United States of America v.  DESMOND OLLIVIERRE, a/k/a James Franklin Bridges

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4802 
DESMOND OLLIVIERRE, a/k/a James
Franklin Bridges,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of South Carolina, at Rock Hill.
Cameron McGowan Currie, District Judge.
(CR-97-726)
Argued: June 4, 2004
Decided: August 13, 2004
Before WILLIAMS and KING, Circuit Judges,
and Louise W. FLANAGAN, United States District Judge
for the Eastern District of North Carolina,
sitting by designation.
Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Williams and Judge Flanagan joined.
COUNSEL
ARGUED: John Herman Hare, Assistant Federal Public Defender,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbia,
South Carolina, for Appellant. Marshall Prince, Assistant United
Vacated by Supreme Court, January 24, 2005

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States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina, for Appellee. ON BRIEF: J. Strom Thur-
mond, Jr., United States Attorney, Jimmie C. Ewing, OFFICE OF
THE UNITED STATES ATTORNEY, Columbia, South Carolina, for
Appellee.
OPINION
KING, Circuit Judge:
Desmond Ollivierre appeals his conviction and sentence in the Dis-
trict of South Carolina for possession with intent to distribute cocaine
base, in violation of 21 U.S.C. § 841(a)(1). United States v. Ollivierre,
No. 0:97-0726 (CMC) (D.S.C. Sept. 29, 2003). Ollivierre maintains
on appeal that the prosecutor made an improper and prejudicial clos-
ing argument that denied him a fair trial. As explained below, we
affirm.
I.
On September 23, 1997, Bridgette Caldwell provided information
to the Lancaster County, South Carolina, Sheriff’s Office concerning
a drug dealer known as "Snoop." In response, the Sheriff, with Cald-
well’s cooperation, arranged for undercover agent Donnie Washing-
ton to purchase nine ounces of cocaine base from Snoop for $6,500.
That evening, Caldwell and Washington proceeded to an agreed-upon
transaction site — the Panhandle Exxon in Lancaster. Snoop and
defendant Ollivierre arrived at the Exxon soon thereafter in a GMC
Yukon. They exited the Yukon and, along with Caldwell and Wash-
ington, entered the Exxon station. Ollivierre soon left the Exxon and
returned to the vehicle. Snoop thereafter also left the station, walked
to the Yukon, leaned in toward Ollivierre, and appeared to converse.
After retrieving something from the Yukon, Snoop entered Washing-
ton and Caldwell’s vehicle. When Snoop was in the passenger’s seat
of Washington’s car, Washington advised that they would go to a
nearby dirt road to complete the drug deal. Snoop then told Ollivierre
to follow them in the Yukon, and Ollivierre complied.
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As Snoop, Washington, and Caldwell drove to the dirt road, Snoop
showed Washington the drugs. After advising Snoop that he needed
to get money from the trunk of his car, Washington exited the vehicle
and signaled for other law officers to arrest Snoop and Ollivierre.
Ollivierre promptly fled the scene in the Yukon, and a dangerous
high-speed chase ensued. The chase, lasting approximately thirty min-
utes and covering about twenty-five miles, ended on a dead-end road.
Ollivierre then jumped out of the Yukon and continued to flee on
foot. He was finally tracked down by a police bloodhound unit and
located hiding in a tree. When apprehended, Ollivierre was carrying
over $1,700 in cash.
On October 15, 1997, after being charged in a federal complaint,
Ollivierre was released by a magistrate judge on a $50,000 secured
bond. On October 22, 1997, Ollivierre and Snoop were indicted for
a single count of possession with intent to distribute cocaine base, in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Ollivierre there-
after absconded, and an arrest warrant was issued on December 24,
1997, charging him with bond jumping. On January 7, 2003, more
than five years after jumping bond, Ollivierre was arrested in the
Northern District of Georgia. His trial began on May 15, 2003, and
it concluded the following day. Ollivierre did not testify in his own
defense, and the jury returned a guilty verdict.
The dispute underlying this appeal stems from the prosecutor’s
closing argument and the manner in which it was addressed by
defense counsel and the trial court. In seeking a new trial in the dis-
trict court, and again on appeal, Ollivierre complains of fourteen
aspects of the argument. At trial, however, he objected to only three
of them. The comments and remarks that were subject to objection are
the following:
• "I would submit to you, ladies and gentlemen, [Olli-
vierre] is trying to run today. With the help of his lawyer,
he is still trying to hide from you." (the "Running
Remark").
• "I think sometimes when I am listening to the defense in
their case, I am sure this is not their intent but it comes
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across sometimes as maybe to get you off track, to con-
fuse you." (the "Off Track Comment").
• "One of the things [Mr. Ollivierre’s counsel] made men-
tion of was that there was no testimony about the dis-
tance between Ms. Caldwell and actually being able to
see this leaning. Again, I remember her saying 12 feet,
approximately 12 feet but again you recall. I remember
her also saying there was nothing obstructing her view.
Nothing. He doesn’t remember that. Of course, he has
selective amnesia because he is representing his client."
(the "Amnesia Comment").
Ollivierre objected to these comments and remarks in a timely manner
and, except for the Amnesia Comment, his objections were sustained.
In response to Ollivierre’s objection to the Running Remark, a cura-
tive instruction was given to the jury. When the court sustained his
objection to the Off Track Comment, that line of argument ceased and
was not resurrected. Ollivierre’s objection to the Amnesia Comment
was overruled.
Ollivierre also complains of a series of eleven other comments
made in the prosecutor’s closing argument, as to which no timely
objections were made. Indeed, Ollivierre first raised an issue of
impropriety with respect to these comments when he filed his motion
for a new trial, seven days after the verdict was returned. These
include the following seven comments, which allegedly impugned
defense counsel:
• "Mr. Ollivierre wants to now through his lawyer distance
himself from the bag [of drugs] as he tried to distance
himself from the scene." (the "Distance Comment").
• "Again, the defendant is working with his lawyer in the
trial of this cases [sic] and he certainly is innocent until
proven guilty."
• "There is an old saying that goes if the law is on your
side, argue the law. If the facts are on your side, argue
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the facts. If neither is on your side, just argue." (the
"Argue Comment").
• "He quotes so many times in his argument. He quotes the
law repeatedly but then he tries to weave in distorted
facts to try to make his argument." (the "Distorted Facts
Comment").
• "You may hear that the government met with the wit-
nesses and got them to say what they wanted them to
say. We planned and orchestrated their testimony and
that kind of thing. You may not hear that argument but
you may. We submit to you, ladies and gentlemen, if we
wanted to do that, we could have done a better job. We
could have simply asked Ms. Caldwell to say ‘absolutely
no question, I saw Mr. Ollivierre with the package in his
hands and gave it to [Snoop] and [Snoop] came and got
in my car’; and for good measure, we could have said
Detective Washington I want you to say the very same
thing; that you saw Mr. Ollivierre give the package to
[Snoop] and [Snoop] came and got in the car." (the "Sub-
orn Perjury Comment").
• "One of the things that I have come to, really had to get
used to is sitting and listening to defense attorneys make
arguments that are what I consider to be so incredible in
light of the facts or the evidence presented in the case.
This case is no exception. Another thing that I had to get
used to is looking at defense attorneys and seeing how
they can make arguments with a straight face in spite of
the tremendous amount of evidence and to make state-
ments like they do, like the government didn’t come
close to proving their case."
• "I don’t want to insult your intelligence by again recap-
ping absolutely everything, but he says that the govern-
ment has no proof other than the flight information. Once
again, that is just incredible that he can say that with a
straight face, incredible." (along with the preceding com-
ment, the "Straight Face Comments").
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The eleven comments, raised for the first time in post-trial proceed-
ings, include four instances where the prosecutor allegedly vouched
for his witnesses (the "Vouching Comments").
• "Ms. Caldwell, she has a checkered past, no question
about that. But we found this. She came to us. She had
information. We acted on the information. That brought
the case before you. The defense would probably want
you to believe that you take this quantum leap of her
having a reason to lie and, therefore, necessarily lying.
We would submit to you that this is not the case, not nec-
essarily the case and not the case."
• "I submit to you, ladies and gentlemen, we asked the wit-
nesses to testify to what happened and that is what they
did and it is more than enough."
• "Again, we are not bragging, we are not boasting but
there is absolutely no way we believe you can come
away with any other verdict than one of guilty because
the evidence in this case is beyond a reasonable doubt."
• "Ms. Caldwell really sank this case and he knows that.
He tried to shake her and he couldn’t because she told
the truth. He knows that."
On May 23, 2003, Ollivierre filed his new trial motion, asserting
that these fourteen comments and remarks of the prosecutor were
improper and prejudicial, and that he was thus denied a fair trial.
According to his motion, the Assistant United States Attorney’s argu-
ment was improper and prejudicial in three separate respects: (1) it
infringed on Ollivierre’s Fifth Amendment right to remain silent; (2)
it denigrated the integrity of defense counsel; and (3) it vouched for
certain government witnesses.
On September 25, 2003, the district court denied the new trial
motion and sentenced Ollivierre to 225 months in prison, to be fol-
lowed by three years of supervised release. Ollivierre has appealed,
and we possess jurisdiction pursuant to 28 U.S.C. § 1291.
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II.
A trial court possesses broad discretion to control closing argu-
ment, and its discretion is not to be overturned absent a showing of
clear abuse. United States v. Grabiec, 563 F.2d 313, 319 (7th Cir.
1977); United States v. Davis, 557 F.2d 1239, 1244-45 (8th Cir.
1977). If a trial court abuses its discretion in addressing an objection
to closing argument, such an abuse will justify reversal of a convic-
tion only if it constitutes prejudicial error. See United States v. Young,
470 U.S. 1, 13 n.10 (1985) (explaining that reviewing court may
reverse otherwise proper conviction only after concluding that error
was not harmless). On the other hand, we review for plain error an
issue concerning closing argument to which no timely objection was
made. See United States v. Adam, 70 F.3d 776, 780 (4th Cir. 1995)
(observing that contentions concerning argument are reviewed for
plain error when defense did not timely object). And we may only
grant relief to a defendant on the basis of plain error when the man-
date of United States v. Olano, 507 U.S. 725, 732 (1993), has been
satisfied.1 Finally, we review for abuse of discretion a trial court’s
denial of a motion for a new trial. United States v. Arrington, 757
F.2d 1484, 1486 (4th Cir. 1985).
III.
On appeal, Ollivierre continues to maintain that the prosecutor’s
closing argument was improper, and that he was thus denied a fair
trial. As set forth above, the comments of which he complains fall
into three categories: (1) comments that infringed Ollivierre’s Fifth
Amendment right to remain silent; (2) comments that denigrated the
integrity of defense counsel; and (3) comments by which the prosecu-
tor vouched for the credibility of his witnesses. After reviewing some
pertinent legal principles governing the conduct of closing argument
in a criminal trial, we assess these three categories in turn.
1The plain error mandate of Olano is satisfied if: (1) there was error;
(2) it was plain; and (3) it affected the defendant’s substantial rights.
Olano, 507 U.S. at 732. If these conditions are met, we may then exer-
cise our discretion to notice the error, but only if it "seriously affect[s]
the fairness, integrity or public reputation of judicial proceedings." Id.
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A.
First of all, we recognize that great latitude is accorded counsel in
presenting closing argument to a jury. See Oken v. Corcoran, 220
F.3d 259, 269-70 (4th Cir. 2000). Despite such latitude, however, the
guiding principle is that a prosecutor should not strike "foul blows,"
and that guiding principle leads to certain simple rules governing a
prosecutor’s conduct during closing argument.2 For example, it is
improper for a prosecutor to comment on a defendant’s failure to tes-
tify. See United States v. Anderson, 481 F.2d 685, 701 (4th Cir.
1973). A prosecutor should not portray as fact matters that are not in
evidence, see United States v. Gonzalez, 488 F.2d 833, 836 (2d Cir.
1973), he should not misstate the facts or the law, see Berger v.
United States, 295 U.S. 78, 84 (1935), United States v. Phillips, 527
F.2d 1021, 1023 (7th Cir. 1975), and he is not to express his personal
belief that the defendant is guilty, see United States v. Garza, 608
F.2d 659, 664 (5th Cir. 1979). Importantly here, it is improper for a
prosecutor to launch a personal attack upon the defense attorney or
upon defense lawyers generally. See United States v. Bennett, 75 F.3d
40, 46 (1st Cir. 1996); United States v. Boldt, 929 F.2d 35, 40 (1st
Cir. 1991). And a prosecutor is not entitled to express his personal
belief in the credibility of his witnesses. See United States v. Sanchez,
118 F.3d 192, 198 (4th Cir. 1997).3
2We apply exacting professional standards to lawyers who represent
the sovereign. As Justice Sutherland appropriately observed many years
ago:
The United States Attorney is the representative not of an ordi-
nary party to a controversy, but of a sovereignty whose obliga-
tion to govern impartially is as compelling as its obligation to
govern at all; and whose interest, therefore, in a criminal prose-
cution is not that it shall win a case, but that justice shall be
done. . . . 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.
Berger v. United States, 295 U.S. 78, 88 (1935) (emphasis added).
3With the exception of the rule prohibiting a prosecutor from com-
menting on a defendant’s failure to testify, these principles are equally
applicable to defense attorneys.
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B.
We turn first to our assessment of Ollivierre’s Fifth Amendment
claim. This contention rests on the prosecutor’s Running Remark, that
"I will submit to you, ladies and gentlemen, [Ollivierre] is trying to
run today. With the help of his lawyer, he is still trying to hide from
you." Ollivierre’s lawyer promptly objected to the Running Remark,
and the court responded with a curative instruction that "the defendant
has no burden of proving anything. The government has the burden
of proving guilt beyond a reasonable doubt."4 Ollivierre contends that,
in making the Running Remark, the Assistant United States Attorney
infringed on his Fifth Amendment right to remain silent, and that he
was thus denied a fair trial.
The Fifth Amendment precludes a prosecutor from commenting to
a jury on the failure of an accused to testify in his own defense. See
U.S. Const. amend. V ("No person shall be . . . compelled in any
criminal case to be a witness against himself . . . ."); Anderson, 481
F.2d at 701 (prohibiting argument that would "naturally and necessar-
ily" be taken as comment on failure of accused to testify). Examined
in context, however, see United States v. Knowles, 66 F.3d 1146,
1163 (11th Cir. 1995), the Running Remark plainly was not intended
as, and a reasonable jury would not necessarily have taken it as, a
commentary on Ollivierre’s failure to testify. On the heels of the pros-
ecutor’s review of the evidence of flight, the natural implication of the
Running Remark is that Ollivierre’s repeated attempts to evade cus-
tody indicated consciousness of guilt.5 And it is elementary that evi-
dence of flight is properly admissible as evidence of guilt. See United
4In addition to this curative instruction, the court instructed the jury,
in its preliminary instructions and following closing argument, that it was
not to attach any significance to Ollivierre’s failure to testify, and that no
adverse inference could be drawn from his failure to take the witness
stand. We generally presume that a jury obeys the instructions. See
United States v. Francisco, 35 F.3d 116, 120 (4th Cir. 1994).
5Immediately prior to making the Running Remark, the prosecutor
argued, "He got out on bond and what does he do? He runs again
. . . . Fugitive for five plus years . . . . He is arrested, brought back here
to answer these charges."
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States v. Obi, 239 F.3d 662, 665 (4th Cir. 2001) (observing that con-
sciousness of guilt may be deduced from evidence of flight).6
Even if other implications could have been drawn from the Run-
ning Remark, a finding that Ollivierre’s efforts to flee exhibited a
consciousness of guilt was entirely permissible. And we must, of
course, view the evidence supporting the verdict in the light most
favorable to the prosecution. See United States v. Bolden, 325 F.3d
471, 479-80 n.5 (4th Cir. 2003) (observing that we view evidence
supporting guilty verdict in light most favorable to prosecution). In
this context, we are unable to conclude that the Running Remark was
understood to mean that Ollivierre was trying to hide from the jury
by not testifying.7 The trial court therefore did not err in its handling
of this aspect of the prosecutor’s argument.
C.
Ollivierre’s second contention is that the prosecutor’s closing argu-
ment resulted in the denial of a fair trial because ten of the prosecu-
tor’s comments denigrated the integrity of defense counsel, both
personally and in the abstract. In assessing whether a prosecutor’s
argument warrants reversal, we apply a two-part test, i.e., (1) whether
the argument was improper, and if so, (2) whether it so prejudicially
impacted the defendant’s substantial rights as to deprive him of a fair
trial. See United States v. Chorman, 910 F.2d 102, 113 (4th Cir.
1990). As explained below, although certain of this prosecutor’s com-
ments about Ollivierre’s lawyer and concerning defense attorneys
should not have been made, Ollivierre was not thereby deprived of a
fair trial.
6Following closing argument, the trial court instructed the jury regard-
ing evidence of flight as proof of consciousness or awareness of guilt.
7In further support of his first contention, Ollivierre maintains that the
prosecutor infringed on his right not to testify when he argued that "Mr.
Ollivierre wants to now through his lawyer distance himself from the bag
[of drugs] as he tried to distance himself from the scene." In these cir-
cumstances, we see nothing improper in this line of argument.
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1.
Before turning to our analysis, we pause to emphasize the impor-
tance of ensuring that prosecutors refrain from impugning, directly or
through implication, the integrity or institutional role of their brothers
and sisters at the bar who serve as defense lawyers. See United States
v. Vaccaro, 115 F.3d 1211, 1218 (5th Cir. 1997) (finding prosecutor’s
statement that defense lawyers "muddle the issues" to be "clearly
improper"); Bruno v. Rushen, 721 F.2d 1193, 1194 (9th Cir. 1983)
(per curiam) (finding improper prosecutor’s hints to jury that hiring
counsel was probative of guilt). As has been aptly observed, a prose-
cutor’s resort to such backhanded tactics may well indicate a lack of
sufficient evidence or a failed attempt to unearth admissible evidence.
Bruno, 721 F.2d at 1195. Because the prosecutor’s duty is as much
"to refrain from improper methods calculated to produce a wrongful
conviction as it is to use every legitimate means to bring about a just
one," such improper behavior is not to be tolerated. See Berger, 295
U.S. at 88.
Moreover, both the Fifth Amendment’s right to due process and the
Sixth Amendment’s right to counsel mandate a prosecutor to refrain
from such attacks against defense counsel. As the Supreme Court
observed in Gideon v. Wainwright, defense lawyers play a key role
in ensuring that every defendant receives a fair trial — they are "ne-
cessities, not luxuries." 372 U.S. 335, 344 (1963). Any comment by
the prosecution that disparages a defendant’s decision to exercise his
Sixth Amendment right to counsel is thus improper. See Bruno, 721
F.2d at 1195; United States v. McDonald, 620 F.2d 559, 564 (5th Cir.
1980). In addition, a defendant possesses a due process right to pre-
sent his case to the jury, and a prosecutor’s disparaging comments
about defense counsel may impermissibly strike at this fundamental
right. Bruno, 721 F.2d at 1195. With these principles in mind, we turn
to Ollivierre’s specific assertions on this point.
2.
In assessing Ollivierre’s contention, we must first look to whether
the trial court abused its discretion with respect to the comments to
which objections were interposed. Grabiec, 563 F.2d at 319 (observ-
ing that trial court’s discretion in controlling closing argument is not
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to be overturned absent showing of clear abuse). After assessing the
three comments to which Ollivierre objected, we must evaluate for
plain error the other seven comments on which Ollivierre now relies.
See Olano, 507 U.S. at 732.
3.
We begin with the comments to which Ollivierre objected — the
Running Remark, the Off Track Comment, and the Amnesia Com-
ment — which we do not find erroneous. As we explained, Ollivierre
promptly objected to the Running Remark, and the court responded
with a curative instruction. See supra Part III.B. When Ollivierre
objected to the Off Track Comment, the court sustained his objection
and the prosecutor terminated that line of argument. Finally, the court
overruled Ollivierre’s objection to the Amnesia Comment without
explanation. Although that comment, viewed in isolation, could have
been improper, we are unable to say that, in context, the court abused
its discretion.
4.
a.
Turning to the seven comments that were not objected to, we can
easily dispose of five of them. Viewed for plain error, there was noth-
ing improper in the prosecutor’s Distance Comment ("Mr. Ollivierre
wants to now through his lawyer distance himself from the bag [of
drugs] . . . ."), the prosecutor’s remark that Ollivierre was innocent
until proven guilty, or in the Argue Comment ("If neither [law nor
facts are] on your side, just argue."). And viewed similarly and in
context, the Distorted Facts Comment ("[Defense counsel] tries to
weave in distorted facts to try to make his argument.") was not inap-
propriate. See United States v. Newton, 327 F.3d 17, 28 (1st Cir.
2003) (reviewing in context whether prosecutor’s comment was
improper). Indeed, Ollivierre’s counsel concedes that he made factual
misstatements in his closing argument. Appellant’s Br. at 32-33.
Finally, although the Suborn Perjury Comment ("We submit to you,
ladies and gentlemen, if we wanted to [suborn perjury], we could
have done a better job.") was unfortunately put, we fail to see how
it improperly impugned defense counsel.
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b.
Finally, two of these comments — the Straight Face Comments —
improperly impugned Ollivierre’s lawyer and the institutional role of
defense attorneys generally. In these circumstances, the judge could
well have interrupted the prosecutor’s argument and admonished him
for those remarks. See Viereck v. United States, 318 U.S. 236, 248
(1943) (observing that trial judge may sua sponte interrupt argument
and admonish attorney for improper comment).
Because the Straight Face Comments, viewed in context and under
the guiding principles, constitute plain error, we must assess whether
they prejudicially affected Ollivierre’s substantial rights, depriving
him of a fair trial. In that regard, we are guided by our Mitchell deci-
sion, where we identified several factors that are relevant to whether
an improper argument satisfies the second prong of Chorman
(whether the defendant’s substantial rights were so impacted as to
deprive him of a fair trial). United States v. Mitchell, 1 F.3d 235, 241
(4th Cir. 1993). These factors include:
(1) the degree to which the prosecutor’s remarks had a ten-
dency to mislead the jury and to prejudice the accused; (2)
whether the remarks were isolated or extensive; (3) absent
the remarks, the strength of competent proof introduced to
establish the guilt of the accused; and (4) whether the com-
ments were deliberately placed before the jury to divert
attention to extraneous matters.
Id. at 241 (internal quotation marks and citation omitted).
We begin with the first of the Chorman factors — whether the
Straight Face Comments had a tendency to mislead the jury. The
Government’s response to this point is that the comments were
invited by the misstatements of Ollivierre’s counsel, and they thus do
not warrant reversing the conviction. See United States v. Wilson, 135
F.3d 291, 299 (4th Cir. 1998) (observing that we consider whether
prosecutor’s comments were invited in determining whether they
were prejudicial). In Lawn v. United States, 355 U.S. 339 (1958), the
Supreme Court recognized that a prosecutor’s argument, even when
improper, is not prejudicial if it was invited by the improper remarks
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of defense counsel, and if the prosecutor does no more than "right the
scale." Young, 470 U.S. at 12-13 (applying invited reply rule of
Lawn).
We reject the Government’s contention that the invited reply rule
is applicable here. This rule only provides a prosecutor "some leeway
to respond to inflammatory attacks mounted by defense counsel,"
United States v. Rodriquez-Estrada, 877 F.2d 153, 158 (1st Cir. 1989)
(emphasis added), or to rebut allegations that a prosecution witness
committed perjury. Lawn, 355 U.S. at 359-60 n.15. The invited reply
rule does not provide a prosecutor "carte blanche to engage in
improper tactics" in responding to misrepresentations made by his
adversary in closing argument, United States v. Marcucci, 299 F.3d
1156, 1166 (9th Cir. 2002) — rather, such a circumstance is best
addressed by a proper objection. Because the Straight Face Comments
were not responsive to an inflammatory attack from defense counsel
or an accusation of perjury, they are beyond the purview of the
invited reply rule.
In any event, however, the Straight Face Comments did not likely
mislead the jury. The evidence of Ollivierre’s guilt was compelling
— indeed, it was nearly overwhelming: (1) Ollivierre drove the drugs
to the pre-arranged meeting place for the drug deal; (2) before show-
ing the drugs to the undercover officer, Snoop walked to Ollivierre’s
vehicle, leaned into it, appeared to converse with Ollivierre, and
retrieved something from the vehicle; (3) when Snoop and the under-
cover officer decided to complete the transaction on the dirt road,
Snoop told Ollivierre to follow them, and he complied; (4) as soon as
law officers appeared, Ollivierre fled, and he led the officers on a
lengthy and dangerous chase; (5) after the chase ended, Ollivierre
continued to flee on foot; (6) he was carrying over $1,700 in cash
when he was apprehended in a tree; and finally, (7) after Ollivierre
was released on bond, he absconded and remained a fugitive for five
years. In the context of this compelling evidence, we are unable to
conclude that the jury was misled by the prosecutor’s isolated criti-
cisms of the institutional role of defense attorneys. And we also are
unable to conclude that the prosecutor deliberately made this argu-
ment in an effort to divert the jury’s attention to extraneous matters.
Thus, the Straight Face Comments did not so infect Ollivierre’s trial
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with unfairness as to result in a denial of due process.8 See Mitchell,
1 F.3d at 241.
D.
Finally, Ollivierre contends that, in four instances, the prosecutor
improperly vouched for the credibility of government witnesses.
Importantly, however, Ollivierre failed to object to any of these com-
ments, and our review of them is for plain error only. See Adam, 70
F.3d at 780. A prosecutor improperly vouches for a witness when he
indicates his personal belief in her credibility or honesty. Sanchez,
118 F.3d at 198; United States v. Lewis, 10 F.3d 1086, 1089 (4th Cir.
1993).
In the circumstances of this trial, the first two Vouching Comments
were not improper because the prosecutor did not indicate his per-
sonal belief in the credibility or honesty of his witnesses. See San-
chez, 118 F.3d at 198 (vouching improper only when prosecutor
indicates his personal belief in credibility of witness). The prosecutor
prefaced each of these comments with "We submit to you," or "I sub-
mit to you," indicating that the comments were argument — not per-
sonal belief.
Ollivierre also maintains that the prosecutor improperly vouched
for a government witness when, in rebuttal, he made the third and
fourth Vouching Comments. Ollivierre’s lawyer had asserted in clos-
ing argument that Caldwell, a government witness, did not testify
8Ollivierre maintains that, even if the prosecutor’s comments, viewed
in isolation, did not prejudicially affect his substantial rights, he was —
when the comments are viewed cumulatively — denied his Fifth Amend-
ment right to a fair trial. Under the "cumulative error doctrine," however,
we assess the combined effect of errors made during his trial, and a
defendant must show that the cumulative impact of these errors affected
the outcome of the proceedings. See United States v. Martinez, 277 F.3d
517, 532 (4th Cir. 2002) (applying cumulative error doctrine); Olano,
507 U.S. at 734 (observing that, under Rule 52(b), defendant bears bur-
den of persuasion with respect to prejudice). Viewing the record as a
whole, the cumulative impact of the Straight Face Comments did not
affect the outcome of Ollivierre’s trial.
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truthfully. See, e.g., J.A. 211 ("I submit to you that Bridgette Caldwell
. . . is not credible." "[S]he was not believable."); J.A. 216 ("There is
ample evidence that either [Bridgette Caldwell] is very, very confused
or she is not telling the truth on the stand. I submit this is the kind
of thing you can’t be mistaken about, so she must not be telling the
truth.") (emphasis added). Because the prosecutor’s rebuttal argument
was permissibly responsive to accusations that Caldwell had lied, the
invited reply rule is implicated. Lawn, 355 U.S. at 359-60 n.15
(applying invited reply rule in assessing whether prosecutor improp-
erly vouched for government witness). The circumstances underlying
these comments are similar to those of Lawn — the defense lawyer
had there suggested that the government’s key witness was a liar, and
the prosecutor responded by arguing that the witness was truthful. Id.
As in Lawn, these comments were invited and they did no more than
seek to "right the scale." Young, 470 U.S. at 12-13. Thus, these rebut-
tal comments also were not erroneous. As a result, we reject the con-
tention that the prosecutor improperly vouched for his witnesses.
IV.
Because Ollivierre has failed to show that his substantial rights
were affected, we decline to reverse on the basis of improper argu-
ment. Furthermore, because the prosecutor’s argument did not consti-
tute prejudicial error, the trial court did not abuse its discretion in
denying Ollivierre’s motion for a new trial.
Pursuant to the foregoing, we reject Ollivierre’s appeal and affirm
his conviction and sentence.
AFFIRMED
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