1

06

- 05 94

- cr U

. S. A

. v. W al ker 1 UN ITED STA TES C OU RT OF AP P EA LS 2 F OR THE SE CO ND CI RC UI T

3 August Term, 2007 4 5 (Argued: J anuar

y 17, 2008 Dec ided: J une 19, 2008)

6 Docke t No. 06-0594-c r

7 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X 8 UNI TED STATES OF AMERI CA, 9 Appellee , 10 v. 11 12 KENNO N AUNRI J OHNSON, 13 Defendant , 14 ERN EST J. WAL KE R, 15 Defendant- Appellant

. 16 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X 17 18 19 20 Be fore : J ACOBS, Chief Judge , L EVAL and CAB RANES, Circuit Judges

. 21 22 Def

endant a ppeals fr om conviction following a jury trial in the Unit ed States District Court 23 for the District of Vermont (Sessions, C.J. ) for conspiringto distribute 50 or more g rams of c ocaine 24 base. The defe ndant contends that numerous ins tance s of i mproper incriminating te stimony elicited 25 by

the As sis tant Un ite d State s A tto rn e y fr om a g ov e rn me nt a g e nt, but no t ob

je c te d to , amou

nte d to 26 plain err or. Be cause the evidenc e was overwhelming and the testimony , althoug h clea rly improper, 27 had no ef

fec t on the jury

verdic t, we af

firm the convic tion.None of the Assistant United States Attorney s who prese nted the ca se to the cour t of 1 a pp e a ls i s th e As sis tant who pr os e c ute d it in t he dis tr ic t c ourt

. 2 1 GREGORY L . WAPL ES, Assistant United States 2 Attorney for the D i s t rict of Ve rmont (Thomas D. 3 Ander son, United St ates Attorne y , Paul J . Van De 4 Gra af, Chief , Criminal Divisi on, o n the brief ), for 5 Appellee s . 6 JEREM Y G . E PSTE I N, She arman & Ste rl ingL L P, 7 N e w Y o r k , N e w Y o r

k ( P a u l a M

. H o w e l l , J am e s L. 8 Athas, of c ounsel, on the brief ), for Appellant

. 9 L EVAL , Circuit Judge : 10 11 Def

endant- Appellant Erne st J . Walker appe als from c onviction following a jury trial in the 12 United States District Court for the District of Ver mont (Sessions, C.J. ) f

or c on sp ir ingto d istri bute 13 50 or more grams of c ocaine base in violation of 21 U.S.C. §§ 841(b)(1) (a) and 846. Walker 14 contends that his conviction is tainted by numerous instance s in which the Assistant United States 15 Attorney (AUSA) e licited improper, pr ejudicial testi mony by a Specia l Ag ent of the D rug 1 16 Enforc ement Administration (DEA). Althoug h we a g ree with Walker that rec eipt of the a g ent’s 17 testimony

involved substantial and eg reg ious e v i d en t i ar y err ors, we must re view for plain err or 18 beca

use there was no objection to the i mproper testimony

. Under the pl ain error standard, we cannot 19 say

there was a

miscarr iag e of justice, be ca u s e t h e evidenc e of guilt was overwhe lming, and the 20 improper testimony , in our view, ha d no eff ect on the jury ’s ver dict. Wit h strong disapproval of the 21 g overnme nt’s tactic a nd some misgiving s, we ther efor e af firm the convic tion.

22 BACK GR OUND 23 A. Summary

of the Proper

Evidence Adduce d at Walker’s Tr ial 24 On April 2 , 2 0 0 2, Samuel Bolde n, and Richar d Har relson we re a

rre sted in Albany , New3 1 Yo rk . A n o un c e of c ra c k c oc a ine and

a g un we re fo un d in

their car. B old e n a g re e d to c oo pe rate 2 with law enf

orce ment. Under

the supervision of law

enfor ceme nt ag ents, he then made a ser ies of 3 phone ca lls to t he def endant Walker

conce aling the fac t of his a rre st, one of which was played for 4 the jury . In these c alls, Walker ag ree d to come to Ver mont to meet with Bolden. 5 Wal ke r d

ro ve to V e rm on t on

April 5, 20 02 . H e me t w ithB old e n in Wal ke r’ s c ar. Th e ir 6 conver sation was re corde d by a devic e the a g ents had hidden on Bolde n’s body

. Using code, which 7 B old e n inte rp re te d for the jur y , the y dis c us se d Bo lde n’ s pay me nt t o Wa lke r f

or the pr e vio us su

pp ly 8 of drug s (which unbe knownst to W alker had been seized by

law enf orce ment) and a

rra ng ements for 9 W a l k e r

t o r e s u p p l y dr u g s t o B o l d e n , w h i c hw o u l d r e qu i r e t h a tB o l d e ntr av e l t o N e w Y o r k C i ty. 10 Re pr e se nti ngit a s p ro c e e ds of the sa le of

the e arl ie r c on si gnmen t, B old e n g ave Wal ke r $ 21 00 (i n 11 fac t supplied by

g overnme nt ag ents) in pay ment for the pr evious supply of drug s. At the conc lusion 12 of the meeting , as Walker beg an to dr ive awa y , law enfor ceme nt a g ents stopped h i s v eh i cl e a nd 13 arr ested him. The $2100 wa s found on his person. 1 4 T h e p ro p er ev i d en ce aga i n s tW al k er i n cl u d edth e f

o l l o wi n g: 15 1. Re c or de d c onve rs a tio ns 16 17 Th e jur

y he ard the ta pes of tw o of B old e n’ s c on ve rs a tio ns wi th Wa lke r. In th e Ap ri l 3 18 telephone conver sation, they discussed t he drugs Bolden had previously rec eived from Walker and 19 arr ang ements for Walker to deliver a dditional drug s to Bolden, whic h would be paid f or wi t h the 20 proce eds fr om the sale of the first lot. Bolden told Walker the re w ould be “Tw o g s, two hundred,” 21 or $2200. 22 Th e se c on d ta pe wa s o f c onve rs ati on bet ween Wal ke r a nd B old e n in

Wal ke r’ s c ar i n 23 Ver

mont on April 5, 2002. W alker spoke of a

n ear lier drugtransac tion; Bolde n g ave Walker $21004 1 in pay

ment for the previous drug s; and they discussed how to g et additional drug s to Bolden. One 2 option was fo r Bolden to g et a r ide to Albany , wher e he c ould take public tra nsportation to New 3 York Ci ty . To this end, Bolde n called a friend, “ Kenny” (who was, in fa ct, DEA Spec ial Ag ent 4 Thomas Doud), a

nd asked whether Kenny

might drive him to Albany in exchang e for

drug s. Kenny 5 de c lin e d. Wal ke r a nd B old e n th e n d isc usse d d ri vin g tog e the r t o N e w Y or k to “ re -u

p” wi th 6 approximately

three to four thousand dollars w orth of cr ack. 7 2. Walker’s ora l confe ssion 8 Upon Walker’s a rre st, a ft er rec eiving a Miranda war ning a nd waivinghis rights, Walker 9 made a

detailed confe ssion. He confirme d what Bolde n had repor ted, with added de tails. W alker 10 explained that he had f irst started selling drug s in Vermont i n Fe b ru ar y 2002 with a drugdeale r 11 named Sam Collins. As part of their arrang ement, W alker would bring one to eig ht ounces of cra ck 12 to Ve rm on t a

pp ro ximate ly e ve ry oth e r we e k. Ev e ntu a lly , Wal ke r and Col lin s fe ll ou t. S hort ly 13 the re a ft e r, Col lin s w a s arr e ste d. Af te r C oll ins ’s arr e st i n M arc h 2 00 2, Wal ke r b e g an to wo rk wi th 1 4 Bolde n, wh o w a s a c o n f e d e r a te o f Co ll in s . Wa lk e r an d B o ld e n h a d p o o le d th e ir r e s o ur c es and 15 purc ha se d d

ru g s in New Yo rk City fo r B old e n to distr ibu te in V e rm on t. (These wer e the dr ug s later 16 found on B olden when he was a rre sted in Albany .) W al k er re p o rt edth at , d es p i t e B o l d en ’s u rgi n g, 17 he did not want to come up to Ve rmont, but e v en t u al l y agr eed to do so to collect the money that 1 8 B o l d e no w e d

t o h i mf o r th e p r e v i o u s s u

p p l y. 19 3. Walker’s wr itten confe ssion 20 On April 8, 2002, three day s after his arre st, W alker

signe d a re corde d confe ssion. After 21 statin g that he wa ive d h is r ig hts and wi sh e d t o c oo pe ra

te and that th e state me nt w a s g ive n “ fr e e ly 22 and voluntarily ,” he stated: “I started c oming to Ve rmont in Febr uary 9th or 10th of 2002. I

was5 1 coming to Vermont to conduc t narc otics business. Iwas told a lot of money could be made her e.” 2 4. Testimony of par ticipants in W alker ’s conspira cy 3 Four

participa nts in W alker ’s conspira cy , Fitzroy Watson, S usanne Car

y , Richard Ha

rre lson, 4 and Sam B olden testified ag ainst him. 5 Fitzroy

Watson testified that , s tarting around Ma rch 2002, he had re ceive d drug s from 6 Walker seve n or eig ht times. He rece ived about seven g rams ea ch time and would se ll some of the 7 drug s himself. Susanne Cary testified that she purc hased dr ug s from Wat son and that on two 8 occa sions she saw Walker w ith W atson pac kag ing dr ug s. Richard Ha

rre l s o n t es tified that he 9 purc ha se d at le a st a g ra m of c ra c k f ro m Wa lke r, and

that, a ft e r C oll ins ’s arr e st , Walk e r h a d c ome 10 to H arr e lso n’ s ho us e to pic k up fi re arm s, wh ic h Col lin s ha d le ft the re . Wal ke r p a id f or the fi re arm s 11 with $300 in cash and two gra m s of cr ack. H arr elson was late r ar rested w ith Bolden in Albany 12 br ing ingdr

ug s to Ve rm on t. 13 Sam Bolden te stified at leng th. H e rec ounted that he met Walker through Colli ns. Bolden 14 testified that he wor ked with Collins i n Ver

mont. After he had sold about an ounc e of c rac k, Walker 15 had supplied him with another “ like a half ounce or so.” Af te r Coll ins ’s arr e st, B old e n te sti fi e d th a t, 16 on his way

back to Ve rmont to sell an ounce of cra ck he had obtained from W alker , he was arr ested. 17 Bolde n confirme d that he had a g ree d to cooper ate with law e nfo rc em en t agents and arr ang ed for 18 Walker to come to Ve rmont to rece ive hi s share of t he procee ds of t he sale of t he drugs B olden had 19 attempted to bringto Vermont. B olden conf irmed the a ccur acy

of the tape s and the tra

nscripts of 20 his phone ca ll with W alker and t h en the f

inal meetingin Walker’s ca r. As for the phone c all on 21 April 3, Bolde n explained that he re ported to Walker that he had sold the dr ug s and Walker a g ree d 22 to use the proc eeds to purc hase more cra ck. As for the meet i n g wi t h W al k er on April 5, Bolden6 1 e xpla ine d th a t pa

rt of the c onve rs a tio n inv olv e d tr ying to arr ang e fo r B old e n to g o to Ne w Yo rk City 2 to ge t a new supply of drug s; this part of the conve rsation i n v o l v ed t h e call to Agent Doud, 3 i mp e r s o n a t i n g K e n n y. 4 5. Te sti mony of Go ve rnme nt A g e nts 5 Special Ag ent Doud of the DEA provide d extensive testimony , part of which is the subject 6 of this appea l. Much of his tes t i m o n y was not problematic. Doud nar rate d setting up B olden’s 7 m e e t i n g w i thW a l k e r , w h a th e o b s e r v e d o f th e m e e t i n g , an d w h a th e s a i d w h e nh e ( un e x p e c t e d l y) 8 rec eived B olden’s ca ll and then impersonate d Kenny

. (Doud’s por tion of the telephone conver sation 9 was not audible on the rec ording .) Doud also testified t o finding $2100 on Walker’s pe rson when 10 he wa s arr ested, and rec ounted Walker’s leng thy oral c onfession. Doud a

uthenticated the tape a

nd 11 transcr ipt of t he April 5 meeting

. He a lso ex plained the r elationship betwee n ounces a nd g rams (one 12 ounc e e qu a ls a

pp ro ximate ly

28 g ra ms) , il lum inatin g the signif ic anc e of Wal ke r’ s c on fe ssi on

to 13 transportation of at least two ounce s of cr ack to Ve rmont in relation to the char g e that he conspire d 14 to distribute “fifty (50) g rams or more .” See 21 U.S.C. § 841(b)(1)( A)(iii). 15 Finally , the g overnme nt called a go v ernme nt chemist who testified to the we ight a nd 16 chemica l analy sis of the drug s rec overe d from B olden. 17 B

. Wal ke r’ s D e fe ns e 18 Th e de fe ns e c a lle d n o w itn e sse s. Thro ug h cr os s- e xami natio n an d s umm a tio n, the de fe ns e 1 9 sou g h t t o a dv an c e th e ar g u me n t t h a t t h e c o o p e r a ti n g w it

n e s s e s h a d

f a b r ic a te d o r e xag g era ted 20 Walker’s role in an ef fort to diminish t he role of t heir friend C ollins, and to ear n consideration for 21 themselves for

their assistance in the prosec ution of Walker. 22 DI SCU SSIO N 23 A. Impermissible Testimony of Ag ent Doud7 1 Wal ke r a sse rt s o n a pp e a l th a t th e te sti mony

of Ag e nt D ou d w a s r e ple te wi th 2 imp e rm iss ibl e matte r, inc lud ingpr e jud ic ia l he ars ay

dir e c tly inc ulp a tin g Wal ke r i n th e c ri me 3 char g ed (a s well as imply ing that he was guilty of other c rimes), impermissible expressions of 4 Doud’s own be lief that Walker wa s g uilty , improper vouc hing f or g overnme nt witnesses and 5 analy sis of the defe ndant’s cha rac ter, de livery

of summation arguments in the g uise of evide nce, 6 and g ener al invasion of the pr ovince of the jury . We ag ree that Doud’s examination was 7 improperly

conducte d and included la rg e amounts of imper

missibl e matter

. 8 Th e ins tanc e s o f i mpr op e r t e sti mony we re nume ro us . We se t f or th b e low so me 9 re pr e se ntativ e e xamp le s: 10 (i) Asked by the Assistant United States Attorney (AUSA) a

bout the ear ly

phases of the 11 investigation leading up to the arr est of Collins, Doud answere d: 12 A [W ]e found that [C ollins] was a cting in conjunction with a per son who we 13 now know as the defe ndant Erne st W alker , in having come into Ver mont 14 and e sta bli sh e d th e mse lve s a s th e le a de rs of the pa c k .

. . An d b y

e arl y to 15 mid-Fe bruar y , we ha d identified basica lly three principal hig her- level 16 play ers, Mr. Walker , Mr. Collins, and a man we now know as Mr. 17 Mo ra le s. 18 (ii) In response to a question by the AUSA how a

meetinghad come about, Doud answ ere d: 19 A Well, after Mr. B olden had be en ar rested in Alba

ny , he had told us the 20 circ umstances surr ounding the drug s with which he wa s arr ested . . . that 21 he had obta ined the cr ack c ocaine from an individual nicknamed Q, who 22 we kne w to be Ernest W alker, who we were already investigating, having 23 ide nti fie d h im as thesu

pp lie r o f m ult i- ou nc e c ra c k

qu an tit ie s that wer e 24 beingdistributed in Rut land, Ver mont. (emphasis adde d) 25 (iii) When Doud testified on the subjec t of the pre paration of his report on the c ase, D oud was 26 a sk e d b y

the AU SA, “ What is c or

ro bo ra tio n, sir ? ” Do ud

ans we re d, “ Cor

ro bo ratio n is 27 verific ation or justification of provingthat something that is alleg ed ac tually occur red.” Fr om 28 there he we nt on to give e x amples of c orrobor ation he had r ece ived of the de fenda nt’s g uilt.8 1 Wit h respe ct to corr oboration of incr iminating information obtained from the c oconspirator 2 Watson, Doud testified: 3 A Many people who w ere [W atson’s] customers who we re pur chasingcra ck 4 from him . . . . 5 Q What kind of information did [ other a g ents] obtain from [ Watson’s 6 c u s to me r s ]? 7 A They had obtained inf

ormation from a

number of pe ople that Fitzroy 8 Watson was selling c rac k coca ine on an a ctive basis, usually utiliz ing 9 motel rooms in the Rutl and ar ea, to distribute his cra ck. Obviously he wa s 10 rec eiving his crac k from somebody , and information had indicated that at 11 first it was Morale s, and that he ha d a new supplier. Then w e ar

rested 12 [W atson], seiz ed the c rac k from him, and he c onfirmed just that, that he 13 us e d to g e t hi s c ra c k f ro m Mr . M or a le s, and

that heno w go t it

fro m M r. 14 W alker . (empha sis added) 15 16 The AU SA then asked him whe ther Susanne Ca ry (one of the g overnme nt’s coconspirator 17 witnesses) ha d “provide [d] information to law enf orce ment as we ll,” to which he a nswere d in the 18 aff

irmative, imply ing that Cary had conf irmed Walker’ s involvement in the drugdealing

. 19 (iv) Doud went on to desc ribe B olden’s re ports about the re lationship between Collins and the 20 de fe nd ant a s f

oll ow s: 21 A [B]ack when I first met Mr. B olden, he ha d told me that Mr. Colli ns had 22 a sk e d th a t Sammy B old e n a nd ano the r m an k ill Mr . Wa lke r. An d in 23 prepa ration for this trial, when I

asked him exactly

what that mea

nt, or 24 e xac tly ho w that ha d c ome to p a ss, he sa id, re a lly , w hat Mr . Co lli ns sa id i s 25 “take car e of your business, take c are of the business,” a nd he assumed 26 that that could have been taken in the conte x t of knockingoff Mr. Walker , 27 but th a t he re a lly ha d n ot c lari fi e d w hat Mr . Co lli ns me ant b y it. 28 Q B ut h e wa s c le ar o n th e dr uga sp e c ts? 29 A He wa s c le ar t hat Mr . Co lli ns wa

nte d h im t o c ome to V e rm on t and se ll 30 c ra c k c oc a ine . O bv iou sly wi th M r. Col lin s lo c ke d u p, he wa s g oin g to 31 have to g et his cra ck coc aine f rom somebody

else. Obviously Mr. Collins 32 an d M r. W alk e r h ad be gu n to ma k

e up fro m t

he ir p re v iou s d

isp ute , and 33 that Mr . Co lli ns wa nte d to have Mr . B old e n s e ll a dd iti on a l c ra c k in 34 Ver mont, put som e of the money to his account in jail, and Mr. B olden 35 was the pe rson in the middle to do that. (emphasis adde d)9 1 (v) Subsequently , Doud was a sked about a person r efe rre d to in the indictment by the 2 nickname “ Mississ ippi.” Doud answe red: “ [W ]e had lear ned fr om informants in this case that 3 there was a

male nickna

med Mississi ppi,” identified by Doud as F red Mc Griff

, “who wa s 4 involved with Mr. Colli ns and Mr. Walker in the distribution of cr ack c ocaine and other criminal 5 endea

vors. ” 6 (vi) Doud also impermissibly announce d his assessment of the de fenda nt’s char acte r, (“ very 7 shrewd, sma

rt, stree t-smart, ca lculating . . . ,”), e ven spec ulating that if Walker’s ca r had not be en 8 blocked by

another car when law

enfor ceme nt approa ched to a rre st W alker , “we would have ha d 9 a hig h-spee d pursuit goingon throug hout Rutl and try ing to stop this car .” 10 (v ii) Do ud

a lso vo uc he d f

or the c re dib ili ty

of the g ov e rnme nt’ s w itn e sse s, e ff e c tiv e ly 11 communicatingthat he had ske ptically and scr upulously chec ked out all the information 12 furnished by

the witnesses be fore acc epting it. For e x ample, with re spect to Watson having 13 ide nti fi e d th e de fe nd ant a s h is s ourc e of dr ug s, Do ud

imp ro pe rl y

a dd e d, “ An d you

kn ow , th a t – 14 wh e n I

am a sk e d a s to ho w I

be lie ve , b e sid e s w hat e lse the y jus t te ll m e , o r o n w hat e lse do Ire ly 1 5 o n , i t ’s i n fo rm at i o nfr o mo th er p eo p l e, ac tu al p h y s i ca l ev i d en ce , an d v er i fi ca t i o nth ro u gh 16 interviewingthe people who are involved.” 17 (viii) About the plan to have Bolde n call Walker to g et him to come to Ver mont, Doud testified 18 that th is w ou ld c or ro bo rate wh a t B old e n h a d to ld a bo ut Wa lke r’ s invo lve me nt, thu s u sin g his 19 te sti mony

a s a ve hic le to a

rgue to t he jur y on the re lia bil ity of the g ov e rnme nt’ s w itn e ss: 20 Q And this also, would it not, t end to cor roborate for you Mr. B olden’s 21 ve ra c ity that — 22 A Yes, it was to ser ve that purpose

. 23 Q — he had told you the truth?10 1 A Yes, be cause when pe ople tell us things, no matter how much they

may 2 seem true or — that they seem c onsistent with other information that we 3 have, of tentimes a ca ll such as this either prove s or re futes what the person 4 is saying. 5 (ix ) Assuringthe jury of the re liability

of the g overnme nt’s entire c ase, D oud testified: 6 Iam a

Spe c ia l A g e nt o f t

he Un ite d St a te s D ru g En fo rc e me nt A dmi nis tr a tio n. My 7 duties are basica lly to investigate violations of the fe dera l controlled substance 8 laws. And what that means to investigate them is to basically to try and identify 9 individuals and org anization who are involved in the illicit m anufa cture , 10 imp or

tatio n, e xpor

tatio n a nd dis tr ibutio n o f d

ru g s. 11 An d o nc e we have ide nti fi e d th e m, t ry and us e inv e sti g a tiv e te c hn iqu e s to 12 obtain evidenc e that would demonstrate their illeg al behavior, and then br ing that 13 evidenc e to a c ourt such as this, to hold these people acc ountable for their illeg al 14 a c tio ns . 15 16 Th e te sti mony qu ote d in the a bo ve e xamp le s w a s im

pr op e r i n ma

ny re sp e c ts. F or

sta rt e rs , 17 Doud seve ral times asser ted his own belief that the defe ndant was guilty , and eve n at times made 18 direc t assertions about the de fenda nt’s drugdealing s as if Doud ha d witnessed them himself. 19 See, e .g. , Un ite d S tates v . G ar c ia , 4 13 F .3 d 2 01 , 2 10 -1 1 ( 2d Cir . 2 00 5) . We have re pe a te dly 20 made c lear

that prosec utors may

not express their belief in the de fenda nt’s g uilt when summing 21 up to the jury

. United States v. Grunbe rger , 431 F.2d 1062, 1068 ( 2d Cir. 1970) (collec ting 22 case s); see also United States v . Modica , 663 F.2d 1173, 1179 ( 2d Cir. 1981) (collec ting c ases)

. 23 I t is e qu a lly

imp e rm iss ibl e fo r t

he inv e sti g a tin g a g e nt t o te sti fy to h is b e lie f t

hat th e de fe nd ant i s 24 g uilty , and all the more so if he adds, a s Doud did, the imprecise assura nce that his belief is based 2 5 o n“i n fo rm at i o nfr o mo th er p eo p l e, ac tu al p h y s i ca l ev i d en ce , an d v er i fi ca t i o nth ro u gh 26 interviewingthe people who are involved.” Cf. Ga rc ia , 413 F.3d at 211 (finding “er ror to allow 27 law enf

orce ment witnesses to express opinions as to the defe ndant’s culpa bility based on the 28 tot a lity

of inf or matio n g a the re d in

the c ours e of

the ir inv e sti g a tio ns .” ). We h ave sim ila rl y 29 e xpre sse d c on c e rn s a bo ut c a se a g e nts of

fe ri ng“ sw e e pin g c on c lus ion s a bo ut [the de fe nd ant’ s] 30 activities.” United States v. Duk agjini , 326 F.3d 45, 54 ( 2d Cir. 2003) (citation omitted).11 1 I t is a lso imp e rm iss ibl e fo r a g ov e rnme nt a g e nt t o v ou c h f or a g ov e rnme nt w itn e ss, see 2 United States v. Carr, 42 4 F .3 d 2 13 , 2 27 (2 d Ci r. 20 05 ); United States v. Forreste r , 60 F.3d 52, 3 63 (2d Cir. 1995), or g ener ally to opine on the cr edibility of witnesses. See U

nited States v. 4 Scop , 846 F.2d 135, 142 ( 2d Cir. 1988). Fur thermore , in telling the jury that information 5 obtained in the investig ation corr oborate d the statements of w itnesses who had a ccuse d the 6 defe ndant, Doud’s testimony obscure d the important distinction between a rgument and evide nce. 7 Doud’s testimony also was r eplete w ith hearsa y , repe ating to the jury

the statements of 8 others desc ribing the def endant’ s criminal ac ts. W e have often wa rned a bout the particula

r 9 dang ers of

hear say beingput in the mouth of a ca se ag ent, see, e .g. , United States v. Grinage , 390 10 F.3d 746, 748- 51 (2d Cir. 2004), espe cially when the te stimony

involves the repe tition of the 11 statements of infor mants or ac complices. See, e .g. , United States v. Ziegler , 583 F.2d 77, 81 ( 2d 12 Cir. 1978). 13 B. Whether

Doud’s Evidenc e Could Be J ustified as “B ackground” 14 Although a cknowledg ing that some of Doud’s testimony should not have bee n offe red, 15 the g overnme nt argues that some wa s proper ly admissible, notwithst andingfor e x ample the 16 pr oh ibi tio n o f t

he he ars ay

ru le , b e c a

us e it w a s o ff

e re d n ot t o p ro ve the tr

uth of the state me nts 17 repor

ted but to expl ain the bac kg round of the inve stigation and the state of mind of the 18 investigating a g ents, to help explain their actions. The g overnme nt argues that this evidence 19 would “help the jur y understand how

this case unf

olded, with multipl e ar

rests over time and 20 multipl e coope rators . . .” 21 I t is un do ub te dly tr ue that th e re pe tit ion

of an o ut- of -c ourt state me nt i s n ot n e c e ssa

ri ly 22 barr ed by

the hea rsay rule if it is offe red to prove rele vant fa cts other than the truth of what wa s 23 asser

ted in the statement, a

nd such evide nce ma

y well be a ppropriate under the balanc ing te st of12 1 Rule 403, un le

ss “ its pr ob a tiv e va lue [in i ts p e rm itt e d e vid e nti ary us e ] is s ub sta

nti a lly 2 outweig hed by

the dang er of

unfair pr ejudice,” Fe d. R. Evid. 403, “resulting from the 3 impermissible hearsa y use of the de clar ant’s stateme nt.” United States v. Re yes , 18 F.3d 65, 70, 4 72 (2 d Ci r. 19 94 ). Th is c on c e pt i s o f l itt le va lue to t he g ov e rnme nt whe n th e e vid e nc e so ug ht t o 5 be jus tif

ie d in its no nh e ars ay

us e is o n th e un imp or

tant i ssu e of

inv e sti g a tiv e ba c kg ro un d, and it 6 has consider able c apac ity in its i mproper a

pplication for substantial pre judice to the def

endant on 7 the cr

ucial issue of pr oof of guilt. 8 The g overnme nt’s argument seems to assume that showingthe per tinent backg round of 9 the investig ation require d the inclusion of information possessed by Ag ent Doud that wa s 10 prejudicia l to W alker . This is incorrec t. When there is leg itimate value to showing that the 11 inv e sti g a tin g a g e nt w a s a c tin g in r e sp on se to i nf or matio n h e ha d r e c e ive d, it i s o ft e n p os sib le to 12 bringhis rece ipt of that information into evidence without including the por tions that are 13 prejudicia l to the defe ndant on trial. F or example, there would have be en no proble m if Ag ent 14 Doud had testified that, upon the arr est of B olden, “he told us the circumstanc es surroundingthe 15 drug s with which he wa s arr ested,” without adding that Bolden“ told us . . . he had obtained the 16 cra ck coc aine f

rom . . . Erne st W alker ” – much less a dding that “we w ere alre ady investigating 17 [W alker ], having identified him as the supplier of multi-ounce c rac k quantities.” 18 Where it is possible in such fashion to secur e all or most of the pr oper va lue of e vidence 19 which is admissible for one purpose but not for a nother by reda cting the pre

judicial portions, the 20 balanc ing dir ecte d by Rule 403 will weig h the dang er of unfair pr ejudice a dded by the 21 unnece ssary

inclusion of the portions that could have been e x cluded a g ainst their marg inal value 22 in support of the per mitted purpose. Cf. United States v. Awadallah , 436 F.3d 125, 132 ( 2d Cir. 23 2006) (“ Probative value is also informed by the ava ilability

of alter native mea

ns to presentThe a g ent’s state of mind can, of c ourse, be come hig hly rele vant if, for

example, the 2 defe nse questions whethe r the de fenda nt was ac cused a s the result of a n ulterior motive. 13 1 simil ar e vidence . Specifica lly , the Supreme Court ha s advised that the ‘ Rule 403 “probative 2 value” of an item of e vidence . . . may be ca lculated by

compar ing e videntiary

alternatives.’”) 3 (q u o t i n g Old Chief v. United States , 519 U.S. 172, 184 (1997)). Thus the question here was not 4 whether

the g overnme nt could proper ly show some bac kg round to Doud’s investig ations, but 5 wh e the r i t c ou ld p ro pe rl y te ll the jur

y the po rt ion s o f t

he ba c kg ro un d w hic h p re jud ic ia lly 6 incriminated Walker. 7 We rec og nize that the gove rnment may be tempted to make its presentation to the jury 8 more c ompelling, dr amatic, a nd seductive by

telling the e x citing story

of the investig ation and 9 how it prog resse d from suspicion to cer titude, and how tra

ps were set which re sulted in the 10 defe ndant’s ca

pture, re d handed. B ut the issue to be tried is not how the investig ation was 11 conducte d, but whether the evidenc e prove s the defe ndant’s guilt bey ond a re asonable doubt. 12 Th e a g e nt’ s st a te of min d a s th e inv e sti g a tio n p ro g re sse d is or din ari ly of little or no re le va nc e to 1 3 th e qu es t i o no f t h e d ef en d an tgu i l t

. A p ro s ec ut o r’ s t ac t i ca l d es i re t o t el l th e j ury an ex ci t i n g, 2 14 captivatingstory

does not justify

expanding the sc ope of a dmissibl e evide nce to include improper 15 matter, whic h, althoug h offe red a s pertinent to the ag ent’s state of mind, may

be used by

the jury 16 pr e

jud ic ia lly a s e vid e nc e c on fi rm ingthe de fe nd ant’ s guil t. Wh e n th e e vid e nc e is p ro pe r w ith 17 re sp e c t to an unim po rt ant i ssu e but im

pr op e r a nd pr e jud ic ia l on

a c ru c ia lly imp or tant i ssu e , it

is 18 unlikely

to pass the balanc ing te st of Rule 403. 19 We discussed this issue at some leng th in Rey es , 18 F.3d at 70-72, wher e, as in this case , 20 the evidenc e soug ht to be justified as bac kg round in a nonhe arsa y application included he arsa y 21 which bore importantly on the guilt of the defe ndant. We conclude d that the illumination of theDef ense c ounsel did object to Dowd’s r ecountinghis portion of the telephone 3 conver sation betwee n Dowd and Walker . In this inst ance , the Court proper ly found that portion of the testimony

was not hea

rsay , but was off

ere d to provide “c ontext ” for Walker’s side of

the conver sation that was tape d and played in cour t. Defe nse counse l did not raise any additional ob je c tio ns . 14 1 investigating a g ent’s state of mind could not just ify

the re ceipt of importantly inculpatory 2 hear say . Id. The same is true in this case. 3 We ag ree with the g overnme nt that such use of he arsa y for a n unimportant nonhear say 4 purpose of

setting the stag e and e x plaining ba ckg round ca n be appr opriate, if the hear say 5 statement does not asse rt matter of signific ant importance to the question of the def endant’ s g uilt. 6 But that latitude ha s no proper application to the egreg iously abusive testimony

elicited fr om 7 Ag ent Doud, which w e re viewed a bove. 8 C. The Signific ance of the Abse nce of Objection 9 The g overnme nt relies hea vily on the fa ct that the def

endant made no objection to the 10 a bu siv e te sti mony

of fe re d thro ug h A g e nt D ou d. Th e a bs e nc e of ob je c tio n c e rt a inl y

make s it 3 11 more diff

icult for the de fenda

nt to succee d on appea l. Had the imprope r testimony been r ece ived 12 over the defe ndant’s objec tion, the question on appea l would be whethe r the e rror was ha rmless. 13 See Fe d. R. Crim. P . 52(a) . Where the de fenda nt did not object, the issue on appea l will be 14 whether

there was “ plain err or” satisfying the standard of Rule 52(b) of the Fe dera l Rules of 15 Criminal Procedure

. 16 The standa rd for a findingof “pla in error ” is not easily met. 17 [B]efore a n appellate court c an cor

rec t an er ror not ra ised at trial, ther e must be 18 (1) e rror , (2) that is plain, and ( 3) that ‘a ffe cts substantial rig hts.’ . . . I f all three 19 conditions are me t, an appe llate cour t may then exercise its discre tion to noti ce a 20 forf

eited er ror, but only

if (4) the err or ser iously

aff ects the f airne ss, integr ity , or 21 pu

bli c re putatio n o f j ud ic ia l pr oc e e din g s. 22 Johnson v. U

nited States , 520 U.S. 461, 466-67 (1997) ( internal c itations and quotation marks15 1 omitted). I f this were the end of the inquiry , it might be diffic ult to determine whe ther the 2 standard w as met in this case. H oweve r, the Supreme Court has furthe r cla rified that plain e rror 3 is reser

ved for “those c ircumstance s in which a miscar riag e of justice w ould otherwise r esult.” 4 United States v. Y oung , 4 7 0 U. S

. 1 , 1 5 (1 9 8 5 ) ( qu o t i n g United States v. Frady , 456 U.S. 152, 163 5 n.14 (1982)) , and will not likely be found when the pr oper e vidence of guilt is “over whelming ,” 6 Johnson , 5 20 U. S. at 47 0; s ee also United States v . Cotton , 535 U.S. 625, 633 (2002), in which 7 case s “it would be the re versa l of a c onviction” that would constitute a miscar riag e of justice. 8 Johnson , 520 U.S. at 470. 9 Appellate c ourts should be war y of vacating the result of a trial based on error to which no 10 objection was ma de bec ause the absenc e of obje ction larg ely deprive s the trial cour

t of the 11 op po rt

un ity to correct or

pr e ve nt t he oc c ur re nc e of the e rr or . A c c or din g ly , a de fe nd ant o rd ina

ri ly 12 may

not sit back without objection, allowing err ors to a ccumulate , which might have be en pre vented 13 or cur ed by

a timely objection, and t h en b en ef i t from the er

rors on a ppeal. Abse nce of

objection, 14 further

more, is sometimes – not alway s – an indication that the matter raised on appea l was view ed 15 as havinghad little or n o s i gn i fi ca n ce at trial. At the same time, however , it is unacce ptable for 16 repr esentatives of t he gover nment to present their

case with abusive disreg ard f or the rule s of law, 17 see, e .g. , Strickler v. Greene , 527 U.S. 263, 281 (1999) (explaining the specia l r ole of the pr osecutor 18 as “the repr esentative . . . of a sovereig nty

. . . whose intere st . . . in a criminal prosec ution is not that 1 9 i ts h al l wi na c as e, b u tth atj u s t i ce s h al l b e d o n e” ) ( ci t i n g Berger v. United States , 295 U.S. 78, 88 20 (1 93 5) ), e sp e c ia lly wh e n e lic iti ngina dmi ssi ble te sti mony wi tho ut wa rn ing fo rc e s the de fe nd ant i nto 21 the uncomfor

table post ure of making repe ated objec tions, which may appea r to the jury

to repre sent 22 an eff

ort to hide damag ing information. In this c ase the re w as little or no war ning f rom the for

m of 23 the AU SA’ s q

u e s t i o n s t h a t D o u d ’s ans we rs wo uld

inc lud e ina dmi ssi ble pr e

jud ic ia l matte r, muc h le ssNor did the AU SA reque st a limit ing instruc tion or even notify the cour t that the out-of- 4 c ourt state me nts we re of

fe re d o nly

to e xpla in t

he c a se a g e nt’ s st a te of

min d, but no t f

or the tr uth of the fa c ts a sse rt e d in

the state me nts

. In Re y es, we r ecommende d wher e a pr osecutor sought “to elicit potentially incendiar y 5 e v i d e n c e a s t o w h i c hth e r e ar e ar g u a b l e g r o un d s f

o r e x c l u s i o n , ” th a tth e p r o s e c u t o r “ b e g [ i ] nb y a pr of fe r, pr e fe ra

bly in wri tin g , e xpla ini ngthe iss ue s in fu ll, so that th e de fe nd ant h a d th e c ha nc e to object and the judge to rule bef ore the harm wa s done.” 18 F .3d at 72. There is, furthermor e, no rule which for bids a trial judg e, in the abse nce of objection, 6 fr o mi n t er ce d i n g su a s

po nteto cure the er

ror a nd to preve nt further

abuse. 16 1 a for

mal proff er. 4 2 I f a

pr os e c uto r p hr a se s a

quest io n, “Te ll the jur

y wh a t X said about the de fenda nt’s 3 participation in the dist ribution of the drug s,” the question puts de fense counsel on notice that the 4 answe r may

well involve hea

rsay . I n contra st, the questions put to Doud were usua lly phrase d in a 5 form that g ave no w arningwhat the a nswer mig ht contain. For example, t h e AU SA asked Doud, 6 “Could y ou tell the ladies and g entlemen of the jury how [the meetingin Rutl and] came a bout? ” In 7 response to such questions, Doud rambled into im permissible matter – in this particular instance 8 stating that Bolden, afte r his a rre st in Alba

ny told that he “had obta ined the cr ack c ocaine from an 9 i n d i v i d

u al n i ckn am e d Q , wh o we kn ew t o b e E rn es tW al k er , wh o we we re al re ad y i n v es t i gat i n g, 10 havin g ide nti fi e d him a s th e su pp le r o f m

ult i- ounc e c ra c k q

ua nti tie s th a t w e re be ingdis tr ibute d in 11 Rutland, Vermont.” It can fairly be said that defe nse counsel was ambushed by such questions and 12 answe rs, and of

ten di d n o t h av e a fair opportunity to object until after the jury had hea rd the 13 damag ing matter, whe n it was alre ady d i ff i cult to limi t or cure the har m. On the other

hand, had 5 14 de fe ns e c ouns e l ob je c te d – e ve n a ft e r t

he fa c t – t he tr ia l court mig ht have or de re d a hal t to the un fa ir 15 and pre

judicial pattern of

examination. All these considerations are pertinent to whether “the e rror 6 16 seriously aff

ects the fairne ss, integ rity , or public re putation of judicial proce eding s.” See J ohnson, 17 520 U.S. at 467.17 1 We are left with a binar y option which offe rs no satisfac tory answe r – whe ther to over turn 2 a convic tion where the evidenc e powe rfully demonstrated the defe ndant’s guilt, and the defe ndant 3 did

no t take ste ps to c ur

tai l th e a bu siv e pr a c tic e , o r t o a ff ir m th e c on vic tio n a

nd thu s a pp e ar t o 4 condone o r re wa rd an abusive disreg ard of the rules by

an Assistant United States Attorney and a 5 Special Ag ent of the U nited States DrugEnforc ement Administration in p re s en t i ng a cr iminal 6 prosec ution. 7 In Walker’s c ase, which in cl u d ed t wo confessions (one sig ned), two hig hly incriminating 8 ta pe d c onve rs a tio ns , and the te sti mony of fo ur of Wal ke r’ s c o- c on sp ir a tor s, the e vid e nc e wa s so 9 overwhelming that it left no conce ivable doubt of his guilt. In the fa ce of

such proof

of guilt, we 10 are persua ded that the numer ous serious er rors in the presentation of Doud’s evidence had no ef fec t 11 on

the jur y ’s ve rd ic t. T he re wa s no mis c arr ia g e of jus tic e . We the re fo re c on c lud e that th e e rr or s, 12 a lth ou g h e g re g iou s and ob vio us , d id n ot satis fy the e xac tin g sta nd ard fo r re ve rs a l of

a c on vic tio n in 1 3 th e ab s en ce o f o b j ec t i o n . Ou r ru l i n g s h o u l d n o tb e c o n s tru edas gi v i n g carte blanche to prosecutor s 14 to disreg ard the rules of la w. Had the re be en an obje ction or eve n slightly less conclusive pr oof, we 15 might we ll have bee n compelled to vac ate the c onviction. 16 CO NC LU SION 17 The judg ment of convic tion is affirmed.