United States v. Rubio ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5421
EDWIN ROBERTO RUBIO,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CR-94-432-PJM)
Argued: March 7, 1996
Decided: June 17, 1996
Before WILKINSON, Chief Judge, and WILLIAMS and
MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Martin Gregory Bahl, FEDERAL PUBLIC DEFEND-
ER'S OFFICE, Baltimore, Maryland, for Appellant. Joseph Lee
Evans, Assistant United States Attorney, Baltimore, Maryland, for
Appellee. ON BRIEF: James K. Bredar, Federal Public Defender,
Denise C. Barrett, Assistant Federal Public Defender, Baltimore,
Maryland, for Appellant. Lynne A. Battaglia, United States Attorney,
Joseph H. Young, Assistant United States Attorney, Baltimore, Mary-
land, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Edwin Roberto Rubio appeals his convictions for aggravated sex-
ual abuse, see 18 U.S.C.A. § 2241(a) (West Supp. 1995), sexual abuse
of a minor, see 18 U.S.C.A § 2243(a) (West Supp. 1995), and assault
with intent to commit a felony, see 18 U.S.C.A. § 113(a) (West Supp.
1995), for which he is serving concurrent sentences of 135 months
imprisonment. He seeks a new trial, contending that: (1) the district
court erred in excluding evidence allegedly exonerating him by show-
ing that a Government witness may have committed the offenses; (2)
the district court erred in giving a flight instruction to the jury; and
(3) the Government's alleged vouching for a witness during its clos-
ing argument deprived Rubio of a fair trial. Finding no error, we
affirm the convictions.
I.
The charges against Rubio stemmed from evidence that he
assaulted and attempted to rape a fifteen-year-old girl, Lilian Silva,
alongside the Baltimore-Washington Parkway in Washington, D.C.1
On the evening of the assault, Silva asked Juan Robles for a ride from
a nightclub in Virginia to her home in Maryland. Rubio and another
passenger known only as "Oscar" were in the car with Robles. Over
the course of several hours, Robles, Rubio, Oscar, and Silva drove
aimlessly around metropolitan Washington, D.C., while Silva begged
to be taken home. Eventually, Robles pulled to the side of the Park-
way, and the three men dragged Silva out of the car. Rubio then
punched her in the face, pushed her to the ground, and attempted to
rape her. Robles and Oscar drove away and, after the assault, Rubio
_________________________________________________________________
1 The Baltimore-Washington Parkway is located within the special
maritime jurisdiction of the United States. See 18 U.S.C.A. § 7(3) (West
1969).
2
fled into the woods. Silva flagged down a motorist who took her
home. Approximately two months later, the United States Park Police
obtained a warrant for Rubio's arrest, but were unable to locate him.
A Park Police investigator eventually learned that Rubio had moved
to Dallas, Texas, and coordinated his capture.
A grand jury thereafter indicted Rubio on charges of aggravated
sexual abuse, sexual abuse of a minor, and assault with intent to com-
mit a felony. At Rubio's subsequent trial, the Government's case
rested heavily on the testimony of Robles and Silva. In his defense,
Rubio argued that this was a case of mistaken identity, asserting that
it was Robles who raped Silva and that Silva mistook Robles for
Rubio because she was intoxicated when the assault took place.
To advance this theory, Rubio sought to introduce evidence of two
prior incidents involving Robles: his juvenile adjudication for fornica-
tion with a minor approximately five years earlier (the juvenile inci-
dent) and his suspected involvement in a rape that took place in
Arlington, Virginia, three months before Silva was assaulted (the rape
incident). On the Government's motion in limine, the district court
excluded substantive evidence regarding the two incidents. Recogniz-
ing, however, that Robles would be a "key witness" in the Govern-
ment's prosecution of Rubio (J.A. at 20), the court permitted Rubio
to question Robles's character for truthfulness and bias on the basis
of the two incidents without delving into the details underlying them.
Pursuant to this ruling, the Government read into the record during
its direct examination of Robles the first of two stipulations: "The par-
ties stipulate and agree that the following fact is true, and you can
regard this agreed fact as true: Juan Robles has a prior adjudication
of juvenile delinquency for sexual relations with a 13 year old minor
when he was 15 in Arlington County, Virginia." (J.A. at 46.) The dis-
trict court then delivered a limiting instruction to the jury:
"[E]vidence with respect to [Robles's] prior adjudication of juvenile
delinquency is being received only for the issue of Mr. Robles's char-
acter for truthfulness. That is the only purpose for which the court is
allowing such evidence to be received." (J.A. at 47.) During his sub-
sequent cross-examination of Robles, Rubio's counsel asked Robles
about his age and the girl's age when the juvenile incident occurred.
3
Next, Rubio's counsel read a second stipulation into the record
regarding the rape incident: "Juan Robles is presently a suspect in an
investigation involving an attempted rape in Arlington County, Vir-
ginia." (J.A. at 51-52.) A limiting instruction from the court also fol-
lowed this stipulation:
That evidence has not been offered to show that Mr. Robles
is actually guilty of or committed some other crime, nor has
it be[en] offered or received in evidence to show that he
acted in conformity with that allegation in the contexts of
this case. It has been received only for its possible bearing
on Mr. Robles's bias, that is, . . . for whatever bearing it
may have on Mr. Robles's desire to [curry] favor with the
prosecution in this case.
(J.A. at 52.)
During his direct examination, Robles testified that he encountered
Rubio shortly before Rubio moved to Dallas and told Rubio that
police were looking for him. A lead investigator for the Park Police
corroborated Robles's account, testifying that Robles previously had
told police and prosecutors that the conversation occurred. This testi-
mony was later commented upon by the Assistant United States
Attorney (AUSA) during closing arguments. The AUSA remarked
that Robles was asked about the conversation on direct examination
because the AUSA knew that Robles previously had reported the con-
versation with Rubio.
Following closing arguments, the district court's jury charge
included a flight instruction based on Rubio's move from Washing-
ton, D.C., to Dallas after the assault. The district court instructed the
jury that "the flight of a defendant after he knows he is to be accused
of a crime may tend to prove that the defendant believed that he was
guilty." (J.A. at 122.)
The jury convicted Rubio of all three counts, and he now appeals
his convictions.
II.
Rubio seeks a new trial, urging the Court first to find that substan-
tive evidence of Robles's past sexual misconduct was admissible
4
under the Federal Rules of Evidence and that its exclusion deprived
him of his right to present a complete defense under the Fifth and
Sixth Amendments of the Constitution. Second, Rubio contends that
the district court erred in delivering a flight instruction to the jury
because it impermissibly permitted the jury to infer Rubio's guilt
from the fact that he moved to Texas after the assault on Silva
occurred. Third, Rubio contends that he deserves a new trial because
the AUSA committed misconduct that deprived Rubio of due process
of law. According to Rubio, the AUSA improperly inferred in closing
rebuttal argument that the Government had extrarecord knowledge
about the alleged conversation that occurred between Robles and
Rubio shortly before Rubio moved to Texas. After examining each of
Rubio's contentions in turn, we affirm his convictions.
A.
On the Government's motion in limine to exclude evidence regard-
ing the juvenile and rape incidents, the district court ruled that
Rubio's claim that the evidence showed a common scheme or plan
under Rule 404(b) of the Federal Rules of Evidence was patently
without merit.2 The court therefore barred Rubio from presenting
extrinsic evidence regarding the incidents during his direct examina-
tion of witnesses. Moreover, while permitting Rubio to cross-examine
Robles about the incidents, the district court also ruled that Rubio
could not question Robles about specific details regarding the inci-
dents in order to prevent a mini-trial about the issues and an undue
waste of time under Rule 403.3
_________________________________________________________________
2 Rule 404(b) of the Federal Rules of Evidence provides that:
Evidence of other crimes, wrongs, or acts is not admissible to
prove the character of a person in order to show action in confor-
mity therewith. It may, however, be admissible for other pur-
poses, such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident
....
3 Rule 403 of the Federal Rules of Evidence provides that:
Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair preju-
dice, confusion of the issues, or misleading the jury, or by con-
siderations of undue delay, waste of time, or needless
presentation of cumulative evidence.
5
Rubio first argues that evidence regarding the juvenile and rape
incidents was relevant and admissible under Rule 404(b). Before the
district court, Rubio argued that the evidence qualified for admission
under Rule 404(b) because it was "proof of a common scheme or plan
on Robles's part to attack young women." (J.A. at 20 n.3.) On appeal,
Rubio contends that the juvenile and rape incidents demonstrated
Robles's intent, plan, and lack of mistake when he allegedly assaulted
Silva. Rubio also claims that the Due Process Clause of the Fifth
Amendment and the Compulsory Process Clause of the Sixth Amend-
ment guarantee his fundamental right to call witnesses and present
any evidence that would raise doubts about his guilt. We conclude
that the district court's exclusion of the evidence was neither an abuse
of discretion under the evidentiary rules nor an infringement of
Rubio's constitutional rights.
1.
We review the district court's exclusion of evidence under the Fed-
eral Rules of Evidence for an abuse of discretion. See United States
v. Francisco, 35 F.3d 116, 118 (4th Cir. 1994) (per curiam), cert.
denied, 115 S. Ct. 950 (1995). We will not intervene in a trial court's
"appraisal of the probative and prejudicial value of evidence" absent
extraordinary circumstances. United States v. Morison, 844 F.2d
1057, 1078 (4th Cir.), cert. denied, 488 U.S. 908 (1988). Thus, unless
the district court's evidentiary rulings were "`arbitrary or irrational,'"
we shall not reverse Rubio's convictions. See United States v.
Powers, 59 F.3d 1460, 1464 (4th Cir. 1995) (quoting United States
v. Haney, 914 F.2d 602, 607 (4th Cir. 1990)), cert. denied, 116 S. Ct.
784 (1996).
In attempting to introduce Rule 404(b) evidence against Robles,
Rubio invokes a "rarely-used variant of Rule 404(b), known as
`reverse 404(b).'" United States v. Stevens, 935 F.2d 1380, 1401-02
(3d Cir. 1991) (footnote omitted). Whereas we frequently confront
defense challenges to the Government's use of Rule 404(b) evidence
to incriminate the accused, we have not previously ruled on an
accused's attempt to present Rule 404(b) evidence to exonerate him-
self. The defensive use of Rule 404(b) may be "`most important when
[the accused] alleges that he is a victim of mistaken identification,'"
as Rubio alleges here. Stevens, 935 F.2d at 1402 (quoting 2 Wigmore,
6
Wigmore on Evidence § 304, at 252 (J. Chadbourn rev. ed. 1979)
(emphasis omitted)). We need not decide today, however, whether to
join other circuits in recognizing a defendant's right to produce
reverse 404(b) evidence because the evidence that Rubio sought to
introduce was inadmissible under Rule 404(b).
Whether offered by the Government or the accused, Rule 404(b)
evidence is admissible only if it is "(1) relevant to an issue other than
character, (2) necessary, and (3) reliable." United States v. Rawle, 845
F.2d 1244, 1247 (4th Cir. 1988) (footnotes omitted). To be relevant,
the evidence "must be sufficiently related to the charged offense." Id.
at 1247, n.3. Reverse 404(b) evidence is sufficiently related to the
offense only if "`it tends, alone or with other evidence, to negate [the
accused's] guilt of the crime charged against him.'" Stevens, 935 F.2d
at 1404 (quoting State v. Williams, 518 A.2d 234, 238 (N.J. Super.
1986)).
Not only must an accused demonstrate that the reverse 404(b) evi-
dence is probative of his innocence, he also must show that Rule 403
considerations do not substantially outweigh the probative value of
the evidence. See id. at 1405 ("[A] defendant must demonstrate that
the `reverse 404(b)' evidence has a tendency to negate his guilt, and
that it passes the Rule 403 balancing test"). For example, in Rawle we
noted that "[e]ven if the evidence is admissible under Rule 404(b), its
probative value must be weighed against the danger of undue preju-
dice aroused by the evidence." Rawle, 845 F.2d at 1247. Of course,
in the context of reverse 404(b) evidence, "prejudice to the defendant
is not a factor." Stevens, 935 F.2d at 1404. A trial court nevertheless
must examine other Rule 403 considerations such as the dangers of
confusing or misleading the jury, undue delay, waste of time, or need-
less presentation of cumulative evidence. See Fed. R. Evid. 403. If it
finds these considerations substantially outweigh the probative value
of the evidence, the trial court has the discretion to exclude the
reverse 404(b) evidence. See, e.g., United States v. McLernon, 746
F.2d 1098, 1117 (6th Cir. 1984) (affirming district court's exclusion
of taped conversations regarding past acts of Government informant
proffered under Rule 404(b) because the tapes contained "little proba-
tive value").
7
We conclude that the district court did not abuse its discretion in
excluding the reverse 404(b) evidence that Rubio proffered. First, the
district court properly determined that the evidence was inadmissible
under Rule 404(b) because it was not sufficiently related to the
charged offenses. Evidence regarding the juvenile and rape incidents
did not tend to negate Rubio's guilt of the charged offenses because
they were dissimilar to Silva's assault, and because the evidence shed
no light on Silva's ability to identify her assailant. Rubio's weak offer
of proof regarding the incidents did not suggest that the same assail-
ant may have perpetrated the extrinsic offenses and Silva's assault.4
The evidence established only that the juvenile incident took place
five years earlier when Robles was fifteen years old, and it involved
a thirteen-year-old girl. Moreover, while the rape incident took place
shortly before Silva's assault, Robles was no more than a suspect in
the rape incident, and Rubio produced no evidence connecting the
rapist in that attack to Silva's assailant.
Furthermore, Rubio could not establish that Robles's past acts had
any bearing on Silva's ability to identify her assailant. This is not case
where other victims of similar crimes previously misidentified their
assailant. See Stevens, 935 F.2d at 1402 (discussing cases in which
reverse Rule 404(b) evidence was admissible because the defendant
previously had been falsely mistaken for the actual perpetrator of the
crimes). To the contrary, the reverse 404(b) evidence did not cast
doubt on Silva's ability to distinguish between Robles and Rubio. She
had been with both men for several hours before the assault occurred
and later described their appearances in detail to a police sketch artist.
Rubio's reverse 404(b) evidence therefore was not relevant to the
charged offense; consequently, it was not probative of his innocence
and was properly excluded. See Rawle, 845 F.2d at 1247.
Second, even if the evidence was sufficiently related to the charged
offenses, the dangers of undue delay and jury confusion substantially
outweighed whatever probative value the reverse 404(b) evidence
may have held. The evidence thus was also inadmissible under Rule
403. While the district court permitted Rubio to cross-examine Robles
_________________________________________________________________
4 The record does not reflect that Rubio proffered any specific substan-
tive evidence, either documentary or testimonial, regarding the extrinsic
acts.
8
briefly about his five-year-old adjudication for juvenile delinquency,
the court found that "any further inquiry into this matter will be need-
less and an undue waste of time." (J.A. at 20.) The district court like-
wise restricted the scope of Rubio's cross-examination of Robles
regarding the rape incident in order "to prevent a mini-trial on the
issue." (J.A. at 22.) Thus, although marginally useful for impeach-
ment purposes, the introduction of a five-year-old juvenile offense
and Robles's suspected involvement in an unrelated rape as substan-
tive evidence in Rubio's trial would have aroused significant Rule
403 considerations.
Under similar circumstances, the Eighth Circuit recently affirmed
the exclusion of reverse 404(b) evidence proffered by a defendant
accused of arson under Rule 403. In United States v. Flaherty, 76
F.3d 967, 973 (8th Cir. 1996), the district court excluded evidence
that a third party had set another fire shortly before the fire underlying
the arson charge against Flaherty, reasoning that the probative value
of the proffered evidence was "slight," the defense made a "weak
offer of proof," no evidence connected the third party to the charged
offense, and the fires were dissimilar in origin. Thus, the reverse
404(b) evidence regarding a third party's possible culpability was
inadmissible under Rule 403.
Likewise, Rubio's offer of proof was weak, he had no evidence
connecting Robles to the charged offense other than his presence at
the scene, and the extrinsic offenses were dissimilar to the charged
offense. Balanced against the low probative value of this evidence
were the dual risks of confusing the jury by introducing evidence
regarding the details of the juvenile and rape incidents and of unduly
delaying the trial while Rubio presented this evidence through the
direct examination of witnesses. Because these Rule 403 consider-
ations substantially outweighed the probative value of the reverse
404(b) evidence, we must conclude that the district court did not
abuse its discretion in excluding this evidence. Because the district
court's evidentiary rulings were neither arbitrary nor irrational, we
affirm. See Powers, 59 F.3d at 1464.
2.
Rubio also posits that his right to present a complete defense under
the Fifth and Sixth Amendments comprises his right to present the
9
reverse 404(b) evidence because it could have raised doubts in jurors'
minds about his guilt. The exclusion of exculpatory evidence may
deprive an accused of due process, see Chambers v. Mississippi, 410
U.S. 284, 302-03 (1973); therefore an accused's"right to call wit-
nesses may sometimes trump state and federal evidentiary rules and
statutes." United States v. Abbas, 74 F.3d 506, 510 (4th Cir. 1996),
cert. denied, No. 95-8821, 1996 WL 226834 (U.S. May 28, 1996).
The reverse 404(b) evidence Rubio proffered, however, was not
exculpatory, and thus there is no constitutional basis for overriding
the evidentiary rules under which the district court excluded the evi-
dence.
There is no constitutional right to introduce evidence that is unre-
lated to the charged offense. See United States v. Saunders, 943 F.2d
388, 391 (4th Cir. 1991), cert. denied, 502 U.S. 1105 (1992). In
Saunders, a defendant accused of rape sought to introduce evidence
of the victim's prior sexual relationship with a third party on the the-
ory that this evidence showed that she was a prostitute who consented
to sexual intercourse with the defendant. Id. at 391-92. Noting that an
accused has a right only "to present admissible evidence that is proba-
tive of his innocence," we soundly rejected Saunder's contention that
he had a constitutional right to admit evidence about the victim's past
sexual acts. Id. at 391. In Saunders, the rape victim's past sexual con-
duct was not probative of the question of her consent to the rape for
which Saunders was on trial. Id. at 392.
Likewise, we have concluded that the reverse 404(b) evidence that
Rubio sought to admit held little if any probative value with respect
to the charges against him. It neither showed "the government's fail-
ure to prove the offense[s] charged," id. at 391, nor established
Rubio's mistaken-identity defense. Therefore, excluding the evidence
did not deprive Rubio of his constitutional right to present a complete
defense. To the contrary, Rubio had every opportunity to present a
complete defense, and he in fact introduced other evidence from
which a jury could infer that Silva mistook Robles for Rubio. See
United States v. Perkins, 937 F.2d 1397, 1401 (4th Cir. 1991) (noting
that exclusion of evidence under evidentiary rules did not deprive
defendant of the opportunity to present other evidence critical to his
defense and thus did not transform the exclusion into constitutional
error). Moreover, Rubio cross-examined Robles about the two inci-
10
dents, greatly ameliorating any unfairness in the limitation on his abil-
ity to call witnesses about the incidents. See United States v. Hinkson,
632 F.2d 382, 386 (4th Cir. 1980) (affirming district court's exclusion
of direct testimony regarding confession by third party and finding no
constitutional violation in part because defendant had the "freedom to
cross-examine" the third party about his alleged oral confession). The
district court's evidentiary rulings thus did not infringe Rubio's exer-
cise of his constitutional right to defend himself fully.
B.
Rubio next seeks to reverse his convictions on the ground that there
was insufficient factual support to justify the district court's flight
instruction to the jury. Over defense objection, the district court
instructed the jury that "the flight of a defendant after he knows he
is to be accused of a crime may tend to prove that the defendant
believed that he was guilty." (J.A. at 122.) The district court further
instructed the jury that flight does not always reflect feelings of guilt
and that the jury had to determine the significance, if any, of Rubio's
moving from Washington, D.C., to Texas. Rubio claims this instruc-
tion was in error. In view of the facts that he moved to Dallas at least
two months after the assault on Silva took place and was unaware
police were looking for him when he moved, he asserts, any inference
of guilt from his move to Dallas was impermissible.
A jury may draw a weak inference of guilt from circumstantial evi-
dence that the accused was aware that law enforcement authorities
were searching for him and that he fled from authorities out of con-
sciousness of his guilt. See United States v. Beahm, 664 F.2d 414,
419-20 (4th Cir. 1981). If the Government relies on a defendant's
flight as evidence of his guilt, it must establish an adequate evidenti-
ary foundation to support that inference. See United States v. Hawkes,
753 F.2d 355, 358-59 (4th Cir. 1985). "The requisite factual predicate
ensures that the evidence is probative in a legal sense and protects the
defendant against the possibility of the jury drawing unsupported
inferences from otherwise innocuous behavior." United States v.
Amuso, 21 F.3d 1251, 1260 (2d Cir.), cert. denied, 115 S. Ct. 326(1994).
Reviewing the district court's decision to deliver a flight instruc-
tion for abuse of discretion, see United States v. Russell, 971 F.2d
111098, 1107 (4th Cir. 1992), cert. denied, 506 U.S. 1066 (1993), we
find no error. Although flight evidence as proof of guilt may be of
dubious probative value, see Wong Sun v. United States, 371 U.S.
471, 483 n.10 (1963), we find that the record here supports the infer-
ences necessary to warrant the instruction given. The evidence
adduced by the Government at trial showed that Rubio relocated to
Dallas only after he learned that the Park Police obtained a warrant
for his arrest in connection with the assault on Silva. Robles testified
that he informed Rubio in mid-August 1994 that the police were look-
ing for him. Based on Robles's cooperation with authorities and
Silva's positive identification of Rubio as her assailant, police
obtained an arrest warrant and attempted to execute it on August 18th
in Rubio's last known neighborhood. Several hours after the search,
Rubio arranged to move to Texas. An acquaintance, Louis Hernandez,
testified that Rubio borrowed a telephone to call his brother in Dallas,
Texas, at 9:22 p.m. on August 18th, as confirmed by telephone
records. Finally, the Government produced an identification card
dated August 25th that Rubio obtained in Dallas.
In view of this evidence connecting Rubio's relocation to his
knowledge that police were looking for him, we cannot say that the
district court abused its discretion in giving the flight instruction.
Moreover, the instruction was moderate in tone, tempering the possi-
bility that the jury drew any improper inferences of Rubio's guilt. We
therefore reject Rubio's challenge to his convictions on the basis of
the flight instruction.
C.
Finally, Rubio contends that he deserves a new trial because the
prosecuting AUSA made improper remarks during closing argument
regarding the conversation between Robles and Rubio shortly before
Rubio moved to Texas. The conversation was an important factor
supporting the district court's decision to deliver a flight instruction,
and the parties disputed whether it actually took place.
As part of its case, the Government questioned Robles about the
conversation and later elicited the testimony of the Park Police's lead
investigator to the effect that Robles previously had described that
conversation to prosecutors long before trial. Finally, during closing
12
arguments, the AUSA made the closing statements that Rubio chal-
lenges here in reference to the AUSA's direct examination of Robles:
Well, you know for a fact that in meetings with the lawyers
that Mr. Robles had said that, described that conversation,
and you know why you know that for a fact is because when
Robles was on the stand [the AUSA] said stayed[sic] to
him: Now directing your attention to, approximately, two
weeks after you were arrested did you have an opportunity
at that time to have a conversation with Mr. Rubio? Do you
think [the AUSA] was just guessing? I mean he knew what
the answer was going to be because Robles had said it
before. That is why the question was asked.
(J.A. at 120.) Although Rubio failed to object to these statements at
trial, he now claims the statements constituted an improper attempt to
corroborate the testimony of the Government's witnesses with the
personal, extrarecord knowledge of the AUSA.
Because Rubio did not object to the statements, we review their
submission to the jury for plain error. See United States v. Olano, 507
U.S. 725, 732 (1993). Reviewing for plain error in the context of
alleged prosecutorial misconduct, we "review the entire proceedings
to see if the misconduct undermined the trial's fundamental fairness."
United States v. Adam, 70 F.3d 776, 780 (4th Cir. 1995). Read in con-
text, the remarks that Rubio challenges here were not improper;
hence, we find no error in their admission.
A prosecutor's vouching for the credibility of Government wit-
nesses poses the unacceptable risk that the jury may infer that the
prosecutor has "special knowledge of the truth." United States v.
Beaty, 722 F.2d 1090, 1097 (3d Cir. 1983). This risk arises because
"the prosecutor's opinion carries with it the imprimatur of the Gov-
ernment and may induce the jury to trust the Government's judgment
rather than its own view of the evidence." United States v. Young, 470
U.S. 1, 18-19 (1985). Although he or she may not intimate special
knowledge about the case, a prosecutor, like defense counsel, may
support closing arguments before the jury with reasonable inferences
flowing from the evidence in the record.
13
We find that the AUSA here drew precisely such inferences from
the record evidence concerning the conversation between Robles and
Rubio. In cross-examining the Park Police's lead investigator,
Rubio's counsel proceeded on the theory that Robles never told the
Park Police or prosecutors about his alleged conversation with Rubio
in mid-August and that Robles first raised the conversation during his
testimony at Rubio's trial. The investigator, however, testified, "[Ro-
bles] told me [about the conversation during an] . . . interview with
the United States Attorneys. I didn't do a report for that interview."
(J.A. at 108.) Thus, the record before the jury contained testimony
that Robles previously had told prosecutors about his conversation
with Rubio, a prior consistent statement corroborating Robles's testi-
mony at trial. The AUSA drew directly on this evidence in the record.
In light of the investigator's testimony, the jury had no reason to
believe that the AUSA was relying on special knowledge about
whether Robles had made a prior consistent statement to the police
about the conversation with Rubio. Under these circumstances, the
remarks did not constitute plain error. Moreover, even if the remarks
were error, we would not reverse Rubio's convictions. The district
court's jury instructions cured any error by specifically admonishing
the jury not to consider as evidence the attorneys' questions to wit-
nesses or their arguments to the jury. We therefore reject Rubio's
appeal on this ground.
III.
Because we find no error in either the evidentiary rulings or flight
instruction of the district court or the Government's closing argu-
ments, we affirm.
AFFIRMED
14