Full opinion text
LOGAN, Circuit Judge, delivering the opinion of the Court as to Parts I through VII. I Mark A. Hopkinson appeals from the summary dismissal of his petition for a writ of habeas corpus in which he challenged his convictions for first-degree murder and his sentence of death, Hopkinson v. Shillinger, 645 F.Supp. 374 (D.Wyo.1986) (Hopkinson VIII), and the summary denial of his motion to compel disclosure of certain FBI files, filed pursuant to the Freedom of Information Act, 5 U.S.C. § 552. The district court denied Hopkin-son’s motions for reconsideration. Hopkinson v. Shillinger, 648 F.Supp. 141 (D.Wyo.1986). The odyssey of this case began in Wyoming state court in 1979 where Hopkinson was tried and convicted on four counts of first-degree murder and two counts of conspiracy to commit first-degree murder. The first three counts of murder arose out of his hiring Michael Hickey to bomb Vincent Vehar’s home. That bombing killed Vehar, Vehar’s wife and one of his sons; another son was injured in the blast but survived. The fourth murder count was for procuring the killing of Jeff Green. Hopkinson was sentenced to life imprisonment for each of the Vehar murders, and to death for the murder of Green. See Hopkinson v. State, 632 P.2d 79, 97 (Wyo.1981), cert. denied, 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982) (Hopkinson I). Hopkinson was also convicted in the same trial of conspiracy with Harold James Taylor to commit the first-degree murder of Vehar and conspiracy with Hickey to commit the first-degree murder of William Roitz. Hopkinson appealed to the Wyoming Supreme Court, which affirmed each of the convictions but vacated the death sentence and ordered a new sentencing trial for the Green murder. Id. at 172. At the second sentencing trial, Hopkinson was again sentenced to death. He appealed to the Wyoming Supreme Court, which this time affirmed the sentence. Hopkinson v. State, 664 P.2d 43 (Wyo.), cert. denied, 464 U.S. 908, 104 S.Ct. 262, 78 L.Ed.2d 246 (1983) (Hopkinson II). He also filed a number of post-trial motions in the Wyoming courts, all of which have been denied. Hopkinson presents the following arguments for invalidating his murder convictions: (1) the introduction of evidence of prior crimes, wrongs or bad acts denied him a fair trial; (2) the introduction of Green’s and Vehar’s out-of-court statements violated his constitutional rights to confrontation and cross-examination; (3) he was denied effective assistance of counsel; (4) prosecutorial misconduct in closing argument denied him a fair trial; (5) the trial atmosphere violated his due process rights; and (6) the prosecution’s suppression of exculpatory evidence denied him due process. Hopkinson argues that we should invalidate the death sentence imposed in the second sentencing proceeding on the following grounds: (1) the “especially heinous, atrocious or cruel” aggravating circumstance was applied unconstitutionally; (2) the prosecutor’s argument violated the rule of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985); (3) the conduct of the penalty hearing permitted the jury to impose the death penalty in an arbitrary and capricious manner and violated his right to due process; (4) he was denied effective assistance of counsel; (5) adverse publicity generated by the prosecutor shortly before the hearing denied him a fair trial; and (6) the prosecution’s knowing use of false testimony violated due process. Hopkinson also asserts that Wyoming’s procedures for postconviction relief are invalid under the Fourteenth Amendment. Finally, he appeals the summary dismissal of his Freedom of Information Act request for certain FBI files. II The Facts The following briefly summarizes the principal evidence produced by the prosecution at the guilt phase of Hopkinson’s trial. Hopkinson did not testify at the trial, and, at his direction, the defense put on no evidence. VIII-M R. 1690-95. A. The Vehar Murders In December 1975, Hopkinson requested the Fort Bridger, Wyoming, Sewer and Water Board to annex a trailer court owned by his family, then under construction, to the Fort Bridger Sewer District and to hook the entire trailer court onto the district’s sewer lines for the usual $100 hookup fee. VIII-D R. 96. Vincent Vehar, the board’s attorney, advised the board that $100 was inadequate payment for connecting the entire trailer court onto the sewer. Id. at 97, 100-01. Before the board took any official action on the request, a petition which Ve-har drafted, id. at 234-35, and which ninety-five percent of the district’s membership signed, was presented to the board, requesting it to increase Hopkinson’s connection fee. Id. at 235, 257-58. After conducting several public hearings, the board entered into a contract with Hopkinson providing for the annexation of his property to the district and requiring the payment of $300 for each trailer connected, for a total of $12,300. Id. at 106. Pursuant to the contract Hopkinson agreed to pay the connection fee in installments, id. at 115, and to pay a monthly service fee of $120, id. at 238. Hopkinson connected the trailer court to the sewer but then refused to pay amounts owing under the contract. Id. at 199-200; VIII-E R. at 339-41. The board, represented by Vehar, decided to sue him. This lawsuit, filed on January 28, 1977, sought the $12,300 fee, plus additional monies for legal and engineering costs incurred in connecting the trailer park to the system. VIII-D R. at 115-17. The suit also sought $1,000 actual damages and $50,000 punitive damages for threats Hopkinson allegedly made against the board members to convince them to disavow the contract. Id. at 129. Once the suit was filed, Vehar withdrew from the case because he anticipated being called as a witness. Id. at 105. His associate, John Troughton, replaced him. Id. On August 1, 1977, the board met to discuss the lawsuit and to assist Troughton in preparing for Hopkinson’s deposition. VIII-E R. 280-81. Hopkinson attended part of this meeting and repeatedly asked the board to fire Vehar and to submit the dispute to arbitration. Id. at 286-87, 301-02. The board decided, however, to maintain the lawsuit. On August 3, Troughton sent notice to Hopkinson’s attorney that he would depose Hopkinson on August 9 in connection with the sewer board’s lawsuit. VIII-D R. 118-21. At approximately 3:35 a.m. on August 7, an explosion destroyed Vehar’s home and killed Vehar, his wife, and his younger son. Another son, Tony, was injured in the blast but survived. An investigation by the federal Bureau of Alcohol, Tobacco and Firearms revealed that a dynamite bomb caused the explosion. VIII-H R. 1326. A few days later, Hopkinson told a sewer board member, “I’m glad the old son-of-a-bitch [Vehar] is dead. If somebody wouldn’t have done it, I would have done it myself.” VIII-E R. 367. Nearly two years later, in 1979, Michael Hickey confessed to bombing the Vehars’ home. Testifying at trial under a grant of immunity, Hickey stated that Hopkinson first asked him in early 1977 whether he would kill Vehar for $2,000 plus expenses. VIII-G R. at 916. Hopkinson knew at that time that Hickey had killed a local fifteen-year-old girl, Kelly Wyckhuyse. Id. at 913-15. Over a period of several months, the two discussed various methods of accomplishing Vehar’s murder. Id. at 917-29. As the deposition in the sewer board case neared, Hickey testified that Hopkin-son became “desperate,” id. at 930, and decided that a dynamite explosion of Ve-har’s house would be the best way to kill Vehar, id. at 930-33, 971-72. Hickey agreed to bomb the house for the offered sum plus Hopkinson’s help should Hickey be charged for Wyckhuyse’s murder. Id. at 932. Hopkinson told Hickey that he did not care if the bomb killed everyone in the house, id. at 932, 971, 987, or if it killed half of Evanston, Wyoming, VIII-H R. 1231, so long as it killed Vehar. On August 6, Hickey saw Hopkinson outside a clothing store Hopkinson operated. Hopkinson told him repeatedly that he wanted Vehar killed that night. VIII-G R. at 969-70, 976. Hickey went to a local bar that evening and stayed there until approximately 1:30 a.m. After the bar closed, he spent approximately an hour with a woman who had been at the bar. Id. at 1007. He then went to his girlfriend’s house, id. at 1029-30; finding that she was not home, he left for Evanston, where Vehar lived. Upon arriving in Evanston, he cased the Vehar home. Id. at 1015-18. He then threw a bomb, which contained approximately thirty sticks of dynamite, id. at 1071, into the basement of the house, id. at 1022-23. After throwing the bomb, Hickey immediately headed back to the Bridger Valley. In Hickey’s words, he bombed the Vehar home that night because “Mark Hopkinson was going to pay me and he just kept after and kept after me, finally I just did it to get him off my back.” Id. at 1034. Hopkinson told Hickey that they should not be seen together after the bombing, so Hickey rarely went to see Hopkinson. VIII-H R. 1132-33; VIII-J R. 1023. Hickey did show up occasionally to collect for the killing, however. According to Hickey, Hopkinson gave him a gift certificate of $200, to give to his girlfriend, Jennifer Lar-chick. VIII-G R. 1036-37. Hopkinson later paid him approximately $500 in two payments, id. at 1038, 1045, and gave him clothes from his store, id. at 1039. Hopkin-son also helped orchestrate a plan to cover up Hickey’s involvement in the Wyckhuyse murder, which involvement Hopkinson had discovered before commissioning the bombing. According to this plan, Hopkinson, Hickey, and Jeff Green would all testify that another person had killed Wyckhuyse. See infra. Hopkinson also asked a woman to tell authorities that Hickey was with her when Wyckhuyse was killed. VIII-G R. 1100-02. Other evidence corroborates Hickey’s confession. He was seen with thirty or more sticks of dynamite in the back of his truck a week before the bombing. VIII-H R. 1310. The morning of the bombing, a deputy sheriff saw him traveling on the interstate west toward Evanston. VIII-H R. 1276-78,1281. Jeffrey Kofroth testified that he was hitchhiking that morning and that Hickey, who was traveling east toward the Bridger Valley, picked him up just outside Evanston between 3:30 and 4:00 a.m. VIII-I R. 796-99. The record also corroborates, both directly and indirectly, Hickey’s implication of Hopkinson in the Vehar murders. Lar-chick testified that Hickey gave her a gift certificate of $200 in August 1977 to use toward her rent. VIII-K R. 1278. In October 1977, Hopkinson borrowed the car of an employee, Judy Jensen, to meet Hickey, as he did not want anyone to notice him talking with Hickey. VIII-J R. 1023. Several witnesses testified that Hopkinson did in fact help devise and participate in a plan to testify falsely in order to clear Hickey of the Wyckhuyse murder charges. In addition, Hopkinson did not conceal his dislike for Vehar, and he previously had hired another person, Harold James Taylor, to kill him, but Taylor backed out. In 1978, after Jeff Green had testified contrary to Hopkinson’s direction, including, inter alia, that Green believed Hopkinson had been responsible for Vehar’s death, Hop-kinson told Green’s sister, Judy Jensen, “[Everything Jeff said is the truth but they’ll never get me because I’ll lie about it to the end....” VIII-J R. 1015. B. The Green Murder In 1977 Hopkinson hired Jeff Green, who previously had worked for Hopkinson as a carpenter, to plant a bomb on the car of George Mariscal, an attorney who lived in Phoenix, Arizona and who allegedly owed Hopkinson money. Green left for Arizona in Hopkinson’s car with a two-stick dynamite bomb. VIII-H R. 1355. However, Green was stopped on April 4, 1977, for speeding in Coalville, Utah, and the bomb was discovered. Id. Green was arrested and jailed; Hopkinson and Hickey bailed him out of jail. VIII-G R. 908-10. That fall, police questioned Jamey Hysell about several larcenies. As bargaining leverage, he told them about Kelly Wyck-huyse’s murder. Hickey, who killed Wyck-huyse, had shown Hysell where he had buried her body, so Hysell was able to lead police to the body. As a result of Hysell’s information, Hickey was charged with this murder in October 1977. In order to save Hickey, Hopkinson devised a plan whereby Green, Hickey and Hopkinson would all implicate Hysell in the murder. VIII-G R. 1092-1100. Green told the county prosecutor and the grand jury investigating the murder that he saw Hysell covered with blood after the murder and later saw a homemade coffin in Hysell’s residence which had blood leaking from it. As a result of Green’s statements, the murder charge against Hickey was dropped, and Hysell was charged with Wyckhuse’s murder in March 1978. Green recanted, however, at Hysell’s murder trial in July 1978. VIII-I R. 936, 943-44. Green testified that Hopkinson had directed him to implicate Hysell but that Hickey had actually killed Wyckhuyse. Id. at 939-43. While on the stand, Green revealed his knowledge about other matters, as well. He testified that Hopkinson had hired him to bomb Mariscal’s car, id. at 945-46; he also testified that when he heard about the Vehar murders, “I had thought that Mark [Hopkinson] had the job done and I believed that he was responsible for it, but I never did know for sure.” Id. at 948. Hysell was acquitted of the murder charge. Green’s sister, Judy Jensen, was employed by Hopkinson at his clothing store at this time. VIII-J R. 998. Shortly after the Hysell trial, Jensen discussed with Hop-kinson whether he wanted her to continue working for him. Id. at 1013. According to Jensen’s testimony, the following exchange occurred: “[Hopkinson] asked me how I felt about it and I told him I felt everything Jeff said was the truth, and then he got really hysterical and told me he didn’t know why I believed Jeff and not him, and I told him, I said, Mark, if you’re innocent you have nothing to worry about and he says, well, everything Jeff said is the truth but they’ll never get me because I’ll lie about it to the end and besides Jeff will never live to testify against him because I’ll have him killed. The only way out for him is death because nobody does that to Mark Hopkinson.” Id. at 1015. Hopkinson repeated these threats on Green’s life each time he spoke with her over the next few days. Id. at 1017-19. Hopkinson was indicted in August 1978 on conspiracy charges arising out of the aborted plan to bomb Mariscal’s car. In March 1979 he and Hickey were tried on federal charges stemming from this incident; Green testified for the prosecution at this trial, in which Hopkinson was convicted and Hickey was acquitted. See United States v. Hopkinson, 631 F.2d 665, 666-69 (10th Cir.1980), cert. denied, 450 U.S. 969, 101 S.Ct. 1489, 67 L.Ed.2d 620 (1981). After Green testified, Hopkinson told his friend Jennifer Larchick that he would get Green. VIII-K R. 1219. Hopkinson was sentenced to ten years, which he commenced serving in the federal prison at Lompoc, California. At Lompoc Hopkinson had unlimited access to a telephone, VIII-J R. 1150-51, and he made numerous calls to friends. See Hopkinson I, 632 P.2d at 96 n. 9 (record of 114 calls Hopkinson made in April and May 1979). He called Hap Russell, a former roommate from Salt Lake City, who came to Lompoc to visit him. VIII-K R. 1346-48, 1356-57. He repeatedly called Lar-chick, who lived near Green, and asked about Green and the impending grand jury investigation of the Vehar bombing. Id. at 1225-27. Hopkinson several times sought a photograph of Green from Randy Rein-holtz. He also asked Larchick to send a photo of Green to Russell. Id. at 1228. Larchick eventually agreed to do this; she sent a photo cut from a high school yearbook to Russell on April 24, id. at 1235, 1237, and also showed Russell where Green lived. VIII-L R. 1454. She also told Hop-kinson that Green reputedly was talking with the prosecutors about the Vehar bombing. VIII-K R. at 1229-30. On May 2, Hopkinson began calling a former girlfriend, Kristi King, who lived in California. VIII-L R. 1618. During a phone conversation on May 19, she agreed that he could deposit some money in her bank account which she would keep for him. Id. at 1623-24. On May 16 Hopkinson called Larchick and asked if she had seen Green. Larchick testified that Hopkinson “couldn’t understand what [Green] was going to testify to because he heard that he had his mouth wired shut because he was having a bunch of dental work done_” VIII-K R. 1240. He asked Larchick to watch for cars with Utah license plates in Green’s neighborhood and to write down their license numbers. Id. at 1240-41. He asked her about the grand jury; she told him she had been subpoenaed and that it would soon begin its investigations. Id. at 1241-42. He called her on May 17 and again asked if she had seen Green. Id. at 1242-43. Meanwhile, Green had been away at a funeral. VIII-J R. 1052-53. After Green returned on the evening of May 17, two men went to the Green home and spoke to his mother. Id. at 1053. Green was not home at the time, and the two men left. They returned the next morning, and Green left with them. Id. at 1057-60. This was the last time Green was seen alive. Hopkinson called Larchick again on May 19 to inquire about Green; she told him Green was missing. VIII-K R. 1243-44. On May 20, the day before the grand jury investigating the Vehar murders was set to convene, Green’s body was found near a rest stop off Interstate 80, near Fort Bridger, Wyoming. VIII-J R. 1112-15, 1123-24. Green had received over 140 burns, id. at 1162-68, 1185, before he was killed by a gunshot wound, id. at 1181-82. When Hopkinson called Larchick that day, she advised him that Green was dead. VIII-K R. 1245. At Hopkinson’s direction, his mother transferred $15,000 into King’s bank account on May 21. VIII-L R. 1628-30. The next day King received a telephone call from a man who identified himself as “Joe” and who asked if she had received $20,000 in her account for him. Id. at 1633-34. “Joe” demanded that she meet him at the San Francisco airport to give him the money. Id. King refused, id. at 1635, and “Joe” called her again that night, id. at 1643. When Hopkinson called King on May 25, she asked him about Joe. Hopkin-son requested that she take the money to the airport. Id. at 1647-48. When she continued to refuse, Hopkinson asked that she send the money back to his brother, Scott. Id. Ill Hopkinson’s Challenge to the Murder Convictions Preliminarily, we reject Hopkinson’s claim, raised as issue VI in his appellate brief, that the federal district court improperly applied a presumption of correctness under 28 U.S.C. § 2254(d) to state law determinations on questions of .law or mixed questions of law and fact. Hopkinson has not identified, and we have not found, any legal issues to which the district court applied such a presumption. In any event, on appeal we review de novo all questions of law and mixed questions of law and fact. A. Evidence of Other Crimes, Wrongs, or Acts Hopkinson asserts that evidence of prior crimes, wrongs or acts was improperly admitted under Wyo.R.Evid. 404(b), and that the admission of this evidence denied him a fair trial. We note that despite defense counsel’s occasional failure at trial to interpose timely objections, all of the evidentiary issues Hopkinson raises are properly before us since the Wyoming Supreme Court considered the merits of these issues on direct appeal in order to determine whether plain error had occurred. Hopkinson I, 632 P.2d at 124-27. In order for a federal court to grant habeas relief based on state court evidentiary rulings, the rulings must “render the trial so fundamentally unfair as to constitute a denial of federal constitutional rights.” Brinlee v. Crisp, 608 F.2d 839, 850 (10th Cir.1979), cert. denied, 444 U.S. 1047, 100 S.Ct. 737, 62 L.Ed.2d 733 (1980). Thus, we will not disturb a state court’s admission of evidence of prior crimes, wrongs or acts unless the probative value of such evidence is so greatly outweighed by the prejudice flowing from its admission that the admission denies defendant due process of law. Woodruff v. Lane, 818 F.2d 1369, 1373 (7th Cir.1987); see also Wood v. Lockhart, 809 F.2d 457, 460 (8th Cir.1987). After considering all of the evidence here of prior crimes, wrongs or acts, we conclude that its introduction did not render Hopkinson’s trial fundamentally unfair. Most of this evidence came in to illustrate the intensity of the disputes between Hop-kinson and Vehar, and therefore helped to establish a motive for Hopkinson to kill Vehar. For example, the evidence of the 1974 dispute between the Hopkinson family and the Sweat family, including Arlene Sweat’s testimony describing Joe and Mark Hopkinson’s assault of her father, VIII-E R. 394-96, was relevant to Hopkinson’s motive to kill Vehar, because Vehar represented the Sweats in this dispute, see VIII-E R. 389-92, 405-06. The evidence of Hopkinson’s attempt to bribe board member Kenneth Near to testify for Hopkinson in a lawsuit he planned to file against the sewer board, VIII-D R. 256-59, was relevant to show the background and intensity of the dispute between Hopkinson and the sewer board. It thus helped to establish Hopkinson’s motive to kill the board’s attorney, Vehar. Roger Coursey’s testimony was relevant to all four murder counts. Coursey, a narcotics agent who investigated Hopkinson in an undercover capacity in early 1977, testified that Hopkinson offered to supply him with a driver “to bring certain [illegal] articles into Wyoming from out of state,” VIII-E R. 587, and that Hopkinson identified Green as a driver who would be good at performing such a task. Id. at 589. Although this testimony, by alluding to Hopkinson’s unrelated criminal activity, potentially prejudiced Hopkinson, the prejudicial impact of this testimony did not clearly outweigh its probative value. The evidence that Hopkinson could arrange for Green to transport illegal articles was relevant to show that Green might have had knowledge of illegal activity by Hopkinson. As such, this evidence would be relevant to show a motive for Hopkinson to kill Green just before Green was scheduled to testify before a grand jury. Coursey also testified that Hopkinson told him, “if we wanted someone ripped off [sic] that he could have it done and we could have these individuals fucked up bodily for life or we could just fuck them up a little bit or not hurt them at all.” VIII-E R. 590. Hopkinson said that dynamite or explosives could be used to achieve those ends. Id. at 591. These statements were admissions by Hopkinson that he could arrange for people to be injured by the use of explosives, and thus were relevant to the Vehar murder charges. The admission of other evidence, even if error, was harmless beyond a reasonable doubt. Evidence twice came in of an assault on J.R. Goo, a member of the Bridger Valley Sewer Board. This evidence was first introduced through the testimony of William Roitz, another member of the board, as background showing why a sewer board meeting was canceled. VIII-D R. 204-06. Goo later testified, as well, that he was beaten. VIII-E R. 342-43. Hopkinson argues that because no evidence at trial directly connected him with the assault of Goo, and because the jury could have inferred that Hopkinson had orchestrated the assault, this testimony rendered the trial unfair. Even if the jury improperly concluded that Hopkinson had Goo assaulted, however, the prejudice that would have resulted from this conclusion was insignificant in comparison to all of the properly admitted evidence of Hopkinson’s guilt. Hopkinson’s prior trial for marijuana possession was mentioned twice in the testimony of Donley Linford, Green’s former attorney. VIII — I R. 927, 929. Both references were made to establish the approximate time that certain conversations took place between Green and Linford. The prejudicial impact in a murder trial of these two statements was miniscule. Likewise, Hap Russell’s testimony that Hopkinson placed a few bets with Russell and that Hopkinson knew that Russell’s activity was illegal, VIII-K R. 1340-41, 1343-44, did not greatly prejudice Hopkinson and was relevant as background to establish both the relationship between Hopkinson and Russell and that Hopkinson might have turned to Russell for help in procuring the murder of Jeff Green. Kristi King’s testimony that Hopkinson was associated from 1971 to 1973 with Richard Taylor, a “con man,” VIII-L R. 1610-14, was also not unduly prejudicial to Hopkinson, even though its relevance was doubtful. Jim Phillips’ admission that it was unethical for him to represent Hopkinson in the dispute with the sewer board while Phillips was county attorney, VIII-F R. 614-15, did not prejudice Hopkinson. Likewise, evidence that Vehar represented Hopkinson’s mother in a divorce proceeding and an involuntary commitment proceeding of Hop-kinson’s father to a mental institution, VIII-D R. 156, did not unfairly prejudice Hopkinson and was relevant to show a possible motive for Hopkinson to kill Ve-har. Hopkinson also objects to the admission of Harold James Taylor’s testimony that Hopkinson solicited Taylor to telephone George Mariscal in Phoenix about money that Mariscal ■ owed Hopkinson. VIII-F R. 714-16. The court, however, issued a limiting instruction with respect to this testimony, and we cannot see how its admission unfairly prejudiced Hopkinson. In sum, most of the evidence objected to here was properly admitted. Those items whose relevance was questionable or improper separately and collectively constituted such a minor part of the trial that the evidence could not have prejudiced Hopkin-son unfairly. B. Joinder of Conspiracy Charge Hopkinson complains that it was error to join in his murder trial the count charging him with conspiracy with Harold James Taylor to murder Vehar. Hopkin-son first alleges that there was no evidence before the grand jury of a conspiracy with Taylor to commit murder; thus, he argues, it should not have returned a count alleging such a conspiracy. Hopkinson would have us dismiss the indictment on the Taylor conspiracy count even though he was convicted at trial on this count. We cannot agree. The sufficiency of evidence supporting a grand jury’s indictment cannot be challenged in a federal post-conviction ha-beas corpus proceeding. Tijerina v. Estelle, 692 F.2d 3, 6 (5th Cir.1982). Alternatively, Hopkinson asserts that even if the indictment was returned properly, the Taylor conspiracy count should not have been joined with the other counts at trial. Joinder of offenses in criminal proceedings in Wyoming state court is governed by Wyo.R.Cr.P. 11(a), which allows joinder of two or more offenses if they are “of the same or similar character or are based on the same act or transaction, or on two (2) or more acts or transactions connected together or constituting part of a common scheme or plan.” Wyo. R.Cr.P. 13 allows a defendant or the state to move for severance; on a motion for severance the burden is on the movant to demonstrate that a joint trial would result in such prejudice that a fair trial would be denied. Dobbins v. State, 483 P.2d 255, 259 (Wyo.1971). Because the count charging Hopkinson with conspiracy with Taylor to kill Vehar was so related to the counts charging Hopkinson with the murders of the Vehars, joinder was proper; the state trial court, in denying the motion, did not abuse its discretion in a manner affecting the fundamental fairness of the trial. See United States v. Dickey, 736 F.2d 571, 591 (10th Cir.1984), cert. denied, 469 U.S. 1188, 105 S.Ct. 957, 83 L.Ed.2d 964 (1985). C. Hearsay and the Confrontation Clause Hopkinson contends that the introduction into evidence of out-of-court statements of murder victims Vehar and Green violated his rights under the Confrontation Clause of the Sixth Amendment. In a habeas corpus proceeding, we need not address whether hearsay evidence was properly admitted under the Wyoming Rules of Evidence or whether admission would have been proper under the Federal Rules of Evidence; rather, our inquiry is limited to determining whether the admission of hearsay evidence deprived Hopkin-son of his rights under the Sixth Amendment to confront and cross-examine the witnesses against him. These rights are fundamental to our Constitution and made applicable to state proceedings by the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 1067, 13 L.Ed.2d 923 (1965). In Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the Supreme Court analyzed the relationship between the Confrontation Clause and the hearsay rules of evidence and established the following general approach: “[W]hen a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate ‘indicia of reliability.’ Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.” Roberts, 448 U.S. at 66, 100 S.Ct. at 2539. “[T]he mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that ‘the trier of fact [has] a satisfactory basis for evaluating the truth of the prior statement.’ ” Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 220, 27 L.Ed.2d 213 (1970) (quoting California v. Green, 399 U.S. 149, 161, 90 S.Ct. 1930, 1936, 26 L.Ed.2d 489 (1970)). All of the hearsay Hopkinson challenges was found by the Wyoming Supreme Court to have been admitted properly under the “catch-all” exception of Wyo. R.Evid. 804(b)(6), which is identical to Fed.R.Evid. 804(b)(5). Hopkinson J, 632 P.2d at 127-37. Because this provision is not a “firmly rooted hearsay exception,” see United States v. Marchini, 797 F.2d 759, 764 (9th Cir.1986), cert. denied, 479 U.S. 1085, 107 S.Ct. 1288, 94 L.Ed.2d 145 (1987); United States v. Barlow, 693 F.2d 954, 964 (6th Cir.1982), cert. denied, 461 U.S. 945, 103 S.Ct. 2124, 77 L.Ed.2d 1304 (1983), reliability sufficient to satisfy the Confrontation Clause is not demonstrated merely by showing the evidence was properly admitted under Wyo.R.Evid. 804(b)(6) or that it would have been proper under Fed.R.Evid. 804(b)(5). Conversely, admission of the evidence in violation of the Wyoming rules would not of itself constitute a violation of the Confrontation Clause. California v. Green, 399 U.S. at 156, 90 S.Ct. at 1934; Barker v. Morris, 761 F.2d 1396, 1400 (9th Cir.1985), cert. denied, 474 U.S. 1063, 106 S.Ct. 814, 88 L.Ed.2d 788 (1986); Rado v. Connecticut, 607 F.2d 572, 578 n. 4 (2d Cir.1979), cert. denied, 447 U.S. 920, 100 S.Ct. 3009, 65 L.Ed.2d 1112 (1980). The first aspect of the Roberts analysis—the unavailability of the declarant to testify at trial—is easily met here since both of the declarants, Vehar and Green, were dead. The second aspect of the Roberts analysis — whether the declarants’ statements bear adequate “indicia of reliability” — requires more attention. We turn to this question. 1. Vehar’s Out-of-Court Statements Testimony at trial related Vehar’s statements that he was afraid of Hopkinson, that he feared for his life, and that Hopkinson had threatened him. Specifically, Hopkinson objects to the following: (1) John Troughton’s testimony that Vehar told him that Hopkinson threatened Vehar, VIII-D R. 134; (2) Dorothy Price’s testimony that Vehar told her that Hopkinson had threatened him, VIII-F R. 658; (3) Ted Taylor’s testimony that Vehar told him that Hopkinson had threatened Vehar, VIII-F R. 691-92; (4) the testimony of Vehar’s surviving son, Tony, that Vehar feared for his own safety due to the sewer board’s lawsuit against Hopkinson, VIII-I R. 845-47; (5) Price’s testimony that Vehar asked then-prosecutor Jim Phillips to file a complaint against Hopkinson for Hopkinson’s assault of Frank Roitz, VIII-F R. 659-61; and (6) Price’s testimony relating a telephone call that Vehar placed to the Wyoming Attorney General’s office. VIII-F R. 662-64. Vehar’s out-of-court statements that Hopkinson threatened him and that he feared Hopkinson possess sufficient “indi-cia of reliability” to satisfy the Confrontation Clause. Five witnesses — Troughton, Price, Taylor, Tony Vehar, and Phillips— each testified to the same effect: Vehar told them that Hopkinson threatened him' or that he had reason to fear Hopkinson. This demonstrates beyond a reasonable doubt that Vehar made the statements and corroborates that he did in fact fear Hop-kinson. That Vehar feared for his safety was corroborated further by his own actions and appearance. Every day for three months Vehar would wait in the doorway of his office before crossing the street to Taylor’s bar until Taylor, an ex-prize fighter, could see him. VIII-F R. 689-70. Shortly before his death, Vehar started making investments to prepare for his wife’s future — something “he had never done before,” according to his son, Tony. VIII-I R. 844-45. His -secretary, Price, testified that although Vehar “didn’t frighten easily,” he was “white as a sheet” out of fear. VIII-F R. 657-58. Such “dependent corroboration is an important indicium of reliability in Confrontation Clause analysis. See, e.g., United States v. Roberts, 583 F.2d 1173, 1176-77 (10th Cir.1978), cert. denied, 439 U.S. 1080, 99 S.Ct. 862, 59 L.Ed.2d 49 (1979); Berrisford v. Wood, 826 F.2d 747, 750 (8th Cir.1987), cert. denied, — U.S.-, 108 S.Ct. 722, 98 L.Ed.2d 671 (1988); Barker, 761 F.2d at 1402; Barlow, 693 F.2d at 965; Rado, 607 F.2d at 580. When out-of-court statements are corroborated as extensively as here, the corroboration alone may be sufficient to guarantee that the statements were trustworthy. We note several additional particularized guarantees of trustworthiness in Vehar’s statements: Vehar had personal knowledge of the matters about which he spoke, see Barker, 761 F.2d at 1402; United States v. McManaman, 653 F.2d 458, 461 (10th Cir.1981); the statements concerned recent events, see id.; he volunteered the statements, see Barker, 761 F.2d at 1401; and there is no reason to suspect that he was not telling the truth, see United States v. Chappell, 698 F.2d 308, 313 (7th Cir.), cert. denied, 461 U.S. 931, 103 S.Ct. 2095, 77 L.Ed.2d 304 (1983). Similarly, Hopkinson’s Confrontation Clause rights were not violated by Price’s testimony about Vehar’s request on behalf of Frank Roitz that the prosecutor file charges against Hopkinson for assault and battery; Arlene Sweat’s testimony corroborated much of the substance of the statements. Sweat testified that she and Roitz had consulted with Vehar shortly after the assault, VIII-E R. 404-05; that Phillips refused to press charges against Hopkin-son, id. at 405-06; and that Phillips was also representing Hopkinson in a civil matter, id. at 407. Finally, assuming arguendo that Price’s testimony about Vehar’s telephone conversation with the Wyoming Attorney General’s office in which Vehar stated, “there’s going to be a killing in this area, you carrying [sic] it on your conscious [sic] because I’ll not carry it on mine,” VIII-F R. 662, did not in fact refer to Hopkinson, see II R. tab 48, Exhibit K (ATF report produced by Hopkinson after trial indicating that this statement did not refer to Hopkinson), no new trial is required. Any error in admitting that statement was harmless beyond a reasonable doubt. See Delaware v. Van Arsdall, 475 U.S. 678, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986) (harmless error analysis applies to Confrontation Clause errors). Five witnesses testified that Vehar told them that Hopkinson had threatened him. Furthermore, the evidence of the threats was only a minor part of the prosecution’s case. Hopkinson’s motive to kill Vehar was also demonstrated by the evidence of the many disputes between Hopkinson and parties represented by Vehar. And Michael Hickey, the person who actually killed Vehar, testified in detail about Hopkinson hiring him to do so. 2. Green’s Out-of-Court Statements Hopkinson similarly objects to the introduction of murder victim Green’s out-of-court statements. The most damaging of these statements were those that Green believed that he would be killed if he testified against Hopkinson. As was true with the Vehar hearsay, these statements were corroborated by the testimony of several witnesses. Green’s former attorney, Donley Linford, VIII-I R. 917-18, 933-34, 952, and Green’s sister, Judy Jensen, VIII-J R. 1003-09, both testified that Green expressed fear that he would be killed if he testified contrary to Hopkinson’s wishes in Jamey Hysell’s murder trial. See United States v. Vretta, 790 F.2d 651, 659 (7th Cir.) (that declarant told several persons, including two disinterested third parties, about threats lent credibility to fact that declarant had stated he had been threatened), cert. denied, 479 U.S. 851, 107 S.Ct. 179, 93 L.Ed.2d 115 (1986). Furthermore, Bill Blair, who was then a special agent with the federal Bureau of Alcohol, Tobacco and Firearms, testified that Green refused relocation under a federal witness protection program because “[Green] figured they could get him any time they wanted to no matter where he was.” VIII-K R. 1194. That Green feared for his life was corroborated by his action in attempting to purchase life insurance the day before he disappeared. See VIII-H R. 1340-42. It is true that Green’s recantation of testimony at the Hysell trial calls his credibility into question. However, Green’s pri- or inconsistent statements about Hysell were explained by the fact that Hopkinson and Hickey had directed Green to implicate Hysell. See VIII-G R. 1093-1103 (testimony of Michael Hickey). Green had no similar motive to lie about his fear of Hop-kinson; if anything, his sense of impending death may have made his testimony more reliable. See Barker, 761 F.2d at 1401. More importantly, the fact that Green had recanted prior inconsistent statements came before the jury. Thus, the jury had a sufficient basis for judging Green’s credibility, even though he was not present for cross-examination. See Dutton, 400 U.S. at 89, 91 S.Ct. at 220 (plurality opinion); Roberts, 583 F.2d at 1176. Further, even if the admission of Green’s out-of-court statements about Hopkinson asking him to figure out how to bomb Vehar’s car or kill Vehar violated the Confrontation Clause, see VIII-I R. 926-28, any such error was harmless beyond a reasonable doubt. Hopkinson’s motive to kill Vehar had been demonstrated by overwhelming evidence, and his involvement in Vehar’s death was established by the testimony of Hickey, the man who actually killed Vehar. 3. Green’s Testimony at the Hysell Trial Finally, we discuss the propriety of admitting Green’s testimony from the trial of Jamey Hysell for the murder of Kelly Wyckhuyse. The essence of the testimony, according to Donley Linford, who was Green’s attorney at that time, was that Michael Hickey, not Hysell, had killed Wyckhuyse. See VIII-I R. 934. Because Hopkinson was not a party to this trial, this testimony would not be admissible under the former testimony exception to the hearsay rule in Wyo.R.Evid. 804(b)(1), which is identical to Fed.R.Evid. 804(b)(1). See United States v. Feldman, 761 F.2d 380, 384-87 (7th Cir.1985). The portions of Green’s testimony from the Hysell trial introduced into evidence and read to the jury included several statements damaging to Hopkinson with respect to the Vehar murders, see VIII-I R. 947-48, and other prior acts of Hopkinson, see VIII-I R. 937-46. This testimony might present Hopkinson with a colorable Confrontation Clause claim had it been offered for the truth of the matters contained in Green’s statements — for example, that Hopkinson wanted Vehar killed. See Mattes v. Gagnon, 700 F.2d 1096, 1100-04 (7th Cir.1983) (admission of testimony from prior unrelated criminal trial violated defendant’s Confrontation Clause rights). But the trial court instructed the jury that the testimony was admitted only to prove that Green had made the statements, VIII-I R. 935, a nonhearsay purpose. As the Supreme Court held in Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 2081-82, 85 L.Ed.2d 425 (1985), the non-hearsay use of an out-of-court statement does not violate the Confrontation Clause. See also Dutton, 400 U.S. at 88, 91 S.Ct. at 219 (“Neither a hearsay nor a confrontation question would arise had Shaw’s testimony been used to prove merely that the statement was made.”). Indeed, considering the delicate situation, it is difficult to see what else the trial court should have done. As in Street, the non-hearsay use of this evidence was critical to the prosecution’s case. See 471 U.S. at 413-16, 105 S.Ct. at 2081-83. Evidence that Green had presented testimony in an earlier trial implicating Hopkinson was crucial to demonstrate that Hopkinson might believe that Green would testify against him before the grand jury investigating the Vehar murders. Thus, this evidence was extremely probative on the issue of Hop-kinson’s motive to order the killing of Green. If the instant trial had been only for the murder of Green, Green’s testimony at the Hysell trial clearly would have been admissible. The possibility that this testimony might unfairly prejudice Hopkinson resulted from the joinder of the Vehar murder counts in the same trial with the Green murder count, which joinder Hopkinson does not challenge. To mitigate the potential for prejudice the court instructed the jury not to use the evidence for a hearsay purpose. This was sufficient to protect Hopkinson’s rights under the Confrontation Clause. See Street, 471 U.S. at 415 n. 6, 105 S.Ct. at 2082 n. 6 (“The assumption that jurors are able to follow the court’s instructions fully applies when rights guaranteed by the Confrontation Clause are at issue.”). Furthermore, even if the jury disregarded the court’s instruction and considered Green’s testimony as proof that Hopkinson had planned to kill Vehar, the prejudicial effect of such evidence would have been very slight. Hickey, the prosecution’s primary witness, had previously testified in detail about Hopkinson’s plans to kill Vehar and about carrying out the actual murder at Hopkinson’s direction. D. Ineffective Assistance of Counsel Hopkinson argues that he was denied a fair trial at the guilt stage because of the ineffective assistance of his counsel. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court adopted a two-part test for determining whether a criminal defendant’s representation was constitutionally ineffective. First, the defendant must show that counsel’s performance was deficient — that is, “that counsel’s representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. at 2064. In making this assessment, “scrutiny of counsel’s performance must be highly deferential.... [A] court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance....” Id. at 689, 104 S.Ct. at 2065. Once the defendant has established that counsel’s performance was deficient, he must then show that this deficiency prejudiced his defense — that is, “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068. The defendant must meet both of these requirements to establish a claim of ineffective assistance of counsel. Id. at 697, 104 S.Ct. at 2070; Coleman v. Brown, 802 F.2d 1227, 1233 (10th Cir.1986), cert. denied 482 U.S. 909, 107 S.Ct. 2491, 96 L.Ed.2d 383 (1987). Because “a state court conclusion that counsel rendered effective assistance is not a finding of fact,” Strickland, 466 U.S. at 698, 104 S.Ct. at 2070, we review de novo the merits of Hopkinson’s claim. Hopkinson asserts that his attorneys at the first trial, Robert Van Sciver and Edward Brass, who were not appointed counsel but were selected and paid by Hopkinson, were inadequate in the following ways: (1) they failed to prepare adequately for trial; (2) they failed to object to inadmissible evidence and to prosecutorial and judicial misconduct; and (3) “Van Sciver was obviously intimidated by the prosecution,” Brief for Petitioner-Appellant at 141. Most of the specific allegations of counsel’s unpreparedness are based on Van Sciver’s statements during a discussion in chambers immediately after his opening statement to the jury. The trial judge, who was present during all of this discussion, made the following assessment of Van Sciver’s preparation: “[Tjhere was a time when Mr. Hopkinson said to me in this room that he was concerned about Mr. Van Sciver representing him because he didn’t know if he had had enough time to prepare. It is now obvious to the Court that Mr. Van Sciver has been doing his homework and he is well prepared. And I will not ask the Defendant, but my feeling is that the Defendant certainly knows that.” VIII-D R. 59. After reviewing the entire transcript of the trial, and carefully considering Hopkinson’s specific allegations of unpreparedness by his trial counsel, we conclude that Van Sciver and Brass were indeed adequately prepared. We have reviewed each of the instances called to our attention in which defense counsel failed to object to evidence or failed to request a limiting instruction. We disagree with Hopkinson’s claim that these omissions were “outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690, 104 S.Ct. at 2066. The record demonstrates that Hop-kinson has greatly exaggerated the extent of and possible prejudicial effect resulting from the omissions identified. In fact, the defense counsel actively raised evidentiary objections throughout the trial. We also find no support in the record for Hopkinson’s assertion that his counsel was “obviously intimidated by the prosecution” and that “the overbearing and intimidating tactics of Special Prosecutor [Gerald] Spence and the circumstances surrounding the trial rendered defense counsel Van Sciver impotent as an effective advocate on Hopkinson’s behalf.” Brief for Petitioner-Appellant at 143. Even if Van Sciver was intimidated by his adversary, his representation of Hopkinson did not fall below the “objective standard of reasonableness” that we must apply under Strickland. We disagree with Hopkinson’s assertion that Van Sciver “yielded his advocacy,” id. at 148, by apologizing to the jury for overstating certain facts in his opening statement. VIII-N R. 1942. It was reasonable trial strategy for Van Sciver to admit to the court and the jury that certain overstatements had been made in order to defuse the prosecutor’s earlier criticism of these overstatements. In sum, because the record adequately demonstrates that Hopkinson’s representation at trial met the Strickland standard for effectiveness, we affirm the district court’s dismissal of this claim without an evidentiary hearing. See Hopkinson VIII, 645 F.Supp. at 422. E. Prosecutorial Misconduct Hopkinson alleges several acts of misconduct by special prosecutor Gerald Spence during the guilt stage of the trial. We will first discuss some of the allegations that lack merit. Hopkinson asserts that the prosecutor committed misconduct by calling John Suesata to testify, knowing that Sue-sata would assert a Fifth Amendment privilege. As a general proposition it is misconduct for a prosecutor to present a witness knowing that the witness will refuse to testify, see United States v. Coppola, 479 F.2d 1153, 1159-61 (10th Cir.1973). The record, however, demonstrates that the prosecutor was aware only that Suesata planned to claim a Fifth Amendment privilege with respect to certain lines of questioning. See VIII-L R. 1582-83, 1586-88. After discussing the matter at the bench, the trial court allowed Suesata to be called to the stand. Only then did it become apparent that Suesata would refuse to testify about virtually anything. See id. at 1596-97, 1601-04. Because the prosecutor quickly terminated the questioning, we see nothing improper with his conduct. Cf. United States v. Harper, 579 F.2d 1235, 1240 (10th Cir.) (prosecutor did not commit misconduct by calling witness who asserted privilege when prosecutor did not know definitely that witness would not testify), cert. denied, 439 U.S. 968, 99 S.Ct. 459, 58 L.Ed.2d 427 (1978). Nor do we agree with Hopkinson’s contention that it was improper for the prosecutor, in closing argument, to say, “And so they went to good old reliable Johnny Suesata, of course. You saw him. You at least got to look at him.” VIII-N R. 1803. It is improper for counsel to comment in closing argument about a witness’s exercise of a privilege, Coppola, 479 F.2d at 1161; but we do not construe this statement as an impermissible comment upon Suesata’s refusal to testify. We do not find misconduct in the prosecutor’s reference to the grand jury which investigated the Vehar murders as “the Spence grand jury, our grand jury.” This statement merely identified for the jury the particular grand jury investigation, among several, to which the prosecutor was referring. We are troubled, however, by several statements that prosecutor Gerald Spence made in closing argument. In arguing the issue of Hopkinson’s guilt, he made comments that arguably played upon the security precautions taken at trial: “[Hopkinson] played by his own rules. That’s the weapon of the criminal. The weapon of fear, the weapon of violence, the weapon of murder, the weapon of bribery, the weapon of perjury, and Vincent Vehar stood his ground and he died. He didn’t have any guards like we have. He had no protection. He was powerless and he died. Just simply died because he had no such weapons.” VIII-N R. 1788-89 (emphasis added). Although the fact that security personnel are present and conspicuous to a jury is not always “inherently prejudicial,” Holbrook v. Flynn, 475 U.S. 560, 572, 106 S.Ct. 1340, 1347, 89 L.Ed.2d 525 (1986), every precaution should be taken to prevent the presence of security from tainting a jury’s proper consideration of the defendant’s guilt or innocence. Thus, any prosecutorial argument purposefully capitalizing on the presence of security at trial is improper. The prosecutor also alluded to his own friendship with murder victim Vehar, and he incorporated personal observations of Vehar’s character: “They [the “little people” of society] had the rights and Vincent Vehar stood for those right [sic], ladies and gentlemen, and I was proud of him. He wasn’t going to waiver [sic] one inch. I never knew him to. And that was our Vincent Vehar who knew what it was to be powerless, and who knew what it was to be little, and to be rejected, and who knew what it was to be pushed around by those who had power.” VIII-N R. at 1786 (emphasis added). References to the prosecutor’s own observations of the victim’s character constitute improper argument. A prosecutor should not assert his personal knowledge of the facts, except when testifying as a witness. A.B.A. Model Code of Professional Responsibility DR 7-106(C)(3) (1981); A.B.A. Standards Relating to the Administration of Criminal Justice Standard 3-5.9 (2d ed. 1979). See United States v. Cardarella, 570 F.2d 264, 267 & n. 2 (8th Cir.), cert. denied, 435 U.S. 997, 98 S.Ct. 1651, 56 L.Ed.2d 87 (1978). The prosecutor also conveyed his personal knowledge of Green’s involvement in the investigation of the Vehar murders. We quote from the closing argument: “The dominos were going down and Mark Hopkinson was now in prison and was desperate, and he was desperate. Where is Green? Where is Green, he would say. What is he doing? What is he up to? Who is he seeing? What is he doing in Jackson? Who is he talking to in Jackson? What is he saying in Jackson? The telephone barrage has started in Lompoc prison, over a hundred calls, and the Grand Jury in Uinta County, the Spence Grand Jury, our Grand Jury was about to meet and he was now in a form of panic. Green was the chief witness and Green would talk. And Green who was the friend of Mary Margaret’s and Green who was the friend and companion now of Mr. Moriarity and who had turned around his life was going to talk to the Grand Jury.... And when Jeff came to Mary Margaret [Williams, Spence’s investigator] and to Eddie [Moriarity, Spence’s partner] and talked to them for hours and for days on end, what information had gone from Mike Hickey that would implicate the defendant to Jeff Green and from Jeff Green to the prosecution. [Hopkinson] had to know. Jeff Green had to be stopped.... And then I want you to see a Grand Jury being called by us to try to find out who were appointed as special prosecutors, Eddie and I, by Judge Brown. It was time that a special prosecutor that had no connection with the defendant be appointed. And our principal witness, we had worked with long and hard to find the facts, he had spent days and weeks with Mary Margaret and with Eddie. He was ready to testify and perhaps you knew something about what I had been doing in another jurisdiction, in another case. That case was over on a Friday and the Grand Jury was to start on that Tuesday, and our principal witness was found dead and tortured on the Sunday before. Now, that was the situation. And people are afraid. People in that little community were terrorized. I think you can understand what it might be. Jeff Green was known by everybody. Mark Hopkin-son was known by everybody. Everybody knew what was going on. The Grand Jury was meeting and that the principal witness was dead and mutilated. And the witnesses were afraid and our staff were afraid. Let’s just face it. And I’m not afraid to tell you that I was afraid.... Jeff started to talk ... and then Vehar, the Vehar Grand Jury, our Grand Jury, Jeff was ready to testify and Hopkinson not knowing what Jeff had told us had to go.... It was a series of tortures to find out what Jeff had told. What Jeff knew. What Jeff had told Mary Margaret. What Jeff had told Eddie. You know, I know Mary Margaret and Eddie Moriarity, my partner, would never have permitted Jeff to say a word to them had they known he would have gone through that unspeakable torture to find out what he had said to them.... Well, I’ll show you what the torture [of Jeff Green] did. The first thing it did is to find out what Jeff Green was told by Mike Hickey and what he knew and what he told Mary Margaret and Eddie.” VIII-N R. 1796, 1798, 1810-11, 1831-32, 1919-20. While we are troubled by several of the prosecutor’s statements in these passages, some of them were supported by the evidence. Although Williams, Moriarity and Green did not testify, Jennifer Larchick testified she told Hopkinson that Green had spoken with Moriarity in preparation for the grand jury investigation of the Vehar murders. See VIII-K R. 1226, 1229-30. She also testified that Hopkinson expressed concern over the grand jury investigation. Therefore, we reject Hopkinson’s claim that statements about Green’s involvement in the investigation were unsupported by the evidence and were improper expression of personal knowledge by the prosecutor. Several specific statements, however, had no evidentiary support in the record and therefore constituted improper argument. The prosecutor improperly expressed his personal opinion by stating that he knew that his partner and chief investigator would not have permitted Green to testify had they known Green would be tortured. The statement that the witnesses, the staff and the prosecutor himself were all afraid after Green’s death was an improper assertion of the prosecutor’s personal knowledge, as was the reference to Green’s friendship with Mary Margaret Williams and Ed Moriarity. See Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935); United States v. Latimer, 511 F.2d 498, 503 (10th Cir.1975). The most serious misconduct occurred during the prosecutor’s response, in closing argument and rebuttal, to defense counsel’s assertion in opening statement that “[t]he prosecution has prostituted itself ... for Mike Hickey. Mike Hickey has the swingingest deal of all time.” VIII-D R. 14. We quote extensively from the portions of the prosecutor’s closing argument responding to this charge: “So we gave immunity to Hickey, huh? Is that wrong? Are we the prostitutes that Mr. Van Sciver has accused us of being? Does that bother you? Let’s think about it a little bit together. In the first place, let’s assume for just a moment that I am, that Eddie is, that Mary Margaret is, that our staff is, that all the law enforcement officers are, that Judge Brown is, that we are all conspired together and we are all one huge group of prostitutes. And that together we gave Mr. Hickey immunity. Let’s assume that for the purpose of the argument. And, by the way, only for the purpose of the argument. Does that mean that Mr. Hopkinson is innocent? Does it mean that you defend yourself from the murder of 3 Vehars and 1 Green by saying, Spence is a prostitute? The State together is a prostitute? Does it make any difference? Or is it a smoke screen? It is always, ladies and gentlemen, the ploy of skilled defense attorneys to attack the State and the best defense is sometimes a good offense. The State prostituted itself. Now, we need to look at this matter in retrospect and to judge what was done. If you think we were wrong, if you think we were wrong, if you believe so, when you come down off the jury duty you can walk into my office and look me in the eye and say, ‘I think you prostituted yourself.' I will listen to that and I will respect your judgment if you have come to that conclusion. But it has nothing to do whatsoever with the guilt or innocence of the defendant, and you can see that now, and the Court has told you repeatedly about that. But, you know, I don’t like people to say that we prostituted ourselves. That hurts my feelings. We have contributed, all of us, about 2 years of our lives, scores of people, trying to get justice done for a just cause and I hope you won’t feel that we are prostitutes. I don’t want any of you to think that way of us. I want you to see this case as it was. And the evidence is clear that Mr. Hop-kinson was the man and Hickey had no reason to kill Vehar. He killed him but for no reason. He was the tool. Now, you know, I have spent a lot of time in the law, a lot of time thinking about things abstractly like justice, and the thing that always sickens me is when the little man, the one who wasn’t really ultimately, morally responsible for what happened is the one who goes to jail or goes to the gas chamber. And the big fish, the big fish go free because they have the money and the power and the position. Now, the question is: Who in this case was morally responsible? Eddie and I had to sit down and figure that out. We had to sit down and figure it out with the Judge, Judge Brown, and with the prosecution people, and with the Sheriff’s office, and with the Grand Jury. Who was morally responsible in this case for Vincent Vehar’s death? Was Hickey? Poor old drunken, depraved Hickey had gone out and killed Vincent Vehar, his own lawyer, his own friend. But for Hopkin-son, would the death have ever occurred? Vincent would be sitting here with me and I could feel his big, old hand on mine if it hadn’t have been any other way. Too often the little people are prosecuted and the big shots are let go.