CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT.
Burger, C. J., delivered the opinion of the Court, in which White, Powell, Rehnquist, and O'connor, JJ., joined. Brennan, J., filed an opinion concurring in part and dissenting in part, in which Marshall and Blackmun, JJ., joined, post, p. 20. Stevens, J., filed a dissenting opinion, post, p. 35.
CHIEF JUSTICE BURGER delivered the opinion of the Court.
We granted certiorari to review the reversal of respondent's conviction because of prosecutorial comments responding to defense counsel's closing argument impugning the prosecution's integrity and belief in the Government's case.
Respondent Billy G. Young, as vice president and general manager of the Compton Petroleum Corporation in Abilene, Texas, contracted in 1976 and 1977 to deliver monthly supplies of "sweet" crude oil to the Apco Oil Corporation refinery in Cyril, Oklahoma. Some 205,000 barrels of oil were delivered under the contract between January and September 1977, but more than half of the oil delivered to Apco, approximately 117,250 barrels, consisted of fuel oil, an already refined product less valuable than crude oil. Compton's invoices accompanying those deliveries falsely certified that all of the oil was crude. Apco relied on those false certifications and reported to the Federal Energy Administration, in compliance with Government regulations, 10 CFR §§ 211.66, 211.67, and 212.131 (1976), the amount of crude oil it thought it was refining each month. The Federal Energy Administration in turn relied on Apco's reports to determine the national averages of tier categories of refined oil for purposes of equalizing the cost of crude oil under its entitlement program.
Respondent's scheme to deceive Apco by selling it cheaper fuel oil masquerading as "sweet" crude oil was relatively simple. Respondent arranged with an oil brokerage firm, owned by a longtime friend, to procure fuel oil from another source and sell it to Compton under the false certification that it was crude oil. Compton would then pay the brokerage firm 10 cents per barrel commission as a fee for the "recertification." Once in Compton's storage tanks, respondent had the fuel oil disguised as crude oil before delivering it to Apco by blending condensate, a high gravity liquid taken from the wellheads of natural gas wells, with the fuel oil.*fn1 In September 1977, after an Apco technician performed a distillation
test on one of Compton's deliveries, Apco discovered that it had not been receiving crude oil as required by the contract, but rather a mixture of fuel oil and condensate. This discovery prompted the Federal Bureau of Investigation to launch an investigation which resulted in this prosecution.
On December 1, 1980, respondent and Compton were charged with 11 counts of mail fraud in violation of 18 U. S. C. § 1341, three counts of willfully and knowingly making false statements to a Government agency in violation of 18 U. S. C. § 1001, one count of interstate transportation of stolen property in violation of 18 U. S. C. § 2314, and with aiding and abetting in the commission of all 15 counts in violation of 18 U. S. C. § 2. A jury trial was held in the District Court for the Western District of Oklahoma.*fn2 In his own defense, respondent testified that he had knowingly purchased fuel oil and delivered it to Apco, but he claimed that he thought such fuel oil could legitimately be certified as crude oil. He also believed that if condensate were blended with fuel oil, the result would be the equivalent of crude oil. Because Apco had not complained about the deliveries before September 1977, respondent thought that Apco was satisfied with the quality of oil he was supplying.
At the close of the case, the prosecutor summarized the evidence against respondent. Defense counsel began his own summation by arguing that the case against respondent "has been presented unfairly by the prosecution," and that "[from] the beginning" to "this very moment the [prosecution's] statements have been made to poison your minds unfairly." Tr. 542. He intimated that the prosecution deliberately withheld exculpatory evidence, and proceeded to charge the prosecution with "reprehensible" conduct in purportedly attempting to cast a false light on respondent's activities. Defense counsel also pointed directly at the prosecutor's table and stated: "I submit to you that there's not a person in this
courtroom including those sitting at this table who think that Billy Young intended to defraud Apco." Id., at 543-544. Finally, defense counsel stated that respondent had been "the only one in this whole affair that has acted with honor and with integrity" and that "[these] complex [Department of Energy] regulations should not have any place in an effort to put someone away." Id., at 547.
The prosecutor did not object to defense counsel's summation, but in rebuttal argument he responded to defense counsel's claim that the Government did not believe in its own case:
"I think [defense counsel] said that not anyone sitting at this table thinks that Mr. Young intended to defraud Apco. Well, I was sitting there and I think he was. I think he got 85 cents a barrel for every one of those 117,250.91 barrels he hauled and every bit of the money they made on that he got one percent of. So, I think he did. If we are allowed to give our personal impressions since it was asked of me." Id., at 549. (Emphasis added.)
Continuing with a review of portions of the evidence against respondent, the prosecutor responded to defense counsel's statement that Apco was not defrauded:
"I don't know what you call that, I call it fraud.
"You can look at the evidence and you can remember the testimony, you remember what [the witnesses] said and what [respondent] admitted they said. I think it's a fraud." Id., at 550.
Finally, the prosecutor addressed defense counsel's claim that respondent had acted with honor and integrity. The prosecutor briefly recapped some of respondent's conduct and stated:
"I don't know whether you call it honor and integrity, I don't call it that, [defense counsel] does. If you feel you should acquit him for that it's your pleasure. I don't
think you're doing your job as jurors in finding facts as opposed to the law that this Judge is going to instruct you, you think that's honor and integrity then stand up here in Oklahoma courtroom and say that's honor and integrity; I don't believe it." Id., at 552.
In turn, defense counsel did not object to the prosecutor's statements. Nor did he request any curative instructions and none were given.
The jury returned a verdict of guilty as to each of the mail fraud and false statement counts. Respondent was acquitted of interstate transportation of stolen property. Respondent was sentenced to two years' imprisonment on each count, to be served concurrently, and was fined $39,000.
On appeal, respondent alleged that he was unfairly prejudiced by the prosecutor's remarks made during closing rebuttal argument. In a per curiam opinion, the Court of Appeals, one judge dissenting without opinion, reversed the conviction and remanded for retrial. 736 F.2d 565 (CA10 1983). The Court of Appeals held that the prosecutor's statements constituted misconduct and were sufficiently egregious to constitute plain error. In short, respondent's failure to object at trial was held not to preclude appellate review. Rejecting the Government's contention that the statements were invited by the defense counsel's own closing argument, the Court of Appeals stated that "the rule is clear in this Circuit that improper conduct on the part of opposing counsel should be met with an objection to the court, not a similarly improper response." Id., at 570.
We granted certiorari, 465 U.S. 1021 (1984). We now reverse.
The principal issue to be resolved is not whether the prosecutor's response to defense counsel's misconduct was appropriate, but whether it was "plain error" that a reviewing court could act on absent a timely objection. Our task is to
decide whether the standard laid down in United States v. Atkinson, 297 U.S. 157, 160 (1936), and codified in Federal Rule of Criminal Procedure 52(b), was correctly applied by the Court of Appeals.
Nearly a half century ago this Court counseled prosecutors "to refrain from improper methods calculated to produce a wrongful conviction. . . ." Berger v. United States, 295 U.S. 78, 88 (1935). The Court made clear, however, that the adversary system permits the prosecutor to "prosecute with earnestness and vigor." Ibid. In other words, "while he may strike hard blows, he is not at liberty to strike foul ones." Ibid.
The line separating acceptable from improper advocacy is not easily drawn; there is often a gray zone. Prosecutors sometimes breach their duty to refrain from overzealous conduct by commenting on the defendant's guilt and offering unsolicited personal views on the evidence. Accordingly, the legal profession, through its Codes of Professional Responsibility,*fn3 and the federal courts,*fn4 have tried to police
prosecutorial misconduct. In complementing these efforts, the American Bar Association's Standing Committee on Standards for Criminal Justice has promulgated useful guidelines, one of which states that
"[it] is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant." ABA Standards for Criminal Justice 3-5.8(b) (2d ed. 1980).*fn5
It is clear that counsel on both sides of the table share a duty to confine arguments to the jury within proper bounds. Just as the conduct of prosecutors is circumscribed, "[the] interests of society in the preservation of courtroom control by the judges are no more to be frustrated through unchecked improprieties by defenders." Sacher v. United States, 343 U.S. 1, 8 (1952). Defense counsel, like the prosecutor, must refrain from interjecting personal beliefs into the presentation
of his case. See, e. g., ABA Model Code of Professional Responsibility DR 7-106(C)(3) and (4) (1980), quoted in n. 3, supra ; ABA Model Rules of Professional Conduct, Rule 3.4(e) (1984). Defense counsel, like his adversary, must not be permitted to make unfounded and inflammatory attacks on the opposing advocate.*fn6
The kind of advocacy shown by this record has no place in the administration of justice and should neither be permitted nor rewarded; a trial judge should deal promptly with any breach by either counsel. These considerations plainly guided the ABA Standing Committee on Standards for Criminal Justice in laying down rules of trial conduct for counsel that quite properly hold all advocates to essentially the same standards.*fn7 Indeed, the accompanying commentary points out that "[it] should be accepted that both prosecutor and defense counsel are subject to the same general limitations in
the scope of their argument," ABA Standards for Criminal Justice 4-7.8, p. 4x97, and provides the following guideline:
"The prohibition of personal attacks on the prosecutor is but a part of the larger duty of counsel to avoid acrimony in relations with opposing counsel during trial and confine argument to record evidence. It is firmly established that the lawyer should abstain from any allusion to the personal peculiarities and idiosyncrasies of opposing counsel. A personal attack by the prosecutor on defense counsel is improper, and the duty to abstain from such attacks is obviously reciprocal." Id., at 4x99 (footnotes omitted).
These standards reflect a consensus of the profession that the courts must not lose sight of the reality that "[a] criminal trial does not unfold like a play with actors following a script." Geders v. United States, 425 U.S. 80, 86 (1976). It should come as no surprise that "in the heat of argument, counsel do occasionally make remarks that are not justified by the testimony, and which are, or may be, prejudicial to the accused." Dunlop v. United States, 165 U.S. 486, 498 (1897).*fn8
We emphasize that the trial judge has the responsibility to maintain decorum in keeping with the nature of the proceeding; "the judge is not a mere moderator, but is the governor of the trial for the purpose of assuring its proper conduct." Quercia v. United States, 289 U.S. 466, 469 (1933). The judge "must meet situations as they arise and [be able] to cope with . . . the contingencies inherent in the adversary process." Geders v. United States, supra, at 86. Of course, "hard blows" cannot be avoided in criminal trials; both the prosecutor and defense counsel must be kept within appropriate
bounds. See Herring v. New York, 422 ...