                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                      UNITED STATES CO URT O F APPEALS
                                                                   September 13, 2006
                                   TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                      Clerk of Court

 U N ITED STA TES of A M ER ICA,

          Plaintiff - Appellee,
                                                       No. 05-3122
 v.
                                               (D.C. No. 03-CR-20054-KHV)
                                                         (D . Kan.)
 M ICHAEL SENNER,

          Defendant - Appellant.



                              OR DER AND JUDGM ENT *


Before BR ISC OE, EBEL, and M U RPH Y, Circuit Judges.


      In this direct criminal appeal, Defendant-Appellant M ichael Senner asserts

that, during his trial, the Government improperly vouched for the credibility of

one of its witnesses. Because Senner did not object at trial, however, we review

for plain error. Having jurisdiction pursuant to 18 U.S.C. § 3742(a) and

28 U.S.C. § 1291, we AFFIRM .




      *
       This Order and Judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
I.    B ACKGR OU N D

      A jury convicted Senner of conspiring to distribute 1,000 kilograms of

marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(vii) and 846. 1 Senner

contends that the jury’s specific finding that this conspiracy involved exactly

1,000 kilograms of marijuana was based solely on the testimony of State Trooper

Richard Ferrari. Ferrari had interviewed Senner at his home, immediately after

officers arrested Senner and while other officers were executing a search warrant

for Senner’s house. Ferrari testified at trial that during this interview, Senner

admitted that he “had distributed approximately 3,000 pounds of marijuana within

the last year and a half.” 2 On cross-examination, defense counsel challenged



      1
          21 U.S.C. § 846 provides that “[a]ny person who attempts or conspires to
commit any offense defined in this subchapter shall be subject to the same
penalties as those prescribed for the offense, the commission of which was the
object of the attempt or conspiracy.” And 21 U.S.C. § 841(a)(1) makes it a crime
to “knowingly or intentionally . . . manufacture, distribute, or dispense, or possess
with intent to manufacture, distribute, or dispense, a controlled substance.” For
an offense involving “1000 kilograms or more of a mixture or substance
containing a detectable amount of marijuana[,] . . . such person shall be sentenced
to a term of imprisonment which may not be less than 10 years or more than
life . . . .” Id. § 841(b)(1)(A)(vii).

       The Government also charged Senner w ith unlaw fully using a firearm in
relation to the charged drug conspiracy, in violation of 18 U.S.C. § 924(c), but the
jury acquitted Senner of that charge.
      2
       Although the jury found that Senner had conspired to distribute 1,000
kilograms, most of the trial testimony discussed amounts of marijuana in pounds.
One kilogram is roughly equivalent to 2.2 pounds. Thus, the jury found that
Senner had conspired to distribute 1,000 kilograms, or approximately 2,200
pounds, of marijuana.

                                          2
Ferrari’s credibility by eliciting his testimony that, although Ferrari had a tape

recorder available in his vehicle at the time he interviewed Senner, Ferrari did not

record his interview with Senner. 3

      In response, the G overnment on redirect examination verified that Ferrari

had not recorded his interview with Senner, and then this exchange occurred:

      Q.     And in this case, when you w ere talking to M r. Senner and he
             was providing you with this information about his drug activity,
             were there other agents present?

      A.     Yes.

      Q.     You were in M r. Senner’s residence?

      A.     (N ods head up and down.)

      Q.     Is that right?

      A.     Yes.

      Q.     How many other agents would you say were present when M r.
             Senner provided this information about his drug activity?

      A.     The[re] were numerous officers–of course, an investigation at
             this level, there are numerous officers that are obviously assigned
             to different areas, collection of evidence, photographs,
             interviews, stuff like that. But present during the interview, I
             know was Special Agent Carrington of the D EA and Task Force
             Officer N athan Spray was present during my interview with



      3
        Ferrari had, in fact, recorded telephone calls Senner made on this same
day. Those calls, however, were made when 1) Senner’s courier, Osowski, who
was cooperating with police, set up a meeting with Senner, which led to Senner’s
arrest; and 2) Senner, later cooperating with police, arranged a controlled drug
buy with his regular marijuana suppliers. Thus, the record does not suggest that
Ferrari selectively decided not to record his interview with Senner.

                                           3
            M r. Senner. And as w ell as there’s a female lady that’s going to
            interpret some tapes for you, she was present during part of the
            questioning and phone calls [during which Senner, cooperating
            with police, arranged a controlled drug buy for agents w ith
            Senner’s marijuana suppliers] as well as Task Force Officer
            Garrett was present during part.

      Q.    And so the information that M r. Senner provided to you, it’s
            certainly not just your w ord that he told you these things, is that
            right?

      A.    Right --

      Q.    There were other people present when these things w ere said to
            you?

      A.    Yes, ma’am.

      Q.    And have you embellished or have you lied or have you misstated
            anything that M r. Senner told you during that interview?

      A.    Absolutely not.

      The Government called as a trial witness only one of the four officers that

Trooper Ferrari mentioned as being present during his interview with Senner.

That one officer was Drug Enforcement Agency Task Force Officer Norma

Lorenzo, who was the “lady that’s going to interpret some tapes for you” to whom

Trooper Ferrari had referred. Even so, the prosecutor did not ask Lorenzo if she

had overheard Ferrari’s interview with Senner.

      The jury convicted Senner of conspiring to distribute exactly 1,000

kilograms of marijuana. That amount of marijuana subjected Senner to a

statutory mandatory minimum ten-year sentence. See 21 U.S.C.



                                          4
§ 841(b)(1)(A)(vii). Applying the 2004 sentencing guidelines, however, the

presentence report (“PSR”) calculated that Senner was subject to an even

lengthier guideline range of between 151 and 188 months. 4 Nevertheless, the

district court, treating the guidelines as advisory, sentenced Senner instead to the

lower mandatory minimum ten-year sentence. Later, the district court granted the

Government’s Fed. R. Crim. P. 35 motion to reduce Senner’s sentence further, in

light of testimony he had subsequently given in a co-defendant’s trial, 5 and

resentenced him to sixty-six months. On appeal, Senner challenges both his

conviction and sentence, arguing they were products of the G overnment’s

improper vouching for Trooper Ferrari’s credibility.

II.   STANDA RD O F REVIEW

      Senner concedes that he did not object to the challenged portion of the

prosecutor’s redirect examination of Trooper Ferrari. This court’s review,

therefore, is for plain error. See Fed. R. Crim. P. 52(b) (“A plain error that



      4
       The PSR calculated the applicable guideline range based upon Senner’s
same admission that he had distributed 3,000 kilograms during the eighteen
months preceding his arrest. The PSR further noted that the jury had found,
instead, that Senner had distributed exactly 1,000 kilograms, but using this lower
amount would still not change the guideline range because the offense level was
the same for amounts of marijuana betw een 1,000 and including 3,000 kilograms.
      5
        Rule 35(b)(1) provides that “[u]pon the government’s motion made within
one year of sentencing, the court may reduce a sentence if: (A) the defendant,
after sentencing, provided substantial assistance in investigating or prosecuting
another person; and (B) reducing the sentence accords with the Sentencing
Commission’s guidelines and policy statements.”

                                          5
affects substantial rights may be considered even though it was not brought to the

court’s attention.”); see also United States v. Young, 470 U.S. 1, 6, 20 (1985)

(reviewing prosecutor’s improper argument for plain error). Under a plain-error

analysis,

       before an appellate court can correct an error not raised at trial, there
       must be (1) error, (2) that is plain, and (3) that affects substantial rights.
       If all three conditions are met, an appellate court may then exercise its
       discretion to notice a forfeited error, but only if (4) the error seriously
       affects the fairness, integrity, or public reputation of judicial
       proceedings.

United States v. Cotton, 535 U .S. 625, 631 (2002) (quotations, citations,

alterations omitted).

III.   ANALYSIS

       “It is error for the prosecution to personally vouch for the credibility of a

witness.” United States v. Harlow, 444 F.3d 1255, 1262 (10th Cir. 2006).

“Argument or evidence [amounts to] impermissible vouching if the jury could

reasonably believe that the prosecutor is indicating a personal belief in the

witness’ credibility, either through explicit personal assurances of the w itness’

veracity or by implicitly indicating that information not presented to the jury

supports the witness’ testimony.” Id. (quotation, alteration omitted). It is the

latter error that Senner asserts occurred during his trial; that is, Senner asserts that

the prosecutor implicitly suggested to the jury that she knew of evidence (the

testimony of the four officers present during Ferrari’s interview with Senner), not



                                             6
presented at trial, that corroborated Trooper Ferrari’s testimony that Senner

admitted he had previously distributed 3,000 pounds of marijuana.

      W e will assume, for purposes of this appeal, that Senner is able to satisfy

the first two plain-error inquiries – that the prosecutor comm itted error and that

the error was plain. W e turn, then, to the plain-error test’s third prong and

consider whether this plain error affected Senner’s substantial rights. Senner

“bears the burden of establishing the error impacted substantial rights by

demonstrating the outcome of the trial would have been different but for the

error.” Id. at 1261. In this case, therefore, Senner must show that there is “a

reasonable probability that, but for the error,” the jury would have found that he

distributed less than 1,000 kilograms of marijuana. United States v. Dominguez

Benitez, 542 U.S. 74, 83 (2004). “[W]hen reviewing [a prosecutor’s] vouching

for plain error, we weigh the seriousness of the vouching in light of the context of

the entire proceeding, including the strength of any curative instructions and the

closeness of the case;” that is, “w e consider: the curative acts of the district court,

the extent of the misconduct, and the role of the misconduct within the case as a

whole.” Harlow, 444 F.3d at 1261, 1264 (quotation omitted).

      W hile Trooper Ferrari’s testimony that Senner admitted distributing 3,000

pounds of marijuana might have been the only evidence presented at trial that

directly supported the jury’s finding that Senner conspired to distribute 1,000

kilograms of marijuana, there was a significant amount of other evidence that

                                           7
indicated that Senner had been dealing in large quantities of marijuana. For

example, the transaction that led to Senner’s arrest involved his paying John

Osowski to deliver twenty-five pounds of marijuana to a w oman in St. Charles,

M issouri, returning with over $10,000 for Senner. Further, Senner admitted that

he had been selling twenty to thirty pounds of marijuana to this same w oman each

week for eight weeks. Senner also admitted that he had other customers besides

this woman, though he declined to name any of them.

      And when police searched Senner’s home and business, they found not only

a few pounds of marijuana, but also almost $100,000 in cash for which there was

no apparent legitimate source.

      Additionally, at the time of his arrest, Senner offered to cooperate w ith

police by arranging a controlled buy with his marijuana suppliers. In doing so,

Senner was able to arrange, within just a few hours, a 150-pound marijuana

purchase for over $80,000. Trooper Ferrari testified that, based upon his

experience investigating drug trafficking, for Senner “to be able to place a

telephone call and be able to expect to get that much marijuana tells me . . . that

M r. Senner, in fact, has more than likely dealt with that particular person in the

past and more specifically, for those quantities of marijuana.” In addition to

arranging this 150-pound controlled buy, an amount Senner acknowledged he was

comfortable placing with his usual suppliers, Senner admitted to buying up to 200

pounds at one time from the same dealers.

                                          8
      This other evidence indicates that Senner was dealing with significant

amounts of marijuana over a period of one and one-half years and so provides

support for Ferrari’s testimony that Senner specifically admitted to distributing

3,000 pounds of marijuana during this same time period. In light of this

supporting evidence, there is not a reasonable probability that, but for the

prosecutor’s improper vouching, the jury would not have found Ferrari’s

testimony credible. 6



      6
        Nor are we persuaded by Senner’s argument, based upon the jury’s three
inquiries to the court during deliberations, that the jury was so closely divided on
whether or not to believe Ferrari’s testimony that the prosecutor’s improper
vouching must have tipped the scales in the prosecution’s favor. Jurors inquired
of the court whether they had to agree on the 1,000 kilograms in order to convict
Senner of conspiring to distribute marijuana and whether they could convict
Senner of conspiracy even though they agreed on an amount less than 1,000
kilograms. The district court responded “no” to the first inquiry; “yes” to the
second. These inquiries, coming within twenty minutes of each other, could have
resulted as much from jurors’ confusion as to their deliberative task as from
jurors’ disagreement over the credibility of Ferrari’s testimony. Instruction 13
informed jurors that the Government had charged Senner w ith conspiring to
distribute 1,000 kilograms of marijuana; the instructions addressing the elements
of that offense, however, did not mention a need to find quantity, except
Instruction 21, which told jurors that, in determining the amount of drugs, if any,
that Senner conspired to distribute, they should not include the 150 pounds of
marijuana Senner had purchased at the Government’s request. Furthermore, the
prosecutor, during closing argument, had asserted that jurors did not need to
determine an amount unless and until they found Senner guilty of conspiring to
distribute marijuana; “the charge is conspiracy to distribute marijuana. The
amount is a separate issue for you to consider.” Similarly, the verdict form
required jurors to specify “the exact quantity which the jury unanimously agrees
that” Senner conspired to distribute, but only after finding Senner guilty of
conspiring to distribute marijuana. The jurors’ inquiries, then, may have just
been an attempt to clarify their responsibilities. And the jury’s third inquiry
                                                                        (continued...)

                                          9
      M oreover, the record does not reveal any reason why the jury might have

otherw ise deemed Ferrari’s testimony to be incredible. The strongest attack to

Ferrari’s credibility that the defense could muster was to ask why Ferrari did not

tape record Ferrari’s statement. And the defense did not challenge any other

aspect of Ferrari’s testimony except his testimony that Senner admitted

distributing 3,000 kilograms of marijuana.

      As for the court’s curative acts, because defense counsel did not object to

the prosecutor’s redirect examination of Ferrari, the court did not have the

opportunity to take immediate curative action. But before trial, the court did

instruct jurors that their “decision must be based on evidence which all of you see

and hear in the courtroom;” that attorneys’ statements are not evidence; and that,

“[i]n the end, it will be up to you to decide which witnesses to believe, which

witnesses not to believe and how much of any particular witness’ testimony you



      6
       (...continued)
simply asked “[h]ow many pounds are a 1000 kilos,” which does not suggest any
specific dispute among jurors about Ferrari’s credibility.

       Senner further argues that the fact that jurors found that he had distributed
exactly 1,000 kilograms of marijuana, when Ferrari testified Senner admitted to
distributing 3,000 pounds, reflects that the jury was divided on Ferrari’s
credibility and ultimately chose a compromise amount. But the jury may have
simply found the 1,000 kilograms because that was the amount charged. For
these reasons, the jury’s three inquiries during deliberations and the jury’s finding
that Senner distributed exactly 1000 kilograms of marijuana do not otherwise
persuade us that the prosecutor’s improper vouching tipped the scales in the
prosecution’s favor on the issue of the credibility of Ferrari’s testimony about his
interview with Senner.

                                         10
will accept or reject.” And after trial, before the jury’s deliberations, the court

again instructed jurors that “[i]f you believe that any witness’s testimony has been

discredited, you may reject all or part of the testimony of that witness, and you

may give the testimony such credibility as you think it deserves;” that “[t]he

testimony of a law enforcement officer is entitled to no special or exclusive

sanctity;” and that jurors were the “exclusive judges” of the w itnesses’

credibility, and could accept or reject all or part of any witness’ testimony. See

Harlow, 444 F.3d at 1265 (reviewing for plain error and holding that, “to the

extent the impermissible vouching occurred, the district court’s credibility

instructions cured any error”). The district court also reiterated, after trial but

before jury deliberations, that the attorneys’ statements are not evidence. Cf.

United States v. Roberts, 185 F.3d 1125, 1144 (10th Cir. 1999) (reviewing

remarks prosecutor made during closing argument for plain error and holding

district court’s instructions that attorneys’ statements were not evidence helped

cure any impermissible vouching). Even the prosecutor, during her closing

argument, told jurors it was up to them to determine whether they believed

Trooper Ferrari or not. Cf. id. (reviewing for plain error and rejecting argument

prosecutor impermissibly vouched for witness’ credibility in part because “the

prosecutor explicitly disclaimed any ability to vouch for witness credibility, and

judge’s instructions to the jury cured any error”).

      In light of this record as a whole, we cannot conclude that there is a

                                          11
reasonable probability that, had the prosecutor not elicited Trooper Ferrari’s

testimony suggesting that there were four officers who could corroborate that

Senner admitted to distributing 3,000 pounds of marijuana, the jury would not

have found that Senner conspired to distribute 1,000 kilograms of marijuana.

Senner, therefore, is unable to meet the plain-error test’s third prong.

IV .   C ON CLU SIO N

       For the foregoing reasons, we AFFIRM Senner’s conviction and sentence.



                                        ENTERED FOR THE COURT



                                        David M . Ebel
                                        Circuit Judge




                                          12
