;

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT



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NO.



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UNITED STATES OF AMERICA,



Appellee,



v.



KEITH JAMES xxxxx,



Appellant.



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ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

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PETITION FOR REHEARING

AND SUGGESTION FOR REHEARING EN BANC

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CONCISE STATEMENT OF THE ISSUE AND ITS IMPORTANCE



This case presents an important question concerning thepropriety of a limitation on cross-examination of the government's key witness against appellant, the only witness who connected appellant to the cocaine base for which he was convicted. The district court denied a request by appellant to cross-examine Detective Ronnie Hairston about testimony he had given in a trial some six months before his testimony in this case. In the earlier trial, the district court that heard Detective Hairston testify had found him to be incredible. In the instant case, appellant asked to cross-examine Detective Hairston about his earlier testimony in order to cast doubt upon his assertion that a jacket containing approximately 47 grams of cocaine base was appellant's jacket. Appellant pointed out that the detective was the only government witness who could connect appellant to the jacket. The district court determined that in the earlier proceeding, Detective Hairston's testimony was the result of a mistake rather than any lack of truthfulness on his part and precluded the cross-examination. In affirming the district court's denial of the right to cross-examine an essential government witness about a matter affecting that witness' credibility, the panel overlooked the constitutional right of appellant to confront and cross-examine the witnesses against him. In fact, the panel's decision is based entirely upon the admissibility of the proffered cross-examination under Fed. R. Evid. 608(b) and does not address at all the constitutional arguments advanced by appellant. Thus, this case raises a question of exceptional importance not addressed by the panel.

STATEMENT OF THE CASE

On May 23, l99l, the grand jury for the District of Columbia returned a one-count indictment against appellant charging possession with intent to distribute in excess of 50 grams of crack cocaine, in violation of 2l U.S.C. 84l(a)(l) and 84l(b)(l)(A)(iii). On July ll, l99l, the grand jury returned a superseding indictment charging one count of possession with intent to distribute in excess of 5 grams of crack cocaine, in violation of 2l U.S.C. 84l(a)(l) and 84l (b)(l)(B)(iii). Trial commenced on August l3, l99l and on Augut 15, 1991, the jury convicted appellant on the superseding indictment.

The only prosecution witness as to the events leading up to defendant's arrest was Detective Ronnie Hairston. Detective Hairston testified that on May 2, l99l, at about 5:00 a.m., he was working with the Drug Interdiction Unit of the Metropolitan Police Department at the Greyhound Bus Station, questioning passengers who were aboard a Greyhound Bus that arrived from New York City destined for points south. The detective approached appellant, identified himself as a police officer and questioned appellant about a jacket on the adjacent seat. According to Hairston, appellant acknowledged that the jacket was his. Appellant was wearing a black Levi jean jacket at the time. Hairston searched the jacket which was lying on the seat. When he began to feel the lining of the jacket, the appellant told him that the jacket was not his. Inside the lining of the jacket, Hairston discovered a package wrapped in masking tape. The package contained small ziplock bags containing a rock-like substance. At the police station, the jacket was searched again. Two additional bags were found in the jacket during the second search. These packages contained 398 ziplock bags containing cocaine base. Together, the 398 bags totaled 47.62 grams.

No identification or other papers belonging to appellant were found in the jacket from which the packages were recovered. Moreover, the packages were never submitted for fingerprint analysis. The only time appellant was ever seen by the detective wearing the jacket in which the packages were found was when he was directed to put the jacket on so that the detective could photograph him in it. After the detective found the package in the jacket during the search conducted on the bus, appellant was arrested.

Appellant testified in his own behalf. He related that he was twenty-three years of age, that he grew up in Brooklyn, New York and that he lived in Brooklyn with his mother and two siblings. In April, l99l, he went to Richmond, Virginia to help his aunt move. He was returning to Richmond on May lst to continue helping her move. He intended on this second trip to try to find employment in Richmond, since he had recently been laid off from his job in the garment district in Manhattan. Appellant left New York by bus bound for Richmond, Virginia on May lst. The bus stopped in Baltimore, Maryland and then in Washington, D. C. The defendant was asleep when he was tapped on the shoulder by Detective Hairston. The officer asked him questions, which he answered. As the detective began to walk away, he noticed a jacket on the window seat in front of appellant, who was seated in an aisle seat. The detective asked appellant if the jacket was his and appellant replied that it was not. The detective asked if he could search the jacket, to which appellant replied that he could not give permission to search something that was not his. The detective searched the jacket, found a bag and removed it from the jacket. He nodded to another police officer who was on the bus and that officer took appellant into custody. Prior to being questioned by Detective Hairston, appellant had seen a man sitting in the aisle seat in front of him and adjacent to the seat where the jacket was found, but that man had gotten off the bus before it arrived in Washington, D.C. The last time appellant had noticed the man was when the bus had stopped in Baltimore. Since appellant was sleeping between Baltimore and Washington, D. C., he did not notice whether the man had gotten back on the bus in Baltimore. Appellant had no conversation with the man and did not know him or anyone else on the bus. Appellant was wearing a black jean jacket on the bus. He did not own or possess the jacket in which the drugs were found. Agatha xxxxx, appellant's mother, testified that in April, l99l, her son was en route to Virginia when he was arrested. He had been down to Virginia one time before, in the weeks just prior to his arrest. She explained that a cousin of hers, who lived in a suburb of Richmond, Virginia, had come to New York to leave some of her furniture. During that first trip, appellant had helped her bring her furniture to New York from Virginia. At the time of trial, the cousin was studying in Africa. Although Ms. xxxxx did not recognize the jacket from which the drugs were taken, she did recognize as her son's jacket the black denim jacket he was wearing at the time of his arrest.

As a preliminary matter, before the trial commenced, appellant requested permission to cross-examine Detective Hairston about his testimony in the unrelated case of United States v. Cornell Dyce, Criminal Number 90-466 (D.D.C. February l4, l99l). In the Dyce case, Hairston had testified that no fingerprints were recovered from an item of evidence taken from defendant Dyce when, in fact, prints not matching Dyce had been recovered from the item. The court took the request under advisement. At the conclusion of the detective's direct examination, appellant renewed his request to cross-examine him about testimony he had given. Appellant sought leave to question Hairston about his testimony in Dyce on the ground that it was relevant to his credibility as the prosecution's primary witness against appellant. Although the court initially ruled that the cross-examination would be permitted, following further argument, it excluded the inquiry, concluding that Detective Hairston had made an error and had not deliberately committed perjury and that the proposed examination was therefore not relevant under Fed. R. Evid. 608(b).

On cross-examination, Detective Hairston admitted that no fingerprints were taken from the packages removed from the jacket he claimed belonged to appellant. On redirect examination, he explained that the evidence was not submitted for fingerprint analysis because it is difficult to lift fingerprints from masking tape and plastic and because when a suspect admits ownership of property, he does not submit the property for fingerprint analysis. At that point, appellant renewed his request to cross-examine the detective about the Dyce case. Appellant proposed to demonstrate by cross-examination about the Dyce case that in the instant case the detective did not submit the items recovered from the jacket for fingerprint analysis because in the Dyce case such an analysis had revealed exculpatory evidence. The court again denied the request.

On appeal, appellant argued that the district court's limitation of the cross-examination of the primary witness against him violated his Sixth Amendment right to confront and cross-examine witnesses, (1) and was an abuse of discretion under Fed.R.Evid. 608(b). Following argument, the panel remanded for the district court to explain the basis for its conclusion that Detective Hairston had not deliberately committed perjury in the Dyce proceeding, but rather had simply been mistaken. The District Court issued a Determination on Remand wherein the court stated that it credited Detective Hairston's explanation that he forgot about a conversation he had with a fingerprint technician some 48 hours before his testimony in Dyce, even though the judge hearing the explanation had found it incredible, because Hairston had no motive to fabricate about his version of the events, one could plausibly forget a work-related conversation relayed late in the evening before retiring, and the detective had frankly admitted his mistake. Additionally, the court found that the Detective's courtroom demeanor, appearance and manner of testifying, as well as the court's familiarity with him from other cases, argued that he was mistaken and not deliberately untruthful.

The panel (2) then affirmed, finding that the district court did not abuse the discretion vested in it by Fed. R. Evid. 403 and 608(b)in refusing to permit the cross-examination. The panel did not address the constitutional violation, either in its opinion remanding for further findings or its final decision.

ARGUMENT

I. THE TRIAL COURT ERRED IN LIMITING THE SCOPE OF CROSS- EXAMINATION OF THE GOVERNMENT'S PRIMARY WITNESS AGAINST DEFENDANT.

Limitation of cross-examination in this case violated appellant's Sixth Amendment right to confront and cross-examine witnesses against him. The error was particularly egregious, in light of the fact that Detective Hairston was the only witness who connected appellant to the jacket in which the drugs were found. Although Hairston claimed that appellant admitted ownership of the jacket, appellant denied that the jacket or the drugs were in any way connected to him and testified that he had told Hairston that the jacket was not his. The detective's credibility was squarely pitted against the credibility of appellant. Appellant was entitled to give the jury the benefit of the cross-examination about the detective's earlier testimony, so that it could adequately evaluate his credibility in this case.

One significant factor in evaluating the credibility of a witness is that witness' possible bias. If the witness has a motive to testify falsely, that motive should be made known to the jury. When in redirect examination, Detective Hairston gave an explanation for his failure to submit the drugs for fingerprint analysis, appellant should have been permitted to recross-examine him about whether that explanation was true or whether he had failed to submit the drugs for fingerprint analysis because he knew, from his experience in the Dyce case, that a fingerprint analysis might yield exculpatory evidence.

A limitation on cross-examination which prevents a defendant from placing before a jury facts from which the lack of credibility of a prosecution witness might be inferred consitutes a denial of the right of confrontation guaranteed by the Sixth Amendment. Davis v. Alaska, 4l5 U.S. 308 (l974). In Davis v. Alaska, the Court permitted cross-examination of a prosecution witness about being under the supervision of juvenile court as a delinquent, even though the State of Alaska had a policy of confidentiality concerning juvenile offenders. The Court struck the balance in favor of the defendant's right to confront the witness against him because cross-examination is the best vehicle by which to "expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness." 4l5 U.S. at 3l8.

The jurors in the instant case should have been permitted to learn that Detective Hairston had given false testimony in a similar drug case in order to judge his reliability. It has long been recognized that prior false testimony is a powerful indicator of the credibility and reliability of a witness. The Supreme Court, in Mesarosh v. United States, 352 U.S. l (l956), exercised its supervisory jurisdiction to order a new trial where the government conceded that one of the seven witnesses against the defendant had given testimony of questionable credibility in other proceedings. Although the government contended that the testimony of the witness at Mesarosh's trial was believable, in other proceedings occurring while the case was pending review in the Supreme Court, the witness had given testimony that was either contradicted by reliable evidence or was inherently incredible and wholly uncorroborated. Given the suspicions about the witness' testimony in these other proceedings, the Court held that that witness' testimony at Mesarosh's trial was tainted and that the conviction could not stand. The Court, citing its decision from the previous term in Communist Party v. Subversive Activities Control Board, 35l U.S. ll5 (l956), found it inconsequential that there was other evidence apart from the testimony of the witness which would support the conviction. The test was whether the testimony was so material that it could not "be determined conclusively by any court that the testimony was insignificant in the general case against the defendant." Mesarosh v. United States, supra, 352 U.S. at l0-ll. The Court specifically rejected the government's suggestion that the case be remanded to the trial court so that a determination of the reliability of the witness' trial testimony could be made. The Court recognized that "[o]nly the jury can determine what it would do on a different body of evidence, and the jury can no longer act in this case." Id. at l2.

The trial court's characterization of the proposed cross-examination of Hairston about his false testimony in a prior case as "collateral" ignores the centrality of Hairston's testimony to the government's case against appellant. Where the testimony of the witness is crucial, an inquiry aimed at the truthfulness of his testimony cannot be deemed collateral. United States v. Garrett, 542 F.2d 23 (7th Cir. l976). In that case, the court held that it was error to refuse to allow a defendant to cross-examine a police officer who was the primary goverment witness against him about the officer's suspension from duty for refusal to take a urine test to determine whether he had used drugs:

We believe that the trial judge was too restrictive in his limitation of cross-examination in the present case. The testimony of (the police officer) was crucial to the government's case. The jury was entitled to know that the witness who had accused Garrett of arranging the sale of heroin had been suspended because he was suspected of using hard drugs himself and had refused to submit to a urine test.

Id. at 26. The court interpreted Davis v. Alaska, supra, to require cross-examination where the answers might establish untruthfulness of a witness as crucial to proof of the guilt of the defendant as the police officer. Id. at 26.

In the instant case, the proffered cross-examination of Detective Hairston should have been permitted because he was a crucial prosecution witness and because the cross-examination was likely to undermine his credibility. Only the jury could determine the extent to which his testimony in this case should be credited given his testimony in the Dyce case. The trial court's ruling limiting the scope of cross-examination was based in part on its determination that the detective had made an error and had not deliberately committed perjury. However, the trial judge who heard the detective testify in the Dyce case, who was fully familiar with the facts surrounding the fingerprint analysis, and who had an opportunity to observe Hairston's demeanor both during his testimony at trial in that case and during his testimony at a subsequent proceeding inquiring into the reasons for his contradictory trial testimony, concluded that the detective had testified falsely.

The difference in characterizations of Detective Hairston's testimony by the trial court in this case and by Judge Flannery underscores the rationale for the Court's holding in United States v. Mesarosh, supra, 352 U.S. at l2, that only the jury could determine the significance of the prior testimony of the witness.

Had the jury in this case known that in a drug interdiction case some six months earlier, the detective had falsely testified about evidence which exculpated the appellant on trial in that case, it could have accurately assessed the weight to give to his testimony that the jacket containing the drugs was, in fact, appellant's jacket. Since the jury was not afxxxxxed the opportunity to weigh Hairston's testimony in light of his earlier false testimony in a similar case, appellant's fundamental Sixth Amendment rights were denied.

The error in foreclosing cross-examination to undermine Hairston's credibility was compounded when the trial court refused to permit recross-examination into the bias of the detective

when he offered on redirect examination a self-serving explanation for failure to submit the drugs for fingerprint analysis. Bias is always a proper subject for cross-examination. Davis v. Alaska, supra, 4l5 U.S. 308, 3l6. In Davis, the defendant was convicted of stealing a safe from an Anchorage bar and removing several thousand dollars from it. The main witness against him was a l7-year old who identified the defendant as the man he had seen near where the safe was recovered, wielding a crowbar. The youth made his identification after being questioned by police. At the time, he was on probation for two counts of house burglary. The trial court permitted defense counsel to question him about whether he feared that the police would connect him to the safe, since it was found near his home, and whether he had ever previously been interrogated by police. Id. at 3l2, 3l3. However, even in the face of the witness' denial that he had ever been interrogated before, a denial which the Court found suspect in light of his arrests, the trial court refused to permit counsel to inquire into the witness' status as a juvenile probationer. The Supreme Court reversed, holding that the restricted cross-examination which was permitted was insufficient to satisfy the Sixth Amendment right to confront and cross-examine adverse witnesses because counsel was limited to inquiring as to whether the witness was biased and was not allowed to put before the jury the facts that would allow the jury to draw inferences as to his reliability. Id. at 3l8.

A limited inquiry which does not permit the cross-examiner to elicit the basic facts from which a jury can infer bias is insufficient to satisfy the Sixth Amendment. In United States v. Gambler, 662 F.2d 834, 839 (D.C. Cir. l98l), the court emphasized that Davis compels sufficient cross-examination to make supporting facts known to the jury. However, in Gambler, the jury was given sufficient information about the pecuniary interest of the prosecution's chief witness against defendant so that the trial court's refusal to permit cross-examination into pending civil litigation between the witness and the defendant was harmless error.

At the time Gambler was decided, the Supreme Court had not yet determined whether restrictions on the right of cross-examination could be harmless error. Some years later, in Delaware v. Van Arsdall, 475 U.S. 673 (l986), the Court addressed that question. The Court found that denial of the Sixth Amendment right of confrontation is subject to harmless error analysis and identified a host of factors that should be considered in the determination of whether reversal was mandated: the importance of the witness' testimony to the government's case, whether the testimony was otherwise corroborated or contradicted, the extent of cross-examination otherwise permitted, and the overall strength of the government's case. Id. at 684. Taking those factors into account, no suggestion could be made in this case of harmless error in the curtailment of cross-examination on Detective Hairston's motive to testify in a self-serving manner about his failure to submit the drugs for fingerprint analysis.

Detective Hairston was asked on redirect examination why he did not submit the drugs recovered from the jacket lining for fingerprint analysis. He claimed that he did not think a fingerprint analysis was necessary since defendant initially admitted that the jacket was his and that in his experience prints were not easy to obtain from masking tape like that in which the drugs were wrapped. Counsel asked for re-cross examination to question the detective about the Dyce case and to ask him whether the real reason he failed to fingerprint the drugs in this case was that he knew that a fingerprint analysis might exonerate the defendant. However, the court denied the defense the right to explore the detective's motive for not having the drugs tested for fingerprints in this case. Because Detective Hairston was the sole witness against appellant on the crucial link between the appellant and the drugs in the jacket, the error in denying cross-examination into the motive for his testimony was not harmless.

This Circuit rather recently reversed a conviction where cross-examination of the government's chief witness as to her bias was curtailed, finding that the error was not harmless beyond a reasonable doubt. United States v. Anderson, 88l F.2d ll28, ll39 (D.C. Cir. l989). In that case, Anderson was convicted of narcotics and firearms violations based in large part upon the testimony of a witness who testified under a grant of immunity. The witness had previously been charged with second-degree murder but the charges were dismissed about a year before she testified at the trial. Counsel for Anderson sought leave to question the witness about her bias stemming from the grant of immunity, which prevented reindictment on the murder charge. The cross-examination was precluded. The court held that evidence that a prosecution witness is subject to reindictment by the prosecution is probative of potential bias and is therefore a proper subject of cross-examination under the Sixth Amendment. The court was persuaded that "[a] trial (court) may limit cross-examination only after there has been permitted, as a matter of right, a certain threshold level of cross-examination which satisfies the constitutional requirement." Id. at ll39 (citation omitted)(emphasis added). Cf. United States v. Robinson, 530 F.2d l076, l079 (D. C. Cir. l976)(defense alibi witness could be cross-examined about his participation in criminal conduct with the defendant since the defense attempt to portray relationship between alibi witness and defendant as merely a friendship gave the government the right to demonstrate that the witness was biased in favor of the defendant). No cross-examination of any kind was permitted about Detective Hairston's prior testimony, even though he was the only substantive witness against the appellant. The jury was never apprised of any of the other facts from which they could infer his unreliability as a witness. The government's case, without Detective Hairston, was insufficient to withstand a motion for judgment of acquittal. Therefore, the error in foreclosing this line of inquiry into the detective's lack of credibility and his possible bias deprived appellant of a fair trial.

CONCLUSION

Rehearing and rehearing en banc is appropriate because the panel failed to address the constitutional rights at issue in the denial of the right to cross-examine Detective Hairston.

Respectfully submitted,

A.J. KRAMER

FEDERAL PUBLIC DEFENDER







__________________________

Reita Pendry

Assistant Federal Defender

625 Indiana Avenue, N.W. #330

Washington, D. C. 20004

(202)208-7500











CERTIFICATE OF SERVICE



I HEREBY CERTIFY that one copy of the foregoing Petition for Rehearing and Suggestion for Rehearing En Banc was on this 29th day of April, 1994, served by first-class, postage prepaid mail, upon John R. Fisher, Chief, Appellate Section, United States Attorney for the District of Columbia, Room 10-435, 555 Fourth Street, N.W., Washington, D. C. 20001.





____________________________

Reita Pendry

1. The government contended on appeal that appellant had not preserved the constitutional argument because counsel never specifically stated that she was relying on the Sixth Amendment when she sought leave to cross-examine the Detective about his prior testimony. However, it was clear from counsel's request to cross-examine the Detective and the argument that followed that appellant was relying on his right to confront and cross-examine witnesses against him when he made the request to the court.

2. By the time of the panel's consideration of the Determination on Remand, Circuit Judge, now Justice, Ruth B. Ginsburg, an original panel member, did not participate in the decision.