United States v. Alcantara-Castillo, No. 12-50477 (Wardlaw with Nelson; dissent by Rawlinson) --- The Ninth Circuit reversed a conviction for illegal reentry because of prosecutorial misconduct during witness testimony and closing argument. This is a valuable opinion that lays out the Ninth Circuit's significant cases about prosecutorial vouching and other kinds of "lying."
A Border Patrol agent testified that the defendant had made statements that he knowingly reentered the United States. The defendant testified that he was under meth psychosis, thought he was in Mexico, and unknowingly found himself here, in the company of others. The prosecutor asked him pointedly whether the Border Patrol agent had invented the story. This, found the 9th, was misconduct --plain and simple, based on "black letter" law. A defendant cannot be asked if another witness lied. The prosecutor also vouched for the Border Patrol agent in closing by referring to his sworn oath, although there was no evidence for that. The defendant objected. (The government conceded the latter was error.)
The Ninth Circuit reversed the conviction on plain-error review, putting aside difficult questions about whether particular instances of misconduct were the subject of proper and timely objections. The case was about credibility -- although there were problems with the defendant's story, he did present evidence that corroborated his account; and the Border Patrol agent had his own credibility issues. The court said that the prosecutor's misconduct might have influenced the jury's assessment of the defendant's credibility, so relief was appropriate under the plain-error standard.
Judge Rawlinson dissented, arguing that the misconduct was neither egregious nor prejudicial.
Congratulations to Paul Barr of Federal Defenders of San Diego, Inc.
The decision is here: