August 19, 2009; see amended opinion filed October 9, 2009
Appeal from the United States District Court for the District of Hawaii David A. Ezra, District Judge, Presiding. D.C. No. 1:07-CR-00384-DAE-1.
The opinion of the court was delivered by: Kozinski, Chief Judge
Argued and Submitted May 13, 2009 -- Honolulu, Hawaii.
Before: Alex Kozinski, Chief Judge, Jay S. Bybee and Consuelo M. Callahan, Circuit Judges.
Partial Concurrence and Partial Dissent by Judge Bybee
Everyone could have done more to protect defendant's rights at trial.
This is a tale of two Rex Harrisons. The first is the Harrison of Officers Jenkins and Kirby, two military police officers, who describe a man so drunk he could barely stand straight. A man who reeked of alcohol at a distance of six feet. Who snarled, "I don't think I should have to give you shit" when asked for his driver's license. A man who punched Officer Jenkins in the face and told Officer Kirby, "I'm not afraid of you and I'm not afraid of your fucking dog."
The second Rex Harrison is the man of his own telling. This Harrison had only "a couple of beers with dinner." When confronted by the officers, he humbly apologized for trespassing. This Harrison was calm and non-confrontational; he had the milk of human kindness by the quart in every vein. He certainly never hit anyone.
The jury must have believed the first story because it convicted Harrison of two counts of assaulting a federal officer. He appeals.
Except where otherwise noted, Harrison's trial lawyer failed to object to the errors his new lawyer raises on appeal. We therefore review for plain error, asking the usual questions, including whether there was prejudice. See, e.g., United States v. Recio, 371 F.3d 1093, 1100 (9th Cir. 2004).
A. Harrison was convicted of assaulting officer Jenkins and inflicting "bodily injury". 18 U.S.C. § 111(b). He complains that the prosecutors engaged in improper questioning during cross-examination and improper "vouching" during closing arguments.
 It's black letter law that a prosecutor may not ask a defendant to comment on the truthfulness of another witness, United States v. Combs, 379 F.3d 564, 572 (9th Cir. 2004), United States v. Geston, 299 F.3d, 1130, 1136 (9th Cir. 2002), but the prosecutors here did just that. One prosecutor asked: "You're saying that [they're] going on the stand, swearing an oath to testify to the truth and then lying . . . ?" He even pitted his own credibility against Harrison's, asking, "So I'm in the conspiracy against you, is that right?" These were not isolated incidents: Improper questioning was an organizational theme for the prosecutor's entire cross-examination.
 The vouching was similarly patent. The government was entitled to rebut Harrison's suggestion that Officers Jenkins and Kirby were motivated to lie, but it crossed the line when one prosecutor mentioned during closing that the officers had been promoted "with no adverse action whatsoever" after an internal military investigation. This clearly "suggest[ed] that information not presented to the jury," but available to the investigators, supported the officers' testimony. United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993). And it would be hard to find a clearer case of "placing the prestige of the government behind a witness," id., than the prosecutor's statement that the "[g]overnment stands behind" Officers Jenkins and Kirby.
The government concedes the impropriety of many of these statements, but points out that the prosecutors were Special Assistant United States Attorneys on loan from the military. That's no excuse at all; when the United States Attorney endows lawyers with the powers of federal prosecutors, he has a responsibility to properly train and supervise them so as to avoid trampling defendants' rights. Indeed, everyone involved could have done better: The defense attorney should have objected as soon as he saw the prosecutors step out of ...