
USCA1 Opinion

	




                           UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                ____________________          No. 96-1933                                   UNITED STATES,                                      Appellee,                                         v.                                 DANIEL P. ROBERTS,                               Defendant - Appellant.                                ____________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                       [Hon. Gene Carter, U.S. District Judge]                                ____________________                                       Before                                Selya, Circuit Judge,                             Cyr, Senior Circuit Judge,                            and Keeton,  District Judge.                                _____________________               William Maselli                             , with whom                                          Law Offices of William Maselli                                                                        was          on brief for appellant.               F. Mark Terison, Assistant United States Attorney, with whom          Jay               P.                  McCloskey, United States Attorney, and  Jonathan                                                                   A.                                                                       Toof,          Assistant United States Attorney, were on brief for appellee.                                ____________________                                    July 23, 1997                                ____________________                                         Of the District of Massachusetts, sitting by designation.                    KEETON, District                                      Judge. A jury convicted defendant-          appellant Daniel Roberts on charges of conspiracy to possess          anabolic steroids with intent to distribute, and possession of          anabolic steroids with intent to distribute, in violation of 21          U.S.C. SS 841(a)(1), 841(b)(1)(D), and 846. Defendant contends on          appeal that (1) four incidents of prosecutorial misconduct during          the closing and rebuttal arguments deprived him of a fair trial;          (2) the district judge's failure to instruct the jury on the          requested defense theory of possession constitutes reversible          error; and (3) the district judge's instructions and re-          instructions on permissible inferences from possession in quantity          were unfairly prejudicial. Concluding that the egregiousness of          the prosecutorial misconduct alone deprived Roberts of a fair          trial, we vacate the convictions and remand for a new trial.                                   I. BACKGROUND          A. Facts                    Since we are concerned with the claim of prosecutorial          misconduct and not with a claim of insufficient evidence, our          description of the facts is not limited to evidence and inferences          most generous to the government. Rather, we state a balanced          description of the evidence in the record before us, to aid in          focusing on whether the impermissible comments of the prosecutor          tainted the proceedings materially.                                              See                                                  Arrieta-Agressot v.                                                                      United          States, 3 F.3d 525, 528 (1st Cir. 1993) (court does not "take the          evidence in the light most favorable to the government" because the                                         -2-          jury decision for conviction "may itself be tainted by the improper          remarks").                    An investigation that led to this prosecution commenced          when a young boy's mother told local police that Robert Tibbetts          had sold steroids to her teenage son. The ensuing investigation          and eventual detention of Tibbetts led, in turn, to defendant          Roberts, as explained more fully below.                    At trial Robert Tibbetts, appearing as a witness called          by the government, pursuant to a cooperation agreement, testified          to the events summarized here.                    Tibbetts purchased anabolic steroids from Dr. Patterson,          a veterinary doctor in Maine, representing their intended use to be          for draft horses. After Tibbetts had purchased steroids two or          three times each week during 1995, Dr. Patterson cut off Tibbetts'          supply because he was concerned about potentially illicit use.          Tibbetts then began obtaining steroids from a different source --          a Dr. Hussey of North Conway, New Hampshire -- from whom he also          purchased oil-based testosterone every week.                    During this time, Daniel Roberts began buying steroids          from Tibbetts. Roberts worked as a personal trainer at different          gyms in the Lewiston-Auburn area. He was certified to advise          clients about nutrition and fitness and was himself a member of a          team of weightlifters. Those of Roberts' clients who testified          said they had no knowledge of Roberts' selling steroids, nor did          they have knowledge of his encouraging the use of steroids. Both          Roberts' girlfriend, Michelle Saba, and Tibbetts testified that                                         -3-          Roberts owned no large animals to whom the steroids could have been          administered legally.                    When Roberts became concerned because a large part of an          order was missing from a North Conway shipment, Roberts and          Tibbetts met to discuss the possibility that Roberts would make the          necessary trips to New Hampshire instead of Tibbetts. Up until          this point, Roberts had been providing between $1000 and $1500 in          cash for the drugs for each trip Tibbetts made. In addition, Dr.          Hussey had begun to express his concern over the quantity of          steroids Tibbetts purchased on such a regular basis. Tibbetts then          told Roberts he would not make any more trips to North Conway.          Instead, Tibbetts suggested that Roberts make the trips and use          Tibbetts' name. Both Dr. Hussey and his secretary confirmed that          someone other than Tibbetts began picking up and paying for the          steroids during the fall of 1995.                    Tibbetts having been turned in by a concerned mother, as          stated above, because he allegedly sold steroids to her teenage          son, the investigation of Tibbetts led to the delivery and sale of          steroids from Dr. Hussey's office. Agent Bals of the United States          Drug Enforcement Administration arranged to monitor a transaction          and to detain a person involved, who turned out to be Roberts on          his way home from Dr. Hussey's office in New Hampshire. Roberts'          car was stopped in Maine by Maine law enforcement authorities.          Roberts handed over a large box of steroids, telling the Maine law          enforcement officers that the steroids were for Roberts' own          personal use.                                         -4-                    At trial, Michelle Saba, Roberts' girlfriend and a          reluctant witness, indicated that the defendant was obsessed with          weight lifting and with increasing his weight. He had grown from          130 pounds, when she met him several years ago, to well over 200          pounds. Saba further testified that Roberts used steroids daily,          sometimes twice a day, and that their desperate financial situation          was due to his addiction.                    Russell Barlow, a high school teacher and friend of          Roberts, testified that becoming larger and stronger was an          obsession for Roberts and that Roberts took steroids for that          reason. Barlow further testified that he (Barlow) operated a          personal training business, and it was his experience that abusers          of steroids would often hoard the drug in anticipation of a time          when it would be unavailable. Apparently, weight lifters were able          to procure steroids from the black market and from veterinarians,          but since black market steroids were frequently impure, weight          lifters preferred drugs provided by a veterinarian.                    Agent Bals testified that a lively market for steroids          existed in the gyms and among participants in various sports.          Barlow stated that selling steroids could be very profitable,          especially since the shelf life of many steroids was as long as          five years.                    The only evidence linking Roberts to the sale of          steroids, however, other than his being in possession of large          quantities, was the testimony at trial of Tibbetts, who said that          Roberts had once stated that he had lost money selling steroids in                                         -5-          Massachusetts. Telephone records in evidence show that Roberts          made frequent calls to telephones located in Massachusetts.          B. Indictment, Conviction, and Sentence                    In a two-count indictment returned on February 15, 1996,          Roberts was charged with (1) conspiracy to possess with intent to          distribute anabolic steroids and (2) possession with intent to          distribute anabolic steroids in violation of 21 U.S.C. SS 841(a)          (1), 841(b)(1)(D) and 846.                    On April 25, 1996, the jury trial began in the United          States District Court for the District of Maine. On April 26,          1996, the jury returned verdicts of guilty on both counts.                    The district judge sentenced Roberts to concurrent          sentences of sixteen months in prison for each of the two counts,          to be followed by two concurrent three-year terms of supervised          release. Following imposition of sentence, Roberts filed this          timely appeal.                            II. PROSECUTORIAL MISCONDUCT          A. Trial Transcript                    We recite verbatim substantial parts of the 22-minute          summation and 10-minute rebuttal of the prosecutor.                         MR. TOOF: (10:18 AM) Ladies and                      gentlemen of the jury, after I get done                      arguing, Mr. Maselli will have an                      opportunity to address you and I will then                      have a brief opportunity, when he is done,                      for rebuttal.                                        . . .                                         -6-                         As I go through my review of the                      evidence I will point out several areas in                      which you could be misled from your oath                      and obligation as jurors in this case. I                      want to remind you, and I remind you again                      and again and again that this is not a                      popularity contest, this is not [a] what                      should be done contest,  this                                                     is                                                        a                                                           trial                      that                              defines                                       justice                                                 based                                                        on                                                             your                      objective evaluation of the facts in this                      case.                              In other words, what has been shown                      to you, what has not been shown to you and                      what                              you                                   reasonably                                                infer                                                       from                                                              the                      evidence that has been brought before you.                                       . . .                          The defense counsel spent a great deal                      of time attempting to show you that Mr.                      Tibbetts is not the kind of man the                      federal government wants you to believe.                         [A q]uestion was asked relative to his                      suggest[ed] sexual inclinations, that he                      used young boys not only for business                      purposes but to assist him in the                      distribution of anabolic steroids and what                      have you.                         There is not a fact, there is not one                      fact that has been established in this                      case that Mr. Tibbetts did any of these                      things.                         However, if you accept the questions as                      facts you could conclude what is the                      government doing dealing with him, a guy                      like this.   Let                                        me                                           tell                                                 you                                                     that                                                           every                      day,                            every                                  courtroom                                            in                                               this                                                    country                                                             the                      federal government, the state government,                      uses                            people                                   like                                        Robert                                               Tibbetts                                                        and                                                             the                      reason for it is because Tibbetts elected                      to                            plead                                   guilty,                                            and                                                 was                                                       testifying                      yesterday to save his hide.                         As Mr. Maselli suggests,        either                      Tibbetts                                  was                                       a                                          trained                                                   monkey                                                            doing                      whatever  he  could  do  to  satisfy  the                      government                                  masters                                          or                                             he                                                was                                                    telling                                                             the                      truth.                         Do                             you                                 think                                        this                                             is                                                  the                                                     first                                                            time                                         -7-                      anything                                like                                     this                                           happened?                                                        Of                                                          course                      not, that is why we have things like plea                      agreements. If you want to go home                      tonight in time to watch the early news,                      in time for dinner, you can decide this                      case very quickly but if you do you will                      not have considered all of the evidence.                      I                         ask                             you                                 that                                      you                                          consider                                                   the                                                        Tibbetts                      testimony in view of the agreement. These                      are the terms and conditions which control                      the government's entire relationship with                      this                            man,                                 nothing                                         more,                                               nothing                                                       less. I                      ask you to read paragraphs 5, 4, 5 and 10.                         All right. Once you conclude that, I                      believe you will believe his testimony was                      controlled by this evidence, nothing more                      and nothing less. You should weigh his                      credibility in view of this agreement.                      This                            is                               all                                   we                                      have                                           to                                              gain,                                                    and                                                        this                                                              is                      all                           we                              have                                    to                                       lose                                             from                                                  his                                                        testimony                      before you.                                        . . .                         Tibbetts told you that Drown provided                      the money, Tibbetts made the order,                      Tibbetts went to the doctor' office in                      North Conway and obtained the steroids[,]                      provided them to Drown so that he could do                      with them whatever he wanted.                         This relationship went on for two or                      three orders from Dr. Hussey until only                      half an order came [back to Drown]. Drown                      came over to Tibbetts' house and wanted to                      know where the rest of the order was.                      During the conversation the defendant,                      Danny Roberts, said something like, "I'll                      break your bones, those are my steroids."                      It                          was                              brought                                      out                                          throughout                                                     the                                                          course                      of trial that the reason that Tibbetts was                      afraid                              of                                 the                                     problems,                                               is                                                  that                                                        Tibbetts                      was aware that Roberts was the treasurer,                      I                          believe,                                    of                                       the                                            Sarasins                                                      Motorcycle.                      That                            fact                                 should                                        not                                             qualify                                                     you                                                         in                                                             any                      way                           in                              reaching                                        your                                             verdict                                                     because                                                              if                      you do, you will have decided the case for                      the wrong reasons, whether he is a member                      of                           a                              motorcycle                                          gang                                               or                                                   whatever,                                                              has                      nothing to do with the facts of this case.                      All right?                                         -8-                         This is not a personality contest.                                        . . .                         Agent Bals [...] and the local police                      department got involved in the case on or                      about January 28th or 29th they went to                      Dr. Hussey's office, and they went there                      because back on the 23rd, Dr. Hussey                      received a Federal Express package                      addressed to him from the defendant.                      Inside was a check for almost $10,000 from                      Robert Tibbetts to Dr. Hussey and a note                      asking for some thousand dollars worth of                      steroids. Okay?                         He                              did                                   a                                      controlled                                                 dilute,                                                          if                                                              you                      will,  where  Roberts  came  to  pick  up                      steroids,                                 and                                     the                                          agents                                                 waited                                                        to                                                            take                      possession,                                    they                                          followed                                                   him                                                        down                                                              the                      road back to Maine and then arrested him.                      All right.                         That                               is                                  essentially                                               what                                                    the                                                        case                                                              is                      all about.                                        . . .                         How many years' supply did these two                      guys obtain in 3 1/2 months? I suggest to                      you that even under a conservative                      estimate, even if Ms. Saba hedged a                      little bit and in fact the defendant was                      not using two bottles, he was using four                      bottles, he bought enough steroids to last                      him until the year 2000.      Ladies                                                              and                      gentlemen,                                  that                                       fact,                                             not                                                 that                                                       inference                      but                           that                                fact,                                      that                                           fact                                                should                                                       lead                                                             you                      to                          a                            conclusion,                                        that                                             conclusion                                                        is                                                            that                      Roberts  did  not  use  all  this  supply                      himself. I'm not beginning to contest the                      possibility that he didn't use some of it                      because he did. He is an anabolic junkie.                      But he also dealt some too. He didn't                      deal it to Hebert and Tehan, to Sandra                      Roy, the lady that gave him a ride to                      North Conway, not knowing where she was                      going, and certainly not to Michelle Saba.                      He dealt it to those people obsessed with                      anabolic steroids and who are looking for                      a good source of supply.                         You                              know,                                    the                                         thing                                               in                                                    this                                                        case                                                              is                                         -9-                      that                            the                                defendant                                           has                                               no                                                  obligation                                                              to                      testify and you should take that fact into                      consideration                                     in                                        no                                           way                                               whatsoever.                                                              But                      with                            respect                                    to                                       the                                           rest                                                of                                                   the                                                       case                                                             the                      defendant has the same responsibility and                      that                            is                               to                                  present                                          a                                            compelling                                                       case,                                                              if                      they                             are                                  to                                     go                                         forward.                                                     We                                                        know the                      defendant deals with a large number of                      people, according to Mr. Barlow, thousands                      of people involved with weight lifting and                      anabolic steroids.  Who did you see, 2 of                      50                          people                                 that                                      he                                          trains.                                                     Where                                                         is                                                             the                      team?                              Russell Barlow?                                                                                          Is that it?                                                                                                                    Where                      did the steroids go?  You know where they                      went to.  Thank you. (10:40 AM).          (Excerpts from Transcript of Jury Trial, April 25-26, 1996, at 228-          38 (emphasis added)).                    We quote a part of the defense summation, for context.                         MR. MASELLI: Thank you, your Honor.                      May it please the Court. Ladies and                      gentlemen of the jury, Mr. Toof sat down                      rather quickly and I guess this case is to                      be based on conjecture, guessing as to                      what the evidence is and what happened.                       Then I guess it should take 5 or 10                      minutes and you can get home, not just for                      dinner but you can get home for lunch as                      well. If you want to base this case on                      guessing as to what the evidence is, it is                      going to be very easy.                                        . . .                         You know, Mr. Toof tells you about                      Tibbetts, and I will talk about Tibbetts                      as we go along here, about Tibbetts, he                      signed an agreement to tell the truth with                      the government, and so he wants you to                      believe that he is coming here to tell the                      truth. He never tells the truth to                      anybody else, and he sees people left and                      right but he is telling the truth now.                                        . . .                         Mr.                                 Toof's                                          comments                                                    about                                                            Daniel                      Roberts' association is like Shakespeare's                      Mark Anthony, talking about how Brutus is                      an honorable man.                                                                                He wants you to draw an                                        -10-                      honest                              conclusion                                         when                                              he                                                 is                                                    telling                                                             you                      that Mr. Roberts is in a gang, and not to                      think                             about                                   it. If he is not in a gang,                      he belongs to a club.                         Second of all, you don't need to guess                      or speculate whether or not Danny Roberts                      is an honorable man, you've heard plenty                      of evidence and you know that he is.                                       . . .                          So                             in                                closing                                         we                                            ask                                                you                                                     to                                                        keep                                                              in                      mind that it is not Daniel Roberts' burden                      or                            obligation                                        to                                             prove                                                    that                                                          he                                                               is                      innocent.                         How do you prove that you are innocent                      other than pleading not guilty? Getting                      up and saying, "I didn't do it." It is not                      his burden to convince you of his                      innocence.   It                                         is                                             the                                                  burden                                                          on                                                              the                      government                                   to                                       establish                                                 guilt                                                        beyond                                                                a                      reasonable doubt and the specific charges                      that                            they                                 brought                                         against                                                  him                                                      and                                                          it                                                              is                      only                            by                               holding                                        the                                            prosecution                                                        to                                                            that                      burden of proof that justice is done.                                        . . .                         Justice is holding the government to                      the burden of proof that the law places                      upon them to protect every single one of                      us.                                        . . .                         You                              know                                   why                                        Dan                                            Roberts                                                    was                                                         getting                      the                           steroids.                                       The                                          prosecution                                                      is                                                          asking                      you                           to                              come                                    to                                       another                                               conclusion                                                           based                      upon guess work.                                        . . .                         Daniel Roberts is not guilty of these                      offenses. We ask you to return the                      verdict of not guilty on both.                         Thank you very much. (11:10 AM).          (Id. at 238-41, 253-55 (emphasis added)).                    Following are excerpts from the 10-minute rebuttal of the                                        -11-          prosecutor.                         MR. TOOF: Thank you, your Honor.                      Ladies and gentlemen, a                                               strange                                                       twist                                                              in                      defense counsel's argument. He closed out                      by arguing lack of evidence when he spent                      the                           lion's                                  share                                        in                                           telling                                                   you                                                       that                                                             you                      can't believe a guy like Robert Tibbetts.                                       . . .                          This is not Tibbetts' trial. His day                      in court may or may not come because of                      other cases he has. I ask again that you                      review his testimony in conjunction and                      ask yourself this question:    Would                                                              you                      believe                               what                                    he                                        had                                            to                                               tell                                                     you                                                         if                                                             you                      knew that he didn't tell you the truth and                      faces                             the                                 consequences                                              set                                                  forth                                                        in                                                            that                      plea agreement?                         That is the issue.                                       . . .                          Now, if you're going to lie, if you're                      going to pin Dan Roberts with something,                      the clear inference is, from defense                      counsel, this is just that Tibbetts was                      going to come in here without assistance                      and our sanction and purge [sic] himself.                      If you're going to do that, you do a much                      better job.... If we are going to prepare                      our                           witnesses                                     to                                        lie,                                             we                                                would                                                      do                                                         a                                                            much                      better                              job                                  than                                       that. Enough said about                      Tibbetts.                                        . . .                         Now, the essence of the defendant's                      closing was that you should acquit because                      of insufficient evidence.                         The essence of the defendant's argument                      was that you can't allow the government to                      use this kind of witness to prove this                      kind of case.                         All                              I                                can                                    tell                                         you, and repeat to you                      again, that is not the basis upon which                      you can decide issues in this case,   you                      have                              to                                  look                                        dispassionately                                                         at                                                              the                                        -12-                      evidence                                 and                                      draw                                           reasonable                                                       inferences                      that should be drawn from that evidence.                                        . . .                         Mr. Maselli says, you know, the                      government with all its power, resources                      and all of its whatever, there is no                      evidence of one sale. And you are right,                      there is no evidence of a search of                      defendant's house; and you are right, that                      argument is one, an invitation for a cop                      out. You go back to the jury room and                      say, they could have given us more. But                      you have to consider all of the evidence,                      and if I'm wrong Mr. Maselli will probably                      stand up and let us know.    He                                                       knows                                                              as                      well                            as                                I                                  do                                     there                                            are                                                extremely                                                           sound                      reasons why the government cannot bring in                      people                               to                                   take                                        the                                             stand                                                   and                                                        say                                                             they                      bought anabolic steroids from Tibbetts or                      Roberts,  that  I  was  involved  in  the                      conspiracy equally as the defendant.                                                                                                                      That                      is                           a                              fact,                                    and                                         that                                              is                                                  the                                                      law.                                                               Why                      didn't                               we                                   search                                           the                                                house                                                       in                                                           Poland                      Springs?                                   Because                                         that                                               is                                                  an                                                     [abuse                                                             of]                      power                              of                                  the                                      government.                                                     There                                                           is                                                               no                      evidence                                   of                                        the                                              seizure                                                        of                                                             those                      anabolics.                         MR. MASELLI: I object, he is speaking                      of facts outside of the evidence.                         THE COURT: Overruled, he may continue.                         MR. TOOF:  There                                           is                                              no                                                 evidence                                                           based                      upon what you heard during this trial that                      the government had sufficient cause to go                      in Michelle Saba and Dan Roberts' house to                      go in and search for steroids.                                        . . .                         Now, there are too many steroids here                      for personal use and the law tells you                      there is a reasonable inference, that you                      can reasonably conclude that the steroids                      were being distributed.                                        . . .                         THE COURT: Mr. Toof, you have only 10                                        -13-                      minutes in rebuttal.                         MR. TOOF: Thank you. Sandra Roy                      didn't know they were going to North                      Conway. Didn't know. The evidence is                      sufficient for you to return a verdict of                      guilty. Thank you very much. (11:18 AM).          (Id. at 255-260 (emphasis added)).          B. The Standard for Determining Prosecutorial Misconduct               Applicable to This Case                    On appeal, Roberts raises several issues of prosecutorial          misconduct as to which his counsel did not make timely objections          during the proceedings below. We first consider whether he has          waived or otherwise lost his right of appeal with regard to those          claims of error. See,                                 e.g.,                                       United States                                                    v.                                                        Taylor, 54 F.3d 967,          972 (1st Cir. 1995); United                                       States v.  Griffin, 818 F.2d 97, 100          (1st Cir.), cert. denied, 484 U.S. 844 (1987).                    Rights to have a claim of error heard on the merits are          sometimes lost by failure to object in the trial court.                                                                  See                                                                      United          States v.                    Olano, 507 U.S. 725, 732-34 (1993). "In general, the law          ministers to the vigilant, not to those who sleep upon perceptible          rights." Taylor, 54 F.3d at 972.                    Requiring parties to raise contemporaneous objections          serves several important functions. It gives the trial court the          first opportunity to correct potential injustice by invoking an          immediate cure and forestalling future harm.                                                       See                                                           Griffin, 818 F.2d          at 100 (finding that contemporaneous objections give "both the          court and the party's opponent fair warning and a timely          opportunity to acknowledge bevues and correct them so that cases                                        -14-          can be decided squarely on merit"). Ordinarily, the trial judge is          in the best position to assess the damage at the time done.   Id.          Also, the raise-or-lose rule "prevents sandbagging" and inhibits          strategic or tactical silences that quietly nurture the seed of          trial error for assertion on appeal, should all else fail.                                                                     Taylor,          54 F.3d at 972. In short, adhering to the raise-or-lose rule makes          a positive contribution to "the balanced and orderly functioning of          our adversarial system of justice."  Griffin, 818 F.2d at 99-100.                    Invariable application of the raise-or-lose rule,          however, would be "out of harmony with ... the rules of fundamental          justice."   Olano, 507 U.S. at 732 (1993) (quoting     Hormel v.          Helvering, 312 U.S. 552, 557 (1941)) (internal quotation marks          omitted). Provisions of a Federal Rule of Criminal Procedure are          on point:                         (a) Harmless Error. Any error, defect,                      irregularity or variance which does not                      affect substantial rights shall be                      disregarded.                         (b) Plain Error. Plain error or defects                      affecting substantial rights may be                      noticed although they were not brought to                      the attention of the court.          Fed. R. Crim. P. 52.                    This Circuit has consistently held, in applying the law          of preclusion as laid down in                                        Olano, 507 U.S. at 733-34, and                                                                      United          States v.                    Young, 470 U.S. 1, 15 (1985) (plain-error exception is to          be used sparingly, solely to avoid miscarriage of justice), that          errors not objected to at trial will be reviewed by the appellate          court only when they are "plain" and undermine the fundamental          fairness of the trial.  See, e.g., United                                                     States v. Sullivan, 85                                        -15-          F.3d 743, 748 (1st Cir. 1996); United States                                                       v.                                                           Luciano-Mosquera,          63 F.3d 1142, 1156 (1st Cir. 1995),                                             cert. denied                                                        , --- U.S. ---, 116          S. Ct. 1879 (1996);  Taylor, 54 F.3d at 972;    United                                                                   States v.          Romero, 32 F.3d 641, 651 (1st Cir. 1994);      United                                                                   States v.          Hunnewell, 891 F.2d 955, 956 (1st Cir. 1989);   United                                                                  States v.          Mejia-Lozano, 829 F.2d 268, 272-73 (1st Cir. 1987).                    Plain error review is ordinarily limited to          "blockbusters" and does not "consider the ordinary backfires --          whether or not harmful to a litigant's cause -- which may mar a          trial record."  Griffin, 818 F.2d at 100. The plain error hurdle          is high. See                        Hunnewell, 891 F.2d at 956. Exceptions to the raise-          or-lose rule are reserved for the redress of those errors that          "seriously affect the fairness, integrity or public reputation of          the judicial proceedings."  Young, 470 U.S. at 14 (quoting United          States v. Atkinson, 297 U.S. 157, 160 (1936) (internal quotation          marks omitted)).                    Among the strictures that channel appellate discretion in          plain error review are three of commonly recognized significance:          the appellant must show (1) the occurrence of an error; (2) that          the error is obvious or clear under current law; and (3) that the          error substantially and adversely affects the rights of the          appellant. See Olano, 507 U.S. at 732-34; United States v. Laboy-          Delgado, 84 F.3d 22, 31 (1st Cir. 1996); Romero, 32 F.3d at 651.          In order to discern the severity of the error and its weight in          plain-error analysis, a court must evaluate the error against the          entire record.  See Griffin, 818 F.2d at 100. See also Young, 470                                        -16-          U.S. at 11-12;  Laboy-Delgado, 84 F.3d at 29;   United                                                                  States v.          McMahon, 938 F.2d 1501, 1505 (1st Cir. 1991).          C. Application of the Standard                    It is axiomatic that the defendant's right against self-          incrimination, as protected by the Fifth Amendment, forbids the          prosecution from commenting on an accused's failure to take the          stand and testify on his own behalf.  See Griffin v.  California,          380 U.S. 609, 613 (1965).                    In the present case, in fairness to the prosecution, we          must take account of the use by defense counsel of a permissible          defense strategy with respect to a "theory of the case." A          defendant is guaranteed an opportunity to advance a "theory of the          case" from the defense perspective.  See United States v. Rivera-          Santiago, 107 F.3d 960, 967 (1st Cir. 1997) ("The defendants were          entitled to have their theory of the case, as developed through          their evidence, presented to the jury on an equal footing with the          government's theory of the case."). When a defendant advances a          "theory of the case," however, this opens the door to an          appropriate response by the prosecution, commenting on the "quality          of his ... witnesses or ... attacking the weak evidentiary          foundation on which the defendant's theory of the case rested."          United                  States v. Savarese, 649 F.2d 83, 87 (1st Cir. 1981). In          Savarese, this Circuit recognized that the government, in its          response, has some leeway to comment on the defendant's failure to          produce evidence supporting the defendant's stated theory.    Id.                                        -17-          The door, however, is not open to the prosecutor's using such an          occasion to comment, even indirectly, on a defendant's failure to          testify.  E.g., United                                  States v.  Glantz, 810 F.2d 316, 322 (1st          Cir. 1987). The applicable standard is                      whether, in the circumstances of the                      particular case, the language used was                      manifestly intended or was of such                      character that the jury would naturally                      and necessarily take it to be a comment on                      the failure of the accused to testify.          Id. (internal quotation marks omitted). Applying this standard, we          conclude that the prosecutor in this case impermissibly entered          upon forbidden terrain.  See also United States v. Hardy, 37 F.3d          753, 757 (1st Cir. 1994) (prosecutorial argument that defendants          were "still running and hiding"); United                                                    States v. Skandier, 758          F.2d 43, 45 (1st Cir. 1985) (finding prosecutor's question during          closing as to how defense counsel would explain identified events          that occurred, in a case where the defendant did not take the          stand, violative of the Griffin rule).                    In the present case, the prosecutor violated both the          rule against commenting on the defendant's failure to testify and          the rule against telling the jury that the defendant has a burden          of proving his innocence. The prosecutor at intervals throughout          his original summation and his rebuttal made comments that          supported a theme, explicitly stated at one point in the remark          that, when a defendant does "go forward" to offer evidence, "the          defendant has the same responsibility [as the government] and that          is to present a compelling case." (Tr. at 237.)          See the          emphasized passages in quotations from the record, in Part II.A,                                        -18-          above.                    In some circumstances, contemporaneous curative          instructions have been determined to be sufficient to correct an          obscure reference to one or the other of these two basic rules that          the prosecutor violated in this case. The offending remarks in this          case, however, were not obscure, and curative instructions were          neither requested nor given.                    Given the particular facts of this case, the          prosecutorial excesses identified above were alone too egregious          for this conviction to stand. But there is more. The prosecutor          alluded in his closing argument to evidence not in the record. He          told the jury:                      It was brought out throughout the course                      of the trial that the reason that Tibbetts                      was afraid of the problems, is that                      Tibbetts was aware that Roberts was the                      treasurer, I believe, of the Sarasins                      Motorcycle. That fact should not qualify                      you in any way in reaching your verdict                      because if you do, you will have decided                      the case for the wrong reasons, whether he                      is a member of a motorcycle gang or                      whatever, has nothing to do with the facts                      of this case.           (Tr. at 233.) The rhetorical style of this comment is like that of          the prosecutor's saying to the jury, "the defendant has no          obligation to testify and you should take that fact into          consideration in no way whatsoever" (Tr. at 239), following          immediately with an assertion that is at least seriously misleading          if not worse: "But with respect to the rest of the case the          defendant has the same responsibility and that is to present a                                        -19-          compelling case, if they are to go forward." (   Id.) In all of          these instances, neither the prosecutor's assertion of belief that          the proposition was legally valid nor the context of its use by the          prosecutor insulate it from judicial scrutiny.  See United States          v. Manning, 23 F.3d 570, 574 (1st Cir. 1994); Arrieta-Agressot, 3          F.3d at 529 (finding that inflammatory arguments "excite the jury,          invite a partisan response, and distract its attention from the          only issue properly presented in the case" (emphasis in original)).          In context, the jury, quite reasonably, could have interpreted the          prosecutor's comments in this case as rhetorical flourishes meant          to invite them to do just what the introductory comments literally          said they should not do. Why else would the prosecutor be saying          anything at all about a forbidden subject matter?                    The record before this court on appeal contains no          evidence of Roberts' involvement in any gang. Protestations before          this Court that the prosecutor was merely taking care to          demonstrate an intention to be fair ring hollow. Being fair in          fact is commendable. But parading an appearance of fairness by          calling attention to things not to be considered by the jury is a          dubious tactic in any setting. It is certainly not permissible          when the way it is carried through -- by pointing out the          prohibited comments in order to warn the jury of their forbidden          nature -- tends to implant in the minds of jurors the very things          forbidden, by saying they are things the jury must think about in          order to remember not to think about them.                    We do not lightly excuse the lack of contemporaneous                                        -20-          objections. But, at times, the judge must intervene. In our          judgment, these instances of prosecutorial misconduct, in          combination, undermined the fundamental fairness of the trial and          require us, in the interest of justice, to wipe the slate clean.                    Having determined that these instances of prosecutorial          misconduct require that the conviction be vacated, we do not          address other issues that arose in the trial but are not likely to          arise in any new trial of this case.                  III. PROSECUTORIAL ARGUMENT ABOUT PROBABLE CAUSE                    The prosecutorial argument about probable cause (quoted          in Part II.A above) exceeded proper bounds. We address the matter          only briefly, because this issue is unlikely to arise again in a          new trial.                    The prosecutorial argument on this subject is defended on          appeal on the ground that it was a fair response to defendant's          closing argument. The defense summation included an argument to          the jury that no incriminating evidence would have been found had          the government searched defendant's living quarters because no such          incriminating evidence existed. We assume, dubitante, that this          was a permissible defense argument. In any event, the prosecutor          did not object and the district judge did not intervene.                    The response by the prosecutor to the defendant's          argument was, nevertheless, not permissible. First, a prosecutor          cannot escape the law's prohibitions against arguments on matters          not properly to be considered by the jury in a criminal case by                                        -21-          deliberately withholding an objection to an objectionable defense          argument and arguing that the defense opened the door. Second,          even if we assume that the defense argument was permissible and did          "open the door" to a rebuttal argument by the prosecutor, the scope          of a permitted response is not unlimited. Here, the prosecutor's          response made assertions of fact about conduct and events that were          not supported by any evidence in the record and added assertions of          law that were not entirely accurate.  See Part II.A above. Thus,          the response was out of bounds.                    We say no more on this subject because it is unlikely          that this issue will arise in a new trial.                               IV. JURY INSTRUCTIONS                    The appellant raises additional issues regarding the          court's instructions to the jury. We address only two such issues          because others are unlikely to arise again in a new trial. First,          the district court instructed and reinstructed on the jury's          drawing an inference of intent to distribute, founded on evidence          about quantity of steroids amassed by the defendant. Second, the          district court declined to give the requested instructions as          framed by the defendant regarding an inference or presumption of          the legality of possession, based on evidence of procurement from          a licensed provider. For the reasons stated below, we conclude          that appellant's objections lack merit.                    "The challenged instruction is reviewed for abuse of          discretion to determine whether the charge, taken as a whole fairly                                        -22-          and adequately submit[s] the issues in the case to the jury."          United                   States v.   Rose, 104 F.3d 1408, 1412 (1st Cir. 1997)          (citations omitted) (internal quotation marks omitted).  See also          United States v. Mitchell, 85 F.3d 800 (1st Cir. 1996).                    We conclude that the district court's instructions and          reinstructions on permissible inferences were not an abuse of          discretion. On the contrary, the instructions and subsequent          reinstructions on an inference from the quantity of drugs possessed          were consistent with a large body of precedent.                                                          See                                                              Rose, 104 F.3d          at 1413. Specifically with regard to drug possession and intent to          distribute, this Circuit has recognized that possession of large          quantities of drugs permits the inference that the drugs are for          distribution and not personal use.   See,  e.g., United                                                                   States v          Echeverri, 982 F.2d 675, 678 (1st Cir. 1993);   United                                                                  States v.          Ocampo-Guarin, 968 F.2d 1406, 1410 (1st Cir. 1992); United States          v. Batista-Polanco, 927 F.2d 14, 18-19 (1st Cir. 1991).                    In this case, the trial judge gave somewhat more emphasis          than is usually given to one factor by saying that "it may be          unlikely that an individual in possession of a large quantity of          anabolic steroids" intends them "for his own use." The relatively          isolated placement of this remark in a reinstruction given in          response to a jury request added to the emphasis. The charge to          the jury must nevertheless be taken as a whole. See                                                               United States          v. Boylan, 898 F.2d 230, 244 (1st Cir. 1990);   United                                                                  States v.          Griffin, 818 F.2d 97, 100 (1st Cir. 1987); see also United States          v.             Acosta, 763 F.2d 671, 677 (5th Cir. 1985) (finding it proper for                                        -23-          a trial judge to limit reinstruction to the specific request made          by a jury). Read in its entirety, the court's instructions explain          the applicable law appropriately and without misleading the jury.          See United                      States v. Alzanki, 54 F.3d 994, 1001 (1st Cir. 1995).          The fact that one part of the instructions was repeated in response          to the jury's written request does not change our assessment that          the instructions taken as a whole were a fair and correct statement          of law. See Rose, 104 F.3d at 1416.    See                                                      also United                                                                  States v.          Ladd, 885 F.2d 954, 959 (1st Cir. 1989); Acosta, 763 F.2d at 677-          78.                    As to the issue regarding the denial of the defendant's          request for instructions based upon 21 U.S.C. S 844(a), we perceive          no error on the part of the court. In relevant part, the statute          provides that "it shall be unlawful for any person knowingly or          intentionally to possess a controlled substance unless such          substance was obtained directly, or pursuant to a valid          prescription..." 21 U.S.C. S 844(a). The defendant's request was          flawed in that it would have placed in the mouth of the trial judge          an implied if not express statement that it was an undisputed fact          that Roberts obtained the steroids pursuant to a valid          prescription. It is true, without dispute in this record, that          Roberts obtained the prescription from a veterinarian licensed to          dispense steroids, and that the prescription was strictly for          animal use, not for human consumption. But no evidence in the          record even tends to prove that Roberts meant the steroids for          animal use. A defense request that the court give an instruction                                        -24-          containing an implicit assumption of the truth of his contention,          unsupported by evidence, was thus a flawed request. The trial          judge did not err in declining to give this requested instruction.          See United States v. Silvestri, 790 F.2d 186, 193 (1st Cir. 1986)          (finding that a court need not instruct a jury on a defense theory          if there is no supporting evidence in the record).                           V. SUFFICIENCY OF THE EVIDENCE                    The beyond-reasonable-doubt burden applies to "every          element" of each offense charged but neither to all the subsidiary          inferences nor to "every hypothesis consistent with the defendant's          innocence."  United States v. Spinney, 65 F.3d 231, 234 (1st Cir.          1995).                    Although the strength of the evidence proffered against          Roberts was less than overwhelming, after considering the record in          full, we conclude that the evidence was sufficient for a reasonable          jury to find beyond reasonable doubt every element of the offenses          charged in the two counts of the indictment. We conclude that the          defendant's request for a judgment of acquittal must be denied.                                     CONCLUSION                    For the reasons explained in this opinion, it is ORDERED:                    The judgment convicting Daniel Roberts of the charges          stated in the two counts of the indictment is                                                       VACATED. The case is          REMANDED for new trial. Costs are awarded to the appellant.                                        -25-
