930 F.2d 687 (9th Cir. 1991), 89-10250, United States v. Dring

Docket Nº:89-10250.
Citation:930 F.2d 687
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Alan James DRING, Defendant-Appellant.
Case Date:April 04, 1991
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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930 F.2d 687 (9th Cir. 1991)

UNITED STATES of America, Plaintiff-Appellee,

v.

Alan James DRING, Defendant-Appellant.

No. 89-10250.

United States Court of Appeals, Ninth Circuit

April 4, 1991

Argued and Submitted Sept. 11, 1990.

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Alvin H. Goldstein, Jr., and James M. Braden, Goldstein & Phillips, San Francisco, Cal., for defendant-appellant.

Dennis Michael Nerney, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California.

Before CHOY, FARRIS, and THOMPSON, Circuit Judges.

CHOY, Circuit Judge:

OVERVIEW

Alan J. Dring was convicted of importing marijuana, possession with intent to distribute, and related conspiracy charges. On appeal, Dring alleges that the district court erred by (1) barring presentation of evidence regarding his truthful character; (2) allowing in-court identification of Dring by three witnesses, each of whom initially had been shown but a single photograph of Dring; and (3) failing to dismiss the indictment because the Government deported eleven alien eyewitnesses before Dring could interview them. We AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

At approximately 2:30 a.m. on May 22, 1986, a fishing boat carrying 13,000 pounds of marijuana, docked at Pier 3 in San Francisco Harbor. The marijuana had been transferred to the fishing boat a few miles offshore from a larger vessel, the Panamco II.

The Panamco II was owned by Harold Speer, alias Robert L. Lawrence. Dring had performed extensive repairs and outfitting work on the Panamco II for Speer. Dring had done this work free of charge, with Speer only paying Dring's expenses for trips to drydocks in Mexico, Thailand, and Malaysia.

Stationed aboard the fishing boat and on the pier were undercover United States Customs agents, who witnessed the unloading of the marijuana. The agents saw an unidentified white male step out of a blue pickup truck parked on the pier. He opened the back of a large tractor-trailer and spoke broken Spanish to the occupants, eleven illegal aliens from Mexico. He supervised the transfer of the marijuana from the boat to the trailer.

During the unloading, Mark Lawrence, the caretaker of a tugboat docked at Pier 3, went over to investigate the early morning events. He talked for a moment with the man from the blue pickup truck and then left. After the unloading had been completed, the agents followed the tractor-trailer and apprehended its driver, Michael Thompson, as well as the eleven illegal aliens. The agents handed the aliens over to the Immigration and Naturalization Service (INS). Before deporting the aliens to Mexico, the INS recorded their names and cities or states of residence.

Meanwhile, other agents lost track of the blue pickup, but found it again, twenty minutes later, parked in front of Dring's part-time residence on Pier 9. The engine was still warm. A Department of Motor Vehicles' check of the license number showed Dring to be the registered owner. The agents knocked on the door of the residence, but received no response.

Within two weeks, agents Gallion, Bruns, and Bastan were shown a single photograph of Dring. Bruns was told that it was a photograph of the man on the pier. At an evidentiary hearing, the district court decided to permit agents Gallion and Bastan to make in-court identifications of Dring. On the basis of Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382-383, 34 L.Ed.2d 401 (1972), the district court ruled that the initial pretrial identifications had been reliable.

At trial, the Government presented considerable circumstantial evidence and five eyewitnesses who placed Dring at the pier that night. All five witnesses--the three agents, Thompson, and Leroy Ludahl, the captain of the fishing boat--had identified Dring from photographic arrays in late 1988 or early 1989. To Dring's surprise, defense witness agent Echoff, also identified Dring as the driver of the blue pickup.

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Dring presented a defense of mistaken identity. Mark Lawrence, the tugboat caretaker who lived on Pier 3, testified that Dring was not the man he had spoken to on the pier. Two alibi witnesses testified that Dring had spent the night in question at his home in Napa Valley. Finally, Dring took the stand and denied any involvement in the drug-smuggling operation.

The Government attacked Dring's defense with contradiction evidence and one rebuttal witness. The district court precluded Dring from introducing character evidence of his veracity and denied Dring's pretrial motion to dismiss his indictment.

I. EVIDENCE OF DRING'S TRUTHFUL CHARACTER

Dring argues that the district court erred by barring the introduction of evidence as to his truthful character. The question before this court is a mixed question of law and fact, wherein matters of law predominate. We review it de novo. United States v. Owens, 789 F.2d 750, 753 (9th Cir.1986), (citing United States v. McConney, 728 F.2d 1195, 1202-04 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984)), rev'd on other grounds, 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988).

Federal Rule of Evidence 608(a)(2) provides that "[e]vidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise." Dring concedes that the Government did not use opinion or reputation evidence against him, but still maintains that the Government "otherwise" attacked his character for truthfulness. 1

The first exchange cited by Dring was the response of a Government witness to cross-examination by Dring's counsel. We hold that defense-initiated "attacks" on the character of a defense witness do not trigger rehabilitative testimony under Rule 608(a). To hold otherwise would enable defense attorneys to manufacture attacks on the truthful character of their own witnesses.

The other statements cited by Dring are also insufficient to trigger rehabilitative testimony. The purpose of Rule 608(a)(2) is to encourage direct attacks on a witness's veracity in the instant case and to discourage peripheral attacks on a witness's general character for truthfulness. 2

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To this end, the Rule prohibits rehabilitation by character evidence of truthfulness after direct attacks on a witness's veracity in the instant case. However, the Rule permits rehabilitation after indirect attacks on a witness's general character for truthfulness.

The Advisory Committee's Note to Rule 608(a) provides that "[o]pinion or reputation that the witness is untruthful specifically qualifies as an attack under the rule, and evidence of misconduct, including conviction of crime, and of corruption 3 also fall within this category. Evidence of bias or interest does not. McCormick Sec. 49; 4 Wigmore Secs. 1106, 1107. Whether evidence in the form of contradiction is an attack upon the character of the witness must depend upon the circumstances. McCormick Sec. 49. Cf. 4 Wigmore Secs. 1108, 1109." (emphasis added).

Thus, evidence of a witness's bias for or against a party in the instant case, or evidence of a witness's interest in the outcome of the instant case, constitutes a direct attack that does not trigger rehabilitation under Rule 608(a). For example, it would be permissible to imply that, because of bias due to family relationship, a father is lying to protect his son. McCormick Sec. 49 at 117 & n. 10 (3d ed. 1984). Such evidence directly undermines the veracity and credibility of the witness in the instant case, without implicating the witness as a liar in general. By way of contrast, indirect attacks on truthfulness include opinion evidence, reputation evidence, and evidence of corruption, which require the jury to infer that the witness is lying at present, simply because he has lied often in the past. 4

It is for the trial court, exercising its discretion, to determine whether given conduct constitutes a direct or indirect attack on a witness's character for truthfulness. On the one hand, the presentation of contradiction evidence, in the form of contravening testimony by other witnesses, does not trigger rehabilitation. 5 United States v. Thomas, 768 F.2d 611, 618 (5th Cir.1985); see also Homan v. United States, 279 F.2d 767, 772 (8th Cir.) (federal common law), cert. denied, 364 U.S. 866, 81 S.Ct. 110, 5 L.Ed.2d 88 (1960). Vigorous cross-examination, including close questioning of a witness about his version of the facts and pointing out inconsistencies with the testimony of other witnesses, does not necessarily trigger rehabilitation. United States v. Jackson, 588 F.2d 1046, 1055 (5th Cir.), cert. denied, 442 U.S. 941, 99 S.Ct.

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2882, 61 L.Ed.2d 310 (1979). Nor is rehabilitation in order when an attorney maintains in her closing argument that a witness's testimony is not credible, given inconsistencies with other witnesses' testimony. United States v. Danehy, 680 F.2d 1311, 1314 (11th Cir.1982).

On the other hand, "[a] slashing cross-examination may carry strong accusations of misconduct and bad character, which the witness's denial will not remove from the jury's mind. If the judge considers that fairness requires it, he may permit evidence of good character, a mild palliative for the rankle of insinuation by such cross-examination." McCormick Sec. 49 at 117.

Thus, vigorous cross-examination or the presentation of contradiction evidence can and should trigger rehabilitation where such evidence amounts to the kind of indirect attack on truthfulness embodied by "evidence of bad reputation, bad opinion of character for truthfulness, conviction of crime, or eliciting from the witness on cross-examination acknowledgment of misconduct which has not resulted in conviction." McCormick, Sec. 49 at 116-17.

In this light, the statements cited by Dring...

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