United States Court of Appeals

For the First Circuit

No. 09-1201

UNITED STATES OF AMERICA,

Appellee,

v.

ARTHUR MICHAEL KINSELLA,

Defendant, Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, U.S. District Judge]

Before

Lipez, Howard, and Thompson,

Circuit Judges.

Tina Schneider for appellant.

Renée M. Bunker, Assistant United States Attorney, with whom

Paula D. Silsby, United States Attorney, was on brief, for

appellee. 

October 14, 2010
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THOMPSON, Circuit Judge. Using standard investigative

techniques – including informants, controlled drug buys, and taperecorded conversations – law enforcement agents uncovered an

OxyContin-selling conspiracy centered in Maine. A morphine-like

narcotic, OxyContin is an oxycodone-based product often prescribed

to treat chronic pain. Putting the operation out of business,

agents arrested Arthur Michael Kinsella, a Canadian-based dealer who

had smuggled OxyContin into Maine. Later released on bail, Kinsella

skipped a re-arraignment hearing and so became a fugitive from

justice. Shipped back to Maine by Canadian authorities, Kinsella

faced charges of conspiring to possess and distribute oxycodone,

possessing oxycodone with intent to distribute, and willfully

failing to appear in court as required. See 21 U.S.C. §§ 846 and

841(a)(1), and 18 U.S.C. § 3146(a)(1).

Acting on Kinsella's motion, Judge (now Chief Judge)

Woodcock severed the oxycodone counts from the bail-jumping count

for trial purposes. After separate juries convicted Kinsella across

the board, Judge Woodcock sentenced him to 97 months in prison and

36 months of supervised release. Kinsella now challenges his

convictions and sentence on several fronts. For openers he argues

that multiple instances of prosecutorial misconduct deprived him of

his fair-trial rights. The first incident revolves around the

prosecutor's unobjected-to questioning of a cooperating witness,

Christopher Hitchcock. Caught pushing OxyContin for Kinsella,
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Hitchcock cut a deal with the government, concluded his case on

favorable terms – Judge Woodcock sentenced him to 24 months, well

short of the 20-year statutory maximum – and testified against

Kinsella at the drug trial. Kinsella's lawyer aggressively

confronted Hitchcock on cross-examination, using the plea agreement

and light sentence to attack his credibility. During the

government's redirect, however, Hitchcock revealed that Judge

Woodcock had sentenced him. Speculating that jurors hearing this

must have concluded that Judge Woodcock had already found Hitchcock

credible – why else would he have imposed such a "lenient" sentence?

– Kinsella insists that justice demands that he get a new trial on

the drug counts. He also asserts that certain unobjected-to

comments by prosecutors during closing arguments warrant reversal

on plain-error review. Turning to sentencing, Kinsella contends

that Judge Woodcock erred in his drug-quantity calculation. After

a studied review of the briefs and the record, we affirm Kinsella's

convictions and sentence.

BACKGROUND

We present the facts in the light most favorable to the

guilty verdicts, consistent with record support. See, e.g., United

States v. Bunchan, 580 F.3d 66, 67 (1st Cir. 2009).
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How the Charges Arose

The OxyContin conspiracy

In December 2003, agents with the federal Drug

Enforcement Administration (DEA) heard that Gregory Panther was

selling Canadian-made OxyContin pills in Maine. Hoping to work

their way up the drug-distribution ladder, agents had an informant

make a controlled buy from Panther in March 2004. Panther's actions

led to his arrest in June 2004 – an arrest that also netted

Panther's dealer, Richard Hopkins.

Deciding to cooperate, Hopkins identified Christopher

Hitchcock as his supplier and said Hitchcock had a Canadian

supplier. At the agent's request, Hopkins made a series of recorded

calls to Hitchcock in the fall of 2004. Speaking in code, Hopkins

asked Hitchcock for all the OxyContin that he could get. Hitchcock

tracked down Kinsella, got 90 OxyContin pills, and sold them to

Hopkins in December 2004. Each pill had a "CDN" stamp on one side

(indicating that it had been manufactured in Canada) and an "80"

mark on the other (suggesting that it was an 80-milligram tablet).

His interest piqued, Fred Luce, a DEA task-force member,

then subpoenaed Hitchcock's phone records. Perusing the papers,

Luce noticed a lot of calls on the day of the controlled buy between

Hitchcock and Kinsella, often following calls between Hopkins and

Hitchcock. Hopkins later asked Hitchcock for more pills, and

Hitchcock called Kinsella to score some more. The deal never
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happened, however, because agents arrested Hitchcock in February

2005.

Seeing the writing on the wall, Hitchcock agreed to help

the government arrest and convict Kinsella. Hitchcock had known

Kinsella for years. They both frequented a Bangor, Maine racetrack,

and they trusted each other. Hitchcock had even bailed Kinsella out

of a previous scrape with the law. 

For a year to a year and a half before his February 2005

arrest, Hitchcock served as a go-between for Kinsella and Hopkins.

Every 3-6 weeks, Hitchcock got 90-180 pills from Kinsella (his sole

supplier) and sold them to Hopkins (his sole customer) at around $34

a pill. Conceding that he had trouble remembering exact dates,

Hitchcock said that sometimes more than 6 weeks passed between

transactions, and that one time Kinsella handed him 270-300 pills

to sell. Turning the drug money over to Kinsella, Hitchcock

occasionally got $100-$200 and a free meal for his work. 

With Hitchcock on board, DEA agents contacted the Royal

Canadian Mounted Police to see what information they had on

Kinsella. Getting his Canadian license plate number, agents pieced

together that Kinsella's minivan had crossed the border into Maine

a couple of hours before the December 2004 Hitchcock-Hopkins drug

deal. Phone records revealed that Kinsella and Hitchcock had called

each other right around the time the deal transpired. That is not

surprising – they called each other a lot, 79 times, in fact,
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between July 2004 (right around the time Hopkins fingered Hitchcock

as his supplier) and February 2005 (when agents arrested Hitchcock).

Agents had Hitchcock call Kinsella over the next month or so to set

up another deal. During these recorded conversations, the two used

code words. "Birthday party" meant drug deal. "More people" meant

more pills. "How much a dinner plate?" meant how much per pill.

Looking to do another deal in March 2005, Kinsella asked

Hitchcock on tape whether it was "cool or what." "Yeah," Hitchcock

said, "should be no problem." "I assume there's going to be 90 or

100 at most," Kinsella said later. "We got to go to 34, though,"

he added. Hitchcock and Agent Luce knew what Kinsella was doing:

he was confirming that he would hand Hitchcock 90-100 OxyContin

pills to sell at a price of $34 per pill. Convinced that they had

a meeting of the minds, Kinsella told Hitchcock that they should

meet up at a Bangor Burger King at 8 p.m. on March 19.

Armed with this information, the DEA asked local police

to help nab Kinsella before he got to the Burger King. At about

7:45 p.m. on March 19, a police officer spotted Kinsella's minivan,

saw him tailgating another vehicle, and pulled him over. Admitting

to the moving violation, Kinsella told the officer he had come from

Canada to pick his sister up at the Bangor airport. In fact, his

sister had left Maine and flown back home some 14 hours earlier.

Kinsella also said that he had no illegal drugs and was not taking

any prescription medicines. A consented-to search of his minivan,
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however, turned up a leather organizer tucked in between the front

seats. Finding a prescription bottle in Kinsella's name inside, the

officer counted 100 green pills, each marked "CDN" on one side and

"80" on the other. Doing an about-face, Kinsella now said that the

pills were his. He also handed over his cell phone, which had

Hitchcock's number saved in the address book. 

Arrested and booked that night, Kinsella wound up in

jail. Calling his mother, Kinsella asked her to give Hitchcock's

phone number to his brother, Rick Kinsella. "[T]ell Rick" to "tell

[Hitchcock] what happened," Kinsella said. Kinsella apparently

wanted Hitchcock to bail him out. Calling Rick the next day,

Kinsella heard that no one had gotten in touch with Hitchcock.

"[D]on't call him no more," Kinsella told Rick. "[H]e wouldn't have

the money to bail me out anyway." Kinsella's jailers recorded each

call. 

A magistrate judge eventually released Kinsella on

personal recognizance in April 2005. The release order forbade

Kinsella from leaving Maine, required him to report to a pretrial

services officer (PSO), and commanded him to appear at scheduled

proceedings. The order also alerted him to the penalties he might

incur if he violated these terms. Driving all this home at a

meeting three days later, PSO Wade Maddox gave Kinsella a business

card with contact information and told him to check in with

probation every week. 
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That same month, a federal grand jury indicted Kinsella

on two counts. Count 1 charged that Kinsella conspired to possess

and distribute oxycodone-based substances from January 2003 to June

2004. See 21 U.S.C. §§ 841(a)(1) and 846. Count 2 alleged that

Kinsella possessed with intent to distribute oxycodone-based

substances on March 19, 2005 – the date of his arrest. See 21

U.S.C. § 841(a)(1). Kinsella pleaded not guilty at his arraignment.

The bail-jumping

Claiming that he needed to return to Canada for medical

treatment, Kinsella asked the magistrate judge in May 2005 to modify

his release conditions so he could live there. He promised that he

would not miss any court hearings. Releasing him on $5,000 bail,

the magistrate judge still required Kinsella to appear at scheduled

proceedings and to stay in touch with the PSO. Kinsella promised

he would but did not keep his word: after the grand jury returned

a superseding indictment extending the conspiratorial period to

December 2004, Kinsella stopped calling probation (though PSO Maddox

did not turn him in) and missed a scheduled re-arraignment.

Kinsella had known about the re-arraignment date – August 2, 2005,

his lawyer, Matthew Erickson, had told him, stressing that Kinsella

had to be there – but Kinsella stayed in Canada anyway. 

Declaring him a fugitive from justice, the magistrate

judge signed a warrant for Kinsella's arrest. Erickson called

Kinsella that day and learned that Kinsella had made no effort to
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cross the border into the United States. Mentioning the arrest

warrant, Erickson told Kinsella that an indictment for failing to

appear would no doubt follow – and it did, three months later.

Apparently unmoved by all this, Kinsella chose not to turn himself

in. 

Canadian authorities placed Kinsella in custody in

October 2006. Challenging his extradition under that country's

laws, Kinsella lost an appeal and returned to the United States in

September 2007, in cuffs and escorted by Mounties. Facing a

superseding indictment that added a bail-jumping count to the old

drug charges, Kinsella asked Judge Woodcock to sever the drug counts

from the bail-jumping count for trial. Granting the motion, Judge

Woodcock ordered a trial on the bail-jumping count first, followed

by a trial on the drug charges. 

How the Trials Unfolded

The bail-jumping trial

Thanks to some pretrial stipulations, the only issue at

play during the two-day bail-jumping trial was whether Kinsella had

willfully failed to appear at the re-arraignment – and there was

enough for the jury to find beyond a reasonable doubt that he had.

Kinsella's repeated open-court pledges to return for scheduled

proceedings practically leapt from the pages of the bail-hearing

transcripts, which the lawyers had stipulated into evidence. The

jury also heard from PSO Maddox, who testified about discussing the
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release conditions with Kinsella, handing him a card with a tollfree number to use in checking in with probation, and hearing

nothing from him leading up to and following his no-show at the

scheduled re-arraignment. Attorney Erickson testified about

notifying Kinsella of the date and time of the re-arraignment,

reminding him he had to be there, giving him a heads-up on the

arrest warrant and the failure-to-appear charge after his no-show,

and hearing how he had made no effort to cross the U.S. border to

make the re-arraignment and was bent on fighting extradition.

Cinching matters, a deputy U.S. Marshal testified about how the

Mounties hauled a hand-cuffed Kinsella back to the United States two

years after he had skipped the re-arraignment. 

Ultimately, though, Kinsella does not contest the

sufficiency of the evidence against him. Instead he attacks the

prosecutor's closing argument, which, he says, represented an

improper appeal to the jurors' emotions. After Judge Woodcock

instructed the jury that the government had the burden of proving

guilt beyond a reasonable doubt and that closing arguments are not

evidence, the prosecutor began his summation with this statement:

This case is important because we all can

appreciate the need for defendants who are

charged with crimes to appear in court. Our

courts have a very important function in the

United States, and they cannot carry out their

responsibilities if defendants in criminal

cases are allowed to ignore the promises that

they make to judges, to disobey court orders,

and to fail to appear in violation of the law.
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Defense counsel did not object. Building to a crescendo, the

prosecutor later stressed that a person who shows up to a hearing

"two hours" or even "two days late" may "not be willful," but a

person who fails to call his PSO, who fails to self-surrender, who

fights extradition and then only returns in cuffs two-plus years

after his no-show "has willfully failed to appear in court." The

jury must have agreed – it found Kinsella guilty after deliberating

for about 38 minutes.

The drug trial

A four-day trial on the drug charges followed, and the

evidence against Kinsella was strong: phone records, recorded

calls, and testimony from Hitchcock, Agent Luce, and the arresting

officer helped nail down his guilt. Kinsella does not contend that

the evidence could not support conviction. Instead his trial-error

claims target the prosecutor's questioning of Hitchcock and the

prosecutor's closing argument, so we highlight here only those facts

needed to put these issues into proper perspective. 

Throughout the trial, defense counsel never missed an

opportunity to paint Hitchcock as a plea-bargained witness who had

set Kinsella up to avoid a 20-year sentence. Hitchcock needed

someone – anyone – so he would not be "left holding the bag,"

Kinsella's lawyer said in her opening statement. Pulling no

punches, defense counsel asked Hitchcock on cross-examination

whether he had "cooperated with the government" so he "wouldn't have
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to do as much time." "Yes," Hitchcock said, conceding, too, that

he was testifying for the prosecution as part of his plea agreement

and that he could have received a 20-year rather than a 2-year

sentence had he not cooperated. Hitchcock also admitted that he

"would do anything" to get his old life back.

On redirect the prosecutor tried to focus on the

sentencing process. Asking Hitchcock to recall defense counsel's

questions about the "sentence" and the "cooperation agreement with

the government," the prosecutor queried: "Do you remember where you

were sentenced, where your sentence took place?" "Right here,"

Hitchcock said, in "this courthouse." The prosecutor then asked –

and this is the allegedly offending question – whether Hitchcock

recalled "who" had sentenced him. "Judge Woodcock," Hitchcock

replied. "And who decided what your sentence was?" the prosecutor

inquired. "The judge," Hitchcock said. Kinsella's lawyer neither

objected to the prosecutor's questions nor moved to strike

Hitchcock's responses. Instead she confirmed with Kinsella on recross that "the judge" had decided his sentence after the government

had agreed to ask for "less time."

Before closing arguments, Judge Woodcock cautioned the

jurors to consider Hitchcock's testimony with great care.

Cooperating witnesses, he said, are not always truth-tellers – they

sometimes spin lies about what others have done to save themselves

jail time, so the jurors had to consider whether Hitchcock had an
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ax to grind against Kinsella or had received any reward for

cooperating with the prosecution. Hitchcock's guilty plea was fair

game in assessing his credibility, Judge Woodcock said, but the

jurors could not consider his plea as evidence against Kinsella "in

any way." Judge Woodcock also told them that counsel's arguments

are not evidence and that they were the sole triers of fact and

determiners of witness credibility. 

In closing argument the prosecutor hammered home the

evidence against Kinsella – the controlled drug buys, Hitchcock's

pinning Kinsella to the crimes, the coded conversations about

OxyContin, Kinsella's agreeing to slip Hitchcock 100 or so OxyContin

pills on March 19 at a Bangor Burger King, Kinsella's lying to a

police officer that evening about having to drive to a Bangor

airport to pick up his sister, the officer's seizing 100 pills from

him after Kinsella lied about having no pills, etc. Regarding the

recorded jailhouse calls, the prosecutor said:

[Kinsella] knows Chris [Hitchcock]; he knows

the number; and he wants someone to call

Chris. First and foremost, if [Kinsella] can

off-load the Oxy, theoretically, he could get

some money if he needed to make bail or

anything else of that nature. But he knows

Chris; he knows the number; and he provides

the same number that's been called all along.

There was, in fact, no evidence that Kinsella had tried to deal

OxyContin from jail. But defense counsel did not object. Instead

she argued in her closing that sloppy investigative work caused the

police to arrest an "innocent man." Hitchcock had told a pack of
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lies to avoid a 20-year sentence, defense counsel said. Hitchcock

needed a "patsy" – someone he could roll over on – and Kinsella

would do just fine. Not so, the prosecutor said in his rebuttal

closing argument. "There's no cheating here, and there's no

conspiracy to frame" Kinsella. After about five hours of

deliberations, the jury convicted Kinsella on the OxyContin-related

counts. 

Kinsella filed a timely new-trial motion. See Fed. R.

Crim. P. 33(b)(2). His lead argument was that the prosecutor

crossed the line by prompting Hitchcock to say that Judge Woodcock

had sentenced him – a comment Kinsella insists suggested to the jury

that the Judge (who had given Hitchcock a 2-year sentence out of a

possible maximum sentence of 20 years) had believed every word

Hitchcock said on the stand. Calling Kinsella's claim "odd and

elusive," Judge Woodcock ruled that the prosecutor never tried to

put a stamp of judicial approval on Hitchcock's testimony and never

even intimated that the jury should find one. The prosecutor simply

wanted to rehabilitate Hitchcock, Judge Woodcock stressed. Invoking

the saying "once burned, twice shy," Judge Woodcock found that this

evidence implied that Hitchcock would think twice before perjuring

himself "in front of a judge who had already sentenced him to

prison." Finding no caselaw to bolster the "fanciful" notion that

the prosecutor had "somehow vouched for the judge's knowledge of
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[Hitchcock's] credibility," Judge Woodcock denied Kinsella's newtrial motion.

How the Sentence Worked Out

Acting under the now-advisory federal sentencing

guidelines, Judge Woodcock set out to compute the relevant guideline

sentencing range. Defense counsel and the prosecutor started

sparring over whether each OxyContin pill contained 75 or 80

milligrams of oxycodone. Testing a randomly selected sample of 25

OxyContin tablets taken from Kinsella, a DEA chemist had put the

number at 75 milligrams. Believing that that issue might not matter

depending on what other findings he made, Judge Woodcock decided to

focus first on the length of the conspiracy and the amount of drugs

involved. 

The probation office's presentence investigation report

had noted that the conspiracy spanned 2003-2005. And, after

commenting that Hitchcock had peddled Kinsella's drugs for 12-18

months, the report pegged the conspiracy's length at 18 months.

Kinsella asked Judge Woodcock to find a 12-month conspiracy. But

he never asked the Judge to say – and the Judge never said – where

the 12-month period fit on the 2003-2005 time-line. Finding

Hitchcock completely credible, Judge Woodcock put the conspiracy's

length at 12 months because he thought that Hitchcock's "good faith"

estimate about a 12-18 month conspiracy was somewhat sketchy. 
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Zeroing in on Hitchcock's drug-quantity testimony – that

Kinsella had handed him 90-180 pills every 3-6 weeks, though

sometimes they went more than 6 weeks between deals and 1 deal

involved 270-300 pills – Judge Woodcock settled on numbers

"favorable" to Kinsella: 7 total transactions during the year, 6

involving 90 pills each and 1 involving 270, which netted 810

tablets. But he quickly added that he "easily" could have picked

less defendant-friendly numbers – a 135-pill transaction every 4

weeks or so, for example, with a 300-pill deal added to the mix. 

In any event, if each pill weighed 80 milligrams, Judge

Woodcock said, then Kinsella was responsible for 64.8 grams of

oxycodone (810 x 80 = 64,800 milligrams or 64.8 grams), which

converted into a marijuana equivalent of 434.160 kilograms, which

resulted in a base offense level of 28. See USSG § 2D1.1(c)(6),

cmt. n.10(B) (directing courts to convert quantities of certain

drugs into equivalent units of marijuana for sentencing purposes),

and cmt. n.10(E) (laying out the drug equivalency tables). Even if

the pills weighed 75 milligrams apiece, Kinsella's base offense

level would still be 28, defense counsel conceded after re-checking

the Judge's math – so that issue dropped out of consideration.

Judge Woodcock then added 2 levels for obstruction of justice,

resulting in a total offense level of 30. Given the lack of any

meaningful criminal history, Judge Woodcock's calculations produced

a guideline sentencing range of 97-121 months. The Judge then
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sentenced him to 97 months in prison plus three years of supervised

release.

Further details will be noted as needed.

ANALYSIS

With pretty strong cases against him, Kinsella does not

attack the adequacy of the evidence underlying either conviction.

Instead he contends that three instances of alleged prosecutorial

misconduct – pivoting on the prosecutor's redirect of Hitchcock and

closing-argument comments at each trial – robbed him of his fairtrial rights. He also insists that Judge Woodcock erred in his

drug-quantity calculation and therefore selected an overly harsh

sentence. We are not persuaded.

 Prosecutorial Misconduct

In our adversarial system of justice, litigants must

alert trial courts to "error-in-the-making." United States v.

Griffin, 818 F.2d 97, 100 (1st Cir. 1987). The reasons behind this

rule are simple. A timely objection lets the trial judge correct

any errors to avoid needless reversals and remands. See, e.g.,

United States v. Dominguez Benitez, 542 U.S. 74, 82 (2004). It also

deters "sandbagging" lawyers from hiding objections below so that

they can surface them on appeal if the jury does not acquit. See,

e.g., United States v. Taylor, 54 F.3d 967, 972 (1st Cir. 1995).

Like most rules, this rule has an exception: a defendant can pursue

an unpreserved claim on appeal under the difficult-to-meet plain-
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error standard. See, e.g., United States v. Eisom, 585 F.3d 552,

556 (1st Cir. 2009). That standard has three essential factors and

one discretionary component. The essentials are (1) error that (2)

is obvious and (3) affected the outcome of the defendant's case.

See, e.g., United States v. Riccio, 529 F.3d 40, 45 (1st Cir. 2008).

Even if a defendant can show all of this, we have the discretion not

to intervene if we conclude that the error does not distort the

fairness or integrity of lower court proceedings in some extreme

way. See, e.g., United States v. Moran, 393 F.3d 1, 13 (1st Cir.

2004).

Because Kinsella's trial lawyer failed to preserve the

prosecutorial-misconduct issues through timely objections, the

plain-error standard controls. The only slight wrinkle is that

defense counsel did raise the redirect-examination issue in a newtrial motion. But that is still an unpreserved claim, so the plainerror rule applies here too. See United States v. Brandao, 539 F.3d

44, 57 (1st Cir. 2008). Ultimately, though, we see no reason to

upset either verdict. Cf. United States v. Shoup, 476 F.3d 38, 43

(1st Cir. 2007) (noting that "[a]ppellate reversal for plain error

is extremely rare," adding that a defendant is not entitled to a

"'perfect' trial").

Redirect of Hitchcock – drug trial

Kinsella complains about the prosecutor's prompting

Hitchcock to say on redirect that Judge Woodcock had sentenced him
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in the same Bangor courtroom – testimony Kinsella says conveyed to

the drug-trial jury that Judge Woodcock had already accepted

Hitchcock's allegations as gospel. To back up his claim, Kinsella

contends that Judge Woodcock's "'once burned, twice shy'" comment

– that Hitchcock would not perjure himself before the judge who had

sentenced him – confirmed that the jury could infer that Hitchcock

told the truth because the Judge had already heard his story and

would spot any lies. We see no error here, plain or otherwise. 

At every turn, Kinsella's counsel urged the drug-trial

jury to conclude that Hitchcock was a liar who did the government's

bidding under the plea agreement to skirt a 20-year sentence. To

counteract this implication, the prosecutor used redirect to correct

any impression that the government had decided Hitchcock's sentence

– and rightly so.

Contrary to Kinsella's contention, we are not 100%

certain that the prosecutor's question – "Do you remember who

sentenced you?" – sought to elicit the Judge's name rather than the

fact that a judge, not the government, had selected Hitchcock's

sentence. Regardless, the prosecutor never so much as hinted that

Judge Woodcock had already heard Hitchcock's narrative or had found

him credible, and the Judge's later instruction that Hitchcock may

have lied to save himself undermines Kinsella's claim. Also, the

prosecutor did not follow up on the defense's recross of Hitchcock

– which again intimated that Hitchcock's light sentence flowed from
 Like her trial counterpart, Kinsella's appellate lawyer 1

attacks Hitchcock's credibility, suggesting that his account is

simply not believable. But one cannot expect witnesses in a

criminal case to "possess the credibility of people of the cloth,

such as rabbis, [ministers], priests, and nuns; that is why one of

the jury's roles is to decide the credibility of witnesses."

United States v. Rovetuso, 768 F.2d 809, 818 (7th Cir. 1985).

Ultimately, the jurors believed Hitchcock not because he is an

upstanding citizen but because his testimony apparently resonated

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his cooperation agreement – and did not touch on this supposedly

improper issue during closing arguments. Finally, we see no problem

with Judge Woodcock's "'once burned, twice shy'" statement: the

plea agreement – admitted into evidence – reserved the prosecutor's

right to charge Hitchcock with perjury if he testified falsely, and

one can properly conclude that "a witness who has already agreed to

testify against others would likely not jeopardize the potential

benefits of providing such testimony – assuming it is truthful – by

testifying untruthfully . . . ." United States v. Carr, 424 F.3d

213, 229 (2d Cir. 2005). Viewed in this light, we believe the

prosecutor did not overstep his bounds here. See United States v.

Sanchez, 251 F.3d 598, 603 (7th Cir. 2001) (not error for the

prosecutor to stress during redirect-examination and closing

argument that the trial judge, "Judge Young, not the government,

would ultimately determine the sentence of each cooperating

witness," holding that the prosecutor's actions "were invited by

defense counsel's characterization of the sentencing process" and

did not stray beyond the limits of fair advocacy). Consequently,

there is no error at all, let alone plain error. 

1
with them.

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Closing argument – bail-jumping trial

Kinsella also accuses the prosecutor of misconduct during

closing argument in the bail-jumping trial. As he sees things, the

prosecutor talked about issues having nothing to do with his guilt

or innocence, riling up the jurors by saying that this is an

"important" case because our courts cannot function if criminal

defendants can ignore promises made to judges, disregard court

orders, and fail to appear as required. Kinsella's trial lawyer did

not object, so we review for plain error, asking the usual

questions, including whether Kinsella has shown both error and

prejudice. See, e.g., United States v. Olano, 507 U.S. 725, 732-33

(1993). He has not. 

Prosecutors can talk about "the importance of the case"

in summation. United States v. Cotter, 425 F.2d 450, 452 (1st Cir.

1970) (emphasis added) (discussing the "basic ground rules" of

closing arguments). But they cannot suggest that jurors have a

civic duty to convict, see Viereck v. United States, 318 U.S. 236,

248 (1943), and the prosecutor skated perilously close to the edge

with his courts-not-being-able-to-function comments. Troubled as

we are by this, we conclude that Kinsella's plain-error claim still

fails. We explain briefly.

The prosecutor's isolated remarks were not part of a

concerted effort to incite the jury – they were introductory only,
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setting up the litany of evidence against Kinsella that the

prosecutor ticked off: Kinsella's repeated promises to return to

court, his not calling the PSO as required, his staying in Canada

on his re-arraignment day, his dogged attempts to avoid extradition,

etc. Kinsella's guilt of bail-jumping is so clear that the

prosecutor's passing remarks could not have swayed the trial's

outcome. Also, defense counsel played down Kinsella's conduct

throughout the trial – for example, counsel got PSO Maddox to admit

on cross that he did not turn Kinsella in the second Kinsella

stopped calling the PSO office, which suggested that the matter was

not really important – and the prosecutor had the right to respond.

See generally United States v. Paradis, 802 F.2d 553, 561 (1st Cir.

1986). Consequently, none of the challenged statements constitutes

plain error in the context of this case. Cf. Taylor, 54 F.3d at 972

(emphasizing that the plain-error doctrine focuses on

"'blockbuster[]'" errors, not on routine miscues that may tarnish

the trial record); United States v. Sepulveda, 15 F.3d 1161, 1188

(1st Cir. 1993) (similar). 

Closing argument – drug trial

Kinsella also criticizes the prosecutor's drug-trial

summation, which, he says, discussed a matter not in evidence –

namely, that Kinsella had tried to sell OxyContin from jail.

Kinsella is right. Discussing the recorded calls from jail, the

prosecutor said they showed that Kinsella wanted to "off-load Oxy"
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to make bail – but there was nothing in the tapes about that.

Undaunted, the government tries to soft-pedal this problem by

calling the prosecutor's comment "ambiguous" and reminding us that

we cannot carelessly infer that a prosecutor intended an enigmatic

remark to have its most damaging meaning. This is just plain wrong.

There is no ambiguity in what the prosecutor said (the prosecutor's

words could not have been plainer or more explicit), and what he

said had no record support. Kinsella's trial lawyer did not object,

however, so the plain-error standard again takes center stage.

A prosecutor's mission is not simply to rack up

victories, "but to win fairly, staying well within the rules."

United States v. Kojayan, 8 F.3d 1315, 1323 (9th Cir. 1993); accord

United States v. Rodriguez-Estrada, 877 F.2d 153, 158-59 (1st Cir.

1989). Here, the prosecutor strayed into a forbidden zone by

discussing something not in evidence. See, e.g., United States v.

de Leon Davis, 914 F.2d 340, 345 (1st Cir. 1990). But even the

plainest of errors requires reversal only if the error caused

prejudice and (if not fixed) a miscarriage of justice. See, e.g.,

United States v. Hilario-Hilario, 529 F.3d 65, 76 (1st Cir. 2008).

Kinsella can show neither here. 

Calling the government's case "thin," Kinsella contends

that the prosecutor's unsupported comment had to have influenced the

jury's verdict. But the evidence against him – the controlled drug

buys, the phone records, the taped conversations veiled in code,
-24-

etc., much of which corroborated Hitchcock's account – was

compelling enough. Critically, too, the prosecutor's line-crossing

comment was a single unobjected-to sentence from a four-day trial,

occurring after Judge Woodcock had told the jurors not to consider

counsel's arguments as evidence. Compare United States v. Procopio,

88 F.3d 21, 31 (1st Cir. 1996) (explaining that the defense's

failure to object may indicate "that, in the conditions of the

courtroom, the passage in question passed by as mere rhetoric") with

United States v. Robinson, 473 F.3d 387, 398 (1st Cir. 2007) (noting

that the district judge's "general instructions" that jurors could

not consider closing arguments as evidence undercut the defense's

plain-error claim). Given all this, we conclude that the

prosecutor's improper remark does not merit reversal on plain-error

review.

Drug-Quantity Calculation

Moving from conviction to sentence, Kinsella contends

that Judge Woodcock's drug-quantity computation is doubly flawed:

first because it held him culpable for 12 rather than 6 months of

drug dealings, and second because it assigned 80 rather than 75

milligrams of oxycodone to each pill. The government counters that

Kinsella forfeited the 6 vs. 12 months argument and waived the 75

vs. 80 milligram claim. See generally Eisom, 585 F.3d at 556

(stressing that waiver precludes review while forfeiture permits

review, albeit only for plain error). Even if we assume for
-25-

argument's sake that Kinsella preserved both claims, see generally

United States v. Webster, 54 F.3d 1, 5 (1st Cir. 1995) (taking a

similar approach in an analogous situation), he still faces an

uphill battle – and it is a battle that he cannot win. 

The government need only prove drug amounts by a

preponderance of the evidence, a district judge can make credibility

calls, a drug-quantity calculation is a factual finding, and we

review those findings deferentially, reversing only for clear error.

See, e.g., United States v. Platte, 577 F.3d 387, 392-93 (1st Cir.

2009), cert. denied, 130 S. Ct. 1098 (2010); Sepulveda, 15 F.3d at

1198. Clear error is not an easy standard to meet: "[a]bsent a

mistake of law" – and we see none here – we must respect the judge's

findings "unless, on the whole of the record, we form a strong,

unyielding belief that a mistake has been made." Platte, 577 F.3d

at 392 (quotation marks omitted).

Calculating drug quantity is not a science, and a

district judge tasked with this job is not required to be a

mathematician or to make findings with computerized certainty. See,

e.g., id. at 392-93. When there are no hard drug-quantity numbers,

a reasoned estimate will do, and when the record supports more than

one estimate, the judge's selection "from among plausible

alternatives cannot be clearly erroneous." United States v.

Morillo, 8 F.3d 864, 871 (1st Cir. 1993). Consistent with these

principles, our job "is not to see whether there is any view of the
-26-

evidence that might undercut the district court's finding; it is to

see whether there is any evidence in the record to support the

finding." United States v. Wade, 114 F.3d 103, 105 (7th Cir. 1997)

(citing Anderson v. City of Bessemer, 470 U.S. 564, 573-74 (1985)).

And if the judge makes incorrect findings but the record still

supports the end result, the error is harmless and no remand is

needed. United States v. Correa-Alicea, 585 F.3d 484, 489 (1st Cir.

2009), cert. denied, 130 S. Ct. 1909 (2010).

 In his briefs to us, Kinsella constructed an elaborate,

multi-premised argument as to why Judge Woodcock clearly erred in

his drug-quantity calculations. Kinsella agreed with the Judge's

finding that the conspiracy lasted 12 months. But he told us that

the conspiracy ran from December 2003 to December 2004 (the date of

the last Kinsella-to-Hitchcock-to-Hopkins deal), even though the

Judge did not find (and was not asked to find) where the 12-month

term fit on the 2003-2005 time-line. Hitchcock testified that he

only sold Kinsella's pills to Hopkins, and agents collared Hopkins

in June 2004, which, Kinsella said, put Hopkins out of the drugbuying business for 6 months, until the December 2004 controlled

buy. Putting it all together, Kinsella contended that Judge

Woodcock's finding of 7 deals during the 12-month conspiracy could

not stand because the Judge did not factor this 6-month hiatus into

his drug-quantity analysis. 
-27-

But Kinsella's counsel changed ground at oral argument,

claiming for the first time that the 12-month period ran from

February 2004 to February 2005 (the date of Hitchcock's arrest), a

claim counsel repeated in a post-argument letter. That is too late.

An appellant cannot surface at oral argument points omitted from the

opening brief, see Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st

Cir. 1990), so we need only concern ourselves with the argument

premised on the December 2003-December 2004 period. 

The argument goes nowhere. Nothing in the record

compelled Judge Woodcock – or compels us – to take so myopic a view

of the conspiracy's duration. But even if we accept the December

2003-December 2004 argument, it is easy to come up with a pill total

that supports the assigned base offense level of 28 without

including the 6-month hiatus. Using variables that mirror the

Judge's defendant-friendly findings – a deal roughly every 7 weeks,

1 involving 270 tablets and the rest involving 90 pills each – we

get 5 pre-hiatus deals yielding 630 pills (270 + (4 x 90) = 630).

Adding in the 90 pills from the December 2004 controlled buy ups the

conspiracy's pill tally to 720. And throwing in the 100 pills from

Kinsella's March 2005 arrest (which formed the basis of the

possession-with-intent-to-distribute count on which he was

convicted) brings the tablet total to 820 (10 more than the Judge

found) – a total that still puts Kinsella in base offense level 28
-28-

regardless of whether each pill contained 75 or 80 milligrams of

oxycodone. Consequently, the sentence stands.

CONCLUSION

For the reasons voiced above, we affirm Kinsella's

convictions and sentence. 

So ordered.