Seventh Circuit Disagreement On Recall Of Witness For Rebuttal Purposes And Harmless Error

In a drug conspiracy trial, while unusual, there was no abuse of discretion, after the defense had presented a witness and the government cross-examined, for the trial court to allow the government to recall the defense witness during its rebuttal case to show interest and bias to try to obtain a lower sentence in a plea deal for her incarcerated co-defendant husband; while under FRE 611, a party may not usually "call a witness for the sole purpose of impeaching him,” this is subject to the rule's condition that the court should “exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to ... make the interrogation and presentation effective for the ascertainment of the truth”; panel also disagrees whether other error was harmless error in a "close" case, in United States v. Vasquez, 635 F. 3d 889 (7th Cir. March 14, 2011) (No. 09-4056)

The interplay of the various Federal Rules of Evidence makes for some strange cases. Recently, a Seventh Circuit panel split in considering the myriad of various evidence rules applicable to witness impeachment, whether the impeachment evidence was unfairly prejudicial, and even whether the proffered evidence was hearsay. Both the majority and the dissent seemed to suggest that the other had not looked at the basics of what was happening in the case. While they agreed that evidentiary error occurred, they disagreed whether it was harmless.

In the case, defendant Vasquez was convicted of conspiring to possess cocaine with intent to distribute. He had been arrested when he fled from the scene of a controlled drug purchase made from a cooperating witness Diaz. Among the grounds the defendant pursued on appeal was that the trial court deprived him of a meaningful opportunity to cross-examine the wife of a co-defendant, violating his right to confrontation. On this contention, the Seventh Circuit panel split.

At trial, the court allowed the government to recall a co-defendant's wife Marina, who had initially testified for the defendant. The only problem was that the government had just finished its cross-examination of the witness and now it sought to present a rebuttal case. According to the circuit majority, the "big picture" of what was going on at this trial was that two co-defendants (Perez and Cruz) had pled guilty. In contrast Defendant:

Vasquez ... elected to go to trial. Instead of relying on a generalized defense-that the government failed to prove his guilt beyond a reasonable doubt-Vasquez elected to offer something in the nature of an actual affirmative 'defense' on the merits. It would be that he was only an innocent bystander who just happened to be in the wrong place at the wrong time. In the real world of criminal court trials, that sort of 'defense' is difficult to sell. And it's especially hard to sell when a defendant, like Vasquez here, elects not to take the stand and tell the jury his version of how he just happened to be where the drug deal was about to go down. So how does he get this 'defense' before the jury? Enter Marina. She was his only hope, and a slim one at that.

When called by Vasquez as a witness, Marina said that her husband [Vasquez], earlier in the day, asked her to pick him up at the place where the drug deal died. But later, she asked Vasquez to go in her place. He agreed, and he took the Bonneville [car, in which the defendant Vasquez appeared at the drug transaction], rather than his own car, only because it was more convenient to do so. So if believed, the jury might think that Vasquez had no idea a drug deal was in play and that he just showed up by pure happenstance with a car full of cash stashed away in a hidden compartment. [The cash - some $23,000 hidden in a compartment on the passenger's side of the Bonneville.] The if is a mighty big if, especially when one considers that the jury knew that Vasquez had participated in a remarkably similar drug deal involving cocaine, Perez, some $15,000 in cash, and a car in 2002.
Vasquez, 635 F.3d at 896.

After the witness's testimony, the government asked the trial court to allow it to introduce evidence that could impeach the witness for bias. The government had recordings of a telephone discussion between Marina and her the lawyer of her husband, co-defendant Perez, as well as between Marina and the defendant's lawyer. The government contended that this evidence it would introduce went "directly to the truthfulness and accuracy of Marina's testimony and raised potential conflict-of-interest issues." Vasquez, 635 F.3d at 896.

The court permitted the government to recall Marina, whom it had just cross-examined, as a rebuttal witness when the trial resumed after the weekend. In addition to her testimony, the government introduced four recorded conversations between the witness and husband co-defendant Perez. As noted by the circuit, in the government's rebuttal examination, the witness "acknowledged that she had met with Vasquez's lawyer several times before August 20, 2009 (the only meeting she mentioned in her direct testimony). She also admitted that she understood that Vasquez's lawyer could get [her husband, co-defendant] Perez a lower sentence and that the lawyer wanted Perez to enter a plea and avoid implicating Vasquez." The jury also heard that Marina told her husband that Vasquez's lawyer also said “everybody is going to lose” if they go to trial. Vasquez, 635 F.3d at 897.

The circuit agreed with the defendant that what the court permitted was unusual. But it was not beyond the trial judge's discretion. According to the circuit:

Vasquez argues that the judge abused his discretion in allowing the government to recall Marina during its rebuttal case solely for the purpose of impeachment. He is correct that "a party may not call a witness for the sole purpose of impeaching him." But Rule 611 gives the district court authority to "exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to ... make the interrogation and presentation effective for the ascertainment of the truth." Fed R. Evid. 611. Furthermore, the judge has "broad discretion to determine whether the government's evidence [falls] within the proper scope of rebuttal.”
Vasquez, 635 F.3d at 897 (citing United States v. Giles, 246 F.3d 966, 974 (7th Cir. 2001) ("[I]t seems clear here that the true defense reason (and we can understand the desire to do it) for wanting to put Christopher on the stand was to expose his warts to the jury and float the inference that the FBI should not play footsie with a sleazeball. But because it's clear that a party may not call a witness for the sole purpose of impeaching him, United States v. Webster, 734 F.2d 1191 (7th Cir. 1984), and further because no offer of proof was presented as to the substance of the testimony Giles believed in good faith Christopher would give, we again can find no clear abuse of the trial judge's discretion to prevent the defense from putting Christopher on the stand."); United States v. Liefer, 778 F.2d 1236, 1249 n. 11 (7th Cir. 1985) (no error when court allowed government to recall two defense witnesses as government rebuttal witnesses).

The circuit majority characterized the recording of the telephone conversations of the witness and her husband as in the nature of new evidence, not as an issue covered during the witness's testimony for the defense and the government's cross-examination of her then. The circuit agreed and disagreed with the defendant on the propriety of this action. The proffered recordings were extrinsic evidence, which according to the circuit, was

admissible to impeach th[e] witness and is never a collateral issue. United States v. Lindemann, 85 F.3d 1232, 1243 (7th Cir. 1996). In the recordings, Marina says she talked with Vasquez's counsel several times about the future of both Vasquez and her husband, and that she believed counsel could help her husband get a lower sentence. The government offered the recordings to prove that Marina had an incentive to lie-to get her husband a lower sentence. Moreover, when the government questioned Marina about the calls, her answer supported the government's theory . . . . Accordingly, Marina's testimony and the MCC recordings were admissible as extrinsic evidence to show Marina's bias and interest in trying to get her husband a lower sentence.
Vasquez, 635 F.3d at 897.

On the other hand, the circuit agreed with the defendant that the recorded conversations were hearsay, but they were none the less admissible as a prior inconsistent statement. But the action of the court to allow the government to recall the witness was appropriate, concluded the circuit majority. "Here, the government recalled Marina after it discovered the recorded conversations because it believed that they proved she was biased. Vasquez argues that the judge abused his discretion in allowing the government to recall Marina because it had an opportunity to cross-examine her previously. But there is no authority for the odd proposition that allowing a party to recall a witness based on new information is an abuse of discretion. The government sought to introduce evidence that one of Vasquez's main witnesses was biased. The judge did not abuse his discretion in allowing the government to recall Marina for this purpose." Vasquez, 635 F.3d at 897.

The majority and dissent agreed that the admission of the tapes was error. They parted ways on whether the admission was harmless error. The majority acknowledged the issue was "close". The majority applied the following standard:

“The test for harmless error is whether, in the mind of the average juror, the prosecution’s case would have been ‘significantly less persuasive’ had the improper evidence been excluded.” United States v. Emerson, 501 F.3d 804, 813 (7th Cir. 2007). On appeal, the burden lies on the government to prove that a reasonable jury would have reached the same verdict without the challenged evidence. United States v. Williams, 493 F.3d 763, 766 (7th Cir. 2007). Looking at the evidence as a whole, although the issue is close, we believe that the error was harmless.
Vasquez, 635 F.3d at 898.


Circuit Judge Hamilton filed a dissent. Under his application of the harmless error standard, reversal was warranted. The judge described the standard as follows:

My colleagues conclude, however, that the erroneous treatment of the MCC tapes evidence was harmless because the government had so much other evidence against Vasquez. I respectfully disagree. The issue is whether the reviewing court is “convinced that the jury would have convicted even absent the error.” United States v. Simmons, 599 F.3d 777, 780 (7th Cir. 2010) (holding that arguable errors in admitting evidence were harmless in light of defendant’s own admissions about his involvement in crime). The standard calls upon an appellate court not to “become in effect a second jury,” see Neder v. United States, 527 U.S. 1, 19 (1999), but to determine “whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.’” Id. at 15, quoting Chapman v. California, 386 U.S. 18, 24 (1967). Accord, e.g., United States v. McGowan, 590 F.3d 446, 456 n.1 (7th Cir. 2009); United States v. Williams, 493 F.3d 763, 766 (7th Cir. 2007). The standard is not easy to satisfy....
Vasquez, 635 F.3d at 898.

In arguing that the conviction should be reversed and remanded for a new trial, the judge painted a different "big picture" of the case:

Marina Perez's second visit to the witness stand in the government's rebuttal case, to explore a phantom inconsistency and to admit erroneously the MCC tapes, caused unfair prejudice to the defendant. The jury heard evidence that the defendant's lawyer had advised him to plead guilty and had said that if the three defendants went to trial, "everyone is going to lose." That evidence had no genuine probative value, and it is difficult to imagine more prejudicial evidence. Even if a limiting instruction telling the jury that such damaging evidence should not be considered for the truth of the matters asserted could have been effective, which I doubt, no instruction was given. The district court admitted the rebuttal evidence as proof of the truth of the matters asserted in the taped MCC telephone calls, which my colleagues and I all agree was an error.

The whole episode made for a fairly dramatic conclusion for the trial. The defense case concluded on a Thursday, and the trial recessed for the weekend. On Sunday, the government filed an emergency motion for a continuance to prepare a rebuttal case using the MCC tapes of Marina Perez's conversations with her husband. On Monday, the court allowed the delay and sent the jury home. Mrs. Perez was called to testify again on Tuesday. In her testimony, she admitted the key legitimate point that the government was entitled to make: that she expected or at least hoped that Vasquez's lawyer could help her husband receive a lighter sentence. But the government's rebuttal did not stop there. After Mrs. Perez testified, the government played the tapes through another witness. On Wednesday, after further drama, the case was given to the jury. Mrs. Perez's testimony and the government's attempted impeachment figured prominently in the government's closing argument to the jury. Then, after the jury had heard that Vasquez's attorney had told him to take a plea and that he was going to lose at trial, that same attorney rose, with his credibility destroyed, to give closing argument on Vasquez's behalf.
Vasquez, 635 F.3d at 899 (footnote omitted).


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