United States v. Azubike

United States Court of Appeals
For the First Circuit

No. 06-2255

UNITED STATES OF AMERICA,

Appellee,

v.

FRANKLIN C. AZUBIKE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

Boudin, Chief Judge,

Torruella and Dyk,* Circuit Judges.

James H. Budreau for the appellant.
James F. Lang, with whom, Michael J. Sullivan, United States
Attorney, and Cynthia A. Young, Assistant U.S. Attorney, were on
brief, for the appellee.

September 21, 2007

*
Of the Federal Circuit, sitting by designation.
 DYK, Circuit Judge. After a jury trial in the United

States District Court for the District of Massachusetts, appellant

Franklin Azubike (“Azubike”) was found guilty of (1) conspiring to

possess with intent to distribute heroin in violation of 21 U.S.C.

§ 846, and (2) possessing heroin with intent to distribute in

violation of 21 U.S.C. § 841. He asserts that the trial court

erred in failing to grant his motion for judgment of acquittal.

Alternatively, Azubike argues that the prosecution’s misstatements

during closing argument warrant a new trial. Although we find that

the evidence was sufficient to support the jury’s verdict, we

vacate Azubike’s convictions and remand for a new trial because we

find that the prosecutor’s misstatements could have improperly led

the jury to reach a guilty verdict.

BACKGROUND

I.

In considering the motion for judgment of acquittal, we

recite the facts in the light most favorable to the government.

See United States v. Olivo-Infante, 938 F.2d 1406, 1409 (1st Cir.

1991). This case stems from a scheme to import heroin from Uganda

into the United States. In 2005, Solomon Lui (“Solomon”), a

Sudanese businessman living in Uganda, set up a courier service as

a front for his heroin importation business. In January 2005, John

Kaggwa (“Kaggwa”), a Ugandan lawyer, introduced Solomon to Richard

Mukasa (“Mukasa”). Mukasa also had been a lawyer in Uganda but was

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now living in Malden, Massachusetts. Solomon falsely explained to

Mukasa that the purpose of the business was to send items and

clothes to Sudanese refugees in the United States. Solomon

proposed to send briefcases through a courier service to Mukasa’s

apartment in Malden, Massachusetts. The refugees’ relatives would

then pick up the package and pay Mukasa $300 per package. Mukasa,

Kaggwa, and Solomon would share the $300. Mukasa agreed to the

arrangement. Neither Mukasa nor Kaggwa was initially aware that

the courier business was a front and that heroin would be hidden in

the briefcases.

Five days after Mukasa’s conversation with Solomon, a

company called TNT Couriers telephoned Mukasa to tell him that a

package had arrived from Uganda. Solomon called Mukasa to confirm

that the package had arrived and told him that someone would call

to arrange to pick it up. Shortly thereafter, a man with a

Nigerian accent who identified himself as “Johnson” called Mukasa

and informed him that he was flying in from Houston, Texas to

retrieve the package and that he would be there on Saturday.

“Johnson” would not give Mukasa his telephone number. Mukasa was

concerned by the telephone call because the man did not have a

Sudanese accent, as would have been expected if he had been a

Sudanese refugee, and because the telephone number that he called

from had a Chicago area code. That Saturday Mukasa told the

receptionist in his building to give the package to “Johnson.” The

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receptionist reported that TNT Couriers never delivered the

package, and that although “Johnson” had come by he eventually

left.

In January or February of 2005, a second package was sent

to Mukasa. This time FedEx was the courier. The briefcase was

heavy and locked. Solomon called that evening and told Mukasa that

“Mike” would pick up the package. Mukasa asked about the earlier

package, and Solomon told him not to worry about it. Solomon

stated that both packages contained crafts and local clothing.

“Mike” called Mukasa the same night. He informed Mukasa that an

unnamed woman would pick up the package and would bring $300. Like

“Johnson,” “Mike” would not leave his telephone number. A woman

with an African American accent then called for directions because

she was driving up from New Jersey to pick up the package. When

she arrived, she told Mukasa that she did not know what was in the

briefcase. She gave Mukasa $300 and left. The next day, Mukasa

told Solomon that he had given the woman the package and had

received $300.

Shortly thereafter a third package was sent to Mukasa by

FedEx. The package contained a briefcase that was addressed to

Mukasa. The airbill indicated that the package was sent from “John

M.” in Kampala, Uganda, and stated that the briefcase contained

“African designed cloths” valued at $80. On February 13, 2005,

Immigration and Customs Enforcement (“ICE”) agents seized the

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package when it entered the United States and found that it had two

hidden compartments, each containing approximately one kilogram of

heroin. The hidden compartments were so secure and well hidden

that the agents only discovered the heroin by x-ray. On February

15, an undercover state police officer, dressed as a FedEx agent,

delivered the package to Mukasa. After Mukasa signed for the

package, he was approached by federal and state officers. When

told that the briefcase contained heroin, Mukasa agreed to

cooperate. He informed the agents that the package had been sent

by a man named Solomon in Uganda. While he denied knowing the

contents of the package, Mukasa admitted that he had been “a little

bit suspicious.”

The next day, at the agents’ direction, Mukasa spoke with

Solomon, informed him that the third package had arrived, and

implied that he knew the package contained drugs.1 Mukasa stated

that the $300 that he was paid was insufficient given the “big

risk” that he was taking. J.A. 47. Solomon agreed to pay Mukasa

$1500 for the next package and $2000 for additional packages. When

Mukasa asked whether Kaggwa knew about “this business,” Solomon

stated that “I have nobody who know[s] this business. . . . I am

a confidential man. John [Kaggwa] doesn’t know anything about

1
Mukasa said, “I know what’s going on. . . . I lifted
the thing, it was real heavy my friend.” J.A. 47. He explained
that “I haven’t opened [the package], but . . . I know, I wasn’t
born yesterday.” Id.

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this.” J.A. 48, 53. Solomon said that “Johnson” would pick up the

third package. In a conversation later that day, Solomon

reiterated that someone would be coming up from New York to pick up

the package and that he would be calling “now.” Solomon also

instructed Mukasa to remove Solomon’s address from the outside of

the package.

Later that day, “Johnson,” who was later identified as

Peter Ike, called Mukasa to tell him that he would be coming from

New York to pick up the package. Ike called again on February 17.

When Mukasa answered the telephone, he asked, “Who’s this,

Solomon?” J.A. 67. Ike answered, “Not Solomon, Johnson.” Id.

Mukasa said, “Oh, sorry, Johnson,” and Ike responded, “Yah, sound

like Solomon.” Id. Ike confirmed that he would arrive the next

day to pick up the package. On February 18, Ike and Mukasa

arranged to meet in a theater parking lot in Revere, Massachusetts.

Ike arrived, got into Mukasa’s car, gave Mukasa $1500, removed the

briefcase from Mukasa’s trunk, and left the parking lot.

Mukasa received a fourth briefcase from FedEx on March 4,

2005. Again the agents investigated the briefcase and found that

it contained fabric and clothes and two more kilograms of heroin in

hidden compartments. The agents removed the heroin and replaced it

with a bag containing confectioner’s sugar and 106 grams of heroin.

That day Solomon called Mukasa to say that “Mike” would retrieve

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the package and bring $2000.2 This “Mike” (later identified as Roy

Oki) called later that day to say that he would send someone to

pick up the package. On March 8 Oki called again to say that

“Franklin” (Azubike’s first name) was coming from New York to pick

up the package. Mukasa reminded Oki that he was to be paid $2000

for this package, and Oki confirmed that Solomon had told him so.

On Friday, March 11, Mukasa received a call from the

defendant, Azubike, who identified himself as “Al Hajji.” Al

Hajji was Azubike’s nickname in the Nigerian community. Mukasa

asked, “[I]s it Jonathan?”3 J.A. 96. Azubike responded that “I’m

Hajji. . . . Did Mike tell you about me . . . ?” Id. Mukasa

answered that “Mike told me about some guy called Jonathan,” id.,

and Azubike stated, “No, Al Hajji, Al Hajji.” Id. Azubike

explained that he was on his way to Boston and was already in

Connecticut. Mukasa informed Azubike that he could not retrieve

the package until Sunday. Azubike stated that he could not wait

until Sunday and that he would call Mukasa back. In a second

telephone call to Mukasa, Azubike asked whether they could meet a

day earlier, on Saturday. Mukasa responded that he was unsure

because he had to “look for the guy” who was keeping the package.

J.A. 98. Mukasa stated, “You know this business doesn’t need to be

2
It is not clear whether this “Mike” was the same
“Mike” who arranged for the pick up of the second package.
3
There is no indication in the record why Mukasa
would have thought someone named “Jonathan” would have called.

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like this,” and Azubike responded, “No, I don’t.” Id. Azubike did

not give Mukasa his telephone number and instead stated that he

would call Mukasa back.

Azubike telephoned a third time that day to check again

whether he could pick up the package earlier. Mukasa informed

Azubike that the package would not be available until Monday at 12

noon. Azubike exclaimed, “No, no. Oh my good God. This is . . .

bad. How can I be there, that will kill me, from Friday to Monday.

I must be out of my mind to be . . . .” J.A. 100. Mukasa

explained that he did not want his friend “to get involved in this

stuff . . . it’s between me and you and the other guy, . . . I

don’t want him to be involved.” Id. at 101. Mukasa further stated

that “I don’t want him to be suspicious, because he doesn’t know

much about this stuff.” Id. Azubike responded, “It’s OK, it’s OK.

You don’t have to say that on the phone. . . . Don’t say nothing

more, don’t say anything.” Id.

On Sunday, March 13, Azubike called Mukasa again and they

arranged to meet the following day. On Monday morning at 10:44

a.m., Mukasa called Azubike to let him know that he was an hour

away from the cinema parking lot in Revere, Massachusetts where

they had planned to meet. Azubike objected to the meeting

location, explaining that the cinema parking lot did not have

enough cars. They agreed to move the meeting across the street to

the Stop ‘N Shop parking lot. Azubike drove into the parking lot

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in a blue Impala that he had rented in Baltimore under the name

Michael Ifeonu. He got into the passenger seat of Mukasa’s Jeep

and paid Mukasa $2000. Mukasa told Azubike that the briefcase was

in the trunk of the Jeep and suggested that Azubike pull his Impala

closer. Azubike pulled his Impala next to the Jeep, removed the

briefcase from the trunk, and placed it in the trunk of the Impala

against the back seat. He rearranged the other luggage in the

trunk so that the briefcase was not visible when the trunk door

opened. He closed the trunk and began driving south.

Massachusetts state police officers stopped Azubike’s car

shortly thereafter. Upon questioning, Azubike stated that he had

been in Boston to visit his cousin and that he had stayed at the

Colonnade hotel. Azubike did not know where his cousin lived,

however. Officer Hanlon seized the briefcase, and told Azubike

that he wanted to search it. Azubike did not respond. Officer

Hanlon searched the briefcase and found the evidence bag containing

confectioner’s sugar and a small amount of heroin. He then

arrested Azubike.

II.

Azubike was indicted by a Grand Jury of (1) conspiring to

possess with intent to distribute heroin in violation of 21 U.S.C.

§ 846, and (2) possessing heroin with intent to distribute in

violation of 21 U.S.C. § 841. His trial began on March 20, 2006.

At trial, Azubike’s counsel argued that, although he may have known

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that he was engaged in “something improper,” there was insufficient

evidence to demonstrate that he knew that the briefcase contained

a controlled substance. In closing argument, defense counsel

argued that Solomon “hid[] the nature of his business” from the

couriers and that there was never any mention of Azubike in the

telephone calls between Mukasa and Solomon, nor did Oki or Ike

indicate that Azubike knew about the drugs. Mar. 27, 2006 TT 16-

17. He concluded that “there’s no evidence that Mr. Azubike knew

anything about those conversations, was a party to any of those

conversations, or even spoke to Mr. Solomon at all, ever, zero.”

Id. at 18. Defense counsel later reiterated, “He didn’t have any

conversations with Solomon that we know of.” Id. at 21.

In rebuttal to the defense’s closing argument, the

government argued that Azubike did in fact know Solomon.4 The

prosecutor stated to the jury:

[Y]ou will hear . . . that Mr. Azubike did
have knowledge about Solomon, and you will
hear that when Mr. Mukasa asked the caller,
that happened to be Al Hajji, “Oh, is this
Solomon?” Al Hajji said, “No, no, this is not
Solomon. Al Hajji. Al Hajji.” And what did
Mr. Mukasa say to him? “Oh, you sound like
Solomon.” And what did Mr. Al Hajji tell him?
“Yeah, Solomon.” He knew Solomon and he knew
Mike and he knew Peter Ike. Thank you.

Id. at 24. This statement ended the government’s rebuttal.

4
The prosecutor had stipulated during trial that
Solomon never mentioned “Al Hajji or Franklin Azubike or Franklin.”
Mar. 23, 2006 TT 42-43.

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 Immediately after the statement the court met with

counsel at the bench. During this conference, defense counsel

objected to the prosecutor’s statement as inaccurate. The court

responded, “I’ll tell the jury to listen carefully.” Id. at 27.

The court first reminded the jury that counsel’s statements are not

evidence and that “it is your recollection and your interpretation

that will have to carry the day.” Id. at 35. In addition to this

standard instruction, the court explained to the jury that “you

should review the evidence of the phone calls. I understand, by

the way, that counsel agree that Mr. Azubike did not mention the

name Solomon in any phone calls.” Id. at 43-44. At this point the

prosecutor interrupted and stated that “the government did not

agree with counsel with respect to the phone calls and Mr. Mukasa

making mention of Mr. Solomon.” Id. at 44. The court then

abandoned its effort to instruct the jury that counsel had agreed

that Azubike did not mention Solomon in any of the telephone calls.

The court merely stated to the jury:

[Y]ou need to listen to the tapes carefully,
but there is a clear difference between the
government and the defendant as to what was
said and the defendant does not believe that
he mentioned Solomon and the government says
he did, for whatever purpose you use that
testimony.
Id.

Following the jury instruction, defense counsel again

objected to the government’s statement and the court’s instruction

during a bench conference. Id. at 52. In response, the prosecutor

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argued that there was in fact a conversation where Azubike

acknowledged Solomon. Id. The court did not further instruct the

jury on this issue.

Immediately after the jury began deliberations, on March

28, 2006, Azubike filed a motion for a mistrial based on the

prosecutor’s misstatement.5 Later that day, the jury returned a

guilty verdict on both counts. On March 31, the defendant again

raised both arguments in a motion for judgment of acquittal

notwithstanding the jury’s verdict or, alternatively, motion for a

new trial. The district court denied the motion for a mistrial as

moot and denied the motion for judgment of acquittal.

DISCUSSION

I.

Azubike first argues that the district court erred in

denying his motion for judgment of acquittal because the evidence

was insufficient to prove an essential element of each of his

convictions, namely that he “knowingly and intentionally” possessed

a controlled substance with an intent to distribute. See 21 U.S.C.

§ 841 (possession with intent to distribute); 21 U.S.C. § 846

(conspiracy to possess with intent to distribute); see also United

States v. Cruz, 981 F.2d 613, 616 (1st Cir. 1992) (proof of

5
On March 24, 2006, at the close of evidence, Azubike
filed a motion for judgement of acquittal on the ground that the
evidence was insufficient to support a guilty verdict. The court
reserved ruling on this motion until after trial.

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knowledge also required for conspiracy). In other words, Azubike

argues that the government failed to prove beyond a reasonable

doubt that he knew that the briefcase contained a controlled

substance.

This court reviews a district court’s denial of a motion

for judgment of acquittal without deference. United States v.

Thomas, 467 F.3d 49, 53 (1st Cir. 2006). Thus we must determine

whether “any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” United States v.

Olivo-Infante, 938 F.2d 1406, 1409 (1st Cir. 1991).

As both the district court recognized and the government

acknowledges, this is a close case. Nonetheless, upon careful

review of the evidence, we conclude that the evidence was

sufficient to support the jury’s verdict.

It is undisputed that a rational jury could infer that

Azubike knew that the briefcase contained something illegal. See

Appellant’s Br. at 29-30. The circumstantial evidence to this

effect is quite substantial. Azubike drove to Massachusetts from

Baltimore (or New York) in a car that he rented under a false name,

Michael Infeonu. He initially refused to give Mukasa his telephone

number. When Mukasa eventually told Azubike where to meet him,

Azubike stated, “I don’t like that place.” J.A. 117. He later

explained that the meeting place was not safe because “[t]here are

no cars there.” J.A. 119. Once a meeting place was decided upon,

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Azubike pulled his car close to Mukasa’s vehicle, exchanged $2000

for the briefcase, and placed the briefcase in his trunk taking

care to arrange the contents of the trunk so that the briefcase was

not visible. Finally, when Azubike was ultimately arrested, he

lied to the police that he had been visiting his cousin and there

was no evidence that he had stayed at the Colonnade hotel. See

United States v. Hadfield, 918 F.2d 987, 999 (1st Cir. 1990)

(finding that the evidence was “bolstered” by the defendant’s “tall

tale”). This circumstantial evidence leads to the inference that

Azubike knew that he was engaged in an illegal activity.

Azubike argues, however, that this circumstantial

evidence alone is insufficient to support the jury’s verdict

because the jury could not have found beyond a reasonable doubt

that Azubike knew that the package contained a controlled

substance.6 Azubike asserts that he could have thought that the

briefcase contained other illegal items such as counterfeit

currency or diamonds. We disagree and find that the evidence that

6
See United States v. Cruz, 363 F.3d 187, 198 (2d
Cir. 2004) (“Proof that the defendant knew that some crime would be
committed is not enough.”) (quoting United States v. Friedman, 300
F.3d 111, 124 (2d Cir. 2002)); United States v. Cartwright, 359
F.3d 281, 286 (3d Cir. 2004) (“Although [the] evidence may be
sufficient to prove that Cartwright knew he was participating in
some sort of illegal transaction, these facts nonetheless are
insufficient to prove beyond a reasonable doubt that Cartwright
knew the transaction involved drugs.”); United States v. Thomas,
114 F.3d 403, 405-06 (3d Cir. 1997) (insufficient evidence where
the defendant “knew that he was somehow involved in an illicit
activity” but there was no evidence that he “knew that drugs were
involved”).

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Azubike knew that the briefcase contained a controlled substance

was sufficient to sustain the jury’s guilty verdict.

First, in a conversation between Mukasa and Azubike,

Azubike indicated that he knew what was in the briefcase. Mukasa

stated that “I don’t want [my friend] to get involved in this stuff

. . . because it’s between me and you and the other guy . . . I

don’t want him to be involved.” J.A. at 101. Mukasa again stated,

“I don’t want him to be suspicious, because he doesn’t know much

about this stuff.” Id. In response, Azubike indicated that they

should not have that conversation over the telephone. He stated

that “[i]t’s OK, it’s OK. You don’t have to say that on the phone.

. . . Don’t say nothing more, don’t say anything.” Id. This

conversation does not necessarily indicate that Azubike knew there

were drugs in the briefcase, but it does provide a basis for the

jury to infer that Azubike knew what was in the briefcase and that

its contents should not be discussed over the telephone.

Second, the jury could infer that Azubike had knowledge

of the contents of the briefcase given his close association and

familiarity with Oki (because of Azubike’s reference to him in the

telephone calls with Mukasa) and Ike (because of documents found

after Azubike’s arrest).7 The jury could have inferred that Oki

7
After Azubike was arrested, the police found a small
date book in his car that included a “home” telephone number for
Peter Ike’s wife, Augusta. A subsequent search of Azubike’s
storage unit in New York revealed three other documents connecting
Azubike to Ike: (1) a piece of paper with an address for “Ike,

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and Ike knew the contents of the briefcase from their

organizational role in the conspiracy and their direct relationship

with Solomon, and that their relationship with Azubike led them to

inform him of the contents. See Thomas, 467 F.3d at 54 (noting

that the defendant was in direct contact with the confidential

informant).

Finally, this court has recognized that a reasonable

inference of knowledge arises when the defendant is trusted with

possession of a large amount of drugs. This is because drug

organizations do not usually take unnecessary risks by trusting

critical transactions to outsiders. See id.8 In Thomas, this

court found that the large size of the drug operation made “it less

plausible that Thomas was wholly ignorant of the criminal

Peter/Augusta”; (2) a business card with “Ik, Peter” handwritten on
the back and a telephone number; and (3) a notebook listing “Ik,
Peter” along with four telephone numbers (telephone records showed
that one of these numbers called Azubike on February 5, 2005, and
March 10, 2005).
8
See United States v. DiMarzo, 80 F.3d 656, 661 (1st
Cir. 1996) (“As we have repeatedly recognized, a jury is free to
rely on its common sense, and may infer that criminal conspirators
normally do not involve innocent persons at critical stages of a
drug deal.”) (internal citations omitted); United States v. Ortiz,
23 F.3d 21, 25 (1st Cir. 1994) (“This trust . . . permits a
reasonable inference of criminal complicity between defendant and
[the person providing the drugs].”); United States v. Tejeda, 974
F.2d 210, 213 (1st Cir. 1992) (“[T]he fact finder may fairly infer
. . . that it runs counter to human experience to suppose that
criminal conspirators would welcome innocent nonparticipants as
witnesses to their crimes.”); see also Olivio-Infante, 938 F.2d at
1409; United States v. Batista-Polanco, 927 F.2d 14, 18 (1st Cir.
1991).

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operation” because “smuggling operations . . . involving millions

of dollars do not take unnecessary risks, instead opting for

trusted and close associates . . . who are aware of the high

stakes.” Id. Here Azubike was transporting two kilograms of

heroin. The inference that knowledge follows from the large amount

of drugs is undermined here by the facts that Solomon attempted to

conceal the nature of the business from mid-level associates such

as Mukasa, that Mukasa was initially unaware of the contents of the

briefcase, and that the drugs were expertly concealed. However,

the jury could also have reasonably inferred that Azubike would not

be trusted with this task if he did not know that the briefcase

contained a controlled substance.

In summary, a careful review of all the evidence leads us

to conclude that the evidence was sufficient to sustain the jury’s

guilty verdict. For the same reasons that Azubike is not entitled

to acquittal, he is not entitled to new trial on the grounds that

the jury verdict was against the weight of the evidence.

II.

Azubike’s second argument on appeal is that the

prosecutor’s misstatements prejudiced the outcome of the case,

warranting a new trial.

We first determine whether the prosecutor’s statements

constituted misconduct (we use the term here and below not to

suggest deliberate wrongdoing but rather to signal a statement of

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fact that is mistaken or unsupported by any evidence). See Berger

v. United States, 295 U.S. 78, 85 (1935); see also United States v.

Joyner, 191 F.3d 47, 53-54 (1st Cir. 1999). Here it is clear that

the prosecutor’s statements were incorrect. The prosecutor stated

to the jury :

[Y]ou will hear . . . that Mr. Azubike did
have knowledge about Solomon, and you will
hear that when Mr. Mukasa asked the caller,
that happened to be Al Hajji, “Oh, is this
Solomon?” Al Hajji said, “No, no, this is not
Solomon. Al Hajji. Al Hajji.” And what did
Mr. Mukasa say to him? “Oh, you sound like
Solomon.” And what did Mr. Al Hajji tell him?
“Yeah, Solomon.” He knew Solomon and he knew
Mike and he knew Peter Ike. Thank you.

Mar. 27, 2006 TT 24. The government admits that this recitation of

the evidence was factually inaccurate. See Appellee’s Br. at 29.

Accordingly, the misstatements constituted prosecutorial

misconduct. See Berger, 295 U.S. at 84; see also Joyner, 191 F.3d

at 54; 3 Charles Alan Wright, et al., Federal Practice & Procedure

§ 555 (3d ed. 2007)(“It is misconduct for a prosecutor to make an

assertion to the jury of a fact, either by way of argument or by an

assumption in a question, unless there is evidence of that fact.”).

Since the statements constituted misconduct, we must then

determine whether they resulted in prejudice to the defendant.

United States v. Giorgi, 840 F.2d 1022, 1037 (1st Cir. 1988) (“Even

were we to find the prosecutor's methods improper, that alone would

not suffice to reverse the conviction. . . . [A] party must show

both misconduct and resulting prejudice.” (citing Berger, 295 U.S.

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at 89)). The test is “whether the prosecutor’s misconduct ‘so

poisoned the well’ that the trial’s outcome was likely affected,

thus warranting a new trial.” Joyner, 191 F.3d at 54. Because

defense counsel timely objected to the misstatement,9 we review for

9
The government argues that defense counsel’s
objection to the misstatement was not timely. We disagree. The
prosecutor’s misstatement was the last thing said before the
prosecutor ended her rebuttal argument. Defense counsel objected
to the statement during the bench conference that immediately
followed the rebuttal. Counsel stated:

I also want to put on the record my objection
to the reply by Miss Leoney. There’s nothing--
there are no tapes in there that show that Mr.
Azubike mentioned the name Solomon. There’s
one reference where Mr. Mukasa says . . .
something about Mr. Solomon and that’s it. She
was referring to the Jonathan issue where Mr.
Mukasa said, “Are you Jonathan?” He says, “I’m
Al Hajji.” Doesn’t say Solomon.

Mar. 27, 2006 TT 27. Although the objection was not made during
rebuttal itself, the objection was made immediately thereafter
during the sidebar conversation. In United States v. Mandelbaum,
this court found that an objection was timely where the
prosecutor’s misstatement occurred during closing argument and
defense counsel did not object until a sidebar following the
prosecutor’s rebuttal. 803 F.2d 42, 44 n.1 (1st Cir. 1986). This
court stated:

[A]lthough defendant's objection should have
been made earlier, it was still made before
the jury retired and in time for the judge to
take corrective action if he had felt it was
necessary. A stricture governing the timing
of objections should not be employed woodenly,
but should be applied where its application
would serve the ends for which it was
designed. If it be applied blindly and
without the benefit of analysis of particular
fact situations before individual courts in
specific cases, it will be transformed from a
sound principle of judicial administration

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harmless error. Id. at 53. In such cases, this court has applied

a three part test: (1) whether the prosecutor’s conduct was

isolated and/or deliberate; (2) whether the trial court gave a

strong and explicit cautionary instruction; (3) whether it is

likely that any prejudice surviving the instruction could have

affected the outcome of the case. Id. at 54; see also United

States v. Cormier, 468 F.3d 63, 73 (1st Cir. 2006).

Applying the first portion of the test, we accept the

government’s argument that the misstatements were not deliberate

and only involved a mistaken recollection of the evidence.

However, the prosecutor made the misstatement twice in front of the

jury. The prosecutor’s first misstatement was made during rebuttal

to the closing argument--the last argument before the jury

instruction. We have recognized that prejudicial statements made

during closing argument “militate in favor of reversal” because

they are “the last words spoken to the jury by the trial

attorneys.” United States v. Manning, 23 F.3d 570, 575 (1st Cir.

1994). This error was compounded when the prosecutor later

interrupted the court’s jury instruction. When the court explained

into a trap for the unwary.

Id. (internal quotation marks omitted). The only other cases
relied on by the government expressly did not decide the issue of
whether the objection was timely. See Fonten Corp. v. Ocean Spray
Cranberries, Inc., 469 F.3d 18, 21-22 (1st Cir. 2006); United
States v. Potter, 463 F.3d 9, 23-24 (1st Cir. 2006); United States
v. Laboy-Delgado, 84 F.3d 22, 31 n.7 (1st Cir. 1996). Accordingly,
we find that the objection here was timely.

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to the jury that “you should review the evidence of the phone

calls. I understand, by the way, that counsel agree that Mr.

Azubike did not mention the name Solomon in any phone calls,” Mar.

27, 2006 TT 43-44, the prosecutor interrupted and stated that “the

government did not agree with counsel with respect to the phone

calls and Mr. Mukasa making mention of Mr. Solomon.” Id. at 44.

At this point, the judge abandoned the instruction and simply

instructed the jury “to listen to the tapes carefully.” Id. While

the misstatement here only occurred twice, see Joyner, 191 F.3d at

54, the second incident served to strongly emphasize the incorrect

testimony.

Second, we find that the court’s instructions that

counsel’s arguments are not evidence and “to listen to the tapes

carefully” were not particularly useful in the circumstances of

this case. Both parties recognize that there were large gaps and

unintelligible portions of the tape-recorded conversations.10 The

tapes were sufficiently difficult to understand that, when they

were played at trial, a transcript was provided to the jury for use

during the testimony. Mar. 21, 2006 TT 62. The court stated to

the jury:

[T]he evidence that you will have to use in
deliberating on your verdict is the tape
itself. The transcripts are simply designed
to help you understand what may not be so

10
Indeed, we have listened to the tapes and agree that
they are difficult to understand and in parts are unintelligible.

-21-
 easily understood, but it is what’s on the
tape that you must rely on in reaching your
verdict.

Id. Once the tapes were played, the court stated in front of the

jury, “I must confess, I didn’t understand a single word of that.”

Id. at 63. Defense counsel agreed, “I thought it was just me, your

Honor,” and the prosecutor explained that this was “the reason why

the transcripts were made.” Id. While the tapes were available to

the jury during deliberations, the transcripts were not. Thus the

court’s instruction “to listen to the tapes carefully” was not as

helpful as it would have been if the tapes had been clearer.

Finally, this was a close case and the prosecutor’s

misstatements went to the heart of Azubike’s defense. At oral

argument, counsel for the government conceded that “the government

recognizes . . . that this was a close case as did the district

court. The government does not stand here contending that no

verdict other than a guilty verdict could sensibly have been

returned.” The district court itself also recognized that this was

a difficult case. The court stated, “I find this a very thin case

and I’m really troubled by it.” Mar. 27, 2006 TT 4.

Here there was no direct evidence that Azubike knew what

was in the package, and the government was required to prove

Azubike’s knowledge through inference. The inference that Azubike

knew what was in the briefcase was undermined by the fact that the

heroin was securely hidden in the briefcase and that Solomon took

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efforts to conceal the nature of the business from Mukasa. Thus

Azubike’s role in the organization was a central issue. See United

States v. Santana-Camacho, 833 F.2d 371, 374 (1st Cir. 1987)

(remanding where “[t]he prosecutor’s erroneous remark strongly

fortified the government’s theory”). The government argues on

appeal that whether Azubike knew Solomon was insignificant because

there was evidence that Azubike knew Ike, who in turn worked

directly with Solomon. The government’s argument is unpersuasive.

The higher up in the organization Azubike stood, the more likely it

was that he was told that drugs were involved. While connecting

Azubike to Ike was helpful to the government, connecting him to

Solomon by evidence that Azubike had mentioned Solomon was even

more helpful. This is indeed presumably why the prosecutor

emphasized the supposed conversation in which Azubike mentioned

Solomon. We find that the prosecutor’s misstatements were

significant in the context of this case.11 We have held in Part I

11
The significance of the misstatement is perhaps
somewhat weakened by the fact that Mukasa mentioned Solomon in a
conversation with Azubike. During the discussion of Azubike’s
delay in picking up the briefcase, the following exchange occurred:

Mukasa: No, it’s Mike’s fault. But then
Mike is, is messing us up, us both.
. . .

Azubike: But, but what’s going to happen?

Mukasa: Because Solomon called me long time,
like, like ten days ago and I’ve
been here all the time.

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that the evidence was sufficient for the jury to convict Azubike,

but the fact that there was sufficient evidence to convict does not

mean that the jury would have convicted absent the prosecutor’s

improper remarks. We note that this court has stated repeatedly

that “a crucial factor is the weight of the evidence of the

defendant[‘s] guilt or innocence.” Arrieta-Agressot v. United

States, 3 F.3d 525, 528 (1st Cir. 1993).12

The government argues that the prejudice of a

prosecutorial misstatement does not survive a jury instruction to

consider the evidence or that the prosecutor’s statements are not

evidence. In most of the cases in which a standard corrective

instruction was held sufficient to dissipate all prejudice, there

was “overwhelming evidence of [the defendant’s] guilt, which

“eliminate[d] any lingering doubt that the remarks could have

unfairly prejudiced the jury’s deliberations.” Joyner, 191 F.3d at

Azubike: No no no, forget about that. What
is going to happen? Forget about
what happened.

J.A. 100. However, Azubike did not clearly indicate that he knew
who Solomon was and did not himself mention Solomon.
Significantly, the government did not rely on this exchange either
at closing argument or at trial. Nor does the government rely on
this exchange on appeal with respect to the prejudice question.
12
See, e.g., Joyner, 191 F.3d at 54; Ortiz, 23 F.3d at
26; Santana-Camacho, 833 F.2d at 373-74; see also United States v.
Simpson, 479 F.3d 492, 504 (7th Cir. 2007) (noting that “where the
circumstantial evidence against Simpson was close” the prosecutor’s
improper argument was “powerful”).

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54.13 In other cases, the misstatements were peripheral to the

defense. See United States v. Bey, 188 F.3d 1, 8 (1st Cir. 1991)

(finding that the prosecutor’s misstatements were irrelevant to

Bey’s theory that he was “an innocent dupe”); see also United

States v. Lowe, 145 F.3d 45, 48, 50 (1st Cir. 1998) (affirming a

conviction where there was ample evidence supporting the verdict

and the misstatement apparently was not central to the defense).

Other cases hold that where the evidence was close, and

the misstatement goes to a central issue in the case, an

instruction to consider the evidence may well be insufficient. In

United States v. Watson, 171 F.3d 695 (D.C. Cir. 1999), “the

prosecutor misstated a defense witness’ testimony on a critical

point and did so while purporting to quote the witness’ testimony.”

Id. at 698. The district court instructed the jury that “counsel’s

questions, statements, and arguments are not evidence.” Id. at

699. The District of Columbia Circuit vacated the conviction,

reasoning that “the case was close” and the misstated “testimony

13
See United States v. Allen, 469 F.3d 11, 16 (1st
Cir. 2006) (“the prosecutor’s misstatement was simply not
significant enough to have affected the outcome of the case”);
United States v. Ortiz, 447 F.3d 28, 35-36 (1st Cir. 2006) (finding
that the prosecutor’s misstatement was not plain error because the
defendant’s own admission “support[ed] an inference that he was
familiar with drug dealing and thus an unlikely innocent
bystander”); Ortiz, 23 F.3d at 26 (“there was a significant amount
of circumstantial evidence supporting the jury’s finding”); see
also United States v. Morales-Cartagena, 987 F.2d 849, 854 (1st
Cir. 1993) (“[The misleading comments] were isolated and, in
relation to the body of evidence received during trial, relatively
insignificant.”).

-25-
concerned a central issue in the case.” Id. at 700-01. The court

concluded that “the [jury] instructions given could neither undo

the error nor mitigate its prejudicial effects under these

egregious circumstances.” Id. at 702.

The Second Circuit also has vacated a conviction where

the prosecutor repeatedly misstated the evidence even though the

district court sustained the defendant’s objections and stated to

the jury that “it’s your recollection of the evidence that counts

and not counsel’s.” United States v. Forlorma, 94 F.3d 91, 94 (2d

Cir. 1996). The Second Circuit found that “although the trial

judge sustained the defendant’s objections, we cannot be confident

that the judge’s unexplained ruling dispelled the misperception

that was likely caused by the baseless argument,” id. at 95, and

stated that “we do not think these rulings and instructions were

sufficient to undo the effect of the highly prejudicial inaccurate

argument.” Id. at 95-96.14 This case seems to be quite similar to

14
See also United States v. Carter, 236 F.3d 777, 787,
791 (6th Cir. 2001) (finding that “measures more substantial than
a general instruction that ‘objections or arguments made by the
lawyers are not evidence in the case’ were needed to cure the
prejudicial effect of the prosecutor’s comments during closing
arguments,” particularly where “the cumulative weight of [the]
evidence [was not] overwhelming”); United States v. Mastrangelo,
172 F.3d 288, 297-98 (3d Cir. 1999); United States v. Teffera, 985
F.2d 1082, 1089 n.6 (D.C. Cir. 1993) (not reaching the
prosecutorial misconduct issue but stating that if it did “we would
have had to reverse” because “a curative instruction would not have
sufficed . . . [where] [t]he prosecutor referred repeatedly to this
phantom evidence, it was a key part of his closing remarks, and the
government’s other evidence was weak”).

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Watson and Forlorma, and we agree with the approach taken by our

sister circuits in these cases.

To be sure this would have been quite a different case if

the district court had corrected the error in the prosecutor’s

statement. See United States v. Mangual-Garcia, Nos. 05-2275,-

2414, slip op. at 8-10 (1st Cir. Sep. 18, 2007) (finding that a

specific instruction to disregard testimony was sufficient to cure

claimed prosecutorial misconduct). However, since there was no

such correction, and since the evidence was close and the

misstatement went to a central issue and was repeated, we conclude

that “the prosecutor’s misconduct ‘so poisoned the well’ that the

trial’s outcome was likely affected, thus warranting a new trial.”

Joyner, 191 F.3d at 54.

III.

Azubike’s convictions and sentence are vacated and the

case is remanded for proceedings consistent with this opinion.

Vacated and Remanded.

Dissenting Opinion Follows.

-27-
 TORRUELLA, Circuit Judge (Dissenting). Even viewing the

evidence in the light most favorable to the Government and drawing

all reasonable inferences in its favor, I remain unconvinced that

a rational trier of fact could have found one of the "essential

elements" of this crime beyond a reasonable doubt, United States v.

Olivo-Infante, 938 F.2d 1406, 1409 (1st Cir. 1991): that Azubike

"knowingly and intentionally" possessed a controlled substance.

21 U.S.C. § 841(a).

While Azubike concedes that a rational jury could infer

that he knew the briefcase contained something illegal, Appellant's

Br. 29-30, the real question is whether there is sufficient

evidence on this record to establish beyond a reasonable doubt that

he knew it contained narcotic drugs. See United States v. Nieves-

Castaño, 480 F.3d 597, 599 (1st Cir. 2007) ("[K]nowledge that one

is guilty of some crime is not the same as knowledge that one is

guilty of the crime charged." (emphasis in original)). After my

own careful review of the Government's evidence, I am simply unable

to conclude that it was sufficient to support the finding that

Azubike -- any more than TNT Couriers, Musaka, or Kaggwa -- knew of

the drugs, especially considering the substantial efforts made by

Solomon to conceal the nature of his business and, as the majority

points out, the difficulties ICE had in uncovering the secret

compartment containing the drugs. Indeed, several aspects of how

this enterprise operated would seem to raise many of the same

-28-
questions for the other persons involved in it as for Azubike -- in

particular, that they would be paid such a sum of money for their

assistance in transporting the small amount of clothes that could

fit into a briefcase, and that clothes for Sudanese refugees would

be shipped in such unusual packaging. Had these other persons been

charged under 21 U.S.C. § 841(a) on the present state of the

record, they would face the same dilemma as Azubike, given the low

threshold found by the majority to sustain culpability.

The simple fact is that what the Government proved could

equally sustain a finding that Azubike believed he was carrying

smuggled diamonds or other high-value contraband from Africa. In

light of the degree of ambiguity in the evidence, the Government

has not met its constitutional burden of establishing beyond a

reasonable doubt that Azubike had the required criminal scienter

with respect to the drugs. Hence, the district court should have

granted Azubike's motion for judgment of acquittal.

Because I would reverse and direct entry of a verdict of

acquittal, I respectfully dissent.

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