Federal Evidence Review

In trial for conspiracy to distribute cocaine or cocaine base, admission of a statement by a police officer that the defendant was involved in a separate drug-related traffic stop that occurred after the period of the charged conspiracy was erroneous under FRE 608(b) because it failed to "contradict the defendant's trial testimony"that he "never saw any drugs" during the period of the charged conspiracy, but the error was harmless, in United States v. Ramirez, 609 F.3d 495 (2d Cir. June 29, 2010) (Nos. 07-2912-cr(L), 08-6210-cr(CON))

In the case, co-defendant Rodriguez was charged with being "a major supplier of cocaine to a Danbury, Connecticut drug distribution network." He was convicted after a jury trial in a case in which the government charged that he played the role of a driver in a cocaine distribution conspiracy. The defendant "was arrested in Massachusetts and, according to the testimony of one of the arresting officers, confessed to his role in the conspiracy while being transported back to Connecticut for prosecution. At trial, the government also offered the testimony of three other co-conspirators who described Rodriguez's involvement with Adames, Luna, and Ramirez in regular cocaine transactions." Specifically, the government charged that he participated "in a drug distribution conspiracy involving the weekly transport of cocaine from Brooklyn, New York to Danbury, Connecticut. Co-conspirator José Adames ... led the trafficking operation" and "Rodriguez was alleged to be Adames's driver for many of the trips to Danbury, where the drugs were purchased for resale by Alex Luna, another co-conspirator." Ramirez, 609 F.3d at 497.

At trial, the defendant "testified in his own defense. He foreswore any knowing involvement in the narcotics conspiracy" and specifically denied confessing, as alleged by one of the arresting officers, who swore that the defendant had "confessed to his role in the conspiracy while being transported back to Connecticut for prosecution." Instead, the defendant "claimed that, although he had acted as Adames's driver over a period of years, he had no knowledge of any drug transactions. According to Rodriguez, he came to know Adames socially, through friends and family; when Rodriguez later lost his job, Adames began to ask Rodriguez to drive him places, including Danbury, to visit relatives. Rodriguez testified that he never saw or knew of any cocaine on these trips." Ramirez, 609 F.3d at 498.

In response the prosecutor attempted to "undermine Rodriguez's defense by, among other things, cross-examining him about his contact with drugs" during the period of the charged conspiracy. "Relying on Rodriguez's denial of any involvement with cocaine on both direct and cross-examination, the government ... sought to introduce the rebuttal testimony of police officer Waldo Cuba and [co-conspirator] Alex Luna's girlfriend, Maria Robles. In particular, Officer Cuba reported seeing Rodriguez handling cocaine during an unrelated drug stop shortly after the conspiracy had ended. Robles, for her part, testified about Rodriguez's involvement with drug trafficking during the indicted period. The trial court acknowledged that this testimony had the potential to be extremely damaging; nonetheless, over Rodriguez's objections, it admitted the testimony of both witnesses." Ramirez, 609 F.3d at 498.

The second circuit found that admission of officer Cuba's testimony was an error, while that of Robles was not erroneous. The Cuba testimony was erroneous. Indeed, the prosecution:

concedes as much, acknowledging that the testimony related to an entirely collateral matter and did not serve as proof of the charged offense. Indeed, because Rodriguez's March 30, 2005 arrest occurred after the end of the indicted conspiracy, Officer Cuba's rebuttal testimony would normally have been precluded by Federal Rule of Evidence 608(b), which prohibits extrinsic evidence of exactly this kind. Nonetheless, the government argues that this evidence was admissible for the purpose of “impeachment by contradiction,” which operates as a limited exception to Rule 608(b).... More precisely, this doctrine provides that when a witness puts certain facts at issue in his testimony, the government may seek to rebut those facts, including by resorting to extrinsic evidence if necessary. According to the government, the point of this exception is that a defendant may not invoke the Federal Rules of Evidence in order to shield his perjury from contradiction.

Ramirez, 609 F.3d at 499 (citing United States v. Beverly, 5 F.3d 633, 639-40 (2d Cir. 1993) (“Where a defendant testifies on direct about a specific fact, the prosecution is entitled to prove ... that he lied as to that fact” through use of extrinsic evidence)).

The Second Circuit examined the record in the case, which it found flatly failed to support the prosecution's argument that the Cuba testimony was admissible:

The government contends that Rodriguez's statements on both direct and cross-examination triggered the exception, but the trial record simply does not bear out this rationale. ...

By highlighting Rodriguez's unrelated stop while in possession of cocaine, Officer Cuba's rebuttal testimony was purportedly offered to impeach Rodriguez's statements that he had never seen or handled drugs. Yet Rodriguez never gave the testimony that the government ascribes to him. The transcript is pellucid that on both direct and cross-examination, Rodriguez was responding to a series of questions about his work for Adames and the time-period covered by the alleged conspiracy.

Ramirez, 609 F.3d at 500.

The circuit identified two instances which it characterized as demonstrating the deficiencies of the government's contentions. First, the cirucit identified the testimony of the defendant "at the end of a lengthy colloquy focused on Adames's activities in which the defendant responded to a question on direct from defense counsel:

Def. Counsel:

During the time that you were just describing, did you see any deliveries of drugs of any kind?

Rodriguez:

No, I never see no drugs.

Ramirez, 609 F.3d at 500 (citation omitted and emphasis added). Because the government "pins its rebuttal claim on this testimony," the circuit's inability to find in it a statement that the Cuba testimony necessarily contradicted was fatal. Nor did "the defendant ma[k]e ... contentions in responding to the prosecution's cross-examination questions that the Cuba testimony necessarily contradicted. Asked about his activities during the period of the charged conspiracy, the circuit noted the following exchange:

Gov't:

Mr. Rodriguez, you're claiming you never saw any drugs in this whole time period, correct?

Rodriguez:

No, never.

Gov't:

Except for marijuana. You saw marijuana, right?

Rodriguez:

Yes.

Gov't:

Okay, but you never saw cocaine?

Rodriguez:

No.

Ramirez, 609 F.3d at 500.

It is abundantly clear, noted the circuit, that looked at in "context that Rodriguez was not issuing a blanket denial of ever having seen drugs." Because the government could "point[] to no instances where Rodriguez forswore, as a universal matter, ever having seen drugs of any kind," the admission of the Cuba testimony was an error. Indeed, after further discussion of the defendant's testimony, the circuit concluded that "none of these statements show that Rodriguez staked his credibility before the jury on any expansive assertion about lifelong avoidance of drugs. Indeed, the government inaccurately characterizes the trial record when it suggests as much." Ramirez, 609 F.3d at 501.

The same was not true of the Robles testimony. Accoridng to the circuit:

[W]e see no basis for admitting Officer Cuba's testimony under the “impeachment by contradiction” doctrine and conclude that it should have been barred by Federal Rule of Evidence 608(b). On the other hand, we sustain the district court's admission of Maria Robles's testimony. That testimony-describing Rodriguez's transport and delivery of cocaine-related to the charged conspiracy, and contradicted Rodriguez's statement on direct examination that he had no contact with drugs during the relevant period. We cannot say that the admission of this evidence was an abuse of discretion.

Ramirez, 609 F.3d at 501.

Unfortunately for the defendant, however, the error in admitting the Cuba testimony was harmless. The circuit noted that the evidence properly admitted against the defendant was sufficiently conclusive, including that several of the alleged co-conspirators testified about the defendant having a knowing involvement in the cocaine trafficking of the conspiracy. In addition, the court received testimony from a special agent to the effect that the defendant confessed to his involvement in the charged drug trafficking operation and about how he had become aware of Adames's cocaine trafficking, that the defendant had met supplier for the conspiracy and had driven him on making frequent deliveries.

In finding the record deficient support for the admission of the Cuba testimony, the reader of the case can almost hear the circuit issue a sigh of relief. "It is an open question in our Court," commented the circuit in Ramirez, "whether the government can present extrinsic evidence to impeach by contradiction a statement made by the defendant on cross-examination, where such evidence would otherwise be barred by the Federal Rules of Evidence. We need not resolve this question because, as a factual matter, Officer Cuba did not impeach either Rodriguez's testimony on direct examination or his responses on cross-examination." Ramirez, 609 F.3d at 500.