U.S. v. SCHNEIDER

No. Cr00-4029mwb

157 F. Supp.2d 1044 (2001) | Cited 0 times | N.D. Iowa | August 29, 2001

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT'S POST-TRIAL MOTIONS

Here, the court is called upon to determine whether, during thegovernment's rebuttal closing argument, the federal prosecutorimpermissibly "summon[ed] that thirteenth juror, prejudice"1 tosecure a conviction against the defendant.

I. INTRODUCTION

On July 27, 2000, a United States Grand Jury for the Northern Districtof Iowa returned a second superseding, one-count indictment chargingthat, between about July 1996 and continuing through about June 1999,defendant Heath Damon Schneider ("Schneider") did knowingly andunlawfully combine, conspire, and agree with other persons to commit thefollowing two separate offenses: (1) distribution of five hundred (500)grams or more of a mixture or substance containing a detectable amount ofmethamphetamine, a Schedule II controlled substance, in violation ofTitle 21, U.S.C. § 841(a)(1) and 841(b)(1)(A)(vii); and (2)distribution of five hundred (500) grams or more of a mixture orsubstance containing a detectable amount of cocaine, a Schedule IIcontrolled substance, in violation of Title 21 U.S.C. § 841(a)(1) and841(b)(1)(B)(ii).

On March 19, 2001, the case against Schneider proceeded to trial beforea jury. At trial, the government called two law enforcement officers, acriminalist, and six cooperating witnesses to testify in support of itscase in chief against Schneider. Specifically, five of those sixwitnesses testified pursuant to written plea agreements, and onetestified pursuant to an immunity agreement. The government also playedthree tape recorded conversations between Schneider and one of itscooperating witnesses, William Heiden, who testified that thoseconversations were representative of drug trafficking. At the close ofthe government's case, Schneider moved for judgment of acquittal pursuantto Federal Rule of Criminal Procedure 29. The court denied this motion.In his defense, Schneider denied that he was ever involved in the drugtrade, instead proclaiming that he was involved in the loan business.Schneider took the stand and testified that he made several loans toindividuals, including Heiden. To support his theory of defense,Schneider called Brandon Lund tothe witness stand, wherein he testified that he was aware of the loansthat Schneider made, and that he actually made loans to and receivedpayments from Heiden on Schneider's behalf. Schneider also called to thewitness stand an individual by the name of Randy Kotter who testifiedthat he received numerous loans from Schneider and further that he wasaware that Schneider routinely made loans to employees and friends. Atthe conclusion of all of the evidence, Schneider renewed his motion forjudgment of acquittal, and, once again, the court denied this motion. OnMarch 26, 2001, the jury returned a verdict of guilty as to the charge ofconspiracy to commit both offenses, namely distribution of a mixture orsubstance containing a detectable amount of methamphetamine anddistribution of a mixture or substance containing a detectable amount ofcocaine. Although the government charged Schneider with over 500 grams asto both the methamphetamine offense and cocaine offense, the quantity ofeach controlled substance for which the jury found beyond a reasonabledoubt Schneider was responsible consisted of the following: 50-499 gramsof methamphetamine and less than 500 grams of cocaine.

On April 2, 2001, Schneider filed a timely post-trial Motion forJudgment of Acquittal (#169) pursuant to Federal Rule of CriminalProcedure 29, as well as a Motion for New Trial (#168) pursuant toFederal Rule of Criminal Procedure 33. In his post-trial Motion forJudgment of Acquittal, Schneider contends that the evidence introduced attrial was insufficient for a reasonable jury to return a verdict againsthim on the charge set forth in the indictment. In his post-trial Motionfor New Trial, Schneider contends that he is entitled to a new trial forthe following reasons: (1) the government committed prosecutorialmisconduct which deprived him of a fair trial; (2) the governmentwithheld material exculpatory evidence from him; and (3) the verdict ofthe jury was contrary to the weight of the evidence. With respect to thealleged prosecutorial misconduct, Schneider specifically contends thatthe government engaged in an improper line of questioning of ToniMarquardt, and that the prosecutor made a highly improper comment duringthe rebuttal closing argument. With respect to the alleged withholdingof evidence, Schneider specifically contends that the government failedto timely disclose William Heiden's perjury before the federal grandjury, and that the government failed to timely disclose prior trips toMexico by William Heiden and Gail Swanson during which drugs wereillegally obtained. Schneider argues that each one of these allegationsof prosecutorial misconduct, individually, is grounds for a new trial,however, he also argues in the alternative that, in the event the courtfinds that each of these instances of alleged misconduct, takenindividually, do not rise to the level of prejudice that would justifythe granting of a new trial, the cumulative nature of the prosecutor'sconduct would warrant the granting of a new trial. The government hasresisted Schneider's post-trial motions.2 On May 25, 2001, the courtheld a hearing on Schneider's post-trial motions. The court deems thematter fully submitted, and, therefore, turns initially to the standardof review governing motions for judgments of acquittal under Federal Ruleof Criminal Procedure 29, and then to a legal analysis of the issuesraised by Schneider in his motion for judgment of acquittal. Thereafter,but only if necessary,the court will address Schneider's motion for new trial.

II. LEGAL ANALYSIS

A. Schneider's Motion for Judgment of Acquittal

1. Standards applicable to motions for judgment of acquittal

The court has considered in detail the standards applicable to motionsfor judgment of acquittal, see United States v. Ortiz, 40 F. Supp.2d 10731078-79 (N.D.Iowa 1999) and United States v. Saborit, 967 F. Supp. 1136,1138-40 (N.D.Iowa 1997), and will set forth the highlights of thosediscussions, as well as some more recent case law, here. Rule 29 of theFederal Rules of Criminal Procedure provides, in pertinent part, asfollows:

The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.

FED. R. CRIM. P. 29(a). Although Rule 29 specifically provides for sucheventualities, it is well-settled that "[j]ury verdicts are not lightlyoverturned." United States v. Hood, 51 F.3d 128, 129 (8th Cir. 1995);accord United States v. Burks, 934 F.2d 148, 151 (8th Cir. 1991).Rather, the case law governing motions for judgment of acquittal confirmsthat a significant restraint is placed on a district court's authority tooverturn a jury's verdict. See United States v. Gomez, 165 F.3d 650, 654(8th Cir. 1999) (observing that a judgment of acquittal should only begranted "if there is no interpretation of the evidence that would allow areasonable jury to find the defendant guilty beyond a reasonabledoubt"); United States v. Perkins, 94 F.3d 429, 436 (8th Cir. 1996)("`[t]he standard of review of an appeal concerning the sufficiency ofthe evidence is very strict, and the verdict of the jury should not beoverturned lightly.'") (quoting Burks, 934 F.2d at 151), cert. denied,519 U.S. 1136 (1997).

The United States Court of Appeals for the Eighth Circuit has thereforeinstructed that "[t]he jury's verdict must be upheld if there is aninterpretation of the evidence that would allow a reasonable jury to findthe defendant guilty beyond a reasonable doubt." United States v. Moore,108 F.3d 878, 881 (8th Cir. 1997); Perkins, 94 F.3d at 436 ("`The jury'sverdict must be upheld if there is an interpretation of the evidence thatwould allow a reasonable-minded jury to conclude guilt beyond areasonable doubt.'") (quoting United States v. Erdman, 953 F.2d 387, 389(8th Cir.), cert. denied, 505 U.S. 1211 (1992)). Here, Schneidercontends that his motion for judgment of acquittal should be grantedbecause the government's evidence at trial would not permit a reasonablejury to find him guilty beyond a reasonable doubt of the two offensesthat were the objectives of the alleged conspiracy — that is,distribution of methamphetamine and distribution of cocaine.

In considering a motion for judgment of acquittal based on thesufficiency of the evidence, the court must "view the evidence in thelight most favorable to the guilty verdict, giving the government thebenefit of all reasonable inferences that may be drawn from theevidence."3United States v. Basile, 109 F.3d 1304, 1310 (8th Cir.), cert. denied,522 U.S. 866 (1997); accord United States v. Madrid, 224 F.3d 757, 761-62(8th Cir. 2000) (stating that "in reviewing the District Court's denialof the motion for acquittal, we view the evidence in the light mostfavorable to the verdict and will reverse only if no reasonable jurycould have found beyond a reasonable doubt that the defendant is guiltyof the offense charged") (citation omitted); United States v. Vig,167 F.3d 443, 447 (8th Cir. 1999) (observing that "[w]e review thedistrict court's denial of a motion for judgment of acquittal based onthe sufficiency of the evidence by viewing the evidence in the light mostfavorable to the verdict."). The court can overturn a jury's verdictonly if "`a reasonable fact-finder must have entertained a reasonabledoubt about the government's proof'" of one of the essential elements ofthe crime charged. United States v. Kinshaw, 71 F.3d 268, 271 (8th Cir.1995) (quoting United States v. Nunn, 940 F.2d 1128, 1131 (8th Cir.1991)). Furthermore, "[t]his standard applies even when the convictionrests entirely on circumstantial evidence." United States v. Davis,103 F.3d 660, 667 (8th Cir. 1996), cert. denied, 520 U.S. 1258 (1997).

In addition to allowing a conviction to be based on circumstantialand/or direct evidence, the Eighth Circuit Court of Appeals hasinstructed that "[t]he evidence need not exclude every reasonablehypothesis except guilt." United States v. Baker, 98 F.3d 330, 338 (8thCir. 1996), cert. denied, 520 U.S. 1179 (1997). The court can neitherweigh the evidence nor assess the credibility of the witnesses; thesetasks belong exclusively to the jury. United States v. Ireland,62 F.3d 227, 230 (8th Cir. 1995) (noting it is the jury's job to judgethe credibility of witnesses and to resolve contradictions in evidence).

2. Sufficiency of the evidence

In the indictment, the United States charges that, between about July1996 and continuing through about June 1999, defendant Schneiderknowingly conspired with others to commit two separate offenses: (a)distribution of 500 grams or more of a mixture or substance containing adetectable amount of methamphetamine; and (b) distribution of 500 gramsor more of a mixture or substance containing a detectable amount ofcocaine. In order to convict Schneider of conspiracy, the government hadto show beyond a reasonable doubt, that: (1) between about July 1996 andabout June 1999, two or more persons reached an agreement or came to anunderstanding to commit one or both of the offenses alleged; (2)Schneider voluntarilyand intentionally joined in the agreement or understanding, either at thetime it was first reached or at some later time while it was still ineffect; and (3) at the time Schneider joined in the agreement orunderstanding, he knew the purpose of the agreement or understanding.See United States v. White, 241 F.3d 1015, 1022 (8th Cir. 2001) ("Toconvict a defendant of conspiracy, the government must prove beyond areasonable doubt the following elements: (1) there was a conspiracy withan illegal purpose; (2) the defendant knew about the conspiracy; and (3)the defendant knowingly became a part of it.") (citing United States v.Mosby, 177 F.3d 1067, 1069 (8th Cir. 1999) and United States v. Bass,121 F.3d 1218, 1220 (8th Cir. 1997)); United States v. Jiminez-Perez,238 F.3d 970, 973 (8th Cir. 2001) (same); United States v. Holloway,128 F.3d 1254, 1257 (8th Cir. 1997) ("To be guilty of conspiracy, adefendant must be shown to have knowingly entered into an agreement withat least one other person to violate the law."). Thus, the governmenthad to prove that Schneider knowingly and voluntarily participated in anagreement to distribute methamphetamine and/or cocaine. See UnitedStates v. Parker, 32 F.3d 395, 399 (8th Cir. 1994).

A conviction for conspiracy "may be based on circumstantial as well asdirect evidence." United States v. Erdman, 953 F.2d 387, 389 (8th Cir.1992); Jiminez-Perez, 238 F.3d at 973. This is so, because "knowledgefrequently cannot be proven except by circumstantial evidence, and thedetermination often depends on the credibility of the witnesses, asassessed by the factfinder." See id. at 390. Once the governmentestablishes the existence of a conspiracy, only slight evidence isrequired to link a defendant to the conspiracy. United States v.Womack, 191 F.3d 879, 884 (8th Cir. 1999); see also United States v.Jenkins, 78 F.3d 1283, 1287 (8th Cir. 1996) ("Once the governmentestablishes the existence of a drug conspiracy, only slight evidencelinking the defendant to the conspiracy is required to prove thedefendant's involvement and support the conviction."). This places aheavy burden on a defendant challenging the sufficiency of the evidencein a conspiracy case. Id.; United States v. Madrid, 224 F.3d 757, 761(8th Cir. 2000) ("A defendant challenging the sufficiency of the evidencein a conspiracy case has a heavy burden, as proof of the crime may reston indirect or circumstantial evidence.") (citation omitted).Nonetheless, the evidence must be sufficient to meet the Jackson v.Virginia, 443 U.S. 307, 319 (1979) reasonable doubt standard — thatis, "after viewing the evidence in the light most favorable to theprosecution, any rational trier of fact could have found the essentialelements of the crime beyond a reasonable doubt." Id. "To be aconspirator, it is not required that [Schneider] knew all the details ofthe conspiracy." United States v. Causor-Serrato, 234 F.3d 384, 387 (8thCir. 2000) (citing United States v. Hernandez, 986 F.2d 234, 236 (8thCir. 1993)).

Indeed, based on principles of coconspirator liability, Schneider is"criminally liable for the substantive offenses committed by anotherconspirator within the scope and in furtherance of the conspiracy."United States v. Rodger, 100 F.3d 90, 91 n. 2 (8th Cir. 1996) (percuriam) (citing Pinkerton v. United States, 328 U.S. 640, 647-48,(1946)). As the Eighth Circuit Court of Appeals recently explained inNavarrette-Barron:

We have said that "[u]nder Pinkerton, each member of a conspiracy may be held criminally liable for any substantive crime committed by a co-conspirator in the course and furtherance of the conspiracy, even though those members did not participate in or agree to the specific criminal act." United States v. Golter, 880 F.2d 91, 93 (8th Cir. 1989) (citations omitted).

In order to convict Navarrete-Barron of possession with intent to distribute cocaine base under 21 U.S.C. § 841, the government must first prove that Garcia knowingly or intentionally possessed 50 or more grams of cocaine base with intent to distribute. The government must then prove that Navarrete-Barron and Garcia were members of a conspiracy at the time of the possession, that the possession of the cocaine base was in furtherance of the conspiracy, and that Garcia's possession could have been reasonably foreseen by Navarrete-Barron as a natural outgrowth of the conspiracy. See Pinkerton, 328 U.S. at 647-48, 66 S.Ct. 1180.

Navarrette-Barron, 192 F.3d at 792-93; see also Davis, 154 F.3d at 783("As outlined in the jury instructions, Pinkerton liability requires thata member of the conspiracy committed the offense in furtherance of theconspiracy at a time when the defendant was also a member of theconspiracy and that the offense was a reasonably foreseeable consequenceof the unlawful agreement."); United States v. Rodger, 100 F.3d 90, 91n. 2 (8th Cir. 1996) (a co-conspirator is liable for an offense infurtherance of the conspiracy "unless that offense could not reasonablyhave been foreseen as a necessary or natural consequence of theconspiracy"); United States v. Friend, 50 F.3d 548, 554 & n. 3 (8th Cir.1995) ("the government must prove that Apker's possession of asilencer-equipped firearm could have been reasonably foreseen by Friend"and "We reject Friend's contention that the district court erred inrefusing to substitute "was reasonably foreseen" for "could have beenreasonably foreseen" in its instruction defining the elements of theCount IX offense. We approved the term used by the district court as"fully comply[ing] with Pinkerton's requirements" in [United States v.]Lucas, 932 F.2d [1210,] 1220 [(8th Cir.), cert. denied, 502 U.S. 929(1991), and cert. denied, 502 U.S. 1100 (1992)."), vacated on othergrounds, 517 U.S. 1152 (1996); United States v. Lucht, 18 F.3d 541, 554(8th Cir.) (Pinkerton liability attaches where the offense "could havebeen reasonably foreseen as a necessary or natural consequence of theconspiracy"), cert. denied, 513 U.S. 949 (1994)); United States v.Martinez, 958 F.2d 217, 219 (8th Cir. 1992) ("In Pinkerton v. UnitedStates, 328 U.S. 640, 647, 66 S.Ct. 1180, 1184, 90 L.Ed. 1489 (1946), theSupreme Court held that a party to a conspiracy may be responsible forthe substantive offense of a co-conspirator `when the substantive offenseis committed by one of the conspirators in furtherance of the[conspiracy].' This is true even though the party has no actualknowledge of the offense as long as it could be `reasonably foreseen as anecessary or natural consequence of the [conspiracy].' Id. at 648, 66S.Ct. at 1184.").

Viewing the totality of the evidence in the light most favorable to thegovernment, as it must on a judgment of acquittal, the court concludesthat the evidence is sufficient for the jury to have found that Schneiderwas guilty beyond a reasonable doubt of conspiracy to commit bothoffenses — that is, distribution of methamphetamine anddistribution of cocaine. The government introduced evidence provingthat, in 1996, a group of men originally from Denison, Iowa, includingSchneider, Heiden, and Mark Pollack, lived in Las Vegas, Nevada. BothPollack and Heiden testified that Schneider initially provided them withpersonal use quantities of drugs. Thereafter, Heiden testifiedthat he approached Schneider about Schneider becoming his drug source,after which a drug relationship between the two ensued. Heiden testifiedto the particulars about the drug operation, namely that he devised a planwhereby he would purchase drugs from Schneider, transport them from LasVegas to Iowa by air, and sell them to his buyer in Iowa, an individualnamed Darrell Bissen. Bissen testified on behalf of the government, andcorroborated Heiden's testimony regarding the transportation of the drugsfrom Nevada to Iowa.

The government also presented the testimony of six of Schneider'sco-conspirators. Although five of those witnesses never directly observedSchneider distribute and or deliver drugs to Heiden, all four witnessesdid provide circumstantial evidence that Heiden obtained drugs fromSchneider. See United States v. Beckman, 222 F.3d 512, 522 (8th Cir.2000) ("Both direct and circumstantial evidence can be the basis of aconviction.") (citation omitted). For example, Gail Swanson testifiedthat on two separate occasions when Heiden was unavailable to place theirdrug order with Schneider, he called Schneider himself and placed theorder on Heiden's behalf. Swanson also testified that after he andHeiden had a falling out, he personally contacted Schneider in an attemptto recruit Schneider as his own drug supplier. According to Swanson,Schneider rejected his offer because Schneider did not want to exacerbatethe already acrimonious relationship that existed between Swanson andHeiden. Toni Marquardt testified that Heiden divulged to her thatSchneider was his drug source and that, on one occasion, while staying atHeiden's house waiting for the drugs, she observed Schneider through apeephole in Heiden's door.4 Furthermore, Heiden's roommate, PatrickZamora, testified to his knowledge about the relationship between Heidenand Schneider. He testified that he saw Schneider at Heiden's apartmenta half-dozen times, and that immediately after Schneider would leave,Heiden had larger drug quantities available and ready to weigh andrepackage. Zamora testified that he answered the phone when Schneiderwould call the apartment asking for Heiden, and that based on hisfamiliarity with Heiden and Heiden's relationship with Schneider, thebusiness between Schneider and Heiden involved drugs.

Moreover, and most damaging to Schneider, was the testimony of Heiden,who testified at length about his drug dealings with Schneider.Significantly, three tape recorded conversations between Heiden andSchneider, which were played to the jury, corroborated Heiden's testimonyregarding Schneider's involvement in the drug conspiracy. AlthoughSchneider testified in his behalf and attempted to explain these taperecorded conversations with Heiden, ultimately the jury rejected hisexplanation. See Ireland, 62 F.3d at 230 (noting it is the jury's jobto judge the credibility of witnesses and to resolve contradictions inevidence). While it is true that Heiden committed perjury to the federalgrand jury in this case, his perjurious statement was revealed to thejury and, therefore, it was within the province of the jury to determinewhat weight, if any, to accord Heiden's testimony. Based on theverdict, the jury evidently concluded that despite Heiden's earlierperjured testimony before the federal grand jury, his trialtestimony was by and large truthful, especially given the three taperecorded conversations between himself and Schneider, which corroboratedhis testimony.

In reviewing the sufficiency of the evidence on defendant's motion forjudgment of acquittal, this court must "view the evidence in the lightmost favorable to the government, and resolving evidentiary conflicts infavor of the government, and accepting all reasonable inferences drawnfrom the evidence that support the jury's verdict." United States v.Surratt, 172 F.3d 559, 562 (8th Cir. 1999) (citations and internalquotations omitted). Viewing the evidence in such a light, and giving thegovernment the benefit of all reasonable inferences, the court concludesthat there is sufficient evidence in the trial record to support thejury's conviction of Schneider on the charge of conspiracy. It was thejury's function to evaluate Schneider's credibility and to weigh histestimony against Heiden's testimony and the government's other evidenceof conspiracy. Therefore, the court will not overturn the jury's verdictof guilt on the charge of conspiracy and acquit Schneider. See Surratt,172 F.3d at 565 ("It is not necessary for the evidence before the jury torule out every reasonable hypothesis of innocence. It is enough that theentire body of evidence be sufficient to convince the fact-finder beyonda reasonable doubt of the defendant's guilt.") (citing United States v.Noibi, 780 F.2d 1419, 1422 (8th Cir. 1986)). Accordingly, the courtdenies Schneider's motion for judgment of acquittal pursuant to FederalRule of Criminal Procedure 29.

B. Schneider's Motion for a New Trial

Schneider has also moved for a new trial pursuant to Rule 33 of theFederal Rules of Criminal Procedure. Because the standards under whichthis motion is evaluated differ substantially from those applied to amotion for judgment of acquittal, the court will begin by setting forththe governing standards, and will then turn to its consideration of thedefendant's motion for new trial.

1. Standards applicable to motions for new trial

In Saborit, this court also had occasion to consider in some detail thestandards applicable to motions for new trial. Saborit, 967 F. Supp. at1144-45. Rather than repeat that discussion in its entirety here, thecourt will again set forth the highlights of these standards.

Federal Rule of Criminal Procedure 33 provides in relevant part asfollows: "The court on motion of a defendant may grant a new trial tothat defendant if required in the interest of justice." FED. R. CRIM.P. 33. District courts have broad discretion in passing upon motions fornew trial and such rulings are subject to reversal only for a clear abuseof discretion. See United States v. Wilkins, 139 F.3d 603, 604 (8thCir. 1998); United States v. Brown, 108 F.3d 863, 866 (8th Cir. 1997);United States v. Blumeyer, 62 F.3d 1013, 1015 (8th Cir. 1995), cert.denied, 516 U.S. 1172 (1996).

A court evaluates a Rule 33 motion from a different vantage point thanit evaluates a Rule 29 motion for judgment of acquittal. Ortiz,40 F. Supp.2d at 1082. Indeed, "[a] district court's power to order a newtrial is greater than its power to grant a motion for acquittal." UnitedStates v. Ruiz, 105 F.3d 1492, 1501 (1st Cir. 1997); accord United Statesv. Bennett, 956 F.2d 1476, 1481 (8th Cir. 1992) ("This narrowlyconstricted power of review [applicable to motions for judgment ofacquittal] is in contrast to the district court's broad discretion inruling upon a motion for new trial."); United States v. A. Lanoy Alston,D.M.D., P.C., 974 F.2d 1206, 1211 (9th Cir. 1992) ("A districtcourt's power to grant a motion for a new trial is much broader than itspower to grant a motion for judgment of acquittal."). In assessing whethera defendant is entitled to a new trial on the ground that the verdict iscontrary to the weight of the evidence, "the district court weighs theevidence and evaluates anew the credibility of the witnesses to determineif a miscarriage of justice may have occurred." Davis, 103 F.3d at668; accord United States v. Misle Bus & Equip. Co., 967 F.2d 1227, 1232(8th Cir. 1992); United States v. Brown, 956 F.2d 782, 786 (8th Cir.1992). As the United States Court of Appeals for the Eighth Circuit hasexplained:

"When a motion for a new trial is made on the ground that the verdict is contrary to the weight of the evidence, the issues are far different from those raised by a motion for judgment of acquittal. The question is whether he is entitled to a new trial. In assessing the defendant's right to a new trial, the court must weigh the evidence and in doing so evaluate for itself the credibility of the witnesses." United States v. Lincoln, 630 F.2d [1313,] 1316 [(8th Cir. 1980)]. The court will only set aside the verdict if the evidence weighs heavily enough against the verdict that a miscarriage of justice may have occurred.

United States v. Rodriguez, 812 F.2d 414, 417 (8th Cir. 1987). Theauthority to grant new trials, however, "should be used sparingly andwith caution." United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir.1980).

When alleged prosecutorial misconduct is the basis for a defendant'snew trial motion, the Eighth Circuit Court of Appeals has clearly setforth a two-part test for reversible prosecutorial misconduct: "[F]irst,the prosecutor's conduct or remarks must have been improper, and second,the remarks or conduct must have prejudicially affected the defendant'ssubstantial rights by depriving the defendant of a fair trial." UnitedStates v. White, 241 F.3d 1015, 1023 (8th Cir. 2001) (citing UnitedStates v. Beeks, 224 F.3d 741, 745 (8th Cir. 2000)). "Inappropriateprosecutorial comments, standing alone, [do] not justify a reviewing courtto reverse a criminal conviction obtained in an otherwise fairproceeding. Instead, . . . the remarks must be examined within thecontext of the trial to determine whether the Prosecutor's behavioramounted to prejudicial error." United States v. Franklin, 250 F.3d 653,660-61 (8th Cir. May 22, 2001) (citing United States v. Nelson,988 F.2d 798, 807 (8th Cir. 1993). In assessing the prejudicial impactof prosecutorial misconduct, a reviewing court should consider: (1) thecumulative effect of the misconduct; (2) the strength of the properlyadmitted evidence; and (3) the curative actions taken by the districtcourt. United States v. Wadlington, 233 F.3d 1067, 1077 (8th Cir.2000); United States v. Beckman, 222 F.3d 512, 526 (8th Cir. 2000)(same); United States v. Beeks, 224 F.3d 741, 745 (8th Cir. 2000)(same). "However, a single misstep on the part of the prosecutor may beso destructive of the right to a fair trial that reversal is mandated."United States v. Johnson, 968 F.2d 768, 771 (8th Cir. 1992) (internalquotations omitted). The key question ultimately is whether theprosecutor's comments "so infected the trial with unfairness as to makethe resulting conviction a denial of due process." Darden v.Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo,416 U.S. 637, 643 (1974)); see also United States v. Young, 470 U.S. 1,11-12 (1985) (explaining that criminal conviction was not readilyoverturned on basis of prosecutor's comments alone; statements must beviewed in context of entire proceeding in order to determine whetherconduct affected fairness of trial); Beckman, 222 F.3d at 526.

Generally, "a prosecutor may not express a personal opinion about adefendant's veracity." White, 241 F.3d at 1023 (citations omitted).Rather, a prosecutor is constrained to "the evidence and the reasonableinferences that may be drawn from it." Id. (citing United States v.Robinson, 110 F.3d 1320, 1327 (8th Cir. 1997)). Moreover, during closingargument, "an attorney's role is to assist the jury in analyzing,evaluating, and applying the evidence. Arguments that transcend suchboundaries are improper." United States v. Beckman, 222 F.3d 512, 527(8th Cir. 2000). Having examined the appropriate standard of review, thecourt turns now to its consideration of Schneider's motion.

2. Prosecutorial Misconduct

Schneider asserts that the prosecutor committed four separate incidentsof prosecutorial misconduct. First, Schneider contends that, on thesecond day of trial, the prosecutor informed defense counsel that Heidenhad admitted to committing perjury before the federal grand jury in thiscase. Defense counsel avers that he was led to believe that thisinformation had been discovered by the government only the night beforethe second day of trial, however, it was discovered that the governmenthad been aware of this information ten to fourteen days prior to thebeginning of trial. As a result, Schneider argues that the government'sfailure to timely disclose such pertinent information constitutesprosecutorial misconduct. Second, Schneider contends that, on the thirdday of trial, cooperating witness Toni Marquardt was called to thestand, whereupon the prosecutor asked Marquardt if there was anyparticular reason she was especially nervous. Marquardt explained thather nervous demeanor was caused by Schneider's sister's boyfriend, BrianTruitt, who had "flipped her off" and tried to run her off the road thatmorning while she was en route to testify against Schneider. Schneiderargues that this improper line of questioning by the prosecutorconstitutes prosecutorial misconduct. Third, Schneider contends that, atthe end of the third day of trial, the FBI case agent testified that hehad been aware, through discussions with Gail Swanson, that Heiden andSwanson made trips to Mexico wherein drugs had been purchased. On thewitness stand, the FBI case agent conceded that if this information wasnot contained in the FBI-302's of Gail Swanson, defense counsel would nothave been aware of these trips until it came out on the witness stand.Defense counsel asserts that it reviewed the FBI-302's of Gail Swansonand found no mention of any trips to Mexico. As a result, Schneiderargues that the prosecutor's failure to timely disclose this informationconstitutes prosecutorial misconduct. Fourth, Schneider contends that,during the government's rebuttal closing argument, the prosecutor madethe following improper remark: "Another double standard regardingpolygraphing the government's witnesses, by God, those witnesses weren'tpolygraphed, where's the defendant's polygraph?" Schneider argues thatthis remark was improper and constitutes prosecutorial misconduct. Inresponse, the government argues these allegations of prosecutorialmisconduct are not alone, or cumulatively, grounds for a new trial.

The court will begin its analysis with what it considers to be the mostserious of the prosecutorial misconduct allegations identified above,namely, the alleged highly improper remark made during the government'srebuttal closing argument. In considering this allegation, the courtwill also address the other three allegations of prosecutorial misconductwith particularattention devoted to the prosecutor's questioning of cooperating witnessToni Marquardt.

a. The rebuttal closing argument

Schneider contends that the prosecutor's following remark, which wasmade during the rebuttal closing argument, constitutes prosecutorialmisconduct:

What I am going to talk about is a double standard here, the defendant's double standard. Remember how witnesses were essentially berated, how they were just indignant that witnesses couldn't come up with specific dates? We need a month. We need a year. And remember what Brandon Lund could do with dates? He could barely give you the date he was married. He could give us no specific dates about what anything happened that he testified to. That's the first double standard.

Another double standard regarding polygraphing the government's witnesses, by God, those witnesses weren't polygraphed, where's the defendant's polygraph?

Trial Transcript of Rebuttal Closing Argument on Behalf of the Plaintiffat 7 (emphasis added). Specifically, Schneider contends that theprosecutor's statement improperly suggested that he had the burden ofproducing evidence to prove his innocence, and that the results ofpolygraph examinations would somehow be admissible at trial. Schneiderfurther contends that this statement was inflammatory, extremelyprejudicial, and intentionally misleading because Schneider had previouslyoffered to submit to a polygraph examination on two occasions, both ofwhich the government rejected.

In response, the government contends that the remark above was made inresponse to defendant's repeated arguments attacking the government forfailing to conduct polygraph examinations of government witnesses.Specifically, the government contends that the prosecutor's statement inthe rebuttal closing argument was an "invited response" or "invitedreply" as that concept was examined by the United States Supreme Court inUnited States v. Young, 470 U.S. 1 (1985). In the alternative, thegovernment argues that even if the prosecutor's statement is not deemedto be an "invited response," in the context of the entire trial,Schneider was not deprived of a fair trial. In support of thisargument, the government emphasizes the curative instruction that thiscourt issued to the jury before it began to deliberate. Having outlinedthe parties' arguments, the court finds that a brief capsule summary ofthe salient facts from the trial, as well as defense counsel's statementsmade during closing argument that allegedly "invited" the prosecutor'sremark made during the rebuttal closing argument, would be beneficialhere.

As noted earlier, the government's case against Schneider restedheavily on the testimony of six cooperating witnesses who were part ofthe same conspiracy. Of those six witnesses, five of them testifiedpursuant to plea agreements. Thus, in return for their cooperation, thewitnesses hoped to gain a reduction in their respective sentences fromsubstantial assistance motions filed by the government. As thegovernment called each of those five witnesses to testify, the governmentmoved into evidence the written plea agreements that each of them hadentered into with the government. Included in each of these written pleaagreements was a paragraph that each witness consented to voluntarilysubmit to a polygraph examination if requested to do so by thegovernment. Specifically, that paragraph consisted of the following:

It is understood that, upon request by the government, the defendant will voluntarily submit to a polygraph examination. If performance in any polygraph examination suggests a conscious intent to deceive, mislead or lie and the totality of circumstances convinces the government that the defendant's statement is not complete and truthful, the defendant will be so informed and any and all obligations imposed on the government by the agreement will be rendered null and void. This decision to nullify the agreement will be in the sole discretion of the United States Attorney's Office for the Northern District of Iowa.

See Government's Exhibits 13 at ¶ 8, 10 at ¶ 8, 12 at ¶8, 75 at ¶ 19, and 8 at ¶ 18. The defense vigorouslycross-examined the cooperating witnesses as to whether any had taken apolygraph test and whether the government had requested them to take apolygraph test. All of the cooperating witnesses indicated that they hadnot been polygraphed by the government, and that no request had beenmade. Significantly, when the defense asked the witnesses thesequestions, the government did not object to the questions.6 Thus,both the written plea agreements containing this paragraph as well as theanswers provided by the cooperating witnesses were in evidence.Additionally, on cross-examination, defense counsel elicited testimonyfrom the FBI case agent that, while testifying before the federal grandjury in this case, he had testified he knew his witnesses were tellinghim the truthbecause "[w]e use polygraphs to polygraph out witnesses to make surethey're shooting square with us." The government did not interpose anyobjection with respect to defense counsel's questioning of the FBI caseagent. Furthermore, prior to the government's initial closing argument,defense counsel provided the prosecutor with an opportunity to review thedemonstrative exhibits that they intended to use during his closingargument. One of those exhibits, namely Defendant's Exhibit A, whichread "To Polygraph or Not to Polygraph? That is the Question" and wascaptioned in bold black underlined print, clearly indicated that thedefense planned on arguing to the jury the government's failure topolygraph its witnesses. Once again, the government did not object to thedefendant's use of this demonstrative exhibit or this line of argument.In sum, the government never objected to the admission of any evidencethat the defense presented relating to polygraph examinations of thegovernment's cooperating witnesses.

The court now turns to that portion of defense counsel's closingargument that allegedly invited the prosecutor's response in the rebuttalclosing argument. In his closing argument, defense counsel argued thefollowing:

A trial is an effort to find the truth. The government needs to bring forward to you, the government needs to bring forward to you, that amount of evidence that takes that shell, that steel shell, of presumption of innocence that comes into this trial around our client and beats it away. What did they bring you, and what didn't they bring you, and are you really entitled to more and better evidence than this? I think if you go to one place, the testimony of your — the FBI agent, [], he testifies that he agrees he said to the federal grand jury and he was testifying in this case, in answer to the question how do we know these guys are telling the truth, you recall what he said he said. The answer is synopsized up here on the wall, but I think it was something to the effect we put people in jail cells to make sure they're not shining on the FBI, and we polygraph over witnesses to make sure they're shooting straight with us. Question says you don't just believe them? Nope. Till we do that, we take them with a grain of salt. Ladies and gentlemen, if there's one fact in this case and one thing only that I would just be highly, highly, highly suspicious about, I would say where's the beef? Where's the beef? Why didn't you polygraph those witnesses? We saw them get chopped up, minced up. Some of them did pretty good. How much of what they said was true? Only you get to decide that. But the government has the burden of proof. Why didn't they out them on a polygraph? They have a written agreement, written agreements with these people, that they'll do it. Why didn't they, and why did [the FBI case agent] go to the federal grand jury and say we polygraph our witnesses, and until we do we take everything they say with a grain of salt? If you want to take the testimony of [the FBI case agent] under oath, take that to the jury room: Until they're polygraphed, you take it with a grain of salt, particularly the Heiden situation.

Is Heiden telling the truth in this case? That's what this is all about. Are you satisfied without that polygraph beyond a reasonable doubt that he's telling the truth? It's an easy way to go about it. Makes it real simple.

Realtime Transcript of Defense Counsel's Closing Argument at 26-27. Onceagain, the court notes that at no time during defense counsel's closingargument did the prosecutor interpose an objection.

i. Did defense counsel's comments invite the prosecutor's reply?

In United States v. Flynn, 196 F.3d 927 (8th Cir. 1999), the EighthCircuit Court of Appeals explained that "[i]n closing arguments, aprosecutor is entitled to make a fair response and rebuttal when thedefense attacks the government's case." Id. at 930 (citations omitted).The Flynn court further stated that when a prosecutor's allegedlyimproper comments are in response to the defendant's attack, the courtmust determine whether the prosecutor's comments were a fair response.Id. The United States Supreme Court in United States v. Young, 470 U.S. 1(1985) discussed the "invited reply" or fair response rule, explainingthat the idea of "invited response" is used not to excuse impropercomments, but to determine their effect on the trial as a whole. Id. at13. In assessing whether the prosecutor's comment was "invited," theYoung court stated:

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

Id. at 12.

Upon reviewing the evidence and the defense counsel's "opening salvo,"this court concludes that the prosecutor's statement was not an invitedresponse to defense counsel's statements during closing argument. Thisis so for the following reasons. First, defense counsel's argumentregarding the government's ability to polygraph the cooperating witnessesand its failure to do so in this case was based on evidence submitted bythe government by way of the written plea agreements in the government'sdirect examination of the cooperating witnesses in its case in chief.Thus, defense counsel's reference to the non-administration of polygraphtests during his argument was proper, because he was arguing evidence,evidence that the prosecutor failed to object to despite having had theopportunity to do so several times. In contrast, there was no evidenceregarding the defendant's failure to administer polygraph tests to hiswitnesses much less to himself. This is so because unlike thegovernment, a defendant does not have plea agreements with his/herwitnesses which obligate them to submit to polygraph examinations.Therefore, when the prosecutor commented about Schneider's and hiswitnesses' failure to submit to polygraph tests, such commentary was notbased on any evidence adduced at trial, see United States v. Beckman,222 F.3d 512, 527 (8th Cir. 2000) (explaining that during closingargument, "an attorney's role is to assist the jury in analyzing,evaluating, and applying the evidence. Arguments that transcend suchboundaries are improper"), nor was it even tied to any evidence presentedat trial or reasonably inferred from that evidence, see United States v.Wilson, 135 F.3d 291, 297-302 (4th Cir. 1998) (prosecutor's remarksduring closing arguments in drug trafficking trial that defendant shot aman dead violated due process because the argument was not based onevidence of record or any reasonable inference therefrom); see alsoUnited States v. Robbins, 197 F.3d 829, 843 (7th Cir. 1999) ("The trialfocused on the credibility of the cooperating witnesses. There isnothing improper about a prosecutor's comments concerning the credibilityof a witness as long as the comments are tied to the evidence presentedat trial or reasonable inferences from that evidence.").

Second, it is clear from defense counsel's closing argument that thedefendant's theory of defense was that the government's cooperatingwitnesses implicated Schneider so that they could receive sentencereductions. As a result, defense counsel attacked the credibility of thecooperating witnesses, especially the credibility of Heiden, and thegovernment's decision not to polygraph them. Indeed, attacking thecredibility of the cooperating witnesses was the cornerstone of thedefendant's theory of defense, especially since the government's keywitness, Heiden, admitted during trial that he committed perjury beforethe grand jury. The defense argued this point repeatedly, commenting onthe government's knowledge of Heiden's perjury yet its failure to requestHeiden to submit to a polygraph exam. The defense honed in on this pieceof evidence for purposes of arguing reasonable doubt, emphasizing that itis the government's burden/obligation to seek the truth and theadministration of a polygraph exam would have helped get to the truth ofthe matter. Undoubtedly, defense counsel's remarks regarding thecooperating witnesses' credibility invited a response from the prosecutorin order to "right the scale." See Franklin, 250 F.3d at 661 (statingthat in "this Circuit, [w]here the Prosecutor, his witnesses, or the workof the government agents is attacked [by defense counsel], the DistrictAttorney is entitled to make a fair response and rebuttal") (internalquotation and citation omitted); see also Young, 470 U.S. at 12(explaining that "if the prosecutor's remarks were invited, and did nomore than respond substantially in order to right the scale, suchcomments would not warrant reversing a conviction") (internal quotationsomitted); United States v. Figueroa, 900 F.2d 1211, 1216 (8th Cir. 1990)("Certainly the government has a right to respond to defensearguments."). The prosecutor would have been within his/her bounds tocomment on the reasons why the jury should find the cooperatingwitnesses' testimony credible, including eliciting testimony that if thecooperating witnesses testified untruthfully the government would notmake any substantial assistance motions on their behalf in order to havetheir sentences reduced. See, e.g. United States v. Munoz, 150 F.3d 401,414-15 (5th Cir. 1998) (prosecutor's comments during closing argumentregarding government witnesses' truthfulness were not reversible errorbecause comments were invited by defendant's effort to expose thegovernment witnesses as liars). However, defense counsel's remarksduring his closing argument did not open the door for the prosecutor tocomment upon Schneider's failure to take a polygraph exam or hiswitnesses' failure to take polygraph exams. This is so because, theprosecutor's remark improperly implies first, that the results of suchtests would be admissible, and second, that the defendant has the burdenof proving his innocence. The prosecutor clearly intimated to the jurythat it could, and should, draw an adverse inference from the defendant'sfailure and the defense witnesses' failure to submit to polygraphexaminations. This is critical because the inference garnered from theprosecutor's comment shifts the burden of proof from the government to thedefendant. In other words, the prosecutor argued to the jury that ifSchneider was truly innocent he, along with his witnesses, would havetaken polygraph tests, which improperly intimates to the jury that it isthe defendant's burden to prove his innocence. Because the prosecutorimproperly argued the defendant's obligation and his witnesses'obligation to submit to polygraph examinations, this court is unable tostate that the "prosecutor's [comment]did not shake [its] faith in the jury's verdict." United States v.Carter, 236 F.3d 777, 788 (6th Cir. 2001) (declaring that "we cannotstate that the prosecutor's conduct did not shake our faith in the jury'sverdict").

Morever, the court is deeply troubled by the prosecutor's comment inlight of the fact that the prosecutor was aware that Schneider hadvolunteered to submit to a polygraph examination on two separateoccasions. Schneider's attorney, Matthew D. Wilbur, submitted anuncontradicted affidavit in which he states:

I was personally present on two occasions when the defense offered to allow Heath Schneider to be subjected to a polygraph examination. The first such occasion occurred in the U.S. Attorney's office in Sioux City, Iowa in the presence of [the prosecutor who prosecuted this case] and [the]FBI [case] [a]gent. [The prosecutor] indicated that [the government] was not interested in such an offer at that time. The second occasion occurred at the conclusion of the second day of trial. [The] FBI [case agent] stated "it's too late for that now" (or words to that effect) when this second offer was made.

Affidavit of Matthew D. Wilber in Support of Post-Trial Motions at¶ 12. During the hearing on Schneider's post-trial motions, theprosecutor did not deny that Schneider had, in fact, offered to submit totwo polygraph examinations. In failing to do so, the court is left withthe impression that the prosecutor's rebuttal closing argument containedimproper insinuations and assertions designed to mislead the jury orallude to facts not in evidence. See Berger, 295 U.S. at 85 (cautioningthe government to abstain from arguments that are "undignified andintemperate, containing improper insinuations and assertions calculatedto mislead the jury"). Moreover, not only was the prosecutor's commentcontrary to what the prosecutor knew, see United States v. Udechukwu,11 F.3d 1101, 1105-06 (1st Cir. 1993) (prosecutor's insinuation thatdefendant fabricated story about drug source was reversible error becauseprosecutor knew drug source existed), but the prosecutor's commentundoubtedly suggested an inference of guilt. This is key because theprosecutor's remark was one of the last things that the jury heard from anattorney before they were sent home. See United States v. Carter,236 F.3d 777, 788 (6th Cir. 2001) (noting the significance of the timingof the prosecutor's improper comments which were made during theprosecutor's rebuttal argument and thus were the last words the jury heardbefore deliberations). Thus, when the prosecutor made the comment "whatabout the defendant's polygraph," the court concludes that, not only wasthe prosecutor's comment not an invited response or reply, but in lightof the prosecutor's knowledge about Schneider's offer to submit topolygraph examinations, the prosecutor's comment crossed the line ofpermissible conduct. As the United States Supreme Court has made itabundantly clear, the United States Attorney is held to a higher standardof care:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. 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. It is as much his duty 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.

Berger v. United States, 295 U.S. 78, 88 (1935) (emphasis added); seealso United States v. O'Connell, 841 F.2d 1408, 1428 (8th Cir. 1988)("the prosecutor's special duty as a government agent is not to convict,but to secure justice"). Here, the court concludes that the prosecutor'sstatement during the rebuttal closing argument was undoubtedly a "foulblow," and, highly improper.7 This conclusion does not, however, endthe inquiry.

ii. Was Schneider prejudiced by the prosecutor's comment?

As stated previously, the Eighth Circuit Court of Appeals has set forththe following two-part test for reversible prosecutorial misconduct: 1)the prosecutor's remarks or conduct must have been improper; and 2) suchremarks or conduct must have prejudicially affected defendant'ssubstantial rights so as to deprive him of a fair trial. See UnitedStates v. Macklin, 104 F.3d 1046, 1049 (8th Cir. 1997). Havingdetermined that the prosecutor's remark in the rebuttal closing argumentregarding polygraph tests was improper, the court must determine whetherthat remark prejudicially affected Schneider's substantial rights so asto deprive him of a fair trial. This in turn requires the court toconsider the following factors: 1) the cumulative effect of themisconduct; 2) the strength of the properly admitted evidence of thedefendant's guilt; and 3) any curative actions taken by the trial court.See United States v. Cannon, 88 F.3d 1495, 1502 (8th Cir. 1996). Thegovernment argues that even if the statement regarding polygraphs isfound to be improper and not a "fair response," this court's curativeinstruction avoided prejudice to the defendant. The court will addresseach factor in turn.

The cumulative effect of the misconduct. In this case, because theprosecutor's statement during the rebuttal closing argument was soegregious, suggestive, and inflammatory, the court concludes that it,alone, infected the entire trial. See United States v. Beeks,224 F.3d 741, 746(8th Cir. 2000) (stating that "a single misstep on the part of theprosecutor may be so destructive of the right to a fair trial thatreversal is mandated") (quoting United States v. Johnson, 968 F.2d 768,771 (8th Cir. 1992)); United States v. Carter, 236 F.3d 777, 788-89 (6thCir. 2001) (stating that "even a single misstep on the part of theprosecutor may be so destructive of the right of the defendant to a fairtrial that reversal must follow") (internal quotation and citationomitted). It must be remembered that the prosecutor's statement was thelast words the jury heard from an attorney before deliberations.Consequently, in light of the prejudicial content of the statement, thetime at which it was said to the jury, as well as the fact that is was anAssistant United States Attorney who made the statement, see UnitedStates v. Solivan, 937 F.2d 1146, 1150 (6th Cir. 1991) (explaining thatjurors are likely to "place great confidence in the faithful execution ofthe obligations of a prosecuting attorney, improper insinuations orsuggestions [by the prosecutor] are apt to carry weight against adefendant); Young, 470 U.S. at 18-19 (the danger in such comments is that"the prosecutor's opinion carries with it the imprimatur of theGovernment and may induce the jury to trust the Government's judgmentrather than its own view of the evidence"); Berger, 295 U.S. at 88(explaining that a prosecutor's "improper suggestions, insinuations,and, especially, assertions of personal knowledge are apt to carry muchweight against the accused when they should properly carry none"), thecourt concludes that this statement, alone, weighs in favor of a newtrial. See United States v. Donato, 99 F.3d 426, 432 (D.C. Cir. 1997)(prosecutor's remarks in summation calling defendant a liar werereversible error where case turned on defendant's credibility).

Even assuming that the prosecutor's statement during the rebuttalclosing argument, alone, does not weigh in favor of granting a newtrial, the court finds that the cumulative nature of the prosecutorialimpropriety which permeated this trial does weigh in favor of granting anew trial. It is noteworthy that the prosecutor's improper statementregarding the lack of the defendant's polygraph, as well as the lack ofthe defendant's witnesses' polygraphs, occurred after the prosecutor hadbeen previously admonished by the court on three separate occasionsregarding previous improper conduct. See United States v. Crutchfield,26 F.3d 1098, 1101-02 (11th Cir. 1994) (prosecutor's irrelevant questionsinsinuating that defense witness was involved in major drug operationsand other misconduct were reversible error because prosecutor showedrepeated disregard for trial court's rulings). The prosecutor's commentduring the rebuttal closing argument, therefore, was not "an aberrationin an otherwise fair trial." See United States v. Evangelista,122 F.3d 112, 120 (2d Cir. 1997) (concluding that "the severity of theprosecutor's single improper statement was also mitigated somewhat in thiscase because the remark appears to have been an aberration in anotherwise fair proceeding") (internal quotations and citation omitted).Indeed, the first time the court admonished the prosecutor in this caseoccurred when, on the second day of trial, the prosecutor informeddefense counsel that Heiden had admitted to committing perjury in frontof the federal grand jury. The government failed to immediately informdefense counsel of this relevant information concerning its principalfact witness; it was revealed that the government knew about thisinformation for approximately ten to fourteen days prior to trial, yetsuch information was not disclosed until the second day of trial.Schneider moved for a dismissal of the indictment based upon failure todisclose exculpatory information and for outrageous governmentconduct. When pressed for its delay in relaying this information to thedefense, the prosecutor indicated that it was an oversight whilepreparing for trial and that it was not intentional. Because the courtdetermined that there was no Brady8 violation, the court denieddefendant's motion.

The prosecutor was admonished a second time on the third day of trialwhen Toni Marquardt testified on behalf of the government. During thebeginning of the prosecutor's direct examination of Toni Marquardt, theprosecutor asked whether there was any reason for Marquardt's nervousdisposition on the witness stand. Marquardt proceeded to state thatSchneider's sister's boyfriend, Brian Truitt, had tried to run her offthe road that morning on the way to court and had flipped her off.Schneider's attorney objected and moved for dismissal of the case due tothe failure to disclose the irrelevant and extremely prejudicial piece ofinformation prior to having Marquardt disclose it in the presence of thejury. The court denied the motion, but instructed the jury to disregardthe comment as it was irrelevant to any issue in the trial. The courtalso questioned the prosecutor about not bringing this information to thecourt's attention before delving into it in front of the jury. Theprosecutor explained that no thought regarding the matter was given priorto asking Marquardt the question, and characterized such conduct as being"lame."

The third time the court admonished the prosecutor occurred when theFBI case agent testified that he had been aware, through discussions withGail Swanson, of a couple of trips to Mexico by Heiden and Swanson duringwhich drugs had been purchased. Because this information was notcontained in the FBI-302's of Gail Swanson, Schneider had no way ofknowing about these trips until it came out on the witness stand. Thisinformation was important to the defense, because, as pointed out bySchneider in his post-trial brief, "the crux of the Government's caseagainst Heath Schneider was that Heath was the one and only supplier ofdrugs for Heiden during the time period alleged in the indictment, exceptfor a couple of small purchases from an individual named Ralph Gonzalez.Failure to disclose several trips to Mexico by William Heiden, two ofwhich were in the company of Gail Swanson, wherein drugs were purchased,could certainly have affected the outcome of trial of this matter. Hadthe defense been made aware of these trips prior to trial, investigationregarding other trips by Heiden to drug source areas could have beenundertaken." See Defendant's Brief in Support of Post-Trial Motions at11. Defense counsel moved to dismiss the indictment based uponoutrageous government conduct and the withholding of exculpatoryinformation. The court denied this motion.

In light of the foregoing three instances of the prosecutor's improperconduct in this trial, particularly the line of questioning that elicitedthe prejudicial testimony by Toni Marquardt, which will be discussed infurther detail below, the court concludes that the cumulative effect ofthe prosecutor's misconduct undoubtedly weighs in favor of Schneiderreceiving anew trial. See Young, 470 U.S. at 11 (stating that the determination ofwhether a prosecutor's behavior constituted prejudicial error must bemade in the context of the whole trial). This court is mindful thatprosecutors are to be zealous advocates, however, prosecutors are alsoheld to a higher standard since their paramount duty in every case is toseek justice, win or lose. See Berger, 295 U.S. at 88 ("The UnitedStates is the representative not of an ordinary party to a controversy,but of a sovereignty whose obligation to govern impartially is ascompelling as its obligation to govern all; and whose interest,therefore, in a criminal prosecution is not that it shall win a case, butthat justice shall be done."). The Sixth Circuit Court of Appealsrecognized the difficult role prosecutors play in criminal prosecutions,explaining:

The determination of whether a prosecutor's behavior constituted prejudicial error must be made in the context of the whole trial. Young, 470 U.S. at 11, 105 S.Ct. 1038. This must be done because the line between vigorous advocacy and the denial of a fair trial is a fine line. Prosecutors face the difficult task of walking this fine line while playing a dichotomy of roles. They must be zealous advocates and enforcers of the law while, at the same time, acting in a manner that ensures a fair and just trial. See United States v. Reliford, 58 F.3d 247, 251 (6th Cir. 1995).

United States v. Francis, 170 F.3d 546, 552-53 (6th Cir. 1999). Here,the prosecutor repeatedly failed in a prosecutor's duty to "refrain fromimproper methods," see Berger, 295 U.S. at 88 ("It is much his [theprosecutor's] duty to refrain from improper methods calculated to producea wrongful conviction as it is to use every legitimate means to bringabout a just one."), and when these incidents of prosecutorialimpropriety are viewed together, the court concludes that they are soprejudicial that the cumulative effect of the misconduct weighs in favorof granting a new trial. See United States v. Cruz-Padilla, 227 F.3d 1064,1069 n. 8 (8th Cir. 2000) ("If a prosecutor's remarks are so prejudicialthat they deny the defendant a fair trial, then those remarks must, ipsofacto, affect a substantial right of the defendant to a fair trial")(citing United States v. Freisinger, 937 F.2d 383, 387 (8th Cir. 1991)).

The strength of the properly admitted evidence. The second factorconsidered when assessing the prejudicial impact of the prosecutor'scomment is the strength of the evidence against Schneider. The courtconcludes that, while there was sufficient evidence presented at trial tosupport the jury's guilty verdict, this evidence was not so strong as toovercome the improper comment made by the prosecutor, especially in lightof the other instances of imprudent conduct by the prosecutor. Thegovernment's case against Schneider relied exclusively on testimony fromco-conspirators of questionable credibility who never directly observedSchneider deliver any drugs to Heiden. Heiden was the only witness thatprovided direct evidence of Schneider's involvement in the drugconspiracy, and significantly Heiden admitted to committing perjurybefore the federal grand jury in this case.

While the prosecution's case was strong, yet not overwhelming, it wasmet virtually blow by blow with a strong and zealous defense. Thedefendant testified at length, was a strong and forceful witness, and wasbarely cross-examined by the government. Also, this court was veryimpressed with defense counsel's closing argument, finding it to be themost effective closing argument that the undersigned has ever seen eitheras a practicing attorney, a magistrate judge and now a district courtjudge. Schneider's attorney effectivelyattacked every shred of evidence upon which the government relied,presenting it in an entirely different light than the government.Therefore, although the evidence against Schneider was considerable, itwas not overwhelming, and coupled with a very strong defense and defensecounsel's forceful closing argument, the court concludes that Schneiderhas satisfied this second factor. See Boyle v. Million, 201 F.3d 711,717-18 (6th Cir. 2000) (reversing for prosecutorial misconduct eventhough the evidence against the defendant was strong); United States v.Francis, 170 F.3d 546, 552 (6th Cir. 1999) (same).

The curative actions taken by the trial court. The court issued thefollowing "Supplemental Instruction" in response to the government'simproper statement:

During the government's rebuttal closing argument, Assistant United States Attorney [] suggested that the defense could have used polygraph tests for the defense witnesses. This was highly improper and legally wrong, for the following reasons: First, because of the presumption of innocence, Mr. Schneider has no burden to prove his innocence, for the law never imposes upon a defendant in a criminal case the burden of duty of producing any evidence; second, the results of polygraph tests are not admissible in federal court, under ordinary circumstances. However, defense counsel's reference to polygraph tests of the government witnesses was proper. This is so, because the plea agreements those witnesses signed gave the United States Attorney's Office and the FBI the right to obtain such tests. Therefore, the situation of the government witnesses is completely different from that of defense witnesses, because the defense never has plea agreements with its witnesses. Because [the prosecutor's] remark was highly improper, you are instructed to completely disregard it.

See Docket #159. Although this curative instruction was issued to thejury, sua sponte, the court recognizes that it was not given until nearlytwo days after the jury heard the prosecutor's improper comment. This isso, because the closing arguments and rebuttal argument took place onSaturday9, and the curative instruction was not given until thatfollowing Monday morning when the jury returned to the courthouse todeliberate. Thus, the prosecutor's improper comment remained with thejurors, without the curative instruction, for a significant period oftime. Moreover, although the court recognizes that curative instructionsare looked upon favorably by the appellate courts in curing prosecutorialmisconduct that occurs during trial, see United States v. True,179 F.3d 1087, 1090 (8th Cir. 1999) (prosecutor's comment regardingdefendant's failure to subpoena potential witness, when defendant had infact done so but witness failed to testify, did not prejudice defendantbecause comment was made in rebuttal to defense counsel's argument andthe court offered cautionary instruction that addressed the impropercomment); United States v. Shareef, 190 F.3d 71, 78 (2d. Cir. 1999) (anymisconduct committed by prosecutor did not prejudice the defendant orwarrant a new trial given, inter alia, the trial court's promptadmonishments), and that jurors are presumed to follow the court'sinstructions, see Jones v. United States, 527 U.S. 373, 393 (1999)(stating that the jurors are presumed to have followed the districtcourt's instructions) (citations omitted);see also United States v. Paul, 217 F.3d 989, 997 (8th Cir. 2000)(stating jury is presumed to follow all instructions) (citing Jones),this court has grave reservations, given the circumstances in this case,that the curative instruction dispelled the undue prejudice that stemmedfrom the prosecutor's improper remark, particularly because theprosecutor's comment clearly mislead the jury. See Boyle v. Million,201 F.3d 711, 717-18 (6th Cir. 2000) (prosecutor's repeated incidents ofmisconduct were reversible error warranting habeas corpus reliefbecause, despite relatively strong evidence against defendant, statementswere obviously intended to mislead the jury and prejudice defendant, andimproprieties infected all aspects of trial). Schneider testified foressentially an entire day on direct examination, however, when it cametime for the prosecutor to cross-examine him, the prosecutor only asked afew innocuous questions. At no time did the prosecutor attempt to impeachSchneider or vigorously cross-examine him while he was on the witnessstand. Yet in the rebuttal closing argument, the prosecutor obtained thesame effect of impeachment by commenting on the defendant's failure totake a polygraph. Indeed, in a rather perverse way, the prosecutor'simproper comment could well have bolstered a belief in the jurors thatthe prosecutor did not vigorously cross-examine Schneider because theprosecutor knew he was lying and his failure to take a polygraph was the"proof in the pudding." Had the prosecutor vigorously cross-examinedSchneider, the court is of the opinion that the prosecutor's commentwould not have been as prejudicial as the court considers it to be absentany vigorous cross-examination, because the jury would have been in aposition to weigh Schneider's testimony and assess his credibility againstthe prosecutor's comment regarding Schneider's failure to take apolygraph examination. However, because the prosecutor's comment was madeabsent any vigorous cross-examination, the court concludes that theprejudice that resulted cannot be overcome even taking into account thepractical application of the curative instruction this court issued to thejury. As this court noted to the parties, and highlighted by Schneiderin his brief, telling the jury not to think about the white elephant inthe courtroom does nothing but make sure that every juror is thinkingabout the white elephant. Consequently, the court finds that,individually, the prosecutor's statement about the defendant's failure totake a polygraph test, as well as the statement about the defendant'switnesses' failure to take a polygraph test, made during the rebuttalclosing argument was so improper and prejudicial that it deprivedSchneider of a fair trial. The court also concludes that theprosecutor's statement during the rebuttal closing argument, coupled withthe other three instances of prosecutorial improprieties that permeatedthis trial, especially the questioning of Toni Marquardt, also deprivedSchneider of a fair trial. Consequently, the court concludes thatSchneider is entitled to a new trial. See United States v. Longie,984 F.2d 955, 960 (8th Cir. 1993) (explaining that the trial judge, notan appellate court examining a cold record, could best weigh possibleerrors against whole record to determine whether a new trial iswarranted).

b. Marquardt's testimony

In its brief, the government argues that Marquardt's testimony wasmerely offered as an explanation of her shaky demeanor on the witnessstand. The government further contends that there was no implication orsuggestion in this case that Schneider was involved or responsible forthe incident involving Marquardt, and it was not an improper or egregiousattack on the defendant's character or credibility.

The court strongly disagrees with the government. This is so, becausethe sole purpose for eliciting such testimony from Marquardt directlysuggested that the defendant was involved with the intimidation of awitness. Why else would the defendant's sister's boyfriend attempt torun Marquardt off the road on the day she is scheduled to testify againstSchneider? Upon hearing Marquardt's testimony, that point wascrystalized for the jury, and for the government to argue otherwise ringshollow with this court. If the prosecutor only wanted to explainMarquardt's nervous demeanor to the jury, there are myriad ways in whichthe prosecutor could have helped Marquardt convey to the jury that shewas nervous without implicating the defendant or his family. Forexample, the prosecutor could have directed Marquardt to state generallythat she was almost in an accident while on the way to testify thatmorning, or that some person, without naming names, "flipped her off" andalmost ran her off the road, etc. In fact, in reviewing the Realtimetranscript, although Marquardt did testify that the individual whoattempted to run her off the road was Brian Truitt, it was theprosecutor's next question asking "[w]ho is he?" that the jury becameaware of his familial ties to Schneider.10 The court finds that inlight of this question there is no doubt that the prosecutor desired toinform the jury that it was someone with close ties to Schneider whoattempted to run Marquardt off the road. The court notes that evenbefore the prosecutor began this line of inquiry, Marquardt had testifiedthat she suffered from anxiety and, as a result, took several forms ofmedication. Marquardt's anxiety alone could have accounted for hernervous demeanor while on the witness stand, thus obviating the need toeven talk about the incident while driving to court. Moreover, this typeof a "Perry Mason" moment, replete with the elements of surprise andprejudice, is precisely the type of matter that should be taken up withthe court outside the presence of the jury. Indeed, this court requiresthe attorneys to meet one-half hour before the trial begins to go overmatters such as this that arise during a trial.

Undaunted, the government attempts to distinguish those line of EighthCircuit cases that hold for the proposition that improper questioning ofa witness may warrant a new trial. Specifically, in United States v.Beeks, 224 F.3d 741 (8th Cir. 2000), the government attempts todistinguish that case from this case, because the line of questioning inBeeks directly attacked the credibility of a non-testifying defendant. Incontrast, the government asserts that based on Marquardt's testimonythere was no implication or suggestion that Schneider was involved orresponsible for the incident involving Marquardt, and further that hertestimony was not an improper attack on Schneider's character orcredibility. The government also distinguishes this case from UnitedStates v. Monteleone, 77 F.3d 1086 (8th Cir. 1996) on the basis that thequestioning in Monteleone focused directly on the defendant's credibilityand character, which the government contends was not the case here.The court, however, disagrees. Although Marquardt did not directlyattack Schneider's character or credibility, her testimony undoubtedlyput Schneider in a far different, and worse light than he had been priorto her testimony. At a minimum, her testimony suggested that Schneider'sfamily members wanted to intimidate Marquardt from testifying because ofSchneider's guilt, and at a maximum, her testimony suggested thatSchneider recruited a family member to intimidate Marquardt fromtestifying. Either way the prosecutor's question, which elicitedMarquardt's response, was improper and prejudicial. While the court isdumbfounded as to why a seasoned prosecutor would elicit such testimonythat is so patently irrelevant and prejudicial, especially withoutinforming the court of such a matter beforehand, this incident, alone, isnot sufficient to warrant a new trial. However, this incident, coupledwith the other instances of the prosecutor's improprieties that occurredduring the trial, require the court to act affirmatively in order toprevent prosecutor's from employing similar improper tactics withimpunity. As Judge Jerome Frank explained:

This court has several times used vigorous language in denouncing government counsel for such conduct as that of the [prosecutor] here. But, each time, it has said that, nevertheless, it would not reverse. Such an attitude of helpless piety is, I think, undesirable. It means actual condonation of counsel's alleged offense, coupled with verbal disapprobation. If we continue to do nothing practical to prevent such conduct, we should cease to disapprove it. For otherwise it will be as if we declared in effect, `Government attorneys, without fear of reversal, may say just about what they please in addressing juries, for our rules on the subject are pretend-rules. If prosecutors win verdicts as a result of "disapproved" remarks, we will not deprive them of their victories; we will merely go through the form of expressing displeasure. The deprecatory words we use in our opinions on such occasions are purely ceremonial.' Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of this court-recalling the bitter tear shed by the Walrus as he ate the oysters-breeds a deplorably cynical attitude towards the judiciary.

United States v. Antonelli Fireworks Co., 155 F.2d 631, 661 (2d. Cir.)(Frank J., dissenting), cert. denied, 329 U.S. 742, (1946) (footnoteomitted). As explained in the foregoing, the court concludes that theprosecutorial misconduct that permeated this trial demands more than the"ritualistic verbal spanking."

3. Weight of the evidence

Because the court has granted Schneider a new trial based onprosecutorial misconduct, the court need not and will not engage in aweight of the evidence analysis here.

III. CONCLUSION

The court concludes that based upon its review of the evidence, andviewing the evidence in the light most favorable to the government, areasonable jury could have found Schneider knowingly and voluntarilyparticipated in an agreement to combine, conspire, and agree with otherpersons to commit the following two separate offenses: (1) distributionof a mixture or substance containing a detectable amount ofmethamphetamine; and (2) distribution of a mixture or substancecontaining a detectable amount of cocaine. Consequently, the court deniesSchneider's motion for judgment of acquittal. However, the courtconcludes that the statementmade by the prosecutor during the rebuttal closing argument, alone, aswell as the cumulative effect of the other three instances of imprudentconduct on the part of the prosecutor, so infected the trial withunfairness as to make the resulting conviction a denial of due process.Consequently, the verdict in this case is set aside and Schneider's motionfor new trial is granted.

IT IS SO ORDERED.

1. United States v. Antonelli Fireworks Co., 155 F.2d 631, 659 (2d.Cir.) (Frank J., dissenting), cert. denied, 329 U.S. 742, (1946).

2. The government also seeks leave of court to file a consolidatedmemorandum in support of its resistance to defendant's post-trialmotions. For good cause established, the court grants the government'srequest to file a consolidated memoranda in support of its resistance,which is Docket #193.

3. In Ortiz, this court noted that it had discussed in one of itsearlier cases, see Saborit, 967 F. Supp. at 1140-43, the existence of twoapparently inharmonious lines of Eighth Circuit authority regarding thestandard to be applied when considering a challenge to the sufficiency ofthe evidence to sustain a conviction. Ortiz, 40 F. Supp.2d at 1079 n. 1(citing Saborit and referring to United States v. Baker, 98 F.3d 330, 338(8th Cir. 1996), cert. denied, 520 U.S. 1179 (1997) ((observing that ifthe evidence reasonably supports two conflicting hypotheses — guiltand innocence — the reviewing court must not disturb the jury'sfinding) and United States v. Davis, 103 F.3d 660, 667 (8th Cir. 1996),cert. denied, 520 U.S. 1258 (1997) (holding that "`[w]here thegovernment's evidence is equally strong to infer innocence of the crimecharged as it is to infer guilt, the verdict must be one of not guilty .. .'" quoting United States v. Kelton, 446 F.2d 669, 671 (8th Cir.1971)). Once again, the court observes as it did in Ortiz and Saborit,that during the last ten years, the Eighth Circuit Court of Appeals hasoverwhelmingly applied the Baker standard-that is, if the evidencereasonably supports two contrary theories, the reviewing court must notdisturb the jury's determination. id. (citing Baker, 98 F.3d at 338);see also United States v. Turner, 157 F.3d 552, 556 n. 5 (8th Cir. 1998)(noting apparent discrepancy and following Baker); United States v.Butler, 238 F.3d 1001, 1004 (8th Cir. 2001) (citing Turner). Regardlessof the standard applied in this case, the court concludes that the resultas to the defendant's motion for judgment of acquittal would be thesame.

4. On cross-examination, Marquardt conceded that she could not see allof Schneider through the peephole. Marquardt also testified that shebelieved the person whom she observed through the peephole was Schneiderbased in part on what she saw and based in part on Heiden's statementthat Schneider was his drug source. To a certain extent, therefore,Marquardt's identification of Schneider was questionable.

5. The language in the paragraphs concerning the use of a polygraph inthe plea agreements marked Government Exhibits 7 and 8 differ slightlyfrom the language contained in the other three plea agreements. This isso, because three of the cooperating witnesses signed plea agreements inthe Northern District of Iowa, and the other two cooperating witnessessigned plea agreements in the Southern District of Iowa. Although theessence of the paragraphs regarding the government's polygraphing of itswitnesses from both of the districts is virtually the same, for purposesof being thorough, the court finds that a full reprisal of the exactlanguage used in Exhibits 7 and 8 would be judicious:

Defendant agrees that, upon request by the government, he will voluntarily submit to a polygraph examiner of the government's choice. In the event that he is called upon by the government to submit to a polygraph examination and his performance in the examination suggests a conscious intent to deceive, mislead or lie with respect to his assets, he will be afforded an opportunity to review and explain the deceptive responses to the government. If the totality of the circumstances convinces the government that his financial statement is not complete and truthful, he will be so informed. The government is then not limited to forfeiture set forth in this plea, but any and all forfeiture remedies available.

See Government's Exhibit 7 at ¶ 19, 8 at ¶ 18.

6. In its memorandum, the government acknowledges that it didn'tobject to this line of questioning, expressly stating "The court shouldfinally note that the polygraph theme was chosen by the defense, not thegovernment, and in hindsight (which is always 20/20), should have beenthe subject of a government objection." See Memorandum in Support ofGovernment's Resistance to Defendant's Post-Trial Motions for Judgment ofAcquittal and New Trial at 15 n. 2. The government also cites to UnitedStates v. Zaccaria, 240 F.3d 75, 80-81 (1st Cir. 2001), representing thatthe circuit court upheld the district court's exclusion of testimonyregarding non-administration of polygraphs since the proposed inquiry was"wholly irrelevant, potentially confusing, and unfairly prejudicial."Id. The Zaccaria case, however, is distinguishable from this case,because it was the government through the written plea agreements, whoput into evidence the issue regarding polygraph testing. Indeed, inZaccaria, there was no mention of written plea agreements containing aparagraph obligating a cooperating witness to submit to a polygraph testif requested to do so by the government that were part of the evidentiaryrecord.

7. Schneider also contends that the prosecutor made the comment withthe intent to goad defense counsel into moving for a mistrial and alsowith the intent to prevent a likely acquittal. In fact, after theprosecutor made the comment, defense counsel moved for an intentionalmistrial. The court is mindful that the Double Jeopardy Clause protectsa defendant against governmental actions intended to provoke mistrialrequests. See United States v. Ivory, 29 F.3d 1307, 1310 (8th Cir. 1994)(stating that "a defendant may invoke the double jeopardy bar to preventretrial if the first trial ended in a mistrial as a result ofprosecutorial or judicial conduct intentionally designed to provoke thedefendant's motion for a mistrial") (citing Oregon v. Kennedy,456 U.S. 667, 673-76 (1982); see also United States v. Martin,561 F.2d 135, 139 (8th Cir. 1977). Although the court finds that theprosecutor engaged in prosecutorial misconduct here, the court does notfind that the prosecutor engaged in "prosecutorial overreaching."Martin, 561 F.2d at 139. This is so, because in order for Schneider todemonstrate "prosecutorial overreaching" and thus be protected by theDouble Jeopardy Clause, Schneider must show that the prosecutor'smisconduct was "motivated by bad faith or undertaken to harass orprejudice" the defendant. Id.; see also United States v. King, 590 F.2d 253,256 (8th Cir. 1978), cert. denied, 440 U.S. 973 (1979) (explaining thatwhere "prosecutorial overreaching" is present the interests protected bythe Double Jeopardy Clause outweigh society's interest in conducting asecond trial ending in acquittal or conviction") (citations omitted). Thecourt concludes that because there is no evidence that the prosecutor'sconduct in this case was either "motivated by bad faith or undertaken toharass or prejudice" Schneider, Schneider's motion for intentionalmistrial is denied.

8. Brady v. Maryland, 373 U.S. 83 (1963). The Eighth Circuit Court ofAppeals has explained that Brady is not violated by a delay in disclosingevidence so long as the evidence is disclosed during trial. See UnitedStates v. Gonzales, 90 F.3d 1363, 1368 (8th Cir. 1996); see also UnitedStates v. Boykin, 986 F.2d 270, 276 n. 6 (8th Cir.) cert. denied,510 U.S. 888 (1993). Because the government did disclose the informationrelating to Heiden's perjured testimony during the trial, this courtruled that there was no Brady violation.

9. In order to accommodate this court's trial calendar, it was decidedthat the closing argument portion of the trial would be held onSaturday.

10. After Toni Marquardt testified that she was nearly run off theroad and flipped off on her way to court that morning by someindividual, the prosecutor asked the following deliberate questions:

Q. Who was driving that vehicle or who was in thatvehicle?

A. Brian Truitt

Q. Who is he?

A. He is the defendant's sister's boyfriend.

From this deliberate line of inquiry, the court finds that the federalprosecutor clearly wanted the jury to know not only the reason whyMarquardt seemed nervous, but also who was responsible for running heroff the road.

MEMORANDUM OPINION AND ORDER REGARDING DEFENDANT'S POST-TRIAL MOTIONS

Here, the court is called upon to determine whether, during thegovernment's rebuttal closing argument, the federal prosecutorimpermissibly "summon[ed] that thirteenth juror, prejudice"1 tosecure a conviction against the defendant.

I. INTRODUCTION

On July 27, 2000, a United States Grand Jury for the Northern Districtof Iowa returned a second superseding, one-count indictment chargingthat, between about July 1996 and continuing through about June 1999,defendant Heath Damon Schneider ("Schneider") did knowingly andunlawfully combine, conspire, and agree with other persons to commit thefollowing two separate offenses: (1) distribution of five hundred (500)grams or more of a mixture or substance containing a detectable amount ofmethamphetamine, a Schedule II controlled substance, in violation ofTitle 21, U.S.C. § 841(a)(1) and 841(b)(1)(A)(vii); and (2)distribution of five hundred (500) grams or more of a mixture orsubstance containing a detectable amount of cocaine, a Schedule IIcontrolled substance, in violation of Title 21 U.S.C. § 841(a)(1) and841(b)(1)(B)(ii).

On March 19, 2001, the case against Schneider proceeded to trial beforea jury. At trial, the government called two law enforcement officers, acriminalist, and six cooperating witnesses to testify in support of itscase in chief against Schneider. Specifically, five of those sixwitnesses testified pursuant to written plea agreements, and onetestified pursuant to an immunity agreement. The government also playedthree tape recorded conversations between Schneider and one of itscooperating witnesses, William Heiden, who testified that thoseconversations were representative of drug trafficking. At the close ofthe government's case, Schneider moved for judgment of acquittal pursuantto Federal Rule of Criminal Procedure 29. The court denied this motion.In his defense, Schneider denied that he was ever involved in the drugtrade, instead proclaiming that he was involved in the loan business.Schneider took the stand and testified that he made several loans toindividuals, including Heiden. To support his theory of defense,Schneider called Brandon Lund tothe witness stand, wherein he testified that he was aware of the loansthat Schneider made, and that he actually made loans to and receivedpayments from Heiden on Schneider's behalf. Schneider also called to thewitness stand an individual by the name of Randy Kotter who testifiedthat he received numerous loans from Schneider and further that he wasaware that Schneider routinely made loans to employees and friends. Atthe conclusion of all of the evidence, Schneider renewed his motion forjudgment of acquittal, and, once again, the court denied this motion. OnMarch 26, 2001, the jury returned a verdict of guilty as to the charge ofconspiracy to commit both offenses, namely distribution of a mixture orsubstance containing a detectable amount of methamphetamine anddistribution of a mixture or substance containing a detectable amount ofcocaine. Although the government charged Schneider with over 500 grams asto both the methamphetamine offense and cocaine offense, the quantity ofeach controlled substance for which the jury found beyond a reasonabledoubt Schneider was responsible consisted of the following: 50-499 gramsof methamphetamine and less than 500 grams of cocaine.

On April 2, 2001, Schneider filed a timely post-trial Motion forJudgment of Acquittal (#169) pursuant to Federal Rule of CriminalProcedure 29, as well as a Motion for New Trial (#168) pursuant toFederal Rule of Criminal Procedure 33. In his post-trial Motion forJudgment of Acquittal, Schneider contends that the evidence introduced attrial was insufficient for a reasonable jury to return a verdict againsthim on the charge set forth in the indictment. In his post-trial Motionfor New Trial, Schneider contends that he is entitled to a new trial forthe following reasons: (1) the government committed prosecutorialmisconduct which deprived him of a fair trial; (2) the governmentwithheld material exculpatory evidence from him; and (3) the verdict ofthe jury was contrary to the weight of the evidence. With respect to thealleged prosecutorial misconduct, Schneider specifically contends thatthe government engaged in an improper line of questioning of ToniMarquardt, and that the prosecutor made a highly improper comment duringthe rebuttal closing argument. With respect to the alleged withholdingof evidence, Schneider specifically contends that the government failedto timely disclose William Heiden's perjury before the federal grandjury, and that the government failed to timely disclose prior trips toMexico by William Heiden and Gail Swanson during which drugs wereillegally obtained. Schneider argues that each one of these allegationsof prosecutorial misconduct, individually, is grounds for a new trial,however, he also argues in the alternative that, in the event the courtfinds that each of these instances of alleged misconduct, takenindividually, do not rise to the level of prejudice that would justifythe granting of a new trial, the cumulative nature of the prosecutor'sconduct would warrant the granting of a new trial. The government hasresisted Schneider's post-trial motions.2 On May 25, 2001, the courtheld a hearing on Schneider's post-trial motions. The court deems thematter fully submitted, and, therefore, turns initially to the standardof review governing motions for judgments of acquittal under Federal Ruleof Criminal Procedure 29, and then to a legal analysis of the issuesraised by Schneider in his motion for judgment of acquittal. Thereafter,but only if necessary,the court will address Schneider's motion for new trial.

II. LEGAL ANALYSIS

A. Schneider's Motion for Judgment of Acquittal

1. Standards applicable to motions for judgment of acquittal

The court has considered in detail the standards applicable to motionsfor judgment of acquittal, see United States v. Ortiz, 40 F. Supp.2d 10731078-79 (N.D.Iowa 1999) and United States v. Saborit, 967 F. Supp. 1136,1138-40 (N.D.Iowa 1997), and will set forth the highlights of thosediscussions, as well as some more recent case law, here. Rule 29 of theFederal Rules of Criminal Procedure provides, in pertinent part, asfollows:

The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses.

FED. R. CRIM. P. 29(a). Although Rule 29 specifically provides for sucheventualities, it is well-settled that "[j]ury verdicts are not lightlyoverturned." United States v. Hood, 51 F.3d 128, 129 (8th Cir. 1995);accord United States v. Burks, 934 F.2d 148, 151 (8th Cir. 1991).Rather, the case law governing motions for judgment of acquittal confirmsthat a significant restraint is placed on a district court's authority tooverturn a jury's verdict. See United States v. Gomez, 165 F.3d 650, 654(8th Cir. 1999) (observing that a judgment of acquittal should only begranted "if there is no interpretation of the evidence that would allow areasonable jury to find the defendant guilty beyond a reasonabledoubt"); United States v. Perkins, 94 F.3d 429, 436 (8th Cir. 1996)("`[t]he standard of review of an appeal concerning the sufficiency ofthe evidence is very strict, and the verdict of the jury should not beoverturned lightly.'") (quoting Burks, 934 F.2d at 151), cert. denied,519 U.S. 1136 (1997).

The United States Court of Appeals for the Eighth Circuit has thereforeinstructed that "[t]he jury's verdict must be upheld if there is aninterpretation of the evidence that would allow a reasonable jury to findthe defendant guilty beyond a reasonable doubt." United States v. Moore,108 F.3d 878, 881 (8th Cir. 1997); Perkins, 94 F.3d at 436 ("`The jury'sverdict must be upheld if there is an interpretation of the evidence thatwould allow a reasonable-minded jury to conclude guilt beyond areasonable doubt.'") (quoting United States v. Erdman, 953 F.2d 387, 389(8th Cir.), cert. denied, 505 U.S. 1211 (1992)). Here, Schneidercontends that his motion for judgment of acquittal should be grantedbecause the government's evidence at trial would not permit a reasonablejury to find him guilty beyond a reasonable doubt of the two offensesthat were the objectives of the alleged conspiracy — that is,distribution of methamphetamine and distribution of cocaine.

In considering a motion for judgment of acquittal based on thesufficiency of the evidence, the court must "view the evidence in thelight most favorable to the guilty verdict, giving the government thebenefit of all reasonable inferences that may be drawn from theevidence."3United States v. Basile, 109 F.3d 1304, 1310 (8th Cir.), cert. denied,522 U.S. 866 (1997); accord United States v. Madrid, 224 F.3d 757, 761-62(8th Cir. 2000) (stating that "in reviewing the District Court's denialof the motion for acquittal, we view the evidence in the light mostfavorable to the verdict and will reverse only if no reasonable jurycould have found beyond a reasonable doubt that the defendant is guiltyof the offense charged") (citation omitted); United States v. Vig,167 F.3d 443, 447 (8th Cir. 1999) (observing that "[w]e review thedistrict court's denial of a motion for judgment of acquittal based onthe sufficiency of the evidence by viewing the evidence in the light mostfavorable to the verdict."). The court can overturn a jury's verdictonly if "`a reasonable fact-finder must have entertained a reasonabledoubt about the government's proof'" of one of the essential elements ofthe crime charged. United States v. Kinshaw, 71 F.3d 268, 271 (8th Cir.1995) (quoting United States v. Nunn, 940 F.2d 1128, 1131 (8th Cir.1991)). Furthermore, "[t]his standard applies even when the convictionrests entirely on circumstantial evidence." United States v. Davis,103 F.3d 660, 667 (8th Cir. 1996), cert. denied, 520 U.S. 1258 (1997).

In addition to allowing a conviction to be based on circumstantialand/or direct evidence, the Eighth Circuit Court of Appeals hasinstructed that "[t]he evidence need not exclude every reasonablehypothesis except guilt." United States v. Baker, 98 F.3d 330, 338 (8thCir. 1996), cert. denied, 520 U.S. 1179 (1997). The court can neitherweigh the evidence nor assess the credibility of the witnesses; thesetasks belong exclusively to the jury. United States v. Ireland,62 F.3d 227, 230 (8th Cir. 1995) (noting it is the jury's job to judgethe credibility of witnesses and to resolve contradictions in evidence).

2. Sufficiency of the evidence

In the indictment, the United States charges that, between about July1996 and continuing through about June 1999, defendant Schneiderknowingly conspired with others to commit two separate offenses: (a)distribution of 500 grams or more of a mixture or substance containing adetectable amount of methamphetamine; and (b) distribution of 500 gramsor more of a mixture or substance containing a detectable amount ofcocaine. In order to convict Schneider of conspiracy, the government hadto show beyond a reasonable doubt, that: (1) between about July 1996 andabout June 1999, two or more persons reached an agreement or came to anunderstanding to commit one or both of the offenses alleged; (2)Schneider voluntarilyand intentionally joined in the agreement or understanding, either at thetime it was first reached or at some later time while it was still ineffect; and (3) at the time Schneider joined in the agreement orunderstanding, he knew the purpose of the agreement or understanding.See United States v. White, 241 F.3d 1015, 1022 (8th Cir. 2001) ("Toconvict a defendant of conspiracy, the government must prove beyond areasonable doubt the following elements: (1) there was a conspiracy withan illegal purpose; (2) the defendant knew about the conspiracy; and (3)the defendant knowingly became a part of it.") (citing United States v.Mosby, 177 F.3d 1067, 1069 (8th Cir. 1999) and United States v. Bass,121 F.3d 1218, 1220 (8th Cir. 1997)); United States v. Jiminez-Perez,238 F.3d 970, 973 (8th Cir. 2001) (same); United States v. Holloway,128 F.3d 1254, 1257 (8th Cir. 1997) ("To be guilty of conspiracy, adefendant must be shown to have knowingly entered into an agreement withat least one other person to violate the law."). Thus, the governmenthad to prove that Schneider knowingly and voluntarily participated in anagreement to distribute methamphetamine and/or cocaine. See UnitedStates v. Parker, 32 F.3d 395, 399 (8th Cir. 1994).

A conviction for conspiracy "may be based on circumstantial as well asdirect evidence." United States v. Erdman, 953 F.2d 387, 389 (8th Cir.1992); Jiminez-Perez, 238 F.3d at 973. This is so, because "knowledgefrequently cannot be proven except by circumstantial evidence, and thedetermination often depends on the credibility of the witnesses, asassessed by the factfinder." See id. at 390. Once the governmentestablishes the existence of a conspiracy, only slight evidence isrequired to link a defendant to the conspiracy. United States v.Womack, 191 F.3d 879, 884 (8th Cir. 1999); see also United States v.Jenkins, 78 F.3d 1283, 1287 (8th Cir. 1996) ("Once the governmentestablishes the existence of a drug conspiracy, only slight evidencelinking the defendant to the conspiracy is required to prove thedefendant's involvement and support the conviction."). This places aheavy burden on a defendant challenging the sufficiency of the evidencein a conspiracy case. Id.; United States v. Madrid, 224 F.3d 757, 761(8th Cir. 2000) ("A defendant challenging the sufficiency of the evidencein a conspiracy case has a heavy burden, as proof of the crime may reston indirect or circumstantial evidence.") (citation omitted).Nonetheless, the evidence must be sufficient to meet the Jackson v.Virginia, 443 U.S. 307, 319 (1979) reasonable doubt standard — thatis, "after viewing the evidence in the light most favorable to theprosecution, any rational trier of fact could have found the essentialelements of the crime beyond a reasonable doubt." Id. "To be aconspirator, it is not required that [Schneider] knew all the details ofthe conspiracy." United States v. Causor-Serrato, 234 F.3d 384, 387 (8thCir. 2000) (citing United States v. Hernandez, 986 F.2d 234, 236 (8thCir. 1993)).

Indeed, based on principles of coconspirator liability, Schneider is"criminally liable for the substantive offenses committed by anotherconspirator within the scope and in furtherance of the conspiracy."United States v. Rodger, 100 F.3d 90, 91 n. 2 (8th Cir. 1996) (percuriam) (citing Pinkerton v. United States, 328 U.S. 640, 647-48,(1946)). As the Eighth Circuit Court of Appeals recently explained inNavarrette-Barron:

We have said that "[u]nder Pinkerton, each member of a conspiracy may be held criminally liable for any substantive crime committed by a co-conspirator in the course and furtherance of the conspiracy, even though those members did not participate in or agree to the specific criminal act." United States v. Golter, 880 F.2d 91, 93 (8th Cir. 1989) (citations omitted).

In order to convict Navarrete-Barron of possession with intent to distribute cocaine base under 21 U.S.C. § 841, the government must first prove that Garcia knowingly or intentionally possessed 50 or more grams of cocaine base with intent to distribute. The government must then prove that Navarrete-Barron and Garcia were members of a conspiracy at the time of the possession, that the possession of the cocaine base was in furtherance of the conspiracy, and that Garcia's possession could have been reasonably foreseen by Navarrete-Barron as a natural outgrowth of the conspiracy. See Pinkerton, 328 U.S. at 647-48, 66 S.Ct. 1180.

Navarrette-Barron, 192 F.3d at 792-93; see also Davis, 154 F.3d at 783("As outlined in the jury instructions, Pinkerton liability requires thata member of the conspiracy committed the offense in furtherance of theconspiracy at a time when the defendant was also a member of theconspiracy and that the offense was a reasonably foreseeable consequenceof the unlawful agreement."); United States v. Rodger, 100 F.3d 90, 91n. 2 (8th Cir. 1996) (a co-conspirator is liable for an offense infurtherance of the conspiracy "unless that offense could not reasonablyhave been foreseen as a necessary or natural consequence of theconspiracy"); United States v. Friend, 50 F.3d 548, 554 & n. 3 (8th Cir.1995) ("the government must prove that Apker's possession of asilencer-equipped firearm could have been reasonably foreseen by Friend"and "We reject Friend's contention that the district court erred inrefusing to substitute "was reasonably foreseen" for "could have beenreasonably foreseen" in its instruction defining the elements of theCount IX offense. We approved the term used by the district court as"fully comply[ing] with Pinkerton's requirements" in [United States v.]Lucas, 932 F.2d [1210,] 1220 [(8th Cir.), cert. denied, 502 U.S. 929(1991), and cert. denied, 502 U.S. 1100 (1992)."), vacated on othergrounds, 517 U.S. 1152 (1996); United States v. Lucht, 18 F.3d 541, 554(8th Cir.) (Pinkerton liability attaches where the offense "could havebeen reasonably foreseen as a necessary or natural consequence of theconspiracy"), cert. denied, 513 U.S. 949 (1994)); United States v.Martinez, 958 F.2d 217, 219 (8th Cir. 1992) ("In Pinkerton v. UnitedStates, 328 U.S. 640, 647, 66 S.Ct. 1180, 1184, 90 L.Ed. 1489 (1946), theSupreme Court held that a party to a conspiracy may be responsible forthe substantive offense of a co-conspirator `when the substantive offenseis committed by one of the conspirators in furtherance of the[conspiracy].' This is true even though the party has no actualknowledge of the offense as long as it could be `reasonably foreseen as anecessary or natural consequence of the [conspiracy].' Id. at 648, 66S.Ct. at 1184.").

Viewing the totality of the evidence in the light most favorable to thegovernment, as it must on a judgment of acquittal, the court concludesthat the evidence is sufficient for the jury to have found that Schneiderwas guilty beyond a reasonable doubt of conspiracy to commit bothoffenses — that is, distribution of methamphetamine anddistribution of cocaine. The government introduced evidence provingthat, in 1996, a group of men originally from Denison, Iowa, includingSchneider, Heiden, and Mark Pollack, lived in Las Vegas, Nevada. BothPollack and Heiden testified that Schneider initially provided them withpersonal use quantities of drugs. Thereafter, Heiden testifiedthat he approached Schneider about Schneider becoming his drug source,after which a drug relationship between the two ensued. Heiden testifiedto the particulars about the drug operation, namely that he devised a planwhereby he would purchase drugs from Schneider, transport them from LasVegas to Iowa by air, and sell them to his buyer in Iowa, an individualnamed Darrell Bissen. Bissen testified on behalf of the government, andcorroborated Heiden's testimony regarding the transportation of the drugsfrom Nevada to Iowa.

The government also presented the testimony of six of Schneider'sco-conspirators. Although five of those witnesses never directly observedSchneider distribute and or deliver drugs to Heiden, all four witnessesdid provide circumstantial evidence that Heiden obtained drugs fromSchneider. See United States v. Beckman, 222 F.3d 512, 522 (8th Cir.2000) ("Both direct and circumstantial evidence can be the basis of aconviction.") (citation omitted). For example, Gail Swanson testifiedthat on two separate occasions when Heiden was unavailable to place theirdrug order with Schneider, he called Schneider himself and placed theorder on Heiden's behalf. Swanson also testified that after he andHeiden had a falling out, he personally contacted Schneider in an attemptto recruit Schneider as his own drug supplier. According to Swanson,Schneider rejected his offer because Schneider did not want to exacerbatethe already acrimonious relationship that existed between Swanson andHeiden. Toni Marquardt testified that Heiden divulged to her thatSchneider was his drug source and that, on one occasion, while staying atHeiden's house waiting for the drugs, she observed Schneider through apeephole in Heiden's door.4 Furthermore, Heiden's roommate, PatrickZamora, testified to his knowledge about the relationship between Heidenand Schneider. He testified that he saw Schneider at Heiden's apartmenta half-dozen times, and that immediately after Schneider would leave,Heiden had larger drug quantities available and ready to weigh andrepackage. Zamora testified that he answered the phone when Schneiderwould call the apartment asking for Heiden, and that based on hisfamiliarity with Heiden and Heiden's relationship with Schneider, thebusiness between Schneider and Heiden involved drugs.

Moreover, and most damaging to Schneider, was the testimony of Heiden,who testified at length about his drug dealings with Schneider.Significantly, three tape recorded conversations between Heiden andSchneider, which were played to the jury, corroborated Heiden's testimonyregarding Schneider's involvement in the drug conspiracy. AlthoughSchneider testified in his behalf and attempted to explain these taperecorded conversations with Heiden, ultimately the jury rejected hisexplanation. See Ireland, 62 F.3d at 230 (noting it is the jury's jobto judge the credibility of witnesses and to resolve contradictions inevidence). While it is true that Heiden committed perjury to the federalgrand jury in this case, his perjurious statement was revealed to thejury and, therefore, it was within the province of the jury to determinewhat weight, if any, to accord Heiden's testimony. Based on theverdict, the jury evidently concluded that despite Heiden's earlierperjured testimony before the federal grand jury, his trialtestimony was by and large truthful, especially given the three taperecorded conversations between himself and Schneider, which corroboratedhis testimony.

In reviewing the sufficiency of the evidence on defendant's motion forjudgment of acquittal, this court must "view the evidence in the lightmost favorable to the government, and resolving evidentiary conflicts infavor of the government, and accepting all reasonable inferences drawnfrom the evidence that support the jury's verdict." United States v.Surratt, 172 F.3d 559, 562 (8th Cir. 1999) (citations and internalquotations omitted). Viewing the evidence in such a light, and giving thegovernment the benefit of all reasonable inferences, the court concludesthat there is sufficient evidence in the trial record to support thejury's conviction of Schneider on the charge of conspiracy. It was thejury's function to evaluate Schneider's credibility and to weigh histestimony against Heiden's testimony and the government's other evidenceof conspiracy. Therefore, the court will not overturn the jury's verdictof guilt on the charge of conspiracy and acquit Schneider. See Surratt,172 F.3d at 565 ("It is not necessary for the evidence before the jury torule out every reasonable hypothesis of innocence. It is enough that theentire body of evidence be sufficient to convince the fact-finder beyonda reasonable doubt of the defendant's guilt.") (citing United States v.Noibi, 780 F.2d 1419, 1422 (8th Cir. 1986)). Accordingly, the courtdenies Schneider's motion for judgment of acquittal pursuant to FederalRule of Criminal Procedure 29.

B. Schneider's Motion for a New Trial

Schneider has also moved for a new trial pursuant to Rule 33 of theFederal Rules of Criminal Procedure. Because the standards under whichthis motion is evaluated differ substantially from those applied to amotion for judgment of acquittal, the court will begin by setting forththe governing standards, and will then turn to its consideration of thedefendant's motion for new trial.

1. Standards applicable to motions for new trial

In Saborit, this court also had occasion to consider in some detail thestandards applicable to motions for new trial. Saborit, 967 F. Supp. at1144-45. Rather than repeat that discussion in its entirety here, thecourt will again set forth the highlights of these standards.

Federal Rule of Criminal Procedure 33 provides in relevant part asfollows: "The court on motion of a defendant may grant a new trial tothat defendant if required in the interest of justice." FED. R. CRIM.P. 33. District courts have broad discretion in passing upon motions fornew trial and such rulings are subject to reversal only for a clear abuseof discretion. See United States v. Wilkins, 139 F.3d 603, 604 (8thCir. 1998); United States v. Brown, 108 F.3d 863, 866 (8th Cir. 1997);United States v. Blumeyer, 62 F.3d 1013, 1015 (8th Cir. 1995), cert.denied, 516 U.S. 1172 (1996).

A court evaluates a Rule 33 motion from a different vantage point thanit evaluates a Rule 29 motion for judgment of acquittal. Ortiz,40 F. Supp.2d at 1082. Indeed, "[a] district court's power to order a newtrial is greater than its power to grant a motion for acquittal." UnitedStates v. Ruiz, 105 F.3d 1492, 1501 (1st Cir. 1997); accord United Statesv. Bennett, 956 F.2d 1476, 1481 (8th Cir. 1992) ("This narrowlyconstricted power of review [applicable to motions for judgment ofacquittal] is in contrast to the district court's broad discretion inruling upon a motion for new trial."); United States v. A. Lanoy Alston,D.M.D., P.C., 974 F.2d 1206, 1211 (9th Cir. 1992) ("A districtcourt's power to grant a motion for a new trial is much broader than itspower to grant a motion for judgment of acquittal."). In assessing whethera defendant is entitled to a new trial on the ground that the verdict iscontrary to the weight of the evidence, "the district court weighs theevidence and evaluates anew the credibility of the witnesses to determineif a miscarriage of justice may have occurred." Davis, 103 F.3d at668; accord United States v. Misle Bus & Equip. Co., 967 F.2d 1227, 1232(8th Cir. 1992); United States v. Brown, 956 F.2d 782, 786 (8th Cir.1992). As the United States Court of Appeals for the Eighth Circuit hasexplained:

"When a motion for a new trial is made on the ground that the verdict is contrary to the weight of the evidence, the issues are far different from those raised by a motion for judgment of acquittal. The question is whether he is entitled to a new trial. In assessing the defendant's right to a new trial, the court must weigh the evidence and in doing so evaluate for itself the credibility of the witnesses." United States v. Lincoln, 630 F.2d [1313,] 1316 [(8th Cir. 1980)]. The court will only set aside the verdict if the evidence weighs heavily enough against the verdict that a miscarriage of justice may have occurred.

United States v. Rodriguez, 812 F.2d 414, 417 (8th Cir. 1987). Theauthority to grant new trials, however, "should be used sparingly andwith caution." United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir.1980).

When alleged prosecutorial misconduct is the basis for a defendant'snew trial motion, the Eighth Circuit Court of Appeals has clearly setforth a two-part test for reversible prosecutorial misconduct: "[F]irst,the prosecutor's conduct or remarks must have been improper, and second,the remarks or conduct must have prejudicially affected the defendant'ssubstantial rights by depriving the defendant of a fair trial." UnitedStates v. White, 241 F.3d 1015, 1023 (8th Cir. 2001) (citing UnitedStates v. Beeks, 224 F.3d 741, 745 (8th Cir. 2000)). "Inappropriateprosecutorial comments, standing alone, [do] not justify a reviewing courtto reverse a criminal conviction obtained in an otherwise fairproceeding. Instead, . . . the remarks must be examined within thecontext of the trial to determine whether the Prosecutor's behavioramounted to prejudicial error." United States v. Franklin, 250 F.3d 653,660-61 (8th Cir. May 22, 2001) (citing United States v. Nelson,988 F.2d 798, 807 (8th Cir. 1993). In assessing the prejudicial impactof prosecutorial misconduct, a reviewing court should consider: (1) thecumulative effect of the misconduct; (2) the strength of the properlyadmitted evidence; and (3) the curative actions taken by the districtcourt. United States v. Wadlington, 233 F.3d 1067, 1077 (8th Cir.2000); United States v. Beckman, 222 F.3d 512, 526 (8th Cir. 2000)(same); United States v. Beeks, 224 F.3d 741, 745 (8th Cir. 2000)(same). "However, a single misstep on the part of the prosecutor may beso destructive of the right to a fair trial that reversal is mandated."United States v. Johnson, 968 F.2d 768, 771 (8th Cir. 1992) (internalquotations omitted). The key question ultimately is whether theprosecutor's comments "so infected the trial with unfairness as to makethe resulting conviction a denial of due process." Darden v.Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo,416 U.S. 637, 643 (1974)); see also United States v. Young, 470 U.S. 1,11-12 (1985) (explaining that criminal conviction was not readilyoverturned on basis of prosecutor's comments alone; statements must beviewed in context of entire proceeding in order to determine whetherconduct affected fairness of trial); Beckman, 222 F.3d at 526.

Generally, "a prosecutor may not express a personal opinion about adefendant's veracity." White, 241 F.3d at 1023 (citations omitted).Rather, a prosecutor is constrained to "the evidence and the reasonableinferences that may be drawn from it." Id. (citing United States v.Robinson, 110 F.3d 1320, 1327 (8th Cir. 1997)). Moreover, during closingargument, "an attorney's role is to assist the jury in analyzing,evaluating, and applying the evidence. Arguments that transcend suchboundaries are improper." United States v. Beckman, 222 F.3d 512, 527(8th Cir. 2000). Having examined the appropriate standard of review, thecourt turns now to its consideration of Schneider's motion.

2. Prosecutorial Misconduct

Schneider asserts that the prosecutor committed four separate incidentsof prosecutorial misconduct. First, Schneider contends that, on thesecond day of trial, the prosecutor informed defense counsel that Heidenhad admitted to committing perjury before the federal grand jury in thiscase. Defense counsel avers that he was led to believe that thisinformation had been discovered by the government only the night beforethe second day of trial, however, it was discovered that the governmenthad been aware of this information ten to fourteen days prior to thebeginning of trial. As a result, Schneider argues that the government'sfailure to timely disclose such pertinent information constitutesprosecutorial misconduct. Second, Schneider contends that, on the thirdday of trial, cooperating witness Toni Marquardt was called to thestand, whereupon the prosecutor asked Marquardt if there was anyparticular reason she was especially nervous. Marquardt explained thather nervous demeanor was caused by Schneider's sister's boyfriend, BrianTruitt, who had "flipped her off" and tried to run her off the road thatmorning while she was en route to testify against Schneider. Schneiderargues that this improper line of questioning by the prosecutorconstitutes prosecutorial misconduct. Third, Schneider contends that, atthe end of the third day of trial, the FBI case agent testified that hehad been aware, through discussions with Gail Swanson, that Heiden andSwanson made trips to Mexico wherein drugs had been purchased. On thewitness stand, the FBI case agent conceded that if this information wasnot contained in the FBI-302's of Gail Swanson, defense counsel would nothave been aware of these trips until it came out on the witness stand.Defense counsel asserts that it reviewed the FBI-302's of Gail Swansonand found no mention of any trips to Mexico. As a result, Schneiderargues that the prosecutor's failure to timely disclose this informationconstitutes prosecutorial misconduct. Fourth, Schneider contends that,during the government's rebuttal closing argument, the prosecutor madethe following improper remark: "Another double standard regardingpolygraphing the government's witnesses, by God, those witnesses weren'tpolygraphed, where's the defendant's polygraph?" Schneider argues thatthis remark was improper and constitutes prosecutorial misconduct. Inresponse, the government argues these allegations of prosecutorialmisconduct are not alone, or cumulatively, grounds for a new trial.

The court will begin its analysis with what it considers to be the mostserious of the prosecutorial misconduct allegations identified above,namely, the alleged highly improper remark made during the government'srebuttal closing argument. In considering this allegation, the courtwill also address the other three allegations of prosecutorial misconductwith particularattention devoted to the prosecutor's questioning of cooperating witnessToni Marquardt.

a. The rebuttal closing argument

Schneider contends that the prosecutor's following remark, which wasmade during the rebuttal closing argument, constitutes prosecutorialmisconduct:

What I am going to talk about is a double standard here, the defendant's double standard. Remember how witnesses were essentially berated, how they were just indignant that witnesses couldn't come up with specific dates? We need a month. We need a year. And remember what Brandon Lund could do with dates? He could barely give you the date he was married. He could give us no specific dates about what anything happened that he testified to. That's the first double standard.

Another double standard regarding polygraphing the government's witnesses, by God, those witnesses weren't polygraphed, where's the defendant's polygraph?

Trial Transcript of Rebuttal Closing Argument on Behalf of the Plaintiffat 7 (emphasis added). Specifically, Schneider contends that theprosecutor's statement improperly suggested that he had the burden ofproducing evidence to prove his innocence, and that the results ofpolygraph examinations would somehow be admissible at trial. Schneiderfurther contends that this statement was inflammatory, extremelyprejudicial, and intentionally misleading because Schneider had previouslyoffered to submit to a polygraph examination on two occasions, both ofwhich the government rejected.

In response, the government contends that the remark above was made inresponse to defendant's repeated arguments attacking the government forfailing to conduct polygraph examinations of government witnesses.Specifically, the government contends that the prosecutor's statement inthe rebuttal closing argument was an "invited response" or "invitedreply" as that concept was examined by the United States Supreme Court inUnited States v. Young, 470 U.S. 1 (1985). In the alternative, thegovernment argues that even if the prosecutor's statement is not deemedto be an "invited response," in the context of the entire trial,Schneider was not deprived of a fair trial. In support of thisargument, the government emphasizes the curative instruction that thiscourt issued to the jury before it began to deliberate. Having outlinedthe parties' arguments, the court finds that a brief capsule summary ofthe salient facts from the trial, as well as defense counsel's statementsmade during closing argument that allegedly "invited" the prosecutor'sremark made during the rebuttal closing argument, would be beneficialhere.

As noted earlier, the government's case against Schneider restedheavily on the testimony of six cooperating witnesses who were part ofthe same conspiracy. Of those six witnesses, five of them testifiedpursuant to plea agreements. Thus, in return for their cooperation, thewitnesses hoped to gain a reduction in their respective sentences fromsubstantial assistance motions filed by the government. As thegovernment called each of those five witnesses to testify, the governmentmoved into evidence the written plea agreements that each of them hadentered into with the government. Included in each of these written pleaagreements was a paragraph that each witness consented to voluntarilysubmit to a polygraph examination if requested to do so by thegovernment. Specifically, that paragraph consisted of the following:

It is understood that, upon request by the government, the defendant will voluntarily submit to a polygraph examination. If performance in any polygraph examination suggests a conscious intent to deceive, mislead or lie and the totality of circumstances convinces the government that the defendant's statement is not complete and truthful, the defendant will be so informed and any and all obligations imposed on the government by the agreement will be rendered null and void. This decision to nullify the agreement will be in the sole discretion of the United States Attorney's Office for the Northern District of Iowa.

See Government's Exhibits 13 at ¶ 8, 10 at ¶ 8, 12 at ¶8, 75 at ¶ 19, and 8 at ¶ 18. The defense vigorouslycross-examined the cooperating witnesses as to whether any had taken apolygraph test and whether the government had requested them to take apolygraph test. All of the cooperating witnesses indicated that they hadnot been polygraphed by the government, and that no request had beenmade. Significantly, when the defense asked the witnesses thesequestions, the government did not object to the questions.6 Thus,both the written plea agreements containing this paragraph as well as theanswers provided by the cooperating witnesses were in evidence.Additionally, on cross-examination, defense counsel elicited testimonyfrom the FBI case agent that, while testifying before the federal grandjury in this case, he had testified he knew his witnesses were tellinghim the truthbecause "[w]e use polygraphs to polygraph out witnesses to make surethey're shooting square with us." The government did not interpose anyobjection with respect to defense counsel's questioning of the FBI caseagent. Furthermore, prior to the government's initial closing argument,defense counsel provided the prosecutor with an opportunity to review thedemonstrative exhibits that they intended to use during his closingargument. One of those exhibits, namely Defendant's Exhibit A, whichread "To Polygraph or Not to Polygraph? That is the Question" and wascaptioned in bold black underlined print, clearly indicated that thedefense planned on arguing to the jury the government's failure topolygraph its witnesses. Once again, the government did not object to thedefendant's use of this demonstrative exhibit or this line of argument.In sum, the government never objected to the admission of any evidencethat the defense presented relating to polygraph examinations of thegovernment's cooperating witnesses.

The court now turns to that portion of defense counsel's closingargument that allegedly invited the prosecutor's response in the rebuttalclosing argument. In his closing argument, defense counsel argued thefollowing:

A trial is an effort to find the truth. The government needs to bring forward to you, the government needs to bring forward to you, that amount of evidence that takes that shell, that steel shell, of presumption of innocence that comes into this trial around our client and beats it away. What did they bring you, and what didn't they bring you, and are you really entitled to more and better evidence than this? I think if you go to one place, the testimony of your — the FBI agent, [], he testifies that he agrees he said to the federal grand jury and he was testifying in this case, in answer to the question how do we know these guys are telling the truth, you recall what he said he said. The answer is synopsized up here on the wall, but I think it was something to the effect we put people in jail cells to make sure they're not shining on the FBI, and we polygraph over witnesses to make sure they're shooting straight with us. Question says you don't just believe them? Nope. Till we do that, we take them with a grain of salt. Ladies and gentlemen, if there's one fact in this case and one thing only that I would just be highly, highly, highly suspicious about, I would say where's the beef? Where's the beef? Why didn't you polygraph those witnesses? We saw them get chopped up, minced up. Some of them did pretty good. How much of what they said was true? Only you get to decide that. But the government has the burden of proof. Why didn't they out them on a polygraph? They have a written agreement, written agreements with these people, that they'll do it. Why didn't they, and why did [the FBI case agent] go to the federal grand jury and say we polygraph our witnesses, and until we do we take everything they say with a grain of salt? If you want to take the testimony of [the FBI case agent] under oath, take that to the jury room: Until they're polygraphed, you take it with a grain of salt, particularly the Heiden situation.

Is Heiden telling the truth in this case? That's what this is all about. Are you satisfied without that polygraph beyond a reasonable doubt that he's telling the truth? It's an easy way to go about it. Makes it real simple.

Realtime Transcript of Defense Counsel's Closing Argument at 26-27. Onceagain, the court notes that at no time during defense counsel's closingargument did the prosecutor interpose an objection.

i. Did defense counsel's comments invite the prosecutor's reply?

In United States v. Flynn, 196 F.3d 927 (8th Cir. 1999), the EighthCircuit Court of Appeals explained that "[i]n closing arguments, aprosecutor is entitled to make a fair response and rebuttal when thedefense attacks the government's case." Id. at 930 (citations omitted).The Flynn court further stated that when a prosecutor's allegedlyimproper comments are in response to the defendant's attack, the courtmust determine whether the prosecutor's comments were a fair response.Id. The United States Supreme Court in United States v. Young, 470 U.S. 1(1985) discussed the "invited reply" or fair response rule, explainingthat the idea of "invited response" is used not to excuse impropercomments, but to determine their effect on the trial as a whole. Id. at13. In assessing whether the prosecutor's comment was "invited," theYoung court stated:

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

Id. at 12.

Upon reviewing the evidence and the defense counsel's "opening salvo,"this court concludes that the prosecutor's statement was not an invitedresponse to defense counsel's statements during closing argument. Thisis so for the following reasons. First, defense counsel's argumentregarding the government's ability to polygraph the cooperating witnessesand its failure to do so in this case was based on evidence submitted bythe government by way of the written plea agreements in the government'sdirect examination of the cooperating witnesses in its case in chief.Thus, defense counsel's reference to the non-administration of polygraphtests during his argument was proper, because he was arguing evidence,evidence that the prosecutor failed to object to despite having had theopportunity to do so several times. In contrast, there was no evidenceregarding the defendant's failure to administer polygraph tests to hiswitnesses much less to himself. This is so because unlike thegovernment, a defendant does not have plea agreements with his/herwitnesses which obligate them to submit to polygraph examinations.Therefore, when the prosecutor commented about Schneider's and hiswitnesses' failure to submit to polygraph tests, such commentary was notbased on any evidence adduced at trial, see United States v. Beckman,222 F.3d 512, 527 (8th Cir. 2000) (explaining that during closingargument, "an attorney's role is to assist the jury in analyzing,evaluating, and applying the evidence. Arguments that transcend suchboundaries are improper"), nor was it even tied to any evidence presentedat trial or reasonably inferred from that evidence, see United States v.Wilson, 135 F.3d 291, 297-302 (4th Cir. 1998) (prosecutor's remarksduring closing arguments in drug trafficking trial that defendant shot aman dead violated due process because the argument was not based onevidence of record or any reasonable inference therefrom); see alsoUnited States v. Robbins, 197 F.3d 829, 843 (7th Cir. 1999) ("The trialfocused on the credibility of the cooperating witnesses. There isnothing improper about a prosecutor's comments concerning the credibilityof a witness as long as the comments are tied to the evidence presentedat trial or reasonable inferences from that evidence.").

Second, it is clear from defense counsel's closing argument that thedefendant's theory of defense was that the government's cooperatingwitnesses implicated Schneider so that they could receive sentencereductions. As a result, defense counsel attacked the credibility of thecooperating witnesses, especially the credibility of Heiden, and thegovernment's decision not to polygraph them. Indeed, attacking thecredibility of the cooperating witnesses was the cornerstone of thedefendant's theory of defense, especially since the government's keywitness, Heiden, admitted during trial that he committed perjury beforethe grand jury. The defense argued this point repeatedly, commenting onthe government's knowledge of Heiden's perjury yet its failure to requestHeiden to submit to a polygraph exam. The defense honed in on this pieceof evidence for purposes of arguing reasonable doubt, emphasizing that itis the government's burden/obligation to seek the truth and theadministration of a polygraph exam would have helped get to the truth ofthe matter. Undoubtedly, defense counsel's remarks regarding thecooperating witnesses' credibility invited a response from the prosecutorin order to "right the scale." See Franklin, 250 F.3d at 661 (statingthat in "this Circuit, [w]here the Prosecutor, his witnesses, or the workof the government agents is attacked [by defense counsel], the DistrictAttorney is entitled to make a fair response and rebuttal") (internalquotation and citation omitted); see also Young, 470 U.S. at 12(explaining that "if the prosecutor's remarks were invited, and did nomore than respond substantially in order to right the scale, suchcomments would not warrant reversing a conviction") (internal quotationsomitted); United States v. Figueroa, 900 F.2d 1211, 1216 (8th Cir. 1990)("Certainly the government has a right to respond to defensearguments."). The prosecutor would have been within his/her bounds tocomment on the reasons why the jury should find the cooperatingwitnesses' testimony credible, including eliciting testimony that if thecooperating witnesses testified untruthfully the government would notmake any substantial assistance motions on their behalf in order to havetheir sentences reduced. See, e.g. United States v. Munoz, 150 F.3d 401,414-15 (5th Cir. 1998) (prosecutor's comments during closing argumentregarding government witnesses' truthfulness were not reversible errorbecause comments were invited by defendant's effort to expose thegovernment witnesses as liars). However, defense counsel's remarksduring his closing argument did not open the door for the prosecutor tocomment upon Schneider's failure to take a polygraph exam or hiswitnesses' failure to take polygraph exams. This is so because, theprosecutor's remark improperly implies first, that the results of suchtests would be admissible, and second, that the defendant has the burdenof proving his innocence. The prosecutor clearly intimated to the jurythat it could, and should, draw an adverse inference from the defendant'sfailure and the defense witnesses' failure to submit to polygraphexaminations. This is critical because the inference garnered from theprosecutor's comment shifts the burden of proof from the government to thedefendant. In other words, the prosecutor argued to the jury that ifSchneider was truly innocent he, along with his witnesses, would havetaken polygraph tests, which improperly intimates to the jury that it isthe defendant's burden to prove his innocence. Because the prosecutorimproperly argued the defendant's obligation and his witnesses'obligation to submit to polygraph examinations, this court is unable tostate that the "prosecutor's [comment]did not shake [its] faith in the jury's verdict." United States v.Carter, 236 F.3d 777, 788 (6th Cir. 2001) (declaring that "we cannotstate that the prosecutor's conduct did not shake our faith in the jury'sverdict").

Morever, the court is deeply troubled by the prosecutor's comment inlight of the fact that the prosecutor was aware that Schneider hadvolunteered to submit to a polygraph examination on two separateoccasions. Schneider's attorney, Matthew D. Wilbur, submitted anuncontradicted affidavit in which he states:

I was personally present on two occasions when the defense offered to allow Heath Schneider to be subjected to a polygraph examination. The first such occasion occurred in the U.S. Attorney's office in Sioux City, Iowa in the presence of [the prosecutor who prosecuted this case] and [the]FBI [case] [a]gent. [The prosecutor] indicated that [the government] was not interested in such an offer at that time. The second occasion occurred at the conclusion of the second day of trial. [The] FBI [case agent] stated "it's too late for that now" (or words to that effect) when this second offer was made.

Affidavit of Matthew D. Wilber in Support of Post-Trial Motions at¶ 12. During the hearing on Schneider's post-trial motions, theprosecutor did not deny that Schneider had, in fact, offered to submit totwo polygraph examinations. In failing to do so, the court is left withthe impression that the prosecutor's rebuttal closing argument containedimproper insinuations and assertions designed to mislead the jury orallude to facts not in evidence. See Berger, 295 U.S. at 85 (cautioningthe government to abstain from arguments that are "undignified andintemperate, containing improper insinuations and assertions calculatedto mislead the jury"). Moreover, not only was the prosecutor's commentcontrary to what the prosecutor knew, see United States v. Udechukwu,11 F.3d 1101, 1105-06 (1st Cir. 1993) (prosecutor's insinuation thatdefendant fabricated story about drug source was reversible error becauseprosecutor knew drug source existed), but the prosecutor's commentundoubtedly suggested an inference of guilt. This is key because theprosecutor's remark was one of the last things that the jury heard from anattorney before they were sent home. See United States v. Carter,236 F.3d 777, 788 (6th Cir. 2001) (noting the significance of the timingof the prosecutor's improper comments which were made during theprosecutor's rebuttal argument and thus were the last words the jury heardbefore deliberations). Thus, when the prosecutor made the comment "whatabout the defendant's polygraph," the court concludes that, not only wasthe prosecutor's comment not an invited response or reply, but in lightof the prosecutor's knowledge about Schneider's offer to submit topolygraph examinations, the prosecutor's comment crossed the line ofpermissible conduct. As the United States Supreme Court has made itabundantly clear, the United States Attorney is held to a higher standardof care:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. 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. It is as much his duty 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.

Berger v. United States, 295 U.S. 78, 88 (1935) (emphasis added); seealso United States v. O'Connell, 841 F.2d 1408, 1428 (8th Cir. 1988)("the prosecutor's special duty as a government agent is not to convict,but to secure justice"). Here, the court concludes that the prosecutor'sstatement during the rebuttal closing argument was undoubtedly a "foulblow," and, highly improper.7 This conclusion does not, however, endthe inquiry.

ii. Was Schneider prejudiced by the prosecutor's comment?

As stated previously, the Eighth Circuit Court of Appeals has set forththe following two-part test for reversible prosecutorial misconduct: 1)the prosecutor's remarks or conduct must have been improper; and 2) suchremarks or conduct must have prejudicially affected defendant'ssubstantial rights so as to deprive him of a fair trial. See UnitedStates v. Macklin, 104 F.3d 1046, 1049 (8th Cir. 1997). Havingdetermined that the prosecutor's remark in the rebuttal closing argumentregarding polygraph tests was improper, the court must determine whetherthat remark prejudicially affected Schneider's substantial rights so asto deprive him of a fair trial. This in turn requires the court toconsider the following factors: 1) the cumulative effect of themisconduct; 2) the strength of the properly admitted evidence of thedefendant's guilt; and 3) any curative actions taken by the trial court.See United States v. Cannon, 88 F.3d 1495, 1502 (8th Cir. 1996). Thegovernment argues that even if the statement regarding polygraphs isfound to be improper and not a "fair response," this court's curativeinstruction avoided prejudice to the defendant. The court will addresseach factor in turn.

The cumulative effect of the misconduct. In this case, because theprosecutor's statement during the rebuttal closing argument was soegregious, suggestive, and inflammatory, the court concludes that it,alone, infected the entire trial. See United States v. Beeks,224 F.3d 741, 746(8th Cir. 2000) (stating that "a single misstep on the part of theprosecutor may be so destructive of the right to a fair trial thatreversal is mandated") (quoting United States v. Johnson, 968 F.2d 768,771 (8th Cir. 1992)); United States v. Carter, 236 F.3d 777, 788-89 (6thCir. 2001) (stating that "even a single misstep on the part of theprosecutor may be so destructive of the right of the defendant to a fairtrial that reversal must follow") (internal quotation and citationomitted). It must be remembered that the prosecutor's statement was thelast words the jury heard from an attorney before deliberations.Consequently, in light of the prejudicial content of the statement, thetime at which it was said to the jury, as well as the fact that is was anAssistant United States Attorney who made the statement, see UnitedStates v. Solivan, 937 F.2d 1146, 1150 (6th Cir. 1991) (explaining thatjurors are likely to "place great confidence in the faithful execution ofthe obligations of a prosecuting attorney, improper insinuations orsuggestions [by the prosecutor] are apt to carry weight against adefendant); Young, 470 U.S. at 18-19 (the danger in such comments is that"the prosecutor's opinion carries with it the imprimatur of theGovernment and may induce the jury to trust the Government's judgmentrather than its own view of the evidence"); Berger, 295 U.S. at 88(explaining that a prosecutor's "improper suggestions, insinuations,and, especially, assertions of personal knowledge are apt to carry muchweight against the accused when they should properly carry none"), thecourt concludes that this statement, alone, weighs in favor of a newtrial. See United States v. Donato, 99 F.3d 426, 432 (D.C. Cir. 1997)(prosecutor's remarks in summation calling defendant a liar werereversible error where case turned on defendant's credibility).

Even assuming that the prosecutor's statement during the rebuttalclosing argument, alone, does not weigh in favor of granting a newtrial, the court finds that the cumulative nature of the prosecutorialimpropriety which permeated this trial does weigh in favor of granting anew trial. It is noteworthy that the prosecutor's improper statementregarding the lack of the defendant's polygraph, as well as the lack ofthe defendant's witnesses' polygraphs, occurred after the prosecutor hadbeen previously admonished by the court on three separate occasionsregarding previous improper conduct. See United States v. Crutchfield,26 F.3d 1098, 1101-02 (11th Cir. 1994) (prosecutor's irrelevant questionsinsinuating that defense witness was involved in major drug operationsand other misconduct were reversible error because prosecutor showedrepeated disregard for trial court's rulings). The prosecutor's commentduring the rebuttal closing argument, therefore, was not "an aberrationin an otherwise fair trial." See United States v. Evangelista,122 F.3d 112, 120 (2d Cir. 1997) (concluding that "the severity of theprosecutor's single improper statement was also mitigated somewhat in thiscase because the remark appears to have been an aberration in anotherwise fair proceeding") (internal quotations and citation omitted).Indeed, the first time the court admonished the prosecutor in this caseoccurred when, on the second day of trial, the prosecutor informeddefense counsel that Heiden had admitted to committing perjury in frontof the federal grand jury. The government failed to immediately informdefense counsel of this relevant information concerning its principalfact witness; it was revealed that the government knew about thisinformation for approximately ten to fourteen days prior to trial, yetsuch information was not disclosed until the second day of trial.Schneider moved for a dismissal of the indictment based upon failure todisclose exculpatory information and for outrageous governmentconduct. When pressed for its delay in relaying this information to thedefense, the prosecutor indicated that it was an oversight whilepreparing for trial and that it was not intentional. Because the courtdetermined that there was no Brady8 violation, the court denieddefendant's motion.

The prosecutor was admonished a second time on the third day of trialwhen Toni Marquardt testified on behalf of the government. During thebeginning of the prosecutor's direct examination of Toni Marquardt, theprosecutor asked whether there was any reason for Marquardt's nervousdisposition on the witness stand. Marquardt proceeded to state thatSchneider's sister's boyfriend, Brian Truitt, had tried to run her offthe road that morning on the way to court and had flipped her off.Schneider's attorney objected and moved for dismissal of the case due tothe failure to disclose the irrelevant and extremely prejudicial piece ofinformation prior to having Marquardt disclose it in the presence of thejury. The court denied the motion, but instructed the jury to disregardthe comment as it was irrelevant to any issue in the trial. The courtalso questioned the prosecutor about not bringing this information to thecourt's attention before delving into it in front of the jury. Theprosecutor explained that no thought regarding the matter was given priorto asking Marquardt the question, and characterized such conduct as being"lame."

The third time the court admonished the prosecutor occurred when theFBI case agent testified that he had been aware, through discussions withGail Swanson, of a couple of trips to Mexico by Heiden and Swanson duringwhich drugs had been purchased. Because this information was notcontained in the FBI-302's of Gail Swanson, Schneider had no way ofknowing about these trips until it came out on the witness stand. Thisinformation was important to the defense, because, as pointed out bySchneider in his post-trial brief, "the crux of the Government's caseagainst Heath Schneider was that Heath was the one and only supplier ofdrugs for Heiden during the time period alleged in the indictment, exceptfor a couple of small purchases from an individual named Ralph Gonzalez.Failure to disclose several trips to Mexico by William Heiden, two ofwhich were in the company of Gail Swanson, wherein drugs were purchased,could certainly have affected the outcome of trial of this matter. Hadthe defense been made aware of these trips prior to trial, investigationregarding other trips by Heiden to drug source areas could have beenundertaken." See Defendant's Brief in Support of Post-Trial Motions at11. Defense counsel moved to dismiss the indictment based uponoutrageous government conduct and the withholding of exculpatoryinformation. The court denied this motion.

In light of the foregoing three instances of the prosecutor's improperconduct in this trial, particularly the line of questioning that elicitedthe prejudicial testimony by Toni Marquardt, which will be discussed infurther detail below, the court concludes that the cumulative effect ofthe prosecutor's misconduct undoubtedly weighs in favor of Schneiderreceiving anew trial. See Young, 470 U.S. at 11 (stating that the determination ofwhether a prosecutor's behavior constituted prejudicial error must bemade in the context of the whole trial). This court is mindful thatprosecutors are to be zealous advocates, however, prosecutors are alsoheld to a higher standard since their paramount duty in every case is toseek justice, win or lose. See Berger, 295 U.S. at 88 ("The UnitedStates is the representative not of an ordinary party to a controversy,but of a sovereignty whose obligation to govern impartially is ascompelling as its obligation to govern all; and whose interest,therefore, in a criminal prosecution is not that it shall win a case, butthat justice shall be done."). The Sixth Circuit Court of Appealsrecognized the difficult role prosecutors play in criminal prosecutions,explaining:

The determination of whether a prosecutor's behavior constituted prejudicial error must be made in the context of the whole trial. Young, 470 U.S. at 11, 105 S.Ct. 1038. This must be done because the line between vigorous advocacy and the denial of a fair trial is a fine line. Prosecutors face the difficult task of walking this fine line while playing a dichotomy of roles. They must be zealous advocates and enforcers of the law while, at the same time, acting in a manner that ensures a fair and just trial. See United States v. Reliford, 58 F.3d 247, 251 (6th Cir. 1995).

United States v. Francis, 170 F.3d 546, 552-53 (6th Cir. 1999). Here,the prosecutor repeatedly failed in a prosecutor's duty to "refrain fromimproper methods," see Berger, 295 U.S. at 88 ("It is much his [theprosecutor's] duty to refrain from improper methods calculated to producea wrongful conviction as it is to use every legitimate means to bringabout a just one."), and when these incidents of prosecutorialimpropriety are viewed together, the court concludes that they are soprejudicial that the cumulative effect of the misconduct weighs in favorof granting a new trial. See United States v. Cruz-Padilla, 227 F.3d 1064,1069 n. 8 (8th Cir. 2000) ("If a prosecutor's remarks are so prejudicialthat they deny the defendant a fair trial, then those remarks must, ipsofacto, affect a substantial right of the defendant to a fair trial")(citing United States v. Freisinger, 937 F.2d 383, 387 (8th Cir. 1991)).

The strength of the properly admitted evidence. The second factorconsidered when assessing the prejudicial impact of the prosecutor'scomment is the strength of the evidence against Schneider. The courtconcludes that, while there was sufficient evidence presented at trial tosupport the jury's guilty verdict, this evidence was not so strong as toovercome the improper comment made by the prosecutor, especially in lightof the other instances of imprudent conduct by the prosecutor. Thegovernment's case against Schneider relied exclusively on testimony fromco-conspirators of questionable credibility who never directly observedSchneider deliver any drugs to Heiden. Heiden was the only witness thatprovided direct evidence of Schneider's involvement in the drugconspiracy, and significantly Heiden admitted to committing perjurybefore the federal grand jury in this case.

While the prosecution's case was strong, yet not overwhelming, it wasmet virtually blow by blow with a strong and zealous defense. Thedefendant testified at length, was a strong and forceful witness, and wasbarely cross-examined by the government. Also, this court was veryimpressed with defense counsel's closing argument, finding it to be themost effective closing argument that the undersigned has ever seen eitheras a practicing attorney, a magistrate judge and now a district courtjudge. Schneider's attorney effectivelyattacked every shred of evidence upon which the government relied,presenting it in an entirely different light than the government.Therefore, although the evidence against Schneider was considerable, itwas not overwhelming, and coupled with a very strong defense and defensecounsel's forceful closing argument, the court concludes that Schneiderhas satisfied this second factor. See Boyle v. Million, 201 F.3d 711,717-18 (6th Cir. 2000) (reversing for prosecutorial misconduct eventhough the evidence against the defendant was strong); United States v.Francis, 170 F.3d 546, 552 (6th Cir. 1999) (same).

The curative actions taken by the trial court. The court issued thefollowing "Supplemental Instruction" in response to the government'simproper statement:

During the government's rebuttal closing argument, Assistant United States Attorney [] suggested that the defense could have used polygraph tests for the defense witnesses. This was highly improper and legally wrong, for the following reasons: First, because of the presumption of innocence, Mr. Schneider has no burden to prove his innocence, for the law never imposes upon a defendant in a criminal case the burden of duty of producing any evidence; second, the results of polygraph tests are not admissible in federal court, under ordinary circumstances. However, defense counsel's reference to polygraph tests of the government witnesses was proper. This is so, because the plea agreements those witnesses signed gave the United States Attorney's Office and the FBI the right to obtain such tests. Therefore, the situation of the government witnesses is completely different from that of defense witnesses, because the defense never has plea agreements with its witnesses. Because [the prosecutor's] remark was highly improper, you are instructed to completely disregard it.

See Docket #159. Although this curative instruction was issued to thejury, sua sponte, the court recognizes that it was not given until nearlytwo days after the jury heard the prosecutor's improper comment. This isso, because the closing arguments and rebuttal argument took place onSaturday9, and the curative instruction was not given until thatfollowing Monday morning when the jury returned to the courthouse todeliberate. Thus, the prosecutor's improper comment remained with thejurors, without the curative instruction, for a significant period oftime. Moreover, although the court recognizes that curative instructionsare looked upon favorably by the appellate courts in curing prosecutorialmisconduct that occurs during trial, see United States v. True,179 F.3d 1087, 1090 (8th Cir. 1999) (prosecutor's comment regardingdefendant's failure to subpoena potential witness, when defendant had infact done so but witness failed to testify, did not prejudice defendantbecause comment was made in rebuttal to defense counsel's argument andthe court offered cautionary instruction that addressed the impropercomment); United States v. Shareef, 190 F.3d 71, 78 (2d. Cir. 1999) (anymisconduct committed by prosecutor did not prejudice the defendant orwarrant a new trial given, inter alia, the trial court's promptadmonishments), and that jurors are presumed to follow the court'sinstructions, see Jones v. United States, 527 U.S. 373, 393 (1999)(stating that the jurors are presumed to have followed the districtcourt's instructions) (citations omitted);see also United States v. Paul, 217 F.3d 989, 997 (8th Cir. 2000)(stating jury is presumed to follow all instructions) (citing Jones),this court has grave reservations, given the circumstances in this case,that the curative instruction dispelled the undue prejudice that stemmedfrom the prosecutor's improper remark, particularly because theprosecutor's comment clearly mislead the jury. See Boyle v. Million,201 F.3d 711, 717-18 (6th Cir. 2000) (prosecutor's repeated incidents ofmisconduct were reversible error warranting habeas corpus reliefbecause, despite relatively strong evidence against defendant, statementswere obviously intended to mislead the jury and prejudice defendant, andimproprieties infected all aspects of trial). Schneider testified foressentially an entire day on direct examination, however, when it cametime for the prosecutor to cross-examine him, the prosecutor only asked afew innocuous questions. At no time did the prosecutor attempt to impeachSchneider or vigorously cross-examine him while he was on the witnessstand. Yet in the rebuttal closing argument, the prosecutor obtained thesame effect of impeachment by commenting on the defendant's failure totake a polygraph. Indeed, in a rather perverse way, the prosecutor'simproper comment could well have bolstered a belief in the jurors thatthe prosecutor did not vigorously cross-examine Schneider because theprosecutor knew he was lying and his failure to take a polygraph was the"proof in the pudding." Had the prosecutor vigorously cross-examinedSchneider, the court is of the opinion that the prosecutor's commentwould not have been as prejudicial as the court considers it to be absentany vigorous cross-examination, because the jury would have been in aposition to weigh Schneider's testimony and assess his credibility againstthe prosecutor's comment regarding Schneider's failure to take apolygraph examination. However, because the prosecutor's comment was madeabsent any vigorous cross-examination, the court concludes that theprejudice that resulted cannot be overcome even taking into account thepractical application of the curative instruction this court issued to thejury. As this court noted to the parties, and highlighted by Schneiderin his brief, telling the jury not to think about the white elephant inthe courtroom does nothing but make sure that every juror is thinkingabout the white elephant. Consequently, the court finds that,individually, the prosecutor's statement about the defendant's failure totake a polygraph test, as well as the statement about the defendant'switnesses' failure to take a polygraph test, made during the rebuttalclosing argument was so improper and prejudicial that it deprivedSchneider of a fair trial. The court also concludes that theprosecutor's statement during the rebuttal closing argument, coupled withthe other three instances of prosecutorial improprieties that permeatedthis trial, especially the questioning of Toni Marquardt, also deprivedSchneider of a fair trial. Consequently, the court concludes thatSchneider is entitled to a new trial. See United States v. Longie,984 F.2d 955, 960 (8th Cir. 1993) (explaining that the trial judge, notan appellate court examining a cold record, could best weigh possibleerrors against whole record to determine whether a new trial iswarranted).

b. Marquardt's testimony

In its brief, the government argues that Marquardt's testimony wasmerely offered as an explanation of her shaky demeanor on the witnessstand. The government further contends that there was no implication orsuggestion in this case that Schneider was involved or responsible forthe incident involving Marquardt, and it was not an improper or egregiousattack on the defendant's character or credibility.

The court strongly disagrees with the government. This is so, becausethe sole purpose for eliciting such testimony from Marquardt directlysuggested that the defendant was involved with the intimidation of awitness. Why else would the defendant's sister's boyfriend attempt torun Marquardt off the road on the day she is scheduled to testify againstSchneider? Upon hearing Marquardt's testimony, that point wascrystalized for the jury, and for the government to argue otherwise ringshollow with this court. If the prosecutor only wanted to explainMarquardt's nervous demeanor to the jury, there are myriad ways in whichthe prosecutor could have helped Marquardt convey to the jury that shewas nervous without implicating the defendant or his family. Forexample, the prosecutor could have directed Marquardt to state generallythat she was almost in an accident while on the way to testify thatmorning, or that some person, without naming names, "flipped her off" andalmost ran her off the road, etc. In fact, in reviewing the Realtimetranscript, although Marquardt did testify that the individual whoattempted to run her off the road was Brian Truitt, it was theprosecutor's next question asking "[w]ho is he?" that the jury becameaware of his familial ties to Schneider.10 The court finds that inlight of this question there is no doubt that the prosecutor desired toinform the jury that it was someone with close ties to Schneider whoattempted to run Marquardt off the road. The court notes that evenbefore the prosecutor began this line of inquiry, Marquardt had testifiedthat she suffered from anxiety and, as a result, took several forms ofmedication. Marquardt's anxiety alone could have accounted for hernervous demeanor while on the witness stand, thus obviating the need toeven talk about the incident while driving to court. Moreover, this typeof a "Perry Mason" moment, replete with the elements of surprise andprejudice, is precisely the type of matter that should be taken up withthe court outside the presence of the jury. Indeed, this court requiresthe attorneys to meet one-half hour before the trial begins to go overmatters such as this that arise during a trial.

Undaunted, the government attempts to distinguish those line of EighthCircuit cases that hold for the proposition that improper questioning ofa witness may warrant a new trial. Specifically, in United States v.Beeks, 224 F.3d 741 (8th Cir. 2000), the government attempts todistinguish that case from this case, because the line of questioning inBeeks directly attacked the credibility of a non-testifying defendant. Incontrast, the government asserts that based on Marquardt's testimonythere was no implication or suggestion that Schneider was involved orresponsible for the incident involving Marquardt, and further that hertestimony was not an improper attack on Schneider's character orcredibility. The government also distinguishes this case from UnitedStates v. Monteleone, 77 F.3d 1086 (8th Cir. 1996) on the basis that thequestioning in Monteleone focused directly on the defendant's credibilityand character, which the government contends was not the case here.The court, however, disagrees. Although Marquardt did not directlyattack Schneider's character or credibility, her testimony undoubtedlyput Schneider in a far different, and worse light than he had been priorto her testimony. At a minimum, her testimony suggested that Schneider'sfamily members wanted to intimidate Marquardt from testifying because ofSchneider's guilt, and at a maximum, her testimony suggested thatSchneider recruited a family member to intimidate Marquardt fromtestifying. Either way the prosecutor's question, which elicitedMarquardt's response, was improper and prejudicial. While the court isdumbfounded as to why a seasoned prosecutor would elicit such testimonythat is so patently irrelevant and prejudicial, especially withoutinforming the court of such a matter beforehand, this incident, alone, isnot sufficient to warrant a new trial. However, this incident, coupledwith the other instances of the prosecutor's improprieties that occurredduring the trial, require the court to act affirmatively in order toprevent prosecutor's from employing similar improper tactics withimpunity. As Judge Jerome Frank explained:

This court has several times used vigorous language in denouncing government counsel for such conduct as that of the [prosecutor] here. But, each time, it has said that, nevertheless, it would not reverse. Such an attitude of helpless piety is, I think, undesirable. It means actual condonation of counsel's alleged offense, coupled with verbal disapprobation. If we continue to do nothing practical to prevent such conduct, we should cease to disapprove it. For otherwise it will be as if we declared in effect, `Government attorneys, without fear of reversal, may say just about what they please in addressing juries, for our rules on the subject are pretend-rules. If prosecutors win verdicts as a result of "disapproved" remarks, we will not deprive them of their victories; we will merely go through the form of expressing displeasure. The deprecatory words we use in our opinions on such occasions are purely ceremonial.' Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking. The practice of this court-recalling the bitter tear shed by the Walrus as he ate the oysters-breeds a deplorably cynical attitude towards the judiciary.

United States v. Antonelli Fireworks Co., 155 F.2d 631, 661 (2d. Cir.)(Frank J., dissenting), cert. denied, 329 U.S. 742, (1946) (footnoteomitted). As explained in the foregoing, the court concludes that theprosecutorial misconduct that permeated this trial demands more than the"ritualistic verbal spanking."

3. Weight of the evidence

Because the court has granted Schneider a new trial based onprosecutorial misconduct, the court need not and will not engage in aweight of the evidence analysis here.

III. CONCLUSION

The court concludes that based upon its review of the evidence, andviewing the evidence in the light most favorable to the government, areasonable jury could have found Schneider knowingly and voluntarilyparticipated in an agreement to combine, conspire, and agree with otherpersons to commit the following two separate offenses: (1) distributionof a mixture or substance containing a detectable amount ofmethamphetamine; and (2) distribution of a mixture or substancecontaining a detectable amount of cocaine. Consequently, the court deniesSchneider's motion for judgment of acquittal. However, the courtconcludes that the statementmade by the prosecutor during the rebuttal closing argument, alone, aswell as the cumulative effect of the other three instances of imprudentconduct on the part of the prosecutor, so infected the trial withunfairness as to make the resulting conviction a denial of due process.Consequently, the verdict in this case is set aside and Schneider's motionfor new trial is granted.

IT IS SO ORDERED.

1. United States v. Antonelli Fireworks Co., 155 F.2d 631, 659 (2d.Cir.) (Frank J., dissenting), cert. denied, 329 U.S. 742, (1946).

2. The government also seeks leave of court to file a consolidatedmemorandum in support of its resistance to defendant's post-trialmotions. For good cause established, the court grants the government'srequest to file a consolidated memoranda in support of its resistance,which is Docket #193.

3. In Ortiz, this court noted that it had discussed in one of itsearlier cases, see Saborit, 967 F. Supp. at 1140-43, the existence of twoapparently inharmonious lines of Eighth Circuit authority regarding thestandard to be applied when considering a challenge to the sufficiency ofthe evidence to sustain a conviction. Ortiz, 40 F. Supp.2d at 1079 n. 1(citing Saborit and referring to United States v. Baker, 98 F.3d 330, 338(8th Cir. 1996), cert. denied, 520 U.S. 1179 (1997) ((observing that ifthe evidence reasonably supports two conflicting hypotheses — guiltand innocence — the reviewing court must not disturb the jury'sfinding) and United States v. Davis, 103 F.3d 660, 667 (8th Cir. 1996),cert. denied, 520 U.S. 1258 (1997) (holding that "`[w]here thegovernment's evidence is equally strong to infer innocence of the crimecharged as it is to infer guilt, the verdict must be one of not guilty .. .'" quoting United States v. Kelton, 446 F.2d 669, 671 (8th Cir.1971)). Once again, the court observes as it did in Ortiz and Saborit,that during the last ten years, the Eighth Circuit Court of Appeals hasoverwhelmingly applied the Baker standard-that is, if the evidencereasonably supports two contrary theories, the reviewing court must notdisturb the jury's determination. id. (citing Baker, 98 F.3d at 338);see also United States v. Turner, 157 F.3d 552, 556 n. 5 (8th Cir. 1998)(noting apparent discrepancy and following Baker); United States v.Butler, 238 F.3d 1001, 1004 (8th Cir. 2001) (citing Turner). Regardlessof the standard applied in this case, the court concludes that the resultas to the defendant's motion for judgment of acquittal would be thesame.

4. On cross-examination, Marquardt conceded that she could not see allof Schneider through the peephole. Marquardt also testified that shebelieved the person whom she observed through the peephole was Schneiderbased in part on what she saw and based in part on Heiden's statementthat Schneider was his drug source. To a certain extent, therefore,Marquardt's identification of Schneider was questionable.

5. The language in the paragraphs concerning the use of a polygraph inthe plea agreements marked Government Exhibits 7 and 8 differ slightlyfrom the language contained in the other three plea agreements. This isso, because three of the cooperating witnesses signed plea agreements inthe Northern District of Iowa, and the other two cooperating witnessessigned plea agreements in the Southern District of Iowa. Although theessence of the paragraphs regarding the government's polygraphing of itswitnesses from both of the districts is virtually the same, for purposesof being thorough, the court finds that a full reprisal of the exactlanguage used in Exhibits 7 and 8 would be judicious:

Defendant agrees that, upon request by the government, he will voluntarily submit to a polygraph examiner of the government's choice. In the event that he is called upon by the government to submit to a polygraph examination and his performance in the examination suggests a conscious intent to deceive, mislead or lie with respect to his assets, he will be afforded an opportunity to review and explain the deceptive responses to the government. If the totality of the circumstances convinces the government that his financial statement is not complete and truthful, he will be so informed. The government is then not limited to forfeiture set forth in this plea, but any and all forfeiture remedies available.

See Government's Exhibit 7 at ¶ 19, 8 at ¶ 18.

6. In its memorandum, the government acknowledges that it didn'tobject to this line of questioning, expressly stating "The court shouldfinally note that the polygraph theme was chosen by the defense, not thegovernment, and in hindsight (which is always 20/20), should have beenthe subject of a government objection." See Memorandum in Support ofGovernment's Resistance to Defendant's Post-Trial Motions for Judgment ofAcquittal and New Trial at 15 n. 2. The government also cites to UnitedStates v. Zaccaria, 240 F.3d 75, 80-81 (1st Cir. 2001), representing thatthe circuit court upheld the district court's exclusion of testimonyregarding non-administration of polygraphs since the proposed inquiry was"wholly irrelevant, potentially confusing, and unfairly prejudicial."Id. The Zaccaria case, however, is distinguishable from this case,because it was the government through the written plea agreements, whoput into evidence the issue regarding polygraph testing. Indeed, inZaccaria, there was no mention of written plea agreements containing aparagraph obligating a cooperating witness to submit to a polygraph testif requested to do so by the government that were part of the evidentiaryrecord.

7. Schneider also contends that the prosecutor made the comment withthe intent to goad defense counsel into moving for a mistrial and alsowith the intent to prevent a likely acquittal. In fact, after theprosecutor made the comment, defense counsel moved for an intentionalmistrial. The court is mindful that the Double Jeopardy Clause protectsa defendant against governmental actions intended to provoke mistrialrequests. See United States v. Ivory, 29 F.3d 1307, 1310 (8th Cir. 1994)(stating that "a defendant may invoke the double jeopardy bar to preventretrial if the first trial ended in a mistrial as a result ofprosecutorial or judicial conduct intentionally designed to provoke thedefendant's motion for a mistrial") (citing Oregon v. Kennedy,456 U.S. 667, 673-76 (1982); see also United States v. Martin,561 F.2d 135, 139 (8th Cir. 1977). Although the court finds that theprosecutor engaged in prosecutorial misconduct here, the court does notfind that the prosecutor engaged in "prosecutorial overreaching."Martin, 561 F.2d at 139. This is so, because in order for Schneider todemonstrate "prosecutorial overreaching" and thus be protected by theDouble Jeopardy Clause, Schneider must show that the prosecutor'smisconduct was "motivated by bad faith or undertaken to harass orprejudice" the defendant. Id.; see also United States v. King, 590 F.2d 253,256 (8th Cir. 1978), cert. denied, 440 U.S. 973 (1979) (explaining thatwhere "prosecutorial overreaching" is present the interests protected bythe Double Jeopardy Clause outweigh society's interest in conducting asecond trial ending in acquittal or conviction") (citations omitted). Thecourt concludes that because there is no evidence that the prosecutor'sconduct in this case was either "motivated by bad faith or undertaken toharass or prejudice" Schneider, Schneider's motion for intentionalmistrial is denied.

8. Brady v. Maryland, 373 U.S. 83 (1963). The Eighth Circuit Court ofAppeals has explained that Brady is not violated by a delay in disclosingevidence so long as the evidence is disclosed during trial. See UnitedStates v. Gonzales, 90 F.3d 1363, 1368 (8th Cir. 1996); see also UnitedStates v. Boykin, 986 F.2d 270, 276 n. 6 (8th Cir.) cert. denied,510 U.S. 888 (1993). Because the government did disclose the informationrelating to Heiden's perjured testimony during the trial, this courtruled that there was no Brady violation.

9. In order to accommodate this court's trial calendar, it was decidedthat the closing argument portion of the trial would be held onSaturday.

10. After Toni Marquardt testified that she was nearly run off theroad and flipped off on her way to court that morning by someindividual, the prosecutor asked the following deliberate questions:

Q. Who was driving that vehicle or who was in thatvehicle?

A. Brian Truitt

Q. Who is he?

A. He is the defendant's sister's boyfriend.

From this deliberate line of inquiry, the court finds that the federalprosecutor clearly wanted the jury to know not only the reason whyMarquardt seemed nervous, but also who was responsible for running heroff the road.

Case Summary:
To generate a summary for U.S. v. SCHNEIDER click here.
Back to top