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<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br> <br>No. 98-1545 <br> <br>                          UNITED STATES, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                          SUSAN JOYNER, <br> <br>                      Defendant, Appellant. <br> <br>                       ____________________ <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF NEW HAMPSHIRE <br> <br>       [Hon. Joseph A. DiClerico, Jr., U.S. District Judge] <br> <br>                       ____________________ <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br> <br>                   Hill, Senior Circuit Judge, <br> <br>                    and Boudin, Circuit Judge. <br> <br>                      _____________________ <br> <br>    Paul J. Garrity, by appointment of the Court, for appellant. <br>    Jean B. Weld, Assistant United States Attorney, with whom <br>Paul M. Gagnon, United States Attorney, was on brief, for appellee. <br> <br> <br>                       ____________________ <br> <br>                       September 8, 1999 <br>                       ____________________

          TORRUELLA, Chief Judge.  Susan Joyner ("Joyner") appeals <br>from her conviction on one count of conspiracy to possess and <br>distribute cocaine in violation of 21 U.S.C.  846.  She argues <br>that in closing arguments, over her contemporaneous objection, the <br>government propounded facts not in evidence concerning a green <br>knapsack and the search of a co-conspirator's house.  Joyner also <br>alleges that the government, without her contemporaneous objection, <br>vouched for the credibility of co-conspirators and placed in issue <br>the government's credibility.  The government agrees that the <br>prosecutor erred, but moved for summary disposition.  While finding <br>the prosecutor's conduct during closing arguments unfortunate, we <br>affirm Joyner's conviction for the reasons stated below. <br>                            BACKGROUND <br>          The government offered evidence from which the jury could <br>reasonably have found the following facts.  Since at least 1989, a <br>cocaine distribution ring was operated by Josian Bez, a fugitive <br>defendant in this case, in Lawrence, Massachusetts. In January <br>1993, Jos Raphael Snchez, also a fugitive defendant, became part <br>of the enterprise.  Several of Joyner's co-defendants, Kelly <br>Charest and Haven Layne, and unindicted co-conspirator Bryan Blake <br>purchased cocaine from Bez and Snchez. <br>          In May 1994, the New Hampshire Drug Task Force ("NHDTF") <br>began investigating reported cocaine trafficking activities by <br>co-defendant Barbara Oliver in the Seacoast region of New <br>Hampshire.  Oliver, who lived in Dover, NH, and co-defendant Pamela <br>Harris regularly purchased one ounce quantities of cocaine from a <br>source in Dover for several months in late 1993 and early 1994. In <br>February 1994, an arrest brought an end to this supply.  Oliver <br>began dating co-defendant Bryan Blake.  Following his arrest in <br>June 1994, Blake introduced Oliver to his Massachusetts sources, <br>after which Oliver traveled to Lawrence two to three times weekly <br>to obtain cocaine. Snchez and Bez employed Juan Bautista <br>Bonifacio as a courier to meet Oliver with the cocaine.  In <br>September 1994, a confidential informant told the NHDTF that Pamela <br>Harris was involved with Oliver, and that it had purchased cocaine <br>from both Oliver and Harris. <br>          In January 1995, law enforcement officials received <br>community complaints from residents of the Dover Housing Authority <br>of numerous people coming and going, with probable drug activity, <br>at 3 Hampshire Circle (Oliver's residence) and 399 Washington <br>Street (Harris's residence).   On January 5, 1995, a search warrant <br>was executed at 399 Washington Street, Dover, with 5.88 grams of <br>cocaine seized.  Harris was arrested and convicted in Strafford <br>County Superior Court.  However, she continued to make trips to <br>Lawrence with Oliver to purchase four to six ounces of cocaine per <br>week.  In April 1995, Oliver moved to 6 Linda Avenue, Dover, and <br>met the appellant, Susan Joyner, who began accompanying Oliver or <br>Harris to pick up cocaine at least two times per week. <br>          In February 1996, Drug Enforcement Administration ("DEA") <br>agents interviewed another confidential informant, who stated that <br>Oliver was still buying cocaine from Dominicans in Lawrence. In <br>April 1996, another confidential source indicated that Oliver was <br>supplying cocaine to the bartenders at My Brother's Place in <br>Somersworth, which she managed.  During April and May 1996, this <br>informant made several controlled cocaine "buys" at My Brother's <br>Place and from Oliver at her new residence at 7 Ham Street, Dover.  <br>          Oliver paid Harris and Joyner with either an ounce of <br>cocaine at cost ($550), or credit to their drug debts for picking <br>up the cocaine.  Between October 1996, and February 1997, Joyner <br>and Harris purchased ten to fourteen ounces of cocaine weekly for <br>Oliver.  Beginning in late December, Karen Burton, who is Joyner's <br>sister, began to travel with Joyner, picking up ten to twenty <br>ounces per week throughout the spring of 1997.  Oliver called the <br>Lawrence source and placed the drug order.  She then informed <br>Joyner or Burton of the location where they would make the pickup.  <br>Oliver also instructed Joyner or Burton where to meet her <br>beforehand to receive the drug purchase money.  The two sisters, <br>Joyner and Burton, drove in Joyner's vehicle, a white convertible, <br>to Lawrence to pick up the cocaine.  The drugs were stored <br>temporarily at Joyner's or Harris's residence, or at a local hotel, <br>and then picked up by Oliver. <br>          On April 9, 1997, unindicted co-conspirator Brenda <br>Brault, who was housesitting for Barbara Oliver while she visited <br>her son in Pennsylvania, paged Pamela Harris.  Brault told Harris <br>that Oliver wanted her to call Massachusetts to arrange for a <br>cocaine pickup.  Harris arranged the pickup, collected the purchase <br>money from Brault and provided it to Joyner, who traveled with <br>Burton to Massachusetts.  They purchased nineteen or twenty ounces <br>of cocaine.  Later that same day, Oliver phoned Harris and asked <br>her to pick up the cocaine from Joyner and Burton.  Harris placed <br>the newly purchased cocaine in a toolbox which belonged to Barbara <br>Oliver, and which already contained approximately two ounces of <br>cocaine.  The toolbox was stored in a closet in Harris's bedroom. <br>          The next day, law enforcement officials obtained a search <br>warrant for Harris's apartment and seized approximately 580 grams <br>of cocaine, $780 in U.S. currency, a safe-deposit box key, an Ohaus <br>triple beam scale, a Tanita digital scale, and a bottle of <br>inositol.  Harris agreed to cooperate by placing a call to Oliver, <br>who had returned that day from Pennsylvania.  During the call, <br>Harris, under the supervision of law enforcement officials, used <br>the ruse that her probation officers were coming to visit and she <br>needed to have "the box" picked up right away.  Daniel Nolin, <br>Oliver's boyfriend, arrived at Harris's apartment and told the <br>officers, who posed as Harris's probation officers, that he wanted <br>to retrieve his toolbox.  When the officers refused to hand over <br>the toolbox, Nolin left. <br>          Later the same day, Harris placed another recorded call <br>to Oliver, who speculated that Harris's probation officers may have <br>come because Harris had been to "Sue's" (Joyner's) house or <br>"Karen's" (Burton's) house the previous day.  Oliver told Harris to <br>destroy the cocaine and throw the scales away, since she was <br>concerned the probation officers would return with a search <br>warrant.  Harris also placed a recorded call to Burton, who said <br>that she too had "cleaned" her apartment.  Harris related to <br>officers that Oliver often asked her to store the cocaine at her <br>residence since both Joyner and Burton were heavy cocaine addicts.  <br>Oliver was arrested in the evening of April 10, 1997, and during a <br>search of her house, officers found a drug ledger which included a <br>reference to "Sue & Karen - 1 1/2 back."  Based upon the evidence <br>elicited, Joyner was assessed with responsibility for distributing <br>a total of 5.1 kilograms of cocaine during the course of the <br>conspiracy. <br>          Seven co-conspirators of Joyner's testified at her trial. <br>Pamela Harris identified Joyner, whom she knew as "Sue," as one of <br>Barbara Oliver's regular drug runners, along with her sister Karen <br>Burton.  According to Harris, the day prior to Oliver's arrest on <br>April 10, 1997, Oliver paged her and requested that she collect <br>some cocaine which Joyner and Burton had purchased earlier in the <br>day. Brenda Brault, who also testified at Joyner's trial, and <br>Harris both stated that, during the morning of the same day <br>(April 9, 1997), Oliver arranged for Brault to bring Harris a bag <br>containing $10,000 in U.S. currency, which Harris then delivered to <br>Sue Joyner on the street in her home town of Rollinsford, New <br>Hampshire.  The bag which contained the $10,000 was a green <br>knapsack that belonged to one of Brault's children.  Brault had <br>collected the $10,000 from prior sales of fifteen to twenty ounces <br>of cocaine. <br>          Harris further testified that, at Brault's request, she <br>placed a call to the drug source in Massachusetts, whose number she <br>had previously received from Oliver.  The source wanted the usual <br>runners, Joyner and Burton, to come that morning for the purchase. <br>Later that day, Harris picked up the cocaine from Burton's house.  <br>Oliver had called Harris and asked her to collect the cocaine from <br>Joyner; however, when Harris called "Sue," she told her that Karen <br>had the drugs because Joyner's husband was at home.  Harris then <br>retrieved the nineteen ounces of cocaine, contained in a blue <br>Walmart bag, from Burton and brought it to her own residence, where <br>she stored it in Barbara Oliver's toolbox, which was in her closet. <br>          Harris also described the various monitored and taped <br>telephone conversations she had with Karen Burton and Barbara <br>Oliver on April 10, 1997, once law enforcement officials executed <br>the search warrant at her residence.  Oliver speculated as to why <br>Harris's probation officers (part of the cooperation ruse) may have <br>visited her, saying that it may have been because she went to Sue's <br>or Karen's house the day before. Harris said that Oliver was <br>referring to Sue Joyner and Karen Burton.  Harris also confirmed <br>that she had dealt cocaine with Barbara Oliver since 1993, often <br>traveling with her to pick up the drugs.  After Harris was arrested <br>in January 1995, she stopped the cocaine business for a short time.  <br>However, she eventually went back to transporting cocaine for <br>Oliver.  Susan Joyner became a courier along with her.  <br>Subsequently, Joyner and Karen Burton became the primary runners. <br>On many occasions from 1995 through 1997, Harris was at Oliver's <br>house when Joyner stopped by for the money to purchase cocaine in <br>Massachusetts.  Harris identified photographs of Joyner's vehicle <br>(a white convertible), which was used for the Massachusetts trips, <br>and Joyner's residence, where Harris stopped by "seven or eight" <br>times to pick up cocaine for Oliver. <br>          Brault also identified Joyner as someone she knew to have <br>been a regular drug runner for Barbara Oliver.  Oliver told Brault <br>that she would often collect the cocaine from Joyner's house.  <br>Before traveling to Pennsylvania, Oliver dropped off fifteen to <br>twenty ounces of cocaine for Brault to sell while she was out of <br>town.  She also told Brault that she was having Burton and Joyner <br>drive to Massachusetts to pick up another twenty ounce purchase for <br>$10,000 while she was gone.  Brault spoke with Joyner directly on <br>the telephone on April 9, 1997, to discuss the plans -- that Harris <br>would bring the money to "Sue's" house, that she would drive down <br>for the purchase, and that they "would hook up after, when they <br>came back."  She also spoke with Joyner after the purchase was <br>made. Brault observed Joyner stop by Oliver's house three or four <br>times to drop off cocaine which she had just picked up. <br>          Another convicted co-defendant, Kelly Charest, identified <br>Joyner in court as a runner for Barbara Oliver.  Charest observed <br>Joyner at Oliver's house twice in April 1997, picking up money in <br>order to make drug runs to Massachusetts. Christine Holland, an <br>unindicted co-conspirator, testified that she accompanied Oliver to <br>Joyner's house to pick up cocaine several times.  Holland and <br>several others she knew purchased cocaine from Joyner directly on <br>several occasions. <br>          Daniel Nolin, Oliver's boyfriend who was also a convicted <br>co-conspirator, identified Joyner as being involved in the cocaine <br>conspiracy.   He also described having seen Joyner cutting cocaine <br>with Oliver.  Nolin also brought a package of cash on one occasion, <br>at Oliver's request, to Joyner at her place of employment, the <br>Walmart hair salon in Somersworth, New Hampshire.  Nolin also <br>identified Joyner's residence, stating that he had picked up <br>half-pound quantities of cocaine there for Oliver. <br>          Barbara Oliver testified as to the breadth and membership <br>of the cocaine operation she had run for several years.  According <br>to Oliver, during the two years Joyner worked for her, she acted as <br>her drug courier more steadily than any runner she had employed. <br>Joyner was selling an ounce at a time to her own customers.  Oliver <br>allowed her simply to buy her own ounce at cost in return for <br>making the drug trips.  She described the general mode of operation <br>utilized by Joyner and her sister, Karen Burton, to make the drug <br>runs.  Generally, Joyner would leave the cocaine for Oliver to pick <br>up from either her car or her house.  Oliver also described the <br>events of April 9, 1997, in a similar fashion to the testimony <br>given by Harris and Brault. <br>          Finally, Juan Bautista Bonifacio, one of the sources of <br>supply in Lawrence, identified Joyner as the person who regularly <br>picked up cocaine from him in April 1997, right before he was <br>arrested.  Bonifacio testified that Joyner came at least once a <br>week, along with another thin, blond woman, like herself.  Joyner <br>had also traveled with "Barbara" to get the drugs on many <br>occasions. <br>          Detective Sergeant Steven Demo, with the NHDTF, testified <br>to having recovered, during the search of Harris's home on <br>April 10, 1997, a piece of paper containing phone numbers, which <br>was discovered inside the false bottom of a book.  Contained on the <br>sheet was the phone number of the hotel at which Barbara Oliver was <br>staying in Pennsylvania, and phone numbers linked to Karen Burton <br>and Susan Joyner.  Demo also testified to discovering one call from <br>Susan Joyner to Barbara Oliver's caller ID on April 10, 1997.  Demo <br>also confirmed that the child's knapsack which Brault gave to <br>Harris with the money, and which Harris gave to Joyner, was found <br>in Harris's bedroom closet during the search, where the toolbox was <br>located. <br>          In her summation, the prosecutor noted all the ways in <br>which the co-conspirators' accounts of their dealings with Susan <br>Joyner corroborated each other.  Particularly, she described the <br>points on which Brault, Harris, Charest, Oliver, Nolin and <br>Bonifacio were on all fours with regard to the events which <br>occurred on April 9, 1997.  The prosecutor also recounted the items <br>of independently corroborating physical evidence, including the <br>drug ledger, personal phone book and phone number list seized from <br>Harris, the various telephone calls from Oliver and calls to the <br>sources of supply, calls to beepers, and the taped telephone <br>conversations which Harris made to Oliver and Burton. <br>          During his closing, defense counsel attempted to show <br>that each of the co-conspirator witnesses had lied.  Specifically, <br>he attempted to demonstrate that Harris lied, and that she was <br>actually the person who traveled to Massachusetts to purchase the <br>cocaine found in her closet on April 10, by arguing that her <br>testimony that she gave the child's knapsack full of money to <br>Joyner for the drugs was belied by the fact that police found the <br>knapsack in her own closet the next day. He also argued that <br>because Sergeant Demo's report had not initially listed Joyner's <br>phone number on the scrap of paper he retrieved from Harris's <br>residence, that Harris or someone must have doctored the paper by <br>later adding Joyner's first name and telephone number. <br>          In rebuttal, the prosecutor responded to defense <br>counsel's assertion that someone, perhaps someone in law <br>enforcement, had doctored the paper with phone numbers by calling <br>such an allegation "absurd."  She argued: <br>                    What, do you think that we had Pam Harris -- <br>          oh no, we don't have enough evidence against <br>          Susan Joyner.  Hey, Pam -- wink, wink nod, nod <br>          -- write her number down here?  That's absurd.  <br>          This piece of evidence was seized from Pam <br>          Harris' residence.  The numbers appeared on <br>          it, the numbers stayed on it.  No number was <br>          added. <br>In response to the allegation that all the witnesses were lying, <br>the prosecutor stated: <br>                    I don't want to keep flipping through these <br>          pages and showing you this.  She [Barbara <br>          Oliver] didn't want to insulate herself.  She <br>          is dead in the water.  These are her telephone <br>          toll records.  Look at them.  Barbara Oliver <br>          told the truth.  Everyone told the truth in <br>          this case, ladies and gentlemen. <br>          Finally, the prosecutor responded to the allegation that <br>the discovery of the child's knapsack in Harris's closet proved <br>that she lied about the events of April 9, 1997, as follows: <br>                    She [Harris] gives Sue the money, Sue brings <br>          the money down to Lawrence, the drugs are put <br>          in this bag and brought back. [Objection <br>          interposed, district court instructs jurors <br>          their recollection should prevail.] What Pam <br>          Harris testified to, and it is only your <br>          recollection of the evidence, only, what Pam <br>          Harris testified to was that the cocaine she <br>          received back from Karen Burton came in this <br>          bag.  And if you don't recollect that -- [Same <br>          objection. The court again instructs jurors <br>          that their recollection prevails.] <br>          The jury found Joyner guilty on one count of conspiracy <br>to possess and distribute cocaine in violation of 21 U.S.C.  846.  <br>The district court sentenced her to ninety-seven months <br>imprisonment and five years supervised release. <br>          Joyner filed a post-trial motion to set aside the verdict <br>based upon the ground raised in this appeal, an improper closing <br>argument by the prosecutor, and the motion was summarily denied. <br>                            DISCUSSION <br>I.  Improper Evidentiary Argument <br>          Joyner argues that the prosecutor, by asserting that the <br>green knapsack was found in Harris's residence because Burton had <br>given the cocaine to Harris in that knapsack, asserted facts that, <br>according to all the evidence, were simply not true.  Joyner <br>contends that the prosecutor's conduct is "all the more egregious <br>because, when questioning Harris, she had explicitly referred to <br>the cocaine being in a blue Wal-Mart plastic bag, not in a child <br>knapsack."  Appellant's Br. at 18. <br>          Because counsel timely objected to this line of argument, <br>we review for harmless error, that is, whether the argument was <br>"sufficiently prejudicial to warrant a new trial under the <br>circumstances."  United States v. Rosales, 19 F.3d 763, 767 (1st <br>Cir. 1997).  In determining whether the prosecutor's remarks were <br>harmless, we consider <br>                    a range of factors starting with the nature of <br>          the (mis)conduct and ending with the <br>          unavoidable bottom line: whether we deem it <br>          likely, or not, that any prejudice affected <br>          the outcome of the case.  In conducting this <br>          analysis, we evaluate the prosecutor's <br>          comments as a whole, not in isolation. <br> <br>Id. (quotation marks and citation omitted). <br>          Our analysis begins with an examination of the <br>prosecutor's rebuttal: <br>                    Prosecutor: [Attorney Garrity made a big deal <br>          about how Pam Harris lied.] [B]ring the money <br>          to [Joyner] in this knapsack, because it was <br>          found in her closet at her house.  She gives <br>          [Joyner] the money, [Joyner] brings the money <br>          down to Lawrence, the drugs are put in this <br>          bag and brought back. <br> <br>                    Appellant: There's no evidence of that. <br> <br>                    Court: Members of the jury, you will take your <br>          own  recollection of the evidence and not what <br>          either counsel has told you the evidence is. <br> <br>                    Prosecutor: What Pam Harris testified to, and <br>          it is only your recollection of the evidence, <br>          only, what Pam Harris testified to was that <br>          the cocaine she received back from Karen <br>          Burton came in this bag. And if you don't <br>          recollect that   <br> <br>                    Appellant: There's no evidence of that, your <br>          Honor. <br> <br>                    Prosecutor: It is your recollection. <br> <br>                    Court: Members of the jury, it's your <br>          recollection once again that will control, not <br>          what counsel says.  So don't repeat the <br>          statement. It's not a contest. <br> <br>          After closing arguments, the court instructed the jury <br>that arguments of counsel were not evidence, the jury's <br>recollection of the evidence controlled and any statement of <br>counsel conflicting with its recollection should be ignored. <br>          A review of Harris's testimony confirms that the <br>prosecutor, in arguing "what Pam Harris testified to was that the <br>cocaine she received back from Karen Burton came in [the green <br>knapsack]," misstated the trial testimony.  Harris actually <br>testified that the cocaine was returned to her in a blue plastic <br>Walmart bag. While this remark misstated Harris's testimony, <br>Joyner's contention notwithstanding, there is no indication that <br>the remark was a knowing misrepresentation of the evidence.  Such <br>a negligent misrecollection, while still inappropriate, is less <br>serious than intentionally arguing facts not in evidence. <br>          This Court has fashioned a three prong test for examining <br>whether the prosecution's misconduct "so poisoned the well" that <br>the trial's outcome was likely affected, thus warranting a new <br>trial.  See United States v. Capone, 683 F.2d 582, 586-87 (1st Cir. <br>1982).  We examine: (1) whether the prosecutor's conduct was <br>isolated and/or deliberate;  (2) whether the trial court gave a <br>strong and explicit cautionary instruction; and (3) whether it is <br>likely that any prejudice surviving the judge's instruction could <br>have affected the outcome of the case.  See United States v. Hodge- <br>Balwig, 952 F.2d 607, 610 (1st Cir. 1991). <br>          First, the prosecutor's comments regarding the child's <br>green knapsack were isolated, and occurred only twice during her <br>rebuttal.  Contrary to Joyner's allegation, the misstatement does <br>not appear to be a deliberate misrecollection.  Second, the <br>district court quickly and adequately addressed the situation with <br>cautionary instructions during the prosecutor's rebuttal, and told <br>government counsel to move on.  The jurors were left with a <br>situation in which government counsel said that Harris testified a <br>certain way, and defense counsel's clear assertion that she did <br>not.  After closing arguments, the court instructed the jury: (1)  <br>that arguments of counsel were not evidence; (2) that the jury's <br>recollection of the evidence controlled; and (3) that any statement <br>of counsel conflicting with its recollection should be ignored.  <br>Finally, the overwhelming evidence of Joyner's guilt, including <br>testimony by seven co-conspirators, which was corroborated by <br>documentary evidence, eliminates any lingering doubt that the <br>remarks could have unfairly prejudiced the jury's deliberations. <br>          Returning to the "unavoidable bottom line" test of <br>Rosales -- whether we deem it likely, or not, that any prejudice <br>affected the outcome of the case -- we conclude that the errors did <br>not affect the trial's outcome.  The prosecutor's errors are minor <br>given the testimonial evidence.  The unexplained presence of the <br>knapsack at Harris's residence was not particularly probative.  The <br>jury was quite likely to infer that the blue Walmart bag was <br>returned to Harris in the green knapsack without the government's <br>erroneous rebuttal remarks. Joyner has not shown anywhere near <br>enough evidence to prove that the argument was sufficiently <br>prejudicial to warrant a new trial under the circumstances. <br>II.  Vouching <br>          Joyner also argues that the prosecutor disregarded the <br>well established rule against vouching in both summation and <br>rebuttal by repeatedly assuring the jury that government witnesses <br>were truthful and placing the credibility of her position at issue.  <br>Because counsel failed to make a contemporaneous objection, we <br>review for "plain error."  See United States v. Roberts, 119 F.3d <br>1006, 1014 (1st Cir. 1997).  Joyner faces a high hurdle in this <br>regard, because our review under the plain error standard is <br>ordinarily limited to "blockbusters" and does not consider "the <br>ordinary backfires -- whether or not harmful to a litigant's cause <br>-- which may mar a trial record."  Id.  In order to prevail, Joyner <br>must demonstrate that the error is plain, and undermines the <br>fundamental fairness of the trial.  See id. <br>          With that said, there is no denying that the prosecutor <br>stepped over the proverbial line with her statements.  When a <br>prosecutor places the credibility of counsel at issue, the <br>advantage lies solidly with the government, and thus, prosecutors <br>are prohibited from doing so.  See United States v. Cresta, 825 <br>F.2d 538, 555 (1st Cir. 1987); see also United States v. Nickens, <br>955 F.2d 112, 121 (1st Cir. 1992); United States v. <br>Rodrguez-Estrada, 877 F.2d 153, 158 (1st Cir. 1989) (same).  Even <br>the government admits that the prosecutor acted inappropriately. <br>          In its brief, the government concedes that: (1) comments <br>during the prosecutor's summation -- that the witnesses were <br>telling the truth -- were improper; (2) the prosecutor's statements <br>that the government does not just "round up as many people as we <br>possibly can to point the finger at Susan Joyner and just run in <br>here and expect you to buy it" could also have been more artfully <br>presented; (3) the prosecutor's comments about witnesses telling <br>the truth in rebuttal "again inartfully stepped over the witness- <br>vouching line"; and (4) the interjection of her personal life and <br>the government's efforts into the trial were improper.  While some <br>of her remarks came at the provocation of defense counsel, and thus <br>while still inexcusable are understandable, others did not.  There <br>should be no need to remind federal prosecutors that they are not <br>free to disregard the bounds of proper argument even in response to <br>perceived provocation.  See United States v. Young, 470 U.S. 1, <br>18-19 (1985). <br>          Under the "plain error" standard, Joyner bears the burden <br>of showing that the prosecutor's remarks resulted in prejudice, <br>i.e., affected her substantial rights.  See United States v. Olano, <br>507 U.S. 725, 732-34 (1993).  Even then, however, we will not <br>notice error unless it caused "a miscarriage of justice" or <br>seriously undermined "the integrity or public reputation of <br>judicial proceedings." Id.  We must consider the likely impact the <br>prosecutor's remarks had on the jury in light of the entire record, <br>including the closing argument presented by the defense.  See <br>Young, 470 U.S. at 16-17. <br>          Given that Joyner's counsel accused either the government <br>or a government witness of altering a piece of physical evidence, <br>and challenged the investigator's decision not to have Pamela <br>Harris place a monitored phone call to Susan Joyner, as well as <br>Oliver and Burton, the prosecutor's rebuttal was understandable, <br>albeit still inappropriate.  See United States v. Oreto, 37 F.3d <br>739, 746 (1st Cir. 1994) (tolerating measured response to repeated <br>attempts to magnify government misconduct).  Given the overwhelming <br>evidence against Joyner, see supra, and the provocative excesses in <br>the closing argument presented by her own counsel, as well as the <br>timely jury instructions by the district court, the improper <br>remarks by the prosecutor in her closing arguments did not rise to <br>the level of plain error. <br>                            CONCLUSION <br>          For the reasons stated above, we affirm.</pre>

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