Witness plea agreement and sentence reduction order admitted at trial of co-defendant constitute improper vouching

EVIDENCE United States v. Harlow, No. 04-8074, ___ F.3d ___ (10th Cir. Apr. 26, 2006)(Wyoming). Appeal of conviction for conspiracy to possess and distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). HELD: District court erred by admitting plea agreement and sentence reduction order for cooperating witness as evidence at trial of co-defendant. Based on language in plea agreement that sentence reduction could only occur upon court’s evaluation of truthfulness, completeness, and reliability of testimony provided by witness, sentence reduction order entered by judge as part of that agreement confirmed that judge found witness testimony truthful. Thus, order and associated plea agreement constituted improper vouching for witness truthfulness by prosecutor and judge. Nonetheless, error was harmless because district court issued instruction directing jury not to construe that evidence as his endorsement of witness truthfulness. Read the opinion here.