## F I L E D United States Court of Appeals Tenth Circuit 

### April 26, 2006
Elisabeth A. Shumaker Clerk of Court PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. GARY WADE HARLOW, II, Defendant-Appellant. No. 04-8074

Appeal from the United States District Court

for the District of Wyoming (D.C. No. 03-CR-232-ABJ)
L. Robert Murray, Assistant United States Attorney (Matthew H. Mead, United States Attorney, with him on the brief), Cheyenne, Wyoming, for PlaintiffAppellee. John M. Nicholson (Douglas C. McNabb with him on th e briefs) of McNabb Associates, P.C., Houston, Texas, for Defendant-App ellant.

Before O’BRIEN, ANDERSON and McCONNELL , Circuit Judges.

O’Brien , Circuit Judge.

On November 20, 2003, Gary Wade Harlow, II, and Larry Parker were-2-

indicted for conspiracy to possess and distribute m ore than 500 grams of methamphetamine under 21 U.S.C. § 841(a)(1) and (b) (1)(A). On December 30, 2003, Harlow pled not guilty. Parker subsequently entered into a plea agreement with the government, leaving Harlow as the sole defendant at trial. After a threeday jury trial, the jury returned a guilty verdict on April 7, 2004. On appeal, Harlow alleges the prosecutor impermissibly vouchedfor the credibility of key witnesses and the district court deprived him of hi s right to poll the jury. We exercise jurisdiction under 28 U.S.C. § 1291 and AF FIRM. I. Background This case is the last in a series of trials based upon a methamphetamine distribution conspiracy in Gillette, Wyoming, knownas the Wolverine Trenching Conspiracy. Harlow, an employee at Wolverine Trenc hing, was convicted of conspiracy to distribute more than 500 grams of met hamphetamine based primarily on his involvement in a delivery of over one pound of methamphetamine from Gillette, Wyoming, to Buna, Te xas. During Harlow’s trial, the government called six witnesses to testi fy against him. Five of these witnesses were co-conspirators who had entered guil ty pleas pursuant to agreements with the government: Jessie Janway, Rhe tt Flint, John Villa, Clinton Tullier and Larry Parker. Three of these witnesses , Janway, Flint and Villa, had already received sentence reductions for their back ground testimony in prior cases-3-

involving the same underlying drug conspiracy. Dur ing the examination of these three witnesses, the prosecutor introduced their pl ea agreements, referring to the agreements’ cooperation and truthfulness provisions . In addition, he introduced the government’s Rule 35(b) motions recommending se ntence reductions for these witnesses based on their prior testimony, and theirsentence reduction orders signed by the Honorable Alan B. Johnson, the judge at Harlow’s trial. The evidence and testimony were received without object ion from Harlow’s trial counsel. The relevant provisions of all three witnesses’ ple a agreements were identical. So too was the prosecutor’s examination of the witnesses when introducing the government’s motions for a reductio n in sentence and the district court’s order granting the motion. The prosecutor’ s exchange with Janway is typical: Q. Okay. 7-A, that would be [a] motion to reduce yo ur sentence correct? A. Yes, sir. Q. And the very last page, that would be Judge Johns on’s order reducing your sentence; correct? A. Yes, sir.

. . . Q. So you received –- today you’ve already received the benefit of your plea agreement; correct?-4-

A. Yes, sir. (R. at 135-36. See also , R. at 148-49, 164-65.) In the examination of the remaining co-conspirators, Tullier and Parker, the prosecutor again referred to the cooperation and truthfulness provisions when introd ucing their plea agreements, and discussed the possibility of a sentence reducti on upon the government’s recommendation without objection from Harlow’s coun sel. During closing argument, Harlow’s counsel returned to a theme developed in his opening argument and carried throughout his cross-examination of the coconspirators. He argued that the prosecutor was re lying on “snitch testimony, testimony that is essentially . . . purchased by th e government in the form of time . . . less prison time.” Harlow’s counsel characte rized the “snitch testimony” as “unreliable” and asserted that a witness “knows the score. [He] knows what he needs to do here in Wyoming to help himself out,” a nd “[h]e only has to put a slight twist on his testimony to get the benefit he re.” (Appellee App. at 341, 343- 44.) In rebuttal, the prosecutor argued: You know, the government always - it just doesn’t m atter. Any case where you call coconspirators to testify against th e other coconspirators, we’ve suddenly hopped in bed with the defendants, the coconspirators, and we’ve hopped in bed with drug dealers. It’s the law, ladies and gentlemen. Congress has a partin that process. [It passes] laws that allow the government to give breaks to cooperating coconspirator drug dealers. Separationof powers. It’s-5-

all here. Congress allows it to happen. The execu tive branch, representing the executive, we’re involved. We use them as witnesses. But what’s really important, and you ca n have a chance to take a look at this, you’ve got the orders reducing their sentences signed by the judicial branch, Judge Johnson. (R. at 271; Appellee App. at 354.) After closing arguments, the final instructions inc luded the following credibility instruction: The testimony of an alleged accomplice or coconspir ator or someone who said he or she participated with another personin the commission of a crime must be examined and weighed by the jury with greater care than the testimony of a witness w ho did not participate in the commission of a crime. Larry Pa rker, Clinton Tullier, John Villa, Jesse Janway, and Rhet Flint m ay be considered to be such witnesses in this case. The fact that an alleged accomplice or coconspirato r has entered a plea of guilty to the offense is not evidence of th e guilt of any other person, including the defendant, Gary Wade Harlow I I. The Jury must determine whether the testimony of an accompli ce or coconspirator has been affected by self-interest orby any agreement he may have with the United States . . . .

. . . The testimony of a witness who provides evidence ag ainst a defendant for personal advantage, sentence reductio n, must be examined and weighed by the jury with greater care than the testimony of an ordinary witness . . . .
(Appellee App. at 357-58.) Immediately after the trial court issued its instru ction, Harlow’s counsel approached the bench and moved for a mistrial or, i n the alternative, a curative-6-

instruction. He argued the government’s closing ar gument “suggested that because [the trial court’s] signature was on these [sentencing reduction orders] that somehow the [trial judge] was vouching for the credibility of these witnesses.” (Appellee App. at 361.) The district court denied the motion for a mistrial but granted the request for a curative ins truction. It gave the following instruction to the jury: There was reference made to me having signed an ord er approving a plea agreement by and between the parties. I’d exp lain to you that I review plea agreements and decide whether or not th ey violate any public policy as part of the duties that the judge has in every case. I don’t vouch for the credibility of any of the witne sses who have appeared here before this court. That is your job. That is not my job. And I don’t make that decision in a case. Yo u’re the ones who see the witnesses testify, consider their testimonyand, under the instructions of the Court, are the judges of the fa cts and the weight and credibility of the witnesses. (R. at 275; Appellee App. at 362.) After approximately three hours, the jury rendered its guilty verdict. Prior to entering judgment, the district court stated: “ Counsel, if you wish to examine the verdict, you should feel free to do so.” (R. at 278.) Harlow’s counsel did not respond. The court proceeded to discuss the case with the ju ry, stating this trial brought an end to a case that had been pending for a long time and had consumed considerable court resources; The district court th en commented on a personal conversation with Special Agent Hamilton (a governm ent witness during the trial)1 On June 30, 2004, Harlow’s trial counsel filed a m otion for a new trial

pursuant to Rule 33(b)(1) of the Federal Rules of C riminal Procedure based on newly discovered evidence. The motion also include d defense counsel’s request to withdraw and for the appointment of new counsel on appeal. The district court declined to hear Harlow’s motion for a new trial atthat time but asked defense counsel to submit a proposed order. Harlow’s propo sed order stated that the motion for a new trial should be denied. The distr ict court signed the proposed order and granted defense counsel’s motion to withd raw. In his opening brief, Harlow argued the district court erred by not rulin g on his motion for a new trial based on newly discovered evidence. However, in hi s reply brief, Harlow concedes his trial counsel’s proposed order prevent ed the district court from exercising its discretion and withdraws this argume nt on appeal. -7- which revealed that over 168 children in Gillette, Wyoming, were implicated in the use of methamphetamine provided by the conspira cy involving Harlow and the terrible impact of methamphetamine on communities. The court also advised the jurors that they had rendered a public service on p ar with the jurors of several highly publicized cases. At the conclusion of the court’s comments, Harlow’s counsel finally requested a poll. When asked indiv idually, each juror agreed with the verdict. On July 1, 2004, Harlow was sentenced to 120 months imprisonment. 1 Judgment was entered on July 6, 2004. On July 23, 2004, Harlow filed a notice of appeal through new counsel.
II. Discussion On appeal, Harlow argues: (1) the prosecutor improp erly vouched for the credibility of key witnesses and (2) the district c ourt deprived him of his right to a2 On appeal, Harlow does not challenge the introducti on of the plea

agreements, Rule 35(b) motions, or sentence reducti on orders as an evidentiary matter under the Federal Rules of Evidence.

3 The use of plea agreements and their truthfulness p rovisions on direct examination has also been challenged as a violation of the rule against bolstering credibility in Federal Rule of Evidence 608(a)(2). However, we have rejected such challenges. See United States v. Lord, 907 F.2d 1028, 1031 (10th Cir. 1990) (“it was not error for the trial court to allow the government, during its direct examination, to present evidence of the agreements between the government and the witnesses, including testimony concerning the t ruthfulness provisions contained in those agreements.” ). Harlow discusses the issue but does not raise it as a challenge to the proceedings below. -8- jury poll. A. Vouching Harlow contends the prosecutor’s introduction of wi tnesses’ plea agreements, Rule 35(b) motions and sentence reducti on orders, 2 coupled with the prosecutor’s statement in rebuttal closing argumentimplying that the judge had signed off on the credibility of these witnesses, c onstituted impermissible vouching. 3 1. Introduction of Evidence Because Harlow did not object to the admission of t his evidence and testimony, we review for plain error. United States v. Magallanez , 408 F.3d 672, 679-80 (10th Cir.), cert. denied, 126 S.Ct. 468 (2005). “Plain error is fundamentalerror, something so basic, so prejudicial, so lack ing in its elements that justice cannot have been done.” United States v. Henning, 906 F.2d 1392,-9-

1397 (10th Cir.1990) (internal quotation omitted). Before we can correct an error not raised at trial, the defendant must establish: (1) error, (2) that is plain, and (3) that affects substantial rights. Jones v. United States , 527 U.S. 373, 389 (1999). If all three requirements are met, the defendant st ill must establish the error “seriously affected the fairness, integrity, or pub lic reputation of judicial proceedings.” Id . In cases involving the defendant’s failure to object, the defendant bears the burden of establishing the erro r impacted substantial rights by demonstrating the outcome of the trial would have b een different but for the error. United States v. McHorse , 179 F.3d 889, 903 (10th Cir. 1999). Thus, when reviewing vouching for plain error, we weigh the se riousness of the vouching in light of the context of the entire proceeding, incl uding the strength of any curative instructions and the closeness of the case. United States v. Roberts , 185 F.3d 1125, 1144 (10th Cir. 1999); United States v. Swafford, 766 F.2d 426, 428 (10th Cir. 1985). a. Witnesses Janway, Flint and Villa The prosecutor began the trial with the testimony o f Janway, Flint and Villa. Prior to the direct examination of each wit ness, the prosecutor established that each had entered into a plea agreement related to the conspiracy in this case. He then had each testify to the fact each had recei ved a reduction in their sentence based on their adherence to the agreement and that Judge Johnson, the trial judge-10-

in this case, had signed an order approving the red uction. The prosecutor then introduced the plea agreements, the 35(b) motions r equesting the reductions, and the order so granting. Harlow claims the admissionof this testimony together with these documents constitutes impermissible vouc hing and, as such, is plain

error. It is error for the prosecution to personally vouchfor the credibility of a witness. United States v. Bowie, 892 F.2d 1494, 1498 (10th Cir. 1990). Nonetheless, as Harlow concedes, it is perfectly pe rmissible for a prosecutor to introduce a witness’s plea agreement on direct exam ination, even if it includes a truthfulness provision. Magallanez , 408 F.3d at 680; Lord, 907 at 1031; Bowie , 892 F.2d at 1498-99. A prosecutor may also discuss the truthfulness provision and make sure the witness is aware of the consequen ces of failing to tell the truth.
Bowie , 892 F.2d at 1499. This is intended to allow the prosecutor to head off claims that the witness’ testimony is suspect due t o the plea agreement. “Use of the ‘truthfulness’ portions of [plea] agreements be comes impermissible vouching only when the prosecutors explicitly or implicitly indicate that they can monitor and accurately verify the truthfulness of the witne ss’ testimony.” Id . at 1498. Such independent verification can take the form of statements about polygraph tests or detective monitoring. Id

. Harlow argues that vouching occurred when the jury was given the-11-

provisions of the plea agreement in conjunction wit h the evidence that the prosecutor moved for the benefits thereunder and th e judge issued his approval. At that point, the jury could very reasonably inferthat not only had these witnesses promised to tell the truth, but the prose cutor and the judge had verified their testimony via the motion and order—testimony consistent with their testimony at this trial. “Argument or evidence is impermissible vouching . . . if the jury could reasonably believe that the prosecutor is indicatin g a personal belief in the witness’ credibility, either through explicit perso nal assurances of the witness’ veracity or by implicitly indicating that informati on not presented to the jury supports the witness’ testimony.” Id. The relevant portions of the provisions in the plea agreements provided: 12(g). The Defendant agrees that if the United Stat es determines, in its sole discretion, that he has not provided full and truthful cooperation . . . the plea agreement may be voided by the United States.

. . . 13. The Defendant agrees that he is willing to prov ide substantial assistance in the investigation or prosecution of o ther persons who may have committed criminal offenses. The Defendan t understands and agrees that a possible appropriate reduction of sentence . . . for such assistance shall be determined by the court. The Defendant agrees a possible sentence reduction can only occurupon the court’s evaluation of the significance and usefulness of th e Defendant’s assistance, taking into consideration the governmen t’s evaluation of the assistance rendered, the truthfulness, complete ness, and reliability of any information or any testimony pro vided by the-12-

Defendant.

. . . 16(d). If the United States determines, in its sole discretion, that the Defendant has fully, completely, and truthfully coo perated with the Untied States, the United States agrees to recommen d at the time of sentencing a downward departure . . . to reflect th e Defendant’s substantial assistance to the United States in this investigation by virtue of the information provided to authorities i nvolved in this matter and due to his ongoing truthful testimony an d truthful cooperation with law enforcement authorities. (R. at 42-43, 45; 59-60, 62; 91-92, 94.) Harlow argues that the introduction of section 12(g ) constitutes vouching by allowing the jury to infer that the prosecutor h ad verified the witness’ veracity prior to taking the stand in a prior case or else t he government would have rescinded the plea agreement. While that is a poss ibility under 12(g), even if coupled with the introduction of the Rule 35(b) mot ions and the sentence reduction orders, the provision’s language contains no explicit or implicit requirement that the prosecutor monitor or verify t he truthfulness of the witness’ testimony, it merely requires the witness to testif y truthfully or else the agreement
may be rescinded. One would hope a prosecutor had an expectation of truthfulness from every witness he called. Thus, v erified truthfulness is not a precondition to the witness testifying, and the gov ernment does not assume the burden of monitoring for accuracy. As Harlow conce des, the government was not required to rescind the plea agreement if it learne d the witness had not been-13-

truthful. At most, the jury could infer that the w itnesses’ testimony was consistent with that of earlier related trials. Sections 16(d) and 13 are more problematic. Sectio n 16(d) clearly states the government will recommend a downward sentence d eparture if the witness “fully, completely, and truthfully” testifies and t hat the reduction will be “due to his ongoing truthful testimony and truthful cooperation with law enforcement authorities.” This provision coupled with the intr oduction of the government’s Rule 35(b) motion implies that the government has v erified the truthfulness of the witness and believes that his ongoing testimony is truthful, which is why it made a motion for a sentence reduction. The jury could reasonably infer that the government would not have recommended such a downward departure if it had not independently verified the truthfulness of the testimony. This conclusion would be undermined if the government recommended asentence reduction for testimony given in an unrelated event, but such is not the case here. The three witnesses were given sentence reductions in exchang e for their testimony in a series of trials all relating to the same underlyin g methamphetamine drug conspiracy. The combination of section 16(d) with the introduction of the government’s Rule 35(b) motions amounts to prosecut orial vouching. Section 13 only compounds the matter. Not only doe s it reiterate the role of the government in recommending sentence reductio ns for truthful testimony, it-14-

also implicates the judge in the verification proce ss: The Defendant agrees a possible sentence reduction can only occur upon the court’s evaluation of the significance and usefulness of the Defendant’s assistance , taking into consideration the Government’s evaluation of the assistance rendered, the truthfulness, completeness, and reliability of any information or any testimonyprovided by the Defendant

. (R. at 43, 60, 92 (emphasis added).) The provision makes clear that a sentence reduction occurs as a result of the district court’ s evaluation of the testimony based on factors such as the “truthfulness, complet eness, and reliability” of the testimony. The award of a reduced sentence present ed to the jury in the form of a sentence reduction order confirms that a judge has found the witness’ testimony truthful. See United States v. Rudberg , 122 F.3d 1199, 1204-05 (9th Cir. 1997). The fact that the judge who authorized the sentence reduction is the same judge presiding at trial only underscores the problem. T herefore, we must conclude that it was error to allow the prosecutor to introduce t he plea agreements in conjunction with the Rule 35(b) motions and the sentence reduction orders.

b. Witnesses Tullier and Parker The prosecutor introduced Tullier and Parker’s pleaagreements into evidence and referred to the provisions therein reg arding their obligation to cooperate with the government and testify truthfull y at trial, as well as the consequences of violating the provisions. Here, ho wever, the prosecutor did not introduce anything other than the plea agreement. This, by itself, is acceptable.-15-

See Magallanez , 408 F.3d at 680 (approving discussion of the term s of plea agreements); Lord, 907 F.2d at 1031 (same); Bowie , 892 F.2d at 1498-99 (same) and United States v. Dunn , 841 F.2d 1026, 1030-31 (10th Cir. 1988) (approvin g admission of plea agreements into evidence); United States v. Bey , 188 F.3d 1, 7 (1st Cir. 1999) (same).

c. Plain Error Although we conclude the introduction of sections 1 3 and 16(d) during the testimony of Janway, Flint and Villa, coupled with the introduction of the Rule 35(b) motions and the sentence reduction orders con stitutes error, Harlow must further demonstrate the outcome of the trial would have been different but for the error. A careful review of the transcript reveals he has failed to do so. Because there was no error in the admission of the plea agreements with two of the main witnesses, Tullier and Parker, Harl ow must establish a violation of his substantial rights stemming from the testimo ny of the three remaining coconspirators. “In determining whether the miscondu ct affected the outcome, we consider: ‘the curative acts of the district court, the extent of the misconduct, and the role of the misconduct within the case as a who le.’” United States v. Lonedog , 929 F.2d 568, 572 (10 thCir. 1991) (quoting United States v. Martinez-Nava, 838 F.2d 411, 416 (10th Cir. 1988)). By Harlow’s own a dmission, Janway, Flint and4According to Harlow, “Clinton Tullier and Larry Pa rker, Mr. Harlow’s codefendant, provided the only damaging evidence agai nst Mr. Harlow for the illfated trip to Texas that was, according to the gove rnment, the ‘centerpiece’ of the case against Mr. Harlow.” (Appellant’s Br. at 38.) -16- Villa were not the core of the government’s case. 4 They provided background testimony about the conspiracy. Indeed, when asked if Janway knew “whether or not [Harlow] was involved in any of the methampheta mine distribution activities,” Janway testified, “No, sir, not to my knowledge.” (Appellee’s App. at 156.) While Flint testified he “fronted” Harlow an ounce of methamphetamine at some time during a three month period, he could notremember when. (Appellee’s App. at 169.) However, when asked about the larger distribution on one pound of methamphetamine from Gillette to Texas , Flint testified he did not recall mentioning that Mr. Harlow was involved. (Appellee’s App. at 175.) Villa testified that Harlow “fronted” him three ounces of methamphetamine some time in late 2000. Villa had no first-hand knowledge of the Texas incident. He merely testified that, some time in early 2001, he had hea rd “supposedly [Harlow] had stoled [sic] I think it was about a pound of meth f rom . . . Wolverine Trenching.” (Appellee’s App. at 190.) However, Villa then test ified that when he spoke with Harlow about this rumor, Harlow denied it. (Id .) In fact, it was solely the testimony of Tullier and Parker that established fi rst-hand knowledge of Harlow’s involvement in the events surrounding the Texas del ivery.-17-

Harlow tries to avoid the collateral nature of Janw ay, Flint and Villa’s testimony by arguing that impermissible vouching of the credibility of three of the witnesses somehow tainted the testimony of Tullier and Parker, as the prosecutor introduced into evidence both of their plea agreeme nts. However, the prosecutor’s vouching of the three collateral witne sses occurred as a result of the introduction of their plea agreements combined with the introduction of their Rule 35(b) motions and sentence reduction orders. Such implicit vouching does not transfer to witnesses who noticeably have not recei ved similar consideration. Finally, to the extent the impermissible vouching o ccurred, the district court’s credibility instructions cured any error. The instructions clearly apprised the jurors of the court’s limited involvement, it w as their responsibility to evaluate the credibility of the witnesses, and the testimony of co-conspirators and individuals receiving special consideration must be examined even more critically than ordinary witnesses. Based on the above, the prosecutor’s introduction o f several witnesses’ plea agreements, coupled with the government’s Rule 35(b ) motions seeking reduction of these witnesses’ sentences and the sentence redu ction orders themselves constituted error in the form of impermissible vouc hing for the credibility of the witnesses. However, in light of the context of the entire proceeding, including the strength of the evidence against Harlow, and th e district court’s curative-18-

instruction, such error does not warrant a new tria l. 2. Prosecutor’s Rebuttal Closing Argument Harlow next claims the district court erred by fail ing to sustain his objection to the government's closing argument, whi ch he says impermissibly offered personal opinion as to the truthfulness of the co-conspirators testimony. In the context of this case, because Harlow contemp oraneously objected to the prosecutor's closing argument statements and moved for a mistrial based on what is, essentially, an allegation of prosecutorial mis conduct, we review the district court's denial of Harlow’s motion for a mistrial fo r an abuse of discretion. United States v. Broomfield, 201 F.3d 1270, 1276 (10th Cir. 2000). Applying th is standard, we conclude the district court did not ab use its discretion. Reviewing claims of prosecutorial misconduct entail s a two-step analysis. We must first determine whether the conduct was in fact improper. If the conduct was improper, we must then determine whether it warrants reversal. Lonedog , 929 F.2d at 572. Prosecutorial misconduct does notwarrant a new trial if it was harmless error. United States v. Alexander, 849 F.2d 1293, 1296 (10th Cir.1988). “The Supreme Court has articulated different harmle ss-error standards, depending upon whether the error is of constitutional dimensi on. A non-constitutional error is harmless unless it had a ‘substantial influence’ on the outcome or leaves one in ‘grave doubt’ as to whether it had such effect.” United States v. Rivera, 900 F.2d-19-

1462, 1469 (10th Cir. 1990) (en banc) (quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)). “On the other hand, most co nstitutional errors may be declared harmless only if we are convinced, beyond a reasonable doubt, that they did not affect the outcome of the trial.” Lonedog , 929 F.2d at 572.; see United
States v. Martinez , 890 F.2d 1088, 1094 (10th Cir. 1989). Improper v ouching for witnesses is not considered to impact an express co nstitutional right. See Cargle v. Mullin , 317 F.3d 1196, 1220 (10th Cir. 2003). Therefore, we treat vouching as a non-constitutional error and examine whether it h ad a substantial influence on the outcome, or leaves us in grave doubt as to whet her it had such an effect. In this case, the prosecutor’s statement in rebutta l closing argument makes explicit the problem implicit in the introduction o f the Rule 35(b) motions and the sentence reduction orders. Specifically, the prose cutor stated, Separation of powers. It’s all here. Congress all ows it to happen. The executive branch, representing the executive, w e’re involved. We use them as witnesses. But what’s really important, and you can have a chance to take a look at this, you’ve go the orders reducing their sentences signed by the judicial branch, Judge Johnson. (R. at 271.) Aside from his inelegant discussion of our triparti te system of government, the prosecutor stated Judge Johnson had signed off on the testimony of Janway, Flint and Villa. In our view, this violates the pr ohibition against vouching. While the prosecutor probably meant the jurors shou ld look at the sentence-20-

reduction orders as evidence that the judicial bran ch approves of sentence reductions and co-conspirator testimony in general, his statements to the jury were not so precise. Rather, he directed the jury to lo ok at the sentence reduction orders and attach special importance to them. This is too easily construed as a statement that “the judicial branch, Judge Johnson” had personally approved the credibility of the witnesses’ testimony by signing off on their sentence reduction orders. The government tries to defend the rebuttal argumen t by stating that defense counsel had impermissibly attacked the pros ecutor’s character and veracity. Though a prosecutor’s statements made in response to comments of defense counsel are given more latitude, such stand ard does not apply here. United States v. Janus Indus., 48 F.3d 1548, 1558 (10th Cir. 1995) (considerable latitude given to prosecutor in closing argument wh ere defense counsel “invites” argument). In his closing argument, defense counse l never named the prosecutor directly, called him a liar, or stated he had direc tly participated in creating false testimony. Rather, defense counsel confined himsel f to permissible challenges to the credibility of the government’s witnesses in li ght of the plea agreements. We conclude the prosecutor’s statements during rebuttal closing argument coupled with the introduction of the Rule 35(b) mot ions and sentence reduction orders were error. In Broomfield, we took the “opportunity to advise prosecutors-21-

against what we perceive to be an increasing willin gness to unnecessarily push the envelope of improper vouching.” 201 F.3d at 12 76. We repeat that admonition here. Nevertheless, we conclude the dis trict court did not abuse its discretion in denying Harlow’s motion for a new tri al. As discussed above, almost immediately after the closing arguments, the district court gave a clear and thorough curative instruction. This closely follow ed the prosecutor’s improper statements and sufficiently disabused the jury of a ny misimpression created by the prosecutor’s inartful closing argument. See Broomfield, 201 F.3d at 1277. Under these circumstances, we conclude the prosecutor’s c losing statements were not so egregious as to influence the jury to convict Harlo w on improper grounds and did not warrant reversal. Therefore, the district court did not abuse its discretion in presenting a curative instruction to the jury rathe r than declaring a mistrial. B. Jury Poll In Harlow’s second category of error, he argues the district denied him the right to poll the jury to ensure unanimity of the v erdict. He concedes that after the reading of the verdict, the district court offe red him a chance to examine it. However, he maintains he was given insufficient tim e to respond to the court’s invitation because the court immediately proceeded to advise the jury about a variety of issues related to the case. During this discussion, the district court allegedly confirmed Harlow’s guilt, thus rendering subsequent polling a nullity.-22-

After the discussion, but prior to the jury being d ismissed, Harlow’s counsel requested a poll, the result of which was a unanimo us verdict. Harlow argues on appeal that the district court’s statements interfe red with his absolute right of a poll and requires reversal. The government present s a two-fold response, (1) Harlow was afforded an opportunity to poll the jury , but waived it through inaction, and (2) a poll is sufficient when it is c onducted before the verdict is recorded and the jury is discharged, regardless of comments made by the judge. “Polling [the jury] is one means of ensuring unanim ity of a verdict.” United States v. Morris , 612 F.2d 483, 489 (10th Cir. 1979); see also Humphries v. District of Columbia , 174 U.S. 190, 194-95 (1899). To that end, Rule 3 1(d) provides: After a verdict is returned but before the jury is discharged, the court must on a party’s request, or may on its own, poll the jurors individually. If the poll reveals a lack of unanim ity, the court may direct the jury to deliberate further or may declar e a mistrial and discharge the jury. “[U]pon the appearance of any uncertainty or contin gency in a jury’s verdict, it is the duty of the trial judge to resolve that doubt . . . .” Morris , 612 F.2d at 489. Rule 31(d) does not require a poll unless a party r equests it, “but the parties must be afforded a reasonable amount of time within which to make the request.” United States v. Randle , 966 F.2d 1209, 1214 (7th Cir. 1992). The failure to request a poll prior to the recording of the verdic t waives the right. United States-23-

v. Neal , 365 F.2d 188, 190 (6th Cir. 1966). Thus, “the di strict court, after the verdict has been read, [must] afford both counsel areasonable opportunity to request a poll.” Randle , 966 F.2d at 1214. The district court can accompl ish this by “inquir[ing] of both counsel if either has anyth ing further before the jury is discharged, which, of course, invites the request t o poll.” Id . Failure to allow a reasonable opportunity to poll prior to the distric t court discussing with the jury otherwise inadmissable evidence constitutes reversi ble error as it denies a meaningful opportunity to ensure the unanimity of t he jury. Id .; United States v.
Marinari , 32 F.3d 1209, 1212-13 (7th Cir. 1994). As an initial matter, the government’s argument that the request and execution of a poll prior to the verdict being reco rded and the discharge of the jury automatically satisfies the requirements of Ru le 31(d), regardless of any comments made by the judge, is unfounded. It is tr ue that the poll must be requested and executed prior to the verdict being r ecorded and the jury discharged, Miranda v. United States , 255 F.2d 9, 19 (1st Cir. 1958); Marinari , 32 F.3d at 1214, but intervening comments by a judg e can undermine the defendant’s right to poll the jury. The issue in t his case is whether Harlow was afforded a reasonable opportunity to poll the jury prior to the judge’s potentially prejudicial comments. The seventh circuit’s opinion in Randle is instructive. In that case, one and-24-

a half seconds elapsed between the return of the ju ry’s verdict and the district court’s reading of a probation officer’s memorandumincluding the defendant’s arrest record. 966 F.2d at 1214. Twelve seconds l ater, defense counsel objected, but by then the damage was done. Id . On appeal, the seventh circuit noted that “[a]lthough the district court may have thought that interval [of one second] sufficient time to allow counsel to request a poll, even the fastest thinking attorney could not have anticipated that the judge had concluded his remarks and was waiting for a request to poll.” Id . The court held: The interval in this case clearly was inadequate. We . . . require the district court to afford both counsel a reasonable opportunity to request a poll. Because what is a reasonable time is fact specific and defies precise parameters, the better practice is f or the district court to inquire of both counsel if either has anything f urther before the jury is discharged, which, of course, invites the r equest to poll. Id . Thus, the court reversed the district court’s de nial of a mistrial and remanded for a new trial. Id . The seventh circuit’s opinion stands for two pro positions relevant to this case: (1) comments made by a judge prior to a request to poll can irreparably damage the defendant’s right to poll; a nd (2) a district court should afford the parties a reasonable time to request a p oll and can satisfy this requirement by inquiring of the parties if they hav e anything further before the jury is discharged. In this case, the district court’s comments to the jury appear to have the potential to prejudice Harlow’s right to poll the j ury. Harlow is right to point out-25-

that such comments implied that the juror’s verdictwas accurate. See Quercia v. United States , 289 U.S. 466, 470 (1933) (“The influence of the t rial judge on the jury is necessarily and properly of great weight an d his lightest word or intimation is received with deference, and may prove controlli ng.”) (internal quotation omitted). Such comments clearly present the possib ility of changing a juror’s otherwise uncertain guilty vote into a certain one. As the government points out, however, all of the d istrict court’s comments commenced after it expressly gave Harlow an opportu nity to poll the jury. In fact, the district court went beyond merely asking whether the parties had “anything further” and specifically asked if Harlow would like to “examine the verdict.” Nor does it appear that the district cou rt proceeded too quickly after making the offer to examine the verdict. In this c ase, the district court’s comments do not appear pose the risk of prejudice u ntil the discussion of its conversation with Special Agent Hamilton. The laps e of time between the reading of the verdict and the beginning of the pot entially prejudicial comments was sufficient to allow Harlow to exercise his right to request a poll, in light of a specific invitation to do so. Thus, Harlow’s delayin requesting a poll vitiates any error attributable to the district court’s interven ing comments between its specific invitation to poll the jury and Harlow’s poll reque st.-26- III. Cumulative Error Harlow argues that even if we conclude all of the a lleged individual errors are harmless, their combined effect results in a fu ndamentally unfair trial and requires reversal. The government’s position is th at Harlow has not shown actual error and therefore, there is no error to cumulate. The cumulative error analysis’ purpose is to addres s whether the “cumulative effect of two or more individually harm less errors has the potential to prejudice a defendant to the same extent as a singl e reversible error.” United
States v. Rosario Fuentez , 231 F.3d 700, 709 (10th Cir. 2000). “A cumulativ eerror analysis merely aggregates all the errors that individually have been found to be harmless, and therefore not reversible, and i t analyzes whether their cumulative effect on the outcome of the trial is su ch that collectively they can no longer be determined to be harmless.” United States v. Sarracino , 340 F.3d 1148, 1169 (10th Cir. 2003), cert. denied sub nom , 540 U.S. 1131 & 540 U.S. 1133 (2004) (internal quotation omitted). “Unless an ag gregate harmlessness determination can be made, collective error will ma ndate reversal, just as surely as will individual error that cannot be considered harmless. The harmlessness of cumulative error is determined by conducting the sa me inquiry as for individual error – courts look to see whether the defendant's substantial rights were affected.” Id . However, we evaluate only the effect of matters determined to be-27-

error, not the cumulative effect of non-errors. United States v. Rivera , 900 F.2d 1462, 1471 (10th Cir. 1990). At best, Harlow can only demonstrate error attribut able to the prosecutor’s impermissible vouching for the credibility of three of the witnesses in the form of his introduction of the Rule 35(b) motions and sent ence reduction orders and his closing argument. Because we have concluded the in stances of vouching did not, together, affect Harlow’s substantial rights, these errors cannot constitute cumulative error. There are no other errors to add

. IV. Conclusion For the reasons given, Harlow’s conviction is AFFIRMED . The motion to withdraw John M. Nicholson as counsel for appellantis granted.