Appellant Edward P. Collicott, Sr. (“Colli-cott”) appeals from his conviction on three counts of possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1). We reverse and remand for a new trial.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Surveillance and Arrest
On June 9, 1994, Spokane County Sheriffs Office Detectives (“Sheriffs”) began surveil
At 9:52 p.m. that evening, Collieott checked into a motel with Zaidi in Yakima, Washington, under a false name. The surveillance team rented the room next door to Collieott. At 11:52 p.m., Sheriffs observed Collieott leaving the motel in his car. The surveilling officers followed Collieott and observed him exiting a convenience store with a white plastic bag. Collieott returned to the motel at 12:35 a.m.
Collieott and Zaidi checked out of the motel at 9:00 a.m. on June 10, 1994. Although two officers testified at trial that they observed Collieott put a white plastic bag into the rear passenger area of the rented car before driving away from the motel, neither officer stated that in their report.
Surveillance continued on the road. Shortly after Zaidi switched with Collieott as driver of the car, Sheriffs pulled them over. An officer observed Collieott reaching into the back seat of the car. When Sheriffs arrested Collieott, he falsely identified himself as William Collieott. Sheriffs obtained and executed a warrant, seizing $4,500 cash, syringes, balloons, and fake IDs, from Collieott’s person. They found a white plastic bag behind the driver’s seat containing 11 grams of heroin, 125 grams of methamphetamine, and 26.5 grams of cocaine.
Officer Chris Kehl (“Kehl”) interviewed Zaidi at the time of the arrest. She had no cash or drugs on her. She was not charged with any offense.
II. Trial Testimony
At Collicott’s trial, the Government called Zaidi as a witness. She testified that she is an unemployed mother and a drug addict who supports herself through prostitution. She denied dealing drugs, but explained that the only drugs she had sold in the past 10 years was one-eighth ounce of marijuana in 1986.
Regarding the evening she spent with Col-licott at the Yakima motel, Zaidi testified that Collieott placed a ‘pile of money’ on the bed in the motel room. Sometime later, Collicott’s friend, named Luis, allegedly entered the motel room while she was cooking and smoking cocaine in the room. After Luis left, she noticed a brown paper bag was in the room but the money that Collieott placed on the bed was gone. Zaidi also testified that she could not hear any discussions between Collieott and Luis, and admitted that she was impaired by cocaine at the time.
On cross-examination, defense counsel asked Zaidi whether she recalled telling arresting officer Kehl that Luis came to the motel room between midnight and 1:00 a.m. that morning. Zaidi did not remember making any such statement. The colloquy was as follows:
Q. All right. Well, do you remember a police officer Kehl, K-e-h-1, or Chris Kehl or something, interviewing you?
A. No, I don’t.
Q. You don’t remember telling him that this person you claim came to the room in Yakima came between midnight and 1:00 a.m.?
A. No, I do not remember saying that.
Q. You don’t remember saying that?
A. No, I don’t.
Tr. 194. Zaidi was excused after a brief redirect examination.
Collieott then called Officer Kehl to the stand. The direct testimony of Officer Kehl follows:
Q. Okay. You were interviewing Melauni Zaidi after she was- — the vehicle was stopped?
A. Yes.
Q. And as part of your interview * * * you wrote in your notes and I presume this is something she told you?
A. Yes.
Q. That sometime between midnight and one o’clock, a person allegedly arrived and delivered drugs to that room?
*977 A. Yes.
Tr. 326.
After this direct testimony, the Government attempted to examine Kehl about the remainder of the statements made by Zaidi to Kehl at the time of Collieott’s arrest. However, Collicott objected on the ground that the testimony was improper hearsay and beyond the scope of the direct. The court overruled the objection and allowed Kehl to answer the question. The following is the exchange between Kehl, counsel, and the court:
Q. Good afternoon. Did Melauni Zaidi give you any further information about what occurred in the motel room on June 9th, 1994?
A. Yes, she did.
Q. What else did she say happened?
[Defense Attorney]: Your Honor, I am going to object, it is beyond the scope of direct.
COURT: Overruled.
[Defense Attorney]: Can we have a sidebar so I could make a record?
COURT: All right.
[Defense Attorney]: Judge, I called [Kehl] for the one question and anything else is hearsay. * * *
COURT: I think you have opened it up when you asked him what she said regarding what transpired in the hotel room. I think we ought to get the whole story.
[Defense Attorney]: Well, I totally object, Your Honor, and there is no basis for it to come in at this point. There is no exception to it.
[Prosecutor]: Judge, this is under 609(b). Your Honor, extrinsic evidence to impeach a witness can come in and it is not subject to the hearsay rules.
COURT: Yeah.
[Defense Attorney]: I don’t believe that is the case here. This is not — this is hearsay of that person. There is no excep-
tion that applies here. She had a motive to fabricate her story right from the start.
It is not a prior inconsistent (sic) statement to rebut a charge of recent fabrication. It doesn’t fit in the mold. It is straight hearsay and it is beyond the scope of direct totally.
COURT: Well, in the first place, I don’t think it is beyond the scope of direct and what is it that you expect him to say?
[Prosecutor]: That she was in the room. A friend of Ed Collieott’s came in by the name of Luis. Luis had a brown paper bag and put the bag down. Ed Collicott spread money out on the bed and the money was given to Luis.
COURT: So she saw that?
[Prosecutor]: Yes.
* * *
COURT: No, I think you have opened it up, Mr. Johnson.
[Defense Attorney]: All right. Well I want the record to reflect my objection on the—
COURT: It does.
[Defense Attorney]: — grounds that it is hearsay and there in no exception for that to come in.
Tr. 326-28 (emphasis added).
After this exchange, the Court permitted Kehl to answer the Government’s question as to what else Zaidi said to him:
A. She said that once the subject she knew as Luis arrived, he immediately tossed her a bag of cocaine and she began to rock it up, make it into crack cocaine, and while she was doing that, Luis gave a brown paper bag to [Colli-eott] and they began talking about various drug transactions and wanting to have additional drugs fronted to him and [Collicott] gave some money to Luis which he spread out on the floor and was counting while they were talking and she overheard something to the effect of $11,000 worth of drugs had been bought in the previous week by the Collicott family.
Q. And did she tell you who Luis was?
*978 Defense Counsel: Again, I am going to object to hearsay and I ask for a continuing objection.
Court: Granted, you have the objection.
A. She told me that she believed — well, she wasn’t sure if Luis was his name, but however he was arrested in Spokane earlier in the year for possessing or dealing drugs.
Q. And who contacted Luis in Yakima, did she say?
A. That once they arrived at the hotel, [Collicott] was making phone calls trying to contact him.
Tr. 329-30.
After deliberating, the jury found Collicott guilty of possession with intent to distribute a controlled substance. Collicott seeks reversal of his conviction because (1) the trial court erroneously admitted damaging out-of-court statements by the cooperating witness through testimony by an arresting officer, (2) the trial court erroneously allowed use of Collicott’s prior drug convictions, (3) the conviction was based on perjured testimony by the cooperating witness, and (4) the Government violated Brady v. Maryland,
DISCUSSION
I. Kehl’s Testimony Regarding Prior Statements Made by Zaidi
Collicott contended at trial and on appeal that the district court erred in admitting hearsay by Kehl, which violated the rules of evidence and his constitutional confrontation rights. The Government responded at trial that the statements were admissible under Fed.R.Evid. 609(b), which obviously does not apply.
Whether the district court correctly construed the hearsay rule is a question of law reviewable de novo. United States v. Gilbert,
A. Rule 801(d)(1)
Rule 801(d)(1) reads in its entirety:
A statement is not hearsay if—
(1) Prior statement by a witness. The deelarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent with the declarant’s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person * * *.
Subsection (A) is not applicable here because Zaidi’s statements to Kehl were not made under oath in a prior proceeding. Likewise, subsection (C) is also irrelevant because the challenged testimony did not involve prior identifications. Therefore, by arguing that Rule 801(d)(1) permits inquiry into the entire conversation between Zaidi and Kehl, the Government must be relying specifically on Rule 801(d)(1)(B).
The Supreme Court recently emphasized that admissibility of prior consistent
For the purposes of determining the applicability of Rule 801(d)(1)(B), we first distill the progression of the relevant testimony:
(1) the declarant, Zaidi, testified about a drug dealer, Luis, coming to the hotel room and exchanging drugs for cash with Collieott;
(2) Zaidi was subject to cross-examination concerning this statement;
(3) on cross-examination, Collieott also asked Zaidi what she told Kehl about the time of day Luis arrived, but Zaidi responded that she did not remember;
(4) Collieott then called Kehl to testify about what Zaidi told him regarding the time of day Luis came to the room to perform a drug deal;
(5) in response, on cross-examination, the Government asked Kehl what else Zai-di told Kehl during that conversation.
As discussed above, a proponent must establish four elements under Rule 801(d)(1)(B): (1) the declarant must testify at trial and be subject to cross-examination; (2) there must be an express or implied charge of recent fabrication or improper influence or motive of the declarant’s testimony; (3) the proponent must offer a prior consistent statement that is consistent with the declar-ant’s challenged in-court testimony; and, (4) the prior consistent statement must be made prior to the time that the supposed motive to falsify arose. Although the Government relies on Rule 801(d)(1)(B) for admission of Zaidi’s out-of-court statements, it cannot establish any of the last three elements.
In fact, the Government argues that it need not establish these foundational requirements because Rule 801(d)(1)(B) permits the introduction of an entire conversation by a witness after the opposing party has “opened the door” by impeaching the witness using portions of that conversation. However, the plain language of Rule 801(d)(1)(B) does not suggest that where a party inquires into part of a conversation, the opposing party may introduce the whole conversation as substantive evidence under the Rule even though the statements do not rebut a charge of recent fabrication or improper motive. Moreover, Tome makes clear that statements are admissible under Rule 801(d)(1)(B) only if the statements were made before the existence of the motive to fabricate. — U.S. at —,
Nevertheless, we do recognize that under the “opened door” rationale, this Circuit has historically allowed a party to introduce prior statements because they were part of the same conversation or document from which impeaching inconsistent statements were
After a witness has been impeached with prior inconsistent statements,
Accordingly, admissibility under the “opened door” rationale concerns two issues: whether Collicott impeached Zaidi through prior inconsistent statements which were drawn from a larger conversation; and, if so, whether the remaining hearsay statements from her conversation with Kehl clarify or provide context to the inconsistent statements, such that they become relevant and thus admissible for a purpose other than to prove the truth of the matters asserted therein.
Zaidi testified at trial that she did not remember making any statements to Kehl at the time of Collicott’s arrest. Zaidi’s answer
However, the other statements from Zaidi’s conversation with Kehl do not clarify or provide context to her inconsistent statement introduced by Collicott.
B. Principle of Completeness Under Rule 106
Although the Government relies on the “opened door” rationale for admission of Zaidi’s out-of-court statements to Kehl, we cannot discern from the trial court record whether the district court judge admitted Zaidi’s out-of-court statements under the “opened door” rationale or the Principle of Completeness under Rule 106. Thus, we must address applicability of the Principle of Completeness under Rule 106, which is intimately related to the “opened door” rationale. Rule 106 provides:
When a writing or recorded statement or part thereof is introduced by a party, an*983 adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.
The Advisory Committee Notes state, in relevant part:
The rule is based on two considerations. The first is the misleading impression created by taking matters out of context. The second is the inadequacy of repair work when delayed to a point later in the trial. * * * For practical reasons, the rule is limited to writings and recorded statements and does not apply to conversations.
Rule 106, Advisory Committee Notes. The rule of completeness requires that a full document or set of documents be introduced: “[W]hen one party has made use of a portion of a document, such that misunderstanding or distortion can be averted only through presentation of another portion, the material required for completeness is ipso facto relevant and therefore admissible * * Beech Aircraft Corp. v. Rainey,
We find that Zaidi’s statements were not admissible under Rule 106 for three reasons. First, in textual form, Rule 106 is inapplicable to the present action because no writing or recorded statement was introduced by a party.
C. Past Recorded Recollection Under Rule 803(5)
Finally, in an apparent last ditch effort to advance some applicable legal theory, the Government grasps at the legal straw
However, the Government cannot satisfy the basic foundational elements of Rule 803(5). There simply is no evidence that Zaidi adopted Kehl’s report as her own recorded recollection nor did she vouch for its accuracy. Therefore, Rule 803(5) provides no basis for admitting Kehl’s testimony regarding Zaidi’s statements. For all these reasons, the trial court erred in admitting the testimony.
II. Harmless Error Analysis
Noneonstitutional errors are harmless unless the reviewing court has grave doubt whether the erroneously admitted evidence substantially affected the verdict. United States v. Crosby,
As discussed above, Kehl’s testimony regarding Zaidi’s out-of-court statements was not admissible under Rule 801(d)(1)(B), the “opened door” rationale, Rule 106, or Rule 803(5). Consequently, the Government enjoyed a windfall of inadmissible evidence which bolstered its contention that Collicott engaged in a drug transaction and which suggested that Collicott was heavily involved in local drug distribution networks. Perhaps most importantly, Zaidi’s detailed statements to Kehl impressed upon the jury that “Luis” existed and did enter and exit the motel room, even though he was never seen by a trained surveillance team and Zaidi made these statements with a significant motive to lie about who was involved in the alleged drug deal, as well as who owned the drugs.
? inadmissible statements were critical to the jury’s determination of the purchase and ownership of the drugs. Although not constituting prosecutorial misconduct which would bar retrial under the Double Jeopardy Clause, Oregon v. Kennedy,
REVERSED and REMANDED FOR NEW TRIAL.
Notes
. Rule 609(b) concerns the admissible period of time from which criminal convictions may be used for impeachment. We assume counsel intended to refer to Rule 608(b) which applies to the admissibility of specific instances of conduct used to attack or support the credibility of a witness. Nevertheless, Rule 608(b) is also inapplicable here.
. Some have advocated alternatives to the utilization of sidebar conferences for review of evi-dentiary matters. See Rafeedie, The Conduct of Trials, A Neglected Area of Judicial Reform, 23 Sw.U.L.Rev. 205 (1994); Rafeedie, Speedier Trials, 21 No.l Litig. 6 (1994).
. Unfortunately, however, the cases cited for this proposition confuse the relationship between the "opened door” rationale and Rule 801(d)(1)(B) which only applies where a witness has been impeached by an express or implied charge of recent fabrication or improper motive, which the Government concedes is not present in this case.
. Although these cases permitted the introduction of prior statements after the witness was impeached, there is some support for the Government's proposition that the witness need not even be impeached with statements from the conversation to allow admission of the entire conversation. For instance, in United States v. Parr-Pla,
. Note that impeachment with prior inconsistent statements is only one of five main forms of impeachment of the credibility of a witness, which include: (1) introducing prior inconsistent statements, (2) showing bias, (3) attacking the witness’ character for truthfulness, (4) attacking the perception or memory of the witness, and (5) contradicting the witness’ testimony. Strong, McCormick on Evidence % 33 (1992).
.Other circuits adhere to a similar rule but do not refer specifically to the "opened door” rationale. See United States v. Castillo,
. When referring to the relevance of hearsay statements which are used to provide context to impeachment statements, we mean relevant for a purpose other than to prove the truth of the matter asserted in the out-of-court statements. Obviously, many of the statements made by Zaidi to Kehl about the drug transaction are relevant to the substantive issues in this case but are inadmissible hearsay if offered to prove the truth of the matter asserted in the statement. See Rules 801, 802. However, if they become relevant for a purpose other than their truth, such as to clarify and provide context to other statements from the same conversation, then they may be admissible.
. The Government would have us allow the admission of the entire conversation or document, regardless of its relevance, whenever a party inquires into part of the conversation or document. We decline to extend the "opened door" rationale so far. The remaining hearsay statements will only be admissible if they have relevance for a purpose other than to prove the truth of the matters asserted in the statements.
. Though not a strict application of Rule 106 (partial codification of the Principle of Completeness), we have applied the "opened door" rationale, in accordance with the Principle of Completeness, in the arena of impeachment with prior inconsistent statements from a conversation or document. We recognize that Rule 106, which we discuss below, expresses similar concerns regarding inquiry into portions of documents, but that Rule is distinct from the more narrow inquiry under the "opened door” rationale which we have applied only to impeachment by prior inconsistent statements which constitute a portion of a conversation or document.
However, we also are aware that Judge Wein-stein and Professor Berger recommend abolishing the confusing distinction between the "opened door" rationale and the Principle of Completeness:
Often the courts have stated, in permitting the adversary to develop the matter either on cross-examination or, as part of his own case, that the proponent "opened the door” to its admission. This merely serves to confuse the issue since:
[t]he doctrine of "opening the door” is an application of the “principle of completeness,” that is, if one parly to litigation puts in evidence part of a document, or a correspondence or a conversation, which is detrimental to the opposing party, the latter may introduce the balance of the document, correspondence or conversation in order to explain or rebut the adverse inferences which might arise from the fragmentary or incomplete character of the evidence introduced by his adversary.
The phrase “opening the door," has been used with such a lack of discrimination, that it would probably be well to eliminate it. * * * Only if the evidence by one party needs to be met or explained away by the other side does its mere introduction provide independent warrant for the introduction of other evidence.
J. Weinstein and M. Berger, Weinstein's Evidence, ¶ 106[02] at 106-18 (1986) (quoting United States v. Corrigan,
. Zaidi's other statements from her conversation with Kehl are the following: (1) Luis “immediately tossed [Zaidi] a bag of cocaine,” (2) "she began to rock it up, make it into crack cocaine,” (3) Collicott and Luis talked about various drug transactions, (4) Collicott stated that he wanted to have additional drugs fronted to him, (5) Collicott gave money to Luis which “he spread out on the floor and was counting while they were talking," (6) Zaidi "overheard something to the effect of $11,000 worth of drugs had been bought in the previous week by the Collicott family," (7) Zaidi told Kehl that Luis “was arrested in Spokane earlier in the year for possessing or dealing drugs,” and (8) after Collicott arrived at the motel, he "was making phone calls trying to contact [Luis].” Tr. 329-30.
. In fact, the Government stated at oral argument that the statements were relevant to show that Collicott did engage in a drug deal at the motel. As explained above, these statements are not admissible to prove the truth of the matter they assert, but rather may only be introduced for a non-hearsay purpose.
Because we conclude that the statements are not admissible under either Rule 801(d)(1)(B) or the "opened door" rationale, we need not decide whether, in light of Tome, this circuit permits statements, which are admissible under the "opened door" rationale but not under Rule 801(d)(1)(B), to be used as substantive evidence even though the "opened door” rationale is distinct from Rule 801(d)(1)(B). Compare Payne,
. However, this by itself, is not dispositive because other circuits have held that "Fed.R.Evid. 611(a) grants district courts the same authority regarding oral statements which [Rule] 106 grants regarding written and recorded statements.” United States v. Li,
. But see United States v. Sutton,
. Although we reverse on Collicott’s first assignment of error we address the remaining three assignments of error to help guide the trial court on remand. See, e.g., United States v. Hairston,
First, the trial court properly allowed the Government to impeach Collicott's testimony that “[he] wouldn't know how to begin to sell drugs like that,” by inquiring into his 1988 drug conviction for delivery of a controlled substance. The prior conviction became probative after Col-licott testified that he would not know how to sell such drugs. We cannot say that the trial judge abused his discretion in admitting such evidence to impeach Collicott’s testimony.
Second, we need not consider whether, in the interests of justice, Zaidi’s perjured testimony requires a new trial because we remand for a new trial on other grounds and Zaidi’s perjury is not likely to arise on retrial. Likewise, Colli-cott's final assignment of error regarding the Government's failure to disclose Zaidi’s prior involvement in drug deals in violation of Brady v. Maryland,373 U.S. 83 ,83 S.Ct. 1194 ,10 L.Ed.2d 215 (1963), is also not likely to reoccur on remand; thus, we decline to address the issue here.