United States of America, Plaintiff-appellee, v. David Trujillo, Defendant-appellant, 101 F.3d 706 (9th Cir. 1996)

MEMORANDUM^** 

David Trujillo appeals from his conviction on two counts of unarmed bank robbery, in violation of 18 U.S.C. § 2113(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Trujillo first argues the district court erred by refusing to allow his counsel to refresh a government witness's memory with a defense investigator's notes. Counsel sought to impeach Troy Nasco, a witness who identified Trujillo as the robber in one robbery. During cross-examination, Nasco testified he never told anyone that the robber was wearing a hat. The district court prohibited defense counsel from refreshing Nasco's memory with the investigator's notes which stated that Nasco had said the robber was wearing a hat.

We conclude that the evidentiary error, if any, likely did not affect the verdict; thus, it was harmless. United States v. Yin, 935 F.2d 990, 994 (9th Cir. 1991), cert. denied, 114 S. Ct. 1549 (1994). The jury heard the evidence anyway because the investigator testified that Nasco told him the robber had a hat on as the robber walked into the bank. Further, there was strong evidence corroborating Nasco's identification of Trujillo as the robber. The teller at the bank identified Trujillo as the robber. Also, the prosecution presented testimony that an address book dropped by the robber belonged to Trujillo and his fingerprints were found on the address book. Whether Nasco stated the robber was wearing a hat is an insignificant detail, not critical to impeaching Nasco's credibility or identification of Trujillo.

Trujillo next argues that the prosecutor, during her rebuttal argument, improperly vouched for Nasco's credibility by stating "I don't think he was lying." The district court overruled an objection to this argument and failed to give a contemporaneous curative instruction. The government concedes this was error, but argues, and we conclude, the error was harmless. See United States v. West, 680 F.2d 652, 657 (9th Cir. 1982); United States v. Necoechea, 986 F.2d 1273, 1278 (9th Cir. 1993).

By her statement, the prosecutor did not imply that the government had means to ensure the veracity of his testimony. The prosecutor's statements simply urged the jury to find Nasco's testimony credible, but did not represent a "meaningful personal assurance" that Nasco was credible. See United States v. Williams, 989 F.2d 1061, 1072 (9th Cir. 1993). Also, although Nasco's testimony was important to identifying Trujillo as the robber and identification was a key contested issue, his testimony was corroborated. Finally, the district court instructed the jury that they should determine the credibility of the witnesses who made identifications of Trujillo and, on two occasions, instructed the jury that counsels' arguments were not evidence. The statement likely did not affect the verdict.¹ 

AFFIRMED.