Can a prosecutor vouch for the veracity of a witness?

First, they claim that the prosecutor vouched for a witness' veracity. They did not object to the alleged vouching, so we review their claim for plain error. United States v. Endicott, 803 F.2d 506, 513 (9th Cir.1986). Of course, vouching is not proper. United States v. Smith, 962 F.2d 923, 933 (9th Cir.1992). Here, however, counsel for Rivera said that he did not know whether to believe a certain witness because he found the witness "incredible on a number of issues." The prosecutor referred to that comment and retorted that he believed the government's evidence was credible. That soft form of vouching, if vouching it was, simply righted the scales by rebutting defense counsel's comment. See United States v. Lopez-Alvarez, 970 F.2d 583, 597-98 (9th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 504, 121 L.Ed.2d 440 (1992). That is particularly true where, as here, the prosecutor objected to defense counsel's remark and the district court said there was nothing wrong with remarks of that type.

Second, they claim that the prosecutor called attention to their failure to testify. Of course, a prosecutor cannot do that. See Lopez-Alvarez, 970 F.2d at 595-96; United States v. Castillo, 866 F.2d 1071, 1083 (9th Cir.1988). Here the prosecutor did not; he only commented on the fact that another defendant had not called an obvious corroborating witness. There was no misconduct.

Third, they assert that the prosecutor ascribed bad motives to defense counsel. Certainly a prosecutor should not do that. See Bruno v. Rushen, 721 F.2d 1193, 1195 (9th Cir.1983) (per curiam), cert. denied, 469 U.S. 920, 105 S.Ct. 302, 83 L.Ed.2d 236 (1984). We have reviewed the record citations to which the appellants refer. The prosecutor did not impugn counsel's motives.

Fourth, they point to the government's general comment that if it knew of the various witnesses that could corroborate the defense--like the obvious corroborating witness referred to above--it would have sought them out. Appellants say this was a violation of their rights under Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), because it commented upon their silence after they had been given Miranda ¹ warnings. It did no such thing and does not constitute misconduct.