Judicial Estoppel Argument Suggested by COA

U.S. v. Abo-Seba, 2008 WL 565443 (3/3/08) (unpub'd) - The 10th suggests an approach that might be helpful in some cases. It noted the defendant could have argued the government was judicially estopped from arguing the defendant's testimony did not raise self-defense because at sentencing the government argued the defendant should get an obstruction of justice enhancement, on the grounds that if he had been believed the jury would have acquitted him based on self-defense. See New Hampshire v. Maine, 532 U.S. 742, 749 (2001). But the defendant did not argue estoppel.

The 10th held the government argued improperly in closing when it misstated facts, including that the defendant falsely testified the guards swung a chair at him, when there was no such testimony even close to that. But the error did not meet the plain error reversal test.