In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2083

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

WARREN E. CORNETT,

Defendant-Appellant.



Appeal from the United States District Court
for the Southern District of Indiana,
Indianapolis Division.
No. 1:99CR00100-001--Sarah Evans Barker, Chief
Judge.


Argued October 3, 2000--Decided November 13,
2000




  Before Flaum, Chief Judge, and Coffey and
Rovner, Circuit Judges.

  Flaum, Chief Judge. Warren Cornett
appeals his conviction for possessing a
firearm after being convicted of a
felony, arguing that the prosecutor made
several comments during her closing
argument that deprived him of a fair
trial. Specifically, Cornett contends
that the prosecutor (1) misstated the
burden of proof when she said that, in
order to acquit Cornett, the jury must
find that certain witnesses lied, and (2)
vouched for the credibility of government
witnesses when she mentioned that police
officers take an oath to uphold the law.
We conclude that these comments, although
improper, did not deprive Cornett of a
fair trial. Accordingly, we affirm the
judgment of the district court.

I.
Background

  A federal grand jury indicted Cornett on
one count of possession of a firearm by a
felon, 18 U.S.C. sec. 922(g)(1). At
trial, government witness Roger Gammon,
the Indianapolis police officer who
arrested Cornett, testified that he
observed Cornett seated in the driver’s
seat of a car drinking a beer; Cornett
was double-parked and was accompanied by
one passenger, Nicole Pittman. Attempting
to discern whether Cornett was
intoxicated, Gammon walked to the car and
stood next to the driver’s door. From
this position, said the officer, he saw
the grip and trigger of a handgun
protruding from a gap separating the two
front seats. Gammon asked if either
Cornett or Pittman had a gun permit and
both replied "no." According to Gammon,
Cornett said that "he had purchased the
handgun approximately three weeks
earlier." Gammon arrested both Cornett
and Pittman.

  Another government witness, Paul Arkins,
an Indianapolis detective on special
assignment to the United States Bureau of
Alcohol, Tobacco and Firearms, testified
that Cornett told him a different story
about the gun. Six weeks after Cornett’s
arrest, Detective Arkins interviewed
Cornett in jail and read him Officer
Gammon’s arrest report. According to
Arkins, Cornett denied telling Officer
Gammon that he purchased the gun. Rather,
Cornett explained that "some other dude"
had been in the car "just before" Officer
Gammon arrived and had left the gun in
the back seat. Cornett told Arkins that,
after the other individual left, Cornett
picked up the gun and tucked it into the
front seat cushion.

  Cornett called only one witness,
passenger Nicole Pittman. Contradicting
Officer Gammon, Pittman denied that she
or Cornett had been asked about gun
permits, and that Cornett had told
Officer Gammon that he had purchased the
gun. Additionally, Pittman testified that
she never noticed the gun while she was
in the car. On cross-examination, though,
Pittman admitted that she had been
smoking marijuana and drinking beer five
minutes prior to Officer Gammon’s arrival
and that the radio was playing during the
encounter with Officer Gammon. Pittman
also testified that in the "couple of
hours" preceding the arrests the only
other person in the car had been her
mother.

  In the defense’s closing argument,
Cornett’s attorney stressed the
inconsistencies between Pittman’s and
Officer Gammon’s testimony, suggesting
that the incident did not occur the way
Officer Gammon described:

Maybe it wasn’t like Officer Gammon
described. I don’t believe that gun was
positioned the way he described it.

  So let’s look at his statement. Well,
it’s a convenient way to stick my client
with this charge by saying, Well, hey, my
client admitted to it. My client admitted
to Officer Gammon, according to Officer
Gammon, my client says, "Yeah, that gun,
I don’t have a permit for it. I bought it
from a guy a few weeks ago."

  Is it reasonable to believe that my
client would say that to the police
officer at that time? I don’t think so.

Additionally, defense counsel argued
there were holes in the government’s
case, such as a lack of fingerprint
evidence and the absence of written or
audio records of Cornett’s statements to
the police.

  In her rebuttal, the Assistant United
States Attorney stated that prosecutors
and police officers take oaths to follow
the law and so do not "stick" people with
charges: "That’s not what the job is of a
prosecutor. It’s not what the job is of
law enforcement. We don’t stick people
with charges. We take oaths. We have
responsibilities." The prosecutor briefly
addressed the burden of proof and
thenreturned to her "oath" argument:

  Law enforcement officers, in fact, if
you’ve ever seen an induction ceremony,
take an oath. They take an oath to uphold
the laws of the jurisdiction in which
they work.

  Officer Gammon took an oath to uphold
the laws of the state of Indiana and the
Constitution of the United States of
America.

  Detective Arkins took the same oath.

Defense counsel objected that the
prosecutor was improperly bolstering her
witnesses. The court agreed and
instructed the prosecutor to proceed to a
discussion of the evidence.
  The prosecutor also argued that to find
Cornett not guilty the jury would have to
conclude that Officer Gammon, Detective
Arkins and Pittman had all lied on the
stand:

  . . . [I]f you are going to find Mr.
Cornett not guilty . . . you are going to
have to find that all three of them came
in here, took an oath, and lied to you.
And there is no other way to characterize
that. And so go back and talk about it,
but talk about it in that way. You’ll
have to find that they lied to you.

At the end of her rebuttal, the
prosecutor returned to this argument:

  If you’re going to find reasonable
doubt, you have to find it from what you
do have: From Officer Gammon’s testimony,
Nicole Pittman’s testimony, Detective
Arkins’ testimony. You are going to have
to disregard what they’ve said. You are
going to have to find that they are lying
about the evidence that they presented to
you, if you are going to acquit Mr.
Cornett. It’s really that black and
white./1

  After closing arguments the judge
instructed the jury that the government
has the burden of proving the defendant’s
guilt beyond a reasonable doubt, that
this burden remains on the government
throughout the case, and that the
defendant is never required to prove his
innocence or to produce any evidence at
all. The court also informed the jury
that they are to consider only the
evidence and that the closing arguments
are not evidence unless made as an
admission or stipulation of fact.
Finally, the court instructed the jury
that they are the sole judges of the wit
nesses’ credibility, and that a law
enforcement officer’s testimony is
neither more nor less entitled to belief
than any other witness.

II.
Discussion

  To determine if a prosecutor’s comments
deprived a defendant of a fair trial, we
must first decide whether "the comments,
looked at in isolation, were improper."
United States v. Cusimano, 148 F.3d 824,
831 (7th Cir. 1998). If the remarks were
improper, we then "look at the remarks in
the light of the entire record to
determine whether the defendant was
deprived of a fair trial." Id. In
assessing the prejudicial nature of a
prosecutor’s improper comments, we
consider five factors: (1) the nature and
seriousness of the comments; (2) whether
the defense counsel invited the
prosecutor’s remarks; (3) whether the
trial court’s instructions to the jury
were adequate to cure any prejudice that
might otherwise result from the improper
comments; (4) whether the defense was
able to counter the improper arguments
through rebuttal; and (5) the weight of
the evidence against the defendant. Id.
at 831-32.

A.   Burden of Proof

  Cornett first argues that the prosecutor
misstated the burden of proof when she
told the jury that to acquit the
defendant they must find that several
witnesses lied. In United States v.
Vargas, 583 F.2d 380, 387 (7th Cir.
1978), we held that it is improper for a
prosecutor to argue that the jury must
find that a witness lied to acquit the
defendant. See also United States v.
Phillips, 527 F.2d 1021, 1023 (7th Cir.
1975) (improper for prosecutor to argue
that to acquit the jury must find that
government framed defendant). We have
revisited this issue several times since
Vargas, distinguishing cases where the
prosecutor did not explicitly argue that
the jury must find a witness lied in
order to acquit. See United States v.
Amerson, 185 F.3d 676, 687 (7th Cir.
1999) (not improper for prosecutor to
comment that "[y]ou simply cannot believe
the testimony of these police officers
and believe the defendant’s testimony at
the same time" because comments did not
force jury to decide between acquitting
defendant and believing police officers);
United States v. Marshall, 75 F.3d 1097,
1107-08 (7th Cir. 1996) (not improper for
prosecutor to comment that jury should
acquit if it disbelieved FBI agent
because prosecutor did not state that
disbelieving FBI agent was the only way
to acquit); United States v. Hernandez,
865 F.2d 925, 929-30 (7th Cir. 1989)
(same). This case, however, cannot be
distinguished in a similar fashion. Here,
the prosecutor argued that the jury
"[would] have to find that [Officer
Gammon, Detective Arkins and Pittman] are
lying about the evidence that they
presented to you, if you are going to
acquit Mr. Cornett. It’s really that
black and white." Viewed in isolation,
the prosecutor’s remarks misstated the
burden of proof because the jury could
have believed that the witnesses told the
truth and yet still found that the
government had failed to prove Cornett’s
guilt beyond a reasonable doubt. See
Vargas, 583 F.2d at 387. Therefore, the
prosecutor’s comments were improper.
Next, we turn to whether these comments
deprived Cornett of a fair trial.

  As noted above, we analyze several
factors when assessing the prejudicial
effect of a prosecutor’s misstatement of
the law. Of these factors, we place
considerable emphasis on the curative
effect of jury instructions and the
weight of the evidence. See United States
v. Miller, 199 F.3d 416, 423 (7th Cir.
1999); United States v. Hauert, 40 F.3d
197, 205 (7th Cir. 1994); United States
v. Davis, 15 F.3d 1393, 1400-02 (7th Cir.
1994). Here, in its final charge to the
jury, the district court gave proper
instructions on the burden of proof and
directed the jury to disregard the
closing arguments to the extent they were
not supported by the evidence. Absent
evidence to the contrary, we presume that
the jury understood and followed the
district court’s instructions. See United
States v. Nobles, 69 F.3d 172, 184 (7th
Cir. 1995). Regarding the weight of the
evidence, the government presented
uncontroverted proof that Cornett
possessed a firearm. Officer Gammon
testified that he recovered a gun from
Cornett’s car, and both Officer Gammon
and Detective Arkins testified that
Cornett admitted possessing the firearm.
Pittman, Cornett’s only witness, did not
contradict this evidence. Pittman’s
testimony that she did not see the gun
tucked in the front seat cushion tends
only to establish that Pittman did not
personally observe the gun. Moreover,
Pittman’s testimony is undercut by her
admission that she was smoking marijuana
and drinking beer five minutes before the
incident. And, finally, Cornett did not
introduce any evidence to dispute
Detective Arkins’s testimony that Cornett
admitted possessing the firearm or to
attack Detective Arkins’s credibility.
  Moving to the remaining factors; first,
the prosecutor’s improper comments were
clearly out of bounds. The prosecutor
spoke to an altering of the burden of
proof when she argued that the defendant
had to prove certain witnesses lied to be
acquitted. We also note that the
prosecutor’s misstatement of the law was
not a brief and isolated comment; rather,
it was a repeated theme of her rebuttal
argument. Second, Cornett did not invite
the prosecutor’s improper comments.
Third, because the prosecutor made the
challenged comments during rebuttal,
defense counsel did not have a chance to
respond. On the other hand, defense coun
sel never specifically objected to the
prosecutor’s misstatement of the burden
of proof. Therefore, the court was not
presented with the opportunity to give
curative instructions, nor did the
prosecutor have the opportunity to
acknowledge her error to the jury and
amend her argument accordingly.

  Generally, a prosecutor’s improper
comments do not deprive a defendant of a
fair trial when the district court
properly instructs the jury and the
weight of the evidence is in the
government’s favor. See Miller, 199 F.3d
at 422-23 (defendant not deprived of a
fair trial even though error was serious,
directed at the only contested issue at
trial and defendant had no opportunity to
respond); United States v. Morgan, 113
F.3d 85, 90-91 (7th Cir. 1997) (defendant
not deprived of a fair trial even though
comments not invited and defendant did
not have an opportunity to respond);
United States v. Badger, 983 F.2d 1443,
1456 (7th Cir. 1993) (same). This case
provides no reason to depart from this
approach. Given the court’s instructions
and the weight of the evidence, we cannot
find any indication that the jury would
have returned a different verdict absent
the prosecutor’s misstatement of the law.

B.  Improper Vouching
  Cornett also argues that the prosecutor
improperly vouched for the good faith of
police witnesses when she stated that
police officers take an oath to follow
the law./2 Improper vouching occurs
when a prosecutor expresses her personal
opinion about the truthfulness of a
witness or when she implies that facts
not before the jury lend a witness
credibility. See United States v.
Renteria, 106 F.3d 765, 767 (7th Cir.
1997). The government argues that the
prosecutor’s remarks about the police
officers’ oaths were similar to
commenting that they were "good cops," a
comment we found permissible in United
States v. Alexander, 163 F.3d 426, 429
(7th Cir. 1998). In Alexander, however,
we noted that the "good cops" comment
came only after the prosecutor compared
one police officer’s testimony to another
police officer’s report to show that they
were consistent. See id. In this case,
there is no similar connection to the
evidence. Here, the prosecutor simply
bolstered the credibility of the police
officers by commenting on their
occupational integrity. Although we do
not find a case directly on point, we
have generally held that it is improper
for a prosecutor to vouch for the
credibility of witnesses by referring to
facts outside the record. See United
States v. Johnson-Dix, 54 F.3d 1295,
1304-05 (7th Cir. 1995) (improper to
state that police officer has no reason
to risk his career and reputation by
lying); United States v. Boyd, 54 F.3d
868, 871 (D.C. Cir. 1995) (same). The
Assistant United States Attorney also
invoked her own oath as a prosecutor,
thus implying that she would not present
perjured testimony to the jury and
further bolstering the officers’
credibility. This was improper as well.
See United States v. Torres, 809 F.2d
429, 446 (7th Cir. 1987) (Flaum, J.,
concurring). Given the prosecutor’s
remarks, we examine whether they deprived
Cornett of a fair trial.

  As noted above, we focus on the jury
instructions and the weight of the
evidence when assessing the prejudicial
nature of a prosecutor’s improper
comments. Here the district court’s
instructions effectively addressed any
prejudice that might otherwise have
resulted from the improper vouching. The
court instructed the jury that they were
the "sole judges of the credibility of
the witnesses" and that a police
officer’s testimony "is neither more nor
less entitled to belief than any other
witness." As previously stated, the
weight of the evidence favors the
government. Cornett has argued that the
government’s case depended on the
credibility of Officer Gammon and
Detective Arkins, the two witnesses for
whom the prosecutor improperly vouched.
Since there was no indication that the
credibility of these officers was ever in
serious doubt, the improper vouching was
harmless. Pittman’s testimony constituted
only a weak attack on Officer Gammon’s
version of events, and the defense never
questioned Detective Arkins’s
credibility.

  Overall, an examination of the record
does not suggest the conclusion that the
prosecutor’s comments prejudiced the
defendant. The comments, while improper,
were not critical to the outcome of the
case. Although the prosecutor did vouch
for witnesses central to the government’s
case, the prosecutor never stated that
she personally believed the police
officers. Furthermore, the district court
sustained a defense objection, thus
signaling to the jury that the thrust of
the prosecutor’s remarks was improper.
Additionally, the prosecutor’s comments
were in response to defense counsel’s
suggestion that Officer Gammon and the
prosecution were trying to "stick"
Cornett with a conviction. Finally,
although the prosecutor twice vouched for
the police officers’ credibility during
her rebuttal argument, this circumstance,
standing alone, cannot establish that the
prosecutor’s comments deprived the
defendant of a fair trial. See Johnson-
Dix, 54 F.3d at 1305 (prosecutor’s
vouching for a witness’s credibility
during rebuttal argument did not deprive
defendant of a fair trial because weight
of the evidence was against the
defendant); see also Davis, 15 F.3d at
1401-02 (reasoning that district court’s
instruction that jurors are sole judges
of witness credibility "effectively
addressed the risk the vouching presented
and sufficiently dispelled any
prejudicial effect the vouching may have
had").

III.
Conclusion

  The prosecutor misstated the burden of
proof and improperly vouched for the
credibility of government witnesses.
However, the court concludes that these
remarks did not deprive Cornett of a fair
trial. Therefore, the judgment of the
district court is AFFIRMED.
/1 Although it appears that Cornett objected only to
the prosecutor’s improper vouching and not to her
misstatement of the burden of proof, we will
assume for purposes of analysis that Cornett
objected to both comments. Because we conclude
that neither comment deprived Cornett of a fair
trial, whether Cornett objected to both comments
is not determinative.

/2 The government frames this issue as whether the
prosecutor’s "reminder" that the witnesses took
an oath was improper. This assertion misreads the
nature of the objection. The remarks objected to
by the defense did not refer to the oath witness-
es take before testifying, which is the only oath
this jury could have been aware of from the
evidence adduced at trial. Rather, the defense
objected when the prosecutor commented that, upon
becoming police officers, Officer Gammon and
Detective Arkins took an oath to uphold the law.
Because no evidence of this oath of office was
introduced at trial, it is inaccurate to charac-
terize the prosecutor’s comments as a "reminder."
