Even the lesser suggestion that the Government tries to prosecute only the guilty has been held reversible error by this Court. In Hall v. United States, 5 Cir. 1969, 419 F.2d 582, 587, this Court held: "The statement `we try to prosecute only the guilty' is not defensible. Expressions of individual opinion of guilt are dubious at best.
Except to the extent he bases any opinion on the evidence in the case, he may not express his personal opinion on the merits of the case or the credibility of witnesses. See, e.g., United States v. Rodriquez, 585 F.2d 1234, 1243-44 (5th Cir. 1978); United States v. Morris, supra, 568 F.2d at 401; Hall v. United States, 419 F.2d 582, 585-87 (5th Cir. 1969). Furthermore, he may not suggest that evidence which was not presented at trial provides additional grounds for finding defendant guilty. See, e.g., United States v. Morris, supra, 568 F.2d at 401; Hall v. United States, supra, 419 F.2d at 587; Gradsky v. United States, 373 F.2d 706, 710 (5th Cir. 1967).
The Fifth Circuit has long acknowledged the "double burden which the United States Attorney carries" as set forth in Berger. Hall v. United States, 419 F.2d 582, 588 (5th Cir. 1969). It "carried that doctrine forward" in Handford v. United States, 249 F.2d 295, 296 (5th Cir. 1957) as follows:
In Garza we found plain error and reversed. Here the prosecutor's recitation of government agencies and entities which, he clearly implies, knew appellants to be guilty is improper in the light of what we said in Hall v. United States, 419 F.2d 582 (5th Cir. 1969). Appellants did object to the prosecutor's stating, during trial, "[T]he United States . . . means me."
Consequently, improper suggestions, insinuations, and, especially, assertions of personal knowledge, are apt to carry much weight against the accused when they should properly carry none. 295 U.S. at 88, 55 S.Ct. at 633; see also United States v. Morris, 568 F.2d 396, 402 (5th Cir. 1978);Hall v. United States, 419 F.2d 582, 583-84 (5th Cir. 1969). Thus, our review of alleged errors in argument must be informed by an awareness that the prosecutorial mantle of authority can intensify the effect on the jury of any misconduct.
Appellant contends, and we agree, that the prosecutor's reference to Coronado's alleged sworn statement had the improper effect of placing before the jury for its consideration extrinsic matter asserted as fact though not in evidence; that the jury could have concluded that the sworn statement was not available to them due to some legal technicality; and that the effect of the prosecutor's remark was to impugn the credibility of Pariente tending to show his guilt. See Hall v. United States, 5 Cir., 1969, 419 F.2d 582, 583. In speaking of prosecutorial misconduct, the Supreme Court said in Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935), assertions of personal knowledge by the prosecutor "are apt to carry much weight against the accused when they should properly carry none."
United States v. Leslie, 759 F.2d 366, 378 (5th Cir.1985) (citing United States v. Lamerson, 457 F.2d 371, 372 (5th Cir.1972) (per curiam); Gradsky v. United States, 373 F.2d 706, 709 (5th Cir.1967)).Hall v. United States, 419 F.2d 582, 583 (5th Cir.1969).United States v. Morris, 568 F.2d 396, 402 (5th Cir.1978) (citations omitted).
Id. Petitioner asserts that this argument was improper, citing Buckhann v. State, 356 So. 2d 1327 (Fla. 4th DCA 1978). Doc. 8, p. 10. Petitioner asserts that the prosecutor may not imply that the State would not have brought the case unless the defendant was guilty. Id., p. 11, citing,United States v. Garza, 608 F.2d 663 (5th Cir. 1979); Hall v. United States, 419 F.2d 582, 583-584 (5th Cir. 1969); Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1934); and other cases. Id. Petitioner argues that this phrase takes guilt "as a predetermined fact."
)See, e.g., United States v. Adams, 759 F.2d 1099 (3d Cir.), cert. denied, 474 U.S. 971, 106 S.Ct. 336, 88 L.Ed.2d 321 (1985); United States v. Qamar, 671 F.2d 732 (2d Cir. 1982); Hall v. United States, 419 F.2d 582 (5th Cir. 1969); C. Wright K. Graham, Federal Practice and Procedure § 5240, at 474 (1978). In allowing threat evidence for other purposes under Rule 404(b), courts have applied the same standard to threats occurring inside and outside the courtroom.
The abuse to be guarded against is a prosecutor invoking considerations that are outside of the record evidence and would not have been deemed admissible evidence at trial. Thus, we have condemned suggestions that evidence not presented at trial would compel a finding of guilty, see, e.g., United States v. Morris, 568 F.2d 396, 401 (5th Cir. 1978); Hall v. United States, 419 F.2d 582, 585 (5th Cir. 1969), and efforts to create the impression that the government, which possesses a "vast investigatory network" and whose determinations may both have a stamp of credibility and invoke jurors' loyalty, has already made an extrajudicial determination of guilt, see, e.g., United States v. Goff, 847 F.2d 149, 163-64 (5th Cir.), cert. denied sub nom. Kuntze v. United States, 488 U.S. 932, 109 S.Ct. 324, 102 L.Ed.2d 341 (1988); Hall, 419 F.2d at 583-84.