United States Court of Appeals For the First Circuit

No. 20-2187

UNITED STATES,

Appellee,

v.

EDWARD CANTY, III, a/k/a Demo,

Defendant, Appellant.

No. 21-1327

UNITED STATES,

Appellee,

v.

MELQUAN JORDAN, a/k/a Squirrel,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Jon D. Levy, U.S. District Judge]

Before

Lynch, Selya, and Kayatta, Circuit Judges. , Luke Rosseel for appellant Edward Canty, III. Julia Pamela Heit for appellant Melquan Jordan. Benjamin M. Block, Assistant U.S. Attorney, with whom Darcie N. McElwee, U.S. Attorney, and Julia M. Lipez, Assistant U.S. Attorney, were on brief, for appellee.

June 23, 2022 LYNCH, Circuit Judge. Edward Canty, III and Melquan

Jordan distributed, from their individual independent supplies,

heroin to users in Portland, Maine -- Canty for around four months

in 2016 and Jordan from the summer of 2015 to early 2017. They

were prosecuted federally, not on distribution charges, but on

charges that they had conspired with each other and several other

individuals to distribute and possess with intent to distribute

both heroin and cocaine base,1

(a)(1), (b)(1)(B),

846. Canty and Jordan maintain that they were independent drug

dealers who did not conspire with one another.

At trial, the prosecutor made four types of improper

comments at different points during the opening statement, at

closing, and at rebuttal. Each built upon the others and

introduced improper themes. The government has conceded that each

of these comments was improper, though the defendants did not

object at trial to the statements. At the close of the

government's case, the defendants moved under Rule 29 for judgments

of acquittal on the basis of insufficiency of the evidence of

conspiracy. See Fed. R. Crim. P. 29(a). The trial judge took the

acquittal motions under advisement, eventually denying the motions

after trial. The jury returned a verdict of guilty against both

Canty and Jordan.

1 Cocaine base is also known as crack cocaine, or crack.

- 3 - Five months after the jury convictions, the defendants

moved for a new trial based on the improper comments by the

prosecutor. Applying plain error review, the trial judge held

that the first three prongs of the plain error standard were met.

He denied the motion, however, on the fourth prong, finding that

there was no miscarriage of justice because the evidence of guilt

was "overwhelming." United States v. Jordan, No. 18-cr-00143,

, at *15-16 (D. Me. Oct. 9, 2020).

Of the many issues raised by each of the two defendants

in these consolidated appeals, we reach only the appeals of the

motions for acquittal on the basis of insufficiency of the evidence

and the denial of the motions for a new trial. As to the

insufficiency claim, we disagree with the defendants. We also

conclude that the district court's denial of the new trial motions

was plain error and vacate and remand for proceedings consistent

with this opinion.

I.

In March 2019, a superseding indictment issued against

six individuals, including Canty, Jordan, Akeem Cruz, and Lamale

Lawson, for conspiracy to distribute and to possess with intent to

distribute controlled substances. All defendants other than Canty

and Jordan pleaded guilty. A second superseding indictment then

issued against Canty and Jordan for conspiracy to distribute and

to possess with intent to distribute heroin and cocaine base, with

- 4 - 100 grams or more of a mixture or substance containing heroin

involved in the conspiracy. The case proceeded to trial.

At trial, the government sought to prove that Canty and

Jordan had conspired with each other and with others to sell heroin

and crack cocaine from three separate locations, known as trap

houses, in the Portland, Maine area between the summer of 2015 and

February 2017. While Jordan was in the area for the entire period,

Canty was only present for around four months in 2016. The

government called eight witnesses in support of its case. One

witness who the prosecution anticipated would testify, Lamale

Lawson, exercised his Fifth Amendment right against self-

incrimination and did not provide testimony.

In the summer of 2015, Jordan was in Portland, Maine and

reconnected with old friends, siblings James Osborne and Jessica

Tweedie, telling Osborne that he wanted to "see what was going on

in the neighborhood," which Osborne took to mean he wanted to sell

drugs there. At the time, Osborne was using heroin heavily and

occasionally using crack cocaine. Osborne began recruiting

customers for Jordan to sell heroin to, and in return Jordan gave

Osborne heroin for his personal use.

Tweedie had a house in the Redbank housing complex at

that time. Tweedie would sometimes give Jordan and Osborne rides

to make drug sales, and sometimes would give Jordan rides to New

York to resupply his drug stores. Jordan eventually began staying

- 5 - at Redbank and had a sexual relationship with Tweedie. Tweedie

used crack but testified that she did not get it from Jordan, and

she did not use heroin from Jordan. Jordan would also package and

sell drugs at Redbank.

Akeem Cruz, a friend of Jordan's from New York, started

selling drugs at Redbank in 2016. Cruz stored his drugs at

Redbank. He and Jordan would sell at the same time from their

individual stashes, and they did not share customers. Lawson, who

was friends with Jordan, also occasionally sold drugs at Redbank,

though Tweedie told him not to.

In late 2015, Osborne needed heroin but Jordan was out

of town, so Jordan sent him to Lawson, and Osborne got heroin from

Lawson at an apartment on Sherman Street. Osborne continued to

get drugs from Lawson, thereafter at an apartment located on Oak

Street which was leased by a man named Lance Lombardi. Lombardi

had previously allowed multiple drug dealers to deal out of this

apartment, but eventually kicked them out. Osborne testified that

after the previous dealers were kicked out, Lawson was "one of the

dealers I brought in" to the Oak Street trap house. Osborne

testified that Jordan and Lawson came in together to take over Oak

Street and that he had been a part of a conversation with both of

them about taking it over. He also testified that Lawson dealt

from Oak Street first, then Jordan began dealing there as well a

few months later, after Lawson told Osborne to go pick up Jordan

- 6 - in Boston and bring him to Oak Street. Jordan and Lawson each

paid Lombardi in drugs to allow them to use his apartment to deal

from. Osborne recruited customers for Lawson and Jordan, and they

gave him drugs in exchange. When Lawson and Jordan were both at

the Oak Street apartment, they would take turns selling drugs to

customers Osborne recruited, from their separate stashes. Osborne

also answered the door to make sure that only people known to him

could get into the apartment. Jordan was also selling from Redbank

during this period.

Cruz did not deal from the Oak Street apartment, though

on one occasion he gave Lombardi drugs to sell there on Cruz's

behalf. Lombardi and Osborne, however, violated those

instructions and used the drugs Cruz gave Lombardi instead of

selling them.

In retaliation for this breach of instructions, Cruz and

Canty -- who by this time had arrived in Maine -- assaulted Osborne

at the Oak Street apartment; Canty held Osborne down while Cruz

hit and kicked him. A juror could infer that Cruz had recruited

Canty to assist him in the assault. Osborne testified that Lawson

had told Cruz and Canty that they could find Osborne at Oak Street.

After the assault, Canty began dealing drugs at Oak Street, around

the same time Jordan began dealing there. Lombardi was eventually

evicted from the apartment because of all of the foot traffic.

After Lombardi was evicted from Oak Street, Jordan began

- 7 - selling heroin out of Amy Santiago's Grant Street apartment.

Santiago was a customer with whom Jordan had a sexual relationship.

Santiago would run drugs for Jordan and allowed him to sell from

her apartment, and he gave her heroin in exchange. Lawson began

coming to the Grant Street apartment behind Jordan's back; when

Jordan found out Lawson had been there, he became angry. They

argued several times about Lawson's presence in the apartment, and

Santiago told Lawson to leave, but Lawson continued to come and

sell drugs at Grant Street.

Osborne and Canty also went to Grant Street when Jordan

was not there, and Canty told Santiago that he would give her

heroin in exchange for her making drug runs. In all, Santiago

testified that Canty came to Grant Street to sell heroin four or

five times. Santiago also testified that she went to Redbank, and

Tweedie told Santiago that she had heroin to sell from Canty.

Tweedie, however, testified that she never sold any drugs for

Canty, Cruz, or Lawson.

In late 2016, Canty began selling heroin at Redbank,

where Jordan had already been selling drugs. Canty and Jordan

used both the Redbank and Grant Street apartments during the same

time period. Osborne testified that during the time that Canty

was in Maine, Canty, Cruz, and Jordan all slept at Redbank.

Tweedie, however, testified that Canty was not staying at Redbank

and that Jordan slept there occasionally but stayed at Grant

- 8 - Street. For her part, Santiago testified that Lawson, Canty, and

Jordan stayed at Redbank.

A customer named Tanya Johnson testified at trial that

she had come from South Carolina to Maine in September 2016. A

friend of hers named Alicia took her to Grant Street to get heroin.2

When Johnson went to Grant Street at first, she would wait outside

and Osborne would bring what was supposed to be heroin to her,

which Johnson said was "sheetrock," i.e., not heroin or very low-

quality heroin. After this occurred a few times, Johnson got

Jordan's phone number and began purchasing heroin from him inside

Grant Street. At Grant Street, Johnson would buy either from

Jordan or from the woman who lived there whose name she did not

know, presumably Santiago. Johnson began giving Jordan rides

around Portland, sometimes to drug transactions, in exchange for

heroin. On one occasion, someone called Johnson from Jordan's

phone number and asked her to give someone a ride from Grant

Street. When she pulled up, Canty3 came out, and she gave him a

ride to Redbank in exchange for heroin. Johnson then began buying

2 Johnson later suggested that Alicia had procured the drugs and had told her that she had gotten them from Grant Street, rather than taking her there.

3 Johnson referred to Canty as "Debo," unlike the other witnesses, who called him "Demo."

- 9 - heroin from Tweedie4 at Redbank. Johnson testified that Tweedie

indicated that Canty was her supplier, and on one occasion she

purchased heroin from Tweedie in Canty's presence.

In December 2016, Johnson was pulled over and law

enforcement found heroin residue in a bag on the floorboard of her

vehicle. She agreed to become a confidential informant and to

perform controlled drug buys. Johnson testified that she did three

controlled buys: first, she called Jordan and met him at Grant

Street and bought heroin from him; second, she called Jordan again

and he sent someone else whom Johnson did not know, and the

substance they delivered was not heroin; and third, she called

Tweedie and got heroin from her at Redbank, where they were alone

in the house. Johnson testified that she did not call Canty to

make a controlled buy. Earlier in the same line of questioning,

however, Johnson had testified "I think the first transaction was

with [Jordan] and the second was with [Canty]."

Johnson's testimony about the controlled buys conflicted

directly on several points with the testimony of Jonathan Stearns,

a South Portland Police Detective assigned to the Maine Drug

Enforcement Agency. Stearns testified that Johnson had made four,

not three, controlled purchases, and none of them were from Jordan.

4 Johnson did not know Tweedie's name, but identified the woman she was referring to from a photo of Tweedie.

- 10 - He testified that he was surprised to learn Johnson had testified

that she had made controlled buys involving Jordan. The four buys

that Stearns described were: Johnson met with Tweedie on December

19, 2016 on Valley Street to purchase heroin, though Tweedie

actually gave her gabapentin; Johnson purchased heroin on December

20 from Tweedie in a restaurant parking lot; on December 22,

Johnson made a controlled purchase of heroin from Tweedie at

Redbank; and on December 22, Johnson called Canty's number to

arrange a purchase and was instructed to go to a location where

she met with Santiago, who gave her heroin. Recall Johnson had

testified that she did not call Canty for any of the controlled

buys.

On December 22, 2016, Maine Drug Enforcement Agency

agents raided Redbank, seizing heroin and crack cocaine and

arresting Tweedie. Tweedie testified that she had not placed drugs

in the bedroom where law enforcement found them. She testified

that earlier that day Canty had been at the house carrying a black

plastic bag, and he had told her he was "grabbing his stuff to

leave" and asked to use the bathroom, which was upstairs. FBI

Special Agent Patrick Clancy, who was doing surveillance that day

at Redbank, testified that he saw Canty entering and exiting

Redbank with a paper bag.

Osborne, Santiago, and Canty were at Grant Street when

Tweedie's sister called to say that Tweedie had been arrested.

- 11 - Canty gave Santiago money, crack, and heroin that he had on his

person, and Osborne took Canty to an apartment on Sherman Street.

Canty left town.

After Canty left Maine, Jordan and Lawson continued to

sell heroin at Grant Street following the raid at Redbank. Some

time after the raid at Redbank, a Facebook video was taken that

showed Osborne, Jordan, and Lawson at Grant Street. In the video,

which the government showed to the jury, Jordan is seen assisting

Osborne in putting a tourniquet on his arm, and Osborne appears to

be already under the influence of heroin. Osborne testified at

trial that the tourniquet was "[s]o we [could] get a vein" to

inject heroin. Canty was not present in the video. The government

stipulated that the video took place after Canty had left Maine

and was no longer part of the alleged conspiracy, and the court

instructed the jury to consider the video evidence only in

connection with the government's case against Jordan, not Canty.

Law enforcement raided Grant Street in early 2017, at which point

Jordan and Lawson stopped selling heroin in Maine.

At the close of the government's case, Jordan and Canty

both made motions for judgment of acquittal under Rule 29, arguing

that the government had failed to prove a conspiracy existed. The

court took the motions under advisement and ordered briefing on

them. The prosecutor made a number of improper arguments in her

opening, closing, and rebuttal arguments, which we detail in

- 12 - section II, infra, and neither of the defendants objected to them.

After deliberating for about four hours, the jury

rendered its verdict on October 24, 2019, finding Jordan and Canty

guilty of conspiracy to distribute and to possess with intent to

distribute cocaine base and heroin. The jury found only Jordan

was guilty of conduct that involved 100 or more grams of a mixture

or substance containing a detectable amount of heroin.

On February 14, 2020, several months after the trial was

over, the district court heard argument on the defendants' motions

for acquittal. The judge stated that the issues presented by the

motions for acquittal were "particularly difficult and close."

The "crux of the issue," he explained, was whether the government

had proved the single conspiracy alleged in the indictment as

opposed to multiple conspiracies, or no conspiracy at all. The

standard of review the district court applied was "whether any

rational factfinder could have found that the evidence presented

at trial, together with all reasonable inferences viewed in the

light most favorable to the [g]overnment," established the

elements of a conspiracy beyond a reasonable doubt.

The district court found that the first element of a

single overarching conspiracy, a common purpose, was satisfied

because a reasonable juror could conclude that the defendants had

a common purpose in maintaining shared locations (albeit they were

apartments rented by others) to allow for the maintenance of a

- 13 - steady stream of customers and to keep a "relatively safe place to

sell drugs where their detection was minimized." The trial judge

likened the dealers to keepers of stalls at a flea market, selling

separate goods at a shared location for everyone's mutual benefit.

The second element, interdependence, the trial judge called a

"close call," but he ultimately ruled that it was met because the

dealers relied on one another for their shared trap houses to

function. He concluded that the final element, overlap, was met

because each dealer relied on Osborne to some degree to act as a

recruiter, and Tweedie and Johnson as drivers. In all, the

district court concluded, there was sufficient evidence under the

Rule 29(a) standard for a juror to conclude that there was a

meeting of the minds regarding a shared objective. The district

court denied the motions for acquittal.

II.

The defendants appeal the district court's denial of

their motions for acquittal. For purposes of reviewing the

district court's denial of the defendants' motions for acquittal,

we view the evidence in the light most favorable to the verdict.

See United States v. Merlino,

(1st Cir. 2010).

For substantially the reasons explained in section III, infra, we

find that there was sufficient evidence of a conspiracy for a jury

to convict the defendants (although we find that, due to the

prosecutor's improper statements, a new trial is warranted). These

- 14 - claims therefore fail. Because we reverse the district court's

denial of the defendants' motions for a new trial, we need not

address the defendants' various claims as to other errors at trial.

For purposes of reviewing the denial of the new trial

motion based on prosecutorial misconduct, we take a balanced view

of the evidence. See United States v. Rodríguez-De Jesús,

(1st Cir. 2000). At trial, the prosecution made a

number of improper arguments and comments, which led to a post-

trial motion for a new trial. Though the defendants had not

contemporaneously objected at trial, in March 2020, Canty filed a

motion for a new trial, which Jordan joined. See Fed. R. Crim. P.

33(a). They argued that they had been prejudiced by these improper

statements and that they met all four prongs of plain error review.

On October 9, 2020, the district court ruled on the defendants'

motion for a new trial.

Conducting plain error review, the district court found

that the prosecutor engaged in four improper arguments. It thus

found that there was error, the error was clear, and the error

prejudiced the defendants' substantial rights, so the first three

prongs of plain error review were satisfied. However, the district

court held that the fourth prong of plain error review -- whether

the errors seriously impaired the fairness, integrity, or public

reputation of judicial proceedings -- was not met. The district

court stated that the evidence against Jordan of an overarching

- 15 - conspiracy was "overwhelming," and the evidence against Canty was

"ample," so there was "little doubt that the jury would have

convicted the Defendants" without the improper statements.

Jordan,

, at *15-16.

We set forth and consider the prosecutor's improper

statements.

1. Appeals to jury's emotions as conscience of the community

The prosecutor from the very start cast Canty and Jordan

as cruel and greedy outsiders who came to Maine to distribute

illegal drugs to suffering Mainers. She began her opening

statement to the jury by asserting that the defendants were not

members of the Maine community. Rather, the prosecutor told the

jury, the defendants were greedy New Yorkers who "came here" to

Maine to "make easy money" off the backs of Mainers struggling

with addiction. She said:

As long as greed is stronger than compassion, there will always be suffering. This case, ladies and gentlemen, is about the greed of a group of young men from the area of Brooklyn, New York, who came here to make easy money selling illegal drugs and the suffering of many Mainers whose addictions helped make those men money.

The prosecutor later drove home these points at the start

of her closing statement, reiterating that the defendants had come

to Maine from Brooklyn, New York in order to "exploit individuals

who are addicted to drugs that cause suffering, suffering inside

- 16 - their bodies." She referred to the testimony of the government's

witnesses about the effects of the drugs and "what suffering can

come from those drugs if they don't continue to use them,"

emphasizing again to the jury "the suffering of drug-addicted

individuals . . . in the greater Portland area."

The prosecutor took up the themes of exploitation and of

causing suffering once more in the rebuttal. There, she added

descriptions of what the defendants' go-betweens would go through

physically if they did not get drugs:

I suggest to you that this is ingenious model for drug trafficking . . . . You find someone who needs [heroin] because they will get physically sick. They will vomit; they will have diarrhea; they will get headaches; they will be physically miserable if they don't get that needle in their arm or they don't smoke that pipe.

Indeed, the prosecutor stated that the "common thread" through the

government's witnesses was "that they were exploited by these two

defendants . . . to take the very thing that made them so

vulnerable and take advantage and make money[.]"

"[I]t is improper to appeal to the 'jury's emotions and

role as the conscience of the community.'" United States v.

Avilés-Colón,

(1st Cir. 2008) (quoting United States

v. Martínez–Medina,

(1st Cir. 2002)). It is

also improper to stress harm to a particular community caused by

drug dealing. United States v. Machor,

(1st

- 17 - Cir. 1989) (finding improper prosecutor's statement that "[drugs]

are poisoning our community and our kids die because of this"

(alteration in original)). As the trial judge found, this set of

comments by the prosecutor was highly improper:

Here, the prosecutor's statements went beyond the Defendants' profit motive by ascribing a callousness to them based on, as the prosecutor argued, "the suffering of many Mainers whose addictions helped make those men money." The prosecutor's emphasis on the impact of drugs on "Maine," "many Mainers," and "the greater Portland area" improperly called on the jury to consider the impact of drugs on their community.

Jordan,

, at *9 (citations omitted).

2. Arguments for conviction on the basis that coconspirators were serving jail time

After defense counsel argued at closing that the

government's witnesses were unreliable for several reasons,

including because they testified in exchange for immunity, the

prosecutor argued on rebuttal:

[Three of the trap houses in the case] had renters in them whose places were taken over by these defendants and their [co]conspirators. The people who had those renting agreements did participate in this conspiracy, we allege. And they all went to jail. So we're here now to say it's [the defendants'] turn.

[The alleged coconspirators] went to jail. They didn't get a pass. They got immunity in this chair from their statements being used against them in the event the federal government decided to charge them, too. But they stood in that courthouse and they pled

- 18 - guilty and they went to jail. Jaden Brown went to jail for 15 months. Jessica Tweedie went to jail for seven months. And Amy Santiago went to jail for seven to nine months . . . . They didn't get a pass. Jessica Tweedie was in jail while this guy . . . Mr. Jordan, was trapping in Ms. Santiago's house, because they talked on the phone while Ms. Santiago and Mr. Osborne told you he was bagging up drugs at 11 Grant Street and welcoming customers all day long, while Jessica Tweedie is sitting in jail, we argue for Mr. Canty's drugs. None of those three women got a pass. They got protection for their statements being used against them here.

The prosecutor thus managed to convey at least the following:

(1) it was the defendants' "turn" to go to jail because other

coconspirators, including those who were addicted and had

purchased the heroin, had gone to jail; (2) these other

coconspirators who had gone to jail were mere renters of the

apartments while defendants, specifically Jordan, were using the

apartments as trap houses to package and sell drugs; and (3)

Jessica Tweedie, a drug user, was sitting in jail for Canty's

crimes.

The trial judge correctly found the prosecutor's

statements constituted an improper guilt-by-association argument.

While the government has some latitude in responding to arguments

made by defense counsel, see United States v. Foley,

(1st Cir. 2015), this rebuttal went beyond a fair response to

defense arguments. "A defendant is entitled to have the question

of his guilt determined by the evidence against him, not on whether

- 19 - a co-defendant or government witness has been convicted of the

same charge." United States v. Vázquez-Rivera,

, 484

(1st Cir. 2005) (quoting United States v. Dworken,

(1st Cir. 1988)); see also United States v. Landrón-Class,

(1st Cir. 2012) (finding improper an argument that

"suggest[ed] to the jury that, just as those individuals were held

responsible, now it is [defendant]'s turn"). The prosecutor's

argument also suggested to the jury that it was unfair that the

victims of the drug dealing, the addicts, had been jailed, while

their dealers were not. Further, the prosecutor argued that

Jessica Tweedie was in prison for Canty's crimes. As the trial

judge stated, the argument "improperly suggested to the jurors

that it was their duty to not only determine the Defendant[s']

guilt or innocence, but to also determine whether the Defendants

should go to jail." Jordan,

, at *5. We agree

with the trial court's characterization.

3. Vouching

The prosecutor made further improper statements on

rebuttal. The defense at closing had argued that, although the

indictment charged a conspiracy to distribute both cocaine base

and heroin by these defendants, the prosecution had made no effort

to introduce any evidence of cocaine base conspiracy by either

defendant. Canty's attorney also argued in closing that evidence

- 20 - collected by the police "didn't add a thing." The prosecutor then

argued in rebuttal:

And it depends on which drug we're talking about.

And I do want to address that really quickly, and I'll try to stay on topic here. But our job we take very seriously. It is to prove to you that there was a conspiracy. The conspiracy that these very hard-working agents after three years found existed involved crack cocaine and heroin. Some of the people involved in the conspiracy only dealt with heroin. They're sitting here before you. Some of them dealt with crack cocaine. And some of the people on this witness list who were conspirators or just addicts who came before you were going to talk about crack cocaine. The conspiracy involved both drugs. . . . But they don't both -- they don't have to have dealt with both drugs for you to find them guilty. You have to find that they joined a conspiracy . . . .

And with all due respect to [defense counsel], these agents did three years of work, and it is evident in the exhibits that you saw. Those grand jury transcripts they waved around were hundreds of pages long. We didn't just throw people up there that we met. . . .

So we spent three years carefully talking to those people. So to say there's been no law enforcement work is unfair, because this case has revealed that these agents spent time with people. They showed compassion for people who had problems, they spent time with them, and they made sure that there was corroborative evidence for their stories.

These arguments, the district court held, went beyond permissible

rebuttal and were improper vouching for the credibility of the

- 21 - prosecuting agents and their witnesses. Jordan,

,

at *7. We agree.

" A prosecutor improperly vouches for a witness when she

places the prestige of her office behind the government's case by,

say, imparting her personal belief in a witness's veracity or

implying that the jury should credit the prosecution's evidence

simply because the government can be trusted." Avilés-Colón,

(quoting United States v. Perez-Ruiz,

(1st Cir. 2003)). It "plainly cross[es] over into improper

vouching . . . when the prosecutor tells the jury that the

prosecutor takes personal responsibility or ownership of the case

and thus directly places the government's credibility at issue."

United States v. Vázquez-Larrauri,

(1st Cir.

2015).

Here, the prosecutor used "we" in describing what work

had been done to make this case. She emphasized that law

enforcement had put in three years of hard and serious work on the

case. She told the jury that "we spent three years carefully

talking to those people," that they "spent time with them," and

that law enforcement "made sure there was corroborative evidence

for their stories." She assured the jurors that "[w]e didn't just

throw people up there [on the witness stand] that we met." She

told the jury that law enforcement "showed compassion for people

who had problems." In total, these arguments conveyed to the

- 22 - jurors that the government witnesses in the case could be trusted

because of the hard work the police and the prosecution had put

into selecting and vetting them during the investigation. These

statements improperly "place[d] the government's credibility at

issue" by tying the witnesses' credibility to the hard work and

compassionate character of the police and prosecution. Vázquez-

Larrauri,

. That the prosecutor was responding to

arguments by the defense does not rescue this line of argument,

because her statements went well beyond contentions by the defense

that the government had not provided any evidence of the defendants

dealing cocaine base and that the police's evidence did not add

anything.

4. Improper argument from video

The prosecutor's final improper argument was improper as

to Canty. When commenting on the video showing Jordan helping

Osborne apply a tourniquet to his arm, the prosecutor

mischaracterized this piece of evidence. At the end of rebuttal,

referring to both defendants, she stated "they'd help you put a

tourniquet on your arm if it meant that you were going to get what

you needed so that you could go back out and make another deal."

It is improper for the prosecution to make a statement "unsupported

by any evidence." United States v. Azubike,

(1st

Cir. 2007). As the trial court found, this statement by the

prosecutor was not only unsupported by the evidence as to Canty,

- 23 - but also undermined the court's instruction to the jury to only

consider the video evidence as to Jordan and was therefore

improper. See Jordan,

, at *10.

III.

Our review of the denial of the motions for new trial is

for plain error because defense counsel did not contemporaneously

object to any of the prosecutor's comments. Vázquez-Larrauri,

. To show plain error, defendants must demonstrate

"(1) that an error occurred (2) which was clear or obvious and

which not only (3) affected the defendant's substantial rights,

but also (4) seriously impaired the fairness, integrity, or public

reputation of judicial proceedings." United States v. Solís-

Vásquez,

(1st Cir. 2021) (quoting United States v.

Mercado,

(1st Cir. 2015)), cert. denied,

(2022); see also Fed. R. Crim. P. 52(b).

In ruling on the new trial motion, the district court

correctly articulated the four-prong plain error standard. See

United States v. Brandao,

(D. Mass. 2006)

("[I]t is not unprecedented for a trial court to apply the plain

error standard to an objection raised for the first time in a post-

trial motion, because at that stage, the court 'performs something

of an appellate role.'" (quoting United States v. Washington,

, 426 n.7 (D. Conn. 2003))), aff'd,

- 24 - (1st Cir. 2008). It is efficient for district courts to correct

their own plain errors if necessary.

The district court, however, made two errors in

assessing the defendants' motions for a new trial on plain error

review. The first was in making inconsistent holdings that the

defendants were prejudiced by the improper statements on the third

prong of plain error review but that the strength of the evidence

overcame the effect of the misconduct on the fourth prong of plain

error review. The second error was its assessment that the

evidence the prosecution put forth of a single overarching

conspiracy was sufficiently strong to dispel concerns that the

prosecutor's improper arguments affected the convictions. We take

these errors in turn.

1. Inconsistency in the district court's findings as to the third and fourth prongs of plain error review

On the third prong of plain error review, the district

court concluded that the defendants were prejudiced by the improper

comments, but, on the fourth prong, the district court found that

the prosecution's evidence was so strong that the improper comments

did not affect the outcome of the trial. Jordan,

,

at *13, *16. These holdings cannot be reconciled. To understand

why they are inconsistent, it is necessary to first examine the

standards for the third and fourth prongs of plain error review,

- 25 - as well as the factors we consider in determining whether

prosecutorial misconduct requires a new trial.

The third prong of plain error review, that an error

affects a defendant's substantial rights, generally requires the

defendant to "show a reasonable probability that, but for the

error, the outcome of the proceeding would have been different."

Rosales-Mireles v. United States,

, 1904–05 (2018)

(internal quotation marks omitted) (quoting Molina-Martinez v.

United States,

(2016)). The district court found

that the prosecutor's remarks affected the defendants' substantial

rights, and the government does not defend on appeal on the basis

that the trial judge erred in finding that the third prong of plain

error had been met. As we outline in the next section, we agree

with the district court that the defendants' substantial rights

were affected by the prosecutor's comments because there is a

reasonable probability that the outcome of the trial would have

been different but for the comments.

Once the first three requirements of plain error have

been met, the Supreme Court has described the fourth prong as going

to the exercise of the appellate court's discretion. See Rosales-

Mireles,

. And though Rule 52(b) is permissive,

courts "should" correct plain errors affecting substantial rights

"if the error seriously affects the fairness, integrity[,] or

- 26 - public reputation of judicial proceedings."

(internal

quotations and citations omitted).

Whether or not the argument has been preserved, our cases

reviewing a denial of a motion for a new trial on the basis of

prosecutorial misconduct have considered the following non-

exclusive factors: "(1) the severity of the prosecutor's

misconduct, including whether it was deliberate or accidental;

(2) the context in which the misconduct occurred; (3) whether the

judge gave curative instructions and the likely effect of such

instructions; and (4) the strength of the evidence against the

defendant[ ]." Vázquez-Larrauri,

(alteration in

original) (quoting United States v. Kasenge,

(1st Cir. 2011)). These factors are considered to determine

"whether the prosecutor's misconduct so poisoned the well that the

trial's outcome was likely affected, thus warranting a new trial."

Azubike,

(internal quotation marks omitted) (quoting

United States v. Joyner,

(1st Cir. 1999)).

When reviewing a new trial motion based on prosecutorial

misconduct, the third prong of plain error review and the test for

whether prosecutorial misconduct warrants a new trial both ask

whether it is likely that the misconduct affected the trial's

outcome. The district court found that the defendants had

satisfied the third prong of plain error review by demonstrating

that the improper comments had prejudiced them, but then determined

- 27 - on the fourth prong of plain error review that the strength of the

evidence was sufficient to overcome the misconduct. This was an

error of law. The district court should have analyzed the effects

of the prosecution's comments only at the third step of plain error

review, rather than analyzing prejudice twice, at both the third

and fourth prongs of plain error review -- with inconsistent

results. Because the district court made these irreconcilable

findings, one must be incorrect.

2. The effect of the prosecution's improper comments

We next assess the prosecution's comments under the

third prong of plain error review. We conclude that the district

court was correct as to its ruling on the third prong of plain

error review, that the prosecutor's comments prejudiced the

defendants, but, contrary to the district court, we also conclude

that (applying the proper standard) the defendants meet the fourth

prong of plain error review. In making our determination as to

the third prong, we consider whether the defendants' substantial

rights were prejudiced, guided by the factors outlined above as to

whether prosecutorial misconduct warrants a new trial: severity,

context, curative instructions by the district court, and the

strength of the prosecution's evidence. See Vázquez-Larrauri,

.

- 28 - a. Severity

As to the first factor, the impropriety of the comments,

taken as a whole, was severe. None of these comments, standing in

isolation, was sufficiently reprehensible to warrant a new trial,

but their cumulative effect was, for reasons we explain. On this

record, we cannot say that the improper statements were accidental.

See Arrieta-Agressot v. United States,

(1st Cir.

1993) ("Almost any argument made in summation can be described as

deliberate[.]"). The prosecution began with improper themes in

the opening statement, built upon and exacerbated them at closing,

and then repeated and added to them in the rebuttal. Further, as

the government appellate lawyer, to his credit, conceded at oral

argument, this was a very experienced prosecutor.5 It is possible

that the government's case was not as strong as it anticipated it

would be because Lawson, a major player in the case, decided not

to testify at the last minute, so the prosecution may have felt

the need to compensate with appeals to the jury's emotions.

5 We take judicial notice of the prosecutor's experience. Press Release, Dep't of Justice (Oct. 8, 2021) (noting that the prosecutor became an Assistant United States Attorney in 2002). A court of appeals "may take judicial notice of facts which are 'capable of being determined by an assuredly accurate source.'" Pietrangelo v. Sununu,

, 106 n.1 (1st Cir. 2021) (quoting United States v. Hoyts Cinemas Corp.,

(1st Cir. 2004)); see also Fed. R. Evid. 201(b)(2).

- 29 - b. Context

As to the context, there were four improper arguments

spanning from the opening, through the closing, and in the

rebuttal. See Azubike,

("[P]rejudicial statements

made during closing argument 'militate in favor of reversal'

because they are 'the last words spoken to the jury by the trial

attorneys.'" (quoting United States v. Manning,

(1st Cir. 1994))); see also United States v. Torres-Colón,

(1st Cir. 2015) ("We view problematic statements during

rebuttal with particular scrutiny, because the government's

rebuttal argument offers the last word before the jury begins

deliberations."). The comments were not isolated. Cf. United

States v. Cruz-Rivera,

(1st Cir. 2021) (finding

reversal of conviction unwarranted where the prosecutor's "one

arguable misstatement was isolated"), petition for cert. docketed,

No. 21-7638 (U.S. Apr. 18, 2022). The improper vouching and

suggestion to the jury that it was the defendants' turn to go to

jail were not stray comments, but arguments built over a

considerable portion of her rebuttal. The emotional appeal to the

jury to be other than finders of fact as to guilt was extensive,

and was repeated at opening, closing, and at rebuttal.

c. Curative instructions

As to the curative instructions, because of defense

counsels' failure to object, there were no curative instructions

- 30 - directly on point. The government argues that the district court's

instructions were nevertheless sufficient to negate the impact of

improper argumentation. It first argues that the court's

generalized instructions -- instructing the jury not to be

influenced by prejudice, to decide the case solely on the evidence,

and that counsel's arguments are not evidence -- are sufficient.

"We have at times found the district court's standard instruction,

advising jurors that arguments of counsel are not evidence,

adequate to dispel any prejudice from improper remarks." United

States v. Ayala-García,

(1st Cir. 2009). However,

where the improper remarks are particularly severe or pervasive,

and go to issues central to the case, general instructions may not

be sufficient to neutralize them. See

at 21–22 (finding

curative instructions which did not explicitly call for the jury

to disregard improper statements insufficient to overcome the

misconduct at issue). Here, the district court's standard, general

instructions did not overcome the effect of the prosecutor's

improper statements. The trial judge cited Azubike for the

proposition that such standard instructions "may well be

insufficient." Jordan,

, at *14 (quoting Azubike,

). We agree.

Second, the government argues that the prosecutor's

improper attribution of the video to both defendants was cured

because the district court instructed, when the video was shown,

- 31 - that it should only be considered as to Jordan, and because the

district court reiterated in its final instructions that evidence

received for a limited purpose can only be considered for that

purpose. This argument would carry more weight if the statement

were merely an isolated comment, but it was not; the prosecutor's

comment that "they'd help you put a tourniquet on your arm" was

part of a larger theme throughout that the defendants were callous

and cruel. The prosecution attributed to Canty actions from a

video that depicted Jordan enabling Osborne's drug use by assisting

Osborne, clearly already under the influence of drugs, in putting

on a tourniquet in preparation to inject heroin. As is often said,

a picture is worth a thousand words. The prosecutor's association

of Canty with the actions in the video was not cured by

instructions that did not specifically address the improper

statement.

d. Strength of the evidence against the defendants

The trial court at different times gave different

evaluations of the strength of the government's evidence. We think

it is most significant that the trial court said the issue was

"particularly difficult and close" when considering the

defendants' motions for acquittal. The trial court's different

evaluation when it ruled on the new trial motions nearly a year

- 32 - after the jury verdict was rendered does not have the same

importance as its earlier assessment.

A criminal conspiracy exists where there is an

"agreement between two or more persons to accomplish an unlawful

purpose." United States v. Dellosantos,

(1st

Cir. 2011). "The agreement is the sine qua non of a conspiracy,

and this 'element is not supplied by mere knowledge of an illegal

activity . . . , let alone by mere association with other

conspirators or mere presence at the scene of the conspiratorial

deeds.'"

(alteration in original) (quoting United States v.

Zafiro,

(7th Cir. 1991)). The defendants contend

that the government's evidence did not establish the single

overarching conspiracy that was charged in the indictment, but

rather shows that Jordan and Canty had individual agreements with

various actors at different times. In determining whether a single

conspiracy exists, we look to three factors: "(1) the existence of

a common goal, (2) interdependence among participants, and

(3) overlap among the participants."

at 117 (quoting United

States v. Mangual-Santiago,

(1st Cir. 2009)).

i. Common goal

"The common goal factor is given 'wide breadth.'"

Mangual-Santiago,

(quoting United States v.

Sanchez-Badillo,

(1st Cir. 2008)). A goal of

selling drugs or furthering the distribution of drugs is sufficient

- 33 - to satisfy it.

Canty and Jordan do not contest that the

evidence is sufficient to establish a common purpose. They

challenge the evidence, however, as to interdependence and

overlap.

ii. Interdependence

"Interdependence exists where 'the activities of one

aspect of the scheme are necessary or advantageous to the success

of another aspect of the scheme.'" United States v. Rivera

Calderón,

, 89 (1st Cir. 2009) (quoting Mangual–

Santiago,

). Here, the evidence showed that Canty

and Jordan had separate suppliers, made trips to New York

independently to resupply, and made sales individually from the

same locations. The government emphasizes that the evidence showed

that Lawson, Jordan, Canty, and Cruz "operated cooperatively from

multiple trap houses in Portland and shared employees." While the

evidence could support a finding that Cruz, Canty, Jordan, and

Lawson all benefitted from selling from the same trap houses

because customers had a place they could reliably come for drugs,

the evidence adduced by the government lacks much of what we have

previously considered demonstrative of interdependence.

The government argues that this case is like United

States v. Negrón-Sostre,

(1st Cir. 2015). We

disagree. In that case, we found the elements for a conspiracy

- 34 - were met by evidence that the defendants had created a drug

"supermarket" of sorts.

. It was described as:

a highly-organized operation that ran 24/7 and provided seemingly all of the illicit substances its clientele might desire. Lookouts, much like store security, served to protect all owners from losses -- not from shoplifters, but from law enforcement. Runners supplied multiple sellers, and sellers simultaneously sold brands from several owners, much like warehouse operators and sales clerks. All of these workers were organized in strict twelve-hour shifts . . . . Not only did the owners cooperate by allowing their runners and sellers to work for different owners at the same time, but when necessary, they met to resolve a dispute that might have threatened the profitability of the enterprise.

. That is not this case. Here, there was no evidence

of set shifts, meetings, or rules of any kind that would evince

any agreement. While all of the dealers used Osborne to either

run drugs or recruit customers, they did not hire him jointly, and

each dealt with him on his own terms -- while Jordan did not mind

much when Osborne used the heroin he was supposed to sell, and

would give him heroin even when he did not recruit any customers,

Cruz got Canty to help him beat-up Osborne for using heroin that

was supposed to be sold.

The dealers did not share the same supplier and

resupplied separately in different ways: Canty drove his own car

to New York, while Jordan, who did not drive, would get a ride

with someone or take the bus, sometimes recruiting women to smuggle

- 35 - the drugs to Maine in a body cavity. They sold from individual

supplies, and Tanya Johnson testified that she preferred to buy

from Jordan or Canty rather than Lawson, because she thought

Lawson's product was inferior. There was no evidence that the

defendants met to set prices in order to maximize profits and to

discuss threats to their enterprise, that they used force to keep

other dealers away from the trap houses where they sold, that they

stored weapons together for security purposes, or that they had a

shared set of rules, all of which we have previously found to

demonstrate interdependence. See Rivera Calderón, 578 F.3d at 90;

see also United States v. Soto-Beníquez,

(1st

Cir. 2003).

There was evidence that the dealers sometimes sold from

the various trap houses at the same time, such as when Lawson and

Jordan took turns selling to customers at Oak Street. There was

also the testimony from Osborne that Lawson and Jordan had

discussed taking over Oak Street, although he also testified that

they began selling there months apart. Lawson, Cruz, Canty, and

Jordan all sold drugs at Redbank, though there was no evidence

that Cruz dealt drugs at either Grant Street or Oak Street (there

was evidence that on one occasion Cruz gave Lombardi drugs to

distribute at Oak Street). However, there was evidence that Jordan

was displeased when he found out that Lawson was dealing at Grant

Street and argued with him to leave. Even if we interpret the

- 36 - fact that Lawson did not leave as the government asks us to, as a

tacit acquiescence by Jordan to Lawson's presence at Grant Street,

it is poor evidence of a grand overarching conspiracy spanning

multiple trap houses for the same dealers apparently to happily

deal simultaneously at one location but only grudgingly at another.

Moreover, the evidence shows that at least the first time Canty

came to Grant Street, it was when Jordan was not present.

In United States v. Pressler, the Third Circuit found

that there was not sufficient evidence of a conspiracy where two

people lived together for several months, sold drugs from their

shared residence daily, and one would supply customers when the

other was unavailable to do so.

(3d Cir. 2001).

The present case is closer to Pressler than it is to Negrón-Sostre:

there is evidence that the defendants knew one another, they lived

together for a time, and they sometimes supplied the same

customers. But there is not the tight organizational structure,

the rigidly enforced code of conduct, or the pooling of resources

to the advantage of the entire group that we have found to be

indicative of interdependence in other cases. See Negrón-Sostre,

-10; Rivera Calderón, 578 F.3d at 89-90.

iii. Overlap

Overlap can be achieved by "the pervasive involvement of

a single 'core conspirator'" or "hub character." United States v.

Portela,

(1st Cir. 1999) (quoting United States

- 37 - v. Wilson,

(5th Cir. 1997), vacated on other

grounds by United States v. Brown,

(5th Cir. 1997)).

It can also be demonstrated where "runners and sellers work[] for

multiple owners, and lookouts work[] for the benefit of all," and

where such "workers" work in a "highly-organized" "shift system"

coordinated by meetings between the owners. Negrón-Sostre, 790

F.3d at 310, 312.

The government asserts that there is ample evidence of

overlap, pointing to Osborne's role as a lookout at Oak Street,

and his work recruiting customers and running drugs for the

dealers. The government also points out that Tweedie allowed all

of the dealers to sell drugs at her apartment and would give Jordan

and Canty rides between trap houses, and that Santiago delivered

drugs for Jordan, Canty, and Lawson, and allowed them to sell from

her Grant Street apartment.

The defendants argue that this kind of overlap does not

evince a conspiracy, because people played different roles with

respect to the different dealers, demonstrating that there was no

overarching agreement. Osborne recruited customers for everyone,

but only sold heroin for Jordan and Canty. He only testified to

working the door at Oak Street, where Cruz did not sell drugs, and

not the other two trap houses. Jordan maintained romantic

relationships with Tweedie and Santiago while using their

apartments as trap houses, while Lawson merely showed up at Grant

- 38 - Street and refused to leave and sold drugs at Redbank despite

Tweedie telling him not to.

While there were certainly "consistent participants" in

these activities, see Mangual-Santiago,

, there was

not a high degree of organization or anyone in a "leadership and

coordinator role,"

There was evidence of overlap, but it

lacked characteristics which would lead to strong inferences of an

agreement among the participants.

iv. Totality of the evidence

In addition to individual determinations of common

goals, interdependence, and overlap, "this court has looked beyond

any such lists of factors to 'the totality of the evidence' in

determining whether there is factual support for a finding of a

single conspiracy." Portela,

(quoting United

States v. Drougas,

(1st Cir. 1984)).

The totality of the evidence of conspiracy here was not

in our view sufficiently strong to overcome the prosecutor's

errors. See Arrieta-Agressot,

(reversing on plain

error where "the [prosecution's] case was adequate but not

overwhelming, and the jury may have been swayed by the prosecutor's

impermissible rhetoric"). While there was ample evidence that

Canty and Jordan distributed heroin, and strong evidence of various

smaller conspiracies, the government had to prove the single

conspiracy charged in the indictment. A jury could find a single

- 39 - overarching conspiracy on the evidence here. However, the evidence

was at least as strong that Cruz, Canty, Lawson, and Jordan

operated independently and indifferently to one another rather

than in tandem, selling when and where it was convenient to do so

with no overall coordination of effort and no agreement, tacit or

otherwise, to assist one another in distributing drugs. Moreover,

some of the government witnesses gave conflicting testimony.

Because the evidence in the case was not overwhelming,

the improper arguments by the prosecutor "so poisoned the well

that the trial's outcome was likely affected, thus warranting a

new trial." Azubike,

(internal quotation marks

omitted) (quoting Joyner,

). Many of the

prosecution's improper statements went to the heart of the case.

The emotional appeals to the jury's role as the conscience of the

community and the guilt-by-association arguments encouraged the

jury to abandon its role as rational factfinder and to judge the

case based on negative feelings towards the defendants. This was

exacerbated by the improper attribution of video evidence

pertaining only to Jordan as pertaining to both defendants. The

prosecutor's improper vouching unfairly bolstered the credibility

of the government's witnesses who provided crucial evidence in the

case, and whose credibility the defendants attacked in order to

defend against the charges. The bulk of the improper arguments

- 40 - were made during rebuttal, the very last time the jury heard

argument from either party.

As to the fourth prong of plain error review, where such

a likelihood of conviction on the basis of improper arguments

exists, we are compelled to find that the fairness, integrity, and

public reputation of the proceedings have been seriously affected.

"[F]ederal prosecuting attorneys ought to be mindful of

the harm done when those in power ignore the rules governing their

own conduct while demanding strict compliance from others."

Arrieta-Agressot,

. The government in criminal

prosecutions must follow the rules and suffer the consequences

when it does not.

IV.

For the reasons stated above, we conclude that to let

these convictions stand would have a serious deleterious effect on

the fairness, integrity, and public reputation of judicial

proceedings. See United States v. Acosta

(6th

Cir. 2019). We affirm the denial of the motions for acquittal.

We reverse the denial of the new trial motion and remand for

further proceedings consistent with this opinion.

- 41 -