Telling Jury to Convict "To End Cycle of Violence" Improper But Not Plain Error

United States v. Taylor, No. 06-1449 (10th Cir. Jan. 29, 2008) (published): The Tenth Circuit declines to find plain error even though it finds that a prosecutor's remark in his opening statements in Mr. Taylor's trial were inappropriate. Mr. Taylor was on trial for assault based on a fight he instigated on a reservation. In opening, the prosecutor urged the jury to find Mr. Taylor guilty in order "to end the cycle of violence" on the reservation. Mr. Taylor's counsel objected and the court issued a curative instruction, telling the jury that the statements of counsel were not evidence, etc. No further objection or other expression of dissatisfaction was made. After being found guilty, Mr. Taylor appealed, arguing that the curative instruction was insufficient to cure the prejudice from the statement. The government conceded at oral argument that the remark was inappropriate. The Court first determined that its standard of review was plain error because the defendant did not tell the trial court it was unhappy with the curative effect of the instruction. There was no plain error because the jury was otherwise properly instructed and there was no indication that the jury did not follow the instructions. Judge Briscoe concurred in the result, but would have applied a de novo standard of review to whether the prosecutor's remark was prejudicial.