USA v. Fuhrer et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
United States of America v. Filthy Fuhrer, et al.
Case No. 3:19-cr-00026-TMB-SAO
By: 	THE HONORABLE TIMOTHY M. BURGESS
PROCEEDINGS: 	ORDER FROM CHAMBERS
Yesterday 	afternoon 	during 	trial, 	counsel 	for 	Defendant 	Glen 	Baldwin 	objected 	to 	the
Government’s redirect of a cooperating witness. Specifically, counsel objected to the Government
asking the cooperating witness on redirect about the truthfulness requirement in his plea
agreement. In opening statements and on cross-examination, defense counsel, including Baldwin’s
counsel, had attacked the cooperating witness’s credibility in part because of his plea agreement.
These attacks were consistent with the defendants’ theory, advanced in opening statements and
throughout trial, that the cooperating witnesses are lying in hopes of getting leniency from the
Government.
Although Baldwin’s counsel did not state the legal basis for his objection, the Court interpreted
the objection as asserting the Government was improperly vouching for its witness. At the Court’s
direction, the parties submitted briefing on the issue.1 In requesting briefing, the Court explained
the Government has questioned several cooperating witnesses about the truthfulness requirements
in their plea agreements during both direct and redirect without drawing objections. The Court
asked the parties for their positions on (1) whether this questioning was proper and (2) if it were
improper, whether the Court should give a curative instruction to the jury to mitigate any potential
harm to the defendants.2
Having considered the briefing, the Court finds the Government has not improperly vouched for
its cooperating witnesses’ credibility by questioning the witnesses during direct and redirect about
the truthfulness requirements in their plea agreements.
Beginning with redirect, the Ninth Circuit has “made it clear that references to requirements of
truthfulness in plea bargains do not constitute vouching when the references are responses to
attacks on the witness’ credibility because of his plea bargain.”3 Thus, it was proper for the
Government to ask the cooperating witness on redirect about the truthfulness requirement in his
plea agreement in response to vigorous attacks on his credibility from the defense on cross-
1 	Dkt. 	1133 	(Order); 	Dkt. 	1135 	(Baldwin’s 	Memorandum); 	Dkt. 	1136 	(Government’s
Memorandum); Dkt. 1137 (King’s Notice of Joinder).
2 See Dkt. 1133.
3 United States v. Shaw, 829 F.2d 714, 716 (9th Cir. 1987).
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examination that were, in part, based on his plea agreement. Baldwin’s objection fails for this
reason.
As to direct examination, while “[e]liciting testimony on direct examination that a witness entered
into a plea agreement that requires truthful testimony may constitute vouching . . . referring to a
plea agreement’s mandate to be truthful does not constitute vouching for a witness if such
references are ‘made in response to an attack on the witness’s credibility because of his plea
bargain,’ including an attack in defense counsel’s opening statement.”4 Noting that the defendants
have not objected to the Government questioning witnesses on direct examination about the
truthfulness requirements in their plea agreements, the Court finds this questioning was proper,
first because the defendants had attacked the credibility of these cooperating witnesses in opening
statements5 and second because the Government did not refer to any extra-record evidence that it
could verify or ensure the witnesses are telling the truth.6 Consequently, the Court DENIES Glen
Baldwin’s request to exclude or redact certain cooperating witnesses’ plea agreements admitted as
Government Exhibits 19, 22, and 26.7
Going forward, the Court will continue to permit the Government to question witnesses on direct
and redirect about the truthfulness requirements in their plea agreements so long as defense counsel
has attacked the credibility of the witness, either in opening statements or on cross-examination,
at least in part because of the witness’s plea agreement. The Government should be prepared to
point to the record in the event there is a dispute about whether the credibility of the witness has
been attacked.
Finally, although the Court finds the Government has not improperly vouched for its witnesses,
the Court nevertheless intends to instruct the jury as follows to mitigate any possible suggestion
of vouching:
You have heard references to witnesses that have agreements with the Government
that require the witness to tell the truth. It is important for you to understand that
4 United States v. Dorsey, 677 F.3d 944, 953 (9th Cir. 2012) (quoting United States v. Monroe,
943 F.2d 1007, 1013–14 (9th Cir.1991)) (emphasis added).
5 Monroe, 943 F.2d at 1014 (“Here, the reference to the agreement came only after Bender’s
credibility clearly had 	been attacked by Monroe in his opening statement. Under those
circumstances, it was Monroe who created the risk that the government’s reference to the truthful
testimony requirement ‘will be interpreted as an attempt to establish truthfulness and suggest
verifiability.’”) (quoting Shaw, 829 F.2d at 717).
6 United States v. Brooklier, 685 F.2d 1208, 1218 (9th Cir. 1982) (explaining that in United States
v. Roberts, 618 F.2d 530 (9th Cir. 1980), “the United States Attorney argued to the jury that a
government witness testified truthfully because he was afraid of violating his plea agreement, and
that the government, to ensure he would testify truthfully, placed a detective in court when the
witness testified. We reversed the conviction primarily because the statement that the detective
was monitoring the witness improperly referred to facts outside the record.”).
7 Dkt. 1135 at 1, 4.
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the Government cannot vouch for the truth of the testimony of any witness and that
you as jurors are the sole and exclusive judges of the credibility of all witnesses.8
The defendants may propose any alternative or additional language they would like the Court to
consider.9 The Court will give this instruction along with Ninth Circuit Model Instructions 3.9
(directing the jurors to “examine the testimony of [cooperating witnesses] with greater caution
than that of other witnesses) and 6.9 (informing jurors that they “may believe everything a witness
says, or part of it, or none of it” and identifying factors to consider in making that determination)
before the Government calls its next witness.
Entered at the direction of the Honorable Timothy M. Burgess, United States District Judge.
DATE: April 12, 2022.
8 This instruction is taken in part from Brooklier, 685 F.2d at 1219 (“The court also told the jury
that the government could not vouch for the truth of the testimony and that the jurors were the sole
and exclusive judges of the credibility of all witnesses. These instructions adequately dispelled
any suggestion of vouching.”).
9 While Glen Baldwin asked that the Court “give a curative instruction to the jury regarding the
vouching testimony elicited by the government,” he did not propose an instruction. Dkt. 1135 at 4.
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