UNITED STATES of America, Plaintiff-Appellee, v. Leo RUBIER, Defendant-Appellant

651 F.2d 628 7 Fed. R. Evid. Serv. 1323 , 8 Fed. R. Evid. Serv. 999 UNITED STATES of America, Plaintiff-Appellee, v. Leo RUBIER, Defendant-Appellant. No. 80-1110. United States Court of Appeals, Ninth Circuit. Submitted Nov. 6, 1980. Decided Feb. 19, 1981. Rehearing and Rehearing En Banc Denied July 10, 1981. Stewart P. Riley, Seattle, Wash., on briefs, for defendant-appellant. J. Ron Sim, Asst. U. S. Atty., Seattle, Wash., on briefs, for plaintiff-appellee. Appeal from the United States District Court for the Western District of Washington. Before VAN DUSEN, * ANDERSON and BOOCHEVER, Circuit Judges. PER CURIAM: 1 This appeal is from a February 15, 1980, judgment and commitment of defendant-appellant, imposing a 10-year sentence to be served consecutively to the Montana state sentence presently being served by him, with eligibility for parole under 18 U.S.C. § 4205 (b)(2) at such time as the Parole Commission may determine. The jury found Leo Rubier guilty of (1) bank robbery and assault, putting in jeopardy the life of bank employees by the use of a gun, in violation of 18 U.S.C. § 2113 (a) and (d); and (2) aiding and abetting such crimes, in violation of 18 U.S.C.…

This appeal is from a February 15, 1980, judgment and commitment of defendant-appellant, imposing a 10-year sentence to be served consecutively to the Montana state sentence presently being served by him, with eligibility for parole under 18 U.S.C. § 4205 (b)(2) at such time as the Parole Commission may determine. The jury found Leo Rubier guilty of (1) bank robbery and assault, putting in jeopardy the life of bank employees by the use of a gun, in violation of 18 U.S.C. § 2113 (a) and (d); and (2) aiding and abetting such crimes, in violation of 18 U.S.C. § 2 , on the basis that he had driven the “getaway” car (R.T. 27). We affirm.

The only evidence directly implicating Rubier was the testimony of Wayne Schrader (R.T. 21-34 & 41). On cross-examination of Schrader, defense counsel sought to show bias by revealing Schrader’s immunity-for-testimony agreement with the Government (R.T. 54-62) and that Schrader was a heroin addict (R.T. 40-43). Defense counsel’s questions, which were mostly lengthy statements, show that he was reading or paraphrasing the two writ *630 ten letters containing the agreement (R.T. 56-58, 60-62) and thus selectively putting parts of the agreement before…

dissenting:

I respectfully dissent.

As indicated in the majority opinion the only evidence directly implicating Rubier in the robbery and assault was the testimony of Wayne Schrader. Without that testimony Rubier could not have been convicted. Thus Schrader’s credibility was at the core of the government’s case.

On cross examination Schrader testified to his understanding of the bargain, whereby the government agreed not to prosecute him for the robbery in exchange for his cooperation in the robbery investigation and his testimony against Rubier. To bolster Schrader’s credibility the prosecution sought to admit into evidence letters from the prosecutor and Schrader’s attorney setting forth the agreement those two attorneys had reached.

Schrader testified that he had never seen the agreement worked out between his attorney and the United States Attorney [TR 62]. When asked if his attorney had “fully laid down to you the details of the agreement that had been worked out,” Schrader replied: “Well, more or less.”

In its brief on appeal the government explains why it believes the letters were relevant, stating:

In the absence of some testimony that Schrader had either read the…

MEMORANDUM SUR SUPPLEMENTAL PETITION FOR REHEARING-AND RESPONSE TO THAT PETITION

The belatedly filed transcript of the closing argument in this, case, secured by defense counsel after filing of this court’s Per Curiam Opinion, discloses that defense counsel concentrated his argument on attacking the testimony of the prosecution witness Schrader, who had been granted immunity. 1 In rebuttal, the prosecutor argued as follows at N.T. 37-38:

*634 We note that counsel for defendant made no objection whatever to this rebuttal argument of the prosecutor at the time of the closing arguments to the jury and made no request for any curative instructions to the jury on the issue of alleged vouching. Furthermore, the issue of vouching was not raised in any argument presented to the panel in this case.

. N.T. 18 ff., including the following:

N.T. 18-19.

. The prosecution’s argument continued:

N.T. 38-39.