How have the courts treated the lack-of-luggage argument for rebuttal at trial?

Put simply, the government held back the lack-of-luggage argument for rebuttal when the argument could have, and should have, been made earlier in the trial. See United States v. Taylor, 728 F.2d 930, 937 (7th Cir. 1984) (holding "that a prosecutor cannot use rebuttal to put forth new arguments, but is restricted to responding to the points made by the defense counsel in closing argument").

The majority excuses the government's belated argument by reasoning that defense counsel "opened the door to argument addressing the credibility and believability of Maloney and his story." (Maj. Op. at 27) But the open-the-door exception makes sense only if the door was unexpectedly opened for the first time during the defendant's closing argument. See United States v. Rubinson, 543 F.2d 951, 966 (2d Cir. 1976) (holding that defense counsel, by pointing out gaps in the government's proof that the government would "have been expected to negate previously," did not open the door to the government's reference to new facts on rebuttal that "it could have, but did not, introduce at trial"). The government should not be able

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to take advantage of this exception when it had ample notice of the defendant's credibility argument.