United States of America v. Anthony E. Palmer, Appellant, 957 F.2d 912 (D.C. Cir. 1992)

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U.S. Court of Appeals for the District of Columbia Circuit - 957 F.2d 912 (D.C. Cir. 1992) March 20, 1992. Rehearing and Rehearing En BancDenied May 8, 1992

Before RUTH BADER GINSBURG, BUCKLEY and D.H. GINSBURG, Circuit Judges.


JUDGMENT

PER CURIAM

This appeal from a judgment of conviction was considered on the record from the United States District Court for the District of Columbia and on the briefs and oral arguments of counsel. Upon full review, the court is satisfied that appropriate disposition of the case does not require an opinion. See D.C. Cir. Rule 14(c).

Defense counsel emphasized in closing argument that "it's highly more likely" defendant's companion, and not defendant, brought the drugs in question into the car. The prosecutor legitimately sought to counter that argument. In doing so, the prosecutor attributed to defendant's companion a defense not in evidence. The government commendably recognizes, upon reflection, that remarks hypothesizing the companion's defense "would have been better left unsaid." Brief for Appellee at 13. In context, however, the prosecutor's rebuttal, if overzealous, surely did not rise to the level of "plain error." See United States v. Young, 470 U.S. 1, 15-16 & n. 14 (1985) (under plain error standard, improper remarks in prosecutor's rebuttal argument must be evaluated in context of entire trial record; only errors that "undermine the fundamental fairness of the trial and contribute to a miscarriage of justice" warrant reversal). It is therefore

ORDERED and ADJUDGED that the judgment from which this appeal has been taken be affirmed.

The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. Rule 15(b) (2).