United States v. Clarke, Osmund

In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3602

United States of America,

Plaintiff-Appellee,

v.

Osmund Clarke,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 98 CR 121--David F. Hamilton, Judge.

Argued April 11, 2000--Decided September 14, 2000

Before Manion, Diane P. Wood, and Evans, Circuit
Judges.

Manion, Circuit Judge. Osmund Clarke and nine
others were indicted for conspiring to distribute
drugs. Clarke was also indicted for distributing
drugs and carrying a firearm during a drug
offense. Clarke and two of his co-defendants went
to trial. But after a witness blurted out that
one of Clarke’s co-defendants had an outstanding
arrest warrant for car-jacking, the district
court declared a mistrial for all three
defendants on the conspiracy charge. The district
court, however, allowed the government to proceed
with trying Clarke on the drug distribution and
weapon possession charges, and Clarke was
convicted of both offenses. On appeal Clarke
seeks a new trial, claiming that the district
court erred in not declaring a mistrial on these
two charges, in admitting evidence that was
seized during his arrest, and in allowing the
government to make allegedly unfairly prejudicial
statements during closing argument. Because the
district court did not err with respect to any of
these issues, we affirm.

I. Background

Clarke was allegedly involved in a far-reaching,
multi-tiered drug distribution conspiracy. One
alleged member of the conspiracy was Clarke’s
good friend, Gosha. But Gosha’s friendship with
Clarke was evidently fleeting, because he turned
state’s evidence and testified about three
occasions when he and Clarke sold cocaine to
Hart, an undercover informant. Hart also
testified as to Clarke’s participation in the
three drug sales. Furthermore, both Hart and
Gosha testified that Clarke was an "enforcer" on
one of these transactions when Gosha and Clarke
suspected that Hart was a snitch. They searched
Hart but did not find the wire that was hidden in
his underwear. Clarke was carrying a 9mm handgun
on the occasion where there was a brief (or
fortunately for Hart, not a brief) search of
Hart.

Based upon Hart’s information and controlled
purchase, the police went to arrest Clarke at his
girlfriend’s house. The police found Clarke in
the living room within arm’s length of a couch.
In arresting him, they discovered a handgun
stuffed between the sofa cushions and within his
reach. The police obtained his girlfriend’s
written consent to search the premises, and they
discovered bullets for the gun, a hand-held
scale, and a small amount of marijuana.
Clarke and nine others were charged with one
count of conspiracy to possess with intent to
distribute and conspiracy to distribute cocaine
and cocaine base in excess of 5kg in violation of
21 U.S.C. sec.sec. 841(a)(1) and 846. In
addition, Clarke was charged with three counts of
distribution of cocaine base in excess of 50
grams in violation of 21 U.S.C. sec. 841(a)(1)
and one count of carrying a firearm during and in
relation to a drug trafficking crime in violation
of 18 U.S.C. sec. 924(c). Clarke and two of his
co-defendants went to trial together on the
conspiracy charge; the government also proceeded
against Clarke at the same trial on the other two
charges.

On the morning of trial, well after the deadline
for filing pretrial motions, Clarke filed an
emergency motion to suppress everything that was
seized at his girlfriend’s house. The motion was
accompanied by an affidavit from Clarke’s
girlfriend wherein she stated that her consent to
search was given under duress; according to her,
the police had held her down on the floor and
handcuffed her and told her that if she did not
cooperate they would take away her children. The
government objected to the motion as untimely. At
the hearing, Clarke acknowledged that the motion
was untimely, but he argued that if the court was
persuaded by it, then "one of the charges"
against Clarke could be dismissed. The court
asked Clarke if he was specifically referring to
the firearm, and Clarke represented to the court
that he was. The court again asked Clarke whether
the motion at this point was limited to the gun,
and Clarke confirmed that it was.

Based upon Clarke’s representations, all of the
argument on the motion to suppress addressed only
the admissibility of the gun. The court heard
testimony from both Clarke’s girlfriend and the
arresting officer. The court found both the
arresting officer and Clarke’s girlfriend
credible, but it denied Clarke’s motion to
suppress the gun. The court reasoned that
regardless of whether the consent was given under
duress, it was not needed for the handgun to be
properly seized because it was obtained during a
lawful search incident to arrest. Because the
only issue Clarke presented to the court
concerned the handgun, the court did not consider
whether the police were allowed to search her
house. Later in the trial, the court said that
with respect to the motion to dismiss, the issue
with the gun was resolved, and that the other
issues were not raised. Clarke did not dispute
this.

Trial proceeded and the government called a
police officer (Brooks) to the stand. During his
testimony, he stated that one of Clarke’s two co-
defendants (Harris) had an outstanding warrant
for car-jacking and that this was a violent
crime. Harris moved for a mistrial, and after a
conference with counsel the district court
instructed the jury to disregard the officer’s
testimony:

Ladies and Gentlemen, the answer to the last
question that was asked Officer Brooks before the
break is stricken from the record. You are
ordered to disregard it. Whether Mr. Harris was a
suspect in another crime is utterly irrelevant in
this case. Any such accusations are entitled to
no credibility and no consideration whatsoever.
It was highly improper for Officer Brooks to even
mention them. It would be even worse if you were
to consider such matters in your deliberations. I
instruct you that you may not consider such
matter at all.

The court allowed the trial to continue and then
held a hearing on Harris’s motion. During the
hearing, Clarke joined in, also requesting a
mistrial on the conspiracy charge against him.

The district court granted Harris’s motion for
a mistrial, concluding that its curative
instruction was insufficient to guarantee him a
fair trial. Although Officer Brooks’s car-jacking
comment did not pertain to Clarke, the district
court granted him (and the third co-defendant) a
mistrial on the conspiracy charge, too. After
Clarke was unable to obtain a plea bargain on the
substantive counts, he requested that the court
declare a mistrial on the gun possession and
distribution of cocaine charges as well. While
much evidence about the conspiracy had been heard
at that point, little of it was tied to Clarke.
The district court thought that the evidence
about Clarke possessing a gun and distributing
drugs was discrete enough from the evidence about
the conspiracy that the jury could focus on the
evidence pertaining to the gun possession and
drug distribution charges. Before the trial
continued, however, the district court instructed
the jury that the conspiracy charge against
Clarke had been removed from their consideration,
and that they should not ask why or hold it
against him. He also informed them that the only
charges that remained were the drug distribution
and gun possession charges, and that Clarke was
presumed innocent of these charges.

At the jury instructions conference, Clarke
asked the court to give a similar admonition to
the jury. The court proposed revising an
instruction so that it directed the jury not to
consider "evidence relevant only to" the
conspiracy charge. Clarke advised the court that
the revised instruction met his concerns, but the
government objected because it would confuse
things, relevancy being a legal question. The
court overruled the objection and revised the
instruction as Clarke had requested.
Nevertheless, before the court read the
instruction the next day, Clarke objected to it.
The court reminded Clarke that the instruction
was revised at his request and over the
government’s objection. It then read the
instruction, which stated:
I remind you that the conspiracy charge against
the defendant Mr. Clarke as well as the charges
against defendants Chris Harris and Jimmy
Campbell have been removed from your
consideration and are no longer before you for
decision. Do not concern yourself with this
development and do not speculate about it. The
removal of that portion of the case must not
influence your consideration of the charges
against Mr. Clarke that you must decide.
The fact that we have only one defendant left in
this trial should be of no concern to you because
whatever your verdict is, if you do reach a
verdict, it has to be based solely upon the
evidence that was received in this courtroom as
it related to the remaining charges against Mr.
Clarke. You should not let evidence relevant to
only [the conspiracy charge] affect your
consideration of the [remaining] charges against
Mr. Clarke.

(Emphasis added.) The court also instructed the
jury that a separate crime was charged in each
count and that each count, as well as the
evidence pertaining to it, should be considered
separately. Moreover, it instructed the jury that
the drug distribution charges were based on what
happened on three occasions and that the weapons
charge was based on what happened on one
occasion.

One last background fact is significant for this
appeal. Throughout the trial, Clarke had
criticized the credibility of the government’s
star witnesses, Gosha (who turned state’s
evidence) and Hart (who was a paid informant).
During closing argument, the government pointed
out that under his plea agreement, which was in
evidence, Gosha had to testify truthfully. It
then argued that based on the evidence, he had
done so:

Now, I’m not going to stand up here and tell you
that he did not receive a benefit [for his
testimony]. He clearly did. But in jury selection
you all said that you would look into the
agreement that he made and listen to all the
evidence. And take a look at the agreement Donell
Gosha made. He has to testify truthfully. Review
his plea agreement. And I submit to you, based on
the evidence that you have heard from him, from
Jason Hart, from the police officers in this
case, [and from] the physical evidence that
Donell Gosha did just that[;] good, bad and
indifferent he told how it was[;] he testified
truthfully.

To show that Hart testified truthfully, the
government gave examples where Gosha corroborated
Hart’s testimony. It then stated "[s]o, clearly
he’s telling the truth about Donell Gosha. Why
then has there been any reason to show that he
would lie about Osmund Clarke. He has no
incentive to lie about Osmund Clarke. That is why
you should trust Mr. Jason Hart. He is equally
credible with regard to Donell Gosha as he is
with Osmund Clarke." The government then
discussed how Gosha’s testimony corroborated
Hart’s testimony about Clarke. Clarke did not
object to these statements. The jury found him
guilty of both offenses, and he appeals.

II. Discussion

Clarke contends that the district court
committed three errors, and that each
independently requires reversal of his
conviction: not suppressing the bullets and the
hand-held scale that were obtained from the
search of Clarke’s girlfriend’s house and which
were admitted into evidence; not granting a
mistrial on the gun possession and drug
distribution charges; and allowing the government
to "vouch" for the credibility of Gosha and Hart
during closing argument. Clarke further contends
that even if each error, by itself, does not
warrant a new trial, then certainly the
cumulative effect of the errors does. See United
States v. Rogers, 89 F.3d 1326, 1338 (7th Cir.
1996) ("[T]he cumulative effect of trial errors
may deprive a defendant of his constitutional
right to a fair trial."). For the following
reasons, we conclude that the district court did
not err in any of these respects.

A. The Motion to Suppress

"Federal Rule of Criminal Procedure 12(b)
requires that motions to suppress evidence be
raised prior to trial." United States v.
Mancillas, 183 F.3d 682, 703 (7th Cir. 1999).
District courts may set deadlines for such
motions, Fed. R. Crim. P. 12(c), and a failure to
follow such a deadline waives appellate review of
the issue. Fed. R. Crim. P. 12(f). See also
Mancillas, 183 F.3d at 703; United States v.
Krankel, 164 F.3d 1046, 1051 (7th Cir. 1998). For
cause, though, district courts can relieve the
party of his waiver of a suppression issue. See
Fed. R. Crim. P. 12(f); United States v. Evans,
131 F.3d 1192, 1193 (7th Cir. 1997); United
States v. Moralez, 964 F.2d 677, 680 (7th Cir.
1992).

Clarke violated the court’s pretrial deadline by
not filing his motion to suppress until the
morning of trial; as a result, he waived any
suppression issues for appellate review. See
Mancillas, 183 F.3d at 704 (late filing waived
issue); accord Moralez, 964 F.2d at 681. But
then, for whatever reason, the district court
relieved him of his waiver with respect to his
motion to suppress the gun. While Clarke had
sought to suppress all of the evidence obtained
during the search of his girlfriend’s house,
after the government objected to the untimeliness
of the motion, Clarke sought only to exclude the
gun. He does not argue to us, as he could, that
we should excuse his waiver of the suppression
issue as to the bullets and the scale because he
had cause for filing his motion to suppress late.
See Evans, 131 F.3d at 1193 (cause required to
excuse waiver). Instead, he attempts to distort
the picture by portraying the district court as
ignoring the part of his motion pertaining to the
bullets and the scale. Because Clarke does not
argue that he had cause for filing his motion
late as is required to excuse his waiver, he has
not only waived appellate review of the issue of
suppressing the bullets and the scale, Mancillas,
183 F.3d at 703; Krankel, 164 F.3d at 1051; he
has also waived our review of the issue of his
waiver under Rule 12(f). See Evans, 131 F.3d at
1193.

Thus far, we have been treating Clarke’s failure
to move timely to suppress the items seized at
his girlfriend’s house as a "waiver" of their
admissibility consistent with the Fourth
Amendment. A "waiver" in the technical sense,
however, arises from an intentional
relinquishment of a right; a "forfeiture" occurs
when a party fails to assert, or to timely
assert, a right. See United States v. Johnson,
2000 WL 1060596, at *1 (7th Cir. Aug. 3) (Waiver
"is canonically defined as an intentional
relinquishment of a right"; forfeiture "is where
the right is taken away from its holder as a
penalty for failure to assert it in a clear and
timely manner."); United States v. Perry, 2000 WL
1056284, at *2 (7th Cir. Aug. 1) ("Waiver is the
intentional relinquishment of a known right.
Forfeiture, on the other hand, is the failure to
make a timely assertion of a right. ’Where waiver
is accomplished by intent, forfeiture comes about
through neglect.’") (citations omitted). This
distinction is significant because "waived"
errors are unreviewable, while forfeited errors
are reviewable, but only for plain error. See
Perry, 2000 WL 1056284, at *2. Clarke’s Rule
12(f) "waiver" of the suppression issue therefore
may be more accurately viewed as a forfeiture
because it is based on his failure to timely
assert his rights.

But Clarke has another problem aside from his
Rule 12(f) "waiver" (or forfeiture) of his motion
to suppress the bullets and the scale. He
intentionally waived this issue by twice
representing to the court that his motion was
limited to the gun, and by keeping silent when
the court later twice stated that the motion was
so limited. See Johnson, 2000 WL 1060596, at *1
("What this is is a case of implicit waiver in
the strict, the intentional sense. . . . The only
plausible inference from the defendant’s conduct
is that he acquiesced in the denial by judicial
inaction of his motion . . . and thereby
deliberately relinquished his right . . . .");
United States v. Wilson, 962 F.2d 621, 625 (7th
Cir. 1992) ("We conclude that Wilson in effect
waived this issue at trial by failing to call to
the court’s attention the lack of a ruling on his
suppression motion . . . ."). As a result, we may
not review whether these items were admitted
consistent with the Fourth Amendment. Perry, 2000
WL 1056284, at *2 (waived errors are
unreviewable).

Finally, even if Clarke’s failure to timely move
to suppress (and his later narrowing of that
motion to pertain only to the gun) is viewed as a
forfeiture rather than a waiver, we would review
the admissibility of the bullets and the scale
for plain error. See Fed. R. Crim. P. 52(b);
Perry, supra; Wilson, 962 F.2d at 625. The
district court did not make findings on the
consent of Clarke’s girlfriend to search the
house. Nevertheless, the record as a whole is
sufficient to demonstrate that the admission of
the bullets and the scale was not plainly
erroneous. Not only was there some evidence to
support the search, but the only evidence to
rebut the finding of consent for the search was
the untimely filing (on the morning of trial) of
Clarke’s girlfriend’s affidavit. There is no
plain error here. See United States v. Olano, 507
U.S. 725, 734 (1993) ("’Plain’ is synonymous with
’clear’ or, equivalently, ’obvious.’"); United
States v. Renteria, 106 F.3d 765, 766-67 (7th
Cir. 1997).

B. The Motion for a Mistrial on The
Substantive Offenses

"A trial judge has broad discretion in deciding
whether, in the context of the entire trial, a
defendant’s motion for a mistrial should be
granted." United States v. Mealy, 851 F.2d 890,
902 (7th Cir. 1988). The reason for conferring
this broad discretion on the judge is that he is
in the best position to determine the seriousness
of the incident in question, particularly as it
relates to what has transpired in the course of
the trial. Id.; see also United States v. Miller,
199 F.3d 416, 421 (7th Cir. 1999); United States
v. Lomeli, 76 F.3d 146, 149 (7th Cir. 1996). As a
result, we will reverse a decision denying a
mistrial only if the district court has abused
its discretion, Miller, 199 F.3d at 421; Lomeli,
76 F.3d at 149, which means that we must affirm
unless we have a strong conviction that the
district court erred. United States v. Cheska,
202 F.3d 947, 950 (7th Cir. 2000). The ultimate
focus of our inquiry is whether the defendant was
deprived of a fair trial. United States v. Brack,
188 F.3d 748, 759 (7th Cir. 1999); United States
v. Evans, 994 F.2d 317, 324-25 (7th Cir. 1993).
In this regard, we have long "upheld a trial
court’s exercise of discretion in issuing a
cautionary instruction, rather than declaring a
mistrial, to cure any potential prejudice."
Mealy, 851 F.2d at 902; see also Miller, 199 F.3d
at 421; Lomeli, 76 F.3d at 149./1

Clarke argues that because the jury heard a
significant amount of conspiracy evidence that
had little if anything to do with the drug
distribution and gun possession charges, the
district court should have declared a mistrial on
these offenses, too. He argues that while a
limiting instruction would normally prevent him
from suffering any undue prejudice from the jury
hearing such evidence, the instruction here was
not only ineffective; it was improper as a matter
of law because it asked the jury to make a
determination about relevancy (it was not to
consider evidence that was "relevant to only the
conspiracy charge"), which, under the Federal
Rules of Evidence, is a legal question for the
court. See Fed. R. Evid. 104(a) and 401. Clarke
argues that this determination is particularly
difficult because the jurors were in effect
instructed to consider some of the conspiracy
evidence (that which also pertained to the
substantive offenses) without the court telling
them precisely what that evidence was. According
to Clarke, the only way to avoid unfair prejudice
was to instruct the jury to disregard all of the
conspiracy evidence (but according to him, it is
doubtful the jury could do that either).

As an initial matter, some of the conspiracy
evidence that the jury heard was in fact also
relevant to the distribution charge. To be guilty
of cocaine distribution, a person not only has to
distribute cocaine; he has to knowingly and
intentionally distribute cocaine and know that
the substance he was distributing was a
controlled substance. See 21 U.S.C. sec.
841(a)(1); see also United States v. Johnson, 127
F.3d 625, 628 (7th Cir. 1997). Clarke emphasized
that while he was present for the drug
transactions with Hart, he did not know that it
was cocaine that was being sold. Gosha’s
testimony that Clarke and he were actively
involved in obtaining cocaine which was then
delivered to Hart was not only relevant to the
conspiracy, then, it was also relevant to the
distribution charge by rebutting Clarke’s claimed
lack of knowledge as to the nature of the
transaction in which he was involved. Cf. United
States v. Hughes, 213 F.3d 323, 329 (7th Cir.
2000) (witness’ testimony about defendant’s "drug
activity was directly relevant to establishing"
the personal knowledge of the government’s
witnesses).

The question then becomes whether the court’s
instruction was so confusing and the task it
assigned the jury so difficult that it rendered
the instruction ineffective. Jury instructions
must be examined as a whole. United States v.
Thornton, 197 F.3d 241, 254 (7th Cir. 1999). An
instruction is not ineffective "unless there is
an ’overwhelming probability’ that the jury will
be unable to follow the court’s instructions and
a strong likelihood that the effect will be
’devastating’ to the defendant." United States v.
Humphrey, 34 F.3d 551, 556-57 (7th Cir. 1994).
Here, the instruction not to consider "evidence
relevant to only the conspiracy charge"
immediately followed the admonition to the jury
that its verdict had "to be based solely upon
evidence that related to the remaining charges
against Mr. Clarke." Thus, the directive that one
clearly gets is that the jury cannot convict
Clarke of the gun possession and drug
distribution charges based on his alleged
activities in the conspiracy that had nothing to
do with carrying a gun or distributing drugs.
This general parameter was confirmed by the
remaining instructions, which told the jury that
a separate drug distribution or gun possession
crime was charged in each count and that each
crime, as well as the evidence pertaining to it,
had to be considered separately; and, moreover,
the evidence that pertained to those separate
crimes concerned what transpired on three dates
when Clarke allegedly sold drugs and on one of
those occasions when he allegedly carried a gun.
Thus, the jury was instructed not to consider
evidence apart from what transpired on those
occasions.

Furthermore, the jury was capable of performing
this task without the court specifically telling
them what that evidence was. Juries are often
asked to separate or exclude evidence as
pertaining "only" to certain charges or certain
defendants without courts spelling out exactly
what that evidence is. See United States v.
Cusimano, 148 F.3d 824, 829-30 (7th Cir. 1998)
(instruction which directed jury to consider
evidence "only" for the conspiracy alleged in
indictment and not for other conspiracies that
the evidence established was not plainly
erroneous). In United States v. Canino, 949 F.2d
928, 936-37 (7th Cir. 1991), as in this case, we
affirmed the denial of a mistrial in a drug
distribution conspiracy as to certain defendants
after granting a mistrial for a co-defendant. In
rejecting the remaining defendants’ requests for
a general mistrial due to the absence of their
co-defendant, we noted that the "jury was
instructed not to concern itself with the absence
of [the co-defendant], and to decide the case
against each defendant based on the evidence
introduced against the individual defendant." Id.
at 937. In this case, we agree with the district
judge that the evidence about Clarke distributing
drugs and carrying a gun was discrete from the
conspiracy evidence, and that the jurors were
capable of excluding evidence that had nothing to
do with Clarke possessing a gun or distributing
drugs. Their ability to do so is particularly
likely given the court’s guidance that the
evidence about these two offenses concerned what
occurred on three dates, not at other times. See
Cusimano, 148 F.3d at 830 (jury instruction that
was allegedly confusing because it told jurors to
consider all criminal activity was not plainly
erroneous when it later referred to the specific
crime at issue). In sum, while it would have been
better if the court had not used the term
"relevant", and it might have been clearer if the
court had not said "only", we do not think that,
in context, "there is an overwhelming
probability," Humphrey, supra, that these two
words so confused the jury as to render the
instructions ineffective or erroneous, thereby
depriving Clarke of a fair trial. Thornton, 197
F.3d at 254 ("We will not overturn a conviction
merely because the addition or subtraction of a
few words might have improved a defendant’s
chance of acquittal, but only if the instructions
so misguided the jury as to prejudice the
defendant.")./2

Finally, we disagree with Clarke that no matter
what instruction the district court would have
given, a mistrial would have been required
because the jury could not disregard "the
mountain of irrelevant" conspiracy evidence.
Juries are presumed to follow instructions.
Humphrey, 34 F.3d at 556; United States v.
Ferguson, 935 F.2d 1518, 1527 (7th Cir. 1991).
Here, the court promptly instructed the jury not
to consider Officer Harris’s car-jacking comment
(which did not pertain to Clarke anyway) or
evidence of the conspiracy that had nothing to do
with the substantive offenses. Clarke has not
persuaded us that the normal presumption should
not apply here. Although in the three days of
trial before a mistrial was declared the jury
heard a lot of evidence about the conspiracy,
little of it was tied to Clarke. In this
"mountain" of evidence, the lone reference to
Clarke’s involvement is contained in less than
one-half of one page of the trial transcript. See
Humphrey, 34 F.3d at 557 (in considering whether
an instruction cured improper testimony and
ensured a fair trial, the court should consider
the efficacy of the instruction and "the record
as a whole"); Ferguson, 935 F.2d at 1527-28
(immediate curative instruction and addressing
improper testimony in final instruction
adequately addressed "single isolated
statement"). Clarke’s concern that there is a
strong likelihood that the jury attributed to him
a series of acts is unfounded. If anything, the
evidence presented shows he did not commit most
of the acts alleged concerning the conspiracy.

On the contrary, Clarke was convicted because
the evidence was sufficiently strong that he
distributed drugs and carried a handgun while
doing so. Gosha and Hart’s testimony as to
Clarke’s involvement on these transactions was
specific and substantial. Although Clarke points
out that they are questionable sources, the jury
(as we will next see) took this into account. But
it also took into account the fact that their
testimony corroborated each other’s and was in
turn corroborated by the presence of the hand-
held scale and the 9mm handgun. In short, Clarke
was not unfairly convicted by virtue of
conspiracy evidence that was not tied to him;
rather, he was convicted because of the testimony
and physical evidence that he was a drug dealer
who carried a gun while at work. See Thornton,
197 F.3d at 250 (not an abuse of discretion to
deny mistrial based on allegedly false testimony
that comprised a tiny fraction of a witness’
testimony that went on for 147 transcript pages,
and when other witnesses and physical evidence
showed defendant’s extensive role in cocaine
distribution conspiracy); see also Ferguson, 935
F.2d at 1528-29 (jury convicted defendant of
possession of cocaine with intent to distribute
because of strong evidence that he committed the
offense, not because of one witness’ improper
remark); United States v. Miroff, 606 F.2d 777,
782 (7th Cir. 1979) (improper testimony on three
occasions in a 350 page transcript did not
unfairly prejudice the defendant). As a result,
we are not close to being "firmly convinced" that
he was deprived of a fair trial.

C.,The Prosecutor’s Statements During
Closing Argument

Lastly, Clarke argues that in discussing the
credibility of Gosha and Hart, the prosecutor
impermissibly "vouched" for them during closing
argument. Because Clarke did not object to the
prosecutor’s statements at that time, we review
this claim for plain error. See Fed. R. Crim. P.
52(b); Renteria, 106 F.3d at 766. "At the very
least," under this standard, "unpreserved claims
of prosecutorial misconduct must relate to
conduct that is clearly (or obviously, or, for
that matter, plainly) improper." Renteria, 106
F.3d at 766-67.

"Claims that a prosecutor has tainted a trial
with improper remarks are met in this circuit
with a two-step inquiry. We first consider the
remarks in isolation. If they are improper in the
abstract, we then regard them in the context of
the entire record and ask whether they denied the
defendant a fair trial. Only if the remarks
undermined the fairness of the proceedings below
will we overturn a conviction." Id. at 766. As to
the first step, "we have grouped two related
evils" under "the rubric of ’vouching.’" Id. at
767. "It is improper for a prosecutor to express
her personal belief in the truthfulness of a
witness, and it is improper for a prosecutor to
imply that facts not before the jury lend a
witness credibility." Id.
 Clarke first complains that the government "made
overt statements of personal belief as to the
credibility of Hart and Gosha." We disagree. With
respect to Gosha, the government said "I submit
to you, based on the evidence that you heard from
him, from Jason Hart, from the police officers in
this case, [and from] the physical evidence that
Gosha did just that[;] good, bad and indifferent,
he told how it was[;] he testified truthfully."
(Emphasis added.) Clearly, then, the government
was arguing that Gosha told the truth based upon
what was in the record, not upon the prosecutor’s
own personal belief. Earlier in his argument the
prosecutor made a similar statement. He said that
the two witnesses described both their own
involvement and Clarke’s, rather than
embellishing Clarke’s role and minimizing their
own. "And the reason why they didn’t, I submit to
you, is that they told you the truth just as it
was . . . good, bad, indifferent--about Mr.
Clarke’s involvement." Similarly, the government
argued that Hart’s testimony was credible by
giving specific examples where his testimony was
corroborated by Gosha and then saying "[s]o,
clearly he’s telling the truth about Donell
Gosha." (Emphasis added.) It then argued that
Hart "is equally credible with regard to Donell
Gosha as he is with Osmund Clarke" by immediately
showing how Gosha corroborated Hart’s testimony
about Clarke’s actions. It is not accurate to say
then--and at any rate, it is not patently
obvious--that the prosecutor was expressing his
personal belief.

Clarke also complains that the government
improperly referred to Gosha’s obligations under
the plea agreement to tell the truth. We have
repeatedly upheld the government’s ability to
point out that its witnesses, under their plea
agreements, are required to testify truthfully.
See Renteria, 106 F.3d at 766-67 (not vouching to
argue that witnesses testified truthfully in
compliance with their plea agreements so that
they would not lose benefits of the agreements);
see also Thornton, 197 F.3d at 252 ("The proffer
letters and plea agreements merely laid out the
terms and conditions of the agreements. Each side
could urge competing inferences--as indeed the
defendants did--but the jury’s role as
independent fact finder was not undermined.");
United States v. Griffin, 194 F.3d 808, 823 (7th
Cir. 1999) ("[T]he prosecutor committed no
vouching misconduct by eliciting testimony from
[the witness] that the plea agreement required
him to tell the truth."). But Clarke argues that
the government here went further and guaranteed
that Gosha in fact told the truth by stating that
under the plea agreement, Gosha "has to testify
truthfully."
 We do not see much of a difference, though,
between on the one hand introducing plea
agreements into evidence and reading that their
terms require the witnesses to tell the truth,
and on the other stating that under a plea
agreement’s terms, a witness is required to tell
the truth. And this is what the government did.
The plea agreement was in evidence, and this
statement was both immediately preceded and
followed by pleas to the jury to look at the
evidence in the record to see if, as required by
the agreement, Gosha told the truth: "[I]n jury
selection you all said that you would look into
the agreement that he made and listen to all the
evidence. And take a look at the agreement Donell
Gosha made. He has to testify truthfully. Review
his plea agreement. And I submit to you, based on
the evidence . . . he testified truthfully." We
agree with the government that the way to
interpret this statement is that the evidence
showed that Gosha complied with the plea
agreement, not that Gosha told the truth simply
because he entered into the agreement. At any
rate, because Clarke did not object below to this
statement, it is not plainly obvious that the
statement in question means what he says it does.

Furthermore, even if the remark about the plea
agreement was improper, Clarke does not satisfy
the second step in the inquiry: in the context of
the entire record, the remark did not deprive him
of a fair trial. Renteria, 106 F.3d at 766. To
determine the remark’s effect on the fairness of
the trial, we look at five factors: "1) the
nature and seriousness of the prosecutorial
misconduct; 2) whether the conduct of the defense
counsel invited the prosecutor’s remarks; 3)
whether the trial court’s instructions to the
jury were adequate; 4) whether the defense was
able to counter the improper arguments through
rebuttal; and 5) the weight of the evidence
against the defendant." Cusimano, 148 F.3d at
831-32. Here, the prosecutor’s comment about the
plea agreement was "not egregious." Id. at 832.
Furthermore, Clarke invited this comment by
repeatedly attacking Gosha’s truthfulness due to
the fact that he entered into a plea agreement.
Id. Because Clarke did not object "at the time,
the trial court did not instruct the jury
specifically in regard to the prosecutor’s
comments. However, the court did instruct the
jury that closing arguments are not evidence . .
. ." Id. It stated that:

Closing arguments will be for the purpose of
discussing the evidence. Mere assertions alone by
any of the lawyers in opening statements or
closing arguments do not constitute any evidence
whatsoever in this case. You should not consider
the opening or closing statements as proof of any
facts. You should only consider them as they
might be confirmed or disconfirmed by evidence
that you heard during the testimony in the case.

We have already stated that such an instruction
can effectively cure prosecutor’s statements
about the truthfulness of witnesses who have
signed plea agreements. See United States v.
Robbins, 197 F.3d 829, 843 (7th Cir. 1999). Since
the government made its statement about Gosha’s
plea agreement in its initial remarks during
closing argument, Clarke had the opportunity to
rebut this comment, and in fact did so by again
challenging Gosha’s motives due to his plea
agreement. Finally, "the weight of the evidence
supports" Clarke’s conviction. Cusimano, 148 F.3d
at 832. In light of the above factors, Clarke
"cannot persuade us that the prosecutor’s remarks
deprived him of a fair trial." Id. (assuming
government’s statement that its witnesses "are
bound by written plea agreements which require
them to tell the truth" was improper, the
statement did not deprive the defendant of a fair
trial).

III. Conclusion

Under Rule 12(f), Clarke "waived" his motion to
suppress the bullets and the scale that were
obtained from his girlfriend’s house by not
timely filing this motion, and he waived our
review of his Rule 12(f) waiver by failing to
argue that he had cause for filing it out of
time. In the alternative, if Clarke’s failure to
timely file his motion to suppress is a
forfeiture, then the district court did not
plainly err in not suppressing these items.
Clarke, however, also intentionally waived his
right to suppress the bullets and the scale by
representing to the district court that he was no
longer pursuing the motion to suppress these
items.

Furthermore, the district court did not abuse
its discretion in denying Clarke’s motion for a
mistrial because the jury instructions ensured
that he would receive a fair trial, and together
the testimonial and physical evidence was strong
that Clarke distributed drugs and carried a gun
while doing so. Finally, the government did not
vouch for the truthfulness of its star witnesses
during closing argument. But however one
interprets the prosecutor’s statements, they did
not deprive Clarke of a fair trial.

For the foregoing reasons, the judgment of the
district court is AFFIRMED.
/1 Citing United States v. Bruscino, 687 F.2d 938,
940 (7th Cir. 1982) (en banc), Clarke argues that
the test for a mistrial is whenever there is a
"reasonable possibility" that irrelevant or
improper evidence "may have affected the
verdict." This case is not applicable; it
concerns situations where a jury receives
material that is not in evidence.

/2 It is worth noting that Clarke’s attorney did not
think that these two words would baffle the jury
as he agreed to the court including them,
specifically stating that the instruction met his
concerns about the jury potentially considering
the conspiracy evidence.