Striking the Entire Defense Closing Argument Is a Prejudicial Abuse of Discretion Even When Parts Are Improper

I. Introduction

In United States v. Cristian Ariel Arevalo Arias, United States v. Marvin Menjivar Gutierrez, and United States v. Carlos Jose Turcios Villatoro (consolidated Fourth Circuit appeals decided September 3, 2026), the Court of Appeals for the Fourth Circuit reviewed convictions arising from a joint trial of three alleged MS-13 (STLS clique) members charged with RICO and VICAR offenses tied to multiple murders, witness tampering, and drug crimes.

The pivotal appellate issue came from an unusual end-of-trial remedy: after closing arguments concluded, the district court instructed the jury to “completely disregard the entire closing argument” delivered for Turcios, finding it contained improper vouching and references to matters outside the record. The Fourth Circuit held that (1) the instruction sufficiently cured any possible prejudice to the codefendants (Arevalo and Menjivar), but (2) striking the entire summation was a prejudicial abuse of discretion as to Turcios because it effectively denied him the benefit of closing argument.

II. Summary of the Opinion

  • Arevalo and Menjivar: convictions affirmed. Even assuming Turcios’s closing was improper, the court presumed the jury followed the targeted instruction and disregarded only Turcios’s closing, curing any prejudice.
  • Turcios: convictions vacated and remanded. Striking the entire defense closing—including concededly proper portions—was an abuse of discretion and not harmless on this record.
  • Other holdings (affirmed): no reversible error in limiting cross-examination of cooperating witness Guevara; denial of motions to dismiss the indictment for due process violations; and refusal to set aside a RICO special finding concerning Tate’s murder despite acquittals on related VICAR counts.

III. Analysis

A. Precedents Cited

1. The constitutional floor for closing argument

  • Herring v. New York, 422 U.S. 853 (1975): The court treated Herring as the foundational case recognizing a Sixth Amendment-protected right to present a closing summation, while also emphasizing the trial judge’s latitude to control scope and duration. The Fourth Circuit drew a sharp line: courts may regulate improper argument, but “total denial” of summation is constitutionally intolerable.
  • United States v. King, 650 F.2d 534 (4th Cir. 1981): The panel used King to reinforce that a “technical” opportunity to argue is inadequate if the court’s actions make argument meaningless. Here, striking the entire closing after it was delivered functionally eliminated the advocacy value of closing for Turcios.
  • United States v. Wiley, 93 F.4th 619 (4th Cir. 2024): Cited for the general proposition that limitations on closing argument are ordinarily reviewed for abuse of discretion.

2. Curative instructions, jury presumptions, and limits of Bruton

  • Samia v. United States, 599 U.S. 635 (2023): Anchored the presumption that jurors follow limiting instructions. The Fourth Circuit relied on Samia to uphold the denial of mistrial for Arevalo and Menjivar because the instruction expressly removed Turcios’s arguments from their cases.
  • United States v. Ritter, 167 F.4th 677 (4th Cir. 2026) (quoting Hopt v. Utah, 120 U.S. 430 (1887)): Used to describe when the presumption yields—only in the “exceptional” case where prejudice cannot realistically be erased.
  • Bruton v. United States, 391 U.S. 123 (1968): Addressed as the classic example of when an instruction is insufficient. The panel refused to extend Bruton to a codefendant’s closing argument, stressing that Bruton involved a confession actually admitted “in evidence.”
  • Richardson v. Marsh, 481 U.S. 200 (1987), and Spencer v. Texas, 385 U.S. 554 (1967): Cited to show the Supreme Court’s reluctance to expand Bruton and its insistence that exceptions to the “jury follows instructions” rule be rare.
  • Long v. Hooks, 972 F.3d 442 (4th Cir. 2020) (en banc): Supported the key distinction that closing argument is not evidence, reducing the need to treat it like an evidentiary Bruton problem.
  • Greer v. Miller, 483 U.S. 756 (1987), and United States v. Benson, 957 F.3d 218 (4th Cir. 2020): Used to require a record-specific showing of an “overwhelming probability” the jury could not follow instructions—something Arevalo and Menjivar could not demonstrate.

3. Review standards and “abuse of discretion” with legal-error overlay

  • Koon v. United States, 518 U.S. 81 (1996), and United States v. Nixon, 130 F.4th 420 (4th Cir. 2025): Cited for the principle that even under abuse-of-discretion review, a district court abuses discretion if it commits legal error; legal conclusions are reviewed de novo.
  • Westmoreland v. TWC Admin. LLC, 924 F.3d 718 (4th Cir. 2019): Cited for deference in reviewing jury instructions absent legal error.
  • United States v. Wallace, 515 F.3d 327 (4th Cir. 2008): Cited for abuse-of-discretion review of mistrial rulings.
  • United States v. Lighty, 616 F.3d 321 (4th Cir. 2010), along with United States v. Odom, 888 F.2d 1014 (4th Cir. 1989), and United States v. Najjar, 300 F.3d 466 (4th Cir. 2002): Cited on severance; antagonistic defenses do not require severance absent “stark contrast” creating unfair prejudice.

4. Contemporaneous objection and the “overbroad remedy” problem

  • Puckett v. United States, 556 U.S. 129 (2009) (quoting Wainwright v. Sykes, 433 U.S. 72 (1977)): Used to explain the purpose of contemporaneous objections—prevent “sandbagging” and enable immediate correction.
  • United States v. Young, 470 U.S. 1 (1985): Cited to emphasize how timely objections help create a precise record and permit targeted instructions.

5. Confrontation Clause and limits on cross-examination

  • Davis v. Alaska, 415 U.S. 308 (1974): Recognized cross-examination as a core means to test credibility and expose motivation/bias.
  • Delaware v. Van Arsdall, 475 U.S. 673 (1986), and Delaware v. Fensterer, 474 U.S. 15 (1985): Provided the rule that the Sixth Amendment guarantees an “opportunity for effective cross-examination,” not unlimited cross-examination; trial courts retain “wide latitude” to impose reasonable limits to avoid confusion, prejudice, harassment, or marginal relevance.
  • United States v. Smith, 451 F.3d 209 (4th Cir. 2006); United States v. Zayyad, 741 F.3d 452 (4th Cir. 2014); United States v. Ayala, 601 F.3d 256 (4th Cir. 2010); United States v. Freitekh, 114 F.4th 292 (4th Cir. 2024); United States v. Seward, 135 F.4th 161 (4th Cir. 2025): Cited to illustrate doctrinal framing and review standards; the panel concluded the limitation was permissible under either de novo or abuse-of-discretion review formulations.
  • Hoover v. Maryland, 714 F.2d 301 (4th Cir. 1983), and United States v. Rabinowitz, 578 F.2d 910 (2d Cir. 1978): Used to evaluate whether uncharged-crime exposure could show bias or motive to curry favor. The court found the “immunity/benefit” inference here was speculative and the excluded material risked devolving into a “trial within a trial.”
  • Quinn v. Haynes, 234 F.3d 837 (4th Cir. 2000): Cited for the proposition that the Confrontation Clause does not override reasonable applications of evidentiary rules (e.g., Rules 401, 403, 404).

6. Due process: deported witnesses, lost evidence, and late disclosures

  • United States v. Valenzuela-Bernal, 458 U.S. 858 (1982): Controlled the deported-witness claim. Defendants had to make a “plausible showing” the witness’s testimony would be “material and favorable” in non-cumulative ways and reasonably likely to affect the verdict.
  • United States v. Bartko, 728 F.3d 327 (4th Cir. 2013) (quoting United States v. Avellino, 136 F.3d 249 (2d Cir. 1998), and United States v. Cooper, 654 F.3d 1104 (10th Cir. 2011)): Used to frame when impeachment evidence is “material.”
  • United States v. Kaixiang Zhu, 854 F.3d 247 (4th Cir. 2017), and United States v. Moussaoui, 382 F.3d 453 (4th Cir. 2004): Cited regarding whether Valenzuela-Bernal also requires bad faith; the panel again declined to resolve the circuit question because defendants failed materiality (and, even if required, failed bad faith).
  • California v. Trombetta, 467 U.S. 479 (1984), and Arizona v. Youngblood, 488 U.S. 51 (1988): Governed the “lost jail calls/notes” claim. Under Trombetta, defendants must show apparent exculpatory value and inability to obtain comparable evidence; under Youngblood, if only “potentially useful,” they must show bad faith.
  • United States v. Montieth, 662 F.3d 660 (4th Cir. 2011): Supported the conclusion that routine deletion pursuant to standard retention policy does not show bad faith.
  • United States v. Sterling, 724 F.3d 482 (4th Cir. 2013) (quoting United States v. Ingraldi, 793 F.2d 408 (1st Cir. 1986)): Provided the framework for delayed disclosure: whether the delay prevented effective use in preparing/presenting the defense.
  • United States v. Collins, 415 F.3d 304 (4th Cir. 2005): Used to reject dismissal as a remedy for late Brady disclosure where a continuance is the preferred remedy and was not sought.

7. Inconsistent verdicts, special findings, and element differences

  • United States v. Powell, 469 U.S. 57 (1984): Instructed that inconsistency between acquittals and convictions generally does not warrant relief.
  • United States v. Ramirez-Castillo, 748 F.3d 205 (4th Cir. 2014), and United States v. Gaudin, 515 U.S. 506 (1995): Cited to explain concerns with special verdict forms asking only “yes/no” fact findings, but distinguished because the jury here returned a guilty verdict on Count One and was instructed to apply the beyond-a-reasonable-doubt standard to special findings.
  • United States v. Ayala, 601 F.3d 256 (4th Cir. 2010): Crucial to the “special finding vs. VICAR acquittal” analysis: VICAR requires an enterprise-related “purpose” element that RICO conspiracy predicates (as framed here) do not, so the jury’s seemingly inconsistent determinations were reconcilable.

B. Legal Reasoning

1. The central holding: an overbroad curative instruction can become a constitutional problem

The Fourth Circuit’s core move was to apply the same “jury follows instructions” presumption in two opposite directions: it saved the convictions of the codefendants but doomed Turcios’s.

  • As to Arevalo and Menjivar: Even assuming Turcios’s closing contained improper vouching, argument outside the record, and strategic pivoting, the district court’s instruction was targeted: it identified Turcios’s closing, told jurors to disregard it entirely, and reaffirmed the government’s burden of proof. Under Samia v. United States and the narrowness of Bruton v. United States, the panel refused to presume jurors could not comply.
  • As to Turcios: The panel treated the instruction’s breadth as the problem. Because jurors are presumed to follow the instruction, they were presumed to ignore not only the problematic portions but also the legitimate defense themes (including arguments attacking corroboration of Guevara’s testimony and Turcios’s role in the gang). That transformed regulation of closing argument into an effective deprivation of closing argument—implicating Herring v. New York and United States v. King.

The panel emphasized that the district court had tools short of total striking—particularly permitting contemporaneous objections so the court could rule in context and tailor any remedy. By forbidding objections (“Don’t object.”), the court made later surgical redaction impractical, which “contributed directly” to the overbroad remedy.

2. Why this was an abuse of discretion, not merely harsh trial management

The opinion treats “striking the entire closing” as different in kind from limiting time, restricting topic drift, or instructing jurors to disregard discrete statements. Because substantial portions of the summation were unobjectionable, the remedy was not calibrated to the identified harms (vouching and extra-record facts) and thus fell outside the “great latitude” recognized in Herring v. New York.

3. Harmlessness left open, but rejected on this record

In footnote 13, the court noted the government did not argue harmless error and flagged questions about whether such an error is amenable to harmlessness review and whether the court must reach harmlessness absent briefing. The panel ultimately stated it need not decide those questions because, even if harmlessness applied, the error was not harmless given Guevara’s centrality and the possibility that permissible credibility-focused closing could have influenced deliberations.

4. Confrontation Clause: reasonable limits to avoid a “trial within a trial”

Arevalo and Menjivar claimed the court unconstitutionally restricted cross-examination of cooperating witness Guevara about an affidavit by Guzman alleging rape and assault. The panel applied Delaware v. Van Arsdall’s “wide latitude” rule: the Confrontation Clause requires an opportunity for effective cross-examination, not every desired line of inquiry.

The court reasoned that (a) the alleged “benefit” inference (Guevara tailoring testimony to avoid sexual-assault prosecution) was speculative, (b) Guevara had already admitted extensive violent conduct on cross, making additional uncharged allegations marginal, and (c) litigating the allegations risked confusion and mini-trials. The limitation therefore fell comfortably within the trial court’s discretion under both Sixth Amendment and evidentiary principles.

5. Due process: deported witness (Vasquez), lost jail calls, late-disclosed tip

  • Vasquez deportation: Applying United States v. Valenzuela-Bernal, the panel held defendants failed to show Vasquez’s live testimony would be material and favorable in non-cumulative ways, because the jury heard recordings and other testimony capturing the key impeachment points (including that Vasquez attributed the double murder to Guevara and Molina).
  • Missing jail calls/notes: Under California v. Trombetta and Arizona v. Youngblood, defendants failed to show constitutional materiality or bad faith. Comparable evidence existed (the McAllister interview recording and the ability to call witnesses), and routine deletion under jail retention policy did not show bad faith (consistent with United States v. Montieth).
  • Late tip disclosure: Even assuming a Brady problem, dismissal was unwarranted; the preferred remedy is a continuance (per United States v. Sterling), and defendants did not seek one. The district court’s sanction (barring Molina from testifying for the government) was deemed sufficient.

6. Special finding vs. VICAR acquittal: element mismatch resolves the tension

Arevalo argued the jury’s “YES” special finding (that he aided and abetted Tate’s murder as part of the RICO conspiracy) could not stand given acquittals on substantive VICAR Tate counts. The panel, relying on United States v. Ayala, held the outcomes were not irreconcilable because VICAR requires an additional enterprise-purpose element (“for the purpose of gaining entrance to or maintaining or increasing position”), which the RICO predicate special finding did not require. Thus, the jury could rationally find participation in the killing yet harbor reasonable doubt about the VICAR-purpose element.

C. Impact

  1. Trial-court remedies for improper summation must be tailored. The decision signals that post hoc, total-strike remedies are perilous: even when some remarks are improper, wiping out the entire closing can functionally deprive a defendant of a constitutionally protected trial stage.
  2. Contemporaneous objection practice matters. The opinion’s critique of forbidding objections during closing suggests Fourth Circuit skepticism toward categorical “no objections during closings” policies where they prevent targeted correction and later force blunt remedies.
  3. Codefendants face a higher hurdle to convert a codefendant’s improper argument into mistrial. The panel reinforces that, absent truly exceptional circumstances, courts will rely on limiting instructions—especially where the complained-of matter is argument rather than evidence.
  4. RICO/VICAR charging consequences and special findings. The opinion underscores that acquittal on VICAR does not necessarily negate a RICO predicate finding because the statutes do different work; litigants should focus on element-by-element comparisons rather than surface-level “inconsistency.”

IV. Complex Concepts Simplified

  • “Vouching”: When a lawyer implies personal knowledge of a witness’s truthfulness (e.g., “I could see she was telling the truth”) rather than arguing from evidence.
  • Curative (limiting) instruction: A direction to the jury to disregard certain material. Appellate courts generally presume jurors follow such instructions.
  • Mistrial: Ending a trial without a verdict (or setting aside proceedings) due to prejudicial error that cannot be cured.
  • Severance: Separating defendants’ trials. Antagonistic defenses alone rarely require severance unless the conflict is so stark it creates unfair inference of guilt.
  • Confrontation Clause limits: Defendants have the right to cross-examine, but courts may restrict questioning that is marginally relevant or would confuse issues.
  • RICO vs. VICAR (as used here): RICO conspiracy focuses on agreement to conduct enterprise affairs through racketeering; VICAR adds a motive/purpose element tied to status within the enterprise (or payment).
  • Brady / late disclosure: The government must disclose favorable material evidence. If disclosure is late, the key question is whether the defense was prevented from using it effectively; continuances are often the appropriate remedy.
  • Lost evidence (Trombetta/Youngblood): Destroying clearly exculpatory evidence can violate due process; destroying only “potentially useful” evidence violates due process only if done in bad faith.
  • Special findings: Additional jury determinations attached to a conviction (often affecting penalties). They may differ from separate counts because they may require proof of different elements.

V. Conclusion

The Fourth Circuit’s key contribution is its clear warning that, even when a defense closing contains improprieties, a court’s corrective power has constitutional limits: striking an entire defense summation after it is delivered—thereby removing all proper advocacy from the jury’s consideration—can be a prejudicial abuse of discretion. At the same time, the decision reaffirms a strong reliance on limiting instructions to cure potential spillover prejudice to codefendants, particularly where the complained-of content is argument rather than evidence.

Practically, the opinion encourages trial courts to (1) permit and manage contemporaneous objections during summation, (2) craft narrower curative instructions aimed at specific improper remarks, and (3) avoid remedies that effectively erase a defendant’s right to closing argument—the “last clear chance” to organize evidence and credibility disputes for the factfinder.