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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 97-1825 <br> <br>                          UNITED STATES, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                 ENRIQUE AUCH, a/k/a RICKIE AUCH, <br> <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF MASSACHUSETTS <br> <br>          [Hon. Richard G. Stearns, U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                      Selya, Circuit Judge, <br> <br>                 Kravitch, Senior Circuit Judge, <br> <br>                    and Lipez, Circuit Judge. <br> <br>                      _____________________ <br> <br>    Jennifer Petersen, with whom Karl R.D. Suchecki, and Petersen <br>& Suchecki were on brief, for appellant. <br>    Cynthia A. Young, Assistant United States Attorney, with whom <br>Donald K. Stern, United States Attorney, was on brief, for <br>appellee. <br> <br> <br>                       ____________________ <br> <br>                          July 22, 1999 <br>                       ____________________

  Kravitch, Senior Circuit Judge.  This appeal requires us <br>to address whether a prosecutor's various errors and acts of <br>misconduct throughout the course of a criminal trial require <br>reversal.  Although we find fault with a number of the prosecutor's <br>tactics in this case, we conclude that none of these errors <br>supports reversal under the applicable standards of review.  <br>Accordingly, we affirm. <br>                            BACKGROUND <br>  Enrique "Rickie" Auch stood trial for armed bank robbery <br>in violation of 18 U.S.C.  2113(a), robbery affecting commerce in <br>violation of the Hobbs Act, 18 U.S.C.  1951(a), and carrying a <br>firearm during and in relation to a crime of violence in violation <br>of 18 U.S.C.  924(c).  The evidence at trial showed that Auch had <br>participated in the robbery of an armored car delivering money to <br>the Fleet National Bank in Charlestown, Massachusetts (the <br>"Charlestown robbery").  James Tracy, another participant in the <br>Charlestown robbery, cooperated with the government and testified <br>against Auch at trial.  Tracy testified that Auch had stolen cars <br>to help facilitate the robbery and that, when one of the other <br>members of the group that had planned the robbery could not <br>participate, Auch agreed to replace him as the driver.  Tracy also <br>testified that he gave Auch an unloaded .357 revolver as the group <br>prepared to rob the armored car.  Tracy testified regarding the <br>events of the robbery, which lasted no more than 30 seconds and <br>netted $350,000. <br>  Steven Connolly also testified against Auch as a <br>government  witness.  Connolly had not participated in the <br>Charlestown robbery, but he agreed to permit the government to tape <br>a conversation between himself and Auch during which Auch bragged <br>about his participation.  The government introduced a recording of <br>the inculpatory conversation and a transcript of the relevant <br>portions at Auch's trial.  During trial, Auch's counsel questioned <br>the credibility of both Tracy and Connolly, suggesting that the <br>witnesses had an incentive to lie about Auch's involvement in the <br>Charlestown robbery to receive more favorable treatment from the <br>government on the various charges they faced. <br>  In the government's opening statement, the prosecutor <br>told the jury that they would hear testimony from Auch's friends, <br>i.e., the people with whom Auch had chosen to associate and work.  <br>Then, during the government's direct examinations of Tracy and <br>Connolly, the prosecutor repeatedly referred to a separate crime in <br>Hudson, New Hampshire, involving the murder of two persons during <br>the robbery of an armored car (the "Hudson robbery").  Tracy <br>admitted to having participated in that robbery, and the prosecutor <br>asked Connolly why the FBI had interviewed his girlfriend about the <br>Hudson robbery.  Despite Auch's repeated objections, which the <br>district court sustained, the prosecutor continued to ask questions <br>concerning the Hudson robbery and referred to the crime again <br>during closing argument. <br>  During closing and rebuttal arguments, the prosecutor <br>made a further series of questionable and troubling remarks.  <br>First, the prosecutor made various assertions in support of the <br>credibility of the government's witnesses.  The prosecutor asserted <br>that Tracy had no motive to lie, that Tracy knew that if he lied <br>"his life is done," and that Tracy had told the truth about Auch <br>and his own crimes, "like the honest man that he has been in this <br>court."  The prosecutor suggested that if Tracy had wanted to curry <br>favor with the government by testifying falsely against Auch that <br>he would have fabricated a stronger story against him.  Finally, <br>the prosecutor urged the members of the jury to convict Auch <br>because if they failed to do so Auch "would . . . laugh[] all the <br>way to the bank." <br>                            DISCUSSION <br>I.  References to Matters Not in Evidence <br>  Auch's first and most serious ground for appeal concerns <br>the prosecutor's repeated references to a separate crime--the <br>Hudson robbery--during the presentation of the government's <br>evidence.  Auch argues that the references to this independent <br>crime, in combination with the prosecutor's earlier statement that <br>Auch was friends with government witnesses, implicated Auch in the <br>violent and well-publicized Hudson robbery and unfairly prejudiced <br>the jury against him. <br>  Before we turn to the merits of Auch's argument, we must <br>decide the standard of review.  The government argues that we <br>should review Auch's claims for plain error because Auch failed to <br>object with specificity to the prosecutor's references to the <br>Hudson robbery at trial, while Auch argues that his objections were <br>sufficient to avoid plain error review.  In United States v. <br>Carrillo-Figueroa, 34 F.3d 33 (1st Cir. 1994), we explained that <br>"[u]nless the basis for objection is apparent from the context, the <br>grounds for objection must be specific so that the trial court may <br>have an opportunity to address the claim later sought to be <br>presented on appeal."  Id. at 39.  A review of the trial transcript <br>reveals that Auch repeatedly objected to the prosecutor's questions <br>regarding the Hudson robbery but never proffered specific grounds <br>for his objections.  Nevertheless, given the context of the issues <br>at stake during the trial and the complete irrelevance of the <br>Hudson robbery to the case against Auch, we conclude that the <br>grounds for Auch's objections were clear.  It is significant that <br>the district court felt no need to inquire as to the grounds for <br>Auch's objections before immediately sustaining them. <br>  The government, however, argues that Auch's objections to <br>the prosecutor's irrelevant questions cannot preserve the present <br>grounds for appeal--namely, prosecutorial misconduct.  See United <br>States v. Montas, 41 F.3d 775, 782-83 (1st Cir. 1994) (applying <br>plain error review when the grounds for the defendant's objections <br>varied from the issue on appeal).  We cannot agree.  The prosecutor <br>in this case continued to make improper references to the Hudson <br>robbery despite the district court's repeated decisions sustaining <br>Auch's continued objections.  Here the relevant exchanges <br>sufficiently alerted both the government and the district court to <br>the prosecutor's apparently willful misconduct in ignoring the <br>trial court's evidentiary rulings so as to preserve the issue of <br>prosecutorial misconduct for appeal.  See Carrillo-Figueroa, 34 <br>F.3d at 39 (noting that context can make the grounds for objection <br>obvious); cf. United States v. Wilson, 149 F.3d 1298, 1301 & n.5 <br>(11th Cir. 1998) (permitting full appellate review of defendant's <br>allegations of prosecutorial misconduct despite defendant's failure <br>to object to each relevant remark).  Accordingly, we afford Auch's <br>arguments on this issue full appellate review and will not apply <br>the plain error rule. <br>  We turn now to the merits of Auch's argument that the <br>prosecutor's repeated references to the Hudson robbery warrant the <br>reversal of his convictions.  The law is clear that a prosecutor's <br>reliance (or apparent reliance) upon matters not in evidence is <br>improper.  See United States v. Tajeddini, 996 F.2d 1278, 1284 (1st <br>Cir. 1993).  We do not consider the challenged comments in <br>isolation but within the broader context.  See United States v. <br>Seplveda, 15 F.3d 1161, 1187 (1st Cir. 1993).  In assessing a <br>defendant's allegation of prosecutorial misconduct we consider (1) <br>whether the prosecutor's misconduct was isolated and/or deliberate; <br>(2) whether the trial court gave a strong and explicit cautionary <br>instruction; and (3) whether any prejudice surviving the court's <br>instruction likely could have affected the outcome of the case.  <br>See United States v. Hodge-Balwing, 952 F.2d 607, 610 (1st Cir. <br>1991) (citing United States v. Capone, 683 F.2d 582, 586-87 (1st <br>Cir. 1982)).  In this case, the prosecutor's continued references <br>to the Hudson robbery over Auch's repeated and sustained <br>objections compel the conclusion that the prosecutor's comments <br>were part of a deliberate pattern.  The record also demonstrates <br>that the district court sustained Auch's objections to the <br>prosecutor's questions regarding the Hudson robbery and instructed <br>the prosecutor, in front of the jury, to stick to the case at hand. <br>  Finally, and most importantly, however, we cannot say <br>that the prosecutor's misguided tactic in this case could have <br>affected the outcome of the trial.  The evidence the government <br>adduced against Auch at trial overwhelmingly demonstrated his guilt <br>on the charges at hand.  Tracy testified at length and in detail <br>regarding Auch's participation in the robbery, and the government <br>bolstered his testimony with corroborating evidence.  Particularly <br>damning to Auch's case was the government's introduction of Auch's <br>tape-recorded statements, made to Connolly, boasting about his <br>participation as the "wheelman" in the Charlestown robbery.  In the <br>face of such evidence regarding Auch's participation in the <br>Charlestown robbery we cannot say that the prosecutor's conduct, <br>improper though it was, "so poisoned the well" to require reversal.  <br>Hodge-Balwing, 952 F.2d at 610 (internal quotation omitted). <br>II.  Auch's Remaining Contentions <br>  At oral argument, Auch conceded that he failed to <br>preserve the remaining issues for appeal by making contemporaneous <br>objections at trial.  Absent such objections, we review a <br>defendant's claims for plain error.  See United States v. Olano, <br>507 U.S. 725, 732-37, 113 S. Ct. 1770, 1776-79 (1993) (describing <br>the plain error standard); United States v. Wihbey, 75 F.3d 761, <br>770 & n.4 (1st Cir. 1996).  We will not reverse a conviction on <br>plain error review unless the error affects the substantial rights <br>of the defendant.  See Fed. R. Crim. P. 52(b).  We cannot find that <br>an error has affected the defendant's substantial rights unless it <br>is clear that the error affected the outcome of the proceedings.  <br>See Olano, 507 U.S. at 734, 113 S. Ct. at 1777-78.  Given our <br>conclusion above that the government's evidence against Auch was <br>overwhelming and even the prosecutor's serious error could not have <br>affected the outcome of the trial, Auch's remaining allegations of <br>error do not merit reversal under our more limited plain error <br>review.  Nevertheless, to the extent Auch has raised issues of <br>substance, we will catalog and discuss his claims to reemphasize <br>our teachings on these issues and to deter future prosecutorial <br>misconduct.  See generally United States v. Hasting, 461 U.S. 499, <br>506-07, 103 S. Ct. 1974, 1979 (1983) (prosecutorial misconduct that <br>does not affect the defendant's substantial rights may not permit <br>the guilty to go free simply to deter future misconduct). <br>  A.  Prosecutorial Vouching <br>  A prosecutor may not place "the prestige of the <br>government behind a witness by making personal assurances about the <br>witness'[s] credibility;" nor may the prosecutor indicate that <br>facts outside the jury's cognizance support the testimony of the <br>government's witnesses.  United States v. Neal, 36 F.3d 1190, 1207 <br>(1st Cir. 1994).  Auch argues that the prosecutor engaged in <br>several instances of improper vouching during his closing argument, <br>particularly with reference to Tracy, the government's primary <br>witness. <br>  First, Auch correctly points out that the prosecutor <br>improperly injected his personal opinion of the evidence into his <br>closing argument.  See United States v. Smith, 982 F.2d 681, 684 & <br>n.2 (1st Cir. 1993) (prosecutor's use of "I think" during closing <br>argument was improper).  The prosecutor in this case told the jury <br>that "[t]he only way I can even imagine ever acquitting this man of <br>any of the charges is if you totally disbelieve Mr. Tracy as to <br>everything he said about Mr. Auch."  Although the prosecutor did <br>not use the prohibited "I think," language, the statement <br>nonetheless conveyed a personal opinion to the jury and, therefore, <br>was improper. <br>  Second, Auch argues that the prosecutor's statements that <br>Tracy had told the truth, that he had acted like an honest man, and <br>that Tracy's life would be over if he had lied during the trial, <br>constituted further illegal vouching.  To the extent that the <br>prosecutor's arguments referred to Tracy's motives to tell the <br>truth, the argument falls within the accepted bounds and was <br>entirely proper.  See United States v. Dockray, 943 F.2d 152, 156 <br>(1st Cir. 1991); United States v. Martin, 815 F.2d 818, 821-23 (1st <br>Cir. 1987).  The prosecutor's introduction of Tracy's plea <br>agreement and his commentary on the dire consequences Tracy would <br>face if he committed perjury during Auch's trial, therefore, do not <br>constitute improper vouching. <br>  Beyond that, however, many of the prosecutor's remarks <br>may have crossed the line.  The government concedes that the <br>prosecutor's repeated statements to the effect that Tracy had acted <br>like an honest man and had testified truthfully at least entered a <br>gray area of impropriety.  See United States v. Innamorati, 996 <br>F.2d 456, 483 (1st Cir. 1993) (noting a "hazy" line between <br>legitimate argument and improper vouching).  Although some of the <br>challenged statements fall into this gray area, assertions to the <br>effect that Tracy had told the truth run afoul of the long-standing <br>decisions of this court.  See Wihbey, 75 F.3d at 772 (prosecutor's <br>comment that government witness testified truthfully was improper); <br>United States v. Meja-Lozano, 829 F.2d 268, 273 (1st Cir. 1987) <br>(same).  We acknowledge that Auch's strategy at trial was to <br>characterize Tracy and Connolly as witnesses who had lied to curry <br>favor with the government and that the prosecutor's remarks came in <br>response to defense counsel's attempts to portray the government's <br>witnesses in the worst light.  See Meja-Lozano, 829 F.2d at 274 <br>(giving the prosecutor "greater leeway" when improper vouching came <br>"in response to defense counsel's inflammatory statements").  <br>Nevertheless, "a trespass by the defense [does not] give[] the <br>prosecution a hunting license exempt from ethical restraints on <br>advocacy."  Capone, 683 F.2d at 586 (quoting Patriarca v. United <br>States, 402 F.2d 314, 321 (1st Cir. 1968)). <br>  Finally, Auch challenges the prosecutor's comments to the <br>effect that if Tracy was willing to lie about Auch's involvement in <br>the robbery to curry favor with the government, he would have <br>concocted a more damaging story.  We found this type of comment <br>to be beyond the bounds of proper argument in United States v. <br>Manning, 23 F.3d 570 (1st Cir. 1994).  In that case, the prosecutor <br>said that if the government's witness really wanted to lie, there <br>were "a million little ways they could have given it to the <br>Defendant" but argued that the government's witnesses could not lie <br>or exaggerate because they were bound by their oaths and the truth. <br>Id. at 572.  We held that this improper vouching, in combination <br>with a number of additional prosecutorial missteps during closing <br>arguments, required reversal.  Id. at 575.  We acknowledge that <br>Manning is distinguishable because the relatively sparse evidence <br>of the defendant's guilt on the charges at issue in Manning led us <br>to question whether the prosecutor's misconduct had swayed the <br>jury.  Nevertheless, we find the comments at issue in this case <br>indistinguishable from those in Manning in their impropriety, and <br>prosecutors in this circuit should consider themselves well advised <br>to strike such commentary from their repertoires. <br>  B. Extra-Judicial Consequences of the Verdict <br>  A prosecutor must refrain from attempting to deflect the <br>jury's attention from the narrow issue of the defendant's guilt or <br>innocence; any attempt to "foist onto the jury responsibility for <br>the extra-judicial consequences of a not-guilty verdict" is <br>improper.  United States v. Whiting, 28 F.3d 1296, 1302 (1st Cir. <br>1994).  Auch contends that the prosecutor committed such a <br>transgression by arguing that a not guilty verdict would result in <br>the biggest day of Auch's life and that he would laugh all the way <br>to the bank. <br>  The government candidly admits that the prosecutor did <br>not choose his words carefully in this portion of the closing <br>argument.  We find the prosecutor's lack of discretion particularly <br>troubling in this instance because the comments came towards the <br>end of the government's rebuttal and, as the last words that the <br>jury heard from the trial attorneys, had great potential to cause <br>prejudice.  See Manning, 23 F.3d at 575 (emphasizing the <br>significance of the timing of improper remarks to the jury). <br>  Nevertheless, the prosecutor's ill-advised rhetoric or <br>pained attempt at humor appears to have been relatively harmless in <br>this instance.  The majority of our cases that address a <br>prosecutor's references to the extra-judicial consequences of a <br>jury's verdict involve more sweeping arguments.  Typical examples <br>include a prosecutor's attempt to enlist the jurors in the war on <br>drugs, see Arrieta-Agressot v. United States, 3 F.3d 525, 527 (1st <br>Cir. 1993) ("[T]he defendants are not soldiers in the army of good.  <br>They are soldiers in the army of evil, in the army which only <br>purpose [sic] is to poison, to disrupt, to corrupt."), or a demand <br>that the jury prevent the defendant from harming other victims, see <br>Whiting, 28 F.3d at 1302 ("exhort[ing] . . .  the jurors not to <br>'let other kids be succored [sic] in by [the defendant's] flash, <br>that cash, that deception'").  In this case, the prosecutor's <br>remarks were confined to how Auch would react if the jury rendered <br>a verdict of not guilty.  Although the remarks may have been <br>calculated to "excite the jury, invite a partisan response, and <br>distract its attention from the only issue properly presented by <br>this case: whether the evidence established [Auch's] guilt beyond <br>a reasonable doubt," Arrieta-Agressot, 3 F.3d at 529-30, the <br>prosecutor's remarks were not as far afield as those requiring <br>reversal under the plain error standard. <br>                            CONCLUSION <br>  Although we find the prosecutor's various transgressions <br>and missteps in the conduct of this trial both disturbing and <br>exasperating, we discern no reversible error.  The evidence of <br>Auch's guilt on the charges is plain in the record and leads us to <br>conclude that none of the errors described above--whether <br>considered in isolation or in combination--could have had any <br>meaningful effect on the jury's ultimate verdict.  Accordingly, we <br>heed the Supreme Court's admonition against letting the guilty go <br>free to punish prosecutorial misconduct.  See United States v. <br>Hasting, 461 U.S. 499, 506-07, 103 S. Ct. 1974, 1979 (1983). <br>Prosecutors, however, also would do well to heed the Supreme <br>Court's warnings that our recourse is not limited to public hand- <br>wringing in the pages of the federal reporters.  In the appropriate <br>case, the courts will not hesitate to refer an offending prosecutor <br>to the Department of Justice for further investigation and <br>discipline.  Id. at 506 n.5, 103 S. Ct. at 1979 n.5. (describing <br>this and other options the courts may exercise in the face of a <br>prosecutor's unethical conduct). <br>  For the foregoing reasons, we AFFIRM. <br></pre>

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