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 the briefs) of McNabb

Associates, P.C., Houston, Texas, for Defendant-Appellant.

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

O’Brien, Circuit Judge.

On November 20, 2003, Gary Wade Harlow, II, and Larry Parker were
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indicted for conspiracy to possess and distribute more 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 vouched for the credibility of key

witnesses and the district court deprived him of his right to poll the jury. We

exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

I. Background

This case is the last in a series of trials based upon a methamphetamine

distribution conspiracy in Gillette, Wyoming, known as the Wolverine Trenching

Conspiracy. Harlow, an employee at Wolverine Trenching, was convicted of

conspiracy to distribute more than 500 grams of methamphetamine based

primarily on his involvement in a delivery of over one pound of

methamphetamine from Gillette, Wyoming, to Buna, Texas. During Harlow’s

trial, the government called six witnesses to testify against him. Five of these

witnesses were co-conspirators who had entered guilty pleas pursuant to

agreements with the government: Jessie Janway, Rhett Flint, John Villa, Clinton

Tullier and Larry Parker. Three of these witnesses, Janway, Flint and Villa, had

already received sentence reductions for their background testimony in prior cases
-3-

involving the same underlying drug conspiracy. During the examination of these

three witnesses, the prosecutor introduced their plea agreements, referring to the

agreements’ cooperation and truthfulness provisions. In addition, he introduced

the government’s Rule 35(b) motions recommending sentence reductions for these

witnesses based on their prior testimony, and their sentence reduction orders

signed by the Honorable Alan B. Johnson, the judge at Harlow’s trial. The

evidence and testimony were received without objection from Harlow’s trial

counsel. 

The relevant provisions of all three witnesses’ plea agreements were

identical. So too was the prosecutor’s examination of the witnesses when

introducing the government’s motions for a reduction 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 your sentence

correct?

A. Yes, sir.

Q. And the very last page, that would be Judge Johnson’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?
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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 introducing their plea agreements,

and discussed the possibility of a sentence reduction upon the government’s

recommendation without objection from Harlow’s counsel.

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 relying on “snitch testimony,

testimony that is essentially . . . purchased by the government in the form of time

. . . less prison time.” Harlow’s counsel characterized 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,” and “[h]e only has to put a

slight twist on his testimony to get the benefit here.” (Appellee App. at 341, 343-

44.)

In rebuttal, the prosecutor argued:

You know, the government always - it just doesn’t matter. Any case

where you call coconspirators to testify against the 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 part in that process. 

[It passes] laws that allow the government to give breaks to

cooperating coconspirator drug dealers. Separation of powers. It’s
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all here. Congress allows it to happen. The executive branch,

representing the executive, we’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 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 included the following

credibility instruction:

The testimony of an alleged accomplice or coconspirator or someone

who said he or she participated with another person in the

commission of a crime must be examined and weighed by the jury

with greater care than the testimony of a witness who did not

participate in the commission of a crime. Larry Parker, Clinton

Tullier, John Villa, Jesse Janway, and Rhet Flint may be considered

to be such witnesses in this case.

The fact that an alleged accomplice or coconspirator has entered a

plea of guilty to the offense is not evidence of the guilt of any other

person, including the defendant, Gary Wade Harlow II. The Jury

must determine whether the testimony of an accomplice or

coconspirator has been affected by self-interest or by any agreement

he may have with the United States . . . .

. . .

The testimony of a witness who provides evidence against a

defendant for personal advantage, sentence reduction, 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 instruction, Harlow’s counsel

approached the bench and moved for a mistrial or, in the alternative, a curative
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instruction. He argued the government’s closing argument “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 instruction. It gave the following

instruction to the jury:

There was reference made to me having signed an order approving a

plea agreement by and between the parties. I’d explain to you that I

review plea agreements and decide whether or not they 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 witnesses 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. You’re the ones who

see the witnesses testify, consider their testimony and, under the

instructions of the Court, are the judges of the facts 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 jury, 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 then commented on a personal

conversation with Special Agent Hamilton (a government witness during the trial)
1

 On June 30, 2004, Harlow’s trial counsel filed a motion for a new trial

pursuant to Rule 33(b)(1) of the Federal Rules of Criminal Procedure based on

newly discovered evidence. The motion also included 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 at that time but asked defense

counsel to submit a proposed order. Harlow’s proposed order stated that the

motion for a new trial should be denied. The district court signed the proposed

order and granted defense counsel’s motion to withdraw. In his opening brief,

Harlow argued the district court erred by not ruling on his motion for a new trial

based on newly discovered evidence. However, in his reply brief, Harlow

concedes his trial counsel’s proposed order prevented the district court from

exercising its discretion and withdraws this argument on appeal. 

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which revealed that over 168 children in Gillette, Wyoming, were implicated in

the use of methamphetamine provided by the conspiracy involving Harlow and the

terrible impact of methamphetamine on communities. The court also advised the

jurors that they had rendered a public service on par 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 individually, 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 improperly vouched for the

credibility of key witnesses and (2) the district court deprived him of his right to a
2On appeal, Harlow does not challenge the introduction of the plea

agreements, Rule 35(b) motions, or sentence reduction orders as an evidentiary

matter under the Federal Rules of Evidence.

3The use of plea agreements and their truthfulness provisions 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 truthfulness provisions

contained in those agreements.”). Harlow discusses the issue but does not raise it

as a challenge to the proceedings below.

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jury poll. 

A. Vouching 

Harlow contends the prosecutor’s introduction of witnesses’ plea

agreements, Rule 35(b) motions and sentence reduction orders,2 coupled with the

prosecutor’s statement in rebuttal closing argument implying that the judge had

signed off on the credibility of these witnesses, constituted impermissible

vouching.3

1. Introduction of Evidence

Because Harlow did not object to the admission of this 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

fundamental error, something so basic, so prejudicial, so lacking in its elements

that justice cannot have been done.” United States v. Henning, 906 F.2d 1392,
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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 still must establish the error

“seriously affected the fairness, integrity, or public reputation of judicial

proceedings.” Id. In cases involving the defendant’s failure to object, the

defendant bears the burden of establishing the error impacted substantial rights by

demonstrating the outcome of the trial would have been 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 seriousness of the vouching in

light of the context of the entire proceeding, including 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 of Janway, Flint and

Villa. Prior to the direct examination of each witness, 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 received a reduction in their sentence

based on their adherence to the agreement and that Judge Johnson, the trial judge
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in this case, had signed an order approving the reduction. The prosecutor then

introduced the plea agreements, the 35(b) motions requesting the reductions, and

the order so granting. Harlow claims the admission of this testimony together

with these documents constitutes impermissible vouching and, as such, is plain

error.

It is error for the prosecution to personally vouch for the credibility of a

witness. United States v. Bowie, 892 F.2d 1494, 1498 (10th Cir. 1990). 

Nonetheless, as Harlow concedes, it is perfectly permissible for a prosecutor to

introduce a witness’s plea agreement on direct examination, 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 consequences 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 to the plea agreement. “Use of

the ‘truthfulness’ portions of [plea] agreements becomes impermissible vouching

only when the prosecutors explicitly or implicitly indicate that they can monitor

and accurately verify the truthfulness of the witness’ 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
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provisions of the plea agreement in conjunction with the evidence that the

prosecutor moved for the benefits thereunder and the judge issued his approval. 

At that point, the jury could very reasonably infer that not only had these

witnesses promised to tell the truth, but the prosecutor 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 indicating a personal belief in the

witness’ credibility, either through explicit personal assurances of the witness’

veracity or by implicitly indicating that information 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 States 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 provide substantial

assistance in the investigation or prosecution of other persons who

may have committed criminal offenses. The Defendant 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 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 testimony provided by the
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Defendant.

. . .

16(d). If the United States determines, in its sole discretion, that the

Defendant has fully, completely, and truthfully cooperated with the

Untied States, the United States agrees to recommend at the time of

sentencing a downward departure . . . to reflect the Defendant’s

substantial assistance to the United States in this investigation by

virtue of the information provided to authorities involved in this

matter and due to his ongoing truthful testimony and 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 had verified the witness’ veracity

prior to taking the stand in a prior case or else the government would have

rescinded the plea agreement. While that is a possibility under 12(g), even if

coupled with the introduction of the Rule 35(b) motions and the sentence

reduction orders, the provision’s language contains no explicit or implicit

requirement that the prosecutor monitor or verify the truthfulness of the witness’

testimony, it merely requires the witness to testify truthfully or else the agreement

may be rescinded. One would hope a prosecutor had an expectation of

truthfulness from every witness he called. Thus, verified truthfulness is not a

precondition to the witness testifying, and the government does not assume the

burden of monitoring for accuracy. As Harlow concedes, the government was not

required to rescind the plea agreement if it learned the witness had not been
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truthful. At most, the jury could infer that the witnesses’ testimony was

consistent with that of earlier related trials.

Sections 16(d) and 13 are more problematic. Section 16(d) clearly states

the government will recommend a downward sentence departure if the witness

“fully, completely, and truthfully” testifies and that the reduction will be “due to

his ongoing truthful testimony and truthful cooperation with law enforcement

authorities.” This provision coupled with the introduction of the government’s

Rule 35(b) motion implies that the government has verified 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 a sentence reduction for

testimony given in an unrelated event, but such is not the case here. The three

witnesses were given sentence reductions in exchange for their testimony in a

series of trials all relating to the same underlying methamphetamine drug

conspiracy. The combination of section 16(d) with the introduction of the

government’s Rule 35(b) motions amounts to prosecutorial vouching. 

Section 13 only compounds the matter. Not only does it reiterate the role

of the government in recommending sentence reductions for truthful testimony, it
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also implicates the judge in the verification process:

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 testimony provided 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, completeness, and reliability” of the

testimony. The award of a reduced sentence presented 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. Therefore, we must conclude that

it was error to allow the prosecutor to introduce the 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 plea agreements into

evidence and referred to the provisions therein regarding their obligation to

cooperate with the government and testify truthfully at trial, as well as the

consequences of violating the provisions. Here, however, 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 terms 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) (approving

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 13 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 constitutes 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, Harlow must establish a violation

of his substantial rights stemming from the testimony of the three remaining coconspirators. “In determining whether the misconduct 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 whole.’” United States v. Lonedog,

929 F.2d 568, 572 (10th Cir. 1991) (quoting United States v. Martinez-Nava, 838

F.2d 411, 416 (10th Cir. 1988)). By Harlow’s own admission, Janway, Flint and
4

 According to Harlow, “Clinton Tullier and Larry Parker, Mr. Harlow’s codefendant, provided the only damaging evidence against Mr. Harlow for the illfated trip to Texas that was, according to the government, the ‘centerpiece’ of the

case against Mr. Harlow.” (Appellant’s Br. at 38.)

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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 methamphetamine 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 not remember 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 heard “supposedly [Harlow] had

stoled [sic] I think it was about a pound of meth from . . . Wolverine Trenching.” 

(Appellee’s App. at 190.) However, Villa then testified 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 first-hand knowledge of Harlow’s

involvement in the events surrounding the Texas delivery. 
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Harlow tries to avoid the collateral nature of Janway, 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 agreements. However, the

prosecutor’s vouching of the three collateral witnesses 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 received similar consideration.

Finally, to the extent the impermissible vouching occurred, the district

court’s credibility instructions cured any error. The instructions clearly apprised

the jurors of the court’s limited involvement, it was 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 of several witnesses’ plea

agreements, coupled with the government’s Rule 35(b) motions seeking reduction

of these witnesses’ sentences and the sentence reduction orders themselves

constituted error in the form of impermissible vouching 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 the district court’s curative
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instruction, such error does not warrant a new trial.

2. Prosecutor’s Rebuttal Closing Argument

Harlow next claims the district court erred by failing to sustain his

objection to the government's closing argument, which he says impermissibly

offered personal opinion as to the truthfulness of the co-conspirators testimony. 

In the context of this case, because Harlow contemporaneously objected to the

prosecutor's closing argument statements and moved for a mistrial based on what

is, essentially, an allegation of prosecutorial misconduct, we review the district

court's denial of Harlow’s motion for a mistrial for an abuse of discretion. United

States v. Broomfield, 201 F.3d 1270, 1276 (10th Cir. 2000). Applying this

standard, we conclude the district court did not abuse its discretion.

Reviewing claims of prosecutorial misconduct entails 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 not warrant 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 harmless-error standards, depending

upon whether the error is of constitutional dimension. 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
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1462, 1469 (10th Cir. 1990) (en banc) (quoting Kotteakos v. United States, 328

U.S. 750, 765 (1946)). “On the other hand, most constitutional 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 vouching for

witnesses is not considered to impact an express constitutional 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 had a substantial influence on

the outcome, or leaves us in grave doubt as to whether it had such an effect. 

In this case, the prosecutor’s statement in rebuttal closing argument makes

explicit the problem implicit in the introduction of the Rule 35(b) motions and the

sentence reduction orders. Specifically, the prosecutor stated,

Separation of powers. It’s all here. Congress allows it to happen. 

The executive branch, representing the executive, we’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 tripartite 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 prohibition against vouching. 

While the prosecutor probably meant the jurors should look at the sentence
-20-

reduction orders as evidence that the judicial branch 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 look 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 argument by stating that

defense counsel had impermissibly attacked the prosecutor’s character and

veracity. Though a prosecutor’s statements made in response to comments of

defense counsel are given more latitude, such standard 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 where defense counsel “invites”

argument). In his closing argument, defense counsel never named the prosecutor

directly, called him a liar, or stated he had directly participated in creating false

testimony. Rather, defense counsel confined himself to permissible challenges to

the credibility of the government’s witnesses in light of the plea agreements.

We conclude the prosecutor’s statements during rebuttal closing argument

coupled with the introduction of the Rule 35(b) motions and sentence reduction

orders were error. In Broomfield, we took the “opportunity to advise prosecutors
-21-

against what we perceive to be an increasing willingness to unnecessarily push

the envelope of improper vouching.” 201 F.3d at 1276. We repeat that

admonition here. Nevertheless, we conclude the district court did not abuse its

discretion in denying Harlow’s motion for a new trial. As discussed above,

almost immediately after the closing arguments, the district court gave a clear and

thorough curative instruction. This closely followed the prosecutor’s improper

statements and sufficiently disabused the jury of any misimpression created by the

prosecutor’s inartful closing argument. See Broomfield, 201 F.3d at 1277. Under

these circumstances, we conclude the prosecutor’s closing statements were not so

egregious as to influence the jury to convict Harlow 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 rather 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 verdict. He concedes that after

the reading of the verdict, the district court offered him a chance to examine it. 

However, he maintains he was given insufficient time 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 dismissed, Harlow’s counsel

requested a poll, the result of which was a unanimous verdict. Harlow argues on

appeal that the district court’s statements interfered with his absolute right of a

poll and requires reversal. The government presents 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 conducted 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 unanimity 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 31(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 unanimity, the court may

direct the jury to deliberate further or may declare a mistrial and

discharge the jury.

“[U]pon the appearance of any uncertainty or contingency 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 requests 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 verdict waives the right. United States
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v. Neal, 365 F.2d 188, 190 (6th Cir. 1966). Thus, “the district court, after the

verdict has been read, [must] afford both counsel a reasonable opportunity to

request a poll.” Randle, 966 F.2d at 1214. The district court can accomplish this

by “inquir[ing] of both counsel if either has anything further before the jury is

discharged, which, of course, invites the request to poll.” Id. Failure to allow a

reasonable opportunity to poll prior to the district court discussing with the jury

otherwise inadmissable evidence constitutes reversible error as it denies a

meaningful opportunity to ensure the unanimity of the 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 recorded and the discharge of the

jury automatically satisfies the requirements of Rule 31(d), regardless of any

comments made by the judge, is unfounded. It is true that the poll must be

requested and executed prior to the verdict being recorded 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 judge can undermine the

defendant’s right to poll the jury. The issue in this 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
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a half seconds elapsed between the return of the jury’s verdict and the district

court’s reading of a probation officer’s memorandum including the defendant’s

arrest record. 966 F.2d at 1214. Twelve seconds later, 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 for the district court

to inquire of both counsel if either has anything further before the

jury is discharged, which, of course, invites the request to poll.

Id. Thus, the court reversed the district court’s denial of a mistrial and remanded

for a new trial. Id. The seventh circuit’s opinion stands for two propositions

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; and (2) a district court should

afford the parties a reasonable time to request a poll and can satisfy this

requirement by inquiring of the parties if they have 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 jury. Harlow is right to point out
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that such comments implied that the juror’s verdict was accurate. See Quercia v.

United States, 289 U.S. 466, 470 (1933) (“The influence of the trial judge on the

jury is necessarily and properly of great weight and his lightest word or intimation

is received with deference, and may prove controlling.”) (internal quotation

omitted). Such comments clearly present the possibility of changing a juror’s

otherwise uncertain guilty vote into a certain one.

As the government points out, however, all of the district court’s comments

commenced after it expressly gave Harlow an opportunity 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 court proceeded too quickly after

making the offer to examine the verdict. In this case, the district court’s

comments do not appear pose the risk of prejudice until the discussion of its

conversation with Special Agent Hamilton. The lapse of time between the

reading of the verdict and the beginning of the potentially 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 delay in requesting a poll vitiates any

error attributable to the district court’s intervening comments between its specific

invitation to poll the jury and Harlow’s poll request. 
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III. Cumulative Error

Harlow argues that even if we conclude all of the alleged individual errors

are harmless, their combined effect results in a fundamentally unfair trial and

requires reversal. The government’s position is that Harlow has not shown actual

error and therefore, there is no error to cumulate.

The cumulative error analysis’ purpose is to address whether the

“cumulative effect of two or more individually harmless errors has the potential to

prejudice a defendant to the same extent as a single reversible error.” United

States v. Rosario Fuentez, 231 F.3d 700, 709 (10th Cir. 2000). “A cumulativeerror analysis merely aggregates all the errors that individually have been found

to be harmless, and therefore not reversible, and it analyzes whether their

cumulative effect on the outcome of the trial is such 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 aggregate harmlessness

determination can be made, collective error will mandate reversal, just as surely

as will individual error that cannot be considered harmless. The harmlessness of

cumulative error is determined by conducting the same 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
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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 attributable 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 sentence reduction orders and his

closing argument. Because we have concluded the instances 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 appellant is granted.