U.S. v. Ray
| Decision Date | 24 April 1984 |
| Docket Number | 82-1301,82-1470 and 82-1471,Nos. 82-1262,s. 82-1262 |
| Citation | 731 F.2d 1361 |
| Parties | 15 Fed. R. Evid. Serv. 1106 UNITED STATES of America, Plaintiff-Appellee, v. William Thomas RAY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. William Thomas RAY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. William Thomas RAY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. David Wayne SCOGGIN, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
David Bukey, David Shorett, Seattle, Wash., for defendant-appellant.
Dick Tallman, Asst. U.S. Atty., Seattle, Wash., for plaintiff-appellee.
Appeals from the United States District Court for the Western District of Washington.
Before GOODWIN, WALLACE and REINHARDT, Circuit Judges.
William Ray and David Scoggin appeal their convictions for dealing in cocaine. The evidence showed that Ray moved more than 100 pounds of cocaine from Florida to Idaho and Washington and that Scoggin, at the other end of the distribution chain, bought several ounces of cocaine in Idaho. Scoggin was convicted under 21 U.S.C. Sec. 846 of conspiracy to possess cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1). Ray was convicted of engaging in a Continuing Criminal Enterprise in violation of 21 U.S.C. Sec. 848(a)(1) and of several counts of interstate travel in aid of the illegal drug enterprise, possession with intent to distribute cocaine, distribution of cocaine, and using a telephone to facilitate a narcotics transaction.
Four appeals are consolidated here. In No. 82-1471 Scoggin contends that the district court impermissibly restricted his cross-examination of a government witness. No. 82-1262 is an interlocutory appeal in which Ray appeals the district court's order restraining his assets. No. 82-1301 is an interlocutory appeal of the district court's order denying his motion to dismiss the superseding indictment as constituting vindictive prosecution. Ray now makes no vindictive prosecution argument, but asserts that this interlocutory appeal deprived the district court of jurisdiction to proceed with the trial. In No. 82-1470, Ray appeals his conviction and sentence.
Andrio Crow's testimony was crucial to proving that Scoggin was part of a conspiracy to possess cocaine with intent to distribute. Crow was arrested along with Scoggin, Ray and others on narcotics charges, but then turned government witness in a plea bargain. Scoggin argued at trial that he, Scoggin, purchased cocaine for personal use, not resale. Crow testified that Scoggin had purchased large amounts of cocaine, which would indicate an intent to resell the drug rather than consume it personally, and that he and Scoggin had travelled together to Florida to purchase cocaine for resale.
Without Crow's testimony, the government could show only that Scoggin made telephone calls to the other defendants, that his telephone number was listed in the personal telephone books of some defendants, and that Scoggin occasionally bought one-half and one-quarter ounce packets of cocaine. Because the district court instructed the jury that merely purchasing cocaine cannot constitute conspiracy to possess with intent to distribute, Crow's testimony was essential to proof of the charge against Scoggin.
Scoggin claimed that Crow, after entering into his plea agreement but before trial had continued to traffic in cocaine. Specifically, Scoggin alleged that Crow had travelled to Florida twice under a false name, presumably to purchase drugs, and that Crow had offered to sell Scoggin two ounces of cocaine. Relying on Fed.R.Evid. 608(b), the trial court refused to allow Scoggin to cross-examine Crow on this matter. 1
When the case against a defendant turns on the credibility of a witness, the defendant has broad cross-examination rights. See, e.g., United States v. Uramoto, 638 F.2d 84, 86 (9th Cir.1980), United States v. Alvarez-Lopez, 559 F.2d 1155 (9th Cir.1977). The district court abused its discretion in refusing to permit Scoggin to cross-examine Crow on his alleged post-plea drug activities, because a jury could believe that Scoggin's allegations of Crow's continuing drug dealing might have biased Crow's testimony against Scoggin.
Rule 608(b) does not bar introduction of evidence to show that the witness is biased. It regulates only the admissibility of evidence offered to prove the truthful or untruthful character of a witness. United States v. James, 609 F.2d 36, 46 (2d Cir.1979), cert. denied, 445 U.S. 905, 100 S.Ct. 1082, 63 L.Ed.2d 321 (1980); United States v. Rios Ruiz, 579 F.2d 670, 673 (1st Cir.1978); accord United States v. Brown, 547 F.2d 438, 445-446 (8th Cir.), cert. denied, 430 U.S. 937, 97 S.Ct. 1566, 51 L.Ed.2d 784 (1977). The reach of Rule 608 is suggested by the Advisory Committee's notes to Rule 608(a), which state that evidence of bias or interest does not constitute an attack on a witness' character for truthfulness.
In this case, Crow's possible bias deserved jury scrutiny because his testimony was crucial to proving that Scoggin had bought drugs in quantities sufficient to support the inference that he intended to distribute them. It would have been extremely easy for a biased witness to shade his testimony and increase the amount of cocaine Scoggin bought from an amount suitable for personal consumption to one suitable for distribution.
The government argues that if we permit Scoggin to cross-examine Crow on his continued drug dealing to show bias, any defendant will be able to bootstrap otherwise inadmissible evidence into court by simply reporting witness misconduct to the authorities, and then seeking to cross-examine the witness on that subject at trial. This is a legitimate concern, but trial courts can require the defendant to offer a threshold level of evidence to show that the defendant's allegations of witness misconduct have some grounding in reality. If the facts are material, the defendant has a right to present them to the jury. Scoggin met this threshold requirement by producing a Lewiston to Boise airline ticket for Crow, arguing that the flight was the first leg of a trip to Florida and thus tended to corroborate his allegation that Crow had gone to Florida to buy cocaine.
Having concluded that the district court should have permitted the cross-examination of Crow, we now determine whether its failure to do so was reversible error. Rule 608(b) commits the extent of impeachment by cross-examination to the trial court's discretion. In exercising its discretion, the trial court balances the probative value of cross-examination against the dangers of confusion, prejudice, or waste of time. United States v. Lustig, 555 F.2d 737, 748-749 (9th Cir.1977), cert. denied, 434 U.S. 1045, 98 S.Ct. 889, 54 L.Ed.2d 795 (1978). The test of whether the trial court abused its discretion in refusing to allow cross-examination for impeaching a witness is "whether the jury had sufficient information to appraise the bias and motives of the witness." Skinner v. Cardwell, 564 F.2d 1381, 1389 (9th Cir.1977), cert. denied, 435 U.S. 1009, 98 S.Ct. 1883, 56 L.Ed.2d 392 (1978).
The district court's refusal to permit cross-examination of Crow on his alleged post-plea drug activities deprived the jury of important information on Crow's possible bias. It thereby committed an abuse of discretion. We reverse Scoggin's conviction and remand for a new trial.
Title 21 U.S.C. Sec. 848(a)(2) provides that a person convicted of engaging in a continuing criminal enterprise in violation of 21 U.S.C. Sec. 848(a)(1) shall forfeit to the United States profits obtained from the enterprise, and any interest in property or contractual rights affording a source of influence over the enterprise. The district courts are empowered to enter appropriate restraining orders covering property or other interests subject to such forfeiture. 21 U.S.C. Sec. 848(d).
In February 1982 the district court granted an ex parte order restraining Ray, his wife, and Task, Inc., a corporation controlled by Ray, from disposing of their property, excepting expenditures for the necessities of life for Ray and his wife. 2 The district court denied Ray's motion to modify the restraining order to allow use of some of his funds to pay for his defense. In April 1982 the district court denied Ray's alternative motions for reconsideration and for a hearing on the appropriateness of the restraining order. Ray now argues that the denial of a hearing violated his Fifth Amendment right to due process, and that the restraining order interfered with his Sixth Amendment right to counsel. We address these in turn.
Ray claims that freezing his assets violated his Sixth and Eighth Amendment rights to prepare adequately for trial. There are two aspects to Ray's right to counsel claim. First, he alleges that the restraining order prevented him from hiring more experienced counsel. Second, he claims that the restraint prevented his counsel from conducting a financial analysis necessary to counter the government's case.
Apart from his implicit claim that the rich can afford better lawyers than the poor, Ray essentially contends in his first claim that he was denied the right to retain counsel. This court has recognized that individuals who can afford to retain counsel have a qualified right to obtain counsel of their choice. Releford v. United States, 288 F.2d 298, 301 (9th Cir.1961). 3 Other circuits are in accord. See, e.g., United States v. Burton, 584 F.2d 485 (D.C.Cir.1978), cert. denied, 439 U.S. 1069, 99 S.Ct. 837, 59 L.Ed.2d 34 (1979); Gandy v. Alabama, 569 F.2d 1318 (5th Cir.1978); United States v. Inman, 483 F.2d 738 (4th Cir.1973), cert. denied, 416 U.S. 988, 94 S.Ct. 2394, 40 L.Ed.2d 766 (1974). Denial of this qualified right is...
To continue reading
Request your trial
-
US v. Burnside, No. 89 CR 909.
...court not allowed cross-examination on those facts, it probably would have been reversible error. For example, in United States v. Ray, 731 F.2d 1361, 1365 (9th Cir.1984), the court The district court's refusal to permit cross-examination of the government's witness on his alleged post-plea......
-
U.S. v. Lewis
...it strengthens the inference behind the district court's use of "might" in the passage quoted above.3 Accord United States v. Ray, 731 F.2d 1361, 1365 (9th Cir.1984) (non-indigents have a qualified right to choose counsel); United States v. James, 708 F.2d 40, 44 (2d Cir.1983) (right to cho......
-
United States v. Rogers
...suggested in ipse dixit that the alternative of appointed counsel would adequately protect Bello's right to counsel. In United States v. Ray, 731 F.2d 1361 (9th Cir.1984) the court also considered the effect of a restraining order preventing the transfer of potentially forfeitable assets to......
-
Lewy v. Southern Pacific Transp. Co.
...bias and motives of [a] witness," we have generally not found the trial court to have abused its discretion. 12 United States v. Ray, 731 F.2d 1361, 1364-65 (9th Cir.1984); accord Jackson, 756 F.2d at 707; Skinner v. Cardwell, 564 F.2d 1381, 1389 (9th Cir.1977), cert. denied, 435 U.S. 1009,......