“The government crossed the fine line separating the vigorous pursuit of justice from the overzealous pursuit of victory.” United States v. Martin Alcantara-Castillo, US Court of Appeals for the Ninth Circuit, No.12-50477 page 24, filed June 11, 2015.
On June 26th, 2011, Border Patrol Agent Aaron Hunter responded to a report that a motion sensor had been activated at the US-Mexico border. Hunter responded to the area and found defendant, Alcantara, lying on the ground. 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.”
There are two sets of stories that follow. Agent Hunter stated that the defendant told Hunter that he crossed the border with a group that was chased by Border Patrol. Hunter, did not personally search the defendant, but knows that water and food containers were found on the defendant. The agent failed to mentioned any of these facts in any of his reports. Further, he did not mention any of the defendant’s statement and admissions to anyone until he met the prosecutor seven month after the arrest. There was also no contemporaneous record or physical evidence of the bag’s alleged contents”
The defendant told a different story. He acknowledged that he told the agent that he was from Mexico, but did not remember saying anything else to him except to ask for water. Two witnesses testified that Alcantara was a severely methamphetamine dependent. He stated that he was high on meth at the time he was arrested and does not remember crossing the border.
The prosecutor argued that this case is about “[c]redibility. This is largely going to come down to the issue of credibility.” “One of those two witnesses is not telling the truth.”
A prosecutor must not ask defendants during the cross-examination to comment on the truthfulness of the witness. This rule is “black letter law,” and it ensures the determination of credibility remain within the sole province of the jury. Nor may the prosecution “vouch” for a witness by offering personal opinion of a witness’s testimony, or suggest that information exists outside the record that verifies the witness’s truthfulness.
In this case, an error occurred when the prosecutor implicitly and then explicitly asked the defendant to comment on the agent’s veracity during cross-examination. The prosecutor asked the defendant if the agent is inventing stories about the defendant. The panel also held that, as the government conceded, the government improperly vouched for the 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.
Case reversed and remanded.
*Disclaimer. This is a summary of the case with citations omitted. Please click United States v. Martin Alcantara-Castillo to read the full text of the opinion.
Case summary: Attempted Murder charge PC664/PC187(a) plus special allegations PC1192.7(c)(23), PC1192.7(c)(8), PC12022.7(e) | Felony Charge | Prison Sentence Range: Minimum 5 years and Maximum 14 years in California State PRISON.
Results: 365 days sentence in local JAIL.
Attorney: Anton Vialtsin, Esq.
Disclaimer: The client names have been removed for privacy reasons. Prior results do not guarantee a similar outcome with any future legal matter.
Over the last several months, we have experienced an increase in traffic on LAWSTACHE.COM mobile website. We are happy to announce the launch of our new and improved mobile website. You can access it on any mobile device with internet capabilities. Sorry, brick phone users.
If you don’t have your phone handy, you may preview our mobile site HERE. You will be able to select the type of device you want to preview it on: iPhone, Android, Windows Phone, and even Blackberry.
The LAWSTACHE.COM stickers have arrived. And yes, the bottom ones are huge (10″)! Please come to the free concert at El Cajon Downtown on 9/20/13 6pm to pick some free stickers and other promotional products. We can also send you some stickers via United States Postal Soldiers (USPS), just email us your address.
LAWSTACHE.com is proud to sponsor El Cajon Downtown Dinner and Concert series on Friday 9/20/2013 6PM. If you are in the area, please enjoy a free concert and stop by our booth. We’ll be giving away our promotional products and be able to schedule you for a legal consultation. More info about the concerts and other El Cajon events can be found on http://www.ci.el-cajon.ca.us/events/.
Many of you know that attorney Anton Vialtsin assists his Russian-speaking clients in their mother tongue, and Jeremy Delicino is fluent in Spanish and Italian. We have been developing our website to be user friendly for our Russian clients. The site now includes 4 new webpages in Russian language explaining the process of obtaining visitor and family visas and asylum in United States. And even more Russian pages about immigration law are coming soon.
We have not forgotten about our English and Spanish speaking clients either. All of these pages will soon be available in Spanish. We will also resume answering criminal and immigration questions on our blog this week.
Delicino & Vialtsin, LLP
Marijuana is the third most popular recreational drug in America (behind only alcohol and tobacco), and has been used by nearly 100 million Americans. According to government surveys, some 25 million Americans have smoked marijuana in the past year, and more than 14 million do so regularly despite harsh laws against its use. [NORML.org]. Over 20 million Americans have been arrested for marijuana offenses since 1965.
NORML believes that the time has come to amend criminal prohibition and replace it with a system of legalization, taxation, regulation, and education. NORML is a great organization which partnered with hundreds of attorneys, doctors, and lobbyists to represent the interest of American marijuana smokers. Attorneys at Delicino & Vialtsin, LLP are a proud members of NORML. We have helped many accused in state and federal courts on marijuana related charges. If you would like to visit our profiles please click on the links below. We also encourage you to visit NORML for useful information about marijuana laws.