United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 17, 2007 Decided November 27, 2007
No. 06-3067
UNITED STATES OF AMERICA,
APPELLEE
v.
XAVIER VALENTINE BROWN,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 05cr00002-06)
Reita Pendry, appointed by the court, argued the cause and
filed the briefs for appellant.
Leslie A. Gerardo, Assistant U.S. Attorney, argued the
cause for appellee. On the brief were Jeffrey A. Taylor, U.S.
Attorney, and Roy W. McLeese III, Mary McCord, and Elizabeth
Gabriel, Assistant U.S. Attorneys.
Before: GINSBURG, Chief Judge, and EDWARDS and
WILLIAMS, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge
EDWARDS.
EDWARDS, Senior Circuit Judge: Xavier V. Brown was
convicted of one count of conspiracy to possess with intent to
2
distribute and to distribute one kilogram or more of heroin, in
violation of 21 U.S.C. § 846. In this appeal, Brown claims that
the prosecutor committed reversible errors by commenting on
the fact that appellant did not testify in his own defense, using
the guilty pleas of co-conspirators as substantive evidence in the
prosecution of appellant, and vouching for the credibility of
Government witnesses. Appellant also contends that the District
Court erred in failing to give an explicit instruction to the jury
that the co-conspirators’ guilty pleas could not be considered
proof of Brown’s guilt. According to appellant, the cumulative
effect of these errors was so egregious that his conviction should
be overturned.
Defense counsel did not object at trial to any of the
prosecutorial actions that appellant now contends warrant the
reversal of his conviction, nor did defense counsel request the
jury instruction that appellant now claims should have been
given by the trial judge. Because these claims were never raised
before the District Court, the plain error standard of review
controls the disposition of this appeal. FED. R. CRIM. P. 52(b);
United States v. Olano, 507 U.S. 725, 731 (1993).
With respect to appellant’s allegations that the prosecutor
improperly commented on his failure to testify and improperly
cited the guilty pleas of co-defendants, it is far from clear that
the prosecutor’s statements were error, much less plain error.
Even if some of the prosecutor’s statements were erroneous,
they certainly were not prejudicial to the outcome of the trial,
and accordingly do not constitute a reversible error. We agree,
however, that the prosecutor clearly erred in expressing his
personal beliefs regarding appellant’s guilt. Nonetheless,
because appellant has failed to demonstrate that the error
affected his substantial rights or that it seriously affected the
fairness, integrity, or public reputation of the judicial
proceeding, we are constrained to hold that there is no plain
error. We therefore affirm appellant’s conviction.
3
I. BACKGROUND
This case involves a drug conspiracy run by a Panamanian
national named Jose Meneses (a.k.a. “Cholo” or “Cholito”) who
allegedly smuggled heroin from Panama to the United States in
2004 with the help of associates named Gregory Fulton (a.k.a.
“Melsum Shasha”), Ana Alvarez Rios, Alexis Barraza, and
Olivia Williams. Appellant Xavier Brown was arrested and
charged with being a party to a drug conspiracy after he met
with Fulton to pick up money that Fulton owed Meneses for
earlier shipments of heroin. Fulton, Rios, Barraza, and Williams
testified against Brown pursuant to plea agreements. Brown did
not testify. At trial, defense counsel did not challenge the
existence of a “drug distribution network,” Trial Tr. (1/5/06) at
423, but argued instead that appellant lacked the requisite
knowledge and intent for the conspiracy charge.
The sting operation that led to Brown’s arrest began on
December 1, 2004, when Gregory Fulton was arrested on
narcotics charges. Fulton testified that, following his arrest, he
informed the Federal Bureau of Investigation (“FBI”) of his
involvement in a heroin distribution ring run by Jose Meneses,
and indicated that he could obtain heroin from Meneses via
distributors, including Alexis Barraza. Fulton agreed to
cooperate with the FBI by purchasing heroin from Meneses and
his associates in an undercover capacity. Fulton subsequently
called Meneses and Barraza to arrange for shipments of heroin.
Fulton’s testimony was largely corroborated at trial by FBI
Special Agent Tim Ervin.
Ana Alvarez Rios testified that she had known Brown since
2003 and had introduced him to Meneses while in Panama on
November 3, 2004. She also testified that, at Meneses’ request,
she carried two kilograms of heroin from Panama to New York
on December 4, 2004, and had instructions to give Fulton and
Brown one kilogram apiece. After arriving at Olivia Williams’
apartment, Rios spoke with Brown to arrange a time for him to
4
pick up his kilogram of heroin. According to Rios, appellant
came to Williams’ apartment and Rios handed him the heroin
herself.
On January 4, 2005, Fulton told Meneses that he had a large
sum of money to pay Meneses for the heroin and that someone
needed to pick it up from Washington, D.C. Meneses replied
that he had an “associate” from Baltimore who might be able to
pick up the money. Later that day, Fulton received a phone call
from a man who identified himself as “Gordo” and said he
would pick up the money for Meneses. Subsequent phone calls
between Fulton, Meneses, and “Gordo” were made to coordinate
the pickup. Recordings and transcripts of these phone calls were
entered into evidence at trial. Trial Tr. (1/4/06) at 319-23.
On January 6, 2005, “Gordo” and Fulton arranged to meet
at a McDonald’s parking lot in northeast Washington, D.C. The
FBI had intended to use this meeting as an opportunity to “lure
a member of the conspiracy into Washington” and arrest him.
Trial Tr. (1/3/06) at 164. At the McDonald’s, appellant
identified himself as “Gordo” and got into Fulton’s car. While
Brown was in the car, Fulton spoke with Meneses on a cell
phone and asked Meneses if the gentleman in the car – whom
Fulton knew as “Gordo” – was “his [Meneses’] man.” Meneses
responded in the affirmative, and Fulton passed Brown the cell
phone so that appellant could also confirm speaking with
Meneses. When appellant exited the vehicle, he was
immediately arrested.
At the time Brown was arrested, he had a cell phone in his
hand. The last number dialed on the phone was a number in
Panama, which was labeled “Cholito’s new cell” in the phone’s
internal address book. Four other cell phones were found in the
car Brown was driving. Two notebooks were also recovered
from Brown’s vehicle. In one of the notebooks, there was a
notation that read “Cholo” and, below that, Fulton’s phone
number was listed. The other notebook contained Barraza’s
5
phone number with “Alexis” written underneath it, several
references to “Cholo,” the words “95 South” (directions from
New York to Washington, D.C. that Fulton had previously
provided “Gordo” by telephone), the date “1/6/05,” and another
notation of Fulton’s phone number. The notebooks and the
phones were entered into evidence at trial. Trial Tr. (1/3/06) at
166-68, 171-72.
Barraza was also arrested on January 6, 2005, though
Barraza was apprehended in Miami. Barraza testified that on
“two or three” occasions in 2004 he had received phone calls
from appellant, instructing Barraza to call Meneses, and Barraza
likewise had called appellant to relay similar messages from
Meneses. However, Barraza had never seen Brown until they
met in the Washington, D.C. jail one month after their arrests.
Barraza testified that Brown had revealed to him that Brown was
the one with whom Barraza had previously spoken by phone,
and that Brown had told Barraza that Meneses was “his friend
also.” Trial Tr. (1/4/06) at 225.
Besides Special Agent Ervin, Barraza, Rios, Williams, and
Fulton, the only other Government witness was Kendrick
Eastmond. Eastmond testified that before his 2002 arrest, he
and Brown had participated in 90-100 drug transactions.
According to Eastmond, he and Brown would travel between
Richmond, Virginia and Brooklyn, New York two to three times
a month to transport crack cocaine. Eastmond and Brown also
traveled to Panama together to establish contacts and seek better
prices for cocaine. Eastmond’s testimony was offered solely for
the purpose of proving Brown’s knowledge and intent to
participate in a drug-related conspiracy before his arrest; the
Government did not argue that Eastmond had any connection to
the Meneses conspiracy.
The only witness the defense called was FBI Special Agent
Tucker Vanderbrunt. He testified that Brown had been outside
of the United States from November 18, 2004 until December
6
18, 2004. Defense counsel’s closing argument challenged the
credibility of the Government’s witnesses while primarily
asserting that the Government could not prove that Brown had
the requisite level of knowledge or intent. As defense counsel
stated:
[W]e don’t really conflict in much of what happened in
this case. If you think I’m going to step up here and tell
you that Xavier Brown did not come down to Washington,
D.C. to get money, that’s not going to happen. Because he
did. He did come down to Washington, D.C. to pick up
some money.
The question is, when he came down here, did he know
what he was doing? Did he come down with the knowledge
that he was picking up money for a drug conspiracy, and
did he come down with the intent to participate in this
conspiracy?
Trial Tr. (1/5/06) at 423.
During his opening statement and closing argument before
the District Court, the prosecutor stated that the Government’s
case was “unquestioned,” arguably noting for the jury that
appellant was not testifying in his own behalf. Defense counsel
did not object to these statements. The prosecutor also made
some comments that could have been construed by the jury to
mean that the guilty pleas of appellant’s co-conspirators gave
evidence of appellant’s guilt. The defense counsel did not
object to these comments, nor did he ask the trial judge to warn
the jurors that appellant could not be found guilty by mere
association with his co-conspirators. Finally, on several
occasions, the prosecutor made statements suggesting that he
could verify the truthfulness of a witness’ testimony and offered
his personal judgment of the credibility of witnesses. Defense
counsel never objected to these statements at trial.
7
The jury returned its guilty verdict on January 6, 2006.
Appellant then filed a timely appeal.
II. ANALYSIS
A. Standard of Review
Defense counsel did not object to any of the allegedly
improper statements during trial, nor did counsel request a
specific instruction regarding the co-conspirators’ guilty pleas.
We review unpreserved claims only for plain error, in
accordance with Federal Rule of Criminal Procedure 52(b). The
plain error standard requires appellant to demonstrate “(1) a
legal error that was (2) ‘plain’ (a term that is synonymous with
‘clear’ or ‘obvious’), and that (3) affected [his] substantial
rights.” United States v. Sullivan, 451 F.3d 884, 892 (D.C. Cir.
2006) (citing Olano, 507 U.S. at 732-34). “If all three
conditions are met, we retain discretion to notice a forfeited
error, but only if (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.” Id. at
892-93 (citing Olano, 507 U.S. at 735-36). Appellant has the
burden of proving each element of the plain error standard.
Olano, 507 U.S. at 734.
In explaining the third element of the plain error standard of
review, the Supreme Court has indicated that “in most cases it
means that the error must have been prejudicial: It must have
affected the outcome of the district court proceedings.” Id. In
assessing whether a clear error is also prejudicial, we “typically
look[] to the centrality of the issue affected, the severity of the
prosecutor’s misconduct, the steps taken to mitigate the
misconduct, and the closeness of the case.” United States v.
Venable, 269 F.3d 1086, 1091 (D.C. Cir. 2001); see also United
States v. Gartmon, 146 F.3d 1015, 1026 (D.C. Cir. 1998). Many
of Brown’s claims do not present clear errors, if they present
errors at all. In any event, we are confident that no error
8
claimed here affected Brown’s substantial rights under the third
element of the plain error standard.
B. Comments Related to Appellant’s Decision Not to Testify
Brown argues that several statements by the prosecutor
improperly called attention to the fact that he chose not to testify
in his own defense. For example, the prosecutor repeatedly
referred to portions of the Government’s case as
“unquestioned.” See, e.g., Trial Tr. (1/3/06) at 105, 106, 107,
109, 110; Trial Tr. (1/5/06) at 433. These comments, according
to Brown, served to shift the burden of proof, because jurors
were led to believe that Brown was required to testify in order
to avoid conviction.
The Fifth Amendment states that “[n]o person . . . shall be
compelled in any criminal case to be a witness against himself.”
U.S. CONST. amend. V. The Supreme Court has held that the
Fifth Amendment therefore prohibits “comment by the
prosecution on the accused’s silence.” Griffin v. California, 380
U.S. 609, 615 (1965). The Court’s rationale for this principle is
simple: “[C]omment on the refusal to testify is a remnant of the
‘inquisitorial system of criminal justice’ which the Fifth
Amendment outlaws. It is a penalty imposed by courts for
exercising a constitutional privilege. It cuts down on the
privilege by making its assertion costly.” Id. at 614 (citation and
footnote omitted). In applying Griffin, we have held that
“[p]rosecutorial comment violates [the Fifth Amendment] if the
language used, in context, is such that the jury would naturally
and necessarily take it to be a comment on the failure of the
accused to testify.” United States v. Catlett, 97 F.3d 565, 573
(D.C. Cir. 1996) (internal quotation marks omitted).
The statements in the prosecutor’s opening statement to
which Brown now objects do not meet the Catlett threshold for
improper commentary. First, the references to “unquestioned”
evidence in the prosecutor’s opening statement occurred before
9
the jury learned that Brown would not testify. Indeed, Brown’s
decision not to testify was only disclosed to the prosecution and
to the District Court at the close of the prosecution’s case. Trial
Tr. (1/5/06) at 398. It strains credulity to believe that jurors
would have “naturally and necessarily” connected any of the
prosecutor’s earlier references to “unquestioned” evidence with
Brown’s decision not to testify two days later.
Furthermore, all but one of the statements from the
prosecutor’s closing argument that Brown finds objectionable do
not directly implicate Brown’s decision not to testify. “Neither
courts nor juries parse extemporaneous remarks in closing
argument as closely as sentences in carefully drafted legal
documents.” Venable, 269 F.3d at 1090. Thus, “[i]n assessing
the import of a statement made in closing argument, context is
key.” Id. The only statement of dubious propriety was the
prosecutor’s assertion in rebuttal that “[the defendant’s] intent
is unquestioned in this case.” Trial Tr. (1/5/06) at 433. To be
sure, a prosecutor must have the ability to respond to a
defendant’s claim during closing argument that the Government
has not established his intent. See United States v. Monaghan,
741 F.2d 1434, 1439 (D.C. Cir. 1984). Nevertheless, the
prosecutor’s statement here was error because the non-testifying
defendant was the only person in a position to refute the
statement. As appellant contends, jurors “might logically have
construed the prosecutor’s statement as an allusion to [the
defendant’s] silence.” Monaghan, 741 F.2d at 1438. It is
doubtful, however, that this erroneous statement rose to the level
of a clear error, and it is clear that the statement did not
prejudice the outcome of the case.
The trial judge mitigated the impact of the prosecutor’s
remark by instructing the jury that “[t]he burden is on the
Government to prove the defendant guilty beyond a reasonable
doubt. This burden of proof never shifts throughout the trial.
The law does not require a defendant to prove his innocence or
10
to produce any evidence.” Trial Tr. (1/5/06) at 439. The
District Court judge went on to state that “Xavier Brown has
chosen to exercise his right to remain silent. You must not hold
this decision against him . . . . Most importantly, you must not
draw any inference of guilt from the defendant’s decision not to
testify.” Id. at 440. Given that the prosecutor’s statement was
a veiled reference at best – if a reference at all – to the
defendant’s silence, “[t]hese [jury] instructions would have
cured any confusion caused by the prosecutor’s remarks.”
Catlett, 97 F.3d at 573. On this record, including the fact that
the weight of the evidence against appellant was significant, we
find no plain error.
C. Inferences from the Guilty Pleas of Co-Conspirators
Brown argues that the prosecutor made improper comments
that invited the jury to consider the guilty pleas of other
members of the conspiracy as substantive evidence of Brown’s
guilt. In the prosecutor’s closing argument, he stated,
There’s no evidence that Olivia Williams, Ana Rios,
Mr. Fulton, Mr. Eastmond, no evidence that anyone had an
ax to grind with this defendant. . . .
So when you evaluate their testimony, surely you can
ask, well, did they do what the Government said they did?
The answer is yes. In that train, that conspiratorial train,
they have admitted their portion. And every defendant has
a right to have a trial by jury, and for a jury to find them
guilty on their portion beyond a reasonable doubt. In this
case I ask you, based solely on the evidence, to find this
defendant guilty for his portion. And his portion is the
conspiracy of possession with intent to distribute, and
possession and distribution of a kilogram or more of heroin.
That’s this defendant’s part.
Trial Tr. (1/5/06) at 422. Brown contends that this statement
impermissibly urged his guilt by reference to his mere
11
association with his co-conspirators. Brown also alleges that,
upon hearing the prosecutor’s allegedly improper argument, the
District Court should have promptly instructed the jury sua
sponte that the co-conspirators’ guilty pleas did not imply
Brown’s guilt by mere association, and the trial judge’s failure
to do this was error.
Appellant’s claims fail. First, it is doubtful whether the
prosecutor’s statements rise to the level of clear error. In United
States v. Tarantino, 846 F.2d 1384 (D.C. Cir. 1988), this court
stated that “[a] government witness’ guilty plea obviously may
not be used as substantive evidence of the guilt of defendants,
but the plea is equally obviously admissible to show the witness’
acknowledgment of his role in the offense and to reflect on his
credibility.” Id. at 1404-05. Although this is a fine line for
prosecutors to walk, in this case the prosecutor properly
referenced the plea agreements in the context of a larger
discussion about the evidence of a conspiracy generally and the
credibility of Government witnesses. After all, Brown’s defense
was in large part that the Government had failed to establish his
knowledge and intent because the Government’s witnesses had
entered into plea agreements that cast doubt on their credibility.
See, e.g., Trial Tr. (1/3/06) at 115.
In any event, Brown has failed to demonstrate that the
prosecutor’s statements were prejudicial, most particularly
because the trial court judge provided instructions regarding the
testimony of witnesses who had signed plea agreements. The
jurors were instructed that they could “consider whether a
witness who has entered into [a plea] agreement has an interest
different from any other witness. A witness who realizes that he
or she may be able to obtain his or her own freedom, or to
receive a lighter sentence by giving testimony, may have a
motive to lie.” Trial Tr. (1/5/06) at 443. The District Court
judge also instructed the jurors: “In deciding whether an
agreement existed, you may consider the acts and statements of
12
all the alleged participants. In deciding whether the defendant
became a member of that conspiracy, you may consider only the
acts and statements of that particular defendant.” Id. at 446.
Because these instructions nullified any suggestion that
appellant could be found guilty on the basis of his mere
association with the co-conspirators, they effectively mitigated
the impact of the disputed statements made by the prosecutor.
Finally, contrary to appellant’s allegation, the fact that the
trial court did not provide a jury instruction sua sponte, during
the prosecutor’s closing argument, did not constitute error. The
District Court judge provided instructions to the jury at the close
of trial that sufficiently addressed the Government’s burden of
proof and the limited significance of the plea agreements. There
was no plain error.
D. Comments Vouching for the Credibility of Government
Witnesses
Brown also contends that the prosecutor improperly
vouched for the truthfulness of Government witnesses. He
advances this claim on two grounds. First, appellant argues that
the prosecutor improperly referred to the plea agreements that
witnesses had signed by implying that Government counsel
could independently verify the truthfulness of the witnesses who
had signed these agreements. Second, appellant alleges that the
prosecutor repeatedly injected his personal assessment of the
credibility of various witnesses and of Brown’s guilt into his
presentation of the case.
Brown’s first argument is unavailing. This court has held
that plea agreements can be introduced by the prosecution and
referred to in their entirety, because so doing does not
improperly bolster the witness who signed the plea agreement.
United States v. Spriggs, 996 F.2d 320, 324 (D.C. Cir. 1993).
One of our sister circuits has suggested that the “[u]se of the
‘truthfulness’ portions of [plea] agreements becomes
13
impermissible vouching . . . when the prosecutors explicitly or
implicitly indicate that they can monitor and accurately verify
the truthfulness of the witness’ testimony.” United States v.
Bowie, 892 F.2d 1494, 1498 (10th Cir. 1990). Under this
standard, two comments by the prosecutor in this case are
arguably objectionable – (1) when the prosecutor asked Olivia
Williams “if it is determined that you have not told the truth,
ma’am, will this plea agreement be in effect if you lie?” Trial Tr.
(1/4/06) at 286, and (2) when the prosecutor asked Gregory
Fulton “if it’s determined that you have not told the truth at any
time, sir, will this plea agreement be voided?” id. at 340. In
suggesting that the witnesses’ plea agreements would be
automatically voided if they lied, the prosecutor arguably
implied that he was capable of monitoring the witnesses’
truthfulness.
Even assuming, arguendo, that these statements constitute
clear error, appellant has not demonstrated that the statements
affected his substantial rights. Olivia Williams was an ancillary
witness in the prosecution’s case against Brown, and Gregory
Fulton’s testimony was mostly anticipated by the testimony of
FBI Special Agent Ervin. The jury did not have to assign any
weight to the testimony of either witness in order to find Brown
guilty, and thus the prosecution’s misstatements did not relate to
a central issue in the case. Furthermore, the trial court instructed
the jurors:
You are the sole judges of the facts. You alone will decide
what weight to give to the evidence presented during the
trial, you decide the value of the evidence, and you decide
the believability of the witnesses.
Trial Tr. (1/5/06) at 436. This mitigated any harm that might
have come from the prosecutor’s comment.
Brown’s second vouching allegation raises a more
troublesome issue. On the record here, there is little doubt that
14
the prosecutor committed serious errors when he injected his
personal assessments of the credibility of witnesses into his
presentation of the case. During his closing argument, the
prosecutor repeatedly stated that he “believed” various
Government witnesses. With respect to Ana Alvarez Rios, the
prosecutor stated:
I believe the evidence and the testimony of Mrs. Ana
Alvarez Rios, I believe her testimony regarding this
defendant and his actions proves him guilty beyond a
reasonable doubt. And her testimony had a ring of truth or
a ring of trustworthiness that you could take to the bank.
Trial Tr. (1/5/06) at 414. These comments constituted
impermissible vouching.
At oral argument before this court, Government counsel
conceded that the prosecutor’s argument “could have been
phrased more artfully.” In truth, as a member of the court
pointed out, the prosecutor’s argument “could hardly have been
phrased more poorly!” Recording of Oral Argument, 13:35-
13:40.
The rule against vouching is well established. As this court
made clear in Harris v. United States, 402 F.2d 656 (D.C. Cir.
1968), “it [is] for the jury, and not the prosecutor, to say which
witnesses [are] telling the truth. Neither counsel should assert
to the jury what in essence is his opinion on guilt or innocence.”
Id. at 658. See also MODEL RULES OF PROF’L CONDUCT R.
3.4(e) (2002) (prohibiting a lawyer from “stat[ing] a personal
opinion as to the justness of a cause, the credibility of a witness,
the culpability of a civil litigant or the guilt or innocence of an
accused.”).
The rule against vouching is also very important, because
it seeks to protect the integrity of the trial process and ensure
that judgments and verdicts are grounded in evidentiary facts:
15
[T]he purpose of the rule forbidding expression of opinion
of counsel on the ultimate issue is to keep the focus on the
evidence and to eliminate the need for opposing counsel to
meet “opinions” by urging his own contrary opinion. The
impropriety of substituting an attorney’s view of the case
for the evaluation of the evidentiary facts has been
discussed by Drinker . . . :
“There are several reasons for the rule, long
established, that a lawyer may not properly state his
personal belief either to the court or to the jury in the
soundness of his case. In the first place, his personal
belief has no real bearing on the issue; no witness
would be permitted so to testify, even under oath, and
subject to cross-examination, much less the lawyer
without either. Also, if expression of personal belief
were permitted, it would give an improper advantage
to the older and better known lawyer, whose opinion
would carry more weight, and also with the jury at
least, an undue advantage to an unscrupulous one.
Furthermore, if such were permitted, for counsel to
omit to make such a positive assertion might be taken
as an admission that he did not believe in his case.” H.
DRINKER, LEGAL ETHICS 147 (1953) (footnotes
omitted).
Harris, 402 F.2d at 658. Impermissible vouching is particularly
dangerous when it is done by prosecutors:
The prosecutor’s vouching for the credibility of witnesses
and expressing his personal opinion concerning the guilt of
the accused pose two dangers: such comments can convey
the impression that evidence not presented to the jury, but
known to the prosecutor, supports the charges against the
defendant and can thus jeopardize the defendant’s right to
be tried solely on the basis of the evidence presented to the
jury; and the prosecutor’s opinion carries with it the
16
imprimatur of the Government and may induce the jury to
trust the Government’s judgment rather than its own view
of the evidence.
United States v. Young, 470 U.S. 1, 18-19 (1985) (emphasis
added). Juries are aware that prosecutors have “as much [a]
duty to refrain from improper methods calculated to produce a
wrongful conviction as [they have] to use every legitimate
means to bring about a just one.” Berger v. United States, 295
U.S. 78, 88 (1935), overruled on other grounds by Stirone v.
United States, 361 U.S. 212 (1960). Therefore, “improper
suggestions, insinuations and, especially, assertions of personal
knowledge [by prosecutors] are apt to carry much weight against
the accused when they should properly carry none.” Id. A
prosecutor is barred neither from giving a strong closing
argument, nor from responding to a defendant who questions the
credibility of the Government’s witnesses “in his own closing
argument and throughout the trial,” United States v. Robinson,
59 F.3d 1318, 1323 (D.C. Cir. 1995), but counsel must “stick[]
to the evidence and refrain[] from giving his personal opinion.”
United States v. Dean, 55 F.3d 640, 665 (D.C. Cir. 1995).
It is clear in this case that the prosecutor erred in expressing
his personal beliefs regarding appellant’s guilt. If defense
counsel had raised a timely objection, the trial judge would have
been afforded an opportunity to admonish the prosecutor and
instruct the jury to disregard his expressions of personal belief.
And if the trial judge had failed to address the situation so as to
render any error harmless, then the prosecutor’s misdeeds would
have resulted in reversible error. As it stands, however, defense
counsel did not object, so the prosecutor’s error must be
assessed pursuant to the plain error standard of review. Under
that standard, we hold that there was an “error” that was “plain,”
but we cannot find that the error affected appellant’s substantial
rights or that it seriously affected the fairness, integrity, or
public reputation of the judicial proceeding. There are two
17
reasons for this: First, the weight of the evidence against Brown
was quite strong. And, second, although the trial judge did not
precisely address the prosecutor’s errors, he did give instructions
to the jury making it clear that the prosecutor’s personal beliefs
were irrelevant. See, e.g., Trial Tr. (1/5/06) at 436 (“You
[jurors] are the sole judges of the facts. You alone will decide
what weight to give to the evidence presented during the trial,
you decide the value of the evidence, and you decide the
believability of the witnesses.”); id. at 438 (“The statements and
arguments of the lawyers are not evidence. They are only
intended to assist you in understanding the evidence.”); id. at
441 (“You are the sole judge of the credibility of the witnesses;
in other words, you alone are to determine whether to believe
any witness, and the extent to which any witness should be
believed.”). The plain error standard imposes a high threshold
on claims of reversible error, and we cannot say the prosecutor’s
misstatements in this case cross it.
E. Cumulative Effect of Alleged Improprieties
We have previously stated that “although certain errors
standing alone might be insufficient to overturn a verdict, these
errors may exert a cumulative effect such as to warrant reversal.
The critical inquiry is an analysis of the ‘probable impact,
appraised realistically, of the particular [errors] upon the jury’s
factfinding function.’” United States v. Jones, 482 F.2d 747,
749 n.2 (D.C. Cir. 1973) (quoting United States v. Wharton, 433
F.2d 451, 457 (D.C. Cir. 1970)) (alteration in original). As
noted above, many of the prosecutor’s statements to which
appellant now objects did not constitute clear error, and the few
statements that did result in clear error were not prejudicial. The
individual effect of each improper comment on the jury’s
factfinding function was negligible, primarily because the
Government’s case was strong and because the District Court’s
instructions to the jury mitigated any harm caused by
prosecutorial missteps. Accordingly, we hold that the
18
cumulative effect of the prosecutor’s errors does not warrant
reversal pursuant to the plain error standard of review.
III. CONCLUSION
For the reasons given above, the judgment of the District
Court is affirmed.
So ordered.