What is the test for plain error in a prosecutor's closing argument in a criminal case?

We review statements made during closing argument for plain error. United States v. Lopez, 803 F.2d 969, 972 (9th Cir.1986), cert. denied, 107 S.Ct. 1958 (1987); United States v. Falsia, 724 F.2d 1339, 1342 (9th Cir.1983); United States v. Lane, 708 F.2d 1394, 1399 (9th Cir.1983); United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.), cert. denied, 444 U.S. 979 (1979). The prosecutor's statements must be highly prejudicial and affect substantial rights to constitute plain error. Id.

This court has held that "where the defendant opens the door to an argument, it is 'fair advocacy' for the prosecution to enter." Falsia, 724 F.2d at 1342. A prosecutor may comment on a defendant's failure to present exculpatory evidence as long as it does not call attention to defendant's failure to testify. Lopez, 803 F.2d at 973; United States v. Bagley, 772 F.2d 482, 494-45 (9th Cir.1985), cert. denied, 475 U.S. 1023 (1986).

We conclude that the prosecutor's closing argument was a "fair reply" to defense counsel's suggestion that the probation officer was not called as a witness because he would not support Wardwall's testimony. See id. at 495. Even if the comment was improper, any error was harmless. See Colley v. Sumner, 784 F.2d 984, 991 (9th Cir.) (prosecutor's reference to absence of potential alibi witness was harmless), cert. denied, 479 U.S. 839 (1986).

III. Consideration of Disbelieved Testimony in Sentencing James