(D.C. Crim. No. 96-cr-00014E)
Before: Becker, Chief Judge, Weis, Circuit Judges and Dowd, District Judge.*fn1
The opinion of the court was delivered by: Dowd, District Judge.
On Appeal From the United States District Court For the Western District of Pennsylvania
I. The Charge and Conviction.
The appellant, Robert Walker, an inmate at The Federal Correctional Institute (FCI) in McKean, Pennsylvania, prosecutes an appeal from his conviction and sentence of 18 months for possession of contraband in violation of 18 U.S.C. § 1791(a)(2).
On October 13, 1995, Walker was undergoing a strip search preparatory to being placed in a special holding unit within McKean. The two correctional officers conducting the search, Scott and Dubois, ordered Walker to remove his undershorts at which time Walker removed a ten-inch shank. In a subsequent interrogation on November 3, 1995 by William Turner, an FBI agent, Walker admitted to possession of the shank. Walker also admitted that he made the weapon, and that he had it for protection because of a fellow inmate problem.
II. The Alleged Error of Vouching.
On appeal, Walker's sole error advanced for reversal of conviction is the contention that the government prosecutor "vouched" for the three government witnesses: Scott, Dubois, and Turner. Walker argues that his defense focused on the credibility of the three witnesses and the government vouching "undermined fundamental fairness of the trial and contributed to a miscarriage of Justice."
A. The Opening Statements.
The government's opening statement summarized the expected testimony of Scott, Dubois and Turner. The defendant's opening statement emphasized that the defense would be questioning the credibility of the government witnesses.
B. A Review of the Testimony of Scott, Dubois, Turner and Zuniga.
Scott testified that he was working in the special housing unit*fn2 where Walker was transferred on October 13, 1995, and was present when Dubois conducted a visual search of Walker in a shower room. Scott indicated that Dubois conducted a visual inspection of the shower room before the search of Walker. Walker was ordered to remove his clothes while Scott held a plastic bag for Walker to put his clothes in. After Walker stripped down to his underwear and socks, Walker turned his back on Dubois and Scott. According to Scott, Dubois then ordered Walker to turn around, at which point Walker reached into his waist area and turned around with a shank in his right hand. Scott told Walker to place the weapon on the grill and step back. Scott picked up the weapon and put it in his pocket. He then wrote out an incident report and took a photograph of the weapon.
Dubois corroborated Scott's testimony. Dubois emphasized that when he requested that Walker turn around, Walker refused. Then he ordered Walker to turn around, but again Walker would not turn around. Dubois testified that he finally gave Walker a direct order to turn around, at which point Walker turned around with a shank in his right hand. Dubois testified that Walker put the shank on the grill where Scott grabbed it. FBI Agent Turner described his November 3, 1995 interview with Walker regarding the incident of October 13, 1995. He identified Lieutenant Zuniga as also being present at the interview. According to Turner, Walker was ...