Castro-Gaxiola
United States v. Castro-Gaxiola
Opinion
Lead Opinion
MEMORANDUM *
Jose Castro-Gaxiola appeals his conviction for importation of marijuana in violation of 21 U.S.C. §§ 952 , 960 and possession of marijuana with the intent to distribute in violation of 21 U.S.C. § 841 . We have jurisdiction under 28 U.S.C. § 1291 , and we reverse.
At trial, the prosecutor noted discrepancies between Castro’s trial testimony and that of a government agent, and asked Castro, over repeated defense objections, whether the government agent “got it wrong,” “misunderstood,” or if the agent’s testimony was simply “not true.” Because this line of questioning was tantamount to asking Castro whether the government agent was lying, it is reversible error. United States v. Geston, 299 F.3d 1130, 1137 (9th Cir.2002). The responsibility to evaluate witness veracity must rest solely with the jury, and forcing a criminal defendant to comment on the credibility of a government agent impermissibly influences the jury’s determination. United States v. Sanchez, 176 F.3d 1214, 1220 (9th Cir.1999); see also United States v. Henke, 222 F.3d 633, 643 (9th Cir.2000).
This error was not harmless because it undercut the sole defense presented at trial — that of duress.…
Dissenting Opinion
Kozinski, J.
dissenting.
My colleagues and I agree that a prosecutor can’t ask a defendant to comment on the credibility of other witnesses. See, e.g., United States v. Geston, 299 F.3d 1130, 1136 (9th Cir.2002). But here, the prosecutor asked defendant whether the government witness was wrong, not why he was wrong. Defendant thus didn’t have to comment on character or credibility; he only had to answer-as he surely could do-whether the other witness’s responses were accurate. (Incidentally, that’s all he did.)
The question here is admittedly close; we don’t disagree on the law to apply or what that law means; we only part on the interpretation of a few simple questions. Nonetheless, because I don’t see how asking whether an agent “got it wrong” or offered testimony that was “not true”meaning not correct-is the same as asking whether the agent lied, I respectfully dissent.