1

The Honorable Donovan W. Frank, United States District Judge for the

District of Minnesota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 04-3863

___________

United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Minnesota.

Mark William Samples, *

*

Defendant - Appellant. *

___________

Submitted: June 23, 2005

Filed: August 11, 2006 (Corrected: 09/12/06)

___________

Before RILEY, BRIGHT, and JOHN R. GIBSON, Circuit Judges.

___________

JOHN R. GIBSON, Circuit Judge.

Following a jury trial, Mark Samples was convicted of robbing a credit union

in violation of 18 U.S.C. § 2113(a) and brandishing a firearm during a crime of

violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii). He also pleaded guilty to and

was convicted of failing to appear for trial in violation of 18 U.S.C. § 3146(a)(1).

After denying Samples's motion for a new trial, the district court1

 sentenced him to

eleven years' imprisonment. Samples does not challenge his conviction for failure to

appear for trial, but he appeals from the district court's denial of his motion for a new
-2-

trial on the first two counts. He argues that he was deprived of a fair trial by the

prosecutor's improper and prejudicial use of three categories of evidence: (1)

evidence of his flight as consciousness of guilt; (2) evidence elicited in violation of

Rule 704(b); and (3) evidence of his release status. We affirm. 

I.

On May 3, 2001, Samples robbed the Red Wing Credit Union at gun point.

The gun was fully loaded and he had placed tape over the serial numbers. Samples

took about $70,000, which he carried in his arms while fleeing on a bicycle he had

purchased the day before. The bicycle crashed while he was riding down a steep hill,

causing him to drop the money and the gun. Samples gathered up $10,500 and made

his way to a place near the Mississippi River where he had stowed scuba gear.

Samples put on his gear and tried to cross the river without success. He stayed in the

water for about eight hours before making his way back to where he had parked his

car. FBI agents identified Samples as the original purchaser of the gun dropped at the

scene of the robbery. When interviewed about the robbery by two FBI agents at his

home on May 8, Samples claimed that the gun had been stolen from him in a

burglary. Later that day, Samples admitted himself to the psychiatric ward at the

Veteran's Affairs Hospital. From the locked ward, he called one of the agents and

confessed to the crime.

Samples pled guilty to one count of credit union robbery in August, but he

withdrew from the plea agreement eight months later. He then pled not guilty to a

superseding indictment and filed a notice of his intention to assert the defense of

insanity. After Samples violated the conditions of his bond, a bench warrant for his

arrest was issued on June 3, 2002. Samples fled the jurisdiction with his son and was

found and arrested 15 months later in Ohio.
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At trial, Samples argued that he was not guilty by reason of insanity. He

claimed that the combination of his post-traumatic stress disorder and major

depression, along with the side effects of the drug Interferon that he was taking for

Hepatitis, made him suicidal and delusional at the time of the robbery. Samples

testified that after he started taking Interferon, his depression level "really

plummeted" and he "started to have episodes where I would think really bizarre

things, very disturbing things." He began to believe that his wife was trying to poison

him and considered killing her, before resolving to take his own life instead. Samples

testified that he decided to rob the credit union to provide for his wife and son, and

stated that he carried a gun during the robbery because he was planning to kill himself

afterwards. Samples testified that when he entered the bank, "I knew it was

absolutely the right thing to do. I never doubted it for a second." It was not until

three or four hours after the robbery that Samples claimed he realized what he had

done was wrong.

Dr. Charles Peterson, Samples's treating psychologist, testified that Samples

first sought help for depression at the Veteran's Affairs Hospital in March 2000. He

was seen in the urgent care area and referred to the post-traumatic stress recovery

program, where he was ultimately diagnosed with major depressive disorder and

chronic post-traumatic stress disorder. These were traced to an event during

Samples's naval service in the Persian Gulf in 1987, in which he survived a missile

attack on his ship. Thirty-seven of his fellow crew members died in the attack.

Samples received the Navy and Marine Corps Medal for Heroism as a result of his

actions that day. The following citation for the award was read to the jury:

U.S.S. Stark was struck by two Iraqi air to surface missiles resulting in

a mass conflagration, complicated by flooding and battle damage[.]

[W]ithout regard for his own personal safety, Petty Officer Samples

moved several Stinger missiles out of fires that were spreading to the 03

level. He went below decks to investigate the missile magazine and

found that the sprinkling system was inoperative. He sat inside of the
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magazine for 15 hours using a fire hose to cool the missiles and fill the

magazine with water, thus preventing them from exploding.

One of Samples's shipmates testified to this occurrence, as did Samples. Dr. Peterson

testified that Samples reacted to this traumatic incident with horror and helplessness,

had recurrent nightmares of the event, and displayed numbing, avoidance, and hyperarousal symptoms. Dr. Peterson testified that these symptoms had disrupted

Samples's functioning in "almost every sphere of his life," and thus Samples met all

the diagnostic criteria for post-traumatic stress disorder. 

Dr. Peterson, as well as the two psychiatrists who testified at trial, agreed that

Samples's mental health condition worsened as a result of his participation in an

epidemiological study held by the Veteran's Affairs Hospital for service members

with Hepatitis C. Samples was approved for treatment in the study in September

2000 despite the fact that the drug being used, Interferon, was known to exacerbate

the effects of pre-existing mental illnesses. Dr. Peterson testified that by October,

Samples's depression was "spiraling out of control" and that he was "really

dysfunctional in all spheres," as well as entertaining suicidal thoughts. In January

2001, Samples stopped coming to the post-traumatic stress disorder clinic for his

appointments. Dr. Peterson met with Samples after the robbery in May and testified

that "at that point he had lost touch with present reality and had slipped into a

different reality of the horror on the U.S.S. Stark." When Samples was discharged

from the psychiatric ward at the VA Hospital he scored a 25 out of 100 on a global

assessment of functioning, which Dr. Peterson testified is the level of "patients who

are psychotic, who do not know right from wrong."

Dr. Coleman Smith, a hepatologist with extensive experience with Interferon

treatment, testified that he would not have treated a patient with Samples's history of

mental illness with Interferon without close monitoring by a psychiatry staff.

Furthermore, based on his reading of the record he concluded that it was "more likely
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than not" that the Interferon was causally related to the credit union robbery. Dr.

Stanley Rosenberg, a psychiatrist whose research included the treatment of mentally

ill patients with Hepatitis, also testified for the defense. He testified that Samples's

symptoms were consistent with those reported in the literature on Interferon, and that

at the time of the robbery, Samples was suffering from acute delusional symptoms,

thinking illogically, and totally suicidal. 

The government called two experts: Dr. Jason Dana, a forensic psychologist

for the FBI, and Dr. Karen Bruggemeyer, a forensic psychiatrist. Dr. Dana testified

that Samples was not always a reliable provider of information and that suicidal

thinking does not always indicate a break from reality or psychosis. He also testified

that the level of planning that went into the robbery as well as Samples's ambivalence

about the crime before entering the bank were significant indicators of whether he

knew what he was doing was wrong. Dr. Bruggemeyer testified that the Interferon

exacerbated Samples's depression and contributed to his decision to rob the bank. She

testified that Samples was suffering from psychotic delusions at the time of the

robbery. However, she also underscored the importance of Samples's ambivalence

before the robbery and the level of planning, stating:

Mr. Samples essentially was telling me that what I did was the right

thing to do. Those were the words that he was saying but his actions

spoke differently to me. He took measures to hide what he was saying

was the right thing to do. He hid who he was. He hid his identity. He

covered his face. He covered his fingerprints. He covered the serial

numbers of his gun. He fled the scene of the crime. And he had a rather

elaborate method of leaving where he was going. He had parked his car

one place and left a bike another place and then had scuba gear another,

and took great lengths to hide something that he believed was right. He

also lied about what he was doing. He lied to his wife. He lied to the

FBI. He also said he felt guilty about it. And these are things that if a

person believes that they are truly doing the right thing, they don't

experience this.
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In the government's closing argument and rebuttal, the prosecutor emphasized

these expert opinions, as well as the lies Samples told to his care-givers, his wife, and

the FBI about his mental state and the robbery. The prosecutor drew attention to

aspects of the planning and execution of the robbery that suggested that Samples was

sane, including the fact that he only took large denominations of cash from the credit

union and refused to take one-dollar bills. The prosecutor also underlined the

importance of a taped telephone conversation between Samples and his mother while

he was in jail in which he described a discussion with his lawyer. The prosecutor

played the tape for the jury and on the tape Samples says, "But, what he is saying is

you either have to say you are guilty, or you have to say I'm innocent because of

temporary insanity. And temporary insanity, the definition of that is you don't know

right from wrong, which I obviously did, because I planned some things. . . ."

After two days of deliberation, the jury found Samples guilty of both the credit

union robbery and gun counts. Samples filed a motion for a new trial five days later,

arguing that the verdict was against the weight of the evidence; the prosecutor

violated the pretrial ruling on the proper use of evidence of his flight; the prosecutor

violated Federal Rule of Evidence 704(b) in questioning the experts; and evidence of

Samples's release status was used improperly. The district court denied the motion.

Samples appeals on the grounds that the prosecutor's use of inadmissible evidence

unduly influenced the jury's ability to assess whether he was insane.

II.

We review the denial of a motion for a new trial for abuse of discretion. United

States v. Aldrich, 169 F.3d 526, 528 (8th Cir. 1999). We will reverse the district

court's decision if a new trial is necessary to avoid a miscarriage of justice. Id.

Samples claims that he was deprived of a fair trial as a result of prosecutorial

misconduct. This circuit employs a two-part test to determine whether a conviction
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should be reversed for prosecutorial misconduct: (1) the prosecutor's remarks or

conduct must have been improper; and (2) the remarks or conduct must have

prejudicially affected the defendant's substantial rights so as to deprive him of a fair

trial. United States v. Conrad, 320 F.3d 851, 855 (8th Cir. 2003). The prejudicial

effect of the conduct is determined by considering: (1) the cumulative effect of the

misconduct; (2) the strength of the properly admitted evidence of the defendant's

guilt; and (3) the curative action taken by the district court. Id. We recognize that the

district court is in a better position than we are to determine the effect of improper

questioning or testimony on a jury. United States v. Nelson, 984 F.2d 894, 897 (8th

Cir. 1993). 

A. 

Samples first argues that the prosecutor knowingly violated the district court's

pretrial order limiting evidence of his fifteen-month flight and improperly focused the

jury on this evidence in his closing argument. Samples contends that the prosecutor's

comments about his flight may have influenced the jury to decide the case based on

his willingness to violate the law, rather than his mental state. 

During the motions hearing before trial, defense counsel moved to exclude

evidence of Samples's flight entirely, based on the concern that the government would

use it as propensity evidence that Samples robbed the bank "because he is a bad man."

However, the district court found that Samples's flight was relevant to the trial in a

number of ways. First, the flight resulted in a delay between the crime and the mental

health evaluations, which were not conducted until Samples returned to Minnesota.

Second, aside from the effects of the Interferon treatment, Samples's mental health

diagnosis was a permanent one, so his flight was relevant in terms of whether it was

behavior consistent with his underlying diagnosis. Third, Samples claimed that he

robbed the bank in an effort to provide for his son, and his later flight with his son

was evidence of the importance of that relationship. As a result, the district court
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concluded that evidence of Samples's flight would be allowed as circumstantial

evidence of his mental and emotional condition on the date of the robbery. The judge

ruled:

The issue in the case would be the manifestations and the

characteristics of his mental and emotional condition and how it

manifested itself on the date in question of the robbery and how that

relates to '87 all the way out to the alleged robbery. . . .

. . .

[The flight evidence] certainly proves – the Government will say

that it proves the intent and the lack of presence of insanity on the date

in question. I will allow it for that reason. It clearly isn't propensity

evidence in that regard.

. . .

So, the parameters of this ruling are as follows: I can see on a

straight flight 403 balance, I find that if that was the only relevant

purpose of its admission, that the probative value would be substantially

outweighed by the unfair prejudice.

So what I envision is this. It is a proper course of cross

examination of the doctors that are called. In other words, whether this

conduct - - and I will define what I will allow by this conduct following

the robbery [ - - ] was consistent with the diagnosis and the

manifestations and characteristics of the diagnosis itself, and the extent

of the mental illness that leads to the claim of legal insanity.

What I won't allow is a discussion of the plea agreement, the

timing of it all. . . . 

. . .

I won't allow the use of the false name, attempts to buy the house.

. . . 

There shouldn't be a mention of the phrase kidnapping . . . or the

felony or misdemeanor of interference with the custodial rights of

another. This all can be done without that list of alleged other crimes,

based upon how I see its relevance.

The district court also noted the possibility that the defense might want to

mitigate the effect of the flight by bringing it up before the experts took the stand.
2

The government claims on appeal that Samples "opened the door" to any

impermissible use of the flight evidence when he testified to the facts of the flight

during defense counsel's direct examination. The government argues that his

testimony was in violation of the pretrial ruling because it was not introduced during

the cross-examination of an expert. This argument reads the district court's order too

narrowly and disregards the above discussion between counsel and the court about

introducing the evidence during Samples's direct examination.

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At trial, defense counsel asked for clarification as to the parameters of the ruling, as

he intended to elicit the basic facts of Samples's flight from Samples on direct

examination. The district court stated:

What I assume, regardless of who it comes from, it is appropriate

to say, one, he left with Christopher, why he left, why he didn't return,

under what circumstances and over what length of time he returned, and

I suppose included in that is whether or not Christopher's mother was in

contact with Christopher and or Mr. Samples. . . .

. . .

And I think the only difference with the experts will be whether

what I just described is consistent with or a manifestation or a

characteristic of someone with the diagnosis. And if not, why not.

 Samples claims that the government violated the district court's order in two

instances.2

 Samples first challenges the following exchange during the government's

direct examination of Dr. Bruggemeyer:

Q: You understand that Mr. Samples, as he testified that he took his son

in May of 2002, and was gone was a fugitive for 15 months and where

he was caught in Ohio; do you understand that?

A: Yes, we talked about that.

Q: What is the significance of that as it relates to his consciousness of

guilty [sic]?

A: The significance was that he told me it wasn't right which meant that

he was guilty about it.
-10-

Defense counsel did not object to this line of inquiry, so we review for plain

error. Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 730-32 (1993).

Samples claims that this questioning violated the pretrial ruling by failing to relate the

flight evidence to his diagnosis. However, Dr. Bruggemeyer's comment relates to

Samples's mental state at the time of his flight. The district court later clarified during

the prosecutor's rebuttal that the jury could consider Samples's flight for this purpose.

This instruction is consistent with the purpose of the pretrial ruling, which was to

avoid the use of the flight evidence as propensity evidence. Thus, if error at all, the

admission of this comment did not rise to the level of plain error. 

Samples also challenges the following statement by the prosecutor during

rebuttal:

[I]f Samples hadn't put a loaded gun in front of those women, robbed the

Credit Union at gunpoint, taken his son as a fugitive and fled for 15

months, we wouldn't be here. Samples fled because of a consciousness

of guilt. He knows he is guilty.

Defense counsel objected on the grounds of misuse of evidence. The court sustained

the objection in part, stating, "I would allow it for his mental state at the time of his

leaving the state with his son." Samples argues that the district court should have also

given a curative instruction. The prosecutor continued after the objection was

partially sustained, "He fled because of a consciousness of guilt. He knew that he is

guilty and he didn't want to face the Judge to find out whether he would get probation

or prison." Defense counsel did not object to these remarks.

 In light of the purpose of the district court's pretrial ruling, the prosecutor's

comments do not appear to be improper. The district court contemplated that the

government could use the evidence of flight as circumstantial evidence of a lack of

insanity, and stated, "It clearly isn't propensity evidence in that regard." Furthermore,

in its final instructions, the district court counseled the jury, "You may consider
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evidence of defendant's mental condition before or after the crime to decide whether

defendant was insane at the time of the crime." We have allowed evidence of flight

in insanity cases for the purpose of deciding whether the defendant could appreciate

the wrongfulness of his actions at the time of the crime. See United States v. Hiebert,

30 F.3d 1005, 1007 (8th Cir. 1994) ("A defendant's attempt to conceal his

commission of a crime suggests that he knows the action is wrongful, and the

defendant's knowledge that one crime was wrong evidences that he understood that

other criminal acts were inappropriate.") Whether Samples was sane at the time of

the robbery depended on whether he was capable of being conscious of guilt and

understanding right from wrong on that date. If Samples fled because he was

conscious of guilt at the time of flight, that is relevant to whether he could have been

conscious of guilt at the time of the robbery. It is not propensity evidence as to

whether Samples was a bad person, which is what the district court stated would be

impermissible.

Even if the prosecutor's remarks violated the pretrial ruling, the cumulative

effect of the remarks, the strength of the properly admitted evidence, and the actions

taken by the district court, lead us to conclude that the remarks did not deprive

Samples of a fair trial. See United States v. Conrad, 320 F.3d 851, 855 (8th Cir.

2003). The cumulative effect of the remarks was minimal because they were confined

to a few sentences of the prosecutor's rebuttal and were neither pronounced nor

persistent. See Berger v. United States, 295 U.S. 78, 89 (1935). The jury heard

extensive amounts of properly admitted evidence of Samples's mental state from

experts, lay witnesses, and Samples himself during the five-day jury trial, so it is

unlikely that these remarks would have caused the jury to reach its verdict on an

improper basis. See, e.g., United States v. Cole, 380 F.3d 422, 427 (8th Cir. 2004)

(government's violation of pretrial order excluding evidence of prior bad acts was

harmless in light of strong evidence and wide array of other testimony against the

defendant); United States v. Moore, 911 F.2d 140, 143-44 (8th Cir. 1990)

(government's violation of pretrial exclusion of evidence was harmless in light of
-12-

cautionary instruction, fact that error only constituted two lines of transcript, and the

strength of the evidence against the defendant). Samples's ambivalence both before

and after the robbery, his detailed plan and purchase of equipment specifically for the

robbery, the fact that he concealed himself and the serial numbers on the gun, his

escape effort, as well as the lies he told to cover himself and his admission on tape to

his mother, all would suggest to a reasonable jury that he understood the nature and

quality of his actions. See, e.g., United States v. Freeman, 804 F.2d 1574, 1577 (11th

Cir. 1986) (defendant likely knew bank robbery was wrongful in light of his efforts

to conceal himself, the use of a handgun, and his escape plan). That Samples suffers

from mental illnesses and was suicidal or even psychotic on the date of the robbery

does not establish that he could not appreciate the wrongfulness of his behavior. See

Id.; Hiebert, 30 F.3d at 1008; United States v. Dubray, 854 F.2d 1099, 1101 (8th Cir.

1988); United States v. Levine, 80 F.3d 129, 136 (5th Cir. 1996) (despite defendant's

diagnosis of bipolar disorder, his actions up to, during, and after the robbery

suggested he knew the wrongfulness of his conduct). 

This is not a case where absent the allegedly improper comments, a jury

reasonably could have reached a different outcome or where the improper remarks

"substantially bolstered" the case against the defendant. United States v. Beeks, 224

F.3d 741, 747 (8th Cir. 2000); Conrad, 320 F.3d at 856. Furthermore, the district

court took the curative action of reminding the jury of the purpose for which the

evidence could be considered and then later counseling, "If you were instructed

during the case that I received a piece of evidence for a limited purpose, you must

follow that instruction." Consequently, we conclude that the district court did not

abuse its discretion in finding that the prosecutor's statements about Samples's flight

did not improperly influence the verdict.
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B.

Samples also argues that the prosecutor knowingly elicited testimony in

violation of Federal Rule of Evidence 704(b) and then improperly used that evidence

in his closing argument. Rule 704(b) states:

No expert witness testifying with respect to the mental state or condition

of a defendant in a criminal case may state an opinion or inference as to

whether the defendant did or did not have the mental state or condition

constituting an element of the crime charged or of a defense thereto.

Such ultimate issues are matters for the trier of fact alone. 

In a case where a defendant presents insanity as an affirmative defense, Rule

704(b) prohibits a mental health expert from expressing an opinion on the ultimate

legal issue of whether the defendant was able to appreciate the wrongfulness of his

actions at the time of the crime. United States v. Kristiansen, 901 F.2d 1463, 1466

(8th Cir. 1990). The purpose of the rule is to allow juries, not experts, to make the

ultimate determination of whether or not the defendant is sane. United States v. West,

962 F.2d 1243, 1247 fn.3 (7th Cir. 1992). Experts may testify to the symptoms and

qualities of the defendant's mental illness, as well as to whether that illness generally

prevents those suffering from it from understanding the nature and quality of their

actions. Kristiansen, 901 F.2d at 1466. However, experts must avoid subjective

comments about whether the defendant's peculiar mental state at the time of the crime

affected his ability to understand the wrongfulness of his actions. United States v.

Brown, 32 F.3d 236, 239 (7th Cir. 1994).

The record makes apparent that both parties left the evidentiary door ajar and

stretched the limits of what is permissible under Rule 704(b), and we conclude that,

in this context, the government did no more than offer fair rebuttal. We have held

that where the instigating party opens the door to questioning in violation of Rule

704(b), it is estopped from complaining if its adversary offers fair rebuttal. United
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States v. Gipson, 862 F.2d 714, 717 (8th Cir. 1988); see also United States v. Beason,

220 F.3d 964, 968 (8th Cir. 2000) ("It is fundamental that where the defendant

'opened the door' and 'invited error' there can be no reversible error.") Furthermore,

the district court sustained a number of objections and many of the questions that

Samples now challenges were never answered, so there can be no claim of prejudicial

error. United States v. Zabel, 702 F.2d 704, 710 (8th Cir. 1983).

Samples first challenges the government's cross-examination of Dr. Peterson.

The prosecutor asked Dr. Peterson, "Post-Traumatic Stress Disorder does not equal

a person being insane, isn't that correct?" and added that insane was a legal term with

which the doctor was familiar. The district court sustained an objection to this

question and the witness did not answer. The prosecutor then asked Dr. Peterson,

"So, in other words, if a person knows and understands the nature and quality of their

acts and the person knows the wrongfulness of their acts, then that person is not

insane, is that correct?" The district court again sustained an objection under Rule

704(b) and the witness did not answer. These questions do not specifically inquire

as to Samples's state of mind on the date of the robbery and so do not violate Rule

704(b). Kristiansen, 901 F.2d at 1465-66. In addition, the district court sustained the

objections and the questions were never answered, so there was no prejudice. Zabel,

702 F.2d at 710.

 Samples also contends that the prosecutor violated Rule 704(b) when he asked

Dr. Dana, "If you assume that Mr. Samples suffered [intense post-traumatic stress

disorder] and major depression at the time of the robbery, does that change your

opinion regarding his ability to know – excuse me, to understand the nature and

quality or the wrongfulness of his acts at that time?" Defense counsel posed an even

more detailed question to Dr. Rosenberg earlier in the trial when he asked, "Would

Major Depressive Disorder, severe, with psychotic features and Post-Traumatic Stress

Disorder aggravated by Interferon treatment impair a person's ability to appreciate the

moral wrongfulness of his actions?" Both questions come close to asking for an
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opinion on the ultimate issue of whether Samples had the ability to understand the

nature of his actions on the date of the robbery, but Samples cannot now challenge

the prosecutor's question as violative of the Rule since defense counsel asked an

almost identical question. Gipson, 862 F.2d at 717. Furthermore, the question was

objected to and Dr. Dana did not answer it, so there was no prejudice. Zabel, 702 F.2d

at 710.

Lastly, Samples focuses on the testimony of Dr. Bruggemeyer. During direct

examination, the prosecutor asked, "On May 3, 2001, if Mr. Samples understands that

it's wrong to shoot a teller, how does that relate to his understanding of the

wrongfulness of robbing the credit union?" The district court sustained an objection

under Rule 704(b) and Dr. Bruggemeyer did not answer. The prosecutor then asked,

"How does your opinion, how is it manifested in the characteristics that relate to your

diagnosis and opinion, relate to if Mr. Samples understood it as wrong to shoot a

teller versus the bank, robbing the credit union?" The district court sustained another

objection under Rule 704(b) and stated that it would allow the question of "the

wrongfulness of shooting a teller, if it's consistent with his diagnosis or what you

would expect to see." Dr. Bruggemeyer responded, "If he knew it was wrong to shoot

a teller, he knew it was wrong to rob a bank." Defense counsel objected to this

answer and made a motion to strike, which the district court granted. The court

stated, "Ask the jury to disregard the last phrase 'knew it was wrong to rob the bank.'"

Later, during the cross-examination of Dr. Bruggemeyer, defense counsel tried to

clarify that just because Samples later understood when he was in the river that the

robbery was wrong, he did not necessarily know it was wrong during the robbery. Dr.

Bruggemeyer responded, "In my opinion, he knew it was wrong both times." The

government quoted this statement during rebuttal, stating "He knew it in the water,

and in her opinion, he knew it during the robbery. That says it all." Defense counsel

did not object to this statement. 
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Dr. Bruggemeyer's statement that Samples knew it was wrong to rob the bank

is a direct violation of Rule 704(b)'s mandate that experts not express opinions on the

ultimate issue of a defendant's sanity. However, her first response was stricken from

the record and the district court later instructed the jury that "any testimony or exhibit

ordered stricken by me must be entirely disregarded by you." Thus, any error was

cured. United States v. Guerra, 113 F.3d 809, 815 (8th Cir. 1997); see also Weeks

v. Angelone, 528 U.S. 225, 234 (2000) ("A jury is presumed to follow its

instructions"). Dr. Bruggemeyer's second response was elicited by defense counsel's

question, "the fact that he becomes aware several hours after the robbery that what

he had done was wrong, does not indicate necessarily that he knew it was wrong

before going into the bank?" Because Dr. Bruggemeyer's answer cannot be

characterized as non-responsive to this question, defense counsel is responsible for

inviting the Rule 704(b) violation. Gipson, 862 F.2d at 717. Finally, in referring to

the answer in rebuttal, the prosecutor was simply using evidence to which the defense

counsel had opened the door, which we have held to be permissible. Id.; United

States v. Schwartz, 655 F.2d 140, 142 (8th Cir. 1981); Beason, 220 F.3d at 968.

Even were we to conclude that the prosecutor's comment did not constitute fair

rebuttal for what defense counsel had already invited, we review only for plain error

because defense counsel failed to object. Fed. R. Crim. P. 52(b); United States v.

Olano, 507 U.S. 725, 730-32 (1993). "If an arguably improper statement made during

closing argument is not objected to by defense counsel, we will only reverse under

exceptional circumstances." United States v. Eldridge, 984 F.2d 943, 947 (8th Cir.

1993). The prosecutor's comment does not rise to the level of plain error or present

exceptional circumstances in light of the substantial other evidence as to Samples's

mental state presented to the jury and the judge's instruction to the jury that "[e]xpert

testimony should be considered just like all testimony in the case. That is, you may

accept or reject it and give it as much weight as you think it deserves. . . ." See

United States v. Waldman, 310 F.3d 1074, 1078-79 (8th Cir. 2002) (where there was

substantial evidence of intent and a curative jury instruction, violation of 704(b) by
-17-

expert did not amount to plain error). We conclude that the district court did not

abuse its discretion by finding that the interests of justice did not require a new trial

on this ground.

C.

Samples additionally argues that the prosecutor engaged in misconduct by

using Samples's bond status as an indication that he was not insane at the time of the

offense. Over defense counsel's objection, the district court allowed a pretrial

services officer to testify that Samples was not required to stay in a hospital as a

condition of his bond. In his closing argument, the prosecutor stated, "Mr. Samples

was released that day. Samples went home. Do you think a federal judge would just

let an insane man go home only a few days after the robbery?" Defense counsel

objected, but the district court overruled the objection, stating, "I will allow it based

upon that is an inference of the evidence, and the jury will evaluate it along with all

of the other evidence." In the order denying the motion for a new trial, the district

court ruled that the comments were in fact improper, but that they did not cloak the

government with the authority of the court or otherwise influence the verdict.

The district court has "broad discretion in controlling closing arguments and

this court will not reverse absent a showing of abuse of discretion." United States v.

Johnson, 968 F.2d 768, 769 (8th Cir. 1992). We agree with the district court that the

prosecutor's argument was improper because the legal standard for release is

irrelevant to whether Samples proved by clear and convincing evidence that he was

insane at the time of the offense. However, we will reverse the conviction only if we

determine that the jury verdict could reasonably have been affected by the

prosecutor's improper comments. Id. at 770. We must once again evaluate the

cumulative effect of the misconduct, the strength of properly admitted evidence, and

the curative actions taken by the court. United States v. Conrad, 320 F.3d 851, 855

(8th Cir. 2003). The conduct in question had no cumulative effect because it

constituted a single improper remark in the prosecutor's closing argument, United
-18-

States v. McGuire, 45 F.3d 1177, 1190 (8th Cir. 1995), and it was "dwarfed by the

extensive testimony on the insanity issue by both sides." United States v. Santos, 131

F.3d 16, 20 (1st Cir. 1997). As we stated above, the record includes a wide array of

testimony and evidence suggesting that Samples was sane at the time of the crime,

and therefore this remark was insufficient to constitute prejudicial error. See United

States v. Cole, 380 F.3d 422, 427 (8th Cir. 2004). The district court also took the

curative action of instructing the jury, "Questions, objections, statements and

arguments of counsel are not evidence in this case." See United States v. Fletcher,

322 F.3d 508, 517 (8th Cir. 2003). While we disapprove of the prosecutor's improper

remarks, we conclude that the district court did not abuse its discretion in finding that

these objectionable comments did not influence the verdict. 

D.

Samples also contends that the cumulative effect of the alleged errors warrant

a new trial. "We may reverse where the case as a whole presents an image of

unfairness that has resulted in the deprivation of a defendant's constitutional rights,

even though none of the claimed errors is itself sufficient to require reversal." United

States v. Riddle, 193 F.3d 995, 998 (8th Cir. 1999). To reverse based upon the

cumulative effect of errors, we must hold that there has been substantial prejudice to

the defendant. United States v. Steffen, 641 F.2d 591, 598 (8th Cir. 1981). Based on

the above analysis, we cannot conclude that the cumulative effect of the alleged errors

"fatally infected" Samples's trial or resulted in a miscarriage of justice. United States

v. LaFuente, 54 F.3d 457, 462 (8th Cir. 1995). We affirm.

BRIGHT, Circuit Judge, dissenting.

I dissent. The prosecutor recognized Samples as a hero, but in his prosecution,

the government dealt him foul blows that deprived Samples, hero or not, of a fair

trial. Samples is entitled to relief by giving him a new trial. 
-19-

In this case of a very bizarre robbery and an attempt to escape as related in the

majority opinion, we have strong and basically unrefuted medical testimony that

Samples suffered a major and serious depressive disorder with psychotic symptoms

and chronic post-traumatic stress disorder (PTSD) at the time of this strange robbery

incident. Thus, defendant made a strong case for a temporary insanity defense. 

As we know, his illness stemmed from his heroic action as a member of the

armed forces’ pre-Gulf War activity. For emphasis, we repeat the action story from

the trial transcript. Samples’s conduct resulted in his receipt of the Navy and Marine

Corps Medal for Heroism:

In 1987, Mr. Samples was a sailor in the United States Navy,

stationed on the U.S.S. Stark. The Stark patrolled the Persian Gulf and

acted as an escort to oil tankers. During this period, the war between

Iran and Iraq created instability in the Gulf region, subjecting tankers to

the danger of missile attack. On May 17, 1987, a little after 9 p.m., an

Iraqi Mirage fired two Exocet missiles at the Stark and hit the ship.

When the first missile hit, it didn’t explode. The second missile hit the

same spot and lit all of the fuel from the original one on fire.

Mark Samples was on duty on the third level of the ship. The

missiles hit just above the water line. The walls of the ship, soaked in

fuel, began to burn. Mr. Samples noticed that the boxes containing

hand-held Stinger missiles were beginning to burn. After confirming

with the Captain, he threw the boxes overboard. He then put on a gas

mask, went to the bridge and steered the ship based on radio orders for

about a half an hour. Someone came up to him and told him that the

missile launcher was starting to smoke. When Mr. Samples went to

investigate, he found the fire had advanced to the missile magazine. He

knew, being a gunner’s mate, that if their missiles exploded, it would

destroy the ship and everyone on board. If that happened, about 200

sailors would die. To keep that from happening, Mr. Samples hooked up

a pump and sat on the side of the missile silo for 17 hours, pumping

water from the Gulf on the missiles, cooling them. The walls glowed red

and some of the missiles became so hot the paint began to peel off of

them.
3

Forensic psychologist, Dr. Jason Dana, would not concede that the Interferon

exacerbated Samples’s mental illness. He also would not concede Samples suffered

psychotic symptoms because Samples had periods of lucidity where he realized the

error in his delusions. However, he did concede that he is not a medical doctor, did

not focus on the effects of Interferon in this case, and lacked the background to

answer questions on the adverse effects of Interferon as they relate to this case.

Dr. Karen Bruggemeyer was the government witness ordered by the district

court to address the use of Interferon by Samples. She testified that Samples’s

-20-

At some point in the middle of this Mr. Samples was spelled by

another sailor and asked to go through the missile launcher to see if he

could get a door open from the inside. The firefighters couldn’t get at

it from their side. Mr. Samples crawled through the launcher, a narrow

space, having to take off his breathing mask at times to get through.

When he found the door damaged beyond hope of opening, he went aft

to see if he could get more information about the extent of the fire. His

path led through downed electrical wires, smoke-filled dark and

damaged corridors where he at times had to crawl to get through. He

eventually made it to the berthing area where he found the bodies of all

the men who had been trapped. They were dead. Chris D’Angelo, Mr.

Samples best friend, was there. Mark held his body for a while, then put

it down and went back to the missile magazine to fight the fires. Finally,

members from other ships arrived and took over the fighting the fire.

Mr. Samples wasn’t the only sailor on the Stark who survived, but

suffered indelibly from going through that attack. William Morandi,

who was in the berthing area when the attack occurred, managed to

escape out of the hole the missile made and spent the night in the

Persian Gulf with another crew member who made it out. From the 28-

29 sailors in his area, five made it out. Thirty-seven crew members died

that night.

Samples’s Br. at 11-13 (footnotes omitted).

Moreover, his illness was significantly exacerbated by his taking of the drug

Interferon as prescribed by doctors at the Veteran’s Affairs Hospital to treat

Samples’s hepatitis C.3

 
paranoid delusions and cognitive distortions would occur in cycles depending on

when he last took Interferon. (Dr. Dana testified that records reflect Samples last

took Interferon on the day of the robbery, May 3, 2001.) Based on her knowledge of

the interaction between Samples’s preexisting mental illness and Interferon, Dr.

Bruggemeyer agreed with the doctors presented by the defense – the Interferon

exacerbated Samples’s mental illness, made him experience psychotic symptoms, and

causally contributed to the robbery. 

-21-

The VA’s hepatitis C clinic approved Samples for a clinical treatment study

using Interferon and Ribavirin with an understanding he would be monitored by a VA

psychologist in its post-traumatic stress disorder clinic. Together, these drugs are

targeted to get rid of the hepatitis C virus. Beginning September 5, 2000, Samples

took Interferon three times a week, Monday, Wednesday, and Friday by self-injection,

and Ribavirin orally twice a day. The known side effects of Interferon include

becoming suicidal, psychotic, and homicidal. Further, the brand manufacturer warned

that “extreme caution should be taken in using Interferon on patients with preexisting mental health histories.” Trial Tr. at 784-85. Such patients are particularly

at risk for having aggravated psychiatric side effects from the Interferon. 

 On November 9, 2000, Samples reported to the VA that he was thinking about

killing himself. His antidepressant medication was increased, but he was not taken

off the Interferon. On January 4, 2001, Samples reported an increase in irritability,

dropping out of classes at school, and difficulty sleeping. At this point, he dropped

out of psychiatric care, but he was not taken off the Interferon. He next contacted the

post-traumatic stress disorder clinic on May 4, 2001, the day after the robbery. 

The effects of the Interferon on Samples’s mental illness in the months leading

up to the robbery also produced paranoid delusions. He came to believe that his wife

was trying to kill him. He stopped eating meals she prepared. He tried to avoid her

by hiding out in the basement. He started sleeping with a gun. And he contemplated

killing her by staging a car accident. Samples also believed the government was
-22-

trying to kill him to eliminate the survivors of the U.S.S. Stark and he was being

followed by government agents. 

The question for the jury was whether on May 3, 2001, Samples knew right

from wrong when he robbed a bank as a means of giving his family financial security,

as he contemplated taking his own life following the incident. 

Samples made a strong case for temporary insanity, taking into account his

severe depression aggravated into a psychosis by the continuing Interferon treatment,

existing to and on the day of the robbery. Indeed on May 8, five days after the

robbery, experts at the VA hospital gave Samples a global assessment of functioning

test which resulted in a score of twenty-five out of one hundred, showing him

functioning at a psychotic level, to an extent where a patient does not, or may not,

know right from wrong. 

With this strong evidence as a defense, the prosecutor did not focus on this

temporary insanity condition. Instead, he confused the issue by arguing that

Samples’s admission of wrongful conduct in bail jumping, thirteen months after the

robbery, served to establish his consciousness of guilt at the time of the robbery. 

Samples brought a pretrial motion to exclude all evidence relating to his flight,

thirteen months after the robbery, as irrelevant to the case because he had already

pleaded guilty to the charge of failure to appear for trial and had been off Interferon

for thirteen months. The motion further argued that introducing evidence of Samples

committing bad acts thirteen months after the robbery could lead the jury to convict

him on an improper basis. 
-23-

Defense counsel argued: 

[T]he single issue before the jury . . . is what was Mr. Sample’s [sic]

mental state on May 3rd, 2001, at the time that he robbed the bank?

And none of this evidence relates in any way to that issue.

. . . .

[T]he defense is very clearly that this mental illness was episodic in

nature . . . . 

The issue is whether those conditions were so aggravated by the

Interferon treatment as to make him psychotic at the time of the offense.

And, if so, . . . whether by virtue of that psychoses he was unable

to appreciate the nature and wrongfulness of his actions.

Trial Tr. at 32, 38-39. 

Defense counsel explained the reports by the expert witnesses do not treat the

fifteen-month period during which Samples remained a fugitive as significant to his

mental condition on May 3, 2001. Defense counsel further explained that Samples

did not claim that he was insane at the time he fled in June 2002, as evidenced by his

guilty plea on that charge.

The government responded that it wished to use Samples’s flight in June 2002

as consciousness of guilt on the May 3, 2001 offense. The government argued that

the “evidence is not only relevant, but it is highly probative of a consciousness of

guilt. He knew he was guilty, so he started a new life, because he didn’t want to be

away from his son . . . .” Trial Tr. at 46. 

In its pretrial ruling on the issue, the district court reasoned, 

[I]t is the Defendant’s view that the manifestation of the mental illness

is episodic. To me, it is a classic case where, not for flight, but it is

circumstantially relevant, the 15 months . . . . 

It is circumstantially relevant to the mental, emotional condition

of the Defendant as follows: He has a diagnosis. It is dependent upon,
-24-

in large part, from '87 on out. It is a diagnosis that wasn’t a fleeting

diagnosis. He continues to suffer from it. 

The issue in the case would be the manifestations and the

characteristics of his mental and emotional condition and how it

manifested itself on the date in question of the robbery and how that

relates to '87 all the way out to the alleged robbery.

 

Trial Tr. at 71-72. 

The majority opinion further explains the contours of the district court’s

decision at pp. 8-9.

Following the ruling, Samples’s attorney asked the court to review the expert

reports “to see whether it has any bearing on the Court’s ruling, because I continue

to believe that the fact of Mr. Samples’ conduct over a year after the offense has no

bearing on the diagnoses or the opinions of the experts with respect to what happened

on May 3rd.” Trial Tr. at 84.

The district court noted “the objection by the Defense” to the extent it denied

the pretrial motion and decided the trial would include evidence of Samples’s flight

thirteen months after the robbery.

The trial evidence bore out Samples’s pretrial explanation of the insanity

defense at issue. Samples’s defense did not rest merely on the continuing PTSD and

depressive illness, existing long before the May 3 incident and continuing during all

the times discussed in the trial, but focused on the aggravation or exacerbation from

the Interferon treatments, which the experts addressing the issue agreed led to

symptoms of psychosis. 

The first defense expert, Dr. Charles Peterson, testified that after Samples

started Interferon, his level of depression “deepened significantly”. Trial Tr. at 450,

467. “He really deteriorated at this point.” Trial Tr. at 450. “He was really
-25-

dysfunctional in all spheres . . . .” Trial Tr. at 450. Dr. Peterson testified that

Samples scored twenty-five out of one hundred on the global assessment of

functioning test administered on May 8, showing “the level of patients who are

psychotic, who do not know right from wrong . . . .” Trial Tr. at 458, 460. “[T]he

combination of Post-Traumatic Stress Disorder, Depression and Interferon effect[ed]

Mr. Samples’ judgment and rational thinking[.]” Trial Tr. at 467. 

The next defense expert, Dr. Coleman Smith, testified that the Interferon

deepened Samples’s depression, leading to psychotic symptoms, and probably had a

causal relationship to the robbery. “[I]nterferon does effect the brain and does cause

psychiatric problems. And these psychiatric problems are more manifest in people

with an underlying history of psychiatric illness.” Trial Tr. at 492. He read the

manufacturer’s warning label regarding Interferon use, “Severe psychiatric adverse

events, including depression, psychoses, aggressive behavior, hallucinations, violent

behavior, (suicidal ideation, suicidal attempts, suicides) and rare instances of

homicidal ideation . . . .” Trial Tr. at 497. The manufacturer further warned that

extreme caution should be taken in using Interferon on patients with pre-existing

psychiatric disorders. 

The final defense expert, Dr. Stanley Rosenberg, concluded there was “a very

good probability” that “Interferon treatment affected Mr. Samples’ mental illness”.

Trial Tr. at 715. “[I]nterferon seemed to be making [Samples’s] depression worse and

worse.” Trial Tr. at 701. In his opinion, there was a “probable” causal connection

between the Interferon and robbery. Trial Tr. at 723. 

Dr. Rosenberg explained the results of his evaluation of Samples’s condition

on May 3, 2001. It was “fairly clear-cut that Mr. Samples continued to meet

diagnostic criteria for PTSD at the time of the robbery; that he was severely

depressed, in fact depression not only at a severe level, but with psychotic symptoms;

that he was actively suicidal at the time of the robbery; and that he was fairly
-26-

delusional at the time of the robbery and the days immediately preceding.” Trial Tr.

at 694. “He was just thinking a very bizarre and illogical way, psychotically distorted

way.” Trial Tr. at 719. 

Further, Dr. Rosenberg testified that the exacerbated symptoms from Interferon

would clear within days or weeks of discontinuing use. We know from the testimony

that Samples last took Interferon on the day of the robbery, May 3, 2001, so his

aggravated symptoms would have ended long before his flight in June 2002. The

district court was wrong in its conclusion that Samples’s flight in June 2002 was

medically relevant to his ability to know right from wrong on May 3, 2001. 

Moreover, the prosecutor did not even stay within the bounds of this erroneous

ruling, resorting precisely to the consciousness of guilt purpose that the district court

had rejected under Rule 403. 

Here is the record. 

Samples headed the suggestion of the district court and mitigated the effect of

his pretrial flight from the jurisdiction by bringing it up before the government did

so. 

Samples testified that in June 2002, he took his son from Minnesota to West

Virginia and had hopes of getting his marriage back together. But when he got to

West Virginia, he learned a warrant had issued for his arrest and panicked, fleeing

with his son for fifteen months. He did not tell his son’s mother where they were

during this time. In September 2003, he was arrested in Ohio for failure to appear for

trial. He pled guilty, explaining he made no claim that he was insane at the time he

left the jurisdiction of Minnesota. 
-27-

Rather than focus on how Samples’s flight in June 2002 related to the

manifestations and characteristics of his diagnosis, as the district court had ordered,

the prosecutor turned Dr. Bruggemeyer’s testimony to support consciousness of guilt

on May 3. 

BY [PROSECUTOR]:

Q Doctor, what, if any, significance is there in your diagnosis and

your opinion in evaluation of Mr. Samples to the extent that he robbed

the credit union May 3, 2001, versus the time in May of 2002 that he

took his son and left for 15 months?

A I’m not following what your question is, [Prosecutor].

Q I’m not sure I follow it either. You understand that Mr. Samples,

as he testified that he took his son in May of 2002, and was gone was a

fugitive for 15 months and where he was caught in Ohio; do you

understand that?

A Yes, we talked about that.

Q What is the significance of that as it relates to his consciousness

of guilty?

A The significance was that he told me it wasn’t right which meant

that he was guilty about it. 

Trial Tr. at 851-52. Thus, this testimony, which appears to violate the pretrial

restrictions on this type of evidence, gave the prosecutor a weapon to completely

confuse the temporary insanity issue. 

In the final rebuttal argument, the prosecutor put it all together in the improper

framework below:

[I]f Samples hadn’t put a loaded gun in front of those women, robbed

the Credit Union at gunpoint, taken his son as a fugitive and fled for 15

months, we wouldn’t be here. Samples fled because of a consciousness

of guilt. He knows that he is guilty. 

MR. RICHMAN: Objection, Your Honor, misuse of the

evidence.
-28-

THE COURT: I will sustain in part, deny in part. I would allow

it for his mental state at the time of his leaving the state with his son.

You may continue, [Prosecutor].

[PROSECUTOR]: Thank you, Your Honor. He fled because of

a consciousness of guilt.

He knew that he is guilty and he didn’t want to face the Judge to

find out whether he would get probation or prison. Notwithstanding the

fact that we have heard from psychiatrists and psychologists and

hepatologists, stuff that is certainly beyond the understanding of a sixyear-old, this case is about right and wrong. And as I said in the

beginning of the trial, the theme would be, all I really need to know, I

learned in kindergarten, right and wrong.

Samples knew what he was doing and he knew that it was wrong.

Trial Tr. at 983-84.

The argument clearly was improper and devastating to the defense. It

amounted to a clever ploy, but a wholly unfair one requiring a new trial. 

But that is not all. The record shows that Samples was released from custody

on May 14, 2001, eleven days after cessation of Interferon treatments. The

prosecution introduced the following testimony through pretrial services officer

Timothy Norgren. The dialogue between the prosecutor and Norgren included:

Q. [D]o you make a report that is presented to the Court?

A. [W]e prepare a report assessing the person’s vulnerability,

if you will, for the purposes of release or detention.

Q. The factors that go into a Court’s decision about a release

would include a person’s danger to himself or to others?

A. Yes, it would.

Q. And would it include the person’s risk of flight?

A. Yes, it would.

. . . .

Q. At some point did you come to supervise Mr. Samples?
-29-

A. Yes. He was originally detained on Friday of May 11th,

2001 and had a detention hearing on Monday, May 14th, 2001. And at

the conclusion of that hearing, he was released.

. . . .

Q. The continuation of his health care at the VA Medical

Hospital [as a condition of release], did that include his being admitted

as a patient to stay at the hospital?

A. No, I don’t believe so.

Q. So, he went home on May 14, 2001?

A. Yes, he did.

Trial Tr. at 305-07. 

The prosecutor used this evidence to obfuscate the issue of temporary insanity

on May 3, by asserting apparent sanity on May 14. The prosecutor made this purpose

clear to the jury during final oral presentation, stating this gem, “Mr. Samples was

released that day. Samples went home. Do you think a federal judge would just let

an insane man go home only a few days after the robbery?” Trial Tr. at 936. 

As against an objection, the trial judge allowed the evidence to stand as “an

inference from the evidence.” Clearly, that ruling was wrong and the argument was

improper and unfair.

The prosecutor’s assertion did not relate to expert testimony on sanity nor did

it repeat a statement of any judge about Samples’s sanity. The testimony previously

quoted related to release from custody based on whether the defendant was dangerous

if released on May 14. As the record shows, and as we know, the standards for

release pending trial and the standards for insanity are as different as night and day.

 I want to comment on one aspect of the majority opinion relating to a telephone

conversation between Samples and his mother on October 8, 2003 and discussed at

p. 6.
-30-

The majority’s observation fails to show the proper context for the exchange.

See Slip Op. at 6. Samples knew that his conversation with his mother was being

recorded by the county jail. As Samples explained, he was simply describing for his

mother a conversation he had with his attorney about the law on insanity and how a

jury might perceive the facts. A jury might conclude that he obviously knew right

from wrong because he planned some aspects of the robbery. Samples testified that

he was not aware of the definition of insanity until explained to him by his attorney.

Samples also testified that when he planned the bank robbery and entered the bank,

he believed “it was absolutely the right thing to do.” Taken in context, the

conversation had little or no relevance to the insanity defense.

In summary, the record of this case demonstrates that Samples served his

government well as a member of the armed forces. But the same cannot be said of the

government’s service to Samples as a defendant in this trial.

The Supreme Court has explained what a defendant and jury may expect from

a prosecutor in a fair trial:

The United States Attorney is the representative not of an

ordinary party to a controversy, but of a sovereignty whose obligation

to govern impartially is as compelling as its obligation to govern at all;

and whose interest, therefore, in a criminal prosecution is not that it shall

win a case, but that justice shall be done. As such, he is in a peculiar

and very definite sense the servant of the law, the twofold aim of which

is that guilt shall not escape or innocence suffer. He may prosecute with

earnestness and vigor–indeed, he should do so. But, while he may strike

hard blows, he is not at liberty to strike foul ones. It is as much his duty

to refrain from improper methods calculated to produce wrongful

conviction as it is to use every legitimate means to bring about a just

one.

It is fair to say that the average jury, in a greater or less degree,

has confidence that these obligations, which so plainly rest upon the

prosecuting attorney, will be faithfully observed. Consequently,
-31-

improper suggestions, insinuations, and, especially, assertions of

personal knowledge are apt to carry much weight against the accused

when they should properly carry none.

Berger v. United States, 295 U.S. 78, 88-89 (1935) (granting Berger a new trial based

on prosecutor’s misconduct and reasoning “[i]f the case against Berger had been

strong, or, as some courts have said, the evidence of guilt ‘overwhelming,’ a different

conclusion might be reached”). 

Consistent with Berger, this court grants a new trial if “the jury’s verdict could

reasonably have been affected by the prosecutor’s improper comments.” See United

States v. Conrad, 320 F.3d 851, 855 (8th Cir. 2003). In deciding this question, we

consider “(1) the cumulative effect of such misconduct; (2) the strength of the

properly admitted evidence of the defendant’s guilt; and (3) the curative actions taken

by the court.” Id.; see also Shurn v. Delo, 177 F.3d 662, 667 (8th Cir. 1999)

(vacating Shurn’s death sentence because, following prosecutor’s improper remarks

in closing argument, “reasonable probability exist[ed] that the error affected the

outcome of the penalty phase”). 

This was a close case. The jury faced a difficult task in determining whether

Samples knew right from wrong in committing the burglary, when unrefuted evidence

disclosed that defendant suffered a serious mental illness with aggravation into a

psychotic condition due to injecting the drug Interferon as ordered by physicians at

the government’s VA Hospital. 

Instead of presenting the prosecution’s case on this precise issue of Samples’s

knowledge of right and wrong on May 3, 2001 at the time of the robbery, the

prosecutor confused the issue and made grossly improper arguments to the jury,

which the district court failed to cure. As a result, Samples was deprived of a fair

trial. Instead of eleven years in prison as was the sentence in this case, he deserves

a new trial.

____________________