United States v. WalkerUnited States v. Walker
Attorneys for Appellant
*Honorable David D. Dowd, Jr., United States District Judge for the Northern District of Ohio, sitting by designation.
Attorneys for Appellee
OPINION OF THE COURT
DOWD, District Judge.
I. The Charge and Conviction.
The appellant, Robert Walker, an inmate at The Federal Correctional Institute (FCI) in McKean, Pennsylvania, prosecutes an appeal from his conviction and sentence of 18 months for possession of contraband in violation of
On October 13, 1995, Walker was undergoing a strip search preparatory to being placed in a special holding unit within McKean. The two correctional officers conducting the search, Scott and Dubois, ordered Walker to remove his undershorts at which time Walker removed a ten-inch shank. In a subsequent interrogation on November 3, 1995 by William Turner, an FBI agent, Walker admitted to possession of the shank. Walker also admitted that he made the weapon, and that he had it for protection because of a fellow inmate problem.
II. The Alleged Error of Vouching.
On appeal, Walker‘s sole error advanced for reversal of conviction is the contention that the government prosecutor “vouched” for the three government witnesses: Scott, Dubois, and Turner. Walker argues that his defense
III. The Setting.
A. The Opening Statements.
The government‘s opening statement summarized the expected testimony of Scott, Dubois and Turner. The defendant‘s opening statement emphasized that the defense would be questioning the credibility of the government witnesses.
B. A Review of the Testimony of Scott, Dubois, Turner and Zuniga.
Scott testified that he was working in the special housing unit1 where Walker was transferred on October 13, 1995, and was present when Dubois conducted a visual search of Walker in a shower room. Scott indicated that Dubois conducted a visual inspection of the shower room before the search of Walker. Walker was ordered to remove his clothes while Scott held a plastic bag for Walker to put his clothes in. After Walker stripped down to his underwear and socks, Walker turned his back on Dubois and Scott. According to Scott, Dubois then ordered Walker to turn around, at which point Walker reached into his waist area and turned around with a shank in his right hand. Scott told Walker to place the weapon on the grill and step back. Scott picked up the weapon and put it in his pocket. He then wrote out an incident report and took a photograph of the weapon.
Dubois corroborated Scott‘s testimony. Dubois emphasized that when he requested that Walker turn around, Walker refused. Then he ordered Walker to turn around, but again Walker would not turn around. Dubois testified that he finally gave Walker a direct order to turn around, at which point Walker turned around with a shank in his right hand. Dubois testified that Walker put the shank on the grill where Scott grabbed it.
According to Turner, Walker admitted that he had found a piece of metal which looked like a key ring outside the gymnasium of FCI McKean and straightened it. Walker claimed that the end of the ring was already flattened. Walker admitted to taking a piece of a sheet and wrapping it around the handle.
Lieutenant Zuniga testified that he was present during the interview of Walker by Turner on November 3, 1995. Zuniga indicated that Turner read Walker his rights and the waiver at the bottom of the form and asked Walker if he understood them. Turner then gave Walker the form to look over and asked him again if he understood his rights. Zuniga testified that Walker then signed the waiver. Zuniga also stated that he signed the form as a witness.
According to Zuniga, Walker was not threatened into signing the form and he appeared fully coherent. Walker told Zuniga and Turner that he made the weapon from a key ring that he found in the “rec yard.” Walker said that he straightened the key ring and then sharpened it. Walker stated that he made the weapon for protective purposes due to a prior altercation with an unidentified inmate. Zuniga testified that Walker stated during his interview that he used sandpaper to sharpen the point of his weapon.
At no time was there any testimony that suggested an alleged bias or ulterior motive on the part of Scott, Dubois, Turner, or Zuniga in investigating and reporting this incident.
After reviewing the testimony and the stipulations, the Assistant United States Attorney (AUSA) indicated that the only contested issue was whether Walker possessed the shank. Then the AUSA argued:
Now, ask yourselves what motivation would Officer Robert Scott and former Officer Raymond Dubois have to come in here and lie to you. What motivation. I submit to you that they have no motivation to lie to you. I submit to you that you can determine, using your common sense and your judgment, you can determine the credibility of those two and the only two eyewitnesses to the search . . .
Now, in addition, we went further, we then called Agent Turner . . . What motivation would he have to come into this courtroom and lie to you. . . [summary of Turner‘s testimony] . . . I submit to you that Agent Turner would have no motivation to come into this courtroom and make these things up. I submit to you that Agent Turner corroborated the direct evidence of the two and the only two eyewitnesses.
After final argument advanced on behalf of Walker in which Walker‘s lawyer questioned the Government‘s proof and the credibility of the witnesses by declaring that there should have been a video of the search and a recording of the alleged confession and imploring the jury to not act as a rubber stamp for the Government, the AUSA responded in part as follows:
The testimony was, the testimony of the two officers that have no motivation to lie to you, the testimony was that it came out of the underwear. This was a strip search. They had two officers behind the bars looking and they told you, the eyewitness testimony, that is evidence of this crime. And we submit to you that we have proven that beyond a reasonable doubt. . . .
And we submit that when you think about the case with your judgment and your wisdom and you take into account that there were only two eyewitnesses and they have told you that they saw the defendant with
the object, that, ladies and gentlemen, is proof beyond a reasonable doubt.
V. The Concept of Vouching Discussed in Genera l.
Vouching constitutes an assurance by the prosecuting attorney of the credibility of a Government witness through personal knowledge or by other information outside of the testimony before the jury. United States v. Lawn, 355 U.S. 339, 359 n. 15, 78 S.Ct. 311, 323 n. 15, 2 L.Ed.2d 321 (1958). See also United States v. Neceochea, 986 F.2d 1273, 1276 (9th Cir. 1993). A prosecutor‘s vouching for the credibility of a government witness raises two concerns: (1) such comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant‘s right to be tried solely on the basis of the evidence presented to the jury; and (2) the prosecutor‘s opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government‘s judgment rather than its own view of the evidence. Young, 470 U.S. at 18, 105 S.Ct. at 1048; United States v. Molina-Guevara, 96 F.3d 698, 704 (3d Cir. 1996).
While it was formerly the rule in this Circuit that vouching for a witness based on information not in the record required reversal per se, United States v. DiLoreto, 888 F.2d 996, 999 (3d Cir. 1989), such comments now must be analyzed on a case by case basis. United States v. Zehrbach, 47 F.3d 1252, 1267 (3d Cir. 1995).3 This Circuit has analyzed vouching in a number of cases, and a review of the case law will be helpful to put this case in context.
VI. A Review of the Case Law.
In United States v. Gallagher, 576 F.2d 1028, 1040-43 (3d Cir. 1978), the prosecutor told the jury during opening
In United States v. Swinehart, 617 F.2d 336, 338-340 (3d Cir. 1980), the prosecutor in closing argument stated that the Government‘s expert witness “is an honest witness.” Id. at 339 n. 3. He also stated that this witness “of all witnesses and I believe that all the witnesses that testified [sic], testified honestly was one of the most honest.” Id. The prosecutor went on, “I suggest that the expert in this case who testified concerning the questioned documents, that his testimony is totally worthy of belief.” Id. We once again expressed our disapproval at these comments and held that they constituted improper vouching by the Government‘s attorney. Id. However, we held that the improper comment did not warrant reversal because the jury would have convicted the defendant even had it not been exposed to the improper prosecutorial comments. Id.
In United States v. Beaty, 722 F.2d 1090, 1097 (3d Cir. 1983), the prosecutor stated during summation that the witnesses who had appeared pursuant to a plea-bargain “promised to tell the truth and they were telling the truth before the judge who will sentence them in this matter. . . .” The court held that this comment constituted vouching. Id. However, the court held that this comment was not prejudicial. We explained, “[t]he prosecution witnesses’ credibility was a hotly contested issue throughout the trial. The jury was, therefore, more likely to view this statement as an argument than as a revelation.” Id. We also noted that there was overwhelming evidence of guilt, and that the judge‘s instructions dispelled any improper inferences that the jurors may have drawn. Id.
In DiLoreto, 888 F.2d at 998-1000, the prosecutor stated during rebuttal in reference to a witness that was appearing pursuant to a plea bargain that, “[I]f they lie, that bargain is off . . . We don‘t take liars. We don‘t put liars on the
In United States v. Pungitore, 910 F.2d 1084, 1120-1127 (3d Cir. 1990), the prosecutor made several remarks during rebuttal argument that the defendant challenged as vouching.4 The success of the government‘s case hinged on
We held that the statement by the prosecutor that, “the only way they got their stories together is if law enforcement told them each what to say[,] and there is nothing to indicate that happened, and it didn‘t happen,” was not vouching. Id. at 1124. We explained that the statement did not suggest that the prosecutor had access to undisclosed facts that would support the credibility of the government witnesses. Id. “Instead, faced with contradictory testimony regarding the preparation of its witnesses, the prosecutor urged the jury to accept the testimony most favorable to the government. This, in itself, was proper argument.” Id. at 1125.
We also held that the prosecutor‘s comment that the FBI agents were brought in to testify because they were not criminals was not vouching. Id. at 1125 n. 57. We noted that, in context, the comment merely points to the lack of any compelling evidence that the officers had engaged in any misconduct. Id. We observed that “[o]ur precedents do not constrain a prosecutor from pointing to an absence of evidence which might reflect negatively on his witnesses, so long as he does not suggest the existence of undisclosed facts which would support a favorable credibility determination.” Id.
More recently, in United States v. Bethancourt, 65 F.3d 1074, 1079-1080 (3d Cir. 1995), the defendant challenged the integrity of the Drug Enforcement Agents who testified at trial.6 The prosecutor responded that the defendant‘s argument was improbable and that the witness did not lie.7 On appeal, the Government conceded that the prosecutor‘s
Most recently, in Molina-Guevara, 96 F.3d 698, 703-705 (3d Cir. 1996), the prosecutor during rebuttal represented that an uncalled witness would have corroborated the testimony of the United States Customs Service Agent who testified at trial and whose credibility was at issue. Id. at 703. The prosecutor further told the jury that it was “insulting” and “ridiculous” to think that the Government would put a witness on the stand who would lie. Id. at 704. The prosecutor also assured the jury that the agent in question “did not lie to you.” Id. We held that these statements were vouching and impermissible. Id. at 705. Since the defendant made the appropriate objections and moved for mistrial, we applied a harmless error analysis. Id. at 703. We held that because the prosecutor‘s rebuttal referenced a potential witness who never took the stand, the defendant‘s Sixth Amendment rights under the Confrontation Clause were violated. Id. at 705. Accordingly, we reversed the conviction because we could not say that the improper comments were harmless beyond a reasonable doubt.
Our case law indicates that to find vouching two criteria must be met: (1) the prosecutor must assure the jury that the testimony of a Government witness is credible; and (2) this assurance is based on either the prosecutor‘s personal knowledge, or other information not contained in the record. Thus, it is not enough for a defendant on appeal to assert that the prosecutor assured the jury that a witness’ testimony was credible. The defendant must be able to identify as the basis for that comment an explicit or implicit reference to either the personal knowledge of the prosecuting attorney or information not contained in the record. See Lawn, 355 U.S. at 339 n. 15, 78 S.Ct. at 323 n.15. It follows that where a prosecutor argues that a witness is being truthful based on the testimony given at trial, and does not assure the jury that the credibility of the
A prosecutor may argue in the negative that the assertions made by defense counsel that a witness is lying are not supported by the testimony in the record. What the prosecutor may not do is take the next step. Once the defense counsel‘s argument is rebutted, the prosecutor‘s references to the witness’ credibility should end. If the prosecutor proceeds further and starts arguing in the affirmative that the witness is credible, and does so based on either information that is not in the record or his/her own personal knowledge, then the prosecutor has engaged in vouching.
VII. A Plain Error Analysis of the Alleged Vouching.
Walker did not object to the alleged vouching during trial. Therefore, we review the record for plain error. Bethancourt, 65 F.3d at 1079. “In order to be plain error, an error must not only be `obvious,’ it must also `have affected the outcome of the District Court proceeding.’ ” Id. (citing United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 1778-79, 123 L.Ed.2d 508 (1993)). “We may reverse only if we find error in the prosecutor‘s comments so serious as to `undermine the fundamental fairness of the trial and contribute to a miscarriage of justice.’ ” Pungitore, 910 F.2d at 1126.8
Now ask yourselves what motivation would officer Robert Scott and former Officer Raymond Dubois have to come in here and lie to you. What motivation. I submit to you that they have no motivation to lie to you. I submit to you that you can determine, using your common sense and your judgment, you can determine the credibility of those two and the only two eyewitnesses to the search.
The comment by the AUSA consists first of the rhetorical question, “What motivation [would these witnesses have to lie]?” This question is not vouching. It does not maintain the credibility of the two witnesses by referring to information outside the record, nor does it contain a personal assurance of veracity. Viewed in context, the statement merely points to the fact that Walker did not produce any evidence indicating a motive on the part of the law enforcement officers to lie. As we have previously stated, it is permissible for a prosecutor to point to an absence of evidence that might reflect negatively on her witness, so long as she does not suggest the existence of undisclosed facts that would support a favorable credibility determination. Pungitore, 910 F.2d at 1125 n. 57.9
This reading of the phrase is supported by its context. The AUSA asked the jury to find that the witness was credible “using your common sense and your judgment. . . .” Clearly, the prosecutor is merely asking the jury to view the evidence in a light most favorable to her case, which is proper argument. See Pungitore, 910 F.2d at 1125.
Walker also challenges the following comment made during closing argument by the AUSA regarding the testimony of Turner, “What motivation would he have to come into this courtroom and lie to you . . . I submit to you that Agent Turner would have no motivation to come into this courtroom and make these things up.” This comment is similar to the one analyzed above and is not vouching for the same reasons. The rhetorical question merely points to a lack of evidence produced by Walker in support of his claim that the government witnesses were lying. It is clear from the surrounding context that the second sentence merely asked the jury to accept the testimony in a light most favorable to the government. Thus, it is not vouching, but proper argument. Pungitore, 910 F.2d at 1125.
This is not to say, however, that prosecutors have free license to say whatever they please as long as they preface their remarks with the phrase, “I submit to you that.” This phrase is not a magic talisman that wards off allegations of
It is perfectly acceptable practice for a prosecutor to use language in addressing the jury such as “you are free to conclude,” “you may perceive that,” “it is submitted that,” or “a conclusion on your part may be drawn,” to mention only a few examples of unobjectionable phraseology. It is obligatory for prosecutors to find careful ways of inviting jurors to consider drawing argued inferences and conclusions and yet to avoid giving the impression that they are conveying their personal views to the jurors.
Finding no error, the judgment of the district court will be AFFIRMED.
A True Copy: Teste:
Clerk of the United States Court of Appeals for the Third Circuit
Notes
The prosecutor further urged the jury to consider the oaths of office taken by the law enforcement officers:the FBI agents and state troopers in this case are not criminals. There‘s no evidence to indicate that those good men suborned perjury or made up anything and that‘s why the Government brought them in[,] so that you could judge their credibility from the witness stand. Id. at 1123.
Lastly, the prosecutor attested to the integrity of the prosecutorial team and commented upon the testimony of two of the Government‘s witnesses:You decide if it was [the defense witness] that was telling the truth or if it was all those FBI agents and state troopers who swore an oath who many of them told you have been agents and troopers for 19 years, 18 years, 17 years, you decide if they put their jobs, their careers and everything they worked for all those years on the line to fabricate testimony and put words in a witnesses mouth. Id. at 1123 n.56.
We‘re [the prosecutorial team] and make no mistake about it. What he‘s telling you, what a lot of these defense attorneys are telling you is that we fed this information to those Defendants, and you know what? You‘ve heard us throughout the course of this trial. I‘m not a genius but I‘m not that dumb that I casually mentioned things to them without knowing exactly what I‘m doing. I‘m not that stupid . . . Those FBI agents, those state troopers, those policemen, they‘re not real stupid either. The only way that [the government witnesses] testimony could be consistent in this case is one of two ways. They‘re either telling the truth or . . . the only way that they got their stories together is if law enforcement told them each what to say[,] and there is nothing to indicate that that happened, and it didn‘t happen. Id. at 1123.
For what, ladies and gentleman? He‘s gonna risk his career? He‘s gonna risk his job? He‘s gonna risk going to jail? For what? To lie to you on the stand, ladies and gentleman? I submit not, ladies and gentleman . . . [the prosecution‘s witnesses] don‘t make up lies. And they didn‘t lie here and they‘re not lying to you, ladies and gentlemen, when they tell you what they did. And they‘re not lying to you when they tell you that defendant . . . talked to them about the statement. Id. at 1079.