Govt of the Virgin Islands v. Aswa Mills

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 13-4705
_______________
GOVERNMENT OF THE VIRGIN ISLANDS
v.
ASWA MILLS,
Appellant
_______________
On Appeal from the District Court of the Virgin Islands
(D.V.I. No. 3-02-cr-00157-001)
District Judges: Honorable Curtis Gomez, Honorable
Raymond Finch, and Honorable Harold Willocks (Judge of
the Virgin Islands Superior Court, sitting by designation)
_______________
Argued: December 8, 2015
Before: FISHER, KRAUSE, and ROTH, Circuit Judges
(Opinion Filed: April 12, 2016)
Jennifer L. Augspurger
Elliot Davis
Irma Industrious
Kimberly L. Salisbury
Pamela R. Tepper
Su-Layne U. Walker (Argued)
Office of Attorney General of Virgin Islands
Department of Justice
34-38 Kronprindsens Gade
GERS Complex, 2nd Floor
St. Thomas, VI 00802
Attorneys for Plaintiff-Appellee Government of the Virgin
Islands
Joseph A. DiRuzzo, III (Argued)
Jeffrey J. Molinaro
Fuerst Ittleman David & Joseph
1001 Brickell Bay Drive, 32nd Floor
Miami, FL 33131
Attorneys for Defendant-Appellant Aswa Mills
_______________
OPINION OF THE COURT
_______________
KRAUSE, Circuit Judge.
Appellant Aswa Mills was convicted in the Virgin
Islands Territorial Court1 of two counts of first-degree
1
The Virgin Islands Territorial Court is now known as
the Virgin Islands Superior Court.
2
murder, one count of attempted robbery, and two weapons
offenses. A three-judge panel of the District Court for the
Virgin Islands affirmed his convictions on appeal. See United
States v. Mills, 3:02-cr-157, 2013 WL 6072020 (D.V.I. Nov.
14, 2013) (per curiam). On appeal to this Court, Mills argues
that his right to due process was violated by prosecutorial
misconduct; that the trial court’s jury instructions regarding
self-defense were fatally flawed; and that his trial counsel
provided ineffective assistance. While we agree with Mills
that the prosecutors engaged in serious misconduct, we
conclude that this misconduct did not render his trial
fundamentally unfair and that his other claims do not warrant
relief on appeal. We therefore will affirm the District Court.
I. Jurisdiction
The District Court had jurisdiction under 48 U.S.C.
§ 1613a(a). We have jurisdiction under 48 U.S.C. § 1613a(c)
and (d). See generally Gov’t of the V.I. v. Davis, 561 F.3d
159, 160 n.2 (3d Cir. 2009).
II. Facts and Procedural History
On January 13, 2000, the victim, Boniface Clement,
was shot and killed in front of his home. Mills was arrested
for the killing soon thereafter and charged in Virgin Islands
Territorial Court with six counts. Counts 1 and 2 charged
first-degree murder on premeditation and felony murder
theories, respectively. See V.I. Code Ann. tit. 14, §§ 921,
922(a)(1), (2). Count 3 charged the carrying of a dangerous
or deadly weapon with the intent to use it against another.
See V.I. Code Ann. tit. 14, § 2251(a)(2)(B). Count 4 charged
attempted robbery, see V.I. Code Ann. tit. 14, §§ 331,
1862(1), as did Count 5, see V.I. Code Ann. tit. 14, §§ 331,
3
1862(2). Count 6 charged the unlawful carrying of a firearm
during the commission of a crime of violence. See V.I. Code
Ann. tit. 14, § 2253(a). At trial, Mills took the stand and
offered a justification of self-defense. The jury nonetheless
convicted Mills of all but Count 4.
The Government’s case at trial included witness and
expert testimony, as well as forensic evidence. The first
witness was Michael Caines, who was a truck driver for a gas
company. Caines testified that, at Mills’s request, he gave
Mills a ride to the Contant area of St. Thomas and dropped
him off two houses away from where Clement lived. He did
not know why Mills wanted a ride to Contant, but he testified
that Mills asked him “not to tell [Mills’s] father that I had
seen him or I had given him a ride.” J.A. 182:17-20.
What transpired next was adduced at trial through the
testimony of two eyewitnesses, Clement’s wife and brother.
Clement’s wife testified that just before the killing, she was
inside their home, talking to Clement about her car while he
was outside feeding his dog. Her husband stepped inside, and
she then heard someone speak to him. She asked Clement
who it was, and he responded that it was “some dude who
come up to my door.” J.A. 246:3-6. She heard the man
repeatedly say “give it to me,” J.A. 246:7-12, and Clement
respond “[w]hat I have for you? I have nothing for you. Get
down on my step,” J.A. 246:13-16. Clement repeatedly
called the man “Aswa.” J.A. 246:17-23. When Clement’s
wife looked outside, she saw Mills aiming a gun at her
husband’s chest. Clement grabbed Mills, Mills grabbed
Clement, and they fell down the steps. Clement’s wife
initially testified that she saw a gunshot, but later clarified
that she heard that first gunshot while she went inside to grab
a bat to help her husband. When she went back outside, she
4
saw Mills, who was standing over her husband, shoot him a
second time. According to her testimony, Clement’s wife
never saw her husband in possession of the gun, nor did she
know why Mills had approached him.
Clement’s brother testified that when the killing
occurred, he was frying fish at his mother’s house, which was
also near Clement’s home. He heard Clement repeatedly say
“Aswa, cool out. Stop it. I’m not giving you anything.” J.A.
195:16-20. About 30 seconds later, he heard a gunshot and
looked outside, where he saw Mills—gun in hand—wrestling
with Clement. The two fell, and as Mills was getting up, he
shot Clement twice. Mills, still holding the gun, fled.
Clement’s brother heard Clement scream, “I’m going to die
right here in my yard,” before he died where he lay. J.A.
235:2-9. Clement’s brother never saw Clement in possession
of the gun, nor did he know what Clement and Mills were
arguing about. He did, however, testify that his brother often
“cut grass for other people . . . so he always have cash in his
pocket.” J.A. 238:5-10.
Soon after the shooting, a taxi driver in the area who
was tuned in to the police channel spotted Mills jumping out
of the back of a moving pickup truck, “running” and
“ducking” between parked cars before running into some
trees as though he was trying to hide. The driver called 911,
and the police quickly located Mills, who emerged from the
bushes, wearing no shoes. After his arrest, Mills waived his
right to remain silent and his right to counsel. He then gave a
statement to the police in which he asserted that just before
his arrest, the wind blew $10 in cash and fonta leaf2 out of his
hand and that he was looking for them in the bushes when the
2
Mills testified that fonta is tobacco.
5
police arrested him. The police recovered neither the cash
nor the fonta. Mills also told the police that he had not been
in the victim’s neighborhood that day, that he had not been in
a fight that day, that he did not shoot a gun that day, and that
he did not know Boniface Clement.
The physical evidence introduced in the Government’s
case-in-chief told a very different story. At the crime scene,
the police had found an abandoned pair of shoes on the
ground and over $1,000 in cash on Clement’s body. In
addition, Mills’s hand after his arrest tested positive for
gunshot residue, proving he was near a discharging firearm or
handled ammunition. The gun used in the shooting
apparently was never recovered.
A medical examiner also testified at trial. His autopsy
revealed that Clement was shot twice. One bullet entered
above his left hip, traveled downwards, and was found in in
his right foot, consistent with Clement being shot while
standing or sitting. The other bullet entered his abdomen,
traveled downwards from front to back and left to right, and
was recovered in Clement’s pelvic bone. The trajectory of
this round, according to the medical examiner, was also
consistent with him sitting, lying down on his back, or
possibly standing when shot. Both trajectories were
inconsistent with the gun being pointed upwards or
perpendicular to Clement at the time of discharge. Further,
based on the absence of gunpowder residue and soot around
the gunshot wounds, the medical examiner concluded that
both shots were fired from at least two or three feet away.
After the Government presented this evidence, Mills
took the stand in his own defense and offered a far different
account of events than his post-arrest statement. He
6
acknowledged that he asked Caines, the truck driver, to take
him to the victim’s neighborhood, but claimed he did so to
retrieve his Vise-Grip from a man he knew only as “Seala.”
Seala was never produced by the defense, and Mills offered
no additional explanation for why he needed his Vise-Grip or
was seeking it from Seala. Mills admitted that he was not
sure that Seala actually lived in the neighborhood but said he
thought that Seala “hangs out” there. J.A. 618:15-21. Mills
further testified that he told Caines not to tell Mills’s father
about the ride because his father was Caines’s boss and Mills
believed his father would be upset that Mills got a ride in a
company truck. Mills too had been employed at his father’s
gas company, but had been “discharged,” J.A. 639:13-15, and
was unemployed at the time of the shooting. Nevertheless, he
claimed to have had $1,000 in his possession when he went
searching for Seala. Mills also acknowledged at trial that he
knew Clement and had played basketball with him.
On direct examination, Mills testified that, as he was
searching for Seala, he saw Clement out in his yard, and
Clement signaled him over. When he told Clement that he
was looking for Seala and had $1,000 and he showed Clement
a “li’l drill,” J.A. 625:7-17, Clement responded that he was
selling tools—which Mills understood to mean “a tool . . .
that you use to fix machinery with”—and told Mills to follow
him.3 J.A. 625:15-17; 628:22-629:3. Mills asserted that they
then went to Clement’s house where Clement stepped inside,
grabbed a gun from behind the door, and said “don’t go, give
me everything.” J.A. 626:2-21.
3
The jury heard a detective testify that “tool” is slang
for gun. J.A. 608:25-609:7.
7
At that point, Mills testified, he believed Clement “was
going to rob me,” J.A. 629:10, so he grabbed the gun and
tried to rip it from Clement’s hands, and Clement “started
bawling” and saying “cool out, cool out,” J.A. 629:19-630:9.
Mills alleged that he eventually gained possession of the gun
because he was “kinda bigger than” Clement. J.A. 630:9.
Mills then held the gun at his side briefly, told Clement to
“cool out,” and then offered to give the gun back “so
[Clement] could cool out,” but Clement did not take it. J.A.
631:12-25. Only minutes later, however, Mills testified that
Clement had pointed the gun at him and, therefore, Mills
thought that if Clement “got that gun he might have killed
me.” J.A. 633:21-634:7. On cross-examination, Mills
testified that he was afraid that Clement was going to hurt
him with the gun, but he made no mention of offering to give
the gun back to Clement.
Mills further explained that Clement “was saying like,
something, go down . . ., and I just started backing up off the
stairs.” J.A. 632:9-12. Mills allegedly got “halfway through
the yard”—and was still in possession of the gun—when
Clement “run off the stairs and attack me.” J.A. 632:12-15.
By Mills’s account, Clement then “ran down in the yard . . .
look like he pick up something off the ground, grab me by my
arm with the gun, grab my shirt, like my neck, like he was
trying to choke me, and I try to get away from him.” J.A.
632:19-24. At that point, Mills said, “I felt scared. I felt
overpowered and forced,” J.A. 695:24-25, and “I feel like that
I was being beat up on,” J.A. 696:4-5. Mills acknowledged
that the gun discharged twice when it was in his hand, but he
denied shooting Clement.
After the gun fired, according to Mills, both of them
fell. Mills then got up, picked up the gun, and fled through a
8
shortcut near a school, where he dropped the gun and drill
somewhere along the route. The $1,000 that Mills testified he
had in his possession when he encountered Clement was not
on his person when he was arrested and, according to Mills,
“[j]ust disappeared” between the killing and his arrest; he
offered that it must have “fell out my pocket” during the
struggle with Clement. J.A. 681:2-9.
Mills admitted that after the shooting, he fled and then
gave a false statement to police, but he claimed that he was
“in panic,” J.A. 637:18-19, “[b]ecause I was so scared, and I
know that it would only be time I would have to tell anybody
anything about the situation is in court.” J.A. 638:14-17.
When cross-examined about his statement to the police that
he lost $10, not $1,000, Mills initially responded that he
“wouldn’t know” if $10 is “more valuable than” $1,000 and
then that $10 “could be” more valuable than $1,000
“[d]epending on [the] situation.” J.A. 682:6-683:3. Mills
also testified that he denied knowing Boniface Clement
because he knew the victim only as “I.” The jury convicted
Mills on all counts but the attempted robbery charged in
Count 4.
Following his conviction, Mills appealed to the
District Court, raising three claims relevant to this appeal.4
4
Mills raised a sufficiency of the evidence claim in the
District Court, which that court rejected and which Mills did
not appeal. See Mills, 2013 WL 6072020, at *3-5. Mills also
argued, and the District Court found, that in his closing, the
prosecutor improperly vouched for the witnesses and
mischaracterized the forensic examiner’s testimony. Mills
does not press these issues on appeal, however, and they
therefore are waived. See, e.g., United States v. Albertson,
9
First, he argued that the prosecutors engaged in misconduct
that violated due process, namely: (1) repeated suggestions
that the jurors could not be safe in their homes if Mills was
free; (2) repeated references to the possibility that the gun
Mills discarded would endanger schoolchildren and the
community; and (3) the display throughout closing argument
of a gruesome crime-scene photo of the victim’s corpse.
Second, he argued that the self-defense jury instructions were
improper and required reversal. Third, Mills claimed that he
received ineffective assistance of counsel.
The District Court affirmed Mills’s conviction.
Although the District Court agreed that the prosecutors’
conduct was improper and that the jury instructions were
deficient, it held there was no prejudice. See Mills, 2013 WL
6072020, at *6-9. The District Court also rejected Mills’s
ineffective assistance claim because the record was not
sufficiently developed. Id. at *10. This timely appeal
followed.
645 F.3d 191, 195 (3d Cir. 2011). The District Court also
agreed with Mills that the prosecutors improperly elicited
victim impact testimony from the victim’s wife. Mills, 2013
WL 6072020, at *6-7. Mills mentions in passing that this
testimony was “wholly inappropriate,” but he does not argue
that it violated due process. Appellant’s Br. at 29 n.7. That
argument therefore is also waived. See John Wyeth & Bros.
Ltd. v. CIGNA Int'l Corp., 119 F.3d 1070, 1076 n.6 (3d Cir.
1997) (“[A]rguments raised in passing (such as, in a
footnote), but not squarely argued, are considered waived.”).
These additional facts would not alter our conclusion in any
event.
10
III. Discussion
On appeal, Mills argues that prosecutorial misconduct
violated his right to due process; that the trial court’s jury
instructions concerning self-defense were fatally flawed; and
that his trial counsel was ineffective for failing to object to the
jury instructions. We address each argument in turn and
conclude that there is no basis to overturn Mills’s conviction.
A. Due Process Claim
The Fifth Amendment’s Due Process Clause secures a
defendant’s right to a fair trial. See United States v. Liburd,
607 F.3d 339, 343 (3d Cir. 2010) (citing United States v.
Agurs, 427 U.S. 97, 107 (1976)).5 When confronted with a
claim that a prosecutor’s remarks violated this right, we first
determine whether those remarks constituted misconduct.
See United States v. Berrios, 676 F.3d 118, 134-36 (3d Cir.
2012); United States v. Lee, 612 F.3d 170, 194 (3d Cir. 2010).
If so, we proceed to determine whether that misconduct “so
infected the trial with unfairness as to make the resulting
conviction a denial of due process,” Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974); see also Greer v.
Miller, 483 U.S. 756, 765 (1987), taking into account “the
entire proceeding,” Liburd, 607 F.3d at 344 (quoting United
States v. Morena, 547 F.3d 191, 194 (3d Cir. 2008)).
5
The right to due process has “been extended to the
Virgin Islands” by the Virgin Islands Revised Organic Act,
48 U.S.C. § 1561. See Liburd, 607 F.3d at 343; see also
Davis, 561 F.3d at 163 n.3.
11
Where, as here, a defendant did not object to
prosecutorial misconduct at trial, we review for plain error.
Under this standard of review, “before an appellate court can
correct an error not raised at trial, there must be (1) ‘error,’
(2) that is ‘plain,’ and (3) that ‘affects substantial rights.’”
Johnson v. United States, 520 U.S. 461, 466-67 (1997)
(quoting United States v. Olano, 507 U.S. 725, 732 (1993)).
“[I]n the ordinary case,” an error affects substantial rights
when “it ‘affected the outcome of the [lower] court
proceedings.’” United States v. Marcus, 560 U.S. 258, 262
(2010) (quoting Puckett v. United States, 556 U.S. 129, 135
(2009)) (discussing Federal Rule of Criminal Procedure 52);
see also Fahie v. People, 59 V.I. 505, 511 (2013) (applying
the plain error standard from Marcus to a local Virgin Islands
case). If these conditions are met, we “may exercise [our]
discretion to” remedy the error, “but only if . . . the error
‘seriously affects the fairness, integrity, or public reputation
of judicial proceedings.’” Johnson, 520 U.S. at 467 (internal
quotation marks omitted) (quoting Olano, 507 U.S. at 732).
For the reasons set forth below, we conclude the misconduct
was plain—that is, it was “clear” and “obvious,” Marcus, 560
U.S. at 262; see infra Section III.A.1, but that the error did
not affect the outcome of the trial and therefore did not affect
Mills’s substantial rights, see infra Section III.A.2.
1. Prosecutorial Misconduct
We start with the question of whether the prosecutors’
actions amounted to misconduct. In Mills’s case, the
prosecutors (1) argued that the jurors’ own safety depended
upon convicting Mills; (2) suggested that the gun Mills
discarded would endanger schoolchildren and the community;
and (3) throughout at least its rebuttal argument at closing,
12
displayed a graphic crime scene photograph of Clement’s
body.
i. References to the Jurors’ Safety
Recognizing the pathos of Clement’s last words as he
lay dying in front of his home, the prosecutors throughout
their opening and closing statements made references to the
sanctity of the home. The opening started off
unobjectionably when the prosecutor told the jury “[i]t is
3:40, everyone in this courtroom wants to go home ‘cause
home is a safe place. It’s a home sweet home. There’s no
place like home. We have our house there, it’s comfortable,
we feel safe at home.” J.A. 163:3-8. But the prosecutor
began to veer off course when, instead of steering the
narrative to what transpired at Clement’s home, he
admonished the jury to consider the safety of their own:
“[Y]ou want to get home. But let me tell you how home
sweet home and there’s no place like home can be ruined. It
can be ruined by Aswa Mills.” J.A. 163:10-14.
The prosecutor continued in this vein: “Home sweet
home, there’s no place like home unless you have a Aswa
Mills who come into your house,” J.A. 164:19-21, and “Aswa
Mills. Home sweet home, we all want to go home. We want
to have the stickiness of a murder, hearing about a murder by
this defendant, that’s what we here for. Home sweet home.”
J.A. 167:7-11. The prosecutor then expressly linked the
jurors’ own safety to their verdict:
Home sweet home. We have to draw a line in
the sand. We got to be safe at our homes. It’s
not enough just to lock the door, check that the
windows are closed. We got to stop these Aswa
13
Mills from coming to our home and ruining our
lives. There’s no place like home. You
remember the Wizard of Oz, Dorothy, clicking
her heals [sic]. No, place like home. There’s
no place like home. We have to be safe in our
homes.
JA 171:22-172:7 (emphasis added). He concluded his
opening by suggesting that the jurors should secure their own
safety by returning a guilty verdict: “First degree murder,
possession of a gun, and robbery, there has to be a place like
home. We all want to go home. We have to be safe at our
homes. First degree murder, possession of an unlicensed gun
and robbery. Thank you.” J.A. 172:17-23.
This theme continued during the closing argument as
the prosecutor said, for example, that Mills:
murdered [the victim] and he ruined his entire
home. He ruined the home of his wife []. He
ruined the home of his three kids . . . . He
ruined the home of his brother [], and his
mother. He ruined an entire family’s home. No
more home sweet home.
JA 727:12-19. The prosecutor made similar comments
toward the end of the rebuttal closing, observing ominously,
“[i]t’s a very ugly case. Someone’s home is torn totally
upside down, and we know everyone wants to get home
today.” J.A. 800:12-15.
We conclude that these comments went beyond factual
description or even legitimate thematic use of the home and
constituted misconduct. We have previously criticized such
14
“Golden Rule arguments,” observing that “the propriety of
‘put yourself in the defendant’s shoes’ argument, as a tool of
advocacy, is doubtful because it ‘encourages the jury to
depart from neutrality and to decide the case on the basis of
personal interest and bias rather than on the evidence.’”
Edwards v. City of Phila., 860 F.2d 568, 574 (3d Cir. 1988)
(quoting Spray-Rite Serv. Corp. v. Monsanto Co., 684 F.2d
1226, 1246 (7th Cir. 1982)). The same concerns abide when
an advocate asks the jury to put itself in the victim’s shoes.
Thus, prosecutors commit misconduct when they “urge jurors
to identify individually with the victims with comments like
‘it could have been you’ the defendant killed or ‘it could have
been your children,’” Bedford v. Collins, 567 F.3d 225, 234
(6th Cir. 2009) (quoting Johnson v. Bell, 525 F.3d 466, 484
(6th Cir. 2008)), or when they “fan the flames of the jurors’
fears by predicting that if they do not convict, a crime wave
or some other calamity will consume their community,” id.Yet here, the prosecutors did just that by repeatedly
suggesting that the jurors themselves were not safe in their
homes as long as Mills was at large.
While prosecutors are not foreclosed from making
effective use of themes, metaphors, and references to popular
culture, they may not cross the line and invite the jury to
render a decision on grounds of bias, passion, prejudice, or
sympathy. As even the Government appropriately
acknowledged at oral argument, that line was crossed here.
Oral Arg. at 19:50 (argued December 8, 2015).
ii. The Missing Gun
The prosecutors also capitalized on the fact that the
police never recovered the gun that Mills tossed near a school
by emphasizing the danger that Mills had created for the
15
community. During the opening statement, for example, the
prosecutor stated, “[t]here’s a gun out there people. It’s a
gun, it’s an instrument of death, it has a body on it.” J.A.
167:4-6. Toward the end of the opening, he remarked, “[a]nd
then we have a gun. The gun is gone. This defendant had
enough time to get rid of the gun. Anybody can have this
gun. Instrument of death.” J.A. 172:7-11.
During its cross examination of Mills, although Mills
had already acknowledged on direct that he dropped the gun
in the course of his flight, the Government specifically
elicited that Mills dropped the gun near a school. Then,
during closing, the prosecutor argued:
He didn’t know where he threw [the gun] away,
but ladies and gentleman, in that same area are
not one, but two schools, two schools where
innocent little kids walk and travel that path.
They live in that area. They travel that area all
the time.
That gun is out there. What if one of them finds
that gun that he so casually threw away? What
if one of them finds that gun and accidentally
shoot one of their friends or some relative?
That gun has one body on it. It already ruined
one home. Now it’s out there potentially to ruin
somebody else’s home.
JA 734:1-14. And again, in his rebuttal, the prosecutor
pointed out:
Ladies and gentleman, there’s a gun somewhere
in the Contant area if it hadn’t been located or
16
found by some innocent person. There’s two
schools over in that area. There’s children that
travel that area. There’s one dead person
already associated with that gun.
JA 799:16-800:3.
This too was misconduct. Given that Mills was
alleged to have shot Clement and was charged with various
firearms offenses, the prosecutors had a legitimate need to
elicit testimony that Mills discarded the firearm during flight
to explain why it was not on his person when he was arrested
and was never recovered. But the ongoing threat to
schoolchildren created by the discarded gun, however
reprehensible, was not relevant to the particular crimes with
which Mills was charged. Raising this specter, therefore, was
purely “inflammatory,” as the Government to its credit also
conceded at oral argument. Oral Arg. at 21:40.6
iii. The Use of Clement’s Photo
During Closing
The third category of alleged misconduct at issue is the
prosecutors’ display of a crime-scene photograph of
Clement’s corpse throughout at least the Government’s
rebuttal closing.7 This photograph shows Clement’s dead
6
Curiously, the Government did not concede that the
comments were error.
7
The District Court stated that “[t]he prosecutor
projected a photo of [the victim], during the entirety of his
closing argument.” Mills, 2013 WL 6072020, at *8. From
the trial transcript, however, it appears that the photo was
17
body, prone and bloody, at the scene of the shooting.8 The
trial court characterized the photo as “the one of the deceased
defendant shot.” J.A. 803:1-2. Of all the photos that had
been admitted into evidence, it was, according to the trial
court, “the one that [was] gonna provoke the most sympathy.”
J.A. 802:13-14. Indeed, the trial court noted that the jury had
been looking at it “all the time” while it was displayed. J.A.
803:12-17. At the conclusion of the rebuttal closing, the trial
court, outside the presence of the jury, expressed its “burning
curiosity” as to why the photo was displayed during closing
argument when the prosecutor never once made reference to
it. J.A. 801:6-21. The prosecutor’s response was telling:
“[t]o provoke sympathy.” J.A. 802:1-2.
The display of a photo of this nature for this admitted
purpose also constituted misconduct. Indeed, in Berrios, we
found misconduct based on the display of a far less
inflammatory photo. There, the Government displayed a
puzzle of the victim’s face, ostensibly to dramatize “how
disparate pieces of evidence fit together.” 676 F.3d at 135.
In rejecting this justification and finding that there had been
displayed during the Government’s rebuttal closing; the
transcript does not indicate whether the photo was displayed
during the Government’s initial closing argument.
8
Although not expressly stated in the record, we have
no trouble identifying the photo in question as Exhibit 11 in
light of the trial court’s description. At oral argument, the
Government offered to confirm whether the photo displayed
was indeed Exhibit 11 but never made a supplemental
submission.
18
misconduct, we reasoned that “there was no such conceivable
purpose in using an enlarged photograph of the victim's face
as the puzzle image,” and “such conduct should not have been
allowed in court.” Id. Likewise, there was no reason to
display the photo here other than—as expressly stated by the
prosecutor—to provoke sympathy. Because such “appeals
for jurors to decide cases based on passion and emotion
[arising from sympathy for the victim are] improper,” Moore
v. Morton, 255 F.3d 95, 117 (3d Cir. 2001), the prosecutor’s
display of the photo in this case also rose to the level of
misconduct. 9
Having considered the prosecutors’ actions and the
relevant case law, we conclude that these tactics, individually
and collectively, did constitute misconduct.10 See, e.g.,
9
As is apparent from the trial court’s colloquy with the
prosecutors following closing arguments, the trial court
recognized the impropriety of the use of the victim’s photo
even as it was being displayed but took no action because
there was no objection. The court noted, though, that it
would do something “next time.” J.A. 802:3-6. Mills’s
counsel told the trial court that he “started to object” to the
photo but “didn’t want to interrupt.” J.A. 802:7-8. The
preferred course in these situations is of course for defense
counsel to object, but even in the absence of an objection, a
trial court that recognizes prosecutorial misconduct taking
place at trial can and should preserve the integrity of the
proceedings by intervening sua sponte if necessary.
10
In holding that the prosecutors’ tactics here
constitute “prosecutorial misconduct,” we do not conclude,
nor do we need to conclude, that the prosecutors intended to
19
Berrios, 676 F.3d at 134-36; Lee, 612 F.3d at 194. We also
conclude that these errors were plain—that is, they were clear
or obvious. See Marcus, 560 U.S. at 262. We therefore
proceed to consider their effect on the fairness of the trial.
2. Analysis
Having found that the prosecutors in Mills’s case
engaged in prosecutorial misconduct, we next consider
whether the error affected Mills’s substantial rights and the
fairness and integrity of the proceeding, an inquiry in this
case that is closely aligned with the Due Process inquiry of
“whether the misconduct so infected the trial with unfairness
as to make the resulting conviction a denial of due process in
light of the entire proceeding.”11 Liburd, 607 F.3d at 344
commit misconduct or acted in bad faith. “The critical
question in assessing constitutional error is to what extent a
defendant's rights were violated, not the culpability of the
prosecutor. . . . A prosecutor’s deliberate acts might have no
effect at all upon the trier of fact, while acts that might be
inadvertent could serve to distract the jury from its proper
task and thus render a defendant’s trial fundamentally unfair.”
Marshall v. Hendricks, 307 F.3d 36, 68 (3d Cir. 2002).
Prosecutors, however, serve in positions of public trust, and
must guard against the temptation to draw on jurors’ passions
instead of the evidence, particularly in the heat of trial.
11
We have taken inconsistent approaches as to where
in the analysis of a Donnelley claim we review for
harmlessness. In some cases, we have conducted a two-step
inquiry, subsuming the harmless error inquiry within our
inquiry into whether the misconduct resulted in an unfair trial.
See, e.g., Berrios, 676 F.3d at 134-36; Liburd, 607 F.3d at
20(quoting Morena, 547 F.3d at 194); cf. Marcus, 560 U.S. at
262 (explaining that an error ordinarily affects substantial
rights when it “affect[s] the outcome of the [lower] court
342. In others, we have espoused a three-step approach,
“not[ing] that we only conduct a harmless error inquiry once
we decide that constitutional error did occur. Thus, we first
examine whether the misconduct so infected the trial as to
render it unfair.” Marshall, 307 F.3d at 67 n.16. At least on
direct review, however, the two-step inquiry will suffice
because the harmless error standard of Chapman v.
California, 386 U.S. 18 (1967), “is more demanding than the
‘fundamental fairness’ inquiry of the Due Process Clause.”
Greer, 483 U.S. at 765 n.7. Thus, if the reviewing court
determines that prosecutorial misconduct rises to the level of
a due process violation, then a fortiori the misconduct is not
harmless under Chapman. Id. at 765 & n.7. If, on the other
hand, the court determines the misconduct does not rise to the
level of a due process violation, it has no occasion to
undertake a harmless error review under Chapman, but may
nonetheless exercise its supervisory powers to reverse a
conviction if “it is highly probable that the error did not
contribute to the judgment,” United States v. Zehrbach, 47
F.3d 1252, 1265 (3d Cir. 1995) (en banc) (quoting Gov’t of
the V.I. v. Toto, 529 F.2d 278, 284 (3d Cir. 1976)),
considering “the scope of the objectionable comments and
their relationship to the entire proceeding, the ameliorative
effect of any curative instructions given, and the strength of
the evidence supporting the defendant’s conviction, id. Mills
has not sought to invoke our supervisory powers and, in any
event, their exercise is not warranted here for the reasons set
forth in this Section.
21
proceedings” (quoting Puckett, 556 U.S. at 135); Johnson,
520 U.S. at 469-70 (explaining that an “error did not
‘seriously affect[] the fairness, integrity or public reputation
of judicial proceedings’” because there was “overwhelming”
evidence supporting the conviction (quoting Olano, 507 U.S.
at 736). In making this determination, we consider the
misconduct “in light of the entire trial, assessing the severity
of the conduct, the effect of the curative instructions, and the
quantum of evidence against the defendant.” Lee, 612 F.3d at
194 (quoting Moore, 255 F.3d at 107).
In applying these factors here, we must situate the
prosecutorial misconduct in this case on the continuum
established by our precedent. At one end sits Berrios. There,
several defendants were convicted of charges stemming from
a “series of carjackings, an attempted robbery, and the murder
of a security guard.” 676 F.3d at 123. During closing, the
Government read a poem commemorating the guard,
presented a large photograph of his face as a puzzle “to show
the jury how disparate pieces of evidence fit together,” id. at
135, and briefly referred to a defendant’s time in jail, id. at
134. We held that, although “the closing was rife with
misconduct,” the errors in the closing did not “merit reversal”
for several reasons. Id. at 135. First, the misconduct was not
pervasive: the poem “was a mere ten lines out of over
seventy-five pages of closing argument,” while the picture
was displayed briefly and had already been admitted into
evidence. Id. Second, the court had twice instructed the jury
not to be swayed by bias, which “sufficiently removed any
lingering prejudice.” Id. at 135-36 & n.10. Third, “the jury
was presented with ample evidence on which it could convict
the defendants,” id. at 136, including a wiretap in which two
22
defendants admitted to the crime and implicated another co-
conspirator, id. at 124.
At the other end of our continuum sits Moore, in which
we granted a state inmate’s habeas petition challenging his
rape and robbery convictions due to prosecutorial
misconduct. 255 F.3d at 97, 120. That case turned on the
identity of the rapist, and the white victim was only able to
identify the black defendant after being hypnotized. Id. at
109-10. During closing, the prosecutor argued that the jury
could infer that the defendant had a “preference” for white
women because his wife was white, id. at 116, and that the
defendant needed “sexual release” at the time of the rape
because his wife was then ill, id. at 100-01. Finally, he told
the jury that “if you don’t believe [the victim] and you think
she's lying, then you've probably perpetrated a worse assault
on her.” Id. at 101. We reversed, holding that the “sexual
release” comment was cured by the trial court’s instructions
but that even the trial court’s “strong” and specific
instructions were insufficient to cure the prejudice caused by
the race-based “preference” and the “perpetrate a worse
assault” comments taken together. Id. at 115-18. Further, the
“perpetrate a worse assault” comment improperly played to
the jury’s emotions and buttressed the victim’s credibility and
reliability when her identification of the defendant was
crucial to the prosecution’s case. Id. at 118. This comment,
we held, when combined with the “preference” comment,
resulted in prejudice that implicated due process concerns.
Id. Finally, the Government’s case lacked any “strong
physical, circumstantial, testimonial, or corroborating
identification evidence linking [the defendant] to the rape.”
Id. at 119.
23
Against this backdrop, we now consider in Mills’s case
the severity and pervasiveness of the misconduct, the curative
instructions, and the strength of the evidence. For the reasons
set forth below, we conclude, on balance, this case is more
like Berrios than Moore and the errors neither warrant relief
under the plain error doctrine nor rose to the level of a due
process violation.
i. The Severity and Pervasiveness
of the Misconduct
Berrios and Moore instruct that we consider, first, the
severity of the conduct and its pervasiveness—that is, the
number of times or the length of time that the prosecutor
engaged in misconduct. See, e.g., Berrios, 676 F.3d at 135;
Moore, 255 F.3d at 118.
The misconduct here was both severe and pervasive.
The photo of the victim’s body traded on the jurors’
sympathy and was more prejudicial than the photo and poem
in Berrios, and the prosecutors’ comments from opening
through closing regarding the missing gun and the jurors’
safety in their homes expressly linked Mills to hypothetical
acts of violence wholly unrelated to the one for which he was
being tried. Moreover, the prosecutor expressly argued that
finding Mills guilty of the charged offenses was the only way
the jurors could be safe in their homes. The severity and
pervasiveness of the misconduct thus more closely resemble
that of Moore, where the prosecutor relied on race-based
arguments to secure a conviction, and weigh in favor of Mills.
ii. Curative Instructions
24
Second, we consider the effect of the curative
instructions, if any. Lee, 612 F.3d at 194. The more severe
the misconduct, the less effective the curative instructions—
particularly when the curative instructions are not given
immediately after the misconduct or when they do not direct
the jury to ignore specific instances of misconduct. Compare
Morena, 547 F.3d at 197 (holding that a trial court’s
instruction reminding the jury that the defendant was not on
trial for drug offenses did not cure the prejudice from
evidence concerning the defendant’s drug use and dealing
because it was “hardly a specific direction to disregard the
drug evidence”), with Zehrbach, 47 F.3d at 1267 (finding that
the trial court cured a prosecutor’s improper vouching when it
immediately “gave a specific instruction to disregard the
prosecutor’s comment”).
The trial court here instructed the jury before and after
the evidence was presented that the case must be decided
based on the evidence, that the lawyers’ statements and
arguments are not evidence, and that the jury was responsible
for determining each witness’s credibility. The court also
instructed the jury after the evidence was presented that “the
law does not permit you to be influenced by outside matters
such as sympathy, bias, prejudice, or any other similar fact or
factor for or against either side. You should not and may not
be influenced . . . by . . . public policy . . .,” J.A. 849:11-18,
and gave a similar instruction at the beginning of the trial.
On the one hand, the trial court did not expressly
admonish the jury to ignore the specific instances of
misconduct. See Morena, 547 F.3d at 197. On the other
hand, we have held that instructions similar to those given by
the trial court here or “a clear and complete jury instruction
on the elements of the claim asserted and on the allocation of
25
the burdens of proof, whenever given, is sufficient to cure
harm caused by a ‘Golden Rule’ argument” asking the jurors
to put themselves in another’s shoes. Edwards, 860 F.2d at
574. And more generally, it is well established that jurors are
presumed to follow their instructions. Richardson v. Marsh,
481 U.S. 200, 206 (1987). Although the instructions were not
given immediately following some of the misconduct,
perhaps the most inflammatory misconduct—the display of
the photograph throughout at least the rebuttal closing—
occurred at the end of trial in close proximity to the
instructions. See Berrios, 676 F.3d at 135-36; see also
Zehrbach, 47 F.3d at 1267. Though a close question, we
conclude that this factor tilts against Mills.
iii. The Strength of the Evidence
and Mills’s Defense
Next, we consider the strength of the evidence against
the defendant and, when the Government’s case or the
accused’s defense turns on witness credibility, how the
misconduct might have affected the jury’s credibility
determination. See Darden v. Wainwright, 477 U.S. 168, 182
(1986) (finding no due process violation by improper
comments in part because the evidence against the defendant
was “overwhelming”); Berrios, 676 F.3d at 136 (finding no
due process violation where “the jury was presented with
ample evidence on which it could convict the defendants”);
cf. Moore, 255 F.3d at 118-19 (finding that the strength of the
state’s evidence was not sufficient to overcome the
prosecutor’s misconduct). This third factor weighs decisively
against Mills and is dispositive in this case.
There was no dispute at trial concerning the identity of
the shooter: Mills conceded that he and the victim engaged in
26
a struggle and that Mills had the gun in his hand when it
discharged. Indeed, the central question for the jury was
whether Mills acted in self-defense, as he testified, or whether
he killed Clement in the course of committing a robbery, V.I.
Code Ann., tit. 14, § 922(a)(2), and in a “willful, deliberate
and premeditated killing,” V.I. Code Ann., tit. 14,
§ 922(a)(1), as urged by the Government.
The Government’s case was supported by
overwhelming evidence that showed Mills murdered Clement
in the course of committing a robbery and with premeditation.
The evidence reflected that Mills was out of work and, thus,
was financially strapped; that Mills knew Clement and, thus,
had reason to know that he often had large amounts of cash
on hand; and that Mills designed a plan to go secretively to
Clement’s home to rob and kill him if necessary. There was
also consistent and corroborated testimony from Clement’s
wife and brother that Mills was in fact robbing Clement when
he killed him and that, when he shot Clement, not once but
twice, he did so deliberately and with intent to kill. That
evidence included the wife’s testimony that she heard Mills
demand something from Clement and both witnesses’
testimony that they heard Clement refuse to give Mills
anything; the wife’s testimony that just after Clement refused
and before she grabbed a bat and heard a shot, Mills was
pointing a gun at Clement; and both witnesses’ testimony that
Mills fired the second shot while standing over Clement, who
was lying helpless on the ground. The forensic evidence was
consistent with this testimony and supported premeditation,
indicating that Clement was sitting or lying down when he
was shot and that he was shot from at least two to three feet
away. See Gov’t of the V.I. v. Martinez, 780 F.2d 302, 305
(3d Cir. 1985) (holding evidence sufficient to support
27
conviction for premeditated murder where, among other
things, the defendant shot the victim four times—once or
twice at close range); Codrington v. People, 57 V.I. 176, 190
(2012) (holding that evidence supported premeditated murder
conviction where the defendant walked away from the victim,
returned, and fired a second shot).
That Mills was guilty of murder and the other crimes
for which he was convicted was only reinforced by his
ensuing flight, his tossing of the gun, and his lies to the
police. See Gov’t of the V.I. v. Lake, 362 F.2d 770, 776-77
(3d Cir. 1966) (holding that evidence that a defendant’s
statement to police following a killing, which was
contradicted by other evidence, supported a finding of
premeditation).
On the other hand, the only evidence that Mills acted
in self-defense was his own testimony, which lacked
consistency and was irreconcilable with both the testimony
and the physical evidence at trial. At the threshold, Mills’s
general credibility as a witness was severely undermined by
his admittedly false post-arrest statement that contradicted his
trial testimony. See, e.g., Harris v. New York, 401 U.S. 222,
225-26 (1971). That testimony, moreover, was itself
implausible. For example, Mills’s explanation that he asked
to be dropped near Clement’s home to retrieve his Vise-Grip
from “Seala” lacked any corroboration or even context in
Mills’s testimony. Likewise, it defied credulity that
Clement—who, according to his wife, was then feeding his
dog in the backyard—beckoned Mills over and tried to rob
him. Neither Clement’s wife nor his brother corroborated this
account, and, on the contrary, both eyewitnesses heard Mills
make demands of Clement and Clement rebuff those
demands, not vice-versa.
28
At other points, Mills’s testimony was internally
inconsistent and illogical. For example, Mills testified on
both direct and cross examination that he was afraid that
Clement was going to hurt him because Clement had pointed
a gun at him. But Mills testified on direct examination that he
took the gun from Clement and then immediately offered to
give it back to Clement so that Clement could “cool out.”
J.A. 631:23-632:7. This account not only defies common
sense but was conspicuously absent in Mills’s cross-
examination. Mills also asserted that after he backed off of
Clement’s stairs and was halfway through the yard, Clement
rushed him—even though Mills was in possession of the gun
and Clement was apparently unarmed. This too strains
credulity.
Finally, Mills’s testimony was directly contradicted by
the forensic evidence. For instance, Mills claimed that he did
not shoot Clement intentionally but, instead, that the gun in
his hand somehow discharged, twice, in the course of a
struggle. Clement’s wife, however, saw Mills pointing the
gun at her husband’s chest before the first shot, and both
witnesses testified that Mills delivered a second shot while
standing over Clement, who was lying on the ground. The
medical examiner, moreover, testified that both shots were
fired from at least two to three feet away, which was
consistent with the eyewitness testimony and irreconcilable
with Mills’s account of the shooting.
In view of the overwhelming evidence that Mills
committed the offenses for which he was convicted and did
not act in self-defense, and Mills’s own inconsistent
statements that undermined his credibility, we are convinced
that it had no “prejudicial . . . impact” on “the jury’s finding
of guilt.” Moore, 255 F.3d at 113; see also Walker v. Horn,
29
385 F.3d 321, 336 (3d Cir. 2004) (finding that “a substantial
amount of other evidence,” including the plaintiff’s
inconsistent statements, undermined the plaintiff’s credibility
such that it was “highly improbable” that the erroneous
admission of impeachment evidence “had an impact on the
outcome of the trial”). We conclude, therefore, that while the
prosecutors in this case stepped far over the line of what is
acceptable at trial, that misconduct was more than
counterbalanced by the strength of the evidence and thus did
not affect Mills’s substantial rights, see Marcus, 560 U.S. at
262; see also Darden, 477 U.S. at 182, or render Mills’s trial
fundamentally unfair, see, e.g., Greer, 483 U.S. at 765;
Donnelly, 416 U.S. at 643.
B. Self-Defense Jury Instruction
We turn next to Mills’s argument that portions of the
trial court’s jury instructions concerning self-defense were
erroneous. “We generally exercise plenary review in
[determining] ‘whether the jury instructions stated the proper
legal standard,’ and review the refusal to give a particular
instruction or the wording of instructions for abuse of
discretion.” United States v. Flores, 454 F.3d 149, 156 (3d
Cir. 2006) (quoting United States v. Khorozian, 333 F.3d 498,
507-08 (3d Cir. 2003)). Again, however, where, as here,
there is no objection at trial, “we review only for plain error.”
Gov’t of the V.I. v. Fonseca, 274 F.3d 760, 765 (3d Cir.
2001).
When reviewing a trial court’s charge to the jury,
“[j]ury instructions must be read as a whole.” Flores, 454
F.3d at 157 (quoting E.E.O.C. v. Del. Dep’t of Health and
Soc. Servs., 865 F.2d 1408, 1418 (3d Cir. 1989)); see also
Estelle v. McGuire, 502 U.S. 62, 72 (1991) (“It is well
30
established that [a jury] instruction ‘may not be judged in
artificial isolation,’ but must be considered in the context of
the instructions as a whole and the trial record.” (quoting
Cupp v. Naughten, 414 U.S. 141, 147 (1973)). We will
affirm the district court when “the charge as a whole fairly
and adequately submits the issues in the case to the jury.”
Fonseca, 274 F.3d at 767 (quoting United States v. Thayer,
201 F.3d 214, 221 (3d Cir. 1999)); see also United States v.
Tai, 750 F.3d 309, 316 (3d Cir. 2014). Therefore, an
instruction that is “erroneous on its own may be remedied by
the balance of the court's instructions.” Berrios, 676 F.3d at
137.
In the Virgin Islands, a homicide is justifiable on self-
defense grounds where (1) the defendant actually believed at
the time of the killing that he “was in imminent or immediate
danger of his life or great bodily harm,” and (2) this belief
was reasonable. See V.I. Code Ann. tit. 14, § 43. That is,
self-defense has both a subjective and an objective prong.
The Government has the burden of proving beyond a
reasonable doubt that the defendant did not act in self-
defense. Gov’t of the V.I. v. Smith, 949 F.2d 677, 683-84 (3d
Cir. 1991).12
12
The Virgin Islands Code contains numerous statutes
delineating when a homicide is justifiable or excusable. See,
e.g., V.I. Code Ann. tit. 14, § 41 (“Resistance by party to be
injured”); V.I. Code Ann. tit. 14, § 42 (“Resistance by other
parties”); V.I. Code Ann. tit. 14, § 43 (“Self-defense”); V.I.
Code Ann. tit. 14, § 44 (“Justifiable use of force”); V.I. Code
Ann. tit. 14, § 293 (“Lawful violence, what constitutes”); V.I.
Code Ann. tit. 14, § 926 (“Excusable homicide defined”); V.I.
Code Ann. tit. 14, § 927 (“Justifiable homicide defined”). In
31
Mills objects that the trial court’s self-defense
instructions did not encapsulate the principle that “self-
defense hinges on the reasonableness of the defendant’s
subjective beliefs.” Appellant’s Br. at 16. Specifically, Mills
points to two sentences from the Territorial Court’s
instructions:
The circumstances under which a defendant
acted must have been such as to produce in the
mind of a reasonable prudent person, similarly
situated, the reasonable belief that the other
person was about to kill him or to do him
serious bodily harm.
JA 830:8-13.
[Self-]defense hinges on the defendant’s
objective belief [of] imminent danger of death
or serious bodily harm are not on the objective
reasonableness of the belief. Therefore, in
evaluating whether the defendant’s objective
belief of imminent danger from Mr. Boniface
Clement was reasonable, you may consider . . . .
JA 834:9-15 (emphasis added).
These statements give us pause. Considered in
isolation, they minimize the importance of the defendant’s
view of Mills’s reliance on Smith, which discusses Virgin
Islands Code title 14, section 43, we construe his challenge to
be that the trial court did not properly instruct the jury as to
the requirements of section 43 and tailor our discussion
accordingly.
32
subjective belief, which was important to the question of self-
defense in this case. Further, the use of the phrase “hinges
on” risked focusing the jury’s attention on the objective
component to the exclusion of the subjective one.
However, at multiple other points during the
instructions, the trial court properly instructed the jury that
self-defense under § 43 has both subjective and objective
prongs. For example, the court instructed:
To justify a homicide on the ground of self-
defense, there must be not only the belief but
also reasonable grounds for believing that at the
time of the killing . . . the party killing was in
imminent or immediate danger of life or great
bodily harm.
JA 828:19-829:1 (repeated almost verbatim at J.A. 829:7-13).
If the defendant was not the aggressor and had
reasonable grounds to believe and actually did
believe he was in imminent danger of death or
serious bodily harm from which he could have
saved himself only by using deadly force . . .
then he had a right to employ deadly force . . . .
JA 829:16-23.
[T]he defendant must have actually believe he
was in imminent danger of death or serious
bodily harm . . . .
JA 830:14-16.
33
[I]f the defendant had reasonable ground to
believe and actually did believe that he was in
imminent danger [of] death [or] serious bodily
harm, and deadly force was necessary . . ., he
was justified in using deadly force and self-
defense even though it may afterward have
turned out that the appearances were false.
JA 831:6-14 (repeated almost verbatim at J.A. 833:24-834:7).
Thus, the trial court repeatedly instructed the jury as to the
correct standard—that self-defense contains both an objective
and a subjective prong.
In sum, while there are deficiencies in two sentences
of the instructions taken in isolation, we cannot say that the
instructions taken as a whole amounted to error, much less
plain error. See Flores, 454 F.3d at 158-59 (finding no plain
error where a trial court once instructed the jury, erroneously,
that the defendant bore the burden of proof to disprove willful
blindness, but other portions of the instructions “repeatedly
imposed the burden of proving willful blindness on the
Government”); see also Tai, 750 F.3d at 316 (“When the
instructions are read as a whole, it is clear that no jury could
conclude that [the defendant] bore the burden of proof as to
any aspect of his knowledge and the District Court committed
no error in connection with its willful blindness instruction.”).
C. Ineffective Assistance of Counsel
Mills also alleges that his trial counsel was ineffective
for his failure to object to the jury instructions. However, as a
general matter, we “do[] not entertain a claim of ineffective
assistance of counsel on direct appeal. Among the reasons
34
that such a claim is not usually cognizable on direct appeal is
the very important fact that there will not, in the typical case,
exist a record developed enough to assess the efficacy of
defense counsel.” Gov’t of the V.I. v. Vanterpool, 767 F.3d
157, 163 (3d Cir. 2014) (citation omitted).
Here, we agree with the District Court that the record
is not sufficiently developed because we do not have evidence
of “counsel’s perspective at the time of the alleged error” and
cannot determine whether the failure to object was “sound
trial strategy.” Id. at 168. We therefore decline to reach
Mills’s ineffective assistance claim.
IV. Conclusion
A prosecutor “may prosecute with earnestness and
vigor—indeed, he should do so. But, while he may strike
hard blows, he is not at liberty to strike foul ones.” Berger v.
United States, 295 U.S. 78, 88 (1935). The prosecutors in
this case went out of bounds and the District Court, as referee,
called foul. But in view of the overwhelming evidence
against Mills, the sheer implausibility of his defense, and the
trial court’s curative instructions, this District Court properly
concluded that foul did not rise to the level of a due process
violation and that Mills’s other claims do not warrant relief.
We therefore will affirm the judgment of the District Court.
35