closing arguments that goes to core critical issues in the case that reversal is required even on plain error review in this instance there were three different acts of misconduct in the closing arguments made by the prosecutor the most serious of which which the government has conceded was erroneous was vouching for the government's primary witness that provided any direct evidence healthcare this court routinely reverses on plane error when the government vouchers for a witness that witnesses credibility is paramount to the case and the vouching itself is aimed at bolstering the credibility of that witness and that is precisely what happened here when the prosecutor stood up in closing arguments referring to the codefendant alberto martinez who testified against m and and stated that the prosecutor that the jury should believe mr martinez's version of events and the reason for him changing his story because the prosecutor himself found it to be a believable you and the government's argument is that any prejudice resulting from this was minimal is that what the government argues that is what the government alright so one thing the court instructed the jury that should view martina's testimony with caution because he had agreed to plead guilty in exchange for his cooperation and testimony there was some test there was an instruction dead on about martinez and about whether we should view that as good or bad prosecutor makes a big problem if he cries to march in on that kind of stuff that's correct your honor the prosecutors actually what happened here that's correct and as i understand it the jury is opposed to follow the instructions of the court not some stray remark made by the attorney and closing argument isn't that also true there but that is certainly the case that the case that's fields correct so then we've got that the next argument by the government is martinez says credibility was attacked during the trial on the basis of a shifting of a version of events so again the government says it's doubtful of this remark was more impactful than the testimony martinez himself gave so i guess i'm trying to i'm trying to understand why this is more than what you want to make it which i have a plain error of you i understand your honor and i guess i would disagree of course with the government that this was a stray comment or a minor comment this  again the prosecutor vouched for the reason that martinez changed his story but just a minute you're talking about what the prosecutor vouge but they're after and we didn't even get to that he came back and said well what i said might have gone over the line so he went forward so far as to say what i believe doesn't matter who the only thing that matters was what you think about the evidence presented so adding all of that up what he said he himself on the it and then we put these other things the government's argued so why does that make it plain air well i don't believe that what the prosecutor did was sufficient to on do his own error in fact add that might be your argument i'm just trying to put you on the spot this is playing error of you i understand and what the prosecutor even in saying what matters is what you think he doubled down on his own error and repeated to the jury that he believes martinez and i you know again it's a i didn't i i double down seems a little difficult for me to believe what he says you don't believe what i say it doesn't matter a hoot what i say well i think what he said was it doesn't matter what i believe i doesn't matter that i believe martinez i don't have the exact quote in front of me but  i have doesn't matter od'd what i believe ok so he was again reiterating his own personal belief that martinez is change in story which was a critical turning point in the trial because it was only at that point that the government was able to offer any direct evidence of what we're now long past that we're at the point of closing argument well i guess what i meant to say what i meant by that was martinez is he changed the story and got up on the witness stand and testified at trial was the turning point in the trial it was the only time the government had direct evidence linking mr peleg arrows knowledge if any to the drugs that were hidden in the vehicle that mr martinez was driving  the the court's instruction i agree with the court that the trial court properly instructed the jury that it should treat mr martinez's testimony with the appropriate amount of caution but i think you know those instructions come prior to closing argument and then in closing argument the prosecutor gets up and and says i believe this guy and you should too i don't have any more questions about that board you want to go to another part of your argument i mean others may all i'm trying to do it may seem like i'm a against it but i'm just trying to ferret this out i've got a player review for a do an appellate court having been in the district court once or twice i don't like the appellate court getting in my business especially if the general counsel doesn't even object and now it's playing error view so come on tell me why it's playing there well i understand your honor all i'm trying to do drugs i understand and you know then the th circuit has been pretty clear that even on clean air review when the government engages in vouching of a witness and vouching for that witness credibility and that witness is a critical witness in one case best case for that even on plane air well there are the best case for that i think is the one on plane air the wetherspoon case closing arguments which i think the government has admitted improperly engaged in propensity argument in violation of the court the trial court for a four b ruling regarding a prior trip to california that these two individuals supposedly went on and again mr martinez was the only witness who offered any evidence regarding that that trip even existed and in closing argument the prosecutor stood up and said that this is a defendant who is a drug trafficker who engages in trips to california at least two in this case that we know of and the government again argues this was an isolated argument that otherwise the evidence is strong against the defendant which i think goes to a point you're making earlier judg but i think when you break apart the evidence that was admitted at trial against mr healthier the evidence was not strong until mr martinez took the stand the evidence against mr healthcare was that he was a passenger in a vehicle where drugs were found hidden in the floor and there were other aspects of circumstantial evidence regarding his knowledge but until mr martinez stood up and said mr elder a planned all this he knew about it he left me at a hotel when he went to go pick up drugs and by the way we did this the week before it was only at that point that the evidence became strong i guess against mr well yes that's why i was admitted it was  d because they were as one was saying i didn't do didn't do it and they have any part of it never add anything to do with it so it admitted for that reason correct and not only admitted for that reason but admitted with the cautionary instructions as to how you could look at that evidence that and now i'm supposed to find playing there well that's correct ron it was admitted for the limited purpose of purposes of knowledge lack of accident and intent but when the government stood up in the closing arguments pushed aside those three permitted bases and argued to the jury that this prior trip to the jury should consider that the because this guy engages in trips to california to deal drugs in the court was very clear the district court was very clear that the prosecutor was not permitted to offer evidence or make suggestions of other trips to california precisely because of the prejudicial effect that it would have and finally with respect to th misconduct in this case there was a pretrial stipulation and the evidence was that mr healthcare a had a user amount of methamphetamine next to him in the door pocket the door handle pocket  that there was a very large amount of methamphetamine hidden under the floor in the in the seat storage compartments in the vehicle prior to trial the government and the defense to pilate it that no link was  established between those two sets of methamphetamine and importantly and this is the critical part of the stipulation is that the government conceded it would not argue to the jury that any such link existed they ever argue yes all  ask a question but you didn't argue the prosecutor was very clever about it and sick and talked about mr healthier having this user amount of methamphetamine and this other larger quantity being behind him in the floor and what he said to the jury was i believe he said i'm just going to leave this here for you to do with whatever you want the thing that bothers me about that is if you've got a stipulation and you've got this stipulation with the government about what ought to be if the prosecutor is walking the fine line and ask a question which is out of bounds and you just sit there and do nothing you don't even raise it up for the court to do anything about and now you come up to me and say judge look over the top of this and tell at trial judge he's big is big that ever was abused his discretion in new england doing something about this give a new trial and that we're doing it on what plane air air your absolute lowest level you're absolutely correct your honor this was not raised at the time and i know think that this is an area where the th circuit is particularly mindful but also particularly aggressive in making sure that the government upholds itself to the standards that is expected which is that it can strike hard blows but they must be fair blows i think it's notable that in the government's brief in the prosecutorial misconduct section there's not even a single bit of case analysis there's not even a single comparison to other cases why this doesn't this case wouldn't fit within those cases and i think it's because the cases are really clear that for example when there's vouching when  government makes these errors and each of them go to these court critical issues in this case of martinez's credibility every single one of these issues of error really goes to the heart of should the jury believe mr martinez and when the  good morning your honor may i please the court kelley's it's been appearing on behalf of the united states once again where my opposing counsel left off and that is on the shying away from the law the law is very clear that these are very case specific and fact many of the cases that my opponent has relied upon actually involved times when the defense attorney raised an objection so because we are here on plane air review we're looking at three primary factors and that is that the nature of the as a very mild form of i did i don't know why you would say that it seems to me this is you know a usa want to one class would have taught you not to do this i don't know who this person was who tried the case but this is totally impermissible arc circuit law is crystal clear on this he should never think it was that he wasn't correct he should never have gotten anywhere close to this so i commend you for conceding that it was improper but why would you now stand here and try to dismiss it which preceded that statement this is what the prosecutor told the jury mr martinez the judge told you and you should absolutely follow the instruction to be skeptical about his testimony he lied to the police and the prosecutor said that again oh i don't know the statement that's that's exactly why this is so problematic don't you agree that you have a witness whose credibility is already on shaky ice and then you have this i'm sure he's a very honest earnest usa stand before twelve people and say but i believe him right that is why it is so improper it's precisely in cases like this that you can't do that so no it does not help your cause to point out that the u himself pointed out that this guy's credibility is shaky that's why it's even more damaging to vouch for someone in a case like this which is then that i want to turn to the rebuttal where he told the jury in absolutely plain terms what i say what i think doesn't matter a bit and the jury heard the court's instructions that they were the ones you had to decide whether or not mr martinez was credible now another key difference here between the all ca that my opponent has relied upon is that our case was not one that involved he said versus he said i'll come tara was the encounter with the defendant the border patrol agent pivotal was what his state of mind was in the words th this was a classic case involving a cooperator and corroboration can you maybe separate out the drug counts count three counts from the gun count in terms of in terms of this being a he said  she said or not every put the i guess i view the gun count as different perhaps from planar review standpoint from the drug count because there was other evidence implicating the defendant as to the drugs but i think it was just mr martinez his testimony and nothing else whatsoever that implicate him on the gun counter my wrong about well i guess it depends on how you view the evidence certainly was mr martinez who said it was mr hell garrett who had given him the firearm and insisted that he bring the firearm with him along on these trips but it was mr healthcare who in fact opened the glove box where the gun was located and that's why it seems to me this is so  the entire case for the gun count has to turn on the jury the jury's believing the martinez because martinez his version is that it was hill garrett himself who two minutes before they got pulled over took the gun from the center and put it in the glove compartment the cop is at the passenger side door in and the guy is going to open the glove compartment and there's nothing else in there except a gun right i mean that picture it's a pretty real looking guy  so i mean that's why it just seems this mark you just cannot possibly be believed on that point that this makes no sense why would it work or open with the cops any right there he knows that he just put a gun in there and he's going to open that that makes no sense it may not make any sense to us in this courtroom but if you put yourself into mr health care if he's in a car he's got methamphetamine sitting next to him he's got sixty five pounds of drugs in back of the  minivan and they've just been pulled over by a trooper now with that adrenaline that was flowing through his body and it makes complete sense to me that he would have forgotten that that gun was in the glove box even if he had just put it in there to get we're talking about  we're talking about someone who was in panic mode they knew they were in trouble and that you're pulled them out i think your view of what you know normal human behavior is different from mine but put that aside all i'm saying is that i think the government had zero evidence connecting the defendant to the gun other than mr martin as a statement that it that you know he had put it in there knew that he had told him to bring it right and putting our different interpretations of what might have happened aside we have no evidence that's what i'm saying so to me are cases are they state the proposition proposition just as your opponent phrased it even on a plane or review when the government engages in an impermissible valjean with respect to a key witness and that witness's testimony is the only testimony that supports a verdict we have to send it back for a new trial and i disagree that it has to be sent back for a new trial and that's because this jury was properly instructed to view mr martinez's testimony was skepticism the jury heard from this prosecutor view it was skepticism they didn't get that in elk and tara it was he told them to view it with skepticism twice and when we're looking at mr martinez and this we our theory at this trial was that mr martinez should be believed because his testimony was corroborated in several material respects from the description of the trip that they took forty hours two thousand miles and his cell phone records corroborated that it was mr martinez who had the photograph on his phone of the five hundred thousand cash on the bed in the motel room it was mr martinez who said we used methamphetamine on the way up and look we had the receipt from the package of cigarettes to prove that yes that was when they got the package of cigarettes was on the way back up it was mr hell guera who had three hundred and thirty four one hundred dollars in cash in his backpack and on his person when mr martinez said he had been promised three thousand dollars to make this trip so this is not a case in which the government was saying believe martinez because we tell you to the bulk of this closing argument ninety five percent of this closing argument was believe martinez because we have given you evidence that you can look at and you can verify that what he is saying at least in the into the in these respects is accurate don't i don't have any confidence that martinez was telling the truth in terms of hey it was all on the other guy i think if anything it suggests that he was the guy and he was trying to finger it was the brother in law thanks thanks brother but but that's just goes to whe hooker knew about the trucks i guess and i that's one thing i grant you maybe as to the drug count this wasn't that big of a deal but as for the gun count i just return to the point that the jury had to believe martinez on that point in order to convict and two points if i may your honor the jury had a good cause to believe mr martinez because of the corroboration and i do want to push back a little bit on your assessment that mr martinez was not credible and that's because let me just clarify i'm just saying that the evidence to me was kind of an equitable ois as to whether he was being truthful about healthcare of being the one who sort of was the main guy and murkiness be the helper certainly a jury could resolve it reasonably either way i'm not the jury wasn't presented with two different stories there was mr martinez story along with our corroboration and there was nothing else there was no counterespionage nation for mr healthcare's presence for his knowledge of the drugs for his knowledge of the gun so i still go back to elkan tara was a high water mark it was a split decision from this court to want one of your judges didn't think that k should go back our case falls below that we are not to that plane error threshold you look at all of these prosecutors statements and that's why i conceded i agree saying i found him truthful that was in permissible vouching but if you look at the overall text of this closing argument you look at the fact that this prosecutor repeatedly told the jury view him with skepticism don't believe me what i say doesn't matter a hoot that takes us out of plane air it was a simple error it was a misstep we've acknowledged it no  question i don't want our prosecutor saying i believe some witness and we make every effort to prevent words like that coming out of our prosecutor's malice but nevertheless we look at the strength of the evidence in this case against m look at the overall context at the closing argument and the admitted vouching and we simply don't get over that plane error threshold i'm happy to turn to any of the other issues if the court has questions on any of those otherwise cooperators testimony was being vouched for the prosecutor did in that case who stood up and said that the jury should believe a law enforcement officer because they're sworn to uphold the law so that's vouching for a law enforcement officer not for a cooperat r and so the notion that the jury was instructed to view mr martinez's testimony with skepticism i don't think it really applies in that in that analysis i'm a little bit troubled by the government's argument that there was no alternative explanation given that sounds kind of like a suggestion that that would contravene mr holder is th amendment right not to testify at trial i think it's irrelevant that there was no counter narrative the government bears the burden of proof to prove beyond a reasonable doubt now the cases that we have cited and it's not just al can terah from two thousand and fifteen it's case after case the combs case from two thousand and four where the prosecutor implied to the jury that in agent would get punished for lying so the jury should believe the agent in the current case in one thousand nine hundred and two where the prosecutor told the jury that he the prosecutor thinks the witness who provided the only direct evidence in that case much like in this case is honest so i think the cases are right in with this case i think right thank you very much the case just argued is submitted