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. e du/thir dc ir c uit_1998/198Filed August 19, 1998

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 97-3531

UNITED STATES OF AMERICA

v.

ROBERT WALKER, Appellant

On Appeal From the United States District Court For the Western District of Pennsylvania (D.C. Crim. No. 96-cr-00014E)

Argued: June 12, 1998

Before: BECKER, Chief Judge, WEIS, Circuit Judges and DOWD, District Judge.*

(Filed August 19, 1998)

SHELLEY STARK, ESQUIRE
Federal Public Defender
KAREN SIRIANNI GERLACH, ESQUIRE (ARGUED)
Assistant Federal Public Defender
415 Convention Tower

960 Penn Avenue Pittsburgh, PA 15222

Attorneys for Appellant

___________________________________________________ ______________

*Honorable David D. Dowd, Jr., United States Distri ct Judge for the Northern District of Ohio, sitting by designation.LINDA L. KELLY, ESQUIRE

United States Attorney
BONNIE R. SCHLUETER, ESQUIRE (ARGUED) Assistant United States Attorney
JARVIS F. TAIT, ESQUIRE Assistant United States Attorney
633 United States Post Office &

Courthouse Pittsburgh, PA 15219

Attorneys for Appellee

OPINION OF THE COURT

DOWD, District Judge.

I. The Charge and Conviction.

The appellant, Robert Walker, an inmate at The Fede ral Correctional Institute (FCI) in McKean, Pennsylvani a, prosecutes an appeal from his conviction and senten ce of 18 months for possession of contraband in violation of 18 U.S.C. S 1791(a)(2).

On October 13, 1995, Walker was undergoing a strip search preparatory to being placed in a special hol ding unit
within McKean. The two correctional officers conduc ting the search, Scott and Dubois, ordered Walker to remove his
undershorts at which time Walker removed a ten-inch shank. In a subsequent interrogation on November 3, 1995 by William Turner, an FBI agent, Walker admitted to possession of the shank. Walker also admitted that he made the weapon, and that he had it for protection because of a fellow inmate problem.

II. The Alleged Error of Vouching.

On appeal, Walker's sole error advanced for reversa l of conviction is the contention that the government pr osecutor "vouched" for the three government witnesses: Scott
, Dubois, and Turner. Walker argues that his defense

2focused on the credibility of the three witnesses a nd the

government vouching "undermined fundamental fairnes s of the trial and contributed to a miscarriage of justi ce."

III. The Setting.

A. The Opening Statements.

The government's opening statement summarized the expected testimony of Scott, Dubois and Turner. The defendant's opening statement emphasized that the d efense would be questioning the credibility of the governm ent
witnesses.

B. A Review of the Testimony of Scott, Dubois, Turner and Zuniga.

Scott testified that he was working in the special housing unit1 where Walker was transferred on October 13, 1 995, and was present when Dubois conducted a visual sear ch of
Walker in a shower room. Scott indicated that Duboi s conducted a visual inspection of the shower room be fore

the search of Walker. Walker was ordered to remove his clothes while Scott held a plastic bag for Walker t o put his clothes in. After Walker stripped down to his under wear and socks, Walker turned his back on Dubois and Sco tt. According to Scott, Dubois then ordered Walker to t urn around, at which point Walker reached into his wais t area and turned around with a shank in his right hand. S cott told Walker to place the weapon on the grill and st ep back. Scott picked up the weapon and put it in his pocket . He then wrote out an incident report and took a photog raph of the weapon.

Dubois corroborated Scott's testimony. Dubois emphasized that when he requested that Walker turn around, Walker refused. Then he ordered Walker to t urn around, but again Walker would not turn around. Dub ois testified that he finally gave Walker a direct orde r to turn around, at which point Walker turned around with a shank in his right hand. Dubois testified that Walker put the shank on the grill where Scott grabbed it.

___________________________________________________ ______________

1. The special housing unit is the area of the inst itution where prisoners who "create problems" out in the general population are placed.

3FBI Agent Turner described his November 3, 1995

interview with Walker regarding the incident of Oct ober 13, 1995. He identified Lieutenant Zuniga as also being present at the interview. According to Turner, Walker was o rally advised of his rights and then was given a form to read,2 which Walker appeared to read and then signed. Turn er and Zuniga also signed the form as witnesses.

According to Turner, Walker admitted that he had fo und a piece of metal which looked like a key ring outsi de the gymnasium of FCI McKean and straightened it. Walker claimed that the end of the ring was already flatte ned. Walker admitted to taking a piece of a sheet and wr apping
it around the handle.

Lieutenant Zuniga testified that he was present dur ing the interview of Walker by Turner on November 3, 19 95. Zuniga indicated that Turner read Walker his rights and
the waiver at the bottom of the form and asked Walk er if he understood them. Turner then gave Walker the form t o look over and asked him again if he understood his right s. Zuniga testified that Walker then signed the waiver . Zuniga also stated that he signed the form as a witness.

According to Zuniga, Walker was not threatened into signing the form and he appeared fully coherent. Wa lker told Zuniga and Turner that he made the weapon from a key ring that he found in the "rec yard." Walker sa id that he straightened the key ring and then sharpened it. Walker stated that he made the weapon for protective purpo ses due to a prior altercation with an unidentified inmate. Zuniga testified that Walker stated during his interview t hat he used sandpaper to sharpen the point of his weapon.

At no time was there any testimony that suggested a n alleged bias or ulterior motive on the part of Scot t, Dubois, Turner, or Zuniga in investigating and reporting th is
incident.

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2. The form contained in written form the same noti fication of rights that had just been given orally, along with a waiver at the bottom.

4IV. The Alleged Vouching.

After reviewing the testimony and the stipulations, the Assistant United States Attorney (AUSA) indicated t hat the only contested issue was whether Walker possessed t he shank. Then the AUSA argued:

Now, ask yourselves what motivation would O fficer Robert Scott and former Officer Raymond Dubo is have to come in here and lie to you. What motivat ion. I submit to you that they have no motivation t o lie to you. I submit to you that you can determine, using your common sense and your judgment, you can dete rmine the credibility of those two and the only tw o eyewitnesses to the search . . .

Now, in addition, we went further, we then called Agent Turner . . . What motivation would he have to come into this courtroom and lie to you. . . [summary of Turner's testimony] . . . I submit to you that Agent
Turner would have no motivation to come into this courtroom and make these things up. I submit to you that Agent Turner corroborated the direct ev idence of the two and the only two eyewitnesses.

After final argument advanced on behalf of Walker i n which Walker's lawyer questioned the Government's p roof and the credibility of the witnesses by declaring t hat there
should have been a video of the search and a record ing of the alleged confession and imploring the jury to no t act as a rubber stamp for the Government, the AUSA respond ed in part as follows:

The testimony was, the testimony of the two officers that have no motivation to lie to you, the t estimony
was that it came out of the underwear. This was a strip search. They had two officers behind the bar s looking and they told you, the eyewitness testimony, that is evidence of this crime. And we submit to you that we have proven that beyond a reasonable doubt.

. . .

And we submit that when you think about the case with your judgment and your wisdom and you t ake into account that there were only two eyewit nesses and they have told you that they saw the defenda nt withthe object, that, ladies and gentlemen, is p roof beyond

a reasonable doubt.

V. The Concept of Vouching Discussed in Genera l.

Vouching constitutes an assurance by the prosecutin g attorney of the credibility of a Government witness through personal knowledge or by other information outside of the testimony before the jury. United States v. Lawn, 3 55 U.S. 339, 359 n. 15, 78 S.Ct. 311, 323 n. 15, 2 L.Ed.2d 321 (1958). See also United States v. Neceochea, 986 F. 2d 1273, 1276 (9th Cir. 1993). A prosecutor's vouching for t he credibility of a government witness raises two conc erns: (1) such comments can convey the impression that eviden ce not presented to the jury, but known to the prosecu tor, supports the charges against the defendant and can thus jeopardize the defendant's right to be tried solely on the basis of the evidence presented to the jury; and (2 ) the prosecutor's opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government's judgment rather than its own view of t he evidence. Young, 470 U.S. at 18, 105 S.Ct. at 1048; United States v. Molina-Guevara, 96 F.3d 698, 704 (3d Cir. 1996).

While it was formerly the rule in this Circuit that vouching for a witness based on information not in the record required reversal per se, United States v. D iLoreto, 888 F.2d 996, 999 (3d Cir. 1989), such comments now must be analyzed on a case by case basis. United St ates v. Zehrbach, 47 F.3d 1252, 1267 (3d Cir. 1995). 3 This Circuit has analyzed vouching in a number of cases, and a r eview of the case law will be helpful to put this case in context.

VI. A Review of the Case Law.

In United States v. Gallagher, 576 F.2d 1028, 1040- 43 (3d Cir. 1978), the prosecutor told the jury during opening

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3. Zehrbach, 47 F.3d at 1267, expressly overruled D iLoreto. This Circuit, sitting en banc, held that the per se reversal rul e of DiLoreto
conflicted with the case by case analysis of prosecutorial mis conduct required by the Supreme Court in Young, 470 U.S. at 11-12, 105 S.Ct. at 1044-

1045.

6statement that the Government's testimony would com e

from the mouths of "truthful, credible" witnesses, and that all one witness "could testify to is the truth." Id . at 1041. This Court held that improper vouching had occurred , but did not grant the defendant a new trial. We explain ed that "in view of the amplitude of the evidence proving t he appellant's guilt, we cannot say that the unfortuna te statements quoted above alone require reversal."

In United States v. Swinehart, 617 F.2d 336, 338-34 0 (3d Cir. 1980), the prosecutor in closing argument stat ed that the Government's expert witness "is an honest witne ss." Id.
at 339 n. 3. He also stated that this witness "of a ll
witnesses and I believe that all the witnesses that testified [sic], testified honestly was one of the most hones t." Id. The prosecutor went on, "I suggest that the expert in t his case who testified concerning the questioned documents, that his testimony is totally worthy of belief." Id. We once again expressed our disapproval at these comments and hel d that they constituted improper vouching by the Governmen t's attorney. Id. However, we held that the improper co mment did not warrant reversal because the jury would hav e convicted the defendant even had it not been expose d to the improper prosecutorial comments. Id.

In United States v. Beaty, 722 F.2d 1090, 1097 (3d Cir. 1983), the prosecutor stated during summation that the witnesses who had appeared pursuant to a plea-barga in "promised to tell the truth and they were telling t he truth before the judge who will sentence them in this mat ter. . . ."
The court held that this comment constituted vouchi ng. Id. However, the court held that this comment was not prejudicial. We explained, "[t]he prosecution witne sses' credibility was a hotly contested issue throughout the trial. The jury was, therefore, more likely to view this s tatement as an argument than as a revelation." Id. We also n oted that there was overwhelming evidence of guilt, and that the judge's instructions dispelled any improper inferen ces that the jurors may have drawn. Id.

In DiLoreto, 888 F.2d at 998-1000, the prosecutor s tated during rebuttal in reference to a witness that was appearing pursuant to a plea bargain that, "[I]f they lie, th at bargain is off . . . We don't take liars. We don't put liar s on the

7stand. We don't do that." Id. at 999. We construed this

statement by the prosecutor as an assertion to the jury that the government does not use liars as witnesses in i ts cases. Id. In this light, we held that the comment made by the prosecutor during rebuttal was improper vouching. I d. at 1000. Since we had not yet adopted a case-by-case a nalysis for comments based on evidence not in the record, w e did not inquire into whether the above quoted statement was prejudicial. We instead held that it was reversible error per se. Id.

In United States v. Pungitore, 910 F.2d 1084, 1120- 1127 (3d Cir. 1990), the prosecutor made several remarks during rebuttal argument that the defendant challenged as vouching.4 The success of the government's case hin ged on

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4. The prosecutor made the following comment about the FBI agents and
state law officers who testified at trial:

the FBI agents and state troopers in this ca se are not criminals. There's no evidence to indicate that those g ood men suborned perjury or made up anything and that's why t he Government brought them in[,] so that you could judge t heir credibility from

the
witness stand. Id. at 1123.

The prosecutor further urged the jury to consider t he oaths of office taken by the law enforcement officers:

You decide if it was [the defense witness] t hat was telling the

truth or if it was all those FBI agents and state troopers who swore an oath who many of them told you have been age nts and troopers for 19 years, 18 years, 17 years, you decide if they put their jobs,
their careers and everything they worked for all t hose years on the line

to fabricate testimony and put words in a witne sses mouth. Id. at 1123

n.56.

Lastly, the prosecutor attested to the integrity of the prosecutorial team and commented upon the testimony of two of the Government's
witnesses:

We're [the prosecutorial team] and make no mistake about it. What he's telling you, what a lot of these d efense attorneys are telling you is that we fed this information to those Defendants,

and you know what? You've heard us throughout th e course of this trial. I'm not a genius but I'm not that dumb that I casually mentioned things to them without knowing exactly what I'm doing. I'm not thatstupid . . . Those FBI agents, those state t roopers, those

policemen,

8the credibility of the two government witnesses. Id . at 1120.

The defense strategy was to attack the credibility of these witnesses. Id. The defense counsel had suggested th at
federal and state law enforcement officers had fabr icated the government witnesses' testimony. Id. at 1121. T he defense counsel made accusatory remarks during open ing statement, vigorously cross-examined the government witnesses, and made the integrity of the government personnel the central theme of their closing argume nts. Id.
at 1121-1122.

We held that the statement by the prosecutor that," the only way they got their stories together is if law enforcement told them each what to say[,] and there is nothing to indicate that happened, and it didn't ha ppen," was not vouching. Id. at 1124. We explained that th e statement did not suggest that the prosecutor had a ccess to undisclosed facts that would support the credibilit y of the government witnesses. Id. "Instead, faced with contradictory testimony regarding the preparation o f its witnesses, the prosecutor urged the jury to accept the testimony most favorable to the government. This, i n itself, was proper argument." Id. at 1125.

We also held that the prosecutor's comment that the FBI agents were brought in to testify because they were not criminals was not vouching. Id. at 1125 n. 57. We n oted that, in context, the comment merely points to the lack of any compelling evidence that the officers had engag ed in any misconduct. Id. We observed that "[o]ur precede nts do not constrain a prosecutor from pointing to an abse nce of evidence which might reflect negatively on his witn esses, so long as he does not suggest the existence of undisc losed facts which would support a favorable credibility
determination." Id.

___________________________________________________ ______________

they're not real stupid either. The only way that[the government witnesses] testimony could be consistent in this case is one of two ways. They're either telling the truth or . . . the only way that they got their stories together is if law enforce ment told them each

what to say[,] and there is nothing to indicate t hat that happened, and
it didn't happen. Id. at 1123.

9Lastly, we held that the comment by the prosecutor

concerning the credibility of testifying law enforc ement personnel and the prosecutorial team was vouching
because it invoked facts outside the record to assu re the jury that they would not lie because lying would je opardize
their careers. Id. "We observe that there was no ev idence backing the prosecutor's comments that the U.S. Att orneys and law enforcement officers could not have behaved as unscrupulously as defense counsel alleged they did without violating their oaths of office and jeopardizing th eir careers." Id. However, we held that this vouching d id not require reversal because it fell squarely within th e invited response doctrine.5

More recently, in United States v. Bethancourt, 65 F.3d 1074, 1079-1080 (3d Cir. 1995), the defendant chall enged the integrity of the Drug Enforcement Agents who te stified at trial.6 The prosecutor responded that the defend ant's argument was improbable and that the witness did no t lie.7 On appeal, the Government conceded that the prosecu tor's

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5. The invited response doctrine "teaches that wher e a prosecutorial argument has been made in reasonable response to im proper attacks by defense counsel, the unfair prejudice flowing from the two arguments may balance each other out, thus obviating the need for a new trial." Id. at 1126. The prosecutor may not use the improper re marks of the defense counsel as a springboard for the launching of affirmative attacks upon the defendants. Id. The doctrine's reach exten ds only to defensive, as opposed to offensive, argument by the prosecutor . Id. at 1127.

6. The defense counsel "also argued that the govern ment agents typed up the confession and `they put stuff in there that[th e defendant] was never gonna agree to;' and that faking his signature to t he confession `tells

you [the jury] that in no way are they the statements, are they the words, are they the concepts, or is that the confession of [th e defendant]. It's
theirs and they tried to make it his.' " Id. at 1079.

7. The prosecutor stated:

For what, ladies and gentleman? He's gonna risk his career? He's gonna risk his job? He's gonna risk going to jail? For what? To lie to you on the stand, ladies and gentleman? I submit not, ladies and gentleman . . . [the prosecution's witnesses ] don't make up lies.

And they didn't lie here and they're not lying t o you, ladies and gentlemen, when they tell you what they did. And they're not lying to you when they tell you that defendant . . . talked to them about
the statement. Id. at 1079.10remarks were "ill-advised". Id. We held that these

statements did not amount to plain error. Id. at 10 80. We noted that: (1) the comments in rebuttal were isola ted and followed an untainted closing; (2) the district cou rt gave clear instructions to the jury; and (3) the evidenc e produced at trial against the defendant was overwhelming.

Most recently, in Molina-Guevara, 96 F.3d 698, 703- 705 (3d Cir. 1996), the prosecutor during rebuttal repr esented
that an uncalled witness would have corroborated th e testimony of the United States Customs Service Agen t who testified at trial and whose credibility was at iss ue. Id. at 703. The prosecutor further told the jury that it w as "insulting" and "ridiculous" to think that the Gove rnment would put a witness on the stand who would lie. Id. at 704. The prosecutor also assured the jury that the agent in question "did not lie to you." Id. We held that the se statements were vouching and impermissible. Id. at 705. Since the defendant made the appropriate objections and moved for mistrial, we applied a harmless error ana lysis. Id. at 703. We held that because the prosecutor's rebut tal referenced a potential witness who never took the s tand, the defendant's Sixth Amendment rights under the
Confrontation Clause were violated. Id. at 705. Acc ordingly, we reversed the conviction because we could not say that the improper comments were harmless beyond a reason able

doubt.

Our case law indicates that to find vouching two cr iteria must be met: (1) the prosecutor must assure the jur y that the testimony of a Government witness is credible; and (2) this assurance is based on either the prosecutor's personal knowledge, or other information not contained in th e record. Thus, it is not enough for a defendant on a ppeal to assert that the prosecutor assured the jury that a witness' testimony was credible. The defendant must be able to identify as the basis for that comment an explicit or implicit reference to either the personal knowledge of the prosecuting attorney or information not contained i n the record. See Lawn, 355 U.S. at 339 n. 15, 78 S.Ct. a t 323 n.15. It follows that where a prosecutor argues tha t a witness is being truthful based on the testimony gi ven at trial, and does not assure the jury that the credib ility of the

11witness based on his own personal knowledge, the

prosecutor is engaging in proper argument and is no t vouching. See Pungitore, 910 F.2d at 1125. Likewise
, prosecutorial comment that points to a lack of evid ence in the record which supports a defendant's argument th at the witness is not credible is proper so long as the co mment does not constitute an assurance by the prosecutor that the witness is credible. See Pungitore, 910 F.2d at 112 5 n. 57.

A prosecutor may argue in the negative that the assertions made by defense counsel that a witness i s lying are not supported by the testimony in the record. W hat the prosecutor may not do is take the next step. Once t he defense counsel's argument is rebutted, the prosecu tor's references to the witness' credibility should end. If the prosecutor proceeds further and starts arguing in t he affirmative that the witness is credible, and does so based
on either information that is not in the record or his/her own personal knowledge, then the prosecutor has eng aged in vouching.

VII. A Plain Error Analysis of the Alleged Vou chin g.

Walker did not object to the alleged vouching durin g trial. Therefore, we review the record for plain error. Be thancourt, 65 F.3d at 1079. "In order to be plain error, an er ror must not only be `obvious,' it must also `have affected the outcome of the District Court proceeding.' " Id. (c iting United States v. Olano, 507 U.S. 725, 113 S.Ct. 177 0, 1778-79, 123 L.Ed.2d 508 (1993)). "We may reverse o nly if we find error in the prosecutor's comments so serio us as to `undermine the fundamental fairness of the trial an d contribute to a miscarriage of justice.' " Pungitor e, 910 F.2d

at 1126.8

___________________________________________________ ______________

8. Walker argues that the plain error analysis is n ot significantly different than the harmless error analysis. This is simply not true. In Olano, 507 U.S. at 734-35, the Supreme Court compar ed the harmless error standard to the plain error standard and note d, "[w]hile [harmless error analysis] precludes error correction only if the error `does not

affect substantial rights', [plain error review] authorize s no remedy unless the error does `affec[t] substantial rights.' " Further more, the Court noted that, under plain error review, reversal is permitt ed but not mandatory. Id. at 735. Thus, a plain error that affects substa ntial rights, without more, does not mandate reversal, "for otherwise the discretion afforded by [the plain error standard] would be illusory." I d. at 737.

12Walker contends that the AUSA improperly vouched fo r

Scott and Dubois when she stated:

Now ask yourselves what motivation would off icer Robert Scott and former Officer Raymond Dubo is have to come in here and lie to you. What motivat ion. I submit to you that they have no motivation t o lie to you. I submit to you that you can determine, using your common sense and your judgment, you can dete rmine the credibility of those two and the only tw o eyewitnesses to the search.

The comment by the AUSA consists first of the rheto rical question, "What motivation [would these witnesses h ave to lie]?" This question is not vouching. It does not m aintain the credibility of the two witnesses by referring t o information outside the record, nor does it contain a personal assurance of veracity. Viewed in context, the statement merely points to the fact that Walker did not produce any evidence indicating a motive on the par t of the law enforcement officers to lie. As we have previou sly stated, it is permissible for a prosecutor to point to an absence of evidence that might reflect negatively o n her witness, so long as she does not suggest the existe nce of undisclosed facts that would support a favorable cr edibility determination. Pungitore, 910 F.2d at 1125 n. 57.9

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9. Gallagher, 576 F.2d at 1041, is not to the contr ary. Walker contends that language identical to the rhetorical question analyzed here was held to be vouching by the Gallagher court. In Gallagher , the prosecuting attorney during opening statement asked, "What moti ve did [the government witness] have to lie against [one of the defendants]? There is none, because she was telling the truth." Id. We he ld that statement to constitute vouching in its entirety. However, it sh ould be clear from the discussion supra, that it is the second sentence in the quotation and not the first one that offends the rule against vouchin g. The statement, "[t]here is none, because she was telling the truth ," is vouching because it assured the jury that the witness was credible, implicitly based on the attorney's own personal knowledge. In other words, the prosecutor was personally assuring the credibility of the witness. The rhetorical question posed in the first sentence did not personally assu re the credibility of

the witness, nor did it maintain the credibility of the witness based on information not contained in the record. Therefore, the rhetorical question was not, in and of itself, vouching.

13The second part of the AUSA's remark during closing

consists of the statement, "I submit to you that th ey have no motivation to lie to you. I submit to you that y ou can determine, using you common sense and your judgment
, you can determine the credibility of those two [wit nesses]. . . ." The phrase "I submit to you that," without m ore, does not constitute vouching. Submit means "[t]o commit to the discretion of another," or "[t]o yield to the will of another," or "to present for determination; as an advocate su bmits a proposition for the approval of the court." BLACK'S LAW DICTIONARY 1278 (5th ed. 1979). Thus, the phrase"I submit to you that," is merely a method of prefacin g an argument and does not by itself constitute vouching . The phrase fails to meet the vouching standard because it does not assure the jury that the witness is credible, b ut instead asks the jury to find that the witness was credible . This is
proper argument.

This reading of the phrase is supported by its cont ext. The AUSA asked the jury to find that the witness wa s credible "using your common sense and your judgment

. . . ." Clearly, the prosecutor is merely asking the jury to view the evidence in a light most favorable to her case, which is proper argument. See Pungitore, 910 F.2d a t 1125.

Walker also challenges the following comment made during closing argument by the AUSA regarding the testimony of Turner, "What motivation would he have to come into this courtroom and lie to you . . . I sub mit to you that Agent Turner would have no motivation to come into this courtroom and make these things up." This comm ent is similar to the one analyzed above and is not vou ching for the same reasons. The rhetorical question merely po ints to a lack of evidence produced by Walker in support of his claim that the government witnesses were lying. It is clear from the surrounding context that the second senten ce merely asked the jury to accept the testimony in a light most favorable to the government. Thus, it is not v ouching, but proper argument. Pungitore, 910 F.2d at 1125.

This is not to say, however, that prosecutors have free license to say whatever they please as long as they preface their remarks with the phrase, "I submit to you tha t." This phrase is not a magic talisman that wards off alleg ations of

14vouching. Moreover, it is poor practice for federal

prosecutors to frequently use rhetorical statements punctuated with excessive use of the personal prono un "I". Such a practice runs the risk that the words that f ollow will convey the personal view of the prosecutor to the j urors. See United States v. Eltayib, 88 F.3d 157, 172-73 ( 2d Cir. 1996); United States v. Rivera, 22 F.3d 430, 437-38 (2d Cir. 1994). We endorse the alternative suggestions of ou r sister circuit in United States v. Nersesian, 824 F.2d 129 4, 1328 (2d Cir. 1987), where the court directs:

It is perfectly acceptable practice for a p rosecutor to use language in addressing the jury such as "you are free to conclude," "you may perceive that," "it is submitted that," or "a conclusion on your pa rt may be drawn," to mention only a few examples of unobjectionable phraseology. It is obligator y for prosecutors to find careful ways of inviting jurors to consider drawing argued inferences and concl usions and yet to avoid giving the impression that they are conveying their personal views to the jurors

.

Finding no error, the judgment of the district cour t will

be AFFIRMED.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

15