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<pre>                                 <br>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br> <br>No. 99-1361 <br> <br>                    UNITED STATES OF AMERICA, <br> <br>                            Appellee, <br> <br>                                v. <br> <br>                    RUB
N RODR GUEZ-DE JES S, <br> <br>                      Defendant, Appellant. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br>                FOR THE DISTRICT OF PUERTO RICO <br>         [Hon. Salvador E. Casellas, U.S. District Judge] <br> <br> <br> <br>                              Before <br> <br>                     Torruella, Chief Judge, <br>                Stahl and Lynch, Circuit Judges. <br>                                 <br>                                 <br>                                 <br>  Anita Hill-Adames, Assistant Federal Public Defender, and <br>Joseph C. Laws, Jr., Federal Public Defender, on brief for <br>appellant. <br>  Camille Vlez-Riv, Assistant U.S. Attorney, Guillermo <br>Gil, United States Attorney, and Jorge E. Vega-Pacheco, Assistant <br>U.S. Attorney, on brief for appellee. <br>                                 <br>                                 <br>                                 <br>                                 <br>                       February 16, 2000 <br>                                 <br>                                 <br>                                 <br>                                

  LYNCH, Circuit Judge.  Rubn Rodrguez-De Jess (Rodrguez) <br>appeals the denial of his motion for a new trial, which alleged <br>prosecutorial misconduct.  Rodrguez argues that the prosecutor's <br>statement that "he [Rodrguez] also lied" was sufficiently <br>prejudicial to warrant a new trial, and that the district court <br>abused its discretion in denying his motion.  Given the <br>circumstances in which the statement was made, we affirm the <br>district court's decision. <br>                               I <br>  In September 1996, Rodrguez submitted a claim to the <br>Federal Emergency Management Agency (FEMA) for damage caused by <br>Hurricane Hortense to a house that he stated was his principal <br>place of residence.  Rodrguez received a $4,915 grant for repairs <br>to the house and a $1,671 grant for rental assistance.  On April <br>22, 1998, Rodrguez was indicted on two counts of fraud against the <br>United States.  The first count was for making a false statement in <br>a matter within the jurisdiction of a federal agency, 18 U.S.C. <br> 1001; the second count was for making a false claim to a federal <br>agency, 18 U.S.C.  287.  The indictment alleged that the house for <br>which Rodrguez had received FEMA assistance had not actually been <br>his principal place of residence at the time of the hurricane.  If <br>the house that was destroyed had not been Rodrguez's principal <br>place of residence, he would not have qualified for the grants he <br>received from FEMA; at best, he would have only qualified to <br>receive a loan. <br>  During the trial, Juanita Carrin Vasquez (Carrin), the <br>government's chief witness, testified that she rented the house in <br>question from Rodrguez, and that the house was not Rodrguez's <br>principal residence.  Carrin herself requested and received from <br>FEMA rental assistance and compensation for property in the house <br>that was destroyed by the hurricane. <br>  On August 6, 1998, a jury convicted Rodrguez on the <br>first count and acquitted him on the second.  Rodrguez was ordered <br>to serve one hour of imprisonment at the U.S. Marshals' office, pay <br>a $100 special monetary assessment, and make restitution of $6,586.  <br>Rodrguez made timely motions for judgment of acquittal, Fed. R. <br>Crim. P. 29(c), or, in the alternative, for a new trial, Fed. R. <br>Crim. P. 33, which the district court denied.  Rodrguez appealed <br>the denial of his motion for a new trial. <br>                               II <br>  This appeal focuses on one statement by the prosecutor.  <br>Prosecution witness Carrin testified that she had been renting the <br>house from Rodrguez for more than three years before the hurricane <br>struck, and that Rodrguez did not live there himself.  In his <br>testimony, Rodrguez stated that he had never agreed to rent the <br>house to Carrin, but that he had been letting her and her children <br>stay there for free as a favor.  He testified that shortly before <br>the hurricane he had separated from his wife and moved into one of <br>the rooms in the house in which Carrin was living.  Carrin denied <br>that Rodrguez had moved into the house. <br>  Rodrguez said that after the hurricane, in an effort to <br>help Carrin get housing assistance, he had lied to Sylvia Guzman, <br>a representative of the Housing Department, by telling her that <br>Carrin had been paying him $300 rent each month.  He also <br>testified that he called Guzman back later and confessed to having <br>lied to her about Carrin's having paid rent. <br>  After the defense had rested, the government informed the  <br>court that it intended to call Guzman as a rebuttal witness.  Out <br>of the presence of the jury, the prosecutor said that Guzman would <br>testify that Rodrguez had admitted lying to her but had not <br>offered any reason for telling the lie.  The court suggested that <br>a stipulation could make Guzman's testimony unnecessary, and <br>defense counsel agreed to stipulate that Rodrguez never mentioned <br>to Guzman why he had lied to her.  The judge then addressed the <br>jury: <br>    THE COURT: . . . .  The stipulation is as follows:  <br>  When the defendant called back Sylvia Guzman [of] the <br>  Housing Department, he informed her he had lied about the <br>  $300 rent.  He did not mention why he lied, but he did <br>  call and told her he lied about the $300 rent. <br>    Is that satisfactory, counsel? <br>    PROSECUTOR:  Yes, and he also lied. <br>    DEFENSE COUNSEL:  I object.  It should have been <br>  done outside of the presence of the jury. <br>    THE COURT:  Exactly.  Approach the bench. <br>  In the sidebar that followed, the prosecutor explained <br>that she disagreed with the inclusion of "about the $300 rent" in <br>the stipulation.  The judge then addressed the jury again: <br>    THE COURT: Let me correct the stipulation . . . . <br>    The parties have agreed that when the defendant, <br>  Mr. Rodriguez, called back Sylvia Guzman of the Housing <br>  Department and said he had lied in the earlier interview <br>  he did not give any reasons to her why he lied. <br>    Okay, that is the stipulation.  Is that <br>  satisfactory? <br>    PROSECUTOR:  Yes, it is. <br>    DEFENSE COUNSEL:  Yes. <br>                               III <br>  Rodrguez contends that the statement by the prosecutor, <br>"and he also lied," affected the trial's outcome, and that <br>therefore the district judge should have granted his motion for a <br>new trial.  We review the denial of a motion for a new trial for <br>manifest abuse of discretion.  See United States v. Gonzalez- <br>Gonzalez, 136 F.3d 6, 12 (1st Cir. 1998).  The determination of <br>whether prosecutorial misconduct "has so poisoned the well that a <br>new trial is required," United States v. Manning, 23 F.3d 570, 574 <br>(1st Cir. 1994) (internal quotation marks and citation omitted), <br>involves the weighing of several factors: "(1) the severity of the <br>misconduct; (2) the context in which it occurred; (3) whether the <br>judge gave any curative instructions and the likely effect of such <br>instructions; and (4) the strength of the evidence against the <br>defendant,"  id.; see also United States v. Auch, 187 F.3d 125, 129 <br>(1st Cir. 1999) (similar factors). <br>  We examine each of the Manning factors in turn.  When <br>reviewing a claim of prosecutorial misconduct, we take a balanced <br>view of the evidence in the record.  See United States v. Roberts, <br>119 F.3d 1006, 1008 (1st Cir. 1997); Arrieta-Agressot v. United <br>States, 3 F.3d 525, 528 (1st Cir. 1993). <br>A. Severity of the Misconduct <br>  Rodrguez argues that the prosecutor's statement "and he <br>also lied" misled the jury into thinking Rodrguez had stipulated <br>to one of the elements of the first count, making a false statement <br>to a federal agency, when in fact the lie to which he stipulated <br>(that the government's chief witness had been paying him rent) was <br>not the lie he was charged with in the first count (that the <br>dwelling for which he made a claim for emergency assistance was his <br>primary residence at the time of the hurricane). <br>  Although it is conceivable that the jury might have <br>understood the prosecutor's remark to refer to the lie charged in <br>the first count, that is not a likely interpretation.  First, we <br>note that in this context the exact meaning of the statement "he <br>also lied" is far from self-evident.  "[A] court should not lightly <br>infer that a prosecutor intends an ambiguous remark to have its <br>most damaging meaning . . . ."  United States v. Lilly, 983 F.2d <br>300, 307 (1st Cir. 1992) (quoting Donnelly v. DeChristoforo, 416 <br>U.S. 637, 647 (1974)) (internal quotation marks omitted).  Here, <br>the prosecutor made the statement immediately after the judge <br>presented to the jury the stipulation that Rodrguez had called <br>Sylvia Guzman to admit that he had lied to her in an earlier <br>conversation.  Under these circumstances, the most plausible <br>conclusion is that the prosecutor's remark ("he also lied") <br>referred to some aspect of Rodrguez's conversations with Guzman.  <br>That conversation did not have to do with the lie Rodrguez was <br>charged with in the first count. <br>  Second, this is not a case in which the prosecutor's <br>alleged misconduct was "pervasive," see Manning, 23 F.3d at 575, or <br>"repeated," see Auch, 187 F.3d at 129.  The fact that the <br>challenged statement was an isolated remark made during a four-day <br>trial weighs heavily against a finding that the alleged misconduct <br>was severe.  See United States v. Palmer, No. 99-1260, 2000 WL <br>126615, at *2 (1st Cir. Jan. 14, 2000) ("As a one-time misstatement <br>at the end of a four-day trial, the prosecution's comment was <br>neither so egregious nor so pervasive as to poison the well.") <br>B. Context <br>  The context of the prosecutor's statement also weighs <br>against a conclusion that a new trial is required.  Challenged <br>comments are considered in their broader context, not in isolation.  <br>See Auch, 187 F.3d at 129.  As the government points out in its <br>brief, the context here is one in which the defendant himself <br>repeatedly said in front of the jury that he had lied.  While being <br>questioned by his own attorney, Rodrguez stated three times that <br>he had lied to Guzman in order to help Carrin.  During cross- <br>examination, he acknowledged again that he had lied to Guzman.   <br>Furthermore, the prosecutor's statement was made between the <br>judge's presentation of two versions of the stipulation, both of <br>which stated that Rodrguez had told Guzman that he had lied to <br>her.  In a context in which the defendant repeatedly stated that he <br>had lied, and even stipulated to the fact, the cumulative impact of <br>the prosecutor's remark is negligible. <br>C. Curative Instructions and Strength of the Evidence Against the <br>Defendant <br>  In light of the limited severity of the misconduct and <br>the context in which it occurred, the last two factors can be dealt <br>with briefly.  First, while in some circumstances the lack of a <br>curative instruction may weigh in favor of a new trial, see, e.g., <br>Manning, 23 F.3d at 575, we do not believe it does here.  Although <br>the judge gave no curative instructions per se, he expressed his <br>agreement with defense counsel's objection at the time the <br>prosecutor made the challenged remark, and later instructed the <br>jury that statements by counsel were not to be considered as <br>evidence.  Second, while the evidence against Rodrguez was not <br>overwhelming, cf. Auch, 187 F.3d at 130, it was not so slight that <br>the single remark being challenged could have tipped the balance. <br>                               IV <br>  "The remedy of a new trial is rarely used; it is <br>warranted only where there would be a miscarriage of justice or <br>where the evidence preponderates heavily against the verdict." <br>Gonzalez-Gonzalez, 136 F.3d at 12 (internal quotation marks and  <br>citation omitted).  We do not condone the prosecutor's remark; as <br>this court has stated, it is highly improper for a prosecutor to <br>call a defendant a liar.  See United States v. Rodrguez-Estrada, <br>877 F.2d 153, 158-59 (1st Cir. 1989).  Our review of the record, <br>however, convinces us that the prosecutor's statement did not <br>affect the outcome of the trial.  The district court's denial of <br>Rodrguez's motion for a new trial is affirmed.</pre>

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