Applying FRE 106 Rule of Completeness When Trial Testimony Is “Tantamount” To A Recording

In drug prosecution, transcript or recording of agent’s interview with the defendant is not covered by the FRE 106 Rule of Completeness when a witness’s testimony is drawn from memory and no attempt made to introduce the recording or transcript, nor quote to, or read directly from the interview, and the trial court allowed counsel to cross-examine the witness to probe the conduct of the recorded interview, in United States v. Garcia, 530 F.3d 348 (5th Cir. June 5, 2008) (No. 07-50455)

FRE 106 provides that when a party introduces a writing or a recorded statement, the opponent may “require the introduction at that time of any other part” of the writing or recording “which ought in fairness be considered contemporaneously with it.” The Fifth Circuit has considered an interesting twist on FRE 106. Does it include an obligation to provide a full recording or transcript when a witness makes a reference to a writing during testimony? The Fifth Circuit noted this matter in a 2008 case, but left the issue open because, under the circumstances in the case, FRE 106 did not apply. The defendant who sought application of FRE 106 did not show that the material that would be admitted would qualify, explain or provide context to the portion of the writing that the witness testified about.

In the case, defendant Garcia was arrested as he tried to cross the U.S.-Mexico border in a truck. Agents found the vehicle was loaded with fifty-five bundles of marijuana and one bundle of cocaine secreted in its framework. After discovery of the drugs, agents interviewed the defendant on tape. At trial, the arresting agent testified about that interview with the defendant. The prosecution made no effort to introduce the transcript of the agent’s conversation with the defendant nor did the prosecutor quote from or read any part of the transcript into the record.

The recording did come up at the trial. In testifying about his recorded interview with the defendant, the agent was allowed to refresh his recollection about the interview by silently reading the transcript. After the agent’s testimony about the interview, the defendant moved to have the entire transcript of the interview introduced into evidence. The prosecutor objected, and the trial court declined to admit the transcript. The defendant was convicted and he appealed contending that the failure to introduce the entire transcript violated FRE 106 and the common law Rule of Completeness.

The Fifth Circuit affirmed the defendant's conviction and noted that the case raised an issue “[w]e have encountered, but not decided” – whether FRE 106 applies to a witness’s testimony at trial, that is “tantamount” to introducing a transcript or recording of an interrogation. Garcia, 530 F.3d at 351 (citing United States v. Branch, 91 F.3d 699, 727 (5th Cir. 1996) (declining to apply FRE 106 in case involving a fight upon search and arrest of defendant because even if the witness’s testimony about exculpatory statements the defendant made to the witness and included in his report was within the rule of completeness, the defendant did not show how the excluded parts of his statement to the witness qualified or explained or provided context to the portion that the witness testified about)).

The circuit declined to apply the Eleventh Circuit's “standard” for the application of FRE 106 to trial testimony. That circuit noted that when testimony was “tantamount” to the recording or transcription, it would trigger the requirement to admit the writing or recording under FRE 106. The Fifth Circuit found the “tantamount standard” inapplicable in Garcia because the case “Agent Ayoub testified from memory as to a conversation. The jury did not hear or read quotations allegedly out of context that were tape recorded or transcribed. They heard Agent Ayoub testify as to his memory of the conversation.” Garcia, 530 F.3d at 353. This made all the difference in the application of FRE 106 because “[a] recording played or a document read in isolation is not subject to cross-examination. But an adversary can attack a live witness's credibility, confront the witness with previous inconsistent statements, or demonstrate bias or poor memory.”

In reaching this conclusion, the circuit discussed the operation and purpose of FRE 106 which:

seeks to relieve this tactical disadvantage by permitting an opposing party to combat an unquestioned “cold transcript” at the moment of its introduction by entering into evidence the remainder. If courts were to ignore this distinction, then any time a party elicited testimony from a witness regarding events also described in writing, the opposing party could attempt, not merely to impeach the witness on cross-examination, but to introduce contemporaneously through Rule 106 that document if the witness's statements did not perfectly match the written out-of-court description. Such a result is particularly troubling since it remains unsettled whether Rule 106 trumps other evidentiary rules and makes the inadmissible admissible. In a similar case, United States v. Ramirez-Perez, [166 F.3d 1106, 1113 (11th Cir. 1999) (defendant’s statement during interrogation was later reduced to writing but at his trial the investigating agent testified as to the oral statement and the court declined to allow the defendant to introduce the written statement under FRE 106 because the defendant did not show how the full statement would qualify or explain or provide context to the portion that the witness testified about))] the Eleventh Circuit drew this distinction and declined to extend its “tantamount” standard. In that case, the defendant gave a statement during interrogation that was later reduced to writing. At trial, a Georgia Bureau of Investigation agent testified as to the oral statement. The defendant sought to introduce the written statement under Rule 106, arguing in part that the agent's testimony was “tantamount” to introducing the written statement and that the written statement contextualized the agent's testimony. The Eleventh Circuit distinguished Rainey as we have here and held that the district court did not err when it excluded the written statement. We agree with the Eleventh Circuit's holding.
Garcia, 530 F.3d at 354 (footnotes omitted).


The circuit also noted that while the transcript might not be admitted under FRE 106, the “common law rule of completeness” might allow for its admission. This difference in coverage was noted by the Supreme Court, when it found that “Rule 106 only partially codifies this common law rule.” Garcia, 530 F.3d at 354-55 (citing Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 171 (1988) (“[T]he rule of completeness was stated succinctly by Wigmore: ‘[T]he opponent, against whom a part of an utterance has been put in, may in his turn complement it by putting in the remainder, in order to secure for the tribunal a complete understanding of the total tenor and effect of the utterance.’ 7 J. Wigmore, Evidence in Trials at Common Law § 2113, p. 653 (J. Chadbourn rev. 1978)”))].

None of this availed defendant Garcia however. The circuit’s review of the record in Garcia disclosed that the trial court was very willing to allow the defense to probe the agent’s testimony. Because “[t]he trial transcript reflects that the district judge was willing to entertain and suggest a variety of methods defense counsel could use to elicit testimony ‘explain[ing], vary[ing], or contradict[ing]’ Ayoub's portrayal of the conversation there was “no error in a district court refusing to accept a “lengthy” transcriptFN42 when the court was prepared to accommodate the defendant by numerous other means.” Garcia, 530 F.3d at 356.

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