United States v. Deleon

While R. Martinez is a Defendant, he has pled guilty and will testify as part of the United States' case in chief. See Sealed Plea Agreement at 1, filed September 22, 2016 (Doc. 716); United States' Sealed Witness List Trial II at 4, filed January 22, 2018 (Doc. 1676).

The Court's citations to the trial transcript refer to the court reporter's realtime, unedited version. Any final transcript will contain different page and/or line numbers.

At common law, a court could not "with propriety permit a witness to be examined first, and contradicted afterwards, on a point which is merely and purely collateral, as for instance as to his personal character, and as to having committed any particular act." Attorney-General v. Hitchcock, 154 Eng. Rep. 38, 43 (1847).

The reason why a party is obliged to take the answer of a witness is, that if he were permitted to go into it, it is only justice to allow the witness to call other evidence in support of the testimony he has given, and as those witnesses might be cross-examined as to their conduct, such a course would be productive of endless collateral issues. Suppose, for instance, witness A. is accused of having committed some offence; witness B. is called to prove it, when, on witness B's cross-examination, he is asked whether he has not made some statement, to prove which witness C. is called, so that it would be necessary to try all those issues, before one step could be obtained towards the adjudication of the particular case before the Court. On the contrary, if the answer be taken as given, if the witness speaks falsely he may be indicted for perjury. That is the proper remedy. Then in the next place, in my opinion, when the question is not relevant, strictly speaking, to the issue, but tending to contradict the witness, his answer must be taken, although it tends to shew that he, in that particular instance, speaks falsely, and although it is not altogether immaterial to the matter in issue, for the sake of the general public convenience; for great inconvenience would follow from a continual course of those sorts of cross-examinations which would be let in in the case of a witness being called for the purposes of contradiction. I think those are the rules by which these cases have always been governed, and the application of which is easy and short.

Attorney-General v. Hitchcock, 154 Eng. Rep. at 44. The Federal Rules of Evidence do not codify the common law rule that extrinsic evidence is not admissible to contradict a witness on a collateral matter, but the rule survives as an application of rule 403 of the Federal Rules of Evidence. See United States v. Walker, 930 F.2d 789 (10th Cir. 1991) ("[I]t is well settled that it is not improper for the trial judge to limit impeachment evidence on matters that are deemed collateral or irrelevant.... This rule stems from the trial judge's power under Fed. R. Evid. 403 to exclude evidence which is more prejudicial, misleading, or confusing than probative."). See also United States v. Tarantino, 846 F.2d 1384, 1409 (D.C. Cir. 1988) (describing the " 'specific contradiction' rule, which states that 'a witness may not be impeached by extrinsic evidence (contradiction by another witness or evidence) on a collateral issue,' " as "a particular instance of the trial court's general power under" rule 403 (quoting United States v. Pugh, 436 F.2d 222, 225 (D.C. Cir. 1970) ) ).

The United States Court of Appeals for the Tenth Circuit has carved out an exception to the general rule against using extrinsic evidence to contradict a witness on a collateral matter such that, "when a defendant makes a false statement during direct testimony, the prosecution is allowed to prove, either through cross-examination or by rebuttal witnesses, that the defendant lied as to that fact.... This is so even if the evidence elicited by the prosecution ordinarily might be collateral or otherwise inadmissible." United States v. Crockett, 435 F.3d 1305, 1313 (10th Cir. 2006) (citing United States v. Walder, 347 U.S. 62, 65, 74 S.Ct. 354, 98 L.Ed. 503 (1954) ). United States v. Crockett's reference to rebuttal witnesses is both dicta-the United States did not call a rebuttal witness to impeach a testifying defendant on a collateral matter-and a departure from other Tenth Circuit precedent permitting a testifying defendant to be impeached by contradiction on a collateral matter, "[w]ithout resorting to any extrinsic evidence." Mason v. Oklahoma Turnpike Authority, 115 F.3d 1442, 1456 (10th Cir. 1997). See United States v. Reschner, 802 F.2d 373, 383 (10th Cir. 1986) ("Here the prosecution did not use extrinsic evidence to attack the witness' credibility, but merely tried to elicit an admission that he had testified falsely during direct examination. The trial court clearly had discretion to allow such questioning ...."). See also United States v. Crockett, 435 F.3d at 1313 (purporting to apply Mason v. Oklahoma Turnpike Authority and United States v. Greschner ). Walder v. United States is the only authority that United States v. Crockett cites for the proposition that calling rebuttal witnesses to contradict a testifying defendant's direct examination statement regarding a collateral matter is permissible. See United States v. Crockett, 435 F.3d at 1313. The Supreme Court of the United States of America, in Walder v. United States, did not address contradiction on a collateral matter. Instead, Walder v. United States determined that the United States could-in a prosecution for "purchasing and possessing one grain of heroin"-call a rebuttal witness to contradict a defendant's direct-examination assertion that he had never possessed or dealt narcotics, even though an unlawful search rendered that testimony inadmissible in the United States' case in chief. Walder v. United States, 347 U.S. at 62-63, 65, 74 S.Ct. 354. Whether a defendant ever possessed narcotics is not a collateral matter in a heroin-possession prosecution. Consequently, Walder v. United States does not create or apply the exception to the rule against introducing extrinsic evidence for impeachment on a collateral matter that United States v. Crockett describes. The Court thus concludes that the Tenth Circuit in United States v. Crockett: (i) would have been explicit if it intended to carve out a new exception to a centuries-old evidentiary rule; and (ii) thought-erroneously, in the Court's view-that it was apply existing evidence law.

The Tenth Circuit's United States v. Albers decision binds the Court, but if the Court were writing on a blank slate, it would take an approach closer to the Third Circuit's approach in Elcock v. Kmart Corp. for several reasons. First, the rule 608(b)'s and 609's text supports the Third Circuit's approach. See Fed. R. Evid. 608(b). Rule 609 provides rules that "apply to attacking a witness's character for truthfulness by evidence of a criminal conviction," Fed. R. Evid. 609(a), so the expressio unius est exclusio alterius (the expression of one is the exclusion of another) canon of construction indicates that rule 609 does not provide rules that apply to attacking a witness' character for truthfulness by other evidence. When rule 609 does not apply, rule 608(b) governs whether evidence regarding specific instances of a witness' conduct is admissible to attack a witness' character for truthfulness. See Fed. R. Evid. 608(b) ("Except for a criminal conviction under Rule 609...."). By their terms, rule 608(b) and rule 609 are, thus, mutually exclusive and collectively exhaustive. Those rules' text is ambiguous regarding which rule applies to the facts underlying a witness' criminal conviction-"evidence of a criminal conviction," Fed. R. Evid. 609, and "a criminal conviction under Rule 609," Fed. R. Evid. 608(b), might or might not encompass those facts-but neither rule calls for the Tenth Circuit's categorical bar on cross examination regarding those facts. If rule 609 applies, then evidence is admissible if it satisfies a balancing test weighing the evidence's probative value against its unfair prejudice. See Fed. R. Evid. 609(a)-(b) (articulating three different balancing tests and specifying the conditions under which each test applies). Alternatively, if rule 608(b) applies, extrinsic evidence is inadmissible, but the trial court may permit inquiry on cross examination subject to rule 403 balancing. See Fed. R. Evid. 608(b).

Second, the Third Circuit's approach is consistent with the policy considerations underlying rules 608(b) and 609.

Both rules are concerned with a particular form of impeachment: proving that a witness has a character for untruthfulness. Both rules permit, with some limitations, an inquiry into specific conduct in the witness's past when offered to prove that such conduct has some bearing on the witness's character for untruthfulness.....

One reason for the difference in treatment is that the drafters of the rules, and Congress, felt that the exclusion of extrinsic evidence found in Rule 608(b) should not apply where the impeachment was with prior convictions. This is because a conviction, unlike a bad act, can be proved easily if the witness denies it. There is no risk of a mini-trial on a collateral issue. Also, the denial of a bad act may result from inadvertence or dispute as to its occurrence; but neither concern is pertinent when it comes to a conviction.

The more important reason for differential treatment is that prior convictions were thought to be more serious, and more probative of a propensity to lie on the stand, than other bad acts. Whether this is true or not, it is clear that Congress believed it to be so.

Stephen A. Saltzburg et al., Federal Rules of Evidence Manual § 609.02[1] (11th ed. 2017). The purpose of rule 608(b)'s extrinsic evidence ban is " 'to avoid holding mini-trials on irrelevant or collateral matters.' " Stephen A. Saltzburg et al., supra § 608.02[7] (quoting Deary v. City of Gloucester, 9 F.3d 191, 197 (1st Cir. 1993) ).

All that Rule 608(b) does is to prevent the focus of a trial from turning from the merits of a dispute to the issue of whether a witness committed a particular act, the only relevance of which is that, if it was committed by the witness, that fact might affect the jury's assessment of credibility.

Stephen A. Saltzburg et al., supra § 608.02[10]. That a specific instance of a witness' conduct produced a criminal conviction does not make it more likely that asking cross examination questions about that conduct will produce a miniature trial on a collateral matter.

Third, the Tenth Circuit's rule produces the incongruous result that rule 608(b) inquiry is completely forbidden if a witness was convicted, whereas rule 608(b) inquiry is permissible, subject to rule 403 balancing, if the witness was acquitted. Compare United States v. Schwab, 886 F.2d 509, 513 (2d Cir. 1989) (concluding that a trial court abused its discretion under rule 403 when it permitted rule 608(b) inquiry into a witness' conduct that produced an acquittal), with United States v. Lopez-Medina, 596 F.3d 716, 737-38 (10th Cir. 2010) (concluding that a trial judge did not need to balance probative value and unfair prejudice under rule 403 before prohibiting inquiry into the facts underlying a witness' criminal conviction). The Court can divine no sound reason to immunize from inquiry a witness who was found guilty without providing the same level of protection to a witness who was tried and acquitted.

Fourth, policy concerns regarding the cumulative prejudicial effect of rule 608(b) inquiry into conduct that has resulted in a criminal conviction, which several United States Courts of Appeal and commentators have found compelling, do not justify United States v. Albers' prohibition on such inquiry. Professor Stephen A. Saltzburg articulates those concerns: "A party attacking a witness with a conviction has already done significant damage. Admitting the underlying conduct appears to be piling on, and operates as little more than an evasion of the careful proof limitations imposed by Rule 609." Stephen A. Saltzburg et al., Federal Rules of Evidence Manual § 609.02[6]. See United States v. Albers, 93 F.3d at 1479 ("[T]he defendant was entitled to the protection of the rule that only the prior conviction, its general nature, and punishment of felony range were fair game for testing the defendant's credibility."). The United States Court of Appeals for the Ninth Circuit articulated similar concerns:

The government also argues on policy grounds that it does not make sense to bar inquiry into dishonest acts just because a witness was eventually convicted for them. But that argument ignores that evidence of a prior conviction for dishonest acts can be far more prejudicial to a defendant than evidence of dishonest acts that have not been held to violate the law. Under the government's interpretation, a bad act resulting in a conviction would be, in a sense, counted twice-once by presenting the bad act itself and once by presenting the conviction that flowed from it. The risk of unfair prejudice or undue emphasis is the reason why Rule 609 and its related case law carefully guide the admission of prior convictions and their underlying facts.

United States v. Osazuwa, 564 F.3d 1169, 1174-75 (9th Cir. 2009).

Concerns regarding cumulative prejudicial effect from introducing both a criminal conviction under rule 609 and permitting inquiry regarding the underlying facts under rule 608(b) are legitimate, but United States v. Albers' categorical rule preventing the introduction of rule 608(b) and rule 609 evidence is not an appropriate response. For one thing, inquiry under 608(b) is always subject to rule 403, which permits a trial court to avoid throwing the proverbial baby out with the bath water by making particularized and case-specific determinations regarding "unfair prejudice" and "needlessly presenting cumulative evidence." Fed. R. Evid. 403.

Additionally, even when it is not appropriate to attack a witness' character for truthfulness by both introducing conviction evidence under rule 609 and inquiring about the underlying facts under rule 608(b), the party seeking to impeach a witness should be able to choose between those two alternatives. The admonition that "[a] syllogism is not a story, and a naked proposition in a courtroom may be no match for the robust evidence that would be used to prove it" is true for impeachment evidence as well as evidence bearing directly on guilt or innocence. Old Chief v. United States, 519 U.S. 172, 189, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). If a party would rather present robust impeachment evidence via rule 608(b) inquiry into a specific instance of conduct-subject to rule 608(b)'s extrinsic evidence prohibition-instead of introducing sanitized evidence of a resulting conviction under rule 609, via extrinsic evidence or otherwise, there is no sound reason to forbid that tactical choice, which would be subject to the trial court's rule 403 balancing. See Old Chief v. United States, 519 U.S. at 184, 117 S.Ct. 644 ("[A] reading of the companions to Rule 403, and of the commentaries that went with them to Congress, makes it clear that what counts as the Rule 403'probative value' of an item of evidence ... may be calculated by comparing evidentiary alternatives." (quoting Fed. R. Evid. 403 ) ). The Tenth Circuit's pronouncements, when taken at face value, prohibit rule 608(b) inquiry into conduct that produces a conviction no matter whether evidence of that conviction is introduced under rule 609. See United States v. Morales-Quinones, 812 F.2d at 613 ("Under Fed. R. Evid. 608(b) a defendant may impeach a Government witness by cross-examining him about specific instances of conduct not resulting in conviction if such conduct is probative of the witness' character for truthfulness or untruthfulness.").

Even if Tenth Circuit precedent, correctly understood, permits rule 608(b) inquiry into a specific instance of conduct resulting in conviction as long as evidence of the conviction is not introduced, the choice between offering impeachment evidence under rule 608(b) or 609 belongs, as a practical matter, to the party who calls the witness. Rule 607 permits parties to impeach their own witnesses. See Fed. R. Crim. P. 607 ("Any party, including the party that called the witness, may attack the witness's credibility."). Consequently, the party who calls a witness can, during direct examination, introduce evidence of the witness' conviction, under rule 609, and thereby foreclose a rule 608(b) inquiry into the facts underlying the conviction, even if those facts are far more probative vis-à-vis the witness' character for truthfulness than the bare fact of conviction.

In United States v. Albers, the Tenth Circuit worried about testifying defendants in particular and the prospect that they would have to endure questioning about their convictions on direct examination and then more questioning about the facts underlying those convictions on cross examination. See 93 F.3d at 1480 ("[T]he defendant was entitled to the protection of the rule that only the prior conviction, its general nature, and punishment of felony range were fair game for testing the defendant's credibility."). Commentators have long been concerned that introducing a testifying defendant's felony convictions tells the fact finder relatively little about that defendant's character for truthfulness, but discourages defendants from taking the stand for fear that their prior conviction will be admitted under rule 609. See Stephen A. Saltzburg et al., supra § 609.02[4] ("We believe that, while it is important for the jury to get a sense of the witness's character for truthfulness, it is also important that the rules on impeachment not unduly discourage parties from calling witnesses-especially criminal defendant-witnesses-to the stand."). The Court is sympathetic to the academic literature's criticism of rule 609, but Congress wrote rule 609 as a political compromise that is more favorable to testifying defendants than the common-law rule. See Fed. R. Evid. 609 advisory committee note ("The weight of traditional authority has been to allow use of felonies generally, without regard to the nature of the particular offense, and of crimen falsi without regard to the grade of the offense."); id. ("The proposed rule incorporates certain basic safeguards, in terms applicable to all witnesses but of particular significance to the accused who elects to testify."). In a democracy, such political compromises are perfectly honorable, and the Court should respect what the political branches have decided.

On the other hand, the Tenth Circuit's and Professor Saltzburg's concern for criminal defendants, which the Court shares, ultimately hurts the Defendants in this case. United States v. Albers' prohibition on rule 608(b) inquiry regarding the facts and circumstances underlying a witness' criminal convictions hamstrings B. Garcia's ability to attack the character for truthfulness of the United States' witnesses. The Court thinks the better approach is to avoid reading hard-and-fast prohibitions-which are completely absent from the text, see supra n.3-into rules 608 and 609. The Court can use rule 403 to exclude evidence to keep the gory details underlying a testifying defendant's convictions and to allow the Defendants leeway, under rule 403, to attack their accusers' character for truthfulness.

In United States v. Ballou, the Court determined that evidence about a witness' prior conduct was admissible under rule 404(b) of the Federal Rules of Evidence, when the defendant offered the evidence, even though that evidence "would not pass muster under a traditional rule 404(b) analysis, in which the United States seeks to admit prior bad acts of a criminal defendant." 59 F.Supp.3d at 1068. The Court reasoned that a " 'lower standard' " applies to "a nonparty's prior bad acts that a criminal defendant seeks to admit," evidence about a witness, because " 'prejudice to the defendant is not a factor.' " United States v. Ballou, 59 F.Supp.3d at 1064 (quoting United States v. Montelongo, 420 F.3d 1169, 1175 (10th Cir. 2005) ). Whether rule 404(b) evidence prejudices a defendant affects that evidence's admissibility, because rule 404(b) evidence-offered for a permissible purpose-is admissible unless its unfair prejudice substantially outweighs its probative value under rule 403. See United States v. Tan, 254 F.3d 1204, 1208 (10th Cir. 2001) (reasoning that, when "other act evidence is ... offered for a proper purpose," it "may be excluded only under Rule 403."). The lower standard that United States v. Ballou discusses is not, strictly speaking, a different legal standard; rule 403 governs rule 404(b) evidence's admissibility when it is offered for a permissible purpose no matter which party offers the evidence. That lower standard is, instead, an acknowledgement that rule 403 balancing produces more permissive results when rule 404(b) evidence presents a nonparty's "crime, wrong, or other act." Fed. R. Evid. 404(b)(1).

In United States v. Chapman, the Court observed that, "[i]f a theft involved a dishonest act, such as fraud or deceit, then it may be admissible under rule 608(b)." 2015 WL 4042177, at *25. That observation flows from rule 608(b)'s statement that inquiry into specific instances of a witness' conduct on cross examination is permissible only if the instances "are probative of the character for truthfulness or untruthfulness." Fed. R. Evid. 608(b). United States v. Chapman analyzed an alleged theft that did not result in a criminal conviction, "which means rule 608, and not rule 609, governs the admissibility of evidence of the incident." 2015 WL 4042177, at *24.