UNITED STATES of America, Plaintiff-Appellee, v. Leo RUBIER, Defendant-Appellant

BOOCHEVER, Circuit Judge,

dissenting:

I respectfully dissent.

As indicated in the majority opinion the only evidence directly implicating Rubier in the robbery and assault was the testimony of Wayne Schrader. Without that testimony Rubier could not have been convicted. Thus Schrader’s credibility was at the core of the government’s case.

On cross examination Schrader testified to his understanding of the bargain, whereby the government agreed not to prosecute him for the robbery in exchange for his cooperation in the robbery investigation and his testimony against Rubier. To bolster Schrader’s credibility the prosecution sought to admit into evidence letters from the prosecutor and Schrader’s attorney setting forth the agreement those two attorneys had reached.

Schrader testified that he had never seen the agreement worked out between his attorney and the United States Attorney. When asked if his attorney had “fully laid down to you the details of the agreement that had been worked out,” Schrader replied: “Well, more or less.”

In its brief on appeal the government explains why it believes the letters were relevant, stating:

If the matter had been left as it was at the end of cross-examination, the jury could have believed that Schrader had simply traded immunity for testimony against Rubier. It was important for the jury to understand that had Schrader’s testimony been false, he would have lost his immunity.

In the absence of some testimony that Schrader had either read the letters or had all of their terms read or explained to him, the fact that the letters embodied an agreement between the attorneys that the testimony be truthful was not relevant for the purpose of showing that Schrader so understood the agreement. Without testimony indicating that Schrader was aware of the portent of the letter agreement requiring truthfulness, the letters were inadmissible. Considered by themselves, letters between the attorneys have no tendency to make the assertion that Schrader, as opposed to his attorney, had agreed to testify truthfully or lose the benefit of prosecutorial immunity “more probable or less probable than it would be without the evidence.” 1 An instrument purporting to have been executed by an attorney-in-fact or other agent is not admissible for any purpose absent proof of the agent’s authority. 2 Such authentication is necessary to . establish the relevancy of the document. 3 While a defendant’s attorney may enter into negotiations with the *635 district attorney pertaining to a plea bargain, no agreement which they reach can have any effect on the defendant until he or she has knowledge of the existence of its terms. 4

In Jones v. United States, 423 F.2d 252 at 255, 256 (9th Cir.), cert. denied, 400 U.S. 839 , 91 S.Ct. 79 , 27 L.Ed.2d 73 (1970), we stated:

A guilty plea is not necessarily invalid because it rests upon a bargain with the prosecutor, [citation] but knowledge of the existence of such an agreement, its terms, and the negotiations which led to it, are crucial to the effective discharge of the court’s responsibility to assure that the plea is not accepted unless it is voluntarily made.... Moreover, because of the prevalence of such agreements, the judge on his own initiative should explore, on the record, whether such an agreement exists, and, if so, its terms, how they were arrived at, the defendant’s understanding of them, and their influence upon his decision to plead guilty, [footnote omitted]

Rubier’s trial counsel made an appropriate objection on the basis of Schrader’s lack of familiarity with the communications. 5 The letters being irrelevant, it was error to admit them over counsel’s objection.

The government does not argue that admission of the letters was harmless error. In fact, as indicated above, it considers it of importance for the jury to have understood that had Schrader’s testimony been false, he would have lost his immunity.

In addition, I note that the letter from Schrader’s attorney vouched for the truthfulness of Schrader’s testimony by stating: “he will testify truthfully before the grand jury and at trial (if necessary) against Leo Rubiera, [sic]. ... ” This is analogous to the circumstances involved in United States v. Roberts, 618 F.2d 530, 536 (9th Cir. 1980), where the prosecution similarly vouched for the truthfulness of a witness’ testimony. The record in this case has been supplemented with the transcription of the final arguments. As indicated in the portions of the prosecutor’s argument quoted in the Memorandum for Supplemental Petition for Rehearing & Response to that Petition the government exacerbated the error in admitting the letters by using them to vouch for Schrader’s credibility. As we stated in Roberts :

A strong case can be made for excluding a plea agreement promise of truthfulness. The witness, who would otherwise seem untrustworthy, may appear to have been compelled by the prosecutor’s threats and promises to come forward and be truthful. The suggestion is that the prosecutor is forcing the truth from his witness and the unspoken message is that the prosecutor knows what the truth is and is assuring its revelation.

Conveying this message explicitly is improper vouching. Lawn v. United States, 355 U.S. 339 , 359-60 n.15, 78 S.Ct. 311 , 323 n.15, 2 L.Ed.2d 321 (1958), Gradsky v. United States, 373 F.2d 706, 710 (5th Cir. 1972) (improper to imply government checks for credibility before using witness). We conclude that conveying it by implication is equally improper.

The prosecutor may not tell the jury that the government has confirmed a wit *636 ness’s credibility before using him. Gradsky v. United States, supra. He should be no more able to indicate that the government has taken steps to compel the witness to be truthful. Both of these arguments involve improper vouching because they invite the jury to rely on the government’s assessment that the witness is testifying truthfully, [citations omitted]

Since the letters were improperly admitted I find no reason to consider whether the use of them for “vouching” in the final argument need be recognized as plain error.

The use of a letter by a witness’ attorney vouching for the truthfulness of testimony certainly affects substantial rights. 6 When the voucher by Schrader’s attorney is coupled with the contents of the United States Attorney’s letter stating that Schrader would be subject to prosecution if he did not testify truthfully “whether it hurts the government’s case or not,” 7 and the use of the letters in final argument, I conclude that the erroneous introduction of the letters is reversible.

. Federal Rule of Evidence 401 states:

“Relevant evidence”. means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

. See Grey v. First National Bank in Dallas, 393 F.2d 371, 386 (5th Cir.), cert. denied, 393 U.S. 961 , 89 S.Ct. 398 , 21 L.Ed.2d 374 (1968); Cienki v. Rusnak, 398 Ill. 77 , 75 N.E.2d 372, 377 (1947) (letter written by seller’s attorney to buyer’s attorney releasing seller’s interest in land was not admissible absent showing of attorney’s authorization to execute a conveyance).

. Palfy v. Rice, 473 P.2d 606, 612 (Alaska 1970); see generally, E. Cleary, McCormick on Evidence § 218, at 543-44 (2d ed. 1972).

. See Scott v. United States, 419 F.2d 264, 274 (D.C.Cir. 1969); Bailey v. MacDougall, 392 F.2d 155 , 159 n.11 (4th Cir.) cert. denied, 393 U.S. 847 , 89 S.Ct. 133 , 21 L.Ed.2d 118 (1968); Todd v. Lockhart, 360 F.Supp. 950, 954 (E.D.Ark. 1973), rev’d on other grounds, 490 F.2d 626 (8th Cir. 1974); Cooke v. Swope, 28 F.Supp. 492, 493 (W.D.Wash. 1939), aff'd, 109 F.2d 955 (9th Cir. 1940).

. "MR. RILEY: Your Honor, I’m not sure there is any basis for doing it under the rules of evidence. That’s my point. This particular witness, apparently, isn’t familiar with this particular communication. He is certainly familiar with a lot of the contents and I think his testimony basically has been pretty consistent with — in fact, extremely consistent with the contents of the letters, but he didn’t initial them or sign them or anything like that, and I just don’t see that there’s any basis under the rules for admitting them.” [Tr. 66]

. Federal Rule of Criminal Procedure 52(a) defines harmless error as:

Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.

. See majority opinion, supra, note 1.