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United States v. Lathrop

United States v. Lathrop

United States Court of Appeals for the Seventh Circuit

December 7, 2010, Argued; March 2, 2011, Decided

No. 10-1099

Opinion

 [*934]  Kanne, Circuit Judge. Phillip Lathrop owned Player's Bar and Grill, a sports bar located in Hayward, Wisconsin. Confronted with dwindling profits and escalating insurance 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 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 government engaged in misconduct when it made improper remarks during its closing argument. Because trial counsel was constitutionally  [**2] competent and the government's various remarks were either proper or not so prejudicial as to warrant a new trial, we affirm Lathrop's conviction.

I. Background

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 identifications. 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—unsuccessfully— 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 David Maki, who routinely performed odd tasks for Lathrop in exchange for money  [**3] 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.

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634 F.3d 931 *; 2011 U.S. App. LEXIS 3961 **

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. PHILLIP C. LATHROP, Defendant-Appellant.

Subsequent History: US Supreme Court certiorari denied by Lathrop v. United States, 565 U.S. 864, 132 S. Ct. 206, 181 L. Ed. 2d 111, 2011 U.S. LEXIS 6039 (Oct. 3, 2011)

Post-conviction proceeding at, Motion granted by United States v. Lathrop, 2012 U.S. Dist. LEXIS 59926 (W.D. Wis., Apr. 30, 2012)

Motion denied by, Certificate of appealability denied United States v. Lathrop, 2013 U.S. Dist. LEXIS 201911 (W.D. Wis., Mar. 13, 2013)

Prior History:  [**1] Appeal from the United States District Court for the Western District of Wisconsin. No. 08-CR-124 Barbara B. Crabb, Judge.

United States v. Lathrop, 2009 U.S. Dist. LEXIS 7356 (W.D. Wis., Jan. 29, 2009)

CORE TERMS

juror, arson, confessed, investigate, remarks, ineffective assistance, ineffective, interview, witnesses, motive, torch, district court, impartiality, questioning, misconduct, assurance, bias, decisions, perjury, tactic

Criminal Law & Procedure, Appeals, Reviewability, General Overview, Counsel, Effective Assistance of Counsel, Reviewability, Trials, Standards of Review, De Novo Review, Ineffective Assistance of Counsel, Tests for Ineffective Assistance of Counsel, Pretrial Proceedings, Prosecutorial Misconduct, Prohibition Against Improper Statements, Tests for Prosecutorial Misconduct, Burdens of Proof, Obstruction of Administration of Justice, Perjury, Elements, Use of False Testimony