          United States Court of Appeals
                     For the First Circuit

No. 13-1352

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                        ROLANDO A. ROJAS,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF RHODE ISLAND

       [Hon. John J. McConnell, Jr., U.S. District Judge]


                             Before

                       Lynch, Chief Judge,
               Howard and Kayatta, Circuit Judges.



          Alan Jay Black for appellant.
          Donald C. Lockhart, Assistant United States Attorney,
with whom Peter F. Neronha, United States Attorney, was on brief,
for appellee.




                          July 7, 2014
          KAYATTA, Circuit Judge.       Rolando Rojas appeals from his

conviction for distributing cocaine, pointing to two instances of

prosecutorial   misconduct    during    closing   arguments:   improper

vouching and the playing of an audio recording never entered into

evidence. Because the district judge ably responded to both of the

prosecutor's errors, and neither of the errors affected Rojas's

conviction, we affirm.

                             I. Background

          Rolando Rojas was indicted for distributing cocaine on

three occasions in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C),

and (b)(1)(B)(iii).   His buyer was an undercover agent, Wing Chau,

who made audio and video recordings of their meetings and also

recorded many of their phone calls.

          At trial, Chau testified that the first sale took place

in January 2011, following two recorded phone calls between him and

Rojas. According to the transcript of the first call, Chau said to

Rojas, "I want to pick up that OZ from you," and Rojas responded,

"yeah, I'm going to be around." Chau then asked, "[y]ou cooked the

good one for me?"     Rojas against responded, "[y]eah."        In the

second call, Chau told Rojas he would be at their meeting place in

five minutes, and Rojas responded, "It's going to be a G . . . but

it's gonna be rock, rock, rock.    It's going to be good man."

          The prosecution presented a video showing their meeting,

and a separate audio recording, which together seem to depict Rojas


                                  -2-
agreeing to accept cartons of cigarettes as payment for cocaine,

though the actual cocaine cannot be seen due to the position of the

camera.   Chau testified that after the purchase he gave the

substance he received to a detective, who himself testified that he

performed a preliminary test confirming that it was cocaine, a

result further confirmed by a full chemical test, according to

another witness.

          In several phone calls later in January, Chau and Rojas

discussed the previous sale and possible future sales, with Chau

expressing his interest in more cocaine (e.g., "I still need the

hard stuff") and Rojas agreeing that he would try to procure it

(e.g., "let me see what I can do").         The second sale, Chau

testified, took place in February 2011.      On the phone the day

before, Chau asked if Rojas had "that material," and Rojas said

that he would "get it and then make it" by the following afternoon.

The prosecution presented a video of their meeting, with audio,

which shows Rojas producing a bag carrying a white substance while

saying, "[t]his . . . is bomb man."    As with the first sale, the

substance tested positive for cocaine.

          Rojas allegedly sold cocaine to Chau for the third and

final time in March 2011.   In a phone call a few days before, Chau

said, "I need . . . 120 grams," and Rojas responded, "I'm going to

try to give it to you."   In later calls, Chau and Rojas negotiated

the price and worked out the logistics of their meeting.        The


                                -3-
prosecution again presented a video of their meeting, with audio,

in which Rojas again accepts payment in cigarette cartons and seems

to refer to the cocaine he is selling ("[t]his is bomb"), but the

cocaine itself is out of view, as in the first sale.       The substance

received by Chau tested positive for cocaine.

           When Rojas was arrested in July 2011, he was interviewed

by Christian Jardin, who also testified at trial.          According to

Jardin, Rojas confessed to all three sales.

           Rojas's defense focused on three arguments. First, Rojas

questioned Chau's credibility. Rojas's counsel observed in closing

argument   that   Chau's   work   as   an   undercover   agent   involved

"fool[ing] people about who he is and what he's doing."          Second,

Rojas pointed to gaps in the audio and video recordings: there was

no recording for Rojas's confession, nor for some of the calls

between Chau and Rojas, and the video of the first sale did not

show cocaine changing hands.      Third, regarding the substances that

Rojas allegedly sold to Chau, Rojas alleged irregularities in the

chain of custody and noted that Chau's car was not searched before

the sales, meaning Chau could have brought the drugs with him. The

arguments regarding the recordings and the substance received by

Chau were interweaved with the attack on Chau's credibility.         For

example, defense counsel argued in closing that a detective should

have searched Chau's car because "on some occasions police officers




                                   -4-
lie," including officers in the local police department Chau worked

with.

             In closing arguments, and notwithstanding the strong hand

of proper evidence he possessed, the prosecutor committed two

errors.1    First, the prosecutor played an audio recording for the

jury that had not been entered into evidence.            In the recording,

taken during a call between Chau and Rojas preceding the March

sale, Rojas explained that he was having difficulty obtaining "that

shit" (presumably, the cocaine Chau had requested) but would have

it soon.     Defense counsel did not object at the time the tape was

played but moved for a mistrial in a chambers conference following

closing arguments.      The judge denied the motion but instructed the

jury, as soon as it reconvened, to disregard the unadmitted tape.

             The prosecutor's second error occurred in his rebuttal,

when he offered an overzealous and inappropriate response to

defense     counsel's   arguments   regarding   the    credibility      of   the

government's    witnesses.     Defense    counsel     objected,   the    judge

sustained the objection, and defense counsel asked for no further

relief.     We reproduce here the full exchange between the court and

counsel:


             THE COURT:   Mr. Rose, any rebuttal argument?




        1
         Appellate counsel for the United States was not the
prosecutor at trial.

                                    -5-
          MR. ROSE: Yes, sir. Thank you. And I'm going to
          try to get not too excited. I'll give Mr. Thompson
          [defense counsel] credit.    At least he had the
          nerve to call Special Agent Jardin a liar to his
          face. He waited until Special Agent Chau left.
          Ladies and Gentlemen, if you have any issues with
          the way this investigation was run, blame me. I'm
          in charge. I'm responsible.

          MR. THOMPSON:   Objection, Your Honor.

          THE COURT:   Sustained.

          MR. ROSE:    And when you're done blaming me --

          MR. THOMPSON:   Objection, Your Honor.

          MR. ROSE: -- let's go back to the evidence.

          THE COURT:   Mr. Rose.

          MR. ROSE:    Pardon me, Your Honor.

          THE COURT:          Thank    you.      The   objection   was
          sustained.

          MR. ROSE: Thank you, Your Honor. And I apologize
          to the Court.   That did not come out the way I
          wanted it to. Lawyers' opinions don't matter, they
          really don't. All that matters is the evidence,
          okay?

                               II. Analysis

          The    government    has    admitted    that   the   prosecutor's

statement in rebuttal constituted misconduct and that the tape was

erroneously played.    We start with the more serious error, the

comments during rebuttal, then turn to the tape.

          A.    The Inappropriate Statements in Rebuttal

          There is no question that the prosecutor in this case

improperly used his own personal credibility, and therefore that of


                                      -6-
the government, to vouch for the prosecution's investigation and

witnesses.          See, e.g., United States v. Auch, 187 F.3d 125, 131

(1st Cir. 1999).            This case marks at least the third time in the

past three years that we have noted in a published opinion improper

vouching by a prosecutor.             See United States v. Rodríguez-Adorno,

695 F.3d 32, 41 (1st Cir. 2012); United States v. Gomes, 642 F.3d

43, 46-47 (1st Cir. 2011).                In this instance, the prosecutor in

effect testified that he ran the investigation, and that any flaws

in    it    were     therefore      not   probative      on   the    question     of   the

witnesses' credibility.               In other words, he employed his own

standing and credibility to buttress the one part of his case upon

which       the    defense    focused      its    attack.         Quite      simply,   the

experienced prosecutor likely knew better, as his apology and

partially-corrective retraction implied.2

                  Nevertheless,     the    prosecutor's       error      caused no harm

justifying setting aside the verdict.                   As the transcript reflects,

the district judge sustained an objection to the statements, and

Rojas requested no additional relief.                   Even on appeal, Rojas fails

to    describe        specifically        what    the    judge      should    have     done

differently.          Rojas does not argue, for example, that the judge

should have declared a mistrial based on the statements.                         Perhaps

the   judge        should    have   instructed      the    jury     to    disregard    the


        2
         He did not retract the actual thrust of the improper
remarks, i.e., the suggestion that he, not the witnesses, was
responsible for any flaws in the investigation.

                                            -7-
statements, although Rojas asked for no such instruction.                             The

judge    did       offer    the   following     general        instructions   prior    to

deliberations, the first of which was also given at the beginning

of trial:

               •           "The evidence that is properly before you does
                           not . . . include comments or statements or
                           arguments by attorneys."
               •           "[T]he mere fact that this case is brought in the
                           name of the United States of America does not
                           entitle   the   prosecution    to   any   greater
                           consideration than that which is accorded to Mr.
                           Rojas."
We have held that instructions of this kind can help eliminate any

prejudice arising from improper vouching.                       See United States v.

Mejia-Lozano, 829 F.2d 268, 274 (1st Cir. 1987).

               Rojas does say vaguely that the judge should have, as a

result of both of the prosecutorial errors at issue on this appeal,

given a "stern rebuke" and applied "repressive measures," quoting

Berger v. United States, 295 U.S. 78, 85 (1935).                    But Berger can be

easily    distinguished           based   on    the     more    frequent   and   severe

prosecutorial misconduct there, including "misstating the facts in

his cross-examination of witnesses," "pretending to understand that

a witness had said something which he had not said and persistently

cross-examining the witness upon that basis," "assuming prejudicial

facts not in evidence," "bullying and arguing with witnesses," and

generally      "conducting        himself      in   a   thoroughly    indecorous      and

improper manner."           Id. at 84.    The less egregious misconduct here,



                                            -8-
while warranting a rebuke, did not mandate that one be given sua

sponte.

              In any event, even assuming for the sake of argument that

the   judge     erred   by   failing   to     give   a    stronger   rebuke   or

instruction, Rojas's challenge would fail under the plain error

standard, which applies here because Rojas did not request at trial

the relief he now says he should have received.              See United States

v. Mitchell, 596 F.3d 18, 25 (1st Cir. 2010); United States v.

Kasenge, 660 F.3d 537, 541-42 (1st Cir. 2011).               To prevail under

this standard, Rojas would have to show, among other things, that

the error affected his substantial rights.               Mitchell, 596 F.3d at

25.   Although Rojas made an attack on Chau's credibility the

cornerstone of his defense, and the prosecutor's statements sought

to buttress Chau's credibility, the jury had no actual reason to

doubt Chau.       More importantly, the audio and video tapes and

physical evidence rendered attacks on Chau's credibility largely

tangential and speculative.       The fact that Chau did not record all

of his interactions with Rojas would not create doubt about Chau's

testimony unless there was some independent reason to question him.

And the fact that Chau's car was not searched for drugs before he

met with Rojas would only be of significance if it was plausible to

believe that Chau repeatedly obtained and turned over to the

government the consequential amounts of cocaine involved, while

Rojas supplied only fake product.            We cannot imagine that the jury


                                       -9-
would have accepted the defense's attacks on Chau's credibility if

only   the   judge    had     given    a    stronger    instruction        about    the

prosecutor's statements.

             B.   The Playing of the Tape

             Both sides agree that in playing portions of nine audio

and video recordings during his closing statement, the prosecutor

inadvertently       included    an     audio      recording    not   entered       into

evidence.    Rojas made no objection at the time, but did request a

mistrial after all of the closing statements were completed.

Assuming for the sake of argument that Rojas's request for a

mistrial was timely, we review the denial of the motion for abuse

of discretion, requiring a showing of "clear prejudice."                      United

States v. Pagán-Ferrer, 736 F.3d 573, 586 (1st Cir. 2013) (internal

quotation marks omitted).

             Here, any incremental impact of the unadmitted tape

beyond that of the admitted tapes was so minimal that no one

appeared to notice as it was played that it had not been admitted.

This was thus not a case in which disputed evidence kept out for

its substantial prejudicial impact was played to the jury.                     To the

contrary,    even    on     appeal    Rojas    can   point    to   nothing    in   the

recording    that     was    either     unfairly      prejudicial     or     uniquely

inculpatory.      Adding belt to suspenders, the judge also gave a

curative instruction as soon as he was alerted to the issue.                       See

United States v. Sepulveda, 15 F.3d 1161, 1184 (1st Cir. 1993).


                                           -10-
Rojas provides no basis for doubting that the jury disregarded the

evidence as instructed.

                           III. Conclusion

          For   the   reasons   described   above,   we   affirm   Rojas's

conviction.

          So ordered.




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