U.S. v. Necoechea

• Decision Date: 15 April 1993
• Docket Number: No. 92-10275,92-10275
• Citation: 986 F.2d 1273
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Dominic NECOECHEA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1273

986 F.2d 1273

UNITED STATES of America, Plaintiff-Appellee, v. David Dominic NECOECHEA, Defendant-Appellant.

No. 92-10275.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 17, 1992.

Decided Feb. 18, 1993.

As Amended on Denial of Rehearing

April 15, 1993.

William G. Walker, Hirsh, Davis, Walker & Piccarreta, Tucson, AZ, for defendant-appellant.

Jesse Figueroa, Asst. U.S. Atty., Tucson, AZ, for plaintiff-appellee.

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

Before: GOODWIN, O'SCANNLAIN, and RYMER, Circuit Judges.

RYMER, Circuit Judge:

David Dominic Necoechea appeals his conviction for conspiracy to possess marijuana with the intent to distribute in violation of 21 U.S.C. §§ 846 & 841(a)(1). Necoechea argues that the prosecution improperly vouched for its witnesses and knowingly presented false testimony, that he was denied effective assistance of counsel, that there was insufficient evidence to support his conviction, and that there was cumulative error. We have jurisdiction, 28 U.S.C. § 1291, and we affirm.

I

Agent Richard Salazar, acting undercover, posed as a large-scale marijuana dealer looking for buyers. He planned a 120 pound transaction with Lupita Gibson, John Blomquist, Charles Jackson, and Manny Romero, though his primary contact was Gibson. After several discussions, a transaction was finally planned at a particular house. Everyone met at the house, after which Salazar left to go get the marijuana. While Salazar was gone, Gibson heard Jackson say that he was going to get his "moneyman." ¹ Jackson returned with Necoechea. Gibson saw Necoechea at the door of the residence with a cooler, and heard Necoechea ask Jackson if he should bring the cooler into the house. This appears to be the only contact Gibson had with Necoechea.

At Salazar's request, Gibson and Jackson met him at a parking lot to inspect the marijuana. Salazar noticed that Gibson "looked like she knew what she was doing" when she inspected the marijuana. A short time later, Salazar came to the house, without the marijuana, to inspect the money. Jackson showed Salazar into the house, and led him to a room, but made him wait in the hall. Jackson went into the room, and came out with a cooler filled with cash, which Salazar said "looked good." Salazar then told Jackson that he would call to bring the marijuana to the house, and shortly thereafter a police team arrived. Jackson, Romero, and Necoechea were arrested in the house, and Gibson, who had left, was later pulled over by police when she returned to the house. Necoechea was found, with the cooler full of cash, in the room to which Jackson had led Salazar.

Gibson entered into a plea agreement and testified that she saw Necoechea outside of the house with a cooler. Necoechea was convicted, and now appeals.

II

Necoechea first argues that the prosecutor repeatedly vouched for the credibility of Salazar and Gibson. Since Necoechea failed to raise this objection at trial, we review for plain error. United States v. Molina, 934 F.2d 1440, 1444 (9th Cir.1991); Fed.R.Crim.P. 52(b). We reverse only if, viewing the error in the context of the entire record, the impropriety "seriously affect[s] the fairness, integrity or public reputation of judicial proceedings, or where failing to reverse a conviction would amount to a miscarriage of justice." Id. at 1446 (internal quotations omitted).

A

"As a general rule, a prosecutor may not express his opinion of the defendant's guilt or his belief in the credibility of government witnesses." Id. at 1444. Vouching consists of placing the prestige of the government behind a witness through personal assurances of the witness's veracity, or suggesting that information not presented to the jury supports the witness's testimony. Id. at 1445; United States v. Roberts, 618 F.2d 530, 533 (9th Cir.1980). "Vouching is especially problematic in cases where the credibility of the witnesses is crucial, and in several cases applying the more lenient harmless error standard of review, [courts] have held that such prosecutorial vouching requires reversal." Molina, 934 F.2d at 1445. At the same time, we have recognized that prosecutors must have reasonable latitude to fashion closing arguments, and thus can argue reasonable inferences based on the evidence, including that one of the two sides is lying. Id.; see also United States v. Prantil, 764 F.2d 548, 555 (9th Cir.1985).

We have recently decided a number of vouching cases, which we believe will be helpful to review and put in context.

In United States v. Shaw, 829 F.2d 714, 716-18 (9th Cir.1987), cert. denied, 485 U.S. 1022, 108 S.Ct. 1577, 99 L.Ed.2d 892 (1988), the prosecutor told the jury in opening statement that the defendant's accomplice and an important government witness had agreed to testify and that "we ... have agreed that as long as he is truthful we will present his truthful cooperation to the local prosecutor." Id. at 717. The court instructed the jury that the witness was the beneficiary of a plea bargain and that the jury should examine his testimony with greater caution than that of ordinary witnesses. Even though the prosecutor's words imply that the prosecution had some method of determining whether the witness's testimony was truthful, and communicated a clearer message coming at the outset of trial before credibility had been challenged, we concluded that the vouching was harmless error. Id. at 717-18.

In United States v. Wallace, 848 F.2d 1464, 1473-74 (9th Cir.1988), the government elicited on direct examination that a witness had entered into a plea agreement which required her to testify truthfully, submitted in closing that the witness told the truth, and commented in rebuttal that the witness "didn't say that because that would not have been the truth ... [S]he could have gilded the lily, she could have really buried Janice Wallace ... but she didn't do that, she told the truth ... [S]he could have given a lot more details ... But she didn't." Id. at 1474 n. 16. Defense counsel repeatedly argued that the government's key witness was lying. The trial judge instructed that the witness's testimony should be examined with greater caution as she was immunized and an accomplice, but gave no other curative instructions. We declined to decide whether the improper vouching was plain error, because the record was incomplete. Id. at 1474.

In United States v. Lew, 875 F.2d 219, 223-24 (9th Cir.1989), the prosecution brought out on the direct examination of two witnesses that their plea agreements required each to testify truthfully. We recognized that it was improper to allow the prosecution to elicit testimony on direct about the truthfulness requirement in a plea agreement. However, the vouching did not rise to the level of plain error because there was substantial independent evidence against the defendant, and because the judge instructed the jury to consider the extent to which the testimony of the witnesses may have been influenced by the government's promises and to look for corroborating circumstances before giving full credibility to those witnesses. Id. at 223-24.

In United States v. Simtob, 901 F.2d 799, 805 (9th Cir.1990), the prosecutor offered in front of the jury to immunize a witness for possible false statements to government officials. He then repeatedly exhorted the witness to tell the truth, and suggested during an exchange with the witness that he did not think the witness was lying. In response to defense counsel's objection, the court agreed that the prosecutor's remarks were "inappropriate" and said, "the jury will disregard." Id. at 806. The court also later instructed, "that the prosecutor cannot vouch for the truthfulness of a witness." Id. Because the case was close, we reversed applying harmless error analysis. Id.

In United States v. Monroe, 943 F.2d 1007, 1013-14 (9th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 1585, 118 L.Ed.2d 304 (1992), the government introduced the truthful testimony requirement of the witness's plea agreement on direct. We held that this was not vouching as it was offered in response to defense counsel's attack on the witness's credibility in his opening statement. Id. at 1014.

In United States v. Smith, 962 F.2d 923, 933-34 (9th Cir.1992), the prosecutor assured the jury in closing argument that his job was to turn over favorable evidence to the defense and to lead them to the truth, and that "[i]f I did anything wrong in this trial I wouldn't be here. The court wouldn't allow that to happen." Defense counsel had attacked a witness's credibility and the prosecutor told the jury the witness could not just say anything he wanted to because he would be prosecuted for perjury. The witness's testimony was crucial, the prosecutor's comments as a whole were not invited, and the prosecutor placed the prestige of both law enforcement and the court behind the witness's testimony. Accordingly, we reversed for plain error. Id. at 934-36.

Most recently, in United States v. Kerr, 981 F.2d 1050 (9th Cir.1992), the Assistant United States Attorney in closing argument referred to interviews he had with four witnesses and asked whether they were hoodwinking him and the court, and also said "I think ..." one witness was "very candid," and another was "candid" and "honest." The trial court gave a general instruction which did not mention the specific statements of the prosecutor and was not given immediately after the vouching occurred. We examined the closeness of the case, and thought the testimony of the four witnesses for whom the government vouched was crucial to the case and to the prosecutor's argument. We reversed for plain error. Id. at 1054.

These cases indicate that we have no bright-line rule about when vouching will result in reversal. Rather, we consider a number of factors including: the form of vouching; how much the vouching implies that the prosecutor has...