from the United States District Court for the District of
Kansas (D.C. No. 5:15-CR-40091-DDC-1)
A. Nichols, Assistant Federal Public Defender (Melody
Brannon, Federal Public Defender with her on the brief),
Topeka, Kansas, for Defendant - Appellant.
S. Maag, Assistant United States Attorney (Stephen R.
McAllister, United States Attorney, and James A. Brown,
Assistant United States Attorney with him on the brief),
Topeka, Kansas, for Plaintiff - Appellee.
TYMKOVICH, Chief Judge, O'BRIEN, and MATHESON, Circuit
MATHESON, Circuit Judge.
Sue Christy stole cash from the vault of the bank where she
worked as a teller. She was charged, convicted, and sentenced
for various federal crimes. She now appeals.
21, 2014, CNB auditors conducted a surprise audit of the
Burlington, Kansas Central National Bank ("CNB" or
"Bank") vault. The vault was missing $764, 000.
When they began to suspect Ms. Christy, she forged documents
to purport that she had sent the missing cash to the Federal
Reserve Bank of Kansas City ("FRB"). A grand jury
indicted her on one count of bank embezzlement, six counts of
making false bank entries, six counts of failing to report
income on her taxes, and 10 counts of money laundering. After
a six-day trial, a jury found Ms. Christy guilty of all
charges except four money laundering counts.
appeal, Ms. Christy argues that (1) cumulative prosecutorial
misconduct violated her due process rights, (2) the evidence
was insufficient for her money laundering convictions, and
(3) the jury instructions improperly omitted a
"materiality" element for the false-bank-entry
jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C.
§ 1291, we affirm the embezzlement, false bank entry,
and failure to report income convictions. We reverse the
money laundering convictions, vacate the sentence, and remand
Burlington CNB's Vault Management
2014, Elaine Gifford was the retail operations supervisor of
Burlington CNB. She supervised bank teller Ms. Christy and
vault teller Raylene Thorne, Ms. Christy's sister-in-law.
Gifford, Ms. Christy, and Ms. Thorne all had access to the
Bank's vault. Ms. Gifford did not "keep much track
of what was in the vault," ROA, Vol. III at 673, and Ms.
Thorne often handed off her vault duties to Ms. Christy. Ms.
Gifford relied on Ms. Christy to count the cash. When Ms.
Gifford needed to record the amount of cash in the vault, she
simply wrote down the numbers that Ms. Christy gave her.
every other week, CNB Burlington transferred money to the
FRB. When the vault had too much cash,  the Burlington
branch sent cash, also known as "sold cash," to the
FRB, which held the cash in an account for the branch. The
FRB sent cash back to the Bank upon request. A company named
Garda transported the cash to and from the FRB.
CNB tracked its cash transfers in various ways:
(1) The Bank created cash-out tickets that recorded when
money came out of the vault, including transfers to the FRB
and smaller transfers to teller stations within the Bank.
These tickets contained an unalterable "proof
strip" recording the date they were printed.
(2) The Bank entered the cash-out transactions into an
electronic system called "Vertex," which produced a
report that showed the amount of cash in the vault at any
(3) When the Bank sent cash to the FRB, it created a debit
ticket memorializing the transaction.
(4) For each sale to the FRB, the Bank created two currency
deposit tickets that itemized the denominations it sold to
the FRB. One ticket went to Garda and the other stayed with
(5) When Garda employees picked up the cash, they used a
handheld machine to print out a receipt that both a
Burlington CNB employee and the Garda employee signed. The
receipt contained a time/date stamp that recorded the precise
second the receipt was printed.
(6) Lisa Nabus, a senior accountant at Junction City CNB,
balanced Burlington CNB's FRB ledger by comparing the
Bank's deposits to a daily statement from the FRB.
The May 21, 2014 Surprise Audit
up to May 21, 2014, Ms. Nabus noticed the following
discrepancies between CNB Burlington's Vertex records and
the FRB's daily statements:
(1) December 17, 2013-Ms. Christy prepared a cash-out ticket
representing that the branch had sold $401, 000 to the FRB
when in fact it had sold only $104, 000.
(2) January 14, 2014-Ms. Christy prepared a cash-out ticket
representing that the branch had sold $400, 000 to the FRB
when in fact it had never sold the money.
(3) February 25, 2014-Ms. Christy prepared a cash-out ticket
representing that the branch had sold $562, 000 to the FRB
when in fact it had never sold the money.
(4) March 18, 2014-Ms. Christy prepared a cash-out ticket
representing that the branch had sold $270, 000, $225, 000,
and $225, 000 when in fact it had never sold any of these
(5) April 22, 2014-Ms. Christy prepared a cash-out ticket
representing that the branch had sold $401, 000 to the FRB
when in fact the branch had sold only $101, 000.
Ms. Christy adjusted the Vertex record to correct the
discrepancies,  Ms. Nabus grew concerned about the errors
and reported her concerns to Vicky Farres, a CNB auditor.
response, Ms. Farres conducted a surprise audit of Burlington
CNB on May 21, 2014. According to the Bank's Vertex
report, the vault should have contained $883, 320 in cash on
that day. But the audit revealed that the vault held $119,
320-$764, 000 short.
Farres reported that Ms. Christy was exceedingly nervous and
behaved unusually during the audit. When Ms. Farres started
the audit, Ms. Christy delayed the counting process multiple
times. Ms. Farres needed to prompt her to begin counting.
During the counting, Ms. Farres noticed that Ms. Christy did
not replace straps on the stacks of hundred-dollar bills
after counting them. Ms. Christy also put the stacks outside
Ms. Farres's sight where she could re-count the same
stack. At one point, Ms. Christy claimed that $100, 000 fell
into a crack between the wall and a cabinet. When Ms. Farres
and her colleagues examined the crack with a flashlight and a
yardstick, they found only dust.
Farres asked Ms. Christy what had happened to the missing
cash. Ms. Christy at first paused and then responded that she
had sold it to the FRB. Ms. Farres then asked for the Garda
receipts documenting the transactions. Ms. Christy answered
that Garda never provided them to her.
next day, however, Ms. Christy sent Garda receipts to Ms.
Gifford for $90, 000, $100, 000, and $670, 000. Ms. Christy
stated she had found the receipts in a drawer. Only the $90,
000 receipt was reflected in the FRB's records. It was
also the only original receipt located during the audit and
the ensuing investigation. The other two were copies.
Separate from the receipt, the $90, 000 cash-out ticket had a
"proof strip" showing the sale was made on May 20,
2014, and the $90, 000 transaction was recorded on the Vertex
report. The Garda receipt for $90, 000 bore a legible bag
number, which Garda used to track the precise delivery bag
that carried the cash.
documentation of the purported $100, 000 and $670, 000 sales
to the FRB differed from the $90, 000 sale. First, in
contrast to the $90, 000 original receipt, the Bank never
found original receipts for the $100, 000 and $670, 000
transfers. Second, the date stamps for all three receipts
matched exactly, showing that the same machine printed all
three receipts at the exact same second-May 20, 2014, at
13:35:08. Adam Lewis, the Garda employee who picked up and
delivered the money, testified that printing three receipts
with precisely the same date stamp would be "completely
impossible." ROA, Vol. III at 926. Third, when a
transparency of the $90, 000 receipt was placed over the copy
of the $100, 000 receipt, the signatures matched exactly.
Fourth, the bag numbers on the two copied receipts were
illegible, and surveillance footage showed Mr. Lewis leaving
the branch on May 20, 2014, with only one bag. Finally,
although the date stamp on the Garda receipts for the
purported $100, 000 and $670, 000 sales was May 20, 2014, the
Bank's cash-out tickets bore a "proof strip"
showing that the tickets were created on May 21, 2014, the
day of the audit. Id. at 592, 835-36.
The Government Investigation
and IRS coordinated the investigation. Two agents from an FBI
task force questioned Ms. Christy about the missing money.
During the interview, the agents asked Ms. Christy if she
would be willing to take a polygraph. Ms. Christy responded
that she wanted to think about it. Neither Ms. Christy nor
the FBI raised the issue of the polygraph again. Throughout
the interview, Ms. Christy denied any wrongdoing.
Special Agent Joseph Schmidt examined Ms. Christy's bank
accounts and those of several of her family members. He
reviewed Ms. Christy's tax returns (filed jointly with
her husband, Chris Christy) from 2008 to 2014. Agent Schmidt
found a significant disparity between the bank accounts and
the tax returns. The Christys' reported income was about
$30, 000 to $64, 000 per year. Their expenditures, which
included cash payments on the Christys' home loans,
amounted to $400, 000 that was unaccounted for in tax
filings. Based on these calculations, Agent Schmidt concluded
the Christys had failed to report income on their tax
jury indicted Ms. Christy, charging her with one count of
bank embezzlement, in violation of 18 U.S.C. § 656
(Count 1); six counts of false bank entries, in violation of
18 U.S.C. § 1005 (Counts 2-7); six counts of declaring
false tax returns, in violation of 26 U.S.C. 7206(1) (Counts
8-13); and ten counts of money laundering, in violation of 18
U.S.C. § 1956(a)(1)(A)(ii) (Counts 14-23). Ms. Christy
did not testify during her six-day trial. The jury convicted
her of all counts except four money laundering charges based
on loan payments that occurred before 2014.
district court sentenced Ms. Christy to (1) 51 months in
prison for the embezzlement and false bank entries (Counts
1-7), followed by three years of supervised release; (2) 36
months for filing false tax returns (Counts 8-13), followed
by one year of supervised release; and (3) 51 months for
money laundering (Counts 18-23), followed by three years of
supervised release. The court ordered Ms. Christy's
sentences to run concurrently. It also ordered $857, 708 in
restitution. Ms. Christy timely appealed.
add factual and procedural background as it becomes relevant.
Christy argues that (A) cumulative prosecutorial misconduct
violated her due process rights, (B) the evidence was
insufficient for her money laundering convictions, and (C) a
materiality element was improperly omitted from the
false-bank-entry jury instructions.
Christy asserts that the prosecutor committed 12 acts of
prosecutorial misconduct based on comments made during trial.
She groups the comments into three "themes,"
alleging that the prosecutor (1) commented on Ms.
Christy's exercising her right to trial, (2) depicted
witness Elaine Gifford as credible and sympathetic, and (3)
implied witness Raylene Thorne colluded with defense counsel.
The following discussion describes the pertinent legal
background and standard of review and analyzes the
prosecutor's comments. Although we find or assume that
some of the comments were improper, we conclude that Ms.
Christy has not shown they affected her substantive rights.
She must do so to show cumulative error on plain error
review, and therefore the comments do not provide a ground to
following describes (1) the relevant prosecutorial misconduct
law, (2) the standards of review for appellate challenges to
prosecutor statements made at trial, and (3) the cumulative
misconduct can cause constitutional error in two ways.
Underwood v. Royal, 894 F.3d 1154, 1167 (10th Cir.
2018). First, it can prejudice a specific constitutional
right amounting to a denial of the right.
Id. Second, "absent infringement of a
specific constitutional right, a prosecutor's misconduct
may in some instances render a . . . trial 'so
fundamentally unfair as to deny [a defendant] due
process.'" Id. (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 645 (1974)); see United
States v. Anaya, 727 F.3d 1043, 1052-53 (10th Cir. 2013)
("Prosecutorial misconduct violates a defendant's
due process if it infects the trial with unfairness and
denies the defendant's right to a fair trial."
(quotations and alterations omitted)). Ms. Christy argues
that the cumulative effect of the prosecutor's comments
denied her a fair trial. We therefore address only the second
manner in which prosecutorial misconduct can cause
test for whether a defendant's trial was fundamentally
unfair based on a prosecutor's comments proceeds in two
steps: (1) the court first decides whether the
prosecutor's comments were improper, and (2) if so, it
examines their likely effect on the jury's verdict.
See United States v. Currie, 911 F.3d 1047, 1055
(10th Cir. 2018); United States v. Fleming, 667 F.3d
1098, 1103 (10th Cir. 2011). The court thus must weigh any
improper comments against the strength of the evidence
against the defendant. See Berger v. United States,
295 U.S. 78, 88-89 (1935) (reversing conviction when
prosecutor's misconduct was "pronounced and
persistent" and the evidence against the defendant was
"weak"); Darden v. Wainwright, 477 U.S.
168, 179 (1986) (assessing plainly improper statements in
context of entire trial); United States v. Oberle,
136 F.3d 1414, 1422 (10th Cir. 1998) (same).
Step one-propriety of the prosecutor's comments
have struggled to determine when a prosecutor's
statements are improper. See, e.g., Runnels v.
Hess, 653 F.2d 1359, 1362 (10th Cir. 1981) ("The
fine line between what is permissible argument in this area
is not always bright."). They have found that improper
comments at trial include (1) commenting on a defendant's
failure to take the stand, see Griffin v.
California, 380 U.S. 609, 611-12 (1965); (2) referring
to matters not in evidence, see United States v.
Ainesworth, 716 F.2d 769, 771 (10th Cir. 1983); (3)
encouraging the jury to allow victim sympathy to influence
its decision, see Moore v. Gibson, 195 F.3d 1152,
1172 (10th Cir. 1999); (4) "vouching" for the
credibility of a government witness or giving personal views
on the case, see United States v. Swafford, 766 F.2d
426, 428 (10th Cir. 1985); (5) distorting the record by
misstating the evidence, see Le v. Mullin, 311 F.3d
1002, 1020 (10th Cir. 2002); (6) misstating the law, see
Currie, 911 F.3d at 1057; (7) making derisive comments
about opposing counsel in front of the jury, see United
States v. Young, 470 U.S. 1, 9 (1985); and (8) appealing
to the jury's passion and prejudice or implying a jury
has a civic duty to convict, see Thornburg v.
Mullin, 422 F.3d 1113, 1133-34 (10th Cir. 2005); see
also Paul J. Spiegelman, Prosecutorial Misconduct in
Closing Argument: The Role of Intent in Appellate
Review, 1 J. App. Prac. & Process 115, 134-36 (1999)
alleged improper comments must be examined in context.
Young, 470 U.S. at 11. For example, when a
prosecutor has responded to a defense counsel's
arguments, courts grant more leeway. See United States v.
Robinson, 485 U.S. 25, 31 (1988); United States v.
Ivory, 532 F.3d 1095, 1100 (10th Cir. 2008). In
United States v. Jackson, the prosecutor suggested
the defendant should "man up" and "accept
responsibility" for his actions. 736 F.3d 953, 957 (10th
Cir. 2013). We held that these statements did not constitute
prosecutorial misconduct because they were made in response
to defense counsel's suggestion that others might be at
fault for a car accident that occurred as the defendant was
fleeing the scene of a bank robbery he had committed.
may consult codes of professional responsibility in assessing
a prosecutor's statements. Young, 470 U.S. at
7-9 (citing American Bar Association codes of professional
conduct); see Malicoat v. Mullin, 426 F.3d 1241,
1257 (10th Cir. 2005) (same). They also may consider the
prosecutor's intent. See Knowles v. United
States, 224 F.2d 168, 170 (10th Cir. 1955) (assessing
propriety of comments based on their "manifest
inten[t]"); see also Oregon v. Kennedy, 456
U.S. 667, 675-76 (1982) (examining prosecutor's intent in
double jeopardy context to assess whether statements
"goad[ed]" defendant to move for a mistrial);
United States v. Tafoya, 557 F.3d 1121, 1126 (10th
Cir. 2009) (same). But courts "should not lightly infer
that a prosecutor intends an ambiguous remark to have its
most damaging meaning." Donnelly, 416 U.S. at
these guideposts, "[t]he line separating acceptable from
improper advocacy is not easily drawn." Young,
470 U.S. at 7. This difficulty has prompted some courts to
assume the comments were improper and then decide whether
they prejudiced the jury's verdict. See Fleming,
667 F.3d at 1106 ("We need not decide whether the
prosecutor's comment . . . was improper, because even if
it were, [the defendant] has not demonstrated that the
statement violated his substantial rights."). This
approach relies on step two to resolve the issue, which we
turn to next.
Step two-effect on jury's verdict
court determines or assumes the prosecutor made an improper
comment, it then assesses whether the comment affected the
jury's verdict. See id. The applicable standard of
review, which we discuss below, determines which party bears
the burden of showing whether the defendant suffered
prejudice. See Anaya, 727 F.3d at 1052-53. Absent
prejudice, a prosecutor's improper statements alone will
not require a new trial. United States v. Sorensen,
801 F.3d 1217, 1242-43 (10th Cir. 2015).
the prejudice determination, courts "consider the trial
as a whole, including the curative acts of the district
court, the extent of the misconduct, and the role of the
misconduct within the case." United States v.
Gabaldon, 91 F.3d 91, 94 (10th Cir. 1996) (quotations
omitted); see also United States v. Taylor, 514 F.3d
1092, 1096-97 (10th Cir. 2008) (finding no prejudice when
district court "rapidly" issued curative
instruction). We presume that juries follow the district
court's curative instructions unless there is reason to
believe otherwise. United States v. Erickson, 561
F.3d 1150, 1169 (10th Cir. 2009).
prevalence and degree of improper statements in a trial can
affect the prejudice analysis. See Berger, 295 U.S.
at 89; Gabaldon, 91 F.3d at 94 (declaring
"prosecutorial misconduct may be so egregious as to
warrant reversal"). But "[t]he ultimate question is
whether the jury was able to fairly judge the evidence in
light of the prosecutors' conduct." Wilson v.
Sirmons, 536 F.3d 1064, 1117 (10th Cir. 2008)
(quotations omitted); see Currie, 911 F.3d at 1160
(affirming conviction in spite of prosecutor's
misstatements of law when there was "overwhelming"
evidence of defendant's guilt).
Standards of review
defendant seeks appellate relief for improper prosecutor
comments made at trial, the standard of review that we apply
to the foregoing two-step test depends on whether the
defendant objected at trial and how the court responded.
Anaya, 727 F.3d at 1052-53. In Anaya, we
identified the standard of review for four situations:
(1) The defendant objects and the court overrules the
objection-de novo review.
(2) The defendant objects, the district court takes curative
action, and the defendant objects to the adequacy of the
curative action or asks for a mistrial-abuse of discretion
(3) The defendant objects, the district court sustains the
objection, and the defendant fails to object to the adequacy
of the curative action-plain error review.
(4) The defendant does not object at trial but raises the
issue on appeal-plain error review.
de novo review, we "first decide whether the conduct was
improper and then, if so, whether the Government has
demonstrated that error was harmless beyond a reasonable
doubt." Id. at 1052 (quotations omitted)
(emphasis added). Under plain error review, "reversal is
warranted only when  the prosecutor's statement is
plainly improper and (2) the defendant
demonstrates that the improper statement affected his or her
substantial rights." Id. at 1053 (quoting
Fleming, 667 F.3d at 1103) (emphasis added). To be
plain, an error must be "clear" or
"obvious," meaning it is contrary to well-settled
law. Taylor, 514 F.3d at 1100.
Christy's aggregate effect challenge implicates this
circuit's law on the proper approach to cumulative error
review. We consider cumulative error only if the appellant
has shown at least two errors that were harmless. United
States v. Rivera, 900 F.2d 1462, 1469 (10th Cir. 1990)
(en banc). Anything less would leave nothing to cumulate.
See id. The question is whether the two or more
harmless errors together constitute prejudicial error.
See id. at 1469-70. As applied to the prosecutor
comment context, a court may proceed with a cumulative error
analysis only when the appellant has shown at least two
comments were improper but were not prejudicial on their own.
The court would then determine whether the comments together
before a court can make that determination, it must
distinguish between alleged errors that were preserved for
appeal and those that were not. As for at least two preserved
errors, we consider whether the government can show they
together were harmless beyond a reasonable doubt. See
United States v. Rogers, 556 F.3d 1130, 1141, 1144 (10th
Cir. 2009). If the government cannot make that showing, we
reverse. But if it can, we next combine the preserved errors
and the unpreserved errors and decide, under plain error
review, whether the defendant can show they together
influenced the jury's verdict. Id. at 1144. If
the defendant cannot, we affirm.
* * * *
these principles in mind, we address the propriety of each of
the prosecutor's comments, grouping them under Ms.
Christy's three "themes" of alleged misconduct.
We then analyze whether Ms. Christy has shown whether the
comments we have determined or assumed to be improper
cumulatively "infect[ed] the trial with unfairness"
and denied her the right to a fair trial. Anaya, 727
F.3d at 1052. Although we determine or assume that some of
the prosecutor's comments were improper, when judged in
light of the entire trial record, we conclude these comments
cumulatively did not outweigh the overwhelming evidence of
Ms. Christy's guilt and did not influence the jury's
Cumulative error: analytical framework
Christy argues that the cumulative effect of the
prosecutor's 12 comments violated her due process right
to a fair trial. She contends that each comment was improper,
but she does not claim that any one comment, standing alone,
was enough to reverse her conviction. It follows that, even
if improper, each comment alone would have been
non-prejudicial and not reversible error. Rather than seek
reversal based on any single comment, Ms. Christy argues that
the comments together created a "crescendoing" or
"cumulative" effect that infected the trial as a
whole. Aplt. Br. at 17, 20.
enable us to do the cumulative error analysis, we must first
determine whether any of the alleged wrongful comments was
improper. And to do this, we must use the proper standard of
review, which we outlined for different circumstances in
Anaya and summarized above. This exercise consumes
the majority of our analysis below. We address each of the
prosecutor's comments not only to assess which ones may
have been improper but also to aid our later analysis in
which we weigh impropriety against the strength of the
prosecution's case. See Darden v. Wainwright,
477 U.S. 168, 181 (1986); United States v. Darden,
688 F.3d 382, 397 (8th Cir. 2012) (balancing "strength
of the evidence against the cumulative effect of
proceed as follows. First, we examine each of the 12
statements under the proper standard of review to determine
which ones were improper. Only improper comments qualify for
the cumulative error analysis. Second, we determine whether
the improper comments preserved for appellate review together
caused cumulative harmful error. Third, assuming the
preserved comments were not cumulatively harmful, we add in
the unpreserved improper comments to determine whether Ms.
Christy has shown the preserved and unpreserved wrongful
comments influenced the jury's verdict.
Propriety of the prosecutor's comments
each of Ms. Christy's three categories of alleged
improper comments, we provide a chart that lists each
comment, whether Ms. Christy objected to the comment at
trial, the court's response to each objection, and the
applicable standard of review.
Comments on Ms. Christy's exercising her rights
Christy alleges that the prosecutor improperly commented on
her decision to exercise her constitutional rights in the
following five instances:
Government Comments on Ms. Christy
Exercising her Rights
Standard of Review
So at the end of this case and the presentation of
evidence, we're going to ask you to do
something that she is unwilling to do and that is
to make her accountable for her criminal conduct.
She wants to get away with this scot-free . . . .
ROA, Vol. III at 248.
So she was offered an opportunity to make an
explanation. She was offered an opportunity to take
a polygraph. She didn't avail herself of ever
attempting to contact a representative of the
United States after that.
ROA, Vol. III at 1089.
The evidence in its entirety should lead you to the
conclusion that she should be held accountable for
conduct which she is unwilling to accept.
ROA, Vol. III at 1089.
I enjoy where we have a case where someone has
confessed to the offense. It's-it's an
acknowledgment of their wrongdoing. But short of
that, when somebody is denying it, I would prefer a
ridiculous story. And that's what we've
heard in argument and in cross-examination of our
ROA, Vol. III at 1089-90.
So I believe when you review all the evidence, you
will find that there is evidence beyond a
reasonable doubt to hold the defendant accountable
for each and every count of the indictment, to
return a verdict of that, and to make her accept
responsibility for that verdict even though she
won't do it voluntarily. Thank you, folks.
ROA, Vol. III at 1090.
review Comments 1, 2, 3 and 5 for plain error to determine
whether they were "plainly improper." We review
Comment 4 de novo to determine whether it was improper.
Additional legal background
Sixth Amendment provides that "the accused shall enjoy
the right to a speedy and public trial." U.S. Const.
amend. VI. The Fifth Amendment provides that "[n]o
person shall be . . . deprived of life, liberty, or property,
without due process of law." U.S. Const. amend. V.
Together they guarantee the defendant's right to a fair
trial. See Strickland v. Washington, 466 U.S. 668,
684-85 (1984) ("The Constitution guarantees a fair trial
through the Due Process Clauses, but it defines the basic
elements of a fair trial largely through the several
provisions of the Sixth Amendment."). The Fifth
Amendment "forbids either comment by the prosecution on
the accused's silence or instructions by the court that
such silence is evidence of guilt." Griffin,
380 U.S. at 615. We have "distinguished between
prosecutorial statements implying guilt or challenging
credibility," which are not improper, from "those
relating to an accused's failure to testify," which
are. Runnels, 653 F.2d at 1362. The prosecution is
"free to comment on a defendant's failure to call
certain witnesses or present certain testimony."
Battenfield v. Gibson, 236 F.3d 1215, 1225 (10th
assess whether a comment references a defendant's failure
to testify by asking "whether the language used was
manifestly intended or was of such character that the jury
would naturally and necessarily take it to be a comment on
the failure of the accused to testify."
Knowles, 224 F.2d at 170; see United States v.
Rahseparian, 231 F.3d 1267, 1273-74 (10th Cir. 2000)
(surveying case-law). Some courts have extended
Griffin's holding to certain enumerated rights.
See, e.g., Marshall v. Hendricks, 307 F.3d
36, 71 (3d Cir. 2002) (extending Griffin to the
right to counsel and the right to call witnesses).
Christy argues that these five statements were improper
because they criticized her for exercising her constitutional
rights. Her brief invokes the Fifth Amendment and
Griffin's prohibition on comment about the
defendant's silence, and it cites the Sixth Amendment
regarding the defendant's right to a trial. Aplt. Br. at
2 about the offer to take a polygraph was not about Ms.
Christy's failure to testify at trial or her exercise of
the right to trial. It was made in response to the following
part of Ms. Christy's counsel's closing argument:
"Remember [Ms. Christy's] interview? And [the FBI
agents] said, oh, we'll get a polygraph. Why don't
you take a polygraph? That will sort all of this out. They
didn't do that. They didn't ever come back and talk
to her again. They didn't reach out to her
attorneys." ROA, Vol. III at 1077. In suggesting that
the agents' investigation was incomplete, Ms.
Christy's counsel invited the prosecution to explain the
lack of follow up. To "right the scale," the
prosecutor responded that Ms. Christy herself could have
invited a second interview. See Young, 470 U.S. at
12-13. Though questionably relevant, the prosecutor's
comment was made in response to defense counsel's
criticism in closing argument of the agents'
investigation and was not "plainly improper" under
plain error review.
prosecutor's other four statements-Comments 1, 3, 4, and
5-did not comment about Ms. Christy's failure to testify.
They also did not expressly comment on Ms. Christy's
exercising her right to a trial. These statements, broadly
interpreted, could be understood as an implied comment on Ms.
Christy's decision to go to trial rather than plead
guilty, though none of them stated this specifically.
review Comments 1, 3, and 5 to consider whether they were
"plainly improper." Comment 1, the prosecutor's
opening statement about Ms. Christy's unwillingness to be
accountable, could be read to state the obvious-that she had
not pled guilty. But it also could be taken as criticism of
her decision to put the government to its burden of proving
her guilty, which was her right under the Fifth and Sixth
Amendments. See generally Sullivan v. Louisiana, 508
U.S. 275, 277-78 (1993) (explaining Fifth Amendment
"requirement of proof beyond a reasonable doubt"
and Sixth Amendment "right to a speedy and public trial,
by an impartial jury"). The same can be said about
Comments 3 and 5, both made in rebuttal closing argument. As
noted above, the defense failed to object to these comments,
and the question under plain error review is whether they
were "plainly improper," Anaya, 727 F.3d
a comment on a defendant's failure to testify, which
suggests the defendant lacks a truthful defense, see
Griffin, 380 U.S. at 614-15, a comment that the
defendant has chosen to go trial and contest the charges
rather than plead guilty carries no such connotation. The
prosecutor's comments were not made, as they were in our
Jackson case, in direct response to an argument from
defense counsel, but they did respond to the defendant having
pled not guilty. 736 F.3d at 957. We need not decide whether
these statements were "plainly improper" because,
as we discuss below, even if they were, Ms. Christy has not
shown that they influenced the jury in light of the
compelling evidence against her. See Fleming, 667
F.3d at 1104.
Comment 4, which we review de novo for its propriety, the
prosecutor's statement that he enjoys when someone has
confessed was not relevant but not improper. His statement
that he prefers a "ridiculous story" when someone
has denied guilt seems to be a fair advocacy comment on the
defendant's evidence. The comment as a whole, like the
other comments, do not expressly criticize Ms. Christy for
going to trial, but even if Comment 4 could be read as
implying so, it would not be enough, along with other
comments in the cumulative error analysis below, to show
Comments depicting Elaine Gifford as credible and
noted above, Ms. Gifford was Ms. Christy's supervisor at
the Bank. She was terminated after the Bank discovered Ms.
Christy's embezzlement. Ms. Christy argues that the
prosecutor improperly depicted Ms. Gifford as credible and
sympathetic in the following five instances:
Government Comments Depicting Ms. Gifford
as Credible and Sympathetic
Standard of Review
And it is now time to become serious because
it's a very serious matter. It's serious to
the victims of the crime. The main victim is
Central National Bank, but there was a lot of
collateral damage caused by the defendant, Denise
Sue Christy, over there . . . Elaine Gifford is one
of the collateral damage [sic] caused by the
defendant, Denise Sue Christy.
ROA, Vol. III at 235, 238.
Direct Examination of Ms. Gifford:
Ms. Gifford: Correct. I relied on Denise. I trusted
her. And I trusted all my girls down there to do
the right thing. You know, you put them in charge
of something, you relied on them to do the
correct-you know, we're like family, you know.
We were just a group that enjoyed each other and
thought we all would do what was right.
AUSA: Found out that wasn't correct?
Ms. Gifford: Correct.
AUSA: It's okay. You-you lost your job over
this, didn't you?
Ms. Gifford: I did. And I'm paying for it.
ROA, Vol. III at 706-07.
Direct Examination of Ms. Gifford:
Ms. Gifford: I relied on Denise to balance the
vault every day to make sure, you know, it
balanced. Between her and Raylene. You know,
when-when you-when you work for someone-with
someone for 15 years, you know, you're kind of
family and you trust them and they should, you
Defense Counsel: Objection, Judge. I'm sorry,
it's nonresponsive. The Court: Yeah, I think
it's-I think we wandered into an area. Why
don't you put a question to the witness.
AUSA: So you're telling us, I think, that you
were relying upon her faith and honesty?
Ms. Gifford: Yes.
AUSA: And did you find out after May the 21st of
2014, the date of the surprise examination, that
she had betrayed your faith-
Defense Counsel: Objection. Improper opinion.
The Court: Overruled.
Defense Counsel: Objection. Leading.
The Court: Overruled.
ROA, Vol. III at 780-81.
AUSA: And finally, I want to single out Elaine
Gifford. She may have come across kind of short
with you, but she was one of the collateral damage
[sic] I mentioned in opening statement. This
defendant, cunning and malevolent as she is, is
willing to throw anybody under the bus if she can
get away with her crime.
ROA, Vol. III at 1042.
AUSA: And what she said was what I told you in
opening statement. That with all the rules and
regulations and so forth that the bank has in place
to try to make sure these things don't happen,
it boils down fundamentally to the honesty of the
people executing those procedures. Elaine Gifford
said they were like family there. And she was
probably the most sincere witness I've ever
Defense Counsel: Objection. Vouching. The Court:
AUSA: She broke down on the stand and she told you
the truth. She relied upon the honesty and
integrity of her employees, and they did not come
up to her standards.
ROA, Vol. III at 1042-43.
No curative measures taken or requested