                                                                         FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                    UNITED STATES COURT OF APPEALS                    March 3, 2008
                                                                 Elisabeth A. Shumaker
                                 TENTH CIRCUIT                       Clerk of Court



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,                     No. 05-3476
          v.                                                D. Kan.
 AYAD ABO-SEBA,                                  (D.C. No. 03-CR-20033-CM)

               Defendant - Appellant.


                            ORDER AND JUDGMENT *


Before O’BRIEN, HOLLOWAY, and McCONNELL, Circuit Judges.



      Ayad Abo-Seba was convicted by a jury of two counts of assault with a

dangerous weapon with intent to do bodily harm in violation of 18 U.S.C.

§ 113(a)(3). He was sentenced to 87 months imprisonment. He appeals from his

convictions, alleging various trial errors. In a supplemental opening brief, Abo-

Seba also raises an ineffective assistance of counsel claim. Because this is not

one of the “rare instances” in which the record is sufficiently developed, we

decline to address his ineffective assistance of counsel claim and dismiss it


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
without further discussion. See United States v. Galloway, 56 F.3d 1239, 1240

(10th Cir. 1995) (en banc). We affirm in all other respects.

                         I. FACTUAL BACKGROUND 1

      On March 2, 2003, Abo-Seba was an inmate housed in the United States

Penitentiary in Leavenworth, Kansas. When Correctional Officer Richard Harris

attempted to serve Abo-Seba his meal, Abo-Seba spit in his face. Harris reported

the incident to his supervisor, Edward McIntire, who reported it to Lieutenant

Randall Simek. Simek, along with Harris, McIntire and Lieutenant Dennis

Treadway, went to Abo-Seba’s cell, where they observed Abo-Seba crying and

cutting himself with a razor. Simek attempted to calm Abo-Seba and get him to

relinquish the razor. Abo-Seba refused to give up the razor, instead raising the

razor to his neck and threatening to kill himself. At that point, Simek decided to

enter the cell.

      Once the officers entered the cell, Abo-Seba’s demeanor changed—he

turned the razor from himself to the officers. He lunged towards Simek with the

razor, barely missing Simek’s chest. However, Abo-Seba caught the side of

Simek’s neck with the razor on the back swing. Simek and Treadway reached for

their flashlights. Treadway hit Abo-Seba once with his flashlight and hit the

razor a few times. The officers then charged Abo-Seba, pinning him against a

      1
       Because Abo-Seba was convicted, we recite the facts in the light most
favorable to the government. United States v. Duran, 133 F.3d 1324, 1326 n.1
(10th Cir. 1998) (quotations omitted).

                                         -2-
wall and removing the razor from his hand. Once the razor was secured, they

restrained Abo-Seba and took him to the prison hospital. Throughout the

encounter and en route to the hospital, Abo-Seba made verbal threats such as

“Death to Americans,” “Fuck you American pigs” and “I’ll kill you, I’ll kill

myself[,] I’ll kill you all.” (R. Vol. VII at 18, 30, 67.)

                       II. PROCEDURAL BACKGROUND

      Abo-Seba was indicted with assaulting Simek with a dangerous weapon

with intent to do bodily harm in violation of 18 U.S.C. § 113(a)(3) (Count I) and

assaulting Treadway with a dangerous weapon with intent to do bodily harm also

in violation of 18 U.S.C. § 113(a)(3) (Count II). The court appointed an attorney

to represent him. Several months later, the court granted the attorney’s motion to

withdraw based on Abo-Seba’s refusal to meet with him; a new attorney was

appointed. Thereafter, the court granted the attorney’s request for Abo-Seba to

undergo a competency evaluation. The examiners concluded Abo-Seba did not

suffer from a mental disorder, was competent to stand trial and was able to assist

in his defense. The court agreed with these conclusions and set the case for trial.

      After the jury had been picked and sworn, Abo-Seba informed the court he

wished to plead guilty to Count II. The government agreed to dismiss Count I in

exchange for his plea. The court proceeded with a change of plea hearing. After

a thorough inquiry concerning Abo-Seba’s rights, the court accepted his guilty

plea and set the matter for sentencing. Thereafter, defense counsel sought leave

                                           -3-
to withdraw based on Abo-Seba’s desire to withdraw his guilty plea, which would

potentially require his counsel to be called as a witness. The court granted the

request and appointed new counsel.

      Subsequently, Abo-Seba filed a motion to withdraw his guilty plea,

claiming he pled guilty out of fear of retaliation from prison officials. After a

hearing, the court allowed Abo-Seba to withdraw his plea. He proceeded to trial.

The jury found him guilty of both counts.

      At the first sentencing hearing, Abo-Seba’s counsel moved to withdraw

because Abo-Seba would not cooperate, calling counsel a coward, a criminal and

an agent of the government. The court granted the motion and continued the

sentencing hearing so yet another attorney could be appointed. New counsel was

appointed and the parties re-appeared for sentencing. As the court was

announcing the sentence, Abo-Seba attacked the probation officer. After a recess

during which Abo-Seba was removed from the courtroom, the court described the

attack on the record:

      [Abo-Seba] rose from the [defense] table, had an object in his hand, I
      believe it was either a pen or a pencil, lunged towards the probation
      officer . . . and actually grabbed ahold of her collar, her blouse, and
      then did several striking motions towards her with the object in his
      hand. Fortunately . . . the marshals . . . immediately secured him, . .
      . [wrestling] him forcibly to the ground . . . . He has been physically
      restrained and physically removed from the courtroom. In regards to
      our sentencing hearing, I would note for the record that it appears
      that, through his assault or his physical attack of the probation
      officer, she did sustain some minor physical injuries. She . . . has
      either abrasions or scratches on her shoulder blade or her back . . . .

                                         -4-
(R. Vol. III at 29-30.) Based on this incident, the court decided, without

objection, to resume the sentencing hearing outside Abo-Seba’s presence. The

court sentenced him to 87 months imprisonment. 2

                                 III. DISCUSSION

      Abo-Seba argues: (1) the court erred in failing to sua sponte instruct the

jury on self-defense, (2) the court erroneously allowed prejudicial captions on

photographs to be admitted into evidence and (3) the government materially

misstated the law and facts during its closing argument. However, as he

concedes, he never requested or tendered a self-defense instruction before his

actual trial nor did he object to the court’s failure to provide such instruction. 3

He also did not object to the admission of the captions or the government’s

alleged misstatements during closing arguments. Therefore, our review of all

three issues is for plain error. United States v. Gonzalez-Montoya, 161 F.3d 643,

650 (10th Cir. 1998) (government’s misstatements during argument); United

States v. Hatatley, 130 F.3d 1399, 1405 (10th Cir. 1997) (denial of jury



      2
        As a result of the courtroom incident, Abo-Seba was charged with assault
with a dangerous weapon on an officer or employee of the United States resulting
in bodily injury in violation of 18 U.S.C. § 111(a)(1), (b).
      3
        Before Abo-Seba’s first trial, which was vacated based on his desire to
plead guilty, his attorney filed proposed jury instructions including a self-defense
instruction. However, when Abo-Seba later withdrew his guilty plea and
proceeded to trial, his new attorney did not tender a self-defense instruction or
renew the prior request for such instruction.

                                          -5-
instruction); United States v. Gomez, 67 F.3d 1515, 1524 (10th Cir. 1995)

(admission of evidence). Under the plain error analysis, a defendant must show

there was “(1) error, (2) that is plain, and (3) that affects substantial rights. If all

three conditions are met, an appellate court may then exercise its discretion to

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

integrity or public reputation of judicial proceedings.” United States v. Duran,

133 F.3d 1324, 1330 (10th Cir. 1998) (quotations omitted).

A. Failure to Instruct on Self-Defense

      Abo-Seba argues the district court erred in failing to sua sponte instruct the

jury on self-defense because the evidence supported such instruction. He testified

the guards entered his cell and beat him without provocation and from that point

on, his sole intent was self-protection. He asserts that had the jury credited this

testimony, it could have found he acted in self-defense. He further claims he was

not required to testify he intended to injure the guards in order to be entitled to a

self-defense instruction. Rather, his testimony that he struggled with the guards

after they assaulted him was sufficient to justify the instruction.

      The government argues the court did not err in failing to instruct the jury

on self-defense because there was no evidence to support such instruction. It

contends Abo-Seba’s subjective belief that the guards were going to assault him

upon entering his cell is insufficient to sustain a self-defense claim. Additionally,

during his trial testimony, Abo-Seba denied assaulting the officers with a razor or

                                            -6-
in any other manner. The government asserts,“‘I did not do it’ is an entirely

different position from ‘I did it, but I acted in self-defense.’” (Appellee’s Br. at

10.) Therefore, it argues neither the law nor the evidence supported a self-

defense instruction. 4

      In general, “a defendant is entitled to an instruction as to any recognized

defense for which there exists evidence sufficient for a reasonable jury to find in

his favor.” Mathews v. United States, 485 U.S. 58, 63 (1988). This is true even

if the defendant seeks instructions on inconsistent defenses: “[A] criminal

defendant is entitled to instructions on any defense, including inconsistent ones,

that find support in the evidence and the law and failure to so instruct is

reversible error.” United States v. Trujillo, 390 F.3d 1267, 1274 (10th Cir. 2004);

see also Mathews, 485 U.S. at 63-65 (rejecting government’s claim that defendant

was not entitled to an entrapment instruction because it was inconsistent with his

      4
        Abo-Seba points out the government’s position on appeal contradicts the
position it took in the district court. Specifically, in its memorandum in support
of an obstruction of justice sentencing adjustment based on Abo-Seba perjuring
himself at trial, the government stated: “If [Abo-Seba’s] testimony was accepted
by the jury, [it] could have acquitted [him] believing he was acting in self-
defense.” (R. Vol. I, Doc. 98 at 3.) This could potentially be the basis for a
judicial estoppel argument. See New Hampshire v. Maine, 532 U.S. 742, 749
(2001) (stating judicial estoppel “generally prevents a party from prevailing in
one phase of a case on an argument and then relying on a contradictory argument
to prevail in another phase”) (quotations omitted). We need not address it,
however, because Abo-Seba has not adequately briefed it. See Utahns for Better
Transp. v. United States Dep’t of Transp., 305 F.3d 1152, 1175 (10th Cir. 2002)
(“[I]ssues will be deemed waived if they are not adequately briefed. ”). He
merely points out the inconsistency; he has not sought estoppel or cited
supporting legal authority.

                                         -7-
denial of liability).

       The government’s evidence did not support a self-defense instruction. That

evidence demonstrated Abo-Seba was the aggressor and his assaultive actions

were not taken to defend himself. See 2 W AYNE R. L A F AVE , S UBSTANTIVE C RIM .

L AW , § 10.4(e) (2d ed. 2003) (“It is generally said that one who is the aggressor

in an encounter with another . . . may not avail himself of the defense of

self-defense.”). Specifically, the guards involved in the incident testified that

before they took any action toward Abo-Seba to remove the razor from him, other

than attempting to calm him and get him to drop the razor, Abo-Seba swung the

razor at them.

       Abo-Seba does not contend the government’s evidence supported a self-

defense instruction. Rather, he relies exclusively on his testimony, as follows.

He was born in Iraq but has lived in the United States since 1994. When Simek,

Treadway, McIntire and Harris came to his cell without a camera, priest or

physician assistant, he knew, based on past experience, they were coming to hurt

him and he was scared. He told the guards if they were coming to beat him, he

would hurt himself. The guards entered the cell. Specifically, he said:

       [Abo-Seba:] When they opened the door and entered towards me, I
       started backing, going back, and trying to cut myself to show them
       that I’m serious and there was crying, crying because I’m scared.

       [Defense Attorney:] And what happened after that?

       [Abo-Seba:] They came to me, all of them, they -- I was hurting

                                         -8-
      cutting myself. I didn’t try to cut any of them and there was backing
      up so they hold my right hand where the blade was there. Then a
      flashlight, they start beating me on my head and the baton, they were
      having a baton, black stick, beating me on my head and on my back
      and they were hitting me with the fist. They put me on the mattress.
      They chained me, they handcuffed me and chained my legs and after
      they took off my clothes they took me to the hospital only with the
      underwear.

      [Defense Attorney:] And did you try to cut any of them?

      [Abo-Seba:] No.

      [Defense Attorney:] And had they immediately pinned your arm
      with the knife in it?

      [Abo-Seba:] I didn’t resist, actually when they hold my hand I didn’t
      resist.

(R. Vol. VII at 80-81.)

      And, on cross-examination:

      [Prosecutor:] And it’s your testimony here before the jury that you
      did not resist when the officers came in?

      [Abo-Seba:] No, I never resist but I was afraid.

      [Prosecutor:] . . . And you’re denying that you swung the razor at
      the officers?

      [Abo-Seba:] I was scared of them not to hit me.

      [Prosecutor:] I’m sorry. Let me ask you this. Did you swing the
      razor at the officers?

      [Abo-Seba:] No.

      [Prosecutor:] And did you cut Officer Simek [referring to a picture
      of Simek’s neck injury] on the neck there under the ear? The
      question is yes or no, did you cut him?

                                        -9-
      [Abo-Seba:] This is a nail scratch not a razor.

      [Prosecutor:] So you’re saying you did not cut him?

      [Abo-Seba:] No.

      [Prosecutor:] And you didn’t try to cut anybody else, . . . yes or no?
      Yes or no, did you try to cut anybody else?

      [Abo-Seba:] No, I did not try. Mr. Simek, he knows that I never
      tried to do anything wrong for him.

(Id. at 87-88.)

      In determining whether this testimony supported a self-defense instruction,

United States v. Goodface, 835 F.2d 1233 (8th Cir. 1987), and United States v.

Bowman 720 F.2d 1103 (9th Cir. 1983), are instructive. In Goodface, Goodface

was charged with, inter alia, assault with a dangerous weapon based on

allegations he threatened and shot an unarmed victim. According to the

government’s evidence Goodface emerged from his vehicle with a rifle, pointed it

at the victim, approached the victim and threatened to blow the victim’s head off.

Goodface testified he never pointed the rifle at the victim but instead the victim

grabbed the rifle and tried to take it away. When the victim did so, a struggle

ensued and the gun went off. Goodface claimed the district court erred in failing

to instruct the jury on self-defense. The Eighth Circuit determined neither the

government’s nor Goodface’s evidence supported such instruction and such

instruction would be improper “because Goodface denied having taken any


                                        -10-
defensive action, which might otherwise constitute assault, in fear of his safety.”

835 F.2d at 1235.

      Similarly, in Bowman, the Ninth Circuit rejected a claim for a self-defense

instruction. There, the government alleged the victim was in an outhouse,

Bowman forced himself in, pulled the victim out, threatened to take her hostage

and put a knife to her throat when she resisted and began to cry for help.

Bowman, on the other hand, testified the victim started to scream upon seeing him

and he merely placed his arms around her in an attempt to calm her. The Ninth

Circuit concluded Bowman’s “theory of self defense is unsupportable absent the

admission of any defensive actions taken by him in fear of his safety.” 720 F.2d

at 1105.

      Like the defendants in Goodface and Bowman, Abo-Seba denied taking any

defensive actions against the guards in fear of his safety. The court did not err in

failing to sua sponte give a self-defense instruction.

B. Prejudicial Captions on Photographs

      During trial, the government admitted into evidence ten photographs,

Government Exhibits 2-11, taken by Lieutenant Treadway. Each photograph

contained a caption indicating who took the photograph, the date and time the

photograph was taken, and a brief description. Abo-Seba does not complain

about the admission of the photographs, only the admission of the captions on

Exhibits 3-8 and 10. The captions read in relevant part:

                                         -11-
      Exhibit 3 (picture of Lieutenant Simek’s neck injury): “Lt. Simek, assaulted

            by inmate ABO-SEBA”

      Exhibit 4 (picture of Lieutenant Simek): “Lt. Simek, assaulted by inmate

            ABO-SEBA”

      Exhibit 5 (picture of Officer McIntire): “Officer McIntire, assaulted by

            inmate ABO-SEBA”

      Exhibit 6 (picture of Officer McIntire’s leg injury): “Officer McIntire,

            assaulted by inmate ABO-SEBA”

      Exhibit 7 (picture of cuts to Abo-Seba’s abdomen and arm): “Inmate ABO-

            SEBA . . ., assault on staff”

      Exhibit 8 (picture of cuts to Abo-Seba’s abdomen and neck): “Inmate ABO-

            SEBA . . ., assault on staff”

      Exhibit 10 (picture of Lieutenant Simek’s injury to forehead): “Lt. Simek,

            assaulted by inmate ABO-SEBA”

(Appellant’s Opening Br., Attachment 1.)

      Abo-Seba claims the admission of these captions was error because they

were (1) inadmissible hearsay under Rule 802 of the Federal Rules of Evidence,

(2) irrelevant under Rule 402 of the Federal Rules of Evidence because they

merely restated the charges in the indictment and the captions under the pictures

of McIntire did not relate to the indictment as he was not charged with assaulting

McIntire and (3) evidence of “other crimes” under Rule 404(b) of the Federal

                                        -12-
Rules of Evidence because he was not charged with assaulting McIntire.

Additionally, he contends even if the captions were relevant, their probative value

was substantially outweighed by the danger of unfair prejudice under Rule 403 of

the Federal Rules of Evidence. Specifically, he asserts the captions allowed the

government to introduce as evidence the ultimate conclusion the government

wanted the jury to draw and told the jury what result to reach. Because his trial

was a “swearing match” between himself and the guards, each asserting the other

was the first to assault, Abo-Seba argues the error in admitting the captions

affected his substantial rights and seriously affected the fairness of his trial.

(Appellant’s Opening Br. at 29.)

      The government claims the district court did not err in admitting the

captions. It argues the captions were not hearsay because they were not offered

to prove the truth of the matter asserted. It also claims the probative value of the

photographs, which documented the victims’ injuries and Abo-Seba’s self-

inflicted injuries, substantially outweighed any prejudice caused by the captions.

It asserts it was the photographs, not the captions, which were the evidence being

presented to the jury. Indeed, neither party emphasized the captions during trial.

The government also attacks Abo-Seba’s claim that the photographs’ probative

value was substantially outweighed by the prejudice caused by the captions. It

contends the captions did not state anything not testified to by Simek and

McIntire, who were subject to cross-examination. Lastly, the government argues

                                          -13-
even if it was error to admit the captions, the error did not affect Abo-Seba’s

substantial rights because the other evidence against him supported the jury’s

verdict.

      Because Treadway identified the subject of each photograph, the captions

could have been omitted. And, had Abo-Seba properly objected to the captions,

the district court could have taken corrective action -- striking them, re-wording

them or instructing the jury as to their limited use -- rendering an appeal on this

issue unnecessary. See United States v. Hubbard, 603 F.2d 137, 142 (10th Cir.

1979) (“Unless a party is required to timely object before the trial court, the trial

judge and opposing counsel are deprived of any opportunity to take corrective

action, if such be required, in order to assure an orderly, fair and proper trial.”).

Nevertheless, we need not decide whether their admission was error because their

presence on the photographs (whose admission is not challenged) did not affect

Abo-Seba’s substantial rights, i.e., they did not affect the outcome of the district

court proceedings. See United States v. Olano, 507 U.S. 725, 734 (1993). Nor

did they seriously affect the fairness, integrity or public reputation of judicial

proceedings. The captions merely restated the charges against him; there is no

indication they were emphasized to the jury; and they were no more prejudicial

than the testimony of the guards, who alleged Abo-Seba assaulted them with the

razor. If there was error, it does not satisfy the third (and certainly not the fourth)

prong of the plain error inquiry.

                                         -14-
C. Government’s Misstatements During Closing Argument

      Abo-Seba claims the government made two material misstatements of law

and fact during its closing argument. First, during its initial closing argument, the

government discussed the second element of the charged offense, i.e., that Abo-

Seba acted with specific intent to do bodily harm. It claimed it had proved the

second element based on Abo-Seba’s words (“I will kill you. I will kill you all. I

will kill all you Americans.”) and actions (swinging the razor at the guards and

cutting Simek on the neck). (R. Vol. VIII at 23.) It further stated: “There’s been

absolutely no evidence, none at all, that these guards did anything other than talk

to the defendant until the time that he started swinging at them.” (Id. at 24.)

Abo-Seba challenges this statement, claiming it was factually and legally

erroneous because he testified it was the guards who started the altercation by

coming into his cell and beating him and his testimony, like the guards’,

constituted evidence.

      Second, in its rebuttal closing argument, the government asked the jury to

evaluate the credibility of Abo-Seba’s testimony:

      Ladies and Gentlemen, you get to be the judge of who is telling the
      truth in this case. I’m going to ask you to evaluate the defendant’s
      testimony. He claims that he was beat with fists, batons, chair legs,
      but in the photographs of the scene, there aren’t any chairs in there,
      there’s no room for a chair in his cell, or is he suggesting they went
      out to the office and brought back a chair to beat him with when they
      could just as easily continued beating him with their fists and batons?
      He went to the extreme to bring up chair legs.


                                         -15-
(Id. at 34-35.) Abo-Seba challenges this statement because he never mentioned

chair legs during his testimony.

      While not suggesting the government’s misstatements were intentional,

Abo-Seba claims they were, nevertheless, unfairly harmful because they undercut

his credibility, the central focus of the trial, and tainted the jury’s ability to fairly

evaluate his testimony. In closing instructions prior to closing argument, the

court advised the jury that the arguments of counsel were not evidence. Abo-

Seba contends the instruction did not cure the harm because it was not given until

the end of trial and nothing linked the instruction to the government’s

misstatements.

      The government admits its statement that there was no evidence the guards

did anything other than talk to Abo-Seba before he started swinging at them was

erroneous; it should have said there was no “credible” evidence. (Appellee’s Br.

at 19 (emphasis omitted).) However, it claims, considering its closing argument

as a whole, the jury could not reasonably have taken the statement to mean Abo-

Seba’s testimony did not constitute evidence but rather that his testimony was

unworthy of belief. Moreover, the mistake was but one statement made during

the course of the entire trial and the jury instructions adequately cured any error.

Therefore, the government asserts the statement did not amount to plain error or

render the trial fundamentally unfair.

      As to the chair legs statement, incredibly, the government claims it was not

                                           -16-
improper. However, it concedes the transcript of Abo-Seba’s testimony contains

no mention of chair legs. Nevertheless, the government contends this statement

merely reflects its innocent misrecollection of Abo-Seba’s testimony. 5 It also

argues the chair legs statement did not affect the outcome of the trial given the

strong evidence of guilt. It further maintains the statement was just one of

several bases it used to attack Abo-Seba’s credibility and the jurors were properly

instructed that the attorneys’ arguments were not evidence.

      “We use a two-step process when evaluating claims of prosecutorial

misconduct.” United States v. Ivy, 83 F.3d 1266, 1288 (10th Cir. 1996). First, we

determine whether the conduct was improper; if so, we decide whether the

improper conduct warrants reversal. Id. “In evaluating such incidents for plain

error, we will reverse only if, after reviewing the entire record, we conclude that


      5
        The government acknowledges in its brief it is not sure how it came up
with the chair legs statement but explained:

      [Abo-Seba], while having some English speaking ability, testified
      with the assistance of a translator. [He] would often begin answering
      questions in broken English, either before the translator could begin
      speaking, or as the translator would begin speaking. Thus, cross talk
      was common during [his] testimony. Furthermore, any conversations
      between [Abo-Seba] and translator, even if they were in English,
      would not be transcribed by the court reporter.

(Appellee’s Br. at 22 (citation omitted).) At oral argument, the government
reiterated it was not sure where the chair legs comment came from but stated it
made its closing argument without the aide of a transcript. It further alleged the
chair legs comment was reflected in its notes and may have come from Abo-
Seba’s testimony that the guards chained his legs.

                                        -17-
the error is obvious and one that would undermine the fairness of the trial and

result in a miscarriage of justice.” Gonzalez-Montoya, 161 F.3d at 650

(quotations omitted).

      The evidence in a trial includes the sworn testimony of witnesses who have

first-hand knowledge of the facts. See C LIFFORD S. F ISHMAN , J ONES   ON

E VIDENCE , C IVIL & C RIMINAL , § 1:3 (7th ed. 1992). This, of course, includes a

defendant’s testimony. In this case, Abo-Seba testified the guards came in his

cell and started beating him without provocation. Consequently, the

government’s statement that there was absolutely no evidence the guards did

anything other than talk to Abo-Seba until the time he started swinging at them

misstated both the law and facts. Similarly, the government’s chair legs comment

misstated the facts. Abo-Seba did not testify the guards beat him with chair legs.

Both of the government’s comments were improper. Ivy, 83 F.3d at 1288

(mischaracterization of evidence during closing argument improper); United

States v. Hollis, 971 F.2d 1441, 1455 (10th Cir. 1992) (“Certainly, it is improper

for the prosecution to misstate the law in its closing argument.”).

      Nevertheless, the improper comments did not rise to the level of plain error

because they did not affect the fairness of the trial or result in a miscarriage of

justice. Placed in context, it is clear the government’s statement that there was no

evidence the guards did anything other than talk to Abo-Seba before he started

swinging at them could only be taken to suggest Abo-Seba’s testimony was not

                                         -18-
credible. As to the chair legs comment, although it was an attack on Abo-Seba’s

credibility and the jury could have acquitted him had they found him credible and

disbelieved the guards, it was just one of several such attacks. Importantly, the

physician assistant who examined Abo-Seba after the incident testified Abo-Seba

was agitated, cursing and saying he wanted to kill himself. He further testified

there was no evidence Abo-Seba was beaten and the only wounds he observed

were superficial cuts Abo-Seba inflicted upon himself with the razor. The chair

legs comment was just one comment, made in rebuttal closing argument,

throughout the course of the two-day trial. Gonzalez-Montoya, 161 F.3d at 651

(“We generally do not reverse a conviction if the conduct that the defendant

challenges was merely singular and isolated.”) (quotations omitted).

      The jury instructions also mitigated any potential harm. The jurors were

instructed they were “the exclusive judges of the facts proved, the weight of the

evidence, and the credibility of the witnesses,” the “[s]tatements and arguments of

counsel are not evidence in the case unless made as admissions or stipulations of

facts,” “[t]he evidence in the case always consists of the sworn testimony of the

witnesses” and they were “to consider only the evidence in the case.” (R. Vol. I,

Doc. 71 at 3, 7.) We presume juries follow their instructions. See Richardson v.

Marsh, 481 U.S. 200, 211 (1987).

      The evidence against Abo-Seba was substantial. The guards involved in

the incident testified Abo-Seba assaulted them and the photographs of their

                                        -19-
injuries supported this testimony. The physician assistant who examined Abo-

Seba contradicted Abo-Seba’s self-serving testimony. Given this strong evidence

of guilt, the context in which the misstatements were made (closing argument)

and the jury instructions, we cannot say the government’s improper statements,

even when considered collectively, affected Abo-Seba’s substantial rights. 6

D. Cumulative Error

       Abo-Seba argues that to the extent we find multiple harmless errors, their

cumulative effect rendered his trial fundamentally unfair.

      A cumulative-error analysis merely aggregates all the errors that
      individually have been found to be harmless, and therefore not
      reversible, and it analyzes whether their cumulative effect on the
      outcome of the trial is such that collectively they can no longer be
      determined to be harmless. Unless an aggregate harmlessness
      determination can be made, collective error will mandate reversal,
      just as surely as will individual error that cannot be considered
      harmless. The harmlessness of cumulative error is determined by
      conducting the same inquiry as for individual error--courts look to
      see whether the defendant’s substantial rights were affected.

United States v. Rivera, 900 F.2d 1462, 1470 (10th Cir. 1990).

      Step three of plain error analysis is, in wording and effect, identical to

harmless error analysis – an error not affecting substantial rights is not


      6
        The case relied upon by Abo-Seba, United States v. Carter, is
distinguishable. 236 F.3d 777 (6th Cir. 2001). There, the Sixth Circuit concluded
the government’s misstatements during closing argument satisfied the plain error
analysis. Id. at 793. Unlike this case, however, the misstatements in Carter
pertained to a key witness’s testimony and evidence of the defendant’s guilt was
weak. In particular, some witnesses had initially identified another individual as
the burglar. Id. at 786.

                                         -20-
reversible. 7 Here the district court did not err in failing to sua sponte instruct the

jury on self-defense. We assumed error (arguendo) in allowing explicit captions

to remain on exhibits sent to the jury and found error in the government’s

misstatements during closing argument. But in each instance the error did not

affect Abo-Seba’s substantial rights. We need not contemplate the esoteric

aspects of cumulative step three plain error review 8 because both errors (assuming

there were two) considered in combination did not affect Abo-Seba’s substantial

rights.




          7
        Harmless error is “[a]ny error, defect, irregularity, or variance that does
not affect substantial rights . . . .” Fed. R. Crim. P. 52(a).
          8
              To date, we have never addressed the question of how to, if at all,
              incorporate into the cumulative error analysis plain errors that do
              not, standing alone, necessitate reversal. Some circuits combine all
              non-reversible errors (i.e., harmless errors and plain errors failing to
              necessitate reversal) into their cumulative error analysis. See, e.g.,
              United States v. Baker, 432 F.3d 1189, 1223 (11th Cir.2005). Other
              circuits, in contrast, appear to review separately any cumulative plain
              errors. See United States v. Necoechea, 986 F.2d 1273, 1283 (9th
              Cir.1993) (“we review the cumulative impact of the possible plain
              errors for plain error”).

United States v. Barrett, 496 F.3d 1079, 1121 n.20 (10th Cir. 2007); see also
United States v. Jones, 468 F.3d 704, 711 (10th Cir. 2006).

                                          -21-
      We DISMISS Abo-Seba’s ineffective assistance of counsel claim. We

AFFIRM in all other respects.

                                           ENTERED FOR THE COURT


                                           Terrence L. O’Brien
                                           Circuit Judge




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