U.S. v. Rubier
| Decision Date | 10 July 1981 |
| Docket Number | No. 80-1110,80-1110 |
| Parties | 7 Fed. R. Evid. Serv. 1323, 8 Fed. R. Evid. Serv. 999 UNITED STATES of America, Plaintiff-Appellee, v. Leo RUBIER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Stewart P. Riley, Seattle, Wash., on briefs, for defendant-appellant.
J. Ron Sim, Asst. U. S. Atty., Seattle, Wash., on briefs, for plaintiff-appellee.
Appeal from the United States District Court for the Western District of Washington.
Before VAN DUSEN, * ANDERSON and BOOCHEVER, Circuit Judges.
This appeal is from a February 15, 1980, judgment and commitment of defendant-appellant, imposing a 10-year sentence to be served consecutively to the Montana state sentence presently being served by him, with eligibility for parole under 18 U.S.C. § 4205(b)(2) at such time as the Parole Commission may determine. The jury found Leo Rubier guilty of (1) bank robbery and assault, putting in jeopardy the life of bank employees by the use of a gun, in violation of 18 U.S.C. § 2113(a) and (d); and (2) aiding and abetting such crimes, in violation of 18 U.S.C. § 2, on the basis that he had driven the "getaway" car (R.T. 27). We affirm.
The only evidence directly implicating Rubier was the testimony of Wayne Schrader (R.T. 21-34 & 41). On cross-examination of Schrader, defense counsel sought to show bias by revealing Schrader's immunity-for-testimony agreement with the Government (R.T. 54-62) and that Schrader was a heroin addict (R.T. 40-43). Defense counsel's questions, which were mostly lengthy statements, show that he was reading or paraphrasing the two written letters containing the agreement (R.T. 56-58, 60-62) and thus selectively putting parts of the agreement before the jury. The prosecutor's reaction to the immunity-for-testimony evidence was to seek admission of the two letters containing all the terms of the agreement (R.T. 62, 65). One letter, dated May 5, 1978 (P-6), was from Schrader's attorney to Prosecutor Sim and the other a return letter from the United States Attorney dated May 8, 1978 (P-5). Defense counsel raised a general objection to the admission of the letters, asserting that there was not "any basis for ... (admitting the letters) under the rules of evidence," and arguing that Schrader had never seen or participated in writing either of the letters (R.T. 66).
The district court admitted the letters, holding that the Government was entitled to have all the terms of the agreement put on the record after the defense had brought up the subject of the immunity-for-testimony agreement with the witness (R.T. 66). 1
We have concluded that there was no reversible error in admitting the letters into evidence for these reasons:
A. Facts of independent legal significance constituting a contract which is at issue are not hearsay. See N. L. R. B. v. H. Koch & Sons, 578 F.2d 1287, 1290-91 (9th Cir. 1978).
B. Since no specific objection was made to the admission of the letters on the ground that they supported a contention that the Government was motivating the witness Schrader to testify truthfully, the objecting party is precluded from asserting any such objection on appeal. United States v. O'Brien, 601 F.2d 1067, 1071 (9th Cir. 1979); Allen v. Schneckloth, 431 F.2d 635, 637 (9th Cir. 1970).
C. The letters in question contain the full terms of the immunity-for-testimony agreement and, hence, clarified and rebutted the defense cross-examination seeking to show bias of the witness Schrader. As such, they were relevant as tending to make the existence of the fact of bias less probable than it would be without the contents of the letters. Although the letter of May 5 from Schrader's attorney (P-6) states that Schrader will testify truthfully at Rubier's trial in return for the Government's agreement not to prosecute him for this robbery, the answering letter from the United States Attorney dated May 8, 1978 (P-5), makes no mention of any agreement to speak "truthfully," but only mentions that if he does not speak truthfully he will be subject to prosecution. 2
The foregoing facts made clear that this record does not contain any implication that "the prosecutor knows what the truth is and is assuring its revelation." See United States v. Roberts, 618 F.2d 530, 536 (9th Cir. 1980). We conclude that the vouching principle of United States v. Roberts, 618 F.2d at 533, namely, that "(i)t is improper for the prosecution to vouch for the credibility of a government witness," is not applicable to this record. 3 Further, we note that United States v. Roberts pointed out the desirability of considering "an instruction to the jury (to) dispel any improper suggestions" in appropriate circumstances. Id. at 536. No request was made for such an instruction in this case apparently because, as noted above, the 1978 letters did not contain a vouching by the Government for the truthfulness of Schrader's testimony at the 1980 trial. 4
The judgment of the district court will be affirmed.
As indicated in the majority opinion the only evidence directly implicating Rubier in the robbery and assault was the testimony of Wayne Schrader. Without that testimony Rubier could not have been convicted. Thus Schrader's credibility was at the core of the government's case.
On cross examination Schrader testified to his understanding of the bargain, whereby the government agreed not to prosecute him for the robbery in exchange for his cooperation in the robbery investigation and his testimony against Rubier. To bolster Schrader's credibility the prosecution sought to admit into evidence letters from the prosecutor and Schrader's attorney setting forth the agreement those two attorneys had reached.
Schrader testified that he had never seen the agreement worked out between his attorney and the United States Attorney (TR 62). When asked if his attorney had "fully laid down to you the details of the agreement that had been worked out," Schrader replied: "Well, more or less."
In its brief on appeal the government explains why it believes the letters were relevant, stating:
If the matter had been left as it was at the end of cross-examination, the jury could have believed that Schrader had simply traded immunity for testimony against Rubier. It was important for the jury to understand that had Schrader's testimony been false, he would have lost his immunity.
In the absence of some testimony that Schrader had either read the letters or had all of their terms read or explained to him the fact that the letters embodied an agreement between the attorneys that the testimony be truthful was not relevant for the purpose of showing that Schrader so understood the agreement. Without testimony indicating that Schrader was aware of the portent of the letter agreement requiring truthfulness, the letters were inadmissible. Considered by themselves, letters between the attorneys have no tendency to make the assertion that Schrader, as opposed to his attorney, had agreed to testify truthfully or lose the benefit of prosecutorial immunity "more probable or less probable than it would be without the evidence." 1 An instrument purporting to have been executed by an attorney-in-fact or other agent is not admissible for any purpose absent proof of the agent's authority. 2 Such authentication is necessary to establish the relevancy of the document. 3 While a defendant's attorney may enter into negotiations with the district attorney pertaining to a plea bargain, no agreement which they reach can have any effect on the defendant until he or she has knowledge of the existence of its terms. 4
In Jones v. United States, 423 F.2d 252, 255-56 (9th Cir.), cert. denied, 400 U.S. 839, 91 S.Ct. 79, 27 L.Ed.2d 73 (1970), we stated:
A guilty plea is not necessarily invalid because it rests upon a bargain with the prosecutor, (citation) but knowledge of the existence of such an agreement, its terms, and the negotiations which led to it, are crucial to the effective discharge of the court's responsibility to assure that the plea is not accepted unless it is voluntarily made .... Moreover, because of the prevalence of such agreements, the judge on his own initiative should explore, on the record, whether such an agreement exists, and, if so, its terms, how they were arrived at, the defendant's understanding of them, and their influence upon his decision to plead guilty. (footnote omitted.)
Rubier's trial counsel made an appropriate objection on the basis of Schrader's lack of familiarity with the communications. 5 The letters being irrelevant, it was error to admit them over counsel's objection.
The government does not argue that admission of the letters was harmless error. In fact, as indicated above, it considers it of importance for the jury to have understood that had Schrader's testimony been false, he would have lost his immunity.
In addition, I note that the letter from Schrader's attorney vouched for the truthfulness of Schrader's testimony by stating: "he will testify truthfully before the grand jury and at trial (if necessary) against Leo Rubiera, (sic)...." While not as flagrant as the circumstances involved in United States v. Roberts, 618 F.2d 530, 536 (9th Cir. 1980), 6 the use of a letter by a witness' attorney vouching for the truthfulness of testimony certainly affects substantial rights. 7 When the voucher by Schrader's attorney is coupled with the contents of the United States Attorney's letter stating that Schrader would be subject to prosecution if he did not testify truthfully "whether it hurts the government's case or not," 8 I conclude that the erroneous introduction of the letters is reversible.
RESPONSE TO THAT PETITION
The belatedly filed transcript of the closing argument...
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