January 5, 1993
                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT
                                           

No. 92-1612

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                          JOSEPH SMITH,

                      Defendant, Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF RHODE ISLAND

      [Hon. Raymond J. Pettine, Senior U.S. District Judge]
                                                          

                                           

                              Before

                      Selya, Cyr and Boudin,

                         Circuit Judges.
                                       

                                           

   Ernest Barone for appellant.
                
   Margaret E.  Curran, Assistant United States  Attorney, with whom
                      
Lincoln C.  Almond, United  States Attorney, and  Lawrence D.  Gaynor,
                                                                   
Assistant United States Attorney, were on brief for appellee.

                                           

                                           

          CYR, Circuit Judge.  Defendant Joseph Smith appeals his
          CYR, Circuit Judge
                            

conviction for  possessing a firearm after  having been convicted

of a felony, in violation of 18 U.S.C.   922(g)(1), claiming that

the government's closing argument deprived  him of a fair  trial.

We affirm.

                                I

                            BACKGROUND
                                      

          The following facts are undisputed.  On August 4, 1991,

Patrolman Robert Brown, Jr.,  responded to a reported disturbance

at the  Hot Club in Providence, Rhode Island.  After assisting in

resolving  the dispute, Officer Brown  was told by  a patron that

another  disturbance had broken out  between two men  in a nearby

parking  lot.   As  Brown approached  the  parking lot,  a  woman

standing  near him  screamed:   "That  man has  a gun!"   In  the

direction indicated by the woman, the officer saw appellant Smith

standing alone, and other people running away from Smith.

          The officer  approached appellant and told  him to drop

the  gun.  Smith held out his  palms, which were empty, and said,

"I ain't  got no gun," then  turned and ran.   Officer Brown gave

chase  and  radioed for  assistance.    Following a  two-to-three

minute chase,  covering one-quarter  to one-half mile,  Smith was

apprehended;  an  unloaded  .25  caliber  automatic  handgun  was

removed from  his waistband.   Appellant's sole defense  at trial

wasthathispossessionofthe firearmwasjustifiedinthe circumstances.

          According  to his  own  testimony,  appellant had  been

standing outside the  club when  another man said  to him:   "Hey

Joe, I've got your f'ing girlfriend."  Turning  around, appellant

saw a  man,  whom  he identified  as  George  Sacco,  restraining

appellant's girlfriend, Deirdre Machado, and holding a gun to her

side.  Appellant testified that he approached Sacco, who tripped,

and, after they scuffled,  appellant grabbed the gun  from Sacco.

Appellant  testified that it was  Machado who yelled:   "That man

has a  gun," and  that Machado  had meant that  Sacco had  a gun.

Appellant admitted at  trial that he had denied having a gun when

asked by Officer Brown, and had started  to run.  Deirdre Machado

essentially  corroborated  appellant's  version  of  the  events.

Officer  Brown,  on   the  other  hand,  testified  that  he  was

acquainted  with Machado and  that she was not  the woman who had

yelled to him that night.

                                II

                            DISCUSSION
                                      

          Appellant claims that the government's closing argument

deprived  him of a fair  trial by disparaging  the credibility of

the witnesses  for  the defense  and  infringing upon  the  fact-

finding function reserved to the jury.  As there was no objection

at trial,  we review for plain error, United States v. Grant, 971
                                                            

F.2d  799,  810  (1st Cir.  1992)  (en  banc);  United States  v.
                                                             

Nickens, 955  F.2d 112, 120 (1st Cir.),  cert. denied, 113 S. Ct.
                                                     

108  (1992),  which  means  we  must  evaluate  the  prosecutor's

                                3

statements in light of the entire record, Grant, 971 F.2d at 810,
                                               

and  may  overturn the  jury  verdict  only if  the  government's

closing  argument "so poisoned the  well" that it  is likely that

the verdict  was affected.   United  States v. Mejia-Lozano,  829
                                                           

F.2d  268, 274 (1st  Cir. 1987); United  States v. Panet-Collazo,
                                                                

960  F.2d 256,  260  (1st Cir.),  cert.  denied, 113  S. Ct.  220
                                               

(1992).  We discern no plain error.

          According to appellant, the prosecutor's  statements in

closing  argument     that  Sacco did  not  exist, appellant  and

Machado  were  lying,  and  appellant was  guilty      improperly

implied  that  the  prosecutor  possessed  knowledge  beyond  the

purview  of the evidence and improperly  invoked the authority of

his  office to bolster his  interpretation of the  evidence.  The

crux  of appellant's claim  is that  his and  Machado's testimony

concerning George Sacco's role was uncontradicted and, therefore,

there  was  no evidence  on which  to predicate  the prosecutor's
                       

contention  that he and Machado were lying; accordingly, were the

jury to credit their testimony,  there was sufficient evidence to

acquit on the justification defense.

          Although  it is  plainly improper  for a  prosecutor to

imply  reliance on  knowledge  or evidence  not available  to the

jury, United States v. Cain, 544 F.2d 1113, 1116 (1st Cir. 1976);
                           

Patriarca  v. United States, 402  F.2d 314, 321  (1st Cir. 1968),
                           

cert.  denied, 393 U.S. 1022 (1969), there was no such intimation
             

in this case.  Rather,  considered in the context of the  closing

argument  as a  whole, the  comments cited  by appellant     that

                                4

there was no Sacco and that Machado belatedly concocted the story

to prevent appellant from being convicted    suggested inferences

the  jury  might draw  from the  evidence,1  a proper  subject of

comment  by  the prosecutor.    The  government  may  attempt  to

persuade the jury to draw suggested inferences unfavorable to the

defense,  as long  as  the prosecutor's  own  opinion as  to  the
                                                     

witness' credibility is not urged on the jury.  See, e.g., United
                                                                 

States v. Mount, 896 F.2d 612, 625 (1st Cir. 1990).
               

          During  closing argument,  the prosecutor  reminded the

jury that  Officer Brown  had testified that     at the  time the

unidentified woman screamed:  "That man has  a gun!"    Brown saw

no  one else near the  scene, except appellant  and other persons

running from appellant.  The prosecutor further reminded the jury
                      

that Officer Brown had testified that the  unidentified woman was

not Deirdre  Machado.  Finally, the prosecutor noted that Machado

admitted at trial  that she had never before told  the police, or

                    

     1These comments were as follows:

          This  business about  Sacco  is a  complete fabri-
     cation.  That's what the evidence shows.
                                            
     . . . .
          Does  that  sound  like  someone who's  worthy  of
     belief to you?  Of course not.  She [Machado] never did
     those  things, ladies and gentlemen.  She never filed a
     complaint against  Sacco because  Sacco never  did any-
     thing.  There was  no Sacco.  It's a  convenient story.
     It's a complete fabrication.   She never tried to  help
     him out  [by filing  a complaint] because  he's guilty.
     He  didn't do  anything to  disarm Sacco and  save her.
     That's a lot of nonsense.
          There was no George Sacco anyplace  because George
     Sacco wasn't there.

(Emphasis added.)

                                5

anyone else, about  being restrained at  gunpoint by Sacco,  even

though  she was  appellant's  friend and  believed  he was  being

charged  with a crime  that had  been prompted  by his  desire to

protect her from Sacco.

          Although the phrasing of the prosecutor's argument left

something to be desired, it was  not improper to urge the jury to

evaluate the  plausibility of the justification  defense in light

of the  other evidence  (and the  lack thereof),  as well  as the

motivations  and  biases  of  the  defense  witnesses,  including

appellant.  See United States v.  Savarese, 649 F.2d 83, 87  (1st
                                          

Cir. 1981) (defendant "had  no right to expect the  government to

refrain from commenting on the quality  of his . . . witnesses or

from  attacking  the weak  evidentiary  foundation  on which  the

[defense] rested");  Mount,  896 F.2d  at 626  (not improper  for
                          

government to argue that  its interpretation of the evidence  was

more persuasive); United States v. Glantz, 810 F.2d 316, 321 (1st
                                         

Cir.),  cert. denied, 482 U.S. 929 (1987) (government is entitled
                    

to comment on plausibility of defense theory).  Nevertheless, the

government's closing unnecessarily risked the impression that the

prosecutor was vouching, either personally  or on the strength of

other extraneous considerations, that George Sacco did not exist,

rather than merely urging the jury to so conclude on the basis of
                                  

the evidence.   See, e.g., United States v.  Turner, 892 F.2d 11,
                                                   

14  (1st Cir.  1989)  ("[i]t  is  the  jury's  responsibility  to

evaluate the credibility of the evidence presented").  Similarly,

the  prosecutor's  repeated  statements  that  the  defendant was

                                6

guilty  verged on the exclusive province of the jury to determine

guilt.   Of  course, any  representation as  to the  prosecutor's

personal belief in the guilt of an accused is improper.  Nickens,
                                                                

955 F.2d  at 121; Mejia-Lozano, 829  F.2d at 273.2   The means to
                              

eliminate  even an appearance  of overreaching were  at hand; the

prosecutor   need  simply   have   predicated  these   entreaties

explicitly and  exclusively on  reasonable inferences yielded  by
                           

the  evidence.  See Cain, 544 F.2d at 1116 (prosecutor's argument
                        

that accused is guilty is not improper, provided it calls for the

jury's assessment of  the evidence  and is not  presented as  the

personal opinion of the prosecutor).3

                    

     2The government  concedes that  the prosecutor, on  at least
one  other occasion,  implied  a personal  belief in  appellant's
guilt.  The prosecutor stated:

          I think when you look at the evidence in this case
                 
     and use your common  sense, there's only one conclusion
     you can  reach and that  is that this  defendant Joseph
     Smith has been proved guilty beyond a reasonable doubt.

(Emphasis  added.)   The prosecutor's  statement could  have been
purged and converted  into permissible argument  by a simple  re-
phrasing:  "The government submits . . ."
     Another statement by the prosecutor     that even if  appel-
lant's story were believed  he was "still guilty" because  he had
not established  a justification  defense    permissibly  urged a
reasonable  inference  based  directly  and  exclusively  on  the
evidence.  See infra at pp. 10-12.
                    

     3Recognizing its  special obligation to see  that justice is
done   and  to  refrain  from   improper  methods  in  seeking  a
conviction, see  United States v. Quesada-Bonilla,  952 F.2d 597,
                                                 
602  (1st Cir. 1991);  Berger v. United  States, 295 U.S.  78, 88
                                               
(1935),  the  government forthrightly  concedes  improprieties in
certain other statements made in its closing argument.
     It concedes that it  impermissibly used pejorative  language
in  repeatedly  characterizing  the  testimony  of appellant  and
Machado as  lies.  See  United States  v. Rodriguez-Estrada,  877
                                                           
F.2d 153, 159 (1st Cir. 1989) ("prosecutor's obligation to desist
from the use  of pejorative language . . . is every bit as solemn

                                7

          A new trial is  unwarranted so long  as we are able  to

conclude  with  a high  degree  of  confidence that  the  alleged

prosecutorial misconduct did not affect the outcome of the trial.

Mejia-Lozano, 829 F.2d  at 274; Panet-Collazo,  960 F.2d at  260.
                                             

The strength of the case against  the defendant often is the most

significant factor  to  be  balanced  against  the  prosecutorial

misconduct.   United States v. Boldt,  929 F.2d 35,  41 (1st Cir.
                                    

1991);  Rodriguez-Estrada, 877 F.2d at 159.  We therefore examine
                         

the evidence,  and other  relevant factors, to  determine whether

the alleged prosecutorial misconduct warranted a new trial.

          The  prejudice  from  the  errant  statements   in  the

prosecutor's  closing argument  was  mitigated somewhat  by their

context  and ambiguity.  See Grant, 971  F.2d at 810.  Cf. United
                                                                 

States  v. Ingraldi,  793 F.2d  408, 416  (1st Cir.  1986) (among
                   

factors for  determining whether new  trial is warranted  is "the

severity of the  misconduct"); United States  v. Brown, 938  F.2d
                                                      

1482,  1489 (1st  Cir.),  cert. denied,  112  S. Ct.  611  (1991)
                                      

(same).  Although their   ambiguity perhaps risked jury confusion
                                                  

as to its role  as the sole  arbiter of guilt  and finder of  the

facts,    the    prosecutor's   contentions    that   appellant's

                    

as  his obligation to attempt  to bring the  guilty to account");
cf. Nickens, 955 F.2d at 121 ("[i]t is . . .  inappropriate for a
           
prosecutor to call defendant a liar").  The prosecutor character-
ized their testimony as "a lie," "one tall tale," and "a complete
fabrication."    The  government concedes  as  well  that  it was
improper  for the  prosecutor  to state  that  he "welcomed"  the
burden of proof in this case.  See United States v. Flaherty, 668
                                                            
F.2d  566, 597  (1st  Cir. 1981)  (statement  told jury  "of  the
Government's confidence that the evidence would show guilt beyond
a reasonable doubt").

                                8

justification defense  had been concocted and that  he was guilty

were  in no  sense objectionable  as mischaracterizations  of the

evidence,  but  because  they  were  too  loosely  linked to  the
                                                         

evidence, hence  may have  conveyed the  personal opinion of  the

prosecutor.  Cf.  United States  v. Farnkoff, 535  F.2d 661,  668
                                            

(1st Cir. 1976) (the fact that the prosecutor made clear that the

jury  should  arrive  at  its  verdict, based  on  the  evidence,

mitigated the  effect of  statement that defendant  was guilty).4

Absent any  suggestion of superior knowledge  or personal opinion

on  the part  of the prosecutor,  similar argumentation  has been

found not  to be improper.  See United States v. Garcia, 818 F.2d
                                                       

136,  143-44 (1st  Cir.  1987) ("Although  we think  a prosecutor

would be well advised  to avoid directly accusing a  defendant of

lying    since jurors could believe the  government has knowledge

outside  the evidence  about the  defendant's veracity     we are

confident  that  the  statements in  this  case  would have  been

                    

     4The  court   firmly  advised   the  jury  in   its  opening
instructions as follows:

     [Y]ou are the judges of the  facts.  You have to decide
     what actually happened in this case.  You and you alone
     make that decision.  No one, simply no one can trespass
     on   that   very  specialized   unique  area   that  is
     exclusively yours . . .

     In its final  jury charge, the court reiterated:  "Remember,
I told you  that you are the sole judges of the facts.  You alone
decide the facts . . . You are the sole judges of the facts."
     Contemporaneous  curative  instructions were  not  given, as
none were  requested.  In its opening jury instructions, however,
the  district court  informed  the jury  that  the statements  of
counsel  are not evidence.   In its final  charge, given the same
day as its opening instructions, the court reminded the jury that
the  evidence was limited to  the testimony of  the witnesses and
the exhibits admitted by the court.

                                9

perceived only as commentary on the implausibility of the  defen-

dant's  story.").   Nor did  the overzealous  statement that  the

prosecutor "welcome[d]" the burden of proof constitute reversible

error,  as  its context  did  not suggest  that  the prosecutor's

confidence was  founded on  knowledge or evidence  unavailable to

the jury.5   See Flaherty, 668  F.2d at 597.   Viewed in context,
                         

these  ambiguous statements  were not  "so egregious  that [they]

'seriously  affect[ed]   the   fairness,  integrity   or   public

reputation of judicial  proceedings.'"  Nickens, 955  F.2d at 121
                                               

(quoting United States v. Young, 470 U.S. 1, 15 (1985)).6
                               

          Even  more  importantly,   however,  the   prosecutor's

statements  must be  considered  harmless error  in  view of  the

uncontested evidence  against appellant.  The  entire defense was
                                                     

that appellant's possession of the firearm was  justified.  Among

the  essential elements  of a  justification defense,  see, e.g.,
                                                                

United  States  v.  Lemon, 824  F.2d  763,  765  (9th Cir.  1987)
                         

(defining four elements);  United States v. Gant, 691  F.2d 1159,
                                                

1162-63  (5th Cir.  1982) (same),  is the  "requirement that  the

defendant have no alternative to possession of the firearm  [and]

that  the defendant  get rid  of the  firearm as  soon as  a safe

opportunity  arises."  United States v.  Singleton, 902 F.2d 471,
                                                  

473 (6th Cir.), cert. denied, 111 S. Ct. 196 (1990).
                            

                    

     5The statement  was as follows:   "[T]he government  has the
burden of  proof in this case  and I welcome that  burden, ladies
and  gentlemen, because in this case we have proven the defendant
guilty beyond a reasonable doubt."

     6See also supra note 4.
                    

                                10

          The jury's  rejection of the justification  defense did

not depend on their discounting,  in any measure whatever, either
                                        

Machado's  or appellant's  testimony  about Sacco's  involvement.

Appellant took the stand and admitted that he had denied having a

firearm when asked by  Officer Brown, then fled with  the firearm

still  in his possession.  There was no contention that appellant

believed  he was in any  physical danger from  Officer Brown, but
                                                            

only from Sacco.   Thus, even assuming appellant's  possession of

the firearm was justified at the outset, his refusal to surrender

it at the request of a  police officer from whom he did not  fear

bodily  harm   (as   distinguished  from   arrest   for   illegal

possession),  rendered  the  justification defense  unsupportable

under any view of the evidence.  See United States v. Stover, 822
                                                            

F.2d 48, 50 (8th Cir. 1987) (justification defense does not apply

when possession continues after  the imminent danger of death  or

serious bodily harm has passed).

          Given  that  appellant's   justification  defense   was

fatally  deficient, as a matter of law, without regard to whether

the  roles of  George  Sacco and  Deirdre  Machado were  real  or

concocted,   the  government's   closing  argument   affected  no

substantial right.7   See,  e.g., Rodriguez-Estrada, 877  F.2d at
                                                   

159 (although prosecutor called defendant a liar and crook, error

held  "harmless" in  light  of overwhelming  evidence of  guilt);

United States v. Doe, 860 F.2d 488, 494-95 (1st Cir. 1988), cert.
                                                                 

                    

     7See United States v.  Mitchell, 725 F.2d 832, 837  (2d Cir.
                                    
1983) (court gave  the defendant "an opportunity to  be acquitted
on the basis of a defense to which he was not entitled").

                                11

denied, 490 U.S. 1049  (1989) (unwarranted comments by prosecutor
      

ruled "harmless"  in light  of overwhelming evidence  of guilt).8

Thus,   we  have   the   utmost  confidence   that  any   alleged

prosecutorial misconduct did not affect the outcome of the trial.

          Although  appellant did  not have  a perfect  trial, he

most assuredly received a  fair one, see United States  v. Hodge-
                                                                 

Balwing, 952 F.2d 607, 611  (1st Cir. 1991), and is  not entitled
       

to  a new one.   See  Fed. R.  Crim. P.  52(b) (no  "plain error"
                    

unless it "affect[s] substantial rights").

          Affirmed.
                  

                    

     8Finally,  the prosecutor's statements were not so egregious
as to warrant ordering a new trial as a deterrent  to future mis-
conduct.   See, e.g., Quesada-Bonilla, 952 F.2d at 602 (court may
                                     
grant new trial  to deter future prosecutorial misconduct).   The
Supreme Court has cautioned against reversals for harmless error.
United States v.  Hasting, 461 U.S. 499,  505-07 (1983) (exercise
                         
of  supervisory power  to  reverse conviction  as deterrent  held
unnecessary where error was harmless).  Moreover, we are aware of
nothing  which  would  indicate  that  these  improprieties  were
anything  other  than an  isolated  instance  which will  not  be
repeated.   See United  States v. Dworken,  855 F.2d  12, 32 (1st
                                         
Cir.  1988)  (we will  not  order a  new  trial  simply to  deter
misconduct in circumstances where we are confident the misconduct
will not be repeated).

                                12
