United States v. Rex Harrison ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-10391
Plaintiff-Appellee, D.C. No.
v. 1:07-CR-00384-
REX T. HARRISON,  DAE-1
Defendant-Appellant.
ORDER AND
AMENDED
 OPINION
Appeal from the United States District Court
for the District of Hawaii
David A. Ezra, District Judge, Presiding
Argued and Submitted
May 13, 2009—Honolulu, Hawaii
Filed August 19, 2009
Amended October 9, 2009
Before: Alex Kozinski, Chief Judge, Jay S. Bybee and
Consuelo M. Callahan, Circuit Judges.
Opinion by Chief Judge Kozinski;
Partial Concurrence and Partial Dissent by Judge Bybee
14403
14406 UNITED STATES v. HARRISON
COUNSEL
Edward H. Kubo, Jr., United States Attorney; Lawrence L.
Tong, Assistant United States Attorney, Honolulu, Hawaii for
plaintiff-appellee the United States of America.
Peter C. Wolff, Jr., Office of the Federal Public Defender,
Honolulu, Hawaii for defendant-appellant Rex T. Harrison.
ORDER
The opinion is amended to replace the first two sentences
of the first full paragraph on page 11321 of the slip opinion
with the following:

Appellant’s Petition for Rehearing and for Rehearing En
Banc is otherwise denied. See Fed. R. App. P. 35, 40. Judge
Bybee would grant the petition.
No further petitions for rehearing or rehearing en banc may
be filed.
UNITED STATES v. HARRISON 14407
OPINION
KOZINSKI, Chief Judge:
Everyone could have done more to protect defendant’s
rights at trial.
I
This is a tale of two Rex Harrisons. The first is the Harrison
of Officers Jenkins and Kirby, two military police officers,
who describe a man so drunk he could barely stand straight.
A man who reeked of alcohol at a distance of six feet. Who
snarled, “I don’t think I should have to give you shit” when
asked for his driver’s license. A man who punched Officer
Jenkins in the face and told Officer Kirby, “I’m not afraid of
you and I’m not afraid of your fucking dog.”
The second Rex Harrison is the man of his own telling.
This Harrison had only “a couple of beers with dinner.” When
confronted by the officers, he humbly apologized for trespass-
ing. This Harrison was calm and non-confrontational; he had
the milk of human kindness by the quart in every vein. He
certainly never hit anyone.
The jury must have believed the first story because it con-
victed Harrison of two counts of assaulting a federal officer.
He appeals.
II
Except where otherwise noted, Harrison’s trial lawyer
failed to object to the errors his new lawyer raises on appeal.
We therefore review for plain error, asking the usual ques-
tions, including whether there was prejudice. See, e.g., United
States v. Recio, 371 F.3d 1093, 1100 (9th Cir. 2004).
14408 UNITED STATES v. HARRISON
Count 1
A. Harrison was convicted of assaulting Officer Jenkins
and inflicting “bodily injury.” 18 U.S.C. § 111(b). He com-
plains that the prosecutors engaged in improper questioning
during cross-examination and improper “vouching” during
closing arguments.
[1] It’s black letter law that a prosecutor may not ask a
defendant to comment on the truthfulness of another witness,
United States v. Combs, 379 F.3d 564, 572 (9th Cir. 2004),
United States v. Geston, 299 F.3d, 1130, 1136 (9th Cir. 2002),
but the prosecutors here did just that. One prosecutor asked:
“You’re saying that [they’re] going on the stand, swearing an
oath to testify to the truth and then lying . . . ?” He even pitted
his own credibility against Harrison’s, asking, “So I’m in the
conspiracy against you, is that right?” These were not isolated
incidents: Improper questioning was an organizational theme
for the prosecutor’s entire cross-examination.
[2] The vouching was similarly patent. The government
was entitled to rebut Harrison’s suggestion that Officers Jen-
kins and Kirby were motivated to lie, but it crossed the line
when one prosecutor mentioned during closing that the offi-
cers had been promoted “with no adverse action whatsoever”
after an internal military investigation. This clearly “sug-
gest[ed] that information not presented to the jury,” but avail-
able to the investigators, supported the officers’ testimony.
United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir.
1993). And it would be hard to find a clearer case of “placing
the prestige of the government behind a witness,” id., than the
prosecutor’s statement that the “[g]overnment stands behind”
Officers Jenkins and Kirby.
The government concedes the impropriety of many of these
statements, but points out that the prosecutors were Special
Assistant United States Attorneys on loan from the military.
That’s no excuse at all; when the United States Attorney
UNITED STATES v. HARRISON 14409
endows lawyers with the powers of federal prosecutors, he
has a responsibility to properly train and supervise them so as
to avoid trampling defendants’ rights. Indeed, everyone
involved could have done better: The defense attorney should
have objected as soon as he saw the prosecutors step out of
line. And the respected and experienced district judge should
not have tolerated this protracted exhibition of unprofessional
conduct.
[3] Nevertheless, Harrison must also show prejudice, and
he hasn’t. Harrison insists the government’s case was “not
overwhelming, but consisted of no more than a credibility
contest . . . .” But the government presented physical evidence
of Harrison’s guilt, including an injury to one of his knuckles.
Harrison admitted making a spurious 911 stolen-car call when
he knew full well his car was with the MPs. A state police
officer who saw Harrison later that night testified to his
extreme intoxication. And both the state police officer and a
third MP testified that Harrison used profanity and struggled
while being arrested. After four witnesses undermined Harri-
son’s credibility, we cannot say the prosecutors’ misconduct
“affected the outcome of the district court proceedings.”
United States v. Olano, 507 U.S. 725, 734 (1993). Any preju-
dice from the vouching was also ameliorated by the judge’s
belated curative instruction. See Combs, 379 F.3d at 575.
Harrison relies on Geston and Combs, but they are not on
point. Combs reduced to a pure credibility contest between a
defendant and two witnesses. 379 F.3d at 573. In Geston,
because a prior trial resulted in a hung jury, we inferred that
the case was a close one and thought the prosecutor’s miscon-
duct might well have tipped the balance. 299 F.3d at 1136.
[4] B. Harrison claims the jury should not have been
instructed that it could infer consciousness of guilt from his
flight. Such an instruction is proper only if the evidence sup-
ports “a chain of unbroken inferences” from (1) defendant’s
behavior to flight; (2) flight to consciousness of guilt; (3) con-
14410 UNITED STATES v. HARRISON
sciousness of guilt to consciousness of guilt concerning the
crime charged; and (4) consciousness of guilt concerning the
crime charged to actual guilt of the crime charged. United
States v. Dixon, 201 F.3d 1223, 1232 (9th Cir. 2000). Courts
consider “whether the defendant knew the police suspected
him of a particular crime” and “whether the defendant fled
immediately after the crime.” Id. Harrison objected at trial, so
we review for abuse of discretion. United States v. Perkins,
937 F.2d 1397, 1401 (9th Cir. 1991).
[5] With respect to count 1, all the necessary inferences
were supported. Having struck an officer in the face, Harrison
would have been aware that police suspected him of a crime.
And Harrison surely did flee the scene. Harrison claims the
chain of inferences was broken when he reported his car as
stolen. But the jury could have inferred that he made a false
report in an effort to set up an imaginary car thief as the fall-
guy for his crimes. Nor can we say the instruction was invalid
because the jury might have mistakenly thought it applied to
Harrison’s first attempt to run away, prior to striking Officer
Jenkins. The instruction permitted the jury to draw a reason-
able inference; it did not require an unreasonable one. No rea-
sonable jury would have inferred that Harrison was conscious
of guilt because he fled prior to committing the crime.
[6] C. Harrison suggests that the multiple errors at trial
deprived him of his due process and fair trial rights and urges
us to reverse under a “cumulative effects” theory. But the
errors did not render the trial “fundamentally unfair.” Parle v.
Runnels, 505 F.3d 922, 927 (9th Cir. 2007). The prosecutor’s
improper questioning only highlighted a credibility judgment
that Harrison was himself asking the jury to make. And the
prosecutor’s vouching, when paired with a curative instruc-
tion, did not make the defense “far less persuasive than it
might [otherwise] have been.” Id. (quoting Chambers v. Mis-
sissippi, 410 U.S. 284, 294 (1973)).
UNITED STATES v. HARRISON 14411
Count 2
Harrison was also convicted of forcibly assaulting, resist-
ing, opposing, impeding, intimidating, or interfering with
Officer Kirby. 18 U.S.C. § 111(a). Harrison challenges his
conviction based on the same prosecutorial misconduct and an
additional erroneous jury instruction.
A. The misconduct once again was not prejudicial. To be
sure, because there were no witnesses other than Harrison and
Officer Kirby, this part of the case did reduce to a credibility
contest akin to Geston or Combs. But once the jury believed
that Harrison struck Officer Jenkins, it was not going to
believe Harrison when he claimed he was a perfect gentleman
towards Officer Kirby.
[7] B. The district court told the jury it could convict if “the
defendant intentionally used force in assaulting, resisting, or
intimidating” Officer Kirby, and it clarified that “[t]here is use
of force when one person intentionally physically . . . intimi-
dates . . . another.” That was plain error. While “a defendant
may be convicted of violating section 111 if he . . . uses any
force whatsoever against a federal officer,” including a mere
threat of force, United States v. Sommerstedt, 752 F.2d 1494,
1496 (9th Cir. 1985), the instruction here defined “force” out
of the statute entirely by equating it with physical intimida-
tion. As instructed, the jury could have convicted Harrison for
no more than purposefully standing in a way that emphasized
his size and strength. The instruction was likewise improper
under United States v. Chapman, which clarified after Harri-
son’s trial that section 111 always requires proof of an assault.
528 F.3d 1215, 1222 (9th Cir. 2008). Just as physical intimi-
dation need not involve use of force, it will not always consti-
tute assault.
[8] We cannot find the “strong and convincing evidence”
of force or assault that might excuse this instruction under
plain error review. See United States v. Alferahin, 433 F.3d
14412 UNITED STATES v. HARRISON
1148, 1158 (9th Cir. 2006). The government suggests that the
jury’s verdict on the third (state law) count of the indictment
shows that it necessarily found the missing elements, but that
count involved conduct at an entirely different time.
Although the evidence under count 2 would have been suf-
ficient to support the jury’s verdict, had the jury been properly
instructed, it was ambiguous. Officer Kirby testified that she
would not have ordered her dog to attack “without [Harrison]
saying that he was going to do something to me,” but she also
said she was “not a hundred percent confident that he said he
was going to attack me.” And while at times Officer Kirby
said that Harrison “started running” in her direction, at other
times she said he merely “looked like he was starting to come
running.” Certainly it did not compel a finding of “force”
under Sommerstedt—much less “assault” under Chapman.
[9] Because Harrison might not have been convicted absent
error below, we reverse with respect to count 2. We need not
decide whether the court erroneously instructed the jury that
it could infer consciousness of guilt under count 2 from Harri-
son’s flight after his encounter with Officer Kirby.
III
[10] Harrison also challenges the district court’s enhance-
ment of his sentence for lying on the stand. We review for
clear error, asking whether the district court could have found
(1) that Harrison gave false testimony, (2) on a material mat-
ter, (3) with willful intent. United States v. Garro, 517 F.3d
1163, 1171 (9th Cir. 2008). According to Harrison, the fact
that he stuck to his story after trial shows that he “honestly,
if somewhat delusively,” believed his own testimony. But,
after observing Harrison’s demeanor, the district court con-
cluded that he “concocted a fanciful story, and then in order
to cover one lie, lied again and then lied again.” In light of the
patent discrepancy between Harrison’s testimony, the physi-
UNITED STATES v. HARRISON 14413
cal evidence and the testimony of every other witness, we
cannot say that was clear error.
***
[11] We uphold the judgment of conviction with respect to
count 1 and reverse with respect to count 2. We also vacate
Harrison’s sentence. See United States v. Ruiz-Alvarez, 211
F.3d 1181, 1184 (9th Cir. 2000). This partial affirmance does
not condone what happened at trial. Rather, this mixed result
suggests only that trials can sometimes serve justice despite
strenuous efforts to the contrary.
AFFIRMED IN PART, REVERSED IN PART AND
REMANDED.
BYBEE, Circuit Judge, concurring in part and dissenting in
part:
I agree with the majority that Harrison’s conviction on
count two must be reversed because the jury instruction on
that count was faulty under our decision in United States v.
Chapman, 528 F.3d 1215 (9th Cir. 2008). I respectfully dis-
sent, however, from the majority’s affirmance of Harrison’s
conviction on count one. This case is controlled by two deci-
sions holding that improper prosecutorial questions regarding
the credibility of witnesses constituted plain error requiring
reversal of the defendants’ convictions. See United States v.
Combs, 379 F.3d 564 (9th Cir. 2004); United States v. Geston,
299 F.3d 1130 (9th Cir. 2002). Distilled to its essence, the
case against Harrison consisted of little more than a credibil-
ity contest between him and the two military police officers
whom he accused of abusing their authority. In light of the
extensive misconduct at trial, and the conflicting evidence of
Harrison’s guilt, I cannot say with confidence that he would
14414 UNITED STATES v. HARRISON
have been convicted of assaulting Officer Jenkins in the
absence of the prosecutor’s improper questioning.
I
Because the majority neglects to set forth the facts, I am
going to present them briefly.
The events at issue in this case took place on “Army
Beach,” a portion of Mokuleia Beach in Oahu. The Army
declared the area off-limits at night and military police
patrolled the beach each evening to enforce this prohibition.
On the night of March 9, 2007, military police officers Travis
Jenkins and Amber Kirby were patrolling the beach with
Kirby’s narcotics dog. At approximately 11:53 p.m., the offi-
cers saw Harrison’s silver Mazda parked near the beach.
Harrison and Officers Jenkins and Kirby offer conflicting
accounts of what occurred next. According to the officers,
Harrison refused multiple directives to leave the beach and
instead yelled profanities at them. In response to Harrison’s
display, the officers requested his identification and vehicle
registration information; after a brief period of grudging coop-
eration, Harrison attempted to flee the officers by running
towards nearby bushes. When Officer Jenkins attempted to
bring Harrison back, Harrison punched him in the face. Offi-
cer Kirby eventually caught up with Harrison in the woods,
where Harrison again mouthed profanities at her. Officer
Kirby was frightened by Harrison’s movements towards her
but her narcotics dog refused to attack Harrison and he was
thus able to flee the scene.
Harrison, for his part, told a markedly different story at
trial. According to Harrison, he had two or three beers at a
friend’s house, but stopped drinking between 6:30 and 6:45
p.m. Harrison went home, but left just before 10:00 p.m. in
response to a friend’s invitation to come to a party near the
beach. Upon arriving at the beach, Harrison was unable to
UNITED STATES v. HARRISON 14415
find his friends, so he parked in the area near the bushes. At
that point, Officers Jenkins and Kirby approached and told
him he was on military property. Harrison apologized, told
them why he was on the beach, and offered to leave, but the
officers demanded to see identification and would not allow
him to depart. After allowing the officers to run his Hawaii
driver’s license, Harrison asked again if he could leave, but
the officers told him “No, you cannot go. We’re not letting
you go that easy. We’re not letting you go without—without
finding something on you.” Harrison protested the treatment
he was receiving and claimed it was harassment, but Officer
Jenkins told him that he could do whatever he wanted, and
patted his gun.
Harrison then started walking towards the bushes. Officer
Jenkins jumped on top of him and both men hit the ground
hard, with Harrison using his right hand to break the fall. Har-
rison then ran for the bushes to get help. He denied both
punching Officer Jenkins and assaulting Officer Kirby while
the two were in close quarters in the bushes.
Officer Kirby then returned to the scene of these disputed
events and two Hawaii state police officers, Kenneth Roberts
and Kalai Phillips, arrived at the beach a few minutes after
being called. After about an hour, Officer Roberts left the
scene and he received a dispatch indicating that Harrison had
contacted the Hawaii Police Department claiming that his car
had been stolen. Officer Roberts informed his field supervisor
that Harrison was the individual for whom the military was
looking. Officer Roberts invited Harrison to accompany him
to Army Beach to retrieve his car, which Harrison agreed to
do. Upon their arrival, Officers Jenkins and Kirby, with the
assistance of the Hawaii police officers, placed Harrison
under arrest.
On August 9, 2007, a federal grand jury in the district of
Hawaii indicted Harrison for, among other things, assault on
a federal officer, in violation of 18 U.S.C. §§ 111(a)(1) and
14416 UNITED STATES v. HARRISON
(b), against Officer Jenkins, and misdemeanor assault on a
federal officer, in violation of 18 U.S.C. § 111(a)(1), against
Officer Kirby. After trial, the jury convicted Harrison of both
counts.
II
To their combined credit, neither the majority nor the gov-
ernment attempts to defend the outrageous behavior of the
lead prosecutor in this case. Indeed, the prosecutor’s veracity-
based questioning was so extensive that summarizing it all is
no easy task. I counted at least twenty-six separate questions
of this nature. The subjects covered by these improper ques-
tions included, but were not limited to, the following: (1)
Whether Officer Kirby had “made up” the claim that Harrison
charged at her and that she drew her weapon in response [ER
601]; (2) whether the government’s witnesses similarly made
up the location where Harrison’s car was parked [ER 602]; (3)
whether Officers Jenkins and Kirby had lied in asserting that
Harrison harassed them [ER 602-03]; (4) whether both offi-
cers lied in claiming that they told Harrison that he was on
Army property and thus needed to leave [ER 604]; (5)
whether the officers were in a conspiracy against him [ER
604]; (6) whether Officers Jenkins, Kirby, and Roberts were
“dirty cops” [ER 605]; (7) whether Harrison was “saying that
their [sic] going on the stand, swearing an oath to testify to
the truth and then lying against [him]”[ ER 605]; (8) whether
Officers Jenkins and Kirby made up the claim that Harrison
told them that he used to be in the Air Force [ER 611]; (9)
whether other witnesses who testified that they saw swelling
on Officer Jenkins’s face shortly after the disputed events
occurred were lying [ER 617]; (10) whether Officer Kirby
made up the claim that Harrison told her, from the bushes,
“F*** you and your f*****’ dog, I’m not afraid of you and
your f*****’ dog” [ER 623]; and (11) whether Officers Kirby
and Jenkins, as well as Investigator Sutherland, had lied in
claiming that Harrison “curs[ed] up a storm” at all three of
them [ER 636-37]. The prosecutor closed his cross-
UNITED STATES v. HARRISON 14417
examination by asking Harrison whether the officers were “in
cahoots against him” and whether they had lied in order to get
him in trouble. [ER 641]. The prosecutor even took the
extraordinary step of pitting his own credibility against Harri-
son’s.
As Harrison correctly notes and the majority acknowledges,
the prosecutor’s improper questioning was not simply a mat-
ter of one or two isolated incidents; it was the underlying
theme of the prosecutor’s entire cross-examination. [Blue Br.
37; Maj. Op. at 14408]. Virtually every line of the trial tran-
script devoted to the cross-examination contains objectionable
content. Indeed, the extensive summary above actually under-
states the prosecutor’s misconduct. In response to some of the
prosecutor’s questions, Harrison initially resisted the conclu-
sion that discrepancies between his testimony and that of
other witnesses were the result of deliberate misrepresenta-
tions, and the prosecutor repeated several questions multiple
times (often in a slightly different form) in an attempt to elicit
additional statements from Harrison to the effect that other
witnesses were lying. [See, e.g., ER 602-03, 605, 641-42].
Jurors are almost always confronted with conflicting testi-
mony from different witnesses. That is why we have the jury;
if there aren’t any conflicts, then the case can be resolved on
summary judgment (at least in the civil context). Resolving
these he said/she said conflicts is a first-order determination.
We expect the jurors to work through the conflicts and decide
for themselves who, if anyone, has accurately described the
events. This the jurors must do “by assessing the witnesses
and witness testimony in light of their own experience.” Ges-
ton, 299 F.3d at 1136 (internal quotation marks omitted).
By contrast, we do not permit second-order questions: That
is, we do not permit attorneys to support or undermine wit-
nesses by either vouching for their veracity (“Brutus is an
honorable man”) or branding them unreliable (“All Cretans
are liars”). Accordingly, “it is reversible error for a witness to
14418 UNITED STATES v. HARRISON
testify over objection whether a previous witness was telling
the truth.” Id.; see also Combs, 379 F.3d at 572 (improper to
ask witness whether law enforcement official was lying);
United States v. Sanchez, 176 F.3d 1214, 1219 (9th Cir. 1999)
(same). As the majority notes, counsel—regrettably—failed to
object to the prosecutor’s questions. Nonetheless, in Combs
and Geston, the defendants’ attorneys also did not object to
improper veracity-based questioning at trial but we nonethe-
less concluded in both cases that such questioning constituted
plain error requiring reversal of the defendants’ convictions.
III
With all due respect to my colleagues in the majority, our
decisions in Combs and Geston mandate reversal of both of
Harrison’s convictions. The unprofessional conduct in this
case was far more extensive than in Combs and probably Ges-
ton as well.1 In Combs, we found plain error based on a single
exchange in which the prosecutor in that case elicited testi-
mony from the defendant that a federal agent was lying (the
prosecutor referred back to this exchange in his closing argu-
ment). 379 F.3d at 567. That exchange, although clearly
improper, pales in comparison to what occurred here.
Of course, it is well established that “[w]hen applying the
plain error standard, we consider all circumstances at trial
including the strength of the evidence against the defendant.”
United States v. Rudberg, 122 F.3d 1199, 1206 (9th Cir.
1997) (internal quotation marks omitted). Accordingly, we
1
I say “probably” because in Geston we provided the transcript of the
government’s questioning of one witness, but we merely observed that the
government “[s]imilarly” questioned a second witness. 299 F.3d at 1136.
If the questioning of the second witness was indeed similar, the prosecu-
torial abuse in this case far exceeded the improper questioning in Geston.
Moreover, unlike in this case, the improper questioning in Geston was
limited to the testimony of two outside witnesses, rather than the defen-
dant himself, another factor that made the questioning here far more dam-
aging to Harrison’s right to a fair trial.
UNITED STATES v. HARRISON 14419
have affirmed convictions even after acknowledging that
improper veracity-based questioning occurred at trial. See,
e.g., United States v. Ramirez, 537 F.3d 1075, 1086-87 (9th
Cir. 2008).
Having said that, the government’s evidence against Harri-
son was not nearly strong enough to justify affirmance of his
conviction on count one. To be fair, Harrison almost certainly
mischaracterized events on several occasions during his testi-
mony at trial. Harrison testified that he only had “a couple of
beers with dinner” several hours prior to his encounter with
Officers Jenkins and Kirby and that he was not intoxicated
during any of the events in dispute. However, Officer Roberts
testified that Harrison’s eyes were red, watery, glassy and
bloodshot and that he smelled strongly of alcohol. Harrison
also admitting donning a trash bag as clothing after the inci-
dent, behavior that is not generally associated with sobriety.
When Harrison called 911, he falsely (or at least mislead-
ingly) reported that his car was stolen, but he did not mention
the incident with Officers Jenkins and Kirby or even allude
generally to an encounter with military police. Harrison also
did not tell Officer Roberts about his encounter with the two
military police officers while Officer Roberts was transport-
ing him back to the beach. Moreover, Harrison’s account of
his arrest was refuted by the four officers at the scene, who
all testified that Harrison physically resisted and shouted pro-
fanities at them.
The majority has great fun with Harrison’s story. However,
virtually all of the discrepancies relied upon by the majority
involve collateral issues. Harrison did himself no favors by
denying that he resisted arrest and claiming that he was not
intoxicated, but Harrison was not charged with public intoxi-
cation, and count one had nothing to do with whether he
resisted arrest after Officer Roberts transported him back to
the beach. Rather, the jury’s determination on count one
turned solely on whether the jury believed that Harrison
14420 UNITED STATES v. HARRISON
assaulted Officer Jenkins when he and Officer Kirby initially
encountered Harrison.
The physical evidence bearing on this question didn’t
amount to a hill of beans. Investigator Sutherland testified that
Officer Jenkins had a bruise on his face shortly after the initial
encounter with Harrison and he described the bruise as a “7
to 8” on a scale from one to ten; however, Investigator Suther-
land took two photographs of Officer Jenkins’s face within
hours of the disputed events, neither of which depict any
noticeable redness or swelling. [Compare ER 415-16, with
DSER 1-3]. Even assuming that Officer Jenkins’s injuries
were indeed far more severe than these photos indicate, any
such injuries are quite arguably consistent with Harrison’s
version of events, in which he claimed that Jenkins initially
tackled him and that both of them then hit the ground hard.
The majority also relies upon testimony of an injury to Harri-
son’s knuckles, but we don’t have any visual evidence indi-
cating the severity of this injury; given the government’s
seeming exaggeration of the injuries to Officer Jenkins’s face,
I am not inclined to take this testimony at face value (no pun
intended) and the majority shouldn’t either. In any event,
while the jury could have found this to be evidence of assault,
it also could have accepted Harrison’s claim that any such
injury was the incidental result of Jenkins having tackled him.
Contrary to the majority’s characterization then, the jury’s
determination on count one indeed involved little more than
a credibility contest between Harrison on the one hand, and
Officers Jenkins and Kirby on the other.
In Combs, we faced an evidentiary landscape quite similar
to the one at issue here: “the circumstantial evidence of the
charged offense” was not particularly strong and “[m]uch of
it was equally consistent with Combs’s defense,” leaving the
jury with a credibility dispute between Combs on the one
hand, and a DEA agent and jailhouse informant on the other.
379 F.3d at 572-73. We concluded that this evidence was not
strong enough to uphold Combs’s conviction. As I noted
UNITED STATES v. HARRISON 14421
above, the improper questioning in this case was far more
extensive than that at issue in Combs.
Although the majority recognizes that the prosecutor’s
questions were improper, it essentially concludes that the
questions didn’t matter because they “only highlighted a cred-
ibility judgment that Harrison was himself asking the jury to
make.” Maj. Op. at 14410. This point, however, applies in
almost any case in which a prosecutor asks impermissible
second-order questions regarding the credibility of other wit-
nesses. For example, there would obviously have been no
point in even asking such questions here if Harrison had
offered a legal defense or theory in which the credibility of
opposing witnesses was not at issue—such as entrapment,
insanity, or mistaken identity. Indeed, in Geston, we specifi-
cally noted that such questioning was particularly improper
“[i]n a case where witness credibility was paramount.” 299
F.3d at 1137.
This case provides a perfect example of the prejudicial
effect of such questions. Harrison may well have been lying
about what happened between him and Officers Kirby and
Jenkins. But it’s not as though his story was implausible—
Officers Kirby and Jenkins would hardly be the first law
enforcement officers to abuse their authority by harassing
someone without provocation. And two additional facts lend
at least some support to his story. First, Officers Jenkins and
Kirby paint a picture of Harrison as profane and belligerent
but it is undisputed that he furnished his driver’s license to
them upon request; that’s how they knew who he was. Sec-
ond, if Harrison in fact knew he was guilty of assaulting two
military officers, it is somewhat strange that he would call the
police and return to the beach to retrieve his car, particularly
since he had to have known that Officers Jenkins and Kirby
had taken his driver’s license and thus knew his identity.
It is not our role to weigh this evidence. It suffices to say
that a jury could certainly believe that Harrison was border-
14422 UNITED STATES v. HARRISON
line intoxicated and that his behavior irritated Officers Jenkins
and Kirby but nonetheless conclude that Harrison did not
assault Officer Jenkins and that the officers forced the con-
frontation by arbitrarily refusing to allow him to leave and
then tackling him when he attempted to walk away. But by
compelling Harrison repeatedly to accuse four separate wit-
nesses of lying and then ridiculing him directly thereafter, the
prosecutor made it more difficult for the jury to perform its
duty to independently evaluate the credibility of the witnesses
who offered conflicting testimony. The prosecutor’s questions
were particularly harmful in this case because some of them
identified conflicts that had no bearing on whether Harrison
had assaulted Officers Jenkins and Kirby, but were instead
designed to depict Harrison as an absurd, paranoid individual
by forcing him repeatedly to accuse other witnesses of lying.
IV
Because the only direct evidence of Harrison’s guilt rose
and fell on the credibility of two hardly disinterested
witnesses—the precise issue that the prosecutor improperly
and repeatedly injected into his cross-examination of Harrison
—I would vacate Harrison’s conviction on count one. I thus
respectfully dissent from that portion of the judgment.