United States v. Carpenter

United States Court of Appeals
For the First Circuit

No. 11-2131

UNITED STATES,

Appellant,

v.

DANIEL E. CARPENTER,

Defendant, Appellee.

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

[Hon. George A. O'Toole, Jr., U.S. District Judge]

Before

Lynch, Chief Judge,
Stahl and Howard, Circuit Judges.

Kelly Begg Lawrence, Assistant U.S. Attorney, with whom Carmen
Ortiz, United States Attorney, was on brief, for appellant.
Martin G. Weinberg, with whom Robert M. Goldstein was on
brief, for appellee.

November 25, 2013
 LYNCH, Chief Judge. The question in this case is whether

comments in the government's closing argument at a second criminal

trial were improper and whether they accordingly warranted a new

trial, as the district court held. See United States v. Carpenter,

808 F. Supp. 2d 366, 380-85 (D. Mass. 2011).

Defendant Daniel Carpenter has now been tried twice on

charges of wire fraud and mail fraud. Both times, the jury

returned a conviction. After the first trial in 2005, the district

court upset the conviction and ordered a new trial on the grounds

that the government's closing argument was improper and may have

tainted the jury's verdict. See United States v. Carpenter, 405 F.

Supp. 2d 85, 101-03 (D. Mass. 2005). We upheld that decision by a

divided panel. See United States v. Carpenter, 494 F.3d 13, 29

(1st Cir. 2007).

The case was retried in 2008 and the government made a

different closing argument. The jury again convicted. The

district court again granted a new trial, finding that the

different closing argument led the jury to convict on an improper

basis. See Carpenter, 808 F. Supp. 2d at 385-86. Because the

government's comments in its closing argument at the second trial

were not improper, we reverse, reinstate the jury's verdict of

conviction, and remand for sentencing.

-2-
 I.

A. Background

During the late 1990s, Carpenter ran a business,

Benistar,1 which specialized in conducting "§ 1031 exchanges" for

investment property owners. Section 1031 exchanges take their name

from a provision of the federal tax code, 26 U.S.C. § 1031, which

allows an owner of investment property to defer paying capital

gains taxes upon the sale of the property if the property is

"exchanged" for property "of like kind." The funds from the

initial sale may be held temporarily in cash form with no tax

penalty as long as they are used to purchase new property within

180 days and as long as the investor designates the replacement

property within 45 days. See 26 U.S.C. § 1031(a)(3). Under

federal regulations, the exchangor may not take possession of the

funds before purchasing the new property. See 26 C.F.R.

§ 1.1031(k)-1(a). As a result, exchangors typically rely on

"qualified intermediaries" to hold and invest the funds until the

exchange is completed.

B. Benistar's Marketing Materials

Benistar offered its services as a qualified

intermediary, managing the proceeds from an exchangor's initial

1
There were two related corporate entities -- collectively,
"Benistar" -- involved in Carpenter's business: Benistar, Ltd., the
primary corporation, and Benistar Property Exchange Trust Company,
Inc., a later-formed subsidiary. The distinction between the
corporate identities is not relevant.

-3-
sale until the § 1031 exchange was completed. In advertising

itself to potential exchangors, Benistar provided a set of

marketing materials, including a PowerPoint slide show, a set of

"Frequently Asked Questions about 1031 Property Exchange," an

article on § 1031 exchanges authored by Benistar's principal

marketer and published in the New England Real Estate Journal, and

other information. When exchangors decided to work with Benistar,

they would also receive a set of forms setting out the terms of the

accounts they would hold with Benistar.

Carpenter did not directly solicit exchangors, nor did he

create the marketing materials. However, he did review all of the

marketing materials and approved their use.2 He also executed for

Benistar many of the contracts the exchangors entered with the

company.

On the government's theory of prosecution, the marketing

materials effectively promised at multiple points that exchangors'

funds would be kept safe and secure. One of the PowerPoint slides,

for example, was entitled "Choosing an Intermediary" and listed

several factors that clients should consider. The fourth factor

2
Benistar affiliates other than Carpenter may have made oral
representations to prospective exchangors, which Carpenter argued
were unauthorized and therefore unattributable to him. We need not
evaluate that evidence, however, because the jury's guilty verdict
for all nineteen charges, some of which related to exchangors who
received no oral representations, indicates that it found the
written materials alone to be sufficient. We consider only the
written marketing materials.

-4-
was labeled "Security of Funds" and stated that exchangors should

"[a]sk about the security of your funds, and find out what

guarantees are offered." The next slide went on to state: "Merrill

Lynch Private Bank is used for all our escrow accounts. This

provides a 3% - 6% interest on the escrow."

Likewise, the "Frequently Asked Questions" document

included a question asking "What will the intermediary do with my

money?" The answer provided:

[Benistar] has a long-standing reputation for
trustworthiness, and is . . . the largest 419
trust plan administrator in the nation.

Benistar has accounts with major banking and
investment firms, such as Merrill Lynch. . . .
Escrow accounts are restricted to paying out
funds only for a subsequent closing, or to
return funds to the original property owner.

A similar set of "IRC § 1031 Property Exchanges: Frequently Asked

Questions" on Benistar's website listed the question, "Can I Trust

[Benistar] with My Money?" The answer explained:

[W]e protect your assets:
• We have accounts with major banking and
investment firms -- accounts under our sole
control, as required for these
exchanges. . . .
• Our accounts are restricted to paying out
funds only for a subsequent closing, or to
return funds to the original property owner.
• We distribute funds only at your written
request.

Several other components of the promotional materials bore out

similar themes.

-5-
 Exchangors using Benistar as an intermediary were given

the choice to have their money invested during the pendency of

their exchanges for either a 3% or 6% annualized return. After

sending in their funds from the initial sale, exchangors received

a confirmation letter stating: "We have received $____ of sales

proceeds, which we are holding for your benefit. These funds are

accruing interest at %___." The second blank would be filled in

with either 3% or 6%. The 3% choice, which was selected for the

majority of the funds in the case, was called a "Merrill Lynch

Ready Asset Money Market Account" in several of the documents,

including the account selection form and the Escrow Agreement that

the exchangors signed.

The government alleges that these materials, taken

together, led exchangors to believe that their funds would be

invested in "safe," interest-bearing "escrow" accounts guaranteeing

a 3% or 6% return, when in fact their funds were not kept in safe

investments.

C. Carpenter's Trading Strategy and Losses

In reality, Carpenter used the exchangors' funds to trade

in risky assets, including stock options. Carpenter primarily sold

"put" options, which allow the optionholder to sell shares of stock

to the option seller in the future at an agreed-upon price within

an agreed-upon timeframe. Generally, the holder of a put option

will make money when the price of the underlying stock decreases

-6-
during the option period, while the seller of the option will make

money when the price of the underlying stock increases during the

option period. Many of Carpenter's trades were "naked" or

"uncovered," meaning that Carpenter did not own the underlying

shares or take an offsetting position. Naked or uncovered option

trading increases a trader's risk of loss.

Carpenter's trading strategy succeeded at first, from

1998 to 2000, and the additional gains beyond the promised 3% or 6%

annualized return increased the company's, and his own, profit.

During that time, Benistar's clients were paid the amounts promised

to them. But Carpenter's investments began to turn in the spring

of 2000. From late March to late May 2000, Carpenter lost

approximately one million dollars from Benistar's Merrill Lynch

trading account as various stocks fell significantly during the

option periods. Carpenter's strategy ultimately failed completely

when the NASDAQ stock market crashed in late 2000. By the end of

September 2000, Carpenter had lost about four million dollars.

The period covered by the indictment started to run after

Carpenter had already suffered significant losses. Even as

Carpenter's losses mounted, Benistar continued soliciting business

using the same marketing materials with the same language about

safety, escrow accounts, and promised rates of return, even though

Carpenter continued to employ the same trading strategy. By the

beginning of 2001, Carpenter had lost approximately nine million

-7-
dollars belonging to seven exchangors who had contracted with

Benistar between August and December 2000. Those exchangors were

never paid the promised 3% or 6% interest and lost the vast

majority of their principal.

D. Procedural History

1. First Trial

On February 4, 2004, Carpenter was indicted with nineteen

counts of wire fraud and mail fraud in violation of 18 U.S.C.

§§ 1343 and 1341, respectively. The government alleged that

Carpenter had fraudulently induced the exchangors to use his

company to perform their exchanges in part through false promises

that their money would be kept in safe, interest-bearing accounts.

Each of the counts charged in the indictment relates only

to those exchangors who engaged Benistar's services in the period

after Carpenter began incurring losses in spring of 2000. The

earliest deposit charged in the indictment occurred in August 2000,

and the majority occurred in November or December 2000. The

charges were based in part on the theory that Carpenter intended to

deceive the exchangors as shown by his continuing to make the same

representations to them about the handling of their money even

after he knew of his investment strategy's failures.

Carpenter's defense centered on the arguments that the

marketing materials never promised that the funds would be kept in

"safe" accounts, that these were sophisticated investors, and that

-8-
while Carpenter did want to make money, there was nothing wrong

with his motives and he never had the requisite intent to defraud

at the time any representations were made. Carpenter noted in

particular that the contracts the exchangors signed clearly and

explicitly granted Benistar unlimited discretion to invest their

funds.

The case went to its first trial in July 2005. After a

thirteen-day trial, a jury found Carpenter guilty on all nineteen

counts after about six hours of deliberation. The next week, on

August 5, 2005, Carpenter filed motions for acquittal and for a new

trial. On December 15, 2005, the district court denied the motion

for acquittal but granted the motion for a new trial on the grounds

that the government's closing argument had improperly made use of

an extended metaphor portraying Carpenter's actions as gambling.

The court explained that evidence of the losses Carpenter had

actually sustained had been admitted for the limited purpose of

proving intent, but the government had repeatedly conjured it

improperly in its closing argument's references to gambling. The

district court found that in light of the overall strength of the

case, which was not overwhelming and would have allowed a rational

jury to acquit, it was possible that the government's improper

closing arguments had tainted the jury's verdict. However, the

court also noted that the evidence was still sufficient to sustain

-9-
a conviction and ordered a new trial. See Carpenter, 405 F. Supp.

2d at 102-03.

The government appealed the new trial order from that

first trial, and Carpenter cross-appealed the denial of his motion

for acquittal. In July 2007, a divided panel of this court upheld

the district court's orders, explaining that the district court had

not abused its discretion in determining that the government's

comments could have tainted the verdict and that the appellate

court lacked jurisdiction to review the denial of the motion for

acquittal where the underlying conviction had been vacated.

Carpenter, 494 F.3d at 24-26. Carpenter petitioned for certiorari

as to the conclusion that the court lacked jurisdiction to review

the denial of the motion for acquittal; the petition was denied.

See Carpenter v. United States, 552 U.S. 1230 (2008).

2. Second Trial

The second trial began in June 2008. After another

thirteen-day trial at which he declined to testify in his defense,

Carpenter was again found guilty by a jury on all nineteen counts.

Again, Carpenter challenged the result, filing a motion for

acquittal or, in the alternative, for a new trial on July 3, 2008.

In his new trial motion, Carpenter argued that the trial was flawed

on several grounds; most significantly, he argued that the

government had knowingly used perjured testimony and improperly

presented evidence of Carpenter's actual losses, and that its

-10-
closing argument was flawed in a variety of ways, including (1) its

focus on Carpenter's losses and the riskiness of his investments,

(2) its characterization of certain evidence against him as

definitively proven rather than left to inference, and (3) its use

of the prosecutor's personal opinion.

After a lengthy delay, on September 1, 2011, the district

court denied the motion for acquittal, again observing that the

government's proof had been strong enough to sustain a conviction.

Carpenter, 808 F. Supp. 2d at 386. But it also granted the motion

for a new trial. In granting the new trial, the district court

rejected the grounds Carpenter asserted in his motion. See id. at

380 n.6. Nonetheless, the district court explained that the

government had erred in three ways while delivering its closing

argument: (1) it improperly stated that Carpenter had promised to

keep the exchangors' money in safe accounts (rather than explicitly

arguing that this promise could be inferred from the marketing

documents); (2) it improperly discussed "parking" the exchangors'

money in "escrow" accounts as a general matter rather than dealing

with the specific transactions in the case; and (3) it improperly

referred repeatedly to what the district court called Carpenter's

"greed," that is, his profit-seeking actions. See id. at 380-85.

The district court further noted that the jury had spent a

relatively short time -- approximately two hours -- in

deliberations, which it took as evidence that the jury may have

-11-
been led to convict on an improper basis. Id. at 385. Concluding

that the government had "poisoned the well" through its comments,

the district court granted a new trial. Id. at 386.

The parties again cross-appealed.3 The government's

appeal remains before us. The government argues that its closing

argument was not improper, and that even if it were, the district

court was required to apply plain error review, given the court's

reliance on factors the government said had not been the subject of

Carpenter's objections; that the district court erroneously

considered the brevity of the jury deliberations in ordering the

new trial; and that, in any event, the district court abused its

discretion in granting the new trial.

II.

The ultimate grant of a new trial is reviewed for abuse

of discretion; however, we decide de novo whether the underlying

comments in the closing argument were improper. See United States

v. Hernández, 218 F.3d 58, 68 (1st Cir. 2000). The de novo review

standard is the standard we apply here. A district court

necessarily abuses its discretion when it commits a material error

of law or relies upon an improper factor. United States ex rel.

Jones v. Brigham & Women's Hosp., 678 F.3d 72, 83 (1st Cir. 2012).

3
This court, in an order dated May 3, 2013, dismissed
Carpenter's cross-appeal for lack of jurisdiction based on law of
the case doctrine and our opinion in the 2007 appeal. Carpenter
has petitioned for certiorari as to that order.

-12-
A conclusion that there was misconduct is an issue of law. See

United States v. Cartagena-Carrasquillo, 70 F.3d 706, 713 (1st Cir.

1995) (describing analysis to use in the event that prosecutor's

comments are improper).

A. Government's Closing Argument

The district court held that the government's closing

argument was improper in three respects: (1) it overstated the

degree to which Carpenter promised "safety and security" in

investments; (2) it overly generalized the nature of "parking" the

exchangors' money in "escrow" accounts; and (3) it repeatedly

referred to Carpenter's profit motive. Carpenter, 808 F. Supp. 2d

at 380-85. Carpenter had not explicitly raised any of these three

issues as possible errors in his briefing or arguments in the

district court.4 Rather, the court's focus on these three issues

was sua sponte, after the briefing and argument were completed.

Carpenter did make other arguments, which we find, as did the

district court, were insufficient to warrant a new trial.

In context, none of these three features of the

government's closing was improper. We turn to the district court's

reasons and explain our conclusions to the contrary.

4
The government makes an alternative argument that the
district court should have applied plain error review because
Carpenter failed to identify these possible errors in the district
court. See United States v. Olano, 507 U.S. 725, 736 (1993). We
need not reach this issue in light of our holding here.

-13-
 1. "Safety" and "Security"

The district court cites three references in the

prosecution's closing to "safety" or "security" of the exchangors'

funds as improper. In fact, all three are permissible arguments.

The first statement that the district court lists as

wrongful is the government's assertion that, in full, Carpenter

"took in millions of dollars in real estate exchangors' money based

on false and fraudulent pretenses that Benistar would protect the

security and safety of the exchangors' money and that the money

would be held for the exchangors' benefit to buy replacement

property." The argument, within a few sentences, went on to say

that Carpenter knew not a single document advised exchangors that

he was taking the risks he did with their money and knew that if

the exchangors had been so advised, they never would have

contracted with Benistar.

The government acknowledged that there was no dispute as

to what the documents provided or the losses suffered, then said:

"[W]hat is in dispute here is how this evidence fits into what you

must decide . . . which is whether Mr. Carpenter committed mail and

wire fraud by his conduct." The government argued that the

exchangors, all in the real estate business, needed to identify an

exchange property within 45 days and under no circumstances could

take longer than 180 days to complete their exchanges, and that

Benistar knew its use of the exchangors' money was so limited. As

-14-
the prosecution phrased it, "[r]isking all of the funds to be held

short term for real estate purposes is simply inconsistent with the

business Carpenter represented [Benistar] to be." The prosecution

then turned to what the marketing documents said, such as "[a]sk

about the security of your funds and find out what guaranties are

offered," and "[Benistar] has a longstanding reputation for

trustworthiness." The argument then continued with references to

express language in the other documents given to exchangors.

This first statement is the very first sentence of the

prosecution's closing and simply states the government's theory of

the case. While the government may not make unfair statements in

its closing, see Carpenter, 494 F.3d at 23, it is not barred from

stating its theory of the case. Cf. Fowler v. Warden, N.H. State

Prison, No. 93-1668, 1994 WL 44833, at *2 (1st Cir. Feb. 15, 1994)

(per curiam) (finding seemingly improper statement not improper

when taken in context as first sentence of closing argument

responding to defense's theory of the case). While the government

did not say explicitly that it was asking the jury to draw an

inference from the documents and facts, that was the structure of

the argument as a whole. The statement was not impermissible.

The second statement that the district court faults is

the government's assertion that "the marketing documents . . .

emphasized the safety and security of the money." This statement

-15-
was not impermissible.5 Like the first statement, it also served

as an introduction and was followed by direct quotations from

admitted documents that could easily be read as emphasizing

precisely that safety and security. Cf. United States v. Robinson,

473 F.3d 387, 397 (1st Cir. 2007). For example, the government

went on to reference marketing materials that told potential

exchangors comparing potential intermediaries to "ask about the

security of your funds" and to consider Benistar's "longstanding

reputation for trustworthiness" and the reliance on the stated role

of Benistar as a fiduciary.

The final statement that the district court found

improper on this subject was the government's assertion that "the

representations that the money is going to be held for the

exchangors' benefit and that it will be held safe and secure [are]

false because [Carpenter] can't meet the obligations that he owes

to other exchangors." The district court's objection was that this

statement asserts as a fact what is available only inferentially,

that Carpenter promised that the money would be kept safe. This

statement builds off of the prosecution's earlier argument about

the representations that were made and uses the conclusion from

that argument as the starting point for a new one. Cf. United

States v. Martínez-Medina, 279 F.3d 105, 119 (1st Cir. 2002)

5
In his own closing, Carpenter stressed the language of the
same documents and disputed whether they could be read as promising
security at all.

-16-
(finding statements in closing argument not improper when they

"appear reasonably supported by the record or are within the

prerogative of the prosecution to characterize the evidence

presented at trial and argue certain inferences to the jury."). In

the context of the closing argument as a whole, we see nothing

improper about this assertion.6

2. Statements About "Parking" Money in "Escrows"

The district court also found fault with the government's

characterization of Benistar's representations of its business as

involving "parking" money in "escrows." This issue was not even

adverted to in the defendant's objections. The court thought this

characterization contravened its jury instruction that neither the

contracts nor governing laws limited how a qualified intermediary

could handle an exchangor's funds and improperly led the jury to

believe that Carpenter had breached some agreement. Without

restrictions either in statutes or in the contract, the court

concluded, the government's argument was improper because "no such

representation [of having a limit to Benistar's ability to 'invest'

funds] could be implied." We disagree and do not credit that

conclusion of impropriety.

6
Carpenter argues that we should not limit our analysis to
the three particular statements listed by the district court
because, he argues, those instances were merely examples of a
general theme of wrongdoing. We have considered the entire closing
argument in context and disagree.

-17-
 The government did not seek to have the jury convict on

the basis that Carpenter was in breach of contract or transgressing

a law regulating qualified intermediaries qua intermediaries.

Rather, it sought to show that Carpenter had misrepresented his

approach by pursuing a riskier investment strategy than exchangors

would have expected from the representations made and the nature of

their purposes in entering exchange contracts. And he knew his

strategy differed from their expectations and he deliberately

failed to correct or prevent those expectations.

As the government argued, a § 1031 exchange is commonly

viewed as a conservative transaction: it is generally pursued by

someone who has chosen to invest in real estate and is primarily

seeking to avoid capital gains liability rather than to obtain

large, quick returns. Under the government's theory, this sort of

investor would have expected the funds in the escrow accounts to be

"invested" in safe assets like money market accounts or treasury

bills. Such an investing strategy could fairly be described as

"parking" money, particularly when exchangors were promised returns

of 3% or 6% when much higher rates were available in riskier

investment vehicles.7 By leading exchangors to believe

7
The district court took issue with the specific terms "park"
and "escrow account" based on a theory, articulated in its order
but not the subject of discussion at trial, of how banks operate.
In fact, each exchangor signed a contract with Benistar entitled
"ESCROW AGREEMENT," and those documents themselves were before the
jury. The court explained that an "account" is not a separate
"deposit box" of money but merely an amount a bank promises to pay,

-18-
that Carpenter would take that approach but instead knowing that he

would invest in riskier stocks or options, the government argued,

Carpenter committed fraud. We see nothing wrongful in the manner

in which the government presented that argument to the jury in this

case.

3. References to Carpenter's Profit Motive

The district court's third assignment of error was in the

government's references to Carpenter's desire to profit off the

exchangors, which the district court recharacterized as "greed,"

although the government never used that term. The government did

refer to Carpenter's desire to trade in riskier instruments that

could bring in a greater profit for himself and his business

partner. The government also highlighted the fact that Carpenter

sought to earn that profit using other people's money. The

district court, in its new trial order, held that these comments

improperly drove the jury toward a guilty verdict based on moral

and that banks are able to pay interest rates in the first place by
putting money to other uses. Money that is "parked," the court
continued, is not invested at all under a literal understanding of
the economic theory and therefore could not have earned interest.
The district court concluded that "[t]he exchangors, all relatively
sophisticated in business, must all have expected" that their
so-called "parked" funds would somehow be invested. But the jury
was free to decide that the exchangors, sophisticated though they
may be, understood "account" and "park" in the ordinary sense. The
court's order also does not deal at all with the evidence actually
presented to the jury, and Carpenter has not identified any point
in the trial where he developed that strict theory. If Carpenter
wanted the factfinder to use a different meaning of "park" and
"escrow account" than an ordinary person would use, Carpenter could
have presented his alternative to the jury.

-19-
chastisement of Carpenter rather than the elements of the fraud

crimes charged. We disagree for several reasons.

The argument was a legitimate one directly related to the

government's burden of showing intent. To have committed fraud

against the exchangors, Carpenter must have had the specific intent

to mislead them at the time he solicited their business. The

government's argument went to why Carpenter had a motive to commit

fraud. This fraud would increase the amount of money he would make

off of the exchangors' investments. Had there been full

disclosure, especially after Carpenter knew his risky investment

strategy had failed, the exchangors would never have made the

investments to begin with or maintained them with Benistar.

In addition, we do not think such argument could have

distracted the jury from the task before it or distracted it from

its evaluation of the evidence of Carpenter's intent.

B. New Trial Order

None of the comments that the district court relied upon

as the basis for ordering a new trial were actually improper.

Because the district court committed an error of law in determining

that the closing argument was improper, it necessarily abused its

discretion in granting the new trial, and we reverse. Cf. United

States v. Conley, 249 F.3d 38, 47 (1st Cir. 2001) (reversing

district court's new trial order when district court applied

incorrect legal standard). We need not reach the government's

-20-
other arguments for reversal, including its alternative argument

that the district court erred in failing to apply plain error

review, because we have found that there was no impropriety in the

government's closing argument. However, we do consider Carpenter's

argument that the district court order should be affirmed for other

reasons.

C. Carpenter's Alternative Arguments

Recognizing that this court on appeal is free to affirm

the district court's decision on any independently sufficient

ground, see United States v. Robles, 45 F.3d 1, 5 (1st Cir. 1995),

Carpenter argues that the trial contained several other errors that

support affirmance of the new trial order. He identifies four

errors within the government's closing: (1) the government unduly

emphasized Carpenter's losses; (2) the government unduly emphasized

the riskiness of Carpenter's investing strategy; (3) the government

mischaracterized parts of the evidence; and (4) the government

improperly gave a personal opinion ("that's fraud"). He also

points to an error during the government's principal case at the

trial, contending that the government knowingly relied on false

testimony. The district court properly did not find that any of

Carpenter's arguments on these points justified a new trial when it

considered them in its new trial order.

Carpenter did not preserve the personal opinion argument

because he failed to object contemporaneously or to include it in

-21-
his objections immediately after the closing argument. See, e.g.,

United States v. Goodhue, 486 F.3d 52, 55 (1st Cir. 2007) ("An

issue is preserved for appeal when the appellant adequately

preserved the issue through a timely and contemporaneous objection

to the district court."). However, he preserved each of the other

four arguments by objecting to them at the closing (or during the

trial as to the false testimony, which was not at issue in the

closing) and highlighting them in his briefs on the new trial

motion in the district court and on appeal.

We review preserved objections of this sort for harmless

error. See United States v. Sasso, 695 F.3d 25, 29 (1st Cir.

2012). That is because Carpenter's assertions of error "are not of

constitutional dimension," and so the conviction will stand despite

any error "as long as it can be said 'with fair assurance, after

pondering all that happened without stripping the erroneous action

from the whole, that the judgment was not substantially swayed by

the error.'" Id. (quoting Kotteakos v. United States, 328 U.S.

750, 765 (1946)). We review the unpreserved objection for plain

error. See United States v. Andújar-Basco, 488 F.3d 549, 561 (1st

Cir. 2007). Applying these standards, we conclude that none of

Carpenter's alternative grounds is sufficient to affirm the new

trial order.

-22-
 1. Government's Focus on Actual Losses and Riskiness

Carpenter attacks the government's focus on Carpenter's

actual losses and on the riskiness of his investments within its

closing argument. But the government's arguments properly went to

its theory of Carpenter's fraud: as to risk, misrepresentations of

how the money would be invested, and as to the losses,

misrepresentations of the financial state of his company and the

likelihood that exchangors would actually be paid back their

principal with the promised interest.

2. Government's Knowing Use of False Testimony

Within his complaint about the government's focus on the

riskiness of his investments, Carpenter also argues that the

government knowingly introduced false testimony from one of its

witnesses. That claim asserts an error under Napue v. People of

the State of Ill., 360 U.S. 264 (1959). Under Napue, a new trial

is required "if the false testimony could in any reasonable

likelihood have affected the judgment of the jury." United States

v. Mangual-Garcia, 505 F.3d 1, 10 (1st Cir. 2007) (quoting Giglio

v. United States, 405 U.S. 150, 154 (1972)) (internal quotation

mark omitted). However, we have recognized that this rule is not

absolute; for example, we have declined to require a new trial when

the defendant has knowledge of the false testimony and fails to

raise the issue. See Mangual-Garcia, 505 F.3d at 10-11.

-23-
 The district court, in a separate order denying

Carpenter's motion for a mistrial on these grounds, explicitly

considered Carpenter's claims regarding the lying witness and

concluded that the witness was in fact lying and that the

government knew the testimony was false. However, it also

explained that the government made all necessary disclosures and

that Carpenter consequently was able to and did cross-examine the

lying witness "vigorously." The district court therefore

determined that a mistrial was not warranted on this basis. On

appeal, Carpenter has not identified any reasonable likelihood that

the jury's verdict in this case was impacted by the false testimony

in light of his vigorous cross-examination.8 That ends this

attack.

8
Carpenter's sole contention on this point is that the false
testimony "arguably" raised doubt as to whether Carpenter "was
forthright" with Merrill Lynch, and that this doubt could have
permitted the jury to believe that he was less than forthright with
his clients as well. Though he neither refers to Federal Rule of
Evidence 404(b) nor invokes its language, he essentially argues
that the testimony could have been improperly used as propensity
evidence in violation of that rule. See Fed. R. Evid. 404(b)(1)
(prohibiting use of evidence of crimes, wrongs, or bad acts to
prove action in accordance with that character). But Carpenter's
Rule 404(b)(1) argument falls far short of the requisite
"reasonable likelihood" showing. For one thing, Carpenter claims
that the testimony only "arguably" raised doubts about his
forthrightness with Merrill Lynch; he does not show that the
testimony "likely" raised such doubt. For another thing, even if
doubt were raised, Carpenter asserts merely that it could have
permitted the jury to believe that he was dishonest with his
clients as well. He does not show that such an inference was
"reasonably likely."

-24-
 3. Government's Alleged Mischaracterization of
Carpenter's Knowledge

Carpenter next complains that the government on rebuttal

characterized him as having direct knowledge of the contents of the

marketing materials and personally deleting certain words from

them. These characterizations are possible inferences but are far

from required by the evidence. Throughout the trial, Carpenter

consistently protested against treating them as required inferences

or proven facts.

The district court took prompt steps to address any error

in precisely the way that Carpenter's counsel requested, granting

a curative instruction. The court's instruction told jurors

explicitly that "[t]here is no evidence that Mr. Carpenter was

responsible for changing the agreement. You have evidence of two

different agreements, but there's no evidence as to how they came

to be different, and so that would not be an appropriate thing for

you to take into consideration." In light of that clear and prompt

instruction, it is not likely that the outcome swayed. See

Olszewski v. Spencer, 466 F.3d 47, 60 (1st Cir. 2006) (noting that

"where the prosecutor unintentionally misstates the evidence during

closing argument, a jury instruction ordinarily" is sufficient to

cure any error, "particularly where" the instruction "was given

immediately after the statement").

-25-
 4. Government's Use of Personal Opinion

Carpenter's final argument is that the government

improperly introduced a personal opinion during its closing by

declaring at multiple points, "that's fraud." Because Carpenter

did not contemporaneously object to this point, our review is for

plain error.9 To prevail on plain error review, Carpenter must

show that the comments "were prejudicial and affected his

substantial rights," and that the error "caused a 'miscarriage of

justice' or seriously undermined the 'integrity or public

reputation of judicial proceedings.'" United States v. Henderson,

320 F.3d 92, 105 (1st Cir. 2003) (quoting United States v. Olano,

507 U.S. 725, 736 (1993)).

Carpenter has not met that burden. Although they may

sound like the prosecutor's opinions in isolation, the comments

9
Carpenter argues that his objection was preserved because
the district court interrupted his attorney while his attorney was
making a set of objections immediately after the government's
closing argument, citing United States v. Wihbey, 75 F.3d 761, 769
(1st Cir. 1996). That argument fails for three reasons. First,
Wihbey did not hold that an objection is preserved in such a
situation, but merely assumed arguendo that it could be. See id.
Second, Wihbey is distinguishable on its facts, as counsel there
moved for a mistrial after the prosecution's rebuttal --
essentially the first opportunity after the earlier attempt to
object was rebuffed -- whereas the new trial motion here was filed
after the jury returned its verdict. See id. Finally, even if
interruptions generally could be sufficient to preserve objections,
there is simply no evidence here that Carpenter's attorney was
attempting to make the objection Carpenter now claims is preserved;
the district court interrupted him only after he had discussed at
length his objections to the government's emphasis on Carpenter's
losses and appeared primed to continue discussing that topic alone.

-26-
that Carpenter cites as improper opinions actually came in the

context of properly encouraging the jury to evaluate the evidence.

For example, one of the two instances of improper opinion-giving

that Carpenter identifies is in the very last sentence of the

government's rebuttal: "This is fraud, ladies and gentlemen, and

this is why you should find him guilty on each and every count."

Taken in context, it is clear that the prosecution's comments were

permissible comments on the evidence in the case rather than the

prosecutor's own opinion. See United States v. Smith, 982 F.2d

681, 684 (1st Cir. 1993); United States v. Cain, 544 F.2d 1113,

1116 (1st Cir. 1976). Because these comments in context were not

prejudicial, and certainly did not cause a miscarriage of justice,

they do not constitute plain error.

III.

For the reasons stated above, the district court's grant

of the new trial is reversed, the conviction is reinstated, and the

case is remanded for prompt sentencing.10

So ordered.

10
We also regret that it took three years for the district
court to rule on the motion for new trial.

-27-