Gillett then lists in his brief the seven alleged violations, none of which he objected to at trial. Gillett argues that "[t]here are instances where the failure to contemporaneously object to a prosecutorial violation during forensic argument shall only focus further attention on the violation and, therefore, does not foreclose appellate review of the violation," citing United States v. Sawyer, 347 F.2d 372, 374 (4th Cir. 1965).Sawyer states:
Nevertheless, State v. Lee, supra, contains some support for the defendant's position because we therein noted "that a prosecutor's prejudicial comments in closing argument may be considered by a federal court to violate federal due process guarantees even in the absence of a defense challenge or objection at trial. United States v. Briggs, supra ( 457 F.2d 908 (2d Cir. 1972)); United States v. Grunberger, 431 F.2d 1062 (2d Cir. 1970); United States v. Sawyer, 347 F.2d 372 (4th Cir. 1965)." 346 So.2d at 685.
We have long held that the failure to object to a prosecutor's statements made during closing arguments constitutes a waiver of that claim of error. See United States v. Sawyer, 347 F.2d 372, 374 (4th Cir.1965) (“[I]f defense counsel does not object during the course of the Government's closing argument he may be said to have waived the point.”). The mere fact that Zhao challenged, as a general matter, the “material alteration” theory presented by the government is insufficient to preserve the claim of error formulated by the dissent.
Nonetheless, we are mindful of a defense counsel's dilemma: Objections may also serve to draw unwanted and unnecessary attention to the prejudicial — albeit improper — conduct. See United States v. Garza, 608 F.2d 659, 666 (5th Cir. 1979) ("[W]hile defense counsel could and, indeed, should have objected to the first instances of improper comment by the prosecutor, at some point the transgressions of this prosecutor cumulated so greatly as to be incurable; then objection to these extremely prejudicial comments would serve only to focus the jury's attention on them."); United States v. Sawyer, 347 F.2d 372, 374 (4th Cir. 1965) ("While ordinarily, if defense counsel does not object [to misconduct] he may be said to have waived the point, there may be instances where the failure to object to a grave violation manifestly stems from the attorney's fear that an objection will only focus attention on an aspect of the case unfairly prejudicial to his client."); see also McKinney v. Estelle, 657 F.2d 740, 743 (5th Cir. 1981) ("continued improprieties on the part of the prosecution may, in some circumstances, excuse the defense of its duty to object"). In this case, while defense counsel may not have objected to each instance of misconduct he now challenges, we recognize that he did object to many of the instances of misconduct before us here.
United States v. Morris, 568 F.2d 396, 402 (5th Cir. 1978). See also United States v. Sawyer, 347 F.2d 372 (4th Cir. 1965). We reiterate that under many circumstances, this type of prosecutorial error will not be prejudicial.
United States v. Jones, supra note 23, at 754, quoting United States v. Young, 150 U.S.App.D.C. 98, 463 F.2d 934, 940 (1970). Failure to object in this context if not inadvertent, may be attributable to counsel's fear that an objection will only focus attention on the remarks which he wishes to have the jury ignore, see United States v. Sawyer, 347 F.2d 372, 374 (4th Cir. 1965), or that the jury will view an interruption as disruptive and dilatory. A rule requiring an objection might thus allow the prosecutor, through his own missteps, to put the defense between a rock and a hard place.
We do not conclude that the District Attorney's argument constitutes reversible error. See, United States v. Retolaza (4th Cir. 1968) 398 F.2d 235, cert. denied 393 U.S. 1032, 89 S.Ct. 646, 21 L.Ed.2d 576; United States v. Sawyer (4th Cir. 1965) 347 F.2d 372. Defendant's final contention is that he could not be convicted of both manufacturing and of possession with intent to distribute, "since `manufacture' embraces and includes possession."
"(4) Assert his personal opinion . . . as to the guilt or innocence of an accused; . . ." Although it has been held that a personal opinion of guilt will not constitute reversible error if the speaker does not suggest that he has undisclosed facts at his disposal, see United States v. Sawyer, 347 F.2d 372, 373 (4th Cir. 1965), the statement here cannot be said to rest entirely upon the record before the jury. Nor can this case be brought within those holdings permitting a more lenient standard following a personal attack on opposing counsel.
That the remark was improper is beyond dispute. See Lawn v. United States, 355 U.S. 339, 359 n. 15, 78 S.Ct. 311, 2 L.Ed.2d 321 (1958); Gradsky v. United States, 373 F.2d 706, 710 (5 Cir. 1967); United States v. Sawyer, 347 F.2d 372, 373 (4 Cir. 1965); United States v. Johnson, 331 F.2d 281, 282 (2 Cir.), cert. denied, Pheribo v. United States, 379 U.S. 905, 85 S.Ct. 196, 13 L. Ed.2d 178 (1964); Thompson v. United States, 272 F.2d 919, 921 (5 Cir. 1959), cert. denied, 362 U.S. 940, 80 S.Ct. 805, 4 L.Ed.2d 769 (1960); Schmidt v. United States, 237 F.2d 542, 543 (8 Cir. 1956). While it is true that failure to object to like remarks has sometimes constituted a waiver of the point, e.g., Leary v. United States, 383 F.2d 851, 865 (5 Cir. 1967), rev'd on other grounds, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969) (issue waived by failure to object); United States v. Aadal, 368 F.2d 962, 965 (2 Cir. 1966), cert. denied, 386 U.S. 970, 87 S.Ct. 1161, 18 L.Ed.2d 130 (1967) (not reversible error absent objection); compare United States v. Sawyer, supra at 373-374 (failure to object not waiver if defendant unfairly prejudiced by improper argument), it is understandable that a defense counsel may wish to avoid underscoring a prejudicial re
Finally, the prosecutor's several references to corruption rested on "a reasonable basis in the evidence," as Brawley's testimony, for example, indicated, and the government was entitled to make some reference to these matters since they related to the source of the unreported income. United States v. Sawyer, 347 F.2d 372, 374 n. 5 (4 Cir. 1965). IV