Federal Evidence Review

In Hobbs Act bribery and conspiracy prosecution, the prosecutor's remarks about a cooperating co-conspirator witnesses' prior consistent statements was not erroroneous because the defendant's opening statement challenged the witness's credibility; any error was harmless as the prosecutor's remarks did nothing more than predict what would soon come out properly in the course of witness examination by the defendant, and there was "considerable evidence" of the defendants' guilt, in United States v. Wells, 623 F.3d 332 (6th Cir. Oct. 12, 2010) (No. 09-3276)

What happens under the FRE when a party attempts to show a prior consistent statement of a witness even before the opposing side has had an opportunity to impeach the witness? In a recent case, the Sixth Circuit examined a prosecutor's opening argument, which referred to a prior consistent statement by the cooperating witness before that witness's credibility had been challenged by the defendant in court. In doing so, the circuit pointed out that the weight of authority, while considering this a violation of FRE 801(d)(1)(B), found no error when the evidence was referred to as part of argument and when the defendant was unable to show any prejudice arising from the violation.

In the case, defendant Wells, a “Water Pipe Repair Supervisor” for the Cleveland Water Department. He was charged with soliciting and accepting about $40,000 in bribes. In the scheme, the defendant would direct legitimate city work to Noce, who would inflate the cost of the work and pass the excess charges on to the defendant as bribes. "Defendant and Noce would meet weekly to discuss reconciling the Department's 'job cards' with Noce's records and invoices," noted the circuit. It was one of Defendant's job duties to ensure that the work performed by contractors matched what was charged by them. Gates was the defendant's supervisor. According to Gates, he eventually became suspicious of some of the items being charged by Noce, and he confronted Wells. Wells suggested Gates join the bribery scheme instead. The defendant was convicted and appealed contending, in part, that the mention by the prosecutor during her opening statement and on direct examination, cooperating coconspirator Noce's and Insana's prior consistent statements to the FBI, was prejudicial admission of hearsay evidence.

The Sixth Circuit affirmed the defendant's conviction. It remained unpersuaded by the defendant's evidentary argument. Essentially the defendant argued that the coonspirator statements that were referenced by the prosecutor were not admissible since "prior consistent statements are allowed only 'to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.'” Wells, __ F.3d at __ (quoting FRE 801(d)(1)(B)). According to the defendant, because he had "not yet challenged the testimony on cross when the prosecutor mentioned the statements in her opening statement and when evidence of the statements was introduced on direct examination, Defendant argues that it was improper to mention them."

The circuit agreed with this argument, noting that it was "well supported" by a number of circuits, including:

• Fourth Circuit: United States v. Bolick, 917 F.2d 135, 140 (4th Cir. 1990) (In a drug conspiracy case, since the impeachment of the witness "had occurred first, the district court could have simply instructed the jury to accept Agent Ramsey's testimony as rehabilitation ... and not as substantive evidence.," noting that...." It seems excessive to ... condition registration in his mind of each of the declarations on whether the declarant ultimately so testified and whether defense counsel subsequently impeached."If the impeachment had occurred first, the district court could have simply instructed the jury to accept Agent Ramsey's testimony as rehabilitation of the declarants' testimony and not as substantive evidence. Instead, the district court had to tell the jurors to wait until the declarants testified before deciding what to do with the declarations. It seems excessive ....")
• Fifth Circuit: United States v. Stone, 472 F.2d 909, 914 (5th Cir. 1973) ("In opening statement prosecutor ... Once the confession was found to be voluntarily made and received in evidence the effect of the prosecutor's breach of propriety was dissipated.")
• Sixth Circuit: United States v. Smith, 746 F.2d 1183, 1185 (6th Cir. 1984) (" [A] witness's prior consistent statement can be used 'to rebut an express or implied charge against him of recent fabrication or improper influence or motive.' Accordingly, several courts have said that it is proper, when defense counsel argues that a witness has fabricated his testimony in exchange for a favorable plea agreement from the government, to admit a prior consistent statement of the witness made before the agreement was negotiated. However, in order for this exception to apply, it is essential that the consistent statement be admitted to rebut a charge of improper motive. In our case, the statement was introduced before the witness making it had even taken the stand. Under these circumstances, the prior-consistent-statement exception simply cannot apply.")
• Seventh Circuit: United States v. Simmons, 567 F.2d 314, 321-22 (7th Cir. 1977) ("[W]hile the Government's opening remark may have played some role in defendant's decision on cross-examination to inquire as to Pastore's motive for implicating defendant and suggesting it was falsified.... out of Pastore's desire to terminate the questioning and be taken to the hospital for a drug treatment, it was a tactical decision made by the defendant by which he assumed the risk of the Government's rebuttal. The Government was then free, under Rule 801(d)(1)(B) of the Federal Rules of Evidence, to rebut the suggested explanation by using the prior consistent statements made by Pastore shortly after his arrest, and did so without objection by the defendant. What had first seemed to be inadmissible when mentioned during the Government's opening statement, thus later became admissible. No prejudice, therefore, resulted to the defendant.")
• Eighth Circuit: United States v. Hernandez, 779 F.2d 456, 459 (8th Cir. 1985) ("By prematurely calling Adams' pre-trial statements to the attention of the jury, the prosecutor created the danger of a mistrial and injected into the case an issue for appellate review that, depending upon the appellate court's assessment of the prejudicial effect of the prosecutor's improper remarks, might result in the reversal of an otherwise proper conviction. We admonish the Assistant United States Attorney that he must not allow his 'zeal to out run discretion.'")

The Sixth Circuit agreed with the defendant that FRE 801(d)(1)(B) "allows prior consistent statements only to 'rebut' a charge of improper motive and influence, and recent fabrication." As explained by the circuit:

The prosecutor's remarks in her opening statement concerning the consistent pretrial statements made by Noce and Insana were risky if not improper. Although it was reasonable to expect that the defendant would challenge the credibility of the witnesses based on their motive to secure a favorable plea bargain, the admissibility of the prior statements still hinged on whether such an attack was actually made. It is conceivable, for example, that a defendant would refrain from making this type of credibility attack for the very purpose of preventing the admissibility of a prior consistent statement. It is undoubtedly tempting, but generally unwise, for a prosecutor to try to predict the strategy opposing counsel will adopt, and then to try to blunt the strategy's impact. By prematurely calling attention to prior consistent statements in the opening statement, a prosecutor creates the chance of mistrial and an issue for appeal."

Nonetheless, any error was harmless. The circuit noted that prosecutor almost immediately amended her statement "by adding that her opinion did not matter, showing prosecutor's inadvertence in making statement, court gave curative instruction so as to minimize chance that statement would mislead jury, and there was sufficient other evidence of defendant's guilt." Wells, 623 F.3d at 346.