No. 97-30192
                                                      D.C. No.

Appeal from the United States District Court
for the Western District of Washington
Jack E. Tanner, District Judge, Presiding

Argued and Submitted
April 7, 1998--Seattle, Washington

Filed June 23, 1998

Before: Procter Hug, Jr., Chief Circuit Judge,
Stephen Reinhardt, Circuit Judge, and Edward C. Reed,
Senior District Judge.*

Opinion by Judge Reinhardt





Robert Gombiner, Assistant Federal Public Defender,
Tacoma, Washington, for the defendant-appellant.

Bruce Miyake, Assistant United States Attorney, Seattle,
Washington, for the plaintiff-appellee.



REINHARDT, Circuit Judge:

Troy Anthony Edwards appeals his conviction on one count
of possession of cocaine with intent to distribute. 21 U.S.C.
SS 841(a)(1) & 841(b)(1)(A). Edwards asserts that the Assis-
tant United States Attorney improperly continued to serve as
the prosecutor notwithstanding the fact that in the middle of
trial he personally found a key piece of physical evidence, the
existence of which was previously unknown to all parties, and
the circumstances surrounding his discovery necessarily
became the subject of inquiry and contention during the
remainder of the trial. Because we conclude that the prosecu-
tor's continued representation of the government constituted
a form of improper vouching that affected the fundamental
fairness of Edwards's trial, we reverse.


In January 1995, police officers in Tacoma, Washington
responded to a report of domestic violence. The first officer
who arrived at the house that was the scene of the altercation
observed Edwards in a car pulling out of the driveway into a
parking space on the side of the house. When the rest of the
officers arrived, Edwards stepped out of the car and walked
toward them. He was immediately arrested on suspicion of
assault. The officers then turned their attention to the victim,
Carbenia Grimes, who had been standing on the front porch
of the house. She was bleeding from the head and was very
upset. After the officers assured her that Edwards was in cus-
tody, she explained that she had been struck in the head with
a handgun. Once Grimes had been treated for her injuries, the
officers proceeded to conduct a more thorough interview, dur-
ing which she informed them that after Edwards had hit her,
she observed him leaving the house with the gun and a black
nylon bag.

On the basis of this information, the police obtained a war-
rant to search the car that Edwards had been in when the
police arrived; they were looking for the gun that had been
used in the assault. During their search, they discovered in the
trunk of the car a black nylon bag containing what appeared
to be crack cocaine. The officers obtained a second warrant
authorizing a search for narcotics. In the bag, they found
seven kilograms of cocaine, and in the car, which was regis-
tered to another person, they found a manila file with docu-
ments bearing Edwards's name, two cellular phones, and
material that had been used to wrap the individual kilograms
of crack. The firearm was never recovered. During a search
of Edwards's home, the officers did not find any drugs, but
found a few items consistent with drug trafficking, including
several scales and some wrapping material.

Edwards was charged with possession of cocaine with
intent to distribute in violation of 21 U.S.C. SS 841(a)(1) &
841(b)(1)(A). He pleaded guilty and received a sentence of
240 months, the statutory minimum. Prior to sentencing, the
district court denied Edwards's motion to withdraw his plea.
On appeal, however, his plea and conviction were vacated
because the district court failed to inform him of either the
statutory minimum sentence for the offense or the nature of
the charges against him, in violation of Fed. R. Crim. P. 11(c).

Edwards's case was remanded to the district court on Janu-
ary 9, 1997. One month later, the district court notified the
parties that a jury trial had been scheduled for March 17. On
March 11, Edwards appeared and withdrew his guilty plea.
The government reindicted him on March 13. The trial was
subsequently rescheduled for May 5. Because each side was
represented by new counsel, the parties jointly sought a con-
tinuance of that trial date on April 28. The district court
refused their request and Edwards's two-day trial began a
week later.

After the jury was sworn in, the district court held a sup-
pression hearing for purposes of determining, among other
things, the admissibility of statements Grimes made to the
police after she had been treated by the medical aid unit. Of
particular interest were Grimes's statements that she had seen
Edwards leave the house with the gun and a black bag.
Grimes was unwilling to testify, however, and without these
statements, the prosecution had only circumstantial evidence
tying Edwards to the black nylon bag -- his fingerprints were
not found either on the bag or on its contents. Although the
government contended that Grimes's statements fell under the
excited utterance exception to the general rule against the
admissibility of hearsay, the district court found that sufficient
time had elapsed between the assault and the statements to
deprive the statements of their spontaneous nature.

Notwithstanding the court's earlier ruling, evidence of
Grimes's statements made it into evidence during the testi-
mony of Officer Patrick Stephen, one of the police officers
who had interviewed Grimes. On cross-examination, defense
counsel engaged in the following exchange with Officer Ste-

       DEFENSE: So basically your contacts [were] more
       with the person who [had] allegedly
       been assaulted, Ms. Grimes, correct?

       OFFICER:  Yes, it was.

       DEFENSE: It's true one of your concerns was
       where a gun might be?

       OFFICER:  Yes.

       DEFENSE: It's a fact, is it not, that you were not
       able to determine from Ms. Grimes
       anything precise about what she had
       observed with respect to where that
       gun had ultimately gone; is that cor-


       OFFICER:  That's correct.

On the basis of this line of questioning, the district court
determined that defense counsel had "opened the door" to
Grimes's statements and accordingly permitted the prosecu-
tion, on redirect, to elicit detailed testimony regarding the
statements, including testimony that Grimes had said that she
saw Edwards leave the house with a black nylon bag. Defense
counsel vigorously objected to the admission of the black bag

On the first day of trial, the prosecution introduced the
black bag and the cocaine into evidence. The witness through
whom the bag was introduced, one of the police officers who
had been present during the search of the car, testified that
there was nothing in the bag that established the identity of its
owner. Accordingly, the principal evidence tying Edwards to
the bag -- aside from the challenged hearsay testimony --
was the fact that it was found in the car that he was driving
when the police officers arrived at the scene. That night, how-
ever, defense counsel received a telephone call from Bruce
Miyake, the Assistant United States Attorney who was prose-
cuting the case, informing him of a new piece of evidence that
he had allegedly just discovered. Miyake told defense counsel
that he had been inspecting the black bag in the presence of
two police officers, and had looked under a piece of card-
board that served as support for the bottom of the bag and
found a bail receipt bearing Edwards's name. The bag had
been in the custody of the Tacoma police (along with the
cocaine) for the two years preceding the trial, but no one had
previously discovered the receipt.

The next day in court, defense counsel moved to exclude
the receipt, arguing that Edwards's right to a fair trial was
being threatened because the opening defense statement, as
well as the entire defense theory, had been premised on the
fact that there was no evidence providing a direct link
between Edwards and the bag. In addition, defense counsel
argued that Miyake's discovery of this evidence created a
problem under the advocate-witness rule because Miyake
would be required to serve as both prosecutor and witness.
Specifically, defense counsel argued:

       This is going to put us in a position where Mr.
       Miyake is going to be functioning in some kind of
       dual capacity here, as both an advocate and a wit-
       ness, which we believe is highly improper and is
       going to impinge on the defendant's right of Sixth
       Amendment confrontation.

       Whether or not he testifies here, it's a big problem
       because we have Mr. Miyake being the discoverer of
       the evidence, not going to be subject to cross-
       examination on the issue. And whether he testifies or
       not, he's in effect going to be kind of a silent witness
       vouching for the authenticity of this piece of evi-
       dence before a jury in a case in which he's trying it
       before this jury.

The district court refused to exclude the evidence, on the
ground that Miyake's testimony was not necessary as there
were two other witnesses who could testify regarding his dis-
covery of the receipt and that the advocate-witness rule was
therefore not applicable. The district court also refused
defense counsel's motions for a mistrial and, in the alter-
native, a continuance that would allow him to look into the
legitimacy of the newly discovered evidence and the circum-
stances under which it was discovered.

Following these rulings, the receipt was introduced into
evidence through the same police officer who had earlier tes-
tified that there was nothing in the bag linking it to Edwards.

Miyake had replaced the receipt in the bottom of the bag and
asked the officer, who had not been present when Miyake
found the evidence, to look under the cardboard. By doing so,
Miyake presented to the jury a re-enactment, albeit undis-
closed, of his own discovery of the evidence with the witness
playing Miyake's role. Miyake directed the scene, first
instructing the officer to pull up the cardboard "and see if
there is anything underneath it." Defense counsel objected,
but the objection was overruled. The following testimony then

       OFFICER: There's some paperwork, some rubber
       bands, a Benadryl.

       MIYAKE: What do you have in your hand there?

       OFFICER: This is a Tacoma Municipal Court

       MIYAKE: Whose name?

       OFFICER: Edwards, Troy Anthony.

On cross-examination, the officer admitted that he had not
seen the receipt during his prior search of the bag.

Testimony regarding the circumstances of the discovery of
the receipt was then elicited from the two police officers who
had been present when Miyake found it. First, Officer Frank
Richmond testified in response to defense questioning as fol-

       DEFENSE: You were present at a time when a
       document was supposedly found in
       this bag; is that right?

       OFFICER: I was present when it was found, yes.

       DEFENSE: Where exactly were you when the doc-
       ument was found?
	   OFFICER: Myself, Mr. Miyake and Officer
       Lowry, we were in a conference room
       of the United States Attorney's Office
       downstairs, and Mr. Miyake was exam-
       ining the bag and the bottom of the
       bag. He was looking down there. There
       was a little strip of paper, a cardboard
       wrapping of some sort, a broken rubber
       band, and there was a gummy bear. He
       removed the small wad of paper,
       opened it in my presence, and there
       was a receipt with the name of Troy
       Edwards on it.

On redirect, Officer Richmond testified that the black bag had
been stored in the evidence room until Edwards's trial.
Miyake then asked him the following questions regarding the

       MIYAKE: Yesterday when the bag was being
       examined, that was the first time that
       you had an opportunity to look at it?

       OFFICER: Yes.

       MIYAKE: To your knowledge, it was the first time
       that anyone else present, including
       myself, had an opportunity to look at it?

       OFFICER: As far as I know.

       MIYAKE: That wasn't planted there, was it?

       OFFICER: Absolutely not.

       MIYAKE: That was found by looking underneath
       the bottom of the bag that kind of pulls

       OFFICER: Yes.

Next to testify about the bag and the receipt was Officer
Lowry. As the case agent, Officer Lowry was seated next to
Miyake throughout the trial and he had also been present
when Miyake found the receipt. Regarding the receipt, Officer
Lowry and Miyake engaged in the following exchange:

       MIYAKE: Who examined the bag down at the
       U.S. Attorney's Office?

       OFFICER: The bag was examined by the [Assis-
       tant] U.S. Attorney in the presence of
       myself and Officer Richmond.

       MIYAKE: At that time, was anything found in the

       OFFICER: Yes, sir, it was.

       MIYAKE: What was that?

       OFFICER: The [Assistant] U.S. Attorney, your-
       self, sir, pulled the board or whatever it
       is at the bottom up, and first found, I
       think it was like a pen or a stationary
       [sic] container that had the name of a
       -- it was empty, but it had like a price
       tag from some unknown store on it, and
       then some little pieces of, like, paper
       from an antihistamine or a cold tablet
       was in there. I believe it was an old
       piece of candy that looked like it had
       slipped under there a long time ago a
       was partially melted, and a wound up
       small piece of paper.

       MIYAKE: What happened after that was discov-

       OFFICER: You unwrapped the paper and saw that
       it was a receipt of some sort from
       Tacoma Municipal Court.

       MIYAKE: After that was done, what happened

       OFFICER: I looked at the receipt. Myself and
       Officer Richmond looked at it at the
       same time when you found it.

       MIYAKE: Had you ever seen that receipt before
       Monday May 5?

       OFFICER: No, sir.

       MIYAKE: When is the first time you saw it?

       OFFICER: When you pulled it out of the bottom
       of the bag, sir.

During closing arguments, Miyake identified the receipt as
a key piece of evidence and noted that it was "the closest
thing to a smoking gun that ties the defendant to the bag." In
turn, defense counsel attempted to cast doubt on the circum-
stances surrounding the discovery of the receipt. In response
to the argument that the discovery of the receipt was suspi-
cious, Miyake spent most of the rebuttal portion of his closing
argument trying to convince the jury that the receipt had not
been planted and that the evidence was reliable. Miyake
observed that the defense's accusation about planting the
receipt demonstrated both the desperation of the defense and
the importance of the evidence. Miyake contended, for exam-

       The only thing they can argue -- they cannot contest
       the fact that there is this receipt with this man's
       name on it, which closely ties him to that bag, along
       with all of the other circumstances, so what do they
       say? Their hand is caught in the cookie jar, so they
       submit it is planted.

He also asserted: "That receipt found in that bag cannot be
denied, that's why they are hollering and screaming about it
so bad."

The jury returned a guilty verdict and Edwards was sen-
tenced to a 262-month term of imprisonment, almost two
years more than he had received following his plea of guilty.2


[1] On appeal, Edwards contends, inter alia, that the district
court should have either excluded evidence of the bail receipt
or disqualified Miyake from continuing to represent the gov-
ernment. We agree that Miyake's continued performance of
the role of the prosecutor in this case violated the principles
upon which both the rule against prosecutorial vouching and
the advocate-witness rule are based.

[2] It is well settled that a prosecutor in a criminal case "has
a special obligation to avoid `improper suggestions, insinua-
tions, and especially assertions of personal knowledge.' "
United States v. Roberts, 618 F.2d 530, 533 (9th Cir. 1980)
(quoting Berger v. United States, 295 U.S. 78, 88 (1935)). A
prosecutor may not impart to the jury his belief that a govern-
ment witness is credible. United States v. McKoy, 771 F.2d
1207, 1210-11 (9th Cir. 1985). Such improper vouching may
occur in at least two ways. The prosecutor may either "place
the prestige of the government behind the witness or. . . indi-
cate that information not presented to the jury supports the
witness's testimony." Roberts, 618 F.2d at 533. When the
credibility of witnesses is crucial, improper vouching is par-
ticularly likely to jeopardize the fundamental fairness of the
trial. United States v. Molina, 934 F.2d 1440, 1445 (9th Cir.

[3] Akin to the rule against vouching is the advocate-
witness rule, under which attorneys are generally prohibited
from taking the witness stand to testify in a case they are liti-
gating. See United States v. Prantil, 764 F.2d 548, 552-53
(9th Cir. 1985). As with vouching, the policies underlying the
application of the advocate-witness rule in a criminal case are
related to the concern that jurors will be unduly influenced by
the prestige and prominence of the prosecutor's office and
will base their credibility determinations on improper factors.

       the rule reflects a broader concern for public confi-
       dence in the administration of justice, and imple-
       ments the maxim that "justice must satisfy the
       appearance of justice." This concern is especially
       significant where the testifying attorney represents
       the prosecuting arm of the federal government.

United States v. Johnston, 690 F.2d 638, 643 (7th Cir. 1982)
(footnote omitted); see also Prantil, 764 F.2d at 553 ("the rule
expresses an institutional concern, especially pronounced
when the government is a lititgant, that public confidence in
our criminal justice system not be eroded by even the appear-
ance of impropriety"). Essentially, the danger in having a
prosecutor testify as a witness is that jurors will automatically
presume the prosecutor to be credible and will not consider
critically any evidence that may suggest otherwise. And, as
the Eleventh Circuit has observed, the policies underlying the
advocate-witness rule:

       apply equally when a prosecutor implicitly testifies
       to personal knowledge or otherwise attains "witness
       verity" in a case in which he appears as an advocate
       for the government. Thus, it would be improper for
       a government attorney who has independent personal
       knowledge about facts that will be controverted at
       the trial to act as prosecutor (1) if he uses that inside
       information to testify indirectly by implying to the
       jury that he has special knowledge or insight, or (2)
       if he is selected as prosecutor when it is obvious he
       is the sole witness whose testimony is necessary to
       establish essential facts otherwise not ascertainable.

United States v. Hosford, 782 F.2d 936, 939 (11th Cir. 1986).

From the cases on vouching and the advocate-witness prob-
lem, it is clear that both of these rules were designed to pre-
vent prosecutors from taking advantage of the natural
tendency of jury members to believe in the honesty of lawyers
in general, and government attorneys in particular, and to pre-
clude the blurring of the "fundamental distinctions" between
advocates and witnesses. Prantil, 764 F.2d at 554. As we have
made clear, "enforcement of the[se] rule[s] is a matter of
institutional concern implicating the basic foundations of our
system of justice." Id. at 553. Although the circumstances of
this case do not fit neatly under either the advocate-witness
rule or the vouching rule, there can be no question that the
policies underlying both rules were directly contravened by
Miyake's continued representation of the government in
Edwards's criminal prosecution. Once the members of the
jury learned that Miyake found the receipt, it is almost certain
that they attributed the authority of Miyake's office to the
receipt's discovery. Moreover, by putting witnesses on the
stand and having them testify regarding the circumstances
under which he found the evidence, Miyake implicitly and
improperly vouched for the accuracy of their testimony.

[4] In this case, all Miyake had to do in order to convey to
the jury his belief -- indeed his representation, based on per-
sonal knowledge -- that the receipt was legitimate and that it
was found on the up-and-up, was simply to continue to play
the role of objective prosecutor. His continued participation in
the trial was, in effect, an implicit guarantee to the jury that
the receipt was a trustworthy piece of evidence, that it had not
been planted, and that the officers who testified regarding the
circumstances of the receipt's discovery were credible, honest
witnesses whose accounts of the events were to be believed.

[5] An improper message conveyed in this manner is even
more prejudicial to the defense than the usual vouching mes-
sage and implicates many of the concerns cited by the Elev-
enth Circuit in Hosford with respect to the prosecutor-as-
witness problem. Miyake's personal involvement in the dis-
covery of the receipt plainly served to inform the jury that he
had special knowledge regarding its discovery. His involve-
ment also necessarily advised the jury that he personally
believed, based on his own observations, that the receipt had
not been planted -- he was there, he saw the bag, he saw the
crumpled up piece of paper lodged underneath the cardboard
bottom, he knew somehow that the bag had not been tam-
pered with. Even more, Miyake directly asked the witnesses
to testify that he had done nothing improper when he discov-
ered the receipt, that neither he nor anyone else had, in fact,
planted it.

[6] Miyake's implicit testimony was devastating to
Edwards's only theory of defense, and it was a blow against
which he had no way to defend. Because Miyake was not sub-
ject to cross-examination, defense counsel did not have a fair
opportunity to cast doubt on the circumstances under which
the receipt was found.

 [7] Our analysis is not affected by the fact that the testi-
mony concerning Miyake's participation in the discovery of
the receipt was elicited in the first instance by defense coun-
sel. Once the receipt was introduced through use of the
unusual procedure employed by the prosecution, defense
counsel had no choice but to explore the circumstances sur-
rounding its discovery. If the prosecution succeeded in caus-
ing the jurors to believe that the receipt had actually been in
the bag all along, they would be almost certain to conclude
that the bag and its contents belonged to Edwards. A thorough
inquiry into the entire matter of the belated appearance of the
receipt was necessary because the police officer who pulled
the receipt out of the bag in front of the jury had testified only
the previous day that there was nothing inside the bag from
which he could identify the owner. Moreover, defense counsel
had in good faith, and on the basis of the discovery he had ini-
tiated and received from the prosecution, taken the position in
opening argument that there was no evidence that linked
Edwards to the bag; and when the receipt was discovered, the
district court refused to grant a mistrial or a continuance.
Under these highly unusual circumstances, the only course of
action available to defense counsel was to emphasize how
suspicious it was that the receipt had suddenly appeared in the
middle of trial.

[8] In all events, the issue of how and why the receipt sud-
denly turned up in the middle of trial was a critical issue in
the case and Miyake was a crucial witness as to that question.
It is irrelevant whether a prosecutor is a crucial witness in a
matter that favors the defense or in a matter that favors the
prosecution, and it is irrelevant which side raises the question
as to which his testimony is important. The advocate-witness
rule applies in all such instances. Moreover, regardless of who
introduced the subject, it was Miyake who asked the officer-
witnesses to testify that no one (obviously including Miyake
himself) had planted the evidence. And it was Miyake who
repeatedly argued that the jury should accept the legitimacy
of the receipt and his discovery of it.


[9] Further, we conclude that the prosecutorial vouching in
this case warrants reversal of Edwards's conviction because
the error can not be characterized as harmless. See Roberts,
618 F.2d at 534-35 (applying harmless error analysis). The
receipt was, as Miyake observed, "a smoking gun. " Without
the receipt, there was very little evidence connecting Edwards
to the black bag. The black bag was found in the trunk of a
car that did not belong to Edwards. His prints were not found
on it. Indeed, the only other evidence even suggesting a link
between Edwards and the black bag was the highly question-
able hearsay testimony regarding Grimes's statement that she
had seen him leave her house with a gun and a black bag, and
the gun was not discovered in the car.

[10] The vouching in this case was far more serious than
in the ordinary circumstances: The prosecutor did not simply
make one or two isolated statements regarding the credibility
of a particular witness. Instead, he repeatedly vouched for the
reliability of a key piece of evidence, both by presenting wit-
nesses to verify that the receipt was not planted and by argu-
ing that it was a bona fide piece of evidence. In effect, Miyake
functioned throughout the second half of Edwards's trial as a
silent witness for the prosecution. Unlike other witnesses,
however, he was not subject to cross-examination and the jury
members never had the opportunity to evaluate for themselves
whether his story was to be believed.

We hasten to add that we do not intend to be unduly critical
of the prosecutor. We are satisfied that Miyake acted in good
faith throughout the proceedings and that he attempted at all
times to conduct himself in an ethical and professional man-
ner. Moreover, the error he made is one that does not reflect
upon his competence. Finally, we note that Miyake was con-
sistently solicitous of defense counsel's repeated requests for
continuances and fair trial procedures. In fact, at one point,
after Miyake volunteered that the defense's request to reopen
cross-examination of a witness was reasonable in light of the
prosecution's failure to disclose relevant discovery material in
a timely manner, the district judge retorted: "I didn't know
you were representing the defendant, Mr. Miyake."


In sum, we conclude that when a prosecutor is personally
involved in the discovery of a critical piece of evidence, when
that fact is made evident to the jury, and when the reliability
of the circumstances surrounding the discovery of the evi-
dence is at issue, the prosecutor's participation in the trial of
the defendant constitutes a form of improper vouching. Hav-
ing determined that the error in this case was not harmless, we




1 On appeal, Edwards's counsel challenges the district court's ruling that
he "opened the door." Because we dispose of this case on the basis of
improper prosecutorial vouching, we need not decide the issue.

2 The increased sentence resulted from the district court's determination
that Edwards was eligible for a sentencing enhancement pursuant to 21
U.S.C. S 851.
3 Given our decision to reverse on this ground, we need not reach
Edwards's other claims of error, including the district court's denial of the
joint request for a pretrial continuance.