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Federal Judiciary

: Ninth Circuit Blog

Case o' The Week: Snitch Golden Despite Vouching, US v. Brooks

By Steve Kalar

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A disappointing loss on plain error review still offers some very useful language to fend off prosecutorial vouching. United States v. Brooks, __ F.3d __, 2007 WL 4198177 (9th Cir. Nov. 29, 2007), decision available here. The decision is particularly helpful in cases involving snitches, and wiretaps.

Players: Decision by CD CA D.Ct Judge Guilford.

Facts: Brooks went to trial in a wiretap case involving a Seattle drug conspiracy. 2007 WL 4198177, *1. During direct and re-direct of the government?s snitches, they explained that their plea agreements required ?truthful? testimony or they would get no breaks at sentencing. Id. at *3. The snitches agreed that if the prosecutor and court thought that they were lying, they would earn no downward departure. Id. at *3-*4.

The government also elicited testimony from other witnesses about the extensive review (DEA, AUSAs, State and Federal judges) that went into the authorization of the wiretap. Id. at *5. There was no defense objection to these lines of questioning. During the defense closing, the defense conceded Brooks? guilt on several (non-mand-min) counts. Id. at *1. The jury found guilty on all counts, including a twenty-year mandatory-minimum drug count. Id. at *1.

Issue(s): ?First, Brooks argues there was vouching in the direct examination of three witnesses [the snitches]. Second, Brooks argues that the re-direct examination of one of these witnesses implied that the court and others had made conclusions about the witness?s veracity. Third, Brooks argues there was vouching in the government?s evidence about the wiretap authorization process.? Id. at *3.

Held: ?We agree with Brooks that the government engaged in improper vouching. Nevertheless, we affirm because the error did not affect Brooks?s substantial rights. Fed.R.Crim.P. 52(b).? Id. at *3.

Of Note: While Brooks lost on plain-error review, the decision has much good language condemning this type of vouching. For example, a cooperating witness who explains that his deal depends on telling the truth is vouching ? such statements ?suggest that the witness, who might otherwise seem unreliable, has been compelled by the prosecutor?s threats and the government?s promises to reveal the bare truth.? Id. at *4 (internal quotations and citation omitted).

Similarly, it was improper vouching to elicit testimony that a snitch?s sentencing reductions rest on a court?s determination that the witness told the truth. Id. at *4. ?Whether the witnesses have testified truthfully, of course, is entirely for the jury to determine: it is improper to communicate that a credibility determination has been made by the AUSA, law enforcement agents, or the court, or that the government knows whether the witness is being truthful and stands behind the veracity of the witness?s testimony.? Id.

Finally, dwelling on the many authorizations necessary to get a wiretap is not relevant at trial, and is also improper vouching. Id. at *5.

How to Use: First and foremost, Brooks teaches the importance of objecting at trial. Had objections been lodged, Brooks might have prevailed (sans objections, the Court here used the very tough ?plain error? review).

This decision would also make a great foundation for a little prophylactic in limine motion whenever snitch or wiretap testimony is anticipated at trial. Such a motion would fire a warning shot across the prosecutor?s bow, and would remind defense counsel that this type of testimony is improper vouching ? and to object! (Whoever first drafts this motion should shoot me a copy, and I'll post it on the ND Cal FPD website).

For Further Reading: In Brooks, the Court concludes ?The vouching here was within the broad bounds of the plain error standard, but pushed hard against those bounds and threatened the integrity of the verdict. It is not a model for future trials.? Id. at *7. While it?s easy to be cynical about this warning (given the Court?s refusal to actually reverse), the Ninth is generally pretty intolerant of vouching. See, e.g., United States v. Weatherspoon, 410 F.3d 1142, 1152 (9th Cir. 2005) (reversing for improper vouching in a comparatively close case involving credibility battle); United States v. Combs, 379 F.3d 564, 575-76 (9th Cir. 2004) (reversing for vouching given circumstantial nature of government?s case); United States v. Edwards, 154 F.3d 915, 923-24 (9th Cir. 1998) (reversing for improper vouching when prosecutor personally discovered critical piece of evidence during trial); United States v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996) (reversing due to cumulative effect of vouching and other errors). In a slightly closer case (or without strategic defense concessions in closing) Brooks probably would have won reversal and remand here as well.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org

Full post as published by Ninth Circuit Blog on December 02, 2007 (boomark / email).