U.S. v. Walker

• Citation: 155 F.3d 180
• Decision Date: 19 August 1998
• Docket Number: No. 97-3531,97-3531
• Parties: UNITED STATES of America v. Robert WALKER, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 180

155 F.3d 180

UNITED STATES of America v. Robert WALKER, Appellant.

No. 97-3531.

United States Court of Appeals, Third Circuit.

Argued June 12, 1998.

Decided Aug. 19, 1998.

Shelley Stark, Federal Public Defender, Karen Sirianni Gerlach (Argued), Assistant Federal Public Defender, Pittsburgh, PA, for Appellant.

Linda L. Kelly, United States Attorney, Bonnie R. Schlueter (Argued), Assistant United States Attorney, Jarvis F. Tait, Legal Intern, Pittsburgh, PA, for Appellee.

Before: BECKER, Chief Judge, WEIS, Circuit Judges and DOWD, District Judge. ^*

OPINION OF THE COURT

DOWD, District Judge.

I. The Charge and Conviction.

The appellant, Robert Walker, an inmate at The Federal Correctional Institute (FCI) in McKean, Pennsylvania, prosecutes an appeal from his conviction and sentence of 18 months for possession of contraband in violation of 18 U.S.C. § 1791(a)(2).

On October 13, 1995, Walker was undergoing a strip search preparatory to being placed in a special holding unit within McKean. The two correctional officers conducting the search, Scott and Dubois, ordered Walker to remove his undershorts at which time Walker removed a ten-inch shank. In a subsequent interrogation on November 3, 1995 by William Turner, an FBI agent, Walker admitted to possession of the shank. Walker also admitted that he made the weapon, and that he had it for protection because of a fellow inmate problem.

II. The Alleged Error of Vouching.

On appeal, Walker's sole error advanced for reversal of conviction is the contention that the government prosecutor "vouched" for the three government witnesses: Scott, Dubois, and Turner. Walker argues that his defense focused on the credibility of the three witnesses and the government vouching "undermined fundamental fairness of the trial and contributed to a miscarriage of justice."

III. The Setting.

A. The Opening Statements.

The government's opening statement summarized the expected testimony of Scott, Dubois and Turner. The defendant's opening statement emphasized that the defense would be questioning the credibility of the government witnesses.

B. A Review of the Testimony of Scott, Dubois, Turner and Zuniga.

Scott testified that he was working in the special housing unit ¹ where Walker was transferred on October 13, 1995, and was present when Dubois conducted a visual search of Walker in a shower room. Scott indicated that Dubois conducted a visual inspection of the shower room before the search of Walker. Walker was ordered to remove his clothes while Scott held a plastic bag for Walker to put his clothes in. After Walker stripped down to his underwear and socks, Walker turned his back on Dubois and Scott. According to Scott, Dubois then ordered Walker to turn around, at which point Walker reached into his waist area and turned around with a shank in his right hand. Scott told Walker to place the weapon on the grill and step back. Scott picked up the weapon and put it in his pocket. He then wrote out an incident report and took a photograph of the weapon.

Dubois corroborated Scott's testimony. Dubois emphasized that when he requested that Walker turn around, Walker refused. Then he ordered Walker to turn around, but again Walker would not turn around. Dubois testified that he finally gave Walker a direct order to turn around, at which point Walker turned around with a shank in his right hand. Dubois testified that Walker put the shank on the grill where Scott grabbed it.

FBI Agent Turner described his November 3, 1995 interview with Walker regarding the incident of October 13, 1995. He identified Lieutenant Zuniga as also being present at the interview. According to Turner, Walker was orally advised of his rights and then was given a form to read, ² which Walker appeared to read and then signed. Turner and Zuniga also signed the form as witnesses.

According to Turner, Walker admitted that he had found a piece of metal which looked like a key ring outside the gymnasium of FCI McKean and straightened it. Walker claimed that the end of the ring was already flattened. Walker admitted to taking a piece of a sheet and wrapping it around the handle.

Lieutenant Zuniga testified that he was present during the interview of Walker by Turner on November 3, 1995. Zuniga indicated that Turner read Walker his rights and the waiver at the bottom of the form and asked Walker if he understood them. Turner then gave Walker the form to look over and asked him again if he understood his rights. Zuniga testified that Walker then signed the waiver. Zuniga also stated that he signed the form as a witness.

According to Zuniga, Walker was not threatened into signing the form and he appeared fully coherent. Walker told Zuniga and Turner that he made the weapon from a key ring that he found in the "rec yard." Walker said that he straightened the key ring and then sharpened it. Walker stated that he made the weapon for protective purposes due to a prior altercation with an unidentified inmate. Zuniga testified that Walker stated during his interview that he used sandpaper to sharpen the point of his weapon.

At no time was there any testimony that suggested an alleged bias or ulterior motive on the part of Scott, Dubois, Turner, or Zuniga in investigating and reporting this incident.

IV. The Alleged Vouching.

After reviewing the testimony and the stipulations, the Assistant United States Attorney (AUSA) indicated that the only contested issue was whether Walker possessed the shank. Then the AUSA argued:

Now, ask yourselves what motivation would Officer Robert Scott and former Officer Raymond Dubois have to come in here and lie to you. What motivation. I submit to you that they have no motivation to lie to you. I submit to you that you can determine, using your common sense and your judgment, you can determine the credibility of those two and the only two eyewitnesses to the search ...

Now, in addition, we went further, we then called Agent Turner ... What motivation would he have to come into this courtroom and lie to you ... [summary of Turner's testimony] ... I submit to you that Agent Turner would have no motivation to come into this courtroom and make these things up. I submit to you that Agent Turner corroborated the direct evidence of the two and the only two eyewitnesses.

After final argument advanced on behalf of Walker in which Walker's lawyer questioned the Government's proof and the credibility of the witnesses by declaring that there should have been a video of the search and a recording of the alleged confession and imploring the jury to not act as a rubber stamp for the Government, the AUSA responded in part as follows:

The testimony was, the testimony of the two officers that have no motivation to lie to you, the testimony was that it came out of the underwear. This was a strip search. They had two officers behind the bars looking and they told you, the eyewitness testimony, that is evidence of this crime. And we submit to you that we have proven that beyond a reasonable doubt....

And we submit that when you think about the case with your judgment and your wisdom and you take into account that there were only two eyewitnesses and they have told you that they saw the defendant with the object, that, ladies and gentlemen, is proof beyond a reasonable doubt.

V. The Concept of Vouching Discussed in General.

Vouching constitutes an assurance by the prosecuting attorney of the credibility of a Government witness through personal knowledge or by other information outside of the testimony before the jury. United States v. Lawn, 355 U.S. 339, 359 n. 15, 78 S.Ct. 311, 323 n. 15, 2 L.Ed.2d 321 (1958). See also United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir.1993). A prosecutor's vouching for the credibility of a government witness raises two concerns: (1) such comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant's right to be tried solely on the basis of the evidence presented to the jury; and (2) the prosecutor's opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government's judgment rather than its own view of the evidence. United States v. Young, 470 U.S. 1, 18, 105 S.Ct. 1038, 1048, 84 L.Ed.2d 1 (1985); United States v. Molina-Guevara, 96 F.3d 698, 704 (3d Cir.1996).

While it was formerly the rule in this Circuit that vouching for a witness based on information not in the record required reversal per se, United States v. DiLoreto, 888 F.2d 996, 999 (3d Cir.1989), such comments now must be analyzed on a case by case basis. United States v. Zehrbach, 47 F.3d 1252, 1267 (3d Cir.1995). ³ This Circuit has analyzed vouching in a number of cases, and a review of the case law will be helpful to put this case in context.

VI. A Review of the Case Law.

In United States v. Gallagher, 576 F.2d 1028, 1040-43 (3d Cir.1978), the prosecutor told the jury during opening statement that the Government's testimony would come from the mouths of "truthful, credible" witnesses, and that all one witness "could testify to is the truth." Id. 470 U.S. at 4-5, 105 S.Ct. at 1041. This Court held that improper vouching had occurred, but did not grant the defendant a new trial. We explained that "in view of the amplitude of the evidence proving the appellant's guilt, we cannot say that the unfortunate statements quoted above alone require reversal."

In United States v. Swinehart, 617 F.2d 336, 338-340 (3d Cir.1980), the prosecutor in closing argument stated that the Government's expert witness "is an honest witness." Id. at 339 n. 3. He also stated that this witness "of all witnesses and I believe that all the witnesses that testified [sic], testified honestly was one of the most honest." Id. The prosecutor went on, "I suggest that the expert in this case who testified concerning the questioned documents, that his...