terrance S. Wilson now move for an immediate mistrial, asserting that the prosecution violated their respective Fifth Amendment privilege against self-incrimination by engaging in prosecutorial misconduct during closing argument. First, they argue that the prosecutor improperly commented on the defendants' failure to testify in order to suggest the inference that the defendants are liars and therefore, guilty of the charged offense.
Next, the defendants assert that the remarks were exacerbated by the government's immediate launching into an unwarranted attack on the integrity of defense counsel by implying that they would "construct" defenses because, unlike the defendants, defense counsel had the opportunity to review the evidence, and therefore, can make their argument conform to the evidence. In short, the defendants claim that the prosecutor implied that defense counsel would lie in order to convince the jury to acquit their clients.
Finally, the defendants contend that the prosecution improperly vouched for its witnesses and the strength of its case overall by comparing it to other cases prosecuted and proclaiming the evidence of guilt in this case as "the most compelling and powerful that has ever been presented in an American courtroom." Tr. 5605.
The prosecution urges the court to deny the motion, arguing: (1) the defendants did not contemporaneously object to the comments and therefore waived any claims for mistrial stemming from his closing argument; (2) that the statements, when construed in the context of the entire record, were proper and are not grounds for a mistrial; (3) any potential prejudicial effect of the comments was cured by the court's curative instruction.
Defendants Michael D. Andreas, Mark E. Whitacre, and Terrance S. Wilson were indicted for allegedly violating the Sherman Antitrust Act, 15 U.S.C. § 1, by conspiring to fix the worldwide price and sales volume allocation of lysine (a chemical feed additive) while they were executives of the Archer Daniels Midland Company (ADM). The indictment was the result of a two and one-half year covert investigation headed by the FBI with the assistance of former mole, now defendant, Mark E. Whitacre. On June 29, 1995 the FBI raided ADM corporate headquarters, executing a search warrant for evidence related to the alleged price-fixing conspiracy. Contemporaneously with the raid, FBI agents interviewed defendants Andreas and Wilson. Both denied committing any crime, but then requested counsel and refused to answer further questions. They were subsequently indicted and after approximately two years of pretrial preparation, trial commenced on July 9, 1998.
The evidentiary phase of the trial lasted almost two months, concluding on September 2, 1998. On September 8, 1998, the court instructed the jury as to the applicable law, and the prosecution began its closing argument. The court's determination of this motion for mistrial requires close scrutiny of the trial record. The parties do not dispute that the statements must be construed in the context of the entire record. Ironically, the government saw fit not to include any citations to the trial transcript. The court sets forth in the following paragraphs the portions of the record which are germane to the issues at hand. At trial, the prosecution stated:
MR. LASSAR (for the government): There's one more event to talk about, and that event occurred on June 29th, 1995, when the investigation became public and the scheme ended. Remember search warrants were executed that day, and the FBI interviewed Mr. Wilson and Mr. Andreas. And independently Mr. Wilson and Mr. Andreas had the same response to being interviewed. They lied and lied and lied. They weren't going to tell the truth about what happened to the FBI. Instead they lied. . . .
When the defense attorneys address you, they're going to come up with all kinds of different defenses all over the place. But when you're hearing all those defenses, ask yourselves why didn't we hear those defenses from Mr. Wilson and Mr. Andreas on June 27, 1995? That was their opportunity if they had a defense. They were confronted. That was their opportunity to give all these defenses. You're not going to hear those lies from the attorneys because the attorneys have an advantage over their clients. The attorneys have heard all the evidence the government has. They know before trial about all the tapes, and so they constructed new defenses for your benefit that they're going to argue to you, not the ones that their clients came up with, and that's evidence to you that the defenses you're going to hear are not true because if they were true, you would have heard them given to the FBI by Mr. Wilson and Mr. Andreas in June of 1995.
Defense counsel objected and moved for a mistrial, stating for the record:
MR. WEINGARTEN (for Wilson): Your Honor, I make another motion for mistrial. Mr. Lassar's comments on the defendants' inability or decision to respond truthfully on June 27th, 1995 was an indirect but a very prejudicial way to comment on their failure to testify at this trial. Mr. Lassar knows full well that Terry Wilson was interviewed for a period of twelve minutes. He was asked a couple of questions, then asked for corporate counsel to be advised of this interview, and the interview ceased. And for Mr. Lassar to comment that he [Wilson] had some obligation at that point to give his defense is really a very, very prejudicial, very improper and drew attention to Mr. Wilson's decision not to testify at this trial. And I therefore ask for a mistrial.
MR. BRAY (for Andreas): Your Honor, I agree, particularly putting it to defense counsel as the purported creator of all defenses I think really resounding the -- draws the inference that the failure of the defendants to testify is a major silence here. I think to put that in the context in which he did, attributing everything comes here in the way of defense, to defense counsel is a very powerful and in my experience the most unusual and emphatic comment on the defendants' failure to testify I have ever heard, albeit indirect. . . .
MR. WALKER (for Whitacre): Your Honor, he's [Lassar] told basically the jury when I get up there and say anything I'm lying or made it up. And my client on June the 29th wasn't even interviewed because he was on the [government's] team. Everything was faked up or done for them and that's where I got the impression. And I looked at several of the jurors when he [Lassar] made that comment, and it got the attention of several of them. And I feel it's a statement, again, it's ringing a bell, and I can't unring that bell. It's already shadowed what I'm going to say, and my client doesn't fit in the situation these other two do in the sense the FBI came in, identified themselves and asked them questions, but they were all grouped in as defendants, and he [Lassar] didn't single them out, and it's very prejudicial, and I can't unring the bell. . . .
MR. LASSAR: It's entirely proper conduct. The defendants lied. I pointed that out. I said their attorneys are going to tell different stories. That's proper argument.
MR. WALKER: I'd ask the court to, Your Honor, don't take our interpretation. Just listen to the words he said. . . .
MR. WEINGARTEN: It's in evidence that Terry Wilson's interview took twelve minutes and it ended when he sought counsel. The idea that he had an obligation at that point to put forward his defense and that anything I say in closing argument tomorrow is therefore a lie is truly outrageous.
THE COURT: Anything else Mr. Lassar?
MR. LASSAR: No, although I don't remember the twelve-minute thing. ...