David Dominic Necoechea appeals his conviction for conspiracy to possess mari *1276 juana with the intent to distribute in violation of 21 U.S.C. §§ 846 & 841(a)(1). Necoechea argues that the prosecution improperly vouched for its witnesses and knowingly presented false testimony, that he was denied effective assistance of counsel, that there was insufficient evidence to support his conviction, and that there was cumulative error. We have jurisdiction, 28 U.S.C. § 1291, and we affirm.
I
Agent Richard Salazar, acting undercover, posed as a large-scale marijuana dealer looking for buyers. He planned a 120 pound transaction with Lupita Gibson, John Blomquist, Charles Jackson, and Manny Romero, though his primary contact was Gibson. After several discussions, a transaction was finally planned at a particular house. Everyone met at the house, after which Salazar left to go get the marijuana. While Salazar was gone, Gibson heard Jackson say that he was going to get his “moneyman.” 1 Jackson returned with Necoechea. Gibson saw Necoechea at the door of the residence with a cooler, and heard Necoechea ask Jackson if he should bring the cooler into the house. This appears to be the only contact Gibson had with Necoechea.
At Salazar’s request, Gibson and Jackson met him at a parking lot to inspect the marijuana. Salazar noticed that Gibson “looked like she knew what she was doing” when she inspected the marijuana. A short time later, Salazar came to the house, without the marijuana, to inspect the money. Jackson showed Salazar into the house, and led him to a room, but made him wait in the hall. Jackson went into the room, and came out with a cooler filled with cash, which Salazar said “looked good.” Salazar then told Jackson that he would call to bring the marijuana to the house, and shortly thereafter a police team arrived. Jackson, Romero, and Necoechea were arrested in the house, and Gibson, who had left, was later pulled over by police when she returned to the house. Necoechea was found, with the cooler full of cash, in the room to which Jackson had led Salazar.
Gibson entered into a plea agreement and testified that she saw Necoechea outside of the house with a cooler. Necoechea was convicted, and now appeals.
II
Necoechea first argues that the prosecutor repeatedly vouched for the credibility of Salazar and Gibson. Since Necoechea failed to raise this objection at trial, we review for plain error.
United States v. Molina,
A
“As a general rule, a prosecutor may not express his opinion of the defendant’s guilt or his belief in the credibility of government witnesses.”
Id.
at 1444. Vouching consists of placing the prestige of the government behind a witness through personal assurances of the witness’s veracity, or suggesting that information not presented to the jury supports the witness’s testimony.
Id.
at 1445;
United States v. Roberts,
*1277 We have recently decided a number of vouching eases, which we believe will be helpful to review and put in context.
In
United States v. Shaw,
In
United States v. Wallace,
In
United States v. Lew,
In
United States v. Simtob,
In
United States v. Monroe,
In
United States v. Smith,
Most recently, in
United States v. Kerr,
These cases indicate that we have no bright-line rule about when vouching will result in reversal. Rather, we consider a number of factors including: the form of vouching; how much the vouching implies that the prosecutor has extra-record knowledge of or the capacity to monitor the witness’s truthfulness; any inference that the court is monitoring the witness’s veracity; the degree of personal opinion asserted; the timing of the vouching; the extent to which the witness’s credibility was attacked; the specificity and timing of a curative instruction; the importance of the witness’s testimony and the vouching to the case overall. When reviewing for plain error, we then balance the seriousness of the vouching against the strength of the curative instruction and closeness of the case.
B
Necoechea argues that the prosecutor impermissibly vouched by bringing up the truthfulness provision of Gibson’s plea agreement, by mentioning facts outside the record, and by expressing his personal opinion of credibility.
First, Necoechea points to the prosecutor’s opening statement that, “in exchange for a reduced exposure on this charge and a recommendation of probation from my office, [Gibson] has agreed to cooperate with the government, and to testify truthfully.” This is vouching. Although the particular statement, “to testify truthfully,” is nothing more than what the plea agreement says, it does mildly imply, as do all statements regarding truthfulness provisions, that the government can guarantee Gibson’s truthfulness. It does not, however, connote that the government will be monitoring the witness’s truthspeaking.
Cf. Shaw,
Necoechea next argues that the prosecutor improperly vouched by eliciting testimony regarding the truthfulness provision on direct examination by asking Gibson if it were part of her agreement that she “testif[y] truthfully and cooperat[e],” to which she responded yes. This is not vouching. The prosecutor's question does not imply a guaranty of Gibson’s truthful
*1279
ness, refer to extra-record facts, or reflect a personal opinion. Nor was it inopportune since Necoechea challenged Gibson’s credibility during opening statement.
See Monroe,
Necoechea also points to two statements made in argument. First, the prosecutor in closing stated:
Then [defense counsel] says that Lupita didn’t testify against the others. Well, I’m going to ask you to disregard that completely. The reason why she testified, or didn’t testify, is really nothing— nothing that’s part of this trial. I should tell you, ladies and gentlemen, that the cases against those others were resolved, so she didn’t have to testify.
[Emphasis added.]
This statement is vouching. The prosecutor’s argument bolsters Gibson’s credibility by explaining why she did not testify against her other codefendants, and refers to facts not in the record since there was no evidence concerning the resolution of the codefendants’ cases. 3 The statement also implies that the prosecutor had personal knowledge of why Gibson did not need to testify. It may further insinuate that the other conspirators pled guilty or were convicted, suggesting that Necoechea was in the company of convicted drug dealers.
In addition, the prosecutor stated: “Why, ladies and gentlemen, if [Gibson’s] lying, isn’t she doing a better job of it? I submit to you, ladies and gentlemen, that she’s not lying. I submit to you that she’s telling the truth.” Necoechea argues that this statement is a personal assurance of Gibson’s veracity, citing
United States v. Roberts,
These “I submit” statements do not constitute vouching. The prosecutor here argued that Gibson told the truth because, if she were lying, she would have done a better job. This is simply an inference from evidence in the record. It is not, as in
Roberts,
a reference to extra-record facts or a personal guarantee of Gibson’s veracity. The prosecutor merely argued that Gibson was telling the truth, an argument the prosecutor had to make in order to convict Necoechea. These statements do not imply that the government is assuring Gibson’s veracity, and do not reflect the prosecutor’s personal beliefs.
Cf. Kerr,
Necoechea finally argues that the prosecutor vouched for Salazar by referring to facts not in evidence during rebuttal. Necoechea complains about the following explanation of why Salazar did not search Necoechea’s house: “[Necoechea’s attorney] never asked Salazar why they didn’t execute a search warrant. Do you think, ladies and gentlemen, the answer might have been, ‘We didn’t know where he lived’?” This argument, however, was a reasonable inference based on the evidence. During cross-examination, Salazar was *1280 asked whether a particular house which agents had surveilled was Necoechea’s house, and he responded, “I don’t know if it was, or not.” On re-cross-examination, Salazar was also asked whether any of the residences involved in the case were Necoechea's, and he responded, “Not that I know of.” In fact, Salazar had not known of Necoechea until after the arrest and search of the house. There was no reason for Salazar to have searched Necoeehea’s house before arrest. Why Salazar did not search Necoechea’s house after arrest bears little, if at all, on Necoechea’s guilt. The prosecutor’s statement, therefore, was grounded in the evidence.
C
Even though we agree with Necoechea that there were two instances of vouching, we do not agree that they amount to plain error.
Necoechea would have us hold that no reference to a truthfulness provision in a plea agreement should be permitted and that any reference to truthfulness provisions is plain error. We decline to do so. Our cases have not so held, nor has any other circuit. 4
While the trial court did not
sua sponte
give a curative instruction during opening statement or closing argument, it did instruct at the end of trial that the jury should weigh the testimony of “a coconspirator or accomplice who provides evidence for immunity from punishment or for personal advantage or vindication” with “greater care” than the testimony of an ordinary witness. Since the vouching during opening statement was mild, this general instruction was sufficient to cure the error. In this respect this case is more similar to
Shaw,
The vouching during closing argument is more problematic. Agent Salazar’s testimony appeared to suggest that all other conspirators were on tape; one of Necoechea’s most effective arguments, therefore, was that Gibson had a significant incentive to lie since her testimony was primarily valuable against Necoechea. However, the court gave a general instruction that the attorneys’ arguments were not evidence in the case. Gibson’s credibility was forcefully challenged at trial, so the prosecutor’s improper remarks in closing argument, viewed in light of the court’s instruction and the context of the trial, was short of a “miscarriage of justice.”
Gibson was certainly an important witness against Necoechea. Hers was the *1281 strongest evidence that it was he who carried the cooler with the cash into the house. There was, however, significant circumstantial evidence connecting Necoechea with the conspiracy. Salazar testified that Jackson said he had a “partner” who could provide money, and Necoechea was found in the room with the cooler with the money.
In light of the fact that Gibson’s testimony was impeached, the nature of the vouching did not appreciably put the integrity of either the prosecutor or the court behind her credibility, and an instruction commensurate with the degree of vouching was given, we cannot say that Gibson’s testimony was so crucial or the case so close as to require reversal for plain error.
III
Necoechea next argues that the prosecutor presented false testimony to the jury. A conviction obtained by the knowing use of perjured testimony must be set aside if there is any reasonable likelihood that the false testimony could have affected the outcome of the trial.
United States v. Sherlock,
Necoechea claims that Gibson lied at trial when she testified that this was her first marijuana transaction. He also argues that the government knew that this was a lie because Gibson had told Agent Salazar that she had been “dealing for years” and because Salazar had noticed that Gibson “knew what she was doing” when she inspected the marijuana. Necoechea also points to an unsigned memorandum from an investigator which states a co-defendant said that Gibson had once said that she had “set up other deals involving drugs.”
Even if Gibson lied,
5
Necoechea has not shown that the prosecutor knew the statements were perjurious. At most, the prosecutor presented contradictory testimony, and that is not improper.
Sherlock,
IV
Necoechea argues that he was denied effective assistance of counsel since his attorney failed to object to the prosecutor’s vouching. An ineffective assistance of counsel claim is more properly raised by collateral attack on a conviction.
United States v. Robinson,
Because many lawyers refrain from objecting during opening statement and closing argument, absent egregious misstatements, the failure to object during closing argument and opening statement is within the “wide range” of permissible professional legal conduct.
Strickland v. Washington,
V
Necoechea contends that there was insufficient evidence for his conviction. The standard of review for claims of insufficiency is whether, “reviewing the evi
*1282
dence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”
United States v. Bishop,
Here, the primary evidence linking Necoechea to the conspiracy was Gibson’s testimony. The uncorroborated testimony of an accomplice is sufficient to sustain a conviction unless it is incredible or insubstantial on its face.
United States v. Lai,
VI
Finally, Necoechea argues that there was cumulative error requiring reversal. Although individual errors looked at separately may not rise to the level of reversible error, their cumulative effect may nevertheless be so prejudicial as to require reversal.
United States v. Wallace,
In addition to those already discussed, Necoechea complains of two other possible errors. First, he argues that during rebuttal, the prosecutor impermissibly drew on his own knowledge of fingerprint evidence when he argued: “Where is the testimony that you can take fingerprints from plastic? Where is the expert, ladies and gentlemen, to testify that the material was the kind of material that would in fact pick up prints.”
This is not an impermissible argument for two reasons. A prosecutor is entitled to comment on a defendant’s failure to present witnesses so long as it is not phrased to call attention to the defendant’s own failure to testify.
United States v. Hill,
Necoechea also argues that the prosecutor dealt an impermissible “foul blow” by arguing that “when you look at [Necoechea], you’re looking at a dope dealer. You’re looking at a dope dealer.” A prosecutor is allowed to deal a “hard blow” based on the evidence and all fair inferences therefrom, but courts may not permit “foul blows.”
United States v. Prantil,
Thus, we must consider whether the two instances of vouching cumulatively require reversal. Necoechea argues that once all errors are grouped, their cumulative impact must be reviewed under a harmless error standard, citing
Berry. Berry,
however, held that since the defendant charged “non-constitutional error,” the court should affirm if the cumulative error was more probably than not harmless.
Berry,
We acknowledge that a defendant is more likely to be prejudiced by error or misconduct when the government’s case rests on uncorroborated accomplice testimony.
United States v. Hibler,
Since both vouching errors affect the same issue—Gibson’s credibility—the possible prejudice grows when both errors are viewed together. Nevertheless, there is no cumulative error. The vouching during opening statement was mild, and was adequately cured by the court’s general instruction. There can be no “traces” of prejudice left over from that vouching, as Gibson’s credibility was attacked and the plea agreement was used to impeach her. Likewise, the vouching that occurred during closing argument was effectively neutralized by the court’s instruction that comments of counsel are not evidence. Accordingly, we conclude that neither instance of vouching was plain error considered separately, nor do both together rise to the level of plain error requiring reversal.
AFFIRMED.
Notes
. On a prior occasion, Jackson had also referred to a "partner" who could provide money.
. As we said in
Shaw,
"[w]hen the prosecution refers, as it did here, to the requirement of truthfulness before the issue of bias is drawn, it runs the risk that its reference will be interpreted as an attempt to establish truthfulness and suggest verifiability. We agree, however, with the government that what was said is more important than when it was said, at least in a case such as this one where an attack on the witness’ credibility was almost certain to be forthcoming.”
. The government suggests that the prosecutor’s unsupported argument was a response to Necoechea's ostensibly unsupported argument:
[Gibson] doesn’t testify against Blomquist, or Romero, or Jackson. Now, why is that? Well, they’ve got Blomquist, Jackson and Romero talking to Agent Salazar. They’ve got him under surveillance, and they’ve got him on tape. They don't need her testimony for something like that. She needs to say something about a person against whom there’s no proof in order to save her own neck.
The government is mistaken. Gibson testified that this was the first case in which she testified, and therefore Necoechea’s argument was nothing more than a permissible inference from the record; it was not an extra-record argument, nor was it an attack on the government’s integrity. It is simply a permissible attack on Gibson’s credibility which, standing alone, does not trigger the invited response rule.
Cf. United States v. Smith,
. Indeed, most other circuits are not as concerned with whether truthfulness provisions are referred to before credibility has been challenged as our cases have been.
See United States v. Lord,
. Gibson claims that she lied to Salazar about "dealing for years” in order to gain his confidence, so she did not contradict herself at trial. Salazar’s observation that Gibson knew how to inspect marijuana does not necessarily imply that Gibson had dealt before; nor does the unsigned memorandum stating that the "snitch” had said "she” had done drug deals before. The memorandum is double hearsay, does not explicitly mention Gibson, and acknowledges that the co-defendant was unwilling to meet with the investigator.