United States v. Young
470 U.S. 1 (1985)

Annotate this Case

U.S. Supreme Court

United States v. Young, 470 U.S. 1 (1985)

United States v. Young

No. 83-469

Argued October 2, 1984

Decided February 20, 1985

470 U.S. 1

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

Syllabus

Respondent was charged with various federal offenses involving a scheme to defraud a refinery by submitting false certifications that oil purchased by the refinery from respondent's company was crude oil when in fact it was less valuable fuel oil. At the trial in District Court, defense counsel in his closing argument impugned the prosecutor's integrity and charged that the prosecutor did not believe in the Government's case. No objection to defense counsel's summation was made at the time, but in rebuttal arguments, the prosecutor stated his opinion that respondent was guilty and urged the jury to "do its job"; defense counsel made no objection. Respondent was convicted on several counts, and on appeal alleged that he was unfairly prejudiced by the prosecutor's response to defense counsel's argument. The Court of Appeals reversed and remanded for a new trial, holding that, under case law of that Circuit, such remarks constituted misconduct and were plain error, and that appellate review was not precluded by defense counsel's failure to object at trial.

Held: The prosecutor's remarks during the rebuttal argument, although error, did not constitute "plain error" that a reviewing court could properly act on under Federal Rule of Criminal Procedure 52(b), absent a timely objection by defense counsel; on the record, the challenged argument did not undermine the fairness of the trial. Pp. 470 U. S. 6-20.

(a) The kind of advocacy on both sides as shown by the record has no place in the administration of justice, and should neither be permitted nor

Page 470 U. S. 2

rewarded; the appropriate solution is for the trial judge to deal promptly with any breach by either counsel. Pp. 470 U. S. 6-11.

(b) The issue is not the prosecutor's license to make otherwise improper arguments, but whether his "invited response," taken in context, unfairly prejudiced the defendant. Lawn v. United States,355 U. S. 339. In order to make an appropriate assessment, the reviewing court must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's conduct. The impact of the evaluation has been that, if the prosecutor's remarks were "invited" and did no more than respond substantially in order to "right the scale," such comments would not warrant reversing a conviction. Pp. 470 U. S. 11-14.

(c) The plain error exception of Rule 52(b) to the contemporaneous objection requirement is to be used only in those circumstances in which a miscarriage of justice would otherwise result. Especially when addressing plain error, a reviewing court cannot properly evaluate a case except by viewing such a claimed error against the entire record. When reviewed under these principles, the prosecutor's remarks in this case did not rise to the level of plain error. Viewed in context, the remarks, although inappropriate and amounting to error, were not such as to undermine the fundamental fairness of the trial and contribute to a miscarriage of justice. Pp. 470 U. S. 14-20.

736 F.2d 565, reversed.

BURGER, C.J., delivered the opinion of the Court, in which WHITE, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and BLACKMUN, JJ., joined, post, p. 470 U. S. 20. STEVENS, J., filed a dissenting opinion, post, p. 470 U. S. 35.

CHIEF JUSTICE BURGER delivered the opinion of the Court.

We granted certiorari to review the reversal of respondent's conviction because of prosecutorial comments responding to defense counsel's closing argument impugning the prosecution's integrity and belief in the Government's case.

Page 470 U. S. 3

I

Respondent Billy G. Young, as vice-president and general manager of the Compton Petroleum Corporation in Abilene, Texas, contracted in 1976 and 1977 to deliver monthly supplies of "sweet" crude oil to the Apco Oil Corporation refinery in Cyril, Oklahoma. Some 205,000 barrels of oil were delivered under the contract between January and September, 1977, but more than half of the oil delivered to Apco, approximately 117,250 barrels, consisted of fuel oil, an already refined product less valuable than crude oil. Compton's invoices accompanying those deliveries falsely certified that all of the oil was crude. Apco relied on those false certifications and reported to the Federal Energy Administration, in compliance with Government regulations, 10 CFR §§ 211.66, 211.67, and 212.131 (1976), the amount of crude oil it thought it was refining each month. The Federal Energy Administration in turn relied on Apco's reports to determine the national averages of tier categories of refined oil for purposes of equalizing the cost of crude oil under its entitlement program.

Respondent's scheme to deceive Apco by selling it cheaper fuel oil masquerading as "sweet" crude oil was relatively simple. Respondent arranged with an oil brokerage firm, owned by a longtime friend, to procure fuel oil from another source and sell it to Compton under the false certification that it was crude oil. Compton would then pay the brokerage firm 10 cents per barrel commission as a fee for the "recertification." Once in Compton's storage tanks, respondent had the fuel oil disguised as crude oil before delivering it to Apco by blending condensate, a high gravity liquid taken from the wellheads of natural gas wells, with the fuel oil. [Footnote 1] In September, 1977, after an Apco technician performed a distillation

Page 470 U. S. 4

test on one of Compton's deliveries, Apco discovered that it had not been receiving crude oil as required by the contract, but rather a mixture of fuel oil and condensate. This discovery prompted the Federal Bureau of Investigation to launch an investigation which resulted in this prosecution.

On December 1, 1980, respondent and Compton were charged with 11 counts of mail fraud in violation of 18 U.S.C. § 1341, three counts of willfully and knowingly making false statements to a Government agency in violation of 18 U.S.C. § 1001, one count of interstate transportation of stolen property in violation of 18 U.S.C. § 2314, and with aiding and abetting in the commission of all 15 counts in violation of 18 U.S.C. § 2. A jury trial was held in the District Court for the Western District of Oklahoma. [Footnote 2] In his own defense, respondent testified that he had knowingly purchased fuel oil and delivered it to Apco, but he claimed that he thought such fuel oil could legitimately be certified as crude oil. He also believed that, if condensate were blended with fuel oil, the result would be the equivalent of crude oil. Because Apco had not complained about the deliveries before September 1977, respondent thought that Apco was satisfied with the quality of oil he was supplying.

At the close of the case, the prosecutor summarized the evidence against respondent. Defense counsel began his own summation by arguing that the case against respondent "has been presented unfairly by the prosecution," and that, "[f]rom the beginning" to "this very moment, the [prosecution's] statements have been made to poison your minds unfairly." Tr. 542. He intimated that the prosecution deliberately withheld exculpatory evidence, and proceeded to charge the prosecution with "reprehensible" conduct in purportedly attempting to cast a false light on respondent's activities. Defense counsel also pointed directly at the prosecutor's table and stated: "I submit to you that there's not a person in this

Page 470 U. S. 5

courtroom, including those sitting at this table, who think that Billy Young intended to defraud Apco." Id. at 543-544. Finally, defense counsel stated that respondent had been "the only one in this whole affair that has acted with honor and with integrity," and that "[t]hese complex [Department of Energy] regulations should not have any place in an effort to put someone away." Id. at 547.

The prosecutor did not object to defense counsel's summation, but, in rebuttal argument, he responded to defense counsel's claim that the Government did not believe in its own case:

"I think [defense counsel] said that not anyone sitting at this table thinks that Mr. Young intended to defraud Apco. Well, I was sitting there, and I think he was. I think he got 85 cents a barrel for every one of those 117,250.91 barrels he hauled, and every bit of the money they made on that he got one percent of. So, I think he did. If we are allowed to give our personal impressions, since it was asked of me."

Id. at 549. (Emphasis added.) Continuing with a review of portions of the evidence against respondent, the prosecutor responded to defense counsel's statement that Apco was not defrauded:

"I don't know what you call that, I call it fraud. You can look at the evidence and you can remember the testimony, you remember what [the witnesses] said and what [respondent] admitted they said. I think it's a fraud."

Id. at 550. Finally, the prosecutor addressed defense counsel's claim that respondent had acted with honor and integrity. The prosecutor briefly recapped some of respondent's conduct and stated:

"I don't know whether you call it honor and integrity, I don't call it that, [defense counsel] does. If you feel you should acquit him for that, it's your pleasure. I don't

Page 470 U. S. 6

think you're doing your job as jurors in finding facts, as opposed to the law that this Judge is going to instruct you, you think that's honor and integrity then stand up here in Oklahoma courtroom and say that's honor and integrity; I don't believe it."

Id. at 552. In turn, defense counsel did not object to the prosecutor's statements. Nor did he request any curative instructions and none were given.

The jury returned a verdict of guilty as to each of the mail fraud and false statement counts. Respondent was acquitted of interstate transportation of stolen property. Respondent was sentenced to two years' imprisonment on each count, to be served concurrently, and was fined $39,000.

On appeal, respondent alleged that he was unfairly prejudiced by the prosecutor's remarks made during closing rebuttal argument. In a per curiam opinion, the Court of Appeals, one judge dissenting without opinion, reversed the conviction and remanded for retrial. 736 F.2d 565 (CA10 1983). The Court of Appeals held that the prosecutor's statements constituted misconduct, and were sufficiently egregious to constitute plain error. In short, respondent's failure to object at trial was held not to preclude appellate review. Rejecting the Government's contention that the statements were invited by the defense counsel's own closing argument, the Court of Appeals stated that

"the rule is clear in this Circuit that improper conduct on the part of opposing counsel should be met with an objection to the court, not a similarly improper response."

Id. at 570.

We granted certiorari, 465 U.S. 1021 (1984). We now reverse.

II

The principal issue to be resolved is not whether the prosecutor's response to defense counsel's misconduct was appropriate, but whether it was "plain error" that a reviewing court could act on absent a timely objection. Our task is to

Page 470 U. S. 7

decide whether the standard laid down in United States v. Atkinson,297 U. S. 157, 297 U. S. 160 (1936), and codified in Federal Rule of Criminal Procedure 52(b), was correctly applied by the Court of Appeals.

Nearly a half century ago, this Court counselled prosecutors "to refrain from improper methods calculated to produce a wrongful conviction. . . . " Berger v. United States,295 U. S. 78, 295 U. S. 88 (1935). The Court made clear, however, that the adversary system permits the prosecutor to "prosecute with earnestness and vigor." Ibid. In other words, "while he may strike hard blows, he is not at liberty to strike foul ones." Ibid.

The line separating acceptable from improper advocacy is not easily drawn; there is often a gray zone. Prosecutors sometimes breach their duty to refrain from overzealous conduct by commenting on the defendant's guilt and offering unsolicited personal views on the evidence. Accordingly, the legal profession, through its Codes of Professional Responsibility, [Footnote 3] and the federal courts, [Footnote 4] have tried to police

Page 470 U. S. 8

prosecutorial misconduct. In complementing these efforts, the American Bar Association's Standing Committee on Standards for Criminal Justice has promulgated useful guidelines, one of which states that

"[i]t is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant."

ABA Standards for Criminal Justice 3-5.8(b) (2d ed.1980). [Footnote 5]

It is clear that counsel on both sides of the table share a duty to confine arguments to the jury within proper bounds. Just as the conduct of prosecutors is circumscribed,

"[t]he interests of society in the preservation of courtroom control by the judges are no more to be frustrated through unchecked improprieties by defenders."

Sacher v. United States,343 U. S. 1, 343 U. S. 8 (1952). Defense counsel, like the prosecutor, must refrain from interjecting personal beliefs into the presentation

Page 470 U. S. 9

of his case. See, e.g., ABA Model Code of Professional Responsibility DR 7-106(C)(3) and (4) (1980), quoted in n 3, supra; ABA Model Rules of Professional Conduct, Rule 3.4(e) (1984). Defense counsel, like his adversary, must not be permitted to make unfounded and inflammatory attacks on the opposing advocate. [Footnote 6]

The kind of advocacy shown by this record has no place in the administration of justice, and should neither be permitted nor rewarded; a trial judge should deal promptly with any breach by either counsel. These considerations plainly guided the ABA Standing Committee on Standards for Criminal Justice in laying down rules of trial conduct for counsel that quite properly hold all advocates to essentially the same standards. [Footnote 7] Indeed, the accompanying commentary points out that "[i]t should be accepted that both prosecutor and defense counsel are subject to the same general limitations in

Page 470 U. S. 10

the scope of their argument," ABA Standards for Criminal Justice 4-7.8, p. 4-97, and provides the following guideline:

"The prohibition of personal attacks on the prosecutor is but a part of the larger duty of counsel to avoid acrimony in relations with opposing counsel during trial and confine argument to record evidence. It is firmly established that the lawyer should abstain from any allusion to the personal peculiarities and idiosyncrasies of opposing counsel. A personal attack by the prosecutor on defense counsel is improper, and the duty to abstain from such attacks is obviously reciprocal."

Id. at 4-99 (footnotes omitted).

These standards reflect a consensus of the profession that the courts must not lose sight of the reality that "[a] criminal trial does not unfold like a play with actors following a script." Geders v. United States,425 U. S. 80, 425 U. S. 86 (1976). It should come as no surprise that,

"in the heat of argument, counsel do occasionally make remarks that are not justified by the testimony, and which are, or may be, prejudicial to the accused."

Dunlop v. United States,165 U. S. 486, 165 U. S. 498 (1897). [Footnote 8]

We emphasize that the trial judge has the responsibility to maintain decorum in keeping with the nature of the proceeding; "the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct." Quercia v. United States,289 U. S. 466, 289 U. S. 469 (1933). The judge "must meet situations as they arise and [be able] to cope with . . . the contingencies inherent in the adversary process." Geders v. United States, supra, at 425 U. S. 86. Of course, "hard blows" cannot be avoided in criminal trials; both the prosecutor and defense counsel must be kept within appropriate

Page 470 U. S. 11

bounds. See Herring v. New York,422 U. S. 853, 422 U. S. 862 (1975).

III

The situation brought before the Court of Appeals was but one example of an all too common occurrence in criminal trials -- the defense counsel argues improperly, provoking the prosecutor to respond in kind, and the trial judge takes no corrective action. Clearly two improper arguments -- two apparent wrongs -- do not make for a right result. Nevertheless, a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor's conduct affected the fairness of the trial. To help resolve this problem, courts have invoked what is sometimes called the "invited response" or "invited reply" rule, which the Court treated in Lawn v. United States,355 U. S. 339 (1958).

The petitioners in Lawn sought to have the Court overturn their criminal convictions for income tax evasion on a number of grounds, one of which was that the prosecutor's closing argument deprived them of a fair trial. In his closing argument at trial, defense counsel in Lawn had attacked the Government for "persecuting" the defendants. He told the jury that the prosecution was instituted in bad faith at the behest of federal revenue agents, and asserted that the Government's key witnesses were perjurers. The prosecutor in response vouched for the credibility of the challenged witnesses, telling the jury that the Government thought those witnesses testified truthfully. In concluding that the prosecutor's remarks, when viewed within the context of the entire trial, did not deprive petitioners of a fair trial, the Court pointed out that defense counsel's "comments clearly invited the reply." Id. at 355 U. S. 359-360, n. 15.

This Court's holding in Lawn was no more than an application of settled law. Inappropriate prosecutorial comments, standing alone, would not justify a reviewing court to reverse a criminal conviction obtained in an otherwise fair proceeding.

Page 470 U. S. 12

Instead, as Lawn teaches, the remarks must be examined within the context of the trial to determine whether the prosecutor's behavior amounted to prejudicial error. In other words, the Court must consider the probable effect the prosecutor's response would have on the jury's ability to judge the evidence fairly. In this context, defense counsel's conduct, as well as the nature of the prosecutor's response, is relevant. See United States v. Socony-Vacuum Oil Co.,310 U. S. 150, 310 U. S. 242 (1940); Crumpton v. United States,138 U. S. 361, 138 U. S. 364 (1891). Indeed, most Courts of Appeals, applying these holdings, have refused to reverse convictions where prosecutors have responded reasonably in closing argument to defense counsel's attacks, thus rendering it unlikely that the jury was led astray. [Footnote 9]

In retrospect, perhaps the idea of "invited response" has evolved in a way not contemplated. Lawn and the earlier cases cited above should not be read as suggesting judicial approval or -- encouragement -- of response-in-kind that inevitably exacerbates the tensions inherent in the adversary process. As Lawn itself indicates, the issue is not the prosecutor's license to make otherwise improper arguments, but whether the prosecutor's "invited response," taken in context, unfairly prejudiced the defendant.

In order to make an appropriate assessment, the reviewing court must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's opening salvo. Thus, the import of the evaluation has been that, if the prosecutor's remarks were "invited," and did no

Page 470 U. S. 13

more than respond substantially in order to "right the scale," such comments would not warrant reversing a conviction. [Footnote 10]

Courts have not intended by any means to encourage the practice of zealous counsel's going "out of bounds" in the manner of defense counsel here, or to encourage prosecutors to respond to the "invitation." Reviewing courts ought not to be put in the position of weighing which of two inappropriate arguments was the lesser. "Invited responses" can be effectively discouraged by prompt action from the bench in the form of corrective instructions to the jury and, when necessary, an admonition to the errant advocate.

Plainly, the better remedy in this case, at least with the accurate vision of hindsight, would have been for the District Judge to deal with the improper argument of the defense counsel promptly, and thus blunt the need for the prosecutor to respond. Arguably, defense counsel's misconduct could have warranted the judge to interrupt the argument and admonish him, see Viereck v. United States,318 U. S. 236, 318 U. S. 248 (1943), thereby rendering the prosecutor's response unnecessary. Similarly, the prosecutor, at the close of defense summation, should have objected to the defense counsel's improper statements with a request that the court give a timely warning and curative instruction to the jury. Defense counsel, even though obviously vulnerable, could well have done likewise if he thought that the prosecutor's remarks were harmful to his client. Here, neither counsel made a timely objection to preserve the issue for review. See Donnelly v. DeChristoforo,416 U. S. 637, 416 U. S. 644 (1974). However, interruptions of arguments, either by an opposing counsel or the presiding judge, are matters to be approached cautiously. At the very least, a bench conference might have been convened

Page 470 U. S. 14

out of the hearing of the jury once defense counsel closed, and an appropriate instruction given.

IV

Here the Court of Appeals was not unaware of our holdings and those of other Circuits, but seemingly did not undertake to weigh the prosecutor's comments in context. The court acknowledged defense counsel's obvious misconduct, but it does not appear that this was given appropriate weight in evaluating the situation.

We share the Court of Appeals' desire to minimize "invited responses," and we agree that the prosecutor's response constituted error. In addition to departing from the Tenth Circuit's "rule" prohibiting such remarks, [Footnote 11] the prosecutor's comments crossed the line of permissible conduct established by the ethical rules of the legal profession, as did defense counsel's argument, see supra at 470 U. S. 6-10, and went beyond what was necessary to "right the scale" in the wake of defense counsel's misconduct. Indeed, the prosecutor's first error was in failing to ask the District Judge to deal with defense counsel's misconduct.

As we suggested earlier, the dispositive issue under the holdings of this Court is not whether the prosecutor's remarks amounted to error, but whether they rose to the level of "plain error" when he responded to defense counsel. In this setting and on this record, the prosecutor's response -- although error -- was not "plain error" warranting the court to overlook the absence of any objection by the defense.

Page 470 U. S. 15

The plain error doctrine of Federal Rule of Criminal Procedure 52(b) [Footnote 12] tempers the blow of a rigid application of the contemporaneous objection requirement. The Rule authorizes the Courts of Appeals to correct only "particularly egregious errors," United States v. Frady,456 U. S. 152, 456 U. S. 163 (1982), those errors that "seriously affect the fairness, integrity or public reputation of judicial proceedings," United States v. Atkinson, 297 U.S. at 297 U. S. 160. In other words, the plain error exception to the contemporaneous objection rule is to be "used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result." United States v. Frady, 456 U.S. at 456 U. S. 163, n. 14. Any unwarranted extension of this exacting definition of plain error would skew the Rule's

"careful balancing of our need to encourage all trial participants to seek a fair and accurate trial the first time around against our insistence that obvious injustice be promptly redressed."

Id. at 456 U. S. 163 (footnote

Page 470 U. S. 16

omitted). Reviewing courts are not to use the plain error doctrine to consider trial court errors not meriting appellate review absent timely objection [Footnote 13] -- a practice which we have criticized as "extravagant protection." Henderson v. Kibbe,431 U. S. 145, 431 U. S. 154, n. 12 (1977); Namet v. United States,373 U. S. 179, 373 U. S. 190 (1963).

Especially when addressing plain error, a reviewing court cannot properly evaluate a case except by viewing such a claim against the entire record. We have been reminded:

"In reviewing criminal cases, it is particularly important for appellate courts to relive the whole trial imaginatively, and not to extract from episodes in isolation abstract questions of evidence and procedure. To turn a criminal trial into a quest for error no more promotes the ends of justice than to acquiesce in low standards of criminal prosecution."

Johnson v. United States,318 U. S. 189, 318 U. S. 202 (1943) (Frankfurter, J., concurring). It is simply not possible for an appellate court to assess the seriousness of the claimed error by any other means. As the Court stated in United States v. Socony-Vacuum Oil Co., 310 U.S. at 310 U. S. 240, "each case necessarily turns on its own facts."

When reviewed with these principles in mind, the prosecutor's remarks cannot be said to rise to the level of plain error. Viewed in context, the prosecutor's statements, although inappropriate and amounting to error, were not such as to undermine the fundamental fairness of the trial and contribute to a miscarriage of justice. See United States v. Frady, supra, at 456 U. S. 163; United States v. Atkinson, supra, at 297 U. S. 160. [Footnote 14]

Page 470 U. S. 17

The prosecutor responded with his "personal impressio[n]," Tr. 549, that respondent intended to commit a fraud to answer defense counsel's accusation that no member of the prosecution team believed that respondent intended to defraud Apco. Indeed, the prosecutor made a point to preface his statement by summarizing defense counsel's acerbic charge and candidly told the jury that he was giving his "personal impressions" because defense counsel had asked for them.

Notwithstanding the defense counsel's breach of ethical standards, the prosecutor's statement of his belief that the evidence showed Apco had been defrauded should not have been made; it was an improper expression of personal opinion and was not necessary to answer defense counsel's improper assertion that no one on the prosecution team believed respondent intended to defraud Apco. Nevertheless, we conclude that any potential harm from this remark was mitigated by the jury's understanding that the prosecutor was countering defense counsel's repeated attacks on the

Page 470 U. S. 18

prosecution's integrity and defense counsel's argument that the evidence established no such crime.

Finally, the prosecutor's comments that respondent had not acted with "honor and integrity," and his calling attention to the jury's responsibility to follow the court's instructions were in response to defense counsel's rhetoric that respondent alone was the sole honorable actor in "this whole affair," id. at 547, and that the jury should not find respondent guilty simply because he could not understand applicable, but complex, federal regulations. The prosecutor was also in error to try to exhort the jury to "do its job"; that kind of pressure, whether by the prosecutor or defense counsel, has no place in the administration of criminal justice, see, e.g., ABA Standards for Criminal Justice 3-5.8(c) and 4-7.8(c). Given the context of the prosecutor's remarks and defense counsel's broadside attack, however, we conclude that the jury was not influenced to stray from its responsibility to be fair and unbiased. [Footnote 15]

The concerns underlying our reactions against improper prosecutorial arguments to the jury are implicated here, but not to the extent that we conclude that the jury's deliberations were compromised. The prosecutor's vouching for the credibility of witnesses and expressing his personal opinion concerning the guilt of the accused pose two dangers: such comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant, and can thus jeopardize the defendant's right to be tried solely on the basis of the evidence presented to the jury; and the prosecutor's opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government's judgment, rather than its

Page 470 U. S. 19

own view of the evidence. See Berger v. United States, 295 U.S. at 295 U. S. 88-89.

The prosecutor's statement of his belief that respondent intended to commit a fraud contained no suggestion that he was relying on information outside the evidence presented at trial. He supported his comment by referring to respondent's own testimony that Compton received 85 cents a barrel for its deliveries to Apco, and that respondent personally received a bonus of one percent of Compton's net profits, see Tr. 501-503; he then summarized portions of the evidence adduced at trial before suggesting to the jury that the record established the fraud charged. Although it was improper for the prosecutor to express his personal opinion about respondent's guilt, see Berger v. United States, supra, at 295 U. S. 88; ABA Standard for Criminal Justice 3-5.8(b), when viewed in context, the prosecutor's remarks cannot be read as implying that the prosecutor had access to evidence outside the record. The jury surely understood the comment for what it was -- a defense of his decision and his integrity in bringing criminal charges on the basis of the very evidence the jury had heard during the trial.

Finally, the overwhelming evidence of respondent's intent to defraud Apco and submit false oil certifications to the Government eliminates any lingering doubt that the prosecutor's remarks unfairly prejudiced the jury's deliberations or exploited the Government's prestige in the eyes of the jury. Not a single witness supported respondent's asserted defense that fuel oil mixed with condensate could be certified and sold as crude oil, and several witnesses flatly rejected such a proposition, see Tr. 352-353, 393-395. Indeed, respondent's crude oil trader testified that he had never heard of a firm legally blending fuel oil with condensate and stating that the mixture was crude oil. See id. at 359. It was undisputed that respondent failed to advise Apco of what he was actually supplying, and that the oil supplied did not meet the contract requirements. See id. at 358-359.

Page 470 U. S. 20

Moreover, the evidence established beyond any doubt whatever that respondent deliberately concealed his scheme to defraud Apco. Apart from enlisting the aid of an oil brokerage firm to "recertify" the fuel oil as crude oil, respondent, on three separate occasions, when questioned by two Apco officials and by FBI agents, falsely denied that he was supplying fuel oil instead of crude oil, see id. at 293-294, 357-358, 379, 496, 516. Under these circumstances, the substantial and virtually uncontradicted evidence of respondent's willful violation provides an additional indication that the prosecutor's remarks, when reviewed in context, cannot be said to undermine the fairness of the trial and contribute to a miscarriage of justice.

V

On this record, we hold that the argument of the prosecutor, although error, did not constitute plain error warranting the Court of Appeals to overlook the failure of the defense counsel to preserve the point by timely objection; nor are we persuaded that the challenged argument seriously affected the fairness of the trial. Accordingly, the judgment of the Court of Appeals, ordering a new trial based on the prosecutor's argument, is reversed.

It is so ordered.

[Footnote 1]

Apco wanted a high gravity crude oil for gasoline production. A high gravity crude oil yields greater quantities of gasoline and diesel fuels after refining than does a lower gravity crude oil, which yields more fuel oil and asphalt. Fuel oil, on the other hand, has a low gravity, and was neither what Apco needed nor what it thought it was buying.

[Footnote 2]

Prior to trial, the District Court accepted Compton's plea of nolo contendere and imposed a fine.

[Footnote 3]

See, e.g., ABA Model Code of Professional Responsibility DR 7-106(C) (1980), which provides in pertinent part:

"In appearing in his professional capacity before a tribunal, a lawyer shall not:"

"* * * *"

"(3) Assert his personal knowledge of the facts in issue, except when testifying as a witness."

"(4) Assert his personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or innocence of an accused; but he may argue, on his analysis of the evidence, for any position or conclusion with respect to matters stated herein."

See also ABA Model Rules of Professional Conduct, Rule 3.4(e) (1984).

[Footnote 4]

See, e.g., United States v. DiPasquale, 740 F.2d 1282, 1296 (CA3 1984); United States v. Maccini, 721 F.2d 840, 846 (CA1 1983); United States v. Harrison, 716 F.2d 1050, 1051 (CA4 1983); United States v. Bagaric, 706 F.2d 42, 58-61 (CA2 1983); United States v. West, 680 F.2d 652, 655-656 (CA9 1982); United States v. Garza, 608 F.2d 659, 665-666 (CA5 1979).

[Footnote 5]

The remaining text of ABA Standards for Criminal Justice 3-5.8 (2d ed.1980) provides:

"(a) The prosecutor may argue all reasonable inferences from evidence in the record. It is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw."

"* * * *"

"(c) The prosecutor should not use arguments calculated to inflame the passions or prejudices of the jury."

"(d) The prosecutor should refrain from argument which would divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law, or by making predictions of the consequences of the jury's verdict."

"(e) It is the responsibility of the court to ensure that final argument to the jury is kept within proper, accepted bounds."

The accompanying commentary succinctly explains one of the critical policies underlying these proscriptions:

"Expressions of personal opinion by the prosecutor are a form of unsworn, unchecked testimony, and tend to exploit the influence of the prosecutor's office and undermine the objective detachment that should separate a lawyer from the cause being argued."

Id. at 3-89.

[Footnote 6]

Of course, when defense counsel employs tactics which would be reversible error if used by a prosecutor, the result may be an unreviewable acquittal. The prosecutor's conduct and utterances, however, are always reviewable on appeal, for he is "both an administrator of justice and an advocate." ABA Standard for Criminal Justice 3-l.1(b) (2d ed.1980); cf. Berger v. United States,295 U. S. 78, 295 U. S. 88 (1935).

[Footnote 7]

ABA Standard for Criminal Justice 4-7.8 provides:

"(a) In closing argument to the jury the lawyer may argue all reasonable inferences from the evidence in the record. It is unprofessional conduct for a lawyer intentionally to misstate the evidence or mislead the jury as to the inferences it may draw."

"(b) It is unprofessional conduct for a lawyer to express a personal belief or opinion in his client's innocence or personal belief or opinion in the truth or falsity of any testimony or evidence, or to attribute the crime to another person unless such an inference is warranted by the evidence."

"(c) A lawyer should not make arguments calculated to inflame the passions or prejudices of the jury."

"(d) A lawyer should refrain from argument which would divert the jury from its duty to decide the case on the evidence by injecting issues broader than the guilt or innocence of the accused under the controlling law or by making predictions of the consequences of the jury's verdict."

"(e) It is the responsibility of the court to ensure that final argument to the jury is kept within proper, accepted bounds."

[Footnote 8]

Learned Hand observed:

"It is impossible to expect that a criminal trial shall be conducted without some showing of feeling; the stakes are high, and the participants are inevitably charged with emotion."

United States v. Wexler, 79 F.2d 526, 529-530 (CA2 1935), cert. denied, 297 U.S. 703 (1936).

[Footnote 9]

See, e.g., United States v. DiPasquale, 740 F.2d at 1296; United States v. Maccini, 721 F.2d at 846; United States v. Harrison, 716 F.2d at 1052; United States v. Trujillo, 714 F.2d 102, 105 (CA11 1983); United States v. West, 670 F.2d 675, 688-689 (CA7 1982); United States v. Tham, 665 F.2d 855, 862 (CA9 1981); United States v. Schwartz, 655 F.2d 140, 142 (CA8 1981) (per curiam); United States v. Praetorius, 622 F.2d 1054, 1060-1061 (CA2 1979); United States v. Kim, 193 U.S.App.D.C. 370, 381-383, 595 F.2d 755, 767-768 (1979).

[Footnote 10]

Assuming the prosecutor's remarks exceeded permissible bounds and defense counsel raised a timely objection, a reviewing court could reverse an otherwise proper conviction only after concluding that the error was not harmless. See United States v. Hasting,461 U. S. 499 (1983).

[Footnote 11]

Until this decision, the Tenth Circuit's "rule" appeared largely as dicta in earlier opinions. See, e.g., United States v. Rios, 611 F.2d 1335, 1343 (CA10 1979); United States v. Latimer, 511 F.2d 498, 503 (CA10 1975); United States v. Martinez, 487 F.2d 973, 977 (CA10 1973); United States v. Coppola, 479 F.2d 1153, 1163 (CA10 1973). But see United States v. Ludwig, 508 F.2d 140, 143 (CA10 1974) (court recites rule in context of rejecting Government's argument that the prosecutor's concededly improper remarks were harmless error in light of defense counsel's conduct).

[Footnote 12]

Federal Rule of Criminal Procedure 52(b) provides:

"Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court."

The Advisory Committee's Notes indicate that the Rule restated existing law as set forth by this Court in Wiborg v. United States,163 U. S. 632 (1896):

"[A]lthough this question was not properly raised, yet if a plain error was committed in a manner so absolutely vital to defendants, we feel ourselves at liberty to correct it."

Id. at 163 U. S. 658. See Advisory Committee's Notes on Fed.Rule Crim.Proc. 52(b), 18 U.S.C.App. p. 657.

A review of the drafting that led to the Rule shows that the Committee sought to enable the courts of appeals to review prejudicial errors "so that any miscarriage of justice may be thwarted." Advisory Committee on Rules of Criminal Procedure to the Supreme Court of the United States, Federal Rules of Criminal Procedure, Preliminary Draft 263 (1943).

The Committee's use of the disjunctive in the phrasing of the Rule is misleading, for as one commentator has noted, this

"may simply be a means of distinguishing for definitional purposes between 'errors' (e.g., exclusion of evidence) and 'defects' (e.g., defective pleading),"

and in either case, the Rule applies only to errors affecting substantial rights. 8B J. Moore, Moore's Federal Practice

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