     Case: 14-60926        Document: 00513374018         Page: 1       Date Filed: 02/10/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                        No. 14-60926
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                                                                   FILED
UNITED STATES OF AMERICA,                                                   February 10, 2016
                                                                              Lyle W. Cayce
                Plaintiff–Appellee,                                                Clerk

v.

JAMES WILLIAM SMITH,

                Defendant–Appellant.




                    Appeal from the United States District Court
                      for the Northern District of Mississippi


Before KING, DENNIS, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      This case reaches our court for the second time. In the prior appeal,
another panel of this court reversed the district court’s judgment of acquittal
at the conclusion of James William Smith’s trial. Our court held that the
evidence was legally sufficient to support the jury’s guilty verdict. 1 On remand,
the district court entered a final judgment of conviction and sentenced Smith
for possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).
Smith appeals that conviction, asserting, inter alia, that the prosecutor plainly
erred by personally vouching for the credibility of witnesses and invoking the



      1   United States v. Smith, 739 F.3d 843, 848 (5th Cir. 2014).
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                                   No. 14-60926
integrity of his office in order to bolster the state’s case.        Because the
prosecutor’s misconduct seriously affected the fairness, integrity, and public
reputation of Smith’s proceedings, we reverse his conviction and remand for a
new trial.
                                         I
      The facts leading to Smith’s conviction are set forth in our prior opinion. 2
We recount only facts pertinent to the procedural posture of this case and to
arguments regarding prosecutorial misconduct during summation.
      The Tupelo Police Department arrested Smith after discovering that
someone downloaded twenty-six videos containing child pornography from
FrostWire—a free peer-to-peer file sharing network—onto Smith’s laptop.
Only three individuals, Smith and his two roommates—his girlfriend,
Elizabeth Penix and his friend, Joshua Jolly—had regular access to Smith’s
laptop. 3 Because employment records indicated that Penix was at work during
one of the download times, she was not a viable suspect. 4
      At trial, Jolly denied having ever downloaded child pornography, but he
could not recall his activities on the relevant download dates. Jolly further
testified that he possessed little knowledge of computers, though forensic
analysis revealed that Jolly regularly used Smith’s computer to browse the
Internet. 5
      Smith did not testify but called three witnesses to establish an alibi—
Penix and Smith’s parents, Roberta and J. W. Smith. The alibi witnesses
testified that Penix and Smith were at his parents’ home during one of the
download times, raising an inference that Smith did not download child



      2 Id. at 845-48.
      3 See id. at 846.
      4 Id.
      5 See id.

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                                      No. 14-60926
pornography at any time.           The testimony of Smith’s alibi witnesses was
impeached. However, if believed, the testimony of Smith’s parents and of
Penix necessarily implicated Jolly.
       The jury found Smith guilty, and he timely moved for a judgment of
acquittal, or in the alternative, a new trial.           The district court entered a
judgment of acquittal based on insufficiency of the evidence but conditionally
denied Smith’s new trial motion. The Government then appealed Smith’s
acquittal to this court, and Smith cross-appealed the denial of his new trial
motion pursuant to Federal Rule of Criminal Procedure 29(d)(3)(B). 6 Viewing
the evidence in the light most favorable to the verdict, we reversed the
judgment of acquittal and remanded for sentencing. 7 It is the final judgment
of conviction from which Smith now appeals. 8
                                             II
       Smith contends that in closing arguments, the prosecutor committed
plain error by vouching for the credibility of witnesses and that the prosecutor
improperly argued to the jury that the Government had no incentive to try
Smith unless he were guilty. Smith contends this violated his due process right
to a fair trial. The Government argues that because Smith did not raise these
issues in the trial court or in his cross-appeal in response to the Government’s
prior appeal, these issues are waived.              The Government asserts in the
alternative that we are foreclosed from considering these issues under the
law-of-the-case doctrine. These arguments are not well-taken.




       6  FED. R. CRIM. P. 29(d)(3)(B) (“If the court conditionally denies a motion for a new
trial, an appellee may assert that the denial was erroneous. If the appellate court later
reverses the judgment of acquittal, the trial court must proceed as the appellate court
directs.”).
        7 See Smith, 739 F.3d at 848.
        8 Id.

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                                         No. 14-60926
                                                A
       The Government maintains that Smith was required to raise claims of
prosecutorial misconduct in the prior appeal, and Smith counters that he was
not. However, neither Smith nor the Government cited authority to support
their respective positions, even after they were pressed by this court to do so.
But our precedent makes clear that Smith was not required to cross-appeal as
to issues of prosecutorial misconduct that, if sustained, would require remand
for a new trial. 9



       9   See United States v. Williams, 679 F.2d 504, 507 (5th Cir. 1982):

                In the first appellate incarnation of U.S. v. Williams, this defendant
       appeared before us in the role of appellee. As such, he was allowed only to
       respond to the government’s arguments. If in the earlier appeal Williams had
       sought to raise the arguments he now brings before us, his cross-appeal would
       have been dismissed for want of jurisdiction; as the victor in the district court,
       Williams was not then an aggrieved party entitled to review. Moreover, as the
       defendant in a criminal action, he could not come before this court in the role
       of appellant until he had been sentenced. Parr v. United States, 351 U.S. 513,
       518 (1956); Berman v. United States, 302 U.S. 211, 212-213 (1937). It was only
       after the district court’s directed verdict of acquittal had been reversed, the
       case remanded, and a sentence had been imposed, that Williams could raise
       the arguments he now urges upon the court in this appeal. Since this is the
       first time Mr. Williams could appear before us in the role of appellant, we
       conclude that this case is now properly before us.
              Having explained why Mr. Williams is getting two bites at the appellate
       apple, we now move on to the core issues in this appeal.
See also United States v. Cardenas, 748 F.2d 1015, 1023 (5th Cir. 1984); but see 15B CHARLES
A. WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE
§ 3919.5 (2d ed.) (footnotes omitted):
       The right of the government to appeal a dismissal does not carry with it a right
       of cross-appeal by the defense to raise issues that would not support a
       judgment of acquittal. It seems to be felt that such matters as denial of a
       defense motion for new trial are better reviewed in conjunction with such
       further trial court proceedings as may be required should the government win
       reversal on appeal from the dismissal. This practice may be too grudging.
       Defense cross-appeals should be permitted as to any issues that are
       conveniently considered together with the dismissal question; the court need
       not trouble with the cross-appeal if the dismissal is affirmed, and all parties
       may benefit from disposition of the cross-appeal if the dismissal is reversed.
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                                       No. 14-60926
       The waiver doctrine generally bars consideration of issues that a party
could have raised in an earlier appeal but did not. 10 However, Smith was not
the appellant in the prior appeal. He was the prevailing party in the trial
court, obtaining a judgment in his favor. The procedural posture of this case
is similar to that of United States v. Cardenas. 11 In that case, our court
concluded that the evidence was sufficient to support a jury’s guilty verdict and
therefore that the district court’s judgment of acquittal should be reversed. We
explained that on remand the defendant could raise his argument that the
prosecutor had made improper comments:
              [T]he defendant currently is before the court in the role
       solely of an appellee. As such, he is allowed only to respond to the
       government’s arguments. Cardenas will be able to raise the issue
       of whether the prosecutor’s statements warrant a mistrial once the
       district court’s judgment of acquittal has been reversed, the case
       remanded, and sentence imposed. The issue, however, is not
       currently before this court. 12
Since Smith was not required to raise the issues of prosecutorial misconduct
in the prior appeal taken by the Government, those issues are not waived. 13
       We note that under Federal Rule of Criminal Procedure 29(d)(3)(B),
when the Government is the appellant, a defendant, as an appellee, is
permitted, but not required, to assert that the trial court’s conditional denial




       The government has been allowed to cross-appeal upon appeal by the
       defendant, and a similar practice seems warranted on appeal by the
       government.
       10 See Brooks v. United States, 757 F.2d 734, 739 (5th Cir. 1985) (“This Court has noted
that an issue not briefed and discussed in an appeal before this Court may be deemed to have
been waived. Moreover, the Supreme Court has noted that a second appeal generally brings
up for revision nothing but proceedings subsequent to the mandate following the prior
appeal.” (citation omitted)).
       11 748 F.2d at 1023.
       12 Id. (citation omitted).
       13 See also WRIGHT, MILLER & COOPER, supra note 15 at § 3919.5 n. 110.

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                                       No. 14-60926
of a motion for a new trial was erroneous. 14 At the conclusion of his trial, Smith
moved for a new trial on several grounds, including a request for a new trial
on the basis that if the evidence was sufficient to support the verdict, it was
nevertheless so thin as to require a new trial in the interest of justice. In the
prior appeal by the Government, Smith did cross-appeal under Rule
29(d)(3)(B), contending that the district court erred in conditionally denying
his motion for new trial on this ground. Our court had jurisdiction of that issue
and ruled adversely to Smith. But we did not reach, and did not purport to
reach, issues that were not included in the motion for new trial. 15
                                             B
            The law-of-the-case doctrine bars reexamination of issues of law or
fact decided on appeal in subsequent proceedings in a trial or appellate court. 16
It applies when an appellate court previously decided the issue “either
expressly or by necessary implication.” 17 The Government contends that in his
motion for new trial, Smith argued that the prosecutor improperly vouched for
witnesses and improperly stated that he had no incentive to try Smith if Smith
were not guilty. The Government correctly observes that in the prior appeal,
this court concluded that none of the grounds asserted in the motion for new
trial warranted a new trial. In the prior appeal, this court said:
              Smith asks that we instruct the district court to consider
       whether a new trial is warranted on grounds not previously raised.
       Smith, however, has shown no error or abuse of discretion in the
       district court’s adjudication of his motion for a new trial, and we
       find none in the record. Accordingly, we deny that request.

       14  See FED. R. CRIM. P. 29(d)(3)(B) (“If the court conditionally denies a motion for a
new trial, an appellee may assert that the denial was erroneous. If the appellate court later
reverses the judgment of acquittal, the trial court must proceed as the appellate court
directs.”).
       15 United States v. Smith, 739 F.3d 843, 848 (5th Cir. 2014).
       16 See Conway v. Chem. Leaman Tank Lines, Inc., 644 F.2d 1059, 1061-62 (5th Cir.

1981).
       17 Id. at 1062 (quoting Lehrman v. Gulf Oil Corp., 500 F.2d 659, 663 (5th Cir. 1974)).

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                                     No. 14-60926
      Consequently, and for the reasons stated herein, we REVERSE the
      judgment of acquittal and remand for sentencing. 18
      Our court considered only the grounds that Smith set forth in his motion
for new trial. We have reviewed the record, and the motion for new trial did
not raise any question as to the prosecutor’s vouching for witnesses or the
prosecutor’s statement that he would not have prosecuted Smith unless he was
guilty. Our court had no occasion to consider those issues, and we did not
decide them expressly or by necessary implication.
                                            III
      Because Smith did not object to the prosecutorial remarks at issue in the
present appeal, we apply plain error review. 19              Smith must demonstrate
“(1) there is error; (2) it is plain; and (3) it affected his substantial rights.” 20 If
Smith meets that burden, we have discretion to remedy the error, though we
ordinarily do not reverse unless the error “seriously affected the fairness,
integrity, or public reputation of the judicial proceeding.” 21
                                            A
      Smith contends that several remarks made by the prosecutor in his
summation improperly vouched for the credibility of testimony favorable to the
Government’s case. These include:
      (1) Ms. Penix testified that it was not her. She is against
      child pornography. I’m totally convinced that that’s truthful.
      (2) Mr. Jolly listened carefully to the questions and testified
      truthfully to what happened.
      (3) I’ll try and suggest to you a number of reasons why I
      believe that he [Jolly] is worthy of believing.
      (4) Unequivocally, truthfully, and corroborated by Ms. Penix.


      18 Smith, 739 F.3d at 848.
      19 United States v. Gracia, 522 F.3d 597, 599-600 (5th Cir. 2008).
      20 Id. at 600.
      21 Id.

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                                      No. 14-60926
       (5) You’ve got to decide. And I think as you look at [Mr.
       Jolly’s] testimony, you can understand that when he testified
       he didn’t know anything about peer-to-peer networks and
       FrostWire, that he’s telling the truth.
       While a prosecutor may argue inferences and conclusions drawn from
the evidence, he “may not make explicit personal assurances of a witness’s
veracity.” 22 Our concern is with the “great potential for jury persuasion which
arises because the prosecutor’s personal status and his role as a spokesman for
the government tend to give to what he says the ring of authenticity.” 23 We
have repeatedly admonished that a prosecutor “may not state, ‘The
prosecution’s witnesses are telling the truth’ or ‘I believe that the prosecution’s
witnesses are telling the truth.’” 24
       We have no difficulty in concluding that the first, second, third, and
fourth remarks quoted above constitute impermissible vouching. Improper
bolstering statements are “easily recognized” and include “personal
expressions such as ‘I think,’ ‘I know,’ ‘I believe,’ or other expressions that
either explicitly or implicitly convey the prosecutor’s personal impressions.” 25
The prosecutor’s remarks here that “I’m totally convinced that that’s truthful”
and “I believe that [Jolly] is worthy of believing” are quintessential vouching
statements.      The prosecutor’s repeated declarations that Jolly testified
“truthfully,” while slightly less glaring, were also improper.
       The fifth remark quoted above is a closer call. A prosecutor may argue
permissible conclusions drawn from the evidence, but the context of this
remark and its proximity to improper statements is troubling.                        But a


       22 United States v. Leslie, 759 F.2d 366, 378 (5th Cir. 1985) (citing United States v.
Lamerson, 457 F.2d 371, 372 (5th Cir. 1972) (per curiam); Gradsky v. United States, 373 F.2d
706, 709 (5th Cir. 1967)).
       23 Hall v. United States, 419 F.2d 582, 583 (5th Cir. 1969).
       24 United States v. Morris, 568 F.2d 396, 402 (5th Cir. 1978) (citations omitted).
       25 United States v. Delgado, 672 F.3d 320, 336-37 (5th Cir. 2012) (en banc) (quoting

BENNET L. GERSHMAN, PROSECUTORIAL MISCONDUCT § 11:24 (2d ed. 2010)).
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                                     No. 14-60926
determination as to its propriety is unnecessary to our holding.
                                            B
      The prosecutor contrasted the Government’s motive to prosecute Smith
with the motives of Smith’s alibi witnesses. Specifically, the prosecutor asked
rhetorically, “[w]hat incentive is there for us to come in and try a person if he’s
not the person that did the offense? What incentive is there, on the other hand,
to hold [the defendant’s alibi] until the last possible minute and bring it in
uninspected?”       The prosecutor essentially offered the integrity of the
prosecutor, i.e. Government, as a reason to disbelieve Smith’s alibi witnesses.
       The Government does not attempt to defend this statement; nor can it.
The prosecutor’s commentary here falls well within the umbrella of similar
remarks we have previously held to be error. 26 In United States v. Lamerson,
for example, the prosecutor erred when he stated that he would not be
prosecuting the defendant “had [he] not committed a crime.” 27 Similarly, in
United States v. Garza, reversal was warranted when the prosecutor argued
“those people (the government agents) and the Government has (sic) no
interest whatsoever in convicting the wrong person,” thereby implying that the
prosecution would not have commenced unless the defendant was guilty. 28 As
in Lamerson and Garza, the prosecutor here effectively stated “that the
Government prosecutes only the guilty.” 29
       “This particularly egregious form of argument has . . . been considered
and condemned by this Court.” 30 In Hall v. United States, we explained the
danger inherent in such argument:



      26  See e.g., Lamerson, 457 F.2d at 372; United States v. Garza, 608 F.2d 659, 664-65
(5th Cir. 1979); Hall, 419 F.2d at 587.
       27 Lamerson, 457 F.2d at 372 (alteration in original).
       28 Garza, 608 F.2d at 664-65 (alteration in original).
       29 Lamerson, 457 F.2d at 372.
       30 Garza, 608 F.2d at 665.

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                                     No. 14-60926
             In considering the impact of what is said the court also must
      be concerned with the great potential for jury persuasion which
      arises because the prosecutor’s personal status and his role as a
      spokesman for the government tend to give to what he says the
      ring of authenticity. The power and force of the government tend
      to impart an implicit stamp of believability to what the prosecutor
      says. That same power and force allow him, with a minimum of
      words, to impress on the jury that the government’s vast
      investigatory network, apart from the orderly machinery of the
      trial, knows that the accused is guilty or has non-judicially reached
      conclusions on relevant facts which tend to show he is guilty. 31

The prosecutor’s remark here pits the integrity of the Government against
Smith’s alibi witnesses and states that the Government had no incentive to
prosecute Smith unless he were in fact guilty. This was impermissible.
                                            C
      In arguing that the prosecutor’s errors were not plain, i.e. “clear and
obvious,” 32 the Government, in its brief and at oral argument, quoted the
prosecutor’s closing argument extensively in an attempt to place the
challenged remarks in context. We have reviewed the entire argument and
conclude that the context does not transform the remarks from impermissible
argument to mere attempts to “point out evidence” of Smith’s guilt, as the
Government claims. First, many of the challenged statements are clear error
on their face and cannot be mitigated by context.
       Second, to the extent that the context could alter the effect of an isolated
remark, we must also consider the prejudicial effect of the remarks taken
together. In United States v. Gracia, we acknowledged that while “occurrences
of prosecutorial misconduct ordinarily must be viewed individually,” the


      31  Hall, 419 F.2d at 583-84; see also Garza, 608 F.2d at 665 (“This entire line of
argument presumed that the whole government apparatus, and the prosecutor individually,
had reached a determination of the defendant’s guilt before the trial and implied that the
jury should give weight to this fact in making its determination.”).
       32 United States v. Gracia, 522 F.3d 597, 602 (5th Cir. 2008).

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                                       No. 14-60926
context there—“near-simultaneous, similar attempts to bolster” government
witnesses—required us to weigh the statements in pari materiae. 33                       The
prosecutor’s remarks here were similar to those in Gracia—substantively
related, made “within minutes of each other,” and “neither isolated nor limited,
but . . . cumulative components of a single diatribe.” 34
       The prosecutor’s statements constitute plain error.
                                             D
       Reversal is not warranted, however, unless the prosecutor’s misconduct
affected Smith’s substantial rights. “The determinative question is whether
the prosecutor’s remarks cast serious doubt on the correctness of the jury’s
verdict.” 35   “We generally look to three factors in deciding whether any
misconduct casts serious doubt on the verdict: (1) the magnitude of the
prejudicial effect of the prosecutor’s remarks, (2) the efficacy of any cautionary
instruction by the judge, and (3) the strength of the evidence supporting the
conviction.” 36
       We credit the district court’s general cautionary instruction advising the
jury that “any statement, objection, or argument by the attorneys are not
evidence” and “it is your own recollection and interpretation of the evidence
that controls . . . .” “We presume that such instructions are followed unless
there is an overwhelming probability that the jury will be unable to follow the
instruction and there is a strong probability that the effect of the improper
statement is devastating.” 37 Nevertheless, the generic instruction given prior




       33 Id. at 603 (emphasis in original).
       34 Id.
       35 Id. (quoting United States v. Holmes, 406 F.3d 337, 356 (5th Cir. 2005)).
       36 United States v. Fields, 483 F.3d 313, 358 (5th Cir. 2007) (quoting United States v.

Mares, 402 F.3d 511, 515 (5th Cir. 2005)).
       37 Gracia, 522 F.3d at 604 (quoting United States v. Gallardo-Trapero, 185 F.3d 307,

321 (5th Cir. 1999)).
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                                      No. 14-60926
to the prosecutor’s summation does not persuade us that the jury was
unaffected by the prosecutor’s misconduct. We have repeatedly observed, in
like circumstances, that the damage resulting from such statements is difficult
to undo—“[o]therwise stated, one ‘cannot unring a bell.’” 38
       The evidence supporting the guilty verdict, though factually sufficient,
was not overwhelming. It is notable that at the conclusion of the trial, the
district court granted Smith’s motion for judgment of acquittal based on
insufficiency of the evidence, though our court reversed. 39 When we reinstated
Smith’s conviction, we did so on the premise that “it is the sole province of the
jury to assess the credibility of the testimony given at trial, and we must
consider all evidence in the light most favorable to the guilty verdict
rendered.” 40
       The Government’s case depended on the jury believing Jolly and
disbelieving Smith’s alibi witnesses. Our opinion in the prior appeal noted the
credibility issue that was crucial to Smith’s conviction—“the jurors in this case
simply chose to believe Jolly instead of [Smith’s] girlfriend and [Smith’s]
parents,” despite the fact that Jolly “had no explanation whatsoever” for his
whereabouts when the videos were downloaded. 41 The prosecutor’s persistent
misconduct, aimed directly at witness credibility and that of the Government,
draws the jury’s verdict into doubt.
       Though the bar for reversal is a high one, 42 it is met here. A prosecutor’s
role “is not that it shall win a case, but that justice shall be done.” 43 Because



       38  United States v. Garza, 608 F.2d 659, 666 (5th Cir. 1979) (quoting Dunn v. United
States, 307 F.2d 883, 886 (5th Cir. 1962)).
        39 See United States v. Smith, 739 F.3d 843, 845 (5th Cir. 2014).
        40 Id. at 846.
        41 Id. at 845-47.
        42 United States v. Fields, 483 F.3d 313, 358 (5th Cir. 2007).
        43 United States v. Mauskar, 557 F.3d 219, 232 (5th Cir. 2009) (quoting Dickson v.

Quarterman, 462 F.3d 470, 479 (5th Cir. 2006)).
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                                          No. 14-60926
the prosecutor’s misconduct substantially affected the fairness, integrity, and
public reputation of Smith’s proceedings, a new trial is warranted.
                                              IV
      Smith also asserts that the prosecutor impermissibly recounted his own
experiences during summation. The prosecutor compared Jolly’s “admirable”
job as a welder and drafter to the prosecutor’s ineptitude with such tasks. “A
prosecutor is confined in closing argument to discussing properly admitted
evidence and any reasonable inferences or conclusions that can be drawn from
that evidence.” 44      While reference to Jolly’s skill set is relevant to Jolly’s
computer aptitude, the prosecutor’s skills are not. Nor was the prosecutor’s
experience a part of the record. The prosecutor was close to the line of improper
summation argument. However, because a determination here does not affect
our holding, we do not resolve whether he crossed that line.

                                      *        *         *
      We VACATE Smith’s conviction and REMAND to the district court for a
new trial.




      44   United States v. Vargas, 580 F.3d 274, 278 (5th Cir. 2009).
                                              13
