U.S. v. McKoy

• Decision Date: 16 September 1985
• Docket Number: No. 84-1085,84-1085
• Citation: 771 F.2d 1207
• Parties: 18 Fed. R. Evid. Serv. 873 UNITED STATES of America, Plaintiff-Appellee, v. Frank McKOY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1207

771 F.2d 1207

18 Fed. R. Evid. Serv. 873

UNITED STATES of America, Plaintiff-Appellee, v. Frank McKOY, Defendant-Appellant.

No. 84-1085.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 13, 1984.

Decided Sept. 16, 1985.

Gregory C. Diamond, Las Vegas, Nev., for plaintiff-appellee.

Randy Schaffer, Houston, Tex., for defendant-appellant.

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

Before SCHROEDER, FLETCHER and CANBY, Circuit Judges.

CANBY, Circuit Judge:

A jury in the District of Nevada convicted Frank McKoy of conspiracy to transport stolen goods in interstate commerce, in violation of 18 U.S.C. Sec. 371 and of aiding and abetting the interstate transportation of stolen goods, in violation of 18 U.S.C. Secs. 2, 2314. McKoy contends on appeal that several flaws in his trial tainted his conviction. He argues that the trial court erred in permitting a former assistant United States Attorney to testify at trial that the government had "an extremely strong case" against him. He also asserts that the trial court should have excluded evidence of his involvement in other transactions in stolen goods; that he did not receive effective assistance of counsel; and that the evidence was insufficient to support the conviction of aiding and abetting. We reverse on the ground that the prosecutor's improper testimony probably denied McKoy a fair trial. We address McKoy's claim of insufficiency of the evidence because of double jeopardy concerns. We also address the admissibility of the "other crimes" evidence to assist the trial court in the event of a retrial.

I

A truckload of toys was stolen from the Tomy Toy Company in Carson, California between June 18 and June 20, 1982. James Greenamyer, one of McKoy's co-defendants, received the stolen toys at a warehouse in Carson on June 20.

Defendant McKoy's subsequent involvement with the stolen goods was established almost entirely by the testimony of Greenamyer and Greenamyer's ex-wife, Judy Mecham. Greenamyer testified that when he learned of the theft, he called McKoy in an effort to sell the stolen toys. He told McKoy that the toys were hand-held "Pac-Man" machines. When Greenamyer later received the toys, he found that they were "Airjammer Roadrammers and Cyclescrammers". According to his testimony, he then had several more phone conversations with McKoy. The two men agreed on a price of $1.25 per case for the toys and arranged to transport them to Nevada in U-Haul trucks the following day.

Greenamyer and Mecham further testified that on June 21, they and an accomplice, Ray Bowen, drove the U-Haul trucks from California to Nevada. On the way, they called Louetta McKoy, the defendant's wife, for instructions on what to do when they reached Las Vegas. Greenamyer testified that Mrs. McKoy told him to leave the trucks in a certain hotel parking lot and to leave Bowen at a motel. When Greenamyer and his wife arrived in Las Vegas, they left the trucks behind as they had been instructed to do. Greenamyer then contacted McKoy at McKoy's business in Pahrump, Nevada. According to Greenamyer, McKoy told him to bring the truck keys to Pahrump. On the road between Las Vegas and Pahrump, however, Greenamyer and his wife were arrested by F.B.I. agents who had followed them from California. When questioned they implicated McKoy. Subsequently Greenamyer and Mecham pleaded guilty to conspiracy charges and agreed to testify against McKoy.

The defense witnesses--including McKoy, his wife and son, and several employees and associates of the McKoy family's fireworks business--contradicted the story that Greenamyer and Mecham told. They testified that McKoy had been in Washington state during the week of June 20 and 21, checking locations for fireworks stands. They explained the series of phone calls between Greenamyer's home and the warehouse in California, and McKoy's home and business in Nevada, as an effort by Greenamyer to arrange a large purchase of fireworks in McKoy's absence. McKoy testified that he returned to Nevada late in the afternoon on June 21 and spoke to Greenamyer personally when Greenamyer called the fireworks business from Las Vegas. McKoy said that Greenamyer discussed a possible purchase of fireworks on credit, but never mentioned his load of stolen goods.

II

McKoy contends that the trial court erred in permitting certain testimony by a government witness, former assistant United States Attorney Donald Campbell. Campbell originally had been responsible for prosecuting McKoy and his co-defendants. In that capacity he had conducted the plea negotiations with Greenamyer and Mecham. At trial, McKoy's counsel cross-examined Greenamyer extensively regarding his plea agreement. In response, the government called Campbell as a witness to clarify the circumstances surrounding the plea bargain.

Campbell began by explaining the terms of Greenamyer's plea agreement to the jury. The trial prosecutor then asked Campbell to describe his negotiations with Greenamyer and Mecham. Campbell responded:

"In answering your question, I am going to have to tell you what my state of mind was with regard to this. I wanted to make sure that we had as good a case as we possibly could going into the courtroom. I felt that at that time the Government had an excellent case against--

At that point, the defense objected to the former prosecutor's discussion of his opinion of the evidence. The court sustained the objection, but permitted the witness to describe his "state of mind" with respect to the negotiations. The former prosecutor then continued his testimony as follows: "I felt the case was an extremely strong case against all defendants. It was stronger against some defendants than others, but nonetheless, I felt it was a strong case." Campbell went on to tell the court that "Mrs. Greenamyer (Mecham), in my view, was least culpable of all--". Defense counsel asserted a continuing objection to this testimony, and moved for a mistrial. The motion was denied. ¹

We fail to understand why the former prosecutor gave the jury his opinion that the government had "an extremely strong case" against McKoy. The rule that a prosecutor may not express his personal opinion of the defendant's guilt or his belief in the credibility of witnesses is firmly established. E.g. United States v. Potter, 616 F.2d 384, 392 (9th Cir.1979), cert. denied 449 U.S. 832, 101 S.Ct. 101, 66 L.Ed.2d 37 (1980); United States v. Davis, 564 F.2d 840, 866 (9th Cir.1977), cert. denied 434 U.S. 1015, 98 S.Ct. 733, 54 L.Ed.2d 760 (1978). Although the problem of prosecutorial vouching generally arises during arguments to the jury, it is equally objectionable where a prosecutor speaks to the jury as a witness. See People v. Arends, 155 Cal.App.2d 496, 318 P.2d 532 (1958). In the context of this trial, the jury reasonably could have understood the former prosecutor's testimony as an expression of his belief that the government witness, Greenamyer, was telling the truth and the defendant, McKoy, was lying. The government's entire case against McKoy rested on the testimony of Greenamyer and Mecham. Except for the telephone records, no other evidence linked McKoy to the stolen toys. The prosecutor's statement that the case was "extremely strong" necessarily implied that its strength lay in the co-conspirators' testimony.

The prosecutor's implicit comment on the credibility of the government's witnesses was improper here for the same reasons that such statements are generally improper. Hearing the prosecutor vouch for a witness's credibility, the jury might conclude that evidence not produced at trial confirms his opinion. See United States v. Roberts, 618 F.2d 530 (9th Cir.1980); Orebo v. United States, 293 F.2d 747 (9th Cir.1961), cert. denied 368 U.S. 958, 82 S.Ct. 402, 7 L.Ed.2d 389 (1962). That danger was present in this case. Because the former prosecutor's testimony described his "state of mind" during the plea negotiations with Greenamyer and Mecham, it was clear to the jury that his statements were based on his personal knowledge of the evidence at that time, not on the evidence presented at trial. Even if the jury did not understand the prosecutor to refer to his knowledge of facts outside the record, the jury could have construed his statements of opinion as "expert testimony" based on his personal knowledge and his prior experience with other cases. See United States v. Grunberger, 431 F.2d 1062, 1068 (2d Cir.1970). A jury is especially likely to perceive the prosecutor as an "expert" on matters of witness credibility, which he addresses every day in his role as representative of the government in criminal trials. It may be inclined to give weight to the prosecutor's opinion in assessing the credibility of witnesses, instead of making the independent judgment of credibility to which the defendant is entitled. The prosecutor's characterization of his case as "extremely strong" created that risk.

The testifying prosecutor pursued a second line of improper commentary when he expressed his view of the relative culpability of the participants in the conspiracy. In his testimony, the prosecutor noted that he "was interested in finding the ultimate source for the goods that were stolen." Apparently this statement referred to McKoy, who allegedly was the "fence" to whom the thieves sold the stolen property. The prosecutor also told the jury that he wanted to ensure that the government had "as good a case (against McKoy) as we possibly could going into the courtroom." The prosecutor then went on to describe how he had approached Mecham and Greenamyer and offered them plea bargains to secure their cooperation in the case against McKoy. He twice stated his belief that Mecham was the least culpable of the participants in the conspiracy. The unmistakable message of this testimony was that, in the opinion of the former prosecutor, McKoy was the most culpable of those...