United States v. Cornel T. Montague

of America STATES UNITED MONTAGUE, Appellant. T.

Cornel

No. 91-3012. Appeals, States Court

District of Columbia Circuit.

Argued 1992. Jan. 10, 1992.

Decided March April

As Amended substantively. and procedurally

erred both in no error the statement’s As we find admission, any particular, other the convictions. affirm

I. BACKGROUND 5, 1990, grand jury a federal April On charging Montague indictment returned an intent to dis- possession with unlawful grams or more of cocaine base fifty tribute 841(a)(1) and of 21 U.S.C. in violation § 841(b)(l)(A)(iii)(l)and use of a firearm § trafficking in drug violation relation 924(c)(2). superceding indict- A 18 U.S.C. § 31, 1990, conspiracy added May ment on cocaine in violation of U.S.C. distribute 841(b)(1)(C). three-day In a 846 and § § 30, 1990, July govern- beginning trial Rus- evidence from Moses ment introduced Montague, tin, original an co-defendant guilty posses- plea who had entered unregistered firearms. After Rus- sion of by examination testimony and cross tin’s counsel, called Montague’s Metropolitan Police Culver of the Officer Rustin, on testified that Department, who arrest, rights waived his night of his of the gave police a statement and at Mon- to which he testified same facts D.C., Davis, Washington, for Mary E. timely ob- Montague entered tague’s trial. Levin, Washing- Marc appellant. Arthur of the statement. to the admission jection Court) D.C., ton, (appointed by Dis- Montague argues that the brief, appeal appellant. for On admitting the state- trict erred Court Peters-Hamlin, Atty., Asst. U.S. Kristan instance, admitting first ment in the Stephens, Atty., Jay B. with whom other testimony of a witness through the it McLeese, Roy Fisher and W. and John R. the statement maker of than the D.C., Washington, III, Attys., Asst. U.S. set For reasons we will second instance. brief, appellee. on the were below, fully we find more forth Fed- fully admissible under SILBERMAN, WALD, Before: eral Rule Evidence SENTELLE, Judges. Circuit court argues that also Defendant by filed Circuit Opinion for the Court the cross placed on in the limitations erred As that Judge expert SENTELLE. witness. examination of discussion, re-we little objection warrants Judge by opinion filed Circuit Separate background facts relevant serve the WALD, result and concurring in the discussing appli- opinion our section of the rationale. dissenting part as to law. cation of the Judge: SENTELLE, Circuit II. Analysis appeals judg- Montague Cornel Pre-trial Rustin’s Admission A. The drug-related on three ment of conviction Confession that in the admission charges. He asserts Federal Rules Although by a Rule 801 consistent statement aof hearsay in traditional defines witness, of Evidence the District Court terms as “a statement other than one examination that the witness testifying the declarant while hopes clemency by to secure testimony, his hearing, trial or offered evidence to that cross examination constitutes at least prove asserted,” the truth of the implied matter charge improper motive, of hearsay. Rustin’s confession is not possibly The also of recent fabrication. United goes Rule on to declare that Zito, Cir.1972). States v. 467 F.2d 1401 “[a] hearsay is not if ... declarant testi- [t]he Montague argues that reasoning hearing fies at the trial or and is to apply present should not case be- concerning cross-examination the state- government cause the trial counsel had ment, and the statement is ... consistent questioned Rustin guilty plea about his testimony with the declarant’s and is of- testifying for motives on direct examina- express implied charge fered to rebut an or direct, tion. Rustin testified on as on against the declarant of recent fabrication cross, pleaded that he guilty and did improper or influence or motive....” Rule hope judge fact would consider his 801(d)(1)(B). The District Court admitted testimony truthful at the time of sentenc- Rustin’s consistent statement under However, ing. this does not affect Rule, this and did properly, so as the state- application 801(d)(1)(B). of Rule ment was offered to an implied rebut government may anticipate that the de- charge that Rustin fabricated his state- fense impugn will the motive of a witness hope ment in the receiving lighter of on cross framing examination in its direct. plea guilty possession sentence for his of may It frame its direct so as to defuse that unregistered firearms. impugning thereby surrendering without right charges its to rebut defense of recent 1. The Foundation fabrication, improper influence, or motive Montague argues that there was thereafter made the defense. See Unit- proper bring not a foundation to the state Brennan, ed States v. “ 801(b). ment within Rule He asserts that (2d Cir.1986) (government ‘impeachment’ express implied there was no charge of its own prevent witness” does not fabrication, recent improper influence or government responding appellant’s from government motive to be rebutted. The impeachment witness); of the same rightly counters that defendant’s trial Allen, 532-33 counsel, during her cross examination of Cir.1978)(government may charge rebut Rustin, questioned concerning him his charge recent fabrication even where such guilty plea hope and his leniency. for We suggested by government’s evidence, agree judge with the trial that this consti long government’s so evidence is not very “implied tutes at the least an charge merely introduced to enable the bolstering improper motive,” ... of ... as re statement). of its case with quired by 801(d)(1)(B). Rule The record short, In attorney when defense bolsters our confidence this conclusion pursues a line of questioning designed to by disclosing that the United States offered impugn witness, the motives of a she as to withhold tender of the statement if sumes the risk that the will agree the trial counsel argue would not to introduce rebuttal evidence under Rule closing jury to the hoped by that Rustin Simmons, United States v. sentencing his to influence the (7th Cir.1977). judge leniency. toward Trial counsel de clined the offer. The trial court admitted the statement. The defense Pre-existing 2. The Motive argument improper

did use the motive in Appellant makes a more serious ar closing. gument against admissibility regard closing argu

Without to the by asserting state ment, apparent we think it where the de ment was not admissible under Rule fense suggests jury by counsel cross because at the time he made his arrest could still used statement, motive for witness after he had same motive, as he did at trial. of a rebuttal fabrication Quinto noting “effectively view authority is some true that there It is respect swallows the rule with to be admissi proposition that order made to consistent statements 801(d)(1)(B), prior state ble under ...,” naturally as such statements officers must been made before there ment have decision, In follow another 1983 arrest. to fabricate. Second was a motive suggested a distinction Fourth Circuit Quinto, Circuit, in United States v. Quinto is of- where (2d Cir.1978), opined that F.2d 224 purpose rehabilitating fered “for the of satisfy to the condi statements consistent supporting the at-trial of a wit- must meet set forth in the Rule the tions “ subjected ness has whose been ‘in which rehabilitation standards United States possible impeachment.” to consistency have through would ... been ” Parodi, (4th Cir.1983) v. 768, 703 F.2d 785 allowed,’ adoption of the the Rule. before (citations omitted). 233, doing, In Evidence, Id. at quoting 4 Weinstein’s so the Fourth According 11801(d)(1)(B)[01],at 801-100. to in deci- Circuit noted a Second Circuit analysis, required Quinto, this the Second Circuit’s years sion a after concur- few a prior made to that “the statements were ring judge stressed that supposed falsify the to the time motive Quinto only itself was concerned with However, this arose.” 582 F.2d at 801(d)(1)(B) application the of Rule universally accept proposition far as use of the statements affirma- United in ed. As the Third Circuit stated present and it not tive evidence did DePeri, v. States 778 F.2d admissibility [question] the of when such Cir.1985), timing of consistent “[t]he lim- statements are offered for the more appeals.” the courts of statements divides purpose ited of rehabilitation. reached a The Seventh Circuit conclusion Quinto, reasoning that Id., Rubin, consistent with v. United States citing require four establishes (2d Cir.1979) (Friendly, J., concur- 68-69 testimony: admissibility ments for the of Neither in Paro- omitted). ring) (emphasis trial; (1) (2) the declarant testifies di Henderson nor does the Fourth Circuit cross examina the declarant be to appear possibility foreclose the of disa- tion; (3) the statement is consistent Quinto vowing altogether, the rationale testimony; the trial testi it,birth, gave and even the circuit that to rebut of im mony is offered a in Rubin Judge Friendly’s concurrence statement proper motive. Where Quin- goes note that statement on to improp made after the initiation of the United place. the first dictum motive, er the Seventh Circuit reasoned Rubin, (Friendly, States v. F.2d at require meet the it does not fourth J., concurring). Guevara, v. ment. United States (7th Cir.1979). have Circuits Fifth Eleventh , long “that the consistent statement held expressed have an uneas Other circuits prior to time need made not have been Quinto approach. The Sixth iness with the alleged to fabricate arose.” motive Hamilton, Circuit, in United States v. Pendas-Martinez, United v. States Cir.1982), (6th treated the Cir.1988). (11th To the 942 n. 6 relationship timing state v. e.g., United States effect, same inception of the motive to ment and the Anderson, (11th 915-16 Cir. materiality, a “not a falsify question Parry, 1986); United admissibility.” rule for hard and fast 1981); B, (5th Cir. June Unit United States v. Circuit, Fourth (5th Gandy, F.2d 1134 Henderson, Cir. 1983), Cir.1972). a ruled that a statement appearance Fifth and Eleventh Circuits motive has

joinWe relevance, might breathing no then holding prior consistent state- we specter appear- life into the that the United States preceded have ment need not Attorney agent might question or an FBI in order to render the ance of the motive witness a few minutes before he takes the non-hearsay under Rule stand in order elicit a contrary, as To hold to the just purpose statement for of bolster- noted, would bar almost the Fourth Circuit Thus, ing testimony. the trial instead of variety of such totally the most common once, hearing the witness's is, in the criminal context—that statements through perhaps disreputa- the mouth of a cooperating defendant the admission of a individual, jury ble could hear it first following arrest. directly again perhaps and then more Henderson, impor- F.2d at 139. More agent. FBI credible voice of the however, rely reasoning tantly, Judge Friendly in his Rubin concurrence prob We do not see this as a real adopted by Fourth Circuit Parodi. announcing lem. We are not rule that is, nothing expressly “there is stated That prior always the statement will be admissi supports in the itself which the view crossing of the four ble. elemental Quinto expressed in .United States stiles of Rule much involves Parodi, 785, citing at v. 703 F.2d United part judge. discretion on the of the district (Friend- Rubin, 609 F.2d at 68-69 The trial court must determine in the first J., in ly, concurring). The Rule fact does charge instance whether there has a been by requirements set the four noted forth fabrication, improper of recent influence or and listed the Seventh Circuit Guevara motive, it, whether the statement rebuts (1) testify must by us the declarant above: and, matter, for that whether there is suffi trial; (2) declarant must be the cient that the the evidence witness made examination; (3) prior the state- to cross statement order to cross the initial ment must consistent with the trial testi- be relevancy materiality. thresholds of and mony; testimony the must of- and be Herring, v. See United States charge of recent fered to a fabrica- rebut 535, (10th Cir.1978) (“trial 541 court has improper tion or influence motive. discretion to determine whether the state Guevara, 598 F.2d at United States v. being ment is offered in rebuttal of the testimony contention that is of recent brought fabrication or is about as a result said, however, being it not That all is a motive.”). influence or foregone every that conclusion statement possibility improp- initial made after the We further note that under Rule 403 of per er se not admissible to rebut motive the Federal Rules of Evidence: a that the trial is motivat- may evidence be excluded if relevant[] by ed that motive. Whether an arrestee probative substantially its value is out- giving shortly af- Mirandized weighed by danger preju- the of unfair person ter his arrest the same corroborates dice, issues, confusion of the or mislead- giving implic- courtroom after an ing jury, un- the considerations of explicit promise leniency it or is a factu- time, delay, due waste of or needless may al matter. While this case not involve . presentation of cumulative evidence. leniency, the promise identifiable As we noted on the last occasion that Quinto rule would bar even the state- pre question, we visited this because the ment of a witness who had received such on existence of the motive and its influence immunity. promise actual even —or generally statement are matters “ determine, opposite We are sensitive to the reduc- ‘the court for a factfinder to ” is, absurdity. tion to That to rule such as a were we should not exclude’ statements Sampol, temporal relationship the matter of v. between law. United States 621, (D.C.Cir.1980) (quoting making of the out-of-court declaration and 674

1099 326, Grunewald, 556, (1978); 58 L.Ed.2d v. S.Ct. United States United Lanier, 1246, Cir.1956), (2d grounds, v. rev’d on other States Cir.) (statement 963, (8th 391, 1 L.Ed.2d 931 made to motive 77 S.Ct. U.S. denied, 856, arising), cert. 439 U.S. 99 S.Ct. (1957)). (1978); 58 L.Ed.2d 163 United States Sampol, dicta we observed as What Zuniga-Lara, v. that a The fact now hold law. Cir.), denied, cert. 98 S.Ct. after prior consistent statement was (1978); 57 L.Ed.2d 1128 of a motive to fabricate appearance McGrath, per it the terms not render se outside does Cir.1977), denied, cert. 434 U.S. no error of Rule There was (1978). L.Ed.2d S.Ct. admission of appears minority of Seventh Circuit to be a present case. contrary. one Objection 3. Procedural B. The Limits Cross Examination the fact Appellant objects also Montague urges further United States offered and in limiting District Court erred his cross statement, through admitted the not court Coates, of Detective examination Lawrence Rustin, a third testimony of but that of expert witness. The is, That the officer who took party. accepted qualification court statement, it, presented identified it use, expert Coates as area jury. It is true the Seventh Cir narcotics, packaging, and distribution of West, 670 cuit stated police procedures handling narcot (7th Cir.1982), it was attempted ics. The defense to cross exam the of a wit permit error to introduction the effect ine Coates on of crack cocaine through another wit ness’s memory and the user’s abilities observa testimony. Circuit’s ness’s The Seventh tion, impeach in an apparently attempt to here, argued justification, by appellant the testimony of Rustin and another requires the Rule that the declarant is that ar government witness. The concern “subject to cross-examination be District that gued and the Court ruled statement_” ing the Rule qualified medical not to deliver Coates was Indeed, require it does. But it does not opinions. during that the statement be introduced testimony un subject expert The direct or redirect the witness’ gov Rules of is right for the of cross examination to der the Federal Evidence order in the Rule 702 states: by There no indication erned Rules 702-706. be exercised. any record here that defendant made scientific, technical, special- If other or further cross effort to recall Rustin for knowledge trier of will assist the ized following introduction of the examination or to fact to understand the evidence statement. issue, quali- a fact in a witness determine skill, by knowledge, expert fied as 801(d)(1)(B) hold Rule therefore We education, training, may experience, of the con does not bar introduction opinion of an testify thereto form through other sistent statement a witness or otherwise. join the declarant. note that we than We exper holding. scope of the witness’s field at least six other circuits so Provenzano, “largely to the discretion See, 620 tise is committed e.g., United States v. denied, Cir.), court.” v. Cars cert. of the trial (cita well, (D.C.Cir.1991) 101 S.Ct. 66 L.Ed.2d U.S. omitted). examiner (1980); Where the cross Dominguez, tion United (4th Cir.1979), go beyond subject far mat attempts to cert. denied direct, find States, likely to we are not v. United ter of sub nom. Sarmiento 1014, 100 judge that discretion trial abused S.Ct. 62 L.Ed.2d U.S. scope of (1980); Allen, by imposing limits related to find (9th Cir.), do not so nom. direct examination. We cert. denied sub States, 99 here. Mitchell v. United

Indeed, dealing not were we with witness is motivated to even falsify testimony at trial because of exper- difference in subject plain as the government. same deal with the See drug packaging materi- tise between Margaret Berger, drugs, & effects of the Jack Weinstein Wein- the medical als and 11801(d)(l)(B)[01] EVIDENCE, competency stein’s rule of of Federal general (“Evidence merely shows that the wit- 611(b)limits cross exami- Rule of Evidence thing ness said the same on other occasions matter of the direct nation to when his motive was the same not does affecting examination and matters probative simple have much for the force Here the limits credibility of the witness. repetition imply reason that mere does not judge totally are consistent placed veracity.”). admissibility post- of a that Rule. statement, investigation post-arrest or even on the other hand—like the one Rustin III. Conclusion precedes any made in this case—which dis- above, For the reasons set forth we con- cussions with the about lenien- clude that the trial court did not err in like, cy, pleas, immunity may appro- or the permitting the introduction of the priately up left judge’s gen- to the trial statement; in the manner in balancing probative- eral discretion in its introduced; or in which the statement prejudice ness versus its under Rules 402 placed on the cross examina- the limitations and 403. Therefore, expert tion of his witness. Although does not ex judgment District Court is plicitly timing deal with the vis-a-vis lenien cy plea negotiations of a witness’s Affirmed. consistent statement as a factor evaluat WALD, Judge, concurring in Circuit ing admissibility, its common sense does dissenting part judge result and as to the not ignore para allow a it as a mount consideration. Under the Federal rationale: Evidence, prior Rules of consistent state panel opinion I concur in the and in the generally ments of witnesses are inadmissi except lays result for the rule it down for 801(d)(1)(B) hearsay. provides ble Rule a determining pre-existing a whether motive exception limited prohibition. to that Ac prior to renders a fabricate inadmissible cording Rule, prior to the consistent under Federal Rule of consistent statement statement of a witness is “to admissible 801(d)(1)(B). Majority opinion Evidence charge a that her testimony rebut” in-court I (“Maj. op.”) at 1096-99. would follow the trustworthy “improper is not of an because Fourth decision in Circuit’s United States 1 alleged motive.” When the motive to fal Cir.1983), 135, Henderson, (4th v. 717 F.2d 139 sify promise in-court is a denied, 1009, 465 rt. U.S. 104 S.Ct. ce 1006, government leniency exchange for (1984), distinguish 79 L.Ed.2d 238 and testimony, hardly plausible it is that between witness statements made before any prior during negotia statement made any plea leniency bargaining and after or leniency tions or after the deal was struck begun. has See also United States v. allega could material in rebutting be Stuart, 931, (9th Cir.1983) 934 tion. The fact that the witness said the (“introduction prior consistent state thing, at time same a when the same al prior plea agreement ments to made was leged operative, provides motive was no words, proper”). In other like the Fourth counterweight charge that she is Circuit, prior I would find a statement inad saying it now because of that motive. 801(d)(1)(B) missible under Rule if made Thus, imposed several other circuits have a during leniency immunity, plea negotia per inadmissibility se rule for statements government tions with the because it is alleged made after the motive for fabrica lacking any weight probative ground to rebut a tion has arisen on the that their exceptions "improper 1. Other rebuttal allowed under Rule fabrication” or influence." charge are to counter a of "recent

HOI gloss logic “accepted dent Rule Federal tracks exclusion 801(d)(1)(B)that prior of Evidence a con- 801(d)(1)(B)itself. See United (2d Cir.), is admissible 934, sistent statement under Simmons, 943 n. — only 2018, prior if the statement was made denied, U.S. -, 111 S.Ct. rule cert. supposed falsify to the time the motive to (“evidence (1991) may be L.Ed.2d 104 arose,” id., accepted but 801(d)(1)(B) to rebut under admitted [Rule ] argument statement because only when the charges of recent fabrication leniency discussions was made before question made before the began, it not tainted same with the fabricate”); a had motive declarant motive it would have been if it were 1373, Davis, F.2d v. United States negotiations. such A during made or after denied, (7th Cir.1989), cert. 493 U.S. made to witness’s statement L.Ed.2d 110 S.Ct. any authorities after an arrest but before (one (1990) of the “conditions which must indication from the consistent statement met before given witness will be favorable treatment nonhearsay under Rule may be admitted as leniency exchange for the 801(d)(1)(B) ... ‘statement the] [is does fact that the wit- rebut the declarant must have been made before ness motivated to fabricate her testimo- ”) (quoting had a motive fabricate’ Unit treatment, ny exchange for the lenient Monzon, 342-43 v. ed States thus meets the conditions for admissi- Bowman, Cir.1989)); (7th v. United States bility ap- under Rule I would Cir.1986), (8th cert. de ply reasoning the same here. nied, 107 S.Ct. (“better imposes rule Thus, L.Ed.2d 856 I did agree that the district court requirement that the consistent statement in admitting not err state- Rustin’s ment, disagree motive to fabricate majority’s must come before the but I with the existed”). adoption permit, that would albeit of a rule balancing probativeness after a exercise however, majority, aligns this circuit prejudice, versus admission minority by the view taken Fifth purposes consistent statements for rebuttal “that the and Eleventh Circuits made at even when the statement was need not have been alleged a time when the same alleged motive to the time that the fabri Up to court motive arisen. now this to be See United cate arose” admissible. rule, see, e.g., has had no such Pendas-Martinez, 845 v. States Sampol, (11th Cir.1988); 942 n. (D.C.Cir.1980), I do not believe 1981). I find Parry, 649 Cir. adopt should one now. preferable approach taken Fourth Circuit in United States

Henderson, 135, case 717 F.2d at factual During this

ly similar to case. cross-exami implied counsel

nation at trial Henderson’s “fa in-court

that witness’s against Henderson return bricated INDE- LOUISIANA ASSOCIATION OF leniency” government. from the Id. AND ROY- PENDENT PRODUCERS charge, In order to rebut OWNERS, Petitioner, ALTY government introduced as evidence a witness, govern FEDERAL ENERGY REGULATORY arrest, agents con ment after his COMMISSION, Respondent, testimony. with his in-court sistent argued that this consist Henderson Company, Algonquin Transmission Gas statement should have been inadmissi ent Company, Bay Pipeline Gas ANR State n witness, having already ble because al., Brooklyn Company, et Union Gas arrested, the same motive to fa been Company, Elec- Hudson & Central Gas he statement. when made bricate Corporation, tric CNG Transmission court, prece- following Fourth Circuit Iroquois Corporation, Trans- Gas

Case Details

Case Name: United States v. Cornel T. Montague

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Apr 9, 1992

Citation: 958 F.2d 1094

Docket Number: 91-3012

Court Abbreviation: D.C. Cir.