653 F.2d 1002 (5th Cir. 1981), 80-3699, United States v. Hall

Docket Nº:80-3699.
Citation:653 F.2d 1002
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Christopher HALL, Defendant-Appellant.
Case Date:August 20, 1981
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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653 F.2d 1002 (5th Cir. 1981)

UNITED STATES of America, Plaintiff-Appellee,

v.

Christopher HALL, Defendant-Appellant.

No. 80-3699.

Unit A

United States Court of Appeals, Fifth Circuit

August 20, 1981

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Julian R. Murray, Jr., New Orleans, La., for defendant-appellant.

John P. Volz, U. S. Atty., Michael Schatzow, Harry W. McSherry, Asst. U. S. Attys., New Orleans, La., for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before RUBIN, RANDALL and TATE, Circuit Judges.

TATE, Circuit Judge:

Christopher Hall was tried to a jury on charges of conspiring to distribute and to possess with intent to distribute cocaine (Count I), possessing with intent to distribute cocaine (Count II), and distributing cocaine (Counts III and IV), in violation of 21 U.S.C. §§ 841(a)(1), 846 and 18 U.S.C. § 2. He was convicted of conspiracy and distribution (Counts I, III, and IV) and sentenced to ten years' imprisonment with nine years and nine months suspended and a five year term of probation.

Hall now appeals his convictions, arguing (1) that the trial court erred in denying his pretrial motion for a bill of particulars, (2) that the trial court unduly restricted the scope of his cross-examination of the key witnesses against him, and (3) that the trial court erroneously admitted irrelevant and prejudicial testimony.

Because we agree that the court below erred in admitting irrelevant and highly prejudicial opinion testimony by an agent of the federal Drug Enforcement Administration (DEA), we reverse the convictions and remand the case to the district court for a new trial.

I.

The government's case at trial rested primarily upon the testimony of Hall's alleged coconspirators, James Worthy, Jack Beck,

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and Debbie Ryan, all of whom testified under the auspices of plea bargaining agreements with the government. This testimony was uncorroborated by physical evidence the government had made no "controlled buy" or seizure of cocaine in connection with any of the transactions covered in the indictment.

Hall stood silent at his trial. The theory of his defense was that the three key government witnesses, in an effort to reap the benefits of cooperation with the government and at the same time to protect their true source of supply, offered him up to federal prosecution as a convenient scapegoat. In support of this theory, Hall sought to impeach the credibility of the witnesses against him by bringing out the details of their plea agreements with the government, their relationships to one another, and their other potential motivations for lying, and by stressing the total absence of any corroborating physical evidence to support their version of the facts.

To bolster its case, the government called its final witness, DEA agent John Donald. Donald did not participate in the investigation leading to Hall's arrest and prosecution, and was in no way connected with the development of the case against Hall. The sole purpose of his testimony was to respond to defense counsel's suggestion that the government had been unable to obtain corroborating physical evidence against Hall because Hall was innocent of the offenses charged. Donald testified in general terms about the various procedures used by the DEA in its narcotics investigations. In sum, Donald described the various investigative techniques and testified that it is not always possible to conduct a "controlled buy" and seizure of narcotics during the course of an investigation, particularly where the conspiracy under investigation has already terminated by the time the investigation is commenced or the subject of the investigation is insulated in the higher echelons of the narcotics conspiracy.

Hall's strenuous objections to this line of testimony were overruled by the district court. On appeal, Hall renews those objections, contending that the testimony of agent Donald should have been excluded as irrelevant or, if relevant, as unfairly prejudicial.

We must agree.

The essential prerequisite of admissibility is relevance. Fed.R.Ev. 402. To be relevant, evidence must have some "tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Id. 401. Implicit in that definition are two distinct requirements: (1) The evidence must be probative of the proposition it is offered to prove, and (2) the proposition to be proved must be one that is of consequence to the determination of the action. McCormick on Evidence § 185, at 435 (2d ed. 1972); 1 Weinstein's Evidence P 401(03), at 401-13 (1980); 22 Wright & Graham, Federal Practice and Procedure: Evidence § 5162, at 18 (1978). Whether a proposition is of consequence to the determination of the action is a question that is governed by the substantive law. Simply stated, the proposition to be proved must be part of the hypothesis governing the case a matter that is in issue, or probative of a matter that is in issue, in the litigation. McCormick on Evidence, supra, § 185, at 434; 1 Weinstein's Evidence, supra, P 401(03).

In this light, we have little difficulty concluding that agent Donald's testimony was improperly admitted.

The governing hypothesis of any criminal prosecution consists of the elements of the offenses charged and the relevant defenses (if any) raised to defeat criminal liability. Cf. 1 Weinstein's Evidence, supra, P 401(03) at 401-11. 1 As characterized

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by the government, Donald's testimony was offered to show that the DEA routinely utilized procedures other than the controlled buy and seizure method in order to develop criminal narcotics cases. In essence, Donald testified as a kind of quasi-expert on DEA investigative procedures, and his testimony was limited to the general and quite hypothetical descriptions of accepted practice that are typical of the expert witness. He testified to no facts bearing on any manner on the prosecution of Christopher Hall or on the investigation leading to that prosecution. His testimony had no tendency whatsoever to make the existence of any fact of consequence to the government's case in chief either more or less probable than it would have been without his testimony. See Fed.R.Ev. 401. Clearly, then, in the context of the government's case in chief, agent Donald's opinion testimony lacked substantial relevance to any matter in issue, and was therefore not admissible. See id. 402.

The government, however, does not seriously contend that Donald's testimony was relevant and admissible in the context of the issues to be proved in its case in chief. It argues, rather, that DEA investigative methodology was properly at issue in this case because the defense had placed it at issue. Specifically, the government contends that the defense "opened the door" to this testimony and entitled the government to its "fair response" by arguing to the jury that the only procedure used by the DEA in making criminal narcotics cases was the controlled buy and seizure method, and by eliciting from government witness Debbie Ryan on cross-examination the fact that she had been arrested during the course of a controlled buy.

We find no merit in these contentions.

The defense did not place DEA investigative procedures in issue in this case. Pretermitting considering of whether a matter can be placed in issue solely by virtue of the arguments of counsel, we note that defense counsel did not make the argument described by the government. In its opening and closing remarks to the jury, reproduced in pertinent part in the appendix to this opinion, the defense did no more than stress the total absence of corroborating physical evidence and the resulting weakness in the government's case. Such remarks are entirely proper and do not, in our view, suggest that controlled buys are the exclusive investigative procedure utilized by the DEA. Nor did the cross-examination of Debbie Ryan place this matter in issue. Ryan was asked whether any federal agents were involved in the undercover work leading to her arrest. After a lengthy bench conference on the relevance of this question, see the appendix, infra, Ryan responded in the affirmative. This rather narrow line of interrogation, taken on cross-examination of a government witness, does not to place in issue the matters testified to by agent Donald.

Indeed, we are offered no theory under which this testimony might be admitted.

By citing us to references to the right of rebuttal contained in United States v. Sadler, 488 F.2d 434, 435 (5th Cir.), cert. denied, 417 U.S. 931, 94 S.Ct. 2642, 41 L.Ed.2d 234 (1974), the government suggests an argument that agent Donald's testimony was properly admitted as rebuttal evidence. Assuming arguendo the propriety of both the characterization and the admission of anticipatory rebuttal evidence in the government's case in chief, we nevertheless conclude that such evidence was not properly admissible in this case.

As this circuit has noted, the purpose of rebuttal testimony is "to explain, repel, counteract, or disprove the evidence of the adverse party." United States v. Delk, 586 F.2d 513, 516 (5th Cir. 1978) (emphasis added). The underlying rationale is that when the defendant has opened the door to a line of testimony by presenting evidence thereon, he cannot object to the prosecution's accepting the challenge and attempting to rebut the proposition asserted. Id. This case does not fall within that rationale. Delk suggests the reason:

On appeal, ... the question boils down to whether the tag receipts were properly admitted in rebuttal.

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In our...

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