Argued and Submitted, Pasadena, California December 4, 2013.
As Amended July 21, 2015.
Appeal from the United States District Court for the Southern District of California. D.C. No. 3:11-cr-03876-AJB-1. Anthony J. Battaglia, District Judge, Presiding.
Reversing a conviction for illegal reentry, the panel held that the government's improper cross-examination and argument deprived the defendant of the fair trial guaranteed by the Due Process Clause.
The panel held that error occurred when the prosecutor implicitly and then explicitly asked the defendant to comment on a Border Patrol agent's veracity during cross-examination. The panel also held that, as the government conceded, the government improperly vouched for the Border Patrol agent's credibility by referring during its rebuttal argument to facts not before the jury -- that Border Patrol agents are " sworn to uphold the law" -- in a credibility showdown between the Border Patrol agent and the defendant.
The panel did not need to decide whether to apply harmless error analysis because even under the more restrictive plain error standard the combined misconduct requires reversal.
Dissenting, Judge Rawlinson wrote that the prosecutor's isolated question in response to the defendant's spontaneous challenge to the Border Patrol agent's veracity during cross-examination does not rise to the level of plain error; that the district court did not abuse its discretion in denying a curative instruction during the prosecutor's rebuttal argument, where it granted the defendant's motion to strike and instructed the jury to disregard the prosecutor's comment that the Border Patrol agents were " sworn to uphold the law" ; and that it is highly unlikely that the prosecutor's comment materially affected the verdict.
Paul A. Barr (argued), Federal Defenders of San Diego, Inc., San Diego, California, for Defendant-Appellant.
Laura E. Duffy, United States Attorney, Bruce R. Castetter, Assistant United States Attorney, Chief, Appellate Section, Criminal Division, and Kyle W. Hoffman (argued), Assistant United States Attorney, San Diego, California, for Plaintiff-Appellee.
Before: Dorothy W. Nelson, Kim McLane Wardlaw, and Johnnie B. Rawlinson, Circuit Judges. Opinion by Judge Wardlaw; Dissent by Judge Rawlinson.
WARDLAW, Circuit Judge:
Martin Alcantara-Castillo (Alcantara) appeals his jury trial conviction for illegal reentry in violation of 8 U.S.C. § 1326.
Because the government's improper cross-examination and argument deprived Alcantara of the fair trial guaranteed by the Due Process Clause, we reverse.
On June 26, 2011, Border Patrol Agent Aaron Hunter responded to a report that a motion sensor had been activated approximately seven miles east of the Tecate port of entry. Searching the area, he found Alcantara lying next to an abandoned cargo container approximately one mile north of the Mexican border. Alcantara was carrying a backpack and was very dirty. Agent Hunter approached Alcantara, questioning him in Spanish. Alcantara admitted that he was a " citizen of Mexico and that he did not have any documents allowing him to be in the United States."
Agent Hunter testified that as he escorted Alcantara toward the highway where he had parked his patrol car, Alcantara spontaneously began talking. According to Agent Hunter, Alcantara volunteered that he had crossed the border on foot the previous night with a group that had been chased by border patrol agents on all-terrain vehicles. Alcantara said he had become separated from the group and had decided to turn around and return to Mexico. As Agent Hunter and Alcantara returned to the highway, two other Border Patrol agents joined them. They searched Alcantara, finding empty bottles and food containers in his backpack.
On cross-examination, Agent Hunter acknowledged that he did not personally search Alcantara's backpack, that he did not take an inventory of its contents, and that he could not specifically identify what was inside. Agent Hunter also testified that on the day of Alcantara's arrest he provided information about the arrest to another agent who prepared an official report, after which Agent Hunter wrote a detailed addendum to the report. Neither of those documents contain any mention of Alcantara's spontaneous admissions about crossing the border with a group, being chased by border patrol agents on all-terrain vehicles, and attempting to return to Mexico. Nor could Agent Hunter recall that he told anyone at all about these spontaneous statements until he met with prosecutors in preparation for Alcantara's trial seven months after Alcantara's arrest.
Border Patrol Agent Joseph Moore testified that the night before Alcantara's arrest, he was notified that a group of nine aliens had been observed near the border. Four of the group had been apprehended immediately, but five had fled. Agent Moore searched the area and was able to apprehend four more aliens, but he could not locate the ninth member of the group, whose sex and identity were unknown.
Taking the witness stand, Alcantara testified that he had unknowingly entered the United States during a period of methamphetamine-induced psychosis. Border Patrol Agent Luis Martinez, who interviewed Alcantara shortly after his arrest, testified that pursuant to Border Patrol policy, he immediately terminated that interview when Alcantara stated that he was under the influence of methamphetamine. However, Agent Martinez did not observe anything in Alcantara's demeanor that led him to believe Alcantara was under the influence of methamphetamine, although Alcantara was hunched over during the interview.
Alcantara admitted that he had been addicted to methamphetamine since 1995 and used the drug daily, stopping only when he was incarcerated. On June 24, 2011, while high on methamphetamine, he impulsively decided to enter a rehabilitation program after talking with another methamphetamine user about a friend who had died three months earlier due to drug abuse. Alcantara went to a bus depot in
Tijuana, where he lived, early in the morning on June 25, for the purpose of traveling to a drug rehabilitation facility located in El Hongo, east of Tecate. Before boarding, however, he purchased some more methamphetamine near the bus depot in Tijuana.
Upon his arrival in Tecate, Alcantara decided to visit a friend who lived on the outskirts of the city to tell him that he was going to check into a rehabilitation clinic, but he never reached his friend's home. While walking there along some railroad tracks, he encountered two men in a railroad tunnel with whom he began a conversation. Alcantara ended up smoking methamphetamine with these men--a larger quantity of methamphetamine than he had ever used before. Alcantara testified that he began to hallucinate, and that the next thing he remembered was walking down a road, seeing a small farm with some palm trees, picking up a bottle of water, and lying down next to a container of some sort. Without objection, the defense introduced a photograph of the railroad tunnel, and Alcantara showed the jury where he had been walking, where the train tracks were, and where he stumbled upon the two men.
Alcantara thought he was on the road that goes from Tecate to Mexicali in Mexico. It was not until Agent Hunter approached and he saw Agent Hunter's uniform that he realized he was in the United States. Alcantara acknowledged that he told Agent Hunter he was from Mexico, but did not remember saying anything else to him except to ask for water.
Two additional witnesses testified for the defense. A medical expert in addiction psychiatry who had interviewed Alcantara opined that Alcantara was severely methamphetamine dependent, based upon Alcantara's description of his methamphetamine use. He further testified that people who use methamphetamine daily may suffer hallucinations, paranoia, and disorientation as to time and place, especially if they are also suffering from sleep deprivation, dehydration, or extreme heat. A defense investigator also testified that she had visited a drug rehabilitation facility in El Hongo, along the highway from Tecate to Mexicali, and had located a railroad tunnel near the border in the eastern outskirts of Tecate. The defense also introduced a photograph of a gap in the border fence near the site of Alcantara's arrest.
The jury found Alcantara guilty, and the district court sentenced him to a forty-month term of imprisonment. Alcantara timely appealed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Where the defendant has objected to alleged prosecutorial misconduct at trial, we review for harmless error. We view the challenged conduct " in the entire context of the trial," and reverse " only if it appears more probable than not that prosecutorial misconduct materially affected the fairness of the trial." Ruiz, 710 F.3d at 1082 (quoting Younger, 398 F.3d at 1190). Where the defendant has not objected to the alleged misconduct at trial, we review for plain error. We
may reverse if: (1) there was error; (2) it was plain; (3) it affected the defendant's substantial rights; and (4) " viewed in the context of the entire trial, the impropriety seriously affected the fairness, integrity, or public reputation of judicial proceedings." United States v. Combs, 379 F.3d 564, 568 (9th Cir. 2004) (quoting United States v. Geston, 299 F.3d 1130, 1135 (9th Cir. 2002)). When assessing the combined prejudicial effect of multiple errors, only as to some of which the defense registered a timely objection, we apply the plain error standard. See United States v. Weatherspoon, 410 F.3d 1142, 1150-51 (9th Cir. 2005).
A prosecutor " is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done." Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935). A " prosecutor's job isn't just to win, but to win fairly, staying well within the rules." United States v. Maloney, 755 F.3d 1044, 1046 (9th Cir. 2014) (en banc) (quoting United States v. Kojayan, 8 F.3d 1315, 1323 (9th Cir. 1993)).
A prosecutor must not ask defendants during cross-examination to comment on the truthfulness of other witnesses. See, e.g., United States v. Harrison, 585 F.3d 1155, 1158 (9th Cir. 2009); Combs, 379 F.3d at 572; United States v. Sanchez 176 F.3d 1214, 1219-20 (9th Cir. 1999). This rule is " black letter law," Harrison, 585 F.3d at 1158, and it ensures that determinations of credibility remain within the sole province of the jury. See Sanchez, 176 F.3d at 1219-20. Nor may prosecutors " vouch" for a witness by offering their personal opinion of a witness's testimony, or suggesting that information exists outside the record that verifies the witness's truthfulness. See, e.g., Weatherspoon, 410 F.3d at 1146-48; Combs, 379 F.3d at 574-75; Sanchez, 176 F.3d at 1224. Vouching compromises the integrity of the trial and denies the defendant due process because 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. Reyes, 577 F.3d 1069, 1077 (9th Cir. 2009) (internal quotation marks omitted).
Alcantara argues that the government engaged in improper questioning or vouching on four occasions during his trial. We conclude that there were two instances of improper conduct.
Error occurred when the prosecutor implicitly and then explicitly asked Alcantara to comment on Agent Hunter's veracity during cross-examination. Agent Hunter had testified to certain " spontaneous" admissions made by Alcantara, but Alcantara testified that he only asked Agent Hunter for water and acknowledged his Mexican citizenship. Toward the end of the government's cross-examination of Alcantara, the prosecutor initiated the following exchange:
Q: Now, it's your testimony you didn't recall any additional statements you made to the Border Patrol Agent on the day of your arrest for this case, correct?
A: I don't remember having told him anything.
Q: You sat here throughout this trial, correct?
Q: And you heard Border Patrol Agent Hunter testify that you had told him about coming in the day before with a group? You've heard that, correct?
A: I don't remember. I don't remember.
Q: You were sitting right here yesterday.
A: Yes, but I don't remember if he said that.
Q: You don't remember him saying, and your attorney repeatedly asking him, about your statements: that you had crossed over the day before and gone further north with a group? You don't remember that?
A: I don't think so. I don't think I crossed with people. I wasn't with people.
Q: That is not what I'm asking you. I'm asking you if you remember Agent Hunter, yesterday, telling the jury that you had made the statement that you had told him ...