Unpublished Disposition, 925 F.2d 1472 (9th Cir. 1991)

MEMORANDUM^** 

Appellant Rudolfo Oliveros was convicted of importation of and possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 952(a) & 841(A) (1). He appeals, claiming improprieties in the government's closing argument at his trial. We affirm.

* At trial, Oliveros objected to part of the government's closing argument, alleging that it improperly commented on his use of peremptory challenges. Attorneys are allowed "reasonably wide latitude" in making closing arguments. United States v. Lester, 749 F.2d 1288, 1301 (9th Cir. 1984). "It is well established that the trial judge has broad discretion in controlling closing argument. The ruling of the trial judge will not be disturbed on appeal, absent an abuse of discretion." United States v. Guess, 745 F.2d 1286, 1288 (9th Cir. 1984), cert. denied, 469 U.S. 1225 (1985). "Improprieties are not reversible error unless they are so gross as to probably prejudice the defendant, and the prejudice is not neutralized by the trial judge." Lester, 749 F.2d at 1301 (citing United States v. Birges, 723 F.2d 666, 671-72 (9th Cir.), cert. denied, 466 U.S. 943 (1984)). "We must decide whether the prosecutor's statement, when considered in the context of the entire trial, affected the jury's ability to judge the evidence fairly." United States v. Sherlock, 865 F.2d 1069, 1082 (9th Cir. 1989) (citing United States v. Young, 470 U.S. 1, 19-20 (1985)).

Although we disapprove of counsel arguing to the jury about the use of peremptory challenges, the alleged reference to jury selection here did not rise to the level of reversible error. The challenged comment did not refer directly to Oliveros's use of peremptory challenges. " [A] court should not lightly infer that a prosecutor intends an ambiguous remark to have its most damaging meaning or that a jury, sitting through lengthy exhortation, will draw that meaning from the plethora of less damaging interpretations." Donnelly v. DeChristoforo, 416 U.S. 637, 647 (1974). The alleged allusion here "was oblique and somewhat obscure," and any prejudice was therefore minimal. United States v. Kennedy, 714 F.2d 968, 977 (9th Cir. 1983), cert. denied, 465 U.S. 1034 (1984). Considered in the context of the entire trial, these challenged remarks were brief and "not of great significance." See United States v. Ray, 731 F.2d 1361, 1368 (9th Cir. 1984); see also Sherlock, 865 F.2d at 1083. They do not constitute "so gross" an impropriety that they likely affected the jury's ability to judge the evidence fairly.

Furthermore, any potential prejudice was mitigated by the district judge's having instructed the jury both before and after closing arguments that arguments and statements by the attorneys are not evidence. See United States v. Endicott, 803 F.2d 506, 513 (9th Cir. 1986); Kennedy, 714 F.2d at 976. " [W]here the prosecutorial comment was a single isolated statement, where it did not stress any reference to guilt, and where it was followed by curative instructions, we have been reluctant to reverse." Kennedy, 714 F.2d at 976. The allegedly improper reference to jury selection in this case was isolated, did not stress reference to guilt and was followed by a curative instruction. It does not constitute reversible error.

II

Oliveros also claims that the government's attorney improperly vouched for prosecution witnesses and expressed personal opinions that Oliveros was guilty. He failed to object at trial, and we therefore review those statements for plain error. United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.), cert. denied, 444 U.S. 979 (1979).

A plain error is a highly prejudicial error affecting substantial rights. We reverse a criminal conviction on the basis of plain error "in the very exceptional situation only, situations wherein it appears to be necessary in order to prevent miscarriage of justice or to preserve the integrity and reputation of the judicial process." When the evidence against a defendant is so strong that the absence of prosecutorial misconduct would not have changed the jury's verdict, plain error seldom will be found.

Id. at 1199 (citations omitted).

Again, attorneys are allowed wide latitude in closing argument. See Lester, 749 F.2d at 1301; Guess, 745 F.2d at 1288. Calling the defendant a liar in closing argument is not prosecutorial misconduct and is "well within the bounds of acceptable comment." United States v. Birges, 723 F.2d 666, 672 (9th Cir.), cert. denied, 466 U.S. 943 (1984). "It is neither unusual nor improper for a prosecutor to voice doubt about the veracity of a defendant who has taken the stand." Id.

There is no evidence that the prosecution here vouched for its witnesses. "Prosecutorial vouching may occur where the prosecutor either (1) 'place [s] the prestige of the government behind the witness' through personal assurances of the witness's veracity, or (2) suggests that 'information not presented to the jury supports the witness's testimony.' " United States v. Wallace, 848 F.2d 1464, 1473 (9th Cir. 1988) (quoting United States v. Roberts, 618 F.2d 530, 533 (9th Cir. 1980)). Here, the government included in its closing arguments rhetorical questions arguing that its witnesses had no motive to lie. That technique is proper. United States v. Wellington, 754 F.2d 1457, 1468 (9th Cir.), cert. denied, 474 U.S. 1032 (1985). It does not constitute plain error.

Because the district judge did not abuse his discretion in overruling Oliveros's objection to an alleged allusion to jury selection and because argument about truthfulness of witnesses was not plain error, the decision of the district court is

AFFIRMED.