# UNITED STATES of America, Plaintiff-Appellee, v. Leo RUBIER, Defendant-Appellant > Court of Appeals for the Ninth Circuit · July 10, 1981 · 651 F.2d 628 URL: https://www.frixlaw.com/law-library/cases/9468055 ## Case - **Full name:** 7 Fed. R. Evid. Serv. 1323, 8 Fed. R. Evid. Serv. 999 United States of America v. Leo Rubier - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** July 10, 1981 - **Citations:** 651 F.2d 628 - **Precedential status:** Published - **Opinion:** On rehearing - **Judges:** Van Dusen, Anderson, Boochever - **Cited by:** 11 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9468055 ## Opinion text MEMORANDUM SUR SUPPLEMENTAL PETITION FOR REHEARING-AND RESPONSE TO THAT PETITION PER CURIAM: 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: “I want you to keep in mind when you look at the plea bargain letters in this case there is a personal letter from Ken Kanev, who was the attorney for Wayne Schrader on the previous bank robbery case, to my boss, John Merkel, and then a response from me to Ken Kanev. The two letters explain exactly what the agreement of both parties was. Schrader isn’t required to testify about a particular person, he is required to tell the truth, that’s what he agrees to do, and it clearly specifies that if he doesn’t tell the truth, he’s going to be prosecuted. “The government isn't interested in anything except the truth. He doesn’t have to say there’s a getaway driver in the bank robbery, but if there was, he has to say so and he has to say who it is, and he has to tell truthfully because if it was really Steve Crockett and he says it’s Leo Rubier and the government finds out about it, which they might, he doesn’t know that they might not, what's going to happen to Wayne Schrader? He’s going to get prosecuted for bank robbery, and the agreement clearly lets the government do that and obligates the government to do that. If there was no getaway driver, that agreement required him to say so and nothing else.” 2 *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: “With respect to Mr. Schrader, it is very difficult responding essentially to testimony that, quite frankly, comes straight out of the sewer. His testimony was essentially the testimony of the creator who used his testimony to buy his way out of serving another lengthy prison sentence. You heard the testimony regarding that sentence that Mr. McGhee received in this particular case, that’s the type of sentence that Mr. Schrader was trying to avoid by fingering my client in this particular bank robbery. “Quite frankly, in my view, such testimony based on such a despicable motive is demeaning to this Court and our system of justice. “Mr. Schrader, in and of himself, is almost a national crime wave. He has got three prior felony convictions, one for strong-armed robbery, one for auto theft, one for the robbery of, I think, a bank down in Tacoma. He admitted his involvment in this particular case which he was never prosecuted for. God knows how many other robberies he’s been convicted of.” N.T. 18-19. . The prosecution’s argument continued: “Mr. Riley suggests that maybe Schrader is motivated by some thought of sheltering the real accomplice, and here we get the phantom, the phantom getaway driver is Steve Crockett because we all heard Steve Crockett’s name several times during the trial. If it was Steve Crockett, tell me this, why didn’t anybody mention it before this trial? Why not Schrader? Why not Carol Christie? Maybe you can answer or have an explanation for both of those. “I think Mr. Riley suggested some motivation why they might not want to mention Crockett even though I don’t believe it’s borne out by the evidence. *634 “But the real toughy is why not Rubier? When Rubier is talking to Agent Melson a year and a half ago telling him about the case, why does Rubier say well, Steve Crockett was at work. Do you know why? Because he was at work, and that is what Carol Christie said, Steve was working, and said wherever he was working, some company up in Everett, and that’s why nobody has said until now that Steve Crockett was the getaway driver. He was at work, that’s what the evidence is all about, and that’s all there is to it.” N.T. 38-39. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9468055. Public record. Not legal advice.