Perez

facts rebutting it. Further, the comment was speculative—“may be different”—and

did not indicate that the defendant himself would present any “story.”

The prosecutor’s comment also did not constitute impermissible vouching

by suggesting to the jury that she possessed information outside the record that

allowed her to uniquely assess Vega Perez’s credibility. See United States v. Shaw,

829 F.2d 714, 717 (9th Cir. 1987). The prosecutor’s comment did not refer to facts

outside the record—no facts were mentioned. Nor was the statement, “fairly

construed,” based on the prosecutor’s “personal knowledge apart from the

2 evidence” that would be adduced at trial. United States v. Saunders, 641 F.2d 659,

664 (9th Cir. 1980) (quoting Orebo v. United States, 293 F.2d 747, 749 (9th Cir.

1961)). To the contrary, the prosecutor said she was going to, and did, present to

the jury at trial evidence which she summarized during her opening statement. For

the same reasons, the prosecutor’s comment did not violate, as Vega Perez

contends, his “due process and fair trial rights not to be convicted but upon

evidence introduced properly at trial.”

2. Vega Perez’s Jewell instruction…