United States v. Peter Blake, AKA David Clark and Winston Wilson

GOLDBERG, Circuit Judge,

dissenting:

Relying on a 2-1 decision by the Eleventh Circuit and a 2-1 decision by the Ninth Circuit which was subsequently withdrawn in relevant part, the majority holds that the government properly impeached the defendant’s credibility with rebuttal evidence of his alleged participation in an unrelated, uncharged drug transaction. Because I am persuaded by the reasoning of the dissenting opinions in those two cases, and believe that other precedent prohibits the admission of extrinsic evidence on a collateral matter, I cannot join in Part II-B-1 of the majority opinion.

I.

I subscribe to the view that rule 608(b) means what it says: that “[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. Fed.R.Evid. 608(b) (emphasis added). The language of the rule is quite plain; extrinsic evidence is inadmissible when offered to impeach or bolster a witness’ credibility.

The majority correctly observes that we have held that “Rule 608(b) should not stand as a bar to the admission of evidence introduced to contradict, and which the jury might find disproves, a witness’s testimony as to a material issue of the case.’’ Majority op. at 338 (quoting United States v. Opager, 589 F.2d 799, 803 (5th Cir.1979) (emphasis added). Under Opager's “specific contradiction” rule, a contradiction as to a material issue allows for the admission of extrinsic evidence, not for the purpose of impeaching the witness’ testimony (i.e. undermining his credibility), but for the purpose of proving the truth of the contradicted, material fact. United States v. DiMatteo, 716 F.2d 1361, 1366 (11th Cir.1983) (citing Opager), vacated on other grounds, 469 U.S. 1101, 105 S.Ct. 769, 83 L.Ed.2d 767 (1985). Of course, the contradiction of fact itself does not make the issue material; the issue is either material or collateral, independent of the contradiction. As the D.C. Circuit has observed: “[t]he commonly used test of collaterality asks: ‘Could the fact, as to which error is predicated, have been shown in evidence for any purpose independently of the contradiction?’ ” United States v. Tarantino, 846 F.2d 1384, 1410 (D.C.Cir.) (quoting 3A Wigmore, Evidence Sec. 1003 (Chadbourn Rev.1970)), cert. denied, 488 U.S. 840, 109 S.Ct. 108, 102 L.Ed.2d 83 (1988). Under this test, which I believe captures the essence of the materiality inquiry, Blake’s participation in the unrelated, uncharged “reverse purchase” transaction was plainly a collateral matter.

Blake’s defense at trial was that he did not reside in the apartment where the contraband was discovered — that the apartment belonged to his ex-girlfriend, and that the contraband discovered there was not his. When he testified on direct-examination, Blake did not deny that he spoke with the police officers; he merely denied having confessed to owning the drugs and *344guns in his ex-girlfriend’s apartment.1 Although Blake stated on direct-examination that he knew nothing about the contraband retrieved from the apartment, Blake did not deny his involvement with other drug activity; he offered no testimony on direct-examination regarding that issue. Only when Blake was pressed on cross-examination whether he had participated in other drug activity did he deny his involvement.

The government, seizing on that denial, offered the rebuttal testimony to impeach Blake’s testimony. The majority approves of this impeachment on the ground that:

Blake’s admissions [to the officers], in which he indicated that he had been extensively involved in drug trafficking, was a primary part of the government's case-in-chief. As such, the admission that he was in the drug business was clearly a material issue in the case. When Blake denied making the incriminating statements to the police officers on direct, he called into question the veracity of the officer’s testimony about the confession. The government was entitled to present evidence about Blake’s prior involvement with drugs to corroborate the testimony about Blake’s confession. Evidence of other drug transactions corroborates Blake’s admissions about drug trafficking.

Majority op. at 338 (emphasis added). The majority relies principally on the Eleventh Circuit’s 2-1 decision in United States v. Cardenas, 895 F.2d 1338, 1345-46 (11th Cir.1990) and the Ninth Circuit’s original 2-1 decision in United States v. Batts, 558 F.2d 513, 517 (9th Cir.1977), opinion withdrawn and substituted with, 573 F.2d 599, cert. denied, 439 U.S. 859, 99 S.Ct. 178, 58 L.Ed.2d 168 (1978).

I share the views of then-Judge (now Justice) Kennedy and Judge Young, as expressed in their dissenting opinions in Batts and Cardenas, respectively, that the government may not rebut, with extrinsic evidence, a contradiction which is elicited on cross-examination. See Batts, 558 F.2d at 519-22 (Kennedy, J., dissenting) (“Since Batts did not testify on the subject of his prior conduct during his direct examination (or voluntarily raise it on cross-examination), it was error to allow the ... cocaine into evidence.”);2 Cardenas, 895 F.2d at 1348 (Young, J., dissenting) (“In the instant case, the prosecution, not the defendant, injected into the case the issue of defendant’s prior involvement with drugs.... Thus it cannot be said that [the defendant] ‘made his true attitude toward illegal drugs a material issue’ in this case.”). To my view, the government may not cross-examine a defendant about unrelated misconduct under threat of offering extrinsic evidence tending to prove that the defendant did in fact engage in that activity. As the D.C. Circuit has observed:

where a defendant in a criminal case takes the stand and on cross-examination denies charges of unrelated misconduct, the government may not attempt to impeach his credibility with extrinsic evidence of such misconduct.

Tarantino, 846 F.2d at 1409 n. 8.

I am not persuaded that by virtue of Blake’s repudiation of his confession and *345denial of the charged offenses, he thereby made a material issue of his confession to, and participation in, the unrelated, un charged transaction. The material issue in this case was whether Blake confessed to exercising dominion and control over the contraband seized from his ex-girlfriend’s apartment, not whether he confessed to engaging in the reverse purchase transaction. I would agree that extrinsic evidence that Blake confessed to the charged crimes — a witness testifying that Blake told him that he had confessed to the police officers — would have been admissible, because that evidence would tend to contradict Blake’s denial on the material issue of whether he confessed to the charged crimes. However, with respect to Blake’s confession to participating in the unrelated, uncharged conduct, I would follow the Ninth Circuit’s post-Batts decision and hold that, at most, “the government could attempt on further cross-examination to elicit a response from [the defendant] contradicting his prior testimony, but it could not properly impeach [the defendant] through extrinsic evidence of [an unrelated drug transaction].” See United States v. Bosley, 615 F.2d 1274, 1276-77 (9th Cir.1980) (extrinsic evidence inadmissible to contradict defendant’s denial of participation in an unrelated drug transaction).

Thus, although I agree that “[w]hen Blake denied making the incriminating statements to the police officers on direct, he called into question the veracity of the officers’ testimony about the confession,” majority op. at 338,1 do not believe that he thereby invited the government to introduce extrinsic evidence of all the conduct about which he allegedly confessed. Buie 608(b) and the specific contradiction rule cannot be given such elasticity.3 Not every minute detail of a confession becomes material merely because the defendant disavows the confession.

Blake’s participation in the unrelated, uncharged drug transaction was collateral to the material issues at trial. The fact that Blake denied confessing to the crimes charged did not, a fortiori, make it any less so.4

II.

The majority holds, in the alternative, that the extrinsic evidence was admissible under rule 404(b) as evidence of Blake’s intent and knowledge. The government did not offer the rebuttal evidence for that purpose, the district court did not admit it for that purpose, and the government did not argue on appeal that we should affirm on that basis. I therefore would decline to do so. See DiMatteo, 716 F.2d at 1367 (“we need not consider whether the evidence would be independently admissible, because the government, in accord with its understanding of the principle of specific contradiction, has never argued that [the witness]’ testimony was offered for any purpose other that to attack ... credibility”).

Moreover, I entertain serious doubts as to the admissibility of 404(b) evidence in a case, like this one, where the sole issue at trial was whether the defendant committed the charged acts. Blake’s defense at trial was not that he mistakenly or unknowingly possessed the contraband, but that he had no connection to the contraband at all. On this score, I would follow the lead of the Second Circuit and “recognize[] a distinction between defense theories that claim that the defendant did not do the charged act at all, and those that claim that the defendant did the act mistakenly, with only the latter truly raising a disputed issue of intent.” See United States v. Colon, 880 *346F.2d 650, 657 (2d Cir.1989) (reversing conviction and remanding for new trial on the ground that the 404(b) evidence was inadmissible). Where knowledge and intent are not the central issues at trial, the proffered 404(b) evidence is not “particularly probative,” cf. United States v. Gordon, 780 F.2d 1165, 1174 (5th Cir.1986) (“Rule 404(b) evidence is particularly probative where the government has charged conspiracy.”), and its probative value is likely outweighed substantially “by its potential for unfair prejudice,” see Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 1502, 99 L.Ed.2d 771 (1988) (acknowledging the potential for unfair prejudice attendant to admission of 404(b) evidence), especially when the risk of prejudice is not tempered by a limiting instruction. See United States v. Gonzalez-Lira, 936 F.2d 184, 192 (5th Cir.1991) (holding that the limiting instruction, “combined with the defense’s ability to bring out the truth on cross-examination,” insured that “the introduction of the evidence relating to the prior smuggling attempt would not lead the jury to convict [the defendant] for the prior crime”).5

III.

Concluding, as I do, that the admission of the extrinsic rebuttal evidence was improper, I would reverse and remand for a new trial. I believe that the evidence of the uncharged drug transaction, especially in combination with the “inflammatory question” about whether Blake had killed someone, cannot be deemed harmless. As the majority acknowledges, “Blake’s defense required the jury to determine whether he or the officers were lying” about his confession. See majority op. at 341. There was little, if any, evidence, other than the police officers’ testimony of Blake’s confession, proving that Blake possessed the guns and drugs in his ex-girlfriend’s apartment. Blake’s credibility was everything in this case. Although I too would agree that Blake’s testimony was plagued with inconsistencies, from this remote vantage point, I cannot say with any degree of certainty that the erroneous admission of evidence establishing his participation in other drug activity, along with the “unfairly prejudicial” reference to the murder allegation, “had no substantial influence” on the jury in assessing his credibility and adjudging his culpability. See id. (quoting United States v. Rodriguez, 573 F.2d 330, 333 (5th Cir.1978)).

I respectfully dissent.

. Blake testified on direct-examination as follows:

A. ... [the police officers] started asking me about Sharon [Blake’s ex-girlfriend],
Q. All right. Did they at that point indicate to you that she lived at O’Connor Ridge?
A. Yes, sir.
Q. Did you agree with that?
A. Yes, sir.
Q. Okay. They have indicated to the jury that you told them that you had dope in her apartment and that you had guns in her apartment an all of these various incriminating things and guns in the pillow case. Did you tell these agents anything about anything like that?
A. No, sir.
Q. All right. Did you know anything about anything like that?
A. No, sir.

Record, Vol. Ill at 33.

. The Third Circuit has observed that then-Judge Kennedy’s dissenting opinion in Batts apparently carried the day with the Ninth Circuit by virtue of its "subsequent modification of the opinion to eliminate all reliance upon rule 608(b) as a ground of admissibility.” United States v. Herman, 589 F.2d 1191, 1197 (3d Cir.1978) (holding that extrinsic evidence was inadmissible under rule 608(b)).

. Rule 608(b) specifically prohibits the introduction of extrinsic evidence to support credibility. Thus, the rebuttal testimony was not admissible to bolster the credibility of the police officers.

. Even were this extrinsic evidence admissible for impeachment purposes, I question whether its probative value was sufficient to overcome the substantial risk of unfair prejudice it carried. See Fed.R.Evid. 403. As the majority acknowledges, "the government had obtained abundant evidence which it could use to impeach his credibility.” Majority op. at 340. Thus, like the "unfairly prejudicial" reference to the Jamaica murders, I would conclude that "[tjhe probative value of this cumulative impeachment was de minimus." See id. at 340-41.

. By affirming on this alternative ground, I fear that the majority trivializes the importance of the limiting instruction that must be given when the government seeks to admit 404(b) evidence and the defendant requests it. See Huddleston, 108 S.Ct. at 1502. In both Batts, 558 F.2d at 516, and Cardenas, 895 F.2d 1338, the jury was so instructed. Because the government offered the evidence not under rule 404(b), but specifically as impeachment evidence, there was no discussion regarding a 404(b) limiting instruction, none was requested, and therefore none was given.