Preserving A FRE 106 'Rule Of Completeness" Challenge

In a solicitation and receipt of kickbacks trial, denying defendant's request to testify in response to testimony by a prosecution witness who interviewed the defendant during the investigation and recounted the defendant's statements which "included fatal admissions" in the case; since the defense failed to preserve the issue under FRE 103(a)(2) with an offer of proof which would have demonstrated whether the FRE 106 "rule of completeness" applied, in United States v. Muoghalu, __ F.3d __ (7th Cir. Nov. 21, 2011) (No. 10–3873)

The Federal Evidence Blog has covered a fair number of cases that refer to application of the FRE 106 "rule of completeness." One Applying FRE 106 Rule of Completeness When Trial Testimony Is “Tantamount” To A Recording noted the Fifth Circuit's United States v. Garcia, 530 F.3d 348 (5th Cir. June 5, 2008) (No. 07-50455) in which the circuit noted that 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, FRE 106 does not apply. Recently, a Seventh Circuit case noted a similar issue but found no need to address it in any detail as the defendant failed to preserve his objection to the trial judge precluding the defendant's testimony at trial.

In the case, defendant Muoghalu was a pharmacy director of a regional hospital and was charged with soliciting and receiving bribes in connection with his orders of certain medications from a specific supplier by soliciting and accepting bribes from the supplier. As pharmacy director, the defendant influenced the hospital's decisions on which drugs to stock in its formulary. In exchange for nearly $32,000 from maker of a heart drug, the defendant continued to stock the maker's particular heart medication rather than a more efficacious alternative, prompted by the payment of bribes he solicited from the drug supplier. Muoghalu, __ F.3d at __.

Upon his conviction, the defendant appealed, contending in part that the court erred by precluding the defendant from testifying in response to the testimony by an FDA agent who had testified that the defendant made "fatal admissions" during their interview. The circuit rejected the defense contentions, noting that it was not improper for the defendant to testify "without violating the hearsay rule ... to what had been said at the interview (which had not been recorded)." However, this request having been denied by the trial judge, defense counsel failed to preserve the issue. The attorney "made no offer of proof—no indication of what he thought such questioning would produce that would be material. By failing to make an offer of proof, he forfeited a challenge to the judge's ruling." Muoghalu, __ F.3d at __.

Besides failing to preserve the issue, the circuit opined that the defendant's argument that the judge had erred:

... has no merit. Rule 106 of the Federal Rules of Evidence provides that “when a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it”; and under the name “rule of completeness,” the principle of Rule 106 has been extended to nonrecorded statements. How rules proliferate in American law! One doesn't need a rule of “completeness” to allow a defendant to testify, in the case of an unrecorded interrogation, that the interrogator's version of what the defendant said is false, or was taken out of context; and in the latter instance the defendant can testify to the context (“surrounding circumstances”). But Muoghalu's counsel has never indicated what his client would have said had he been permitted to testify about the interview.
Muoghalu, __ F.3d at __ (citing United States v. Price, 516 F.3d 597, 604–05 (7th Cir.2008); United States v. Li, 55 F.3d 325, 329–30 (7th Cir.1995); United States v. Range, 94 F.3d 614, 621 (11th Cir.1996)).


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