United States v. Roberts

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 96-1933

UNITED STATES,

Appellee,

v.

DANIEL P. ROBERTS,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

Before

Selya, Circuit Judge,

Cyr, Senior Circuit Judge,

and Keeton, District Judge.

William Maselli
, with whom
Law Offices of William Maselli
was
on brief for appellant.
F. Mark Terison, Assistant United States Attorney, with whom
Jay
P.
McCloskey, United States Attorney, and Jonathan
A.
Toof,
Assistant United States Attorney, were on brief for appellee.

July 23, 1997

Of the District of Massachusetts, sitting by designation.

KEETON, District
Judge. A jury convicted defendant-

appellant Daniel Roberts on charges of conspiracy to possess

anabolic steroids with intent to distribute, and possession of

anabolic steroids with intent to distribute, in violation of 21

U.S.C. SS 841(a)(1), 841(b)(1)(D), and 846. Defendant contends on

appeal that (1) four incidents of prosecutorial misconduct during

the closing and rebuttal arguments deprived him of a fair trial;

(2) the district judge's failure to instruct the jury on the

requested defense theory of possession constitutes reversible

error; and (3) the district judge's instructions and re-

instructions on permissible inferences from possession in quantity

were unfairly prejudicial. Concluding that the egregiousness of

the prosecutorial misconduct alone deprived Roberts of a fair

trial, we vacate the convictions and remand for a new trial.

I. BACKGROUND

A. Facts

Since we are concerned with the claim of prosecutorial

misconduct and not with a claim of insufficient evidence, our

description of the facts is not limited to evidence and inferences

most generous to the government. Rather, we state a balanced

description of the evidence in the record before us, to aid in

focusing on whether the impermissible comments of the prosecutor

tainted the proceedings materially.
See
Arrieta-Agressot v.
United

States, 3 F.3d 525, 528 (1st Cir. 1993) (court does not "take the

evidence in the light most favorable to the government" because the

-2-

jury decision for conviction "may itself be tainted by the improper

remarks").

An investigation that led to this prosecution commenced

when a young boy's mother told local police that Robert Tibbetts

had sold steroids to her teenage son. The ensuing investigation

and eventual detention of Tibbetts led, in turn, to defendant

Roberts, as explained more fully below.

At trial Robert Tibbetts, appearing as a witness called

by the government, pursuant to a cooperation agreement, testified

to the events summarized here.

Tibbetts purchased anabolic steroids from Dr. Patterson,

a veterinary doctor in Maine, representing their intended use to be

for draft horses. After Tibbetts had purchased steroids two or

three times each week during 1995, Dr. Patterson cut off Tibbetts'

supply because he was concerned about potentially illicit use.

Tibbetts then began obtaining steroids from a different source --

a Dr. Hussey of North Conway, New Hampshire -- from whom he also

purchased oil-based testosterone every week.

During this time, Daniel Roberts began buying steroids

from Tibbetts. Roberts worked as a personal trainer at different

gyms in the Lewiston-Auburn area. He was certified to advise

clients about nutrition and fitness and was himself a member of a

team of weightlifters. Those of Roberts' clients who testified

said they had no knowledge of Roberts' selling steroids, nor did

they have knowledge of his encouraging the use of steroids. Both

Roberts' girlfriend, Michelle Saba, and Tibbetts testified that

-3-

Roberts owned no large animals to whom the steroids could have been

administered legally.

When Roberts became concerned because a large part of an

order was missing from a North Conway shipment, Roberts and

Tibbetts met to discuss the possibility that Roberts would make the

necessary trips to New Hampshire instead of Tibbetts. Up until

this point, Roberts had been providing between $1000 and $1500 in

cash for the drugs for each trip Tibbetts made. In addition, Dr.

Hussey had begun to express his concern over the quantity of

steroids Tibbetts purchased on such a regular basis. Tibbetts then

told Roberts he would not make any more trips to North Conway.

Instead, Tibbetts suggested that Roberts make the trips and use

Tibbetts' name. Both Dr. Hussey and his secretary confirmed that

someone other than Tibbetts began picking up and paying for the

steroids during the fall of 1995.

Tibbetts having been turned in by a concerned mother, as

stated above, because he allegedly sold steroids to her teenage

son, the investigation of Tibbetts led to the delivery and sale of

steroids from Dr. Hussey's office. Agent Bals of the United States

Drug Enforcement Administration arranged to monitor a transaction

and to detain a person involved, who turned out to be Roberts on

his way home from Dr. Hussey's office in New Hampshire. Roberts'

car was stopped in Maine by Maine law enforcement authorities.

Roberts handed over a large box of steroids, telling the Maine law

enforcement officers that the steroids were for Roberts' own

personal use.

-4-

At trial, Michelle Saba, Roberts' girlfriend and a

reluctant witness, indicated that the defendant was obsessed with

weight lifting and with increasing his weight. He had grown from

130 pounds, when she met him several years ago, to well over 200

pounds. Saba further testified that Roberts used steroids daily,

sometimes twice a day, and that their desperate financial situation

was due to his addiction.

Russell Barlow, a high school teacher and friend of

Roberts, testified that becoming larger and stronger was an

obsession for Roberts and that Roberts took steroids for that

reason. Barlow further testified that he (Barlow) operated a

personal training business, and it was his experience that abusers

of steroids would often hoard the drug in anticipation of a time

when it would be unavailable. Apparently, weight lifters were able

to procure steroids from the black market and from veterinarians,

but since black market steroids were frequently impure, weight

lifters preferred drugs provided by a veterinarian.

Agent Bals testified that a lively market for steroids

existed in the gyms and among participants in various sports.

Barlow stated that selling steroids could be very profitable,

especially since the shelf life of many steroids was as long as

five years.

The only evidence linking Roberts to the sale of

steroids, however, other than his being in possession of large

quantities, was the testimony at trial of Tibbetts, who said that

Roberts had once stated that he had lost money selling steroids in

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Massachusetts. Telephone records in evidence show that Roberts

made frequent calls to telephones located in Massachusetts.

B. Indictment, Conviction, and Sentence

In a two-count indictment returned on February 15, 1996,

Roberts was charged with (1) conspiracy to possess with intent to

distribute anabolic steroids and (2) possession with intent to

distribute anabolic steroids in violation of 21 U.S.C. SS 841(a)

(1), 841(b)(1)(D) and 846.

On April 25, 1996, the jury trial began in the United

States District Court for the District of Maine. On April 26,

1996, the jury returned verdicts of guilty on both counts.

The district judge sentenced Roberts to concurrent

sentences of sixteen months in prison for each of the two counts,

to be followed by two concurrent three-year terms of supervised

release. Following imposition of sentence, Roberts filed this

timely appeal.

II. PROSECUTORIAL MISCONDUCT

A. Trial Transcript

We recite verbatim substantial parts of the 22-minute

summation and 10-minute rebuttal of the prosecutor.

MR. TOOF: (10:18 AM) Ladies and
gentlemen of the jury, after I get done
arguing, Mr. Maselli will have an
opportunity to address you and I will then
have a brief opportunity, when he is done,
for rebuttal.

. . .

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As I go through my review of the
evidence I will point out several areas in
which you could be misled from your oath
and obligation as jurors in this case. I
want to remind you, and I remind you again
and again and again that this is not a
popularity contest, this is not [a] what
should be done contest, this
is
a
trial
that
defines
justice
based
on
your
objective evaluation of the facts in this
case.
In other words, what has been shown
to you, what has not been shown to you and
what
you
reasonably
infer
from
the
evidence that has been brought before you.

. . .

The defense counsel spent a great deal
of time attempting to show you that Mr.
Tibbetts is not the kind of man the
federal government wants you to believe.

[A q]uestion was asked relative to his
suggest[ed] sexual inclinations, that he
used young boys not only for business
purposes but to assist him in the
distribution of anabolic steroids and what
have you.

There is not a fact, there is not one
fact that has been established in this
case that Mr. Tibbetts did any of these
things.

However, if you accept the questions as
facts you could conclude what is the
government doing dealing with him, a guy
like this. Let
me
tell
you
that
every
day,
every
courtroom
in
this
country
the
federal government, the state government,
uses
people
like
Robert
Tibbetts
and
the
reason for it is because Tibbetts elected
to
plead
guilty,
and
was
testifying
yesterday to save his hide.

As Mr. Maselli suggests, either
Tibbetts
was
a
trained
monkey
doing
whatever he could do to satisfy the
government
masters
or
he
was
telling
the
truth.

Do
you
think
this
is
the
first
time

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anything
like
this
happened?
Of
course
not, that is why we have things like plea
agreements. If you want to go home
tonight in time to watch the early news,
in time for dinner, you can decide this
case very quickly but if you do you will
not have considered all of the evidence.
I
ask
you
that
you
consider
the
Tibbetts
testimony in view of the agreement. These
are the terms and conditions which control
the government's entire relationship with
this
man,
nothing
more,
nothing
less. I
ask you to read paragraphs 5, 4, 5 and 10.

All right. Once you conclude that, I
believe you will believe his testimony was
controlled by this evidence, nothing more
and nothing less. You should weigh his
credibility in view of this agreement.
This
is
all
we
have
to
gain,
and
this
is
all
we
have
to
lose
from
his
testimony
before you.

. . .

Tibbetts told you that Drown provided
the money, Tibbetts made the order,
Tibbetts went to the doctor' office in
North Conway and obtained the steroids[,]
provided them to Drown so that he could do
with them whatever he wanted.

This relationship went on for two or
three orders from Dr. Hussey until only
half an order came [back to Drown]. Drown
came over to Tibbetts' house and wanted to
know where the rest of the order was.
During the conversation the defendant,
Danny Roberts, said something like, "I'll
break your bones, those are my steroids."
It
was
brought
out
throughout
the
course
of trial that the reason that Tibbetts was
afraid
of
the
problems,
is
that
Tibbetts
was aware that Roberts was the treasurer,
I
believe,
of
the
Sarasins
Motorcycle.
That
fact
should
not
qualify
you
in
any
way
in
reaching
your
verdict
because
if
you do, you will have decided the case for
the wrong reasons, whether he is a member
of
a
motorcycle
gang
or
whatever,
has
nothing to do with the facts of this case.
All right?

-8-

This is not a personality contest.

. . .

Agent Bals [...] and the local police
department got involved in the case on or
about January 28th or 29th they went to
Dr. Hussey's office, and they went there
because back on the 23rd, Dr. Hussey
received a Federal Express package
addressed to him from the defendant.
Inside was a check for almost $10,000 from
Robert Tibbetts to Dr. Hussey and a note
asking for some thousand dollars worth of
steroids. Okay?

He
did
a
controlled
dilute,
if
you
will, where Roberts came to pick up
steroids,
and
the
agents
waited
to
take
possession,
they
followed
him
down
the
road back to Maine and then arrested him.
All right.

That
is
essentially
what
the
case
is
all about.
. . .

How many years' supply did these two
guys obtain in 3 1/2 months? I suggest to
you that even under a conservative
estimate, even if Ms. Saba hedged a
little bit and in fact the defendant was
not using two bottles, he was using four
bottles, he bought enough steroids to last
him until the year 2000. Ladies
and
gentlemen,
that
fact,
not
that
inference
but
that
fact,
that
fact
should
lead
you
to
a
conclusion,
that
conclusion
is
that
Roberts did not use all this supply
himself. I'm not beginning to contest the
possibility that he didn't use some of it
because he did. He is an anabolic junkie.
But he also dealt some too. He didn't
deal it to Hebert and Tehan, to Sandra
Roy, the lady that gave him a ride to
North Conway, not knowing where she was
going, and certainly not to Michelle Saba.
He dealt it to those people obsessed with
anabolic steroids and who are looking for
a good source of supply.

You
know,
the
thing
in
this
case
is

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that
the
defendant
has
no
obligation
to
testify and you should take that fact into
consideration
in
no
way
whatsoever.
But
with
respect
to
the
rest
of
the
case
the
defendant has the same responsibility and
that
is
to
present
a
compelling
case,
if
they
are
to
go
forward.
We
know the
defendant deals with a large number of
people, according to Mr. Barlow, thousands
of people involved with weight lifting and
anabolic steroids. Who did you see, 2 of
50
people
that
he
trains.
Where
is
the
team?
Russell Barlow?

Is that it?

Where
did the steroids go? You know where they
went to. Thank you. (10:40 AM).

(Excerpts from Transcript of Jury Trial, April 25-26, 1996, at 228-

38 (emphasis added)).

We quote a part of the defense summation, for context.

MR. MASELLI: Thank you, your Honor.
May it please the Court. Ladies and
gentlemen of the jury, Mr. Toof sat down
rather quickly and I guess this case is to
be based on conjecture, guessing as to
what the evidence is and what happened.
Then I guess it should take 5 or 10
minutes and you can get home, not just for
dinner but you can get home for lunch as
well. If you want to base this case on
guessing as to what the evidence is, it is
going to be very easy.

. . .

You know, Mr. Toof tells you about
Tibbetts, and I will talk about Tibbetts
as we go along here, about Tibbetts, he
signed an agreement to tell the truth with
the government, and so he wants you to
believe that he is coming here to tell the
truth. He never tells the truth to
anybody else, and he sees people left and
right but he is telling the truth now.
. . .

Mr.
Toof's
comments
about
Daniel
Roberts' association is like Shakespeare's
Mark Anthony, talking about how Brutus is
an honorable man.

He wants you to draw an

-10-

honest
conclusion
when
he
is
telling
you
that Mr. Roberts is in a gang, and not to
think
about
it. If he is not in a gang,
he belongs to a club.

Second of all, you don't need to guess
or speculate whether or not Danny Roberts
is an honorable man, you've heard plenty
of evidence and you know that he is.

. . .

So
in
closing
we
ask
you
to
keep
in
mind that it is not Daniel Roberts' burden
or
obligation
to
prove
that
he
is
innocent.

How do you prove that you are innocent
other than pleading not guilty? Getting
up and saying, "I didn't do it." It is not
his burden to convince you of his
innocence. It
is
the
burden
on
the
government
to
establish
guilt
beyond
a
reasonable doubt and the specific charges
that
they
brought
against
him
and
it
is
only
by
holding
the
prosecution
to
that
burden of proof that justice is done.

. . .

Justice is holding the government to
the burden of proof that the law places
upon them to protect every single one of
us.

. . .

You
know
why
Dan
Roberts
was
getting
the
steroids.
The
prosecution
is
asking
you
to
come
to
another
conclusion
based
upon guess work.
. . .

Daniel Roberts is not guilty of these
offenses. We ask you to return the
verdict of not guilty on both.

Thank you very much. (11:10 AM).

(Id. at 238-41, 253-55 (emphasis added)).

Following are excerpts from the 10-minute rebuttal of the

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prosecutor.

MR. TOOF: Thank you, your Honor.
Ladies and gentlemen, a
strange
twist
in
defense counsel's argument. He closed out
by arguing lack of evidence when he spent
the
lion's
share
in
telling
you
that
you
can't believe a guy like Robert Tibbetts.

. . .

This is not Tibbetts' trial. His day
in court may or may not come because of
other cases he has. I ask again that you
review his testimony in conjunction and
ask yourself this question: Would
you
believe
what
he
had
to
tell
you
if
you
knew that he didn't tell you the truth and
faces
the
consequences
set
forth
in
that
plea agreement?

That is the issue.

. . .

Now, if you're going to lie, if you're
going to pin Dan Roberts with something,
the clear inference is, from defense
counsel, this is just that Tibbetts was
going to come in here without assistance
and our sanction and purge [sic] himself.
If you're going to do that, you do a much
better job.... If we are going to prepare
our
witnesses
to
lie,
we
would
do
a
much
better
job
than
that. Enough said about
Tibbetts.

. . .

Now, the essence of the defendant's
closing was that you should acquit because
of insufficient evidence.

The essence of the defendant's argument
was that you can't allow the government to
use this kind of witness to prove this
kind of case.

All
I
can
tell
you, and repeat to you
again, that is not the basis upon which
you can decide issues in this case, you
have
to
look
dispassionately
at
the

-12-

evidence
and
draw
reasonable
inferences
that should be drawn from that evidence.

. . .

Mr. Maselli says, you know, the
government with all its power, resources
and all of its whatever, there is no
evidence of one sale. And you are right,
there is no evidence of a search of
defendant's house; and you are right, that
argument is one, an invitation for a cop
out. You go back to the jury room and
say, they could have given us more. But
you have to consider all of the evidence,
and if I'm wrong Mr. Maselli will probably
stand up and let us know. He
knows
as
well
as
I
do
there
are
extremely
sound
reasons why the government cannot bring in
people
to
take
the
stand
and
say
they
bought anabolic steroids from Tibbetts or
Roberts, that I was involved in the
conspiracy equally as the defendant.

That
is
a
fact,
and
that
is
the
law.
Why
didn't
we
search
the
house
in
Poland
Springs?
Because
that
is
an
[abuse
of]
power
of
the
government.
There
is
no
evidence
of
the
seizure
of
those
anabolics.

MR. MASELLI: I object, he is speaking
of facts outside of the evidence.

THE COURT: Overruled, he may continue.

MR. TOOF: There
is
no
evidence
based
upon what you heard during this trial that
the government had sufficient cause to go
in Michelle Saba and Dan Roberts' house to
go in and search for steroids.

. . .

Now, there are too many steroids here
for personal use and the law tells you
there is a reasonable inference, that you
can reasonably conclude that the steroids
were being distributed.

. . .

THE COURT: Mr. Toof, you have only 10

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minutes in rebuttal.

MR. TOOF: Thank you. Sandra Roy
didn't know they were going to North
Conway. Didn't know. The evidence is
sufficient for you to return a verdict of
guilty. Thank you very much. (11:18 AM).

(Id. at 255-260 (emphasis added)).

B. The Standard for Determining Prosecutorial Misconduct
Applicable to This Case

On appeal, Roberts raises several issues of prosecutorial

misconduct as to which his counsel did not make timely objections

during the proceedings below. We first consider whether he has

waived or otherwise lost his right of appeal with regard to those

claims of error. See,
e.g.,
United States
v.
Taylor, 54 F.3d 967,

972 (1st Cir. 1995); United
States v. Griffin, 818 F.2d 97, 100

(1st Cir.), cert. denied, 484 U.S. 844 (1987).

Rights to have a claim of error heard on the merits are

sometimes lost by failure to object in the trial court.
See
United

States v.
Olano, 507 U.S. 725, 732-34 (1993). "In general, the law

ministers to the vigilant, not to those who sleep upon perceptible

rights." Taylor, 54 F.3d at 972.

Requiring parties to raise contemporaneous objections

serves several important functions. It gives the trial court the

first opportunity to correct potential injustice by invoking an

immediate cure and forestalling future harm.
See
Griffin, 818 F.2d

at 100 (finding that contemporaneous objections give "both the

court and the party's opponent fair warning and a timely

opportunity to acknowledge bevues and correct them so that cases

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can be decided squarely on merit"). Ordinarily, the trial judge is

in the best position to assess the damage at the time done. Id.

Also, the raise-or-lose rule "prevents sandbagging" and inhibits

strategic or tactical silences that quietly nurture the seed of

trial error for assertion on appeal, should all else fail.
Taylor,

54 F.3d at 972. In short, adhering to the raise-or-lose rule makes

a positive contribution to "the balanced and orderly functioning of

our adversarial system of justice." Griffin, 818 F.2d at 99-100.

Invariable application of the raise-or-lose rule,

however, would be "out of harmony with ... the rules of fundamental

justice." Olano, 507 U.S. at 732 (1993) (quoting Hormel v.

Helvering, 312 U.S. 552, 557 (1941)) (internal quotation marks

omitted). Provisions of a Federal Rule of Criminal Procedure are

on point:

(a) Harmless Error. Any error, defect,
irregularity or variance which does not
affect substantial rights shall be
disregarded.
(b) Plain Error. Plain error or defects
affecting substantial rights may be
noticed although they were not brought to
the attention of the court.

Fed. R. Crim. P. 52.

This Circuit has consistently held, in applying the law

of preclusion as laid down in
Olano, 507 U.S. at 733-34, and
United

States v.
Young, 470 U.S. 1, 15 (1985) (plain-error exception is to

be used sparingly, solely to avoid miscarriage of justice), that

errors not objected to at trial will be reviewed by the appellate

court only when they are "plain" and undermine the fundamental

fairness of the trial. See, e.g., United
States v. Sullivan, 85

-15-

F.3d 743, 748 (1st Cir. 1996); United States
v.
Luciano-Mosquera,

63 F.3d 1142, 1156 (1st Cir. 1995),
cert. denied
, --- U.S. ---, 116

S. Ct. 1879 (1996); Taylor, 54 F.3d at 972; United
States v.

Romero, 32 F.3d 641, 651 (1st Cir. 1994); United
States v.

Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989); United
States v.

Mejia-Lozano, 829 F.2d 268, 272-73 (1st Cir. 1987).

Plain error review is ordinarily limited to

"blockbusters" and does not "consider the ordinary backfires --

whether or not harmful to a litigant's cause -- which may mar a

trial record." Griffin, 818 F.2d at 100. The plain error hurdle

is high. See
Hunnewell, 891 F.2d at 956. Exceptions to the raise-

or-lose rule are reserved for the redress of those errors that

"seriously affect the fairness, integrity or public reputation of

the judicial proceedings." Young, 470 U.S. at 14 (quoting United

States v. Atkinson, 297 U.S. 157, 160 (1936) (internal quotation

marks omitted)).

Among the strictures that channel appellate discretion in

plain error review are three of commonly recognized significance:

the appellant must show (1) the occurrence of an error; (2) that

the error is obvious or clear under current law; and (3) that the

error substantially and adversely affects the rights of the

appellant. See Olano, 507 U.S. at 732-34; United States v. Laboy-

Delgado, 84 F.3d 22, 31 (1st Cir. 1996); Romero, 32 F.3d at 651.

In order to discern the severity of the error and its weight in

plain-error analysis, a court must evaluate the error against the

entire record. See Griffin, 818 F.2d at 100. See also Young, 470

-16-

U.S. at 11-12; Laboy-Delgado, 84 F.3d at 29; United
States v.

McMahon, 938 F.2d 1501, 1505 (1st Cir. 1991).

C. Application of the Standard

It is axiomatic that the defendant's right against self-

incrimination, as protected by the Fifth Amendment, forbids the

prosecution from commenting on an accused's failure to take the

stand and testify on his own behalf. See Griffin v. California,

380 U.S. 609, 613 (1965).

In the present case, in fairness to the prosecution, we

must take account of the use by defense counsel of a permissible

defense strategy with respect to a "theory of the case." A

defendant is guaranteed an opportunity to advance a "theory of the

case" from the defense perspective. See United States v. Rivera-

Santiago, 107 F.3d 960, 967 (1st Cir. 1997) ("The defendants were

entitled to have their theory of the case, as developed through

their evidence, presented to the jury on an equal footing with the

government's theory of the case."). When a defendant advances a

"theory of the case," however, this opens the door to an

appropriate response by the prosecution, commenting on the "quality

of his ... witnesses or ... attacking the weak evidentiary

foundation on which the defendant's theory of the case rested."

United
States v. Savarese, 649 F.2d 83, 87 (1st Cir. 1981). In

Savarese, this Circuit recognized that the government, in its

response, has some leeway to comment on the defendant's failure to

produce evidence supporting the defendant's stated theory. Id.

-17-

The door, however, is not open to the prosecutor's using such an

occasion to comment, even indirectly, on a defendant's failure to

testify. E.g., United
States v. Glantz, 810 F.2d 316, 322 (1st

Cir. 1987). The applicable standard is

whether, in the circumstances of the
particular case, the language used was
manifestly intended or was of such
character that the jury would naturally
and necessarily take it to be a comment on
the failure of the accused to testify.

Id. (internal quotation marks omitted). Applying this standard, we

conclude that the prosecutor in this case impermissibly entered

upon forbidden terrain. See also United States v. Hardy, 37 F.3d

753, 757 (1st Cir. 1994) (prosecutorial argument that defendants

were "still running and hiding"); United
States v. Skandier, 758

F.2d 43, 45 (1st Cir. 1985) (finding prosecutor's question during

closing as to how defense counsel would explain identified events

that occurred, in a case where the defendant did not take the

stand, violative of the Griffin rule).

In the present case, the prosecutor violated both the

rule against commenting on the defendant's failure to testify and

the rule against telling the jury that the defendant has a burden

of proving his innocence. The prosecutor at intervals throughout

his original summation and his rebuttal made comments that

supported a theme, explicitly stated at one point in the remark

that, when a defendant does "go forward" to offer evidence, "the

defendant has the same responsibility [as the government] and that

is to present a compelling case." (Tr. at 237.) See the

emphasized passages in quotations from the record, in Part II.A,

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above.

In some circumstances, contemporaneous curative

instructions have been determined to be sufficient to correct an

obscure reference to one or the other of these two basic rules that

the prosecutor violated in this case. The offending remarks in this

case, however, were not obscure, and curative instructions were

neither requested nor given.

Given the particular facts of this case, the

prosecutorial excesses identified above were alone too egregious

for this conviction to stand. But there is more. The prosecutor

alluded in his closing argument to evidence not in the record. He

told the jury:

It was brought out throughout the course
of the trial that the reason that Tibbetts
was afraid of the problems, is that
Tibbetts was aware that Roberts was the
treasurer, I believe, of the Sarasins
Motorcycle. That fact should not qualify
you in any way in reaching your verdict
because if you do, you will have decided
the case for the wrong reasons, whether he
is a member of a motorcycle gang or
whatever, has nothing to do with the facts
of this case.

(Tr. at 233.) The rhetorical style of this comment is like that of

the prosecutor's saying to the jury, "the defendant has no

obligation to testify and you should take that fact into

consideration in no way whatsoever" (Tr. at 239), following

immediately with an assertion that is at least seriously misleading

if not worse: "But with respect to the rest of the case the

defendant has the same responsibility and that is to present a

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compelling case, if they are to go forward." ( Id.) In all of

these instances, neither the prosecutor's assertion of belief that

the proposition was legally valid nor the context of its use by the

prosecutor insulate it from judicial scrutiny. See United States

v. Manning, 23 F.3d 570, 574 (1st Cir. 1994); Arrieta-Agressot, 3

F.3d at 529 (finding that inflammatory arguments "excite the jury,

invite a partisan response, and distract its attention from the

only issue properly presented in the case" (emphasis in original)).

In context, the jury, quite reasonably, could have interpreted the

prosecutor's comments in this case as rhetorical flourishes meant

to invite them to do just what the introductory comments literally

said they should not do. Why else would the prosecutor be saying

anything at all about a forbidden subject matter?

The record before this court on appeal contains no

evidence of Roberts' involvement in any gang. Protestations before

this Court that the prosecutor was merely taking care to

demonstrate an intention to be fair ring hollow. Being fair in

fact is commendable. But parading an appearance of fairness by

calling attention to things not to be considered by the jury is a

dubious tactic in any setting. It is certainly not permissible

when the way it is carried through -- by pointing out the

prohibited comments in order to warn the jury of their forbidden

nature -- tends to implant in the minds of jurors the very things

forbidden, by saying they are things the jury must think about in

order to remember not to think about them.

We do not lightly excuse the lack of contemporaneous

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objections. But, at times, the judge must intervene. In our

judgment, these instances of prosecutorial misconduct, in

combination, undermined the fundamental fairness of the trial and

require us, in the interest of justice, to wipe the slate clean.

Having determined that these instances of prosecutorial

misconduct require that the conviction be vacated, we do not

address other issues that arose in the trial but are not likely to

arise in any new trial of this case.

III. PROSECUTORIAL ARGUMENT ABOUT PROBABLE CAUSE

The prosecutorial argument about probable cause (quoted

in Part II.A above) exceeded proper bounds. We address the matter

only briefly, because this issue is unlikely to arise again in a

new trial.

The prosecutorial argument on this subject is defended on

appeal on the ground that it was a fair response to defendant's

closing argument. The defense summation included an argument to

the jury that no incriminating evidence would have been found had

the government searched defendant's living quarters because no such

incriminating evidence existed. We assume, dubitante, that this

was a permissible defense argument. In any event, the prosecutor

did not object and the district judge did not intervene.

The response by the prosecutor to the defendant's

argument was, nevertheless, not permissible. First, a prosecutor

cannot escape the law's prohibitions against arguments on matters

not properly to be considered by the jury in a criminal case by

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deliberately withholding an objection to an objectionable defense

argument and arguing that the defense opened the door. Second,

even if we assume that the defense argument was permissible and did

"open the door" to a rebuttal argument by the prosecutor, the scope

of a permitted response is not unlimited. Here, the prosecutor's

response made assertions of fact about conduct and events that were

not supported by any evidence in the record and added assertions of

law that were not entirely accurate. See Part II.A above. Thus,

the response was out of bounds.

We say no more on this subject because it is unlikely

that this issue will arise in a new trial.

IV. JURY INSTRUCTIONS

The appellant raises additional issues regarding the

court's instructions to the jury. We address only two such issues

because others are unlikely to arise again in a new trial. First,

the district court instructed and reinstructed on the jury's

drawing an inference of intent to distribute, founded on evidence

about quantity of steroids amassed by the defendant. Second, the

district court declined to give the requested instructions as

framed by the defendant regarding an inference or presumption of

the legality of possession, based on evidence of procurement from

a licensed provider. For the reasons stated below, we conclude

that appellant's objections lack merit.

"The challenged instruction is reviewed for abuse of

discretion to determine whether the charge, taken as a whole fairly

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and adequately submit[s] the issues in the case to the jury."

United
States v. Rose, 104 F.3d 1408, 1412 (1st Cir. 1997)

(citations omitted) (internal quotation marks omitted). See also

United States v. Mitchell, 85 F.3d 800 (1st Cir. 1996).

We conclude that the district court's instructions and

reinstructions on permissible inferences were not an abuse of

discretion. On the contrary, the instructions and subsequent

reinstructions on an inference from the quantity of drugs possessed

were consistent with a large body of precedent.
See
Rose, 104 F.3d

at 1413. Specifically with regard to drug possession and intent to

distribute, this Circuit has recognized that possession of large

quantities of drugs permits the inference that the drugs are for

distribution and not personal use. See, e.g., United
States v

Echeverri, 982 F.2d 675, 678 (1st Cir. 1993); United
States v.

Ocampo-Guarin, 968 F.2d 1406, 1410 (1st Cir. 1992); United States

v. Batista-Polanco, 927 F.2d 14, 18-19 (1st Cir. 1991).

In this case, the trial judge gave somewhat more emphasis

than is usually given to one factor by saying that "it may be

unlikely that an individual in possession of a large quantity of

anabolic steroids" intends them "for his own use." The relatively

isolated placement of this remark in a reinstruction given in

response to a jury request added to the emphasis. The charge to

the jury must nevertheless be taken as a whole. See
United States

v. Boylan, 898 F.2d 230, 244 (1st Cir. 1990); United
States v.

Griffin, 818 F.2d 97, 100 (1st Cir. 1987); see also United States

v.
Acosta, 763 F.2d 671, 677 (5th Cir. 1985) (finding it proper for

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a trial judge to limit reinstruction to the specific request made

by a jury). Read in its entirety, the court's instructions explain

the applicable law appropriately and without misleading the jury.

See United
States v. Alzanki, 54 F.3d 994, 1001 (1st Cir. 1995).

The fact that one part of the instructions was repeated in response

to the jury's written request does not change our assessment that

the instructions taken as a whole were a fair and correct statement

of law. See Rose, 104 F.3d at 1416. See
also United
States v.

Ladd, 885 F.2d 954, 959 (1st Cir. 1989); Acosta, 763 F.2d at 677-

78.

As to the issue regarding the denial of the defendant's

request for instructions based upon 21 U.S.C. S 844(a), we perceive

no error on the part of the court. In relevant part, the statute

provides that "it shall be unlawful for any person knowingly or

intentionally to possess a controlled substance unless such

substance was obtained directly, or pursuant to a valid

prescription..." 21 U.S.C. S 844(a). The defendant's request was

flawed in that it would have placed in the mouth of the trial judge

an implied if not express statement that it was an undisputed fact

that Roberts obtained the steroids pursuant to a valid

prescription. It is true, without dispute in this record, that

Roberts obtained the prescription from a veterinarian licensed to

dispense steroids, and that the prescription was strictly for

animal use, not for human consumption. But no evidence in the

record even tends to prove that Roberts meant the steroids for

animal use. A defense request that the court give an instruction

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containing an implicit assumption of the truth of his contention,

unsupported by evidence, was thus a flawed request. The trial

judge did not err in declining to give this requested instruction.

See United States v. Silvestri, 790 F.2d 186, 193 (1st Cir. 1986)

(finding that a court need not instruct a jury on a defense theory

if there is no supporting evidence in the record).

V. SUFFICIENCY OF THE EVIDENCE

The beyond-reasonable-doubt burden applies to "every

element" of each offense charged but neither to all the subsidiary

inferences nor to "every hypothesis consistent with the defendant's

innocence." United States v. Spinney, 65 F.3d 231, 234 (1st Cir.

1995).

Although the strength of the evidence proffered against

Roberts was less than overwhelming, after considering the record in

full, we conclude that the evidence was sufficient for a reasonable

jury to find beyond reasonable doubt every element of the offenses

charged in the two counts of the indictment. We conclude that the

defendant's request for a judgment of acquittal must be denied.

CONCLUSION

For the reasons explained in this opinion, it is ORDERED:

The judgment convicting Daniel Roberts of the charges

stated in the two counts of the indictment is
VACATED. The case is

REMANDED for new trial. Costs are awarded to the appellant.

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