                               NOT FOR PUBLICATION                       FILED
                        UNITED STATES COURT OF APPEALS                    JUL 27 2015
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                               FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                         No. 13-30339

            Plaintiff - Appellee,                  D.C. No. 2:12-cr-00061-RAJ-1

   v.
                                                   MEMORANDUM*
 WINSTON BONTRAGER,

            Defendant - Appellant.



 UNITED STATES OF AMERICA,                         No. 13-30340

            Plaintiff - Appellee,                  D.C. No. 2:12-cr-00061-RAJ-2

   v.

 PAULINE ANDERSON,

            Defendant - Appellant.

                       Appeal from the United States District Court
                         for the Western District of Washington
                       Richard A. Jones, District Judge, Presiding

                            Argued and Submitted July 9, 2015
                                  Seattle, Washington



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: NGUYEN and FRIEDLAND, Circuit Judges and ZOUHARY,** District
Judge.

      Winston Bontrager and Pauline Anderson (“Defendants”) appeal their

convictions stemming from a tax-evasion scheme. We affirm.

      We review Defendants’ prosecutorial misconduct claims for plain error

because no objection was made below. See United States v. Tomsha-Miguel, 766

F.3d 1041, 1047 (9th Cir. 2014). It is clear that some misconduct occurred. For

example, it was improper for the prosecutor to refer to Bontrager’s accountant, a

prosecution witness, as “meticulous, careful and honest,” when the accountant

offered strong evidence against Bontrager. See United States v. Necoechea, 986

F.2d 1273, 1276 (9th Cir. 1993) (“Vouching consists of placing the prestige of the

government behind a witness through personal assurances of the witness’s

veracity, or suggesting that information not presented to the jury supports the

witness’s testimony.”); United States v. Kerr, 981 F.2d 1050, 1053 (9th Cir. 1992)

(holding that it was impermissible vouching for prosecutor to say in closing

argument that a prosecution witness “was candid. I think he was honest”). It also

was improper for the prosecutor to offer his own account of when federal agents

“spring into action” and “careful[ly] . . . [and] methodical[ly] . . . . go through




      **
             The Honorable Jack Zouhary, District Judge for the U.S. District
Court for the Northern District of Ohio, sitting by designation.
                                          2
every piece of evidence” in preparing a case for trial, an account that had no basis

in the evidence. Cf. United States v. Alcantara-Castillo, --- F.3d ---, 2015 WL

3619853, at *7 (9th Cir. June 11, 2015).

      Furthermore, although Defendants’ lavish spending was indisputably

relevant to the tax charges, see United States v. Johnson, 319 U.S. 503, 517 (1943),

the prosecution repeatedly crossed the line with comments such as those asserting

that Defendants “lived a life that most of us can only dream of.” Finally, it was

improper when, notwithstanding a jury instruction to the contrary, both defense

counsel and the prosecution discussed the testimony of Bontrager’s ex-girlfriend in

relation to Anderson’s guilt or innocence.

      We affirm, however, because Defendants have failed to establish that any of

the alleged misconduct “affected the outcome of the district court proceedings.”

United States v. Chi Mak, 683 F.3d 1126, 1133 (9th Cir. 2012) (quoting Puckett v.

United States, 556 U.S. 129, 135 (2009)). This was not a close case. The evidence

of guilt was overwhelming and Defendants have failed to show that the credibility

of the vouched-for witnesses was meaningfully challenged. See United States v.

Weatherspoon, 410 F.3d 1142, 1151 (9th Cir. 2005) (“When the case [against a

defendant] is particularly strong, the likelihood that prosecutorial misconduct will

affect the defendant’s substantial rights is lessened because the jury’s deliberations

are less apt to be influenced.”). Nonetheless, in light of the numerous, obvious

                                           3
instances of improper argument by the prosecutor, particularly improper vouching,

we are disturbed that the government refused to concede any error in its briefing or

at oral argument, despite repeated invitations to do so by the panel. See Berger v.

United States, 295 U.S. 78, 88 (1935) (“[W]hile [a prosecutor] may strike hard

blows, he is not at liberty to strike foul ones.”).

       Anderson’s challenge to the voir dire questions also does not warrant

reversal. The prosecutor’s questions did not bias the jury against Defendants and

were not “so unreasonable [that allowing them] constitute[d] an abuse of

discretion.” United States v. Anzalone, 886 F.2d 229, 234 (9th Cir. 1989) (quoting

United States v. Flores-Elias, 650 F.2d 1149, 1151 (9th Cir. 1981)).

       The district court did not err when it admitted evidence of Bontrager’s prior

conviction pursuant to Federal Rule of Evidence 404(b). See Huddleston v. United

States, 485 U.S. 681, 685-86 (1988); United States v. Marashi, 913 F.2d 724, 734-

35 (9th Cir. 1990); Fed. R. Evid. 403. Contrary to Defendants’ contention, the trial

evidence regarding the prior conviction was consistent with the prosecution’s pre-

trial proffer.1

       Finally, in light of the strength of the prosecution’s case, reversal is also not

warranted under the cumulative error doctrine. See United States v. Fernandez,


1
  Since this evidence was properly admitted pursuant to Rule 404(b), we express no
view as to whether the district court correctly concluded that it was “inextricably
intertwined” with the present offenses.
                                           4
388 F.3d 1199, 1256-57 (9th Cir. 2004), amended in non-relevant part, 425 F.3d

1248 (9th Cir. 2005).

      AFFIRMED.




                                       5
