United States v. Kendrick Weatherspoon

McKEOWN, Circuit Before TROTT SHADUR, District Senior Judges, and Judge.*

* Illinois, Shadur, by designation. sitting Unit- trict I. Senior The Honorable Milton Judge the Northern Dis- ed States District phrase cordingly OPINION we have substituted

ORDER WITHDRAWING for “such repeat-offender “such conduct” AND OPINION recidivist conduct.” ORDER expressed concerns As for the motion’s motion have received a Unit- We partial-concurrence-partial- regarding Attorney the District of Ne- dissent, ed States opinion has been revised to of the written seeking vada modification any to the name of the delete references (both majority in this case opinions Attorney who han- Assistant United States partial-concurrence-par- opinion and the case, making as well as certain dled the tial-dissent). here, For the reasons stated changes. original opinion other Hence the granted part. withdrawn, the motion is a opinion is ordered new place. has been substituted its majority opinion, the one As for is its the motion seeks modification OPINION “recidivist” from elimination of word this sentence: SHADUR, Judge. District Senior “un- such recidivist conduct as

To label (“Weather- Weatherspoon Kendrick remarkable” is itself remarkable. spoon”) appeals his conviction on one count mistakenly the motion character Because a felon-in-possession firearm. Be- “inartful,” usage something as prosecutorial izes miscon- cause we find that dispel be said to that notion. Web should during closing arguments duct affected Dictionary New International ster’s Third jury’s fair consideration of the evi- n dencein the primary definition and record, lists this as the we reverse and re- (true term’s example of “recidivist” for a trial. mand new etymology), medieval Latin and French giving secondary Background a definition refer

before Factual and Procedural ring repeat to criminal offenders: August approximately At 3 a.m. on relapses or has suffered a re-

one who (“Kelly”) of the Kelly Officer Shanan (some patients of the admitted are lapse Depart- Police Vegas Metropolitan Las recidivists) cases, new others are a that had failed to stopped ment vehicle signal. use turn Inside were three its dictionary’s primary defi- That mirrors Taylor (“Taylor”) in individuals: Vaneshia example nition and of “recidivism”: seat, in the Weatherspoon the driver’s tendency into a relapse previous Har- passenger Ray front seat and Donald (a study condition or mode of behavior (“Harris”) directly in the seat behind ris patients) in mental recidivism in- Weatherspoon. a records check When place In the context and where “such re- Weatherspoon had outstand- dicated appears opinion, cidivist conduct” warrants, Ray ing Kelly called Officer then, clearly usage the term’s conforms (“Kent”) backup Kent and Weather- meaning. that first-listed common spoon Taylor was arrested. consented discovery search that led to the recognize Nonetheless we the United vehicle handgun under Attorney’s sensitivity to the fact of a loaded semiautomatic passenger seat. usage the term’s most familiar to the front lawyers charged is in with criminal re- then as a convicted felon connection offenders, in violation of 18 peat possession a connotation that was cer- a firearm 924(a)(2). §§ tainly opinion. 922(g)(1) not intended Ac- U.S.C. counsel, Taylor that the and Har- arguing actually seen Weath- had Neither officer credited by statements and the ris should gun, of the erspoon possession supplied in jury because So the inconclusive. evidence was forensic focused in- response police pressure, on circumstantial instead arrest was based testimony by of them —both on each stead of handwrit- contents grand jury and at trial —that was before at the police provided to ten statements ascribing in terms of questionable more far Harris. by Taylor and the arrest time of Weatherspoon. possession she saw Weath- then said that Taylor had challenged the credi- also And the defense floor of gun to the drop a black erspoon the, testimony by suggesting bility of Harris’ seat and slide under the vehicle implicate had an incentive over, that he pulled the car after immediately being Weatherspoon: to avoid arrested he had seen asserted that while Harris himself under state law.. evening with a Weatherspoon earlier waist.1 tucked into his gun black government relied on its'part, For Kent, Kelly and testimony of Officers at trial was case government’s But the they exerting improper in which denied as those two state- straightforward not as Taylor of the over the submission influence After the arrest might suggest. ments statements, that those argue Harris to and and fully recanted her statement Taylor of (1) strong constituted statements initially it provided she explained that , prosecution also possession. And the had threatened the officers because credibility Taylor’s of questioned the be.charged with offenses herself she would by raising the police pressure claims of and Weatherspoon implicate did not she relationship a between of sexual existence (2) any such she feared because Taylor and Weatherspoon. custody of lead her charges would lose never re- Although Harris her children. jury' guilty returned a Ultimately the statement, he did of his the content canted Weatherspoon on the sin- against verdict provided had at trial that he acknowledge of a felon-in-possession fire- gle count arrested being for “stipulation” it as urges that the verdict Weatherspoon arm. outstanding warrants. on by improper impermissibly tainted was prosecutor during made statements guilt depended Weatherspoon’s Because appeals. he now arguments, and closing firearm,2 and of the be- possession his on directly the officers did not observe cause Misconduct Prosecutorial two-day gun, the Weatherspoon with prosecutorial Analysis of a claim of mis- accuracy of the around the trial centered improprie- focuses on asserted Harris and its by Taylor, conduct provided statements (see, prejudicial effect substantial ty Defense officers on scene. the two day gun Weatherspoon on the leading up with a 1. account of events Harris’ explain hotly sought contested trial was the most arrest. At Harris the arrest police, away by suggesting addition to statement that it at- trial. In grand jury that he saw Weather- Harris told part as to on his to confusion tributable But spoon front seat. place under the "day." meaning the word hedged instead that Harris stated trial clearly be- not see he could necessary for of the other 2. Both> elements directly him and was seated behind cause charged offense—Weather- on conviction like he was saw was a that all he "motion felon and the spoon’s status as a convicted public defend- puttin’ away.” And a it federal weapon traveled in interstate fact that the had during investigator inter- testified that er stipulated at trial. commerce —were that he had never view Harris said seen there; they came into this Yarbrough, 852 F.2d the scene e.g., United (9th Cir.1988)). must We they you; they court lied to lied to at the outset whether therefore determine me; they judge; they lied' to lied made statements they my agent, Agent guess Baltazar. trial, course of the after which during the dispatcher they lied to the when called any to the effect of such we will turn that risk losin’ in. These are officers misconduct. jobs, pension, risk their risk losin’ their impropriety, And, issue of to the threshold top As losin’ their livelihood. prosecutorial misconduct we conclude lie, they guess that if come here and (1) involved, clearly both because per- they’re prosecuted riskin’ bein’ credibility for the prosecutor vouched jury. Doesn’t make sense because (2) made because he also witnesses truth, came in here and told jury' encourage arguments designed gentlemen. ladies and prob- to alleviate social to convict order clearly improper. That statement was issues seriatim. address those lems. We Combs, 564, 574- States v. 379 F.3d United placing “Vouching consists of Cir.2004) recently we considered government behind a wit prestige prosecutor statements made similar of through personal assurances the ness they during rebuttal and found that consti in veracity, suggesting witness’s that impermissible vouching because the tuted jury presented sup not formation that knew prosecutor “plainly implied she (United testimony” ports the witness’s agent] committing would be fired for [an Necoechea, 1273, 986 F.2d 1276 v. States that she believed no reason perjury and Cir.1993)). On that score Weather- agent in his shoes would take such a able prosecutor that spoon contends (id. 575). spre, present at To be risk” credibility of all of the vouched for the that quite egregious is not as situation Kent, Kelly, in major witnesses his case: Combs, there prosecutor in because the Taylor and Harris. they jury instructed the that could be very of his At the outset agent] get would fired [the “darn sure in discussing said this the testi- prosecutor (id. 568), at perjuring for himself’ while mony by the officers: provided provided firm here. such assurance was all, We, Kelly, first of heard from Officer in But no such modest shade difference officer; police credible officer. Metro calls for a differ impropriety the level of objection, garnered That statement and (like result, prosecutor for the here ent prosecutor court instructed the the district Combs) clearly that prosecutor urged in Undaunted, prosecutor not to vouch. re legal professional of' and existence police credibility returned to the theme of credibili percussions served to ensure the rebuttal, telling jury in ty testimony That suffices of the officers’ . in “had no reason to lie this case officers improp statement to be considered truth.” After defense coun- or not tell the vouching upon matters outside er as based objection on vouch- sel’s statement (see, Boyd, e.g., the record United States v. overruled, prosecutor ing grounds was 868, (D.C.Cir.1995), collect 54 F.3d 871-72 went even further: circuits and cited ing cases from various They had no reason to come here and Combs, 379 F.3d at 574- approval you they the truth. And took tell 75). they you the truth. the stand and told prose- directs us to Next guess, you [de- believe Mr. Valladeres counsel], vouching regarding cutorial statements they fense must have lied

1147 the defendant is credibility to which during made that were Harris Taylor and (United McKoy, 771 unchallenged: entitled” went closing arguments (9th Cir.1985); 1207, see also 1211 F.2d being threat- about statement [Taylor’s] 18-19, 1, Young, 470 U.S. States v. United truthful, ladies is I don’t believe ened (1985)). 1038, 1 It L.Ed.2d is S.Ct. and gentlemen. jury up to the —and —to credibility of a witness’ tes determine prosecutorial All of the cited timony. gentlemen, ladies point, because statements handwritten the truth he told jury’s ability to make that skewed morning, on that gave that he statement determination.3 into the when he came the truth he told oath, he was Jury under Grand to iden point important it is At this the truth to today and told

front on which our tify premise mistaken you. colleague’s partial dissent esteemed recognized that “we have to a footnote sen points It is true It regard rests. latitude half-century-old must have reasonable Lawn nearly prosecutors tence 15, thus can States, n. closing arguments, to fashion 355 U.S. v. United (1958) inferences for the argue reasonable L.Ed.2d 321 S.Ct. based the two evidence, including one that a proposition (Necoechea, 986 F.2d credi lying” a witness’ personal opinion sides about 1276). in an grounded when It must not single But even vice: bility has evidence, prosecutori from the that the convey impression inference consid may not. nevertheless that the does Not al statement facts knows vouching “placets] if it has acknowl partial dissent impermissible ered so—as century the outset, behind government quarter over a prestige edged at its assur by providing “personal Young, 470 Supreme Court witness” later (United veracity”, 18-19, (emphasis of a witness’s 105 1038 ances S.Ct. U.S. (9th 530, Roberts, added) 533 618 F.2d two reasons v. not one but States identified Kerr, Cir.1980); v. simply place also United States not see why prosecutors must Cir.1992) (“A credi 1053 to witness opinions as personal 981 F.2d their jury telling the no business and it jury, has second bility before is of the evi impressions presented dangers that .in his individual those of dence”)). here: spades vouching for the credi- prosecutor’s dangerous pre- that sort is

Vouching of expressing his bility of witnesses and be inclined to cisely jury “may because concerning guilt of opinion personal opinion prosecutor’s to the give weight dangers: such two witnesses, pose accused in- .the credibility of assessing the impression convey can comments independent judgment making the stead Necoechea, (compare 986 F.2d at acceptable follows drawing the line 3. between Kerr, ("I you”) 981 with F.2d 1279 submit grounded on inferences statements think”)). ("I (9th Cir.1992) Both repre- at 1053 unacceptable statements evidence unacceptable side fall personal statements here suggestion of senting line, nothing in their because there especially sensitive opinion, we have been convey that the statements jury to the form to prosecutorial statements —so the form its a submission for as were intended phrase "I submit” has prefatory use of the think,” there- would and because part consideration "I preferred to the use of been jury reasonably likely fore be understood to lead the the latter is more because personal assurances. give jury undue credit to the 1148 jury, presented to the ness—a matter definition is for the

that evidence prosecutor, supports jury to the to resolve—makes the but known charges against placement the defendant of his thumb on the scales all right the defendant’s jeopardize impermissible. any prosecu- can thus the more For solely on the basis of the to be tried tor state his own view witnesses jury; credible, and the presented are credible or not or indeed to carries with it the prosecutor’s opinion say rapid flat out—three times over imprimatur Government succession—that a witness “told the jury may induce the to trust the Gov- truth,” rather than to invite the judgment rather than its own ernment’s all of based on make those determinations Berger v. view the evidence. See prosecutor points, evidence to which the States, U.S., 88-89, United fairly than a cannot be labeled as “no more S.Ct. 629.4 comment on the evidence that one would this,” expect hard-fought case such as prosecutor’s message In each instance “nothing or as more than an unremarkable is identical: evidence,” upon comment based or as testimony I believe [do believe] “merely a comment on the evidence.” A. of Witness Therefore should be- A lieve Witness too [not believe] [either]. respect In that we stress that the ethical higher bar is set for the than implicit It is of course the “therefore” con- lawyer propo for the criminal message improper. in that that is defense tained —a clear for at least colleague anyone our nor else has sition that has been seven Neither (see States, legitimate Berger for a decades v. suggested ever basis United 78, 88, prosecutor’s flat-out statement of his or 79 L.Ed. U.S. S.Ct. (1935); personal opinion her as to witness credibil- also such cases as see United that, (2d ours, Modica, ity system in a like vests the 663 F.2d 1173 Cir. 1981) regarding sole determination such credibil- as well as the ABA Standards (like determinations) 5.8(b)). all factual ity other § Although Criminal Justice 3— jury. Nothing then flows from an lawyer, public private, be sure either extended discussion of cases that address lay credibility should his or her own on the other “vouching” danger that was iden- by expressing opinion line his or her own Lawn). (and Young tified in believability, about a witness’ the differ lawyer’s impropriety ence is that a private score, wholly that On is beside the respect implication in that of carries suggest challenge mark to that a witness’ governmental support. And in official this credibility during to the of another witness instance, particular surely it is worth not prosecu- the trial somehow validates ing prosecutor that the has selfsame en repeated tor’s statements of his own belief exactly in kind of gaged vouching the same credibility as to in such the course of clos- in conduct two instances that has led other ing argument, though such statements panels upset of this court to convictions constitutionally prohibited were other than (see Indeed, by un vouching. just prosecutor obtained that opposite in dispute published opinions true: the existence of a in the United States v. (9th Williams, 112 credibility Fed.Appx. evidence as to the of a wit- Cir. by go quoted 4. It with- cited but also in a host of cases in [Footnote Court] this should Circuits, saying express recognition out have been somehow that other cannot Young, trumped by second of those evils in which has limited one-sentence more recognized applied pronouncement years been further since in the Lawn footnote 27 then not in this cases we have earlier. Circuit's complete its the Government Green, please let Fed. 2004) v. States and United argument. Cir.2004)). (9th such To label Appx. 133 as' “unremarka conduct even

repeat-offender argument, made That entire line remarkable. by repetition is itself its ble” more indefensible desist, improper. to of directions face that the argues also consistently against have cautioned We jury to urged the impermissibly prosecutor designed ap to statements prosecutorial prob societal in order to alleviate convict and vulnerabili passions, fears peal to the rebuttal, en prosecutor In his lems. v. jury, as United States ties of the occasions jury on several couraged (9th Cir.1994), Koon, 1416, 1443 34 F.3d ver entering guilty feel comfortable Monaghan, 741 v. States quoting United example: dict—for (D.C.Cir.1984): 1434, 1441 F.2d gonna Weatherspoon is Mr. Convicting jurors to may urge prosecutor A knowing there’s you comfortable make in order to a criminal defendant convict on the street felons convicted values, civil preserve community protect not con- there’s handguns, loaded order, lawbreaking. The future deter or around semiauto- carrying victed felons appeals prosecutorial lurking evil such ” .... matic will be convicted that the defendant objected, counsel defense point At that to his own wholly irrelevant for reasons con- prosecutor judge instructed may per- innocence. Jurors guilt or guilt.” “guilt or not arguments his fine that, appeals to believe suaded such Undeterred, continued prosecutor defendant, they as- will by convicting a can feel comfortable “[y]ou reiterating pressing solution of some sist felon that’s a convicted knowing there’s of so- amelioration problem. The -social a loaded guilty possessing found been heavy a burden is far too ciety’s woes firearm, semiautomatic fully loaded defendant individual criminal for the weapon.” bear. re- prosecutor Shortly thereafter not en- did that the It is true theme, jury telling the same

turned egregious offense even more gage in possession a felon being law of “the in our crisis particular to a “pointing] people a lot of firearm, protects of a make a askfing] society and objection fol- too.” Again out there (United Leon-Reyes, statement” prose- lowed, judge instructed and the Cir.1999)). But the F.3d nonguilt.” “just guilt talk about cutor violated here nonetheless statements respond failed to again the Weatherspoon’s And principle. Noow-identified directive, re- instead meaningfully proof entirely depended guilt at trial “finding peating at the possession that he was individu- other gonna guilty protect man Those pulled over. the car was time that objection Another community.” in this the later als urgings especially prosecutorial — followed, judge overruled protect this time to encouraging a conviction ones community spoke defense coun- objection and instructed in the individuals other — to the rather question, but sel: not to that jury’s ramifications of social potential will objection, is a there serious When They were moment, guilty verdict.5 reaching At the on it. your favor rule of the an element ously to the case as designed clearly relevant 5. And the statements jury to the charged, stipulated offense as a "con status emphasize Weatherspoon's posed an issue as not have been and so is obvi should Although that status felon.” victed 1150 Moreover,

clearly encourage any designed even defense open on the basis of emotion statements were somehow viewed as enter verdict such, ing to a prosecutorial response, the door rather than fact. As were irrel- particular response chosen here would improper. evant and inappropriate prose still be because “the Despite all that has been said to this cution improper allowed use tac point, prosecutor urges that his state- response tics even in to similar tactics proper ments should be considered be- (United Sarkisian, the defense” States v. simply making cause he was “invited re- 966, Cir.1999); 197 F.3d 990 see also plies” arguments made defense 934). Smith, 962 F.2d at Prosecutors closing argument. Quite during counsel must spe understand the different —and prose- from the fact that some of apart place they occupy the criminal cial— improper preceded cutor’s statements (see, justice system e.g., United States v. closing argument so that no “invitation” (9th Cir.1993) 1315, Kojayan, 8 F.3d existed, plus then the added fact that the there). cited Though cases we do not objected any prosecutor never countenance, encourage, course let alone now-complained-of arguments by defense counsel, part excesses on the of defense counsel, attempted explanation wholly prosecutor’s representative role as misunderstands the doctrine of “invited (the plaintiff the United States named applied Young, response” as 470 U.S. at every prosecution) federal criminal de 12, Supreme There the S.Ct. 1038. mands far the exercise of better restraint explained that in order to undertake Court judgment and better than was exhibited prosecutorial a contextual review of mis- short, nothing here. about the invited conduct, reviewing court “the must not response doctrine rescues the impact weigh prosecutorial from impropriety statements —even remarks, but must also take into account all) (though extent that some of them (id.). opening defense counsel’s salvo” invited, might be viewed as the statements But all that does not at mean that when- did far than simply “right more the scale.” ever defense counsel attacks the credibil- the Prosecutorial Misconduct Effect of ity of witnesses the can re- spond vouching To statements. we Next must determine whether contrary, we have concluded that “[a]t- statements identified credibility preceding prejudicial section tacks on the of a defense wit- were so legitimate Weatherspoon’s rights ness substantial that a advocacy are tools of not, alone, required. taught new trial is As in such standing trigger do the invited Hinton, (United Smith, cases as United States v. 31 F.3d response rule” States v. (9th Cir.1994): 817, (9th Cir.1992)). 962 F.2d And when, here, particularly that is true objects the Where defense counsel at trial to grounded misconduct, defense attacks were in infer- alleged prosecutorial acts of ences from the evidence than rather de- we review for harmless error on defen- fense personal appeal; objection, counsel’s assurances. dant’s absent such an Mendiola, way that it ana was. Instead its use here Islands v. 976 F.2d (9th Cir.1993): patently designed persuade juiy to the to convict more because he is a commentary While on a defendant’s future generally dangerous individual than because dangerousness may proper be in the con- particular sentencing, highly improper he violated a law in this instance. text of it is regard, during guilt phase In that see Commonwealth N. Mari the of a trial. of failures to cor Such objections). further the more deferential under review we at the time improper statements rect the error standard. plain salvaged by the made cannot they were be objections at trial Weatherspoon raised remind-, jury instruction generalized later that he statements not all of the some but lawyer’s dur so, jurors that a statements ing Even improper. challenges as now analysis evi closing argument do not constitute ing error harmless argues entirety Simtob, his (United the of 901 F.2d applied be dence should object were Cir.1990)). his failures short, because appeal the In court’s demon to the district attributable offered here did curative instructions ob unwillingness to entertain strated state improper harm of the neutralize the not venture into But we need jections. the “[t]hey did not mention ments because issue at fray, the misconduct because of the specific statements the even under reversal requires here immediately the dam given after were not standard, un plain error restrictive more 1054). (Kerr, 981 F.2d at age done” “only appropriate reversal is which der contributing . factor important Another af conduct so improper prosecutor’s state- of prejudicial effect ability to consider jury’s fected against strength it taint of case fairly that ments is the the evidence totality of deprived particularly the case is [Weather- When the verdict defendant. ed (Smith, F.2d prosecutorial a fair spoon] of trial” at likelihood strong, 935). end we must review And to that sub- affect the defendant’s will misconduct con in the effect prejudicial for potential because the is lessened rights stantial at (Young, 470 U.S. trial of the entire text influ- apt are less jury’s deliberations 1038). 16, 105 S.Ct. progres- as the case becomes enced. But weaker, prejudicial possibility sively prose whether “To determine Moreover, jury’s correspondingly. ver grows affected the misconduct effect cutor’s aof dict, first to the substance effect stem- prejudicial we look possibility (Kerr, F.2d instruction” vouching is cases ming curative from increased 1053). in the ab even respect, In that impor- credibility particular is of where counsel, a objections defense 1276). sence (Necoechea, 986 F.2d at tance alert to deviations judge bfe “trial should conten- prosecutor’s the trial Despite prompt and take proper contrary government’s tions (id. at appropriate” action as corrective the case argument, in oral again brief 1054). particularly Weatherspoon was not against doubly the trial was In this instance large measure depended strong and Objections indeed made were flawed: already- credibility. Hence witness counsel, curative and whatever defense mis- prosecutorial instances described by the district provided were statements vouching— especially conduct—-and objec- As for the inadequate. were judge prejudicial strong possibility of present a overruled, tions, those some were again the case is respect effect. any produce mean- did not sustained were Kerr, where F.2d similar argu- alteration of ingful plain error because we reversed ob- ments, in which such manner testimony “the and because case was close unfortunately did sustained jections was crucial ... ‘vouched’witnesses cautionary strong required not deliver prosecu- case and government’s earlier, (indeed, one quoted message argument.” actually chilled tor’s judge by the trial response 1152

Conclusion that presented evidence not the jury, known prosecutor, but supports was a

This the comparatively close case charges against boiled down to the a battle credibility. over defendant.” Young, context, 18, prosecutorial 470 U.S. 105 statements S.Ct. 1038. Such com- vouch for credibility the of witnesses and ments are improper because they “jeop- that encourage jury to act on based ardize the right defendant’s tried considerations than other the particular- solely on the basis of the present- evidence ized of pose facts the case a real danger to Id., ed to jury.” see also United States right defendant’s to a fair trial. Be- Necoechea, v. 1273, (9th 986 F.2d 1276 cause danger was not effectively miti- Cir.1993). gated by curative instructions from the judge,

district The danger we conclude second prose- stems from com cutorial misconduct here “affected the ments a prosecutor that invite the jury jury’s ability to consider the totality of the “to trust the Government’s rath judgment (Smith, fairly” 935). 962 F.2d at er than its own view the of evidence.” Id. We therefore REVERSE for plain error 18-19, 1038, 105 S.Ct. see also Necoe and REMAND for a new trial. chea, 986 F.2d at 1276. a jury Were take this approach, jury would abdi TROTT, Circuit Judge; Concurring cate its important role in process part Dissenting in part: merely become a stamp rubber approval rather than an independent body putting government to its constitutional test. Prosecutorial misconduct in the context of closing argument is entirely a creation Because of these hazards to trial, a fair of our “common law.” In examining these (1) case law has condemned both personal issues, we begin do not either with the vouching by prosecutor a for the credibili- plain language any statute, or awith ty government’s witnesses, (2) specific provision of the Constitution or the the expression by a prosecutor of pros- Bill of Rights. Instead, our warrant arises personal ecutor’s opinion as to guilt from the defendant’s right broad to a “fair accused, when remarks either guaranteed trial” by the Due Process “say [or] insinuate that the statement was Clause. As one might surmise, however, based on personal knowledge on any- “[t]he line separating acceptable from im thing other than testimony those proper advocacy is not easily drawn; there given witnesses jury.” before the Lawn v. is often gray'zone.” United States v. States, United 339, 355 15, U.S. n. Young, 359 1, 7, 470 78 U.S. 1038, 105 S.Ct. 84 311, S.Ct. (1958). L.Ed.2d 321 L.Ed.2d 1 (1985); quote To Donnelly v. De Christo foro, the old Circuit, Fifth 637, 645, U.S. “The test S.Ct. (1974) (the L.Ed.2d 431 whether has expressed constitutional line drawing in this area is “necessarily opinion is impre ‘whether the prosecu- cise”). Nevertheless, case law has tor’s expression identi might reasonably lead the fied concrete dangers to a defendants to believe that evidence, there is other right to a fair trial posed by prosecutor’s unknown or unavailable to jury, arguments that transgress the boundaries which prosecutor’ relied.” United of propriety. Prince, 515 F.2d Cir.1975). first danger relevant to this Both appeal practices tend to override arises from comments important jurors role of system our might convey to jurors impression “the by drawing them away from their sworn

1153 only the evidence on duty to focus law. and the

record implies ... Mr. Waterman said up here George got Brown and prosecu a danger arises A third that the say to and jury’s he wanted a whatever might arouse argument tor’s him for prosecute a defen wouldn’t against prosecution prejudices and passions on the case him a convic- jurors brought to decide if he cause perjury, and dant considerations. Well, My job is to of extraneous absurd. the basis tion. that’s again, is that an any of such If witness The vice trial. a fair guarantee from its sworn a to divert my job it tends the stand it’s perjury on commits the case to duty decide him if I against an indictment to seek on issues law, to focus instead and the and it. prove can or innocence guilt than

“broader ABA law.” controlling

accused under (2d 5.8(d) JUSTICE, 3— FOR CRIM. to abused something STANDARDS be Truth isn’t ed.1980); also Model Rules Of see Prof’l And the is as it is. like that. Truth Respon 3.4(e); R. Of Prof’l Code truth, to Conduct find the job is to government’s 7-106(C)(7); ABA Standards sibility DR confusion, to fer- this through all ferret v. Darden 6.1(c); Justioe, For Crim. 3 — and through all the smoke screens ret 191-92, 477 U.S. Wainwright, [My grandmoth- you to the truth. lead (1986). L.Ed.2d S.Ct. me, in a do do ‘What asked er] have held arguments we

Examples of then “And “Present evidence.” trial?” they create because then I sit down ‘Well happens?” what illustrate to a fair trial vouching hazard about says things bad everyone and In United concerns. process due our anything wrong ... But I did me.” Smith, F.2d 923 Cir. court trial, be here. The I wouldn’t a 1992), where a conviction we reversed happen. allow wouldn’t for vouched personally prosecutor (alternations original). Id. 927-28 witness credibility key government of a a new remanding reversing and the that he literally guaranteed trial, said, we bring charges never government would case not in this The stat true. that were not the law enforce- prestige of placed the ed: government behind ment branch prose- [Getting conviction] isn’t Brown’s trial and behind conduct job is to job. prosecutor’s A cutor’s addi- engaged an testimony, he also defendant every criminal guarantee that vouching form separate tional A my job. trial. That’s receives fair than the different qualitatively every to turn over job is prosecutor’s Flake. Young involved statements if it defense of evidence piece integrity invoking the In addition prosecu- them. That’s would assist integri- he invoked the government, job. tor’s Iif did “But court. He stated: ty of the me you see many ... times did How trial, I wouldn’t in this anything wrong give of trial exhibits during the course wouldn’t allow court be here. The mark them? can so the defense cannot final remark happen.” This admission stipulate to the see me Or invit- arguably simply be classified My job is to defense? for the exhibits special on the ed comment trial, not a fair individuals assure these com- Rather, unlike the other role. . convict them. ments that courts have on any some occa- deal any made of kind in connection reluctantly over-looked, placed sions it with Mr. testimony. Church’s judicial imprimatur system the of the 746 F.2d at 540. When we examined that credibility. Brown’s itself on That context, argument in we did not find error something simply permit. we cannot because these comments were in- “clearly Id. at 936. vited” the defense and did no more hand, other in On the United States v. than summarize the allegations. defense’s Flake, Cir.1984), 746 F.2d 535 over- circumstances, Under these we did not grounds by ruled on other United States regard that argument placing as pres- Uchimura, (9th Cir.1997), 107 F.3d 1321 tige government of the behind the case or refers, which Smith we did not find revers- the witnesses. ible where the error said the Flake thus illustrates the rule that all following response to defense claims of challenged arguments by a prosecutor government dishonesty: must be evaluated in the context of the Now, evidence, in the face of the trial, just entire not against isolation an argument has you been made to that Moreover, abstract standard. each case is you that, you just cannot believe can’t different, and each assayed case must be that, just just your believe using com- — on the basis unique of its facts and circum- sense, you mon can’t believe that. If stances. regard We take our lead in this you accept argument, that you then have Supreme from the Court’s decision in all, accept things. two other First of Young: spite of Mr. testimony, you Church’s Inappropriate prosecutorial comments, have to believe that ques- because the alone, standing justify would not a re- him tions asked of on redirect examina- viewing court to reverse a criminal con- precise tion were and direct and all- viction pro- obtained fair otherwise encompassing, you have to believe that Instead, ceeding. teaches, as Lawn perjured Mr. Church himself intention- remarks must be examined within the ally wilfully on the stand. And context the trial to determine whether that, you more than have to believe the behavior amounted to States, Government of the United prejudicial words, error. In other person of the standing before probable Court must consider the effect you, agents who have been at the prosecutor’s response would have on table and the people of the United jury’s ability judge the evidence Attorney’s office have suborned context, In fairly. defense counsel’s perjury, that they have allowed that conduct, as well as the nature of the testify in perjurious way, witness to prosecutor’s response, is relevant. In- perjury have elicited that him deed Appeals, most Courts of intentionally applying you to deceive and mislead these you. holdings, have refused to reverse prosecutors convictions where have re- accept order to made sponded reasonably in closing argument you defense, by the you have to ac- attacks, to defense that, counsel’s cept thus ren- as well. dering unlikely was led I suggest you, gentle- ladies and astray. men, evidence, that there is no no evi- you

dence before In retrospect, perhaps is the basis of “in- idea —and which your response” should make deci- vited way has in a evolved sion—no evidence that there has contemplated. been Lawn and the earlier context, Further, in this error. serted read should cited above cases less carries process integrity or—encour- approval judicial suggesting is the inevi- for it essence weight, response-in-kind agement —of judg- inherent doctrine that tensions harmless-error tably exacerbate itself As Lawn there is only when process. adversary may stand ment prosecu- [prac- is not the indicates, issue possibility “reasonable otherwise make license to have contrib- might complained tor’s tice] prosecutor’s the whether but arguments, to the conviction.” uted ” context, un- in taken response, “invited inappropriate is an deterrence Finally, the prejudiced fairly defendant. here, where, the as for reversal basis as- to make order appropriate In atten- most an is at remark prosecutor’s not must sessment, reviewing court the and where of uated violation Griffin prosecu- impact of the weigh the. to deter narrowly tailored means more into take remarks, must also but tor’s are conduct prosecutorial objectionable salvo. opening counsel’s defense account available. has the evaluation import of Thus (second altera- 506, 1974 103 at S.Ct. Id. remarks prosecutor’s been omitted). (citation in original) tion more than “invited,” did were in said Moreover, Frankfurter as Justice “right to substantially in order respond 189, States, 63 U.S. 318 v. United Johnson would scale,” such comments (1943), 549, L.Ed. 704 87 S.Ct. reversing a conviction. warrant cases, par- is it reviewing criminal 13, 1038 105 S.Ct. at 470 U.S. Young, courts added). appellate important ticularly omitted) (emphasis (citations imaginatively whole trial to relive re- “[assuming prosecutor’s Finally, in iso- episodes not to extract and de- bounds permissible exceed marks of evidence questions lation abstract objection, timely raised a counsel fense appeal a criminal turn To procedure. otherwise reverse an could reviewing court promotes no more for error into a quest concluding only after conviction proper in acquiesce than to justice ends at Id. harmless.” was not error that the prosecution. of criminal standards low (citing United 1038 10, S.Ct. 13 n. 499, 103 S.Ct. 461 U.S. Hasting, J., (Frankfurter, 202, 63 S.Ct. Id. (1983)). the Court As 76 L.Ed.2d in approval with (quoted concurring) Hasting, 1038). said S.Ct. U.S. Young, 470 super- by implicated are goals that II goal [including the visory powers by ensur- integrity judicial preserving of Weather- evaluation to an now I turn appropri- rests on a conviction ing that prosecutori- allegations discrete spoon’s solidly before considerations ate misconduct. al however, significant not, are jury] if, the Court case of this context A. errors implied, plainly Appeals impermissi- alleged instance The first Supervisory harmless. alleged are vouching arose ble conviction reverse to power he discussed when argument, final opening error remedy when aas needed Kel- Kelly. About testimony of Officer since, is harmless it is addressed which said, “And testimony, the ly’s would have definition, conviction you the evidence through go want the as- notwithstanding obtained been We, all, that we heard this case. first of ness characterize testimony the different Officer; Kelly, heard from Officer Metro lie, of another witness as a points but the added). (emphasis credible police (1) are that accusations of falsehoods and officer” lying flying fast and furious statement, Weatherspoon’s To this coun- (2) trial, and Weatherspoon’s attor- immediately objected, saying, “[yjour sel ney’s tactic Kelly was to make Officer out Honor, objection. Vouching, sir.” The liar, case, to be a Taylor which could be responded: court “Yes. Don’t vouch for regarded witness,” as truthful in her testimony but credibility prompting not in “I’ll her written say, leave statement. There certainly nothing members of the to decide wrong what with defense coun- thought of Officer trying get sel Kelly.” at the truth attempting destroy witness, credibility of a

I commend the district court for its occurs, when this tactic it is not out of line prompt intervention and reminder for the prosecutor to attempt present in prosecutor to vouching, avoid but in the argument the witness as credible. light day, cold whether what prose- the said, Kelly cutor ... “Officer po- credible Supreme The analysis Court’s and hold- officer,” impermissible lice vouching, ing supports my Lawn conclusion. In certainly debatable. I do not think it is Lawn, in closing summation prosecutor the vouching. jury, told the [government vouch for “[w]e In particular, Kelly’s credibility Officer witnesses Roth and Lubben] because we directly challenged by had been Weather- think they telling are the truth.” 355 U.S. fianceé, spoon’s Taylor, Vaneshia whose 15, at 359-360 n. 78 311. S.Ct. “Vouch”? testimony as a hostile witness was es- “We think telling are the truth”? At Kelly sence that Officer one of the —or first blush and carefully without applying officers—lied about his conversation with rule, the reason behind the vouching one her when the found in her car might regard objectiona- this statement as seat, Weatherspoon’s under a conversation so, ble and improper. Not said the Su- resulting in her written statement preme Why? Court. Because implicated Weatherspoon as the possessor [tjhe attorney say Government’s did not weapon. testimony the Her suggested nor insinuate that the statement was Kelly that Officer had lied under oath dur- personal based on knowledge any- or on ing the trial and perjury committed when thing other than testimony of those he denied the behavior attributed to him given witnesses jury.... before the by Weatherspoon’s fianceé. Under these petitioners’ Moreover counsel his circumstances, it was certain that pros- summation to the argued that .had ecutor Kelly’s would discuss Officer credi- the Government’s case was a persecu- summation, bility and that he would petitioners, tion of had been instituted in use a form of that word: credibility. bad faith at the instance of group I note also that when the agent[s], revenue supported and was Kelly recalled Officer to the stand on re- ‘solely’ by testimony of Roth and buttal deny the inappropriate conduct who were perjurers. Lubben admitted him by Taylor, attributed to Weather- Id. spoon’s attempted get counsel him to Looking in context opine prosecu- at what the lying” that Harris “is about what he here, tor said about said see Kelly’s dangers Officer conduct. none The court lurking sustained an objection properly words that sup- — so—to attempt counsel’s to make one port wit- against vouching. rule chai- The

1157 at oth- have said arguments closing (1) references specifically comment lenged inter- help you case,” is intended er times in this that we heard evidence “the evidence, not evidence. but it is pret a refer- insinuate (2) suggest or not does them dif- record, facts as remember If in the information ence stat- lawyers have way the rely on the jurors fer from (3) not invite does controls. here of them them, memory use your ed government. integrity witness”— two words—“credible added). of these (emphasis 5No. Jury Instruction we the statements close to nowhere comes potential dilute instructions “Such cases. in other condemned have com arising prejudice Koon, F.3d accusa- v. 34 of defense sum, face States United ments.” In (9th Cir.1994), sim- rev’d on other contrary, tions witness. a credible Kelly 81, 116 S.Ct. Officer ply called grounds, U.S. Necoechea, the Court did context, this —as regard (1996); also see L.Ed.2d a comment more than vouching (“Likewise, in Lawn —as F.2d at 1283 ain expect would that one closing argument during that occurred United such hard-fought case in this. court’s by the effectively neutralized (2d 204, 210 Perez, 144 F.3d are not of counsel that comments struction case present Cir.1998), point: “In is on evidence.”). he had suggest did not the prosecutor of error possibility Finally, whatever before knowledge of facts special by the was erased have existed might that witnesses that the ‘submit[ted]’ He jury. earlier I noted intervention prompt judge’s knew credible, personally not that in to the admonition jury’s at- the facts, then directed and the that the effect presence juror’s the con- his supporting the evidence tention credibility of a witness vouching for the (alteration original). in tention.” improper. was vouching that oc- Furthermore, any fundamen- trial the render did not curred B. customary, the because, as unfair

tally of claim vouch- Weatherspoon’s second jurors instructed the here court —immedi- follow-on prosecutor’s the ing relates duty their argument before ately —that without argument, in same the statement evi- “solely the case to decide was “not be- did objection, (1) them, consisted which before dence” tes- Taylor’s Vaneshia truthful lieve” (2) witness, any testimony the sworn of her the substance repudiating timony (3) any evidence, and in received exhibits that incriminated statement written earlier agreed or attorneys had to which facts This .boyfriend/fiance. her Weatherspoon, point, stipulated. More linked and was directly followed assertion orders: pertinent these given discussed may con- you reaching your verdict antagonist alleged A., supra, that Part exhibits testimony and only the sider Kelly, was indeed drama, in this Officer things Certain evidence. into received follows proposition The credible. con- evidence, may not you and are is that being credible Kelly from Officer the facts deciding what them sider was not. Taylor you: for list them I will are. prosecu- evaluate understand To - by and statements Arguments 1. statement, it must believe” “I do tor’s lawyers not .evidence. lawyers are by Lawn context, required be read they have said witnesses. What are not read, it becomes so Young. When statements, say mil opening their that his statement was nothing clear more investigation investigation than an unremarkable comment based Kent, Officer inquired from Ms. upon regarding credibility the evidence Taylor possessed weapon. who this And of a central witness’s controversial testi- you have in you evidence before a state- mony. Taylor, ment of Ms. say- her statement with, ing Taylor, the defendant had begin gun,

To the driver in her of the car, signed wrote and own handwriting statement when on that morning stat- pulled police saying over ing she him saw with this gun. In her Weatherspoon “dropped weapon, own handwriting. gun, black to the floor and it under slid You also heard Kelly. from Officer seat.” In appearance her before grand There threats. There was no jury, backed away she from this statement coercion. Never mentioned anything would concede about her children or gettin’ her not her belonged “could have” to Weatherspoon. children back. There was no evidence trial, When called she claimed her of that. You heard from Kelly Officer written incriminating Weather- and Officer Kent on rebuttal when we lie, spoon awas and she asserted that she just put up them here at end. falsely Weatherspoon had incriminated out Again, no that. No evidence Kelly fear because Officer had menaced of threats or coercion or to do anything prosecution her with possession for with threatening her regarding chil- her firearm, which raised in her pos- mind the dren. custody sible loss of of her children. Offi- We next heard from Taylor Vaneshia Kelly cer denied this account under oath. in this case. We heard from today. her Counsel made the You heard from—from you her and point Taylor’s repudiation before the heard her about handwritten statement grand jury of her written statement was you’re gonna have before when under oath

made and under the penalty of you go back to the room. perjury. purpose The of point clearly this I find it a agrees little ironic that she towas bolster the believability of her testi- with in everything except statement mony by in court showing it that had first for important the most part. Do been made before grand jury at the remember? perjury. agree. risk of She said: I Every- thing except there’s accurate what Here, then, is the entire gun. said about the police The made me disputed responsive argument regarding do it. important The most line in there the believability of Taylor’s Vaneshia testi- says, where she pulled “When over the mony, statement, her written and her Ken, passenger, dropped the a weapon, grand jury testimony: gun, black to the floor and slid it under THE PROSECUTOR: the seat.” The most important of part You testimony heard the from Officer oh, says, this she the officer made her Kelly. They arrested defendant. write that. Everything else is accurate They have the They vehicle searched. though. weapon that found underneath the seat defendant, this

where Mr. Weather- He a had white T-shirt and blue spoon, was seated. shorts. That’s accurate. And she left n We also home at heard evidence 3:00 a.m. That’s from Officer accurate. That Kelly about the voluntary she went to pick statements her cousin’s to up him he that obtained in part this As case. so that he could work on the car in the

1159 Here, said what we error. plain a lit- But it’s accurate. morning, that’s Davis, only rele is part she important United most ironic tle And, may controlling: vant, “[A] it. her do made officers says the guilt offi- which belief personal remember doesn’t not state she again, put (unless basing that her asserts he who made he was that cer defendant offi- from of the evidence strength No—no on the there. his belief Cir.1977), children was her subject 840, case).” F.2d cers of that No evidence up. brought denied, even 98 S.Ct. U.S. rt. ce gun wasn’t testified also (1978). all. She prosecu L.Ed.2d hers; said- she it wasn’t We know hers. that, about “Her statement tor’s statement are Those her mom’s. it wasn’t is truth I don’t believe being threatened ear. had access people two on a manifestly review ful,” based testimony. her That summarized as the the evidence her she You heard evidence it, nothing else. these offi- threatened supposedly was It’s the her children. C. regarding cers by her own today we heard time first testimo- us brings sequence This and told never went She admission. Harris, passen- seat back Donald ny of went never night. She on that police Tay- who, like Vaneshia Taylor’s car ger in the Grand into never came the —she story as to in his lor, inconsistent been had n oath, anybody and told Jury, under Taylor, Like belonged. whom' opportuni- had Jury. She the Grand day wrote statement Harris it. mentioned Never did. Never ty. had seen Weather- saying that arrest except anybody it to mentioned Never for Weather- gun. Counsel with the spoon says that officer now today she here stand, investigator to called spoon her threatened or whoever officers before testified Heddy, who Mr. being about statement that. Her with his Harris had confronted trial he truthful, believe don’t threatened incriminating Weather- written gentlemen. ladies seeing Harris denied and that spoon, her fiancé. this was also heard You ' Harris at- gun. Weatherspoon with a fiancé first; into Boyfriend at turned this dis- explain testimony to tempted Jury. Grand came to the time she by the investigator saying crepancy oh, says, Jury comes into Grand She Weather- had seen only he him asked the time This is time. at that I lied and that day,” “that gun with spoon phone. on the to him talkin’ been she’s had he truthful because “no” answer was married, get They engaged are “that Weatherspoon with not seen added). (emphasis car. into the just got only before day,” (1) the again sum, having mind and attacked counsel Weatherspoon’s Har- admonition pre-argument court’s by trying testimony grand ris’s evidence but were not statements counsel’s when perjury committed that Harris show in- jurors help intended saw he he testified (2) evidence, the court’s and terpret the seat. gun under place the argu- prosecutor’s during statement brings us background evidentiary This not vouch must ment that alleged now prosecutor’s witness, conclude that credibility of a to which vouching, but to constitute not vouch- statement was trial: during the was objection made certainly error, was and it was ing, it THE PROSECUTOR: handwritten given on that

You’ve—next I want to talk early about Mr. morning police. Harris’s testimony, you heard from added). (emphasis today. Bottom line Mr. Harris isn’t a felon. He legally can possess fully My conclusion respect to this as- loaded weapon. law, Under the he can signment of error is that disputed com- possess that weapon. He can have that ments were not vouching, but merely a weapon at any time. point, ladies comment evidence, on the which, all, after gentlemen, and is he told the truth in is the purpose central of argument. Even that handwritten statement gave that he if we were to regard error, this as morning, he told the truth when certainly is plain, and it did not affect he came into the Jury Grand under Weatherspoon’s rights. substantial oath, and front, he was in you today and told the you. truth to

Was he the most D. person? articulate No. But he you told in his manner what The next vouching objections lodged happened. And it’s consistent with what against the prosecutor occurred in rebuttal he said in that handwritten statement on argument after Weatherspoon’s counsel that morning, to what he said at the had finished his argument in which he Jury Grand on—when he was before the lambasted liar, Harris as a Grand Jury Taylor as a February, and when he repentant came in liar who changed here and you told her tune once today. here she was under oath. you get And To heard full flavor Investigator from— Heddy defense said argument, he went counsel’s out I reproduce and talked to him; tried the body to make him of it at length: out to be un- Well, truthful. in all due respect, MR. VALLADARES: think he him confused more than any- Now, me, allow thing please, else. You heard to go from Mr. ahead Harris. He go was over the about .confused what as it pre- he talkin’ about. Did he sented in Now, mean during case. please re- day? Well, you heard, Mr. Heddy that, member didn’t again, what I’m saying ask him on that morning, at that time. right now is argument; what prose- [the Did not. cutor] is saying is purely argument. Now, let’s remember what Mr. Harris You are the ones that heard the argu- said. From that stand there today un- ment —the evidence are the oath, der pointed to the defendant ones that need to make the decision. and said that’s person I saw with But the bottom line is this: The ar- that gun when I got into the car on resting officers, Officers Kelly [sic] August 22nd, stickin’ out of his waist- Kent, Officer if there is one absolutely band a black-handled that' on morn- clear thing that we know ing. out of this Uncontradicted statement. That’s whole thing is what point he that no said. He did said either that in his state- ment, also, them see Mr. that I Weátherspoon read you. to a He said: “I gun. seen the gun. That As far happen. as I didn’t At point know it was black. I don’t they did know what see Mr. kind it Weátherspoon touching was. It was in his possession. gun. a His That didn’t happen. That’s un- name is Kendrick Weátherspoon.” His contested. They you told that. confusing and is the evidence

confusing too. very important way a that’s it in clear is Now, this case the following: is the what she said Because a Harris had Mr. Taylor and Ms. that they officers what said that She they in which point at the —the reason to ' car. If some- is her is that this told her is also The evidence stopped. car, can be she found thing are individuals is they clear that —these And, quite I lie. makes- sense. to it. And that prepared liable for that are they said that everything take frankly, mean, outta It just logical. doesn’t that’s Don’t stand, you: suggest I on that figure that out. lawyer a believe abso- anything. Don’t believe told say that the officers didn’t She they that said. lutely anything children take her that would her start with that. Let’s review Let me not able away that would or she definitely— Taylor has Ms. Taylor. Ms. not what children back. That’s get her reasons definitely good some has or on keeps The Government said. she story a and concoct go ahead that, the case. that is not harking on 22nd, August morning of early she said. is not what That Kelly. by Officer stopped was when she made the connection. mind she In her Ms. felon. a convicted Taylor was Ms. to be a And, have obviously, don’t you knew you that she told Taylor knew connection, that be- that genius to make possess go ahead she could ing: that, would be she do couldn’t gun. She driving. (A) I’m being stopped. I’m gun is And this the law. in violation my car. It’s is The evidence car. obviously in her custody- (B) that’s I have a child driving. was car she is a that clear: This name; for whatever custody of the state in her is car. car This is her mother too. her name of it is in the I did. you that told I’m

Second, Taylor (C) also that happen Ms. is gonna What’s kid, kids; one because had she two that kid. get gonna be able did, custo- in state she of whatever mean, I don’t I And, Look. you know: kid get and that she wanted dy at all credible that woman think And that’s understand- bad, badly. very can you I think at all. don’t Frankly, And a mother. It the love of able. mean, clearly, any credence. give her all. [sic] mother concurs of a the love go gonna being and she’s human is a she And the Govern- know that. we And all kid; gonna she’s and love ahead oh, reason to lie she had says, ment do back; gonna and she’s kid want Jury of the Grand in front now kid, try get or to anything for that boy- was her because Mr. she told that’s what kid back. And boy- fiancé, point friend, one her went say the officers didn’t you. She that, I guess, She said friend/fiancé. know, do this don’t said, you IBut anymore. the case that’s not your kid. get that, gonna you’re not may have You blank: point asked her said. she not at all what That’s But isn’t Weatherspoon. Mr. cared for in this had to lie she reason Third your he for you will it the truth , stopped. She she was when case child your get lie to you will child and license, valid driver’s driving without a ‘Yes, blank, point she said And back? jail togo can You license. driver’s would.” has a rec- somebody that that, especially clarify this go And ahead let’s meaning of And what’s like her. ord also is the Government thing because Again, meaning that? of that is that you cannot that trust witness. Because the whole thing: getting with her her you trust that witness with type that child back is certainly gonna jeopar- be decision, me, you’ll believe what Again, you dized. don’t need to be a doing, again, ais torch that has been genius for that. passed on for centuries will be extin- And so happens? what gives a She guished. You cannot speculate here. They statement. go; they her let let simply You go ahead and do cannot that. go her car her and she’s driving with- Now, out a license. so we established thing: one,

the first This person has not Now, go remember ahead and reasons, several several motives to lie. upon touch a couple points regard- here two, Number she has lied. And we ing Mr. Harris. you Should believe Mr. know that already. We know that. She Again, Harris? story question one being: tells to the officers. Then she once, testifies not she testifies twice be- you Should make the most important Jury, fore the Grand earlier in the—in your decision in life based upon the tes- year, this earlier in 2003. She testifies timony of that individual? twice. One of things you’ll that see here IAnd went with through a her* whole this instruction that the judge litany questions in which I asked her: gave you is one of things you . you told the What officers on that morn- go need to ahead and—and observe ing, that early morning 22nd, of August making the decision is the witness’s you what said Mr. about Weather- may; you manner. You may not have. spoon having gun, lie; that was what But I you probably believe did. As he’s you said about Mr. Weatherspoon drop- stand, leaving the the individual’s cuss- ping gun, lie; you what ing. He had absolutely no respect for about said Mr. Weatherspoon sliding the system. the whole seat, Do under the we trust was a him lie. And responses her that? I don’t very were so. clearly yes, think they Yes, were lies. they were lies. individual, also, This is an has And, yes, she, lies. A.nd huge reason to you lie. He told himself. again, said that under penalty perju- He you said—he told that on that day ry under oath twice before was not arrested because he made the is, Jury. Grand And she again, here police. very He was under penalty perjury' and under clear on that. He said that he did not— telling you oath thing same —the he was not—he had warrants and he thing. was not arrested because he made the So, dearly, we somebody have that’s statement to the police. lying and lying way. in massive And, again, unfortunately, I’m just And, quite frankly, did she lie when she you talking right now. The Govern- was stopped the first time? surely She ment you will talk to again. IAnd will huge had a reason lie then. Or did not have the opportunity go ahead she lie later? T don’t know. I do not and—and rebut what lied, know when Government she but she -as lied. say. has to And can No, we trust would love to have witness? we opportunity. cannot trust So listen witness with such a to what gon- I’m huge and, decision. type say you know, With na decision submit it ato you need to go today, filter, ahead and make to a critical filter now. pulled police It was before ‘Yes. Harris, fellow, that Mr. a

But this is lie, over.” apparently, a reason has only it a He called an hour just half said it. according he testifies Then —he if I that stipulation stipulation. asked: later he’s go. statement, I would a down wrote pull this saw him you “Okay. When said that. that he no doubt There’s out, did— that individual Now, is an this I it 'out. pull him pull “I see didn’t it— by now lie then —and motive a has out.” pull it see him didn’t story. He that into already locked he’s from that’s a fellow we have here So know, he, waffles you that if knows o’clock, a 11:00 to 11:00—to 10:30 looking at he is story gonna then a,half hour, telling he’s one period legal problems. at problems, from the radically different story that’s differ- least three Now, us at he tells after. us half hour to tell trying he’s one isus story he tells First ent stories. that, had told us first of all Okay? He the scene. at officers tells the he what He saw everything now. oh, he saw with Weatherspoon Mr. says he sees He it slide gun, pull go guy ahead- Now, tells the Grand he gun. Okay? a cetera; at later on seat, et under He story now. Jury very a different doesn’t. he of a sudden all o’clock 11:00 Jury. the Grand twice before testified 11:00 o’clock at back goes He say may want the Government And So officers. police told story that he I differ-. beg I confused. he was it maybe figured 10:30 he guess I at mean, differ. beg to mean, really story. this if I embellish be nice would it see just don’t again, that’s—that’s—I it Iif make nice Maybe [be] it would he testified —this But when way. don’t know Then I sexier. sound little 10:30 at 19th, testified February whatever little concerned got a o’clock he 11:00 morning; testified sud- of a certainly But 10:30 happened. to bat at goes morning —all —he hour, chang- ishe he asked than half Okay? den, And less morning. pull him to what he back Government, you going saw story “And ing his of his waistband?” scene. out at the something officers told the “Yes.” this know that we Third time was here. when he lied was has

fellow Mr. him, tell you “Did I asked And he saw He said, said “Yes.” he And Weatherspoon didn’t Mr. Heddy that his waistband. something out pull him a, with he starts And then gun?” have says, gun? “A he Then during thinking was it well, I was gun. “A on. Come Again, ... come day; was it a handgun? being it asked And was gun. “A he was what It’s clear on. being asked . This fellow ‘Yes. about. a gun have handgun Mr. pull him with—did you saw. “When Harris Mr. stop? Did gun? out, he do the time what did Heddy showed Mr. gun? awith him see seat. under the put it “He to—to he made the statement him seat? under the “Put it Heddy Mr. Harris told Mr. police. And they find at. where Right “Uh-huh. gun. no, not see that, did he gun out pulled when “And weaseling buy his Now, you wanna do seat, prior itwas upit under put well, know I don’t out the— you over? pulling police talking or, know, day you know, about the is that you something gonna —are I you’re don’t know if talking about a be making comfortable that decision? year year after or a before. on. Come you gonna Are returning comfortable mean, I I think again, being your guilty upon that — verdict-based the fact that duty very is a that is duty hard. It’s a Mr. may Harris gotten have confused huge But, responsibility. Ias discussed when it was clear what Mr. Heddy was statements, in opening thing asking him? I don’t think so. you need to go ahead and do to perform - You heard the just as well as duty that’s beauty of it— —and I did. As I said in opening argument, I keep mind, is to an open apply common wouldn’t—I wouldn’t trust either of sense, put Government to its burden. those witnesses them asking where’s— And, Okay? you if do those three things, where’s the nearest 7-Eleven I’m driv- if you can see story that the of Mr. Harris ing through particular neighbor- is ridiculous. just hood. I they wouldn’t because yet And trying Government is go would ahead and lie. Those are go go ahead and with that. The Govern- individuals —individuals that have a trying ment is go play— ahead and lied, reason to lie and have both. whachamacall it?—said semantical or added). (emphasis grammatical games, whatever you even mean, want to call I it. this man was argument, rebuttal re- shown Heddy Mr. in his house in a sponded as follows: totally comfortable environment —the THE PROSECUTOR: type absence any pressure, absence I couple want address a points any type promises .of or anything to that Mr. Valladares talked about. He that effect—he was shown the statement you mentioned to the fact that the only gave he August officers on why Taylor reason Ms. wrote this state- 22nd, 2002, about 4:00 o’clock ment is because she was concerned morning and that, that Mr. Harris said about her children. That’s what she was no, he did not see the gun; that Mr. about, concerned that was her —her tie did gun. [sic] see to her children was closer than her tie to Now, can you go and, again, ahead Well, her fiancé. was she so con- make one of the most important deci- cerned about her children gettin’ sions, if not the important most decision back, them why engaged was she to a your life básed upon some weaseling convicted felon? Why was she hanging over, oh, I didn’t know whether he was guy? around this Answer that. That’s talking about during day. Of course common sense. it wasn’t during day. mean, I they to talk want about two state- know, took him you they arrested in— you’ve ments that heard about and the him and they course, took him. Of it consistency in both statements: Ms. wasn’t the day. Common sense dictates Taylor’s statement about her clearly observing that what Mr. Heddy and Mr. drop Kendrick the weapon Harris were on the floor talking about subject is the matter of it slide underneath the seat and Mr. front of Mr. Harris right then Harris’s statement and there he told as Mr. Heddy questioning him. the stand. What say did he about the

According Government, He you: pulled out, motion? showed Mr. may Harris gotten put have Mr. it underneath confused the seat. Consistent. Heddy. Well, gee, mean, again, you Consistent with her handwritten state- judge; lied they lied you; to- what said ment; consistent Agent me; my agent, they lied to It’s what uncontradicted. It’s not day. to the dis- they I lied guess Baltazar. said. they’ve all These it in. they called patcher when about talked Valladares And Mr. jobs, losin’ their that risk told Mr. are officers police that these fact officers losin’ their outstanding pension, warrants risk risk losin’ their he had Harris that And, could they He gun. top loaded got if and he livelihood. if lie, addressed they’re He never I gun. guess have loaded in here and come by Mr. addressed ever perjury. that. prosecuted Was bein’ riskin’ for Valladares, legally he could fact that they came because make sense Doesn’t oh, said, He Never .was. a gun? truth, have ladies you and told in here they story when with a they up came They didn’t threaten. gentlemen. Well, why over. pulled gettin’ were None of that was no coercion. There Okay, Mr. Harris. story: wasn’t come They gonna are was evident. it Because wasn’t gun? You take over to lie conspiracy this here and form Mr. Weather- truth was truth. The Doesn’t make sense. a traffic stop? they gonna gun. If spoon had knew a felon and This defendant was story would story, the with a up come this That’s gun. have a what he couldn’t be- had Mr. Harris have been have a didn’t He knew he is about. case He it. legally could cause he have. it under put out and pulled he gun so that. arrested have been wouldn’t him pullin’ the officer when seat you out to believe they make And over. hon- bein’ cops weren’t these somehow you about talked Mr. Valladares Ms. what And, you if remember est. Taylor was and her important Ms. how said, said, I can’t remember she Taylor you and this. ask testimony and this me talked to of the officers which one she ever interviewed Why wasn’t again: gettin’ them my children about go Why didn’t he investigator? by their they did. That’s what back, I know her, get state- her and talk out there Mr.' Valladares That’s what she said. important. ment, She’s so find out? they threatened said He talked about. to her they ever talked first time me ask Let warrants. Harris with Mr. they went right here. No gain ojficets had to police what these her, out to find tried talked out and lyin’? in here and What cornin’ Never once. Never. information. here gain to come have to they do testimony. Ms. remember You They had no story? this and fabricate hers; wasn’t gun wasn’t says the Taylor not tell lie in this case reason to n truth. hand- says her gun. mom’s her She night, on that written Honor, Your VALLADARES: MR. statement, gun it was. whose voluntary vouching, sir. again, this state- Mr. Harris’s consistent It’s Overruled. THE COURT: ment. They had THE PROSECUTOR: some- say tried Mr. Valladares you tell and not come here

reason to having warrants and having traffic how the stand they And took the truth. in trouble. got him gun would have the truth. they you told I’m not of that. no evidence There’s Valladares, Mr. you believe guess, be, but he charge would there; what that sure scene they have lied at must No Harris. gun, Mr. have a legally can they lied this court into came incentive to lie. He officers, told the. truth did no more than stand,. up here on the the same truth state, albeit as questions, rhetorical that he at the told time when wrote the officers had no het demonstrated motive to statement, out that same thing said lie—in contrast Taylor Vaneshia who Jury. to the Grand did. The final statement, “They had no

Mr. through Valladares went reason to lie in this case or not to tell the thing closing whole talking about truth,” does no more than reflect the rec- democracy goin’ and what’s on over seas ord, which in fact contains no evidence of a militarily. trying He’s to shift the focus part motive on the police falsely to away from the facts because the in facts deny Taylor’s Vaneshia accusations. This in this case show the defendant argument read context contains not a guilty. why That’s he’s focusin’ on hint of extra-record information in the that. hands prosecutor, and it does not He also mentioned that Investigator imply explicitly implicitly — —that Heddy when he went out to talked [sic] prosecutor monitoring was in some fashion to Mr. Harris was in the of comfort the truthfulness of the officers’ testimony. you I home. ask to remember the testi- Perez, (“Because See F.3d mony. Heddy Officer it [sic] testified prosecutor did not ‘imply the existence of was outside in the middle of day proof extraneous we say cannot that his while he was workin’ on his cari It statements were an improper vouching for wasn’t inside I you his house. ask to witnesses.”). the credibility of way remember that you that heard After asserting in Taylor it rebuttal from the I witness stand. don’t think lied on the stand and that occurred. the officers had same, no reason to do the I also find ironic that this statement continued discuss what incentives the investigator get: went out No officers had not other to lie or to witnesses there. fabricate a Never brought story: another witness him. get Didn’t a written statement. Didn’t guess, if you Valladares, believe Mr. get tape-recorded a statement from him. they there; must have lied at the scene None of that. they came into they this court lied added.)

(emphasis you; they judge; lied to this they bed The alleged vouching here relates first me; they lied agent, to my Agent words regarding the Baltazar. I guess they lied to the dis- testimonial conflict between the officers patcher they when called it in. These Taylor: Vaneshia are that risk losin’ their jobs, officers THE PROSECUTOR: risk pension, losin’ their risk losin’ their Let me police ask what these officers And, livelihood. top they

had to gain from cornin’ in here and lie, come in here and guess they’re lyin’? they What do gain- have to bein’ prosecuted riskin’ perjury. come in here and story? fabricate this Doesn’t make sense because came truth, here and told ladies MR. Honor, VALLADARES: Your and gentlemen. They didn’t threaten. again this vouching, sir. was no There coercion. None of that THE COURT: Overruled. They was gonna evident. are come in The court was correct in its here and form ruling. conspiracy Faced this to lie over with an attack on the credibility a stop? traffic Doesn’t make sense. in his shoes agent reasonable and knew believed a felon

This defendant at 575. a risk.” Id. We That’s what take such gun. would couldn’t have easily have He knew he didn’t also that could “[t]he case is about. noted it under put it out pulled so he court was that the district inferred have him pullin’ officer was when the the seat veracity light Bailey’s monitoring Agent over. Combs and reprimanding of its role added). testify [improperly] him requiring (emphasis Id. at 575-76. Bailey was a liar.” agent no ob- registered Although, defense Bailey’s credi- “agent also that noted We here, Weather- argument, jection to this case, government’s to the bility was critical officers to the the references spoon claims linking as there was no direct evidence' improper. perjury risking perils manufacturing charge Combs claim based a similar We addressed More- Id. 576. methamphetamine.” United a similar upon over, particulars on the we concluded (9th Cir.2004), Combs, F.3d in- generalized the court’s case that trial in this case. decided after case as evi- arguments to regard not structions rebuttal, There, argued prosecutor the the not sufficient neutralize dence were here, an argued prosecutor the Id. 575. problem. chal- credibility had been officer whose to lie: had no motive lenged of the case bar comparison A careful all, you gentlemen, ladies and Most two are me that the convinces Combs Kent Agent Special have to believe materially distinguishable: If the de- you believe Bailey is a liar. (1) force the here did not prosecutor the events, you have to version fendant’s agent the testify that defendant to Bailey Agent Kent Special believe fact, In the defendant awas liar. stand, swore that witness up walked stand; the here did not take truth, him- perjured and tell who, (2) throughout the defense self. trial, raised the issue repeatedly Agent that Special to believe You have Vaneshia specifically with perjury, ten-year career Bailey flushed Kent The de- Taylor with Harris. For a nice For what? the toilet. down jury argued fense Why man? would grandfatherly old truth Taylor told could trust Special That makes no sense. that? do she grand because before for get par- fired Bailey may not Agent testifying under was under oath where in a search warrant ticipating Similarly, the penalty perjury. lab, you can be meth there was no Harris of effectively accused defense perjur- for get sure he would fired darn forum; the same perjury in ing himself. monitoring (3) no hint of judge gave at 568. Id. testimony, anyone’s veracity of object to did not Combs The defense officers; including the Nevertheless, for argument. line of this (4) the issue credibility, and agents’ reasons, that this we concluded variety of lie Taylor to they caused of whether vouching reversible argument constituted arrest, her with threatening because; prose- “[ajlthough error plain issue, not di- to a satellite pertained agent for may have vouched cutor of who question central rectly level, im- plainly she Bailey personal on a written Taylor’s gun. possessed Bailey would be agent that she knew plied itself, viewed even when that she perjury committing for fired light of her suspect repudia- legal conclusion is binding on this it, clearly provided court,” tion of its own we held that prosecutor’s “the ref- veracity; its erence possibility of the Bilkoos’ (5) said, “you Combs prosecution perjury for atwas worst mild

can darn [agent Bailey] be sure vouching” and did not “amount to revers- get would him- perjuring fired plain ible error under the error standard Combs, self.” 379 F.3d at 568. This of review.” Id. at n. 14. categorical statement is tantamount potential References to the of false testi- to a guarantee from the mony to in perjury charges result without Bailey truth, telling suggestion of information outside the here, prosecutor’s whereas state- vouching record or strike me as unremark- ment referred prose- not what the able. Jurors see all witnesses take an do, might cutor but to the witness’s oath to they testify. tell the truth before motive incentive not to he under This common ritual required by Rule oath. 603 of the Federal Rules of Evidence: fine, I conclude that even if we were to testifying, every Before witness shall regard references required to declare that the witness possible error, case to perjury charges as testify truthfully, by will oath or affirma- prejudice the error did not Weather- tion administered in a form calculated to “ ” spoon’s “ rights’ ‘substantial and did not awaken the witness’ conscience and im- fairness, ‘seriously integrity, affect[ ] press ” duty the witness’ mind with the Combs, or public reputation of his trial. do so. 379 (quoting F.3d 576 United States v. Advisory The Committee note to Rule 603 Geston, (9th 299 F.3d Cir. states, 2002)). “perjury by crime, a witness is a § Perjury U.S.C. 1621.” includes testimo- This case is more like United States v. ny regarding under oath a material matter Daas, (9th Cir.1999), 198 F.3d 1167 than which the witness does not believe to be Daas, Combs. faced with allegations § true. 18 U.S.C. 1621. concepts These witnesses, Bilkoos, lied, that her sure, are legal, they to be but are also said, prosecutor concepts persons trained plea agreement Their calls for them to surely law understand. doubt that there that, be completely they truthful. If do jury has ever been a that did not under- they can get their sentences reduced. If testimony stand that false carries with it they that, they don’t do then get don’t of prosecution perjury. risk reduction, they sentence do more Therefore, references to the oath and time. So their motive is to tell the truth, consequences violating it without im- they not to lie. If were to lie oath, proper promises under guarantees, would such perjury face as prosecution Combs, as well. we find ordinarily will not con- stitute reversible error. Id. at Oddly enough, 1172. prosecutor conceded in the trial court during Daas’s E. motion for a new trial that this remark I come next to the most vouching, constituted serious and appeal, we disagreed claim disregarded lodged against pros- troublesome the concession. Miller, Citing United ecution: urging States v. to convict in or- F.2d Cir.1987), proposition protect for the der to community from government “concession as to armed convicted felon. prose- Because the under the same guilty find defendants argument justifies disputed now eutor you’re gonna made have before argument to an standard response a fair defense, with the defense’s begin every day in this coun- you. Happens points: to which hap- torch he talks about try. And that standard, question, But the day: every single VALLADARES: same pens MR. you’ve got to question fundamental Happens doubt. beyond a reasonable Are doing this is: yourself ask burden. time. That’s the same all the that decision with comfortable gonna be have to thing you’re gonna It’s the same from now? year next week? tomorrow? all the time. Con- happens It decide. you gonna be now? Are years five victions, all the time. that kind that —with comfortable with about, your talked deci- Mr. Valladares today? And— you heard being. of a human will affect the life sion and, not fool ourselves. again, let’s posses- being a felon But the law in this case. far from clear evidence is firearm, a lot of protects sion of a responded: To which out there also. people Members of THE PROSECUTOR: in- Again, that’s MR. VALLADARES: you in the asked jury, Mr. Valladares flammatory, sir. you gonna closing, are of his beginning Honor, he Your THE PROSECUTOR: here your decision comfortable closing that this made the years? What- days? in five five today? being. a human affects you gonna be com- Are ever he said. does, your It MR. VALLADARES: ya this: Convict- Let me tell fortable? Honor. gonna make Weatherspoon is ing Mr. just talk THE Let’s—let’s COURT: knowing there’s you comfortable nonguilt. guilt about with load- on the street convicted felons finding And THE PROSECUTOR: not convicted handguns, that there’s ed gonna protect other indi- guilty loaded semiau- man carrying around felons community. in this tomatic— viduals Objection, your Honor, MR. VALLADARES: ob- Your MR. VALLADARES: Inflammatory, sir. Honor. jection, sir. Honor, I’m Your

THE PROSECUTOR: objection over- Your is THE COURT: in clos- he said responding to what objec- a there is serious ruled. When ing. it. At tion, your in rule favor will a fair That’s not MR. VALLADARES: moment, let the Government please my argument, sir. response complete argument. its pun- don’t refer THE COURT: We Yes, sir. MR. VALLADARES: talk- argument. in this We’re ishment you, your Thank THE PROSECUTOR: guilt. Argue not guilt about or ing Honor. that. added). (emphasis You can THE PROSECUTOR: feel species this squarely addressed We have a convicted knowing there’s comfortable before, saying: argument guilty possess- that’s been found felon jurors to may urge A fully loaded firearm, ing a loaded order criminal defendant convict a handgun. And let me semiautomatic values, civil community preserve protect just yourself like ya tell this: Jurors order, lawbreaking. The future or deter into country go this juries all around appeals lurking prosecutorial in such day evil just every this like courtrooms the defendant will be convicted during guilt phase of a wholly for reasons irrelevant to his own trial. guilt may per- innocence. Jurors Id. 487. that, appeals such suaded believe government’s The response to this claim defendant, by convicting they will as- is understandable but unconvincing. The pressing sist the solution some government says defense counsel “invited” n The problem. social amelioration of so- argument this when he: ciety’s heavy woes is far too a burden [Rjepeatedly question called into for the individual criminal defendant testimony witnesses, of the Government

bear.. called the Government’s “laughable”, frightened jury by de- Koon, 34 F.3d at 1443 (quoting United manding they be tak- “comfortable v. States F.2d Monaghan, ing liberty”, equating jury man’s their (D.C.Cir.1984)). fighting service to in the United States prosecutor’s argument violated this overseas, Armed Services and scaring rule, trial and the court plainly abused its jurors into believing that our United when it failed to discretion sustain coun- “democracy States will end” if timely objection. sel’s The vice of the speculate in this case. n prosecutor’s argument case was I disagree. nothing improper discern by Weatherspoon’s exacerbated go- status argument, defense counsel’s certainly ing Yes, into the trial as a convicted felon. nothing that justify would by way knew this fact stipula- of a remove-an-armed-convicted-felon-from- crime, tion to this element but the argument. the-street The defense did no prosecutor’s argument by emphasizing the n more emphasize jurors than “convicted felon” formulation of Weather- solemnity of their responsibilities. The spoon’s “to-protect-others-in- status was a government’s claim argument that the the-community, let’s-gét-Weatherspoon- merely scale,” “righting the citing United off-t he-street-because-he-is-an-armed-con- Wallace, 848 F.2d 1464 Cir. argument, just victed-felon” a refer- 1988), equally unconvincing. This bad ence element of the defense. This man-with-a-gun argument placed a serious , sort in a case where the prejudicial consideration on the scale charge in possession is felon aof firearm is against Weatherspoon that should not singularly inappropriate. Weatherspoon’s have been there. stipulated status as a felon per se could Ill not be used as evidence to convict him of this crime possession, rather, of only to My regarding conclusions prosecu- the satisfy one element of it. improper argument tor’s leads to the final issue: was this error harmless? In other As we said in Commonwealth N. of words, did the improper argu- Mendiola, Mariana Islands v. 976 F.2d ment so the jury’s ability affect to consider (9th 475 Cir.1992), overruled other the of the totality fairly evidence that it grounds Camacho, George v. 119 F.3d “tainted deprived the verdict and [Weath- (9th Cir.1997): Smith, erspoon] a fair trial.” 962 F.2d commentary While aon defendant’s at 935. question, To answer this we must “ dangerousness future may proper in be determine ‘whether [the] be- havior, context of sentencing, highly it is considered in the context of the Weatherspoon see that he did not tified conduct trial, including the. entire it put and of his waistband ability gun a out jury’s pull counsel, affected defense ” Instead, admitted, “I he the seat. fairly.’ United under evidence judge to mean, him—if he—I Brown, have seen F.3d couldn’t omitted). Cir.2003) (citation My put answer it out and pulled he pretty I’m sure “ no, But, than I probabl[y] enough. ‘more here the seat true up that the error under ” the verdict.’ Id. materially affected seen tell can’t sit here and omitted). (citation a motion.” seen was him—all government’s Harris, The direct evidence During direct examination Weatherspoon to link purporting case discrepan- sidestepped this had shaky civil- extremely from gun this came testimony jury grand Harris’s cy between calling officers After witnesses. ian by deftly ignoring testimony his trial and gun under they found establish that jury. it to the explaining it—instead seat, prosecution passenger the car’s perform- emerges from Harris’s What direct Taylor its first as Yaneshia called person a a picture a witness is ance as note, Taylor, we Ms. witness. with government willing please too that Weather- testify not called was It is clear from testimony. respect to his a instead as gun, spoon possessed to his compared on direct as his answers prior use her in order tó witness hostile jury grand testi- cross and his answers on him, a statement against written or, refined, consciously mony that he had false insofar heatedly said was she which “corrected,”' testimony words, his in his The boyfriend. record her inculpated itas as a witness. appearances between thinking juror clear- that no it clear makes testi- in Harris’s weakness The second anything weight to much could attach ly arises mony pertaining to anytime. She said—at Taylor Yaneshia inconsistent prior appears what under or she lied police, lied either prior Harris talked When statement. grand before oath —both inves- counsel’s Weatherspoon’s the trial to record demonstrates trial. The had not seen Harris said tigator, says she whenever says and she whatever expla- Harris’s gun. with a Weatherspoon belief. worthy of it, are not her words that he discrepancy was nation for next direct evidence government’s The “that to mean question understood Harris, testimo- whose was Donald witness did consider day,” .and that he examined, explored objectively ny when the morn- o’clock to cover “3:00 question C., opinion, supra, III of this Part con- hardly explanation This cute ing.” in a car Discovered equally unimpressive. tes- who witness especially from vincing, circumstances uncomfortable under he wrote only reason also tified ex- companions, unsavory implicating out a statement on outstand- being for not arrested change he had discovered police because warrants, a statement he wrote traffic ing warrants, it was traffic outstanding possessor Weatherspoon as fingering statement,” jail.” “go “write either with his trial problem gun. statement, police the So, and wrote he testimony is twofold. his arrest the go, let him warrants under First, jury oath grand the he told notwithstanding. “pull the Weatherspoon actually “saw” or other gun on the Any fingerprints it under put his waistband and gun No. to Weatherspoon linking it?. it. On seat,” found police where left Thus, we are the direct evidence however, trial, he tes- cross-examination 1172 (1) gun passenger fight prosecutor found under the tion to fire with fire. A

is in occupied by Weatherspoon seat a car higher duty has a than to the equiva- make mother, Taylor’s not owned Vaneshia arguments. lent of he-hit-me-first See (2) testimony appellant, of two States, 78, 88, Berger v. United 295 U.S. (3) witnesses, nothing floeculent and else. (1935). 629, S.Ct. 79 L.Ed. 1314 totality of Although the the evidence said, This I am convinced that our Cir- against Weatherspoon would have been cuit has extended concept vouching support guilty sufficient to verdict if it beyond process far its core due concerns trial, were to have resulted from a fair it is bluntly it misinterpreted many strong indeed, far from it is demonstra- — arguments cases to cover directed bly part untrustworthy. weak and impact meaning of the evidence. Weatherspoon very may put well have vouching analysis The in this proves case .seat, prosecution’s under the but the Davis, my point. suggested As we uphill prove evidence swims its case lawyer’s argument regarding meaning beyond a reasonable doubt. significance of the evidence in a case Accordingly, prose- I conclude that the Davis, represents lawyer’s opinion. argument cutor’s rebuttal 564 F.2d at it 846. What else could be? Instead, get-an- error. harmless vouching every Jurors know this. Is it armed-convict-out-of-the-community argu- lawyer says believe,” “I time a or “I sub- probably ment more than not tainted and mit,” not, or “I think?” Of course but our explains juror’s guilty It fol- verdict. opinions jump too often inappropriately to lows that the defendant’s trial violated Due the conclusion that such formulations nec- Constitution, guaranteed by Process as our essarily impermissible amount to “vouch- judgment and the him against conviction ing.” tried cases in state and federal cannot stand. court twenty-three years, on and off for way lawyers and this is the talk. It

IV vouching forcefully saying, more than “The Although I prosecu conclude that beyond evidence shows a reasonable doubt alleged vouching episodes tor’s guilty.” says Who error, I opportunity suggest take this prosecutor says so? The It so. is the easily that a careful could prosecutor’s opinion. It adds nothing professionally allega have avoided these submit,” say believe,” “I “I “I or think.” tions of simply making misconduct it The standard instructions make this clear saying argument clear that what' he jurors. Every argument I ever nothing amounted to than more observa lawyer’s opinion heard was the about the tions about relevant matters the eviden- So, impact the evidence. unless the tiary easy record. It is an task for an argument conveys impression “the that ev- informed federal to steer clear presented jury, idence not danger areas identified’ in federal prosecutor, known to the supports the case law and to stick the task hand. charges against the defendant” or invites purpose of argument explain is “to jurors “to trust the Government’s what has to decide and what judgment rather than its own view of the evidence is relevant to its decision.” San evidence,” Calderon, does not consti- doval v. F.3d Cir.2000) vouching, period. tute (citing Young, 470 U.S. at Iglesias, United States v. (11th Cir.1990)). 18, 915 F.2d S.Ct. 1038. These observations Young however, open notwithstanding, must not be read as an invita- prosecutors in and valuable resources.1 The issues approach not even to take care must - easily avoidable. this case were danger zone. it, discussing argument I am at While why a witness sense reasons

common im- tell the truth isn’t

might tell or not always are exhorted

proper either. Jurors judge credi- common sense

to use their the time that Attorneys argue all

bility. can’t be trusted because

witnesses BOYD, Plaintiff-Appellant, Brent Why should a motive to lie.” have “a that a arguing lawyer prohibited v. a motive not to lie because witness has BERT NFL ROZELLE BELL/PETE per- the witness will be consequences for PLAN; PLAYERS RETIREMENT sonal disaster? Disability Player Supplemental NFL Modification Publish- a motion for Plan; Disability Board, Defen granted part, Opinion^which have ed dants-Appellees. Attorney for the District the United States No. 03-56514. candidly recognizes the mis- Nevada by his and ascribes takes made assistant Appeals, United States Court of (both at supervision “a lapse them to Ninth Circuit. level) of the part on the appellate trial and Dec. 2004. Argued and Submitted office, they are the management of the training shortcomings of the result 13, 2005. Filed June Assis- experience prosecuting Attorney.” The tant United States United us that the errors Attorney assures

States un- not arise from an

of his assistant did management from a design,

ethical accept in his office. I the United

failure Attorney’s willingness personally to

States errors, errors responsibility

take for these suggest in turn that the United

which Attorney would be well advised con- super-

structively to review the methods office, training that exist

vision and lawyers a conduct for his trial semi-

and to permissible

nar on the bounds Ninth Circuit. appeal Reversals on missteps and re- prosecutorial

because of time

sulting retrials are a brutal waste of trial); Culverson, States v. court for new United No. 04-10338 trict 1. See United States v. Cir.2004); Williams, (9th (9th 2004) (order terminating Fed.Appx. 581 Cir. Dec. Green, Fed.Appx. without United States case on the merits after submission Cir.2004). hearing, dis- oral reversed and remanded to

Case Details

Case Name: United States v. Kendrick Weatherspoon

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 13, 2005

Citation: 410 F.3d 1142

Docket Number: 03-10551

Court Abbreviation: 9th Cir.