Stеven Jones was convicted for his part in a conspiracy to manufacture, distribute, *706 and use cocaine base, and sentenced to 300 months incarceration. His appeal alleges a host of due process violations, notably prosecutorial misconduct, in addition to improper jury instructions and sentencing violations. We find no reversible error in his trial proceedings, and we AFFIRM the conviction and sentence.
I. Facts and Procedural Background
On July 13, 2005, Mr. Jones and five co-defendants were indicted for conspiracy and possession with intent to distribute cocaine base. Two co-defendants pleaded guilty prior to trial. At trial, the two were called as witnesses. The court entered into evidence, without prosecutorial comment, their plea agreements. Each of these conditioned a lower sentence on whether “the Defendant continues to cooperate with the United States in an honest and truthful manner.” R. Vol. 2, Doc. 222, at 5.
At trial, an agent from the Bureau of Alcohol, Tobacco, and Firearms testified that a material witness in the case, James Kirby Davis, was kept in jail prior to his grand jury testimony “to ensure truthful and accurate unbiased testimony.” R. Vol. 10 at 22. An agent from the Drug Enforcement Agency also testified that the government uses proffers, in which the government meets with co-defendants to discuss the possibility of plea agreements, as opportunities to “gauge kind of their truthfulness.” R. Vol. 5 at 16. No objections were made to any of the above.
On the second day of trial, during the afternoon break, a juror was outside of the jury room, and he briefly viewed the defendants in leg shackles. The parties discussed the possibility of a curative instruction, but ultimately the defendants decided that such an instruction would draw more attention to the incident. They therefore agreed to allow it to pass unmentioned. Mr. Jones’s lawyer made no objection to that decision, and the court made no inquiry of the juror in question.
The other three co-defendants pleaded guilty after six days of trial testimony. After they did so, the judge informed the jury that those defendants and their charges had been removed from consideration, but gave no more thorough explanation. The next day, one of the former co-defendants, Levi Wilson, testified against Mr. Jones. The court at that time explained to the jury that Mr. Wilson had pleaded guilty, but instructed the jury not to use that as evidence of Mr. Jones’s guilt. Mr. Jones immediately moved for a mistrial, based on the inference to the jury that defendants had pleaded guilty, and the prejudice that could result. Thе motion was denied.
During closing statements, the prosecutor regularly used the terms “I” and “we,” including “we will ask you,” “we will prove to you,” and “I want to thank you.” R. Vol. 4 at 38-39. The prosecutor also referred to the defendant as a “shark,” to drugs as “poison,” and to the defendant’s actions as “preying upon weak people, addicts, addicted people.” R. Vol. 10 at 65, 97. Defense counsel did not object.
After testimony was complete, the judge gave conflicting jury instructions. When detailing the conspiracy charge, he incorrectly told the jury — twice, in rapid succession — that they could find Mr. Jones liable for quantities of drugs that he cоuld not have foreseen. Defense did not object at trial, and the judge did not correct himself. He subsequently both read and distributed to the jury a correct set of instructions, making clear that the defendant could be found liable only for quantities he could foresee.
The jury found Mr. Jones guilty, and the district judge sentenced him to 300 months *707 in prison. The sentencе was based in part on a two-level enhancement under the Sentencing Guidelines for possession of a firearm, which was found by the judge under a preponderance of the evidence standard. Mr. Jones registered an objection to the enhancement at the time of sentencing.
II. Prosecutorial Misconduct
Mr. Jones failed to lodge objections with respect to any of the claims of trial error he now notes on appeal, with the exception of the testimony by Mr. Wilson and the final, sentencing claim. We review the unpreserved claims for plain error.
Jones v. United States,
A. Vouching for witnesses
Mr. Jones first alleges that the government improperly vouched for the truthfulness of its witnesses. It is a due process error for a prosecutor to indicate “a personal belief in the witness’ credibility, either through explicit personal assurances of the witness’ veracity or by implicitly indicating that information not presented to the jury supports the witness’ testimony.”
United States v. Bowie,
But while guaranteeing the truthfulness of a witness’s testimony is impermissible, presenting evidence of his or her obligation or motivation to testify truthfully is unobjectionable.
Id.
Plea agreements fall intо the latter category. It is well established that prosecutors may admit plea agreements, even those which include truthfulness provisions, without violating the dictates against vouching.
United States v. Magallanez,
Mr. Jones alleges that the plea agreements at issue in this case are different from those at issue in Lord and Magallanez, because they require the signatories to “continue [ ] to cooperate with the United States in an honest and truthful manner.” R. Vol. 2, Doc. 222, at 5 (emphasis added). Defendant arguеs that, by using such a phrase, the government implied that the witnesses have already provided some “honest and truthful” information, and therefore is claiming that it can “monitor and accurately verify” the witnesses’ testimony.
That interpretation does not accord with our precedent. In
United States v. Harlow,
Mr. Jones also objects to the testimony of a government witness relating to *708 proffers. Mr. Jones argues that by stating that proffers are used to “gauge truthfulness” and by stating at other times during the trial that government witnesses had gone through proffers, the government was vouching for their veracity. These statements do not meet our standard for vouching for the same reasons as the statements above: they did not amount to guarantees concerning the veracity of the witnesses. As we noted in Harlow, “One would hope а prosecutor had an expectation of truthfulness from every witness he called. [But] verified truthfulness is not a precondition to the witness testifying, and the government does not assume the burden of monitoring for accuracy.” Id. In addition, the defendant opened the door to such testimony in his opening statements by implying that thе government used a proffer to coerce a witness into giving false testimony. That left the government the necessity of explaining how it uses proffers; it did so without impermissibly referring to the credibility of any witnesses.
Testimony that a witness was kept in jail to ensure his truthfulness fails the test for vouching for the same reason. The governmеnt was not saying that Mr. Davis’s testimony actually was truthful; only that they desired it to be so. None of these three claims rises to the level of impermissible vouching.
B. Statements at closing argument
Defendant objects to the prosecutor’s use of “I” and “we” in closing arguments. We have held, and the defendant acknowledges, that the use of personal pronouns in closing argument is nоt a per
se
due process violation.
United States v. Carleo,
Mr. Jones also finds prosecutorial misconduct in the government’s references in closing arguments to drugs as poison and the defendant as a shark. The Supreme Court noted in
United States v. Young,
The language used by the government here is less problematic than language we have previously deemed permissible. We have upheld references to the defendant as “a monster,”
Malicoat v. Mullin,
Moreover, when reviewing on a plain-error standard, рrosecutorial misstatements, even if “inappropriate and amounting to error,” must be so severe “as to undermine the fundamental fairness of the trial and contribute to a miscarriage of justice,” in order to amount to a due process violation.
Young,
III. View of the defendant in shackles
In itself, a juror’s brief view of a defendant in shackles does not qualify as a due process violation worthy of a new trial.
United States v. Simpson,
Defendant concedes that he made no objection at trial, and that he makes no showing of actual prejudice here. Mr. Jones also had opportunity to request a curative jury instruction, and declined to do so. He argues that his burden to show prejudice is relieved by the court’s еrror in not making further inquiries as to whether the incident biased the juror in question. In fact, any inquiries into juror bias would have been impermissible. Under Fed. R.Evid. 606(b), questioning of a juror who has been exposed to extraneous information “is limited to the circumstances and nature of the improper contact,” and questions bearing on the “subjective effect of the contact on the juror’s decision-making” are prohibited.
United States v. Hornung,
IV. Co-defendant testimony
We generally review the denial of a motion for a mistrial or a new trial for abuse of discretion.
United States v. Cerrato-Reyes,
In any trial with multiple defendants, it is imperative that a co-defendant’s guilty plea not be used as substantive evidence of a defendant’s guilt.
United States v. Baez,
V. Juiy instructions
Jury instructions must be read and evaluated in their entirety.
Cupp v. Naughten,
In Mr. Jones’s trial, the judge gave incorrect oral instructions, followed by correct oral instructions, correct written instructions, and a correct form for the jury to fill out during sentencing. Mr. Jones attempts to analogize this situation to
Yates v. United States,
in which the Supreme Court overturned a conviction when the jury was permitted to consider a legally impermissible theory, even though the conviction could have rested on other, permissible theories.
We have held in an unpublished opinion that an incorrect oral instruction — a “slip of the tongue” — without more is not plain error when the jury had correct written instructions available during deliberations.
United States v. Stewart,
The matter of jury comprehension is a highly fact-based, circumstances-dependent one, which the district court is far better positioned to consider than we. The fact that defense counsel as well as the experienced district judge were unperturbed by the error, if they noticed it at all, weighs heavily. Moreover, “[t]he absence of objection suggests that the mistake was not noticeable or confusing.”
Ancheta,
VI. Sentencing
Mr. Jones argues that his sentence could not constitutionally be enhanced on the basis of a fact found by the judge rather than the jury. We assume this argument is put forward for the purposes of preservation. It is inconsistent with the remedial holding of
United States v. Booker,
VII. Cumulative error
Mr. Jones also argues that the cumulative effect of all of the errors alleged above is a generalized due process violation. “A cumulative-error analysis merely aggregates all the errors that individually have been found to be harmless, and therefore not reversible, and it analyzes whether their cumulative effect on the outcome of the trial is such that collectively they can no longer be determined to be harmless.”
United States v. Rivera,
VIII. Conclusion
Because we find no error of constitutional magnitude in Mr. Jones’s claims, we AFFIRM both the conviction and the sentence.