if they had a defense. They were confronted. That was their opportunity to give all these defenses.” He then implied that defense counsel would fabricate new explanations for their clients’ behavior that their clients did not offer a year earlier and that the new explanations were lies. The defense objected on the ground that Lassar’s statements punished the defendants for invoking their Fifth Amendment right not to testify. The district court agreed, finding Lassar’s closing to be improper under the standard announced in United States v. Cotnam, 88 F.3d 487, 497 (7th Cir.1996). Judge Manning strongly rebuked the government for this error, but ultimately found the remarks to be harmless. Cf. id. at 499-500 (applying harmless error review); Rodriguez v. Peters, 63 F.3d at 562 (<HOLDING>). She instructed the jury to disregard the
holding that prosecutors comment on defendants failure to testify constituted plain error affecting the defendants substantial rights recognizing that the fifth amendment forbids comment by the prosecution on a defendants failure to testify holding that comment by prosecutor in closing argument that defense counsel did not produce evidence of the defendants innocence was not a comment on the defendants failure to testify holding that defendant suffered no prejudice from allegedly improper comment on defendants refusal to testify holding the prosecutors statements were not an inappropriate comment on the defendants failure to testify but rather a comment on the defendants failure to present convincing evidence to support his defense