
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 92-1893                                    UNITED STATES,                                      Appellee,                                          v.                                    TRENT MANNING,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                 [Hon. Francis J. Boyle, Senior U.S. District Judge]                                         __________________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Robert  B.  Mann  with  whom  Mann  & Mitchell  was  on  brief for            ________________              ________________        appellant.            Sean Connelly,  Attorney, U.S.  Department of  Justice, with  whom            _____________        Edwin J. Gale, United  States Attorney, District of Rhode  Island, was        _____________        on brief for appellee.                                 ____________________                                     May 6, 1994                                 ____________________                      STAHL, Circuit Judge.   In this appeal,  defendant-                      STAHL, Circuit Judge.                             _____________            appellant  Trent Manning challenges,  on several grounds, his            convictions for possession with intent to distribute cocaine,            use of a firearm during and in relation to a drug trafficking            crime,  and possession  of a  firearm by  a convicted  felon.            Manning's principal appellate claim is that improper comments            made by  the prosecutor  during closing  arguments undermined            the  fairness of his  trial.   After carefully  reviewing the            record,  we conclude  that the  prosecutor's comments  did so            infect the proceedings  below that Manning  is entitled to  a            new   trial.    Accordingly,  confining  our  discussion  and            analysis to the prosecutorial misconduct issue, we vacate the            convictions.                                          I.                                          I.                                          __                                      BACKGROUND                                      BACKGROUND                                      __________            A.  Relevant Factual Background            A.  Relevant Factual Background            _______________________________                      It  is undisputed  that  late in  the afternoon  on            October  7, 1991,  several members  of the  Providence Police            Department executed  a search  warrant at Manning's  mother's            house,  located  at 151  Doyle  Avenue  in Providence,  Rhode            Island.  In the  course of their search, the  police officers            seized,  inter alia,  a brown  briefcase which  contained the                     _____ ____            material  that  formed  the  basis  of  the  charges  in  the            indictment:    two bags  of  cocaine  weighing 124.64  grams,                                         -2-                                          2            various drug paraphernalia,  a loaded .9 millimeter  handgun,            and six copper pipe bombs.                      It also is undisputed that  just prior to the raid,            two men drove up to Manning's mother's house in Manning's red            Jeep Cherokee.   The man in the  passenger seat was  one Sean            Duncan, who was detained  by the police but never  charged in            connection with  this case.   The vehicle's  driver, however,            was not apprehended at the scene.  The identity of the driver            was (and is) perhaps  the most hotly contested issue  in this            case, as it  was (and  is) the government's  theory that  the            driver brought  the  brown briefcase  into  the house.    The            government argued successfully that  the driver was  Manning;            Manning  and Duncan  testified that the  driver was  one Troy            McKenzie.  The primary government witness on the issue of the            driver's identity  was Detective  Joseph Lennon, a  member of            the  search  team that  day.   Lennon  testified  that, after            having been given the order to execute the search warrant, he            approached  the rear  of  151  Doyle  Avenue,  where  he  saw            Manning, whom he knew and with whom he had conversed on other            occasions,  standing outside the Cherokee and in front of the            house's garage.   Lennon  testified that Manning  was holding            the brown briefcase.  Lennon also testified to seeing  Duncan            seated in the passenger seat of the Cherokee.                      Lennon further testified that, upon seeing Manning,            he  identified  himself as  a  police officer  and,  with gun                                         -3-                                          3            drawn,  ordered  Manning  to  stop.   According  to  Lennon's            testimony, Manning ignored this directive, walked slowly into            the  garage,  and closed  and  locked  the door  behind  him.            Lennon  testified  that  his  pursuit  of  Manning  into  the            building was delayed by the presence of Manning's rottweiler,            which was  running around loose  in the driveway  area behind            the  house.  After eventually  gaining entrance to the garage            (about three to five minutes later), Lennon  found and seized            the  brown briefcase.  He  did not, however,  find Manning in            the house.                      Detective David Lussier  also testified  concerning            the identity of the driver of the Cherokee just  prior to the            raid.  Lussier,  who also  had known Manning  for some  time,            testified that  he observed Manning, along  with a companion,            drive by  his surveillance  position (located about  50 yards            from the house  in a parking lot which provided a direct view            into the rear  yard of 151 Doyle  Avenue) just three or  four            minutes before the raid.   Indeed, Lussier testified that  he            ordered that the warrant  be executed at that  time precisely            because  he  feared  that  eye contact  between  himself  and            Manning had caused his surveillance to be compromised.  After            ordering  the raid,  Lussier testified that  he drove  to the            front  of the house, entered  it through the  front door, and            proceeded to  the basement, where  he found  a broken  window            through which Manning apparently had escaped.                                         -4-                                          4                      In contrast to the detectives' testimony, both Sean            Duncan  and Manning testified that  the driver of  the car at            the time of the raid was (as noted above) Troy McKenzie.  The            substance of their testimony was that Duncan and Manning  had            been riding around together throughout the day, that they had            picked up McKenzie at  some point in the afternoon,  and that            they  thereafter   drove  to   the  residence   of  Manning's            girlfriend.  At this point, Manning gave  McKenzie and Duncan            $40  and asked them to  take his rottweiler,  which was being            kept  at his mother's house, to the veterinarian for a rabies            shot.   McKenzie and Duncan  then drove the  Cherokee over to            Manning's  mother's  house  to  pick  up  the  dog.    Duncan            testified that McKenzie  entered the house  to fetch the  dog            while he waited  in the  car.  Shortly  thereafter, the  raid            occurred.   Duncan also testified  that he had  "no idea" was            happened to Troy McKenzie after he entered the house.                      One week after the execution of the search warrant,            Manning voluntarily  turned himself  in to  the  police.   He            subsequently  was charged  with and  convicted of  the crimes            noted above, all of which necessitated a finding that Manning            was  the person  in  possession of  the  brown briefcase  who            disappeared into 151 Doyle Avenue at the time of the raid.            B.  The Prosecutor's Comments            B.  The Prosecutor's Comments            _____________________________                      Manning complains  of four different  comments made            by the prosecutor  during the course of his closing argument.                                         -5-                                          5            First,   Manning  contends  that  the  prosecutor  improperly            vouched for the credibility of certain  prosecution witnesses            during the following colloquy:                      [PROSECUTOR]:    If Lussier  is  going to                      come in and lie to you he could have done                      that  very,  very  easily.     There's  a                      million little ways they could have given                      it to  the Defendant.   But  they cannot.                      The  prosecution witnesses  cannot engage                      in that  kind of conduct.   They're bound                      by the truth.                      [DEFENSE  COUNSEL]:   I  object  to that,                      your Honor.                      THE COURT:  Overruled.                      [PROSECUTOR]:    They're  bound by  their                      oath  and  limits of  honesty.   The last                      thing you might ask yourselves ---                      [DEFENSE  COUNSEL]:   I  object  to that,                      again I have a motion.                      THE COURT:  Overruled, motion denied.            (Hereinafter "First  Passage").  The government concedes that            this  passage  contains   improper  witness-vouching  by  the            prosecution.                      Next, Manning argues that the prosecutor engaged in            additional  improper   witness-vouching  and  inappropriately            implied that  he had additional  incriminating evidence when,            in  responding to a  defense argument concerning  the lack of            probative  fingerprint evidence  on  the items  in the  brown            briefcase, he stated:                      [PROSECUTOR]:  [W]hen we  get to this gun                      and these bombs  and this dope  we've got                      an eyewitness who knows the Defendant and                                         -6-                                          6                      saw it all in  his hands.  So  it doesn't                      matter whether there's a  print on it  or                      not.   But they  looked anyways  and what                      did that  BCI officer tell you?   He told                      you that  there were some  partial prints                      on those items but  nothing that was good                      enough   to    use   for   identification                      purposes.    Nothing that  has sufficient                      points of comparison on  it for him to be                      positive and we have  to be fair, we have                      to be positive.  Prosecution ---                      [DEFENSE COUNSEL]:  I object to that, Judge.                      THE COURT:  Overruled.                      [PROSECUTION]:   Prosecution  must always                      be fair. . . .            (Hereinafter "Second Passage").   The government acknowledges            that  this prosecutorial  argument  also  contained  improper            witness-vouching, but denies that it implied the existence of            additional  incriminating evidence.   Rather,  the government            contends that it was  an effort to suggest  "that prosecution            witnesses had not created false evidence[.]"                      Third,   Manning   asserts   that  the   prosecutor            impermissibly appealed to the  jury's emotions when, near the            conclusion of the prosecutor's initial  closing argument, the            following exchange took place:                      [PROSECUTOR]:   Twelve responsible people                      will  deliberate  on  this  case.    Take                      responsibility  for   yourselves.    Take                      responsibility for your community.                      [DEFENSE COUNSEL]:  I object to that.                      THE COURT:   The jury's responsibility is                      to  follow  the Court's  instructions and                      find the facts.                                         -7-                                          7            (Hereinafter "Third Passage").   The  government denies  that            thisargumentconstituted animproperappealtothe jury'semotions.                      Finally, Manning charges  that the prosecutor again            impermissibly  appealed  to   the  jury's  emotions   at  the            conclusion of his rebuttal argument:                      [PROSECUTOR]:     Convict  the  Defendant                      fairly  because  the  facts  and  the law                      compel conviction.  Convict the Defendant                      because justice compels conviction.                      [DEFENSE  COUNSEL]:   I  object  to that,                      too. . . .                      THE COURT:   I direct the  jury to ignore                      the last  statement of the  United States                      Attorney.  Your responsibility, as I told                      you  at  the beginning,  is  to determine                      whether or not, in  light of the law that                      is  given  to  you  by  the   Court,  the                      government  has met its burden of proving                      the Defendant guilty beyond  a reasonable                      doubt. . . .            (Hereinafter "Fourth Passage").   Although it is not entirely            clear, the  government appears to concede  that this argument            was improper.   See  Government's Brief at  41 (acknowledging                            ___            that this argument "is  somewhat similar to exhortations that            have been deemed impermissible").                                         II.                                         II.                                         ___                                      DISCUSSION                                      DISCUSSION                                      __________                      Manning's  prosecutorial  misconduct  argument,  as            developed in his  brief and at oral  argument, proceeds along            the following lines.  First, Manning correctly notes that, in            order to convict him of the  crimes with which he was charged                                         -8-                                          8            in  the  indictment, the  jury  was obliged,  as  a threshold                                                          __  _ _________            matter, to find that  he was the person who  disappeared into            ______            the  garage  at 151  Doyle  Avenue  while holding  the  brown            suitcase.     Next,   Manning  observes  that   this  finding            necessarily must have been  anchored upon determinations  (1)            ___________            that Detectives Lennon and Lussier were credible witnesses on            this issue, and (2)  that he and  Duncan were not.   Finally,            Manning contends that the improper witness-vouching committed            by  the prosecutor, which was allowed by the trial court over            his  objection,  both  alone  and  in  conjunction  with  the            prosecutor's  implication  that   there  existed   additional            inculpatory evidence and  the prosecutor's other inflammatory            rhetoric,  so compromised  the jury's  ability to  make these            essential and  liminal  credibility determinations  that  his            trial was  rendered fundamentally unfair.   We find Manning's            reasoning to be persuasive.                      We begin by laying the groundwork for our analysis.            First, we  think that the  First and Second  Passages contain            improper  witness-vouching by  the prosecution.    See, e.g.,                                                               ___  ____            United States  v. Innamorati,  996 F.2d 456,  482 (1st  Cir.)            _____________     __________            (prosecutor may  not vouch  for government  witnesses), cert.                                                                    _____            denied, 114  S. Ct.  409 and  114 S.  Ct. 459  (1993); United            ______                   ___                           ______            States  v. Martin,  815 F.2d  818, 821-23  (1st Cir.),  cert.            ______     ______                                       _____            denied, 494 U.S. 825 (1987).  Next, we believe that the Third            ______            and  Fourth Passages include improper  appeals to the jury to                                         -9-                                          9            act  in ways  other than  as a  dispassionate arbiter  of the            facts.   See,  e.g., United States  v. Young, 470  U.S. 1, 17                     ___   ____  _____________     _____            (1985) (prosecutor  erred in telling  jury to "do  its job");            United  States v. Mandelbaum, 803 F.2d 42, 44 (1st Cir. 1986)            ______________    __________            (prosecutor  erred in urging jury to "do its duty").  Finally            we  think it rather obvious  that, when read  in context, the            prosecutor's comments  in the Second Passage  were an attempt            to counter defense counsel's anticipated argument relating to            the lack of fingerprint evidence on the items seized from the            brown briefcase.   Insofar as the  comments were intended  to            relieve  the jury of  any misapprehension that  there were no                                                                       __            fingerprints  on  these  items,   these  comments  were   not            improper.  Given that defense counsel had not suggested  that            the partial prints were not Manning's, cf. Young, 470 U.S. at                                                   ___ _____            11-14 (discussing the  "invited response" doctrine), however,            the insinuation  that  the partial  prints were  inculpatory,            which  we  believe  inhered  at  least  in  the  prosecutor's            statement that "we have to be fair, we have to be  positive,"            was impermissible.  See e.g., United  States v. Udechukwu, 11                                ___ ____  ______________    _________            F.3d 1101,  1106 (1st  Cir. 1993) (prosecutor  may not  imply            that the  government has inculpatory information  that is not            in  evidence); United States v. Smith, 982 F.2d 681, 683 (1st                           _____________    _____            Cir. 1993) (similar).1                                            ____________________            1.  Additionally,  we   note  that  the   improper  arguments            challenged on appeal  are by no means the  only inappropriate            comments  made to the jury  by the prosecution during closing                                         -10-                                          10                      We also feel constrained to express our belief that            the government's  overreaching in this case  was not entirely            limited  to the  prosecutor's  conduct at  trial.   While  we            acknowledge that the  government was forthright  in admitting            that   the  prosecutor  engaged   in  impermissible  witness-            vouching, we are surprised at several of the  other positions            staked out in  the government's appellate  brief.  First,  we            are  hard-pressed to  comprehend, let  alone agree  with, the                                            ____________________            arguments.   By way of  illustration, we offer  the following            passage  where  the  prosecutor  described his  view  of  the            "roles" played  by the judge, jury,  and, especially, defense            counsel in a criminal trial:                      [PROSECUTOR]:   We all play roles in this                      trial.  You have seen what the Judge does                      and ruled on the law  [sic].  As a  jury,                      you serve a role, a function in this case                      too,  you  represent  the people  of  the                      United States, the citizens of  the State                      of  Rhode Island.   By  your verdict  you                      will speak for  those citizens.   By your                      verdict you will determine---                      [DEFENSE COUNSEL]:  I object to that.                      THE COURT:  Just a moment.  The jury will                      make the decision among  themselves based                      on  the  instructions  and  the  evidence                      they've heard.                      [PROSECUTOR]:  Yes, your honor.   You are                      fact  finders and  in order  to find  the                      facts one of the things you have to do is                      to decide  which of  the facts  are true.                      You will have  to assess the  credibility                      of the  witnesses.  Some  prosecutors get                      up  and say  that  the  role  of  defense                      attorney  is to cloud  the issues or make                      smoke   screens.     I   liken  them   to                      Shakespeare's players, full of  sound and                      fury signifying nothing . . . .                                         -11-                                          11            government's characterization of the Second Passage, "in full            context," as an effort to suggest "that prosecution witnesses            had not  created false evidence"  (a claim the  defense never            made).   Instead, as noted above, we  think it plain (1) that            the   government   was   responding   to   defense  counsel's            anticipated  argument  that  the  jury  should  consider  the            absence of probative fingerprint  evidence on the items found            in  the brown briefcase to  be exculpatory, and  (2) that, in            stating that the prosecution  "ha[s] to be fair" and  "has to            be positive," the prosecutor went too far and hinted that the            partial prints tended to inculpate Manning.                      The   government's   references  to   extra-circuit            caselaw and strained attempt  to distinguish the inflammatory            rhetoric  here from the cases cited by Manning also strike us            as  inappropriate.   By  now, we  think  it should  be beyond            question  that, in this circuit  at least, arguments urging a            jury  to  act in  any capacity  other  than as  the impartial            arbiter of the facts in the case before it are improper.  See                                                                      ___            Mandelbaum, 803  F.2d at  44; cf. Arrieta-Agressot  v. United            __________                    ___ ________________     ______            States,  3 F.3d  525,  529-30 (1st  Cir. 1993)  (inflammatory            ______            arguments distract  jury from the  only issue presented  in a                                               ____            case:    whether  the  evidence establishes  guilt  beyond  a            reasonable doubt).                      We turn now to  our analysis.  In this  circuit, we            have identified several  factors relevant to  a determination                                         -12-                                          12            of  whether  prosecutorial misconduct  has "`so  poisoned the            well,'" see United States v. Hodge-Balwing, 952 F.2d 607, 610                    ___ _____________    _____________            (1st Cir.  1991) (quoting United  States v. Capone,  683 F.2d                                      ______________    ______            582, 586-87 (1st Cir.  1982)), that a new trial  is required.            Although  we   have  used  slightly  varying  terminology  in            describing these factors, the common denominators are (1) the            severity  of  the misconduct;  (2)  the context  in  which it            occurred;   (3)   whether  the   judge   gave   any  curative            instructions and the likely  effect of such instructions; and            (4) the strength of the evidence against the defendant.  See,                                                                     ___            e.g., Udechukwu, 11 F.3d at 1106; Arrieta-Agressot, 3 F.3d at            ____  _________                   ________________            528-30;  Hodge-Balwing, 952  F.2d  at 610;  United States  v.                     _____________                      _____________            Quesada-Bonilla,  952  F.2d  597,  601-02  (1st  Cir.  1991);            _______________            Capone,  683  F.2d  at  585-86.    These  factors  guide  our            ______            conclusion as  to whether the misconduct  likely affected the            trial's outcome.   E.g., Udechukwu, 11 F.3d at 1106; Arrieta-                               ____  _________                   ________            Agressot, 3 F.3d at 528.2            ________                                            ____________________            2.  This line  of authority, which derives  from Capone, also                                                             ______            often  speaks  of  the  need to  deter  future  prosecutorial            misconduct,  e.g.,  Udechukwu,  11  F.3d  at  1106;  Quesada-                         ____   _________                        ________            Bonilla,  952 F.2d at 602;  United States v.  Brown, 938 F.2d            _______                     _____________     _____            1482, 1489 (1st Cir.),  cert. denied, 112 S. Ct.  611 (1991),                                    _____ ______            Capone, 683 F.2d  at 586, as  an additional legitimate  basis            ______            for  reversal.   As we  have previously  noted, however,  see                                                                      ___            Smith, 982 F.2d at 686 n.8; United States v. Osorio, 929 F.2d            _____                       _____________    ______            753,  763 (1st Cir. 1991), and as the government argues here,            our power to act solely on this basis has, at the least, been            significantly circumscribed  by the Supreme Court, see United                                                               ___ ______            States  v.  Hasting,  461  U.S.  499,   506  (1983)  (use  of            ______      _______            supervisory   power   to   deter   prosecutorial   misconduct            inappropriate where  error in case-at-bar was  harmless).  At            any rate,  while we  fervently hope  that our decision  might                                         -13-                                          13                      In this case,  we think that  all of these  factors            militate  in   favor   of  reversal.      The   prosecutorial            overreaching  that  took  place  here,  while  certainly  not            conscience-shocking,  was pervasive.   Moveover,  it occurred            during closing arguments -- the last words spoken to the jury            by  the  trial attorneys  -- and  in no  way was  provoked by            improper  arguments of  defense counsel.   Cf.,  e.g., United                                                       ___   ____  ______            States  v. Machor, 879 F.2d  945, 956 (1st  Cir. 1989), cert.            ______     ______                                       _____            denied, 493 U.S. 1081 (1990) and 493 U.S. 1094 (1990).            ______                       ___                      More  importantly,  the  district  court  not  only            failed to give curative  instructions to counter the improper            First and Second Passages, but it also tacitly indicated that            the  arguments in  these Passages  were proper  by overruling            defense counsel's contemporaneous objections  to them.3  As a            result, we  think  it  likely  that the  jury  inferred  that            Detectives  Lennon  and  Lussier,  as  both  law  enforcement            officials  and  prosecution  witnesses,  could   properly  be                                                     _____            considered as  having a heightened duty  to testify honestly.                                            ____________________            have the  effect of deterring prosecutors  from straying into            forbidden territory in the  future, we emphasize that today's            result is in no way informed by a deterrent animus.            3.  With  regard  to the  Third  and  Fourth Passages,  while            failing  to  tell  the  jury to  disregard  the  prosecutor's            comments,  the district  judge did remind  the jury  that its                                           ___            responsibility  was to  find the  facts.   Thus, we  think it            unlikely  that   a  significant   amount  of  prejudice   was            engendered  by the inflammatory  rhetoric in  those Passages.            Accordingly, we  restrict our analysis to  the likely effects            of  the  witness- vouching  and  hints  at  the existence  of            additional inculpatory evidence in First and Second Passages.                                         -14-                                          14            Of course, such an inference undermines the impartiality with            which   the   jury   is   supposed   to    make   credibility            determinations.4  Moreover, as we  have stated, we think that            the jury could have inferred from the "we have to be fair, we            have to  be positive" comments that  the partial fingerprints            on the items in the brown briefcase were Manning's.                      This leads  to our final and  most important point.            While there may have been abundant evidence in this case that            Manning  was a  drug dealer  and that the  drug paraphernalia            seized at 151  Doyle Avenue  was Manning's,  the question  of            whether  Manning  committed  the  crimes with  which  he  was            charged in the indictment (i.e., possession of the contraband                    __ ___ __________            items  seized from  the brown  briefcase) turned  entirely on                                                              ________            whether,  with regard to the  issue of who  carried the brown            briefcase into 151 Doyle Avenue, the jury believed Detectives            Lennon and Lussier or whether it believed Manning and Duncan.            In our view, each  of the witnesses gave a  plausible account            on this threshold question;  that is to say, neither  version            of who was carrying the briefcase  was inherently unlikely to                                                   __________                                            ____________________            4.  In  so  stating,  we  obviously are  unconvinced  by  the            government's argument that  the district court's  admonition,            in its final instructions, that "the United States Government            stands no higher before this  Court than does Defendant"  was            sufficient to cure both the witness-vouching in the First and            Second Passages and the  effect of the court's overruling  of            defense  counsel's contemporaneous objections.   Indeed, this            instruction,  referring  as it  does  to  "the United  States            Government,"  in no  way rebuts  the above-noted  implication            that  Detectives Lennon  and  Lussier, as  Providence  police                                                       __________            officers, had a heightened duty to testify honestly.                                         -15-                                          15            be true.  Given this, and given the further fact  that we are            precluded from making independent  credibility determinations            on appeal, see United States v. Alvarez, 987 F.2d 77, 83 (1st                       ___ _____________    _______            Cir.), cert.  denied, 114  S.  Ct. 147  (1993), the  question                   _____  ______            before us  really is whether the  prosecutorial misconduct in            the  First and  Second  Passages (which,  as we  have stated,            significantly interfered  with the jury's ability  to make an            essential  and liminal credibility  determination) was likely            to have  affected the trial's outcome,  see, e.g., Udechukwu,                                                    ___  ____  _________            11 F.3d  at 1106; Arrieta-Agressot,  3 F.3d at  528.  We  are                              ________________            compelled  to conclude that this question must be answered in            the affirmative.   Accordingly, Manning is entitled  to a new            trial.                                         III.                                         ____                                      CONCLUSION                                      __________                      Nearly sixty years ago, the Supreme Court stated:                           The  United  States Attorney  is the                      representative not of  an ordinary  party                      to  a controversy,  but of  a sovereignty                      whose obligation to govern impartially is                      as compelling as its obligation to govern                      at all; and whose interest, therefore, in                      a criminal  prosecution  is not  that  it                      shall win a case, but that justice  shall                      be done.   As such,  he is in  a peculiar                      and  very definite  sense the  servant of                      the law, the twofold aim of which is that                      guilt  shall  not  escape   or  innocence                      suffer.      He   may    prosecute   with                      earnestness  and  vigor  --   indeed,  he                      should do  so.  But, while  he may strike                      hard  blows,  he  is not  at  liberty  to                      strike foul ones.  It is as much his duty                      to   refrain    from   improper   methods                                         -16-                                          16                      calculated   to    produce   a   wrongful                      conviction   as  it   is  to   use  every                      legitimate  means to  bring about  a just                      one.            Berger  v. United States,  295 U.S. 78,  88 (1935).   For the            ______     _____________            third time in the  last six months, we find  ourselves in the            regrettable  position  of  vacating  a  conviction because  a            United States Attorney has failed to honor sufficiently these            precepts.  See Udechukwu,  11 F.3d at 1106; Arrieta-Agressot,                       ___ _________                    ________________            3 F.3d  at 530; see  also United  States v. Moreno,  991 F.2d                            ___  ____ ______________    ______            943, 949-50 (1st Cir.)  (Torruella, J., dissenting) (arguing,            inter alia,  that the  prosecutorial misconduct in  that case            _____ ____            warranted  reversal of defendant's conviction), cert. denied,                                                            _____ ______            114 S. Ct. 457 (1993).                      Vacated and remanded.                      _______ ___ ________                                         -17-                                          17
