United States of America, Appellee,
vs.
Leonard Peltier, Appellant. National
Association of Criminal Defense Lawyers, Inc. and California Attorneys
for Criminal Justice, Amicus Supporting Appellant Cathedral Church of St.
John the Divine, et al., Amicus Certain Members of U.S. Congress, Amicus
Supporting Appellant
No. 85-5192
United States Court Of Appeals For
The Eighth Circuit
800 F.2d 772, 21 Fed. R. Evid. Serv.
(Callaghan) 1017, 1986 U.S. App. Decision
September 11, 1986, Filed
Appeal from the United States District
Court for the District of North Dakota.
Counsel who presented argument on behalf of the Appellant was William
Kunstler. Counsel who presented argument on behalf of the Appellee was
Lynn E. Crooks, Assistant U. S. Attorney.
Heaney, Ross, and John R. Gibson, Circuit Judges.
[F.2d 772] HEANEY,
Circuit Judge.
On April 18, 1977, Leonard Peltier
was found guilty of the June 26, 1975, premeditated murder of Jack Coler
and Ronald Williams, special agents of the Federal Bureau of Investigation
(FBI). The record as a whole leaves no doubt that the jury accepted the
government's theory that Peltier had personally killed the two agents,
after they were seriously wounded, by shooting them at point-blank range
with an AR-15 rifle (identified at trial as the "Wichita AR-15").1
The critical evidence in support of [F.2d 773] this theory was a
casing from a.223 caliber Remington cartridge
recovered from the trunk of agent Coler's car on June 29, 1975, and received
by the FBI firearms identification expert on July 24, 1975. The district
court, agreeing with the government's theory of the case, sentenced Peltier
to two consecutive life sentences.
Peltier appealed to this Court from
that conviction. He argued strenuously that he had not been given a fair
trial because the trial court refused to permit him to fully explore his
contention that the FBI had manufactured evidence against him and had intimidated
and coerced several witnesses. He also argued that the district court erred
in denying him the right to introduce evidence regarding the tensions between
the FBI and the American Indian Movement (AIM) on the Pine Ridge Indian
Reservation, and had erred in permitting introduction of prejudicial and
inflamatory evidence. Peltier also objected to the manner in which the
district court handled the ballistic evidence, particularly insofar as
that evidence was intended to show his possession and use of the Wichita
AR-15 on the day the two agents were killed. He finally complained that
the government had deliberately withheld exculpatory information from the
defense and that the trial court had erred in failing to do anything about
this failure.
We affirmed the conviction on September
14, 1978. United States v. Peltier, 585 F.2d 314 (8th Cir. 1978),
cert.
denied, 440 U.S. 945, 99 S. Ct. 1422, 59 L. Ed. 2d 634 (1979). In affirming,
we too accepted the government's theory that both agents had been killed
with a high-velocity small-caliber weapon fired at point-blank range at
a time when the men were seriously wounded and unable to defend themselves.
We then held that the evidence was sufficient for the jury to find Peltier
responsible for the murders.
On April 20, 1982, Peltier filed a
motion
to vacate the judgment and for a new trial pursuant
to 28 U.S.C. § 2255 (1976). On December 15, 1983, he filed a second
motion for a new trial under Fed. R. Crim. P. 33. The basis of this motion
was a mass of data and reports obtained from the FBI under a Freedom of
Information Act, 5 U.S.C. § 552 (1982) (FOIA) request. He simultaneously
moved to disqualify the district [F.2d 774] court judge. The district
court denied all motions without an evidentiary hearing. Peltier appealed,
arguing that many of the documents received under the FOIA request were
exculpatory and should have been made available to him under the dictates
of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194
(1963). Specifically, Peltier argued that the government had improperly
withheld information tending to show that the agents had not in fact been
killed by the Wichita AR-15. We recognized that the evidence relating to
Peltier's use of the Wichita AR-15 on June 26th was critical to his conviction
and remanded the matter to the district court for an evidentiary hearing.
We stated:
At this hearing, the court shall limit
its consideration to any testimony or documentary evidence relevant to
the meaning of [an] October 2, 1975, teletype [which seemed to rule out
the Wichita AR-15 as the murder weapon] and its relation to the ballistics
evidence introduced at Peltier's trial. The court shall then rule on whether
the evidence adduced below supports Peltier's contention that its nondisclosure
violated the Brady doctrine, requiring a new trial.
United States v. Peltier, 731
F.2d 550, 555 (8th Cir. 1984) (per curiam).
The district court conducted an evidentiary
hearing on the matter and issued a detailed memorandum and order on May
22, 1985. 609 F. Supp. 1143. It held that the October 2, 1975, teletype,
evaluated in the context of the entire record, would not have affected
the outcome of the trial and that, therefore, Peltier was not entitled
to relief.
Peltier appeals to this Court, asking
us to make an independent judgment as to whether the previously undisclosed
evidence would have produced a different result at trial.
The Legal Standard.
In United States v. Bagley,
473 U.S. 667, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985), Mr. Justice Blackmun,
writing for the Court, reviewed the Supreme Court cases dealing with a
prosecutor's failure to disclose evidence that could have been used effectively
to impeach important government witnesses. He stated:
In Brady v. Maryland, 373 U.S.
83, 87, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), this Court held that "the
suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt
or punishment."
* * *
The holding in Brady v. Maryland
requires disclosure only of evidence that is both favorable to the accused
and "material either to guilt or punishment."
Id., 87 L. Ed. 2d at 486, 489
(citations omitted).
He went on to state:
Impeachment evidence, however, as well
as exculpatory evidence, falls within the Brady rule. See Giglio
v. United States, 405 U.S. 150, 154, 31 L. Ed. 2d 104, 92 S. Ct. 763
(1972). Such evidence is "evidence favorable to an accused," Brady,
* * * so that, if disclosed and used effectively, it may make the difference
between conviction and acquittal. Cf. Napue v. Illinois, 360 U.S.
264, 269, 3 L. Ed. 2d 1217, 79 S. Ct. 1173 (1959) ("The jury's estimate
of the truthfulness and reliability of a given witness may well be determinative
of guilt or innocence, and it is upon such subtle factors as the possible
interest of the witness in testifying falsely that a defendant's life or
liberty may depend").
* * *
Constitutional error occurs, and the
conviction must be reversed, only if the evidence is material in the sense
that its suppression undermines confidence in the outcome of the trial.
Id., 87 L. Ed. 2d at 490-91.
He then turned to the question of materiality,
and stated that:
The evidence is material only if there
is a reasonable probability that, had the evidence been disclosed to the
defense, the [F.2d 775] result of the proceeding would have been
different. A "reasonable probability" is a probability sufficient to undermine
confidence in the outcome.
* * * *
The more specifically the defense requests
certain evidence, thus putting the prosecutor on notice of its value, the
more reasonable it is for the defense to assume from the nondisclosure
that the evidence does not exist, and to make pretrial and trial decisions
on the basis of this assumption. This possibility of impairment does not
necessitate a different standard of materiality, however, for under the
Strickland formulation the reviewing court may consider directly any adverse
effect that the prosecutor's failure to respond might have had on the preparation
or presentation of the defendant's case. The reviewing court should assess
the possibility that such effect might have occurred in light of the totality
of the circumstances and with an awareness of the difficulty of reconstructing
in a post-trial proceeding the course that the defense and the trial would
have taken had the defense not been misled by the prosecutor's incomplete
response.
Id., 87 L. Ed. 2d at 494 (emphasis
added).
After setting out the legal standard,
the Court remanded the matter to the Court of Appeals for its determination
whether there was a reasonable probability that had the evidence of the
inducement offered by the government to two government witnesses been disclosed
to the defense, the result of the trial would have been different.
Applying the rules set forth in Bagley
to this case, we find that the prosecution withheld evidence from the defense
favorable to Peltier, and that had this evidence been available to the
defendant, it would have allowed him to cross-examine certain government
witnesses more effectively. This case thus turns on the question whether
the evidence withheld by the prosecution is material in the sense that
its nondisclosure undermines confidence in the outcome of the trial.
We could have resolved this issue without
great difficulty if the government had presented the case against Peltier
on the theory that he was an aider and abettor. The evidence clearly shows
that Peltier participated in the shoot-out that resulted in the wounding
and ultimate deaths of the two FBI agents. But this is not the government's
theory. Its theory, accepted by the jury and the judge, was that Peltier
killed the two FBI agents at point-blank range with the Wichita AR-15.
Under this theory, the ballistics evidence, particularly as that evidence
relates to a.223 shell casing, allegedly extracted from the Wichita AR-15
and found in agent Coler's car, is critical. We thus must examine the evidence
that surfaced after trial to determine whether, in the light of that new
evidence and the totality of the circumstances, there is a reasonable probability
that the jury would not have found Peltier guilty of the two murders if
it had known all the facts. We do so with an awareness of the difficulty
of reconstructing the course the defendant would have taken if the withheld
evidence had been available to him at trial.
The.223 Casing.
As the government states, the.223 casing
found in the trunk of Coler's car was "perhaps the most important piece
of evidence in this case." Tr. at 4996. While the autopsies indicated only
that the agents had been killed point-blank by a high-velocity low-caliber
weapon, the.223 casing pinpointed the Wichita AR-15 as the murder weapon,
to the exclusion of all other weapons. Since other evidence connected Peltier
to the Wichita AR-15, the.223 casing provided the final link necessary
to establish Peltier as the point-blank murderer of both agents.2
[F.2d 776] Questions
regarding the FBI's handling and examination of the casing first arose
at trial due to inconsistencies in the laboratory reports. A February 10,
1976, laboratory report made by Evan Hodge, the government's ballistics
expert, stated that the.223 casing found in Coler's trunk had been loaded
and extracted from the Wichita AR-15. In contrast, Hodge's October 31,
1975, report stated that "none of the other ammunition components recovered
at the RESMURS scene could be associated with [the Wichita AR-15]." At
the time of this earlier report, Hodge had both the.223 casing and the
Wichita AR-15 in his possession.3
At the post-trial evidentiary hearing,
Hodge explained that at the time he wrote the October 31 report, he had
only examined a small portion of the submitted ballistics evidence, and
that he had not gotten to the.223 casing until December, 1975, or January,
1976. He further testified that he had not been aware of any particular
urgency connected with the casing, and had not received any priority requests
regarding it. This testimony is facially inconsistent with the newly-discovered
evidence, which included several teletypes from FBI officials and agents
specifically requesting Hodge to compare submitted AR-15 rifles with.223
casings found at the scene,4
and Hodge's responses to these teletypes, which, at least prior to February
10, 1975, consistently reported that the casings and rifles were nonidentical.5
Additionally, from the FOIA request documents, the defense discovered that
Hodge had ample reason to focus his attention on the.223 casing. He was
aware as early as June 27, 1975, the day after the killings, that the two
agents had been killed by a high-velocity low-caliber weapon at close range,6
and by September 20, 1975, that the investigation had focused on Peltier
and an AR-15.7
[F.2d 777] The question
now before us is whether the newly-discovered evidence indicating Hodge
may not have been telling the truth, considered in the light of the evidence
the jury had before it, would have caused the jury to reach a different
result. While that possibility exists, Bagley requires more. It
requires us to find that it is reasonably probable the jury would have
acquitted Peltier had it been aware of this evidence, and had the defense
had an opportunity to question Hodge about the inconsistencies. Recognizing
the difficulty of putting ourselves in the position of the jury, we hold
that it probably would not have acquitted him. One of our sources of discomfort
with our decision is that although the defense was aware at trial of the
inconsistencies, it was not able to demonstrate their importance because
of an evidentiary ruling by the district court.8
If the newly discovered evidence had been available at trial, the district
court's ruling might very well have been different. In any event, the defense
would have had substantial additional documentary evidence upon which to
cross-examine Hodge, and would have had greater reason to pursue the inconsistencies
more vigorously than it did.
When all is said and done, however,
a few simple but very important facts remain. The casing introduced into
evidence had in fact been extracted from the Wichita AR-15. This point
was not disputed; although the defense had its own ballistics expert, it
offered no contrary evidence. Peltier raises general questions regarding
the handling and examination of the.223 casing and the Wichita AR-15, but
does not make specific allegations of tampering. There are only two alternatives,
however, to the government's contention that [F.2d 778] the.223
casing was ejected into the trunk of Coler's car when the Wichita AR-15
was fired at the agents. One alternative is that
the.223 casing was planted in the trunk of Coler's car either before its
discovery by investigating agents or by the agents who reported its discovery.
The other alternative is that a non-matching casing was originally found
in the trunk and sent to the FBI laboratory, only to be replaced by a matching
casing when the importance of a match with the Wichita AR-15 became evident.
We are not convinced that either alternative is likely. The discovery of
a.223 casing in the trunk of Coler's car was documented in a contemporaneous
report. That report listed dozens of other items that were found in Coler's
car on the same date. The detailed nature of that report makes it highly
unlikely that it was fabricated. Not only is there no direct evidence that
the.223 casing found in the trunk was replaced by another casing, the internal
operating procedures of the FBI with respect to the preservation of evidence
makes it unlikely that such replacement could occur without massive collusion.
We
recognize that there is evidence in this record of improper conduct on
the part of some FBI agents, but we are reluctant to impute even further
improprieties to them.
The AR-15.
We turn now to the question of whether
the jury might have reached another result had it been able to consider
the government's testimony with respect to the number of AR-15's on the
compound on June 26, 1975, in light of the newly-discovered evidence just
discussed. It was essential to the government's case that it prove Peltier
was in possession of the Wichita AR-15 on June 26th, and used that weapon
to kill Coler and Williams. The government recognizes this fact in its
brief.
As a starting point in analyzing what
the evidence produced at the hearing establishes one must first ascertain
what is ultimately at issue concerning the match between Exhibits 34A [the
Wichita AR-15] and 34B [the.223 casing found in the trunk of Coler's car].
What ultimately was proven by Special Agent Hodge's positive comparison
of the extractor marks? * * * His conclusion only establishes that Exhibit
34B at some point in time was loaded into and extracted from Exhibit 34A.
His conclusion does not establish directly that that
shell casing was fired by that weapon. It, likewise, does
not establish by itself any connection between either Exhibits 34A or 34B
and Leonard Peltier. * * * The match of the extractor marks between
that shell casing and an AR-15 found in a burned vehicle on the Kansas
Turnpike fairly conclusively established that point since there was no
indication that either agent ever previously had access to that weapon.
The inference which then arose, of course, was that since the agents received
their final wounds as a result of close range fire in the area of Special
Agent Coler's car, the shell casing had been ejected into the trunk as
a result of one of the final shots.
That inference standing alone, however,
proved nothing concerning Leonard Peltier. He was not in the vehicle which
exploded near Wichita and there was no direct evidence,
such as fingerprints, which made a connection between he and the weapon.
The only indirect connection between Peltier and the weapon was that it
was in the custody of his friends and associates. The connection
between Peltier and the Wichita AR-15, Exhibit 34A, rather, was established
by the trial witnesses. The trial witnesses unanimously testified that
there was only one AR-15 in the compound prior to the murders, that this
weapon was used exclusively by Leonard Peltier and was carried out by him
after the murders. The trial witnesses also testified unanimously that
there was only one weapon which was seen firing at the agents that day
which was capable of firing.223 ammunition and that this weapon was the
AR-15 being utilized by Leonard Peltier. * * * The necessary further inference,
therefore, was that Leonard Peltier's weapon was fired down in the area
where the two dead agents were found. While [F.2d 779] these inferences
do not necessarily establish that Leonard Peltier personally fired any
of the final killing shots, they do indicate very strongly that he was
down by the bodies when the shot was fired. These inferences were, of course,
strengthened by the trial testimony that Leonard Peltier was one of only
three individuals seen down by the bodies that day.
Appellee's Brief pp. 30-32.
We turn first to the question
of whether there was only one AR-15 on the compound on June 26.
The
answer to that question must be no. Hodge testified that among the
one hundred and thirty-seven.223 casings found on
the compound within a few days of the agents' deaths were fourteen that
could not be identified as having been fired from the Wichita AR-15. Seven
of these cartridges, Q100-Q105, and Q130 were found by special agent Hughes
in the green house area. These cartridges were the very ones that were
examined by Hodge by August 5, 1975, and were the subject of the October
2, and October 31, 1975, reports. The remaining seven, Q2513-2519, were
found in Tent City, and were the subject of Hodge's February 26th report.
Tr. at 3323-34.
Notwithstanding the obvious error in
the government's position, there are several reasons we have reservations
as to whether the newly-discovered evidence probably would have caused
the jury to reach a different result. First, the defendants knew at trial
that fourteen.223 casings found on the compound did not match the Wichita
AR-15. Hodge testified to that fact at trial. He even testified that he
didn't know whether the fourteen had been extracted from the same weapon.
The defendant, however, failed to emphasize this point in his closing argument.
Second, it is unlikely that the fourteen
casings were extracted from an AR-15 during the fire fight with agents
Coler and Williams. The green house and Tent City were physically located
such that it would have been very difficult, if not impossible, for anyone
to have fired at Coler and Williams from these points. Thus, it is more
likely that these casings were ejected from an AR-15 in the fire fight
that occurred after Coler and Williams were killed and other agents had
joined in the shooting.
Third, Norman Brown testified that
he saw Peltier firing a weapon from the treeline similar to the one introduced
into evidence: "Well* * he was laying down and he'd get up and shoot, and
then he'd lay back down and get up and shoot, and lay back down." Tr. at
1446. Michael Anderson testified that he saw Peltier at the agents' cars
and that Peltier was carrying a weapon similar to the one introduced in
evidence. Tr. at 788. Moreover, no witness testified that anyone other
than Peltier was seen firing an AR-15 at the agents' cars, or that anyone
other than Peltier was seen by the agents' cars with an AR-15.
In the light of the full record, the
jury might have given additional weight to the fact that there was more
than one AR-15 on the compound on June 26 had the inconsistencies in the
ballistic evidence introduced at trial been supplemented with the reports
and data discovered after trial. Moreover, under such circumstances it
might have given more serious consideration to the possibility that an
AR-15 other than the Wichita AR-15 was used in the murder of either Coler
or Williams,9
but we cannot say that it is reasonably probable that it would have been
sufficiently impressed by these possibilities to have reached a different
result at trial.
Conclusion.
There is a possibility
that the jury would have acquitted Leonard Peltier had the records and
data improperly withheld from the defense been available to him in order
to better exploit and reinforce the inconsistencies casting strong doubts
upon the [F.2d 780] government's case. Yet, we are bound
by the Bagley test requiring that we be convinced, from a review
of the entire record, that had the data and records withheld been made
available, the jury probably would have reached a different result.
We have not been so convinced.
Affirmed.
1 The prosecution made the following
statements in its closing argument:
We have submitted strong circumstantial
evidence which indicates that Leonard Peltier did in fact fire the fatal
shots; but you need not believe that he did. I think that he did, and I
think the evidence shows he did.
Tr. at 4974.
The evidence * * * indicates that Leonard
Peltier was not only the leader of this group, he started the fight, he
started the shootings and that he executed these two human beings at point
blank range.
Tr. at 4975-76.
Out of all the individuals who were
involved there was one individual who was most responsible, and I think
the evidence without any question proves and establishes beyond any doubt
that that was * * * Leonard Peltier.
Tr. at 4976.
Apparently Special Agent Williams was
killed first. He was struck in the face and hand by the bullet, as I have
demonstrated, probably begging for his life, and he was shot. The back
of his head was blown off by a high-powered rifle.
Leonard Peltier then turned, as the
evidence indicates, to Jack Coler lying on the ground helpless. He shoots
him in the top of the head. Apparently feeling that he hadn't done a good
enough job, he shoots him again through the jaw, and his face explodes.
Tr. at 4996.
The prosecution concluded its argument
with the following statement:
I think my argument can be summed up
in a very brief paragraph.
We have proved the cold-blooded, brutal
murder of two human beings. We have proved that beyond any question. We
have proved it was premeditated, planned in the sense that it was not a
spur of the moment activity. We have proved beyond a reasonable doubt that
Leonard Peltier was responsible for these senseless, brutal, cowardly murders.
We have proved that beyond any doubt. We have proved that he organized
and directed this camp, started the fight, fired at the agents again and
again from the treeline.
Had we proved nothing further, that
in itself would have been first degree murder; but in addition, we proved
that he went down to the bodies and executed these two young men at point-blank
range. Ladies and gentlemen, that's murder in the first degree. The United
States respectfully requests that you return a verdict of guilty on both
charges of this indictment.
Tr. at 5019.
2 Since the autopsies showed that three
point-blank shots were fired, the single casing establishes only an inference
that Peltier fired all three shots. The government argues that Peltier
and his accomplices found and carried off the other two casings from the
Wichita AR-15. We note that the evidence supports the view that there was
at least one other AR-15 on the compound on the day of the murders. See
infra at slip. op. at 14-15. If Peltier and his associates carried
away the casings from the Wichita AR-15 to prevent their use as evidence
it is just as logical to assume that they carried away casings from another
AR-15.
3 Hodge received the casing on July
24, 1975, and the Wichita AR-15 on September 12, 1975.
4 In the July 21, 1975 "airtel" accompanying
the shipment of evidence which included the.223 casing found in Coler's
trunk, the Rapid City FBI agency stated that "the cartridges should be
compared with weapons received, re: RESMURS, and with other weapons related
to RESMURS in an attempt to connect the cartridges with specific weapons."
Evidentiary hearing exhibit D-20. In a September 15, 1975, memorandum accompanying
evidence recovered on the Rosebud Reservation, the Minneapolis agency asked
the laboratory "to test fire enclosed weapons [including an AR-15] and
compare slug with slugs recovered from [unknown subject] crimes." Evidentiary
hearing exhibit D-24. In a September 20, 1975, teletype to the lab, the
Rapid City agency reported that it had information that Peltier had used
the AR-15 found on the Rosebud Reservation to kill the agents, and stated
that "the Bureau laboratory is requested to conduct all logical examinations
of the weapons submitted to them in referenced communications." Evidentiary
hearing exhibit D-14. In a September 27, 1975, teletype, the Rapid City
agency asked the laboratory to compare certain casings with the Wichita
AR-15. Evidentiary hearing exhibit D-32. On this same date, the Rapid City
agency sent another teletype requesting the laboratory to "make available
to Rapid City a supplemental and confirming report to include all results
of comparisons, examinations, tests, analyses, and restorations not previously
reported." Evidentiary hearing exhibit D-15. On October 2, 1975, a teletype
from Rapid City to the laboratory stated: "Laboratory requested to compare
all.223 casings with AR-15 rifle * * * located at Al Running's property
* * *." Evidentiary hearing exhibit 6.
5 In an October
2, 1975, teletype to Rapid City, the laboratory reported: "Recovered.223
caliber colt rifle received from SA Gammage, BATF, contains different firing
pin than that in rifle used at RESMURS scene." Evidentiary hearing exhibit
4. A November 24, 1975, teletype from the laboratory to the Portland and
Rapid City agencies reported that "cartridge cases fired in submitted weapons
in laboratory were compared with like caliber cartridge cases recovered
at RESMURS scene and it was concluded that these two rifles, in their present
conditions, could not have fired any of the recovered specimens." Evidentiary
hearing exhibit D-22.
6 Evidentiary hearing exhibit 13.
7 Evidentiary hearing exhibit D-14.
8 The district court's evidentiary
ruling clearly hampered the defense in its efforts to point out the inconsistencies
in the October 31, 1975, and February 10, 1976, lab reports. Although
both reports were admitted into evidence, the Court refused to allow defense
counsel to mention the dates of the reports or any inferences to be drawn
from the dates in his argument to the jury. See Tr. at 4701.
Since the primary impeachment value of the reports is that their timing
creates an inference that the FBI lab may have changed its conclusion concerning
the relation of the.223 casing found in Coler's trunk to the Wichita AR-15
only after it appreciated the alleged connection between the shell, the
Wichita AR-15 and the murders, the argument foreclosed by the ruling could
have been significant.
The district court based its ruling
upon Fed. R. Evid. 613(b). That rule prohibits admission of extrinsic evidence
of a prior inconsistent statement by a witness unless the witness has an
opportunity to explain or deny the inconsistent statement, and the party
opposing admission of the inconsistent statement is afforded an opportunity
to interrogate the witness concerning the statement. See Nebraska Public
Power District v. Borg-Warner Corp., 621 F.2d 282 (8th Cir. 1980).
Rule 613(b), unlike prior practice, does not require the proponent of the
inconsistent statement to direct the witness's attention to the inconsistency
and afford an opportunity for explanation. All that is required is that
the witness have an opportunity to explain. As Judge Weinstein states:
"The rule does not indicate that the party introducing evidence of the
inconsistent statement must afford the witness an opportunity to explain.
It merely indicates that the witness must be afforded that opportunity."
3 Weinstein and Berger, Weinstein's Evidence 613-24 (Bender 1986).
The record indicates that the defense
complied with the requirements of rule 613(b). While Hodge, the agent in
charge of preparing the lab reports, was testifying, defense counsel announced
his intention to introduce the October 31, 1975 lab report into evidence.
At this point, the prosecution knew of the inconsistency in the reports.
In fact, the inconsistency arose in the trial of Butler and Robideau the
preceding summer. Tr. at 4705. Moreover, the prosecutor even gave Hodge
an opportunity to explain the inconsistency during his redirect examination:
Q. Do you remember when it was approximately
that you began to examine that particular item along with other items in
the shipment of items with which it came to Washington?
A. Yes. It was about the end of 1975,
beginning of 1976; January, December, in that area.
Tr. at 3388.
Thus, not only was the prosecution
afforded ample opportunity to explain or deny the inconsistency, it did,
in fact, elicit testimony from Hodge seeking to show that the inconsistency
was a result of Hodge's failure to have examined all of the evience at
the time he wrote the October 31, 1975 report.
Reviewing the record we can discern
nothing in Fed. R. Evid. 613(b) that would serve as a basis for refusing
to allow the defense to mention the dates of the inconsistent reports or
to argue any inferences that could be drawn from these reports to the jury.
9 We note that
the defense did not, for reasons which are not apparent, stress in its
cross-examinations or closing argument that there was more than one AR-15
on the compound on June 26.
| Copyright
© 1999-2000 Jurisline.com, LLC. All Rights Reserved. |
