In the 

United States Court of Appeals 

For the Seventh Circuit ____________________

No. 14‐2325

UNITED STATES OF AMERICA,

Plaintiff‐Appellee,

v.

MICHAEL FLOURNOY,

Defendant‐Appellant.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Western Division.

No. 3:12‐cr‐50044 — Frederick J. Kapala, Judge.

____________________

ARGUED SEPTEMBER 15, 2016 — DECIDED NOVEMBER 23, 2016

____________________

Before FLAUM, MANION, and HAMILTON, Circuit Judges.

MANION, Circuit Judge. Following a jury trial, Michael

Flournoy was convicted of one count of conspiring to possess

cocaine and one count of attempting to possess cocaine.

Flournoy appeals, claiming he is entitled to a new trial be‐

cause the prosecutor made inappropriate comments during

closing argument and because the government presented tes‐

timony from a cooperating witness that conflicted with that
2 No. 14‐2325

witness’s plea agreement. Flournoy also claims that the dis‐

trict court erred in adding several discretionary conditions to

the terms of his supervised release without explanation. We

affirm Flournoy’s conviction, but remand for resentencing.  

I.

In July 2012, the defendant, Michael Flournoy, met Jose

Sanabria. During their first meeting, Flournoy discussed hir‐

ing Sanabria to do some construction work, but later Flournoy

expressed interest in buying cocaine and heroin and offered

to pay Jose a finder’s fee if he found a source. A couple of days

later, Jose told Flournoy that his brother, Cesar Sanabria,

could help him get cocaine.  

On July 27, 2012, Jose met with Flournoy and Flournoy

showed Jose the money ($186,000) he intended to use to pur‐

chase the drugs. A few days later, on July 30, 2012, Jose told

Flournoy that the supplier was ready and they agreed to meet

at Cesar’s apartment. There the three counted the buy money

and Flournoy put it in the trunk of his silver Honda. Flournoy,

Jose, and Cesar, along with Cesar’s girlfriend, Jovita, drove

from Chicago to Rockford for the planned cocaine deal. Un‐

fortunately for them, they did not know that the supplier was

an undercover officer.

That undercover officer, Bob Juanez, had started talking

with Cesar about a week earlier about supplying cocaine. In a

recorded conversation, Cesar and Agent Juanez discussed Ce‐

sar selling marijuana to Agent Juanez and Agent Juanez sell‐

ing cocaine to Cesar. Following several more recorded calls,

Cesar agreed to buy six kilograms of cocaine from Agent

Juanez.  
No. 14‐2325 3

Returning to July 30, 2012: Cesar and Jovita drove to Rock‐

ford, Illinois, in a Chevrolet Tahoe. Flournoy and Jose fol‐

lowed in Flournoy’s silver Honda. According to Cesar, the

money was in the trunk of the Honda. Agent Juanez met Ce‐

sar at a Mobil gas station and then they drove to a Holiday

Inn, followed by Flournoy and Jose.

At the Holiday Inn, Cesar briefly spoke with Agent Juanez

inside the agent’s pickup truck. Cesar then exited the truck

and got in Flournoy’s Honda before returning to the pickup

truck. At that point, Agent Juanez called his partner, Detec‐

tive Barrios, who was posing as his wife, and she drove by the

pickup truck and showed Cesar an ice cooler containing what

appeared to be cocaine.

In the meantime, ATF Special Agent John Richardson and

Winnebago County Sheriff’s Deputy Kyle Boomer were

watching the drug deal go down from inside a surveillance

van. Special Agent Richardson testified that he saw Flournoy

go to the trunk of the silver Honda, get out a black bag and

put green‐wrapped bundles in the bag and then place the

black bag in the back seat of the Honda. After this everyone

relocated to a Wal‐Mart parking lot. At this point, Flournoy

exited the Honda with the black bag containing the buy

money and dumped the money into the undercover agent’s

pickup truck. Agent Juanez then pretended to call his wife to

instruct her to bring over the cocaine, but that was really the

arrest signal. Officers then arrested Flournoy, Cesar, and Jose.

The government charged Flournoy, Cesar, and Jose with

conspiring to possess with intent to distribute six kilograms

of cocaine and attempting to possess cocaine, in violation of

21 U.S.C. § 846. That same day, from jail, Flournoy called his

wife and told her to move a jack from their garage into the
4 No. 14‐2325

alley for a scrap salvager to remove. FBI agents went to the

Flournoys’ home and found in the alley a drug press—a piece

of hydraulic equipment used to package drugs. A DEA chem‐

ist tested the filter of the press and obtained positive results

for the presence of both heroin and cocaine.  

Cesar and Jose eventually both pleaded guilty to the

charges. Jose testified at Flournoy’s trial, but Cesar did not.

During trial, Jose testified as laid out above. Of significance

for this appeal, Jose testified that Flournoy had moved the

black bag with the buy money from the Honda trunk to the

inside of the car. However, Jose’s plea agreement stated “[t]he

defendant pulled out bundles of cash from the trunk of the

Honda, put the cash into a duffle bag, and returned the bag to

the trunk.” During the Rule 11 colloquy, the prosecutor

quoted that statement from the plea agreement and Jose, un‐

der oath, stated it was correct. Cesar’s plea agreement simi‐

larly identified Jose as the individual who had retrieved the

money from the trunk of the Honda. While the government

had provided the plea agreements to Flournoy’s attorney, the

attorney did not cross‐examine Jose on this inconsistency dur‐

ing Flournoy’s trial.  

During closing argument, Flournoy’s attorney repeatedly

commented upon the government’s failure to call certain wit‐

nesses. For instance, his attorney argued: “Yet you sit here to‐

day never having heard a peep from Deputy Boomer, Deputy

Boomer not coming in to tell you anything regarding this in‐

vestigation or to support and corroborate what Agent Rich‐

ardson said. Just gone. Not brought in.” He continued: “You

have to see and ask whether or not that witness is somebody

that should be brought in, somebody that you should hear

from to support.” Later his attorney stressed this point again,
No. 14‐2325 5

stating: “The government had the job to present you with all

of the relevant evidence, and they failed to do that. The[y]

failed to do that from bringing forth officers that were leading

the investigation.”

In its closing argument, the prosecutor responded by stat‐

ing: “Now, the government has the burden, but ladies and

gentlemen, the defense can call witnesses too, if they want.”

Flournoy’s attorney objected, stating that “a defendant has an

absolute right not to testify or present evidence.” Following

arguments outside the jury’s presence, the district court over‐

ruled the objection. After the jury returned, the district court

read the following instruction to the jury, “A defendant has

an absolute right not to testify or present evidence. You may

not consider in any way the fact that the defendant did not

testify or present evidence. You should not even discuss it in

your deliberations.”  

The prosecutor then returned to its closing argument, stat‐

ing:

As I indicated, the burden is on the United States. We

accept that burden. The defense has no, no obligation

to present testimony in any form. However, they do

have the same subpoena powers as the United States,

and if they wanted to subpoena in and to have testify

surveillance agents, telephone records person, or any‐

body else, they could have done that if they had

wanted to, if they had thought it would have been ap‐

propriate or helpful. Granted, they don’t have the bur‐

den to do so, but they do have the power to do so.
6 No. 14‐2325

Without objection, the prosecutor also stated:

Ladies and gentlemen, you’re here as a jury be‐

cause we don’t try people based upon hiding the ball.

We try people based upon the facts. Not what ifs, not

maybes, not could‐have‐beens. The United States

would not bring a case based upon that because it

wouldn’t work. We bring cases built upon facts, facts

adduced by testimony and by witnesses and by exhib‐

its, and that’s what you need to focus on.

Following deliberations, a jury convicted Flournoy on all

counts. The district court then sentenced him to 204 months’

imprisonment, followed by concurrent terms of five years’ su‐

pervised release. In addition to the mandatory conditions of

supervised release, the district court imposed several addi‐

tional discretionary conditions of release. Flournoy filed a

motion for a new trial, arguing the evidence was insufficient

to support his conviction, that the government’s closing argu‐

ment was improper, and that the government knowingly

used perjured testimony. The district court denied the motion

for a new trial. Flournoy appeals.

II.

A. Motion for a New Trial

On appeal, Flournoy argues that the district court erred in

denying his motion for a new trial under Federal Rule of

Criminal Procedure 33. That rule provides that a trial court

“may vacate any judgment and grant a new trial if the interest

of justice so requires.” Fed. R. Crim. P. 33(a). This court re‐

views a district court’s denial of a motion for a new trial under

Rule 33 for an abuse of discretion. United States v. Kuzniar, 881

F.2d 466, 470 (7th Cir. 1989).  
No. 14‐2325 7

In support of his argument that he is entitled to a new trial,

Flournoy asserts first that prosecutorial misconduct deprived

him of his due process rights to a fair trial. When considering

allegations of prosecutorial misconduct, this court first deter‐

mines whether the prosecutor’s conduct was improper, and,

if so, we must evaluate the conduct “in light of the entire rec‐

ord” to determine if it deprived the defendant of a fair trial.

United States v. Smith, 674 F.3d 722, 728 (7th Cir. 2012).  

Flournoy’s claim of prosecutorial misconduct focuses on

two comments made by the government during closing argu‐

ment. First, he maintains the prosecutor engaged in miscon‐

duct by highlighting that Flournoy could call witnesses to tes‐

tify. Flournoy argues that this line of argument wrongly

shifted the burden of proof to Flournoy.  

This argument is misplaced. “[A]s long as it is clear to ju‐

rors that the government carries the burden of proof, the pros‐

ecutor may tell the jury that a defendant has the power to sub‐

poena witnesses.” United States v. Miller, 276 F.3d 370, 374–75

(7th Cir. 2002). In this case, the prosecutor explicitly stated

twice that the government bore the burden of proving

Flournoy’s guilt. The prosecutor also stressed that “defense

has no, no obligation to present testimony in any form.” Fur‐

ther, in the midst of the government’s closing argument, the

district court interjected and instructed the jury: “A defendant

has an absolute right not to testify or present evidence. You

may not consider in any way the fact that the defendant did

not testify or present evidence. You should not even discuss

it in your deliberations.” “We presume that juries follow in‐

structions.” Id. at 375. Further, “[i]n a case like this where the

defendant himself has broached the subject of missing wit‐
8 No. 14‐2325

nesses by asking the jury to in a sense penalize the govern‐

ment for its failure to produce the agents, the prosecutor’s ar‐

gument in response clearly was proper.” United States v. King,

150 F.3d 644, 649 (7th Cir. 1998). Given the totality of these

circumstances, we conclude that the district court did not

abuse its discretion in allowing the prosecutor’s argument.  

Flournoy also claims the prosecutor engaged in miscon‐

duct by improperly vouching for its witnesses by stating:

[W]e don’t try people based upon hiding the ball.

We try people based upon the facts. Not what ifs, not

maybes, not could have beens. The United States

would not bring a case based upon that because it

wouldn’t work. We bring cases built upon facts, facts

adduced by testimony and by witnesses and by exhib‐

its, and that’s what you need to focus on.

Flournoy did not object to this argument, so his claim of

prosecutorial misconduct is reviewed for plain error. Id. at

869–70. To establish plain error, Flournoy must show the im‐

proper vouching was “obvious, affected the defendant’s sub‐

stantial rights to such an extent that he would not otherwise

have been convicted, and seriously affected the fairness, in‐

tegrity, or public reputation of the judicial proceedings.”

United States v. Alexander, 741 F.3d 866, 869 (7th Cir. 2014). As

we explained in Alexander, “[t]hat is a lengthy way of saying

that we will not grant [the defendant] a new trial unless there

was an error so egregious that the district judge should have

stepped in even though no objection was made.” Id. at 870

(footnote omitted).

“We have recognized two types of impermissible vouch‐

ing: ‘a prosecutor may not express her personal belief in the
No. 14‐2325 9

truthfulness of a witness, and a prosecutor may not imply that

facts not before the jury lend a witness credibility.’” United

States v. Wolfe, 701 F.3d 1206, 1212 (7th Cir. 2012) (quoting

United States v. Alviar, 573 F.3d 526, 542 (7th Cir. 2009)).

Flournoy does not explain exactly how the prosecutor’s com‐

ments constitute improper vouching, but he seems to be say‐

ing that the prosecutor’s comment concern facts not presented

to the jury. Arguably, the government’s comments could be

viewed as vouching for facts not presented to the jury—that

the government had a practice of only prosecuting cases

where sufficient evidence exists. But here the prosecutor im‐

mediately followed the comments by stressing that the “facts

[are] adduced by testimony and by witnesses and by exhibits,

and that’s what you need to focus on.” Thus, in context, the

prosecutor’s argument is more properly viewed as a comment

on the facts the government presented at trial. At most, then,

the prosecutor’s argument edges toward borderline inappro‐

priate, but surely not one “so egregious that the district judge

should have stepped in even though no objection was made.”

Alexander, 741 F.3d at 870; see also id. at 871 (“[T]he fact that

the line is so fine ... emphasizes the need for a timely objec‐

tion.”). Accordingly, there was no plain error in the prosecu‐

tor’s closing argument.

Finally, Flournoy claims he is entitled to a new trial be‐

cause Jose’s testimony conflicted with the facts to which Jose

admitted earlier in pleading guilty. Specifically, at Flournoy’s

trial Jose testified that on the night of the drug deal Flournoy

went to the trunk of the Honda and removed a bag containing

the buy money, placing the bag inside the car. Conversely,

Jose’s plea agreement stated that Jose removed the money

from the trunk of the car. Cesar’s plea agreement likewise

identified Jose as the individual responsible for moving the
10 No. 14‐2325

buy money from the trunk into the back of the Honda. And in

pleading guilty, Jose and Cesar admitted to the conduct set

forth in the plea agreement.  

Initially we note that on appeal Flournoy does not claim

that Jose testified falsely at his trial; rather, Flournoy argues

that the government violated his due process rights by pre‐

senting inconsistent theories of guilt at his trial and in the

cases presented against his co‐defendants, Jose and Cesar,

who pleaded guilty. While this court has noted that the cir‐

cuits are split on whether such conduct violates the Due Pro‐

cess Clause, this court has not yet taken a position on the is‐

sue. United States v. Presbitero, 569 F.3d 691, 702 (7th Cir. 2009).

See also Bradshaw v. Stumpf, 545 U.S. 175, 190 (2005) (Thomas,

J., concurring) (“This Court has never hinted, much less held,

that the Due Process Clause prevents a State from prosecuting

defendants based on inconsistent theories.”). We need not do

so today either because, even if this theory were viable,

Flournoy would not be entitled to a new trial.

A defendant is entitled to a new trial only if there is a rea‐

sonable possibility that the trial error had a prejudicial effect

on the jury’s verdict. United States v. Berry, 92 F.3d 597, 600

(7th Cir. 1996). There is no such possibility in this case. First,

there is no indication that Jose’s testimony at Flournoy’s trial

was false, as opposed to the language in the plea agreements.

That was the government’s position below when it explained

the discrepancy to the district court: the prosecutor explained

that it had drafted Flournoy’s plea agreement first, believing

he would be the one to plead guilty, and then used that plea

agreement as a template for Jose and Cesar’s plea agreements.

However, in doing so, the government failed to change the

language to identify Flournoy as the individual who moved
No. 14‐2325 11

the drugs from the trunk to the back of the car.1At best, then,

the conflict could be used to impeach Jose’s testimony.

Flournoy’s attorney, however, did not impeach Jose on this

basis even though the government had provided Jose and Ce‐

sar’s plea agreements. It is unclear whether that was a strate‐

gic decision (his attorney did not want to highlight Jose and

the other agent’s testimony), or whether his attorney did not

notice the discrepancy. But either way, it does not translate

into a Due Process violation. Further, there is no possibility

that impeaching Jose based on his prior guilty plea would

have a prejudicial effect on the jury’s verdict. At trial, Agent

Richardson testified that while conducting surveillance, he

saw Flournoy get out of his car, look around, go to the trunk,

look around again, open the trunk, and then put some green‐

wrapped bundles into the black bag. And it is undisputed that

Flournoy is the individual who dumped the buy money from

the black bag into Agent Juanez’s pickup truck. The other ev‐

idence presented was also overwhelming. Beyond the testi‐

mony of his co‐conspirators that clearly identified Flournoy

as the buyer, other evidence established that: Flournoy was

the person who drove the car that had nearly $200,000 in cash;

when Agent Juanez wanted to see the money, it was Flournoy

who took the money from the car and brought it to Agent

Juanez’s truck; and after his arrest, Flournoy called his wife

instructing her to move the drug press (which tested positive

                                                 

1The government notes that at all other times during the proceedings

against Flournoy, it took the position that Flournoy—and not Jose—had

removed the buy money from the trunk, pointing to the criminal com‐

plaint, the government’s response to the defendant’s motion to suppress,

and the government’s post‐evidentiary hearing memorandum regarding

the defendant’s motion to suppress.  
12 No. 14‐2325

for cocaine and heroin residue) from their garage to the alley.

Given the totality of the evidence, there is no reasonable pos‐

sibility that there was a prejudicial effect on the jury’s verdict.

Accordingly, the district court did not abuse its discretion in

denying Flournoy a new trial.

B. Supervised Release

Flournoy also argues on appeal that the district court erred

in sentencing him to a five‐year term of supervised release

that included discretionary conditions of release, because the

district court did not explain its rationale for imposing those

terms. This court has held that it is reversible error for a dis‐

trict court to impose discretionary conditions of supervised

release without considering the sentencing factors set forth in

18 U.S.C. § 3583(d) and 18 U.S.C. § 3553(a), and without stat‐

ing the reasons for selecting the specific conditions imposed.

United States v. Thompson, 777 F.3d 368, 377–78 (7th Cir. 2015).

The government concedes the error and that remand for re‐

sentencing is appropriate. That was our holding in Thompson

(which was not yet decided at the time of Flournoy’s sentenc‐

ing). Accordingly, we remand for resentencing.  

III.

A jury heard extensive evidence establishing that

Flournoy conspired with Cesar and Jose Sanabria to possess

six kilograms of cocaine with the intent to distribute, and at‐

tempted to possess with intent to distribute the cocaine. While

in pleading guilty, Jose indicated that he—and not

Flournoy—had removed the buy money from the trunk of the

Honda, there was no evidence that Jose lied during his testi‐

mony at Flournoy’s trial. Nor is there a reasonable probability
No. 14‐2325 13

that the discrepancy affected the jury verdict. The prosecu‐

tor’s comments during closing argument also were not im‐

proper. To the extent one may have been borderline imper‐

missible vouching, it did not impact the outcome of the trial.

Accordingly, the district court did not abuse its discretion in

denying Flournoy’s motion for a new trial and we AFFIRM

Flournoy’s conviction. However, the district court did not ar‐

ticulate its reasons for imposing discretionary conditions of

supervised release. Therefore, we REMAND for resentencing.