 09-4964-cr
 United States v. Bell
                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                       SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY
CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.

         At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 the 23rd day of March, two thousand eleven.

 PRESENT:            JOHN M. WALKER, JR.,
                     BARRINGTON D. PARKER,
                     DEBRA ANN LIVINGSTON,
                                     Circuit Judges.


 UNITED STATES OF AMERICA,
           Appellee,

           -v.-                                               No. 09-4964-cr

 JOHN W. BELL, JR.,
            Defendant-Appellant,


                                 SANDRA S. GLOVER, Assistant United States Attorney (Tracy Lee
                                 Dayton, Michael J. Gustafson, Assistant United States Attorneys, on
                                 the brief) for David B. Fein, United States Attorney, District of
                                 Connecticut, New Haven, Connecticut.

                                 SHELLEY R. SADIN, Zeldes, Needle & Cooper, P.C., Bridgeport,
                                 Connecticut, for Defendant-Appellant.

           UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 DECREED that the judgment of the district court be AFFIRMED.
       Defendant-Appellant John W. Bell, Jr. appeals from a judgment of conviction entered on

November 24, 2009 on counts of attempted murder of a federal officer, 18 U.S.C. § 1114, assaulting,

resisting, opposing, impeding or interfering with a federal officer, 18 U.S.C. § 111(a)(1) and (b), and

using a firearm in connection with the crimes listed above, 18 U.S.C. § 924(c)(1)(A)(iii). On appeal,

Bell challenges the government’s rebuttal summation, which he contends improperly “identified the

defendant with Lee Harvey Oswald and falsely portrayed him as a gambler and gunman waiting for

a shootout with police.” Appellant’s Br. at 1.        We presume the parties’ familiarity with the

underlying facts, the procedural history, and the issues on appeal and revisit those issues only as

necessary to facilitate this discussion.

       While the government is generally given wide latitude to forcefully argue its case to the jury,

it may not “misstate the evidence,” United States v. Richter, 826 F.2d 206, 209 (2d Cir. 1987), or

“use arguments calculated to inflame the passions or prejudices of the jury,” United States v.

Modica, 663 F.2d 1173, 1180 (2d Cir. 1981) (internal quotation marks omitted). However, even

where government arguments cross the line from permissible to improper, a defendant seeking a new

trial on this basis faces a “heavy burden,” United States v. Locascio, 6 F.3d 924, 945 (2d Cir. 1993),

because reversal is warranted only where the improper comments can be said to “‘so infect[] the trial

with unfairness as to make the resulting conviction a denial of due process,’” United States v.

Coriaty, 300 F.3d 244, 255 (2d Cir. 2002) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643

(1974)). That is particularly true where, as here, the claim was not raised below and thus must be

reviewed by this Court under the plain error standard. See United States v. Cotton, 535 U.S. 625,

631-32 (2002).



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       Bell contends the government advanced two different improper arguments in summation,

which individually or in tandem warrant reversal: first, he contends that the government improperly

sought to inflame the jury by referencing the famed assassin Lee Harvey Oswald; second, he argues

that the government mischaracterized the evidence in arguing to the jury that Bell was a “gun

fanatic” who “carries a different weapon every single day” and “accessorizes with it, kind of

changes it like a woman changes her purse.” While we agree that aspects of the latter argument

went beyond zealous argument and were improper, we see no basis for concluding that the

government’s rebuttal was so substantially prejudicial as to warrant reversal.

       With respect to the first challenged argument, the government made reference to Lee Harvey

Oswald and the “magic bullet” theory in the context of challenging the credibility of Bell’s account

of the events. Specifically, the government argued that Bell’s account had to be “false, unless of

course the Defendant had loaded his weapon with magic bullets. Shocking but true. Twice in one

century. Lee Harvey Oswald and John W. Bell, magic bullets.”             We see no error in these

comments, which were both an accurate, if colorful, commentary on evidence in the record and a

fair response to arguments advanced by the defendant. See United States v. Rivera, 971 F.2d 876,

884 (2d Cir. 1992) (“A prosecutor is not precluded from vigorous advocacy, or the use of colorful

adjectives, in summation.”); see also United States v. Marrale, 695 F.2d 658, 667 (2d Cir. 1982)

(“[A] prosecutor is ordinarily entitled to respond to the evidence, issues, and hypotheses propounded

by the defense.”).

       The second challenged government argument is more troubling, however. There, the

government speculated as to Bell’s state of mind on the night in question as follows:



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               So how did that translate for a gun fanatic like the Defendant, a guy with nine
        handguns, seven long guns and a sawed-off shotgun? Who has a sawed-off shotgun?
        He wants you to believe he’s hunting with it. You don’t hunt with a sawed-off
        shotgun . . . .

                The Defendant carries a different weapon every single day. He accessorizes
        with it, kind of changes it like a woman changes her purse. Here’s the Defendant
        carrying this backup ammunition, hollow point bullets. . . . Jiggling around in his
        pocket with his spare change, as if he’s just waiting for a shootout. Why? I don’t
        know, maybe the gun makes him feel tough.

We agree with Bell that this argument overstated the trial evidence in a number of respects. First,

there is simply no evidence in the record to support the government’s contention that Bell “carrie[d]

a different weapon every single day,” let alone that he “accessorize[d] with it” or “change[d] it like

a woman changes her purse.”         Nor was there any real evidence to support the portrait of the

defendant as “[j]iggling around” spare ammunition “as if he’s just waiting for a shootout.” To the

contrary, the evidence with respect to Bell’s gun ownership at trial—which came principally in the

form of Bell’s own testimony—established the far less remarkable facts that (1) Bell carried a gun

to work each day, (2) that he sometimes carried a different weapon from the one used in the crimes

charged, and (3) that at the time of his arrest, he had several bullets in his pocket in addition to those

in the weapon he was carrying.

        The government’s discussion of Bell’s “sawed-off shotgun” was also, at best, misleading.

Specifically, the argument: “Who has a sawed-off shotgun? He wants you to believe he’s hunting

with it. You don’t hunt with a sawed-off shotgun” appears to be unsupported by the evidence in the

record. As a preliminary matter, the only testimony offered with respect to that weapon—Bell’s

own testimony under cross-examination—establishes that the shotgun in question was possessed

legally. Moreover, Bell does not appear to have ever contended that he used that particular weapon

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for hunting, or indeed for any particular purpose. As such the argument was not only unsupported

by the evidence but was an inappropriate and misleading characterization thereof.

       We thus agree with Bell that at least some of the government’s statements in rebuttal crossed

the line between zealous advocacy and improper argument. However, as noted above, improper

comments, standing alone, rarely warrant reversal. Instead, “we will reverse only if we conclude,

based on the context of the trial as a whole, that the prosecutor made improper remarks that resulted

in substantial prejudice.” United States v. Burden, 600 F.3d 204, 221 (2d Cir. 2010). While “[t]he

determination of whether there was such prejudice depends largely on an analysis of the severity of

the misconduct, the curative measures taken by the court, and the certainty of conviction absent the

misconduct,” where, as here, no objection is raised below, “the statement will not be deemed a

ground for reversal unless it amounts to a flagrant abuse.” United States v. Rivera, 22 F.3d 430, 437

(2d Cir. 1994). We are unable to deem the statements in question “flagrant abuse,” nor, more

generally, do we see any other basis, on this record, for concluding that the statements were

anything more than “an aberration in an otherwise fair proceeding.” United States v. Thomas, 377

F.3d 232, 245 (2d Cir. 2004) (internal quotation marks omitted).

       To the extent Bell raises other arguments on appeal, we have considered them and find them

to be without merit. Accordingly, for the foregoing reasons, the judgment of the district court is

hereby AFFIRMED.

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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