“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.