*3 SELYA, Before TORRUELLA vigorously cross examined con- was then *, Judges, cerning cooperating Circuit and YOUNG District motives for his own exten- Judge. as well as * Massachusetts, desig- sitting by Of the District of nation. grams. As was the case with During of nineteen drug dealing. involvement sive Hudson, Perry Godin testified that examination, James his cross
the course appellant’s purchases made these meeting Henry Cor- acknowledged Hudson Sabattus, Maine. house Wind- being held in the South mier while Center, meeting Rob- Correctional ham government then turned to the first County Jail. in the Johnson Cumberland ert stand, count, calling Henry Cormier to the played that he James Hudson plea agree- to a who also testified and Johnson while cards with Cormier trial, appellant’s At the time of Cor- ment. tone examination set the jail. cross This prison on a federal mier was incarcerated which evolved defense case for the entire stemming from his conviction for sentence credibility of attempt impugn into an cocaine-dealing partnership in a his role *4 suggest and to government’s witnesses between 1980 and with Robert Johnson govern- gain to favor with they wished appellant he first met 1987. Cormier said down. by dragging appellant Maine, ment in poker game Freeport, in at a appellant initially sold cocaine to and was Rich- next witness government’s in did not exceed six ounces amounts that Hudson, appellant’s nephew, who ard L. also testi- purchase. in one Cormier that, agreement plea a pursuant to testified complained that appellant fied that by the second period covered during the charged for cocaine Cormi- price he was engaged in cocaine he had conspiracy, high. Appellant was too er and Johnson on a appellant, albeit transactions with buy at a he cocaine lower said that could He his father. scale than more modest result, a in 1986 Cor- price As elsewhere. April, at a early in that also testified began purchase to co- mier and Johnson James, father, meeting arranged by his appellant for resale. Cormier caine from selling to stop cocaine him to appellant told brought one kilo- appellant that testified Ray “Ray” because named an individual to condominium gram of cocaine Johnson’s appellant owed big cocaine user who was a $35,000 Maine, Westbrook, charging to in $3,200 earlier cocaine transactions. from considerably $38,000 price per a kilogram, that, he L. Hudson testified when Richard $50,000 per kilogram price than the less paid for the Ray that had appellant told charged by and Johnson’s being Cormier cocaine, interested know appellant explained suppliers. Cormier that other price. the sale cocaine into repackaged the and Johnson L. testimony of Richard Following the portions and dis- quarter-ounce and ounce stand government called to the Mann, Hunnewell, David it to Dale tributed (another brother, neph- Hudson his Michael and others. elicited appellant), and ew of during the testified Cormier also plea agreement. pursuant to a from him 1986-1987, he spring winter during the testified that Michael Hudson the Howard John- appellant met Johnson twenty he made between summer of 1988 in an effort motel in Westbrook son’s one- of from three and thirty purchases At kilogram of cocaine. least buy another appel- grams of cocaine from half to seven by mo- meeting was corroborated such one co- lant, picking up the each occasion on by appellant signed registration records tel Street house on Oxford caine at appellant’s Finally, Cormier testified May on 1987. Lewiston, Maine. in 1987, he and Johnson September, in in ap- case kilogram off its of cocaine from government rounded a purchased Lewiston, Maine, $35,000. the testimo- for in pellant chief on second count drug Godin, appel- the two dealers said that ny Perry the brother Cormier Virgil Buzzell to one “gave” this cocaine girlfriend, who testified under lant’s turn, who, “gave” it a David Smith. immunity. Godin in grant of court-ordered witness- all other that, September, in As with beginning exam- vigorously cross es, cocaine defense weekly purchases of he made dealing, drug concerning his ined Cormier usually in the amount appellant, from govern- cooperating motives time, amount once gram at a affinity possible in the darkest hue. Defense coun- ment, apparent and his prepared present appellant’s af- playing. sel now gambling and card sins of lesser firmative case. Cormier, Robert Johnson testified Like point, the Assistant United States At agreement incar- plea to a while Attorney approach asked to the side bar Johnson on a federal sentence. cerated require and asked the Court to defense testimony in its es- Cormier’s corroborated proffer make a and to hear the counsel to particulars, pointing out sential testimony of the two defense witnesses purchase for the first of co- arrangements presence jury as it was outside appellant kilogram amounts caine view, “from the rank hear- meeting among appel- place at a had taken say.” represented that Defense counsel Cormier, lant, himself at the Howard witnesses, Greg- Paul Whitten and the two A at Exit 8 Portland. Johnson’s motel Benson, ory were inmates the South September record confirmed motel Henry Windham Correctional Center where registered appellant had and James Hudson had held. Cormier been objection, that motel. Over John- room at Defense counsel said that one of the two had informed that Cormier son testified testify that he heard Cor- witnesses would Septem- him the arrest of David Smith mier tell James Hudson that “had ber, 1987, possessed still some while Smith *5 nothing drugs” to do with but that he was through to him of the cocaine transferred angry gambling over a debt. with Buzzell. next in this side confer- What follows bar government’s final witness was Vir- understanding appel- is vital to an ence of Buzzell, plea a who also testified under gil claim here. set forth the rele- lant’s We agreement. Buzzell testified that he had colloquy vant verbatim: begun serve as a middleman for Cormier you say, THE do COURT: What that he had in mid-1987 and and Johnson hearsay? Smith, by approached David who been Yes. AUSA: to Cormier. Since seeking an introduction you THE COURT: How do overcome re- Smith and at first Cormier distrusted hearsay? the him, as a to meet with Buzzell served fused money I cocaine and between Cor- DEFENSE COUNSEL: think it’s a courier of grew As trust between situation— mier and Smith. Buzzell, Smith,
Cormier,
Buzzell intro-
I
CO-DEFENSE COUNSEL:
think it’s
While Buzzell
duced Smith
Cormier.
of bias and mo-
evidence
cocaine source nor
knew neither Cormier’s
previously
tive for a witness who has
a
appellant, he confirmed that
delivered
bias,
any
testified that he doesn’t have
at a time
kilogram of cocaine to Smith
telling the truth.
that he is
testimony of
consistent with the
Cormier
you get
How do
over
THE COURT:
Johnson,
watched
and that he
Smith
hearsay?
bag
divide and
it.
Prior in-
CO-DEFENSE COUNSEL:
by
government concluded its case
consistent statement.
stipulation that on
reading in evidence a
How does it come
THE COURT:
25, 1987, government agents
September
hearsay?
over
three-quarters of a
approximately
seized
discussing
then fell to
whether
Counsel
(742.8
con-
kilogram
grams) of a substance
prior
a
inconsistent statement
proof of
of David
taining cocaine
the residence
by means of this extrinsic
could be made
Maine,
Portland,
pursuant to the
Smith in
brought up
by
short
evidence but were
execution of a
warrant.
search
court,
said, “Show me a rule that
which
ably
testimony
Throughout,
says
defense counsel had
kind of
is admissi-
that that
ble,
hearsay
exception
an
sought
impugn
the motives of
it’s not as
or as
testifying
hearsay
juncture,
in a
rule?” At this
government
witnesses
sought
Attorney
inculpated appellant and had Assistant United States
manner which
way
in such a
as to
reorient the discussion
painted
each of the
witnesses
generally.
inconsistency
testimony
The court sus-
issue of
confront
hearsay
government’s
objection.
the trial testimo-
tained the
prior statement
presenting
it:
would have none of
The defense then rested without
the court
ny, but
any
Appellant’s
affirmative evidence.
con-
Honor,
Your
AUSA:
viction
in due course.
followed
hearsay
much that it is
is not so
position
could
inconsistent statement
defendant—
in if the
come
I.
taking
step at a
I’m
THE COURT:
Appellant first contends that the district
that hurdle I have to
get
If I
over
time.
excluding
erred in
court
issue.
decide that
witnesses,
the defense
Paul Whitten and
conference,
point in the side bar
At this
Benson,
Gregory
contending that this as-
counsel,
seeking to deal
apparently
defense
pect
appeal
is controlled
our
concerns,
con-
steered the
judge’s
Barrett,
decision United
exceptions to the rule
two
versation off to
(1st Cir.1976).
war-
might plausibly
against hearsay which
the conversation.
rant
the admission
issue,
addressing
Before
803(3) and
Evidence
Rules of
Federal
pause
government’s argu
to consider
803(24)
thoroughly discussed and the
were
sidesteps
ment which
with the assertion
examina-
on to hold voir dire
court went
that even
the district court failed to
and Benson.
tion of both Whitten
Barrett,
teaching
such
follow the
beyond
had told
Cormier
error
is harmless
a reasonable
Whitten
California,
that he “didn’t believe
Chapman
James Hudson
doubt. See
anything
18, 22-23,
had
to do with
827, 17
Dick Hudson
L.Ed.2d
upset with
drugs”
(1967);
but that Cormier was
see also United States v.
*6
“Dick
him a
(1st Cir.),
had beat
Southard,
because
$5,000.” Greg-
gin and it cost him
game
States,
Ferris v.
denied sub nom.
testified that he had over-
ory
Benson then
823, 104 S.Ct.
955 confronted the statement recalled witness be assuming that he be could stand, rather, only economy while on the witness judicial government or that by the the witness be available be recalled justified have that would and convenience Barrett, explain during the statement F.2d at in order to ruling. 539 trial court’s Barrett, course of the trial. 539 F.2d 254-56. government properly 254-56. The notes being firmly the Circuit The law of Fifth, Ninth, Tenth Circuits Barrett, proceed to ana established we upheld the to admit refusal Have proof in the court be lyze happened here what through prior extrinsic incon evidence the force of the Barrett Recognizing low. statements the witness has sistent unless that case and the similarities between rule opportunity deny afforded the first been this, advances three explain those statements. reversal attempt in an to avoid arguments Greer, v. 806 F.2d 559 United States First, government ar II. as to Count (5th Cir.1986); Cutler, v. United States expressed desire gues James Hudson’s (9th Cir.1982); F.2d 1249 United he de appellant “got what to see that Bonnett, States his trial fully consistent with served” (10th Cir.1989). Eighth Circuit has and, such, is inadmissible. as suit, at least circumstances in followed term of agree. The of the cannot use We logistical diffi which there are considerable anger that expressed and the opprobrium arranging recall of inmate culties Hud had not taken care James appellant through sought impeached witnesses be stamp the statement as evi family son’s prior evidence of. inconsistent extrinsic Moreover, hostility. of bias dence Lynch, statements. direct examina Hudson’s tenor of James (8th Cir.1986), cert. testifying free had been that was tion 1907, 95 L.Ed.2d brother, appellant, against his any bias decline the invitation. As We lie to give tends to the statement suming that James Hud deciding without event, as the Bar inference. In expression against of bias son’s observed, jury ... is the “the rett court inconsistent constituted credibility of the principal judge of testimony, reaf respect to his trial given to weight to and the be witnesses analysis as set forth our earlier firm Barrett, testimony.” otherwise admissible taken is approach there Barrett. arguably at 254. Here the motive requirements of wholly with the consistent against appel Hudson’s bias behind 613(b), by the explained as in that deter weigh significantly could lant Advisory “the tra Committee: *8 227, 232-33, 109 Kentucky, 488 U.S. den v. opportuni an providing the simply witness (1988); 480, 483, 513 102 L.Ed.2d S.Ct. party an explain opposite and the ty to 753, Osorio, 929 F.2d 759- v. States United statement, with to examine the opportunity (1st Cir.1991). 60 any particular time or specification of no Next, government contends that supported by great sequence,” and is admitting evi for extrinsic foundation McCormick, authority. Evi weight of See Hud through Benson James about dence (3d 1984); at 80 ed. 3 Weinstein 37 dence § properly was never prior son’s at 613-33 Berger, Weinstein’s Evidence & 613(b), since to Fed.R.Evid. laid (1991). op an was never “afforded Hudson James no Here,' Barrett, we have as in explain deny earlier portunity to [his Hudson, a assuming for James government urges us to basis statement].” re for prisoner, was not available ruling in Barrett which federal our reconsider have or that would require that the call explained foundation the state- prejudiced 613(b) by admission require do been not ments 956 — 1422, (5th Cir.1991), denied, opportunity adequate 1434
ment without
cert.
U.S. -,
2944,
though
examination. Even
112
rebuttal and
S.Ct.
presented Cir.) objection wrong made (specific on made a Here, counsel defense Barrett. party grounds precludes overruled a expected evidence proffer of general other, raising specific objection a on from be suggesting it was any way without tenable, appeal), grounds on cert. de purpose. The a limited ing offered for — -, nied, nature of hearsay properly court noted ar L.Ed.2d 326 evidence, respond counsel defense since, misplaced keeping with gument is were properly that the statements quite ed Rules of general thrust of Federal and motive “of bias impeaching evidence admissibility, spe “the favor of Evidence in previously has a witness who requirement in ground objection” cific then The court have bias.” he doesn’t 103(a)(1) applies to evidence Fed.R.Evid. asked, get over you do repeatedly “How Here, in challenge. over that is admitted simple there was a hearsay?” To this contrast, applicable rule Fed.R.Evid. being were not the statements answer: 103(a)(2) only “the sub requires which of the matter assert for the truth offered stance of the evidence made’known [be] Rather, being offered sim they ed. were by apparent offer or the court [be] they inconsistent ply were because questions were which the context within both Cormier’s3 Hudson’s testi and James Under this rule: asked.” being they were not mony at trial. As appeal on may not claim error party A the matter assert offered truth unless the in the exclusion evidence hearsay any respect. ed, they not were only told not what 801(c). ample opportu district court Despite also for what prove party intended repeated court’s nity to address district See, Evi- e.g., Weinstein matter, purpose. expressions of concern about ed.) (1985 103(03), dence, at 103-33 began advance § counsel instead defense counsel (“In making proof an offer of that, accepted, would have arguments every pur- careful to articulate gener must be receipt of the evidence permitted thé admissible; the evidence is pose for which out-of-court statement that ally. Cormier’s trial level identified at the purpose not anything had thought appellant never for reversal provide basis will argued then have been drugs could do Thus, is excluded if evidence Tabares, appeal”). jury. affirmatively to the only for its it is inadmissible Indeed, gave because when the court at 409. proponent purpose, argue their evi articulated final chance to counsel a ruling on challenge the cannot ap- evidence dentiary positions, defense presented the issue was which having mánner in recognize ruled that it was 3. We arguments ad- think the out-of-court and we Cormier’s district court harmless error to exclude statement, respect precise is with out- to either concern counsel with our vanced defense ana- James Hudson. We of-court statement of *10 to both. pertain statement however, together, that is the lyze since two 958 conclude that we are con ground that the evidence we nevertheless
appeal on rightly judge admitted to reverse the trial on this have been strained “could McCormick, 103(a)(2) Evi- purpose.” Rule of Evidence point. Federal another (1972). 51, 112 procedural imposes upon dence counsel no such § described, just being it requirements as 10, Inc., Myers, & v. Bobbins Tate of the evi sufficient that “the substance Cir.1986). Federal Rule of Evidence (1st 12 by to the court dence was made known is, course, equally applicable to both 103 of apparent from the context.” offer or was we consider the eases and civil and criminal Moreover, 103(a)(2). United Fed.R.Evid. equal pertinence to be of decision Tate necessarily holds that v. Barrett States here. even the most succinct reference hesitancy finding that little We have impact proffered of the evidence potential in- defense counsel for which purpose credibility of a witness is sufficient on the and James introduce the Cormier tended to inquire into trigger duty admissi fully articulated statements was Hudson 613(b). We bility under Fed.R.Evid. would It is true in re- district court. overruling if we were to erect be Barrett presiding sponse to the concerns case a standard of articulation of this a attempted to formulate judge, counsel purpose goes beyond that mere mention concerning ap- hapless argument rather nature of the evidence and impeaching exceptions to the rule plicability of certain proffer in order for the district court to hearsay. it is clear its against Nevertheless cannot do. place counsel neither aban- it in context. This we to us that defense Anagnos, nor waived their insistence that v. 853 doned United States See 1, (1st 1988); to im- proffered- evidence was admissible F.2d 3 United States v. it ground (1st Cir.), on the that peach Martorano, James Hudson against appellant. his bias demonstrated 449 U.S. 101 S.Ct. True, ground particular no mention of (1980). L.Ed.2d 216 gave the district court made when was argue point, their last chance to counsel II. before, but, coun- just minutes co-defense a second attack Appellant mounts had reiterated sel I, arguing upon his conviction on Count admissibility arguing ground for while bias it was error to admit Johnson’s testi prior of Cormier’s state- for the admission mony had told Johnson that that Cormier circumstances, fair read- In these ment. while in David Smith had been arrested transcript compels the con- of the trial ing possession cocaine that had been distrib purpose that the for the admission clusion through appel the chain from uted down was Hudson’s statement of James argues that this Appellant lant to Smith. adequately articulated. from Cormier to Johnson was question de- There remains the whether necessary hearsay provided that it ought explained have both fense stipulation that Smith precondition hearsay inappli- why against the rule possession while in was in fact arrested circumstances, also that in such cable The district large quantity of cocaine. offering James Hudson’s state- they were found, to Fed.R.Evid. court purpose of im- solely ment for the limited 104(b), made the statement was course, given peachment. the tactical Of during co-conspirators appellant’s advantage accrues to counsel who are of, of, in furtherance the con course obtaining succeed in admission able to 801(d)(2)(E). spiracy. generally, there is little incentive evidence Petrozziello, out un- counsel to stake limits for defense (1st Cir.1977); see also United States Still, recognizing judicially required. less Cir.), (1st Ciampaglia, 628 F.2d rapid-fire nature which full well sub nom. v. United cert. denied complex presented are an these issues Bancroft 618, 66 States, 449 U.S. necessarily jury trial session and the active emi- finding was This by hindsight, L.Ed.2d perspective afforded different
959
however,
judgment.
separately,
I write
to
hardly
arrest
Smith’s
nently correct.
Barrett
why
express my thoughts as to
con
on-going
appellant’s
brought an end to
Jones,
overruling
how
and as to
Fed.R.Evid.
bears
v.
913
States
spiracy. See United
613(b)
operate.
meant
Cir.1990);
was
to
United
(11th
1552, 1563
F.2d
149,
(5th Cir.),
170
Goff, 847
F.2d
v.
States
Barrett
This court decided
soon after the
v. United
sub nom. Kuntze
denied
cert.
Rules of
took
Federal
Evidence
effect.
932,
324, 102
States,
109 S.Ct.
488 U.S.
time,
all)
(though
most
not
of the
Since
Likewise,
(1988).
very
it
341
L.Ed.2d
rationale,
rejected
circuits have
Barrett's
conspiratorial partner
quintessence
adoption
deciding instead that
Rule
inform anoth
conspirator
will
ship that
613(b)
the traditional
did not abolish
com
a third so that
the arrest of
er of
requirement
laying
law
a suitable
mon
guard that
may be on
conspirators
foundation
to
introduction
im
United
them. not befall
same fate
See,
United
peachment
evidence.
1393,
(7th
1404
Troop,
v.
F.2d
890
States
Devine, 934 F.2d
1325,
(5th
States v.
1344
plainly
Cir.1989).
court was
The district
—
denied,
Cir.1991), cert.
finding that the statement
correct
911,
349,
952,
—,—, —,112
116 L.Ed.2d
S.Ct.
“part of the infor
to Johnson
Cormier
Gong
v.
(1991);
288, 811,
120
117 L.Ed.2d
intended
conspirators
between
mation flow
Hirsch, 913 F.2d
1269,
(7th Cir.1990);
1274
perform his role.” United
each
help
to
Bonnett,
1450,
v.
877 F.2d
States
United
494, 499
Wyk, 840 F.2d
v.
Daal
States Van
v.
(10th Cir.1989);
United States
1462
Cir.1988).
(7th
765,
(8th Cir.1986),
Lynch, 800
F.2d
770
1907,
denied, 481 U.S.
1022,
cert.
107 S.Ct.
III.
v.
(1987);
United States
UNITED SCHULTZ, Defendant,
Brian K.
Appellant. 92-1152.
No. Appeals,
United States Court of
First Circuit. July
Submitted 1992. July
Decided 1992.
Rehearing Suggestion Rehearing Aug.
En Banc Denied 1992. notes Indeed, of witness mination. revelation the attention of insistence that ditional is of consti through cross examination bias to the statement directed witness be case. Ol dimension a criminal tutional favor examination relaxed cross