Background
A jury convicted Jack Benson Flanders of engaging in illicit sexual conduct with a minor while living in a foreign country, in violation of 18 U.S.C. § 2423(c) and (e). The district court calculated a Sentencing Guidelines range of 210 to 262 months and imposed a downward-variant sentence of 198 months in prison, followed by five years of supervised release.
On appeal, Flanders argued that the prosecutor deprived him of a fair trial by urging jurors during closing argument to “do the right thing” and find him guilty. He also challenged an enhancement under USSG § 2G1.3(b)(2)(B) for unduly influencing a minor, arguing that the district court inadequately explained its ruling and, alternatively, improperly relied on the Guideline’s commentary.
The Court’s Holding
The Fourth Circuit held that the prosecutor’s “do the right thing” statement was improper but did not violate Flanders’s due-process rights. Because Flanders had not objected at trial, the court reviewed for plain error. It concluded that the isolated remark, made after a lengthy summary of the evidence, was unlikely to mislead or distract the jury; the government presented extensive victim testimony and corroborating evidence; and the district court instructed jurors that attorneys’ statements were not evidence.
The court did not resolve the merits of Flanders’s Guidelines objections because any assumed error was harmless. The district court had expressly stated that it would impose the same 198-month sentence as an alternative variance under the 18 U.S.C. § 3553(a) factors, and that sentence fell within the range that would have applied if Flanders’s objection had been sustained.
The Fourth Circuit further held that the sentence was substantively reasonable. The district court appropriately considered the seriousness of the offense and Flanders’s undue influence over the minor while also acknowledging his military service and lack of criminal history. The appellate court therefore affirmed the judgment.
Key Takeaways
- A prosecutor’s appeal to jurors to “do the right thing” was improper, but the single brief remark did not render the trial fundamentally unfair under plain-error review.
- Strong evidence, the isolated nature of the remark, and an instruction that attorney arguments are not evidence supported affirmance of the conviction.
- An assumed Guidelines error was harmless because the district court unequivocally announced the same alternative sentence and that sentence was substantively reasonable under the lower hypothetical range.
Why It Matters
The unpublished decision illustrates that an improper prosecutorial remark does not automatically require reversal, particularly when no contemporaneous objection was made and the record contains strong evidence of guilt and appropriate jury instructions.
It also underscores the value of an explicit alternative-variance explanation at sentencing. When a district court clearly states that the § 3553(a) factors independently justify the same sentence, an appellate court may affirm without deciding a disputed Guidelines issue, provided the alternative sentence is substantively reasonable.