United States v. Jerry Kenney

The appellant was convicted on five counts of a seven-count indictment charging him with mail fraud, interstate travel with the intent to facilitate an unlawful activity, and conspiracy for his role in a kickback scheme involving transactions related to the Washington Public Power Supply System (“WPPSS”). He seeks reversal on the basis of the court reporter’s loss of a portion of the trial transcript, the disqualification of trial counsel, the testimony of an Assistant United States Attorney, and the Supreme Court’s decision in McNally v. United States, 483 U.S. 350 , 107 S.Ct. 2875 , 97 L.Ed.2d 292 (1987). We reverse the appellant’s mail fraud convictions on the basis of McNally , and affirm on the remaining counts.

FACTS AND PROCEEDINGS BELOW

This case arose out of a $12.3 million fixed-cost fire protection contract between WPPSS and Cosco/Zurn Industries, Inc. (“Cosco”). The appellant was an independent sales representative for several companies that were involved in the WPPSS project, including Cosco. While the appellant’s primary responsibility with Cosco was securing contracts with WPPSS, he was also involved in finding subcontractors for Cosco to perform work related to…

dissenting:

While I agree with much of the court’s disposition, I am unable to join part C thereof. Having an Assistant U.S. Attorney who worked on the case testify before the jury is almost always an unwise and perilous exercise as it raises serious temptations for prosecutorial overreaching. In this case the temptation proved too great; it denied the defendant a fair trial.

There are two things a prosecutor may not do while testifying. The first is vouch for a witness; the second is express a personal opinion on the defendant’s guilt or the strength of the case against him. United States v. McKoy, 771 F.2d 1207, *323 1210-11 (9th Cir.1985). In this case Assistant U.S. Attorney Bruce Carter did both.

A careful reading of the record finds Carter testifying that Silverman, a key government witness, was cooperative, RT 554-55, that he never changed his story, RT 551-52, and that the U.S. Attorney’s Office routinely verifies the statements of its witnesses, RT 553-54. Carter stopped just short of pinning a Boy Scout Merit Badge on Silverman; his accolades could not help but persuade the jury that they ought to believe Silverman because an experienced and efficient prosecutor like…

911 F.2d 315 30 Fed. R. Evid. Serv. 1159 UNITED STATES of America, Plaintiff-Appellee, v. Jerry KENNEY, Defendant-Appellant. No. 86-1296. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 14, 1989. Decided Aug. 14, 1990. Francisco Leon, Donau & Bolt, Tucson, Ariz., for defendant-appellant. Joanne Y. Maida, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee. Appeal from the United States District Court for the District of Arizona. Before BRUNETTI, KOZINSKI and NOONAN, Circuit Judges. BRUNETTI, Circuit Judge: 1 The appellant was convicted on five counts of a seven-count indictment charging him with mail fraud, interstate travel with the intent to facilitate an unlawful activity, and conspiracy for his role in a kickback scheme involving transactions related to the Washington Public Power Supply System ("WPPSS"). He seeks reversal on the basis of the court reporter's loss of a portion of the trial transcript, the disqualification of trial counsel, the testimony of an Assistant United States Attorney, and the Supreme Court's decision in McNally v. United States, 483 U.S. 350 , 107 S.Ct. 2875 , 97 L.Ed.2d 292 (1987). We reverse the appellant's mail…