U.S. v. Shaw, s. 86-3056

• Decision Date: 01 October 1987
• Docket Number: 86-3057,Nos. 86-3056,s. 86-3056
• Citation: 829 F.2d 714
• Parties: 22 Fed. R. Evid. Serv. 1361 UNITED STATES of America, Plaintiff-Appellee, v. David J. SHAW, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 714

829 F.2d 714

22 Fed. R. Evid. Serv. 1361

UNITED STATES of America, Plaintiff-Appellee, v. David J. SHAW, Defendant-Appellant.

Nos. 86-3056, 86-3057.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 3, 1986.

Decided March 16, 1987.

As Amended on Denial of Rehearing and Rehearing En Banc Oct. 1, 1987.

Jeffrey J. Kent, Eugene, Or., for plaintiff-appellee.

Marianne D. Bachers, Eugene, Or., for defendant-appellant.

Appeal from the United States District Court for the District of Oregon.

Before ANDERSON, HUG and CANBY, Circuit Judges.

AMENDED OPINION

CANBY, Circuit Judge:

Appellant David James Shaw appeals his conviction, after jury trial, of unarmed bank robbery. He also appeals the denial of his motion to dismiss following a mistrial in a separate prosecution for weapon possession. We affirm both the conviction for unarmed bank robbery and the denial of the motion to dismiss.

On April 18, 1985, a man dressed as a woman robbed the Pacific Western Bank in Eugene, Oregon by threatening to throw a vial supposedly containing acid at a bank teller. On August 1, 1985, appellant David James Shaw was arrested and confessed to the robbery, admitting that he had dressed as a woman and had employed Ronald Smith, a juvenile, as his driver. Shaw also explained that the vial of fluid he used in the robbery contained only water.

The grand jury returned a three count indictment against Shaw on August 15, 1985. Count One charged him with unarmed bank robbery under 18 U.S.C. Sec. 2113(a) (1982). Counts Two and Three charged him with possessing an unspecified type of long arm weapon in April 1985 and a pistol in July 1985 in violation of 18 U.S.C.App. Sec. 1202(a)(1) (1982 & Supp. III 1985). The trial judge granted a motion to try Count One separately from Counts Two and Three. Count Two was later dismissed.

In the robbery trial, Shaw was found guilty of unarmed bank robbery after a trial to the jury. Shaw appeals his conviction on the grounds that (1) the prosecutor improperly vouched for the credibility of the government's main witness; (2) the trial judge should have stricken the testimony of a government witness who allegedly gave false testimony; and (3) the trial judge should have suppressed Shaw's confession because it was involuntary.

In the weapon possession trial, the district judge granted a mistrial, over defense objection, after a government witness whose anticipated testimony was described in defense counsel's opening statement refused to testify. The refusal occurred despite a grant of immunity from prosecution. After the mistrial, Shaw moved to dismiss the indictment, contending that retrial would violate the double jeopardy clause of the Fifth Amendment. The district court denied the motion, and Shaw appeals pursuant to Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). The two cases were consolidated for appeal.

A. The robbery trial

Shaw's first contention on appeal from his conviction for unarmed bank robbery is that the government improperly vouched for the credibility of a witness' testimony. In his opening statement, the prosecutor stated that Ronald Smith, Shaw's admitted accomplice and an important government witness, had agreed to testify as part of a plea bargaining agreement:

In addition, you will hear from Ronald Smith himself. You will learn that Ronald Smith, a juvenile, has been charged in the juvenile court of Eugene with robbery. The charges are pending against him. You will learn that we have, basically, agreed, we, meaning the prosecutor and the government have agreed that as long as he is truthful we will present his truthful cooperation to the local prosecutor so they can decide what value it has for the purposes of deciding what to do with his case.

Shaw contends that this reference to Smith's plea-bargaining agreement amounts to improper government vouching for the credibility of the witness.

In United States v. Roberts, 618 F.2d 530, 532 (9th Cir.1980), this court held that a prosecutor had improperly vouched for the credibility of a government witness by stating that truthfulness was a condition of the witness' plea agreement and that a government agent was in the audience monitoring the witness' testimony. There we warned that

[a] trial court should be alert to the problem of vouching before admitting a plea agreement containing a promise to testify truthfully. The court should consider the phrasing and content of the promise to ascertain its implications and decide whether an instruction to the jury would dispel any improper suggestion.

Id. at 536.

Some of our more recent cases have placed glosses on Roberts, however. We have made it clear that references to requirements of truthfulness in plea bargains do not constitute vouching when the references are responses to attacks on the witness' credibility because of his plea bargain. United States v. Tham, 665 F.2d 855, 862 (9th Cir.1981) (response to defense argument that plea bargain required witness "not to testify truthfully, but to testify favorably to the government"), cert. denied, 456 U.S. 944, 102 S.Ct. 2010, 72 L.Ed.2d 466 (1982); United States v. Brooklier, 685 F.2d 1208, 1218 (9th Cir.1982) (plea agreement properly admitted to rebut defense references to witness as "a perjurer, paid informant, and murderer who escaped the death penalty by cooperating with the FBI"), cert. denied, 459 U.S. 1206, 103 S.Ct. 1194, 75 L.Ed.2d 439 (1983); United States v. Rohrer, 708 F.2d 429, 433 (9th Cir.1983) (agreement properly admitted in response to "extensive impeachment" of witness' motives and "discussion of part of the agreement").

The present case differs from Tham, Brooklier and Rohrer because here the prosecutor called the jury's attention to the plea agreement and its requirement of truthful testimony in his opening statement. The government argues, however, that those three cases establish that it is permissible to focus on the terms of the agreement, including its requirement of truthful testimony, as a factor motivating the witness. See, e.g., Rohrer, 708 F.2d at 433. If such references do not constitute vouching when offered in rebuttal, the government contends, they do not become vouching simply because the government anticipates a defense attack on the credibility of its witness.

There is some logic to the government's argument, but we cannot accept it in its entirety. As we recognized in Roberts, every plea agreement that contains a requirement of truthful testimony contains an implication, however muted, that the government has some means of determining whether the witness has carried out his side of the bargain. See Roberts, 618 F.2d at 536. While Tham, Brooklier and Rohrer held it proper to refer to or introduce such plea agreements in rebuttal to an attack on credibility, those decisions do not necessarily legitimize the introduction of a requirement of truthfulness by the prosecution before any issue of credibility has been drawn. "Although ... plea agreements are admissible on the issue of bias, they are not to be used as a basis for supporting the truthfulness of the witness' testimony." Brooklier, 685 F.2d at 1218. When the prosecution refers, as it did here, to the requirement of truthfulness before the issue of bias is drawn, it runs the risk that its reference will be interpreted as an attempt to establish truthfulness and suggest verifiability.

We agree, however, with the government that what was said is more important than when it was said, at least in a case such as this one where an attack on the witness' credibility was almost certain to be forthcoming. The government stresses that it referred to no extra-record facts, unlike the prosecutor in Roberts, who told the jury that a detective in the courtroom was monitoring the witness' testimony. That reference clearly suggested to the jury that the detective knew whether the witness was telling the truth and would see that he did. As the government points out, we have subsequently stated that this extra-record reference to verification was the critical factor causing reversal in Roberts. Tham, 6655 F.2d at 862; Brooklier, 685 F.2d at 1218; Rohrer, 708 F.2d at 433. Similarly, in United States v. Brown, 720 F.2d 1059 (9th Cir.1983), the prosecutor placed before the jury a plea agreement requiring truthful testimony and submission, if asked, to polygraph examinations. The prosecutor then vigorously argued that the witnesses would testify truthfully because of their plea agreement. We reversed the conviction because the prosecutor's actions improperly indicated that extrinsic information and verification supported the witness' testimony. Id. at 1072-74.

The language used by the prosecutor in the present case was neither as egregiously suggestive as that in Roberts and Brown nor as sterile as that in Tham, Brooklier and Rohrer. The prosecutor in his opening statement said of his witness:

You will learn that we have basically, agreed, we, meaning the prosecutor and the government have agreed that as long as he is truthful we will present his truthful cooperation to the local prosecutor so they can decide what value it has for the purposes of deciding what to do with this case.

(emphasis added). The statement does not explicitly refer to any extra-record facts. It describes the agreement in the same terms as the witness himself later did in direct examination. Yet the emphasized words necessarily imply that the prosecution has some method of determining whether the witness' testimony is truthful, so that it will know whether to present the witness' "truthful cooperation" to the local authorities. "[T]he unspoken message is that the prosecutor knows what the truth is and is assuring its revelation." Roberts, 618 F.2d at 536. The message is the more clear for coming at the outset of trial, before any issue of bias is presented. In our view, the statement constitutes improper vouching.

In light...