case number five for argument this morning is united states against jackson brief as to the evidentiary issue turning into prosecutorial misconduct mr jackson's due process right to a fair trial was violated when the prosecutor improperly argued in closing by both vouching for key government witnesses and by asking jury to consider issues outside of the defendant's innocence or guilt specifically the broader societal benefits of incentivising witness testimony there were not timely objections to either of these matters at trial leaving this court to review them for playing their regarded vouching this court defines vouching as either expressing a personal opinion as to the credibility of a witness or suggesting facts outside of those presented to the jury lend credibility to that witness and here regarding three key government case by virtue of presiding over sentencing that was followed immediately with a rhetorical question do you really think these three witnesses would come before the person they're looking to catch a break from a lot the combination of those two statements amounted to him permissible about it left the impression that these witnesses would be unable or unwilling to lie in front of the trial court because he had some superior ability to discern truthful or on truthful testimony and essentially that he was a human lie detector and the problem with that is i must say counsel i understood the argument differently it was the defendant i mean sorry the witness is less likely to take a particular risk of committing perjury when that risk has has its consequences not only the standard punishment for perjury but also losing the benefit of a bar i didn't see any suggestion that the government would be in some way relieved of its duty of showing that he had lied or that the judge had already decided whether to lie until well your honor i guess i don't see it that way and i think that is perhaps one inference which could be present or isn't present in similar types of cases but here i see the real problem is tethering these two statements together it wasn't simply saying hey this witness would be in some trouble if they got up there and perhaps the government doesn't think they testified truthfully what this was was suggesting that the trial court itself had an ability to discern whether or not that testimony was truthful and the problem with and that was by virtue of explicitly saying this judge knows the facts of this case and the problem there is there was simply no evidence in the record to suggest that's true and it creates an up inference outside of facts presented to the jury that lends credibility to these  possible and that's one way to interpret this but that leads me to my biggest concern which is that your argument seems to be structured based on possible inferences the jurors could draw maybe they were intended to dr but but if if there's an objection the judge can step on those inferences pretty quickly and thoroughly the judge didn't have the opportunity to do that without an objection  here i agree there was not a objection lodged which certainly did deprive the judge the ability to rectify that situation at that point i mean could have stepped in but you're you're human as of now since it's missing a mistrial because he didn't do it on his own but it's there aren't takes an awful lot to get a judge to to step in well i mean i do agree but i think here this didn't warranted the intervention of the court and i think the the problem again is really that the tethering of those two statements individually are specifically the rhetorical question standing alone i don't think would have been as problematic but i think tying that to really and it hanssen of the trial courts both knowledge and suggesting that the trial court had a role in discerning whether or not that testimony was truthful really distorted what was going on unless the jury with the impression that these witnesses would have been testify truthfully when that wasn't simply the case i think it vouching were present here which did create sufficient prejudice and should have warranted intervention by the trial court i think the prosecutor also improperly argued by then asking that the jury to consider sort of the broader societal considerations which he put in place here and specifically that argument was that incentivizing witness testimony centrally offering cooperating witnesses deals was on ambiguously good for the criminal justice system and it was so because it a lot it was the only way in which law enforcement could prosecute upper echelon drug dealers and the only way to stop their went from flowing into central wisconsin this court's long held it's improper to ask a jury to return a verdict on considerations other than a defendant's innocence or guilt it's improper to ask a jury to send a message or to restore some civil order or to suggest that they are verdict will somehow hinder future law enforcement prosecutions and i think that was along the lines of what this argument was here instead of confining the the argument to just what evidence was presented to this jury which would have bolstered the credibility of any individual cooperating witness this shifted the focus to outside considerations and essentially was a utilitarian argument asking the jury to ignore or but accept the credibility questions they might have had about specific witnesses because there was a broader societal benefit in doing so and in fact this went one step further and didn't just say there's a broader societal benefit but if you fail to do so law enforcement is not going to be able to stop here one from coming in your very own communities from where these  which i think not only made this plainly improper but also really heighten the prejudice that was a play here and to that last point regarding prejudice because obviously the court doesn't need to simply find plain error but has to find the prejudice  flowing from that affected the outcome of this trial there are three points that i want to just briefly mention as to the nature and seriousness of these statements i think regarding the vouching it i think this takes from what might be sort of a benign error would be placing the government's own personal opinion behind these witnesses tethering it in fact to the trial court i think heightens that prejudice regarding the arguments about the broader societal considerations and asking the jury to consider those  mentioned it tied it to their very own communities which i think heighten the prejudice but most importantly that argument touched and really affected the jury's credibility determinations for all eight of the cooperating witnesses and when you balance that against the additional evidence or the overall body of evidence there's no question that mr jackson was a drug dealer he admitted that but that simply wasn't the question that the jury was called upon to answer and in order to substantiate all three of the counts against him the government needed the testimony of these cooperating witnesses and needed it to be credited by the jury and because these arguments infected those credibility terminations for all of these witnesses it really made the prejudice pervasive which i think warrants a reversal in this matter so absent any other questions from the court i will reserve the remainder of my time for rebuttal shortly mr rose thank you drawn from portage county the federal district court when trials are held in madison due to not pull from the courts county but let's get right to it in retrospect my forwards he knows effects were regrettable but in the context of the entire case those four words words did not undermine the evidence the overwhelming evidence that if in its case the government's argument that the three witnesses bell hall and tompkins had a disincentive to lie before judge calmly was a commonsense response to the to the opening statement the defense opening statement that the government's witnesses were unbelievable because they were paid for the overall the government's argument that the there to governments witnesses desire to sensing a reduction was just the other side of the coin of exactly what the defense was saying and the government said yeah i agree they do wa sensing reduction but ended and i pointed out it's your self interest aligned with credibility similarly there was no lawyer in talking about the practical way cooperation works and i tied that particularly three the argument did not invite the jurors to consider the concept the societal consequences of the verdict at all but again it was responding to the defense argument that the government used cooperation in pay to these cooperated they found phone finding evidence of the defendant curley jackson's guilt and again there's nothing about the government's argument tied to the this practical pragmatic discussion of evidence to the verdict morant the most important thing is the defendant can't shell as he must on the plane or standard that the that the government's four words or several words affected his substantial rights in that so for two different reasons first of all judge connally explicitly told the jury to decide the facts based on the evidence in that the defense the attorneys arguments were not evidence the big thing is in both morgan and alexander talk about this that the most important thing is the weight of the case there was overwhelming evidence of the defendant's guilt in that breaks into four different categories first of all multiple witnesses testified that the tot conspirators that is including mr jackson distributed herron cooperat pulled funds that they directed heroin customers to each other to physically get heroin or to pay for heroin that had been previously supplied by another supplier abel supervisor coordinated the entire heroin distribution scheme multiple witnesses testified that the top tier distributors used others to test heroin and to transport heroin to central wisconsin and the hair all these witnesses were cooperated not just by each other but also by the physical and the electronic evidence in this case most importantly mr jackson's own words that if mr jackson was in a series of calls with his brother who the conversations they set up a drug deal where mr jackson agreed to deliver heroin at mr hall's request mr hall being incarcerated ms bell was corroborated by the money gram records she was also prop text messages setting up the transaction or corroborated by the actual heroin that was delivered photos of the transaction and then a phone analysis of actual analysis showed that i'm the one hand the defendant communicated with mr raydon back by phone and text messaged to set up the deal and that the defendant communicated with ms bell for the delivery in some you know again it was you know is regrettable is my forwards is my mistake but there was overwhelming evidence of the defendant guilt and it did those four words don't undermine the whole case three days of overwhelming testimony against mr jackson that's it for the united states and the questions of price down thank first whether or not the jury was instructed is one of the five factors the courts to consider and i think while there was certainly the standard jury instruction about that they should you know side the case on the evidence not the attorney's arguments i don't think the physical electronic evidence that existed here simply put was not sufficient to establish convictions on any of the three counts in there were there was evidence to be sure that mr jackson distributed drugs during the period of the conspiracy but his defense was that he was a buyer and had a buyer seller relationship with some of these people the corroboration always relied on the testimony of the eight different cooperated witnesses and thereby the credibility determinations that the jury had to make on those it is really what makes the difference between whether or not there was a conviction here or not and because the credibility determinations were affected by these improper arguments that is where we have the problem o