Oppen

MEMORANDUM *

The district court correctly found that a single incident of vouching by the prosecutor did not so infect the trial with unfairness that Richard Oppen’s due process rights were violated. The prosecutor’s remarks in this case did not have a “substantial and injurious effect or influence in determining the jury’s verdict,” Brecht v. Abrahamson, 507 U.S. 619, 637 , 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993) (citation and quotation omitted), when viewed in the context of the entire trial, United States v. Young, 470 U.S. 1, 11 , 105 S.Ct. 1038 , 84 L.Ed.2d 1 (1985).

Two of the remarks that Oppen complains of do not constitute vouching. First, when the prosecutor conceded that co-defendants Abrahamson and Fulton probably had a reason to lie because of the plea bargain, but urged the jury to examine other evidence indicating these witnesses were telling the truth, the prosecutor did not inject her personal opinion or reference to evidence outside of the record. Thus, this remark did not constitute vouching under Young. 470 U.S. at 8, 18-19 , 105 S.Ct. 1038 . The prosecutor’s second statement — that sometimes plea bargains happen and the jury should hold the plea bargains…