United States v. Lettig , 209 F. App'x 832 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
December 26, 2006
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No.05-4314
(D.C. No. 2:04-CR-00808-TC)
v.
(D. Utah)
LARRY LETTIG,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before HENRY, HOLLOWAY and McCONNELL, Circuit Judges.
A jury convicted Defendant-Appellant Larry Lettig (“Lettig”) of armed bank
robbery and using a firearm during a crime of violence, violations of 18 U.S.C. § 2113(a)
and (d), respectively. Lettig then filed this direct appeal challenging the sufficiency of the
evidence as a matter of law and fact, the content of one jury instruction, and the
prosecutor’s alleged vouching. We exercise jurisdiction pursuant to 28 U.S.C. § 1291*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination
of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is
therefore submitted without oral argument. This order and judgment is not
binding precedent except under the doctrines of law of the case, res judicata and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 (eff. Dec. 1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1,
2007).
and affirm Lettig’s convictions.
I. FACTS
On April 25, 2003, the Pacific Rails Credit Union was robbed. R., Vol. II, at 42.
The United States subsequently indicted and tried Lettig for this armed bank robbery and
for using a firearm during a crime of violence. R., Vol. I, at 1-2. Both the government
and Lettig elicited testimony from bystanders, Lettig’s alleged accomplices, and two of
the alleged accomplices’ prison mates. Since Lettig argues, inter alia, that the witnesses’
testimony is inconsistent and insufficient to support his convictions, we summarize the
testimony presented seriatim.
Ms. Sherrie Larsen, a bank customer present when the robbery took place, testified
that three men “burst” into the bank while she was cashing a check. R., Vol. II, at 43.
One of the robbers said that the men were holding up the bank and told everyone to “hit
the floor.” Id. She recalled that at least one robber possessed a firearm, which she
described as a silver pistol. Id. at 44. After about two or two and a half minutes, one of
the robbers said “let’s go Mary,” or something similar, and the three robbers exited the
bank and entered a blue car. Id. at 47, 64. Ms. Larsen testified that there were four
people in the blue car when the car drove away from the bank. Id.On cross-examination, Ms. Larsen admitted that she initially believed that two
robbers entered the bank together and that there was a time gap before the third person
entered. Id. at 59. But Ms. Larsen never recanted her testimony that four individuals
participated in this robbery. Nevertheless, Lettig contends that Ms. Larsen initially
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believed that only three robbers were present, but later changed her testimony at trial after
reviewing the bank’s security tape of the robbery.
Ms. Janice Camomile, a Pacific Rails bank teller, testified that two robbers entered
her office, removed the phone from her ear, and ordered her to open the safe. Id. at 70,
72. She testified that both robbers brandished guns and that one of the guns was silver in
color. Id. at 72. After she told the robbers that she did not know the safe’s code, the
robbers unsuccessfully attempted to open the safe, breaking the safe’s keypad in the
process. Id. at 75. Ms. Camomile informed the robbers that they broke the safe and it
could no longer be opened. Id. The robbers then fled her office. Id. at 76.
Ms. Terri Smith, the teller who was assisting Ms. Larsen when the bank was
robbed, testified that she saw two robbers enter the bank, one of whom had blue eyes and
was wearing glasses under his mask. Id. at 83-84. She testified that the other robber
possessed a silver-colored handgun. Id. at 90. Ms. Smith testified that she heard one
robber say “let’s go Mary” after the robbers retrieved money from her teller box and left
Ms. Camomile’s office. Id. at 89, 90, 91. The robbers then exited the bank and entered a
get-away car. Id. at 92.
Mr. Douglas Bradley, a Pacific Rails loan manager, testified that one of the
robbers entered his office, brandished a silver-colored pistol, ordered him to lie face down
on the floor, and removed his phone from the wall. Id. at 93, 94-95. Although Mr.
Bradley only saw one robber, he recalled hearing someone say something to the effect of
“come on Mary” immediately before the robbers left the bank. Id. at 96.
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Mr. George Crowder, the bank’s President and manager, testified that he became
aware of the robbery after observing the robbers on a video monitor in his office. Id. at
97, 98. Shortly thereafter, one robber entered his office, pointed a silver-colored gun in
his direction, and ordered him to lie on the floor. Id. at 100. Mr. Crowder observed two
robbers on his video monitor during the robbery, but he later reviewed the security tape
and was able to identify three masked individuals. Id. at 101. Mr. Crowder confirmed
that the bank was federally insured when the robbery took place. Id. at 97.
Ms. Cynthia Roberts, a customer who left the bank shortly before the robbery took
place, testified that she observed a blue car moving around the street corner toward the
bank. Id. at 108-09. She testified that she observed the car, and the three men in it,
through her car’s side mirror. Id. at 109. Ms. Roberts saw the car for about twenty
seconds, during which she saw one man with a “Jackson Brown” haircut who was nestled
against the back door; the two other men might have had buzz cuts. Id. at 111.
Mr. Channon Singh testified that he transported Thomas Gurule, Larry Lettig, and
Allen Esplin to and from the bank. R., Vol. III, at 175. He stated that Lettig and Esplin
cased the credit union about three weeks before the robbery, but that they all planned the
robbery the day before it was executed. Id. at 176, 200. On the day of the robbery, Singh
drove a “bluish gray” car to the Union Pacific employee parking lot; Esplin arrived
separately with the others in his own car. Id. at 177. When they arrived at the parking
lot, everyone entered the car Singh was driving and headed toward the bank. Id. at 177-
78, 179. Lettig and Esplin were in the back of the car and Gurule was in the front of the
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car, though Singh did not know the order in which Lettig and Esplin were seated. Id. at
180, 210.
Singh testified that they arrived at the credit union soon after leaving the Union
Pacific parking lot. Id. at 181. Lettig and Esplin entered the Pacific Rails Credit Union
first. Id. Singh needed to tell Gurule which door to enter, so Gurule entered the bank
shortly after. Id. They executed the robbery in four or five minutes, during which Lettig
displayed a silver-colored gun, and then the robbers got back into the blue car and
reclined on the floor as Singh drove away. Id. at 181, 185. Singh testified that they went
back to the Union Pacific parking lot, switched into Esplin’s car, drove to Singh’s
apartment, and divided the stolen money (about $600 each, he testified). Id. at 186-187.
Singh informed the jury that he would receive about a four-year prison sentence,
compared to a possible thirty-two-year sentence, in exchange for testifying against Lettig.
Id. at 189. During this portion of Singh’s testimony, the prosecutor referred to the
truthfulness provision in Singh’s plea agreement and also referred to himself using the
first person pronoun. Id. at 189-90. Lettig did not object to the prosecutor’s alleged
vouching, but he did highlight that Singh denied being involved in the robbery when the
police first confronted him. Id. at 208.
Mr. Allen Esplin, one of Lettig’s alleged accomplices, testified that he joined with
Singh, Gurule, and Lettig to rob the Pacific Rails Credit Union (he was the accomplice
with the “Jackson Brown” haircut). Id. at 218, 219, 246. Esplin testified that he was in
the area near the bank when he decided that it might be a good place to rob. Id. at 220.
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Subsequently, he mentioned the opportunity to Lettig and Singh, who later cased the
bank, and they all planned the robbery about one month in advance (he could not
remember the exact time line). Id. at 220, 221. The group agreed that Lettig would use a
silver-colored gun to control the “general area” of the credit union. Id.Concerning the day of the robbery, Esplin echoed Singh’s testimony about going
to the Union Pacific employee parking lot and switching into the blue car. Id. at 223.
Esplin testified that he did not remember how they were seated in the blue car, except to
say that he was in the backseat and that Singh was driving; but in the defendant’s
confusing cross-examination, Esplin recalled telling the grand jury that he was in the back
seat with Gurule and that Lettig was in the front with Singh, contrary to Singh’s
testimony. Id. at 225, 265-268. They arrived at the bank soon after, and Esplin, Lettig
(pistol in hand), and Gurule entered the bank. Id. at 229.
After identifying these robbers on the bank’s security tape, Esplin testified that he
stole money from a teller’s drawer, and then he, Lettig, and Gurule went into an office
and unsuccessfully attempted to open the safe (Esplin told the grand jury that only he and
Gurule entered this office). Id. at 234-35, 269-70. The robbers fled the bank soon after
and entered the blue get-away car. Id. at 235-36. Esplin testified that he and Gurule were
in the back seat of the car when they drove away from the bank. Id. at 236. After
arriving back at the Union Pacific parking lot, the robbers switched into Esplin’s car and
returned to Singh’s apartment—at which time they split up the money (about $450-500
each, he testified). Id. at 237, 239.
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Esplin admitted committing four bank robberies and offering his testimony against
Lettig in exchange for a reduced sentence (from a possible life sentence to a sentence in
the range of 151-188 months). Id. at 240, 241, 246. The prosecutor also referred to the
truthfulness provision in Esplin’s plea agreement during his questioning. Id. at 245.
Lettig sought to impeach Singh and Esplin’s testimony by eliciting testimony from
Todd Murdock and Chris Mullins, both of whom were imprisoned in the same prison as
Esplin and Lettig. Both Murdock and Mullins testified that Esplin tearfully told them that
he lied about Lettig’s involvement in the robbery. Id. at 302, 307-08, 320-21 Esplin
denied having done so in response to Lettig’s questions, id. at 332-334, and the
government challenged the possibility that a hardened criminal would tearfully confess
such a set-up to another inmate—especially given that prisoners are notorious for treating
snitches harshly, which Esplin knew from his time in prison.
As noted earlier, the jury found Lettig guilty, and he appeals his convictions.
II. DISCUSSION
On appeal, Lettig assigns error in four respects: (1) his accomplices’
uncorroborated testimony was insufficient to sustain his convictions as a matter of law;
(2) his accomplices’ uncorroborated testimony was insufficient to sustain his convictions
as a matter of fact; (3) the jury instruction about accomplice testimony inadequately or
inaccurately conveyed the applicable law; and (4) the prosecutor impermissibly vouched
for the government witnesses’ testimony. The government rejects each of Lettig’s
arguments.
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A. Accomplice Testimony
This Court reviews de novo whether the government presented sufficient evidence
to support a jury’s verdict. United States v. Lewis, 240 F.3d 866, 870 (10th Cir. 2001).
We will “ask only whether taking the evidence—both direct and circumstantial, together
with the reasonable inferences to be drawn therefrom—in the light most favorable to the
government, a reasonable jury could find the defendant guilty beyond a reasonable
doubt.” United States v. Hanzlicek, 187 F.3d 1228, 1239 (10th Cir. 1999) (quotation
omitted).
1. Sufficiency as a Matter of Law
Lettig asks us to adopt as a per se rule that an accomplice’s uncorroborated
testimony is insufficient to sustain a conviction. While Lettig recognizes that his legal
argument for this rule rests upon pre-Crawford v. Washington, 541 U.S. 36 (2004), cases
concerning hearsay testimony and the Confrontation Clause, he asserts that the policies
underlying these cases are equally applicable here. Yet as recently as last year, this court
stated that “[a] conviction may stand merely on the uncorroborated testimony of an
accomplice.” United States v. Magallanez, 408 F.3d 672, 682 (10th Cir. 2005) (citing
United States v. McGuire, 27 F.3d 457, 462 (10th Cir. 1994)).
Although our precedents are unequivocal on this point of law, Lettig asks us to
overrule our precedents as inconsistent with Supreme Court case law. The crux of
Lettig’s argument turns on a distinction between “reliability” and “credibility” insofar as
accomplice testimony is inherently unreliable as a matter of law regardless of the witness’
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credibility. Indeed, Lettig argues, the Supreme Court has explicitly recognized the
inherent unreliability of accomplice testimony. See, e.g., Lilly v. Virginia, 527 U.S. 116,
132 (1999).
Most importantly, Lettig’s argument is contradicted by Caminetti v. United States,
242 U.S. 470, 495 (1917), where the Supreme Court stated that “there is no absolute rule
of law preventing convictions on the testimony of accomplices if juries believe them.”
Even one of Lettig’s secondary sources, a law review article authored by a Circuit Judge,
recognized that “[t]he United States Supreme Court has held that an appellate court can
sustain a conviction based solely on the uncorroborated testimony of an accomplice.” J.
Arthur L. Alarcon, Suspect Evidence: Admissibility of Co-Conspirator Statements and
Uncorroborated Accomplice Testimony, 25 Loy. L.A. L. Rev. 953, 953 (1992) (also
stating that “[a]s a federal court of appeals judge, regardless of my qualms about the
quality of [accomplice testimony], I must follow the Federal Rules of Evidence, the
United States Supreme Court’s rulings and the law of my circuit, all of which hold that
co-conspirator statements and uncorroborated accomplice testimony can sustain a
conviction”).
Moreover, Lettig has failed to cite a case bridging the legal and logical gap
between requiring juries to show caution toward an accomplice’s uncorroborated
testimony and requiring courts to overturn convictions based solely upon such testimony.
Notwithstanding Lettig’s erroneous assertions to the contrary, the Supreme Court cases he
cites evaluated the unreliability of accomplice testimony for the purpose of determining
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whether the testimony fell within a firmly rooted hearsay exception and, relatedly,
whether the Confrontation Clause required cross-examination. The cases do not call into
question the longstanding rule that an accomplice’s uncorroborated testimony is sufficient
to sustain a conviction. Compare Caminetti, 242 U.S. at 495, and Magallanez, 408 F.3d
at 682, with Lilly, 527 U.S. at 131-32, and Bruton v. United States, 391 U.S. 123 (1968).
Given the lack of authority for the proposition that an accomplice’s uncorroborated
testimony may not support a conviction, Lettig’s argument to overrule our longstanding
precedent is reducible to an array of policy concerns. Yet again, the policy sources Lettig
cites urge juries to cautiously consider accomplice testimony, but do not take the extra
step of urging exclusion entirely. In light of unchallenged Supreme Court and Tenth
Circuit case law, we decline Lettig’s invitation to adopt the per se rule he advances.
Accordingly, we hold here that the accomplices’ uncorroborated testimony is
legally sufficient to sustain Lettig’s convictions.
2. Sufficiency as a Matter of Fact
Lettig next asserts that the accomplices’ testimony was unreliable as a matter of
fact. While we accept Lettig’s point that “reliability” and “credibility” are distinct
concepts, rendering it possible for us to review whether uncorroborated testimony is
unreliable as a matter of law, Lettig’s argument here amounts to a credibility challenge.
Specifically, the essence of Lettig’s argument is that the accomplices’ testimony is
unreliable as a matter of fact because it is plagued with inconsistencies and was given in
exchange for a lenient plea bargain. Both of these claims directly bear on whether the
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witnesses were believable. Lettig’s assertion to the contrary essentially urges us (again)
to adopt the per se rule that an accomplice’s uncorroborated testimony is not sufficient to
sustain a conviction. Repackaging the same argument in a factual context does not avoid
the well-established rule that a jury may convict a defendant solely on the basis of an
accomplice’s uncorroborated testimony.
Lettig’s arguments implicate two lines of case law. First, we review de novo
whether the prosecution presented sufficient evidence to support a conviction. In
resolving this issue we will not re-weigh the evidence or assess the witnesses’ credibility.
United States v. Serrata, 425 F.3d 886, 895 (10th Cir. 2005). Thus, to the extent that
Lettig challenges the weight of the accomplices’ testimony, which he does by speculating
that the plea bargain created incentives to lie and by trying to highlight inconsistencies in
the testimony presented and the unreliability of accomplice testimony, his “challenge to
the weight of the evidence is a matter for argument to the jury, not a ground for reversal
on appeal.” United States v. Torres, 53 F.3d 1129, 1140 (10th Cir. 1995) (citation
omitted).
Second, while a jury may convict based on an accomplice’s uncorroborated
testimony, the testimony must not be incredible on its face or otherwise incapable of
establishing guilt beyond a reasonable doubt. Id. We reject Lettig’s argument that the
testimony is incredible on its face or otherwise incapable of establishing guilt beyond a
reasonable doubt. The accomplices uniformly testified that Lettig entered the bank with a
gun, robbed the bank, and left with the accomplices in a blue vehicle. Moreover, the
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eyewitnesses’ testimony largely corroborated the accomplices’ versions of the event. In
judging this testimony, a reasonable jury could have put the alleged inconsistencies aside,
or could have accepted the testimony’s shortcomings, and still believed beyond a
reasonable doubt that Lettig was the armed robber depicted on the bank’s security video.
Furthermore, the district court explicitly instructed the jury that the accomplices’
testimony should be examined with great care given the risk that accomplices will create
a falsehood to secure their own liberty.
Thus, the accomplices’ testimony, considered in the light of the district court’s
cautionary instruction, supports affirmance of Lettig’s convictions. Accordingly, we hold
that the accomplices’ testimony was factually sufficient to sustain Lettig’s convictions.
B. Jury Instruction
“We review the district court’s decision to give a particular jury instruction for
abuse of discretion and consider the instructions as a whole de novo to determine whether
they accurately informed the jury of the governing law.” United States v. McClatchey,
217 F.3d 823, 834 (10th Cir. 2000) (quotation omitted). Furthermore, “[n]o particular
form of words is essential if the instruction as a whole conveys the correct statement of
the applicable law.” Webb v. ABF Freight Sys., Inc., 155 F.3d 1230, 1248 (10th Cir.
1998) (quotation omitted).
The district court must read a cautionary instruction to the jury when an
accomplice’s uncorroborated testimony is the only evidence directly tying the defendant
to the crime. United States v. Gardner, 244 F.3d 784, 789 (10th Cir. 2001). Specifically,
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the instruction must inform the jury that an accomplice’s testimony “must be carefully
scrutinized, weighed with great care, and received with caution,” though this exact
language is not required. United States v. Hill, 627 F.2d 1052, 1053, 1054 (10th Cir.
1980). Our ultimate concern is whether the court’s rulings and instructions recognized
the defendant’s rights. Id. at 1054.1
1
Lettig submitted to the district court two proposed instructions concerning the
accomplices’ testimony. The district court ultimately adopted the following instruction:
You have heard witnesses who testified that they were
actually involved in planning and carrying out the crimes
charged in the indictment
The law allows the use of accomplice testimony.
However, it is also the case that accomplice testimony is
of such nature that it must be scrutinized with great care and
viewed with particular caution when you decide how much of
that testimony to believe.
I have given you some general considerations on
credibility and I will not repeat them all here. Nor will I repeat
all of the arguments made on both sides. However, let me say a
few things that you may want to consider during your
deliberations on the subject of accomplices.
In this case, you must consider the benefits the
accomplices will receive through their agreements with the
government.
In sum, you should look at all of the evidence in
deciding what credence and what weight, if any, you would
want to give to the accomplice witnesses.
You should bear in mind that a witness who has entered
into such a plea agreement with the government has an interest
in this case different than any ordinary witness. A witness who
realizes that he may be able to obtain his own freedom, or
receive a lighter sentence by giving testimony favorable to the
prosecution, has a motive to testify falsely. Therefore, you
must examine his testimony with caution and weigh it with
(continued . . . )
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Lettig asserts that the jury instruction should have mentioned several factors: (1)
the government’s exclusive ability to exchange a lenient sentence for a witness’
testimony; (2) the accomplices’ special ability to convincingly falsify testimony about the
criminal act; (3) the accomplices’ motive to minimize their role in the offense; (4) that the
jury should convict the defendant based upon the accomplices’ testimony only if the jury
believes the testimony beyond a reasonable doubt; and (5) that accomplice testimony is
inherently unreliable as a matter of law.
Lettig has not cited any authority showing that the district court’s instructions were
inadequate. As fully set forth above, the district court instructed the jury that “accomplice
testimony is of such nature that it must be scrutinized with great care and viewed with
particular caution when you decide how much of that testimony to believe.” The
instruction also stated that “you must consider the benefits the accomplices will receive
through their agreements with the government.” The court, earlier in the charge,
informed the jury in an elaborate instruction on reasonable doubt that it may only convict
Lettig if the government proved him guilty beyond all reasonable doubt. If the proof was
not of this convincing character, the court explained, the jury was to find Lettig not guilty.
As to the weight of the accomplices’ testimony, the court instructed the jury that it
¹(. . . continued)
great care. If, after scrutinizing his testimony, you decide to
accept it, you may give it whatever weight, if any, you find it
deserves.
Aplt. Br. at 60, Addendum C.
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should bear in mind that a witness who has entered into such a
plea agreement with the government has an interest in this case
different than any ordinary witness. A witness who realizes that
he may be able to obtain his own freedom, or receive a lighter
sentence by giving testimony favorable to the prosecution, has a
motive to testify falsely. Therefore, you must examine his
testimony with caution and weigh it with great care. If, after
scrutinizing his testimony, you decide to accept it, you may give
it whatever weight, if any, you find it deserves.
Aplt. Br. at 60, Addendum C.
This charge repeatedly warned the jury that it must scrutinize the accomplices’
testimony with great care. It identified the risk that accomplices will testify falsely and
that the accomplices were receiving benefits from the government in exchange for their
testimony. The court further instructed the jury that it was not required to give any
weight to the accomplices’ testimony. Thus, the instructions conveyed the applicable law
that accomplice testimony must be “carefully scrutinized, weighed with great care, and
received with caution” and adequately addressed Lettig’s concerns about the
accomplices’ plea bargains and motive to testify falsely.
Lettig relies on Todd v. United States, 345 F.2d 299, 300 (10th Cir. 1965), where
we stated that “[t]he sufficiency of the instructions depends upon other incriminating
circumstances of the case tending to corroborate the informer,” to claim that the court
should have instructed the jury about all of the pitfalls and issues with accomplice
testimony. However, even with his citation to Todd, Lettig fails to provide any authority
demonstrating the particular ways in which the instructions failed to convey the
applicable law. Indeed, Todd held that while special cautionary instructions are required
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if an informer’s incriminating testimony is uncorroborated or unsubstantiated—a
prescription the district court complied with here—the fact that the informer’s testimony
was corroborated justified the district court’s decision not to provide such a cautionary
instruction. Id. at 301. Thus, Todd affirmed a trial court’s decision to reject a cautionary
instruction in the circumstances of the case; its language concerning uncorroborated
testimony merely restated what we have repeatedly held to be the law: a cautionary
instruction must be given when an accomplice presented uncorroborated testimony, but
no particular form of words is required when giving the instruction. Id. at 300. The
district court’s instruction here accurately conveyed the applicable law concerning
accomplice testimony.
C. Prosecutorial Vouching
Lettig concedes that he failed to lodge objections with respect to the prosecutor’s
alleged vouching and that he has only raised this issue in his reply brief on appeal.
Accordingly, Lettig has filed a motion for leave to expand the issues on this appeal.
However, even if we granted this motion, he has failed to show grounds for relief on this
issue.
We review unpreserved claims for plain error. Jones v. United States, 527 U.S.
373, 389 (1999). To grant relief, we must find (1) error, (2) that is plain, and (3) affects
substantial rights. Id. Moreover, “[a]n appellate court should exercise its discretion to
correct plain error only if it seriously affects the fairness, integrity, or public reputation of
the judicial proceedings.” Id. (citations and quotations omitted). Thus, when we exercise
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plain error review of a prosecutor’s alleged vouching, we will weigh the seriousness of
the vouching in light of the context of the entire proceeding, including the strength of the
district court’s curative instructions and the closeness of the case. United States v.
Harlow, 444 F.3d 1255, 1261 (10th Cir. 2006).
We have stated that it is a due process error for a prosecutor to indicate a personal
belief in a witness’ credibility, either by personally assuring the jury of the witness’
veracity or by implicitly representing that information not presented to the jury supports
the witness’ testimony. United States v. Bowie, 892 F.2d 1494, 1498 (10th Cir. 1990).
But we have allowed prosecutors to refer to plea agreements and their truthfulness
provisions on direct examination. Id. at 1499; United States v. Lord, 907 F.2d 1028, 1031
(10th Cir. 1990). Moreover, “[u]se of the ‘truthfulness’ portions of these agreements
becomes impermissible vouching only when the prosecutors explicitly or implicitly
indicate that they can monitor and accurately verify the truthfulness of the witness’
testimony.” Bowie, 892 F.2d at 1498.
Lettig asserts that the prosecutor indicated a personal belief in the witnesses’
testimony by frequently referring to himself in the first person. The prosecutor’s
statements, Lettig claims, effectively assured the jury of the witnesses’ veracity, based
upon the prosecutor’s personal involvement in the plea negotiations. Lettig also asserts
that the prosecutor’s use of the word “we” was similarly problematic because it placed the
government’s prestige behind the witnesses’ testimony.
We recently had occasion to reject a vouching claim in an analogous case. In
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United States v. Jones, the defendant objected to the prosecutor’s use of “I” and “we” in
closing arguments. 468 F.3d 704, 708 (10th Cir. 2006). After noting that “the use of
personal pronouns in closing argument is not a per se due process violation,” we held that
the prosecutor’s occasional use of the first person did not “cross the line.” Id. As in
Jones, the government’s use of first person pronouns here did not imply that the
government stood behind the witnesses’ testimony. Review of the prosecutor’s
statements reveals his admonition that the jury has the obligation to independently assess
the testimony presented and that the prosecutor’s only function was to introduce
evidence.
The context in which the prosecutor made his challenged statements further
illuminates their propriety: the prosecutor’s statements were made to clarify the plea
bargaining process in response to Lettig’s assertions that the accomplices’ plea
agreements motivated them to testify falsely. Moreover, the district court informed the
jury that it must view the accomplices’ testimony with great caution and that the
accomplices have motivation to lie given the benefits they received in exchange for their
testimony (making the government’s connection with the witnesses a reason for
suspicion, not for comfort).
Lettig also argues that the government vouched for the witnesses’ testimony by
referring to them as “Deep Throat,” witnesses with “inside” knowledge. Again, the
prosecutor made this statement when explaining the plea bargaining process to the jury in
response to Lettig’s assertion that the plea agreements motivated the accomplices to
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testify falsely. Describing the witnesses as “Deep Throat” no more vouched for the
witnesses’ veracity than did the prosecutor’s references to himself in the first person.
Thus, the prosecutor did not impermissibly indicate a belief in the witnesses’
testimony. Because the prosecutor did not impermissibly vouch for the accomplices, we
reject Lettig’s related assignment of cumulative error. Accordingly, we hold that Lettig
has failed to show grounds for reversal and his convictions are
AFFIRMED.
Entered for the Court
William J. Holloway, Jr.
Circuit Judge
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