U.S. v. Roberts

Decision Date15 March 1979
Docket NumberNos. 78-2738,78-2806,s. 78-2738
Citation618 F.2d 530
Parties6 Fed. R. Evid. Serv. 671 UNITED STATES of America, Plaintiff-Appellee, v. Neal T. ROBERTS and James Albert Robison, Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

John P. Otto, James H. Kemper, Derickson, Kemper & Henze, Phoenix, Ariz., argued, for defendants-appellants; Marvin Johnson, Phoenix, Ariz., on brief.

W. Ronald Jennings, Asst. U. S. Atty., Phoenix, Ariz., for plaintiff-appellee.

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

Before WRIGHT and ANDERSON, Circuit Judges, and WYATT, Senior District Judge. **

WRIGHT, Circuit Judge.

Appellants Roberts and Robison argue that the prosecutor (1) improperly bolstered the credibility of its chief witness with his plea agreement to testify truthfully and (2) implied in closing argument that a state policeman corroborated that witness's testimony.

We reverse for improper closing argument.

FACTS

Early one morning in January 1976, an unexploded bomb was discovered in a building used by the federal government.

Roberts and Robison were charged with the attempted bombing. The government contended that Roberts had recruited Robison and John Adamson to blow up the building.

The first trial resulted in a hung jury, but on retrial the jury returned guilty verdicts as to both Roberts and Robison.

Adamson was the government's chief witness. In exchange for his testimony in this case and three others, he received immunity from prosecution for 10 felonies and was allowed to plead guilty to a reduced charge of second degree murder. His plea agreement provided that he would lose these benefits "should he at any time testify untruthfully."

The entire plea agreement was admitted in evidence and, in closing argument, the prosecutor made devastating use of it. He told the jury that the critical issue was whether Adamson or Roberts was telling the truth, that Roberts could be expected to lie to save himself, but that Adamson would not lie for fear of violating his plea agreement and that a state police officer, Detective Sellers, was monitoring Adamson's testimony.

On appeal, appellants attack the introduction of the plea agreement, the prosecutor's use of it in closing argument, and his exploitation of Detective Sellers' presence at trial.

We hold the prosecutor committed reversible error by using Sellers' presence to argue for Adamson's credibility.

CLOSING ARGUMENT

In his closing argument, the prosecutor's first theme was that the plea agreement, coupled with Sellers' supervision, made Adamson a credible witness. He declared:

Throughout the argument, ladies and gentlemen, there are two points which I would like you to consider. I would like you to think about these two points throughout the arguments . . . (of all counsel): Either John Harvey Adamson when he testified two, two and a half days he was on the stand, either he lied when he gave his testimony or the defendant Neal Roberts lied when he gave his testimony. The testimony is open as to Roberts and Mr. Adamson. They are inconsistent. One of them has to be lying.

So you must ask yourselves who would have anything to gain by either lying or who would have anything to lose by lying. I suggest to you, ladies and gentlemen, that John Harvey Adamson had everything to lose by lying. I want you to read the plea agreement that is Government's Exhibit No. 1. I want you to read it from the first page to the last page. I want you to read it until you understand it.

In that plea agreement he has agreed to testify in four matters. He agreed to testify truthfully in all four of these matters. If he was caught lying as to material facts in any one of these matters, then his plea agreement would be called off. The charges of first-degree murder would be reinstated, and he would stand a very good likelihood of going to the gas chamber. If he would lose the bargaining power that he has, he has to serve a minimum of 20 years and two months instead of going to the gas chamber. This is what he stands to lose if he comes into this court or any other court that he has agreed to testify to and lie.

Detective Sellers has been pointed out throughout the trial as sitting in the courtroom during the testimony, particularly of John Harvey Adamson. I would suggest to you that Detective Sellers is not here on vacation. He had a mission to serve and that mission was to sit and listen to the testimony of John Harvey Adamson.

(DEFENSE COUNSEL): If the Court please, there is no evidence of this, and I don't know if Mr. Sellers is here on vacation or not.

THE COURT: Yes, let's stay with the record.

(PROSECUTOR): I submit to you, ladies and gentlemen, that he was here to listen to that testimony and make sure that

(DEFENSE COUNSEL): Object on the same grounds. It's the same. It's not in evidence.

(PROSECUTOR): If Adamson lied, ladies and gentlemen, the plea agreement is called off.

We must examine the prosecutor's comments to determine (1) whether error was committed, (2) whether it was preserved for appeal and (3) whether the error was harmless.

PROSECUTORIAL MISCONDUCT

We need not belabor the well-established principle that the prosecutor has a special obligation to avoid "improper suggestions, insinuations, and especially assertions of personal knowledge." Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935).

It is improper for the prosecution to vouch for the credibility of a government witness. Vouching may occur in two ways: the prosecution may place the prestige of the government behind the witness or may indicate that information not presented to the jury supports the witness's testimony. Lawn v. United States, 355 U.S. 339, 359-60 n. 15, 78 S.Ct. 311, 323 n. 15, 2 L.Ed.2d 321 (1958); United States v. Lamerson, 457 F.2d 371 (5th Cir. 1972).

The first type of vouching involves personal assurances of a witness's veracity and is not at issue here.

The second type of vouching involves prosecutorial remarks that bolster a witness's credibility by reference to matters outside the record. See United States v. Garza, 608 F.2d 659, 664 (5th Cir. 1979). It may occur more subtly than personal vouching, and is also more susceptible to abuse. This court has declared that such prosecutorial remarks may be fatal if:

. . . the remarks, fairly construed, were based on the District Attorney's personal knowledge apart from the evidence in the case and that the jury might have so understood them.

Orebo v. United States, 293 F.2d 747, 749 (9th Cir. 1961).

The prosecutor in this case referred to evidence not in the record by declaring that Detective Sellers was monitoring Adamson's testimony. 1 The jury could naturally believe that Sellers had personal knowledge of relevant facts and was satisfied that these facts were accurately stated by Adamson. In effect, the prosecutor was telling the jury that another witness could have been called to support Adamson's testimony. This was error. United States v. Morris, 568 F.2d 396 (5th Cir. 1978) (improper to imply witness not called supports the prosecution), Reichert v. United States, 359 F.2d 278 (D.C. Cir. 1966) (improper to refer to witness's statements not introduced into evidence).

PRESERVING THE ERROR FOR APPEAL

The error was preserved for appeal. Defense counsel properly objected to the prosecutor's reference to evidence outside the record. The objection was sustained but the prosecutor persisted with his argument.

It would have been helpful had defense counsel asked the trial court to give the jury a curative instruction, but such a request is not necessary when the error is brought to the court's attention and curative action is clearly called for. In United States v. Berger, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1934), Justice Sutherland declared:

That the United States prosecuting attorney overstepped the bounds of that propriety and fairness which should characterize the conduct of such an officer in the prosecution of a criminal offense is clearly shown by the record. . . . The trial judge, it is true, sustained objections to some of the questions, insinuations and misstatements, and instructed the jury to disregard them. But the situation was one which called for stern rebuke and repressive measures and, perhaps, if these were not successful, for the granting of a mistrial. It is impossible to say that the evil influence upon the jury of these acts of misconduct was removed by such mild judicial action as was taken.

Berger v. United States, 295 U.S. 78, 84-85, 55 S.Ct. 629, 632-633, 79 L.Ed. 1314 (1934).

Trial court judges are not mere referees. Johnson v. United States, 333 U.S. 46, 68 S.Ct. 391, 92 L.Ed. 468 (1948), (dissenting opinion); United States v. Eldrid, 588 F.2d 746, 749 (9th Cir. 1978). They play an active role, keeping the trial running efficiently with a minimum of error. Their control over closing argument is broad. United States v. Sawyer, 443 F.2d 712 (D.C. Cir. 1971)

A trial judge should be alert to deviations from proper argument. Because such comments have the clear potential for affecting adversely the defendant's right to a fair trial, the judge should take prompt corrective action as appropriate in each case. See Viereck v. United States, 318 U.S. 236, 247, 63 S.Ct. 561, 566, 87 L.Ed. 734 (1943).

Vouching for a government witness in closing argument has often been held to be plain error, reviewable even though no objection was raised. See, e. g., United States v. Ludwig, 508 F.2d 140 (10th Cir. 1974). See also United States v. Carleo, 576 F.2d 846 (10th Cir. 1978) (court raised objection sua sponte ).

HARMLESS ERROR

The error here may not be dismissed as harmless. The prosecutor did not limit himself to comments on the evidence. Under the standard of prejudice on the record as a whole, we cannot say the prosecutor's comments were harmless. The government did not have...

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