                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                   UNITED STATES COURT OF APPEALS
                                                                         JAN 24 2003
                               TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
                                                       No. 02-8050
 v.                                              D.C. No. 01-CR-138-03-B
                                                      (D. Wyoming)
 KENNETH ANDREW MORRIS, also
 known as Andy Morris, also known
 as Kenneth Doerge,

             Defendant - Appellant.


                          ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f). The case is therefore submitted without

oral argument.




      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Defendant appeals his conviction and sentence for Conspiracy to Possess

with Intent to Distribute, and to Distribute Methamphetamine in violation of 21

U.S.C. §§ 841(a)(1),(b)(1)(A) and 846. He claims that 1) his confession was not

sufficiently corroborated by independent evidence, 2) his conviction should be

reversed because it was not supported by sufficient evidence, and 3) his

conviction should be reversed due to prosecutorial misconduct during closing

argument.

      We review de novo questions regarding sufficiency of the evidence,

including sufficiency of corroboration. See United States v. Wiseman, 172 F.3d

1196, 1212 (10th Cir. 1999). We must determine whether any rational jury could

have found all of the essential elements of the offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319 (1979). A conviction cannot be sustained

on appeal where the offense was proven solely by an extrajudicial confession.

United States v. Chimal, 976 F.2d 608, 610 (10th Cir. 1992). However, the

corroborating evidence does not have to independently establish each element of

the crime. Wiseman, 172 F.3d at 1212.

      Our review of the briefs and the record reveal that the independent

evidence establishing the trustworthiness of Defendant’s confession was

sufficient. Defendant’s confession was corroborated by other evidence including

his co-conspirator Mr. Davila’s testimony, Special Agent Woodson’s independent


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investigation, hotel records, and Defendant’s ability to pick out Mr. Davila’s

suppliers from large photographic arrays. Additionally, many of the details

specifically recounted by Defendant directly parallel information given by Mr.

Davila at trial and in other interviews.

       Defendant then claims that even if his confession was properly submitted to

the jury, his conviction was still not supported by sufficient evidence. This claim

is without merit. A conspiracy conviction requires “(1) agreement with another

person to violate the law; (2) knowledge of the essential objectives of the

conspiracy; (3) knowing and voluntary involvement; and (4) interdependence

among the alleged coconspirators.” United States v. Edwards, 69 F.3d 419, 430

(10th Cir. 1995) (quotations and citation omitted). Our review of the trial record

including Defendant’s confession, Mr. Davila’s testimony, and Special Agent

Woodson’s testimony, reveals that the jury was provided with enough evidence to

find Defendant guilty of Conspiracy to Possess with Intent to Distribute, and to

Distribute Methamphetamine in violation of 21 U.S.C. §§ 841(a)(1),(b)(1)(A) and

846.

       Defendant’s final claim is that his conviction should be reversed due to

prosecutorial misconduct during closing argument. Where Defendant made a

timely objection, we review the denial of a motion for new trial based on

prosecutorial misconduct during closing arguments for an abuse of discretion.


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United States v. Broomfield, 201 F.3d 1270, 1276 (10th Cir. 2000).

      The prosecutor’s statements at issue are as follows:

      At least be honest, ladies and gentlemen. Agent Woodson did not
      say he did not believe anything Mr. Morris said. He said, “I believe
      parts based on Mr. Davila’s testimony.” Don’t come in here and say
      we didn’t follow up because we didn’t believe. If you really believe
      that I don’t believe that Mr. Morris is guilty of these charges and
      Agent Woodson doesn’t believe that and Agent Dobbs doesn’t
      believe that, this is a lark for us – [Defense counsel objected, court
      told prosecuting attorney he could not say what he believed.] If this
      is just a lark for us, we’re down here trying to convict an innocent
      person, acquit him. Acquit him. But that’s bunk, ladies and
      gentlemen.

Rec., Vol. VII, at 313-14. The Government concedes on appeal that the

prosecutor’s comments were unprofessional. Aple. Br. at 32. We have long

recognized the impropriety of a prosecutor’s comments regarding his belief in the

accused’s guilt. See United States v. Ainesworth, 716 F.2d 769, 771 (10th Cir.

1983); United States v. Rios, 611 F.2d 1335, 1343 (10th Cir. 1979); United States

v. Coppola, 479 F.2d 1153, 1163 (10th Cir. 1973). Therefore, we further hold

that the comments in the instant case were improper.

      Because the comments were improper, we must consider whether the

impropriety requires a new trial. United States v. Pena, 930 F.2d 1486, 1491

(10th Cir. 1991). In order to make this determination, we must consider the trial

record as a whole and order a new trial only if the “prosecutor’s misconduct was

enough to influence the jury to render a conviction on grounds beyond the


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admissible evidence.” Id. (internal quotations omitted).

      Our review of the record and the briefs reveals that the prosecutor’s

improper argument was in response to defense counsel’s closing argument that the

Government “did not believe that Defendant was a drug dealer.” Rec., Vol. VII,

at 301. Even though our review is for an abuse of discretion, we agree with the

district court that United States v. Young, 470 U.S. 1 (1985), is instructive. In

Young, the Supreme Court held that the potential harm from prosecutor’s remarks

in which he stated his opinion that defendant was guilty did not amount to plain

error because prosecutor was responding to defense counsel’s repeated attacks on

the prosecution’s integrity. The Court stated that

      [i]n order to make an appropriate assessment, the reviewing court
      must not only weigh the impact of the prosecutor’s remarks, but must
      also take into account defense counsel’s opening salvo. Thus the
      import of the evaluation has been that if the prosecutor’s remarks
      were “invited,” and did no more than respond substantially in order
      to “right the scale,” such comments would not warrant reversing a
      conviction.

Id. at 12-13. Because the prosecutor’s improper argument was in response to

defense counsel’s similarly improper argument attacking the Government’s

integrity, we hold that the remarks, in context, do not warrant overturning the

conviction.

      Additionally, we note that the trial court took steps to mitigate any potential

harm caused by the improper arguments. In response to defense counsel’s


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objection, the trial court told the Government’s attorney that he could not say

what he believed. The court also instructed the jury that the arguments of the

attorneys were not evidence in this case and that it could convict or acquit the

Defendant based only on the evidence. Additionally, the jury did not have a copy

of the trial transcript during deliberations. Therefore, we agree with the district

court that “the comments considered at their very worst as a commentary on the

[prosecuting attorney’s] belief did not prejudice the defendant.” Rec., Vol. V, at

32-33.

         The conviction and sentence are AFFIRMED.

                                               Entered for the Court


                                               Monroe G. McKay
                                               Circuit Judge




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