ORAL ARGUMENT NOT YET SCHEDULED




UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT


                                                             


NO. 94-3007


                                                                 



       UNITED STATES OF AMERICA, Plaintiff-Appellee,


v.


       EARL J. xxxxxxx, Defendant-Appellant.




                                                        


APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA


                                                        



REPLY BRIEF FOR APPELLANT



                                                        



A. J. KRAMER

FEDERAL PUBLIC DEFENDER



PENNY MARSHALL

Assistant Federal Public Defender

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500




District Court

Criminal No. 93-0325




TABLE OF CONTENTS


 

TABLE OF AUTHORITIESii

 

SUMMARY OF ARGUMENT 1

 

ARGUMENT 3

 

I.THE DISTRICT COURT ABUSED ITS DISCRETION BY LIMITING DEFENSE COUNSEL'S CROSS-EXAMINATION OF DETECTIVE HAIRSTON. 3

 

A. Hairston's Testimony in Dyce Was a Specific Instance of Conduct Subject To Cross-Examination Under Rule 608(b) 3

 

B. The Use of the Dyce Transcript to Refresh Recollection Was Not Extrinsic Evidence 4

 

C. The Error Was Prejudicial and Was Not Harmless 6

 

CONCLUSION 9

 

CERTIFICATE AS TO LENGTH 11

 

CERTIFICATE OF SERVICE 11


























TABLE OF AUTHORITIES


CASES



Carter v. Hewitt,

617 F.2d 961 (3d Cir. 1980) 6


Chapman v. California,

386 U.S. 18 (1967)7, 9


Davis v. Alaska,

415 U.S. 308 (1974)7


Delaware v. Van Arsdall,

475 U.S. 673 (1986)8, 9


Schultz v. Thomas,

832 F.2d 108 (7th Cir. 1987)5, 7


United States v. Chevalier,

1 F.3d 581 (7th Cir. 1993)4


United States v. Cruz,

894 F.2d 41 (2nd Cir.),

cert. denied, 498 U.S. 837 (1990)5, 6


United States v. Dyce,

Crim. No. 90-466 (D.D.C. 1991)passim


United States v. Dinitz,

538 F.2d 1214 (5th Cir. 1976),

cert. denied, 429 U.S. 1104 (1977)5, 6


United States v. Leake,

642 F.2d 715 (4th Cir. 1981)4


United States v. Lopez,

944 F.2d 33 (1st Cir. 1991)3


United States v. Ricks,

475 F.2d 1326 (D.C. Cir. 1973)8


United States v. Stofsky,

527 F.2d 237 (2nd Cir. 1975),

cert. denied, 429 U.S. 819 (1976)8






UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT


                                                             


NO. 94-3007


                                                                 


       UNITED STATES OF AMERICA, Plaintiff-Appellee,


v.


       EARL J. xxxxxxx, Defendant-Appellant.




       APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA




REPLY BRIEF FOR APPELLANT



SUMMARY OF ARGUMENT

In our opening brief, we showed that the district court abused its discretion when it cut off the cross-examination of the government's key witness, Detective Hairston. Appellant argued that Fed. R. Evid. 608(b) permitted defense counsel to attack Hairston's credibility by questioning him about testimony he gave in a previous trial, United States v. Dyce, Crim. No. 90-466 (D.D.C. 1991), a case in which the trial judge determined that Hairston gave incredible testimony. Specifically, appellant asserted that defense counsel was entitled to show Hairston sections of the Dyce transcript in order to refresh his recollection of his testimony. Appellant maintained that Hairston's response to questions about his testimony in Dyce was probative of his character for truthfulness or untruthfulness under 608(b)(1). Additionally, appellant argued that referring to a document, such as a trial transcript, to refresh recollection for purposes of attacking the witness's credibility did not constitute admission of extrinsic evidence and therefore was not prohibited under 608(b).

The government contends that the trial court's restriction of appellant's cross-examination of Hairston was a proper discretionary decision because Hairston's testimony in Dyce was irrelevant and tangential to the case at hand. The government likewise asserts that use of the transcript to refresh Hairston's recollection would be no more than an effort to "smuggle[]" in extrinsic evidence to attack the witness's credibility, something clearly proscribed under 608(b). Finally, the government contends that even if the trial court abused its discretion, the error was harmless because appellant suffered no prejudice. Appellant argues that because Hairston's credibility was essential and because defense counsel was prevented from adequately examining an issue directly related to Hairston's character for truthfulness, the district court's abuse of discretion was not harmless.

 

 


ARGUMENT

I.THE DISTRICT COURT ABUSED ITS DISCRETION BY LIMITING DEFENSE COUNSEL'S CROSS-EXAMINATION OF DETECTIVE HAIRSTON.

A. Hairston's Testimony in Dyce Was a Specific Instance of Conduct Subject To Cross-Examination Under Rule 608(b)

The government contends, in the first instance, that the trial court's restriction of appellant's cross-examination of Detective Hairston did not represent an abuse of discretion because the inquiry would have resulted in delving into remote and tangential matters. (Govt. Br. 12). Hairston's testimony in Dyce, however, was material to the issue of his credibility, an issue that was far from remote or tangential. Thus, Hairston's answers about his testimony in Dyce met the necessary precondition to admissibility under Rule 608 and was probative of his character for truthfulness or untruthfulness. (See App. Br. 13-14). After Hairston answered counsel's inquiry by saying that he did not remember and would need to see the transcript, defense counsel sought merely to refresh Hairston's recollection so that she could then question him about his inconsistent testimony in Dyce.

Effective cross-examination demanded that defense counsel, under Rule 608(b)(1), be allowed to go into particular instances of conduct that were probative of Hairston's truthfulness. While the district court was not bound by any credibility finding made by the trial judge in Dyce, see United States v. Lopez, 944 F.2d 33, 38 (1st Cir. 1991), the fact that Judge Flannery determined in Dyce that Hairston's testimony was unbelievable, is indicative that his testimony in that case was an event which could properly be probed under 608(b). It is also clear that the probative value of Hairston's answers concerning that testimony outweighed the danger of unfair prejudice to the government under Fed. R. Evid. 403.

B. The Use of the Dyce Transcript to Refresh Recollection Was Not Extrinsic Evidence

    Next, the government argues that district court could have disallowed "any inquiry into Detective Hairston's testimony in Dyce" because it was "extrinsic evidence of a third party's opinion." (Govt. Br. 13) (emphasis in original). Therefore, according to the government, since the court could properly have precluded the inquiry altogether, it properly could prohibit counsel from refreshing the witness's failed recollection during the inquiry. (Govt. Br. 14). The government is simply wrong. Rule 608 permits questioning the witness about specific acts of conduct, but prohibits proving the specific acts by introducing extrinsic evidence. See id.; United States v. Chevalier, 1 F.3d 581, 584 n.2 (7th Cir. 1993). Thus, the inquiry into Hairston's specific conduct in Dyce bore directly on his credibility; extrinsic proof of his conduct -- such as testimony by the judge who found Hairston's testimony incredible, or the transcript of the judge's finding -- was not admissible. Of course, counsel never sought to admit the transcript, but merely to refresh recollection, as the witness requested, so that she could question him about his inconsistent testimony. See Chevalier, 1 F.3d at 584 n.2; United States v. Leake, 642 F.2d 715, 719 n.2. (4th Cir. 1981).

The cases relied on by the government to support its proposition that cross-examination about Hairston's untruthful testimony in a previous case could properly have been excluded, United States v. Cruz, 894 F.2d 41, 43 (2nd Cir.), cert. denied, 498 U.S. 837 (1990), Schultz v. Thomas, 832 F.2d 108 (7th Cir. 1987), and United States v. Dinitz, 538 F.2d 1214 (5th Cir. 1976), cert. denied, 429 U.S. 1104 (1977), are inapposite. In Schultz, a civil case, the plaintiff brought suit against two police officers for violation of his civil rights based on the officers' wrongful arrest of plaintiff and their abusive conduct toward him. Id. at 109. Prior to trial on the civil rights action, plaintiff had stood trial in the criminal matter predicated on the officers' arrest of him. Plaintiff was acquitted in the criminal matter, and the state court judge in that case made findings that the two officers were "not credible," that they had assaulted plaintiff, and that they "acted to confront, to depreciate, ridicule and harass . . . ." Id. at 110. At the trial of the civil rights action, rather than merely examine and cross-examine the defendants' eyewitnesses about the officers' conduct, plaintiff introduced the testimony of the state court judge who had presided over the criminal trial that he had found the two officers to have been incredible and assaultive. The Seventh Circuit held that the judge-witness's testimony "unfairly prejudice[d] the defendants by denying them the right to have a jury decide the facts which formed the claims against them." Id. at 110 (citation omitted). Because the judge-witness usurped the jury's role as fact-finder by testifying to the ultimate question, the court reversed the judgment. Obviously, the instant case is entirely distinguishable. Appellant did not seek to introduce Judge Flannery's testimony that Hairston was not credible, nor did appellant seek to introduce testimony that a finding on the facts of this case had been made against Hairston.

Similarly, in Cruz, the defendant sought to introduce into evidence a transcript of another judge's finding that the informant's testimony about a conversation with the defendant was not credible. Id. at 42. The Court of Appeals affirmed the district court's ruling excluding the transcript. Likewise, in Dinitz, the defense sought to impeach a government witness with his prior inconsistent testimony at an unrelated trial. Dinitz, 538 F.2d at 1224; see also Carter v. Hewitt, 617 F.2d 961, 970 (3d Cir. 1980 (explicating Dinitz). In contrast, appellant sought to use the Dyce transcript simply to refresh the witness's recollection, a permissible use which is in no way proscribed by 608(b). (See App. Br. 11-12).

 C. The Error Was Prejudicial and Was Not Harmless

The government argues that even if the district court erroneously precluded appellant from refreshing Hairston's recollection with the Dyce transcript, such error was harmless because appellant suffered no prejudice. (Govt. Br. 15-18). The government argues that because the district court was acting as both the judge and trier of fact, the judge did not abuse his discretion because, as the trier of fact, he determined that Hairston's testimony in the Dyce transcript did not necessarily impeach Hairston's credibility. (Govt. Br. 15-16). The government further argues that because the judge, as the trier of fact, read the proffered testimony, the cross-examination of Hairston of his testimony in Dyce "would not have put any new information before the trier of fact, nor would it have made the Dyce testimony any more relevant." (Govt. Br. 16). This response, however, belies the issue. While the government speculates that, if questioned, Hairston "presumably would have reiterated the same explanation for his mistake," the issue is how Hairston would have responded to the cross-examination. See Davis v. Alaska, 415 U.S. 308, 316 (1974) ("cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested"). It was necessary for the judge, as the trier of fact, to listen to Hairston's responses about his testimony in Dyce, rather than to make a credibility determination by merely reading the transcript. Since there was no jury, there was no concern of a judge usurping the jury's duty of assessing credibility. See Schultz, 832 F.2d at 110.

The district court's decision to restrict defense counsel's cross-examination is as the government points out, subject to a harmless-error analysis. Chapman v. California, 386 U.S. 18, 24 (1967). Factors to be considered are:

[T]he importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.

 

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). Hairston was the lone and principal witness for the government; indeed, he was the only witness. As the Advisory Committee Note accompanying Rule 608(b) states, "specific instances [of conduct] may be inquired into on cross-examination of the principal witness" concerning his character for truthfulness. Such a witness's credibility can be "every bit as important as the factual elements of the crime itself." United States v. Stofsky, 527 F.2d 237, 246 (2nd Cir. 1975) (citations omitted), cert. denied, 429 U.S. 819 (1976). There was evidence that Hairston committed a falsehood in Dyce. We cannot now predict how Hairston would have responded had counsel been able to cross-examine him about his inconsistent testimony in Dyce, and it was necessary for the district court to hear Hairston's answers in order to make a fully informed credibility finding.

The government cites to United States v. Ricks, 475 F.2d 1326, 1328 (D.C. Cir. 1973), for the proposition that since the proffered Dyce transcript was reviewed by court, appellant suffered no prejudice because further cross-examination would have been cumulative. (Govt. Br. 17-18). The issue in Ricks, however, involved the preclusion of testimony about events that had already been testified to by other witnesses. Id. at 1328. Here, however, none of Hairston's testimony was corroborated and no other witness testified to contradict him. Especially because the prosecution's case banked on Hairston's testimony, cutting off cross-examination on potentially damaging material made the error that much more egregious. See Van Arsdall, 475 U.S. at 684. The district court's foreclosure of this cross-examination clearly was not harmless beyond a reasonable doubt. See Chapman, 386 U.S. at 24. CONCLUSION

          For the foregoing reasons, this Court should remand this case back to the district court for a new evidentiary hearing on the motion to suppress.


Respectfully submitted,


A.J. KRAMER

FEDERAL PUBLIC DEFENDER




                                   

Penny Marshall

Assistant Federal Public Defender

625 Indiana Avenue, N.W.

Suite 550

Washington, D.C. 20004

(202) 208-7500



Also on the Reply Brief:




                                    Richard Eisenberg

D.C. Bar No. 435053



CERTIFICATE AS TO LENGTH


I hereby certify, in accordance with Rule 28(d)(1) of the General Rules of this court that this Reply Brief contains no more than 6,250 words.




                                     Penny Marshall





CERTIFICATE OF SERVICE


I hereby certify that two copies of the Appellant's Reply Brief have been served by hand-delivery to John R. Fisher, Esquire, Appellate Division, United States Attorney's Office, 555 4th Street, N.W., Washington, D.C. 20001, on the day of July, 1994.




                              

Penny Marshall