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Government's Use of Improper Arguments

The purpose of this page is to highlight some of the improper arguments that were used by the prosecution in order to trick the jury into convicting Gilberto Valle of crimes that he did not commit. Check back often as this page will be updated.

Improper Argument #1

"That is not a fantasy that is OK."

- Assistant US Attorney Randall Jackson in his rebuttal summation, March 7, 2013


Let's now see what the established case law has to say about the matter:

  • Jacobson v. United States 503 U.S. 520, 551-52:
  • "a person's inclinations and fantasies... are his own and beyond the reach of the government."

  • United States v. Curtin 489 F.3d 935, 960:
  • "Fantasy is constitutionally protected."

  • Powell v. State of Texas, 392 U.S. 514, 543-44:
  • "When a desire is inhibited, it may find expression in fantasy; but it would be absurd to condemn this natural psychological mechanism as illegal."

  • Stanley v. Georgia, 394 U.S. 557, 566:
  • "Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds."

  • United States v. Muzii, 676 F.2d 919, 920:
  • "The reach of the criminal law has long been limited by the principle that no one is punishable for his thoughts."


    Improper Argument #2

    "...it is important for you to consider the fact that you heard no reasonable explanation of why he is risking his job, his freedom, his livelihood, his life... you heard nothing."

    - Assistant US Attorney Randall Jackson in his rebuttal summation, March 7, 2013


    Let's now see what the established case law has to say about the matter:

  • Fifth Amendment of the United States Constitution: "No person shall...be compelled in any criminal case to be a witness against himself."

  • Rummels v. Hess, 653 F.2d 1359, 1363:
  • ("No one but the defendant could have contradicted the prosecutrix. Thus, the innuendo was sufficiently plain, as was the error.")

  • United States v. Triplett, 195 F.3d 990, 995:
  • (prosecutor violated Griffin v. California by arguing in rebuttal summation, "You never heard evidence that the defendant didn't know that he possessed the drugs," because the jury would have understood the remark as a reference to the defendant's silence at trial)

  • United States v. Wihbey, 75 F.3d 761, 768-70:
  • (prosecutor violated Griffin v. California by stating that the jury should acquit if defense counsel "can stand up and explain away" certain evidence)

  • United States v. Skandier, 758 F.2d 43, 45-46:
  • ("how-does-counsel-explain" argument is a Griffin violation and an impermissible shifting of the burden of proof)

  • United States v. Hortman, 82 F. App'x 476, 479:
  • ("This court has recognized that when the defendant is the only voice of contradiction, whether the failure to rebut is articulated as the defendant's direct failure or defense counsel's failure, the effect may be a prejudicial... Fifth Amendment violation...")

  • United States v. Simon, 964 F.2d 1082, 1086:
  • ("Prosecutors must refrain from making burden-shifting arguments which suggest that the defendant has an obligation to produce any evidence or prove innocence.)

  • United States v. Cruz, 797 F.2d 90, 93:
  • ("A prosecutor's use of the phrase 'the defense... has to convince you' in his summation is indefensible.)


    Improper Argument #3

    "...focus on what the evidence reveals about who he really is."

    - Assistant US Attorney Randall Jackson in his rebuttal summation, March 7, 2013


    Let's now see what the established case law has to say about the matter:

  • United States v. Verduzco, 373 F.3d 1022, 1026:
  • ("the underlying premise of our criminal justice system is that the defendant must be tried for what he did, not for who he is")

  • United States v. Linares, 367 F.3d 941, 945:
  • ("a defendant must be tried for what he did, not for who he is")

  • United States v. Myers, 550 F.2d 1036, 1044:
  • ("A concomitant of the presumption of innocence is that a defendant must be tried for what he did, not for who he is")


    Improper Argument #4

    "It is important for us to realize that the limits of fantasy under common sense have to do with what other participants who are dragged into that fantasy are aware of. You can't have a fantasy where you have unwilling participants in the fantasy."

    - Assistant US Attorney Randall Jackson in his rebuttal summation, March 7, 2013


    Let's now see what the established case law has to say about the matter:

  • United States v. Maddox, 156 F.3d 1280, 1282:
  • (improper for prosecutor to make a "common knowledge" argument when the fact at issue was not supported by evidence and was not common knowledge)

  • United States v. George, 11-CR-25, 2012 WL2564373:
  • (improper for prosecutor to rely on fact not in evidence by claiming it is "common knowledge")

  • Declaration of Park Dietz:
  • "The government's assertion that 'You can't have a fantasy where you have unwilling participants in the fantasy' is baffling and untrue. The government could mean either of two things by this assertion -- that men must seek the consent of women before fantasizing about them, or that men don't fantasize doing things against the will of the characters in their fantasies -- and both are wrong.... the fact that Mr. Valle built erotic fantasies around women he knew does not make him the least bit unusual. Without any consent whatsoever, normal men incorporate images of women they've noticed into their erotic fantasies..."


    Improper Argument #5

    "One of the questions you can ask yourself in terms if there is a reasonable doubt is how you would feel after all that, something had happened to these women. Would you conclude that the FBI's activities had been reasonable? Of course not... and that fact eliminates the possibility that we have a reasonable doubt in this case."

    - Assistant US Attorney Randall Jackson in his rebuttal summation, March 7, 2013, implying that Gil is guilty merely because the FBI decided to arrest him.


    Let's now see what the established case law has to say about the matter:

  • United States v. Bess, 593 F.2d 749, 754:
  • "It is always improper for a prosecutor to suggest that a defendant is guilty merely because he is being prosecuted or has been indicted."


    Improper Argument #6

    "This is a man who is sick...Mr. Valle is a sadistic person."

    - Assistant US Attorney Randall Jackson in his rebuttal summation, March 7, 2013, implying that Gil is guilty merely because the FBI decided to arrest him.


    Let's now see what the established case law has to say about the matter:

  • United States v. Suarez, 588 F.2d 352, 354:
  • ("counsel may not substitute his own opinions on summation in lieu of expert testimony, where such is called for")

  • Declaration of Park Dietz:
  • "The government argued that Mr. Valle is a 'sick' man, but this is not supported by any evidence. In my psychiatric evaluation, I found no evidence of psychopathology that would justify such a label, and neither did the Personality Assessment Inventory which I administered, both of which findings were disclosed to the government in advance of trial... I believe Mr. Valle was communicating over the internet, through such websites as darkfetishnet.com and with anonymous strangers he met thereon, simply as a means of coping with the fact that he was aroused by socially unacceptable images and fantasies. Mr. Valle achieved acceptance from others, encouragement for his writings (some aspects of which were designed to arouse others and generate approval, as they did not appeal to him), and, at times, sexual stimulation. But for Mr. Valle, the character was a role only, an exercise in sexual imagination and collaborative creative writing."


    Improper Argument #7

    "[Mr. Valle is] going to victimize a woman as soon as he has the opportunity."

    - Assistant US Attorney Randall Jackson in his rebuttal summation, March 7, 2013, implying that Gil is guilty merely because the FBI decided to arrest him.


    Let's now see what the established case law has to say about the matter:

  • United States v. Sanchez, 659 F.3d 1252, 1256-57:
  • (prosecutors may not "comment on the potential social ramifications of a particular verdict, or suggest that a guilty verdict will protect others.)

  • United States v. Locascio, 6 F.3d 924, 946:
  • ("intolerable" for a prosecutor to attempt to instill in the jury fear of the defendant.)

  • United States v. Ayala-Garcia, 574 F.3d 17, 18:
  • (prosecutor's assertions "served no purpose other than to inflame the jury's passions by depicting the defendant as a dangerous man who needed to be put away for a long time...a deplorable attempt to stir passion that can only distract a jury from its actual duty: impartiality")

  • Declaration of Park Dietz:
  • "The government also argued that Mr. Valle was 'going to victimize a woman as soon as he has the opportunity'. In fact, the overwhelming majority of men with these kinds of recurring, sexually sadistic thoughts never act on their fantasies in a criminal manner. Instead, they generally find ways of coping with their sexual thoughts and urges in other, non-criminal ways and non-violent ways, as did Mr. Valle.... Despite government assertions that Mr. Valle was, in effect, on the verge of acting to implement his thoughts through conduct,... not a single fact put forth by the government is more probative of planning and intent than of fantasy, sharing fantasies, and fiction writing. Again, this information... was conveyed to the Government on January 14, 2013, and Mr. Jackson, the Assistant US Attorney who gave the rebuttal summation, acknowledged being familiar with it and my literature (Tr. 161-62).


    (For more on the government's improper rebuttal summation, please refer to the New Trial Motion and the New Trial Motion Reply Memorandum.