               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 07a0289n.06
                            Filed: April 25, 2007

                                          No. 06-5102

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                           )
                                                    )
       Plaintiff-Appellee,                          )
                                                    )       ON APPEAL FROM THE
v.                                                  )       UNITED STATES DISTRICT
                                                    )       COURT FOR THE WESTERN
                                                    )       DISTRICT OF KENTUCKY
JEREMIAH MARSHALL,                                  )
                                                    )
       Defendant-Appellant,                         )



       Before: COOK and McKEAGUE, Circuit Judges, and EDGAR, District Judge.*


       PER CURIAM. Jeremiah Marshall appeals his conviction by a jury under 21 U.S.C. §

841(a)(1) for possessing methamphetamine with the intent to distribute it (Count One) and

distributing methamphetamine (Count Two). The jury deadlocked on two firearms charges,

possessing a machine gun in violation of 18 U.S.C. § 922(o) (Count Three), and being a felon in

possession of firearms in violation of 18 U.S.C. § 922(g)(1) (Count Four). These firearms counts,

along with a forfeiture count, were later dismissed without prejudice on motion of the government.

During the trial, Marshall asserted a defense of entrapment. On appeal he contends that his



       *
        The Hon. R. Allan Edgar, Senior United States District Judge for the Eastern District of
Tennessee, sitting by designation.

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convictions on Counts One and Two should be reversed since they were the product of prosecutorial

misconduct in the closing argument. While we agree with Marshall that some of the prosecutor’s

argument is questionable, we nonetheless conclude, applying the law of this circuit, that his

convictions should be affirmed.

                                                 I.

       Marshall participated in several phone calls with special agent Kirk Steward, of the Bureau

of Alcohol Tobacco and Firearms, (“BATF”) in February 2005 wherein he (Marshall) discussed

trading methamphetamine to Steward, who was acting under cover, in return for firearms. On March

5, 2005, Marshall met with Steward and, in a recorded conversation, discussed trading

methamphetamine to Steward for firearms. Marshall talked about several other methamphetamine

deals he had recently done with methamphetamine that he himself had cooked. This meeting

concluded with Marshall selling Steward approximately ten (10) grams of methamphetamine for nine

hundred dollars ($900) in cash.

       On March 14, 2005 after some phone calls between Marshall and Steward discussing trading

firearms for methamphetamine, they again met. This meeting was videotaped. Marshall sold

Steward an ounce of methamphetamine in exchange for twelve hundred dollars ($1200) in cash and

several machine guns and semi-automatic firearms.

       At trial the parties entered into an “Old Chief”2 stipulation that Marshall was a convicted

felon. During the presentation of the government’s case, defense counsel started to lay the

foundation for an entrapment defense. In a side bar, Marshall’s counsel acknowledged to the court

that he was indeed pursuing such a defense. The prosecutor proposed then to admit all of Marshall’s


       2
           Old Chief v. United States, 519 U.S. 172 (1997).

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prior convictions. Defense counsel objected to the admissions of any of those convictions on the

grounds that they were not related to the drug and gun charges being tried. The court reserved ruling

pending a determination of whether Marshall’s prior convictions should be admitted to allow the

government to demonstrate predisposition in response to Marshall’s entrapment defense.

        During the presentation of the defense case, Marshall testified, with respect to his

“entrapment,” that he was only selling methamphetamine as a favor to Mike Burris, in whose home

Marshall lived with Burris’s daughter. Marshall testified that he felt he had to sell methamphetamine

for Burris, otherwise Burris would have kicked him out of the house. Burris was a government

informant. On cross examination the prosecutor was permitted to ask Marshall about all of his prior

convictions, including prior state convictions for robbery and theft. The government now concedes

that the robbery and theft convictions were inadmissable under Federal Rules of Evidence 609(b)

as being more than ten years old, although there was no defense objection made on this ground.3 The

prosecutor also asked Marshall about other convictions, including ones for intimidation, battery,

criminal recklessness, and assisting a criminal. The prosecutor was permitted without objection to

delve into some of the facts surrounding the prior convictions; and in particular, the intimidation

conviction. Here Marshall testified that he had hit a potential witness in the head with a pistol and

fired a shot near, but not at, that person.

                                                 II.

        On appeal Marshall asserts that the prosecutor engaged in misconduct in his closing

argument. The primary portions of the argument addressed in the appeal are



        3
          The district court’s evidentiary ruling admitting these convictions is not asserted as
error on appeal.

                                                 3
       (1) Repeated suggestions that Marshall had once shot someone, when the evidence did not

support that assertion;

       (2) Vouching for the credibility of BATF Agent Steward by saying that Steward would not

have pursued Marshall unless he thought Marshall was guilty. Specifically the prosecutor said (with

respect to Steward): “[h]e doesn’t have time to chase honest citizens. He picks the worst of the

worst, and he goes after them, and that’s why he went after Jeremiah Marshall.” [J.A. 406]; and

       (3) Inappropriate references to Marshall’s character as evidenced by his previous convictions.

One such statement was that Marshall “is predisposed to commit any felony that benefits him and

. . . he’s a menace to this community.” [J.A. 399].

                                                III.

       We begin our analysis with the observation that in this particular case, Marshall’s prior

convictions were admissible for several purposes. The general rule, which is embodied in Federal

Rule of Evidence 404(b), is that an accused’s character is generally not admissible for the purposes

of producing action in conformity therewith. However, when the defense of entrapment is asserted,

prior convictions can be admitted to prove criminal predisposition. United States v. Franco, ___

F.3d ___, 2007 WL 1061747 *3 (6th Cir. 2007); United States v. Blankenship, 775 F.2d 735, 739

(6th Cir. 1985). In this case, because Marshall took the stand, his prior convictions were also

admissible on the issue of his credibility, subject to the limitations of Rules 403 and 609 of the

Federal Rules of Evidence. Finally, in this case the existence of a prior criminal record was no

secret, due to a stipulation of its existence for purposes of the government proving the felon in

possession of firearms charge, 18 U.S.C. § 922(g).

       This circuit reviews prosecutorial closing arguments de novo. The issue is a mixed one of


                                                 4
fact and law. United States v. Barnett, 398 F.3d 516, 522 (6th Cir. 2005). The framework for

reviewing claims of prosecutorial misconduct has most recently been provided by this circuit’s

decision in United States v. Tarwater, 308 F.3d 494, 510-11(6th Cir. 2002).

         When reviewing claims of prosecutorial misconduct, we determine first whether the
         statements were improper. If they appear improper, we then look to see if they were
         flagrant and warrant reversal. To determine flagrancy, we consider: 1) whether the
         statements tended to mislead the jury or prejudice the defendant; 2) whether the
         statements were isolated or among a series of improper statements; 3) whether the
         statements were deliberately or accidentally before the jury; and 4) the total strength
         of the evidence against the accused.

Tarwater, 308 F.3d at 511 (citations omitted); United States v. Tocco, 200 F.3d 401, 420 (6th Cir.

2000).

A.       Prosecutor’s alleged misstatements about Marshall having shot someone.

         The prosecutor on several occasions during the course of the closing argument referred to

Marshall having shot at a “snitch,” or having shot snitches. Marshall on cross-examination testified

that he had retaliated against a person because that person had been a witness against him in an

earlier criminal case. According to Marshall, the retaliation took the form of hitting the person in

the head with a pistol and shooting a handgun in the area near that person. Technically, it has to be

said that the prosecutor has stretched the facts by saying that Marshall shot at someone or shot

someone. However, we cannot say that the distinction between “near” and “at” makes those

particular assertions a misstatement, because arguably they were a permissible inference from the

facts. However, the several statements by the prosecutor that Marshall had actually shot someone,

were misstatements, and were thus improper.

B.       Prosecutor’s asserted “vouching” statement.

         Taken by itself, the above-quoted statement would be an assertion that Marshall was guilty


                                                   5
because agent Steward only investigates guilty people. As such it would be improper vouching for

Agent Steward’s credibility. Agent Steward testified for the government at trial. However, when

the statement is placed in the context of the entire argument, it appears to have been in response to

Marshall’s claim of lack of predisposition. The prosecutor was essentially explaining why Steward

was investigating Marshall. This statement, while it should have been more artfully crafted, was not

improper when placed in this context.

C.     The Prosecutor’s alleged inappropriate references to Marshall’s character.

       As we have said, Marshall himself injected his prior convictions and his character into this

case by asserting an entrapment defense and by testifying. Once this was done, it became inevitable

that his character would be discussed by the prosecution. It would have been more appropriate for

the prosecutor to confine the predisposition argument to the offenses charged in the indictment, not

“any felony that benefits him.” The hyperbole about Marshall being a “menace” could likewise have

been disposed with. However, these character references were not improper in this case where in

fact Marshall’s character was fair game.

                                                IV.

       As we have said, some statements made by the prosecutor were indeed improper. However,

those statements must still be looked at through the prism provided by Tarwater and related cases

to determine whether the statements were flagrant. Some of the prosecutor’s statements were

misleading, but when juxtaposed against the background of this particular case, they were not

unfairly prejudicial to Marshall. There was only one isolated asserted vouching statement. The other

challenged prosecutorial comments were scattered throughout the closing argument. The statements,

improper or not, were indeed deliberately placed before the jury. However, the fourth and final


                                                 6
“flagrancy” factor is dispositive here. The total strength of the evidence against the defendant was

overwhelming. Marshall did not deny selling methamphetamine. The jury saw a videotape of one

of the charged drug transactions and listened to audio tapes of other drug conversations in which

Marshall was a participant. Furthermore, his entrapment defense was very weak. There was

abundant proof that Marshall was predisposed, and indeed even eager, to distribute

methamphetamine. His conversations revealed that he knew how to manufacture methamphetamine

and that he had concluded other drug deals. There was no evidence, even in Marshall’s own

testimony, that Mr. Burris, his girlfriend’s father, ever induced or encouraged Marshall to sell

methamphetamine. Moreover, there was no evidence that Mr. Burris had any role to play on behalf

of the government in this case. We thus conclude that the prosecutor’s final argument does not

warrant reversal.

                                                  V.

        Our conclusion is buttressed by the fact that we are here reviewing for only plain error

because no objections were made to any portion of the final argument at trial.

        To establish plain error, a defendant must show (1) that an error occurred in the
        district court; (2) that the error was plain, i.e., obvious or clear; (3) that the error
        affected defendant’s substantial rights; and (4) that this adverse impact seriously
        affected the fairness, integrity or public reputation of the judicial proceedings.

United States v. Koeberlein, 161 F.3d 946, 949 (6th Cir. 1998). For the reasons we have already

expressed, the prosecutor’s final argument does not amount to plain error. It did not affect the

defendant’s substantial rights and most certainly did not affect the fairness, integrity, or public

reputation of the trial.

                                                  VI.



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        Marshall contends that his counsel was ineffective. This ineffectiveness is alleged to have

transpired in the failure of counsel to object to any portion of the final argument, but to certain other

actions taken, or not taken, in the case as well. Consideration of this claim will be deferred until

Marshall makes any claim for post-conviction relief, in order to permit development of a record.

United States v. Sullivan, 431 F.3d 976, 986 (6th Cir. 2005); United States v. Carr, 5 F.3d 986, 993

(6th Cir. 1993).

        We therefore AFFIRM the judgment of the district court.




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