United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 19, 2008 Decided April 15, 2008
No. 06-3087
UNITED STATES OF AMERICA,
APPELLEE
v.
FRANCO JEFFERSON RAWLINGS,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 04cr00456-2)
Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for the appellant. A. J. Kramer, Federal Public
Defender, was on brief.
Louis Ramos, Assistant Unites States Attorney, argued the
cause for the appellee. Jeffrey A. Taylor, United States
Attorney, and Roy W. McLeese III, Assistant United States
Attorney, were on brief.
Before: HENDERSON, TATEL and GARLAND, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Franco J.
Rawlings appeals his conviction of one count of felon in
2
possession of a firearm and ammunition on the grounds that the
trial judge improperly permitted the jurors to submit questions
directed to trial witnesses and that the prosecutor’s closing
argument improperly bolstered the credibility of the
Government witnesses and shifted the burden of proof to the
defendant. Rawlings did not object to the judge’s questioning
of jurors or the prosecutor’s argument and we find no plain error
in either. We therefore affirm Rawlings’s conviction.
I.
Viewed in the light most favorable to the Government, see
United States v. Roy, 473 F.3d 1232, 1233 (D.C. Cir. 2007), the
evidence establishes the following facts. About 5:30 p.m. on
October 13, 2004, District of Columbia Metropolitan Police
Department Detective Kevin Copeland and Officer Harry Allen
were in separate cars in a supermarket parking lot in the 1600
block of Maryland Ave., N.E. when they observed Rawlings
drive a white car into the parking lot and then drive out again
shortly thereafter. Allen, who was in plain clothes, and
Copeland, wearing a bullet-proof vest displaying the word
“POLICE” in large capital letters, gave chase in their separate
unmarked cars. Allen took the lead and Copeland followed
close behind, with a flashing red police light on his dashboard.
While being chased, Rawlings ran a red light at the
intersection of 17th Street and Massachusetts Avenue, S.E. and
collided with a car driven by Julio Orozco. Rawlings lost
control of his car which then ran up onto the curb. He climbed
out of the car and began to run. According to the testimony of
Copeland and Aretha Holland—a social worker at the nearby
Boys and Girls Club who ran outside when she heard the
crash—Rawlings emerged from the car carrying a gun, which he
3
threw to the ground as he passed the front of his car.1 Neither
Allen nor Orozco recalled seeing a gun. Rawlings continued to
run across Massachusetts Avenue, with Copeland and Allen in
pursuit, and then came to a stop. The officers ordered Rawlings
to the ground and, when he did not comply, they forced him
down and handcuffed him. Allen then returned to the front of
Rawlings’s car and located the gun on the ground where
Copeland told him Rawlings tossed it. A crime scene technician
arrived a short time later and took custody of the gun, a loaded
Glock semi-automatic .45 caliber pistol.
Rawlings’s trial began on December 20, 2005. Immediately
beforehand, defense counsel moved orally to preclude the
Government from making reference to the circumstances that
brought Rawlings and the two officers to the parking lot on
October 13, 2004. Rawlings had driven there with a passenger–
Ricardo Lacy–who had arranged to sell phencyclidine and
cocaine base to a man who, unbeknownst to him, was an
undercover police officer. Copeland and Allen were there in
connection with the undercover drug transaction. When Lacy
attempted to make the sale, he was arrested and Rawlings drove
off. The Government, with the judge’s approval, agreed not to
elicit testimony about the drug transaction.
On January 9, 2006, a jury convicted Rawlings of one count
of unlawful possession of a firearm and ammunition by a
convicted felon in violation of 18 U.S.C. § 922(g)(1) and
acquitted him of one count of assaulting a police officer in
violation of D.C. Code § 22-405(b). On May 19, 2006 the
district court sentenced Rawlings to 120 months’ imprisonment.
Rawlings filed a notice of appeal on May 30, 2006.
1
According to Copeland, Rawlings crouched down and looked
toward Copeland before tossing the gun. 12/20/05 Tr. 76. Holland
testified Rawlings briefly pointed the gun directly at Allen before he
tossed it. Id. 198.
4
II.
Rawlings contends his conviction should be reversed based
on (1) the judge’s practice of allowing jurors to submit questions
to be asked of witnesses and (2) improper closing arguments by
the prosecutor. We address each ground separately.
A. Juror Questions
Rawlings first objects to the judge’s practice of permitting
jurors to submit questions in writing for the judge to ask the
witnesses. At the beginning of the trial, the judge advised the
jury as follows:
I do permit jurors to ask questions. . . .
. . . We will get you some 3 by 5 cards so you can, if
you deem it appropriate, ask questions.
I can’t let you ask questions the way the lawyers do
verbally, but if you have a question, just take a 3 by 5
card and write down what your question is. I will review
that with the lawyers. If I think it’s an appropriate
question, I will ask it. If I think it’s not an appropriate
question, I will not ask it.
And that’s why we do not let jurors verbally ask
questions because most of you are not legally trained
and may not know some of the nuances of the law and,
therefore, not appreciate what are appropriate or
inappropriate questions. And, therefore, I have to have
you write them down, review them with the lawyers, and
decide whether they’re appropriate.
If I decide not to ask a question, the juror who asked
that question has to disregard the fact that they even
asked it and cannot speculate or guess as to what the
answer would have been.
5
12/20/05 Tr. 41-42. Because Rawlings did not object to the
judge’s instruction, we review his challenge for plain error. See
United States v. Perry, 479 F.3d 885, 892 (D.C. Cir. 2007)
(plain error review of jury instruction not objected to). Under
the plain error standard,
we will remedy a trial court error only if there is “(1)
‘error,’ (2) that is ‘plain,’ and (3) that ‘affect[s]
substantial rights[ ]’ . . . [and] (4) the error ‘seriously
affect[s] the fairness, integrity, or public reputation of
judicial proceedings.’ ” Johnson v. United States, 520
U.S. 461, 466-67 (1997) (quoting [United States v
Olano, 507 U.S. 725, 732 (1993)]). An error “affec[ts]
substantial rights” if it is “prejudicial” or “affected the
outcome of the district court proceedings.” Olano, 507
U.S. at 734.
Id. (full Olano citation added; other alterations in original).
There was no plain error here.
Rawlings urges that the court “establish a bright-line rule
forbidding jurors to pose questions for the witnesses,” relying on
cases from other circuits that warn of the risks involved in
allowing jurors to pose questions to witnesses. Appellant’s Br.
25. At the same time, however, Rawlings concedes that
“[e]very Court of Appeals to address this issue has determined
that it is a matter within the discretion of the trial court, and that
it is not prejudicial per se.” Id. 22. As of the time of trial, at
least ten circuits had considered the issue and concluded that
juror questions are within the trial judge’s discretion. See
United States v. Sutton, 970 F.2d 1001, 1005 (1st Cir. 1992);
United States v. Bush, 47 F.3d 511, 515 (2d Cir. 1995); United
States v. Hernandez, 176 F.3d 719, 723 (3d Cir. 1999);
DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d 512, 516
(4th Cir. 1985); United States v. Callahan, 588 F.2d 1078, 1086
(5th Cir. 1979); United States v. Collins, 226 F.3d 457, 461 (6th
Cir. 2000); United States v. Feinberg, 89 F.3d 333, 337 (7th Cir.
6
1996); United States v. Groene, 998 F.2d 604, 606 (8th Cir.
1993); United States v. Gonzales, 424 F.2d 1055, 1056 (9th Cir.
1970); United States v. Richardson, 233 F.3d 1285, 1288-89
(11th Cir. 2000). Given the unanimous view of ten sister
circuits and the absence of law in this Circuit, Rawlings cannot
establish that the trial judge’s practice constituted an error that
was “ ‘plain’ or ‘obvious’ under the law as it stood at the time
of trial” under the second prong of the plain error standard. See
United States v. Spriggs, 102 F.3d 1245, 1260 (D.C. Cir. 1996)
(finding no plain error in jury instruction that was “consistent
with the approach taken by several other circuits at the time”).
Further, we conclude the judge’s practice was not error at all
under the plain error standard’s first prong.
We agree with our sister circuits that whether to allow jurors
to question witnesses is a matter within the trial judge’s
discretion. As other courts have observed, the practice offers
substantial benefits. For example, it can help focus the jurors,
clear up confusion, alert counsel to evidentiary lacunae and
generally ensure that the jurors have the information needed to
reach a reasoned verdict. See United States v. Collins, 226 F.3d
at 462; United States v. Bush, 47 F.3d at 514, 516; United States
v. Sutton, 970 F.2d at 1005 n.3; United States v. Callahan, 588
F.2d at 1086. We also agree with other circuits, however, that
the practice carries significant risk:
There are a number of dangers inherent in allowing juror
questions: jurors can find themselves removed from their
appropriate role as neutral fact-finders; jurors may
prematurely evaluate the evidence and adopt a particular
position as to the weight of that evidence before
considering all the facts; the pace of trial may be
delayed; there is a certain awkwardness for lawyers
wishing to object to juror-inspired questions; and there
is a risk of undermining litigation strategies. In light of
jurors’ lack of knowledge of the rules of evidence, a
7
juror question may be improper or prejudicial. When a
court declines to ask a question, the questioning juror
may feel that her pursuit of truth has been thwarted by
rules she does not understand. Concern has also been
expressed over a risk that a sense of camaraderie among
jurors may lead them to attach more significance to
questions propounded by fellow jurors than those posed
by counsel.
United States v. Collins, 226 F.3d at 461-62 (citations omitted);
see also United States v. Richardson, 233 F.3d at 1290; United
States v. Feinberg, 89 F.3d at 336-37; United States v. Bush, 47
F.3d at 516-17; United States v. Groene, 998 F.2d at 606; United
States v. Sutton, 970 F.2d at 1005; DeBenedetto v. Goodyear
Tire & Rubber Co., 754 F.2d at 516. To minimize these risks,
a district judge who decides to permit questioning by jurors in
a given case should implement specific precautionary
procedures.
First, the court should inform counsel in advance that juror
questions will be allowed, should require that all juror questions
be submitted in writing, should review them with counsel out of
the presence of the jury (evaluating objections, if any) and then,
if it finds the question proper, should itself ask the question of
the witness. See United States v. Richardson, 233 F.3d at 1290-
91; United States v. Collins, 226 F.3d at 464; United States v.
Feinberg, 89 F.3d at 337; United States v. Bush, 47 F.3d at 516;
United States v. Groene, 998 F.2d at 606. In addition, before
any questioning begins, the court should instruct the jurors about
the function of the questioning procedure in clarifying factual
(not legal) issues and should direct them to remain neutral and,
if the judge fails to ask a particular question, not to take offense
or to speculate as to the reasons therefor or what answer might
have been given. See United States v. Collins, 226 F.3d at 464-
65; United States v. Sutton, 970 F.2d at 1005. Then, after a
particular witness has responded to the questions, the court
8
should permit counsel to re-question the witness. See United
States v. Collins, 226 F.3d at 465; United States v. Hernandez,
995 F.2d 307, 312 (1st Cir. 1993); DeBenedetto v. Goodyear
Tire & Rubber Co., 754 F.2d at 515 n.1. We also think it
prudent to repeat the instructions in the closing charge. Because
the judge in this case scrupulously adhered to these prophylactic
procedures, we conclude that his practice of asking juror
questions was not an abuse of discretion even had Rawlings
objected to it. See United States v. Collins, 226 F.3d at 465
(“Nor do we find an abuse of discretion in the court’s
implementation of measures to minimize the potential risks of
allowing such questions.”); United States v. Hernandez, 76 F.3d
at 723 (“The procedure utilized here is consistent with our
admonitions and consistent with the sound exercise of judicial
discretion.”); United States v. Callahan, 588 F.2d at 1086 n.2
(“There was no error committed in allowing the question to be
asked, and the procedure employed of requiring jurors to put
their questions in writing and clear their relevancy with the court
was not an abuse of the court’s discretion to conduct the trial
fairly.”). Nonetheless, this case illustrates just how perilous it
can be for the court to routinely solicit and ask juror questions.
Notwithstanding all of the judge’s precautions, one of the
juror questions he asked, although seemingly innocuous, invited
possible prejudicial error. At one juror’s request, the judge
asked witness Copeland: “And why did you follow the vehicle
out of the lot?” The following exchange ensued:
WITNESS: Because the vehicle was part of the actual—
COURT: But was there something about the movement
of the vehicle that caused you to follow it?
OFFICER: Yes. Well, the vehicle was a part of the scene
that had just transpired.
COURT: Well, was there something about the
movement of the vehicle that caused you to follow it?
9
OFFICER: Yes. It sped off at a high rate of speed.
Tr. 12/20/05 at 185-86. Had the judge not quickly cut off
Copeland’s first response and rephrased the juror’s question,
Copeland might have testified on the very subject that counsel
and the court agreed to avoid, namely, the planned drug
transaction that Rawlings had facilitated. Because the court’s
corrective action prevented Copeland from testifying about the
prohibited subject of the drug sale, the question, if error, was not
plain error because it was not prejudicial so as to “affec[t]
substantial rights” under the third prong of the plain error
standard. See Olano, 507 U.S. at 734.2 Nonetheless, prejudice
was only narrowly averted. The episode highlights the risk of
allowing jury questions during trial and demonstrates why other
circuits have advised that they be used only sparingly. To limit
such risk in the future, we, as have our sister circuits, advise trial
judges to consider on a case-by-case basis whether and to what
extent jury questions are appropriate, balancing the potential
benefit of such questions against the dangers they pose. See
United States v. Collins, 226 F.3d at 463 (“In general, . . . we
think that a court should attempt to balance the risks and
benefits of juror questions before trial . . . .”); United States v.
Richardson, 233 F.3d at 1290 (“[I]n determining whether to
permit juror questioning, the trial court should ‘weigh the
2
Had Rawlings objected at trial that this specific question was
prejudicial or even generally objected to the practice of allowing juror
questions before this question was asked, we would review the
question itself for abuse of discretion rather than for plain error. See
United States v. Johnson, 914 F.2d 136, 138 (8th Cir. 1990) (specific
jury questions to which objection made at trial reviewed for abuse of
discretion); United States v. Richardson, 233 F.3d at 1288 (juror
questions asked after objection to general practice reviewed for abuse
of discretion). He did not. See 12/20/05 Tr. 183 (Rawlings’ objection
to group of questions, including this one, as not “needed” because
“probably” already asked).
10
potential benefit to the jurors against the potential harm to the
parties, especially when one of those parties is a criminal
defendant.’ ” (quoting United States v. Feinberg, 89 F.3d at
337)); United States v. Callahan, 588 F.2d at 1086 n.2 (“District
courts must in each case balance the positive value of allowing
a troubled juror to ask a question against the possible abuses that
might occur if juror questioning became extensive.”).
Permitting juror questions as a matter of course is ill-advised.
See United States v. Collins, 226 F.3d at 461 (“Allowing juror
questions should not become a routine practice, but should occur
only rarely after the district court has determined that such
questions are warranted.”); United States v. Feinberg, 89 F.3d
at 337 (“There may be cases [in which] jurors should be allowed
to ask questions in order to perform their duties as fact-finders.
Of course those cases are the exceptions, not the rule. In the vast
majority of cases the risks outweigh the benefits.”); United
States v. Sutton, 970 F.2d at 1005 (“[J]uror participation in the
examination of witnesses should be the long-odds exception, not
the rule.”); cf. United States v. Ajmal, 67 F.3d 12, 14-15 (2d Cir.
1995) (“[T]he district court, as a matter of course, established at
the outset of the trial that jurors would be allowed to question
witnesses. . . . [T]he district court’s solicitation of juror
questioning absent a showing of extraordinary circumstances
was an abuse of discretion.”).
B. Prosecutor’s Closing Argument
Rawlings next contends the prosecutor’s closing argument
“overstepped the bounds of proper advocacy” in two respects.
Appellant’s Br. 27. First, Rawlings objects to the prosecutor’s
laudatory references to Government witnesses Allen, Copeland
and Holland, who, the prosecutor stated, “should be applauded
because what they have done is taken this weapon off the
street,” 12/23/05 Tr. 106, and whom he repeatedly characterized
as having done the “right thing”—Allen and Copeland in their
performance as police officers and Holland in getting “involved”
11
both “to help the police” and to make sure children from the
nearby Boys and Girls Club were not “involved” in the
automobile crash. Id. 98, 102, 105-06. He also objects to the
prosecutor contrasting the conduct (and credibility) of
Government witness Holland with that of defense witness
Orozco: Of Orozco, the prosecutor remarked:
That’s why it was important when I asked whether or not
[Mr. Orozco] talked to the police. “Did you tell them?
Did you see anything? Did you have any contact with
the police?” “No, I didn’t,” but five months later he had
that contact with the defense investigator, which he
signed a statement for.
12/23/05 Tr. 96-97. Of Ms. Holland, he observed:
Since I have mentioned Mr. Orozco, let me mention Ms.
Holland, another civilian waitress. Contrast her
testimony with Mr. Orozco’s. On that day, Ms.
Holland—what did she do? She got involved. That’s
what this case is about. She heard something. She saw
something. She went out, saw more things, and then
told the police what she saw.
12/23/05 Tr. 97. Rawlings contends these remarks improperly
urged the jurors “to slip out of their role as neutral arbiters of the
facts and into the role of cheerleaders for Copeland, Allen and
Holland.” Appellant’s Br. 28. Second, Rawlings claims the
prosecutor effectively shifted the burden of proof to Rawlings
when he argued that there was no evidence contradicting the
Government’s evidence of Rawlings’s guilt: “I stood up here
before in my opening statement. I said, ‘This is a pretty simple
case. The defendant did what we have alleged by way of
indictment. The evidence will support it.’ And there is no
evidence to the contrary—not one single piece of evidence to the
contrary. . . . There is not one shred of evidence that Officer
Copeland didn’t see what he said he saw.” 12/23/05 Tr. 99-100.
12
Because Rawlings failed to object to the prosecutor’s closing
remarks, we again review only for plain error and again we find
none. Rawlings has failed to establish that any of the challenged
statements was prejudicial under the third prong of the plain
error standard.
“To judge the prejudicial effect of a closing argument error
we look to the severity of the alleged misconduct, the centrality
of the issue affected by the error, the steps taken to mitigate the
error, and the closeness of the case.” United States. v. Wilson,
240 F.3d 39, 45 (D.C. Cir. 2001) (citing United States v.
Gartmon, 146 F.3d 1015, 1026 (D.C. Cir. 1998)). In United
States v. Brown, 508 F.3d 1066 (D.C. Cir. 2007), we found no
plain error in the prosecutor’s statements that, like the comments
here, attempted to bolster the credibility of a Government
witness. In that case, the prosecutor told the jury regarding a
witness’s testimony: “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.” 508 F.3d at
1074. Although the court “h[e]ld that there was an ‘error’ that
was ‘plain,’ ” the court could not find that the error either
“affected appellant’s substantial rights” or “seriously affected
the fairness, integrity, or public reputation of the judicial
proceeding.” Id. at 1076. The court gave two reasons for its
conclusion: first, the evidence against the defendant was “quite
strong” and, second, the trial judge gave the jurors instructions
“making it clear that the prosecutor’s personal beliefs were
irrelevant.” Id. In closing instructions to the jury, the judge
there directed:
You [jurors] are the sole judges of the facts. You alone
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. . . . The
statements and arguments of the lawyers are not
13
evidence. They are only intended to assist you in
understanding the evidence. . . . 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.
Id. (record citations omitted). In this case too, the evidence
against Rawlings was strong. The only disputed factual question
was whether he was carrying a gun when he got out of the car.
Both Copeland and Holland testified that he was and neither
Orozco nor Allen contradicted their testimony—each of them
testified only that he himself did not see a gun then. See
12/21/05 Tr. 100 (Allen); Tr. 12/23/05 Tr. 16-17 (Orozco).
Allen testified without contradiction, however, that he found the
gun next to the car, where Copeland told him Rawlings had
dropped it. Id. 98-99, 127. Also, as in Brown, the trial judge
here instructed the jurors that they alone were to determine the
witnesses’ credibility:
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 the believability of the witnesses. . . . [I]f any
reference by myself or by the attorneys to evidence does
not coincide with your own recollection of the evidence,
it is your recollection which should control during your
deliberations. . . . [T]he statements and the arguments
of the lawyers are not evidence. They are only intended
to assist you in understanding their position of what the
evidence indicated. . . . You are the sole judges of the
credibility or believability 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. . . . [A] police officer’s testimony should
be considered by you just as any other evidence in the
case. In evaluating an officer’s credibility, you should
14
use the same guidelines which you apply to the
testimony of any other witness. In no event should you
give either greater or lesser weight to the testimony of a
witness because that witness happens to be a police
officer.
12/23/05 Tr. 137-39, 143, 145. Accordingly, as in Brown, we
conclude that any error in the prosecutor’s bolstering remarks
was harmless and that Rawlings has therefore failed to reach the
“high threshold” the plain error standard imposes. Brown, 508
F.3d at 1076.
We likewise find no plain error in the prosecutor’s
comments on the absence of evidence contradicting the
Government’s case. The circumstances here are similar to those
in United States v. Catlett, 97 F.3d 565 (D.C. Cir. 1996), in
which the prosecutor began his closing argument with the
following statement: “ ‘No witness came here from this busy
street and says, “Folks, it didn’t happen that day.” ’ ” 97 F.3d
at 573 (record citation omitted). In Catlett, we concluded the
prosecutor’s remark was not plain error, reasoning that “[e]ven
if the prosecutor crossed the line of proper argument, . . . he did
not thereby deprive the defendants of a fair trial” because at the
end of the trial the judge gave an adequate curative instruction.
Id. The trial judge had charged the jury: “ ‘The burden is on the
prosecution, the government, to prove the defendants guilty
beyond a reasonable doubt. This burden of proof never shifts
throughout the trial. The law does not require the defendants to
prove their innocence or to produce any evidence.’ ” Id. (record
citation omitted). In Catlett, we concluded: “These instructions
would have cured any confusion caused by the prosecutor’s
remarks.” Id. (citing United States v. Kim, 595 F.2d 755, 768
(D.C. Cir. 1979)).
Similarly, in United States v. Venable, 269 F.3d 1086, 1091
(D.C. Cir. 2001), we found no plain error in the prosecutor’s
argument that, in order to acquit the defendant, the jurors would
15
have to “ ‘disbelieve the testimony’ ” of the Government
witnesses. 269 F.3d at 1089. We reasoned that (1) “the
offending comment consisted of a single sentence in the course
of a closing that was otherwise devoted to proper argument,”
269 F.3d at 1091; (2) it “was mitigated by the court’s
twice-delivered instructions that the ‘law doesn’t require a
defendant to prove his innocence, produce evidence or testify,’
and that the burden of proof ‘is on the Government to prove the
defendant guilty beyond a reasonable doubt and that burden of
proof never shifts throughout the trial,’ ” id. (citing United
States v. Catlett, 97 F.3d at 573); and (3) the evidence, while
“not overwhelming . . . was sufficiently strong, in light of the
foregoing factors, to undermine the assertion that the outcome
of the trial was affected by the prosecutor’s statement,” id. at
1092.
In this case, we find no plain error for the same reasons. The
claimed error consists of only a few sentences in the rebuttal
argument and any effect they might otherwise have had was
minimized when the judge subsequently gave an instruction
similar to those in Catlett and Venable, directing the jury: “The
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 to produce any evidence.” 12/23/05 Tr.
141-142; see also 12/20/05 Tr. 25-26 (virtually identical
instruction at start of trial). Given the curative instruction and
the strength of the Government’s case, we cannot say the
prosecutor’s comments constituted plain error.
Although we find no plain error in the prosecutor’s
statements regarding the Government witnesses’ credibility or
the absence of contradictory evidence, this is not to say his
comments were proper. Had Rawlings preserved an objection
or had the Government’s case been weaker, our disposition
16
might well be different. The Government is cautioned to avoid
similar argument in the future.
For the foregoing reasons, the judgment of the district court
is affirmed.
So ordered.