In the
United States Court of Appeals
For the Seventh Circuit
No. 10-1099
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
P HILLIP C. L ATHROP,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 08-CR-124—Barbara B. Crabb, Judge.
A RGUED D ECEMBER 7, 2010—D ECIDED M ARCH 2, 2011
Before R IPPLE, K ANNE, and SYKES, Circuit Judges.
K ANNE, Circuit Judge. Phillip Lathrop owned Player’s
Bar and Grill, a sports bar located in Hayward, Wisconsin.
Confronted with dwindling profits and escalating in-
surance premiums, Lathrop paid an employee to torch
the bar for the insurance proceeds. His employee—loyal
only to a point—eventually confessed and told police
of Lathrop’s involvement. Lathrop was ultimately
found guilty of one count of arson, four counts of mail
2 No. 10-1099
fraud, and one count of criminal forfeiture. After the
district court denied Lathrop’s motion for a new trial, he
appealed his conviction, arguing that his trial counsel
rendered ineffective assistance and that the govern-
ment engaged in misconduct when it made improper
remarks during its closing argument. Because trial
counsel was constitutionally competent and the govern-
ment’s various remarks were either proper or not so
prejudicial as to warrant a new trial, we affirm Lathrop’s
conviction.
I. B ACKGROUND
Business was not exactly booming at Player’s Bar and
Grill, a bar Lathrop owned and operated in Hayward,
Wisconsin. Between 2002 and 2003, unruly patrons
began starting fights in the bar, scaring off Player’s more
peaceful clientele. Believing that his Native American
customers were the primary instigators, Lathrop changed
his identification policy: he no longer accepted tribal
identifications for service, instead taking only state iden-
tifications. This change upset a number of his Native
American customers. One of these customers—Joe
Morey—made threats against the bar, going so far as
to state that if Lathrop didn’t make a change, Lathrop
wouldn’t have a bar left to turn him away from.
By mid-2003, Player’s business was still nothing to write
home about. Lathrop had already tried—unsuccess-
fully—to sell the bar. Faced with diminishing profits,
Lathrop decided to have the bar torched for the insurance
money. To that end, Lathrop met with bar employee
No. 10-1099 3
David Maki, who routinely performed odd tasks for
Lathrop in exchange for money and drugs. Lathrop told
Maki of the bar’s woes and offered him $5000 and some
cocaine if he would burn Player’s to the ground. Maki
agreed.
On the night of August 15, 2003, Maki and Lathrop
met at Lathrop’s home. Lathrop’s insurance policy on
the bar with Capitol Indemnity was set to expire soon,
and Lathrop told Maki that the fire had to happen now.
Lathrop directed Maki to break into the bar through the
game room door, remove Tiki torches from the bar’s patio,
and use the torch fuel to set a fire in the attic. Lathrop
informed Maki that a fire in the attic would cause the
roof to collapse, obliterating the bar (and his financial
woes). Maki was also ordered to break into the gambling
machines, to make the arson look like a robbery, and to
remove the videotape from the bar’s security camera
recorder to cover his tracks. As a down payment for
Maki’s performance, Lathrop gave him two eight balls
of cocaine.
In the wee hours of August 16, 2003, Maki broke into
Player’s and set the fire as instructed. By the time emer-
gency services responded, there was little left of the bar.
Lathrop arrived at the scene shortly thereafter and acted
hysterical at the sight of the bar’s remains. He informed
police that he had no insurance on the bar, began
hyperventilating, and was sent to the hospital for evalua-
tion.
Police soon discovered traces of an accelerant in the
rubble and ruled the fire an arson. Analysis showed that
4 No. 10-1099
the accelerant was the same type of fuel used in
Player’s tiki torches. Mike Van Keuren, a state arson
investigator, was assigned to investigate the fire.
About a week after the fire, Lathrop and Maki met to
debrief. Maki told Lathrop that things went as planned
save for one wrinkle: Maki ran out of time and did not
break into the gambling machines. He also told Lathrop
that he still had the videotape from the bar’s security
cameras. Lathrop chastised him for these oversights
and told him to destroy the tape immediately. All in all,
however, Lathrop did not think Maki’s slip-ups were
worthy of serious concern—he told Maki that he faked
a heart attack at the scene and that his theatrics con-
vinced the police. The two shared a laugh about
Lathrop’s act. Shortly thereafter, Lathrop filed a claim
with Capitol Insurance, a claim that was later paid out.
As the arson investigation continued, Lathrop evidently
became concerned about his ability to get away with the
scheme. He decided to try to divert attention away from
himself and Maki. Two weeks after the fire, Lathrop
met with Maki and another bar regular, Tom Crowley.
Lathrop offered $5000 to Crowley if he would tell
police that he heard Morey boast about paying someone
to set fire to Player’s. Crowley declined.
One month after the fire, Investigator Van Keuren
contacted Maki and set up an interview. Shortly
before the interview, Lathrop and Maki again met.
Still attempting to implicate Morey, Lathrop asked Maki
to tell the investigator that Morey had unsuccessfully
attempted to hire Maki to burn down the bar before
the fire. Maki agreed.
No. 10-1099 5
On October 1, 2003—the day of Maki’s interview with
Van Keuren—Lathrop and Maki had yet another sit-down.
This time, another bar regular, Ryan Magnuson, was
present. Magnuson observed the two openly discuss the
arson. Lathrop then asked Magnuson to go with Maki
and back up his lie about Morey. While Magnuson
first agreed, he got cold feet at the interview and said
nothing. Maki, however, stuck to the plan during his
discussion with Van Keuren and claimed Morey tried
to hire him to burn down the bar.
Morey did not take being falsely implicated lying
down. In June 2004, Morey and four of his associates
confronted Maki about his statements to police. Maki
and Morey went on a long walk, during which Morey
told Maki that he was upset about Maki’s statements.
Maki eventually told Morey that he set the fire and ad-
mitted that Lathrop had hired him to do so. Maki also
told Morey that he would eventually turn himself in
to police.
In early August 2007, Maki confessed to police about
his role in the insurance scheme. He told officers that
he had committed the arson and that Lathrop had paid
him to do so. He admitted that his statement to Investiga-
tor Van Keuren about Morey was a lie Lathrop concocted
to divert attention away from himself and Maki. He went
on to state that Lathrop had faked chest pain when he
arrived at the scene of the fire to throw police off.
In August 2008, Lathrop was charged with one count of
arson, four counts of mail fraud, and one count of criminal
forfeiture. Four days before trial, Lathrop’s attorney,
6 No. 10-1099
Chris Van Wagner, appeared for the final pretrial hearing
and moved for a continuance. Van Wagner claimed that
he had only recently received materials from the govern-
ment that gave him notice of the government’s theory
that Lathrop had the bar torched because business was
slow. The court initially denied the motion, but it later
granted a brief continuance when Van Wagner stated
he had not yet done what was ethically necessary to
prepare for trial.
Trial began on February 23, 2009. At voir dire, all of the
jurors were asked whether they were related to anyone
affiliated with the insurance industry. Some prospective
jurors responded affirmatively and were dismissed. On
the following day, one juror, Paul Ritschard, advised the
court that his brother worked for Capitol Indemnity (the
insurer of the bar). The court advised Van Wagner of
this. After briefly discussing the matter with Lathrop,
Van Wagner told the court that he would need to give
the manner “some thought” and asked the court to
bring it up again later.
Over the course of five days, the government presented
evidence regarding the arson and the insurance scheme.
The government showed that the bar’s profits had de-
creased over the course of 2002 and 2003, that Lathrop
had unsuccessfully tried to sell the bar during that
period, that his insurance premium was set to increase
mere days before the fire, and that his policy expired soon
after the bar was burned down. The government also
proffered testimony from investigators that the fire was
arson and from Maki and others regarding Lathrop’s
No. 10-1099 7
involvement in the scheme. The defense provided
evidence that the bar’s business was stable, that Lathrop
had obtained other insurance which lowered his premi-
ums, that Maki was lying, and that Morey was a viable
alternative suspect.
During its closing argument, the government high-
lighted Lathrop’s motive for having the bar torched—
essentially, business was bad and Lathrop’s premiums
were skyrocketing. The government went on to bolster
Maki’s credibility, observing that Maki had made state-
ments to others regarding Lathrop’s acts consistent
with his testimony at trial. The government also noted
that Maki confessed in part to fulfill a promise to his
dying mother. Lathrop objected to this part of the gov-
ernment’s closing, but the objection was overruled.
Prior to sending the jury out for deliberation, the
district court again reminded Van Wagner at sidebar
of juror Ritschard’s possible conflict of interest. Van
Wagner told the court that he had forgotten about
the matter and wanted to keep the juror on. On
February 27, 2009, the jury, with Ritschard as foreman,
convicted Lathrop on all counts. After the verdict, the
court reprimanded Van Wagner for his earlier pretrial
continuance request.
On June 3, 2009, after being appointed new counsel,
Lathrop filed a motion for a new trial, arguing that
Van Wagner’s various errors constituted ineffective
assistance of counsel. The district court denied the
motion after an evidentiary hearing and ultimately sen-
tenced Lathrop to 84 months’ imprisonment. Lathrop
timely appealed his conviction.
8 No. 10-1099
II. A NALYSIS
On appeal, Lathrop again claims that his trial counsel
rendered ineffective assistance based on a litany of trial
errors. He also claims that several of the government’s
remarks during its closing argument were improper. In
sum, Lathrop presents nearly a dozen sources of error,
effectively ignoring our advice that the equivalent of a
laser light show of claims may be so distracting as to
disturb our vision and confound our analysis. Cf. United
States v. Pearson, 340 F.3d 459, 464 (7th Cir. 2003) (the
“kitchen-sink” metaphor); Howard v. Gramley, 225 F.3d
784, 791 (7th Cir. 2000) (more discussion of the kitchen-
sink approach); Gagan v. Am. Cablevision, Inc., 77 F.3d
951, 955 (7th Cir. 1996) (advising appellants to use a
rifle approach to briefing rather than bringing “their
shotgun to Chicago”); United States v. Levy, 741 F.2d
915, 924 (7th Cir. 1984) (again with the dreaded shotgun
tactic). Nevertheless, we forge on, considering each
of Lathrop’s many claims in turn.
A. Ineffective Assistance of Counsel
Lathrop first complains that Van Wagner rendered
ineffective assistance throughout the guilt phase of his
trial. He claims that trial counsel did not obtain
adequate assurances of impartiality from an allegedly
biased juror, neglected to investigate evidence and testi-
mony that would show Lathrop’s innocence, and failed
to call crucial witnesses in his defense.
We typically do not review ineffective assistance of
counsel claims on direct appeal. United States v. Best,
No. 10-1099 9
426 F.3d 937, 944 (7th Cir. 2005). That said, we have
recognized an exception to this rule for cases in which
the defendant’s claim “can be fully evaluated only on
the record below,” without resort to extrinsic evidence.
United States v. Holman, 314 F.3d 837, 839 (7th Cir. 2002).
Lathrop’s case represents just such an exception: he
moved for a new trial on ineffective assistance grounds
and the district court conducted an evidentiary hearing
regarding counsel’s performance. The record thus suffi-
ciently developed, we may proceed to the merits of
Lathrop’s ineffective assistance claims.
To prevail on an ineffective assistance of counsel claim,
Lathrop must show that trial counsel’s performance
was deficient and that the deficient performance preju-
diced his defense. Strickland v. Washington, 466 U.S.
668, 689-92 (1984). Under the procedural posture of this
case, “[w]e review those two questions de novo.” Best, 426
F.3d at 945. We begin with the presumption that
Lathrop’s counsel “rendered adequate assistance and
made all significant decisions in the exercise of reasonable
professional judgment,” Strickland, 466 U.S. at 690, and
we place the onus on Lathrop to defeat this presumption
by showing that counsel’s performance “fell below an
objective standard of reasonableness” based on prevailing
norms of professional conduct, id. at 688. Assuming
Lathrop clears this hurdle, he can establish prejudice
by showing that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694.
We note at the outset that our review of an attor-
ney’s tactical decisions is highly deferential. Johnson v.
10 No. 10-1099
Thurmer, 624 F.3d 786, 792 (7th Cir. 2010). “Trial tactics
are a matter of professional judgment, and . . . we will
not play ‘Monday [or Tuesday] morning quarterback’
when reviewing claims that an attorney rendered con-
stitutionally deficient representation in making decisions
on how to best handle a case.” United States v. Malone,
484 F.3d 916, 920 & n.1 (7th Cir. 2007). In other words,
it is not our task to second-guess counsel’s judgment
and replace it with our own. So long as an attorney articu-
lates a strategic reason for a decision that was sound at
the time it was made, the decision generally “cannot
support a claim of ineffective assistance of counsel.” United
States v. Cieslowski, 410 F.3d 353, 360 (7th Cir. 2005).
Lathrop first argues that his counsel’s failure to obtain
an assurance of impartiality from one juror after the juror
disclosed a possible conflict of interest constituted inef-
fective assistance. It is true that an attorney’s failure to
question jurors regarding possible bias can potentially
constitute deficient performance. See United States v.
Monigan, 128 F.3d 609, 612-13 (7th Cir. 1997). But trial
strategy can also justify an attorney’s decision not to
seek an assurance of impartiality from a juror, even after
a juror has made statements implying possible bias. Cage
v. McCaughtry, 305 F.3d 625, 627 (7th Cir. 2002). So long
as counsel’s reasons for not questioning further were
not “so far off the wall that we can refuse the usual defer-
ence that we give tactical decisions by counsel,” his
performance will not qualify as deficient. Id.
At the evidentiary hearing, Van Wagner laid out his
trial strategy regarding the juror at issue. Van Wagner
No. 10-1099 11
testified that he asked Lathrop about Ritschard after
the possible conflict came to light and that, after their
consultation, Van Wagner decided to keep Ritschard on
without further questioning. According to Van Wagner,
both he and Lathrop liked Ritschard because he was
a sports afficionado who might be sympathetic to
Lathrop (a former sports bar owner). Van Wagner
claimed that he did not seek an assurance of impartiality
from Ritschard because he was concerned that further
questioning would reveal his preference for that juror
and thus lead the government to strike Ritschard. He
delayed informing the court because he didn’t want the
government to inquire further. He was also nervous
about replacing Ritschard with one of the alternates,
who were both unknowns and thus potential liabilities.
Taking Van Wagner’s reasons in sum, we believe the
strategy employed—like the strategy in Cage—was satis-
factory, especially under the forgiving Strickland standard.
As such, this ineffective assistance claim fails for want
of deficient performance.
Lathrop claims that the Sixth Circuit’s decision in
Hughes v. United States, 258 F.3d 453 (6th Cir. 2001), com-
pels a finding of ineffective assistance. In Hughes, the
court held that no strategy could support counsel’s deci-
sion to not strike a juror or forego obtaining an assurance
of impartiality once the juror manifested actual bias;
such a decision was per se ineffective assistance. See id.
at 463. We need not decide whether to adopt this rea-
soning, as the case at bar is dissimilar to Hughes in
one critical respect: there was no actual statement of
bias by a juror here, but only a statement suggesting a
12 No. 10-1099
possible conflict of interest. Even when jurors have gone
so far as to make a statement of implied bias and
no clear assurance of impartiality was subsequently
obtained, we have recognized that a strategy of silence
by counsel could be reasonable. See Cage, 305 F.3d at 627.
Clearly then, silence may be a reasonable strategy when
a juror has not even gone so far as to imply bias, but
has instead merely revealed a potential, attenuated
conflict of interest. Van Wagner had such a reasonable
strategy in this case, vitiating a finding of ineffective
assistance.
Lathrop next complains that counsel was deficient for
not investigating three witnesses—David Maki, Jaclyn
Rohlfing, and Richard Martin 1 —before trial. It is well
recognized that counsel must engage in a reasonable
investigation or come to a defensible decision that a
particular investigation is unnecessary. Strickland, 466
U.S. at 691. When counsel determines that investigation
is unnecessary, his decision “must be directly assessed
for reasonableness in all the circumstances, applying
a heavy measure of deference to counsel’s judgments.” Id.
Under this standard, we find Van Wagner’s conduct
involving Maki constitutionally competent. Lathrop
claimed that Van Wagner was deficient for not inter-
viewing Maki regarding his motive for confessing
(Maki allegedly came clean to honor his recently
1
With one exception, the parties refer to Martin as “John
Martin” in their briefs, yet their citations to the record reflect
that his name was actually “Richard R. Martin.”
No. 10-1099 13
deceased mother) and for not attacking Maki about
his motive at trial. But Van Wagner did try to question
Maki through his investigator, and Maki ignored those
efforts. Van Wagner was convinced that further
attempts would be fruitless, and that judgment was
reasonable given Maki’s already-manifested resistance.
Cf. Brown v. Sternes, 304 F.3d 677, 692 (7th Cir. 2002) (“It
is often times a reasonable exercise of professional judg-
ment to limit or terminate further investigation when
counsel determines that a particular investigation would
be fruitless.”).
Van Wagner’s decision to avoid the “dead mother”
motive at trial was also defensible. Van Wagner was
concerned that any attack on Maki regarding his
mother might backfire and garner Maki sympathy
points with the jury. He also believed that Maki’s state-
ments at trial regarding his motive to confess were not
as strong as they were at the grand jury proceedings, so
he was reasonably fearful that pressing the matter
might result in the grand jury testimony being admitted
into evidence as prior consistent statements. Instead,
Van Wagner opted for a strategy of drawing out the
inconsistencies in Maki’s story regarding the arson—a
reasonable tactic given the circumstances of the case.
Lathrop goes on to claim that Van Wagner was
deficient for failing to arrange pretrial interviews with
Jaclyn Rohlfing and Richard Martin. Even if we were
to assume this conduct was deficient—a highly unlikely
leap given that Lathrop did interview these two
witnesses before they testified—this claim would still
14 No. 10-1099
fail for lack of prejudice. When a petitioner alleges
that counsel’s failure to investigate resulted in inef-
fective assistance, the petitioner has the burden of pro-
viding the court with specific information as to what
the investigation would have produced. Hardamon v.
United States, 319 F.3d 943, 951 (7th Cir. 2003). For these
two witnesses, Lathrop has neglected to tell us
what evidence would have been gleaned from addi-
tional investigation, and his generalized claim that addi-
tional testimony would have made a difference is insuf-
ficient to satisfy his burden.
Lathrop’s final ineffective assistance argument is that
counsel was deficient for not calling two witnesses—
Kevin Mell and Jennifer Rohlfing—at trial. We can dis-
pense with this claim quickly, as counsel investigated
these witnesses enough to discover defects about their
proposed testimony that led him to decide not to call
them during his case in chief. See Best, 426 F.3d at 945
(noting that “[i]f counsel has investigated witnesses
and consciously decided not to call them, the decision
is probably strategic” and generally not subject to re-
view). Van Wagner did not call Mell because he dis-
covered that the tax returns Mell would have relied on
were likely inaccurate, were based on hearsay, and could
be used by the government to show that Lathrop
engaged in tax fraud. Van Wagner did not call Jennifer
Rohlfing based on his observations of her during trial
preparation; he was concerned that she would fall apart
during the government’s cross-examination. Counsel’s
decisions regarding Mell and Jennifer Rohlfing were
reasonable, and thus this claim fails.
No. 10-1099 15
B. Prosecutorial Misconduct
Lathrop next complains that the prosecutor engaged
in misconduct at several points during his closing. “In
reviewing a claim of prosecutorial misconduct, we
consider first whether the challenged remark by the
prosecutor was improper, and second, whether it preju-
diced the defendant.” United States v. Klebig, 600 F.3d
700, 718 (7th Cir. 2009).
Lathrop first claims that the government acted improp-
erly when it knowingly relied on perjured testimony
proffered by Maki during its closing. At trial, Maki
testified that his mother was “the most important person
in [his] life at the time” and that his mother “had just
passed away not too long before” he confessed to po-
lice. Lathrop argues that Maki lied when he made
these statements, as evidence discovered after the trial
showed that Maki’s mother died in January 2003, over
four years before he confessed to police.
For the government to have committed misconduct in
the manner alleged, Lathrop must first show that Maki
perjured himself. “One commits perjury if, while under
oath, he or she gives false testimony concerning a
material matter with a willful intent to provide false
testimony, rather than as a result of confusion, mistake, or
faulty memory.” United States v. White, 240 F.3d 656, 660
(7th Cir. 2001). We are perplexed as to how Maki’s first
statement—that his mother was an important part of
his life—could ever qualify as perjury. Lathrop seems to
argue that Maki’s sentiment could be truthful only if
Maki’s mother was alive at the time that Maki claimed
16 No. 10-1099
she was important to him, but we are fairly sure that
relatives can be important to their kin long after they
have departed. Even if we accept Lathrop’s supposition,
we would still find no perjury. Maki’s statement was in
response to a question involving the time spanning
from 2001 to 2004; during most of that period, Maki’s
mother was indeed alive. Either way, Lathrop has not
shown that Maki’s sentiment regarding his mother was
a lie (a difficult—and cold—burden to shoulder).
Maki’s second statement—that his mother passed away
not long before he confessed—also did not qualify as
perjury. First, his statement is subject to a number of
interpretations. Reasonable parties could disagree about
what time span is too long to qualify as “recent,” especially
when a person is discussing the death of a loved one.
Second, his statement was given in response to the gov-
ernment’s efforts to clarify previous defense questioning
regarding a long, muddled period of time. It is therefore
just as likely that Maki’s statement was the product of
confusion; he could have been trying to indicate that
his mother passed away shortly before the August 2003
arson. Lathrop has failed to show that Maki’s statement
was not the product of confusion, much less that it rose
to the level of willful deceit. With no showing of perjury,
Lathrop has not established that the government acted
improperly when it relied on Maki’s statements.
Lathrop next argues that the government’s remark
that Maki confessed to fulfill “a promise to his dying
mother” during its closing was improper, as Maki’s
mother died long before he confessed. We agree with
No. 10-1099 17
Lathrop that the prosecutor’s remark was improper, as
he misconstrued Maki’s statements regarding the timing
of his mother’s death vis-à-vis his confession. But to
warrant reversal, Lathrop must also show that this
single error robbed him of a fair trial. Klebig, 600 F.3d at
720. To determine the effect of improper remarks on
the fairness of the trial, we look to a number of factors,
including the nature and seriousness of the remarks,
whether the remarks were invited by the defense,
whether the remarks could be rebutted by defense
counsel, whether the district court provided a curative
instruction, and the weight of the evidence against the
defendant. United States v. Bell, 624 F.3d 803, 813 (7th
Cir. 2010); Klebig, 600 F.3d at 720-21.
While it is a close case, we find that these factors
weigh against a finding of prejudice. It is true that
the remarks were neither invited by the defense nor
rebuttable. But we do not believe that the prosecutor’s
remark was so seriously improper as to cause Lathrop
prejudice, as Maki’s testimony made clear to the jury
that his mother had died before he confessed to police.
Moreover, the prosecutor backpedaled from his state-
ment regarding the timing of Maki’s confession after
defense counsel objected. He advised the jury that, if
it remembered Maki’s testimony differently, its recol-
lection controlled. In addition, the district court,
while not striking the prosecutor’s statements, did pro-
vide a cautionary instruction to the jury that the prose-
cutor’s remarks were not evidence and that if the
jury’s recollection of Maki’s testimony was contrary to
the prosecutor’s statement, its recollection won out.
18 No. 10-1099
Finally, we note that there was overwhelming evidence
of Lathrop’s guilt: Maki implicated Lathrop, Maki’s
testimony was corroborated by other witnesses, and
multiple witnesses testified that Lathrop discussed his
role in the arson and went so far as to ask for their help
in implicating another party as the arsonist.2 See United
States v. Alviar, 573 F.3d 526, 543 (7th Cir. 2009) (noting
that overwhelming evidence can eliminate “any lingering
doubt that the prosecutor’s remarks unfairly prejudiced
the jury’s deliberations”). Accordingly, we conclude that
the government’s remark did not render the trial unfair.
The remainder of Lathrop’s prosecutorial misconduct
claims do not warrant extended attention. Lathrop did not
object to the government’s discussion of his insurance
motive or to its assertion that Maki made consistent
statements regarding Lathrop’s involvement “right after”
the arson, and thus our review is for plain error. United
States v. Hills, 618 F.3d 619, 635 (7th Cir. 2010). The gov-
2
Lathrop argues that the district court’s statements during the
evidentiary hearing preclude a finding that there was over-
whelming evidence of Lathrop’s guilt. But the district court’s
statements—that this was “not an open and shut case” and that
“there were a lot of questions in [the district court’s] mind after
the trial was over”—were in reference to Lathrop’s ineffective
assistance claim and the reasons given by counsel for not cross-
examining another possible suspect regarding his alibi. The
statements had nothing to do with the weight of the evi-
dence against Lathrop, and the court went on to hold that trial
counsel’s failure to attack the other suspect’s alibi caused
no prejudice to Lathrop’s defense.
No. 10-1099 19
ernment’s remark that Maki discussed Lathrop’s involve-
ment in the arson scheme “right after” the fire was a
fair inference from the facts, as at least one witness
testified that Maki began discussing the events within
one to two months of the fire and another witness
testified that Maki hinted about the circumstances
one week after the fire. The remarks about Lathrop’s
possible insurance motive were also fair inferences from
facts in evidence, even if weakened by evidence put
forth by the defense regarding Lathrop’s second insurance
policy. In sum, neither statement was improper, much
less so improper as to constitute “a particularly egregious
error that resulted in a miscarriage of justice.” United
States v. Myers, 569 F.3d 794, 800 (7th Cir. 2009).
III. C ONCLUSION
For the foregoing reasons, we A FFIRM Lathrop’s con-
viction.
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