was not testifying to facts based on first hand knowledge. The jurors were in a position to judge the accuracy of the Prosecutor's statement against their independent recollection of Agent Turner's testimony. The jurors were not asked to take the Prosecutor's word concerning facts not in evidence. Thus, we conclude that an error of Constitutional dimension, within the meaning of the above cited cases, did not occur here.
Having determined that the error was non-constitutional, we must now examine whether "it is highly probable that the error did not contribute, to the judgment." Zehrbach, 47 F.3d at 1265 (citing Toto, 529 F.2d at 284). "'High probability' requires that the court possess a 'sure conviction that the error did not prejudice' the defendant." Zehrbach, 47 F.3d at 1265 (citing Jannotti, 729 F.2d at 219-20). In determining prejudice, the court views the prosecutor's remarks in the context of the trial as a whole and considers: (i) the scope of the objectionable comments and their relationship to the entire proceeding, (ii) the ameliorative effect of any curative instructions given, and (iii) the strength of the evidence supporting the defendant's conviction. Zehrbach, 47 F.3d at 1265.
First, the scope of the Prosecutor's misrepresentation and its relationship to the entire proceeding weighs against finding prejudice. The misrepresentation was not broad and sweeping, and it did not involve a false assertion concerning the existence of a large amount of directly inculpatory evidence. Rather, it went to a relatively narrow factual issue concerning the believability of the Defense's theory that Hadrick falsely confessed.
Second, although a curative instruction was not given at the time of the Prosecutor's misrepresentation of Agent Turner's testimony, other ameliorative factors existed. During its opening remarks, and as part of the jury charge, the Court instructed the jury that statements and arguments of counsel are not evidence and that the jury's recollection of the evidence controls.
Moreover, Defense counsel, during her closing argument, drew the jury's attention to the Prosecutor's misrepresentation of Agent Turner's testimony and asked the jury to carefully recall that testimony.
Finally, the "evidence clearly supported the Government's burden of proving" Defendant's guilt. See Zehrbach, 47 F.3d at 1267. Most notably, Defendant admitted making and possessing the shank. Defendant gave a detailed, accurate description of the shank and its construction. Corrections officers testified that Defendant had access to the equipment necessary to make it. Six of Defendant's finger prints were obtained from the adhesive side of the tape on the handle of the shank. The fingerprint evidence was not discredited in any meaningful sense.
Thus, we conclude that it is highly probable that the Prosecutor's misrepresentation of Agent Turner's testimony did not did not contribute to the judgment and thus did not "so infect the trial with unfairness as to make the resulting conviction a denial of due process."
Darden, 477 U.S. at 181.
B. Witnesses Vouching
The Defense also contends that Prosecutor improperly vouched for the credibility of its fingerprint expert. Specifically, the Defense objects to the Prosecutor's comments concerning the Defense's failure to cross examine the expert concerning points of comparison, and the Prosecutor's comment that the witness was "convinced it was his opinion" and that he "is not biased."
Since these comments were not objected to at trial, we will only reviewed them for plain error. United States v. Bethancourt, 65 F.3d 1074, 1079 (3d Cir. 1995), cert. denied, 516 U.S. 1153, 116 S. Ct. 1032, 134 L. Ed. 2d 109 (1996). "In order to be plain error, an error must not only be 'obvious,' it must also "have affected the outcome of the District Court proceeding." Bethancourt, 65 F.3d at 1079-80 (citing United States v. Olano, 507 U.S. 725, 734, 123 L. Ed. 2d 508, 113 S. Ct. 1770 (1993); United States v. Pungitore, 910 F.2d 1084, 1125-26 (3d Cir. 1990), cert. denied, 500 U.S. 915, 114 L. Ed. 2d 98, 111 S. Ct. 2009 (1991)). The prosecutor's comments must be so serious as to "'undermine the fundamental fairness of the trial and contribute to a miscarriage of justice.'" 65 F.3d at 1080 ( citing Pungitore, 910 F.2d at 1126).
The case to which Defendant cites, U.S. v. Molina-Guevara, 96 F.3d 698 (3d Cir. 1996), does not support the proposition that the Prosecutor here improperly vouched for the Government's witness. In Molina-Guevara, the prosecutor: (i) implied that a person who had not testified at trial could corroborate the testimony one of the government's witnesses, (ii) told the jury that it was "insulting" and "ridiculous" to think that the United States would put on a witness who would lie, and (iii) assured the jury that its witness "did not lie to you." Molina-Guevara, 96 F.3d at 704. Defense counsel made appropriate objections and moved for a mistrial, but the applications were denied. Id. at 703. On appeal, Third Circuit held that the "combined effect [of the prosecutors conduct] was to suggest that the prosecutor knew more than the jury heard and that it should be willing to trust the government. Id. at 704-05.
Molina-Guevara is distinguishable because defense counsel objected at trial. Because defense counsel objected, the Court in Molina-Guevara could only affirm if it was "highly probable that the error did not contribute to the judgment." Id. at 704. Here, Defense counsel did not object at trial. We may affirm as long as the error did not "'undermine the fundamental fairness of the trial and contribute to a miscarriage of justice.'" Bethancourt, 65 F.3d at 1080. Defense counsel in this case was articulate and competent, and zealously represented her client's interests in every facet of the case. "Yet, at the time of the Prosecutor's remarks, she apparently heard noting in the Government's response warranting any objection." Id. Additionally, as indicated above, the evidence supporting a conviction was strong. We can not view the Prosecutor's comments as contributing to a miscarriage of justice.
C. False Testimony
Finally, Defendant argues that the Prosecutor obtained his conviction with false testimony. Defendant's argument is without merit because it relies on excerpts of Agent Turner's testimony taken out of context.
Defendant cites to a portion of Agent Turner's testimony wherein he stated that Hadrick's cell mate, Spain, had not been "involved in informing the government of any information" in this case. (Testimony of William Turner 22). Defendant argues that this testimony is false because Agent Turner had reported in a FBI 302 that, when he questioned Spain after the shank was discovered, Spain told him the shank belonged to Hadrick.
Defendant's allegation of false testimony relies on a misunderstanding of the Prosecutor's use of term "informing." When taken in context, it is obvious that the Prosecutor used the term to mean 'voluntarily supplied information' concerning the case prior to discovery of the shank and not to mean 'responded' to an interrogation in a manner that implicated Hadrick.' In fact, the Prosecutor clarified her use of term through the following redirect examination:
Q: Agent Turner, I want to make it clear, when I asked you the question concerning the information, that with regard to the time, I meant an informant prior to the incident, is that your testimony?