Necessity Requirement To Trigger The FRE 106 Rule of Completeness

In possession of cocaine with intent to distribute prosecution, the trial court erred under the FRE 106 "rule of completeness" in admitting portions of report of a witness statement provided to investigators, which was essentially used to "rehabilitate" the witness and was "unnecessary" to provide the jury a complete view of the witness's statement and did not "fit within the rule of completeness"; however, error was harmless based on other evidence, in United States v. Yarrington, __ F.3d __ (7th Cir. May 6, 2011) (No. 10–2740)

The FRE 106 requires that when a party has introduced part of a written or recorded statement, the opposing party can require the introduction of "any other part or any other writing or recorded statement which ought in fairness" be considered with the introduced statement. Even without the authority of FRE 106, the Supreme Court has suggested that a rule of completeness could be inferred from FRE 401 (Definition of "Relevant Evidence") and FRE 402 (Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible).

In Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988), the Court considered a suit in which a witness was questioned by a party about the contents of a letter, but that party did not actually introduce the letter. The Supreme Court noted that the jury "was given a distorted and prejudicial impression" of the letter as the "trial court restricted cross-examination concerning the letter and the jury was denied "a more complete picture of" the communication. Beech Aircraft Corp., 488 U.S. at 170. Because the completeness-information was relevant under FRE 401, it was unnecessary to decide whether FRE 106, codifying the rule of completeness, applied. The Supreme Court found that the opposing party could cross-examine the witness regarding other parts of the letter, because "when one party has made use of a document, such that misunderstanding or distortion can be averted only through presentation of another portion, the material required for completeness is ipso facto relevant and therefore admissible under Rules 401 and 402." Beech Aircraft Corp., 488 U.S. at 172. This requirement suggests that application of the Rule of Completeness is used when necessary to prevent misunderstanding -- a proposition similarly discerned by the Seventh Circuit in a recent case on a trial court's misapplication of the rule of completeness.

In the case, defendant Yarrington was charged with possession of cocaine with intent to distribute, which necessitated the prosecution show that the defendant had an amount of cocaine consistent with distribution rather than personal use. As part of his defense, counsel attempted to create doubt about the testimony of one of the witnesses against the defendant. In one session with agents, the witness described another person (Wallace) as his exclusive drug source, and at some point, stated that the defendant soon became his source of the drug. Defense counsel suggested that the witness had provided mutually inconsistent stories about the defendant's activities. To clarify that the witness was describing his purchasing practices during different periods, the prosecution called the agent to explain that the witness had reported that "during the early period of his relationship with Wallace, he purchased cocaine only from Wallace, and in the later period, he began purchasing cocaine from [defendant] Yarrington." Yarrington, __ F.3d at __.

After the agent had been cross-examined by the defendant, the prosecution moved the admission of portions of the agent's report of interview, arguing that the report was "relevant because defense counsel's questioning implied that certain statements [as to purchasing from the defendant] were not in the report. The government referred to the rule of completeness." Yarrington, __ F.3d at __. Initially, the trial judge reserved ruling and allowed the parties to question the agent further. In asking the agent about the about the sequence of statements from the cooperating witness, the prosecution was able to bring out the time sequence of the statements referenced by the defense:

[T]he government asked [the] Agent ... whether his September 8 report started in one period and ended in another, in chronological order. He said, “yes.” The government then asked, “In which period is the statement that [dealer] Jeremy Wallace was the only person that [cooperating witness] Summerlin purchased from?” The agent responded, “That statement is made in paragraph 3 of 19 paragraphs.” At this point, citing awkwardness and an inability to otherwise show what was or was not in the report, the government asked that Agent Rollins be allowed to read portions of the report."
Yarrington, __ F.3d at __.

The trial court had the agent read four paragraphs from the report to the jury and the defendant objected. The "relevant" parts of the paragraphs read to the jury indicated:

Paragraph 3. Approximately one year ago WALLACE approached SUMMERLIN about purchasing cocaine from him (WALLACE).... According to SUMMERLIN, WALLACE is the only person that he has purchased cocaine from.

Paragraph 4. SUMMERLIN initially started purchasing half ounces of cocaine from WALLACE....

Paragraph 5. ... SUMMERLIN estimated that he purchased half ounce of cocaine once a week for approximately three to four months from WALLACE.

Paragraph 6. At that point in time, SUMMERLIN began purchasing two ounces of cocaine per week. In addition, WALLACE brought a subject he identified as “Thomas” to SUMMERLIN'S residence.... SUMMERLIN subsequently identified a photograph of Thomas A. YARRINGTON ... as “Thomas.”

Paragraph 7. It was at that time he started purchasing two ounces of cocaine per week that SUMMERLIN began making the purchase of cocaine directly from YARRINGTON.
Yarrington, __ F.3d at __.

The trial court did not admit the report as an exhibit, but gave a limiting instruction after the agent read the five paragraphs of the report to the jury:

Ladies and gentlemen, those portions of Mr. Rollins' report were read to you for the purpose of showing what Mr. Rollins recorded in his report concerning his interview with Mr. Summerlin. The statements in the report are not offered to prove the truth of those statements, but simply to prove what was reported by this witness of his interview with Mr. Sum-merlin. Since there's been some focus on what was in that report I have allowed this portion of the report to be read to you.
Yarrington, __ F.3d at __.

The Seventh Circuit tended to agree with the defendant that the FRE 106 doctrine of completeness did not apply. It dismissed the prosecution's argument that the defense "took portions of the report out of context, and the court allowed the jury to hear [cooperating witness's] reported statements in proper context. It cites the doctrine of completeness." The circuit disposed of the issue by emphasizing that FRE 106 was a device for adding context, not for dramatizing a point already made. Its reading of the report, suggested the circuit, served more a function of rehabilitating tbe cooperating witness than in adding anything new to what had already been presented to the jury:

The doctrine of completeness, codified in Federal Rule of Evidence 106, is applied to oral statements. “Under this doctrine, a complete statement is required to be read or heard when ‘it is necessary to (1) explain the admitted portion, (2) place the admitted portion in context, (3) avoid misleading the trier of fact, or (4) insure a fair and impartial understanding.’ “ The government argues that defense counsel used one sentence out of context from the September 8 statement to claim that Wallace was the only person from whom Summerlin reported purchasing cocaine. The government asserts that the report clarifies that Summerlin informed Agent Rollins that he bought cocaine from both Wallace and Yarrington.
Yarrington, __ F.3d at __ (citing United States v. Lewis, _ F.3d _, at *9–10 (7th Cir. Apr. 6, 2011) (Nos. 09–3954, 09–3961 & 10–1204) (quoting United States v. Sweiss, 814 F.2d 1208, 1211–12 (7th Cir. 1987)).

The circuit's view of the record was decidedly different than the government's:

The reading of the portions of the report does not seem to fit within the rule of completeness. The jury had already heard that Summerlin stated during his September 8 interview with Agent Rollins that he purchased cocaine from both Wallace and Yarrington. Agent Rollins had testified that in that interview, Summerlin said that during the early part of his relationship with Wallace, he purchased cocaine only from Wallace, but in the later part of the relationship, he purchased from Wallace and Yarrington. Although Summerlin's testimony may have been confusing with respect to the time periods in which he purchased cocaine from Wallace and Yarrington, the reading of portions of the report was unnecessary to provide the jury with a complete view of Summerlin's statements in the September 8 interview. The reading of portions of the report likely served the purpose of rehabilitating Summerlin.
Yarrington, __ F.3d at __ (emphasis added).

Despite the error in applying FRE 106, the circuit concluded in light of the other evidence appropriately admitted, that the prosecution had shown that the error was harmless.


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Federal Rules of Evidence