Government Can’t Waive First Closing Argument and Keep Rebuttal

US v Smith: Smith went to trial on two charges of possession of meth with intent to distribute arising from two separate incidents a month apart – the first involved just a “detectable” amount of meth, while the second charged more than 50 grams were involved. After the presentation of evidence, the Government stated that it only wanted to make a single closing argument in rebuttal to Smith’s. Smith objected, arguing that if the Government wanted to give up its initial closing argument it must also forfeit its rebuttal. The district court disagreed and granted the Government’s wish. During his closing argument Smith conceded he possessed the meth, but argued that he lacked the intent to distributed it, the larger second amount having been the result of buying in bulk. Smith was convicted of only simple possession on the first count, but possession with intent on the second.

On appeal, the Fourth Circuit affirmed Smith’s convictions. Relying on Rule 29.1 of the Rules of Criminal Procedure, the court concluded that the district court erred by allowing the Government to waive its initial closing argument while retaining its rebuttal. The rules is “clear as to how closing arguments shall proceed, and it thus cabins the district court’s latitude in a discrete but important way” that “provides each side in a criminal case with a meaningful opportunity to rebut the other.” However, in this case the error was harmless, as Smith could not show any prejudice from the district court’s decision. In particular, the court noted that Smith “never asked the district court for the opportunity to make a sur-rebuttal.” The court also rejected arguments that Smith’s case should have been dismiss due to the improper designation of an Acting Attorney General during his case and that a police officer’s testimony about tools of the drug trade was improperly admitted.