United States v. Brown

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 17, 2007 Decided November 27, 2007

No. 06-3067

UNITED STATES OF AMERICA,

APPELLEE

v.

XAVIER VALENTINE BROWN,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 05cr00002-06)

Reita Pendry, appointed by the court, argued the cause and

filed the briefs for appellant.

Leslie A. Gerardo, Assistant U.S. Attorney, argued the

cause for appellee. On the brief were Jeffrey A. Taylor, U.S.

Attorney, and Roy W. McLeese III, Mary McCord, and Elizabeth

Gabriel, Assistant U.S. Attorneys.

Before: GINSBURG, Chief Judge, and EDWARDS and

WILLIAMS, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: Xavier V. Brown was

convicted of one count of conspiracy to possess with intent to

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distribute and to distribute one kilogram or more of heroin, in

violation of 21 U.S.C. § 846. In this appeal, Brown claims that

the prosecutor committed reversible errors by commenting on

the fact that appellant did not testify in his own defense, using

the guilty pleas of co-conspirators as substantive evidence in the

prosecution of appellant, and vouching for the credibility of

Government witnesses. Appellant also contends that the District

Court erred in failing to give an explicit instruction to the jury

that the co-conspirators’ guilty pleas could not be considered

proof of Brown’s guilt. According to appellant, the cumulative

effect of these errors was so egregious that his conviction should

be overturned.

Defense counsel did not object at trial to any of the

prosecutorial actions that appellant now contends warrant the

reversal of his conviction, nor did defense counsel request the

jury instruction that appellant now claims should have been

given by the trial judge. Because these claims were never raised

before the District Court, the plain error standard of review

controls the disposition of this appeal. FED. R. CRIM. P. 52(b);

United States v. Olano, 507 U.S. 725, 731 (1993).

With respect to appellant’s allegations that the prosecutor

improperly commented on his failure to testify and improperly

cited the guilty pleas of co-defendants, it is far from clear that

the prosecutor’s statements were error, much less plain error.

Even if some of the prosecutor’s statements were erroneous,

they certainly were not prejudicial to the outcome of the trial,

and accordingly do not constitute a reversible error. We agree,

however, that the prosecutor clearly erred in expressing his

personal beliefs regarding appellant’s guilt. Nonetheless,

because appellant has failed to demonstrate that the error

affected his substantial rights or that it seriously affected the

fairness, integrity, or public reputation of the judicial

proceeding, we are constrained to hold that there is no plain

error. We therefore affirm appellant’s conviction.

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I. BACKGROUND

This case involves a drug conspiracy run by a Panamanian

national named Jose Meneses (a.k.a. “Cholo” or “Cholito”) who

allegedly smuggled heroin from Panama to the United States in

2004 with the help of associates named Gregory Fulton (a.k.a.

“Melsum Shasha”), Ana Alvarez Rios, Alexis Barraza, and

Olivia Williams. Appellant Xavier Brown was arrested and

charged with being a party to a drug conspiracy after he met

with Fulton to pick up money that Fulton owed Meneses for

earlier shipments of heroin. Fulton, Rios, Barraza, and Williams

testified against Brown pursuant to plea agreements. Brown did

not testify. At trial, defense counsel did not challenge the

existence of a “drug distribution network,” Trial Tr. (1/5/06) at

423, but argued instead that appellant lacked the requisite

knowledge and intent for the conspiracy charge.

The sting operation that led to Brown’s arrest began on

December 1, 2004, when Gregory Fulton was arrested on

narcotics charges. Fulton testified that, following his arrest, he

informed the Federal Bureau of Investigation (“FBI”) of his

involvement in a heroin distribution ring run by Jose Meneses,

and indicated that he could obtain heroin from Meneses via

distributors, including Alexis Barraza. Fulton agreed to

cooperate with the FBI by purchasing heroin from Meneses and

his associates in an undercover capacity. Fulton subsequently

called Meneses and Barraza to arrange for shipments of heroin.

Fulton’s testimony was largely corroborated at trial by FBI

Special Agent Tim Ervin.

Ana Alvarez Rios testified that she had known Brown since

2003 and had introduced him to Meneses while in Panama on

November 3, 2004. She also testified that, at Meneses’ request,

she carried two kilograms of heroin from Panama to New York

on December 4, 2004, and had instructions to give Fulton and

Brown one kilogram apiece. After arriving at Olivia Williams’

apartment, Rios spoke with Brown to arrange a time for him to

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pick up his kilogram of heroin. According to Rios, appellant

came to Williams’ apartment and Rios handed him the heroin

herself.

On January 4, 2005, Fulton told Meneses that he had a large

sum of money to pay Meneses for the heroin and that someone

needed to pick it up from Washington, D.C. Meneses replied

that he had an “associate” from Baltimore who might be able to

pick up the money. Later that day, Fulton received a phone call

from a man who identified himself as “Gordo” and said he

would pick up the money for Meneses. Subsequent phone calls

between Fulton, Meneses, and “Gordo” were made to coordinate

the pickup. Recordings and transcripts of these phone calls were

entered into evidence at trial. Trial Tr. (1/4/06) at 319-23.

On January 6, 2005, “Gordo” and Fulton arranged to meet

at a McDonald’s parking lot in northeast Washington, D.C. The

FBI had intended to use this meeting as an opportunity to “lure

a member of the conspiracy into Washington” and arrest him.

Trial Tr. (1/3/06) at 164. At the McDonald’s, appellant

identified himself as “Gordo” and got into Fulton’s car. While

Brown was in the car, Fulton spoke with Meneses on a cell

phone and asked Meneses if the gentleman in the car – whom

Fulton knew as “Gordo” – was “his [Meneses’] man.” Meneses

responded in the affirmative, and Fulton passed Brown the cell

phone so that appellant could also confirm speaking with

Meneses. When appellant exited the vehicle, he was

immediately arrested.

At the time Brown was arrested, he had a cell phone in his

hand. The last number dialed on the phone was a number in

Panama, which was labeled “Cholito’s new cell” in the phone’s

internal address book. Four other cell phones were found in the

car Brown was driving. Two notebooks were also recovered

from Brown’s vehicle. In one of the notebooks, there was a

notation that read “Cholo” and, below that, Fulton’s phone

number was listed. The other notebook contained Barraza’s

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phone number with “Alexis” written underneath it, several

references to “Cholo,” the words “95 South” (directions from

New York to Washington, D.C. that Fulton had previously

provided “Gordo” by telephone), the date “1/6/05,” and another

notation of Fulton’s phone number. The notebooks and the

phones were entered into evidence at trial. Trial Tr. (1/3/06) at

166-68, 171-72.

Barraza was also arrested on January 6, 2005, though

Barraza was apprehended in Miami. Barraza testified that on

“two or three” occasions in 2004 he had received phone calls

from appellant, instructing Barraza to call Meneses, and Barraza

likewise had called appellant to relay similar messages from

Meneses. However, Barraza had never seen Brown until they

met in the Washington, D.C. jail one month after their arrests.

Barraza testified that Brown had revealed to him that Brown was

the one with whom Barraza had previously spoken by phone,

and that Brown had told Barraza that Meneses was “his friend

also.” Trial Tr. (1/4/06) at 225.

Besides Special Agent Ervin, Barraza, Rios, Williams, and

Fulton, the only other Government witness was Kendrick

Eastmond. Eastmond testified that before his 2002 arrest, he

and Brown had participated in 90-100 drug transactions.

According to Eastmond, he and Brown would travel between

Richmond, Virginia and Brooklyn, New York two to three times

a month to transport crack cocaine. Eastmond and Brown also

traveled to Panama together to establish contacts and seek better

prices for cocaine. Eastmond’s testimony was offered solely for

the purpose of proving Brown’s knowledge and intent to

participate in a drug-related conspiracy before his arrest; the

Government did not argue that Eastmond had any connection to

the Meneses conspiracy.

The only witness the defense called was FBI Special Agent

Tucker Vanderbrunt. He testified that Brown had been outside

of the United States from November 18, 2004 until December

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18, 2004. Defense counsel’s closing argument challenged the

credibility of the Government’s witnesses while primarily

asserting that the Government could not prove that Brown had

the requisite level of knowledge or intent. As defense counsel

stated:

[W]e don’t really conflict in much of what happened in

this case. If you think I’m going to step up here and tell

you that Xavier Brown did not come down to Washington,

D.C. to get money, that’s not going to happen. Because he

did. He did come down to Washington, D.C. to pick up

some money.

The question is, when he came down here, did he know

what he was doing? Did he come down with the knowledge

that he was picking up money for a drug conspiracy, and

did he come down with the intent to participate in this

conspiracy?

Trial Tr. (1/5/06) at 423.

During his opening statement and closing argument before

the District Court, the prosecutor stated that the Government’s

case was “unquestioned,” arguably noting for the jury that

appellant was not testifying in his own behalf. Defense counsel

did not object to these statements. The prosecutor also made

some comments that could have been construed by the jury to

mean that the guilty pleas of appellant’s co-conspirators gave

evidence of appellant’s guilt. The defense counsel did not

object to these comments, nor did he ask the trial judge to warn

the jurors that appellant could not be found guilty by mere

association with his co-conspirators. Finally, on several

occasions, the prosecutor made statements suggesting that he

could verify the truthfulness of a witness’ testimony and offered

his personal judgment of the credibility of witnesses. Defense

counsel never objected to these statements at trial.

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The jury returned its guilty verdict on January 6, 2006.

Appellant then filed a timely appeal.

II. ANALYSIS

A. Standard of Review

Defense counsel did not object to any of the allegedly

improper statements during trial, nor did counsel request a

specific instruction regarding the co-conspirators’ guilty pleas.

We review unpreserved claims only for plain error, in

accordance with Federal Rule of Criminal Procedure 52(b). The

plain error standard requires appellant to demonstrate “(1) a

legal error that was (2) ‘plain’ (a term that is synonymous with

‘clear’ or ‘obvious’), and that (3) affected [his] substantial

rights.” United States v. Sullivan, 451 F.3d 884, 892 (D.C. Cir.

2006) (citing Olano, 507 U.S. at 732-34). “If all three

conditions are met, we retain discretion to notice a forfeited

error, but only if (4) the error seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. at

892-93 (citing Olano, 507 U.S. at 735-36). Appellant has the

burden of proving each element of the plain error standard.

Olano, 507 U.S. at 734.

In explaining the third element of the plain error standard of

review, the Supreme Court has indicated that “in most cases it

means that the error must have been prejudicial: It must have

affected the outcome of the district court proceedings.” Id. In

assessing whether a clear error is also prejudicial, we “typically

look[] to the centrality of the issue affected, the severity of the

prosecutor’s misconduct, the steps taken to mitigate the

misconduct, and the closeness of the case.” United States v.

Venable, 269 F.3d 1086, 1091 (D.C. Cir. 2001); see also United

States v. Gartmon, 146 F.3d 1015, 1026 (D.C. Cir. 1998). Many

of Brown’s claims do not present clear errors, if they present

errors at all. In any event, we are confident that no error

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claimed here affected Brown’s substantial rights under the third

element of the plain error standard.

B. Comments Related to Appellant’s Decision Not to Testify

Brown argues that several statements by the prosecutor

improperly called attention to the fact that he chose not to testify

in his own defense. For example, the prosecutor repeatedly

referred to portions of the Government’s case as

“unquestioned.” See, e.g., Trial Tr. (1/3/06) at 105, 106, 107,

109, 110; Trial Tr. (1/5/06) at 433. These comments, according

to Brown, served to shift the burden of proof, because jurors

were led to believe that Brown was required to testify in order

to avoid conviction.

The Fifth Amendment states that “[n]o person . . . shall be

compelled in any criminal case to be a witness against himself.”

U.S. CONST. amend. V. The Supreme Court has held that the

Fifth Amendment therefore prohibits “comment by the

prosecution on the accused’s silence.” Griffin v. California, 380

U.S. 609, 615 (1965). The Court’s rationale for this principle is

simple: “[C]omment on the refusal to testify is a remnant of the

‘inquisitorial system of criminal justice’ which the Fifth

Amendment outlaws. It is a penalty imposed by courts for

exercising a constitutional privilege. It cuts down on the

privilege by making its assertion costly.” Id. at 614 (citation and

footnote omitted). In applying Griffin, we have held that

“[p]rosecutorial comment violates [the Fifth Amendment] if the

language used, in context, is such that the jury would naturally

and necessarily take it to be a comment on the failure of the

accused to testify.” United States v. Catlett, 97 F.3d 565, 573

(D.C. Cir. 1996) (internal quotation marks omitted).

The statements in the prosecutor’s opening statement to

which Brown now objects do not meet the Catlett threshold for

improper commentary. First, the references to “unquestioned”

evidence in the prosecutor’s opening statement occurred before

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the jury learned that Brown would not testify. Indeed, Brown’s

decision not to testify was only disclosed to the prosecution and

to the District Court at the close of the prosecution’s case. Trial

Tr. (1/5/06) at 398. It strains credulity to believe that jurors

would have “naturally and necessarily” connected any of the

prosecutor’s earlier references to “unquestioned” evidence with

Brown’s decision not to testify two days later.

Furthermore, all but one of the statements from the

prosecutor’s closing argument that Brown finds objectionable do

not directly implicate Brown’s decision not to testify. “Neither

courts nor juries parse extemporaneous remarks in closing

argument as closely as sentences in carefully drafted legal

documents.” Venable, 269 F.3d at 1090. Thus, “[i]n assessing

the import of a statement made in closing argument, context is

key.” Id. The only statement of dubious propriety was the

prosecutor’s assertion in rebuttal that “[the defendant’s] intent

is unquestioned in this case.” Trial Tr. (1/5/06) at 433. To be

sure, a prosecutor must have the ability to respond to a

defendant’s claim during closing argument that the Government

has not established his intent. See United States v. Monaghan,

741 F.2d 1434, 1439 (D.C. Cir. 1984). Nevertheless, the

prosecutor’s statement here was error because the non-testifying

defendant was the only person in a position to refute the

statement. As appellant contends, jurors “might logically have

construed the prosecutor’s statement as an allusion to [the

defendant’s] silence.” Monaghan, 741 F.2d at 1438. It is

doubtful, however, that this erroneous statement rose to the level

of a clear error, and it is clear that the statement did not

prejudice the outcome of the case.

The trial judge mitigated the impact of the prosecutor’s

remark by instructing the jury that “[t]he burden is on the

Government to prove the defendant guilty beyond a reasonable

doubt. This burden of proof never shifts throughout the trial.

The law does not require a defendant to prove his innocence or

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to produce any evidence.” Trial Tr. (1/5/06) at 439. The

District Court judge went on to state that “Xavier Brown has

chosen to exercise his right to remain silent. You must not hold

this decision against him . . . . Most importantly, you must not

draw any inference of guilt from the defendant’s decision not to

testify.” Id. at 440. Given that the prosecutor’s statement was

a veiled reference at best – if a reference at all – to the

defendant’s silence, “[t]hese [jury] instructions would have

cured any confusion caused by the prosecutor’s remarks.”

Catlett, 97 F.3d at 573. On this record, including the fact that

the weight of the evidence against appellant was significant, we

find no plain error.

C. Inferences from the Guilty Pleas of Co-Conspirators

Brown argues that the prosecutor made improper comments

that invited the jury to consider the guilty pleas of other

members of the conspiracy as substantive evidence of Brown’s

guilt. In the prosecutor’s closing argument, he stated,

There’s no evidence that Olivia Williams, Ana Rios,

Mr. Fulton, Mr. Eastmond, no evidence that anyone had an

ax to grind with this defendant. . . .

So when you evaluate their testimony, surely you can

ask, well, did they do what the Government said they did?

The answer is yes. In that train, that conspiratorial train,

they have admitted their portion. And every defendant has

a right to have a trial by jury, and for a jury to find them

guilty on their portion beyond a reasonable doubt. In this

case I ask you, based solely on the evidence, to find this

defendant guilty for his portion. And his portion is the

conspiracy of possession with intent to distribute, and

possession and distribution of a kilogram or more of heroin.

That’s this defendant’s part.

Trial Tr. (1/5/06) at 422. Brown contends that this statement

impermissibly urged his guilt by reference to his mere

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association with his co-conspirators. Brown also alleges that,

upon hearing the prosecutor’s allegedly improper argument, the

District Court should have promptly instructed the jury sua

sponte that the co-conspirators’ guilty pleas did not imply

Brown’s guilt by mere association, and the trial judge’s failure

to do this was error.

Appellant’s claims fail. First, it is doubtful whether the

prosecutor’s statements rise to the level of clear error. In United

States v. Tarantino, 846 F.2d 1384 (D.C. Cir. 1988), this court

stated that “[a] government witness’ guilty plea obviously may

not be used as substantive evidence of the guilt of defendants,

but the plea is equally obviously admissible to show the witness’

acknowledgment of his role in the offense and to reflect on his

credibility.” Id. at 1404-05. Although this is a fine line for

prosecutors to walk, in this case the prosecutor properly

referenced the plea agreements in the context of a larger

discussion about the evidence of a conspiracy generally and the

credibility of Government witnesses. After all, Brown’s defense

was in large part that the Government had failed to establish his

knowledge and intent because the Government’s witnesses had

entered into plea agreements that cast doubt on their credibility.

See, e.g., Trial Tr. (1/3/06) at 115.

In any event, Brown has failed to demonstrate that the

prosecutor’s statements were prejudicial, most particularly

because the trial court judge provided instructions regarding the

testimony of witnesses who had signed plea agreements. The

jurors were instructed that they could “consider whether a

witness who has entered into [a plea] agreement has an interest

different from any other witness. A witness who realizes that he

or she may be able to obtain his or her own freedom, or to

receive a lighter sentence by giving testimony, may have a

motive to lie.” Trial Tr. (1/5/06) at 443. The District Court

judge also instructed the jurors: “In deciding whether an

agreement existed, you may consider the acts and statements of

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all the alleged participants. In deciding whether the defendant

became a member of that conspiracy, you may consider only the

acts and statements of that particular defendant.” Id. at 446.

Because these instructions nullified any suggestion that

appellant could be found guilty on the basis of his mere

association with the co-conspirators, they effectively mitigated

the impact of the disputed statements made by the prosecutor.

Finally, contrary to appellant’s allegation, the fact that the

trial court did not provide a jury instruction sua sponte, during

the prosecutor’s closing argument, did not constitute error. The

District Court judge provided instructions to the jury at the close

of trial that sufficiently addressed the Government’s burden of

proof and the limited significance of the plea agreements. There

was no plain error.

D. Comments Vouching for the Credibility of Government

Witnesses

Brown also contends that the prosecutor improperly

vouched for the truthfulness of Government witnesses. He

advances this claim on two grounds. First, appellant argues that

the prosecutor improperly referred to the plea agreements that

witnesses had signed by implying that Government counsel

could independently verify the truthfulness of the witnesses who

had signed these agreements. Second, appellant alleges that the

prosecutor repeatedly injected his personal assessment of the

credibility of various witnesses and of Brown’s guilt into his

presentation of the case.

Brown’s first argument is unavailing. This court has held

that plea agreements can be introduced by the prosecution and

referred to in their entirety, because so doing does not

improperly bolster the witness who signed the plea agreement.

United States v. Spriggs, 996 F.2d 320, 324 (D.C. Cir. 1993).

One of our sister circuits has suggested that the “[u]se of the

‘truthfulness’ portions of [plea] agreements becomes

13

impermissible vouching . . . when the prosecutors explicitly or

implicitly indicate that they can monitor and accurately verify

the truthfulness of the witness’ testimony.” United States v.

Bowie, 892 F.2d 1494, 1498 (10th Cir. 1990). Under this

standard, two comments by the prosecutor in this case are

arguably objectionable – (1) when the prosecutor asked Olivia

Williams “if it is determined that you have not told the truth,

ma’am, will this plea agreement be in effect if you lie?” Trial Tr.

(1/4/06) at 286, and (2) when the prosecutor asked Gregory

Fulton “if it’s determined that you have not told the truth at any

time, sir, will this plea agreement be voided?” id. at 340. In

suggesting that the witnesses’ plea agreements would be

automatically voided if they lied, the prosecutor arguably

implied that he was capable of monitoring the witnesses’

truthfulness.

Even assuming, arguendo, that these statements constitute

clear error, appellant has not demonstrated that the statements

affected his substantial rights. Olivia Williams was an ancillary

witness in the prosecution’s case against Brown, and Gregory

Fulton’s testimony was mostly anticipated by the testimony of

FBI Special Agent Ervin. The jury did not have to assign any

weight to the testimony of either witness in order to find Brown

guilty, and thus the prosecution’s misstatements did not relate to

a central issue in the case. Furthermore, the trial court instructed

the jurors:

You are the sole judges of the facts. You alone will decide

what weight to give to the evidence presented during the

trial, you decide the value of the evidence, and you decide

the believability of the witnesses.

Trial Tr. (1/5/06) at 436. This mitigated any harm that might

have come from the prosecutor’s comment.

Brown’s second vouching allegation raises a more

troublesome issue. On the record here, there is little doubt that

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the prosecutor committed serious errors when he injected his

personal assessments of the credibility of witnesses into his

presentation of the case. During his closing argument, the

prosecutor repeatedly stated that he “believed” various

Government witnesses. With respect to Ana Alvarez Rios, the

prosecutor stated:

I believe the evidence and the testimony of Mrs. Ana

Alvarez Rios, I believe her testimony regarding this

defendant and his actions proves him guilty beyond a

reasonable doubt. And her testimony had a ring of truth or

a ring of trustworthiness that you could take to the bank.

Trial Tr. (1/5/06) at 414. These comments constituted

impermissible vouching.

At oral argument before this court, Government counsel

conceded that the prosecutor’s argument “could have been

phrased more artfully.” In truth, as a member of the court

pointed out, the prosecutor’s argument “could hardly have been

phrased more poorly!” Recording of Oral Argument, 13:35-

13:40.

The rule against vouching is well established. As this court

made clear in Harris v. United States, 402 F.2d 656 (D.C. Cir.

1968), “it [is] for the jury, and not the prosecutor, to say which

witnesses [are] telling the truth. Neither counsel should assert

to the jury what in essence is his opinion on guilt or innocence.”

Id. at 658. See also MODEL RULES OF PROF’L CONDUCT R.

3.4(e) (2002) (prohibiting a lawyer from “stat[ing] a personal

opinion as to the justness of a cause, the credibility of a witness,

the culpability of a civil litigant or the guilt or innocence of an

accused.”).

The rule against vouching is also very important, because

it seeks to protect the integrity of the trial process and ensure

that judgments and verdicts are grounded in evidentiary facts:

15

[T]he purpose of the rule forbidding expression of opinion

of counsel on the ultimate issue is to keep the focus on the

evidence and to eliminate the need for opposing counsel to

meet “opinions” by urging his own contrary opinion. The

impropriety of substituting an attorney’s view of the case

for the evaluation of the evidentiary facts has been

discussed by Drinker . . . :

“There are several reasons for the rule, long

established, that a lawyer may not properly state his

personal belief either to the court or to the jury in the

soundness of his case. In the first place, his personal

belief has no real bearing on the issue; no witness

would be permitted so to testify, even under oath, and

subject to cross-examination, much less the lawyer

without either. Also, if expression of personal belief

were permitted, it would give an improper advantage

to the older and better known lawyer, whose opinion

would carry more weight, and also with the jury at

least, an undue advantage to an unscrupulous one.

Furthermore, if such were permitted, for counsel to

omit to make such a positive assertion might be taken

as an admission that he did not believe in his case.” H.

DRINKER, LEGAL ETHICS 147 (1953) (footnotes

omitted).

Harris, 402 F.2d at 658. Impermissible vouching is particularly

dangerous when it is done by prosecutors:

The prosecutor’s vouching for the credibility of witnesses

and expressing his personal opinion concerning the guilt of

the accused pose two dangers: such comments can convey

the impression that evidence not presented to the jury, but

known to the prosecutor, supports the charges against the

defendant and can thus jeopardize the defendant’s right to

be tried solely on the basis of the evidence presented to the

jury; and the prosecutor’s opinion carries with it the

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imprimatur of the Government and may induce the jury to

trust the Government’s judgment rather than its own view

of the evidence.

United States v. Young, 470 U.S. 1, 18-19 (1985) (emphasis

added). Juries are aware that prosecutors have “as much [a]

duty to refrain from improper methods calculated to produce a

wrongful conviction as [they have] to use every legitimate

means to bring about a just one.” Berger v. United States, 295

U.S. 78, 88 (1935), overruled on other grounds by Stirone v.

United States, 361 U.S. 212 (1960). Therefore, “improper

suggestions, insinuations and, especially, assertions of personal

knowledge [by prosecutors] are apt to carry much weight against

the accused when they should properly carry none.” Id. A

prosecutor is barred neither from giving a strong closing

argument, nor from responding to a defendant who questions the

credibility of the Government’s witnesses “in his own closing

argument and throughout the trial,” United States v. Robinson,

59 F.3d 1318, 1323 (D.C. Cir. 1995), but counsel must “stick[]

to the evidence and refrain[] from giving his personal opinion.”

United States v. Dean, 55 F.3d 640, 665 (D.C. Cir. 1995).

It is clear in this case that the prosecutor erred in expressing

his personal beliefs regarding appellant’s guilt. If defense

counsel had raised a timely objection, the trial judge would have

been afforded an opportunity to admonish the prosecutor and

instruct the jury to disregard his expressions of personal belief.

And if the trial judge had failed to address the situation so as to

render any error harmless, then the prosecutor’s misdeeds would

have resulted in reversible error. As it stands, however, defense

counsel did not object, so the prosecutor’s error must be

assessed pursuant to the plain error standard of review. Under

that standard, we hold that there was an “error” that was “plain,”

but we cannot find that the error affected appellant’s substantial

rights or that it seriously affected the fairness, integrity, or

public reputation of the judicial proceeding. There are two

17

reasons for this: First, the weight of the evidence against Brown

was quite strong. And, second, although the trial judge did not

precisely address the prosecutor’s errors, he did give instructions

to the jury making it clear that the prosecutor’s personal beliefs

were irrelevant. See, e.g., Trial Tr. (1/5/06) at 436 (“You

[jurors] are the sole judges of the facts. You alone will decide

what weight to give to the evidence presented during the trial,

you decide the value of the evidence, and you decide the

believability of the witnesses.”); id. at 438 (“The statements and

arguments of the lawyers are not evidence. They are only

intended to assist you in understanding the evidence.”); id. at

441 (“You are the sole judge of the credibility of the witnesses;

in other words, you alone are to determine whether to believe

any witness, and the extent to which any witness should be

believed.”). The plain error standard imposes a high threshold

on claims of reversible error, and we cannot say the prosecutor’s

misstatements in this case cross it.

E. Cumulative Effect of Alleged Improprieties

We have previously stated that “although certain errors

standing alone might be insufficient to overturn a verdict, these

errors may exert a cumulative effect such as to warrant reversal.

The critical inquiry is an analysis of the ‘probable impact,

appraised realistically, of the particular [errors] upon the jury’s

factfinding function.’” United States v. Jones, 482 F.2d 747,

749 n.2 (D.C. Cir. 1973) (quoting United States v. Wharton, 433

F.2d 451, 457 (D.C. Cir. 1970)) (alteration in original). As

noted above, many of the prosecutor’s statements to which

appellant now objects did not constitute clear error, and the few

statements that did result in clear error were not prejudicial. The

individual effect of each improper comment on the jury’s

factfinding function was negligible, primarily because the

Government’s case was strong and because the District Court’s

instructions to the jury mitigated any harm caused by

prosecutorial missteps. Accordingly, we hold that the

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cumulative effect of the prosecutor’s errors does not warrant

reversal pursuant to the plain error standard of review.

III. CONCLUSION

For the reasons given above, the judgment of the District

Court is affirmed.

So ordered.