1998 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-19-1998

United States v. Walker

Precedential or Non-Precedential:

Docket 97-3531

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Recommended Citation

"United States v. Walker" (1998). 1998 Decisions. Paper 198.

http://digitalcommons.law.villanova.edu/thirdcircuit_1998/198
Filed August 19, 1998 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NO. 97-3531 

UNITED STATES OF AMERICA 

v. 

ROBERT WALKER, 

Appellant 

On Appeal From the United States District Court 

For the Western District of Pennsylvania 

(D.C. Crim. No. 96-cr-00014E) 

Argued: June 12, 1998 

Before: BECKER, Chief Judge, WEIS, Circuit Judges 

and DOWD, District Judge.* 

(Filed August 19, 1998) 

 SHELLEY STARK, ESQUIRE 

 Federal Public Defender 

 KAREN SIRIANNI GERLACH, 

 ESQUIRE (ARGUED) 

 Assistant Federal Public Defender 

 415 Convention Tower 

 960 Penn Avenue 

 Pittsburgh, PA 15222 

Attorneys for Appellant 

_________________________________________________________________ 

*Honorable David D. Dowd, Jr., United States District Judge for the 

Northern District of Ohio, sitting by designation. 
 LINDA L. KELLY, ESQUIRE 

 United States Attorney 

 BONNIE R. SCHLUETER, ESQUIRE 

 (ARGUED) 

 Assistant United States Attorney 

 JARVIS F. TAIT, ESQUIRE 

 Assistant United States Attorney 

 633 United States Post Office & 

 Courthouse 

 Pittsburgh, PA 15219 

 Attorneys for Appellee 

OPINION OF THE COURT 

DOWD, District Judge. 

I. The Charge and Conviction. 

The appellant, Robert Walker, an inmate at The Federal 

Correctional Institute (FCI) in McKean, Pennsylvania, 

prosecutes an appeal from his conviction and sentence of 

18 months for possession of contraband in violation of 18 

U.S.C. S 1791(a)(2). 

On October 13, 1995, Walker was undergoing a strip 

search preparatory to being placed in a special holding unit 

within McKean. The two correctional officers conducting the 

search, Scott and Dubois, ordered Walker to remove his 

undershorts at which time Walker removed a ten-inch

shank. In a subsequent interrogation on November 3, 1995 

by William Turner, an FBI agent, Walker admitted to

possession of the shank. Walker also admitted that he 

made the weapon, and that he had it for protection because 

of a fellow inmate problem. 

II. The Alleged Error of Vouching. 

On appeal, Walker's sole error advanced for reversal of 

conviction is the contention that the government prosecutor 

"vouched" for the three government witnesses: Scott, 

Dubois, and Turner. Walker argues that his defense 

 2 
focused on the credibility of the three witnesses and the 

government vouching "undermined fundamental fairness of 

the trial and contributed to a miscarriage of justice." 

III. The Setting. 

A. The Opening Statements. 

The government's opening statement summarized the 

expected testimony of Scott, Dubois and Turner. The

defendant's opening statement emphasized that the defense 

would be questioning the credibility of the government 

witnesses. 

B. A Review of the Testimony of Scott, Dubois, 

 Turner and Zuniga. 

Scott testified that he was working in the special housing 

unit1 where Walker was transferred on October 13, 1995, 

and was present when Dubois conducted a visual search of 

Walker in a shower room. Scott indicated that Dubois 

conducted a visual inspection of the shower room before 

the search of Walker. Walker was ordered to remove his 

clothes while Scott held a plastic bag for Walker to put his 

clothes in. After Walker stripped down to his underwear 

and socks, Walker turned his back on Dubois and Scott. 

According to Scott, Dubois then ordered Walker to turn 

around, at which point Walker reached into his waist area 

and turned around with a shank in his right hand. Scott 

told Walker to place the weapon on the grill and step back. 

Scott picked up the weapon and put it in his pocket. He 

then wrote out an incident report and took a photograph of 

the weapon. 

Dubois corroborated Scott's testimony. Dubois 

emphasized that when he requested that Walker turn 

around, Walker refused. Then he ordered Walker to turn 

around, but again Walker would not turn around. Dubois 

testified that he finally gave Walker a direct order to turn 

around, at which point Walker turned around with a shank 

in his right hand. Dubois testified that Walker put the 

shank on the grill where Scott grabbed it. 

_________________________________________________________________ 

1. The special housing unit is the area of the institution where prisoners 

who "create problems" out in the general population are placed. 

 3 
FBI Agent Turner described his November 3, 1995 

interview with Walker regarding the incident of October 13, 

1995. He identified Lieutenant Zuniga as also being present 

at the interview. According to Turner, Walker was orally 

advised of his rights and then was given a form to read,2 

which Walker appeared to read and then signed. Turner 

and Zuniga also signed the form as witnesses. 

According to Turner, Walker admitted that he had found 

a piece of metal which looked like a key ring outside the 

gymnasium of FCI McKean and straightened it. Walker

claimed that the end of the ring was already flattened. 

Walker admitted to taking a piece of a sheet and wrapping 

it around the handle. 

Lieutenant Zuniga testified that he was present during 

the interview of Walker by Turner on November 3, 1995. 

Zuniga indicated that Turner read Walker his rights and 

the waiver at the bottom of the form and asked Walker if he 

understood them. Turner then gave Walker the form to look 

over and asked him again if he understood his rights. 

Zuniga testified that Walker then signed the waiver. Zuniga 

also stated that he signed the form as a witness. 

According to Zuniga, Walker was not threatened into

signing the form and he appeared fully coherent. Walker 

told Zuniga and Turner that he made the weapon from a 

key ring that he found in the "rec yard." Walker said that 

he straightened the key ring and then sharpened it. Walker 

stated that he made the weapon for protective purposes due 

to a prior altercation with an unidentified inmate. Zuniga 

testified that Walker stated during his interview that he 

used sandpaper to sharpen the point of his weapon. 

At no time was there any testimony that suggested an 

alleged bias or ulterior motive on the part of Scott, Dubois, 

Turner, or Zuniga in investigating and reporting this 

incident. 

_________________________________________________________________ 

2. The form contained in written form the same notification of rights that 

had just been given orally, along with a waiver at the bottom. 

 4 
IV. The Alleged Vouching. 

After reviewing the testimony and the stipulations, the 

Assistant United States Attorney (AUSA) indicated that the 

only contested issue was whether Walker possessed the 

shank. Then the AUSA argued: 

 Now, ask yourselves what motivation would Officer 

 Robert Scott and former Officer Raymond Dubois have 

 to come in here and lie to you. What motivation. I 

 submit to you that they have no motivation to lie to 

 you. I submit to you that you can determine, using your 

 common sense and your judgment, you can determine 

 the credibility of those two and the only two 

 eyewitnesses to the search . . . 

 Now, in addition, we went further, we then called 

 Agent Turner . . . What motivation would he have to 

 come into this courtroom and lie to you. . . [summary 

 of Turner's testimony] . . . I submit to you that Agent 

 Turner would have no motivation to come into this 

 courtroom and make these things up. I submit to you 

 that Agent Turner corroborated the direct evidence of 

 the two and the only two eyewitnesses. 

After final argument advanced on behalf of Walker in 

which Walker's lawyer questioned the Government's proof 

and the credibility of the witnesses by declaring that there 

should have been a video of the search and a recording of 

the alleged confession and imploring the jury to not act as 

a rubber stamp for the Government, the AUSA responded 

in part as follows: 

 The testimony was, the testimony of the two officers 

 that have no motivation to lie to you, the testimony 

 was that it came out of the underwear. This was a strip 

 search. They had two officers behind the bars looking 

 and they told you, the eyewitness testimony, that is 

 evidence of this crime. And we submit to you that we 

 have proven that beyond a reasonable doubt. . . . 

 And we submit that when you think about the case 

 with your judgment and your wisdom and you take 

 into account that there were only two eyewitnesses and 

 they have told you that they saw the defendant with 
 the object, that, ladies and gentlemen, is proof beyond 

 a reasonable doubt. 

V. The Concept of Vouching Discussed in Genera l. 

Vouching constitutes an assurance by the prosecuting 

attorney of the credibility of a Government witness through 

personal knowledge or by other information outside of the 

testimony before the jury. United States v. Lawn, 355 U.S. 

339, 359 n. 15, 78 S.Ct. 311, 323 n. 15, 2 L.Ed.2d 321 

(1958). See also United States v. Neceochea, 986 F.2d 1273, 

1276 (9th Cir. 1993). A prosecutor's vouching for the 

credibility of a government witness raises two concerns: (1) 

such comments can convey the impression that evidence 

not presented to the jury, but known to the prosecutor, 

supports the charges against the defendant and can thus 

jeopardize the defendant's right to be tried solely on the 

basis of the evidence presented to the jury; and (2) the 

prosecutor's opinion carries with it the imprimatur of the 

Government and may induce the jury to trust the 

Government's judgment rather than its own view of the 

evidence. Young, 470 U.S. at 18, 105 S.Ct. at 1048; United 

States v. Molina-Guevara, 96 F.3d 698, 704 (3d Cir. 1996). 

While it was formerly the rule in this Circuit that

vouching for a witness based on information not in the 

record required reversal per se, United States v. DiLoreto, 

888 F.2d 996, 999 (3d Cir. 1989), such comments now

must be analyzed on a case by case basis. United States v. 

Zehrbach, 47 F.3d 1252, 1267 (3d Cir. 1995). 3 This Circuit 

has analyzed vouching in a number of cases, and a review 

of the case law will be helpful to put this case in context. 

VI. A Review of the Case Law. 

In United States v. Gallagher, 576 F.2d 1028, 1040-43 

(3d Cir. 1978), the prosecutor told the jury during opening 

_________________________________________________________________ 

3. Zehrbach, 47 F.3d at 1267, expressly overruled DiLoreto. This Circuit, 

sitting en banc, held that the per se reversal rule of DiLoreto 

conflicted 

with the case by case analysis of prosecutorial misconduct required by 

the Supreme Court in Young, 470 U.S. at 11-12, 105 S.Ct. at 1044- 

1045. 

 6 
statement that the Government's testimony would come 

from the mouths of "truthful, credible" witnesses, and that 

all one witness "could testify to is the truth." Id. at 1041. 

This Court held that improper vouching had occurred, but 

did not grant the defendant a new trial. We explained that 

"in view of the amplitude of the evidence proving the 

appellant's guilt, we cannot say that the unfortunate 

statements quoted above alone require reversal." 

In United States v. Swinehart, 617 F.2d 336, 338-340 (3d 

Cir. 1980), the prosecutor in closing argument stated that 

the Government's expert witness "is an honest witness." Id. 

at 339 n. 3. He also stated that this witness "of all 

witnesses and I believe that all the witnesses that testified 

[sic], testified honestly was one of the most honest." Id. The 

prosecutor went on, "I suggest that the expert in this case 

who testified concerning the questioned documents, that 

his testimony is totally worthy of belief." Id. We once again 

expressed our disapproval at these comments and held that 

they constituted improper vouching by the Government's 

attorney. Id. However, we held that the improper comment 

did not warrant reversal because the jury would have 

convicted the defendant even had it not been exposed to the 

improper prosecutorial comments. Id. 

In United States v. Beaty, 722 F.2d 1090, 1097 (3d Cir. 

1983), the prosecutor stated during summation that the 

witnesses who had appeared pursuant to a plea-bargain 

"promised to tell the truth and they were telling the truth 

before the judge who will sentence them in this matter. . . ." 

The court held that this comment constituted vouching. Id. 

However, the court held that this comment was not 

prejudicial. We explained, "[t]he prosecution witnesses' 

credibility was a hotly contested issue throughout the trial. 

The jury was, therefore, more likely to view this statement 

as an argument than as a revelation." Id. We also noted 

that there was overwhelming evidence of guilt, and that the 

judge's instructions dispelled any improper inferences that 

the jurors may have drawn. Id. 

In DiLoreto, 888 F.2d at 998-1000, the prosecutor stated 

during rebuttal in reference to a witness that was appearing 

pursuant to a plea bargain that, "[I]f they lie, that bargain 

is off . . . We don't take liars. We don't put liars on the 

 7 
stand. We don't do that." Id. at 999. We construed this 

statement by the prosecutor as an assertion to the jury that 

the government does not use liars as witnesses in its cases. 

Id. In this light, we held that the comment made by the 

prosecutor during rebuttal was improper vouching. Id. at 

1000. Since we had not yet adopted a case-by-case analysis 

for comments based on evidence not in the record, we did 

not inquire into whether the above quoted statement was 

prejudicial. We instead held that it was reversible error per 

se. Id. 

In United States v. Pungitore, 910 F.2d 1084, 1120-1127 

(3d Cir. 1990), the prosecutor made several remarks during 

rebuttal argument that the defendant challenged as 

vouching.4 The success of the government's case hinged on 

_________________________________________________________________ 

4. The prosecutor made the following comment about the FBI agents and 

state law officers who testified at trial: 

 the FBI agents and state troopers in this case are not criminals. 

 There's no evidence to indicate that those good men suborned 

 perjury or made up anything and that's why the Government 

 brought them in[,] so that you could judge their credibility from 

the 

 witness stand. Id. at 1123. 

The prosecutor further urged the jury to consider the oaths of office 

taken by the law enforcement officers: 

 You decide if it was [the defense witness] that was telling the 

truth 

 or if it was all those FBI agents and state troopers who swore an 

 oath who many of them told you have been agents and troopers for 

 19 years, 18 years, 17 years, you decide if they put their jobs, 

their 

 careers and everything they worked for all those years on the line 

to 

 fabricate testimony and put words in a witnesses mouth. Id. at 1123 

 n.56. 

Lastly, the prosecutor attested to the integrity of the prosecutorial 

team and commented upon the testimony of two of the Government's 

witnesses: 

 We're [the prosecutorial team] and make no mistake about it. 

 What he's telling you, what a lot of these defense attorneys are 

 telling you is that we fed this information to those Defendants, 

and 

 you know what? You've heard us throughout the course of this trial. 

 I'm not a genius but I'm not that dumb that I casually mentioned 

 things to them without knowing exactly what I'm doing. I'm not that 
 stupid . . . Those FBI agents, those state troopers, those 

policemen, 

 8 
the credibility of the two government witnesses. Id. at 1120. 

The defense strategy was to attack the credibility of these 

witnesses. Id. The defense counsel had suggested that 

federal and state law enforcement officers had fabricated 

the government witnesses' testimony. Id. at 1121. The 

defense counsel made accusatory remarks during opening 

statement, vigorously cross-examined the government

witnesses, and made the integrity of the government

personnel the central theme of their closing arguments. Id. 

at 1121-1122. 

We held that the statement by the prosecutor that,"the 

only way they got their stories together is if law 

enforcement told them each what to say[,] and there is 

nothing to indicate that happened, and it didn't happen," 

was not vouching. Id. at 1124. We explained that the 

statement did not suggest that the prosecutor had access to 

undisclosed facts that would support the credibility of the 

government witnesses. Id. "Instead, faced with 

contradictory testimony regarding the preparation of its 

witnesses, the prosecutor urged the jury to accept the 

testimony most favorable to the government. This, in itself, 

was proper argument." Id. at 1125. 

We also held that the prosecutor's comment that the FBI 

agents were brought in to testify because they were not 

criminals was not vouching. Id. at 1125 n. 57. We noted 

that, in context, the comment merely points to the lack of 

any compelling evidence that the officers had engaged in 

any misconduct. Id. We observed that "[o]ur precedents do 

not constrain a prosecutor from pointing to an absence of 

evidence which might reflect negatively on his witnesses, so 

long as he does not suggest the existence of undisclosed 

facts which would support a favorable credibility 

determination." Id. 

_________________________________________________________________ 

 they're not real stupid either. The only way that[the government 

 witnesses] testimony could be consistent in this case is one of two 

 ways. They're either telling the truth or . . . the only way that 

they 

 got their stories together is if law enforcement told them each 

what 

 to say[,] and there is nothing to indicate that that happened, and 

it 

 didn't happen. Id. at 1123. 

 9 
Lastly, we held that the comment by the prosecutor 

concerning the credibility of testifying law enforcement 

personnel and the prosecutorial team was vouching 

because it invoked facts outside the record to assure the 

jury that they would not lie because lying would jeopardize 

their careers. Id. "We observe that there was no evidence 

backing the prosecutor's comments that the U.S. Attorneys 

and law enforcement officers could not have behaved as 

unscrupulously as defense counsel alleged they did without 

violating their oaths of office and jeopardizing their 

careers." Id. However, we held that this vouching did not 

require reversal because it fell squarely within the invited 

response doctrine.5 

More recently, in United States v. Bethancourt, 65 F.3d 

1074, 1079-1080 (3d Cir. 1995), the defendant challenged 

the integrity of the Drug Enforcement Agents who testified 

at trial.6 The prosecutor responded that the defendant's 

argument was improbable and that the witness did not lie.7 

On appeal, the Government conceded that the prosecutor's 

_________________________________________________________________ 

5. The invited response doctrine "teaches that where a prosecutorial 

argument has been made in reasonable response to improper attacks by 

defense counsel, the unfair prejudice flowing from the two arguments 

may balance each other out, thus obviating the need for a new trial." Id. 

at 1126. The prosecutor may not use the improper remarks of the 

defense counsel as a springboard for the launching of affirmative attacks 

upon the defendants. Id. The doctrine's reach extends only to defensive, 

as opposed to offensive, argument by the prosecutor. Id. at 1127. 

6. The defense counsel "also argued that the government agents typed up 

the confession and `they put stuff in there that[the defendant] was never 

gonna agree to;' and that faking his signature to the confession `tells 

you 

[the jury] that in no way are they the statements, are they the words, are 

they the concepts, or is that the confession of [the defendant]. It's 

theirs 

and they tried to make it his.' " Id. at 1079. 

7. The prosecutor stated: 

 For what, ladies and gentleman? He's gonna risk his career? He's 

 gonna risk his job? He's gonna risk going to jail? For what? To lie 

 to you on the stand, ladies and gentleman? I submit not, ladies and 

 gentleman . . . [the prosecution's witnesses] don't make up lies. 

And 

 they didn't lie here and they're not lying to you, ladies and 

 gentlemen, when they tell you what they did. And they're not lying 

 to you when they tell you that defendant . . . talked to them about 

 the statement. Id. at 1079. 
 10 
remarks were "ill-advised". Id. We held that these 

statements did not amount to plain error. Id. at 1080. We 

noted that: (1) the comments in rebuttal were isolated and 

followed an untainted closing; (2) the district court gave 

clear instructions to the jury; and (3) the evidence produced 

at trial against the defendant was overwhelming. 

Most recently, in Molina-Guevara, 96 F.3d 698, 703-705 

(3d Cir. 1996), the prosecutor during rebuttal represented 

that an uncalled witness would have corroborated the 

testimony of the United States Customs Service Agent who 

testified at trial and whose credibility was at issue. Id. at 

703. The prosecutor further told the jury that it was 

"insulting" and "ridiculous" to think that the Government 

would put a witness on the stand who would lie. Id. at 704. 

The prosecutor also assured the jury that the agent in 

question "did not lie to you." Id. We held that these 

statements were vouching and impermissible. Id. at 705. 

Since the defendant made the appropriate objections and 

moved for mistrial, we applied a harmless error analysis. Id. 

at 703. We held that because the prosecutor's rebuttal 

referenced a potential witness who never took the stand, 

the defendant's Sixth Amendment rights under the 

Confrontation Clause were violated. Id. at 705. Accordingly, 

we reversed the conviction because we could not say that 

the improper comments were harmless beyond a reasonable 

doubt. 

Our case law indicates that to find vouching two criteria 

must be met: (1) the prosecutor must assure the jury that 

the testimony of a Government witness is credible; and (2) 

this assurance is based on either the prosecutor's personal 

knowledge, or other information not contained in the 

record. Thus, it is not enough for a defendant on appeal to 

assert that the prosecutor assured the jury that a witness' 

testimony was credible. The defendant must be able to 

identify as the basis for that comment an explicit or implicit 

reference to either the personal knowledge of the 

prosecuting attorney or information not contained in the 

record. See Lawn, 355 U.S. at 339 n. 15, 78 S.Ct. at 323 

n.15. It follows that where a prosecutor argues that a 

witness is being truthful based on the testimony given at 

trial, and does not assure the jury that the credibility of the 

 11 
witness based on his own personal knowledge, the 

prosecutor is engaging in proper argument and is not 

vouching. See Pungitore, 910 F.2d at 1125. Likewise, 

prosecutorial comment that points to a lack of evidence in 

the record which supports a defendant's argument that the 

witness is not credible is proper so long as the comment 

does not constitute an assurance by the prosecutor that the 

witness is credible. See Pungitore, 910 F.2d at 1125 n. 57. 

A prosecutor may argue in the negative that the 

assertions made by defense counsel that a witness is lying 

are not supported by the testimony in the record. What the 

prosecutor may not do is take the next step. Once the 

defense counsel's argument is rebutted, the prosecutor's 

references to the witness' credibility should end. If the 

prosecutor proceeds further and starts arguing in the 

affirmative that the witness is credible, and does so based 

on either information that is not in the record or his/her 

own personal knowledge, then the prosecutor has engaged 

in vouching. 

VII. A Plain Error Analysis of the Alleged Vou ching. 

Walker did not object to the alleged vouching during trial. 

Therefore, we review the record for plain error. Bethancourt, 

65 F.3d at 1079. "In order to be plain error, an error must 

not only be `obvious,' it must also `have affected the 

outcome of the District Court proceeding.' " Id. (citing 

United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 

1778-79, 123 L.Ed.2d 508 (1993)). "We may reverse only if 

we find error in the prosecutor's comments so serious as to 

`undermine the fundamental fairness of the trial and 

contribute to a miscarriage of justice.' " Pungitore, 910 F.2d 

at 1126.8 

_________________________________________________________________ 

8. Walker argues that the plain error analysis is not significantly 

different than the harmless error analysis. This is simply not true. In 

Olano, 507 U.S. at 734-35, the Supreme Court compared the harmless 

error standard to the plain error standard and noted, "[w]hile [harmless 

error analysis] precludes error correction only if the error `does not 

affect 

substantial rights', [plain error review] authorizes no remedy unless the 

error does `affec[t] substantial rights.' " Furthermore, the Court noted 

that, under plain error review, reversal is permitted but not mandatory. 

Id. at 735. Thus, a plain error that affects substantial rights, without 

more, does not mandate reversal, "for otherwise the discretion afforded 

by [the plain error standard] would be illusory." Id. at 737. 

 12 
Walker contends that the AUSA improperly vouched for 

Scott and Dubois when she stated: 

 Now ask yourselves what motivation would officer 

 Robert Scott and former Officer Raymond Dubois have 

 to come in here and lie to you. What motivation. I 

 submit to you that they have no motivation to lie to 

 you. I submit to you that you can determine, using your 

 common sense and your judgment, you can determine 

 the credibility of those two and the only two 

 eyewitnesses to the search. 

The comment by the AUSA consists first of the rhetorical 

question, "What motivation [would these witnesses have to 

lie]?" This question is not vouching. It does not maintain 

the credibility of the two witnesses by referring to 

information outside the record, nor does it contain a 

personal assurance of veracity. Viewed in context, the 

statement merely points to the fact that Walker did not 

produce any evidence indicating a motive on the part of the 

law enforcement officers to lie. As we have previously 

stated, it is permissible for a prosecutor to point to an 

absence of evidence that might reflect negatively on her 

witness, so long as she does not suggest the existence of 

undisclosed facts that would support a favorable credibility 

determination. Pungitore, 910 F.2d at 1125 n. 57.9 

_________________________________________________________________ 

9. Gallagher, 576 F.2d at 1041, is not to the contrary. Walker contends 

that language identical to the rhetorical question analyzed here was held 

to be vouching by the Gallagher court. In Gallagher, the prosecuting 

attorney during opening statement asked, "What motive did [the 

government witness] have to lie against [one of the defendants]? There is 

none, because she was telling the truth." Id. We held that statement to 

constitute vouching in its entirety. However, it should be clear from the 

discussion supra, that it is the second sentence in the quotation and not 

the first one that offends the rule against vouching. The statement, 

"[t]here is none, because she was telling the truth," is vouching because 

it assured the jury that the witness was credible, implicitly based on the 

attorney's own personal knowledge. In other words, the prosecutor was 

personally assuring the credibility of the witness. The rhetorical 

question 

posed in the first sentence did not personally assure the credibility of 

the 

witness, nor did it maintain the credibility of the witness based on 

information not contained in the record. Therefore, the rhetorical 

question was not, in and of itself, vouching. 

 13 
The second part of the AUSA's remark during closing

consists of the statement, "I submit to you that they have 

no motivation to lie to you. I submit to you that you can 

determine, using you common sense and your judgment, 

you can determine the credibility of those two [witnesses]. 

. . ." The phrase "I submit to you that," without more, does 

not constitute vouching. Submit means "[t]o commit to the 

discretion of another," or "[t]o yield to the will of another," 

or "to present for determination; as an advocate submits a 

proposition for the approval of the court." BLACK'S LAW 

DICTIONARY 1278 (5th ed. 1979). Thus, the phrase"I 

submit to you that," is merely a method of prefacing an 

argument and does not by itself constitute vouching. The 

phrase fails to meet the vouching standard because it does 

not assure the jury that the witness is credible, but instead 

asks the jury to find that the witness was credible. This is 

proper argument. 

This reading of the phrase is supported by its context. 

The AUSA asked the jury to find that the witness was 

credible "using your common sense and your judgment. 

. . ." Clearly, the prosecutor is merely asking the jury to 

view the evidence in a light most favorable to her case, 

which is proper argument. See Pungitore, 910 F.2d at 1125. 

Walker also challenges the following comment made 

during closing argument by the AUSA regarding the 

testimony of Turner, "What motivation would he have to 

come into this courtroom and lie to you . . . I submit to you 

that Agent Turner would have no motivation to come into 

this courtroom and make these things up." This comment 

is similar to the one analyzed above and is not vouching for 

the same reasons. The rhetorical question merely points to 

a lack of evidence produced by Walker in support of his 

claim that the government witnesses were lying. It is clear 

from the surrounding context that the second sentence 

merely asked the jury to accept the testimony in a light 

most favorable to the government. Thus, it is not vouching, 

but proper argument. Pungitore, 910 F.2d at 1125. 

This is not to say, however, that prosecutors have free 

license to say whatever they please as long as they preface 

their remarks with the phrase, "I submit to you that." This 

phrase is not a magic talisman that wards off allegations of 

 14 
vouching. Moreover, it is poor practice for federal

prosecutors to frequently use rhetorical statements

punctuated with excessive use of the personal pronoun "I". 

Such a practice runs the risk that the words that follow will 

convey the personal view of the prosecutor to the jurors. 

See United States v. Eltayib, 88 F.3d 157, 172-73 (2d Cir. 

1996); United States v. Rivera, 22 F.3d 430, 437-38 (2d Cir. 

1994). We endorse the alternative suggestions of our sister 

circuit in United States v. Nersesian, 824 F.2d 1294, 1328 

(2d Cir. 1987), where the court directs: 

 It is perfectly acceptable practice for a prosecutor to 

 use language in addressing the jury such as "you are 

 free to conclude," "you may perceive that," "it is 

 submitted that," or "a conclusion on your part may be 

 drawn," to mention only a few examples of 

 unobjectionable phraseology. It is obligatory for 

 prosecutors to find careful ways of inviting jurors to 

 consider drawing argued inferences and conclusions 

 and yet to avoid giving the impression that they are 

 conveying their personal views to the jurors. 

Finding no error, the judgment of the district court will 

be AFFIRMED. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 15