United States v. Michael Lee Bolick

validity national interests determine the mine primary issues of secondary cov- regulations. of local Supreme The Court erage, pro rata coverage, in view any balancing discussed the in Pike v. Bruce other uninsured coverage motorist Church, Inc., 137, 142, 397 U.S. 90 S.Ct. may be available Bray. 844, 847, (1970): 25 L.Ed.2d regulates even-handedly Where a statute legitimate

to effectuate public local

interest, and its effects interstate incidental, only

commerce are it will be

upheld imposed on unless the burden clearly commerce excessive putative

relation to local benefits. America, UNITED STATES of Virginia’s Such a re- balancing shows Plaintiff-Appellee, quirements violate the do not commerce clause. The burden interstate carriers higher is not significantly than on intra- BOLICK, Michael Lee Virginia state never in- requires carriers. Defendant-Appellant. terstate to have carriers more underin- No. 89-5047. coverage sured motorist than intrastate $25,- Virginia required carriers. Appeals, United States Court of 000/$50,000 in underinsured cov- motorist Fourth Circuit. erage operates whether inter- the insured Argued Dec. 1989. exclusively Virginia state or intrastate. only requires coverage that underinsurance Decided Oct. 1990. equal liability in- insurance when the As Amended Nov. 1990. sured—whether an interstate or intrastate specifically rejected trucker —has not

enlarged coverage.

H

Pennsylvania imposing un- contends coverage in

derinsurance the amount of

$1,000,000 impair obligation will Const, I, tracts. U.S. art 10. §

To violate contracts clause legislature existing must alter an con Saunders, (12 Ogden

tract.

Wheat.) 213, 264-65, (1827). 6 L.Ed. 606 Virginia creating obligation statute applied poli It enacted 1982. to all January

cies issued or renewed after Pennsylvania long before issued policy.

U.S. Lines insurance

Ill

We find no merit the other issues Pennsylvania. judgment

discussed reversed,

of the district court

case is remanded with directions to declaratory judg-

district court to issue a opinion. nec-

ment consistent with this If

essary, district should also deter- Ramsey’s purchase. Be- Agent

cocaine for Bolick, cause he had no direct contact with Ramsey provide no direct evi- Agent could government him. The three against dence Dicks, Amy Ray his wife witnesses were Dicks, Bartley and Blackburn. Blackburn charged co-conspira- Dickses were The Bolick. Black- tors were not tried with but any crime related charged was not for burn Ramsey’s the ounce Agent purchase of of cocaine. Dicks, Dicks, Amy and Blackburn Ray Greensboro, N.C., Jr., Jennings, Neill A. saying, “Im- signs have worn might well defendant-appellant.

for testify peach Ray me.” Dicks was year Ashcraft, exchange for a seven Atty., against W.D. Bolick Thomas J. U.S. charges N.C., Charlotte, N.C., cap pending his for plaintiff-appellee. for on sentence and cocaine. and distribution of LSD sale PHILLIPS, RUSSELL, and Before age 17 convicted of a mari- At Dicks was MURNAGHAN, Judges. Circuit burglary, serving a two juana charge and prison He has year one-half term. and MURNAGHAN, Judge: Circuit separate occasions convicted on three been appealed his convic- Michael Bolick has driving intoxicated and has been for while sell, selling, conspiring and co- tion for least five additional traffic convicted of at primary contention is that caine. Bolick’s has convictions for offenses. He also impermissibly trial court weapon, possibly carrying a concealed government wit- consistent statements escaping Georgia penitentiary. a for from yet impeached. had not been nesses who 28-year Amy All this in a lifetime. Dicks imper- that the trial court He also contends shoplifting and “charged for had been missibly government to create allowed testify was to two DWI’s.” She [had] trial “drug atmosphere” at prejudicial govern- exchange for Bolick “background” evidence. guise under the that her sentence on ment recommendation years. charges not exceed four pending begin a feder- credentials with Blackburn’s appar- had parole violation. Blackburn al September early undercover possession of a ently probation on for Ramsey arranged government agent D.C. shotgun when he was arrested sawed-off Ray purchase an ounce of cocaine from Blackburn also for distribution of LSD. Agent Ramsey had estab- Samuel Dicks. breaking two convictions for has suffered by purchas- relationship with Dicks lished entering, as convictions for as well ing drugs previous him on several property drunk private destruction 3, Agent Ram- September occasions. On charges pending for driving. He also under- sey gave Dicks with the $1500 selling marijua- conspiring to sell acid and acquire the standing that Dicks would na. acquired allegedly cocaine. Dicks ounce of Michael Bolick

the cocaine from defendant controversy appeal concerns the The provided Dicks in turn September 8. strategy adopted by cocaine. Ramsey with the ounce of Agent having been appearance has the which Agent Ramsey At no time did unpalatability attempt minimize the an Bolick. contact with defendant direct allegations Bolick’s two of its witnesses. concern, specifically, the against Bolick re- of error government’s case witness, Agent of the first exclusively on the observations of lied began his testi- Ramsey. Agent Ramsey present when witnesses who were three recounting the manner in which mony by allegedly supplied Dicks with the Bolick point. relationship he established Dicks. being offered here That included said, mention three as to what Mr. Dicks is not Agent occasions on which Dicks sold Ram- by you received —shall sey Agent Ramsey L.S.D. testified that he of what Mr. purchased Dicks hits of Ray L.S.D. Dicks said to this witness. But if $3,750. alleged you about Bolick is to not later that find Mr. made Dicks the been involved those sales. statements which says this witness he made, may you then receive this testimo- testifying knowledge After to his limited ny as corroboration of Ray what Mr. of giving events Dicks the $1500 between says said, Dicks later you that he if find purchase September for the cocaine that it does in fact this corroborate testi- receiving September and cocaine the mony. Agent began describing Ramsey discus- repeated Bolick’s counsel objection sions the to he had with Dickses and Black- Agent Ramsey’s Amy recitation (“the declarants”). of Dicks’ burn The discussions out-of-court Agent statements at the time question place (April took on two occasions Ramsey them, recounted he 1988), although did August 1988 and the after Dickses Agent not do so for Ramsey’s testimony as charged long had been and the al- after to Blackburn’s declarations. each leged On ob- conspiracy involving and the Bolick jection, the district court jury referred the Agent Ramsey’s Dickses was over. de- to instruction cited above. scription of what declarants had told detailed, consuming eigh- him about testified, After Agent Ramsey had pages transcript. Agent Ramsey teen of government called each of the declarants separately described his discussions with as witnesses. The elicited each of the declarants. from each declarant the testimony same inculpating Agent Ramsey Bolick that importance greatest purposes Of for our (There recited while on stand. were court, objection, was that the district over slight Amy variations between Dicks’ actu- testify Agent Ramsey allowed to each al and her declarations as told him it declarants that was Bol- presented by Agent Ramsey.) cross-ex- On supplied ick who had ounce cocaine amination, impeach Bolick’scounsel tried to Agent Ramsey eventually purchased. each the declarants. The witness Thus, any of before the declarants had by Bolick, called the defense was who ad- stand, taken the jury was informed going residence, mitted to Dickses’ three by hearsay times arrant that each of place, where cocaine transaction took Agent Ramsey the declarants told that Bol- selling but denied cocaine. response ick guilty. the first of objections numerous Bolick’s coun- jury convicted Bolick he was and sel, gave court district six-year prison to a and sentenced term following instruction: $5,000 fine. gentleman Jury, Ladies I and point you concerning will instruct [a] II point, law—at this begin analysis We our with Bolick’s con- witness, concerning the transactions and tention that the district court erred al- he discussions that had with Mr. lowing Agent Ramsey to recite each Dicks, as to statements made Mr. out-of-court incul- declarants’ Dicks, taken by you will not for the pating Bolick before of them had been

proof of what Mr. Dicks is said to have impeached. stated, but corroboration of Mr. Dicks’ come testimony to later in this case. A It seem like a southern dis- [sic] Rule Evidence you, you tinction to but want remem- Federal 801(d)(1)(B) apply telling you; provides I’m that a ber what is, repeat your hearsay That if deliberation. were hear- consistent statements testifies at the trial or

the declarant they are not sub- and that subject to cross-examination as rehabilitation ing and statement, the state- Rule concerning requirements ject the declarant’s 801(d)(1)(B). ment is consistent with of such Even with benefit ex- to rebut an and is offered state- admission of the assumptions, the charge against the de- press implied the admis- was erroneous because ments improper recent fabrication or clarant of the declar- impeachment of preceded sion influence or motive. support for our Although legal ants. contends, shortly, the district we note that follows conclusion instructed, Ramsey’s pre- tes Agent impeachment must requirement prior consist timony as to the declarants’ no one. surprise should cede rehabilitation admitted for was not ent statements what has how can one rehabilitate For mere asserted but for truth of the matter in- As Webster’s yet discredited? been “corroboration,” presumably by which it structs, is “to restore to rehabilitate There is consider “rehabilitation.” means unjust by vindicating: clear good repute that the authority proposition able charges: reestablish or unfounded 801(d)(1)(B)must be Rule requirements of New In- Webster’s Third good name of.” prior statement only when a consistent met (1976). Dictionary 1914 ternational general for its truth and is offered has traditional- Although “the trial court apply trial court discretion principles of sort of discretion ly exercised the broadest statement is admit prior consistent when trial,” proof at controlling the order of such as rehabil purpose other ted for some 681, States, 485 U.S. v. Huddleston United See, background. e.g., United itation or 1496, 1500, 688, 99 L.Ed.2d 771 108 S.Ct. (1st 1210, Mazza, 1215 792 F.2d v. States that, (1988) argument under Fed. (rejecting denied, 1086, 107 479 U.S. cert. 404(b), pre- court must make R.Evid. (1987); 1290, L.Ed.2d 147 United S.Ct. 94 finding as to similar act liminary (2d 329, Pierre, 333 781 F.2d v. States jury), presented to such evidence is before Rubin, 609 Cir.1986); v. matters are decisions on such J., a trial court’s Cir.1979) 51, (2d (Friendly, F.2d 66-70 scrutiny Close not immune from review. concurring), grant certiorari on aff'd trial court appropriate when a 424, particularly issue, 101 449 U.S. to other limited practices. We (1981); departs from established 698, L.Ed.2d 633 United 66 S.Ct. 329, “one was the case here. For F.Supp. think that 627 Obayagbona, v. States J.). operative under both case (Weinstein, general principle, (E.D.N.Y.1985) But 335-38 Evidence, is Pierre, (discussing ar the Federal Rules of supra law and generally see law). upon credi- Al of an attack Circuit that in the absence guable split within Second allowed.” sustaining occasion to ad evidence is though bility have not had no we 49, (3d Evidence, may have endorsed at 115 squarely, we dress it McCormick § Parodi, therein); 1984) (and accord proposition in States v. cases cited United ed. Cir.1983) (citing 768, (4th Berger, 785-86 703 F.2d and M. Weinstein’s J. Weinstein language (1989) ¶ from approval Evidence, apparent 607[08], at 607-111-12 with Rubin, su Friendly’s therein). among concurrence Judge (and are cases cited We States pra). But United that time-honored to adhere to the courts cf. (4th 135, Henderson, 138 n. 1 Henderson, 717 F.2d at 137 principle. See separate Cir.1983)(indicating, in context of credibility (“As general rule a witness’s 801(d)(1)(B)requires Rule issue of whether has unless it first may not be rehabilitated at time motive to fabricate absence of citing Fed.R.Evid. challenged;” made, that Parodi consistent 608(a)(2)); v. Port- see also United States narrowly), 465 Cir.1987) should be read (citing er, 968, F.2d L.Ed.2d 238 104 S.Ct. Hilton, U.S. approval (1984). (11th Cir.1985), where the evidentiary principle “fundamental opinion, [that] of our Fortunately, purposes character is truthful assume, evidence of witness’ deciding, that without we can only witness, admissible after character for concerning truth the transactions and required fulness has been attacked” discussions that he Ray had with Mr. bolstering conclusion “when the Dicks, testi as to statements made Mr. mony goes to the character for truthful Dicks, will be taken by you not for the repudiate ness of the witnesses to proof of Mr. what Dicks is said to have claim, defendants’ admission such testi stated, but as corroboration Mr. Dicks’ mony error.”), is also reversible cert. de testimony to come later in this case. nied, It seem like a southern dis- [sic] (1988). Thus, L.Ed.2d 269 gen even under you, you tinction to but I want to remem- principles evidence, eral of rehabilitation apply telling ber it and what I’m you; to wholly apart any considerations your is, deliberation. to repeat That 801(d)(1)(B), Rule the district court’s admis point. being offered here sion of the statements attack said, as to what Mr. Dicks is not credibility the declarants’ improper. by you not be received —shall Moreover, in affirming addition to statements for the Mr. what general principle impeachment must Ray Dicks said to this witness. But if rehabilitation, precede long our cases have you later that Mr. Dicks made the find recognized principle that in the specific statements which this witness he says presented context here: rehabilitation made, you may then receive this testi- prior prior impeach- consistent statement to mony as corroboration what Mr. of Weil, ment. See United States v. 561 F.2d said, says Dicks later that you he if (4th Cir.1977) (“Corroborative that it does corroborate this find fact testimony consisting prior, of consistent testimony. ordinarily statements inadmissible unless emphasized shows, As portion the in- sought has bolstered critically struction is incomplete. in- The impeached.”); first been distinguish struction does between the con- Cir.1962) Leggett, 312 F.2d cept acceptance of for the truth of (“The following decisions the established acceptance matter asserted and as corrobo- in agreement holding rule are that ration and it recognize does the need for prior of consistent is not admis- prior to be consistent with sible unless and until there has been some subsequent testimony. the declarant’s impeachment of the witness ... and that However, the instruction omits mention they part cannot be shown as a dispositive the crucial and factor: it does chief.”); Schoppel v. United jury not instruct the that it consider States, (4th Cir.1959) only the statements the declarant (“Where a if cross-examiner has endeavored subsequently impeached by coun- by prior discredit a witness inconsistent defense evidence, sel. The admission of the there- statements, permissible it is sometimes fore, cannot be defended means of the by showing prior damage offset the ostensibly precautionary given instruction It proper, sistent utterances. is not how- (court below. at Leggett, ever, support in chief to seek corroborative Cf. ambiguity inadequacy finds in instruc- by showing of a witness that after the tion jury that informed it could consider inquiry event under and before the trial he corroboration, evidence for “if effect.”) purpose of (cita- made statements to same you omitted). find that it does tions corroborate” the de- clarant). can refuge seek no limiting very difficulty that a fact instruction from the understandable that accompanied prior consistent formulating the district court faced in above, statements. As noted the district instruction is reflective one the rea- jury court instructed the as follows: supporting requirement sons the traditional impeachment precede that gentleman Jury, actual must Ladies and you concerning point will instruct use of consistent statements for reha- [a] point, great difficulty law—at of this bilitation. We have believ- ing appreciate that a can distinc B jury context, tion, in this between substantive Although have we concluded If and rehabilitative evidence. ad state admission of the consistent evidence, mitted substantive the declara error, impeachment we ments before show tions would tend to that Bolick was error re must determine whether such rehabilitation, If guilty. found quires reversal. Courts that have tend declarations would to show such as error situations the one before telling they declarants were the truth when carefully have us scrutinized the evidence guilty. that Bolick was If Bolick’s said trial, occasion and on have concluded than jury anything consisted of less district court’s error was harmless. a tech philosophy, fathers modern even However, error because district court’s nically probably correct instruction actually substantially prejudiced Bol prevented jury from overlook ick’s case and the considerations that have ing the fine distinction between two led other courts to excuse error are jury probably uses evidence and the absent, Agent Ramsey’s testimo here conclude con would have used we that Bolick’s guilt. ny as direct evidence Bolick's See viction must be reversed. Lucero, New Mexico v. 109 N.M. key Two influence facts our assessment 1041, 1046(1989)(expressing the P.2d same resulting of the harm Bolick’scase commenting asking jury belief First, the district court’s error. recognize the distinction be like “would government’s case Bolick entire asking to consider a defendant’s consisted of the declarations to which confession, not for the truth but [for testified, Agent Ramsey improperly name- it.”) that he made That inherent the fact] ly, the declarants’ that Bolick statements prejudice risk conclu high of animates our Agent supplied Ramsey the cocaine. him- that the for from the sion search comfort knowledge self had no first hand of Bol- court’s instruction is fruitless. Second, ick’s involvement. the character first, the impeachment If had occurred veracity for of the declarants was extreme- in- simply could the district court have ly facts ad- doubtful. Those indicate that accept Ramsey’s jury Agent the to structed damaging mission of the declarations was testimony declar- as rehabilitation of the First, ways. Agent Ramsey’s in three tes- evi- testimony ants’ and not as substantive timony the number the doubled of times Instead, the had dence. district court to second, it;” jury heard that Bolick “did the jurors the tell to wait until the declarants that fact the declarations emanated from deciding to do with testified before what the mouth a law officer of enforcement to It seems excessive ask the declarations. appear- no record discreditable lent an juror, proba- the even conscientious who credibility ance of to the declarations that bly trying still to absorb the distinction and, absent; have otherwise prior between consistent statements as third, deprived opportuni- Bolick was of the evidence and statements substantive ty to cross-examine the declarants immedi- rehabilitation, registration to condition ately upon appearance (through Agent in his mind of each of declarations on recitation) Ramsey’s of the declarations be- ultimately so testi- whether the declarant yet cause declarants were not defense subse- fied and whether counsel short, govern- stand. In witness before quently impeached. put the first ment had witness that was the district court veered off of Given that evidence, supply inculpatory jury to road, well-paved it considera- we accord times, by had been told three a credible usually bly less deference than would witness, in that effective- statements were case, admis- and we conclude that the cross-examination, immune that ly from be- of the consistent statements

sion guilty. Bolick was error, if impeachment was even fore Mazza, supra, In the district court only offered for rehabili- statements were agents describe government allowed two to tation. incriminating” case, that a “strongly equally statements to this the Mazza court wrote government jury witness had made them particularly likely be “the government fore the at consider out-of-court witness testified these declarations for truth, directly implicated they F.2d their trial. 792 at 1215. The defendants for specific acts complained agents’ defendants in the at that the effect of the issue.” find insightful 792 F.2d at 1215-16. We testimony government was to allow the of the Mazza court’s assessment the effect present its case (once wrongly admitted and we three times from the declarant/wit similarly by think that Bolick was harmed ness once each two of the consistent admission state- agents). Id. argued The defendants ments issue. here at government question witness highly untrustworthy government and the mind the harm done ad- Keeping in gained advantage therefore had an unfair evidence, we mission now examine concluding at Id. In trial. rea “both if see other events at trial record to authority son indicate the appellants Bolick cured the harm suffered. We draw right inadmissibility are about the Mazza, guidance from where the court challenged testimony compared carefully the substance of the agents,” though even the statements were improperly admitted evidence with other background, id. at see corroborating evidence. 792 F.2d at 1217- pointed the First Circuit to three con Mazza, 21. for three of the declara- siderations, help two of illustrate which tions, one of which was corroborated First, the harm to Bolick in this case. tape recording and another which was amount out-of-court statements was corroborated first hand case, large. As this witness’ Mazza government agent, another the court was “pervaded examina direct “satisfied admissible government agents.” 792 tion of the overwhelmingly established defen- case, As in “the 1215. guilt, dants’ therefore [the was] effectively managed hear virtually certain that admission of the en second-hand account [the witness’] agents’ improper ... did not af- through tire credi story witnesses whose (em- judgment.” jury’s fect the Id. at 1221 bility jury apt question.” the was less added). phasis As to four other such decla- Although Agent Ramsey did Id. not rations, the Mazza court was troubled but present story, each of the entire declarants’ tape re- nonetheless affirmed because “the and, it presented particular, he much in cordings independent and other claim Bolick the co crucial that sold than the contents witness’ [other Second, found a caine. the Mazza court by recounted high that the statements risk out-of-court agents] presented an overwhelming case.” sway would because added). Similarly, (emphasis in Id. Mancil- might not later corrobo have shown facts las, supra, required reversal was not be- likely bolster the rated and “would also portion improperly cause each admit- credibility of the informer ... before he prior ted consistent statement was corrobo- F.2d at took the stand.” 792 1215. See by rated evidence other than the same Mancillas, also States v. being statement later uttered the declar- (7th Cir.) (“to 1301, 1309-10 allow testimo ap- F.2d at ant. See 580 1310-11. Our repetition nial of a declarant’s out-of-court proach generally has the same. See been charge engage would defendant (error Leggett, 312 F.2d at 573 not harm- specific criminality would engaged was in con- less because evidence at trial great [preju a risk seem to create too improperly flict and admitted declarations outweigh probative evidence); That dice will one version of value.] corroborated Porter, (error justified simply forth risk cannot be to set at 974 also F.2d see background investigation.”), large part evi- “the harmless because without guilt 58 dence of sufficient [the (1978). applies evi- logic L.Ed.2d 351 witness’] [and witness’] subsequent impeachment Schoppel, corroborated”); grounds dence First, reasons. as makes sense for two (in eleven-day pro- context of F.2d at above, the evi- the manner which noted harmless be- found error ceeding, court govern- presented allowed the dence was the firm conviction “left with cause was guilt in unfairly to Bolick’s ment establish injury has been done that no actual any of the jurors minds of the before rights”). defendant’s substantial generally, testified. More declarants had cases, that noth- we find Applying these here, where, as particularly subsequent proceedings cured ing in the a used sistent by the trial court’s error. harm caused defendant, on the basis affirmance criminal extirpated improper declarations are If the present subsequent impeachment would record, against Bol- the evidence from the subsequent cases with a counsel in defense necessary to of that ick far short becomes be forced to make. they choice should not if we were to Even support a conviction. situations, defense counsel would In such testimony, Ramsey’s only Agent excise impeaching the to choose between allowing the declarants’ subse- thereby likelihood (thereby increasing the witness remain, quent inculpatory decreasing jury verdict but of a favorable declarants still the dubious character appeal) or not likelihood of success on comfortably con- prevent us from decreasing (thereby impeaching the witness have nonetheless Bolick would cluding that jury verdict likelihood of a favorable convicted. increasing the of success on likelihood but case saved government’s Nor is the inconsistency of incentives appeal). Such declarants were eventual- fact that the needlessly creates for defense counsel also counsel. impeached by Bolick’s ly in, system’s interests a tension between have found error to courts cases in which results, and, hand, just on the one subsequent impeach- harmless due hand, ap- avoidance of manufactured other See United distinguishable. are ment routinely peals. Although defense counsel (2d Lopez, F.2d choices, tough make tactical we will must grounds that Cir.1978) (distinguishable on adopt putting that condones rule pres- (a) part affirmance court based predicament virtue defense (b) incriminating ence of other trial tactic that is acknowl- prosecutorial prompted court objection below absence of preven- improper. Where the edged to be of re- plain error standard apply requiring simple tative medicine is Simmons, view); proponent of a consistent Cir.1977) (distinguish- 314, 321-22 until the declarant has been statement wait hearsay was improper grounds that able on see no reason to excuse impeached, we during statement prosecutorial in form of simple rule comply to with what is a failure court ordered argument which opening subsequent impeach- grounds impeach- after and later admitted Simmons, 567 F.2d 321-22 stricken ment. But cf. proce- ment, ongoing condoned unlike a tactical (subsequent impeachment “was case). In dure in Bolick’s by by made the defendant which decision Smith, (6th.Cir.1984), where 746 F.2d 1183 the risk of the Government’s he assumed impeached and was rebuttal”). declarant testified examination, the court observed on cross prepar- previously indicated our We have “statement consistent that to vacate convictions where edness making it the witness introduced before upon improperly has relied Under these taken the stand. had even statements, particularly when out-of-court circumstances, prior-consistent-state- effectively establish the statements those Id. simply apply.” cannot exception ment See, e.g., United States guilt. defendant’s original). (emphasis in at 1185 (4th Cir.1985). Brown, F.2d 1078 that im- case of the Smith We also have previously indicated Application to our prior consistent precede should improper peachment admis- excuse refusal to court’s Mazza, rehabilitation. on the prior consistent statement sion of a summing up grounds its exhaustive review of the argued the two by error improp- whether appellant to determine Bolick only with such additional admission consistent required er facts as for an under- error, reversible the court its standing legal described of the reasons for dissent. detail, part precisely “results to show by The defendant appeal has raised inadequate in the of a how care conduct grounds two reversal. Both overwhelmingly strong can convert an trial grounds evidentiary rulings involve made prosecution case into a difficult issue by judge the district in the course of trial. Here, pros- appeal.” 792 F.2d at 1217. I shall grounds separately. address two considerably ecution case was less than concerns, event, overwhelming. in any far general are broader more than The defendant’s of alleged first merely concerns instant Ac- case. error Ramsey’s is the admission of testimo- cordingly, the conviction Michael Bolick ny by Dicks, of three sales of L.S.D. must be reversed. primary defendant, witness Ramsey, the undercover officer. It was

III that admitted the defendant was not in- Bolick argues also the district volved in those transactions and the error permitting committed reversible any purpose disclaimed in of- Agent Ramsey testify Ray Dicks fering prove involvement of Agent Ramsey had sold L.S.D. to on three Instead, the L.S.D. sales. complains prior occasions. Bolick it categorically declared that the evidence “drug atmosphere,” created a solely was offered establish circum- unfairly causing prejudiced which him Ramsey stances under which established him to associate with numerous Dicks, relationship his initial a rela- drug sales in he was in fact which tionship subsequently which led to Dicks’ involved. Ramsey. sale of the cocaine to This evi- judge dence the district the case must be reversed re- Since evidence, “background” strictly qualifying foregoing manded for a new as “relevant evidence” under broad def- reasons, and the resolution of the issues inition term in Rule point involved on the second shrouded Rules Evidence. doubt, we take on a matter no stand which trial, may not arise on or arise in a substan- outset, questionable At whether tially setting. different Sufficient to particular properly claim of error is day is the evil thereof. trial, before At us. defendant entered only general objection to the admission of thereto, the evil also Sufficient thereof considered; he the evidence now made no applies to Bolick’s contention that the cu- specify any grounds objec for his effort to testimony deprived mulative effect of the 103(a)(1), tion to the Fed.R.Evid. of a fair him trial. however, “[ejrror may provides that not be upon predicated ruling admits which ... IV right a substantial evidence unless reasons, the foregoing For the decision ruling party is affected and ... in case the the district court is timely admitting objection is one evidence a A REVERSED AND REMANDED FOR record, appears to strike stat motion TRIAL. NEW objection if ing specific ground from the specific ground apparent was not RUSSELL, Judge, DONALD Circuit context____” spec failed to The defendant dissenting: ify objection of his to this grounds doing, In that he accept generally In I evidence. his brief he concedes I dissent. so “general objection” to the provided as offered the factual statement of this Such failure to majority opinion myself shall admission evidence. confine 144 provided by exception subsec- objection to the self of

specify generally fatal v. One 1971 (a)(1) his failure to United States appeal. as an excuse for on tion Benz, (4th 912, 915 Cir. Mercedes 542 F.2d grounds objection of his of this specify the 1976) properly (“Questions not raised and normally would evidence. Such failure not be preserved in the trial forum will objection, disregarding our this warrant excep appeal, in the absence of heard manifestly not well objection since Bituminous circumstances.”); tional unquestiona- But the evidence preserved. Inc., Enterprises, v. Rucker Const. Co. was ad- bly establishes that the evidence 965, (4th Cir.1987); United 816 F.2d 969 “background” missible as Piva, 753, (1st v. F.2d 759 Cir. States 870 801(c), choose, therefore, relying on Rule Steel, 706, v. 1989); United States 759 F.2d Fed.R.Evid., dismiss- to base our decision v. Hutch (9th Cir.1985); error the merits. ing this claim of er, cert. de 1083, (2d Cir.), 622 F.2d clearly qualifies “Background” evidence 218, nied, 875, 449 U.S. 101 S.Ct. evidence under the definition of as relevant Greyhound Morrow v. (1980); L.Ed.2d 96 401, provided by Rule Fed.R. such term as Lines, Inc., 713, 722-24 Cir. defined in “Relevant Evidence” as Evid. however, 1976). Rule, provides an es having any tendency “evidence Rule 401 is requirement. It relieves the cape from this the existence of fact that is to make ground if specify failure to consequence to the determination of the context.” objection “apparent probable probable or less than action more seeks to avail himself of this The defendant the evidence.” The it would be without specify his failure to “escape hatch” for Notes to Rule 401 add Advisory Committee in this case. grounds objection of his specifically: more speci exception requirement This applicable if on the face ficity generally the evidence is directed The fact to which clearly record itself it is obvious Evidence dispute____ need not be objection was. An excellent illus what essentially background which is na- qualifies un the situation which tration of scarcely said to involve ture can be Upjohn is Werner v. exception der matter, universally disputed yet it is Co., (4th Cir.1980), 628 F.2d an and admitted as aid offered understanding. (1981). The court there said: L.Ed.2d 804 added.) Weinstein on Evidence (Emphasis argues Plaintiff (1989 ed.), 501[05], p. 401-29 Vol. § along any objection this line be- waived “[ejvidence that directly that serves states objection failed in its to state cause it persons, background information about grounds objection for specifically the generally subjects things a trial is Evidence required by Federal Rule of although may not relate to a admissible however, 103(a)(1), 103(a)(1). re- Rule The trend of the deci- consequential fact.” objection only where the quires specific support application of the sions which be clear from specific ground would not background it relates to evidence is Rule as bar, Upjohn, case at the context. well illustrated the decision pre-trial example, already filed a for (2d Daly, 842 F.2d supporting memoranda ask- motion Cir.1988), where the court said: ing that all references to 1975 warn- expert our examina- tes- ing suppressed. Independent From of the matter of record, have no tion of the we doubt admit evi- timony, the trial objection clear to directly an that does not establish dence everyone. charged, offense in order element al- background for the events provide Riverside, City also Palmerin See Background evi- leged in the indictment. (9th Cir.1986). 1409, 1413 I do not show, for ex- may be admitted to dence objec where the of have a situation surrounding ample, the circumstances in the context of the case and tion is clear explanation an him- or to furnish may not therefore avail events 145 understanding of with hearsay.” (citations intent nonadmissible as performed. which certain acts were omitted)). The rule as declared in has been Daly 767 F.2d at 1063-64. applied repeated both decisions as adopted Other decisions have the reason- against hearsay objection against a and a ing of in sustaining Love the admission of claim of violative background testimony against hearsay a

principle proscribing proof of other crimes. objection. Freeman, In United States v. Love, case of Our own United States v. 767 558, (10th Cir.1987), in- for 1052, (4th Cir.1985), F.2d 1063-64 cert. de stance, the defendant had been arrested for 848, nied, passing counterfeit federal notes. reserve (1986), representative L.Ed.2d 890 of The arrest based was on information from admissibility these cases which City police a Kansas officer that such evidence has been sustained a reliable source had regard- information objection. case, hearsay In that a DEA ing Martin and Grady passing counter- agent investigation testified to an concern feit money; he met with informant ing drug trafficking in several states and who related that Martin and Grady In Colombia. he detailed the passing been investigation counterfeit bills in leading circumstances of the other states; up to officers in particular, the defendant’s arrest. In other states verified sought explain he of infor on basis counterfeit bills had $100 passed mation received him from DEA another in their states on the weekend agent present in Miami how he was at the Agent related the informant. McNer- spot delivery where was contraband man also testified that the informant re- made and defendant arrested. The de Grady lated Martin planned and objected fendant as hear to this evidence meet with an white unknown male from say. government responded that another state weekend Decem- information had been offered received and purpose ber passing purpose explaining why “for the limited money. counterfeit A surveillance of investigation under Grady Martin and established their meet- taken” and not for the truth. such it As ing They with Freeman. were subse- background was admissible evidence and quently possession arrested for and dis- hearsay 801(c),1 Rule was not under Fed.R. tribution of counterfeit federal reserve agreed, This saying: Evid. court notes. case, In this Shumard’s appeal At trial and on the defendant Free- not for to ex offered its truth but objected hearsay grounds man plain why agents officers made out-of-court statements of the confidential preparations they anticipa did in informant, did apparently appear who such, appellants’ tion of arrest. As testify. at trial or court district found hearsay. was not inadmissible Unit See admissible, statements were Mancillas, ed holding ruling, Tenth Circuit affirmed that (7th Cir.), U.S. [99 “are that out-of-court statements not hear- (1978) S.Ct. 58 L.Ed.2d 351] say purpose when offered for the limited (“Whether or not the ... statement was explaining why government investigation true, the fact that it was made F.2d at was undertaken.” 563. explain flurry investigative surely cited, reaching this conclusion activity in three soon states from, approval, quoted length purpose, to hear about. For this outlin our decision in Love. Id. followed ing background investigation with the evidence not The defendant relies on Brown v. offered truth, States, prove its it could be said not to be 767 F.2d 1078 Fed.R.Evid., 801(c), "hearsay" 1. Rule defines the truth of the matter asserted.” prove "a ... offered in evidence to hearsay “offered evidence missible supporting its contention that this matter truth of the asserted.” prove the background as evidence. was inadmissible actually opinion that this case I am of the in this that the statement It is manifest government’s position. supports the background permissible case was case, charged with the defendant was in Brown which we similar to that involved from shrimp background eases of frozen evi- the theft of 28 found to be admissible Norfolk, in this challenged statement at dence. The States Naval Station United pur- case, by Ramsey, did not as recounted investigation the case had Virginia. The the L.S.D. port the defendant to to connect During agent. FBI assigned to an fact, Dicks; sales trial, govern- agent’s The evi- that fact at the outset. conceded testimony of the through the ment offered merely explain how dence was offered taken agent separate statements six relationship. Ramsey began their Dicks and statements, by an of these one agent. Two princi- similar in ruling in Brown was informant and the other unidentified judge in this ruling of the district ple to the found with the driver of the truck not inadmissi- The evidence here was case. of the shrimp, covered some details stolen background hearsay but was admissible ble identify the de- investigation which did not evidence. The first given. the evidence fendant with description objects that evidence statements included a The defendant also of these crimes with hauling particularly the stolen other which was of the truck crimes— had no connection—is the defendant and the sec- which shrimp away from the station background as evidence. permissible not discovery gave of the ond details however, authority, ample There is eggs” some after shrimp “hidden behind as of other crimes admission of evidence stopped. the truck had been the driver of 404(b)express- Rule background evidence. definitely identi- The other four statements of “all evidence of oth- ly allows admission him and connected ulti- fied trial, in a relevant to an issue er crimes ob- mately the theft. The defendant prove crimi- except that which tends introduction of all six state- jected to the disposition.” In States Mas- nal hearsay. The dis- ments as inadmissible court, ters, 622 F.2d 83 objection as to the judge overruled the trict rule, sustained the admis- relying on that appeal This fol- two statements. first crimes as back- of other sion of evidence disposing court found lowed. The regard: testimony, saying in that two statements were appeal that the first for the admis accepted bases One of and, background as admissible of other crimes arises sibility of evidence Thus, such, said: hearsay. the court not part of evidence “furnishes when such statements, in- that the The first necessary or is the context of the crime” stolen . formant told Tonneson case, is presentation” of the to a “full gate in a arriving at the be shrimp would explan intimately connected with and so described, did not truck which was charged against the atory of the crime might theft and well nect Brown with part and is so much a defendant background even as admissible setting of the case and its “environment” standing it Certainly alone hearsay. appropriate in order “to that its is absent reversible error not be complete story of the crime on here. present circumstances strained by proving its immediate context or said of the second may be ” The same “uncharged offense gestae’ or the ‘res although proved details of together point of time and ‘so linked shrimp by incompetent finding charged the crime circumstances with fully shown without that one cannot be part hand, proving the court found the the other ... thus] On the other [and charged.” of the crime gestae of the res were not admissible other statements pro is admissible to And where evidence These statements background evidence. the of presentation” “full vide this represent inad- by the court were said fense, fragmen is uncharged no reason to of Evidence an offense aris- “[t]here inquiry” by sup tize event under the ing from the same series of transactions pressing parts gestae.” of “res As the charged as is not an extrinsic offense the said in Court United States v. Rob 404(b)____ Evidence, within Rule not a erts, (6th 1977) Cir. part charged of the crime pertaining but denied, 431 U.S. 920 S.Ct. [97 to the chain of explaining events the jury L.Ed.2d entitled to 232] “[t]he context, set-up crime, motive and of the ‘setting’ know case. of a It cannot properly if admitted linked in time and expected to its a make decision in crime, charged circumstances with the or time, knowledge void—without of the integral forms an part of an account of place and circumstances of the acts crime, necessary or is complete to which charge.” form the basis of the story of jury. the crime for the (citations 622 F.2d at 86 and footnotes omit- Id. at 1498-99. ted). Another instructive case is United An along instructive case this same line Brennan, (2d States v. 798 F.2d 581 reaching the same conclusion as Mas- — U.S. -, rt. ce Williford, ters is United States v. 764 F.2d 1750, (1989), 104 L.Ed.2d 187 in which a (11th Cir.1985), which defendant Supreme New judge York Court was con charged importing large was with quanti- bribery, victed of interstate travel in aid of marijuana. primary ties of The for witness racketeering, wire fraud and extortion. government’s government case awas government The offered evidence at to informant. This informant a “orchestrated Bruno, corroborate the of meeting un- between the Willifords and an only provide to witness direct evidence of agent negotiate possible dercover to sale payments to for purpose Brennan of of kilogram never of [which resulted] corrupting the decision in a substantial $57,000.” at cocaine for 1496. The Id. government number cases. The intro government this'negoti- offered evidence duced at trial judicial three instances of ation, though even the defendant was not charged obstructions not in the indictment charged possession or distribution complete “to story order of the objected cocaine. The defendant to ad- charged” background crimes as urged mission of He such evidence. at objected Id. 589. The defendant to the evidence admissible on evidence; in particular, he objected to the that, issue of intention and since he had judicial evidence other instances of ob intent, stipulated should have than struction those stated in the indict government stricken. contended ment as evidence “other crimes.” Bas hand, the other that it refused 404(b),Fed.R.Evid., ing its decision on Rule join stipulation, leaving in the thus intent the court found no error the admission as an issue case. defendant of the evidence of other crimes as back responded was with- ground testimony under the circumstance. authority out to refuse consent to defen- It said: stipulation dant’s of intent. The court rec- judge The trial has broad discretion to ognized there were “two lines admit “other crimes” evidence under cases” may on “whether defendant force 404(b), will Rule and he not be over- accede the court appeal of discre- turned absent abuse accept stipulation that involved here.” Id. at 1498. The court, however, tion. [U.S. v.] Harris, ^[994] [(2nd Cir.1984)]. “Other 1006-07 reasoned need not “reconcile the crimes” evidence be admitted to tension between these two lines of cases” charged. complete story of crimes because evidence of the ne- cocaine “[t]he Harris, example, gotiation properly for explain (i.e., dealing narcotics with a story background crime” defendant’s evidence). Its rationale witness was admitted to inform the conclusion background charged was: “there no evidence that spiracy and show basis Lee Vaught the in conspired defendant’s trust of witness. Gore the Decem- heroin,” 2; F.2d at sales of 485 n. ber 392 798 F.2d at 589-90.2 short, failed to in the connect effect, See, v. to the same United States the the evidence of December sales with Cir.1984), 135, (3d 739 F.2d 136-37 O’Leary, Vaught any conspiracy in which and Lee denied, 1107, 469 U.S. 105 S.Ct. rt. ce proof, the were involved. Absent 782, (1985); 83 L.Ed.2d 776 United States testimony including “acts “great mass” 123, (2d Cir.), Hoffer, v. 869 F.2d 126 cert. co-conspirator pri- alleged an and words of — 2440, denied, U.S. -, 109 104 S.Ct. and to the actual formation existence (1989); L.Ed.2d 996 United States preju- and conspiracy a was irrelevant” Bloom, 704, 538 F.2d 707 ce Vaught. Lee and dicial to the defendants denied, 1074, 814, 429 97 50 rt. U.S. S.Ct. Moreover, the purpose introduc- (1977). L.Ed.2d 792 as set forth prove tion was to truth The defendant cited has accordingly The the statement. case (4th Cir.1973), Vaught, 485 F.2d 320 improper admis- reversed because of this position. supporting his not find do and an al- sion of the acts statements of Vaught apposite Vaught, here. there leged co-conspirator in the absence of charging was a four-count indictment conspiracy and proof the existence a spiracy to distribute heroin. The counts of the because it was offered for truth identifying sup- the specific heroin sales That situation is analo- statements. not porting conspiracy charge in Count I gous to admis- the situation here where the supporting were two counts three: sion was admitted not for its truth but (Counts III) charged II and only Gore with merely background Decem- the crime of heroin distribution on light In the of these authorities both 1972, 7, supporting ber and the third of the from our circuit and from cir- own other IV) (Count charged the three named counts cuits it is manifest that the evidence here (Lee, participants the indictment as admitted, properly provided it can be Vaught, Gore) January in the sale on probative said that the value of such back- trial, plea Prior 1972. to Gore had “substantially evidence was not bargained plead with the to outweighed by the danger preju- of unfair sales) guilty (the 2 to Count III December dice, misleading confusion of the issues or government’s agreement return jury.” Fed.R.Evid. 403. As I have prosequi all other counts of nolle already indicated, only prejudices alleg- Later, trial, against indictment him. all edly by the caused introduction of this involving of heroin evidence sales evidence, background by as stated the de- 2 admitted into evidence December was fendant, drug was that it at- “create[d] against Vaught Lee under mosphere” in the case and “created a situa- principle anything by or done said tion where defendant was associat- co-conspirator during the exercise of [Bolick] drugs.” ed with not The defendant was conspiracy all mem- admissible unfairly prejudiced by proof for two this The found conspiracy. bers of the all, charges against reasons. First of in itself that this evidence was “error discretion, “drugs”; involved judge per- in his defendant and Dicks may, since the thus, it there mit as to was inevitable that would be the introduction of evidence things alleged “drug atmosphere” an co-con- a in such case. Sec- said and done ond, strategy spirator subject up it the defense’s precisely connected impeach of the Dickses followed evidence of existence conspiracy.” problem activities, emphasizing espe- But the was that the criminal years 2. after the decision at on the wire fraud but Several tained the attack counts sought defendant relief in con- all habeas reaffirmed conviction on other counts. States, (2d Cir.), fraud nection with wire conviction under Brennan v. United 111 States, --, McNally - U.S. S.Ct. v. United (1987). (1989). L.Ed.2d court sus- L.Ed.2d Moreover, dally drugs, Dickses. II of this evidence was the main evidentiary defendant’s second claim burden of the defendant’s cross-examina- of error was directed at the conditional tion of the Proof of Dickses. Dicks’ admission Ramsey’s testimony Ramsey sale of fits perfectly L.S.D. into Dicks told him that defendant was the picture. I am unable see how the source of which the cocaine Dicks sold to be said preju- L.S.D. could to have Ramsey. Though perhaps might be ar- diced the defendant in defense and es- gued that admissible as pecially theory any way. background of defense establishing testimony the full story herein, of investigation The evidence blackened record of see Mas- ters, Dicks, supra, government prem- does not the chief the defen- witness admissibility ground. ise its on supported it dant. To that extent the de- testimony was offered as corroborative evi- We, theory fendant’s of defense. there- dence of testimony Dickses, the later fore, part find no abuse discretion on the who testify immediately were to after judge admitting of the district such evi- Ramsey.3 objected The defendant to the dence. introduction of that evidence corrobora- majority opinion sidesteps ruling on tion, though appendix agreed does not “background” admissibility of this evi- specific set forth the ground on which the because, declares, government dence it objected. fairly defendant can It be said may at retrial not choose to offer such that ground objection was evi- testimony may or its arise “in a admission dent in the context at the time the evidence setting.” substantially I see no different judge was offered. The district admitted why, reason even if the conviction is to be purely the evidence as corroborative evi- trial, reversed for a new we should refuse dence subject conditioned on admissibility to rule on the of this evidence. government linking such evidence with oth- judge trying It is unfair to the district requirements er evidence satisfying the for parties remanded case and that the to the admission of He such evidence. stated admissibility should of this evidence be left that, present- unless later judge dangling in limbo. The trial and the permit ed evidence that would the ultimate parties required guess evidence, should not on corroborating be introduction of the admissibility evidence. The he would order it stricken and would in- point it. presented par- disregard has been to us struct the After Ram- sey’s Amy testimony, snd in their both argu- ties their briefs oral Dicks agreed as the Again, ap- testified. so far question A on this ruling by ment. us shows, no pendix there was motion reargument this time would avoid on this Ramsey’s testimony defendant to strike and, point perhaps, at trial on a second corroborating the Dickses’ appeal recognized often here. We have this source on the for the cocaine this, such as ruling point that a on a even satisfy that the had failed to retrial, though prevent there will is to be a judge the district condition on which unnecessary reargument confusion and tentatively this corroborative therefore, have, ruled on the retrial and evidence. challenged evidence, admissibility of the though the reversed and even case is prior long It has established that been point. remanded for on another retrial consistent statements in corroboration of this think we should follow rule here and of the declarant be ad (1) question admissibility if has testified decide the of mitted the declarant cross-examination,4 (2) subject background testimony consisting prior, Corroborative 3. I do not discuss Blackburn's statement since object ordinarily its the defendant did not introduction. inadmissi- consistent statements is testimony sought to be bol- ble unless the qualification Implicit 4. in this basis for impeached. stered has first been evidence is that introduction of corroborative of such a foreclose introduction the witness’ cate will is consistent with statement (3) testimony, the witness has been if it is offered not in-court credibility, or im purely fabrication impeached for statement but the truth of the (4) motive, prior proper same,5 since, influence or as I proof of corroborative any was made before consistent statement later, the evidence here shows indicate Annotation, 58 A.L. leniency.” “offer of preced involved clearly that the statements Evidence, 1014; McCormick on R.4th leniency.” ed “offer of ed.); (1972 Stamey, United that all the accordingly appears clear It (4th Cir.1970); States v. F.2d 1223 for the admission conditions Henderson, in this case were estab- sistent statements rt. ce 1006, requirement that the except for the lished (1984). are, There L.Ed.2d 238 subsequent to the testimo- be corroboration true, in the decisions on some differences whose ny of the witness admissibility of wit fact, matter of As a corroborated. leniency” made after an “offer of nesses all opinion to concede that majority seems made, if the statement is offered has been this for the admission of requirements purpose of corroboration for the limited present and corroborating evidence were proof of truth. United and not as only was inad- reason evidence 394, (7th Harris, 399 761 F.2d v. States pre- was “because admission missible Cir.1985), a case illustrative of the view declarants.” impeachment of the ceded admissible, the court that such evidence [i.e., the motive to that “this condition said amply supports this “as And the record at the time must not have existed fabricate majority opinion that all sumption” met need not be the statements were made] establishing the ad requirements for prior consistent into evidence to admit missibility of the corroborative evidence solely to re which are offered statements Impeachment evidence established. were than as evidence habilitate witness rather express implied. or may be either United state asserted those of the matters 1248, (7th Baron, 602 F.2d 1253 v. States concurring This accords with the ments.” denied, 967, Cir.), 444 100 U.S. S.Ct. cert. Judge Friendly in opinion of United States (1979). Moreover, 456, 380 62 L.Ed.2d Cir.1979), 51, (2d Rubin, 66 609 F.2d v. in 47 A.L.R.Fed. 639-651 the annotation 424, 428, issues, 449 U.S. on other aff'd. said: 700, (1981). 698, 66 L.Ed.2d 633 admissibility depends initially thus While Henderson, However, in v. United States upon credibility a witness’ on an attack corroborating supra, we held that attempt show such recent in an fabri- preceded any motive must have cation, generous taken a the courts have case the state to fabricate. But in that setting in deter- view of the entire trial as substantive ment was offered im- mining whether there was sufficient reha merely corroborative or and not permit a witness to evi- peachment of point, I find no how purposes. bilitating to be prior dence of consistent statement ever, question which has pursuing admitted. by Judge New exhaustively reviewed the evidence is offered And this is so when Pierre, v. 781 F.2d man in States United and not for truth. solely for rehabilitation 329, (2d by the court 330-33 Impeachment of a witness is often devel- Piva, F.2d at 759 n. v. 870 in United States oped through the cross-examination 4, i.e., of motive to whether absence fabri 1109, (4th Advisory Weil, changed Committee’s Notes 1111 this as v. 561 F.2d United States added). 1977) (emphasis effect To same state: Cir. (4th Leggett, 312 F.2d traditionally have Prior consistent 1962). Cir. charges to rebut of recent been admissible improper inference in motive fabrication or statements of the use of consistent 5. While Under the as substantive evidence. traditionally but not impeached was admit- the witness they im- [and Rule are substantive evidence and not for ted as corroborative hearsay]. statements, 801(d)(1)(B) mune from attack Rule truth of the requirement Moreover, satisfies defendant, witness and of brief, in his impeachment in good this context. A in- seems to sought concede he to im- impeachment through peach stance Dicks, cross-ex- Ray Amy Dicks, amination is illustrated the decision in by proof and Blackburn of “criminal Fearns, developed vigorous convictions” as in his (7th Cir.1974): cross-examination the two Dickses and Appellant’s Blackburn. brief

Here, at 18. The fact, as a matter of spent page defendant page after of his sistent statement been ad- in developing cross-examination missible, crimi- since the cross-examination of witnesses, nal record of these as a basis for plea agreement the witness about her credibility, contrasting attack their “implied charge against to an amounted their record with that of the defendant recent improper fabrication or [her] who, brief, as he in his declares “was not influence motive.” impeached for criminal convictions.” Dur- Albert, See also United States v. ing cross-examination, Cir.), sought Dicks, prove also to in his (1979) S.Ct. L.Ed.2d 375 direct testimony, (1) had been inconsistent (“There may be some doubt whether ex about his drugs involvement in and other press charges improper motive or recent (2) criminal activity, about his introduction fabrication were made but the defense at arrangements when defendant torney, during his cross-examination of purchase the cocaine were Chavez, implied improper motive recent made, (3) and when later it was said that fabrication. Several times the defense Dicks became convinced that the defendant brought counsel out that it not until an and his trying cousin Kevin Bolick were arrangement was worked out between the deal, “cut him out” of the cocaine a detail charges against and Chavez on which the defendant contended Dicks had agreed testify him that he failed gave to mention he statements defendants”); Stuart, Ramsey, (4) alleged and about the incon- 931, Cir.1983) (defendant’s F.2d sistency his testimony between and the de- counsel cross-examined the witness to be fendant’s construction of the written state- plea bargain on his “thereby corroborated gave Ramsey ment he after his arrest. calling in question Van de Waten’s [the implied suggestion The of fabrication as testify”); motive to witness’s] arising proof out of of the witnesses’ (2d Lopez, States v. F.2d 1179-80 bargain alleged plea inconsistencies Cir.1978)(a prior witness’s consistent state statements, gener- their coupled with the ment found admissible on re-direct exami attack credibility by al on their evidence of nation propriety” for the “limited of reha records, provide ample their criminal evi- bilitating of the witness because the re impeachment testimony dence of of peated attempts during this cross-examina support Dickses to the admission of the liar”).6 portray tion to him Certainly, as “a corroborating testimony here. in line with these was a cases there suffi cient of impeachment Ramsey’s testimony foundation in this That what the support case to relationship about the introduction corrobo Dickses told him rating testimony met supporting Dicks’ testimo the defendant the sale of the cocaine ny. requirement consistency with their Khan, specifically 6. See also United States v. counsel attacked Sheikh. Defense (2d 1987): credibility Cir. Sheikh’s cross-examination clearly implied that his failure mention argues Khan to admit was error Khan at various times was inconsistent with prior Sheikh's statement because Sheikh's testimony his on direct examination. See "cross-examination did not elicit an actual or Brennan, implied United States v. even and the inconsistent statement" (2d Cir.1986). only purpose consistent state- was "to Sheikh's statement through repetition.” disagree. We ment thus was relevant to show whether reinforce actually did omissions with his in this case not have to were inconsistent point specific testimony on direct. to a inconsistent testimony whose conceded the de- witnesses testimony at require- had testified. That Thus, corroborated fendant in his brief. ment constitutes the sole in his brief: declared —one trial of the case—on proof order of Ramsey’s of what Dicks had version attack the ad- which the defendant could although consistent more told him was testimony. missibility of the corroborative detailed, subsequent Dicks’ than testimo- whether, accordingly address under testimony ny (App. seq.). Amy’s et proper application facts of this case and the Ramsey’s differed from statement as to Evidence, compels that fact of the Rules of him, particular- what Mrs. Dicks had told the reversal of this conviction. money (App. ly about the involved 162). challenged Ramsey’s testimony about corroborative App. by Ramsey integral as an were testified to (App. 44-

Bartley Blackburn’s statement of his part gestae of his account of the res 49) was not as detailed as Blackburn’s judge faced a investigation. The district (App. seq.), but testimony actual 171 et general objection was dilemma when a with it. consistent defer made to this evidence: Whether to proof This conclusion satisfies the need for corroborating evidence until prior testimony consistency between the the witnesses whose was to be testimony. In view of this and in-court or to receive the corroborated had testified conclusion, I see no need to marshal conditionally subject evidence evidencing the satisfaction of the government establishing proper foun- consistency prin- requirement of under the corroborating dation for the introduction of corroborating ciples for the admission Ramsey’s stopped later. To have point reached this in his when he Finally, there is no evidence that have left a hiatus by the Dickses and statements testified to why testimony and would not have shown by any tainted evidence of Blackburn were the defendant at the the officer arrested purpose. The improper motive or defen- point testimony, he At this in his time did. suggest that the Dickses dant seems devoid Ramsey’s evidence would been by plea bargain in testi- were motivated fact, to the defendant. In reference does fying they did later. The evidence proof without of the identification support a contention. The Dicks- not such of the cocaine and defendant as the source a gave es their statements at least week sale, Ramsey’s his connection with the tes- approached about or before Dicks timony unimpor- to have could be said been possible plea bargain. plea The heard of a question why tant. Yet the the defendant played bargain could therefore not have charged in this case had been arrested cer- any part in his earlier statement and jury. would have arisen in the minds of tainly not have been the motive for could officer, investigating Ramsey the two Dickses. The officer on whose statement might have only other event that stopped Ramsey at was arrested. To have by the inducing the statement sidered as extremely con- point would have been which, the defen- Dickses was the arrest fusing jury. argue, created such fear in the might dant facing judge in The situation the district their to induce them to fabricate Dickses as by Supreme this case was well stated particularly this identifica- confessions and States, 425 U.S. Court Geders United defendant as the cocaine source. tion of the 1330, 1334, 80, 86, 47 L.Ed.2d 592 96 S.Ct. We, that though, held in Henderson such (1976): to taint the testimo- fact was not sufficient unfold like a A criminal trial does not ny. 717 F.2d at 139. following script; there play with actors summary, every requirement for In and can be none. The trial is no scenario they arise judge admission of the corroborative must meet situations power to present except require- and to this must have broad this case was do contingen- cope complexities and with the ment that such evidence be offered before States, adversary process. 688-89, cies inherent in the end, may generally To this he 1500-01, determine (1988), 99 L.Ed.2d 771 parties the order in which will adduce judge decisive that the trial had such dis- proof; his determination will be reviewed cretion and did not exercise it improperly. only for abuse of discretion. Huddleston, the defendant was judge The district in this ease chose in his charged possession with of and selling sto- “cope complexities discretion to with the goods len in interstate commerce. There contingencies adversary inherent dispute goods stolen; no that the were process” permitting Ramsey proceed the issue at trial was whether the defen- story investiga- at the time of the dant knew they were stolen. It was defen- but, challenged tion so far as the state- dant’s contention that he was selling the concerned, ments were he did so con- goods for another on commission basis government’s ditionally subject to the es- knowledge and that he had no tablishing presentation later in its of evi- goods being sold stolen. govern- were The given dence that the statements were un- ment offered of other sales as der circumstances which would make them 404(b), similar criminal evidence under Rule admissible as corroborative evidence under objected Fed.R.Evid. The defendant be- governing the the standards admission of cause proved had not further such He went to instruct clear and convincing evidence before admit- jury give any not to consideration to ting goods the evidence those sup- the evidence until the goods. other sales were stolen defen- plied necessary elements for admissibil- that, urged great dant because dan- ity of the evidence and ad- corroborative ger evidence, prejudice by jury “the parties all that if this was not vised ought exposed not to be to similar act evidence, later admitted evidence until the trial court has heard the be stricken and that the should evidence and made a determination under give any weight challenged state- 104(a) Federal Rule of Evidence that the shows, ments. So far as the record defendant the similar act.” committed defendant made no motion at the end of the Supreme ruling Court sustained testimony to strike government’s the chal- “the Appeals Court of district court lenged evidence on the in admitting abused its discretion [had not] government had not satisfied the condition question evidence of the acts in similar judge stated district admis- subject later properly here linked of such sion evidence. The failure to make up.” doing, Rehnquist, In so Justice Chief motion must be taken as a concession court, speaking an for unanimous said: requirements all the the admissibil- traditionally The trial court has exercised of the the ity evidence under condition stat- sort of discretion in control- .broadest judge ed the district had been met. trial, ling at proof the order of and we that, said, It follows as I have nothing see in the Rules Evidence that in phase according- this case issue is practice. change Often the this ly judge whether the in his district erred propo- trial court to allow the decide discretionary ruling proof order of in concerning nent to introduce evidence specifically, question this case. More act, point a later similar and at order to confusion whether avoid trial assess sufficient whether evidence presentation of the and to facili- evidence permit jury has been offered to to the trial under circumstances of tate finding. requisite propo- make the If the case, particular judge’s district ex- this this nent has failed to meet minimal stan- vary general ercise discretion to proof, dard of trial court must in- proof because of its order this case disregard struct the the evidence. context and to admit evidence out unusual 690, 485 U.S. at 108 S.Ct. 1501. The the normal was an abuse order of part to this of the opinion court in a footnote discretion. I am of the that the following quotation opinion decision in v. added the recent Huddleston United 154 continuing objections to the Graham, all Wright Federal Prac- “overruled

21 & K. C. 5054, hearsay evidence.” pp. allegedly 269-70 inadmissible Procedure tice and § Appeals sustained the action (1977): The Court of judge upheld his admis- of the district conditionally of evidence is When an item under the circum- of the evidence sion relevant, possible for the it is often not stances. upon fact which prove offeror at the time the relevance is conditioned Vaught, v. In a dictum States United In such cases evidence is offered. recognized propriety of this supra, we him introduce the customary permit conspiracy cases. The court practice in up” later. Rule and “connect it evidence said: specifically 104(b) practice, this continues of the De- The court admitted evidence judge to admit the evi- authorizing the any attempt prior to cember transactions prelimi- proof of the “subject dence to” exist- prosecution to establish the is, course, not the re- nary fact. It conspiracy. This was not error ence of a sponte to sponsibility judge sua judge may, in his dis- in itself since evidence is insure that the foundation cretion, introduction of evi- permit the offered; objector must move to things said and done an dence as to if at the close of strike co-conspirator subject alleged satisfy has failed to trial the offeror by evidence of up connected and followed condition. conspiracy. the existence of the the same court decisions are to Circuit F.2d at 323. 485 Thus, in United effect as Huddleston. applied in rule has been other The same 184, 191 Ramsey, conspiracy cases. In States v. than denied, 1186, Cir.), 106 S.Ct. 476 U.S. cert. (11th Cir.), Williams, F.2d 1009 cert. 2924, (1986),the court said 91 L.Ed.2d 552 denied, S.Ct. judge may to admit testimo that “a decide (1988), had L.Ed.2d 527 ruling, if that is the ny subject to a later in evidence and had received introduced particular case.” way to handle a best conditionally record. The defen a written applied has been most often principle This sought reversal because of the admis dant dam with the admission of a in connection founda sion of the written record before co-conspira alleged an aging statement of had been established. tion for its admission prior to offered a defendant tor objection dismissed the conspiracy. Representative of proof of the language: Haimowitz, such cases is United States admissibility it fatal to the Nor is (11th Cir.), 1574-75 Sandridge’s yellow sheets U.S. the evi- provided the foundation after (1984). In that case the defen L.Ed.2d If the already admitted. dence appeal that the conviction asserted on dant actually proceeded un- hearsay and should not rested on 801(d)(2)(A), trial court der Rule alleged testimo admitted. permitted it to introduce the could have objected to was that of one ny of a witness foundation. laying evidence before the co-conspirator in an established a said to be explained, the Supreme the has As Court offered and conspiracy. The evidence was is in the discre- proof order of in a trial admitted, subject to later conditionally v. the court. Geders tion of trial See exists, that the conspiracy a proof “that States, 425 U.S. S.Ct. United [96 during made the course statement was (1976); 1330, 1334, 47 L.Ed.2d 592] conspiracy, the in furtherance of States, 70, 74 Goldsby v. and the defendant were that the declarant (1895). 216, 218, 40 L.Ed. S.Ct. conspiracy.” 343] The district [16 members re- upheld convictions This court has and at the end

judge admitted the evidence prosecu- in the after trials which found, turned without testimony the he admissions of a co-con- tion introduced for the admis hearing, that the conditions 801(d)(2)(E) spirator under Fed.R.Evid. satisfied and the evidence had been sion of required making showing before the The defendant has cited a number of conspiracy the embraced both defen cases which he asserts declare that corroborative dant and the and that state evidence in case declarant was in- hearsay. admissible cases clearly in Such are ment was made furtherance of point. not in Check, United States v. See, conspiracy. e.g., United v. States (2d Cir.1978), 582 F.2d 668 government Haimowitz, F.2d proffered for admission statements made Cir.), 469 U.S. 1072 [105 police to a officer a confidential infor- (1984). Al S.Ct. 83 L.Ed.2d 504] mant who “refused testify at the trial.” though the need for flexibility in government Id. at 670. The sought to se- proof may great be particularly order cure the admission of statements even party when seeks to introduce the though the informant refused Cali to testi- co-conspirator’s statement as a state fy by “artfully phras[ed] questions such [to ment, in conspir that the existence of a investigating as to convey in officer] acy may provable not in be until later essence ... precise sub- trial, the flexibility need for intro stance of the out-of-court statements Cali party-opponent’s duction of a admission made to him.” The heart of the decision negligible is not so as to warrant an iron finding such evidence inadmissible was that chronological proof. rule of offer We was enabled to “hav[e] Sandridge’s pro conclude that testimony effect, [i.e., an additional witness Cali] in vided sufficient foundation for the against Check simultaneously while insu- yellow troduction of sheets lating witness, from cross-examination that Williams’ admissions under Fed.R.Evid. safely witness we can assume would have 801(d)(2)(A). subjected scathing, to a perhaps (citations omitted). 837 F.2d at 1014 effective, cross-examination defense counsel.” Id. at 683. That case is not at In United Ortiz-Rengifo, analogous all to this case. The witnesses (2d Cir.1987), the court was whose corroborated problem with a similar faced to that trial, here were court at had testified and judge’s It sustained the Williams. district vigorously had been cross-examined. Man- admission of the evidence on the basis ifestly, if the witness whose subsequent proper establishment of a testified, to be corroborated never there said: foundation such admission. It was no of the witness to be judge If satisfied Check; That corroborated. that is the proffered be- evidence relevant but opposite of this case. depends upon lieves that its relevance Pedroza, F.2d 187 facts, proof may of other he condi- (2d was a case where out-of-court tionally subject admit the evidence oral statements of witnesses were “offered connecting facts. Fed.R. prove the matter asserted.” 104(b). Evid. When court has condi- testimony was found Such inadmissible. tionally proffered by holding, the In so court said: connecting and no facts government argues hearsay that the proven, are the court strike the evi- properly statements were admitted as dence the record the close no “background.” excep- There is government’s case at the of all close hearsay tion to rule. When state- by an ments out-of-court declarant are James, also v. 590 See United States background, they proper- as are (5th Cir.) (en banc), denied, F.2d 575 cert. ly so admitted not as of the truth 917, S.Ct. 2836, 99 61 L.Ed.2d 283 of the matters asserted but rather to (1979); Macklin, surrounding 573 show the the circumstances 1046, 1049, (8th Cir.), denied, events, n. 3 cert. 439 providing explanation for such understanding 157 U.S. S.Ct. L.Ed.2d matters as the or intent (1978). performed. were with which certain acts Ramsey the Dickses ac- language That mani- testified before F.2d at 199-200. cordingly provide any the statements here were the Dickses

festly shows that did not properly testimony admitted. opportunity to tailor their later Ramsey’s of their to conform with account Mazza, 792 F.2d All in this statements to him. witnesses (1st seques- including the Dickses were case 94 L.Ed.2d 147 U.S. Dickses, court. The testimony by tered order of the (1987), agents gave the DEA therefore, Ramsey’s testimo- drawn from out-of- did not hear covering the whole case from a secured witness that the fact that the ny. court statements It be said testimony by This interviewed them. gave his corroborative evidence be- officer by this witness to the made statements gave some added fore the Dickses testified said, hearsay, “was not agents, the court weight credibility of this later testi- repeatedly cautioned mony. validity argument of such not to the out-of-court consider certainly is not seems minimal at best truth, but, them as for to consider their substantially outweigh sufficient showing the ‘background,’ ‘basis for probative testimony. of the This is value ” government.’ by taken the actions strength in especially so view of court, however, found government’s case. considering “the objectionable because [ex The critical issue in the case was whether state amount of the out-of-court cessive] of the co- the defendant was source ments,” resulting prejudice from the paid they caine. The Dickses testified that testimony substantial introduction of such the defendant for the cocaine and that testimony’s slight proba ly outweighed the defendant later delivered cocaine Nonetheless, the conviction tive value. them. defendant denied this tes- While the affirmed on the was later proved timony, undisputed circumstances This was a admission was harmless. support in the case do not his denial. The “background” and not corroboration case testimony of the defendant himself and his manifestly different anyway case and is they at the cousin was that were Blackburn from this case. very Ramsey home at the time had deliv- The admission money Ray the cocaine. ered the of the defen- officer of the identification Dicks’ was that the defendant the cocaine source after all dant as delivering Ramsey had told that was been as corrobo- requirements for its admission money time. The defendant at the established did rative evidence sought explain presence his at the time unfairly prejudice the defendant. The cousin, by testifying that he had driven his suggested by the defendant prejudice Kevin, “get over to the Dickses’ to some that the tentative re- in this connection is help” fixing ignition of Kevin’s car. evidence “de- ception of the corroborative purpose help fixing If secure prived opportunity to cross-ex- [him] car, see how Dicks was it is difficult to effectively.” He does not Ramsey amine fixing a car expected to assist located Ramsey When identify how this resulted. away grandmother’s miles at Kevin’s had the state- the defendant testified Moreover, exper- Ray house. Dicks had no Amy posses- Ray and Dicks ments of knowledge an automobile me- tise or Ramsey precisely what sion and he knew chanic; he was a brick mason. The whole having been told had recounted as explanation by the defendant of his admit- possession of the statements Dickses. The presence ted at the Blackburn house when provided him with all the paid im- money for the cocaine was need to cross-examine material he would implausible plausible. Equally show Ramsey. Nor did the defendant present at the fact that the defendant Ramsey's ac- material differences between days later when the Blackburn home two Dickses’ statement and count of the Dicks; was delivered to as testified to cocaine account of those statements Moreover, fact, it was the defen- the Dickses testified the fact that the Dickses. dant who delivered the cocaine to them for overruled for arbitrariness or unreason- delivery Ramsey pursuant to the sale majority ableness. The makes no such days finding made two earlier. The defendant of such arbitrariness. majority The sought explain presence plants ruling sub- its this on its adherence to “that sequent by merely testifying visit that he principle” departure time-honored is accompanied his permissible cousin to retrieve a small not from the “ordinary” rule requiring prior testimony toolbox that been left there Kevin of the declarant before of the events involved in this corroborating before bewill ad- prosecution or, add, had occurred. I may that statements of missible— co-conspirator may not be admitted summary It is from brief evident this against a proof defendant until the of a events that all the circumstances of conspiracy has been established. What the case lent conviction to the majority suggest does—I with deference— the Dickses and that at- the defendant’s is to proof declare that form or order of is explain tempt gave the coincidence that important proof more than the In itself. support to the Dickses’ lacks conclusion, reaching its the majority elevat- sum, In plausibility. any possi- I think that proof importance ed burden of over ble prejudice that the defendant proof itself. The statement Ramsey’s testimony cor- suffered Graham, Wright & Federal Practice and roborative evidence before Dickses had quoted by Procedure cited and § that, ephemeral so all testified was under in Rehnquist Chief Justice the Court’s case its including circumstances of the opinion, Huddleston does not accord with strength, it cannot preju- be said ruling this stated I majority. can- substantially dice outweighed case agree majority’s not with the somewhat probative value of the corroborative bland dismissal of I Huddleston. would circumstances, testimony. Under those herein, judge’s ruling affirm district deny admissibility. there is no reason to finding action of district judge to be reaching contrary conclusion, In accord with the decision Huddleston. majority, suggest deference, I has rigid taken an application too and narrow proof. as to the rule order the testimony

rule that of the witness

whose is to corroborated must be

precede the introduction corroborat- BENNETT,

ing is not an Plaintiff-Appellant, absolute and inflexi- Bernice ble rule—nor do our so cases state. Weil did of it rule speak applied as a to be SULLIVAN, Secretary Louis W. rigidly; it rule applied said was a to be Services, Health and Human “ordinarily.” Similarly, Henderson Defendant-Appellee, restrained; equally simply it declared credibility general rule a witness’ “[a]s Advocacy Committee, Gray Panthers may not unless it has be rehabilitated first League, Older Womens submit, Huddleston, challenged.” Amici Curiae. discretionary judge makes it with the No. 89-1748. judge to rule as the district did in this case. Appeals, United States Court really my opinion, majority Fourth Circuit. gloss holding over the Huddleston. only majority declares Huddleston Argued 1990. June means that decisions such as the district Decided 1990. Oct. judge’s ruling in are im- this context “not As Nov. 1990. Amended holding mune from review” the real but an was that order of Huddleston judge. the trial

issue for the discretion of

Such an exercise discretion

Case Details

Case Name: United States v. Michael Lee Bolick

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Nov 6, 1990

Citation: 917 F.2d 135

Docket Number: 89-5047

Court Abbreviation: 4th Cir.