dissenting.
I dissent. The prosecutor recognized Samples as a hero, but in his prosecution, the government dealt him foul blows that deprived Samples, hero or not, of a fair trial. Samples is entitled to relief by giving him a new trial.
In this case of a very bizarre robbery and an attempt to escape as related in the majority opinion, we have strong and basically unrefuted medical testimony that Samples suffered a major and serious depressive disorder with psychotic symptoms and chronic post-traumatic stress disorder (PTSD) at the time of this strange robbery incident. Thus, defendant made a strong case for a temporary insanity defense.
As we know, his illness stemmed from his heroic action as a member of the armed forces’ pre-Gulf War activity. For emphasis, we repeat the action story from the trial transcript. Samples’s conduct resulted in his receipt of the Navy and Marine Corps Medal for Heroism:
In 1987, Mr. Samples was a sailor in the United States Navy, stationed on the U.S.S. Stark. The Stark patrolled the Persian Gulf and acted as an escort to oil tankers. During this period, the war between Iran and Iraq created instability in the Gulf region, subjecting tankers to the danger of missile attack. On May 17, 1987, a little after 9 p.m., an Iraqi Mirage fired two Exocet missiles at the Stark and hit the ship. When the first missile hit, it didn’t explode. The second missile hit the same spot and lit all of the fuel from the original one on fire.
Mark Samples was on duty on the third level of the ship. The missiles hit just above the water line. The walls of the ship, soaked in fuel, began to burn. Mr. Samples noticed that the boxes containing hand-held Stinger missiles were beginning to burn. After confirming with the Captain, he threw the boxes overboard. He then put on a gas mask, went to the bridge and steered the ship based on radio orders for about a half an hour. Someone came up to him and told him that the missile launcher was starting to smoke. When Mr. Samples went to investigate, he found the fire had advanced to the missile magazine. He knew, being a gunner’s mate, that if their missiles exploded, it would destroy the ship and everyone on board. If that happened, about 200 sailors would die. To keep that from happening, Mr. Samples hooked up a pump and sat on the side of the missile silo for 17 hours, pumping water from the Gulf on the missiles, cooling them. The walls glowed red and some of the missiles *888became so hot the paint began to peel off of them.
At some point in the middle of this Mr. Samples was spelled by another sailor and asked to go through the missile launcher to see if he could get a door open from the inside. The firefighters couldn’t get at it from their side. Mr. Samples crawled through the launcher, a narrow space, having to take off his breathing mask at times to get through. When he found the door damaged beyond hope of opening, he went aft to see if he could get more information about the extent of the fire. His path led through downed electrical wires, smoke-filled dark and damaged corridors where he at times had to crawl to get through. He eventually made it to the berthing area where he found the bodies of all the men who had been trapped. They were dead. Chris D’Angelo, Mr. Samples best friend, was there. Mark held his body for a while, then put it down and went back to the missile magazine to fight the fires. Finally, members from other ships arrived and took over the fighting the fire.
Mr. Samples wasn’t the only sailor on the Stark who survived, but suffered indelibly from going through that attack. William Morandi, who was in the berthing area when the attack occurred, managed to escape out of the hole the missile made and spent the night in the Persian Gulf with another crew member who made it out. From the 28-29 sailors in his area, five made it out. Thirty-seven crew members died that night.
Samples’s Br. at 11-13 (footnotes omitted).
Moreover, his illness was significantly exacerbated by his taking of the drug Interferon as prescribed by doctors at the Veteran’s Affairs Hospital to treat Samples’s hepatitis C3
The VA’s hepatitis C clinic approved Samples for a clinical treatment study using Interferon and Ribavirin with an understanding he would be monitored by a VA psychologist in its post-traumatic stress disorder clinic. Together, these drugs are targeted to get rid of the hepatitis C virus. Beginning September 5, 2000, Samples took Interferon three times a week, Monday, Wednesday, and Friday by self-injection, and Ribavirin orally twice a day. The known side effects of Interferon include becoming suicidal, psychotic, and homicidal. Further, the brand manufacturer warned that “extreme caution should be taken in using Interferon on patients with pre-existing mental health histories.” Trial Tr. at 784-85. Such patients are particularly at risk for having aggravated psychiatric side effects from the Interferon.
*889On November 9, 2000, Samples reported to the VA that he was thinking about killing himself. His antidepressant medication was increased, but he was not taken off the Interferon. On January 4, 2001, Samples reported an increase in irritability, dropping out of classes at school, and difficulty sleeping. At this point, he dropped out of psychiatric care, but he was not taken off the Interferon. He next contacted the post-traumatic stress disorder clinic on May 4, 2001, the day after the robbery.
The effects of the Interferon on Samples’s mental illness in the months leading up to the robbery also produced paranoid delusions. He came to believe that his wife was trying to kill him. He stopped eating meals she prepared. He tried to avoid her by hiding out in the basement. He started sleeping with a gun. And he contemplated killing her by staging a car accident. Samples also believed the government was trying to kill him to eliminate the survivors of the U.S.S. Stark and he was being followed by government agents.
The question for the jury was whether on May 3, 2001, Samples knew right from wrong when he robbed a bank as a means of giving his family financial security, as he contemplated taking his own life following the incident.
Samples made a strong case for temporary insanity, taking into account his severe depression aggravated into a psychosis by the continuing Interferon treatment, existing to and on the day of the robbery. Indeed on May 8, five days after the robbery, experts at the VA hospital gave Samples a global assessment of functioning test which resulted in a score of twenty-five out of one hundred, showing him functioning at a psychotic level, to an extent where a patient does not, or may not, know right from wrong.
With this strong evidence as a defense, the prosecutor did not focus on this temporary insanity condition. Instead, he confused the issue by arguing that Samples’s admission of wrongful conduct in bail jumping, thirteen months after the robbery, served to establish his consciousness of guilt at the time of the robbery.
Samples brought a pretrial motion to exclude all evidence relating to his flight, thirteen months after the robbery, as irrelevant to the case because he had already pleaded guilty to the charge of failure to appear for trial and had been off Interferon for thirteen months. The motion further argued that introducing evidence of Samples committing bad acts thirteen months after the robbery could lead the jury to convict him on an improper basis.
Defense counsel argued:
[T]he single issue before the jury ... is what was Mr. Sample’s [sic] mental state on May 3rd, 2001, at the time that he robbed the bank? And none of this evidence relates in any way to that issue.
[T]he defense is very clearly that this mental illness was episodic in nature
The issue is whether those conditions were so aggravated by the Interferon treatment as to make him psychotic at the time of the offense.
And, if so, ... whether by virtue of that psychoses he was unable to appreciate the nature and wrongfulness of his actions.
Trial Tr. at 32, 38-39.
Defense counsel explained the reports by the expert witnesses do not treat the fifteen-month period during which Samples remained a fugitive as significant to his mental condition on May 3, 2001. Defense counsel further explained that Samples did *890not claim that he was insane at the time he fled in June 2002, as evidenced by his guilty plea on that charge.
The government responded that it wished to use Samples’s flight in June 2002 as consciousness of guilt on the May 3, 2001 offense. The government argued that the “evidence is not only relevant, but it is highly probative of a consciousness of guilt. He knew he was guilty, so he started a new life, because he didn’t want to be away from his son .... ” Trial Tr. at 46.
In its pretrial ruling on the issue, the district court reasoned,
[I]t is the Defendant’s view that the manifestation of the mental illness is episodic. To me, it is a classic case where, not for flight, but it is circumstantially relevant, the 15 months ....
It is circumstantially relevant to the mental, emotional condition of the Defendant as follows: He has a diagnosis. It is dependent upon, in large part, from ’87 on out. It is a diagnosis that wasn’t a fleeting diagnosis. He continues to suffer from it.
The issue in the case would be the manifestations and the characteristics of his mental and emotional condition and how it manifested itself on the date in question of the robbery and how that relates to ’87 all the way out to the alleged robbery.
Trial Tr. at 71-72.
The majority opinion further explains the contours of the district court’s decision at pp. 8-9.
Following the ruling, Samples’s attorney asked the court to review the expert reports “to see whether it has any bearing on the Court’s ruling, because I continue to believe that the fact of Mr. Samples’ conduct over a year after the offense has no bearing on the diagnoses or the opinions of the experts with respect to what happened on May 3rd.” Trial Tr. at 84.
The district court noted “the objection by the Defense” to the extent it denied the pretrial motion and decided the trial would include evidence of Samples’s flight thirteen months after the robbery.
The trial evidence bore out Samples’s pretrial explanation of the insanity defense at issue. Samples’s defense did not rest merely on the continuing PTSD and depressive illness, existing long before the May 3 incident and continuing during all the times discussed in the trial, but focused on the aggravation or exacerbation from the Interferon treatments, which the experts addressing the issue agreed led to symptoms of psychosis.
The first defense expert, Dr. Charles Peterson, testified that after Samples started Interferon, his level of depression “deepened significantly”. Trial Tr. at 450, 467. “He really deteriorated at this point.” Trial Tr. at 450. “He was really dysfunctional in all spheres .... ” Trial Tr. at 450. Dr. Peterson testified that Samples scored twenty-five out of one hundred on the global assessment of functioning test administered on May 8, showing “the level of patients who are psychotic, who do not know right from wrong .... ” Trial Tr. at 458, 460. “[T]he combination of Post-Traumatic Stress Disorder, Depression and Interferon effect[ed] Mr. Samples’ judgment and rational thinking[.]” Trial Tr. at 467.
The next defense expert, Dr. Coleman Smith, testified that the Interferon deepened Samples’s depression, leading to psychotic symptoms, and probably had a causal relationship to the robbery. “[I]n-terferon does effect the brain and does cause psychiatric problems. And these psychiatric problems are more manifest in people with an underlying history of psychiatric illness.” Trial Tr. at 492. He *891read the manufacturer’s warning label regarding Interferon use, “Severe psychiatric adverse events, including depression, psychoses, aggressive behavior, hallucinations, violent behavior, (suicidal ideation, suicidal attempts, suicides) and rare instances of homicidal ideation .... ” Trial Tr. at 497. The manufacturer further warned that extreme caution should be taken in using Interferon on patients with pre-existing psychiatric disorders.
The final defense expert, Dr. Stanley Rosenberg, concluded there was “a very good probability” that “Interferon treatment affected Mr. Samples’ mental illness”. Trial Tr. at 715. “[IJnterferon seemed to be making [Samples’s] depression worse and worse.” Trial Tr. at 701. In his opinion, there was a “probable” causal connection between the Interferon and robbery. Trial Tr. at 723.
Dr. Rosenberg explained the results of his evaluation of Samples’s condition on May 3, 2001. It was “fairly clear-cut that Mr. Samples continued to meet diagnostic criteria for PTSD at the time of the robbery; that he was severely depressed, in fact depression not only at a severe level, but with psychotic symptoms; that he was actively suicidal at the time of the robbery; and that he was fairly delusional at the time of the robbery and the days immediately preceding.” Trial Tr. at 694. “He was just thinking a very bizarre and illogical way, psychotieally distorted way.” Trial Tr. at 719.
Further, Dr. Rosenberg testified that the exacerbated symptoms from Interferon would clear within days or weeks of discontinuing use. We know from the testimony that Samples last took Interferon on the day of the robbery, May 3, 2001, so his aggravated symptoms would have ended long before his flight in June 2002. The district court was wrong in its conclusion that Samples’s flight in June 2002 was medically relevant to his ability to know right from wrong on May 3, 2001.
Moreover, the prosecutor did not even stay within the bounds of this erroneous ruling, resorting precisely to the consciousness of guilt purpose that the district court had rejected under Rule 403.
Here is the record.
Samples headed the suggestion of the district court and mitigated the effect of his pretrial flight from the jurisdiction by bringing it up before the government did so.
Samples testified that in June 2002, he took his son from Minnesota to West Virginia and had hopes of getting his marriage back together. But when he got to West Virginia, he learned a warrant had issued for his arrest and panicked, fleeing with his son for fifteen months. He did not tell his son’s mother where they were during this time. In September 2003, he was arrested in Ohio for failure to appear for trial. He pled guilty, explaining he made no claim that he was insane at the time he left the jurisdiction of Minnesota.
Rather than focus on how Samples’s flight in June 2002 related to the manifestations and characteristics of his diagnosis, as the district court had ordered, the prosecutor turned Dr. Bruggemeyer’s testimony to support consciousness of guilt on May 3.
BY [Prosecutor]:
Q Doctor, what, if any, significance is there in your diagnosis and your opinion in evaluation of Mr. Samples to the extent that he robbed the credit union May 3, 2001, versus the time in May of 2002 that he took his son and left for 15 months?
A I’m not following what your question is, [Prosecutor].
*892Q I’m not sure I follow it either. You understand that Mr. Samples, as he testified that he took his son in May of 2002, and was gone was a fugitive for 15 months and where he was caught in Ohio; do you understand that?
A Yes, we talked about that.
Q What is the significance of that as it relates to his consciousness of guilty? A The significance was that he told me it wasn’t right which meant that he was guilty about it.
Trial Tr. at 851-52. Thus, this testimony, which appears to violate the pretrial restrictions on this type of evidence, gave the prosecutor a weapon to completely confuse the temporary insanity issue.
In the final rebuttal argument, the prosecutor put it all together in the improper framework below:
[I]f Samples hadn’t put a loaded gun in front of those women, robbed the Credit Union at gunpoint, taken his son as a fugitive and fled for 15 months, we wouldn’t be here. Samples fled because of a consciousness of guilt. He knows that he is guilty.
MR. RICHMAN: Objection, Your Honor, misuse of the evidence.
THE COURT: I will sustain in part, deny in part. I would allow it for his mental state at the time of his leaving the state with his son. You may continue, [Prosecutor].
[Prosecutor]: Thank you, Your Honor. He fled because of a consciousness of guilt.
He knew that he is guilty and he didn’t want to face the Judge to find out whether he would get probation or prison. Notwithstanding the fact that we have heard from psychiatrists and psychologists and hepatologists, stuff that is certainly beyond the understanding of a six-year-old, this case is about right and wrong. And as I said in the beginning of the trial, the theme would be, all I really need to know, I learned in kindergarten, right and wrong.
Samples knew what he was doing and he knew that it was wrong.
Trial Tr. at 983-84.
The argument clearly was improper and devastating to the defense. It amounted to a clever ploy, but a wholly unfair one requiring a new trial.
But that is not all. The record shows that Samples was released from custody on May 14, 2001, eleven days after cessation of Interferon treatments. The prosecution introduced the following testimony through pretrial services officer Timothy Norgren. The dialogue between the prosecutor and Norgren included:
Q. [D]o you make a report that is presented to the Court?
A. [W]e prepare a report assessing the person’s vulnerability, if you will, for the purposes of release or detention.
Q. The factors that go into a Court’s decision about a release would include a person’s danger to himself or to others?
A. Yes, it would.
Q. And would it include the person’s risk of flight?
A. Yes, it would.
Q. At some point did you come to supervise Mr. Samples?
A. Yes. He was originally detained on Friday of May 11th, 2001 and had a detention hearing on Monday, May 14th, 2001. And at the conclusion of that hearing, he was released.
Q. The continuation of his health care at the VA Medical Hospital [as a condition of release], did that include his *893being admitted as a patient to stay at the hospital?
A. No, I don’t believe so.
Q. So, he went home on May 14, 2001?
A. Yes, he did.
Trial Tr. at 305-07.
The prosecutor used this evidence to obfuscate the issue of temporary insanity on May 3, by asserting apparent sanity on May 14. The prosecutor made this purpose clear to the jury during final oral presentation, stating this gem, “Mr. Samples was released that day. Samples went home. Do you think a federal judge would just let an insane man go home only a few days after the robbery?” Trial Tr. at 936.
As against an objection, the trial judge allowed the evidence to stand as “an inference from the evidence.” Clearly, that ruling was wrong and the argument was improper and unfair.
The prosecutor’s assertion did not relate to expert testimony on sanity nor did it repeat a statement of any judge about Samples’s sanity. The testimony previously quoted related to release from custody based on whether the defendant was dangerous if released on May 14. As the record shows, and as we know, the standards for release pending trial and the standards for insanity are as different as night and day.
I want to comment on one aspect of the majority opinion relating to a telephone conversation between Samples and his mother on October 8, 2003 and discussed at p. 6.
The majority’s observation fails to show the proper context for the exchange. See Slip Op. at 6. Samples knew that his conversation with his mother was being recorded by the county jail. As Samples explained, he was simply describing for his mother a conversation he had with his attorney about the law on insanity and how a jury might perceive the facts. A jury might conclude that he obviously knew right from wrong because he planned some aspects of the robbery. Samples testified that he was not aware of the definition of insanity until explained to him by his attorney. Samples also testified that when he planned the bank robbery and entered the bank, he believed “it was absolutely the right thing to do.” Taken in context, the conversation had little or no relevance to the insanity defense.
In summary, the record of this case demonstrates that Samples served his government well as a member of the armed forces. But the same cannot be said of the government’s service to Samples as a defendant in this trial.
The Supreme Court has explained what a defendant and jury may expect from a prosecutor in a fair trial:
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce wrongful conviction as it is to use every legitimate means to bring about a just one.
It is fair to say that the average jury, in a greater or less degree, has *894confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions, insinuations, and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.
Berger v. United States, 295 U.S. 78, 88-89, 55 S.Ct. 629, 79 L.Ed. 1314 (1935) (granting Berger a new trial based on prosecutor’s misconduct and reasoning “[i]f the case against Berger had been strong, or, as some courts have said, the evidence of guilt ‘overwhelming,’ a different conclusion might be reached”).
Consistent with Berger, this court grants a new trial if “the jury’s verdict could reasonably have been affected by the prosecutor’s improper comments.” See United States v. Conrad, 320 F.3d 851, 855 (8th Cir.2003). In deciding this question, we consider “(1) the cumulative effect of such misconduct; (2) the strength of the properly admitted evidence of the defendant’s guilt; and (3) the cui-ative actions taken by the court.” Id.; see also Shurn v. Delo, 177 F.3d 662, 667 (8th Cir.1999) (vacating Shurn’s death sentence because, following prosecutor’s improper remarks in closing argument, “reasonable probability existed] that the error affected the outcome of the penalty phase”).
This was a close case. The jury faced a difficult task in determining whether Samples knew right from wrong in committing the burglary, when unrefuted evidence disclosed that defendant suffered a serious mental illness with aggravation into a psychotic condition due to injecting the drug Interferon as ordered by physicians at the government’s VA Hospital.
Instead of presenting the prosecution’s case on this precise issue of Samples’s knowledge of right and wrong on May 3, 2001 at the time of the robbery, the prosecutor confused the issue and made grossly improper arguments to the jury, which the district court failed to cure. As a result, Samples was deprived of a fair trial. Instead of eleven years in prison as was the sentence in this case, he deserves a new trial.
. Forensic psychologist, Dr. Jason Dana, would not concede that the Interferon exacerbated Samples’s mental illness. He also would not concede Samples suffered psychotic symptoms because Samples had periods of lucidity where he realized the error in his delusions. However, he did concede that he is not a medical doctor, did not focus on the effects of Interferon in this case, and lacked the background to answer questions on the adverse effects of Interferon as they relate to this case.
Dr. Karen Bruggemeyer was the government witness ordered by the district court to address the use of Interferon by Samples. She testified that Samples's paranoid delusions and cognitive distortions would occur in cycles depending on when he last took Interferon. (Dr. Dana testified that records reflect Samples last took Interferon on the day of the robbery, May 3, 2001.) Based on her knowledge of the interaction between Samples's preexisting mental illness and Interferon, Dr. Bruggemeyer agreed with the doctors presented by the defense — the Interferon exacerbated Samples's mental illness, made him experience psychotic symptoms, and causally contributed to the robbery.