Does the prosecution have a burden of proving its case against the defense in the context of the prosecution's argument that the defense had framed the prosecution on behalf of the defence?

and immune from harm if she lied about Defendant's role," and thus the government's argument "that Defendant had attempted to pin his prosecution on government malfeasance" was not wholly unsupported by the record, as in some cases in which we have found error. Supplemental App'x at 77. To be sure, "the government is allowed to respond to an argument that impugns its integrity or the integrity of its case," United States v. Carr, 424 F.3d at 227, and we generally accord considerable deference to a district court's conclusion that the prosecution did not cross that line. But here, the government itself concedes that its "framing" argument was not a fair response to the particular integrity challenge argued by the defense. Indeed, the argument "came close to urging the jury to find the officers credible because of their official positions, an argument not permitted by the law." United States v. Newton, 369 F.3d at 682 n.12. No curative instruction addressed this aspect of the error.

We need not decide whether prosecutorial mischaracterization of the defense would alone warrant retrial because here we consider that error together with the wrongful suggestion of incriminating evidence not put before the jury. Cf. United States v. Williams, 690 F.3d 70, 76 (2d Cir. 2012) (faulting prosecutorial vouching because it "impl[ies] the existence of evidence not placed before the jury" (internal quotation marks omitted)). In response to defense objection, the district court told the jury, somewhat equivocally,

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App'x at 532-33. While this instructed the jury to base its verdict only on admitted evidence, it might nevertheless appear to reinforce the government's suggestion that there was still more evidence that the jury had not heard. In short, the instruction did not tell the jury that it should not assume the existence of such evidence. Nor did it instruct that a reasonable doubt could arise from a lack of evidence no matter what the reason for that lack. Thus, the government's improper argument risked minimizing its burden of proof. The concern is rendered all the more real here by the fact that the district court charged the jury generally before, rather than after, summations. Thus, not only did the defense have no opportunity to clarify its burden argument in response to the prosecution's improper rebuttal argument, but also, the jury did not have the benefit of further instruction from the district court as to the government's burden of proof. Cf. Chalmers v. Mitchell, 73 F.3d 1262, 1271 (2d Cir. 1996) (stating that when "proper instruction was nearly the last thing the jury was told before deliberating," it was "more likely that it is what they remembered").