Lopez-Avila

Mark F. Williman, Tucson, AZ, for the defendant-appellant.

Before: JOHN T. NOONAN and CARLOS T. BEA, Circuit Judges, and DONALD E. WALTER, Senior District Judge. [*]

BEA, Circuit Judge:

On the second day of trial in this drug trafficking prosecution, during the cross-examination of Defendant-Appellant Aurora Lopez-Avila, the prosecutor read back supposed testimony of Lopez-Avila from her earlier change of plea hearing. What he read back seemed to contradict Lopez-Avila's earlier statements on direct examination. Using this supposed prior testimony, the prosecutor—Assistant U.S. Attorney (AUSA) Jerry R. Albert, of the U.S. Attorney's Office for the District of Arizona—accused Lopez-Avila of having lied to the federal magistrate presiding at an earlier hearing.

But the prosecutor's quotation was only part of what he represented was a question asked the defendant under oath by the magistrate judge. It was a half-truth. Without telling the court or defense counsel, the prosecutor presented to court and counsel an altered version of the prior hearing's question and answer, and the altered version of such dialogue made it appear as though Lopez-Avila had contradicted herself on a…