United States v. Ayala-Garcia

United States Court of Appeals
For the First Circuit

Nos. 07-2129, 07-2130

UNITED STATES OF AMERICA,

Appellee,

v.

CRISTIAN AYALA-GARCÍA,
JOSÉ LUIS ALICEA-COTTO,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Jay A. García Gregory, U.S. District Judge]

Before

Boudin, Hansen,* and Lipez, Circuit Judges.

Robert Millán for appellant Ayala-García.
Jorge E. Rivera-Ortíz for appellant Alicea-Cotto.
George A. Massucco La Taif, with whom Rosa Emilia Rodriguez-
Velez, United States Attorney, Nelson Pérez-Sosa, Assistant
United States Attorney, Chief, Appellate Division, and Luke Cass,
Assistant United States Attorney, were on brief, for appellee.

July 24, 2009

*
Of the Eighth Circuit, sitting by designation.
 LIPEZ, Circuit Judge. Appellant José Luis Alicea-Cotto

appeals his conviction on drug distribution and firearms charges,

and appellant Cristian Ayala-García appeals his conviction on a

single firearms charge stemming from the same incident. Both men

claim that the evidence presented at their joint trial was

insufficient to support their convictions and that statements made

by the prosecutor during rebuttal, including a suggestion that the

defendants were planning to gun down dozens of innocent

individuals, unfairly prejudiced the jury against them. After a

close review of the record and relevant caselaw, we agree that

Alicea-Cotto's conviction on one firearms count must be reversed

due to insufficient evidence and that the prosecutor's improper

remarks "so poisoned the well that a new trial is required" for

both defendants on the remaining counts. United States v. Manning,

23 F.3d 570, 574 (1st Cir. 1994) (citations and quotation marks

omitted).

I.

The charges against defendants Alicea-Cotto and Ayala-

García arose from events that took place at the Sabana Abajo

housing project in Carolina, Puerto Rico, on May 25, 2006. At

trial, the prosecution and defense witnesses offered starkly

different accounts of what occurred. Although we take the facts in

the light most favorable to the government in assessing the

defendants' sufficiency claims, see United States v. Angulo-

-2-
Hernández, 565 F.3d 2, 7 (1st Cir. 2009), the prosecutorial

misconduct claim obliges us to consider as well the defendants'

contrary view of the events in question. We first recite the facts

as the jury could have found them.

The incident began when two undercover Puerto Rico police

officers, Luis Vega López ("Vega") and José M. Sánchez Santiago

("Sánchez"), were ordered to investigate a drug point on the south

side of the Sabana Abajo housing project. As they drove onto the

grounds of the project, they noticed the defendants and another

man, Benny Alvarado-Arroyo ("Alvarado"),1 standing next to a Nissan

Pathfinder Armada sport utility vehicle ("SUV") whose rear hatch

door was open. From a distance of about sixty feet, both officers

saw Alicea-Cotto hand a pistol to Alvarado, who put the gun in his

waistband and covered it with his shirt. Alvarado then handed

money to Alicea-Cotto, ostensibly paying for the firearm. Ayala-

García stood nearby, watching the transaction.

Vega and Sánchez exited their vehicle, approached the

defendants, and identified themselves as police officers.

Approximately twelve feet away from the defendants, four men were

sitting on a set of steps near a dumpster watching the activity.

Vega testified that he arrested Alicea-Cotto and seized the cash

from his hand. Sánchez arrested Alvarado and Ayala-García.

1
Although jointly tried with Alicea-Cotto and Ayala-García,
Alvarado is not an appellant in this consolidated appeal.

-3-
Sánchez seized a pistol from Ayala-Garcia, along with a loaded

magazine, and also took the handgun from Alvarado's waistband. The

weapon recovered from Ayala-García was a loaded 9mm Ruger pistol

with an obliterated serial number; the weapon in Alvarado's

waistband was a Smith & Wesson 9mm pistol that had been reported

stolen to the Puerto Rico Police Department in 1998.

Looking into the open rear of the SUV, which Alicea-Cotto

said belonged to him, Vega saw the tip of a rifle sticking out from

under a t-shirt. He removed the shirt to reveal an AK-47 assault

rifle, which was loaded with thirty-one bullets. Vega then looked

inside the driver's side door, which also was open, and saw a

transparent plastic bag on the floor in front of the passenger

seat. The bag contained $1,068 in cash and assorted narcotics:

ninety plastic cylinders of crack cocaine (totaling 10.8 grams),

forty-four small plastic bags of cocaine (totaling 10 grams),

fifty-six aluminum wrappers of heroin (totaling three grams), and

a single small plastic bag containing 1.2 grams of marijuana.

Backup Puerto Rico police officers had arrived as the

arrests were taking place, and additional officers arrived shortly

thereafter – bringing the total number at the scene to at least

ten. In addition to the appellants and Alvarado, the four men who

had been sitting on the steps also were arrested. The defendants

were driven in a police vehicle, along with the drugs and guns, to

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the narcotics division in Carolina, Puerto Rico, and the SUV also

was brought there by Vega, Sánchez and a third officer.

Alicea-Cotto was indicted on six counts stemming from the

May 25 incident: aiding and abetting possession of a stolen firearm

(the Smith & Wesson 9mm pistol), in violation of 18 U.S.C.

§§ 922(j) and 2 (Count One); aiding and abetting unlawful

possession of heroin, cocaine base, cocaine and marijuana, with the

intent to distribute the drugs, in violation of 21 U.S.C. §§

841(a)(1) and 18 U.S.C. § 2 (Counts Three, Four, Five and Six); and

knowing possession of firearms (the pistol and the AK-47 rifle) in

furtherance of a drug trafficking crime, in violation of 18 U.S.C.

§§ 924(c)(1)(A)(i) (Count Seven). Ayala-García was charged in

Count Two with knowing possession of a firearm with an obliterated

serial number (the Ruger pistol), in violation of 18 U.S.C. §

922(k). Although Ayala-García originally was charged with Alicea-

Cotto on the drug counts (Three through Six), the district court

later granted the government's motion to dismiss those counts

against him.

At the seven-day trial, the defense claimed that the

government's case was fabricated. Six eyewitnesses – two men who

were arrested with appellants and four residents of the housing

project who were in the area or saw the activity from their windows

– testified that the defendants were among the men sitting on the

steps when the officers entered the housing project. The officers

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immediately proceeded to search each of the men, but found nothing.

Several of the officers then went to search a nearby wooded area

and emerged with a large, black, duffle-type bag. Some witnesses

said they heard an officer yell "bingo!" when the bag was removed

from the brush.

According to the defense witnesses, all seven men who had

been sitting on the steps were arrested and placed in a police van.

Alicea-Cotto was the last to be brought to the van because the

officers took him first to the Nissan Armada and kept him there

while they searched the vehicle. The officers found only some

money in the SUV. The arrested men were then all transported to

the drug division in Carolina. The two men in that group who

appeared as defense witnesses, Luis Geraldo Cruz-Ortiz and Joan

Ojeda, testified that they saw officers take the weapons that were

displayed at appellants' trial out of the black bag at the police

station, and Cruz-Ortiz said that he also saw the drugs removed

from the bag. Cruz-Ortiz, Ojeda and the two others who were not

charged were released at about midnight.

Testimony from one or more of the defense witnesses

contradicted, or varied from, the officers' testimony in several

other significant respects: (1) the witnesses reported that all

doors on the SUV were closed when the officers arrived, and the

officers opened them; (2) one officer was heard to say "[t]here is

nothing here" after the officers searched Alicea-Cotto's vehicle;

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and (3) the witnesses saw no firearms transaction take place

between Alicea-Cotto and Alvarado, and they saw no weapons at all

in the defendants' possession. During the government's

presentation of rebuttal evidence, one of the backup officers,

Ender Meléndez, testified that no black bag was ever recovered at

the scene.

In the government's rebuttal argument, the prosecutor

made the following remarks that the government concedes were

improper:

Ladies and gentlemen of the jury, those
(indicating) are bullets from an AK-47 assault
rifle. There are 31 of those bullets that were
in this gun, ready to go on May 25th. Thirty-
one potential lives were saved on May 25th,
2006. And for that, the district of Puerto
Rico should be thankful, 31 lives were saved.

The prosecutor made a number of other comments that defendants

challenge as improper, including urging the jury to look at the

size of the bullets and asserting that Alicea-Cotto was "armed for

a war that goes on every day in public housing projects around

Puerto Rico."2

2
That statement was included in the following passage from
the prosecutor's lengthy rebuttal:

And, ladies and gentlemen of the jury, when I first
looked at this case and thought of all of the ironic
situations, isn't it ironic that this car that was owned
by José Luis Alicea Cotta was an Armada? Isn't that just
ironic?
Because that's exactly what it was. It was an
Armada. He was armed. He was armed for a war that goes
on every day in public housing projects around Puerto

-7-
 Defendants moved for a mistrial based on the prosecutor's

remarks. In denying the motions, the district court stated that it

would instruct the jury to judge the defendants "only on the

evidence that has been presented, not on those comments." The

court also rejected defendants' motions for a judgment of acquittal

under Federal Rule of Criminal Procedure 29.

Alicea-Cotto was found guilty on the two firearms charges

(Counts One and Seven) and three drug charges (Counts Three through

Five), but not guilty on the marijuana distribution crime alleged

in Count Six. Ayala-García was found guilty on the only charge

remaining against him, Count Two, which alleged the unlawful

possession of a firearm with an obliterated serial number.3

Alicea-Cotto was subsequently sentenced to a term of sixty-three

months on Counts One, Three, Four and Five, to be served

concurrently, and a consecutive sixty-month term on Count Seven.

Ayala-García was sentenced to time served.

On appeal, defendants Ayala-García and Alicea-Cotto argue

that their convictions must be overturned, and judgments of

acquittal entered, because the evidence presented by the government

Rico, around the United States, in every jurisdiction, in
every district, poor people, rich people, fat people,
tall people, hungry people, they face this reality every
day.
3
The third defendant, Alvarado, was found guilty along with
Alicea-Cotto on Count One, charging unlawful possession of a stolen
firearm.

-8-
failed to establish the elements of the offenses charged beyond a

reasonable doubt. Alternatively, they claim a right to a new trial

because portions of the government's closing argument were

inflammatory and highly prejudicial, tainting the jury's

deliberations and thus denying defendants a fair verdict based on

the evidence.

II.

Appellants argue that the evidence was insufficient to

support their convictions because the record equally supports a

finding of guilt and a finding of innocence – necessarily giving

rise to a reasonable doubt that invalidates their convictions.

This contention, which is based on the witnesses' conflicting

testimony about what occurred on May 25, misses the mark. The

government's evidence is not insufficient simply because the

defense presented a competing scenario through its own witnesses.

Where an evidentiary conflict turns on witness credibility, the

jury decides whom to believe. United States v. Thomas, 467 F.3d

49, 55 (1st Cir. 2006) ("It is . . . within the unique province of

the jury to sift through conflicting evidence, assess the

credibility of the witnesses, and find facts."). A judgment of

acquittal based on equally viable prosecution and defense theories

is required only where the evidence is in equipoise, or nearly so,

even when viewed in the government's favor. See United States v.

Woodward, 149 F.3d 46, 57 (1st Cir. 1998) ("[A]n appellate court

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must reverse a conviction on the grounds of evidentiary

insufficiency where an equal or nearly equal theory of guilt[] and

a theory of innocence is supported by the evidence viewed in the

light most favorable to the verdict." (quotation marks and

citations omitted; alterations in original; emphasis added)).

This is not such a case. As we shall explain, the

evidence viewed through the proper lens allows a finding of guilt

beyond a reasonable doubt on all but one of the crimes charged

against the defendants, and the one failure of proof is unrelated

to the witnesses' dueling testimony. In evaluating the record, we

apply the de novo standard of review and "draw all reasonable

evidentiary inferences in harmony with the verdict and resolve all

issues of credibility in the light most favorable to the

government." United States v. Sherman, 551 F.3d 45, 49 (1st Cir.

2008) (quotation marks and citation omitted).

A. Ayala-García's Sufficiency Claim

Ayala-García was convicted only on Count Two, which

charged him with knowing possession of a firearm with an

obliterated serial number, in violation of 18 U.S.C. § 922(k). He

emphasizes that the defense witnesses "were not impeached by the

prosecution at trial" and further argues that the verdict resulted

from factors other than the credibility of the witnesses, including

the prosecutor's inflammatory statements during the rebuttal

portion of the closing argument.

-10-
 Whether or not the defense witnesses were explicitly

impeached is of no consequence to our inquiry. As we have

explained, the jury was free to choose which of the two conflicting

accounts of the events to believe, so long as the evidence viewed

in the government's favor is adequate to establish guilt beyond a

reasonable doubt. See United States v. Scott, 564 F.3d 34, 39-40

(1st Cir. 2009). Whether prosecutorial misconduct tainted the

jury's consideration of the evidence is a question we will address

in Section III. Here, therefore, we consider only whether the

evidence adduced by the government allowed a rational jury to find

beyond a reasonable doubt that Ayala-García violated section

922(k).

To establish Ayala-García's guilt, the government needed

to prove that (1) he possessed the firearm, (2) the gun had moved

through interstate commerce, and (3) he had actual knowledge of the

obliterated serial number. United States v. Sánchez-Badillo, 540

F.3d 24, 31-32 (1st Cir. 2008). The possession prong was directly

established through the testimony of Officers Vega and Sánchez.

Vega testified that he saw a gun in Ayala-García's pocket, and

Sánchez testified that he recovered the pistol from Ayala-García at

the time of his arrest. To satisfy the interstate commerce

element, the government elicited testimony that the gun had been

manufactured in Prescott, Arizona. This was sufficient. See

United States v. Teleguz, 492 F.3d 80, 87 (1st Cir. 2007) (holding

-11-
that the interstate nexus element is met with evidence that the

firearms "necessarily had crossed state or foreign lines because

they were originally manufactured in other states or countries").

Finally, Ayala-García's knowledge of the obliterated serial number

was circumstantially established by his possession of the firearm.

See Sánchez-Badillo, 540 F.3d at 32.

Accordingly, we reject Ayala-García's sufficiency claim.

B. Alicea-Cotto's Sufficiency Claims

Alicea-Cotto asserts that the evidence was insufficient

to establish his guilt on any of the five charges for which he was

convicted.4 In support of this claim, he primarily relies on

discrepancies in the testimony of the government's witnesses and

emphasizes differences between testimony presented by Officers Vega

and Sánchez at trial and their testimony at an earlier suppression

hearing.5 He appears to claim, in effect, that these

inconsistencies foreclosed a finding of guilt beyond a reasonable

doubt.

4
As noted supra, Alicea-Cotto was charged with aiding and
abetting the unlawful possession of a stolen firearm (Count One);
aiding and abetting unlawful possession of heroin, cocaine base,
cocaine and marijuana, with the intent to distribute the drugs
(Counts Three through Six); and knowing possession of firearms in
furtherance of a drug trafficking crime (Count Seven). He was
acquitted on Count Six, the marijuana charge.
5
Alicea-Cotto highlights, for example, Sánchez's testimony
about when he first saw the drugs that were found in the SUV and
Vega's testimony about which officers were in the SUV when it was
transported from the housing project to the police station.

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 This contention is unavailing. We previously have

observed that "[e]vidence does not become legally insufficient

merely because of some inconsistencies in witnesses' testimony."

United States v. Rodriguez, 457 F.3d 109, 119 (1st Cir. 2006). The

question we must answer is whether the jury's verdict is supported

by "a plausible rendition" of the evidence taken as a whole,

United States v. Lopez-Lopez, 282 F.3d 1, 19 (1st Cir. 2002),

keeping in mind that credibility issues must be resolved in favor

of the government. See Angulo-Hernández, 565 F.3d at 7 ("We do

not atomize our analysis. We consider the evidence in its

totality, not in isolation, and the government need not negate

every theory of innocence.") (quotation marks and citations

omitted).

We therefore proceed to consider whether a rational jury

could have concluded that the government proved each element of the

crimes charged against Alicea-Cotto beyond a reasonable doubt.

1. The Drug Counts: Possession of Narcotics with Intent

to Distribute (Counts Three, Four and Five)

To prove that Alicea-Cotto possessed controlled

substances for purposes of section 841(a)(1), it was sufficient for

the government to show that he had constructive possession of the

drugs, i.e., that he exercised "dominion and control over [the]

area where [the] narcotics [were] found." United States v. Gobbi,

471 F.3d 302, 309 (1st Cir. 2006) (quotation marks and citation

-13-
omitted); see also United States v. García-Carrasquillo, 483 F.3d

124, 130 (1st Cir. 2007). Officer Vega testified that he found the

transparent bag containing the drugs in plain view on the floor of

the Nissan Armada. Alicea-Cotto acknowledged that the vehicle

belonged to him, and he was standing beside the SUV moments before

Vega discovered the drugs. His ownership of, and proximity to, the

vehicle permitted the jury to infer that Alicea-Cotto had "dominion

and control" over the location where the drugs were found and,

consequently, to find that he constructively possessed the

narcotics. See, e.g., United States v. Johnson, 470 F.3d 1234,

1238 (8th Cir. 2006) ("To prove constructive possession, the

Government must show that [defendant] had knowledge and ownership,

dominion, or control over the contraband itself, or dominion over

the vehicle in which the contraband [was] concealed.") (quotation

marks and citation omitted); United States v. Olivo-Infante, 938

F.2d 1406, 1411 (1st Cir. 1991) (holding that jury could reasonably

infer defendant's constructive possession of cocaine that was found

in his car).

The record also supports the jury's finding that Alicea-

Cotto intended to distribute the drugs. We have held that a large

amount and individual packaging of drugs is sufficient to

demonstrate an intent to distribute for purposes of section

841(a)(1). See García-Carrisquillo, 483 F.3d at 130 n.12. Here,

the packaging alone was strong circumstantial evidence that the

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drugs were intended for distribution. Officer Vega testified that

the plastic bag he found in the SUV contained ninety plastic

cylinders of cocaine base, forty-four plastic bags of cocaine and

fifty-six aluminum wrappings of heroin. The jury reasonably could

infer from the number of separate packages – 190 – that the

cocaine, cocaine base and heroin were intended for distribution

rather than for personal consumption. See, e.g., United States v.

Gentry, 555 F.3d 659, 667 (8th Cir. 2009) ("[T]he fact that the

methamphetamine in the bag was further subdivided into seven Ziploc

baggies[] supports a finding of intent to distribute.").6 The

large amount of cash in the plastic bag with the drugs reinforced

that inference.

Sufficient evidence therefore supported Alicea-Cotto's

convictions on Counts Three, Four and Five charging possession with

intent to distribute cocaine, cocaine base and heroin.

2. Aiding and Abetting Possession of a Stolen Firearm in

violation of 18 U.S.C. §§ 922(j) and 2 (Count One)

Alicea-Cotto was charged under section 922(j) with

possession of the Smith & Wesson 9mm pistol that was recovered from

Alvarado's waistband. To prove guilt under that provision, the

government needed to establish that Alicea-Cotto possessed the gun

6
The jury, by contrast, rejected the marijuana distribution
count. Only one small plastic bag of marijuana, weighing 1.2
grams, was in the larger transparent bag that contained all of the
drugs.

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"knowing or having reasonable cause to believe" it was stolen. 18

U.S.C. § 922(j). Possession of the weapon was established through

the testimony of Officers Vega and Sánchez, who reported seeing

Alicea-Cotto hand the gun to Alvarado and receive money in

exchange. The government also elicited evidence that the gun was

reported stolen to the Puerto Rico Police Department in 1998.7

Alicea-Cotto claims, however, that the government failed

to adduce evidence showing that he knew, or had reason to believe,

that the gun was stolen. In its brief, the government cites no

evidence of such knowledge. Instead, the government asserts that

"there was never any evidence Alicea-Cotto legally purchased the

gun or registered it in his name" and argues that the jury could

rationally infer that he knew the gun did not belong to him. At

trial, the government conceded in closing argument the lack of

direct evidence of Alicea-Cotto's and Alvarado's scienter, and then

focused its argument on what Alvarado – the purchaser of the gun –

must have known:

I ask you, Thursday afternoon, 4:30 in
the afternoon, broad daylight, kids running
around, in a public housing project a man buys
a weapon from another man. He doesn't get a
receipt, he doesn't get a license, doesn't
fulfill any of the requirements that he would
otherwise have to do if he went to a gun
store.

7
The government met the statute's interstate commerce element
with expert testimony that the gun was manufactured in Springfield,
Massachusetts, and necessarily traveled in interstate commerce to
reach Puerto Rico.

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 What can he presume – what can he know
about that weapon? And what, being a
reasonable tryer[sic] of fact, should you, the
jury, circumstantially infer? What is a
common-sense inference from that transaction?
The common sense inference from that
transaction, ladies and gentlemen, is that he
knew it was stolen. Why else would he go and
buy a gun in a housing project? Why didn't he
go to the store? Why didn't he get a receipt?
Why didn't he take a class and get the
license, and go to the armory and practice
shooting? Why didn't he do any of that? Why?
Because he was buying a Saturday night
special. He was buying a gun he knew, or
should have known, was stolen.

The government made a similar argument when responding to

Alicea-Cotto's and Alvarado's motions for acquittal on Count One,

arguing to the district court that the purchase of the firearm "for

cash in broad daylight in a public housing project[]

circumstantially creates the inference that it was a stolen

weapon." Alvarado's counsel challenged that assertion – asking if

"every transaction that occurs in a public housing project is

illegal just because it's in a public housing project" – and the

prosecutor replied, "[e]very weapons transaction, yes, Your Honor.

. . . [I]t is unlawful to sell weapons." Pressed to identify the

evidence before the jury on Alvarado's knowledge, the prosecutor

stated:

The evidence is your client bought a gun in a
housing project, for several hundred dollars,
from a vehicle with an AK47 sticking out the
back, from a guy who had drugs in the front.
And is that illegal? Yes.

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 Although the government may be correct that the evidence

permitted the jury to conclude that the weapons transaction was

unlawful,8 we see no evidence to support the particular finding of

knowledge required to support a conviction under section 922(j),

i.e., that Alicea-Cotto knew, or had reason to believe, that the

weapon he sold to Alvarado had been stolen. The government's

argument about the suspicious circumstances would equally apply if

Alicea-Cotto had been unlawfully reselling a firearm that an

associate had legitimately acquired. Indeed, the government on

appeal does not even attempt to support the jury's finding on

Alicea-Cotto's scienter with citations to the record, and instead

reverses the burden of proof by asserting that Alicea-Cotto offered

no evidence that he was the gun's lawful owner.

The cases cited by the government in support of its

position are easily distinguishable. In United States v. Iron

Eyes, 367 F.3d 781, 783 (8th Cir. 2004), the defendant was found

carrying two rifles outside the home from which the weapons had

just been stolen. In United States v. McBane, 433 F.3d 344, 349

8
We need not delve into whether the sale would in fact have
been illegal if the gun had not been stolen. We note, however,
that during argument on the motion for acquittal defense counsel
emphasized the absence of evidence that "buying a weapon in broad
daylight on the street is even illegal," and stated that, "[i]n
many states buying a weapon at a flea market on the street is
absolutely legal with no documentation." He continued: "This jury
has heard nothing to make a transaction of cash for a weapon with
a serial number on it illegal or wrong or whether that weapon [was]
stolen."

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(3d Cir. 2005), the jury was read an admission from the defendant

stating that he knew the gun had been taken from its rightful

owner. In another Eighth Circuit case involving section 922(j),

United States v. Provost, 237 F.3d 934, 937 (8th Cir. 2001), the

defendant was present when a companion stole three rifles from a

house, and he participated in conversations about how to sell the

guns for cash. By contrast, in United States v. Mobley, 956 F.2d

450 (3d Cir. 1992), the government conceded that it could not have

proven the scienter element of section 922(j), id. at 460 & n.1

(Mansmann, J., dissenting), even though the defendant admitted

purchasing the gun at issue from a drug dealer, id. at 451.

To affirm the stolen weapon conviction on the record

before us would be, in effect, to read the scienter requirement out

of the statute. We decline to do so, and we therefore reverse the

judgment of guilt against Alicea-Cotto on Count One.

3. Possession of a Firearm in Furtherance of a Drug

Trafficking Crime (Count Seven)

Alicea-Cotto's challenge to his conviction on the section

924(c) charge focuses solely on inconsistencies and gaps in the

officers' testimony. Among other points, he notes that (1) the t-

shirt that supposedly covered the AK-47 in the back of the SUV was

never produced, (2) Vega originally gave an incorrect serial number

for that weapon, and (3) Sánchez admitted in cross-examination that

he saw the rifle for the first time at police headquarters even

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though it supposedly was visible through the open rear door of the

SUV. All of these contentions, however, concern the believability

of the officers' testimony, a matter outside our inquiry. Alicea-

Cotto does not argue that the evidence presented – if believed –

was insufficient to establish that he possessed the rifle in

furtherance of a drug trafficking offense, and any such argument is

therefore waived. United States v. Marsh, 561 F.3d 81, 83 n.4 (1st

Cir. 2009) (noting that an argument not briefed on appeal is deemed

waived).9

The argument would, in any event, be futile. We already

have determined that the jury reasonably could infer Alicea-Cotto's

constructive possession of the drugs found in his vehicle, and the

same possession analysis applies to the AK-47. We also have upheld

the jury's finding of guilt on the drug trafficking charges. The

government additionally needed to demonstrate "some sufficient

nexus between the firearm and the drug trafficking offense."

United States v. Robinson, 473 F.3d 387, 399 (1st Cir. 2007); see

also Sherman, 551 F.3d at 49. Among the relevant factors are

"whether the firearm was loaded, whether the firearm was easily

accessible, the proximity of the firearm to the drugs, and the

surrounding circumstances." Robinson, 473 F.3d at 400; see also

9
The indictment charged possession of both the Smith & Wesson
pistol and the AK-47 rifle under Count Seven. For convenience, we
address only possession of the rifle, which is sufficient to
support the conviction.

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United States v. Rogers, 556 F.3d 1130, 1140 (10th Cir. 2009) ("The

intent to possess the weapon to further the drug trafficking crime

is generally proven through circumstantial evidence . . .").

The facts here provide ample circumstantial support for

the jury's finding that Alicea-Cotto possessed the AK-47 to further

his drug trafficking activities. The loaded AK-47 was found in the

vehicle with the drugs, where it was easily accessible and, indeed,

partially in plain view. See Robinson, 473 F.3d at 399 (observing

that "a sufficient nexus is more readily found in cases where the

firearm is in plain view and accessible to the defendant").

Although no drug transaction was observed, the jury could

rationally infer that the gun was in the back of the SUV to protect

the ongoing drug-trafficking activity reflected by the drugs and

money up front. Our observation in United States v. Garner, 338

F.3d 78 (1st Cir. 2003), is equally apt here:

When guns and drugs are found together and a
defendant has been convicted of possession
with intent to distribute, the gun, whether
kept for protection from robbery of drug-sale
proceeds, or to enforce payment for drugs, may
reasonably be considered to be possessed "in
furtherance of" an ongoing drug-trafficking
crime.

Id. at 81. We therefore reject Alicea-Cotto's sufficiency claim

with respect to Count Seven.

III.

Both appellants contend that improper statements made by

the prosecutor during the rebuttal portion of his closing argument

-21-
were so prejudicial that a new trial is required. When defendants

contemporaneously object to challenged comments, as the government

acknowledges occurred here, we review de novo whether the remarks

amounted to prosecutorial misconduct. United States v. Vázquez-

Botet, 532 F.3d 37, 57 (1st Cir. 2008). If we conclude that

misconduct occurred, we then "ask whether the prosecutor's behavior

'so poisoned the well' that the defendant[s] must be given a new

trial." Id. at 56 (quoting Manning, 23 F.3d at 573); United

States v. Vázquez-Rivera, 407 F.3d 476, 486 (1st Cir. 2005)

(observing that reversal is warranted only if prosecutor's remarks

"have likely affected the trial's outcome") (quotation marks and

citation omitted). The district court's decision on whether to

grant a new trial is reviewed for abuse of discretion. Robinson,

473 F.3d at 393.

A. Were the Prosecutor's Remarks Improper?

It is well established that "it is improper to

'needlessly arouse the emotions of the jury.'" Robinson, 473 F.3d

at 397 (quoting United States v. Pirovolos, 844 F.2d 415, 425 (7th

Cir. 1988)). We have held that misconduct occurs when a prosecutor

"interject[s] issues having no bearing on the defendant's guilt or

innocence and improperly appeal[s] to the jury to act in ways other

than as dispassionate arbiters of the facts." United States v.

Mooney, 315 F.3d 54, 59 (1st Cir. 2002) (finding misconduct where

prosecutor's remarks during the opening statement "contrast[ed] the

-22-
jurors' sense of community safety with the armed robbery" at

issue); United States v. Whiting, 28 F.3d 1296, 1302 (1st Cir.

1994) (finding misconduct where prosecutor noted defendant's harm

to "the kids of Roxbury" and exhorted jury during rebuttal argument

to find guilt to protect "other kids" from guns, drugs and

violence); Arrieta-Agressot v. United States, 3 F.3d 525, 527 (1st

Cir. 1993) (finding closing argument inflammatory and impermissible

where prosecutor urged jury to consider the case "as a battle in

the war against drugs, and the defendants as enemy soldiers")

(citing similar cases). Even unintentional misrepresentations of

the record can constitute misconduct under certain circumstances.

See United States v. Azubike, 504 F.3d 30, 38 (1st Cir. 2007).

Appellants contend that the prosecutor committed

misconduct because the rebuttal argument contained multiple

statements that were either inaccurate, highly inflammatory, or

both. They specifically cite the following comments:

• Ladies and gentlemen of the jury, those
(indicating) are bullets from an AK-47 assault
rifle. There are 31 of those bullets that were
in this gun, ready to go on May 25th. Thirty-
one potential lives were saved on May 25th,
2006. And for that, the district of Puerto
Rico should be thankful, 31 lives were saved.

• Do you see the size of these things? Do
you see the size of these bullets? You can
take them back with you. You can look at
them.

• The problem today is there [are] too many
people living in public housing projects that
are willing to look the other way and not take

-23-
 responsibility for what happened or protect
people that need to be here in court and
prosecuted . . . because they're afraid for
their lives . . .

• How can you reconcile looking the other
way? . . . It should offend the sense of
justice, ladies and gentlemen of the jury.

• . . . [I]sn't it ironic that this car that
was owned by Jose Luis Alicea Cotto was an
Armada? Isn't that just ironic?
Because that's exactly what it was. It
was an Armada. He was armed. He was armed
for a war that goes on every day in public
housing projects around Puerto Rico, around
the United States, in every jurisdiction, in
every district, poor people, rich people, fat
people, tall people, hungry people, they face
this reality every day.

• And on behalf of the United States and the
District of Puerto Rico, I charge you to do
your job, find the Defendants guilty.

We have no difficulty concluding that portions of the

prosecutor's remarks crossed the bounds of proper argument.

Nothing in the record justified the statement that "31 lives were

saved." Invoking the thirty-one bullets in that way, while also

urging the jurors to consider their size, could have served no

purpose other than to inflame the jury's passions by depicting the

defendants as dangerous men who needed to be put away for a long

time. Indeed, the government explicitly concedes that the "31

lives" remark was improper. In addition, the prosecutor's comment

that Alicea-Cotto was "armed for a war that goes on every day in

public housing projects" is reminiscent of language we deemed

improper in Arrieta-Agressot, which described the defendants as

-24-
enemy soldiers in "a battle in the war against drugs." See also

United States v. Sepulveda, 15 F.3d 1161, 1189 (1st Cir. 1993)

("[W]e deplore frank appeals to passion of the sort typified by

'war on drugs' rhetoric . . ."). Also disturbing is the

prosecutor's admonition to the jury to "do your job, find the

Defendants guilty." See United States v. Young, 470 U.S. 1, 18

(1985) (finding that a prosecutor erred in urging a jury to "do its

job"); United States v. Andújar-Basco, 488 F.3d 549, 561 (1st Cir.

2007) (noting government's concession that exhorting the jury to do

"your duty" was improper); United States v. Mandelbaum, 803 F.2d

42, 44 (1st Cir. 1986) ("There should be no suggestion that a jury

has a duty to decide one way or the other; such an appeal is

designed to stir passion and can only distract a jury from its

actual duty: impartiality.").10

The government argues that certain of the challenged

statements were proper and that the summation as a whole must be

viewed in the context of defense counsel's closing, which included

comments about crime in public housing projects11 and an assertion

10
Defendants did not explicitly object at trial to the "do
your job" language. Since the defendant did not make a
contemporaneous objection, we apply the demanding plain error
standard, and it is far from clear that the "do your job" language,
although inappropriate, would warrant reversal on its own. Still,
we give it weight for its cumulative effect when combined with the
other statements suggesting violence.
11
Ayala-García's lawyer told the jury: "You have no family
from a low income housing project, but it seems to me that the
prosecution is trying to make you believe that everything that

-25-
that the police officers who testified were "bordering on

perjury."12 Although acknowledging that "two wrongs do not make a

right," the government urges us to consider that its rebuttal was

a response to defense counsel's own "incendiary rhetoric."

Our cases establish that some leeway is appropriate when

the government's challenged comments may fairly be seen as a

response to comparable remarks by defense counsel. See, e.g.,

United States v. Skerret-Ortega, 529 F.3d 33, 40 (1st Cir. 2008)

("The Government's response to statements made by defendant's

counsel cannot and should not be viewed the same way as statements

made by the Government without provocation."); United States v.

Hansen, 434 F.3d 92, 102 (1st Cir. 2006) (noting that "we

'typically cede prosecutors some latitude in responding to defense

counsel's allegations of fabrication'" (quoting United States v.

Perez-Ruiz, 353 F.3d 1, 10 (1st Cir. 2003))); Sepulveda, 15 F.3d at

1189 ("Courts should allow prosecutors greater leeway in rebuttal

happens there is a crime so you'd have to find them guilty beyond
a reasonable doubt because they live in a low income housing
project."
12
Among other remarks suggesting that the government's case
was fabricated, Alvarado's lawyer stated: "[F]rom your own
knowledge of the Puerto Rican culture, what's going on in the
streets of Puerto Rico today and you're[sic} having lived here,
there are police officers who are ready, willing and able to
cuadro, to square their cases. That's what happened here, that's
what happened here." He also urged the jurors to "have the courage
. . . to throw this case out . . . because it's no good," and to
let the police officers know that "if you're coming here, you
better come with the truth because we're not going to believe you
if you lie."

-26-
when the defense has itself breached the standards for proper

summation."). The latitude afforded prosecutors is not, however,

boundless. We have "warned prosecutors that 'there are limits to

the extent that we will permit fighting fire with fire.'"

Sepúlveda, 15 F.3d at 1189 n.24 (quoting United States v. Mejia-

Lozano, 829 F.2d 268, 274 (1st Cir. 1987)).

Even if some of the challenged statements could be viewed

in context as understandable, or even appropriate, there is no

sugar-coating the prosecutor's wholly unjustified and inflammatory

reference to the potential loss of thirty-one lives. The

prosecutor's emphasis on the size of the bullets added fuel to the

fire. At a minimum, those statements constituted misconduct.

Moreover, we cannot isolate them from other statements that, in

context, crossed over the line of proper rebuttal. Of particular

concern is the prosecutor's assertion that Alicea-Cotto was engaged

in a war at the public housing project. That comment further

magnified the threat of violence evoked by the "31 lives" and

bullet remarks. See United States v. Potter, 463 F.3d 9, 24 (1st

Cir. 2006) (noting that defendants "fairly argue that we should

consider [an] improper comment not alone but together with any

other significant errors in the prosecutor's closing"); Mejia-

Lozano, 829 F.2d at 274 n.4 (considering whether "cumulative effect

of missteps in the prosecutor's closing argument could conceivably

have skewed the balance").

-27-
 We thus move to the next step of our inquiry, determining

whether the prosecutor's improper comments "so poisoned the well

that the trial's outcome was likely affected." Mejia-Lozano, 829

F.2d at 274.

B. Did the Improper Remarks Result in Prejudice Requiring a New

Trial?

We weigh several factors in determining whether a new

trial is warranted based on the prosecutor's improper remarks,

including: "the severity of the misconduct; whether it was

deliberate or accidental; the context in which it occurred; whether

the judge gave any curative instructions and their likely effect;

and the strength of the evidence against the defendant." Mooney,

315 F.3d at 60. See also Azubike, 504 F.3d at 39; Robinson, 473

F.3d at 398.

The plainly improper comment about saving thirty-one

lives suggested to the jurors that the defendants were potential

killers who would have murdered thirty-one individuals if they had

not been arrested. As we previously have observed, "[i]t is hard

enough for a jury to remain dispassionate and objective amidst the

tensions and turmoil of a criminal trial," Arrieta-Agressot, 3 F.3d

at 527, and the dramatic assertion that dozens of lives were at

risk that day burdened the defendants with accusations far more

potent than the charges on which they were being tried. Indeed,

the jury could have gleaned from that emphatic statement that the

-28-
prosecutors knew something about the defendants' intentions beyond

what had been revealed at trial. The prejudicial impact of that

rhetoric was inescapably severe.

Although the insinuation that the defendants intended a

mass killing was not repeated, the remark was immediately followed

by the prosecutor's entreaty that the jurors look at the size of

the bullets and his observation that "too many people living in

public housing projects" shirk their responsibility for violent

crime by looking the other way. These comments effectively told

the jurors that they needed to assume the responsibility – refused

by others – for preventing violence with such horrific weapons.

The prosecutor continued his summation by properly reviewing

conflicts in the evidence, urging the jurors to reject the

"incredible" testimony of the defense witnesses, but then again

resorted to highly charged rhetoric – accusing Alicea-Cotto of

being armed for the "war that goes on every day in public housing

projects . . . in every jurisdiction." After asking the jurors to

use their common sense to review the evidence, the prosecutor

concluded by telling them to "do your job, find the Defendants

guilty."

We cannot say that the harm from the "31 lives" and

bullet comments was defused by the remainder of the prosecutor's

rebuttal argument. To the contrary, the prosecutor's subsequent

use of other language that we have previously condemned – in

-29-
particular, the imagery of a war on crime and the jury's duty to

convict – combined to create the message that the jurors must take

responsibility for fighting back against violent crime by

convicting these highly dangerous individuals. Moreover, the

rebuttal context increased the likelihood of prejudice because the

improper remarks were among "the last words spoken to the jury by

the trial attorneys." Manning, 23 F.3d at 575; see also Azubike,

504 F.3d at 39 (noting that "prejudicial statements made during

closing argument 'militate in favor of reversal'") (quoting

Manning, 23 F.3d 570 at 575); cf. Mooney, 315 F.3d at 60 ("The

comments occurred during opening arguments, not during summation

where the last words the jury hears have significant potential to

cause prejudice.").

Immediately following the rebuttal argument, Alicea-

Cotto's counsel requested an instruction advising the jurors to

disregard "the prejudicial remarks made as to residents of public

housing projects." The court responded with this statement to the

jury:

What you stated is pure argument, which the
jury is not going to take into account. It is
only the evidence that the jury heard here
with respect to those witnesses, the physical
objects, as well as the exhibits, okay?
Remember, I want this very clear, this
is pure argument. Okay, and whatever has been
said, you know, it's simply to try to persuade
you. But you are the sole judges of the
facts, okay?

-30-
Following a break in the proceedings, but before the jury returned,

appellants moved for a mistrial based on the various statements

described above. Alicea-Cotto's counsel specifically targeted the

"31 lives" statement, arguing that "it is very prejudicial since

him telling the jurors that they saved 31 lives implicates that

these three young men are murderers and if they had not caught

them, which is his argument, they would have murdered 31 people."13

In denying the motion, the court again assured defense

counsel that it would instruct the jury to focus solely on the

evidence and to "disregard anything that has any derogatory

reference to housing projects or anything that may be happening

there." The court did refer to the rebuttal argument in its charge

to the jury, but did not address the "31 lives" statement in

particular:

And you have heard me say every single
day that it's only the evidence that counts in
this case, not arguments of counsel, not
statements by counsel, not objections by
counsel, not questions by counsel. And you
heard arguments by counsel here at the end of
this case, you know, and there were some

13
The government accepts that the motion for mistrial
presented a sufficiently contemporaneous objection to the
prosecutor's remarks to warrant de novo review, and we have
proceeded accordingly. We previously have found objections to
prosecutorial arguments timely when they were made during sidebars
that followed the prosecutor's rebuttal. See Azubike, 504 F.3d at
39 n.9; Mandelbaum, 803 F.2d at 44 n.1. More recently, we noted
that "[o]ur recent decisions have reserved the issue of precisely
when objections must be made to closing statements to preserve the
objection for ordinary review," suggesting that the rule might
appropriately vary with the circumstances. Potter, 463 F.3d at 23.

-31-
 references made to public housing projects and
whatnot, and you are not to take that into
account, okay?
It's only the evidence presented,
witnesses that testify here, okay, the
exhibits that are presented and the physical
objects.
Now, so that means that you must decide
the case solely on the evidence before you and
according to the law. You will recall that
you took an oath, promising to do so at the
beginning of the case.

The court also gave the standard instructions telling the jurors

that they had a duty to base their verdict "solely upon the

evidence, without prejudice or sympathy," and that "statements and

arguments of counsel are not evidence."

We have at times found the district court's standard

instruction, advising jurors that arguments of counsel are not

evidence, adequate to dispel any prejudice from improper remarks.

See, e.g., Mooney, 315 F.3d at 60; Arrieta-Agressot, 3 F.3d at 529.

Here, the district court additionally gave specific attention to

the closing argument, reminding the jurors that the "references

made to public housing projects and whatnot" should not be taken

into account. The court's instruction, however, was too mild for

the circumstances and thus an inadequate antidote for the

misconduct. It made no reference to the prosecutor's inaccurate

and inflammatory comments about the thirty-one lives and the size

of the bullets – which the court simply labeled as "whatnot."14 The

14
The court also made no comment about the third unequivocally
improper statement – urging the jurors to "do your job" – but, as

-32-
remarks here called for an instruction explicitly directing the

jury to disregard the improper comments. See, e.g., Potter, 463

F.3d at 23 (describing trial court's instruction to the jury

pointing out the problematic language and telling the jury to

"disregard those comments completely"); Mooney, 315 F.3d at 59

(noting trial court's specific reference to the prosecutor's

improper remarks about community safety as part of curative

instruction advising the jury that "'[t]hat simply is not an

appropriate issue'"). Moreover, our observation in Arrieta-

Agressot also applies here:

[T]he danger was not so much that the jury
would consider the prosecutor's statements to
be "evidence." Rather, the threat was that
the prosecutor's remarks would excite the
jury, invite a partisan response, and distract
its attention from the only issue properly
presented by this case: whether the evidence
established the [defendants'] guilt beyond a
reasonable doubt.

3 F.3d at 529-30.

The nature of the evidence raises further doubts about

the efficacy of the court's instruction. Witness credibility was

central to this case. Although we concluded in Section II that the

evidence was sufficient to find appellants guilty on all but one of

the counts of conviction, the question here is whether the

prosecutor's remarks influenced the jurors' credibility assessment.

noted, see supra note 10, that language was not called to its
attention.

-33-
See Azubike, 504 F.3d at 41 ("[T]he fact that there was sufficient

evidence to convict does not mean that the jury would have

convicted absent the prosecutor's improper remarks."); Arrieta-

Agressot, 3 F.3d at 528 ("The jury may well have decided the issues

in favor of the government, but that jury decision may itself be

tainted by the improper remarks."). Appellants attempted to

persuade the jury that inconsistent testimony given by the

government's witnesses undermined the prosecution's case, and the

government responded in kind by accusing the defense witnesses of

lying. During their deliberations, the jurors requested the

testimony of Officer Sánchez – indicating some uncertainty about

the evidence – but were told to rely on their own recollection of

what he had said. In this context, particularly given the direct

conflict in the government's and defendant's evidence, and the

prosecutor's hyperbole about the defendants' violent conduct, we

lack "fair assurance" that the result would have been the same

absent the improper statements. United States v. Meserve, 271 F.3d

314, 329 (1st Cir. 2001) (quoting Kotteakos v. United States, 328

U.S. 750, 765 (1946)).15

15
The government describes the evidence against Ayala-García
and Alicea-Cotto as overwhelming, which would diminish the
likelihood of prejudice from the prosecutor's remarks. See, e.g.,
Young, 470 U.S. at 19-20 ("Not a single witness supported
respondent's asserted defense . . . "); Mooney, 315 F.3d at 60;
Mejia-Lozano, 829 F.2d at 274. The evidence may be seen as one-
sided in the government's favor, however, only if we accept the
government's own assessment of credibility and reject out-of-hand
the testimony presented by the defendants' eyewitnesses.

-34-
 The government argues that Alicea-Cotto's acquittal on

Count Six, the marijuana conspiracy charge, shows that the jury was

able to follow the district court's instructions and

dispassionately weigh the evidence presented. The government reads

too much into that verdict. Only a single, small plastic bag of

marijuana was found in Alicea-Cotto's vehicle; acquittal on the

marijuana distribution charge was thus unremarkable. Indeed, the

jury's guilty verdict on the stolen weapon charge is arguably more

telling. The finding that Alicea-Cotto had reason to know that the

Smith & Wesson pistol was stolen – in the absence of any evidence

of that fact – supports appellants' argument that the prosecutorial

misconduct tainted the jury's deliberations.16

The government's witnesses were not, however, untarnished.
During cross-examination, defense counsel aggressively questioned
Sánchez about when he saw the drugs. At the suppression hearing,
Sánchez had said he first saw them at the police station. At
trial, he reported seeing them in the SUV. When asked "which time
were you telling the truth," he explained that he first saw the
drugs displayed at the station, but had seen the bag containing the
drugs in the car.
Counsel similarly challenged Officer Vega on his testimony
about who drove the SUV from the housing project to the narcotics
division. At trial, Vega stated that he was in the vehicle with
Sánchez and another officer, although he had testified at the
suppression hearing that he could not remember who accompanied
Sánchez.
On this record, we cannot say that the government's case was
so overwhelming that guilty verdicts were inevitable.
16
The Supreme Court in Young, in concluding that a
prosecutor's improper rebuttal argument did not compromise the
jury's deliberations, observed that the jury had acquitted the
defendant of the most serious charge he faced. Young, 470 U.S. at
18 n.15.

-35-
 Finally, we are again troubled that the tradition of

improper closing arguments persists among some prosecutors in the

United States Attorney's Office in Puerto Rico. We have repeatedly

admonished that office for similar misconduct and urged the office

to "redouble its efforts to educate its attorneys about the ground

rules for closing arguments." Andújar-Basco, 488 F.3d at 561 n.5;

see also United States v. Martínez-Medina, 279 F.3d 105, 128 & n.12

(1st Cir. 2002) (Torruella, J., concurring) (collecting cases).

In sum, our review of the circumstances persuades us that

the improper comments "so poisoned the well that the trial's

outcome was likely affected," Mejia-Lozano, 829 F.2d at 274, and

that, consequently, a new trial is warranted. Accordingly, we

vacate Ayala-García's conviction on Count Two and Alicea-Cotto's

convictions on Counts Three through Five and Seven, and remand for

a new trial on those counts. As discussed in Section II, we

reverse Alicea-Cotto's conviction on Count One.

Reversed in part, vacated in part, and remanded for

further proceedings.

So ordered.

- Concurring Opinions Follow -

-36-
 BOUDIN, Circuit Judge, concurring. Motions for a new

trial in criminal cases, based on improper remarks by the

prosecutor in closing, are often an uphill effort. The government,

unlike defense counsel, can pursue strong cases and pass on weak

ones, and so many of its cases are strong: eye-witness testimony by

eye-witnesses, audio or video tape, and co-conspirators who turn up

as prosecution witnesses confront defendants who, often hindered by

prior criminal records, chose not to take the stand.

Prosecutors do sometimes make statements that judges find

impermissible. Yet the variables are numerous and work against

easy rules of thumb: statements may be improper for different

reasons and in varying degrees; they may be fine in some contexts

and not in others (e.g., depending on the trial evidence);

provocation or fair response may mitigate or excuse; corrective

instructions may or may not be given and, if given, vary in their

force; and judges also vary in what they think allowable comment.

Complicating the equation is the requirement of harm: if

no objection was made, the defense must show (among other things)

that an objectionable statement caused prejudice.17 This is a

demanding requirement which, along with other Olano factors, United

States v. Olano, 507 U.S. 725 (1993), explains why admonitions are

17
See United States v. Vazquez-Botet, 532 F.3d 37, 56 (1st
Cir. 2008) (asking whether misconduct "'so poisoned the well' that
the defendant must be given a new trial." (quoting Manning, 23 F.3d
at 574); United States v. Laboy-Delgado, 84 F.3d 22, 29 (1st Cir.
1996).

-37-
not uncommon but reversals--where no objection was made, are

comparatively rare. And, if objection was made, the government can

argue that it was harmless--a much tougher showing, to be sure (see

note 19, below); but sometimes the impropriety is marginal and

curative instructions may have lessened the impact.

Only where bad faith is shown is the need for harm

sometimes disregarded.18 But finding bad faith is not easy: trials

raise the emotional level and much in closing argument is

spontaneous. Further, a court may be reluctant to reverse a

reliable conviction because, in Cardozo's famous phrase, "the

constable has blundered." Cf. United States v. Auch, 187 F.3d

125, 133 (1st Cir. 1999) (noting Supreme Court's "admonition

against letting the guilty go to punish prosecutorial

misconduct.").

The present case, quite unusual, combines an undisputedly

improper and significant remark, with a defense case that is

forceful and well developed. The statement that "[t]hirty one

potential lives were saved" can be understood (even if not so

intended) as a claim that the defendants were out to kill people,

which was neither the charge nor the subject of any evidence. The

government concedes the remark was improper. How far other remarks

18
Compare United States v. Potter, 463 F.3d 9, 22-25 (1st Cir.
2006), and United States v. Mejia-Lozano, 829 F.2d 268, 274 (1st
Cir. 1987), with United States v. Mooney, 315 F.3d 54, 60 (1st Cir.
2002).

-38-
standing alone were improper can be and is disputed, but several of

them, given the quoted statement, tended to emphasize its thrust.

Prosecutors have said worse things, but a timely

objection was made so the question is whether the government can

show that the remark was harmless. Very often, in a case like this

one, there would be unquestioned police testimony that they caught

the defendants with guns and drugs and cash, and there would be

nothing from the defense side except silence. In that situation,

a prosecutor's overstatement rarely looks like it had any effect;

and a new trial, given such evidence, appears a waste of time.

This case is different. Six witnesses, at least four of

whom had nothing specific to do with the defendants, testified that

the police had fabricated the alleged seizure: that they had not

taken the guns and drugs from the defendants or their vehicles, had

searched the defendants but found nothing, had disappeared into the

woods and returned with a bag and (according to two witnesses) had

at the police station taken weapons and drugs from the bag. Other

defense evidence is described in the decision.

This does not show that the defendants were bound to be

acquitted. The witnesses from the housing project may have been

friends of the defendants, hostile to the police or subject to

intimidation. But given the objection and substantial impropriety

of the main comment, the government had to show that the remark or

remarks could not have affected the result, that is to say, (since

-39-
the jury's mind cannot be read), that the chances are extremely low

that the outcome was affected.19

Here, the government cannot meet this burden. As in

United States v. Azubike, 504 F.3d 30, 42 (1st Cir. 2007), where a

new trial was required, "the evidence was close and the

misstatement went to a central issue . . ." Bad faith is not an

issue and the defense took liberties of its own asking the jury to

rely on unsupported factual claims. But in a case with a

substantial defense, the prosecutor's emotional and unsupported

reference to potential mass murders is enough for a new trial.

19
E.g., United States v. Lizardo, 445 F.3d 73, 87-88 (1st Cir.
2006), cert. denied 549 U.S. 1007 (2006)("any possible prejudice
was relatively insignificant"); See Potter, 463 F.3d at 24 (no
"substantial chance--let alone a likelihood--of changing the
outcome").

-40-
 HANSEN, Circuit Judge, concurring. I fully concur in

parts I and II of the court’s opinion, and, principally for the

reasons expressed in Judge Boudin’s separate concurrence, I concur

in the result reached in Part III. I also concur in the court’s

judgment.

-41-