*1 an election that should has won the union determinative. In close could be election very certainly, at the Most not have won. is the Board situations election vote least, activity, which objectionable such carefully particularly and to required whole,” a could “considered as be cases must which in other charges scrutinize of the outcome influence ... [an] insub- “tend immaterial or would constitute single vote. a and, decided but election” election objections stantial Because the Claxton, at 1366. 613 F.2d evidence hard when the existence of of and substan- has raised material Company hear- a supplied, irregularities is full improper electioneer- tial factual issues accord- be truth should ing get at the hearing conduct, full ing “a coercive ed. get truth be accorded.” should added). (emphasis Id. at 362. Packing, 457 F.2d Gooch employee company a Packing, In Gooch Company majority holds that morning of the organizer, on union specific produce evidence which failed employee election, another informed prima a facie case that the elec- established work- higher wage while had earned she adversely affected. have been tion could company. Two or union for rival vote, I extremely close light remark. heard this employees three other deny disagree. respectfully it was reflected that Submitted of the order and for petition enforcement employee had earned unlikely” the “highly hearing. evidentiary for an remand noted, As the court wage claimed. rate influ- persons just one of these “[i]f remark, by this enced to vote for union election it union has won
then the supplied with If not have won.
should existed, facts
adequate evidence hearing have conducted
the Board should conjec- rumor and from
to sort substance Gear, NLRB v. also Nixon ture.” Id. See America, STATES of UNITED (2d Cir.1981)(“[t]he Inc., Plaintiff-Appellee, acute” in hearing particularly for a need by two because votes an election decided BLAKE, aka David Clark and Peter cannot be sum- misconduct “even minor Wilson, Defendant- Winston it could ground marily excused Appellant. election”); influenced Corp. v. Supply Henderson Trumbull No. 90-1829. Cir.1974) (2d NLRB, Appeals, United States Court proposition an elec- (stating an identical Fifth Circuit. vote). decided one tion Aug. 1991. part II.A. of As discussed did not Company’s affidavits opinion, the Rehearing Denied Oct. allegations, instead conclusory but contain “specific evidence requisite contained the specific specific events [and] person was just If one influenced
people”. improper conduct and comments
by the area, or polling at the
Readus or Jackson handbil- threatening conduct
by Presley, or by employee
ler described misleading which insinuated handbills (but Company)would not the
that the union employees labeled
know how voted “thieves”, then Company “liars” *3 Nation, Dallas, Tex.,
John D. for defen- dant-appellant. Greenberg, Atty.,
Susan Asst. U.S. Mar- Collins, Dallas, Tex., Atty., vin for plaintiff-appellee. CLARK, Judge,
Before Chief GARWOOD, GOLDBERG and Circuit Judges.
CLARK, Judge: Chief Peter Blake was convicted and sentenced charging under a seven-count indictment weapons various and narcotics offenses. indictment, challenges He raises portions against of the evidence admitted trial, him sufficiency and to the evidence on several counts. We affirm. purchased In March two pistols semiautomatic from a at a dealer completed trade show in Dallas. He using transaction forms the alias of Win- ston Wilson. charged possession police officers Counts and 7 of fire- early April Dallas alien, during illegal a “reverse” in violation of 18 arms
observed conducting 924(a)(2). under- 922(g)(5) An officer transaction. U.S.C. Count §§ negotiations to sell two kilos purchase offered cover concerned Blake’s March 1989 individual. cocaine to Blake and another pistols. of the two semiautomatic Count 7 close and observed the offi- Blake stood gun concerned the submachine and four $52,000. exchange An cer the cocaine pistols apartment seized in the 9mm after given, Blake’s com- signal was arrest charged possession his arrest. Count 3 escaped in apprehended. Blake panion was distribute, cocaine with intent to in viola- a Nissan 300ZX. While 841(a)(1). of 21 tion U.S.C. Count § *4 indictment, this sale was described charged unlawfully receiving possess- government’s in rebuttal case. jury ing unregistered an firearm —the subma- gun chine hidden under the baseboard—in 12, 1990, April Blake was arrested 5861(d) of 26 and 5871. violation U.S.C. §§ coming under surveillance after charged 5 and 6 use of firearms Counts on a warrant for his arrest based during drug trafficking and in relation to a purchase firearms under the alias crime, 924(c)(1). in of 18 U.S.C. violation § culmi- Wilson. This surveillance Winston gun 5 concerned the submachine Count chase, in car which ended a nated found with the cocaine hidden under the in which Blake of the Nissan 300ZX wreck Count 6 concerned the four baseboard. passenger. was a pistols pillowcase in the 9mm found government elicited testimo- At trial the bedroom. arrest, that, spoke freely ny after his Blake custody enforcement offi- A him while law convicted on all counts. The cers, confessing variety of criminal imposed impris- to a term trial court a total included the conduct subse- years activities which and 8 The onment of 50 months. charged in indictment. Blake quently imposed supervised court also district trial, along denied these statements at years release term of five and made a knowledge of criminal traffick- special assessment of Blake filed $350. sign in narcotics. Blake did consents to timely appeal. apart- car and two search wrecked
ments. Officers testified that he told them II key apartments to one of the where argues improp- that the indictment They found. also testified that he could be groups of He erly joined two offenses. hiding place described a under a kitchen evidentiary also raises several issues where he stashed crack co- baseboard had Fi- the district court’s conduct of his trial. caine, gun, money, and informed nally, challenges sufficiency weapons and them of a cache of ammuni- him against on several of the pillowcase in a in the bedroom. tion counts. The officers found an automatic subma- cocaine, gun, grams
chine of crack A. Joinder $6,000 in cash hidden behind baseboard. of Offenses pillowcase A the bedroom contained four argues the indictment pistols They 9mm and ammunition. also charged groups two of offenses. Counts razors, plastic baggies, discovered and a possession and concern his unlawful car, of scales. In set the officers found acquisition of firearms in March 1989. guns, bag two loaded one in a under the remaining counts all concern the events passenger floorboard and the other in the surrounding April his arrest on purse. driver’s district court denied Blake’s motion for Blake was groups indicted on seven counts. severance of these two of offenses. charged Count 1 use of false Misjoinder identification is a of law we review firearms, acquisition Park, in violation de novo. United 922(a)(6) 924(a)(1). 754, (5th Cir.1976). of 18 U.S.C. §§ quired district court did not err. Rule into on cross-examination of the (1) concerning 8 of the Federal Rules of Criminal Proce witness the witness’ char- broadly untruthfulness, in favor of initial dure is construed acter for truthfulness or Scott, (2) joinder. concerning the character for truth- Cir.1981), fulness or untruthfulness of another wit- L.Ed.2d 105 ness as to which character the witness 8(a) joinder being Rule allows of offenses cross-examined has testified. if “are of the same or the offenses 608(b). Fed.R.Evid. are on the similar character or based same Under Rule it is error to at act or transaction or on two or more acts or general tack a witness’ character for truth together connected or consti transactions by using fulness extrinsic evidence of his tuting parts plan.” common scheme or of a conduct that has not resulted in conviction 8(a). groupings Both of Fed.R.Crim.P. Cohen, a crime. United States v. charge fenses contain the identical of un have, We possession illegal lawful of firearms however, held that “Rule should not permissible alien. Joinder was under Rule stand as a bar to the admission of evidence 8(a). allege any prejudice— Blake does not *5 contradict, introduced to and which the prejudice—flowing much less substantial jury might disproves, find a witness’s testi discretionary from the district court’s deci mony as to a material issue the case.” denying sion severance of these counts. 799, Opager, v. 589 F.2d 803 Scott, F.2d at Accordingly, See 589. ruling allowing the district court’s admissions, in indi proceed single counts to to trial under a cated that he had extensively been involved indictment was not error. in drug trafficking, primary was a part of government’s such, case-in-chief. As Evidentiary B. Issues drug the admission that he was in the prior 1. Extrinsic evidence of a act of clearly business was a material issue in the misconduct case. Blake making When denied the in government In its case-in-chief the elicit- criminating police statements to the offi testimony police ed from three Dallas offi- direct, cers on he called into cers that Blake had admitted involvement veracity of the officers’ in charged the crimes and in other criminal the confession. The was enti activity. cross-examination, On direct and present tled to prior evidence about Blake’s making any Blake denied incriminating drugs involvement with to corroborate the statements to the officers. re- On testimony about Blake’s confession. Evi buttal, called a detective of drug dence of other transactions corrob Department Dallas Police testify, drug orates Blake’s admissions about traf objection, over Blake’s pres- about Blake’s ficking. That drug Blake was a trafficker ence purchase operation at the “reverse” guns tends to show that the and cocaine detailed in the facts above. girlfriend’s found apartment secreted improper contends this was im- part drug of his business. We follow peachment, 608(b) citing Rule of the Feder- the recent decision in United States v. al Rules provides: Cardenas, of Evidence. This rule 1338, 1345-46
(b)
Cir.1990).
facts,
Specific
indistinguishable
Under
conduct.—Spe-
instances of
that court stated:
cific instances of the conduct of a wit-
ness,
purpose
for the
attacking
We do not believe that
oper-
Rule
supporting the
credibility,
witness’
ates to
exclude
such as this.
provided
than conviction of
evidence,
crime as
in Material relevant
such as that
609, may
proved
rule
be
extrinsic
presented by
government,
which con-
however,
They may,
evidence.
in the
tradicts other material evidence does not
court,
discretion of the
if
jury’s
tend to focus the
attention on an
untruthfulness,
truthfulness or
matter,
be in-
unrelated collateral
so as to con-
1244,
920,
denied,
99 S.Ct.
440 U.S.
cert.
expend valu-
needlessly
jury and
fuse
(1979). By his direct testimo
L.Ed.2d
Rather,
aids
such
time.
able
cross-examination,
ny and denials
a defen-
determining whether
knowledge
placed at issue his
squarely
intentionally involved
actually and
dant
trafficking.
narcotics
intent
misconduct;
himself
evidence,
admitting
“By
the rebuttal
ancillary.
merely
effect is
impeachment
picture
merely completed the
as
court
trial
1346;
States
see also United
Id.
and knowl
appellant's true involvement
(11th Cir.),
1245, 1248-50
Cousins, 842 F.2d
thereby
correct
edge in the
world
109 S.Ct.
cert.
appellant’s
testimo
distorted view
ed a
Circuit
Ninth
102 L.Ed.2d
Batts,
at 518.
ny.”
“[¡Individual
concluded
has likewise
evidence,
instance Rule
in this
rules of
Impeachment
isolation,
when
608(b),
read
should not be
cross-examination, Blake assert
On
of ascertain
destroys
purpose
so
to do
possessed crack co
he had never
ed that
especially so when
This is
truth.
caine,
any
that he never
statements
made
ev
the relevant
directly contradicts
witness
they
police regarding contraband
to exclude.”
Rule
seeks
idence which
car,
apartment
find
513, 517
Batts,
testimony by the officers to
Cir.1977),
opinion withdrawn
government’s
contrary
a lie.
grounds,
on other
aff'd
denied,
testimony, the fol
attempt
impeach
place:
lowing colloquy took
(1978).1
was ad
The evidence
L.Ed.2d
Blake,
any-
killed
Q.
you ever
Mr.
608(b).
Rule
under
missible
*6
body?
Furthermore,
the admis
where
Honor, we
Your
MR. GLOVER:
any ground,
proper on
evidence is
sion of
being highly—
object
that as
to
on other
court’s reliance
district
I
that.
THE
sustain
COURT:
the defendant’s
not affect
grounds does
Honor,
Your
could
MR. WEBSTER:
Cardenas,
F.2d at
895
rights.
substantial
approach the
we
bench?
1345;
Rail
v.
Coastline
Collins
Seaboard
Yes, sir.
THE COURT:
1333,
(5th
1335
Cir.
Co.,
F.2d
681
road
record.)
(Bench
on the
conference
ap
provides an
1982).
plainly
Rule
Honor, this
Your
is
MR. WEBSTER:
This rule
propriate basis
admission.
get
that we did not
the statement
part of
crimes,
evidence of
generally bars
regard
to
examination
into on direct
prove
character of
or acts to
wrongs
of which were
killing
people, two
him
ten
conformity there
conduct in
defendant
police officers
Jamaica.
“motive, op
prove
with,
it tends to
unless
Well, does he have a
THE COURT:
intent,
plan, knowl
preparation,
portunity,
you
that effect?
to
statement
or
of mistake
edge, identity, or absence
a statement
He has
MR. WEBSTER:
404(b). Under this
accident.”
Fed.R.Evid.
agents
Agent Barber
that
to two
of “other
held that
rule
we
get into on cross-
that we did not
effect
to an
if it is relevant
is admissible
crimes”
we felt—
because
examination
character,
than the defendant’s
issue other
mean on direct?
THE COURT: You
is
of the evidence
value
Yes, sir,
good
on
outweighed by
preju
its
MR. WEBSTER:
substantially
Beechum,
all
of those individu-
faith basis and
three
v.
effect. United States
dicial
willing
up to this
Cir.1978) (en banc),
to come
898,
als were
911
582 F.2d
799,
reasoning, Opager,
F.2d at
without not-
primarily
original
relied
decision in Batts
1. The
608(b),
only briefly
history. Having
speaking
subsequent
found the
Rule
404(b).
decision was
support
subsequently
persuasive,
lent
Rule
This
original
we
Batts
to be
do
decision
withdrawn,
opinion
event,
any
language.
In
not reconsider
exclusively on Rule
which rested
substituted
404(b).
complementary,
are
and sustain
Batts decisions
quoted
Opager,
court
this
here on
basis.
affirmance
either
large portion
original
Batts
adopted a
Contreras,
States v.
See United
agents.
people
ten
at least
were
state there
denied,
cert.
1237,
(5th Cir.),
killed
Blake.
F.2d
Jamaica
466,
rebut this Cir.1987). Thus, when by govern- the made of this matter was exercise of reviewing the district court’s During closing arguments, Blake’s ment. light the discretion we view evidence briefly this line of counsel referred to twice proponent, maximiz most favorable to the the questioning. He commented minimizing its ing probative its value and Blake made government’s assertion that Id. effect. prejudicial He also these statements was “ludicrous.” The Admitting this was error. evidence of the pointed “prejudicial” out the nature unfairly question of the was substance statements, unreliability the as well as apart self-generated from the prejudicial: stemming from decision not to the officers’ test, credibility entirely it unrelated to record, was videotape, to or to transcribe for jury. the signature these conversations. substantive issue before agents’ with Blake From its conversations argues questions the through investigation, govern- the its entirely collateral to the issues substantive ment had obtained abundant charged offenses, any pro- and that impeach it could use to his credibili- on the issue bative value this ty. probative cumulative value of this substantially of his was out- Moreover, impeachment was de minimis. weighed prejudice by danger the of unfair asking inflammatory question and after the arising implications of from the substantive receiving anticipated negative response, the See Fed.R.Evid. questions. 403. The chose not to call rebuttal government responds that Blake’s credibili- issue, testimony. to contradict this ty witnesses particularly was at attempt argue discrep- scope of those Neither did it to this his conversations with ancy closing emphasize Blake’s lack tion that he permissible thought to use a Instead, credibility. the prosecution name, false to declare a birthplace, false damning questions threw the jury into deny being illegal alien when follow-up box without the it led the court to making purchase. He told jury he believe would be forthcoming its did not even guns, yet like jack- his leather agents. “major function” Rule 403 et bore the name “Bullet.” He then “to is matter of scant or cumula exclud[e] nickname, claimed this was not his and he force, dragged tive by did not know or when why it was stenciled heels for the of its prejudicial sake effect.” jacket. back of his He explained the McRae, United States v. person cash on $1000 when arrested (5th Cir.), stating he just had paid been for finish- S.Ct. L.Ed.2d 83 body car, work on a although he government’s conduct leaves the district could not car, remember who owned the ruling court’s a clear abuse of discretion. car, the make of the or the location of error, however, Finding where he had gold done work. The then arises whether this error was harm- chain with a Krugerrand he medallion was Rodriguez, less. United States v. 573 F.2d wearing when arrested was borrowed from an error “[W]hen friend, a but he value, did not know its nor not of magnitude, constitutional it is not did he identify the friend. ground for if the reversal error had no every On point, substantial Blake’s testi- substantial influence and enough there was mony was contradicted support of the offi- apart phase the result from the cers. The description of affected the error.” Id. narcotics presented by transaction required Blake’s defense to de- on rebuttal concluded with testimony of his termine whether he or the officers were escape in a Nissan 300ZX. The car in lying. By admitting following, which he passenger was a ap- when own assured the jury’s determi- prehended days several later also a was credible, nation that he not a was reliable Nissan 300ZX. He claimed it his first witness. He routinely aliases, used several only ride in supplying the car. He false names and testified that misinfor- only plainclothes mation to enter saw the United he illegally holding officer and to obtain gun driver’s unlawfully. tapping licenses prior on window He asserted he chase, and the female driver of the but never saw or heard the uni- car were “casual friends.” Yet fathered squad formed officer in the car the officers child, her professing while love his still flashing testified behind him lights wife and children he left in New York. He sounding its siren. The officers’ testi- stated that he never lived at the female’s mony presented *8 government’s case- apartment, and that the found contraband in-chief consistently recounted his state- But, there was not his. he admitted that ments that his, the along contraband was picture family the of his found there was with his places to the directions secret in explained his. He by this testifying he had All was concealed. were proved to picture the brother, taken to show his who accurate. be visiting him from Jamaica but who had The record same, contains more of the stayed at her apartment. He also testified the but above is more than sufficient to knowledge that he had guns, no of al- establish that any juror though reasonable he did purchasing admit to the two to have conclude Blake pistols men, semiautomatic for was not credible. two one know, name he The against whose did not substantive evidence and the Blake only he knew as that, overwhelming. “John.” He was also The testified errone- two ously when purchasing weapons, the he did admitted questions killings not about the see prejudicial. statement the form which he were inBut the of context this signed prosecution trial, they for false an- clearly did not harm any sub- swers. He then testified on cross-examina- right stantial of the defendant. of fact have found the essential Irrelevant, trier could prejudicial beyond of the crime a reasonable elements rebuttal, Hoskins tes Detective On doubt, the conviction will stand. United assigned to the “I a detective tified: am Cordova-Larios, 40, 41 Organized Crime of
Narcotics Division
Force,
Task
Jamaican
Drug Enforcement
Building.”
Force here
the Federal
Task
required
Count 3
Jamaican,
objected
Blake
Because he
(1)
(2) pos
knowingly
Blake
prove
that
irrelevant and
this
reference was
that
last
(3)
a controlled substance
sessed
conference, the dis
prejudicial. At bench
it.
intent
distribute
agreed, and asked whether
trict court
Villasenor,
Cir.
an instruction to
Blake’s counsel wished
1990).
argues that
Blake
the evidence
request
disregard.
such
was made.
No
possession
him to
insufficient to link
sur
government stated that
it was
substance, the amount
controlled
reference,
which the witness
prised
raise
inference of
was insufficient to
prompting.
voluntarily stated without
testi
jury
intent to distribute.
heard
challenge
Blake did
this assertion.
had
mony that Blake
confessed to owner
by hav
the matter
district court concluded
narcotics,
ship
agents
to a
of
directed
out of the
ing counsel instruct the witness
key
apart
keyring containing the
presence
to Jamaica
jury’s
never
refer
ment,
compart
and disclosed
hidden
again.
containing
testi
ment
the narcotics. Other
in
neither
curative
requested
grams
Blake
mony established that
argues
a mistrial. He
here
struction nor
crack cocaine seized was a commercial
prejudicial
2,000
was so
yielding approximately
that this
indi
quantity
He
duty
had no
to make such a motion.
found
the cocaine was
vidual doses. With
disregard
urges
cash,
blades,
bag
no instruction to
$6,000
plastic
also
razor
disagree.
together,
have
the harm. We
gies,
could
cured
and a
of scales. Taken
set
inappropriate,
if
Blake
reasonably
considered
Blake
Even
could
infer that
the one word—“Jamai
complains
committed the
offense.
days
can”—spoken once
over two
weapons
argues that
request for
testimony. Without a
witness
never
counts 5
6 were
covered
mistrial,
a curative instruction
weapons
were
linked to him. Because
plain
error—error that
appellate test is
narcotics,
weapons
found
resulted
is “so fundamental as
sufficiently
linked to him the same
miscarriage
justice.”
States v.
credibility assessments set out above.
Cir.),
Yamin,
924, 109
S.Ct.
argues
Blake also
(1989). No
error oc
plain
L.Ed.2d 603
924(c)(1)
weap
requires that the
U.S.C. §
curred here.
during and
to a
ons be used
in relation
drug trafficking
argues
crime.
He
Sufficiency
C.
Evidence
prove
no more than
did
re
proximity
that the evidence
a controlled substance
Blake asserts
weapons.
recognizes
that the
garding
5 and is insufficient to
named
counts
*9
charged pos government
prove
not
use or
support
Count 3
need
actual
conviction.
brandishing
weapon.
of
with intent to distribute.
of the
session
cocaine
Coburn,
372,
5
6
use of a firearm v.
876 F.2d
375
Counts
by
during
drug trafficking
government may
to a
The
meet
and in relation
its burden
reviewing
challenge
showing
weapon
the
involved could
offense. When
facilitate,
evidence,
sufficiency
protect,
of the
been
or
the
we view the
have
used
light
potential
facilitating
opera
most
the
the
evidence in the
favorable
of
tion,
government,
presence
weapon
with all
of
reasonable inferences
way
credibility
support
choices
some
connected with the
traffick
drawn
jury’s
Robinson,
long
ing.
verdict. So
as a rational
United States
1006,
(5th Cir.1988). Robinson,
608(b) (emphasis added).
we
The language of
Matra, 841 F.2d
quite plain;
followed United States v.
the rule is
extrinsic evidence is
(8th Cir.1988),
which found it sufficient
inadmissible when
impeach
offered to
or
“police
weapons,
had found loaded
am-
credibility.
bolster a witness’
munition,
large quantity
of cocaine and
majority
The
correctly observes that we
cash,
drug paraphernalia
in a house
have held that “Rule
should not
by
used
and others. Two
[defendant]
stand as a bar to the admission of evidence
weapons
found underneath sofa
contradict,
introduced to
and which the
cushions,
bedcovers,
one underneath the
jury might
disproves,
find
a witness’s testi
zipper bag
and another in the
of a vacuum
mony as to a material
issue
the case.’’
Robinson,
(em-
cleaner.”
Ill (citing Opager), vacated grounds, 469 U.S. judgment of the district court is (1985). course, L.Ed.2d 767 Of the contra AFFIRMED. diction of fact itself does not make the material;
issue
the issue is either material
collateral, independent
or
of the contra
GOLDBERG,
Judge, dissenting:
Circuit
diction.
theAs
D.C. Circuit has observed:
Relying
on a 2-1 decision
the Elev-
commonly used
of collaterality
test
“[t]he
enth
2-1
Circuit and a
decision
fact,
asks: ‘Could the
as to which error is
subsequently
Ninth Circuit which was
with-
predicated, have been shown in evidence
part,
drawn
relevant
holds
any purpose
independently of the con
government properly impeached
”
Tarantino,
tradiction?’ United States v.
the defendant’s
with rebuttal ev-
(D.C.Cir.)
(quoting
3A
alleged participation
idence of his
in an
Wigmore,
(Chadbourn
Evidence Sec. 1003
unrelated, uncharged drug transaction.
Rev.1970)),
persuaded
I
reasoning
Because
am
S.Ct.
when Cardenas, that the respectively, Batts in oth- participated he had whether rebut, nation may not extrinsic with government involve- deny his did he drug activity er is elicited evidence, a which contradiction ment. Batts, 558 F.2d See on cross-examination. J., (“Since dissenting) (Kennedy, at 519-22 denial, seizing on that government, testify subject on the did not Batts impeach the rebuttal offered during his direct examination prior conduct majority approves testimony. The Blake’s it on cross-examina- (or voluntarily raise ground that: on impeachment of this the ... cocaine tion), error to allow it was officers], in admissions [to Blake’s Cardenas, evidence.”);2 F.2d at into ex- he had been that he indicated (“In J., the instant dissenting) (Young, trafficking, drug in tensively involved defendant, not the case, prosecution, government's part of the primary awas of defen- the case the issue injected into such, the admission As case-in-chief. drugs.... with prior involvement dant’s drug in business that he was said that it cannot be defendant] Thus [the in case. issue clearly a material illegal drugs true attitude toward ‘made his incrimi- making the denied When case.”). my To in this issue’ a material police officers nating statements may not view, government cross-exam- the ve- into direct, called misconduct about unrelated ine a defendant about officer’s racity of the offering extrinsic evidence threat under en- the confession. in did the defendant tending prove Blake’s evidence about present titled the D.C. activity. As engage in that fact drugs to corrob- with prior involvement has observed: Circuit con- testimony about orate the case a criminal a defendant where drug transac- of other Evidence fession. on cross-examination stand and takes Blake’s admissions corroborates tions misconduct, charges of unrelated denies trafficking. about im- attempt to may not added). The (emphasis Majority op. at evi- extrinsic peach his the Eleventh principally on relies of such misconduct. dence v. States United 2-1 decision Circuit’s 8. Tarantino, at 1409 n. 1338, 1345-46 Cardenas, 895 F.2d by virtue persuaded that I am not original 2- Cir.1990) Ninth Circuit’s repudiation of confession Batts, 558 Blake’s States United decision No, sir. A. as fol- on direct-examination 1. testified you anything about right. know Q. Did All lows: anything asking like that? me started officers] A. ... [the No, ex-girlfriend], A. sir. [Blake’s Sharon about Q. they point Record, indicate right. at that Did 33. All Vol. Ill at Ridge? at O’Connor you that she lived Yes, then- sir. A. has observed Third Circuit agree you that? ap Q. Did dissenting opinion Judge Kennedy’s in Batts Yes, sir. A. day Circuit parently with the Ninth carried the They Okay. indicated to Q. "subsequent modification virtue of you in her you dope had them that told that apartment upon rule all reliance opinion to eliminate guns apart- you had her admissibility.” ground as a incriminating various an all of these ment things (3d Herman, Cir. you pillow Did guns case. 1978) (holding was inad extrinsic evidence anything agents anything like tell 608(b)). under rule missible that? *11 offenses, charged thereby merely of the he terial denial because the defendant disa- to, made a material issue of his confession vows confession. participation in, unrelated, un participation unrelated, in the un- charged transaction. The material issue in charged drug transaction was collateral to
this case was
Blake confessed to
whether
the material issues at trial. The fact that
exercising
dominion
control over
confessing
denied
to the crimes
ex-girlfriend’s
contraband seized from his
not,
charged
fortiori,
did
any
make it
apartment, not whether he confessed to
less so.4
engaging
purchase
in the reverse
transac
agree
tion. I would
that extrinsic evidence
II.
charged
that Blake
to the
confessed
holds,
majority
alternative,
testifying
crimes—a witness
that Blake
that the extrinsic evidence was admissible
him that he
police
told
had confessed to the
404(b)
under rule
as evidence of Blake’s
admissible,
been
officers—would have
be
knowledge.
intent and
government
cause that evidence would tend to contra
did not offer the rebuttal evidence for that
dict Blake’s denial on the material issue of
purpose, the district court did not admit it
charged
he confessed to the
whether
purpose,
for that
government
and the
did
However,
respect
crimes.
to Blake’s
argue
appeal
that we should affirm
unrelated,
participating in
confession to
on that basis.
I therefore would decline to
uncharged conduct, I would follow the
DiMatteo,
do so. See
thereby invited the to intro- tion between defense theories that claim duce extrinsic all the conduct that the defendant did not do the allegedly confessed. Buie all, act at and those that claim that specific contradiction rule defendant mistakenly, did the act only given cannot elasticity.3 be such every Not truly raising the latter disputed issue of minute detail of a confession Colon, becomes ma- intent.” See United States v. 608(b) specifically prohibits 3. Rule the introduc- ried. See Fed.R.Evid. 403. As the support tion of extrinsic Thus, credibility. evidence to acknowledges, "the had obtained the rebuttal was not admissible abundant evidence which it could use to im- to bolster the officers. peach Thus, credibility.” Majority op. at 340. "unfairly prejudicial" like the reference to 4. Even were this extrinsic evidence admissible murders, the Jamaica I would conclude that impeachment purposes, whether "[tjhe probative value of this cumulative im- value was sufficient to overcome peachment was de minimus." See id. at 340-41. prejudice substantial risk of unfair it car- *12 everything credibility Cir.1989) Blake’s was (reversing con ment. (2d 650, 657 agree Although I too would in this case. remanding trial on the for new viction plagued with was 404(b) was inad evidence the ground that vantage inconsistencies, remote intent are from this knowledge and missible). Where degree of say trial, proffered point, I cannot with issues central not the probative,” certainty that the erroneous admission “particularly 404(b) is not evidence Gordon, establishing participation v. evidence his States United . cf 404(b) Cir.1986) (“Rule drug activity, along the “unfair- (5th other 1165, 1174 prejudicial” murder alle- ly where reference to the probative particularly evidence is gation, “had no substantial influence” charged conspiracy.”), has assessing likely outweighed jury value its See id. culpability. (quoting adjudging for unfair “by potential substantially Rodriguez, 573 F.2d v. v. Huddleston United States see prejudice,” 1496, 1502, Cir.1978)). States, (1988) (acknowledging the 99 L.Ed.2d dissent. respectfully I attendant prejudice for unfair potential evidence), especially admission tempered is not prejudice risk of
when See United limiting instruction.
by a Gonzalez-Lira, v. limiting in Cir.1991) (holding that the defense’s
struction, “combined with cross- truth on bring out
ability to examination,” “the introduc insured that MAYFIELD, Plaintiff- B. Calvin relating prior the evidence tion of Appellant, jury not lead the smuggling attempt would prior to convict defendant] [the KLEVENHAGEN, al., Johnny et crime”).5 Defendants-Appellees.
III. MAYFIELD, Petitioner- B. Calvin do, admission of Concluding, I that the Appellant, as improp- was evidence the extrinsic rebuttal a new er, and remand for reverse HARMON, United States Melinda the evidence trial. I believe Judge, Respondent District transaction, especially in uncharged drug -Appellee. “inflammatory ques- combination had killed some- 91-2166, tion” about whether 91-2167 Nos. Calendar). As the one, harmless. cannot be deemed (Summary acknowledges, “Blake’s defense majority Appeals, United States Court jury to determine whether required the Fifth Circuit. his con- lying” the officers There majority op. at 341. fession. See 12, 1991. Sept. little, evidence, than the any, if was testimony of Blake’s confes- police officers’
sion, possessed the that Blake proving ex-girlfriend’s apart-
guns drugs in his government offered ground, instructed. Because the By affirming I fear so on this alternative 404(b), importance specifi- but that the trivializes evidence not under rule given evidence, limiting must be when instruction that cally impeachment there was no as seeks to admit 404(b) limiting instruc- discussion tion, Huddleston, requests it. See and the defendant requested, none and therefore none was Batts, 558 F.2d at S.Ct. at 1502. In both given. Cardenas,