jewish judicial proceedings or where failing to reverse a conviction would amount to a miscarriage of justice and we find that in the next case there are two methods by which a prosecutor can improperly vouch for a witness the first is by placing the prestigious of the government behind a witness through personal assurances of the witnesses veracity and the second is by suggesting that information not presented to the jury supports the witness's testimony and we find that in u roberts we have both occurring in this case this is especially significant here because the credibility of the two witnesses was the driving force behind the ultimate conviction this is particularly true as to the second alleged fraudulent transaction the maureen dr transaction the testimony at the trial and there were substantive counts as to the marine drive transaction for which mr kosofsky was convicted the only evidence as it relates to the maureen drive transaction was the testimony of mr correction there was no paper trail as to mr corsan e he was not the realtor he was not the mortgage broker he did not set up shell corporations as the two cooperating witnesses testif and there was no record of him receiving any compensation related to that transaction the conviction on those counts rested soley and entirely on the testimony of mr cressy and this is significant when it comes down to analyzing whether the error in this first mentioned the plea agreement brought the plea agreement up during the trial prosecutor on direct examination first in opening statement the prosecutor outlined that these two witnesses are not coming in out of the goodness of their heart they're coming in because they have pleaded guilty and  cooperating with the government that's the first reference to anybody taking a plea agreement that is going to testify in the case in response to that in the appellants opening statement he stated that the testimony of those witnesses is going to be motivated that they have pled guilty to a fraud which means they have admitted to lying in the past and that the government has made a deal with the devil that was in the appellants opening statement responding to the opening statement of the prosecutor which is found at the our thirty six the government's opening statement then what we have on direct examination is the prosecutor asking what are your obligations under the clear agreement to which m well first i don't believe there was and the reason for that is that the government was the first to raise the fact that a guilty plea agreement had been entered into by the two cooperating witnesses and that they are testifying under  or at least pulling it a crack open inviting the defense lawyer to then make an argument and then say oh well now he's open the door so they they elicit a response from the defense lawyer that was engaged in the opening statement that he presented to the jury and now they want to take advantage of that and say that this was an invited response to what he did but it's the opposite this was an invited response to the prosecutor's opening statement where he specifically referenced it to cooperate as testifying pursu a plea agreements but it gets worse in this case because it takes it even further than the us versus roberts holding and i understand that the government sites dorsey where it says that you can introduce the truthfulness requirements of a clear agreement if it is in response to attack on credibility but what we have here is worse we have the type of thing that was expressed lee discussed in the u s versus combs case where we have to weigh all of the factors we have direct vouching in the form of the following during the government's rebuttal closing argument in this is the second form of vouching where the government actually tells the jury that the person has told the truth so after going through all of the true this requirements in a clear agreement saying you're obligated to tell the truth it's the government that makes that determination it's the government that decides whether or not we recommend a low sentence to the court it's the government that decides whether you have blown up your plea agreement as one of the witnesses had described it they say the following in their rebuttal closing argument i can't even imagine what it must have been like for him mr correction to tell his kids that they couldn't see their cousins their friends anymore because something daddy did and it wasn't just a crime that meant this had to happen it was his cooperation with the government and his telling the truth about his cause to problems with that statement number one the prosecutor just vouched for the truthfulness of the testimony after having gone  frankly he's not saying that i know from outside sources that he's telling the truth and he's obviously arguing in favor of the testimony being given by the west witnesses he called unsponsored as being truthful and that's that's kind of inher there's nothing there about that well but then he specifically says it was his cooperation with the government and his telling the truth about his cousin that caused them to no longer have this relation so how does that suggest the government or the prosecutor has extradition information corroborate what the witness says but of course i'm not sharing that with the you take my word for it that's vouching in isolation let's here in isolation i would agree but let's look at the next attack that occurred during the rebuttal closing argument the prosecutor then says the following but the question is not whether they lied in the past referencing these two cooperated witnesses and defense counsel's argument that by admitting to a fraud they are admitted to being liars it is not question whether they lied in the past the question is whether they were lying to you on the stand and i submit they weren't excerpt of record twelve fifty three so when we did is that anything more than a figure of speech no i submit that they were i submit that the cubs are going to win the world series this year well the prosecutor has a special on a come santa can i say prosecutor has a special obligation in the criminal justice system where they cannot vouch it's u s b roberts to introduce a plea agreement truthfulness requirements you couple that with the extra judicial statement regarding talking to the judge saying that i submit is a figure of speech and doesn't suggest anything more than that is what isn't it in fact the classic way in which you say i think you aside you have my point i understand the point however i would respectfully submit that in this case when you look at the totality of the circumstances as we have to do under u s versus combs you can't just look at one isolated incident you look at truthful and they're the ones asking the questions then you have in the closing statement where he says i can't imagine the conversation that you can't talk to your cousins anymore it's because he cooperated and told the truth and then you have further to that that i submit they were telling the truth in response to the defense lawyers argument that the witnesses lack credibility when you couple it all together and you take the clear fact that the only evidence related to the marine drive transaction was mr  testimony it becomes problematic under all of the cases even though the roberts case has become glossed as that the court said in us we shot it is the and the problem and roberts has a specific argument and says there's this detectives sitting here monitoring the witness's testimony to make sure that he stays truthful than anything like that here we have the prosecutor saying that you're acquired to tell the truth and i'm the one who gets to decide it and then in closing argument saying i submit that he told the truth ok moving on to the second issue with the limited time i have the district court does not share what this court has in reviewing a guideline sentence being presumptive the district court is not allowed to assume that a guideline sentences presumptive and in this case what the court did was place a burden on mr cassani to take the case outside of the heartlands of the guideline well our decisions tell the district court start that different because here's what happened you have mr casady who's forty two at the time of his sentencing in this case he committed the allegedly committed the offense it thirty six years old no criminal history whatsoever married for seventeen years four daughters from age one nine twelve and sixteen letter after letter establishing his character work history and that this was average conduct and that's it excerpt but the question is is there anything in the record that shows that the court did not start with the guidelines as a starting point and then went on from there the court start you're correct the court started with the guidelines advise the defendant what the guideline range was but then placed the burden on the defendant to take the case out of the guidelines and what the court said was the following found that mr casady had no criminal history was a dedicated family man had strong family support had strong family then concluded i just don't see anything that pulls this case out of the guidelines with the possible exception of sentencing disparity and what that was is that the to cooperate in witnesses receive a sentence of one day however what the court didn't take into consideration  had a second indictment just the two of them alleging additional fraudulent transactions and they engaged in a cover up scheme at the real estate division of structuring justice so that they wouldn't get caught compared to mr casady having been directly involved according to the trial testimony in only one transaction the court then stated notwithstanding i appreciate the arguments of the defense they are well made and they're well presented but i don't feel that they take me out of the sentencing guidelines as i look at this again placing a burden on mr casady to remove the case from the guidelines when in reality the guidelines are one factor and they cannot be presumed to be correct at the district court level and when we look at the kimbrough decision and from the government weight to those guidelines the court did start with the guidelines it determined that the p s r calculation of the sentencing range was correct the court then discussed the relevant thirty five fifty three eight it talked about his support of close family and that he had no criminal history prior to this and he also talked about his sentencing potential sentencing disparity with anita math there and showing correction but the fact that those defendants had pleaded guilty and entered into an agreement with the government to cooperate in this case that the government had issued five k one point one later in this case for departures it weighed those factors and they considered all of mr corsan these arguments that's clear from the record the court's decision to impose a sentence at the lowest end of the relevant guideline range does not establish in any manner that the court presume that the range was reasonable or that it gave those guidelines and to weight the court's statement that i don't see anything that takes this case out of the guideline is not a presumption that the guideline range was reasonable it's a conclusion after weighing all of the factors and looking at all of the evidence in this case that a sentence within the guidelines range was reasonable the one possible single exception does not rise to the level of reversible plain error it did not affect his substantial rights it could not have affected the verdict in this case and certainly a miscarriage of justice will not result if this court does not reverse his conviction as this court has pointed out faction is the gift giving of a personal assurance of a witness's ferocity and there's only one possible instance where that the question is not whether the witnesses lied in the past but whether they lied on the stand and i submit that they did not that is the only possible instance of that action in this case prosecutors are drilled to try to avoid the first and an argument and yet it does work its way and it worked its way in here how is that not putting the prosecutor himself on the line then and sang believe me haven't seen it in many cases in all candor where a prosecutor says that after talking about whether a witness lie or concerning the witnesses for us and so that's the only instance the incentive to tell the truth and the consequences of being untruthful on direct examination in my experience i find that to be unusual well your honor the fact that the government introduced  guilty it's oftentimes done in order to soften the blow i cross examination that's not the problem if if they'd simply said that these are people that have done bad things and they pleaded guilty we wouldn't have this argument about balancing the problem is the emphasis on the the truth while this provision and the fact that if the government decides that this testimony being offered up isn't truthful translated to doesn't satisfy the showing a correction is simply that the government asked them whether they had pleaded guilty what they pleaded guilty to they both said that they pleaded guilty to conspiracy and they were asked what their obligations were under those plea agreements and both of them said that they were obligated to testify truthfully that's all there her it was mr cosigning who attacked ever asked city repeatedly during opening statement he he said that they had made a deal with the devil he's talked about their testimony being motivated and the word liar liar liar was just repeated and repeated and repeated during his opening he is the one who introduced the actual plea reman sneddon's who had them marks who had them introduce you nevin insists exhibits he is the one who had the witnesses read the actual truth telling for existence to the jury it was not the government and he was the one who introduced this substantial assistance sections to the jury it was not the government but the government said on region rect examination was asked by witnesses what would happen if they lied during their testimony i'm sure this court's decision and dorsey that is precisely the type of testimony that is permitted in response to a defendant's challenges to the witnesses credibility based on those pl truth was again in response to persistent attacks by the defense counsel when closing that they were liars and i chaffed of the word liar at least twenty times during his closing examination under this court's decision and parker it's certainly proper to tell the jury about the incentive to tell the truth after those types of attacks on credibility unless the court has  so this is a us a who was i gather teen jansha lee involved in the case but but not very directly comes into but enough that he came into the courtroom during the trial and he sees a juror that he knows he knows and he knows him well and he is and the court is so informed and the juror sort of denies knowing him any as well as the usa have indicated and also notwithstanding that the court system of the juror no of course don't speculate as to why we're making these questions he wasn't involved in the case that your begins a source speculate a little you're if they're in the original for deer there wasn't a direct question about mr shy but there was questions about other people and are you saying that if it sure on for dear lives and says i don't know x way does the prosecutor and defense counsel for that matter that that's not cause to remove as you're on this card so it's not just a pay cruel seventy five the wrecker and yet the jurors sort of we had a few conversations jurors says are right that their children knew each other and that they had two or three lengthy conversations during their relationship and i think that people can have different perceptions of relationships with each other and that was sure robert's perception i don't think that he's not telling the truth that the court questioned him extensively and listen to his responses about the fact that he could be one hundred percent fair and impartial the court said that it had watched him during the to think that your roberts answered i'm sure if pulling him back when there juror was questions when he was called into the court he said that he didn't even remember that he had been an attorney and that when he saw a anderson thank you here a model thank you just briefly i'd like to touch on that last issue it should be noted that mr she's was quite candid when he provided testimony in reference to his relationship with her or robert's and what mr she said was that their children are friends that they went to church together that he's been to his house on two occasions to help with floats so he detailed his friendship or relationship with the juror and the jurors version was completely inconsistent with that and i believe that that can form the basis for actual bias which can even be demonstrated through circumstantial evidence under us we olson and we do have that in this case mr appellate courts only use two peremptory challenges during the jury selection to remove people that had any affiliation with the government it's clear that he would have used a challenge had this been brought out in forty or going back to the vouching putting it in context i understand we're stuck on this word and i submit in reference to the truthfulness but if we take that whole paragraph in context if i were to choose if i were mr to nazis were world and i were going to choose a conspiracy to participate in it would be a fraud conspiracy because that would mean that everybody else who worked with me if they eventually saw that with what they had done was wrong and if they came to testify against me they can just be dismissed out of hand as liars but the question is not whether they lied in the past the question is whether they were lying here to you on the stand and i submit they weren't and then we have in some ation of the closing argument on both these witnesses an mather and sean cressy they haven't sentence under the plea agreement to do one thing and those plea agreements are both in evidence and that is to tell the truth and they both told you that if they lie their deals went out the window whatever they hope to get from the government either in a break in sentencing or frankly just to have a break for the plea agreement they have every incentive in the world and it does come from the plea agreement their only incentive is to tell the truth because if they don't tell the truth here things get infinitely worse than they already were just by having committed the crime in the first place and we take all of that in totality along with a cumulative error which the court is permitted to consider it certainly rises to the level of play an error affecting the fairness and integrity of the trial and should