          United States Court of Appeals
                     For the First Circuit


No. 17-1445

                         UNITED STATES,

                            Appellee,

                               v.

                         DANIEL E. SAAD,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF RHODE ISLAND

       [Hon. John J. McConnell, Jr., U.S. District Judge]


                             Before

                   Lynch, Thompson, and Barron
                         Circuit Judges.


     Claire M. Specht, with whom Felicia H. Ellsworth and Wilmer
Cutler Pickering Hale and Dorr LLP were on brief, for appellant.
     Donald Lockhart, with whom Stephen G. Dambruch, Acting United
States Attorney, was on brief, for appellee.


                         April 30, 2018
            LYNCH, Circuit Judge.       Following a fourteen-day jury

trial, Daniel E. Saad was convicted of arson, wire fraud, and the

use of fire in furtherance of a federal felony.                  Saad, who

testified, appeals from these convictions, which stem from a

November 30, 2014 fire that gutted Snow's Clam Box, a restaurant

he owned in Glocester, Rhode Island.         He was sentenced to fifteen

years in prison.

            Saad's primary argument is that the prosecution violated

his rights under the Confrontation Clause when an investigator

testified that the cause of the fire was incendiary and not

electrical.       Saad argues that the investigator relied on the

conclusions drawn by Saad's insurer's electrical expert without

calling that expert to the stand, where he could be cross-examined.

This also, he argues, was a violation of Federal Rule of Evidence

703.   The government argues in turn that Saad misreads the record

and there was no error and, in any event, any possible error was

harmless.   Saad also makes an unpreserved claim that statements by

the prosecution in closing about the credibility of witnesses were

inappropriate and warrant a new trial.

            The    supposed   errors    that    Saad   argues,     whether

individually or collectively, were harmless at most.        We affirm.

                               I.    Facts

            We recite the facts in the light most favorable to the

jury verdict.     United States v. Van Horn, 277 F.3d 48, 50 (1st


                                    - 2 -
Cir. 2002) (citing United States v. Escobar-de Jesus, 187 F.3d

148, 157 (1st Cir. 1999)).

A.   Background

            Snow's Clam Box was located in Glocester, Rhode Island,

about   a   forty   minutes'   drive   from   Saad's   home   in   Spencer,

Massachusetts.      Saad owned six other restaurants in addition to

the Clam Box, all of which were located in Massachusetts.

            Saad's financial situation was deteriorating in 2014.

He owed almost $2.5 million to his creditors and his businesses

were performing poorly, which caused him to make many loan payments

late.   Paychecks to his employees bounced on multiple occasions,

and vendors "refused to deliver goods to Snow's Clam Box until

outstanding balances were paid."       Saad had thirty accounts spread

across eight banks by the time of the fire, and he wrote checks on

insufficient funds from one account to another in an attempt to

stay current with his creditors. As a result of this check-kiting,

Saad overdrew his accounts 6,892 times between January 2011 and

November 2014, incurring $198,851 in overdraft fees.

            Saad    also   often   pledged    large    portions    of   his

restaurants' future credit card receivables in exchange for short-

term, high-interest loans.         He sold $791,779 in receivables by

this method, receiving $583,008 in funding.            Saad's many bank

accounts had an aggregate balance of negative $9,043 at the time

of the fire.


                                   - 3 -
            Saad had a $1 million insurance policy on the Clam Box,

which covered $700,000 for the building, $150,000 for the contents,

and $140,000 for lost income.         He initiated a claim under that

policy on the day of the fire.

B.   The Fire

            Tracey   Smith,   a   tenant   living   above   the   Clam   Box,

testified that she was walking her dogs around 5:00 AM on November

30, 2014.    While on the east side of the building, she heard the

sound of a door closing on west side of the building.             After she

returned to her apartment, she heard movement in the restaurant

downstairs, and the fire alarm went off.            Smith smelled gasoline

as she fled the building with her son and dogs.               She had not

noticed that smell while walking her dogs earlier.           Once outside,

Smith saw flames on the west side of the building and dialed 9-1-1

from her cellphone.     Smith also called Saad twice, but he did not

answer.

            The fire department received notice of the fire at

5:23 AM.    When the fire department arrived at the scene, the west

side of the restaurant was engulfed in flames.           The west side of

the restaurant was severely damaged by the fire.

            The Clam Box had security cameras, but the system's

digital video recorder ("DVR") had been removed less than a week

before the fire.     Saad claimed that this was because the DVR was

not functioning, but there was evidence that was not true.               The


                                   - 4 -
Clam Box also had a burglar alarm, but it was disabled at the time.

Similarly, the doors to the restaurant had locks, but the basement

door had been left unlocked that night.

C.   The Investigation

           Deputy State Fire Marshal Paul Manning assembled an

investigative team and the group divided up the necessary roles.

Special Agent James Hartman from the Bureau of Alcohol, Firearms,

Tobacco, and Explosives ("ATF"), a certified investigator, had

responsibility   for     writing   the     "cause   and   origin"   report

expressing his opinion of how the fire started.              Manning was

responsible for collecting evidence and documenting the scene with

photographs and diagrams.      Kevin Murphy, a senior investigator

from the Rhode Island State Fire Marshal's Office, was assigned to

"examine the electrical systems . . . to help [the team] determine

if it was possibly an accidental fire related to electricity."

For the two days following the fire, Murphy reviewed the building's

electrical features, such as circuit breakers and wiring, in search

of any signs that the fire was caused by an electrical issue.          On

December 5, Murphy continued his investigation with the help of

Michael Rains, an employee for Saad's insurance carrier who had

electrical expertise.     Murphy completed his review that day.

           The investigators determined, based on the pattern of

the fire damage along with other signs, that the fire had two

origin points: the pellet stove area on the west side of the bar


                                   - 5 -
and the floor on the east side of the bar.     They ruled out many

possible causes of the fire, including electrical fault, a gas

leak, and a stove malfunction.     The team collected and tested

samples of debris "from the west side of the bar, which was

adjacent to the pellet stove, inside the pellet stove, the east

side of the bar, and the northeast side of the lounge near the

restaurant area."    Many of these tested positive for gasoline,

including samples taken from the inside of the pellet stove and

the area near the pellet stove.

D.   Cell Tower Evidence

           The government obtained cell tower evidence showing that

Saad, who lived forty minutes away from the Clam Box, had been

less than two miles from the restaurant at 5:06 AM, just minutes

before the fire.    The same evidence showed that Saad was in the

vicinity of the Clam Box at 5:25 AM, just after the fire started

and before the fire department had arrived, and was moving away

from it.

E.   Saad's Statements

           Law enforcement officials interviewed Saad six times,

from the day of the fire through March 6, 2015, and Saad's version

of events changed dramatically over that time.   On the day of the

fire, Saad told investigators that the DVR had been removed because

it was broken and would not record.      Saad also stated that he

"might have left [the basement door] open."   He said he had closed


                               - 6 -
vents in the attic ducts, though an inspection revealed that that

was untrue. Saad also stated that there was no reason why gasoline

would be in the restaurant before the fire.

             In a December 9, 2014 interview, Saad stated that he had

been at home when he was notified of the fire.        Saad recanted that

story   on    January   7,   2015,     admitting   that   he    had   misled

investigators.     He said, instead of being home at the time of the

fire, he had been with his estranged wife at her home in Webster,

Massachusetts.    According to Saad, he and his wife spent the night

together and then went for a drive to smoke marijuana at 4:35 AM.

He said he had dropped her off and was driving back to his home in

Spencer when his manager called him about the fire.               Saad said

that he had lied to investigators about his whereabouts because

his children would have been very angry at him for being with his

estranged wife.     Saad repeated this story when he was interviewed

on January 13, 2015.

             Saad was interviewed again on March 6, 2015, this time

on camera.      Investigators confronted Saad with the evidence of

gasoline in the pellet stove area and near the bar.            Saad at first

restated that he knew of no reason why gasoline would have been in

the bar or pellet stove area.           But he then changed his story,

saying that he and others previously used gasoline to start the

pellet stove and that he was unsurprised that there was gasoline

near the stove.     Saad downplayed this explanation when pressed by


                                     - 7 -
investigators, saying he had only used a "little bit" of gasoline.

When investigators told Saad that cell tower evidence showed he

could not have been with his wife in Webster at the time of the

fire, Saad stuck to his story that he had been with his wife.

Saad's wife initially supported his alibi, but admitted before the

grand jury that she had not been with Saad that night.

F.   The Trial

           At trial, there was a great deal of testimony that Saad

was responsible for the fire and had tried to cover up his

involvement.     Saad's bookkeeper testified that Saad had left her

multiple voicemails in the wake of the fire offering to hire a

lawyer on her behalf and telling her to "keep [her]self out of

this."   Those voicemails from Saad were admitted into evidence.

She also stated that Saad had asked her before the fire to box up

financial records.     She testified he also told her that "he was

going to take [the records] home and say that they were lost in

the fire, and he was going to destroy them."

           In her testimony at trial, Saad's wife confessed that

she had twice lied to investigators when she told them that Saad

had been with her on the night of the fire.     She testified that

Saad had asked her to provide a false alibi for him.

           The prosecution put into evidence the cellphone and cell

tower evidence discussed earlier.




                                - 8 -
          There was also considerable evidence that the fire was

incendiary and that gasoline was used to fuel it. Murphy testified

to the methods used to determine whether a fire has an electrical

cause, and how he had applied those methods to his three-day-long

investigation. Murphy stated that he consulted with Rains and other

members of the investigative team about whether the fire had an

electrical cause.    Murphy, when asked about his opinion as to the

cause of the fire, stated, "Our opinion was -- my opinion was that

none of the electrical activity or events that we documented or

saw was the cause of the fire."      (emphasis added).     The defense

did not object to this statement.

          Hartman    testified   that    there   were   irregular   burn

patterns in the restaurant's bar area, that gasoline was present

on the west and east sides of the bar, and that there was a lack

of fire damage in other areas.    Hartman concluded, based primarily

on this evidence, that the fire was caused by a person and that it

began in the bar area where certain items had been "doused with an

ignitable liquid."

          Hartman testified that Rains, in addition to Murphy, had

been "engaged to examine the electrical system." Hartman agreed

that, "as part of [his] preparation for compiling an origin and

cause report," he had reviewed and considered the report prepared




                                 - 9 -
by Rains.1    The prosecution later asked Hartman whether there were

any electrical conductors near the fire's two points of origin

that could have caused the fire.         Hartman responded that there

were conductors, junction boxes, and recessed lights in that area

but that "[w]e looked at all those.        Mr. Rains ultimately looked

at all those, and there was nothing there that we --."            This

statement was interrupted by an objection from Saad's counsel, who

stated that "[i]f they want to bring Mr. Rains in, they can."

             The district court initially sustained the objection and

called a bench conference with counsel.      The defense was concerned

that Hartman was discussing Rains's conclusions without Rains

testifying and that Rains's report did not even discuss whether

the lights in the bar area could have caused the fire. The district

court ruled that Hartman could testify to the conclusions in

Rains's report but could not discuss conclusions Rains reached

that were not in the report.

             Following the conference, the government did not ask

about Rains's conclusions at all.        The government asked Hartman,

"You had made a conclusion as it related to . . . existing

electrical appliances and devices; is that correct?"         (emphasis

added).   Hartman responded "Yes."   The government then asked, "And

had you ruled those out as being an ignition source?"        (emphasis



     1       The report was not introduced into evidence.


                                - 10 -
added).    Hartman again answered, "Yes." On cross-examination, the

defense did not question Hartman about the possibility of an

electrical ignition source.

            Justin Moseley, who was Saad's brother-in-law and the

manager of the Clam Box, testified for the defense that he returned

to the restaurant three days after the fire (that is, before

December 5th) to inventory the items in the bar area.       He said

that the flashlights he brought with him did not provide enough

light, so he returned with a 200-pound gas-powered generator, with

which he planned to power construction lights in order to light

the restaurant.   Moseley said that the generator failed to start,

so he drained some of its gas into a "chowder bowl."   The generator

still would not start, so he gave up.   He then added something he

had not told investigators.    He said that, instead of taking the

generator out through the west door of the restaurant, he had

dragged the generator through the kitchen along the east side of

the bar and hauled it down the stairs to the basement so that he

could use the rear loading dock to get the generator into his

vehicle.     The government asked to treat Moseley as a hostile

witness.   The district court did not rule on that request in front

of the jury, instead dismissing the jury for the day.       After a

brief discussion, the district court then ruled that the government

could treat Moseley as an adverse party.




                               - 11 -
          The next day, Moseley admitted, on examination by the

government, that he had not dragged the generator along the east

side of the bar and down the stairs to the basement.   He said that

he had been "confused" when he told that story and that, having

reviewed his "notes," he remembered that he had left with the

generator through the restaurant's west door.

          The defense called Mark Kadlik, who had installed the

security system at the Clam Box.   While Kadlik confirmed that Saad

had told him the DVR was broken and that Saad took it to Kadlik in

the days before the fire, Kadlik also testified that the DVR was

fully functional when Saad dropped it off.

          Saad testified at trial, changing his story yet again

from the statements he had made earlier. Faced with the cell tower

evidence placing his cellphone near the restaurant at the time the

fire started and with his wife's testimony that he had asked her

to lie to investigators about his whereabouts, Saad for the first

time stated that he had been at a lake near Snow's Clam Box --

many miles from his house -- attempting to commit suicide at the

time of the fire.   Saad confirmed many of the details about his

financial status, but downplayed his comment to investigators that

gasoline was often used to start the pellet stove, claiming he had

only used gasoline once or twice.     He asserted that the gasoline

in the bar could have come from the gas-powered generator that

Moseley claimed to have used in that area after the fire.


                             - 12 -
          In closing argument, the prosecutor highlighted Saad's

motive, his proximity to the scene of the fire, and testimony that

Saad had asked others to lie on his behalf.          The prosecutor

discussed the inconsistencies in the testimony of Saad and his

brother-in-law, Moseley.     The government began its discussion of

Moseley's testimony by saying, "Now, another piece of evidence

that . . . has to be brought to the jury's attention is the

testimony of Justin Moseley because have you ever seen a more

unmitigated liar in your life than Justin Moseley who comes before

you on day one and tells you this elaborate story?"

          The prosecutor explained the problems with Moseley's

claim that he dragged the gas-powered generator across the east

side of the bar and then reminded the jury that Moseley recanted

part of his story the next day. The government stated that Moseley

"got up [on the witness stand] and perjured himself, and he removed

himself from the perjury the next day by coming in saying oops,

mistake, my bad."

              The prosecutor called Saad's third alibi "incredible,"

and said, "I would suggest to you respectfully [that] it's an

insult to your intelligence.    The thought that he just happened to

go next to his restaurant on the night that somebody sets it on

fire to play Russian roulette or contemplate taking his life is

ludicrous."      The prosecutor continued that Saad was "a good

storyteller" and "that story that he told you on the stand with


                                - 13 -
his weeping is malark[e]y, exactly like the two stories that he

told the police before." The prosecutor finally said, "I'd suggest

to the jury [that Saad's story is] so incredible that it's hard to

give it credence or respect."        The defense did not object at any

point in the closing.

            The defense's closing argument focused on highlighting

the circumstantial nature of the government's case, downplaying

the evidence of Saad's financial distress, arguing that evidence

was mishandled, and giving reasons why Saad's final alibi was

credible.     The defense questioned the evidence that gasoline was

present at the scene of the fire and speculated that the fire could

have started in the ceiling, but never argued that the fire was

electrical.

            The jury began deliberations on January 27, 2017.          It

returned a guilty verdict later that day.

                              II.    Merits

A.   Confrontation Clause

            Saad argues that Hartman's testimony about whether the

cause of the fire was electrical violated his Confrontation Clause

rights because it introduced Rains's conclusions without having

Rains testify.     See United States v. Cameron, 699 F.3d 621, 652

(1st   Cir.    2012).    We   need    not     determine   whether   Saad's

Confrontation Clause rights were violated because, on these facts,

any such violation, if one occurred at all, was "harmless beyond


                                - 14 -
a reasonable doubt."      Id.    We are more than satisfied that the

government has shown that, even if there was an error, the jury

would have found Saad guilty beyond a reasonable doubt. We explain

why.

          Saad argues that he was prejudiced because, given the

circumstantial   nature   of    the   government's   case,   the   evidence

against Saad is severely weakened without Hartman's references to

Rains's conclusions.      In Saad's view, Hartman's references to

Rains's conclusions were critical to establishing that the fire

did not have an electrical cause, and that in turn helped the

government show that the fire was not accidental.

          The testimony in question only helped establish that the

fire was not electrical in origin, a point that was not the subject

of serious dispute at trial.      Saad never argued that the fire was

electrical, never directly challenged Hartman's conclusion on that

point, and did not mention the issue in his closing argument. Even

on appeal, Saad does not identify a shred of evidence that the

fire was caused by an electrical source.

          Saad's assumptions about the effect of the prosecution's

failure to call Rains and about Hartman's supposed reliance on

Rains ignore some important points.           Independent of Hartman's

testimony, Murphy testified that he ruled out the possibility that

the fire had an electrical cause, and Saad does not challenge the

admissibility of that testimony.


                                  - 15 -
          Hartman likewise testified about whether the cause of

the fire was electrical.     Saad thinks this testimony should be

discounted because Hartman testified that Rains was brought in to

provide additional expertise.     But even if Rains was brought in

"to assist [investigators] with making a better determination"

about whether the fire had an electrical cause, that does not mean

that Murphy and Hartman lacked the expertise to make their own

determination.

          Even if the jury understood Hartman's brief use of "we"

as referring to Rains's conclusions for the purpose of determining

whether the fire was electrical, "nothing material would have been

added to the case."     United States v. Godfrey, 787 F.3d 72, 78

(1st Cir. 2015).   The government established that Saad had the

motive, opportunity, and means to commit the crime, and that he

was in the area to do so easily.

          There is overwhelming evidence that the fire was started

by Saad, who used gasoline to aid its spread. Gasoline was present

in the pellet stove and elsewhere in the bar.        Saad himself

testified that there was no reason for gasoline to be in the bar,

and yet it was there.   Saad argues that Moseley's testimony shows

that the samples could have tested positive for gasoline because

a gas-powered generator was present in the bar after the fire, but

at least one of the samples that tested positive was taken before

the generator was in the bar, meaning gasoline was in the bar even


                                - 16 -
before Moseley purportedly brought in the generator.    In addition,

Moseley never said he spilled gas from the generator into the bar.

           The evidence of Saad's guilt was overwhelmingly strong

for other reasons as well.    The jury heard Saad's testimony and

heard him craft and then recant implausible alibis.    It heard him

testify to his last explanation: that his straits led him to

contemplate suicide at a lake near the site of the fire, but not

to commit arson to collect the insurance proceeds.     It also heard

testimony from his wife that he asked her to lie for him about

crucial alibi testimony and testimony from his bookkeeper that he

planned to burn financial records.     It also heard that he removed

the DVR because he claimed it was broken, when that was not so.

And the cell tower evidence put him where he said he was not.

B.   Federal Rule of Evidence 703

           For the same reasons, any error under Federal Rule of

Evidence Rule 703 was harmless. The parties dispute whether Saad's

Rule 703 argument was preserved, but it is harmless even if he

properly objected.   See United States v. Morosco, 822 F.3d 1, 18

(1st Cir.) ("'A non-constitutional evidentiary error is harmless'

if 'it is highly probable' that the mistake 'did not influence the

verdict.'" (quoting United States v. Piper, 298 F.3d 47, 56 (1st

Cir. 2002))), cert. denied, 137 S. Ct. 251 (2016).




                              - 17 -
C.   Commentary on Witness Testimony

                 Saad    argues,    with    some        justification,     that   the

prosecution's           closing    argument      contained     inappropriate      and

prejudicial        statements      about   the     credibility     of    Saad's   and

Moseley's testimony.              Saad argues that it was improper for the

prosecution to, inter alia, label Saad as a "good storyteller,"

say that Saad's testimony was "malarkey," and call Saad's third

alibi "an insult to [the jury's] intelligence."                    Saad also takes

issue with the prosecution calling Moseley an "unmitigated liar"

and accusing him of perjury.

                 Our circuit said the following some time ago about

similar comments by a prosecutor in closing argument: "[t]hat these

statements were improper is so clear as not to brook serious

discussion."            United States v. Rodriguez-Estrada, 877 F.2d 153,

158 (1st Cir. 1989); see also United States v. Nickens, 955 F.2d

112,       121   (1st    Cir.   1992).     That    is    because   a    "prosecutor's

obligation to desist from the use of pejorative language and

inflammatory rhetoric is every bit as solemn as his obligation to

attempt to bring the guilty to account."2                  Rodriguez-Estrada, 877


       2  We have never approved of a prosecutor calling
defendants   or  defense   witnesses   liars,  contrary   to   the
government's characterization of Obershaw v. Lanman, 453 F.3d 56
(1st Cir. 2006). Obershaw was a habeas petition from a state court
conviction.   Id. at 57.   There, the prosecution had called the
defendant a liar in its closing argument, and we had to determine
whether the "prosecutor's comments . . . form[ed] a basis for
habeas relief." Id. at 66. We held that they did not because,


                                         - 18 -
F.2d at 159. Such statements can threaten the fairness of a trial,

since, when a prosecutor "directly accus[es] a defendant of lying

. . . jurors could believe the government has knowledge outside

the evidence about the defendant's veracity."     United States v.

Garcia, 818 F.2d 136, 144 (1st Cir. 1987).

          We recognize that different circuits more recently have

taken different views on a prosecutor accusing the defendant or

defense witnesses of lying.   Some circuits though have still noted

the word "liar" itself carries even greater risks.      See United

States v. Phillips, 704 F.3d 754, 767 (9th Cir. 2012) ("It is clear

that stating that the defendant lied by making a particular

statement is less problematic than calling him a liar in general,

since, in certain circumstances, the latter could have the tendency

to overtake the role of the jury as the arbiter of credibility.").

All circuits agree that the prejudicial effect of the prosecution's

use of "liar" in closing argument depends on context.   See United

States v. Moreland, 622 F.3d 1147, 1161-62 (9th Cir. 2010); United

States v. Stover, 474 F.3d 904, 916 (6th Cir. 2007); United States

v. Coriaty, 300 F.3d 244, 255 (2d Cir. 2002); United States v.

Shoff, 151 F.3d 889, 893 (8th Cir. 1998); United States v. Manos,




given the facts of that case, "it was reasonable [for the
Massachusetts Supreme Judicial Court] to view [the prosecutor's
comments] as comments based on the evidence." Id. We did not
hold that the prosecutor's statements were proper.


                               - 19 -
848 F.2d 1427, 1436-37 (7th Cir. 1988); Houston v. Estelle, 569

F.2d 372, 383 (5th Cir. 1978).

           The government, at oral argument, asked us to bless the

use of the term "liar."         Times change, but we do not condone the

use of that term.      As the Fourth Circuit has said:

           When a prosecutor comments on the veracity of
           a witness, the prosecutor's statement presents
           two   discrete   risks:  (1)   of   improperly
           suggesting to the jury that the prosecutor's
           personal opinion has evidentiary weight; and
           (2) of improperly inviting the jury to infer
           that the prosecutor "had access to extra-
           judicial information, not available to the
           jury."

           The gravity of these risks is amplified in the
           case of a criminal defendant exercising his
           constitutional right to testify in his own
           defense.

United   States   v.   Woods,    710   F.3d   195,   203   (4th   Cir.   2013)

(citations omitted) (quoting United States v. Moore, 710 F.2d 157,

159 (4th Cir. 1983)).

           We also agree with the reservations expressed by the

Third Circuit in Fahy v. Horn, 516 F.3d 169 (3d Cir. 2008): "[i]f

a defendant testifies on his own behalf . . . a prosecutor may

attack his credibility to the same extent as any other witness.

This does not mean, however, that a prosecutor may express his

personal belief in the credibility of a witness or the guilt of a

defendant."   Id. at 203 (citations omitted).




                                   - 20 -
            The defendant argues on appeal that the prosecutor went

beyond fair commentary on the evidence and so prejudiced him as to

violate his due process rights.         See United States v. Francis, 170

F.3d 546, 552-53 (6th Cir. 1999) (granting new trial based on

prosecution      improperly   calling    the    defendant   a   liar    numerous

times).    Saad argues the statements were prejudicial because they

pervaded the prosecutor's closing argument, the statements were

targeted    at    key   witnesses,      and    the   government's      case   was

circumstantial and weak.

            Saad did not object to the statements before the district

court, so we review for plain error.            United States v. Pires, 642

F.3d 1, 14 (1st Cir. 2011).             Under this demanding standard of

review, Saad must show "(1) that an error occurred (2) which was

clear or obvious and which not only (3) affected the defendant's

substantial rights, but also (4) seriously impaired the fairness,

integrity, or public reputation of judicial proceedings."                     Id.

(quoting United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)).

Even if we were to assume that prongs (1) and (2) were met, Saad

fails the third and fourth prongs of plain error review because he

cannot establish "a reasonable likelihood that the result would

have been different without the challenged comments."                     United

States v. De La Paz-Rentas, 613 F.3d 18, 27 (1st Cir. 2010).

            Reviewing the government's case as a whole, we are

satisfied that, despite Saad's arguments, the result would not


                                     - 21 -
have     been    different     absent      the     prosecutor's       inappropriate

comments.        In    addition     to   the     evidence      against   Saad   being

overwhelming,         the    prosecutor's         statements      criticizing      the

witnesses'       credibility      were    based     on   the    inconsistency      and

outlandishness of their stories, making it less likely that the

jury would infer that the prosecutor had "private knowledge of the

defendant's guilt that unfortunately cannot be shared with the

jury."    United States v. Gomes, 642 F.3d 43, 47 (1st Cir. 2011).

While this absence does not mean that the prosecutor's comments

were appropriate, it makes it less likely that the comments were

prejudicial.

             Importantly, the district court's jury instructions made

it clear that the jurors were to make their own credibility

determinations, despite the defense's failure to object to the

prosecution's statements.           We presume that the jury followed those

instructions.         United States v. Spencer, 873 F.3d 1, 16 (1st Cir.

2017) (citing United States v. Ponzo, 853 F.3d 558, 584 (1st Cir.

2017)).         The   jury   "had   ample      opportunity       to   draw   its   own

conclusions about the witness[es'] veracity, given that it saw and

heard [them] testify" at length.                  United States v. Rodriguez-

Adorno, 695 F.3d 32, 41 (1st Cir. 2012).

                                III.     Conclusion

             We affirm Saad's conviction.




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