                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1007
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the Western
                                        * District of Missouri.
Xavier E. Holmes                        *
                                        *
            Appellant.                  *
                                   ___________

                             Submitted: May 11, 2004
                                Filed: July 7, 2005
                                 ___________

Before MORRIS SHEPPARD ARNOLD, McMILLIAN, and MELLOY, Circuit
      Judges.
                         ___________

MELLOY, Circuit Judge.

       Xavier Holmes appeals his conviction by a jury of being a felon in possession
of a firearm that had traveled in interstate commerce, in violation of 18 U.S.C.
§ 922(g)(1). We reverse and remand for a new trial.

                                         I.
       Two police officers, Officer Snyder and Officer LeMoine, were dispatched to
an apartment where Mr. Holmes and a gun were found after Brenda Williams (a sister
of Mr. Holmes’s girlfriend, Sheila Perry) called 911 and reported that there was a
disturbance at the apartment involving a person armed with a gun. The door to the
apartment was wide open when the officers arrived, and Brenda invited them inside.
In addition to Brenda, Mr. Holmes and Ms. Perry were present in the apartment. The
record is unclear as to what role, if any, Mr. Holmes played in the events leading to
the 911 call.

        According to both officers’ testimony, Mr. Holmes backed away from them
with his hands behind his back when they entered the apartment, and Officer Snyder
asked him to show his hands, but Mr. Holmes did not initially do so. Officer Snyder
testified that he followed Mr. Holmes around a counter, after which Mr. Holmes
backed up to a wall and began to pull a hand from behind his back “as if he was
picking something up from the back of his pants.” Officer Snyder stated that he
unholstered his gun in response to Mr. Holmes’s actions, then began to point his gun
at Mr. Holmes after observing that Mr. Holmes was holding a revolver. According
to Officer Snyder, Mr. Holmes did not point the revolver at anyone, but rather “slid
it down his leg,” let go of it, and it hit the floor. Officer Snyder was then assisted by
Officer LeMoine in handcuffing Mr. Holmes. Officer LeMoine testified that she
never saw Mr. Holmes holding or dropping a gun, and that she was focused on trying
to defuse the argument between the two women in the apartment, but that at some
point after Officer Snyder asked Mr. Holmes to show his hands, she “heard a loud
clunk like something had fallen onto the floor.” The officers recovered the revolver
from the floor after they detained Mr. Holmes.

       Mr. Holmes’s testimony provided an alternative explanation for how the gun
got on the floor. He testified that Carolyn Williams (a sister of Brenda and
Ms. Perry), who had resided at the apartment where Mr. Holmes and the gun were
discovered, had been incarcerated and asked him in a phone call to “secure her
furniture so nothing would happen to it.” He explained that he had gone with
Ms. Perry to Carolyn’s apartment to retrieve the belongings, that Brenda was at the
apartment when they arrived, and that Ms. Perry and Brenda got into an argument.
He stated that after carrying a television set from the apartment to the car, he noticed

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police officers approaching the apartment complex, and he went back into the
apartment to “get out of their way,” as he had “been drinking that day” and “didn't
want them to smell it on [his] breath” because he was on probation. Mr. Holmes
testified that after he walked back into the apartment and was waiting for Ms. Perry
to tell him what she wanted to move next, “the next thing I know the police were
there and I saw a gun laying on the counter,” and “I panicked and pushed it over the
counter” because “I’m on probation” and “I’m not supposed to be around guns.” He
testified that he had “no idea” who owned the gun, and that the moment at which the
police officers arrived was the “first time I ever saw” the gun. Both officers testified
that they did not see the gun on the counter or see Mr. Holmes’s hand making a
motion towards the counter.

                                          II.
       At trial, Mr. Holmes attempted to offer the testimony of Carolyn and two other
witnesses whom he had subpoenaed, but the district court refused to allow them to
testify, concluding that their testimony would be irrelevant. Prior to the close of his
defense, Mr. Holmes asked the court to reconsider admitting the testimony of the
three witnesses, but the court again declined to permit the testimony. Mr. Holmes
contends that the exclusion of this testimony was erroneous and violated his due
process right to present a defense. At trial, Mr. Holmes made offers of proof as to
what the witnesses would have said: Carolyn would have testified that she was the
leaseholder of the apartment, that her lease had expired, and that she had contacted
Mr. Holmes about retrieving her property from the apartment; the apartment’s
landlord would have testified that Carolyn and her son had lived there and that their
lease had ended shortly before the day of Mr. Holmes’s arrest; and Carolyn’s son
would have testified that he was in the process of moving out of the apartment on the
day that Mr. Holmes was arrested. Mr. Holmes maintained that he was offering the
testimony to show “why he was there, what he was doing, how he came to be there.”
The district court, however, responded that “[u]nless one of them is going to say they
put the gun on the counter, it’s not relevant to this proceeding.”

                                          -3-
       The district court’s only stated rationale for excluding the testimony was that
it was not relevant. We agree with Mr. Holmes that this was an improper basis for
excluding the testimony. The excluded testimony was relevant because it provided
background and contextual information that would have been useful in assessing the
relative credibility of the officers’ and Mr. Holmes’s testimony. Cf. Old Chief v.
United States, 519 U.S. 172, 186-89 (1997); United States v. DeAngelo, 13 F.3d
1228, 1232 (8th Cir. 1994), cert. denied, 512 U.S. 1224 (1994). Evidence is relevant
so long as it has “any tendency,” however slight, “to make the existence of any fact
that is of consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Fed. R. Evid. 401; see United States
v. Casares-Cardenas, 14 F.3d 1283, 1287 (8th Cir. 1994), cert. denied, 513 U.S. 849
(1994). The threshold for relevance is “quite minimal.” United States v. Guerrero-
Cortez, 110 F.3d 647, 652 (8th Cir. 1997), cert. denied, 522 U.S. 1017 (1997). All
relevant evidence is admissible, except as otherwise provided by the Constitution,
legislation, or applicable evidentiary rules, and conversely, all irrelevant evidence is
inadmissible. See Fed. R. Evid. 402.

       The only disputed issue of material fact at trial was whether Mr. Holmes had
knowingly possessed the firearm that the police officers recovered from the
apartment. (The parties stipulated that Mr. Holmes was a convicted felon as of the
date in question and that the gun had been transported in interstate commerce.) The
jury was presented with two inconsistent accounts of how the events surrounding
Mr. Holmes’s arrest and the recovery of the gun unfolded. The government’s theory
that Mr. Holmes retrieved the gun from the back of his pants was supported by
Officer Snyder’s testimony that he had observed Mr. Holmes holding and dropping
the gun that was found on the floor, and both officers’ testimony that they had not
observed a gun on the counter or Mr. Holmes’s hand moving toward the counter. The
jury had to determine whether this was sufficient to prove beyond a reasonable doubt
that Mr. Holmes had possessed the firearm despite Mr. Holmes’s testimony to the
contrary that he had merely pushed it from the counter upon observing it.

                                          -4-
       The evidence proffered by Mr. Holmes was relevant because it would have
made his explanation of how the gun came to be on the ground—that another person
had placed it on the kitchen counter, and that he had pushed it away from him as the
police entered the apartment—somewhat more plausible than it was without the
evidence. Consequently, the evidence would have been of some value to Mr. Holmes
in his efforts to create a reasonable doubt in the jurors’ minds that he had possessed
the gun. It would have corroborated his contention that he was present in the
apartment to help the people who had lived there move, and it might have increased
the probability that the apartment was in a state of disarray, that a firearm normally
stored elsewhere had been left by somebody on the counter during the moving
process, and that, as a guest in the apartment, he was surprised to discover the gun on
the counter when the police arrived. It might also have tended to decrease the
probability that he was personally armed by demonstrating that he was at the
apartment for a legitimate nonviolent purpose rather than to pursue some nefarious
goal.

       “[T]he Constitution guarantees criminal defendants a meaningful opportunity
to present a complete defense,” which includes the right to present testimony of
witnesses that is material and favorable to their defense and complies with the rules
of evidence. See Crane v. Kentucky, 476 U.S. 683, 690-91 (1986) (internal
quotations omitted); see also United States v. Turning Bear, 357 F.3d 730, 733 (8th
Cir. 2004). The testimony of these witnesses is relevant and therefore a part of Mr.
Holmes’s complete defense. Because we determine below that a retrial is necessary,
we need not consider whether the exclusion of testimony was harmless. On retrial,
these contested witnesses may offer their testimony.

                                        III.
      Mr. Holmes urges us to hold that improper comments made by the government
during closing arguments deprived him of his fifth amendment right to a fair trial.
The district court has broad discretion in controlling closing arguments, and we

                                         -5-
overturn a conviction on the basis of prosecutorial misconduct only upon a showing
that improper remarks, in light of any rulings or curative instructions by the district
court and in light of the trial as a whole, could reasonably have affected the jury’s
verdict. See United States v. Conrad, 320 F.3d 851, 855 (8th Cir. 2003). If the
government has made improper remarks to a jury, we determine whether they
deprived the defendant of a fair trial by examining the “cumulative effect of such
misconduct,” the “strength of the properly admitted evidence of the defendant’s
guilt,” and the “curative actions taken by the trial court.” United States v. Hernandez,
779 F.2d 456, 460 (8th Cir. 1985). Under this standard, we find that the cumulative
effect of the remarks in this case, coupled with the exclusion of admissible testimony
and the relative weakness of the government’s case, could reasonably have affected
the jury’s verdict.

       Mr. Holmes objected to a statement the government made at the beginning of
its rebuttal argument: “Mr. Moss is a good defense attorney, tries to get you to focus
your attention over here when what really is important is right in front of you. It’s all
smoke and mirrors.” (Mr. Moss was Mr. Holmes’s trial counsel.) The district court
overruled Mr. Holmes’s objection that this comment was “improper.” The
government continued to make similar comments about Mr. Moss later in its rebuttal
argument, stating that “Mr. Moss wants to distract you and tell you about all this other
evidence that’s not important,” and that issues that Mr. Moss had raised about who
had owned the gun in question were a “red herring.” The government also
commented that “Mr. Moss needs to make sure that they get their stories straight”
(“they” presumably referred to Mr. Moss and Mr. Holmes), and that the jury should
“look at Mr. Moss's story. That's why I said he’s got to get his stories straight.”

      We think that these various comments referring personally to Mr. Moss and the
necessity for Mr. Moss to “get his stories straight,” taken as a whole and in the
context of the rebuttal argument, show that the government attorney was accusing
defense counsel of conspiring with the defendant to fabricate testimony. These types

                                          -6-
of statements are highly improper because they improperly encourage the jury to
focus on the conduct and role of Mr. Holmes’s attorney rather than on the evidence
of Mr. Holmes’s guilt. Such personal, unsubstantiated attacks on the character and
ethics of opposing counsel have no place in the trial of any criminal or civil case.

       More than thirty-five years ago our court found such statements to be improper.
See Cline v. United States, 395 F.2d 138, 141 (8th Cir. 1968) (finding it improper for
a prosecutor to accuse defense counsel of dishonesty). Such statements are improper
because a prosecutor’s comment “carries with it the imprimatur of the Government
and may induce the jury to trust the Government’s judgment rather than its own view
of the evidence.” United States v. Young, 470 U.S. 1, 18-19 (1985). They are also
improper because the role of the prosecutor is not merely to pursue convictions, but
to pursue justice—“the twofold aim of which is that guilt shall not escape or
innocence suffer.” Berger v. United States, 295 U.S. 78, 88 (1935). In pursuit of
these dual goals, a government attorney may “prosecute with earnestness and vigor
. . . may strike hard blows . . . [but] is not at liberty to strike foul ones.” Id.
Accordingly, prosecutors may not inject their own testimony nor cast aspersions upon
the defendant through offhand comments, suggestions of conspiracy with defense
counsel, nor personal attacks upon the integrity of defense counsel. See McDonnell
v. United States, 457 F.2d 1049, 1052-53 (8th Cir. 1972) (finding that a prosecutor
deserved censure for admittedly describing defense counsel’s offer of proof as a
“common trick,” but finding no abuse of discretion in the denial of a motion for
mistrial because the judge and reporter had not heard the remark and the court of
appeals was unwilling to assume the jury had heard the remark); see also United
States v. Pungitore, 910 F.2d 1084, 1142 (3d Cir. 1990) (collecting cases); United
States v. Murrah, 888 F.2d 24, 27 (5th Cir. 1989) (reversing conviction because
prosecutor improperly accused defense counsel of hiding expert witness to prevent
government’s use of witness); United States v. McLain, 823 F.2d 1457, 1462-63 (11th
Cir. 1987) (reversing conviction under plain error standard in part because prosecutor
repeatedly stated that defense counsel “intentionally misle[d] the jurors and witnesses

                                         -7-
and . . . [lied] in court”), overruled on other grounds by United States v. Lane, 474
U.S. 438, 449 (1986) (as recognized in United States v. Watson, 866 F.2d 381, 385
n.3 (1989)).

        It is particularly disturbing that the comments were made during the rebuttal
phase of closing argument. See United States v. Cannon, 88 F.3d 1495, 1503 (8th
Cir. 1996) (reversing a conviction based on a prosecutor’s improper remarks during
closing and noting, “Because the remark came during rebuttal arguments, defense
counsel was unable to respond except by objection.”); United States v. Johnson, 968
F.2d 768, 772 (8th Cir. 1992) (reversing a conviction based on prosecutor’s improper
comments during the rebuttal phase of closing arguments); see also United States v.
Carter, 236 F.3d 777, 788 (6th Cir. 2001) (improper comments during rebuttal
constituted “the last words from an attorney that were heard by the jury before
deliberations”). In Cline, our court found an improper comment non-prejudicial
specifically because the comment was an “isolated remark . . . made early in the
trial.” Cline, 395 F.2d at 142 (emphasis added). Here, in contrast, the prosecutor’s
improper comment came in the rebuttal phase of closing arguments. Defense counsel
was left with no opportunity to rebut the allegations and the jury heard the remark
immediately before deliberations. The potential for prejudice is great during closing
arguments, especially when the defense has no opportunity for rebuttal.

       The strength of the government’s case, like the timing of improper comments,
is also a factor relevant to our determination of prejudice. Cannon, 88 F.3d at 1503
(“[A]n improper argument is less likely to have affected the verdict in a case when
the evidence is overwhelming than in a case where the evidence is weak.”); Johnson,
968 F.2d at 772 (“[T]he evidence of Johnson’s guilt is far from overwhelming.”).
Here, the government’s case was less than overwhelming. This is a case where one
police officer, Officer Snyder, presented a version of the facts that conflicted with the
defendant’s version of the facts. A second police officer, Officer Le Moine, offered
testimony that could have supported either explanation. (She verified that she heard

                                          -8-
a clunk and saw the gun on the floor, but her failure to see Mr. Holmes move his hand
towards the counter is easily explained by the fact that she was diffusing the argument
between the two women and not looking at Mr. Holmes.) Further, when assessing the
relative strength of the government’s case and the potential for prejudice, we must
consider the cumulative effect of the fact that relevant evidence favorable to the
defendant was improperly excluded.

       As noted above, improper comments merit reversal if we find that those
comments, in the context of the trial as a whole, could reasonably have affected the
jury’s verdict. Here the standard has been met. Because the government’s case was
not strong, witnesses offered by the defense were improperly excluded, the comments
occurred during rebuttal arguments, and the comments were of a highly prejudicial
nature, we conclude that the defendant should be granted a new trial.1

      1
        The government made two other potentially prejudicial comments. Taken in
isolation, we believe that the district court adequately mitigated the impact of these
other comments through its curative actions. Nevertheless, we strongly recommend
that prosecutors not make such comments, and the cumulative effect of these
comments added to the potential for prejudice in this case.

       Mr. Holmes objected during rebuttal argument when the government told the
jury that “to buy the defendant’s story you have to believe that Officer Snyder and
Officer LeMoine were lying.” Mr. Holmes objected that this argument constituted
impermissible “burden shifting,” and his objection was overruled. Though the
testimony of the officers and Mr. Holmes were contradictory in important respects,
and Mr. Holmes attacked the credibility of the officers as part of his defense,
Mr. Holmes proposed the theory in his closing argument that the officers were merely
“mistaken” in their perceptions based on the “stress” and “intensity” of the situation.
The government’s contention that Mr. Holmes’s testimony about the gun could be
believed only if both police officers were “lying” was, therefore, an incorrect
characterization of the dispositive factual issue and of Mr. Holmes’s theory of
defense. Although the district court overruled Mr. Holmes’s objection to the
government’s statement in this instance, the district court partially mitigated the
impact of the statement by properly instructing the jury regarding the burden of proof.

                                         -9-
                                            IV.
       Mr. Holmes next contends that the district court erred by failing to give an
instruction to the jury limiting the evidentiary use of his prior felony convictions.
Rule 105 of the Federal Rules of Evidence provides that “[w]hen evidence which is
admissible . . . for one purpose but not admissible . . . for another purpose is admitted,
the court, upon request, shall restrict the evidence to its proper scope and instruct the
jury accordingly.” In accordance with Rule 105, Mr. Holmes requested that the
district court give an instruction that stated:

      You have heard evidence that the defendant Xavier Holmes was
      previously convicted of a crime. You may use that evidence only to
      help you decide whether to believe his testimony and how much weight
      to give it. That evidence does not mean that he committed the crime
      charged here, and you must not use that evidence as proof of the crime
      charged in this case.



       The government also argued to the jury that “at the beginning of the trial
[Mr. Holmes] is entitled to a presumption of innocence until evidence is presented.
When he takes that stand, he’s not presumed to be telling the truth.” The district
court sustained Mr. Holmes’s objection that this line of argument was a misstatement
of the law, stating during a bench conference that the government was “crossing over
the bounds,” and that Mr. Holmes “has the presumption of innocence until the jury
finds he is guilty beyond a reasonable doubt.” At the end of the government’s
rebuttal argument, the district court properly instructed the jury that “the defendant's
presumption of innocence follows him throughout the trial” and “doesn’t
automatically go away when he gets on the witness stand and testifies.”

       While the government’s statement that a defendant who testifies is not
presumed to be telling the truth was correct, the suggestion that the presumption of
innocence in a criminal trial ceases to apply when the government presents evidence
was misleading, and the district court thus appropriately sustained the objection and
gave the curative instruction. The district court’s actions undoubtedly helped to
dispel any confusion or undo any prejudice that might have arisen as a result of the
comment about the burden of proof.

                                          -10-
This proposed instruction was taken verbatim from the Eighth Circuit’s model jury
instruction relating to impeachment of a defendant’s testimony by a prior conviction.
See Eighth Circuit Manual of Model Jury Instructions—Criminal, Instruction 2.16.
The government opposed the use of Mr. Holmes's proposed instruction because it did
not anticipate “arguing any sort of propensity in this case,” and because the
instruction would confuse the jury since one of the elements of the crime charged was
the fact that Mr. Holmes was a convicted felon. This was the only instruction on this
matter that Mr. Holmes asked for, and the district court refused to give it.

        The district court did not err in declining to instruct the jury as Mr. Holmes
requested because the proposed instruction was an erroneous statement of the law.
One of the essential elements of the crime of being a felon in possession of a firearm
is that the defendant has “been convicted [of] a crime punishable by imprisonment for
a term exceeding one year.” 18 U.S.C. § 922(g)(1). The evidence of Mr. Holmes's
prior felony convictions was thus not only admissible to shed light on his credibility
as a witness, it was substantive evidence that he had committed the charged offense.
A direction that the jury “must not” use evidence of Mr. Holmes’s previous felony
convictions “as proof of the crime charged in this case” would simply have been
wrong.

                                        V.
       Mr. Holmes also raises a sentencing issue under Blakely v. Washington, 124
S.Ct. 2531 (2004). In light of our remand order, we need not address this issue.

                                     VI.
      We reverse and remand for a new trial.




                                        -11-
MORRIS SHEPPARD ARNOLD, Circuit Judge, dissenting.

      I would not reverse this conviction based on the remarks that the government's
counsel made during closing arguments. The court indulges every presumption
against a benign construction of those remarks and its characterization of their
purport is harsh. In my judgment, the statements objected to did not directly
implicate defense counsel's honesty.

       I see no reason, moreover, to believe that the statements had a substantially
injurious effect on the outcome of the case. Juries know that argument is not
evidence; it is just talk. For all that we can know, the argument may well have gotten
the jury's back up and prejudiced the government rather than the defendant. The court
presumes that juries are a lot more impressionable than experience will allow for, and
gives them too little credit for a common sense ability to discount vituperation and
hyperbole and to restrict themselves to a consideration of the evidence adduced at
trial.

      There is nothing in this case to differentiate it from the scores, perhaps
hundreds of cases that have routinely come before us in the last thirty or forty years
in which an identical argument has been rejected out of hand. This counsels more
caution than the court employs in the present circumstances.

      I would uphold this judgment and therefore respectfully dissent.
                      ______________________________




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