Reginald Carter v. Lowell D. Hewitt, Superintendent John Fuiek, C.O. Duane D. Pyles, C.O. And Gilbert Levi, C.O.

GIBBONS, Bеfore ROSENN and GARTH, Judges. Circuit OPINION THE COURT OF GARTH, Judge: Circuit called upon We are to determine whether plaintiff Reginald letter written inmate, Carter, prison violated the Feder- was al Rules of Evidence when it read and admitted into evidence at the trial of a brought by against 1983 action Carter § prison We determine that authorities. not, judgment and did therefore affirm district in favor of the defend- ants.

I. inmate at

Reginald Carter is an Pennsylvania State Correctional Institution Huntingdon. at claims that he was He routine severely beaten in the course “shakedown,” search, Sep- of his cell on prison guards, three tember Fuiek, Duane and Pyles, defendants John incident, Levi. On the date of Gilbert Huntingdon’s maxi- Carter housed security block as a result of his role in mum escape attempt week earlier in which a an injured. guard seriously Carter against guards suit three and brought Hewitt, against superintendent Lowell under prison, 42 U.S.C. § to dismiss the The defendants moved or, alternative, complaint, for sum- judgment. Supporting affidavits mary with motion. The action were filed their to a under 28 was referred U.S. day question direct- went to Carter’s cell on U.S.C. § affidavits, file responsive ed Carter to but for а routine shakedown. Fuiek entered cell, out, that he was unable to do so the Carter Carter claimed ordered commenced subject cell, restrictions he was the search. When Carter left the due to the security grabbed and a prisoner. struggle a maximum Faced with Officer Levi’s baton circumstance, Magistrate Pyles pull scheduled ensued. tried to off Levi. commotion, cell, evidentiary hearing prison, at at Fuiek left the heard which time Carter’s factual contentions demanded Carter release the baton words, fully were tried. with the “turn it or I’ll run this loose [flashlight] through your face.” Carter hearing, jury At without a conducted baton, then Fuiek complet- released 24, 1978, presented July three guards ed his All three search. claimed and also himself. The witnesses testified by anyone that Carter had not been hit three were inmates housed in witnesses any way. adjacent to or Carter’s cells near at the alleged beating. They time of the all testi- put The also defense Fuiek, Levi, Pyles, fied that the three prison infirmary supervisor Morgan, that guards, to defendant came Carter’s cell more Carter would have shown extensive shortly 2:00 in the afternoon of Sep- after injuries had as badly if he been beaten as 22,1977, cell, out tember ordered him of the claimed, he or in the that he manner de- batons, proceeded to beat him with scribed. fists, flashlights, They and feet. all testi- The to giving appeal incident rise this they actually fied that could not see the during occurred Carter’s cross-examination. beating, to the visibility due restricted from Carter shown was a letter written one cells, they but their that could hear the “Abdullah” to a at Hunting- fellow inmate being blows landed. Two testified that he don. Carter admitted that had written they any noticed never bruises Carter as letter, the that and also admitted he had one beating; result of testified that writing denied this same when he letter had he some swelling noticed Carter’s face. been questioned authorship as to its in an beating greater testified in to the prison earlier disciplinary proceeding. De- detail. He stated that he was hit on the fense asked to read the counsel let- head or four with a flashlight three times objected grounds ter. Carter on the and hit 30-35 times with baton. He also relevance, сlaiming that the letter had been face, causing claimed he was kneed in written months six after the beat- testified, however, his mouth to bleed. He ing. Magistrate The then ordered Carter to only signs beating that the visible expressly read the but reserved rul- day early as a or two were a later swollen ing on whether the letter was admissible. lip and some bruises on back of his direction, with Complying Magistrate’s neck; claimed, injuries, all other were letter, Carter read letter aloud. The by his covered clothes. undated, generally described to recipient its to file a defense called as witnesses the three unidentified how com- guards. they plaint prison They charging guard brutality.1 defendant testified that entirety, appeal, request slip Deputy In its the letter states: Put in via Operations Supt. Kelly was claimed Dig My —if Brother! your you weapon. Say request had a in that paper copies Here’s some carbon to make you weapon junk had no & that such shank complaint you up. hook should Say you jacked up were was fabricated. that complaint Make the like so: out by guards brought & hole and handled guards my So & so cell camе to on or about very guards. complaint bad of how Make (date) saying, (whole rap and threatened me guards you. mishandled maybe yeast). Say you with a little said up my compile set This is a com- brother — your nothing for fear life and thereafter courts, plaints possibly be used for bullshit you’ve suffering been from acute tension and media, program and a in news radio Pitts- headaches. Philly. burg & W.D.A.S. down [sic] solving the had expressly matter been portion, lettef significant its most reserved, the letter Magistrate admitted reads: reflecting on credi- in evidence as Carter’s compile com- up my is a set This brother — operandi modus demonstrating bility and courts, possi- use bullshit plaints to be for brutality part on Carter’s false media, program radio in and a bly news complaints. Relying part on the Philly. & down Pittsburg W.D.A.S. [sic] Magistrate recommended that the dis- of barbar- pattern want to establish a We beating that no had oc- trict find and turn it on harrassment ic brutal [s/c] judgment curred and that be entered chumps to the max. these guards. favor of the defendant As to Su- suggested counsel Defense Hewitt, perintendent recom- false brutality a direction to file a summary judg- mended motion for that his only that he was complaint. Carter claimed granted ment since Carter had neither legitimate com- encouraging filing of alleged nor Hewitt proved that had directed plaint. encouraged way. hearing, Shortly adopted Magistrate’s after district court rec- findings of fact and and entered proposed judgment submitted ommendations2 law court. Re- the defendants.3 conclusions of to the district pattern want to of barbaric tion opinion, reconsider the district court’s earlier We brutal harrassment chumps establish a denying ground and turn it on these all it on [sic] objections to the a letter max. Write issues raised briefly your problem explain . . rap . previously. dude and and been considered you ask this dude visit for a to come We need not consider whether the district you legal aid to affairs: disposition court’s requirement the review satisfies de novo Charles Vierbach 741 636(b)(1), for reasons. §of two Washington St. First, Carter does not raise this issue on this Huntingdon, PA. (Carter by appeal appeal represented on (carbon) copies your Make two or complаint, three counsel); and, second, the sole which is issue legal (sealed up letters in en- I here, admissibility presents raised velope) request slips! get and Make sure question a plenary. to which our pursue review is of law as own your copy of all stuff! Thus, we this matter no fur- Abdullah ther. 636(b)(1)(1976) provides perti- 2. 28 U.S.C. § opinion 3. The “The district court’s concluded: part: nent summary judgment motions the Defend- days being ten served Within copy may after with a granted ants will be and the actions dismissed.” magistrate’s any report], party the [of the If this remark is taken as an indication that objections serve and file written such Magistrate and district court had dealt with findings proposed and recommendations as summary judgment, this action as a matter for by judge provided rules of court. A granted judgment the and defendants on court shall make a de novo determination of ground “genu- the had not raised a Carter portions report specified pro- those or the fact,” any issue ine as to material F.R.Civ.P. posed findings or to which recommendations appropriate and our remand for trial on plainly course would to reverse objectiоn accept, reject, modify, judge may is made. A of the court merits, the since Carter part, or in whole or dispute has raised a material of fact. findings by the the further evidence recommendations made summary judg- The reference to district court’s magistrate. may judge also receive ment, however, actually does not reflect what or recommit matter to Magis- occurred. Once Carter informed the trate that magistrate with instructions. could not obtain affidavits to meet he Carter, appeared pro Mag- who se before defendants, by Magistrate filed those court, objections and district filed no istrate summary pro- dispensed ceeding judgment with the Magistrate’s specified report within the evidentiary a full hear- and scheduled period; time he claims that he was misled ing. setting hearing, In his a date order for the result, the need to As a about do so. wrote: de novo district determinations trate’s ‍‌‌​‌‌​‌‌‌​‌‌‌‌‌‌‌‌‌‌​​​‌​‌‌​‌​​‌‌​​​‌‌​​‌​‌​‌​‌‌‍recommendations. After the district conducted no factual adopted apparent simply Magis- It is that a material fact in this case issue, is, whether Plaintiff was is at wrongfully issued, opinion aсtions did beaten as a result of the court’s file ob- Magistrate’s report. Septem- jections of the Defendants on to the district inactions result, evidentiary page court then issued a one memorandum ber 1977. As undersigned opinion construing objections hearing must be held before the Carter’s a mo- appeals, challenging now ad II. grounds. of the letter on three mission A. The Rule 404 Claim First, he claims that the letter constitutes believe, quite We simply, that by character evidence rendered inadmissible admissible, Second, substantive evidence F.R.Evid. 404. claims that because it bears on the central factual issue prove is extrinsic evidence used to case—whether Carter was beaten impeach credibility, bad acts to and is prison guards September on 1977. The under therefore inadmissible F.R.Evid. standard of relevance established 608(b). that, Finally, he contends even if Federal Rules high: of Evidence is not evi admissible, the otherwise letter should have “any dence is relevant if it tendency has been excluded under F.R.Evid. 403 because make the existence of fact is of probative substantially “its value is out consequence to determination of the action weighed by danger preju of unfair probable more probable or less than it dice.” would be without the evidence.” F.R.Evid. The defendants meet none these con- added). (emphasis A factfinder could Rather, in their tentions brief. in what we reasonably interpret reflecting this letter as regard questionable litigation must as a plan part promote strategy, they argue do not that the letter complaints. of false A factfinder could fur admissible; instead, they argue, ther draw the inference that Carter’s own even if admission of the letter constituted complaint being September about beaten on error, the error was If harmless. the letter pursuant 1977 had been filed to that inadmissible, contends, as Carter Thus, plan. the letter is relevant: it has would find it difficult to hold that its ad- tendency some to make Carter’s assertion mission was harmless. Both the that he was beaten less likely to be true relied, and the district court expressly than it would be without the evidence. heavily, relied on the letter opin- in their relevant, Since letter is it is also admis Since, however, ions. analysis, оur own sible, unless its admission is otherwise re we agree cannot with Carter that the letter stricted. F.R.Evid. 402. inadmissible, was we do not reach the de- fendants’ claim that any such error was claims, however, Carter that F.R. harmless. 404(b) Evid. constitutes a restriction on ad missibility. provides: This rule consider, reject,

We and each of the three grounds Carter, inadmissibility by (b) crimes, of raised wrongs, Other or acts. Evi- in turn. crimes, wrongs, dence of other or acts is proposed findings so that he can render of letter was written six months after the beating). circumstances, facts and gen conclusions of law to the Court. Under such we parties’ All the erally factual contentions were tried appeal. decline to consider the claims on hearing; Magistrate’s report at that the makes especially regard This is so with to the claim regarding clear that he was then the case as a 403; based on F.R.Evid. under our recent deci matter for final determination on the merits. Long, (3d sion in United States v. 574 F.2d 761 parties None of the here contend that the hear- Cir.), 985, 439 U.S. S.Ct. ing anything less than that. In these cir- (1978), party specifically L.Ed.2d 657 a must cumstances, then, regard procеedings the request the trial court to determine whether constituting below as a final determination af- probative “substantially outweighed by value is trial, summary judgment disposi- ter and not a danger prejudice,” the of unfair before the expressed by tion. This same view was the required court is to invoke the rule. Id. at 766. Appeals Eighth Court of for the Circuit in con- earlier, however, appeared As we noted Carter sidering a case which reached it in a similar pro se before the and district court. procedural posture. Nielsen v. Western Elec- status, Recognizing pro se we overlook this Co., 1979). tric 603 F.2d see, procedural deficiency, g., e. Haines v. Ker ner, 519, 520, 594, 595, presented 404 U.S. objec- 92 S.Ct. 4. Carter none of these three (1972) (per curiam), court; L.Ed.2d 652 tions and consider to the or to the district rather, objection apparently solely Carter’s claims on the merits here. in (on ground terms of relevance the the by encourag- doing a harassment. I intend so prove the character of not admissible to show that acted numerous false com- ing prisoners in order to file person however, may, It therewith. сonformity plaints against guards. the Pursuant purposes, other such admissible for complaint a plan, I a false of filed intent, motive, opportunity, proof of September beating by guards three knowledge, identity, or plan, preparation, It that rule 404 1977.” could not be claimed of mistake accident. absence to be in the require would such evidence evidence of his that before of discrete false proof Carter claims form of of a series complaint, may be act, of a false solicitation absence of such complaints, and that a prove plan of under this rule to admitted if proof And the letter was inadmissible. must be much filing complaints, false there a request letter hypothetical we add similarity between the action solic- greater recipient complaint to file a false to the (the of a com- filing in his letter false ited himself, rule not be claimed that could (the by Carter and the action taken plaint) similarity great would between demand charging the defend- complaint of a complaint complaint solicited and the September ants with аuthor, before letter filed earlier agree; his 1977). We contention cannot into The rea- could be admitted evidence. of the evi- both nature misconstrues proof of of typical clear. In the case son is and the rule itself. dence introduced rule, of a under the trier fact plan 404(b), in this Federal Rule of Evidence plan asked to infer the existence context, prove ex- governs attempts to a of merely from series similar proof a plan through evidence of istence case, effectiveness of acts. In such a plan. to the of acts that conform series wholly depends on the proof plan of a Thus, if implicated would be here rule similarity of the acts shown. defendants, merely by showing that however, contrast, hypothetical By brutality complaints false had filed above and in Carter’s actual letter described occasions, thereby sought on several other exist- there is direct evidence Carter had conceived prove strong are plan; the letters ence plan filing such false implemented a proof of a even if therе is no plan evidence not, however, complaints. This does complaint filed the author other Rather, purpose. serve case, even the one at issue than evidence of existence constitutes direct recipient of the letter is asked plan, in its statement that if the “[t]his Since, We up my complaint. set .... want to false these letters brother file a pattern brutal har- prove plans directly establish barbaric not inferential- chumps these rassment and turn it on ly, they scope fall the of rule 404: outside [sic] max.” to the letters of other acts the are not evidence proof plan, of a but direct used as indirect critical, may and be The difference plan the evidence of the existence of itself.5 example. a As- simple demonstrated of plan, there is direct evidence a When stated, instead of sume Carter’s letter had proof a admissibility depend not of does content, we put that “I think can its actual Therefore, of similar acts. highly series prison guards on the defensive these establishing prison guard must be deemed admissible. pattern a of Carter’s lеtter foundation, serve, however, that, analysis proper suggest with do that 5. We not our here proviso proviso of rule the of the second sentence the in the second sentence of F.R.Evid. 404(b) might very support the 404(b) preclude well admission of would admission the letter Carter, writing if instead of of the into evidence denied it. into evidence if Carter had authorship, admitting denied it. prove plan Carter’s letter admissible long adequate, independent as as there was authorship plays a of his Carter’s admission authorship. evidence of his Because Carter important role when the different and more letter, writing not dis- impeachment, has conceded the do than is offered as rather admissibility length substantive, 11(B) of if part cuss at the letter See and note evidence. We ob- had not made this concession. 11 infra. 968 complaint about the letter and filed letters described above hypothetical

If the 22, are, beating. The issue is admissible, they September then so is surely as are Carter’s; among go on Car- light them what the letter sheds the differences rather fear, weight, admissibility. not no complaint. Therе is only probative brutality ter’s doubt, inferences, must be cases, some the factfinder identity While that letter to reach from Carter’s drawn conclusion as to may draw an erroneous plan false that he had conclusion who committed identity person of the so, encouraging others to do complaints and There is no performed an act. crime the incident complaint about and that need, then, “striking similarity” re- for the 22,1977 plan, part September cases, identity and little rea- quired in the only render the letter less inferences these before place to hesitate to this evidence son United not less admissible. See probative, appropriate of fact to draw all the trier 1196, Ravich, 1204 n.10 421 F.2d v. States “striking The limitation of the inferences.7 J.), (2d Cir.) (Friendly, U.S. requirement to cases in which similarity” 27 L.Ed.2d 66 91 S.Ct. identity is the issue is well made United (5th Myers, v. 550 F.2d 1036 Cir. States however, that rule assuming, Even 1977). The court there stated: admissibility governs within rather letter falls and that Carter’s government The asserts that the evi- rule, without, scope than dence of the Pennsylvania bank robbery similarity require the rule’s misconstrues was admissible prove Myers com- demanding striking thоse cases ment. mitted the Florida bank robbery because question and similarities between the act it exhibits his characteristic modus oper- proved as evidence of sought the acts to be andi. proper This is a purpose. The identity of the pattern, the issue is the probity of evidence of other crimes where crime) (generally perpetrator of act purpose depends upon introduced for is that de question. typical context uniqueness operan- both the of the modus X, charged crime with fendant Jones degree di and the similarity between Y offers evidence of crimes prosecution charged uncharged crime Z, committing. which Jones concedes course, crime. Of it is necessary the trier of fact prosecution then asks the charged crime and the other crimes peculiarly infer that since crime X is so every identical in they detail. But Z, have to crimes Y and it must similar possess must a common feature or fea- See, been Jones who committed crime X. very likely tures that make it g., Goodwin, e. v. United States 492 F.2d charged perpetrator unknown 1974); Drew v. Unitеd perpetrator crime and the known States, 11,16, U.S.App.D.C. 331 F.2d uncharged crime are the same person. (D.C.Cir.1964).6 When the issue is identi unique of the common The more each and, indeed, ty, perfectly proper it is neces is, features the smaller the number sary, to exclude other act evidence unless “it required probative value similarity as to high degree of bears such a significant. evidence to be But a number the accused.” mark it as the handiwork of of common features of Goodwin, uniqueness, lesser 492 F.2d at United States case; in this identity although generate strong But is not an issue insufficient to identity he both wrote the inference of if sepa- Carter concedes that considered by represented cases, by support of 7. In addition to the distinction 6. These two cited identity typical presence position, issue in the ‍‌‌​‌‌​‌‌‌​‌‌‌‌‌‌‌‌‌‌​​​‌​‌‌​‌​​‌‌​​​‌‌​​‌​‌​‌​‌‌‍before the Federal his were decided cases, 404(b) tend to be rule those cases also issued. Rule how- Rules of Evidence were Thus, “striking prosecutions. ever, sim- of the common criminal is in essence a codification Redden, ilarity” required approach, Saltzburg the aсcused’s due Fed- there serves law S. & K. (2d process right In a civil suit such to a fair trial. Evidence Manual 129 ed. eral Rules of Carter’s, course, process 1977), may regard- considera- pre-rule of due be as and these cases weighty. authority interpreting are much less the rule. tions ed as for of for or untruthfulness an- truthfulness probative significant of rately, may be character as to which . . other witness . together. when considered value being cross-examined has testi- witness greater degree A much of similarity fied. charged crime and the un- between the rule concern of principal The charged required when the evi- crime through a witness prohibit impeachment of of the other crime is dence introduced to acts when this evidence of his bad extrinsic prove than it is identity when introduced by calling other introduced evidence is be prove We state of mind. have con- Thus, testify. Weinstein witnesses to sistently held that for evidence of other Berger the extrinsic evidence ban describe be crimes to admissible the inference of as follows: identity flowing it from must be ex- the no extrin- often summarize Courts tremely strong. stating that “the sic evidence rule (footnotes at Id. and citations omit- take his examiner must [the witness’s] ted). Powell, United States v. See F.2d descriptive phrase answer.” This 1978). practice the sense federal then, reject, We Carter’s contention that cannot call other witness- cross-examiner there was similarity insufficient between after the wit- prove es the misconduct complaint he solicited in the letter denial; misleading as it it is insofar ness’ complaint filed, he to allow the cross-examiner cannot suggests that admission of the letter under rule 404. We pressing an admission —a continue for properly hold that the letter was admissible authorized procedure specifically as substantive evidence. 608(b). sentence of Rule second Berger, M. J. Weinstein’s 3 Weinstein & 608(b) B. Rule Claim (1978) (foot ¶ at 608[05], 608-22 Evidence and the district court omitted). note part found the letter admissible in because writes:8 Similarly, McCormick credibility testifying bore on Carter’s jurisdictions permit which character- at suffered the hands proof of misconduct for impeachment by defendants. Carter claims use had, has been conviction violates the limitations on accepted rule that curb is the important impeachment 608(b). forth set in F.R.Evid. brought can be proof is limited what disagree. We Thus, if the out cross-examination. 608(b) provides: Rule ground denies the stands his witness Spe- conduct. (b) Specific instances of misconduct, examiner must the conduct of a wit- cific instances of answer,” may not that he not “take ness, attacking sup- or purpose to extract an ad- further cross-examine credibility, other than convic- porting mission, may that he not but in the sense 609, may provided tion crime in rule prove the discred- call other witnesses to proved by extrinsic evidence. be iting acts. however, may, in the discretion They Evidence at Cleary, E. § McCormick court, or probative if of truthfulness omitted). (2d 1972) (footnotes ed. untruthfulness, inquired cross- into on Thus, great majority of the deci (1) concerning the witness examination of 608(b) finding rule do so sions violations of truthfulness or untruth- his character for is chal- evidence that fulness, (2) concerning the character when extrinsic (2d Evidence Manual 312 ed. Federal Rules of does not describe statement McCormick’s Berger, 1977); Weinstein’s 608(b) practice 3 J. & M. at com- Weinstein but rather current rule Thus, however, 608[05], rule, ¶ at 608-21 portion Evidence mon law. This description the rule at common simply practice law McCormick’s the common codifies interpreting may an rule jurisdictions permit law as aid used bad act those Redden, 608(b). Saltzburg impeachment. S. & K. See 970 a The

lenged impeaching from witness other letter with which Carter is obtained by was confronted was not met a denial of credibility whose is under at- than one he authorship. Carter’s admission that however, When, the extrinsic evi- tack. distinguishes wrote the letter this case from through exami- is obtained from dence by all cases him. relies relied credibility whose very nation of the witness Herz especially heavily United States v. attack, here, case we must is under as is the (5th Cir.), denied, berg, 558 1219 F.2d cert. recognize core concerns the rule’s are S.Ct. 290 U.S. 54 L.Ed.2d is, however, implicated. There even Herzberg, In two were defendants significant finding no viola- more reason using convicted of the mails in a scheme of the extrinsic evidence rule here: tion cross-examination, prose defraud. On having written the deny did not defendants, Barnes, cutоr asked one of the letter; rather, authorship he conceded his litigation if had of a fraud arisen out the letter was not an but claimed relationship he had business had with a Mrs. encourage effort to of false com- denial, Vosack. In response Barnes’s plaints. prosecutor opinion showed Barnes the adoption Carter’s and thus Supreme the Arizona Court suit impeach admission of the act used to brought by against Vosack Mrs. him him, distinguishes case from every case others, and him to read last asked aloud the witness, credibility where whose un- opinion. sentence of the This re sentence attack, has denied evidence which der affirming vealed that the deci court him, or through had been obtained from sion below that Barnes had Vo defrauded holding leading to a that the thus extrinsic ques sack. The court held that this line of evidence rule has been violated. In those tioning violated the extrinsic evidence ban cases, denied, the witness has rather than 608(b). of rule F.2d at 1222-23. admitted, impeach the acts used to him. Thus, Herzberg rule found impeachment process thus would have 608(b) only when the violated evidence required produce examiner additional introduced after Barnes denied his bad act. evidence to refute the witness’s denial of Every other in which case the extrinsic charged. process the acts Such makes by evidence ban has been found violated apparent against the basis for rule ex- brought during evidence forth cross-exami trinsic evidence: if refutation of the wit- nation of the witness under attack likewise permitted through ness’s denial were ex- case, fits In pattern. each the extrinsic evidence, trinsic these collateral matters employed evidence was after a denial prominence would assume a at trial out of the witness attack specific under proportion significance. to their In such See, e.g., instances of conduct. United cases, then, may extrinsic evidence not be Turquitt, (5th States v. 557 F.2d 464 Cir. denial, used to refute the even if this evi- 1977); Dinitz, v. United States 538 F.2d might very dence be obtained from the (5th 1976), Cir. 429 U.S. sought But, impeached. witness to be (1977); S.Ct. L.Ed.2d 556 observed, have Javurek, ease does not Carlsen 526 F.2d 202 present 1975).9 such a situation. Turquitt, Carlsen, brought In plaintiff against the defеndant was asked on suit others, prosecution doctor, claiming cross-examination whether the doctor’s signed malpractice ever a lease under the alias was the cause of the death cross-examination, plaintiff’s Eddie Von Blitzen. The defendant denied ever wife. On having objection, prosecutor plaintiff relationship done so. Over testified that his with his very good. application introduced into a rental evidence wife had been The defendants’ apartment, plain- form and lease for the defendant’s counsel then the record introduced signature battery both of which bore the Eddie Von tiff’s conviction for assault and of his Appeals Appeals Blitzen. Court of reversed on this wife. The Court ruled that admis- ground. 557 F.2d at sion of 466-68. this record conviction ran afoul 608(b). rule 526 F.2d at 210.

971 one, e., brought during forth cross- i. ed evidence analogous to this case The sole witness attack— did not examination of the under challenged witness which charged con the conduct alleged instances of that Carter admitted clearly deny the 608(b) pro- rule when witnesses denied duct, no while all other found viоlation it — was documentary proof allowing those instances for admission vides a sound basis wit during questioning of the of rule purpose introduced Carter’s letter. Senak, noted, v. 527 F.2d ban, In United is 608(b)’s ness. States extrinsic evidence as 1975), denied, cert. 425 U.S. 129 Cir. wholly avoid minitrials on collateral “to 1500, (1976),10 907, L.Ed.2d 96 47 758 S.Ct. which tend to distract and confuse matters unlawfully attorney charged with Simmons, v. 444 jury.” United States soliciting payment from clients whom 500, (ED.Pa.1978). Wigmore F.Supp. assigned represent posi in his been behind the similarly describes rationale public On cross-examina tion of defender. law on extrinsic evidence: common ban tion, asked whether prosecution Senak prolif- through confusion of issues prevent fee income reported a certain on his he had matters; minor testimony eration of that, re responded if his tax return. He surprise arising from prevent unfair fee, it was not disclose then turn did ‍‌‌​‌‌​‌‌‌​‌‌‌‌‌‌‌‌‌‌​​​‌​‌‌​‌​​‌‌​​​‌‌​​‌​‌​‌​‌‌‍allegations improper 3A false conduct. through neglect rather than inten solely 979, Wigmore on Evidence at 826-27 § prosecution then wrongdoing. The tional 1970). (Chadbourn reasons rev. ed. These rec into IRS evidence Senak’s introduced barring their extrinsic evidence lose not ords, fee had which revealed credibility is force when the witness whose reported. been No challenged concedes the acts. through issues are confused or time wasted claimed that cross-examina- Senak trial a trial of a collateral matter: no 608(b), but contention violated rule tion since matter is needed conceded. reasoning rejected. the court’s While judge may exercise control over the trial clear, perfectly it concludes that is not are degree to which the conceded matters consti- of the records did not introduction power irrele- explored through his to bar conduct specific instances of proof tute F.R.Evid. vant or cumulative evidence. evidence, merely but in- through extrinsic any danger 403. Nor there of unfair on cross-examina- quiry into such conduct charges con- surprise through false of bad tion, permitted by the rule. See matter, If witness concedes the duct. Thus, rule at no violation of 527 F.2d 145. charges that the were may be confident though rec- 608(b) was even the IRS found not false. extrinsic were utilized and аdmitted as ords

evidence. Thus, such a there is need in 608(b)’s extrinsic noted between case to invoke rule ban on

The distinction here where, here, evidence, credi particularly the ex cases in which our case those conclude, bility violat- is the critical issue.11 We evidence ban was found to be trinsic Carisen, Dinitz, sought impeach ly be the their results would In the defense Dinitz, through government of his Rules. witness introduction same under the Federal See 1224; Carisen, testimony prior at an unrelated 526 F.2d 210. inconsistent F.2d at at explicitly opinion does trial. The court’s Senak, prior trial was conducted 10. had of- the witness denied that he state Evi- effective Rules of trial, date Federal certain at the see fered earlier clear, however, that its The court made dence. may at 538 F.2d assumed; but such denial See same under the rules. result would be the differently if he at had not testified F.2d at conflicting 145. testi- second trial and denied his trial, mony be no at the earlier there would attempt implies impeachment through incon use of The dissent that there is some need to sistency disposition testimony. rule our between the earlier Carisen, 608(b) disposition and the were claim here In both Dinitz and the trials Herman, 608(b) prior States claim in United conducted to the effective date of However, (3d 1978), 441 U.S. Rules Evidence. F.2d Federal indicate, exploit- See implicitly 60 L.Ed.2d 386 99 S.Ct. courts Dinitz and Carter’s if it to then, “appeals jury’s sympathies, the use of letter cial that purposes horror, on cross-examina- its impeachment arouses sense of provokes its admission, tion, did not offend rule punish,” “may and its instinct to or otherwise cause 608(b).12 jury something base its decision on than other the established propositions 13 403

C. The Rale Claim case.” Berger, 1 J. Weinstein M.& ¶ 403[03], Weinstein’s Evidence 403-15 at that letter finally contends (1978). classic example 403-17 A of unfair excluded under F.R.Evid. should have been prejudice conclusion, is a after jury’s hear disagree. we constrained to Again, 403. are ing a recitation of crimi prior defendant’s provides: Rule 403 record, that, nal since the defendant com relevant, Although may evidence be ex- crimes, many mitted so other he must have probative value if its is substan- cluded committed this one too. an improp This is outweighed by danger of unfair tially decision, accordingly er basis and the law issues, or mis- prejudice, confusion prohibits prior introduction of convictions to leading by jury, or considerations of propensity demonstrate a to commit crime. time, delay, undue waste needless F.R.Evid. 404.14 presentation of cumulative evidence. help This rule cannot It Carter. Carter’s while undoubtedly protection against prejudicial does not offer evidence to his case in that it resulted in merely prejudicial, him, that is district ruling against sense being party’s presents prejudice. detrimental to a case. Rath danger no of unfair er, only against protects by the rule evidence The letter was offered the defendants to unfairly prejudicial. suggest Evidence is that Sep occurred on prejudicial only if it unfairly has “an undue lying tember 1977 and that Carter was suggest tendency improp This, decision on an contrary. when testified to the course, basis, though commonly, necessarily, er was the central issue trial. at In a Advisory an emotional one.” Committee’s such case as the one here where wit Note, unfairly prejudi- F.R.Evid. 403. It is diametrically nesses each side take op- dissenting op., (“The Long Co., аt 977 Manufacturing care in discussion Fed. with Dollar v. ”). disturbing particularly .... 1977), 608is R.Evid. 561 F.2d 613 Herman, cursory Even the most review of how U.S. 98 S.Ct. L.Ed.2d ever, demonstrates that there is no cause for The court there stated: disturbance. case, plaintiff sought In this to use the here We hold that the extrinsic evidence ban warning impeachment purposes. letter for sought should be relaxed when witness While we are aware that Rule 403 authorizes impeached impeaching admits the In act. pro- the exclusion of relevant if its evidence Herman, we held extrinsic evidence substantially outweighed by bative value is sought ban must be enforced where the witness danger prejudice, of unfair we do not impeached impeach- to be ing had not admitted the application. think situation called for its According- act. See 589 F.2d at 1195-96. In face of Saunders’ as to his ly, complete harmony there our between present opinion safety of the backhoe holding holding in Herman our here. tractor, rollbar-equipped when attached ato course, 12. Of even found if we that the use of prejudice we do not unfair think to the de- impeachmеnt the letter as rule evidence ran afoul of having fendant would have resulted from 608(b), relief; grant we would Carter no warning been confronted his own letter substantively, the letter remains admissible exposure course, such Of death use. part 11(A) opinion. described above in of this prejudice” “unfair as used in Rule is not equated testimony simply to be with adverse 13. This case was tried to without opposing Virtually party. to the all evidence jury. Nonjury present trials a much smaller prejudicial preju- isn’t or it material. danger light prejudice jury of unfair than trials. above, however, dice must be “unfair.” analysis our need not, (emphasis original). not, at rely jury Id. The court do absence of a rejecting reversed the court’s to exclude Carter’s claim under rule district decision and remanded the case. prejudicial 14. The distinction between evidence unfairly prejudicial drawn evidence was time, only, and that time that Carter task is to that positions, the factfinder’s posed are more credi- as a recipient which witnesses call the witness. determine asked to Magistrate, hearing after validity If the potential ble. of Car- Recognizing the read, drew inference Magistrate at objection, the ter’s relevance claimed lying, it cannot be request, since the that time denied was, It basis of decision. improper evi- been admitted in letter had neither rather, properly a admitted evidence use of Mag- read aloud Carter. dence nor which, in the with other evidence together recipi- “I think his istrate don’t stated: [the case, proper in a decision on resulted particularly rele- will be statements ent’s] Thus, showing Carter has made basis. juncture, not at vant and I’m certain ex- unfair cannot demand prejudice: of Carter, is relevant.” Mr. that this document 403.15 of letter under rule clusion the of the letter dur- After discussion extensive cross-examination, in its ing which Carter’s III. clear, made relevance was dissenting largely ad- opinion Because the he wished to then asked Carter whether not find rele- subjects which we do dresses Carter re- any make other statement. obliged to disposition, vant to our we feel nor at sponded “No.” Neither at time record our observations on these matters. any time did ever renew his other Carter no real apparently The dissent takes issue of request recipient call the the letter. any analysis set forth in aspect with of circumstances, then, it clear Under these is II, above, only that: “Al- part but notes his that failure to call witness to Carter’s though I discuss in the several do not detail explain meaning letter be cannot the majority theories finds the charged to the court. admissible, my should be letter silence not acquiescence.” Yet, construed At 977. as it renewing request, may his be not reveals to us reading our of dissent recognized reading that what our Carter that, fact, disagreement in there is no with the reveals: that no innocent inter- record that the is admissible. It holding our letter plausible. When pretation of the letter by the that its own is conceded dissent sig- as to questioned by Magistrate opinion hypothetical set forth in its of the statement nificance 977, Yet differ- is admissible. page at up is a set .... my brother “[t]his hypothetical ences the dissent’s let- between pattern establish a barbaric We want to one, ter and real like the differ- [sic],” Carter himself brutal harrassment hypothetical ences our letter and between patently questionable only could offer the one, only weight, go probative the actual “set-up” it to a explanation that referred admissibility. not 70). guards (tr. at inmates dissent does no main thrust urge more than reversal district IV. ground Essentially, court on not raised. point

the dissent’s grounds urged We conclude all three allowing in to call erred Carter appeal, whereby by Carter on this he would whom the letter witness the individual to court have that the district erred us hold of the record was addressed. Our review matter evi- considering his letter as a compels disagree. tous dence, We are without merit. ‍‌‌​‌‌​‌‌‌​‌‌‌‌‌‌‌‌‌‌​​​‌​‌‌​‌​​‌‌​​​‌‌​​‌​‌​‌​‌‌‍will there- 31, judgment fore the October affirm presented with When Carter was against the defendants and Car- entered for cross-examination, during his and against appel- will be it, ter. Costs taxed before he was directed to read It lant objected the letter’s relevance. was at Carter. stated, (3d Long, pro lated United States v. 574 F.2d 761

15. As earlier because of Carter’s se 985, 577, status, Cir.), require- have not him to the U.S. S.Ct. held supra. specific note 4 ment of invocation of rule artiсu- L.Ed.2d 657 See GIBBONS, Judge, dissenting. Hewitt directed beating Circuit actions; (2) a result My disagreement I dissent. respectfully Fuiek, Pyles that defendants and Levi’s mo appropriate legal majority with the on the granted based on tion dismiss stems, from their precepts part, reliance proposed of fact which findings correlated incomplete version of the facts. on an However, testimony. with the defendants’ being repetitious, too I deem Without adopting Magistrate’s report, complete set forth a version. necessary to specifically disposed of the case under Fed.R.Civ.P. rather than under Fed.R. I 53(e)(2). Civ.P. 12 or Carter v. Fed.R.Civ.P. complaint, In his amended Hewitt, 77-1168, slip op. Civ.No. at 2 n. defendants, Fuiek, Pyles that three (Oct. 13, 1978). n. 1 disposition, Such a at Levi, wrongfully Septem- him beat Fuiek, least with respect Pyles Levi, during ber a “shakedown” of Car- inconsistent Magistrate’s with the report. It Huntingdon’s ter’s maximum cell in securi- is apparent there that are material facts at ty in placed unit. Carter was the maximum them, issue with respect to and thus the three unit, security Adjustment the Behavioral guard defendants are not entitled to summa (BAU), participation Unit his in bеcause of judgment ry Moreover, as a matter of law.1 escape an had attempted involved quite it is clear that the district court never holding guards hostage, several of one a transcript saw to which injured. whom also seriously was Carter refers, majority because that transcript Superintendent seeks to hold the not from prepared was an electromechani Hewitt, institution, his ca- liable official recording cal until this court ordered it pacity supervisor these correctional filed, appeal after the notice nor was officers. any there affirmative evidence rec that ord the district court listened to the The district court referred this matter to recording. any event, the order was a hear, submit, and file “[t]o judgment, form of final reviewable proposed findings of fact and recommenda- (1976). under court 28 U.S.C. 1291 This § disposition of tions for the the matter with granted for court Carter’s motions leave to court . . . 28 U.S.C. proceed pauperis appoint for forma and 636(b)(1)(B)(Supp.1979). § ment counsel. The defendants for or in moved dismissal alternative, summary judgment, and II filed supporting affidavits. to Pursuant 56, 56, Rule the Magistrate Fed.R.Civ.P. presents Because this appeal eviden- plaintiff advised dem- file affidavits that question, tiary a brief review of the testi- inappropriateness onstrated the of summa- mony necessary. Carter’s witnesses testi- ry judgment. A was hearing July held on to having guards fied heard the defendant 24, 1978, time, plaintiff presented at which beating him, although they actually never witnesses, three all of whom were fellow anyone saw strike Carter. There was testi- inmates of Carter’s. mony the effect that visit was a procedural posture of this case is not “shakedown”—a search of Carter and his clarity. model cell; recom- aid; that Carter asked for medical (1) mended to the district that defend- that Carter was threatened with incarcera- ant summary judgment Hewitt’s motion for cage (cells the glass tion in surrounded by granted be ground that on even assum- glass scrutiny) wall for additional if he ing true, allegations legal claim sought witness, medical advice. One existed alleged McCoy because was not that say testified that he heard Carter he Co., 566, (3d 1976), 1. See Adickes v. S. H. Kress & 398 U.S. F.2d 573 429 144, 157, 90 S.Ct. 26 L.Ed.2d U.S. S.Ct. 50 L.Ed.2d (1970); Co., Goodman Mead Johnson & Hewitt, witness, superintendent, Defendant another bloody mouth and had a procedure there is a testified that he first saw Castle, that when testified never had complaints inmate Carter later, face was hours Carter 36 recalled that Carter filed one. Hewitt contradictory testimo- There swollen. often mentioned harassment witnesses as whether ny by plaintiff’s attention. a lack medical staff and beating could be identi- the sounds of However, not that Carter did recall Hewitt beating by byor a baton or fied as a fists any claims about specific made flashlight. 22, 1977, claims although Carter September testified the defendant Moreover, Hewitt he did so inform Hewitt. cell guards him of his for a ordered outside generally stated he has directed cell, and that once out of shakedown absolutely guards to use force until they began to beat him. He testified that knowledge that necessary has no and he by Pyles’ struck baton fists have been any civil or criminal actions ever ribs, eight times and that seven or against defendants. successfully concluded Levi hit with his baton 20- defendant him infirmary testi- Morgan, supervisor, He on his collar bone. stаted that times day question he conduct- fied baton, attempted grab Levi’s when he BAU.2 daily inspection ed usual mouth, thereby him in the Levi kicked He stated Carter had not filed causing his mouth to also bleed. although he cannot reports” “sick and that Fuiek him three stated that struck four spoke or not he to Carter recall whether flashlight his in the back the times with or day, any not did view bruises that he He that he was threat- head. reiterated injuries subsequent days, and that any on glass he cage the if asked for ened with fellow informed that Carter inmates him only his attention. He stated that medical in This need of treatment. bloody lip injury was his because noticeable with Carter’s version inconsistent injuries. his covered all his other clothes most of report file a and that attempt his clothing. injuries by covered guards testified that were All three defendant they cell for a had entered Carter’s routine essen- Magistrate The and district court inspection beating and that no was adminis- tially with presented question were the Instead, day. tered to Carter on each that suffer an whether Carter did did not out of cell stated that when Carter came September 22, 1977. unlawful grabbed pulling Levi’s con- he baton and testimony for certainly ample There was Pyle pulled test testified that ensued. de- the to make such a factual Levi, struck Carter off but never him. However, of the on the basis termination. Upon hearing commotion, Fuiek the testi- written, focus letter Carter that fied he came out of the cell and threat- that issue incorrectly the case shifted to the through put flashlight his 18" Car- ened Carter had whether or not fabricated go of ter’s face if Carter did not let Levi’s brutality complaint.3 contention point, At that Carter released his baton. prejudi- that admission in evidence of this guards stated that agree. hold on the baton. The cial reversible I letter was error. report they not file an “incident” be- did Ill and it cause no blows were struck was not cross-examination, extraordinary require report. so as to such On was shown Carter deny striking All and don’t a letter he had a fellow three Carter written to asking prisoner Magis- doctor. on March The recall Carter for a 1978. by respond reports Apparently specifically in- sick filed the inmates havе not been they procedure because inmates. formed medical infirmary supervi- disagreed as to whether every morning majority’s BAU quoted sor visits the to administer 3. The letter full only irregular opinion. Maj. medical care or visits on an basis Op. at See 964—965 n. 1. specific finding court, trate made of fact that The district adopting Magis- 15, 1978, March was written on report, heavily trate’s also relied on the beating. six after the months quoted following portion of it majority opinion implies that date is a highly relevant to the of credibility issue by stating object- disputed issue and falsification: ed, “claiming that the letter had been writ- up my This is a set compile brothers — alleged beating. ten six months after the complaints courts, to be used for bullshit letter, undated, . The which was media, possibly program news and a radio generally recip- to its unidentified described Pittsburgh & Philly. down W.D.A.S. charging prison file a complaint ient how to We pattern want to establish a of barbar- brutality.” Maj. Op. (em- guard at 964 ic brutal harassment and turn it on these added). phasis fact that letter was chumps to max. written months after suit was six com- important analysis menced is to an under App. 20a. The district court cited no addi- three majori- rules on which the tional admissibility. reasons the letter’s ty justify Moreover, relies to its admission. Although tape recordings were made of the majority’s an reference to “unidentified Magistrate’s hearing, as noted above they prisoner” prisoner is incorrect. The to were not transcribed until case arrived present whom the letter was written was in here, and there is no indication courtroom, and Carter asked if he could district judge light listened to them. call him as witness. The de- the reliance both the district court and request, nied prisoner, and the who had the Magistrate on this I cannot ac- name, been identified was never called cept appellees’ contention that if its as a witness even after the letter had been error, legal admission was that such error admitted. Moreover, is significant harmless. it Carter, counsel, object- who was without that appellee’s brief does not contend that ed to the admission of the letter. The properly Instead, letter was admitted. Magistrate reserved decision its admissi- they state “[although аrgument bility, but instructed read aloud can be made that it proper for the from the witness stand. Carter testified district challenged letter, admit the that he had written the letter because a the dispositive issue appeal of this is wheth- prisoner fellow had been abused and needed court, er the district it even if erroneously proceed. advice on how to He denied that admitted the committed reversible recommending prisoner he was file majority error.”4 The does not accept complaint. false contention, harmless error it but has con- The Magistrate determined that whether structed the appellees for several theories been beaten was matter of admissibility parties which those never credibility credibility and resolved the issue „ Indeed, urged. referring appellees’ against The Magistrate him. found that “questionable litigation strategy,” they ad- the letter was an attempt Carter “to vocate several admissibility theories of have his fellow inmate an alleged fabricate parties. so, doing behalf of those how- beating, similar to one that has [Carter] ever, they disregard completely the obvious ” App. here. . . 15a. Al- explanation appellees’ litigation for the though Magistrate other listed reasons strategy. explanation That the rec- rejecting for it story, Carter’s is evident ord discloses the exclusion evidence bear- part that the letter was a crucial of deter- ing critically probative on the value of the mining credibility. Carter’s any letter for purposes which the held that the letter was relevant to Carter’s majority deems it admissible. operandi credibility, modus without stating majority evidentiary might rules construes the as ad- applicable. (1) missible because it is an admission of a Appellee

4. Brief for at 17. explanation, Carter’s innocent of false confirmed cause the conspiracy explanation such a or they evidences would credit if it (2) because charges, credibility September upon the his version it bears conspiracy September as to the events. it is evidence events, (3) if because Although I do not discuss detail that the it is evidence conspiracy such a majority finds several theories on which 22, 1977 Sеptember complaint about admissible, silence should not my the letter scheme, or plan part of events was The discus acquiescence. be construed as find it operandi. I do not a modus suggests particularly dis sion of Fed.R.Evid. 608 is the labored in detail to review necessary considering that its au turbing, especially manages to majority by which the effort joined of the Rule disposition thor an in March 1978 to a letter written relate Herman, 608 issue in United States September transpired event which 1191, 1196-98 1978). (3d Cir. it F.2d Suffice if the connection merely I note that theory of admissibili ‍‌‌​‌‌​‌‌‌​‌‌‌‌‌‌‌‌‌‌​​​‌​‌‌​‌​​‌‌​​​‌‌​​‌​‌​‌​‌‌‍ any to observe that on establishing it not re- would self evident ty required the court would be before rul said words. If the letter quire many so listen, least, ing to to evidence which at conspiracy to file “I a member of a am might give meaning surrounding from charges, charge and the filed false ambiguous inherently to an circumstances pursuant made September 1977 was document. conspiracy”, judgment appealed I would affirm the grounds on all the it would be admissible grants summary judg- from insofar as it majority But the letter which the relies. Hewitt, since ment in favor of defendant majоri- way. does not read that Rather connecting him to the there no evidence it it ty interprets as if was so intended alleged beating. I would reverse and re- It another as to so understood. instructs complaint insofar as it dismisses the mand making complaint. the manner Fuiek, against Pyles and Levi. addressed to an inmate contends that was beating, who had suffered a as the result inquiry respect from that inmate with

legal redress. If the and the in-

quiry place, simply took then the letter major-

cannot have the relevance which the ity to it for of the three attributes

purposes upon. relied Magistrate, The record is clear that PRODUCTS DIVISION ELECTRICAL admissibility,

before he ruled on excluded CORPORA- OF MIDLAND-ROSS which, testimony by the addressee accord- Petitioner, TION, Carter, ing explained the would have true context of the letter. After the case was closed the admitted the mis- LABOR RELATIONS NATIONAL sive, given oppor- and Carter never was BOARD, Respondent. tunity put in evidence of the circum- No. 78-2556. surrounding preparation. stances its We do Magistrate, know whether the Appeals, Court of United States addressee, testimony heard the who Circuit. Third court, given would have available 8, 1980. Argued Jan. the letter an innocent connotation. We do court, not know that the district had the March Decided addressee’s been recorded it, like- had he listened to would have done apparently majority But is con-

wise. that, fully even if the addressee had vinced

Case Details

Case Name: Reginald Carter v. Lowell D. Hewitt, Superintendent John Fuiek, C.O. Duane D. Pyles, C.O. And Gilbert Levi, C.O.

Court Name: Court of Appeals for the Third Circuit

Date Published: Feb 27, 1980

Citation: 617 F.2d 961

Docket Number: 79-1423

Court Abbreviation: 3rd Cir.