United States v. Carpenter

United States Court of Appeals
For the First Circuit

Nos. 06-1373, 06-1374, 06-1488

UNITED STATES OF AMERICA,

Appellant, Cross-Appellee,

v.

DANIEL E. CARPENTER,

Defendant-Appellee, Cross-Appellant.

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

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

Before

Lynch, Circuit Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.

Michael J. Pineault, Assistant U.S. Attorney, with whom
Michael J. Sullivan, U.S. Attorney, was on brief, for appellant,
cross-appellee.
Martin G. Weinberg, with whom Robert M. Goldstein was on
brief for appellee, cross-appellant.

July 18, 2007
 LIPEZ, Circuit Judge. In an appeal brought by the

government, we must decide whether the district court erred when it

granted Daniel Carpenter a new trial because the government's use

of inflammatory language during its closing and rebuttal arguments

prejudiced the jury and denied Carpenter a fair trial. In a cross-

appeal, Carpenter asserts that the district court erred in failing

to grant his motion for judgment of acquittal. We affirm the new

trial ruling. We conclude that we lack jurisdiction to hear

Carpenter's cross-appeal.

I.

A. Factual Background

We briefly rehearse the relevant facts, which are largely

undisputed. In October 1998, Daniel Carpenter and Martin Paley

formed Benistar Property Exchange Trust Company, Inc. ("Benistar")

for the purpose of performing property exchanges pursuant to

section 1031 of the Internal Revenue Code, 26 U.S.C. § 1031.

§ 1031(a)(1) allows a seller of "property held for productive use

in a trade or business or for investment" to avoid capital gains on

the sales proceeds if they are used to purchase a replacement

property meeting the same criteria. In order to qualify, the

seller must complete the exchange within 180 days of the original

sale and must not take control of the proceeds in the interim,

§ 1031(a)(3). Accordingly, property owners typically entrust their

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sales proceeds to a qualified intermediary until they purchase

replacement property; Benistar was created to play this role.

Benistar's clients signed standard form agreements

providing that property sale proceeds be transmitted by wire or

check directly from the closing attorney into a Benistar account.

Clients chose between a Merrill Lynch Ready Asset Money Market

Account, yielding a 3% return on investment per annum (which

allowed clients to access their funds upon 48 hours' notice), and

a Merrill Lynch Investment Account, yielding 6% interest (which

required 30 days' notice before funds could be accessed).

According to the agreement between Paley and Carpenter,

Paley marketed Benistar's services to clients while Carpenter

maintained sole authority over the financial aspects of the

business. Carpenter opened two accounts at Merrill Lynch in

October 1998: the "B01 account," into which client funds were

deposited; and the "B10 account," into which Carpenter transferred

client funds which he then invested. When he opened the B10

account, Carpenter characterized his risk tolerance as "aggressive"

and he informed Merrill Lynch that he intended to engage in options

trading. As is their practice, Merrill Lynch counseled Carpenter

on the riskiness of these investments and required him to sign a

form acknowledging his understanding of those risks.

From October 1998 until late September 2000, Carpenter

transferred funds from the B01 account to the B10 account and

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traded extensively in stock options. While his trading strategy

was successful at first,1 Carpenter lost significant sums when the

stock market began to decline in March 2000. As the market

continued to decline thereafter, his Merrill Lynch brokers

repeatedly counseled Carpenter to adopt a more conservative trading

strategy. After Carpenter sustained roughly $4 million in losses,

Merrill Lynch suspended his trading privileges.

Carpenter then moved his trading activity to PaineWebber,

where he again opened linked accounts: client funds were deposited

by mail or wire into one account and he engaged in stock option

trading from the other account. As had Merrill Lynch, PaineWebber

counseled Carpenter on the risks inherent in options trading;

Carpenter acknowledged these risks and continued his aggressive

investment strategy. Carpenter continued to sustain heavy trading

losses at PaineWebber and, despite his broker's urging that he

adopt a more conservative investment strategy, Carpenter increased

the size and riskiness of his trades as his fortunes declined.

PaineWebber discontinued Carpenter's trading privileges in December

2000. Although Benistar had been losing client funds since March

2000, incoming funds had covered the losses. However, by January

2001, Benistar was forced to tell its clients that their money was

1
Indeed, testimony indicated that, in the fourth quarter of
1999, Carpenter was "up" roughly $800,000.00, providing Carpenter
with slightly more than $600,000.00 in profit.

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gone. Benistar subsequently ceased operations, having lost roughly

$9 million in client funds.

B. Carpenter's Trial

Carpenter was indicted in February 2004 by a federal

grand jury in the District of Massachusetts on fourteen counts of

wire fraud, in violation of 18 U.S.C. § 1343, and five counts of

mail fraud, in violation of 18 U.S.C. § 1341. In particular,

Carpenter was charged with having devised and implemented a scheme

to defraud investors by representing that their money would be

invested prudently in conformity with the property exchange

requirements of the Internal Revenue Code while he intended to

pursue an investment strategy at odds with such representations.

Critically, clients transferred funds to Carpenter and Benistar by

mail and wire in response to the investment scheme. Because both

mail and wire fraud require an intent to defraud, the trial focused

largely on Carpenter's state of mind when he obtained the funds of

Benistar's clients through the representations made to them.

In his defense, Carpenter portrayed his lack of

interaction with clients and his lack of knowledge about Benistar's

promotional materials. He contended that any assurances made to

clients about the risks to their funds were made by Paley alone and

without his knowledge.2 In addition, Carpenter emphasized that the

2
Paley provided extensive documentary evidence and deposition
testimony to the government as it built its case. He also
testified as a witness against Carpenter at trial. No criminal

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client agreements placed no restrictions on how funds would be

managed in order to produce the 3% or 6% return selected by the

clients. Carpenter argued that he never misled clients into

believing their funds would be safe. Rather, he insisted that he

acted with the good faith belief that he had unfettered discretion

to invest client funds. He attributed Benistar's losses not to an

unwise trading strategy but to a generalized stock market crash

well beyond his control.

The government focused on the incongruity between the

nature of a § 1031 property exchange (a transaction structured to

avoid capital gains while allowing investors to use the proceeds of

one property sale to purchase a replacement property within a short

period of time) and the aggressive nature of Carpenter's investment

behavior. It contended that this incongruity demonstrated

Carpenter's intent to mislead Benistar's clients into depositing

their real estate proceeds with a supposedly safe intermediary so

that he could leverage the funds into a substantial profit for

himself through risky options trading. To prove this agenda, the

prosecution sought to introduce extensive evidence regarding

Carpenter's investment behavior, relying chiefly on testimony from

his brokers at Merrill Lynch and PaineWebber.

charges were brought against Paley in connection with this wire and
mail fraud scheme.

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 Carpenter's counsel objected to such evidence before its

introduction and throughout the trial, arguing that testimony

regarding Carpenter's trading strategy and losses was both

irrelevant to establishing his state of mind at the time he

obtained client funds and also highly prejudicial. The court

denied counsel's motions in limine and his repeated objections,

ruling that the brokers could testify as to factual matters for the

limited purpose of allowing the jury to "consider[] the historical

fact of the kind of trading that was done so the jury can

decide . . . whether [Carpenter] had the requisite criminal state

of mind" when investors were assured that their funds would be kept

safe. The court also determined that, because no foundation had

been laid to treat them as experts, these witnesses could not

provide opinion testimony. In addition, the court repeatedly

expressed its concern that such evidence not be used to distract

the jurors from the elements of the charged offenses of mail and

wire fraud. These witnesses's testimony dominated three of the ten

days of Carpenter's trial.

During its closing and rebuttal arguments,3 the

government emphasized that the riskiness of Carpenter's trading

strategy conflicted with the purposes for which Benistar's clients

entrusted their money to Carpenter's management. In making this

3
The closing and rebuttal arguments will be referred to
hereinafter as "the closing arguments."

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argument, the government embellished its description of Carpenter's

trading strategy with gambling metaphors and terminology intended

to show Carpenter's recklessness.

A jury convicted Carpenter on all counts. Shortly

thereafter, Carpenter filed motions for a new trial under the

Federal Rules of Criminal Procedure 33(b)(2) and for judgment of

acquittal under Rule 29(c), each raising several grounds. The

district court granted the motion for a new trial, ruling that the

government's repeated use of gambling metaphors during its closing

arguments "may [] have induced a verdict based on the jury's moral

disapproval of the 'gambling'" rather than on the jury's conclusion

that Carpenter had committed mail and wire fraud. United States v.

Carpenter, 405 F. Supp. 2d 85, 102 (D. Mass. 2005). The court

denied the motion for acquittal and subsequently denied Carpenter's

motion for reconsideration. The government appealed the new trial

ruling pursuant to 18 U.S.C. § 37314 and Carpenter filed a cross-

appeal, arguing that the court wrongly decided his motion for

acquittal.

4
We note that the government's ability to appeal the district
court's grant of a motion for a new trial is a relatively recent
phenomenon, arising from the 1984 amendments to § 3731.

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 II.

A. The Motion for a New Trial

The government contends that the district court abused

its discretion in granting the motion for a new trial because: (1)

it did not apply plain error review despite Carpenter's failure to

object to the government's use of gambling metaphors until after

the jury delivered its verdict; (2) the government's references to

gambling were not improper under any standard; and (3) even if the

gambling references were improper, they did not amount to a

"miscarriage of justice," warranting a new trial. England v.

Reinauer Transp. Cos., 194 F.3d 265, 270 (1st Cir. 1999) (citing

Conway v. Electro Switch Corp., 825 F.2d 593, 598-99 (1st Cir.

1987)). We consider these arguments in turn.

1. Preservation of Carpenter's Objection

The government argues that because Carpenter did not

contemporaneously object to the government's use of gambling

metaphors during its closing arguments, the district court should

have reviewed the motion for a new trial based on those arguments

for plain error.5 Although the government pressed this same plain

error argument before the district court, the court did not

expressly address the argument in its opinion ordering a new trial.

Nevertheless, as we shall explain, the court's opinion can only be

5
The parties agree that the court did not apply plain error
review.

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read as an implicit determination that Carpenter preserved his

objection to the closing arguments.

The government concedes that Carpenter moved in limine

and made several trial objections to the introduction of testimony

related to Carpenter's investment strategy and losses. However,

the government argues that these objections were insufficiently

specific, and that they addressed only the admission of evidence

and not the manner in which the government could argue from that

evidence during its closing and rebuttal.

Historically, when a party's motion in limine to exclude

evidence had been denied, the party's failure to renew the

objection at trial was considered "fatal." E.g., United States v.

Vest, 842 F.2d 1319, 1325 (1st Cir. 1988). However, Federal Rule

of Evidence 103(a) was amended in 2000 to read, in pertinent part:

"[o]nce the court makes a definitive ruling on the record admitting

or excluding evidence, either at or before trial, a party need not

renew an objection or offer of proof to preserve a claim of error

for appeal." The accompanying commentary explains that "[w]hen the

ruling is definitive, a renewed objection or offer of proof at the

time the evidence is to be offered is more a formalism than a

necessity." Fed. R. Evid. 103 advisory committee's note, 2000

Amendment. In applying this rule, we must pay particular attention

to the question whether the trial court made "definitive" rulings

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on the motion in limine. Crowe v. Bolduc, 334 F.3d 124, 133-34

(1st Cir. 2003).

Carpenter repeatedly objected to the introduction of

evidence regarding his trading strategy and losses, arguing that it

was irrelevant and overly prejudicial because it distracted the

jury's attention from whether he intended to defraud Benistar's

clients at the time their funds were solicited, and focused their

attention instead on the sagacity of his investment strategy.

Indeed, before the trial even began, Carpenter moved in limine to

preclude the testimony of the Merrill Lynch and PaineWebber brokers

based on irrelevance and undue prejudice. He also argued that,

because they had not been identified as expert witnesses, the

brokers should not be allowed to give any evaluative opinions about

his trading strategy.

The court found Carpenter's arguments somewhat

persuasive, ruling on the motion in limine that the "jury may take

account of what kind of trading was done in evaluating whether

there was a culpable state of mind. . . . but evaluative opinions

about the nature of the trading from people who have not been

identified as [expert] witnesses will not be permitted." In

addition, the court stated that "it would be appropriate to caution

the jury in [its] instructions to stay on the elements of the

offenses that are charged and not imagine other wrongs." The court

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added: "[w]hen we've seen all the evidence, we'll have a clearer

idea of what to do on that subject."

Despite the court's preliminary ruling on his objection

to the brokers' testimony, Carpenter continued to object to that

testimony to assure the preservation of his objection. For

instance, at the end of the first day of broker testimony,

Carpenter's counsel stated: "I just want to preserve my objection

because I don't know if I preserved [it] adequately in terms of all

the testimony that came in . . . . [I]t's the same issue, but I

didn't want to stand up every time." The court responded: "I think

your objection is preserved."

At the conclusion of the Merrill Lynch brokers'

testimony, Carpenter filed a motion for mistrial, arguing that he

had been "irretrievably prejudiced in front of the jury by the

[testimony of the] Merrill Lynch witnesses that he was an

aggressive speculator[,] river boat gambler." The court denied

Carpenter's motion for a mistrial, explaining: "I adhere to the

ruling that permitted the admission of the evidence in advance. I

understand the point. We'll deal with it at some additional

occasions." When Carpenter's counsel asked for a "running

objection in line with the motion [for a mistrial]. . . . So I

don't have to stand up," the court responded: "You're covered under

Rule 103." The recognition of a continuing objection could not be

clearer.

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 After Carpenter received that assurance, the government

presented two expert witnesses who testified regarding Carpenter's

investment strategy. In a motion in limine seeking to preclude the

testimony of the second expert, Marc Allaire, Carpenter argued:

"the jury has already heard sufficient evidence regarding the

rudiments of options investments . . . . Any further testimony by

Allaire on this issue would simply be cumulative, unhelpful and a

waste of time." Although the court rejected the motion in a ruling

from the bench, it reiterated its concern for

making sure that the jury at the appropriate
time is focused on the elements of the offense
and what needs to be proved. And I agree that
to some degree this is all relevant as to
state of mind, but I'm concerned that the more
the wisdom of the trading strategy gets
debated, the more the jury will think that has
greater significance than maybe it does in
their deliberations. . . . I want to keep this
focused on whether there was an intent to
deceive or specific intent to defraud.

Carpenter's counsel persisted, stating: "I'm not going to belabor

the point, your Honor . . . . I would just preserve the issue."

The court responded: "Okay. All right." After Allaire's

testimony, the court heard a final day of testimony focused

primarily on establishing the authenticity of the actual mail and

wire transfers of funds from Benistar's clients into the Benistar

account. The parties then presented their closing arguments the

next day.

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 Thus, the trial court devoted considerable attention to

the contested evidence throughout the trial, fielding repeated

objections and stressing its concern that the government limit its

use of the evidence to illuminating Carpenter's intent. Placed in

this context, we find unpersuasive the government's attempt to

distinguish between the introduction of the evidence covered by

Carpenter's objections at trial and the prosecution's arguments

from that evidence, to which Carpenter did not specifically object

before jury deliberations. We look in vain for any indication that

the government drew this distinction in its written submission to

the district court in opposition to Carpenter's motion for a new

trial. More importantly, even if this distinction was discernible

in the government's opposition, the district court was entitled to

reject it and conclude that Carpenter's continuing objections to

the admission of evidence about his investment strategy and losses

applied as well to the government's closing arguments based upon

that evidence.6 Hence we reject the government's argument that the

6
The dissent argues that we should not infer that the court
ruled that defendant preserved his objection to the government's
use of gambling metaphors in its closing arguments and that the
plain error standard did not apply to the request for a new trial
based on the closing arguments. However, the government explicitly
argued for plain error review in its written opposition to
Carpenter's motions for judgment of acquittal and a new trial. The
court issued a lengthy published decision on these motions,
addressing each of Carpenter's arguments in detail, including the
argument that the court entitled in its decision "Prejudicial
Inflammatory Argument" (a reference to the gambling metaphors). In
explaining its decision to grant a new trial because of this
inflammatory argument, the court explained its decision in harmless

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district court erred in failing to apply plain error review to the

government's new trial motion.

The dissent disagrees with this conclusion, asserting

that the district court had to apply the plain error standard to

the defendant's motion for a new trial because Carpenter failed to

preserve his objection to the government's use of gambling

metaphors in its closing arguments. This assertion reflects the

dissent's unstated premise that appellate review of the trial

court's preservation determination is de novo. That is not the

law. Instead, the appellate court should defer to such a

preservation ruling by the district court. The preservation

error terms: "Because it cannot be said with confidence that the
government's improper closing arguments did not taint the verdict,
the verdict cannot be allowed to stand." This language echoes
other decisions on new trial motions that have evaluated whether
the interest of justice requires a new trial under the harmless
error standard. See, e.g., United States v. Casas, 425 F.3d 23, 38
(1st Cir. 2005) (assessing whether trial error affected the trial's
outcome); United States v. Hodge-Balwing, 952 F.2d 607, 610 (1st
Cir. 1991) (same); United States v. Capone, 683 F.2d 582, 585-86
(1st Cir. 1982) (same). Given the thoroughness of the court's
decision, including its explanation of the reasons for granting a
new trial, we can only conclude that the court did not apply plain
error review because it consciously rejected the government's plain
error argument. Moreover, even if the district court had satisfied
the dissent's insistence on an explicit ruling rejecting the plain
error standard, the dissent would still deem that ruling a legal
error. The dissent's central concern is not the adequacy of the
court's explanation of its decision to apply the harmless error
standard. Instead, the dissent argues that the district court
could not apply the harmless error standard because, as a matter of
law, the defendant did not preserve his objection to the
government's use of gambling metaphors in its closing arguments.
As we explain more fully, that argument misperceives the standard
of review that an appellate court should apply to a trial court's
preservation ruling.

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requirement has two components: alerting a trial judge to a party's

objection to a ruling or to the admission of evidence and

adequately explaining the basis for that objection. See Estate of

Keatinge v. Biddle, 316 F.3d 7, 15 (1st Cir. 2002). Thus advised,

the trial judge can decide what course of action to take to assure,

so far as possible, the legal correctness of the trial proceedings.

Id. Faced with post-trial arguments debating whether an objection

to evidence or arguments was adequately preserved, it is certainly

the trial judge who is in the best position to decide if she

sufficiently understood that an objection had been made and the

grounds for it. Given that reality, the appellate court should

defer to the trial court's preservation ruling.7 The dissent

rejects such deference in favor of a de novo standard of review

which fails to account for the trial court's superior position to

determine whether it has been properly apprised of an objection.

7
We routinely defer to the trial court when it is better
positioned to assess the relevant factors for making particular
kinds of decisions. See, e.g., Castro v. Chicago Hous. Auth., 360
F.3d 721, 735 (7th Cir. 2004) (deferring to trial court's
evaluation of party's motion practice); United States v. Capelton,
350 F.3d 231, 238 (1st Cir. 2003) (applying abuse of discretion
standard to trial court's ruling on a motion for mistrial); Ferrara
& Dimercurio v. St. Paul Mercury, 240 F.3d 1, 13 (1st Cir. 2001)
(deferring to trial court's determination whether misconduct
occurred and whether it required judicial sanction); United States
v. Dumas, 207 F.3d 11, 16 (1st Cir. 2000) (deferring to trial
court's assessment of witness credibility); United States v.
Gonzales-Maldonado, 115 F.3d 9, 20 (1st Cir. 1997) (deferring to
trial court's determination of evidence's relevance).

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 In addition, contrary to the suggestion of the dissent,

there is no rule that preserved objections to the admission of

evidence cannot also cover closing arguments based upon that

testimony. Here, in evaluating defendant's demand for a new trial

on the basis of gambling metaphors in the government's closing

arguments, the district court could reasonably conclude that the

defendant's strenuous objections to the evidence on trading

strategy and losses embraced the gambling metaphors that

characterized that evidence in such provocative terms in the

government's closing arguments.

The dissent cites unfairness to the government in the

district court's new trial ruling. Specifically, the dissent

speculates that "had there been a cognizable objection here, the

government would likely not have to retry the case, and the

considerable burdens of a retrial would not be placed upon

witnesses and alleged victims." Once again the dissent refuses to

acknowledge the superior position of the district court to

determine, from its vantage, that the defendant had already

registered a cognizable objection to the government's use of

gambling metaphors through its repeated objections to the evidence

underlying those metaphors.

However, there was always the risk for the government

that the court, in the context of a post-trial motion for a new

trial, would reconsider the appropriateness of its handling of the

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evidence and arguments on trading strategy and financial losses.

That risk emphasizes why there is no unfairness to the government

in the court's decision to award a new trial. As we have already

noted, after one of its rulings admitting evidence on trading

strategy and losses, the court stated that "it would be appropriate

to caution the jury in [its] instructions to stay on the elements

of the offenses that are charged and not imagine other wrongs."

The court expressed similar concerns on other occasions about the

potential for the unfairly prejudicial impact of this evidence on

the jury. Yet, as we explain more fully in the next section of the

opinion, the government ignored the court's concerns about the

limited relevance of the trading strategy and financial losses

evidence. Instead of engaging in a straightforward explanation of

the relevance of that evidence to the defendant's criminal intent,

the government used provocative gambling metaphors to characterize

that evidence. This calculated decision by the government

increased the risk that the court, in evaluating a post-trial

motion for a new trial, would conclude that this provocative

treatment of the potentially unfairly prejudicial evidence made

this prejudice real and required a new trial in the interest of

justice.

The government cannot claim surprise in such a ruling.

When it resorted to the gambling metaphors in its closing

arguments, the government made its own gamble that the court,

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despite its uneasiness about the potential prejudicial impact of

the evidence of trading strategy and financial losses on the jury,

would not conclude, in evaluating the inevitable motion for a new

trial, that the government had gone too far with its arguments.

There is no unfairness to the government if it has now lost that

gamble.

2. Propriety of Gambling Metaphors in Closing

We must now decide if the district court was correct in

ruling that the government had gone too far with the many gambling

references during its closing arguments. Although we employ the

deferential abuse of discretion standard in reviewing the district

court's ultimate determination that the prosecution's inflammatory

statements warrant a new trial, we must review de novo the prior

question of whether the comments themselves were improper. United

States v. Hernandez, 218 F.3d 58, 68 (1st Cir. 2000) (reviewing de

novo whether prosecutor's statements during closing arguments were

improper because they relied on evidence related to activities

outside the scope of the alleged conspiracy to prove a criminal

association); United States v. Lewis, 40 F.3d 1325, 1337-38 (1st

Cir. 1994) (applying de novo review to determine the propriety of

prosecutor's comments during closing arguments that the defense had

failed to produce evidence regarding an alleged "frame up"); United

States v. Glantz, 810 F.2d 316, 320-21 & n.2 (1st Cir. 1987)

(acknowledging that a de novo standard of review applies to the

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legal question of whether the prosecutor's arguments were proper,

but determining that the court need not decide propriety where it

finds that the grant of a new trial on the basis of such arguments

was an abuse of discretion even if the arguments were improper).

The district court acknowledged that the "gambling

characterizations were not, as a matter of the narrative of the

government's case, wholly inapt," 405 F. Supp. 2d at 101. However,

it found that the "repeated references to gambling were intended

to, and did, inflame the jury's passions against the defendant,"

id. We agree.

In assessing whether the use of particular language is

improper, we look beyond the technical accuracy of a phrase and

consider such factors as the "threat of unfair prejudice, frequency

of use, and alternative means of description." United States v.

Felton, 417 F.3d 97, 103 (1st Cir. 2005). The prosecution's use of

gambling language was extensive. The district court counted

eighteen instances in which the government used some permutation of

the word "gamble," along with numerous references to other gambling

terms. 405 F. Supp. 2d at 101. The government referred to

gambling in its morally freighted gaming sense, with provocative

references to "cashing in chips," "doubling down" and "river boat

gambler." In a particularly dramatic example, the prosecution

intoned:

Any reasonable person with or without
investment experience and knowledge would have

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 said it's time to cash in my chips and go
home. Not Dan Carpenter. He kept on
playing. . . . The self-professed river boat
gambler pushes on until the losses mount and
mount and mount.

Finally, we are most concerned that the government would use such

provocative language in the face of the court's repeated caution

that the evidence upon which the gambling terminology was based

should not be used to distract the jury from its focus on

Carpenter's state of mind when he obtained his clients' funds. We

cannot ignore this important context in evaluating the choices the

prosecution made when it crafted its closing arguments.

While we agree that "a criminal defendant is not entitled

'to a prosecutorial summing-up confined to platitudes and

euphemisms,'" United States v. Rodriguez-Estrada, 877 F.2d 153, 159

(1st Cir. 1989) (quoting Palmariello v. Sup't of MCI Norfolk, 873

F.2d 491, 494 (1st Cir. 1989)), we must also ensure that "while a

prosecutor 'may strike hard blows, he is not at liberty to strike

foul ones,'" United States v. Taylor, 54 F.3d 967, 977 (1st Cir.

1995) (quoting Berger v. United States, 295 U.S. 78, 88 (1935)).

Because the government repeatedly referred to gambling in a

pejorative sense in its closing arguments, despite the district

court's explicit warning against distracting the jurors from the

elements of the crimes charged, we agree with the district court

that the prosecutor's gambling arguments were improper.

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 3. Grant of a New Trial

Before granting a new trial based on a prosecutor's

improper comments in a closing argument, a court must "determin[e]

'whether [those comments] ha[ve] so poisoned the well that a new

trial is required,'" United States v. Robinson, 473 F.3d 387, 398

(1st Cir. 2007). In so doing, the court considers such factors as:

(1) the extent of the improper remarks, (2) the context, (3) the

likely effect of any curative instructions given by the judge, and

(4) the weight of the evidence against the defendant. Id. (citing

United States v. Casas, 425 F.3d 23, 38 (1st Cir. 2005)). However,

these factors are not exhaustive; they are meant merely to guide

the court's inquiry into whether the prosecutor's improper comments

have undermined the fairness of the trial.

In assessing the extent to which the improper arguments

affected the outcome of the trial, the district court focused on

the frequency with which the gambling references were made, their

"persistently pejorative" nature and their "tendency to lead the

jury away from the charges in the indictment by inviting them to

blame Carpenter because he was a gambler, or because he lost the

exchangors' money, rather than because he had committed mail or

wire fraud." 405 F. Supp. 2d at 102.

The court also emphasized the context in which those

comments were made, noting that it had admitted the evidence from

which these gambling metaphors were drawn for a "limited purpose,"

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and observing that "this evidence was introduced in the latter

stages of the government's case, close in time to the closing

arguments. As the arguments were made, this evidence likely

remained vivid in the jurors' memories." Id. Placed in this

context, the court concluded: "Condemning Carpenter for 'gambling,'

as the prosecutors persisted in doing, was an appeal to instincts

of moral disapprobation about recklessness, waste, and perhaps even

theft." Id.

After highlighting the improper nature of the

government's arguments, the court related those arguments to the

overall strength of the government's case:

though sufficient to withstand a motion for
judgment of acquittal, the case was not so
strong that it can confidently be said that
the repeated 'gambling' references had no
illegitimate effect on the jury's assessment
of the evidence. On what was perhaps the
crucial issue, the jury would certainly have
been warranted in concluding beyond a
reasonable doubt that Carpenter acted with
intent to defraud, but a contrary conclusion
also would have been rationally possible on
the evidence.

Id. at 103. The court concluded: "Because it cannot be said with

confidence that the government's improper closing arguments did not

taint the verdict, the verdict cannot be allowed to stand." Id.

We afford the district court substantial deference in

such an assessment, reflecting the trial judge's familiarity with

the case. The "trial judge 'has listened to the tone of the

argument as it was delivered and has observed the apparent reaction

-23-
of the jurors. In short, he is far more "conversant with the

factors relevant to the determination" than any reviewing court can

possibly be.'" Glantz, 810 F.2d at 320 n.2 (quoting Arizona v.

Washington, 434 U.S. 497, 514 (1978)). We find no basis for

concluding that the district court abused its discretion in

ordering a new trial.8

B. The Motion for Judgment of Acquittal

In his cross-appeal, Carpenter contends that the district

court erred in denying his motion for judgment of acquittal because

the government failed to present sufficient evidence on the mail

and wire fraud charges to permit a reasonable jury to convict him.

Before we may reach the merits of Carpenter's cross-appeal, we face

the threshold question of our jurisdiction. Carpenter urges us to

assert jurisdiction over his cross-appeal under the so-called

"collateral order" doctrine, in order to protect his right to be

free from double jeopardy and as a matter of judicial economy.

Although 28 U.S.C. § 1291 specifies that our jurisdiction

extends only to appeals from "final decisions of the district

courts," the Supreme Court, in Cohen v. Beneficial Industrial Loan

Corp., 337 U.S. 541, 546 (1949), identified a "small class . . .

[of] claims of right separable from, and collateral to, rights

asserted in the action, too important to be denied review and too

8
Our agreement with the district court's grant of a new trial
because of gambling metaphors obviates any need to address the
alternative bases Carpenter asserted in his motion for a new trial.

-24-
independent of the cause itself to require that appellate

consideration be deferred until the whole case is adjudicated."

The Court has since held that "a pretrial order denying

a motion to dismiss an indictment on double jeopardy grounds . . .

fall[s] within [this] 'small class of cases.'" Abney v. United

States, 431 U.S. 651, 659 (1977). There, the Court relied upon the

finality of the district court's action – there being "no further

steps that can be taken in the District Court to avoid the trial

the defendant maintains is barred by the Fifth Amendment's

guarantee," id. – and the fact that the "elements of [his double

jeopardy] claim are completely independent of his guilt or

innocence," id. at 660. The court also emphasized that "even if

the accused is acquitted, or, if convicted, has his conviction

ultimately reversed on double jeopardy grounds, he has still been

forced to endure a trial that the Double Jeopardy Clause was

designed to prohibit." Id. at 662.

Carpenter argues that the refusal to consider his cross-

appeal would force him "to endure the personal strain, public

embarrassment, and expense of a [second] criminal trial," which

Abney sought to avoid. Id. at 661. With this language, Carpenter

invokes the principle of double jeopardy. See Green v. United

States, 355 U.S. 184, 187-88 (1957) ("[T]he State with all its

resources and power should not be allowed to make repeated attempts

to convict an individual for an alleged offense, thereby subjecting

-25-
him to embarrassment, expense and ordeal and compelling him to live

in a continuing state of anxiety and insecurity, as well as

enhancing the possibility that even though innocent he may be found

guilty."). In addition, he claims that our refusal to hear a

sufficiency claim in these circumstances would burden defendants

with a "Hobson's choice" between: (1) waiving the right to move for

a new trial in order to ensure appellate review of a sufficiency

claim; and (2) moving for a new trial and losing the right to

appeal a sufficiency claim arising from the first trial. Carpenter

further argues that considerations of judicial economy support our

review because we must review the trial record in any event to

assess the government's appeal of the new trial ruling.

While Carpenter's assertions have practical appeal, they

run afoul of most of the relevant precedent. As we have recognized

elsewhere, Abney "is not carte blanche authority for all

interlocutory appeals brought under the Double Jeopardy banner,

since some such claims do not meet the requirements of the

'collateral order' doctrine." United States v. Ramirez-Burgos, 44

F.3d 17, 18 (1st Cir. 1995). In order to qualify for review under

the collateral order doctrine, the collateral issue must:

(1) [be] so conceptually distinct from other
issues being litigated in the underlying
action that an immediate appeal would neither
disrupt the main action, nor threaten to
deprive the appellate court of useful context
which might be derived from subsequent
developments in the litigation; (2) completely
and conclusively resolve the collateral issue;

-26-
 (3) infringe rights which appellant could not
effectively vindicate in an appeal after final
judgment in the case; and (4) involve an
important or unsettled legal issue, rather
than merely challenge discretionary trial
court rulings.

United States v. Kouri-Perez, 187 F.3d 1, 5 (1st Cir. 1999). We

have emphasized that "all four of [these] criteria must be met for

there to be jurisdiction under this exception to § 1291 finality."

In re Licht & Semonoff, 796 F.2d 564, 571 (1st Cir. 1986).

In Richardson v. United States, 468 U.S. 317, 325 (1984),

the Supreme Court reasoned that "the protection of the Double

Jeopardy Clause . . . applies only if there has been some event,

such as an acquittal, which terminates the original jeopardy."

Guided by this principle, the Court went on to determine that a

mistrial was not a jeopardy-terminating event and thus a second

trial was not barred even if there had been insufficient evidence

to convict at the first trial. Id. at 326.

We extended this logic to the vacatur of a conviction on

appeal for legal error in United States v. Porter, 807 F.2d 21, 24

n.2 (1st Cir. 1986), stating: "where the first conviction was

vacated for legal error, not insufficiency of evidence, the concept

of continuing jeopardy rules out a double jeopardy claim based on

purported insufficiency of evidence at the first trial." Thus, a

defendant who succeeds on appeal in demonstrating that he is

entitled to a new trial because of error at his first trial may not

-27-
assert a double jeopardy bar to retrial. As his original jeopardy

has not yet ended, there is no double jeopardy to avoid.

It is a short step from Porter to the case before us,

where the trial court itself ordered a new trial on the basis of

legal error. Porter teaches that a defendant has no double

jeopardy claim when his conviction has been vacated for legal

error. Id. at 24. That is what occurred here. Although

Carpenter's conviction was undone by the trial court rather than on

appeal, this is a distinction without a difference.

Without a viable double jeopardy claim, Carpenter has no

double jeopardy "right" that he cannot effectively vindicate if he

is not permitted to challenge the sufficiency of the evidence in

this appeal. Hence he cannot meet the third criterion of the

collateral order doctrine.9 The Second and Seventh Circuits have

9
It is important to understand that Carpenter, in pursuing
his cross-appeal, has invoked the principle of double jeopardy in
the service of his primary argument that we should review the
sufficiency of the evidence argument he makes in his cross-appeal.
That is, Carpenter did not file a motion in the trial court arguing
that his retrial was barred by the principle of double jeopardy.
Indeed, there was no basis for any such argument. Hence, we are
not reviewing a double jeopardy ruling by the trial court, or a
claim that such a double jeopardy ruling itself falls within the
collateral order doctrine. Instead, Carpenter uses double jeopardy
principles to address the third element of the collateral order
doctrine – namely, that the failure to address the collateral issue
on appeal (here, sufficiency of the evidence) will infringe rights
which appellant could not effectively vindicate in an appeal after
final judgment in the case. Carpenter argues that, if the trial
judge ruled incorrectly on his motion for judgment of acquittal,
and if we failed to assess that possibility by hearing his cross-
appeal, his retrial would infringe his double jeopardy right.
However, as we have now shown, Carpenter misconstrues the nature of

-28-
similarly found no jurisdiction to hear cross-appeals of a denial

of a motion for judgment of acquittal under the collateral order

doctrine where the district court's order of a new trial vacated

the underlying conviction. United States v. Eberhart, 388 F.3d

1043, 1051 (7th Cir. 2004), rev'd on other grounds, 546 U.S. 12

(2005); United States v. Ferguson, 246 F.3d 129, 138 (2d Cir.

2001).

Carpenter claims support for his cross-appeal in three

decisions from other circuits: United States v. Greene, 834 F.2d 86

(4th Cir. 1987); United States v. Wood, 958 F.2d 963 (10th Cir.

1992); and United States v. Gotti, 451 F.3d 133 (2d Cir. 2006).

Only Greene supports his position, and we decline to follow it.

In Greene, after the trial court ordered a new trial and

denied Greene's motion for acquittal, the government appealed the

new trial grant. Greene cross-appealed, arguing that the district

court erred when it rejected his claim that the evidence was not

sufficient to convict him and that to require another trial would

violate his right not to be placed in jeopardy twice for the same

offense. Greene, 834 F.2d at 87. While acknowledging that the

"denial of a motion for judgment of acquittal prior to entry of a

judgment or sentence [is] normally not reviewable in the Court of

his double jeopardy right, and hence he cannot meet the third
criterion of the collateral order doctrine.

-29-
Appeals," the court determined that it "would be unfair to apply

such a rule in the present proceedings." Id. at 89.

Neither Wood nor Gotti reaches such a result. In Wood,

the trial court ordered a new trial and denied Wood's motion for

judgment of acquittal. The government appealed the grant of a new

trial, and Wood cross-appealed the denial of his motion for

acquittal contending that double jeopardy barred his retrial.

Wood, 958 F.2d at 965. Wood's double jeopardy claim was also based

on the insufficiency of the evidence at his trial. Id. at 967. On

the government's motion to dismiss the cross-appeal for lack of

jurisdiction, the Tenth Circuit denied the motion and asserted

jurisdiction over Wood's cross-appeal because it found a "colorable

double jeopardy claim" giving rise to jurisdiction under the

collateral order doctrine, United States v. Wood, 950 F.2d 638, 643

(10th Cir. 1991). However, in its subsequent ruling, it affirmed

the new trial grant and ultimately ruled that the double jeopardy

claim lacked merit for many of the same reasons that we cite here,

given that the district court had granted defendant's motion for a

new trial, Wood 958 F.2d at 970-71.10 Notably, the court further

concluded that its "resolution of the merits of Defendant's claims

makes future double jeopardy claims like Defendant's non-colorable

10
For example, the court emphasized that Wood could not be at
risk of double jeopardy where his original jeopardy had not yet
ended. 958 F.2d 963 at 970 (explaining that "[a] guilty verdict by
a jury which is set aside by the district court on a motion by the
defendant does not terminate jeopardy.").

-30-
and, therefore, subject to summary dismissal when asserted on an

interlocutory appeal." Id. at 972 n.12.

In Gotti, there was no motion for judgment of acquittal

based on insufficiency of the evidence in his first trial. Indeed,

the jury had not convicted Gotti on any of the charges against him.

Gotti, 451 F.3d at 135. Instead, it acquitted him on one charge

and divided on others, resulting in the declaration of a mistrial

on those charges. Id. The district court then denied Gotti's

post-trial motion to bar a retrial on two of the counts on double

jeopardy grounds. Id. at 135-36. Gotti then sought interlocutory

review of that double jeopardy ruling itself. Id. at 136. There

was no appeal by the government of any trial court ruling and no

cross-appeal by Gotti trying to challenge a trial court ruling on

a motion for judgment of acquittal. Citing Abney, the Court of

Appeals analogized the trial court's double jeopardy ruling to a

court's denial of a pretrial motion to dismiss counts of an

indictment on double jeopardy grounds and concluded that this

ruling met the requirements of the collateral order doctrine. Id.

In addressing the merits of Gotti's double jeopardy argument, it

rejected that argument on very different grounds than those

Carpenter raises in asking us to hear his cross-appeal.11 Id. at

11
Gotti argued that because the jury could not unanimously
agree that the government had proved two predicate racketeering
acts with which he was charged, he was entitled to acquittal on the
RICO charges against him and could not be retried on any of the
charges. The court rejected Gotti's "extraordinary argument,"

-31-
136-37. Moreover, as noted, the "merits" issue on appeal in Gotti

was the trial court's double jeopardy ruling itself. Here the

"merits" issue in the cross-appeal is the trial court's ruling on

the sufficiency of the evidence. Gotti has scant relevance to our

application of the collateral order doctrine to that sufficiency

ruling.

To the extent that Carpenter makes a judicial efficiency

argument that is independent of the collateral order doctrine, we

reject that argument as well. Carpenter's primary efficiency

argument – that granting appellate jurisdiction over the cross-

appeal makes "practical sense" because "given the government's

appeal, the Court will now conduct a thorough review of the trial

record in this case" – is beside the point. We are not at liberty

to go beyond the established criteria of the collateral order

doctrine to create new exceptions to the finality requirements of

§ 1291. Indeed, Carpenter's argument that we should consider his

sufficiency claim as we consider the government's appeal runs

directly counter to the first criterion of the collateral order

doctrine, which requires that the collateral issue (here,

sufficiency) be "conceptually distinct" from the issues in the

underlying action. Kouri-Perez, 187 F.3d at 5. Of course,

noting that "[o]n this reasoning, juror disagreement as to the
proof of a predicate act could never result in a hung jury," and
that "[t]he government is permitted to retry a defendant following
a mistrial resulting from a hung jury." 451 F.3d at 136-37.

-32-
Carpenter's sufficiency arguments are deeply entwined with the

merits of the mail and wire fraud charges that constitute the

underlying action.

In addition, even if we could recognize such an

efficiency exception, any efficiency gains promised by Carpenter

are illusory because there is little comparability between the

review that we have had to conduct in our deferential review of the

new trial grant and the de novo review we would have to conduct to

evaluate the sufficiency of the evidence. In his sufficiency

challenge, Carpenter raises arguments of causation, intent,

constructive amendment of the indictment, reliance upon a theory of

liability based on omission, good faith as an absolute defense, and

venue. We have not had to address any of those issues in order to

evaluate the district court's new trial ruling.

Carpenter raises a second argument under the banner of

efficiency. If we deny appellate jurisdiction over his cross-

appeal, he says, and reverse the district court's grant of a new

trial, we will have to conduct a second review of the trial record

at a later point in time after Carpenter is sentenced and files a

direct appeal. Thus, Carpenter contends, granting jurisdiction to

hear the cross-appeal at this point will "conserve judicial

resources." However, the subsequent direct review of the issues

now raised in the cross-appeal would not represent a "second

review" of the trial record because, as we have already noted, our

-33-
review of the new trial ruling has not required us to review the

portions of the record relevant to the issues raised in the cross-

appeal. More importantly, Carpenter's second efficiency argument

betrays his frontal challenge to the most basic precepts of the

final judgment rule. If we were to reverse the trial court's new

trial ruling, there would be no final judgment until Carpenter had

been sentenced after a remand. See Berman v. United States, 302

U.S. 211, 212 (1937) ("Final judgment in a criminal case means

sentence. The sentence is the judgment."); United States v.

Leichter, 160 F.3d 33, 35 (1st Cir. 1998). We are not at liberty

to disregard such well-established final judgment rules in pursuit

of a false efficiency.

III.

For the reasons described above, we affirm the district

court's grant of a new trial. We dismiss the cross-appeal for lack

of jurisdiction.

So Ordered.

- Concurring and Dissenting Opinions Follow -

-34-
 LYNCH, Circuit Judge, concurring. A trial judge may

grant a new trial only "if the interest of justice so requires."

Fed. R. Crim. P. 33(a). The power is used sparingly. But it may

be triggered by a myriad of circumstances. Rule 33 wisely does not

attempt to characterize those circumstances so as to limit a trial

judge's authority to rule on a timely motion for a new trial.

Here, the trial judge concluded that the jury may well

have been diverted from its task of determining whether the

government had proven beyond a reasonable doubt each of the

elements of the charged offenses. United States v. Carpenter, 405

F. Supp. 2d 85, 102 (D. Mass. 2005). The judge found that the

government's case was not so strong that it could confidently be

said that the repeated gambling references had no illegitimate

effect on the verdict. Id. at 103. The court held that because it

was possible that the government's closing arguments tainted the

jury's verdict, the verdict could not be allowed to stand. In that

context, the district court called the government's closing

arguments "improper." Id.

The trial judge implicitly ruled that defendant had

sufficiently preserved his objection to the gambling metaphor so

that he was not required to take the unusual step of interrupting

the government's closing argument. An appellate court is not

entitled to second guess that conclusion, which was certainly not

an abuse of discretion. The trial judge recognized that there was

-35-
a point at which the relevance of the large losses produced by

risky trading was outweighed by the danger of distracting the jury

from focused consideration of the actual charges. That grey zone

was never well defined throughout the trial, and its demarcation

points were not clarified before the closing arguments, despite the

granting of a continuing objection. Perhaps both sides should have

sought clarification before the closing arguments.

In my view, the real issue is not whether one side acted

"improperly." It is the potential effect of this situation on the

jury which matters. The experienced trial judge, who sat through

the trial and the closing, concluded that the balance had tipped

too far within that grey zone and that the interest of justice

required a new trial.

Given that the trial judge lacked confidence that the

verdict was based on proper considerations, and given the context

in which the trial judge ruled, an appellate judge cannot say that

the trial judge's conclusion was unreasonable. Indeed, the

decision to grant a new trial does not even approach being an abuse

of discretion.

-36-
 CAMPBELL, Senior Circuit Judge, dissenting. This appeal

centers around two issues: (1) whether in ruling upon defendant's

motion for a new trial, the district court had to apply the plain

error standard in Fed. R. Crim. P. 52(b)--a question turning on

whether defendant failed to lodge a timely objection within Fed. R.

Crim. P. 51(b)12 sufficient to preserve the error for which the new

trial was granted, namely, the government's use of gambling

metaphors in its closing, which the court felt may have induced a

verdict based on the jury's moral disapproval of gambling; and (2)

whether the U.S. Attorney's gambling rhetoric went so far as to

exceed fair comment and, in the event plain error review was

required, to meet that standard.

In answer to (1), I believe the district court was

required to apply the plain error standard in ruling on the new

trial motion. As for issue (2), it would be premature for us to

pass judgment on whether the gambling rhetoric could be found to

amount to plain error, that question being one for the district

court in the first instance. I would vacate and remand while

12
Fed. R. Crim. P. 51(b) provides,

A party may preserve a claim of error by informing the
court--when the court ruling or order is made or sought--
of the action the party wishes the court to take, or the
party's objection to the court's action and the grounds
for that objection. If a party does not have an
opportunity to object to a ruling or order, the absence
of an objection does not later prejudice that party. A
ruling or order that admits or excludes evidence is
governed by Federal Rule of Evidence 103.

-37-
retaining jurisdiction so as to be able to decide in the future--

should plain error be found below--whether that finding exceeds the

district court's considerable discretion in the matter.

1. Adequacy of Objection

Judicial review is limited to "the notably ungenerous

plain error standard" whenever "a defendant defaults on [the]

obligation [to protect his own interests] by failing to make a

contemporaneous objection to questionable comments in the

prosecution's closing argument." United States v. Taylor, 54 F.3d

967, 977 (1st Cir. 1995). Nothing in the language of Fed. R. Crim.

P. 51 and 52, or in binding precedent, suggests that some different

rule applies where a district court, as here, (rather than a court

of appeals) is asked, post-verdict, to grant a new trial based on

an alleged inappropriate closing.

One of the principal purposes of the contemporaneous

objection requirement is to alert the district judge so that she or

he can take on-the-spot curative steps, by instructing the jury to

disregard the prejudicial rhetoric or in some other way minimizing

the harm, thus obviating the trouble and expense of a new trial.

As this court stated in Taylor, 54 F.3d at 972,

[C]alling a looming error to the trial court's attention
affords an opportunity to correct the problem before
irreparable harm occurs. Then, too, the raise-or-waive
rule . . . precludes a party from making a tactical

-38-
 decision to refrain from objecting, and subsequently,
should the case turn sour, assigning error . . . .13

Here, there is simply no indication that the gambling metaphors

used by the government in its closing, and the purported moral

disapproval they might engender in jurors, were concerns ever

contemporaneously called to the district court's attention, either

during the closing when those references were actually being made

or, right after, before the case went to the jury, when the

district judge could still have taken steps to cure whatever

prejudice the rhetorical metaphors may have caused in the minds of

the jurors. The basis for the grant of a new trial was not the

brokers' testimony, to admission of which earlier, unsuccessful,

objections were lodged and on which earlier objections the majority

now relies in its opinion, but the colorful gambling metaphors

employed by the government in closing argument which were later

said by the district court to have carried the risk of inflaming

the jurors' moral disapproval.

13
In a later civil case, this court has said,

We have made it transparently clear that the raise-or-
waive rule can neither be ignored nor brushed aside as a
"pettifogging technicality or a trap for the indolent."
Nat'l Ass'n of Soc. Workers v. Harwood, 69 F.3d 622, 627
(1st Cir. 1995). Rather, it is a prudential rule
"founded upon important considerations of fairness,
judicial economy, and practical wisdom." Id.

Muniz v. Rovira, 373 F.3d 1, 4 (2004).

-39-
 Had defendant contemporaneously objected to this

allegedly inflammatory rhetoric either during or after the closing,

before the case went to the jury, the court could have instructed

the jury to disregard it and explained to the jurors why the

analogies were prejudicial and overblown, thus obviating the

extreme and costly remedy of a new trial. Even had the defense

attorney hesitated to interrupt the government's argument, there

was ample time afterwards to have lodged an objection and for the

court to have taken corrective steps. Indeed, following the

court's closing jury instructions, when counsel were invited to

submit their objections to the charge, defense counsel took that

opportunity to protest certain parts of the government's closing

but never mentioned these supposedly outrageous misstatements. Nor

did the judge say anything to counsel or the jury about them during

or after the closing, as one might have expected had the earlier

evidentiary objections relied on by my colleagues actually

functioned so as to call to the judge's mind that the defense was

now objecting to the closing's gambling rhetoric14--or even that the

14
Judge Lipez states that the court's earlier response, "You're
covered under Rule 103," to Carpenter's request for a running
objection to admission of the Merrill Lynch brokers' testimony
(described by defense counsel as portraying Carpenter as "an
aggressive speculator[,] river boat gambler") was a clear
recognition by the court of a continuing objection that served
later as an adequate objection under Rule 51(b) to the government's
repeated rhetorical use, in its closing, of the gambling analogies.
But Rule 103 of the Federal Rules of Evidence is an evidentiary
rule. See Rule 51(b) ("A ruling or order that admits or excludes
evidence is governed by Federal Rule of Evidence 103").

-40-
rhetoric violated the court's own earlier cautionary admonition

against overemphasizing certain matters. The court's silence on

the subject at the crucial moments strongly suggests that whatever

the earlier objections accomplished, they did not accomplish what

Rule 51(b) seeks--namely to alert the court contemporaneously, when

corrective action by the court still remains possible, that the

defense is then and there objecting to certain language being used

in the government's oratory.

The purpose of Rule 51(b), in other words, is to put the

court on actual, not just constructive, notice that a party

protests a particular alleged defect--here, the closing gambling

rhetoric--so that, inter alia, appropriate corrective action can be

taken immediately if warranted. Rule 51(b) is not well served by

resting the finding of an adequate objection upon an elaborate

chain of appellate inferences going back to non-contemporaneous

objections made earlier for a different purpose. Rule 51(b)

requires, and ordinarily receives, a practical interpretation,

Appropriately, the objections in question all related to the
court's admission in evidence of the brokers' testimony, which
emphasized the risky nature of option trading but did not invoke
repetitive gambling metaphors nor raise the question of whether
analogizing defendant's conduct to gambling would captivate the
disapproval of jurors based on their moral disapproval of gambling.
A new trial was not granted because the court decided it had erred
in admitting the brokers' testimony but because of the inflammatory
nature of the gambling figure used in the closing, with its
peculiar tendency to invoke moral disapprobation.

-41-
consistent with its purpose to alert the court in a meaningful way

so that it can act before too late.

It is overwhelmingly evident from the record that no one,

prior to the verdict, got the message, including the judge, that

the defense was protesting the government's rhetorical gambling

analogies--analogies which the district court later said may have

elicited the jurors' moral disapproval based upon their distaste

for gambling. Without having been contemporaneously alerted by a

Rule 51(b) objection, the district court was obliged, when it ruled

on defendant's post-verdict motion for a new trial, to employ plain

error review under Rule 52(b). The government made this point when

arguing the motion,15 but the district court did not address it at

all. As my colleagues agree, it now seems the court, in granting

a new trial, used the ordinary review standard (although Carpenter

argues otherwise in his appellate brief).

My colleagues contend we should leave it to the district

court, in these circumstances, whether a sufficient objection was

lodged to preserve the closing gambling metaphor issue. Here, the

judge, in passing on the defendants' new trial motion, made no

15
Judge Lipez, in the majority opinion, speaks of "looking in
vain" for any indication that the government ever argued that
objection to the closing's gambling metaphors had not been
preserved. In fact, the government noted (under the heading that
its "closing and rebuttal fell within the bounds of proper
argument") that most of Carpenter's points had not been preserved,
and listed the few that had been, making clear its belief that the
defense's objection to the use of gambling metaphors was one that
had not been preserved and was subject to plain error review.

-42-
express finding that an objection had been made, nor did he rule at

all on the government's contention that an objection had not been

preserved by the defense on the use of the gambling metaphors

during the closing. But my colleagues would infer from the

district court's complete silence that it must have found a

sufficient defense objection, and they say they must defer to the

district court on that and all related matters.

My difficulty with the above is that it treats the raise-

or-waive rule as if it were only of concern to the district court--

to protect it, for instance, against being "sandbagged" in the

common situation where a defendant appeals to this court from an

adverse ruling of the trial judge concerning some matter never

called to the court's attention below. My colleagues' viewpoint

would hold that where the district judge is satisfied--as

presumably he was here--with whatever steps defendant took, or did

not take, to preserve an objection, that should end the matter.

But I believe such deference is extreme. The raise-or-

waive rule, it is true, exists to protect the trial judge, but it

also serves other important goals. As already discussed, it serves

the purpose of judicial economy, forcing all concerned, including

the court itself, to face issues--such as the challenged rhetoric

used by the government here--at a time when corrective action can

still be taken short of a costly new trial. The opportunity for

correction afforded by a timely objection, as well as the penalty

-43-
of plain error review for failure to object, also promote essential

fairness to the other party, here the government--and not only to

the government alone, but to those who must bear the burdens of a

new trial, such as the victims of defendant's alleged misconduct

and other witnesses. Had there been a meaningful, contemporaneous

objection here, the government would likely not have to retry the

case, saving both monetary costs and the added burdens on many

others.

This is not to question the district court's discretion,

were there merely a question of disputed evidence over the making

of a sufficient contemporaneous objection, to resolve that dispute.

But, here, the only arguably pertinent objections in the record--

those made earlier under Fed. R. Evid. 103 to the admission of

certain testimony--fell flagrantly short of meeting the

requirements of Fed. R. Crim. P. 51(b) for valid objections to the

closing's gambling rhetoric. And the record contains nothing

except silence to suggest that the district court, when granting a

new trial, ever determined that an adequate objection--or any

objection--had been made. Rules 51 and 52 are binding procedural

rules to which courts must adhere. The wide discretion very

properly given to the trial judge does not include the discretion

to ignore or simply bypass the raise-or-waive rule.16

16
Of course, one might imagine special circumstances where a
defense objection might not be needed to preserve an issue. For
instance, the judge might, when the offending conduct occurs, give

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 I would add that even the plain error standard of Rule

52(b) still allows a court, in appropriate circumstances, when

faced with a strong sense that an injustice has or may have

occurred, to allow a new trial even though a timely objection was

not lodged--and our review of such a decision would and should take

into account the trial judge's firsthand "feel" for a case tried in

his presence. Nevertheless, plain error review remains a

considerably tougher, higher, standard than ordinary review. Given

defendant's default, the government was entitled to the reassurance

that the latter standard was being applied in this case, since the

question of whether or not the gambling rhetoric used went too far,

and its likely unfair impact on jurors, is a close one as to which

the standard of review used could well have a decisive effect on

whether or not to grant a new trial.

2. Whether Gambling Rhetoric Was Excessive

voice, sua sponte, on the record, to his own objection, which might
in some circumstances relieve the defense of the need to object
separately. But it seems unwarranted to presume such a special
exception here, given the judge's complete silence at and after the
closing, especially as, when the gambling rhetoric was later called
to the judge's attention, he granted the extraordinary relief of a
new trial. Surely, one would suppose, if the judge had at all
considered the questionable character of the rhetoric at the time
it was delivered, or then had believed the defense had objected to
it at some earlier time, he would not have remained silent in the
face of such knowledge, allowing events to proceed and the jury to
remain uninstructed as to the improprieties that had occurred. To
infer on this record and in the face of judicial silence, the
preserving of a sufficient objection, seems to me tantamount to
saying that Rule 51(b) and its companion, 52(b), need not be
observed by the trial judge unless he or she cares to do so.

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 As said, I believe that this appeal should be remanded to

the district court with instructions to reconsider its new trial

ruling under the correct plain error standard. A ruling by us at

this juncture would be premature, since the district court's

judgment based on its first-hand knowledge and feel is an essential

prelude to whatever action this court takes. We would necessarily

grant considerable deference to whatever view the district court

takes on whether what occurred at the trial met the high standard

of plain error. This does not mean there are no limits to our

deference, nor that appellate review will thereafter be forbidden.

A district court would not have carte blanche discretion to order

a new trial simply because, to take a purely hypothetical example,

it deemed the U.S. Attorney's closing remarks to be too eloquent

and defense counsel's closing much less so--even if the trial court

believed the difference had been decisive to the case's outcome.

There are, moreover, some arguments an attorney may make which will

be so entirely relevant as to be privileged as a matter of law,

just as there are others which the district court may determine

dispositively as going too far.

Here, the government argues that its gambling analogy was

so apt that it fell within the safety zone and that, in any event,

the analogy was not so extreme as to amount to plain error. This

is not an easy issue, and it is one as to which the district

court's ruling, along with its reasons, one way or another, will

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not only be helpful but essential. I would, therefore, remand for

a new ruling on the new trial motion, one explicitly based on the

plain error standard, which, in these circumstances, the district

court was, in my view, legally obliged by the Federal Rules of

Criminal Procedure to apply. It is most unlikely the district

court believed it was applying that standard when it ruled

previously, and, given especially the closeness of the grounds for

granting a new trial, I believe the government is entitled to a

ruling expressly based upon the correct legal standard. Given the

high hurdle of plain error review, a remand is no mere waste of

judicial time. To the contrary, it could be critical to the

outcome, and it is also a necessary act of fairness to the

government and those persons and interests the government serves,

given the defendant's failure to have preserved a proper objection.

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