                        NOT RECOMMENDED FOR PUBLICATION
                               File Name: 08a0106n.06
                               Filed: February 20, 2008

                                         No. 07-5330

                             UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                   )
                                            )
       Plaintiff-Appellee,                  )
                                            )
v.                                          )    ON APPEAL FROM THE UNITED
                                            )    STATES DISTRICT COURT FOR THE
DONALD E. WATTS,                            )    EASTERN DISTRICT OF KENTUCKY
                                            )
       Defendant-Appellant.                 )
                                            )    OPINION




       Before: MERRITT, GILMAN, and COOK, Circuit Judges.

       RONALD LEE GILMAN, Circuit Judge. In November of 2006, Donald E. Watts was

convicted on one count of possession of child pornography, in violation of 18 U.S.C.

§ 2252(a)(4)(B). He was sentenced to 102 months of imprisonment. Watts’s sole issue raised on

appeal is the prosecutor’s alleged misconduct during her closing and rebuttal arguments. For the

reasons set forth below, we AFFIRM the judgment of the district court.


                                     I. BACKGROUND

A.     Factual background

       In March of 2006, the eMachine-brand computer used by the Somerset Elite Training Center

gymnasium (Somerset Elite) began to experience technical problems. At the time, Watts was a co-
No. 07-5330
United States v. Watts

owner of Somerset Elite. The computer was taken by Barbara Lawson, an employee of Somerset

Elite, to Mike Velez, a computer repairman. During his repair work, the title of a file caught Velez’s

eye. He said that the title contained references to a “[s]even-year-old girl being raped, something

of that sort.”

        After discovering that initial file, Velez “looked deeper” into the computer and “started to

pull up some of the video files.” He watched part of a video involving child pornography, and then

called Lawson. The two of them began to search the computer more thoroughly. A further

investigation of the computer by Velez revealed a number of online chatroom conversations with

various young girls.

        The next day, Velez showed Aislynn Frei, the other co-owner of Somerset Elite, and Randy

Goff, a local police officer, a short segment of the video file that he had initially discovered. Velez

also told Officer Goff about the chatroom transcripts he found under Watts’s user name. With Frei’s

consent, Goff took the computer with him after viewing the video. Frei also consented to Goff’s

request to examine a home-built computer that had previously been used by Somerset Elite. Goff

then contacted Special Agent Donnie Kidd of the FBI for further assistance.

        Agent Kidd prepared a search warrant for the two computers. Based on the information from

Officer Goff regarding the chatroom transcripts, Kidd went to Somerset Elite in order to speak with

Watts. Kidd did not have an arrest warrant and made no attempt to take Watts into custody. He

referred to the interaction with Watts as an “interview” rather than an interrogation. Watts

cooperated with Kidd and answered his questions without any legal compulsion to do so.



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No. 07-5330
United States v. Watts

       According to Kidd’s testimony at trial, Watts confessed during the interview to using both

of the seized computers to search for and download child pornography. During the conversation,

Watts told Kidd that he would “come in late at night, sometimes after midnight, would be drinking,

would get on the computer and would surf the Internet, again looking for porn to include adult and

child pornography.” He used a file-sharing program called LimeWire to locate pornography by

typing in words such as “young” and “video.”

       Watts told Kidd that he thought he had deleted all of the pornographic files from the home-

built computer, but said there were probably 12 or 13 pornographic video files remaining on the

eMachine computer that he did not have time to erase. He further explained that “there should be

one, if not two, short video clips containing child pornography.” Watts provided Kidd with the file

path that could be used to locate the saved files on the hard drive. According to Kidd’s testimony,

Watts also provided Kidd with the username and password that Watts had used to access the

computer. Watts told Kidd that this so-called “owner” account was his own personal account that

was not used by the other Somerset Elite employees.

       Kidd also asked Watts about the online chatroom files that Velez had discovered. Watts

admitted that he used the computer to chat with students at Somerset Elite. He provided Kidd with

two specific screen names that Watts had used—“Donflipflop” and “Success is trying one more time

and you fall”—and told Kidd of a third screen name that he could not remember exactly but referred

to his dog dying.

       Both of the computers were sent to the Electronic Crimes Section of the Kentucky State

Police, where they were forensically examined by Detective Christopher Frazier. According to his

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No. 07-5330
United States v. Watts

trial testimony, Frazier’s forensic examination confirmed much of the information that Watts had

reportedly told Kidd. The home-built computer contained over 100 images of child pornography.

These files were found in the “unallocated space” of the computer, meaning space that was not

otherwise being used.

       Frazier found one video file containing child pornography on the eMachine computer. He

also found 11 other pornographic videos that contained words in their titles that might have

suggested that they contained child pornography, but that in fact featured adult pornography. Frazier

further testified that (1) the files were found in the exact folder that Watts had specified to Kidd,

(2) the files could be accessed only through the owner account with the user name and password that

Watts had provided, and (3) the files had been downloaded using LimeWire.

       With respect to the online chats that Velez initially discovered, Frazier’s examination of the

eMachine computer revealed over 5,100 pages of chatroom transcripts. The chatroom logs were

filed under the user name “Donflipflop” and also featured the screen name (the name seen by people

who are chatting with the user) of “Success is trying one more time and you fall.” According to

Frazier, the people chatting with “Success is trying one more time and you fall” frequently addressed

the screen name as “Donnie.”

       The content of the chatroom transcripts was not at issue during the trial, but the connection

between the chatroom conversations and the downloading of the pornographic files was disputed.

Specifically, at approximately 12:04 a.m. on February 16, 2006, someone using the screen name

“Success is trying one more time and you fall” was engaged in a chat. Not long thereafter, someone

was accessing pornographic video files in the LimeWire folder that was identified by Watts and

                                                -4-
No. 07-5330
United States v. Watts

confirmed by Frazier’s investigation. The videos were opened at 12:48 a.m., 1:09 a.m., and 2:40

a.m. Watts’s own computer expert testified that a number of the pornographic files that were found

on the eMachine computer were downloaded in the same general period of time when someone was

engaged in online chats using the screen names “Success is trying one more time and you fall” and

“Four legs got run over sniff sniff.”

       During her closing argument, the prosecutor made repeated references to the conversation

between Watts and Agent Kidd, which she described as a confession. She paraphrased what Watts

allegedly said to Kidd and presented those statements as direct quotes. Watts now appeals on the

basis of those statements, which he alleges are misrepresentations of the evidence that confused the

jury and prejudiced him. He also asserts that the prosecutor made improper statements infringing

upon his right not to testify and commenting on his honesty. The specific objected-to statements will

be addressed in detail in the analysis below.

B.     Procedural background

       Watts was indicted in June of 2006 and tried five months later. The trial lasted one and a half

days, resulting in a jury verdict of guilty. During the trial, Agent Kidd testified regarding Watts’s

statements to him. Defense counsel made no objections to the testimony, and Watts did not take the

stand on his own behalf. Judgment against Watts was entered in March of 2007. This timely appeal

followed.


                                         II. ANALYSIS

A.     Prosecutorial misconduct


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No. 07-5330
United States v. Watts

        We evaluate claims of prosecutorial misconduct using a two-step inquiry. “First, the [c]ourt

must determine if the government’s statements were improper.” United States v. Abboud, 438 F.3d

554, 584 (6th Cir. 2006). If we determine that the statements were in fact improper, then we “must

decide whether the statements were flagrant.” Id. The “flagrancy inquiry” involves four factors:

                (1)      whether the remarks tended to mislead the jury or to
                         prejudice the accused[,] including whether the trial
                         judge gave an appropriate cautionary instruction to the
                         jury;
                (2)      whether they were isolated or extensive;
                (3)      whether they were deliberately or accidentally placed
                         before the jury; and
                (4)      the strength of the evidence against the accused.

Id. (citation and original brackets omitted).

        If we determine that the statements were not flagrant, then “the [c]ourt will reverse only if

(1) the proof against the defendant was not overwhelming, (2) opposing counsel objected to the

conduct, and (3) the court failed to give a curative instruction.” Id. (citation and internal quotation

marks omitted). We review such claims de novo where the defendant makes a timely objection.

United States v. Beverly, 369 F.3d 516, 543 (6th Cir. 2004). Otherwise, we examine the defendant’s

claims under the plain-error standard of review. Id.

        “[P]rosecutorial misconduct may be so exceptionally flagrant that it constitutes plain error,

and is grounds for reversal even if the defendant did not object to it.” United States v. Carter, 236

F.3d 777, 783 (6th Cir. 2001) (internal quotation marks omitted). Plain-error review requires the

court to determine whether (1) there was an error, (2) the error was “obvious or clear,” (3) the error

affected the defendant’s substantial rights, and (4) the error “seriously affected the fairness, integrity,


                                                   -6-
No. 07-5330
United States v. Watts

or public reputation of the judicial proceedings.” United States v. Gardiner, 463 F.3d 445, 459 (6th

Cir. 2006) (internal quotation marks omitted).

       Watts asserts that he objected to a statement made by the prosecutor during her rebuttal

closing argument and that he is therefore entitled to a de novo review of his prosecutorial-

misconduct claims. In response, the government contends that the objection made by Watts during

the trial was not to any of the statements that are now alleged to be improper. Moreover, Watts did

not seek a curative instruction at the close of the argument. We find that the government’s analysis

of the record is correct. Watts’s sole objection during the prosecutor’s rebuttal argument was in

reference to a statement that is not before us on appeal. We will therefore review Watts’s claims of

prosecutorial misconduct under the plain-error standard.

B.     The propriety of the prosecutor’s comments

       Watts argues that the prosecutor made three different types of improper comments: (1) during

her closing and rebuttal closing arguments, she “misstated evidence and attributed additional

statements and confessions to the defendant that were not in evidence,” (2) during her closing and

rebuttal closing arguments, she “made comments infringing on the defendant’s right not [to] testify,”

and (3) during her rebuttal closing argument, she “commented on the honesty of the defendant

throwing the weight of the office of the prosecutor behind the honesty of the defendant by

commending him for his honest confession.” In response, the government asserts that none of the

prosecutor’s statements were improper and that Watts is accordingly not entitled to a new trial.

       1.      Misstatements of the evidence



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No. 07-5330
United States v. Watts

       The alleged misstatements that Watts points to all arise out of attempts by the prosecutor to

convey the information that Watts purportedly provided to Agent Kidd during their unrecorded

conversation. Watts claims that these statements by the prosecutor represent either inaccurate or

completely fabricated accounts of Kidd’s testimony. Specifically, Watts objected to the following

statement by the prosecutor of what Watts purportedly told Agent Kidd:

               Yeah, I downloaded child pornography. In fact, I downloaded child
               pornography on both computers. I looked at normal pornography, I
               looked at child pornography. I searched for child pornography. In
               fact, I knew it was on there. In fact, I knew there were several videos
               on there, at least a couple of which I knew contained child
               pornography.

       What Watts takes issue with are the prosecutor’s contentions that Watts actively “searched”

for child pornography and that there were “at least a couple” of videos containing child pornography

stored on the computer. A review of Kidd’s testimony, however, supports the propriety of the

prosecutor’s statement. Kidd testified about the two different computers used by Watts in

chronological order. With respect to the first—the home-built computer—Kidd testified that Watts

               acknowledged to me that he did in fact use that computer to surf the
               Internet and to access pornographic Websites and to download both
               adult and child pornography. He told me he would delete these
               images, he would look at them a couple times and then delete them.

Watts allegedly told Kidd that he “thought he had erased all of the pornographic images from the

specific computer.”

       According to Kidd, Watts then told him that with the second, eMachine computer

               he would actually come in late at night, sometimes after midnight,
               would be drinking, would get on the computer and would surf the


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No. 07-5330
United States v. Watts

               Internet, again looking for porn to include adult and child
               pornography.

               He would go to the LimeWire program and type in words such as
               “young” and “video,” just to see what was out there and what would
               pop up.

               And images of child pornography would come up. He would
               download those, along with the adult pornography. Again, he would
               look at those a couple of times, and then he would delete those off the
               computer.

               In this instance, with the eMachine, however, he told me there would
               be in fact probably be 12 to 13 short video clips that he did not have
               time to erase. And there should be one, if not two short video clips
               containing child pornography, and that would be saved under—I
               think the path he gave me was computer, programs, LimeWire, and
               then was saved under magnet and root in the subfiles.

The prosecutor asked whether this meant that Watts actually told Kidd “how you would get to the

images on the computer?” Kidd responded: “Correct, he told me what was on there and where it

would be found.”

       Although Watts correctly points out that Kidd never explicitly said that Watts “searched” for

child pornography and that Kidd actually said that there would be “one, if not two” videos, rather

than “at least a couple,” we conclude that the prosecutor’s statements were not improper. When she

used the word “searched” and stated that there were “at least a couple” of videos, the prosecutor was

“merely paraphrasing the meaning of the conversation” between Kidd and Watts. See United States

v. Stover, 474 F.3d 904, 915 (6th Cir. 2007) (concluding that the prosecutor’s statement was not

improper where it was presented as a quotation, even though it was not actually said during the

conversation at issue).


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No. 07-5330
United States v. Watts

       In Stover, this court held that the prosecutor’s paraphrasing was not improper because,

“[a]lthough it is not the only conceivable meaning [of the conversation], it is a meaning that is

supported by the evidence.” Id. Both of the statements objected to by Watts in the instant case

represent meanings that are strongly supported by Kidd’s testimony. Kidd did not use the word

“searched,” but he did say that Watts confessed to using the home-built computer to “surf the

Internet and to access pornographic Websites and to download both adult and child pornography,”

and on the eMachine computer Watts would “get on the computer and would surf the Internet, again

looking for porn to include adult and child pornography. He would go to the LimeWire program and

type in words such as ‘young’ and ‘video,’ just to see what was out there and what would pop up.”

A highly supportable meaning of these statements is that Watts was searching for child pornography.

       Moreover, the difference between “at least a couple” of videos (what the prosecutor said) and

“one, if not two” videos (Kidd’s testimony) is negligible in the overall context of the trial. Although

“at least a couple” could lead one to believe that there were more than two videos to be found on

Watts’s computer, it does not so overstate Kidd’s testimony (that Watt’s told him there would be

“one, if not two” videos) as to be unsupported by the evidence. See Stover, 474 F.3d at 915 . We

thus conclude that neither of these statements was improper.

       Watts also takes issue with the following six statements made by the prosecutor during

closing argument: (1) “Yeah, I downloaded child pornography. In fact, I downloaded child

pornography on both computers,” (2) “Yeah, when I looked at pornography, including child

pornography, I used LimeWire,” (3) “When I downloaded child pornography or any pornography,

I would save it using the file path,” (4) “I searched for child pornography. I was just curious. I

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No. 07-5330
United States v. Watts

wanted to know what was out there. I typed words such as ‘young,’ such as ‘video,’” (5) “I didn’t

just look at child pornography using the eMachine computer . . . . I looked at it on the previous one,

too,” and (6) “Yeah, I used it to look at child pornography. I think I deleted it, but I’m not sure. You

may still find it on there, but I believe I deleted it.” According to Watts, “[i]f one were to listen to

the prosecutor’s version of what the defendant said, every phrase the defendant stated would begin

with ‘Yeah, when I look at child pornography.’”

       As with the “searched” and the “at least a couple” statements addressed earlier, the

prosecutor in each of these six objected-to statements was paraphrasing the testimony of Agent Kidd.

Each of the six statements, moreover, is supported by the evidence presented in Kidd’s testimony.

According to that testimony, Watts told Kidd that (1) he downloaded child pornography on both

computers, (2) he used LimeWire to find the pornography, (3) he used a specific file path to save the

pornographic files he found, (4) he would type in the words “young” and “video” in order to “see

what was out there,” (5) he used both of the computers to look at pornography, and (6) he deleted

some of the files, but thought there might still be some on the eMachine computer. Although she

occasionally prefaced her statements with an introductory comment similar to “when I looked at

child pornography,” all of the prosecutor’s statements presented “meaning[s] that [are] supported

by the evidence.” See Stover, 474 F.3d at 915. We therefore conclude that none of the prosecutor’s

alleged misstatements regarding Watts’s confession to Kidd were improper.

       2.      Statements regarding Watts’s right not to testify

       Watts also asserts that the prosecutor engaged in misconduct when she allegedly made two

statements regarding his right not to testify. Specifically, during her initial closing argument, the

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No. 07-5330
United States v. Watts

prosecutor said: “Ladies and gentlemen, every other witness that came up here says they absolutely

didn’t download child pornography. You know what the defendant said? Yeah, I downloaded child

pornography.” Then, during her rebuttal argument, the prosecutor said:

               Ladies and gentlemen, you heard me ask every single one of those
               other people who came up there whether they were the ones that were
               downloading child pornography on the computer. And you heard
               their responses: “Absolutely not. Absolutely not.” That is not what
               the defendant said. He said “Absolutely, yes, I did.”

Watts now argues that these two statements, which compared the content of his conversation with

Agent Kidd to the trial testimony of the witnesses, “could mislead a jury . . . as to when and if [the]

defendant testified, or if they, the jury, were not privy to some testimony.”

       Viewing these two comments “within the context of the trial as a whole,” Watts’s argument

is meritless. See United States v. Beverly, 369 F.3d 516, 543-44 (6th Cir. 2004) (examining the

context surrounding allegations of prosecutorial misconduct in rejecting the defendant’s claims).

Throughout her closing and rebuttal arguments, the prosecutor made repeated reference to what

Watts told Agent Kidd. The closing argument as a whole makes clear that the statements that Watts

now objects to were the prosecutor’s attempt to paraphrase Kidd’s testimony, which in turn

represented the only evidence of what Watts had said regarding the crime in question. Moreover,

in light of the fact that the trial lasted only one and a half days, it is implausible that the jury was

somehow misled about whether there was some other testimony that the jury did not get to hear.

       The Fifth Amendment provides in relevant part that no person “shall be compelled in any

criminal case to be a witness against himself.” U.S. Const. amend. V. The typical claim of

prosecutorial misconduct with respect to a defendant’s right not to testify arises when the prosecutor

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No. 07-5330
United States v. Watts

uses that silence as substantive evidence against the defendant. See Girts v. Yanai, 501 F.3d 743,

756, 758 (6th Cir. 2007) (finding misconduct sufficient for reversal where the prosecutor made three

statements that “attached a negative connotation to the exercise of the Fifth Amendment right to

remain silent”). In Girts, this court concluded that the prosecutor’s statements “were improper,

misleading and highly prejudicial because they implied that [the defendant] was obligated to testify

and to speak to the police.” Id. at 756. No such implication arises from the prosecutor’s statements

in the instant case.

        In paraphrasing what Watts actually told Agent Kidd, the prosecutor did not “attach[] a

negative connotation to” Watts’s Fifth Amendment right. See id. Instead, the statements made by

the prosecutor were supported by the evidence of Kidd’s testimony and represent not silence, but

rather admissions on the part of Watts. We conclude that Watts’s challenge to the statements that

allegedly implicate his right not to testify is without merit.

        3.      Statements regarding Watts’s honesty

        Watts further alleges that the prosecutor improperly vouched for his honesty during her

rebuttal closing argument. Specifically, he objects to the prosecutor’s statement that when Watts

spoke with Agent Kidd, “[h]e was being very cooperative, and he was telling the truth. I have to

commend him for at least telling the truth to Special Agent Kidd when he came to ask the questions.”

The government replies by pointing out that the prosecutor’s statement was in direct response to

Watts’s closing argument, wherein his trial counsel said:

                People, why would anybody confess to a federal felony to a cop when
                they walked in. “Hey FBI. I’m going to ask you some questions.”
                “Oh, yeah, I did it.”

                                                 - 13 -
No. 07-5330
United States v. Watts

                 It’s ludicrous to believe that the gentleman confessed to anything. I
                 told you in [my] opening statement that I believe the government,
                 specifically Special Agent Kidd, he drew some conclusions early on
                 to some very specific questions.

According to the government, the prosecutor’s statement was not improper vouching, but was a

permissible response to the attempt to attack Agent Kidd’s credibility.

       “Improper vouching occurs when a prosecutor supports the credibility of a witness by

indicating a personal belief in the witness’s credibility[,] thereby placing the prestige of the office

of the United State Attorney behind that witness.” United States v. Jackson, 473 F.3d 660, 670 (6th

Cir. 2007) (alteration in original) (citation omitted). The full context of the prosecutor’s statement

is as follows:

                 Why would someone confess to a federal crime? It makes no sense,
                 says Mr. Benge. Why in the world would anybody say, “Yeah I was
                 looking at child pornography on the computer” when the FBI comes
                 and asks if you know anything about anything improper that might be
                 on the computer?

                 Why in the world would you do that, he says? The reason that you do
                 that is because you’re guilty of doing that.

                 Now, you or I can’t sit there and say what was going through his
                 head. He was being cooperative, and he was telling the truth. I have
                 to commend him for at least telling the truth to Special Agent Kidd
                 when he came to ask the questions.

                 Why would you confess? You would confess because that’s what
                 you did.

       A review of the prosecutor’s statement indicates that she was responding to Watts’s direct

attack on the credibility of Kidd’s testimony and the sufficiency of Kidd’s investigation. The

statement was not “founded upon an implication that the prosecutor personally believed [Watts] or

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No. 07-5330
United States v. Watts

knew of evidence not before the jury that demonstrated [his] truthfulness.” See Jackson, 473 F.3d

at 672. Rather, the statement was founded on the fact that Watts, through his closing argument, had

placed Agent Kidd’s testimony and the accompanying veracity of Watts’s confession at issue.

Moreover, we are not aware of any authority prohibiting the prosecutor from vouching for the

credibility of what is purportedly the defendant’s own testimony, as opposed to that of a witness for

the prosecution. We conclude that the prosecutor’s statement regarding the truthfulness of Watts’s

confession to Kidd was not improper vouching.

C.     Flagrancy of the prosecutor’s statements

       Even if we were inclined to find one or more of the preceding statements by the prosecutor

improper, none were so flagrant as to warrant a new trial. Although “a pattern of improper

statements may require reversal where no individual statement by itself is sufficiently prejudicial,”

such is not the case here. See United States v. Stover, 474 F.3d 904, 917 (6th Cir. 2007). Watts

argues that the prosecutor’s statements misled the jury and prejudiced him—the first flagrancy

factor—because the jury twice asked for a copy of what Watts said (i.e., a transcript of Kidd’s

testimony) during its deliberations. These requests were denied, in part because Watts’s attorney

objected to creating a transcript of Kidd’s testimony for review by the jury. Moreover, as the district

court noted, “this jury has not hesitated to ask me questions, that they might ask me again if they are

really stuck and can’t get past whatever seems to be bothering them.”

       The district court then instructed the jury that “[a] transcript of Agent Kidd’s testimony is not

readily available. You should rely on your memory of the evidence presented in the court.” No

further questions from the jury were presented to the court, indicating that “whatever seem[ed] to

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No. 07-5330
United States v. Watts

be bothering them” did not stand in the way of reaching a unanimous guilty verdict. The jury’s

requests also indicate that it was not misled into believing that Watts had testified, the argument that

Watts now raises in objecting to the comments he claims infringed upon his Fifth Amendment rights.

        With respect to the second and third flagrancy factors—the extensiveness of the statements

and whether they were deliberately placed in front of the jury—the government concedes that the

prosecutor’s alleged misrepresentations of Watts’s confession constituted “several deliberate

statements.” The government asserts, however, that the comments allegedly infringing on Watts’s

refusal to testify and expressing an opinion as to his truthfulness were brief and isolated, and that the

prosecutor’s statement that “every other witness that came up here says they absolutely didn’t

download child pornography” was accidental in nature. Contrary to the government’s contentions,

we believe that the prosecutor’s statements were more than brief and isolated and that they were

deliberately put in front of the jury. But this conclusion alone is insufficient to support a finding of

flagrancy that would warrant reversal.

        Watts’s only argument challenging the strength of the evidence against him—the fourth

flagrancy factor—is based on the prosecutor’s statement during her rebuttal argument that “[b]y all

accounts, there were a lot of people who had access to that computer. And we might not be here

today if the defendant himself hadn’t told us who the person was that was responsible.” This

statement was made in response to Watts’s theory of the case and closing argument to the effect that

someone else with access to the computer downloaded the child pornography, and that Agent Kidd

lied about Watts’s confession.



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No. 07-5330
United States v. Watts

        According to Watts, “[w]ithout a confession from the defendant, there was only

circumstantial evidence of who committed this crime.” The flaw in Watts’s argument is that even

if the prosecutor’s statements about the alleged confession were excluded, the confession itself had

already been admitted into evidence through the testimony of Agent Kidd. Furthermore, the judge

instructed the jury that the evidence did not include the statements of the attorneys and that the jurors

alone must weigh the credibility of the evidence.

        Based on Watts’s confession and the strength of the corroborative evidence introduced by

the government’s expert witness, “it is clear beyond a reasonable doubt that the jury would have

returned a verdict of guilty” even in the absence of the prosecutor’s statements. See United States

v. Roberts, 986 F.2d 1026, 1032 (6th Cir. 1993) (rejecting a claim of prosecutorial misconduct where

the prosecutor improperly appealed to the community conscience during his closing argument

because the evidence against the defendant was overwhelming). This is not a case where “the

prosecutor’s actions ‘so infected the trial with unfairness as to make the resulting conviction a denial

of due process.’” Hill v. Brigano, 199 F.3d 833, 847 (6th Cir. 1999) (quoting Donnelly v.

DeChristoforo, 416 U.S. 637, 643 (1974)).

        We therefore conclude that the statements made by the prosecutor were not so flagrant as to

warrant reversal, even if we were to assume for the sake of argument that they were improper. The

remote possibility of either prejudice to Watts or jury confusion, combined with the strength of the

evidence against him, significantly outweigh the argument that the prosecutor’s statements were

extensive and deliberate.



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No. 07-5330
United States v. Watts

                                     III. CONCLUSION

       For all the reasons set forth above, we AFFIRM the judgment of the district court.




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