U.S. v. Akitoye

• Decision Date: 07 November 1990
• Docket Number: No. 90-1292,90-1292
• Citation: 923 F.2d 221
• Parties: 32 Fed. R. Evid. Serv. 108 UNITED STATES of America, Appellee, v. Adegboyega AKITOYE, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 221

923 F.2d 221

32 Fed. R. Evid. Serv. 108

UNITED STATES of America, Appellee, v. Adegboyega AKITOYE, Defendant, Appellant.

No. 90-1292.

United States Court of Appeals,

First Circuit.

Heard Nov. 7, 1990.

Decided Jan. 10, 1991.

David L. Martin, Providence, R.I., for defendant, appellant.

Margaret E. Curran, Asst. U.S. Atty., with whom Lincoln C. Almond, U.S. Atty., Providence, R.I., was on brief for U.S.

Before SELYA, Circuit Judge, and BROWN ^* and BOWNES, Senior Circuit Judges.

SELYA, Circuit Judge.

This appeal arises out of an indictment and conviction emanating from a patiently executed undercover operation. Defendant-appellant Adegboyega Akitoye seeks to persuade us that the district court committed a plethora of errors. We are unconvinced.

I. BACKGROUND

During early 1989, a Drug Enforcement Administration (DEA) agent, Kathleen Bennett, posing as a heroin buyer, made contact with a suspected trafficker, Edwin Osunba. Osunba proved to be merely a front man. He drove with Bennett to a Pawtucket, Rhode Island address, took her money, entered a multi-family dwelling, and returned several minutes later with 13.1 grams of 84% pure heroin. The next month, the routine was repeated. Bennett made a roughly equivalent purchase. Surveillance established that Akitoye was inside the apartment building on both occasions.

Some months later, the trap snapped shut. Bennett contacted Osunba and arranged to buy a somewhat larger quantity of heroin. On 22 June 1989, Bennett and Osunba drove to the same address. Playing the cautious consumer, Bennett proposed an arrangement whereby she would give Osunba some of the money, take delivery of some of the heroin, then give him more money, then take delivery of more heroin. The proposal was accepted. Bennett gave Osunba marked money ($6500), waited in the car while he entered the building, and received 28.1 grams of 87% pure heroin upon his return. At that point, Osunba was arrested and agents armed with a search warrant entered a first floor apartment at the designated address. The officers found Akitoye and one Joseph Aina inside the apartment. ¹ They also found the remainder of the contracted heroin, the bulk of the $6500 that Bennett had tendered for the initial installment (minus $1000 which Osunba had retained), and a precision scale.

Akitoye and Osunba were charged with conspiracy and drug trafficking in a multi-count indictment implicating 21 U.S.C. Secs. 841(a)(1), 841(b)(1)(C), 846. Osunba pled guilty. Akitoye went to trial. The jury found him guilty of the two counts lodged against him. The court fixed the guideline sentencing range at 97-121 months and sentenced Akitoye to 114 months in prison. The defendant now challenges his conviction and sentence. Because he does not contest the sufficiency of the government's proof, we eschew any exegetic statement of the facts and proceed to consider his several arguments.

II. CROSS-EXAMINATION

The government called Aina as a witness during its case in chief. His testimony was damaging to the defendant. In the defense case, Akitoye testified, contradicting Aina in certain critical respects. On cross-examination, the following exchange occurred:

Q [by prosecutor to Akitoye] Mr. Aina is a friend of yours, is that correct?

A [by Akitoye to prosecutor] Sure. Sure.

* * * * * *

Q Have you ever had any arguments with Mr. Aina?

A No, sir.

Q Was Mr. Aina lying to this Jury when he said that you and Mr. Osunba went into the rear of that apartment and remained together for five minutes?

MR. MARTIN [defense counsel]: Objection.

THE COURT: Sustained.

Q Do you know of any reason why Mr. Aina would lie about you?

MR. MARTIN: Objection.

THE COURT: Overruled. You may answer.

A What?

Q Do you know of any reason why Mr. Aina would lie about you?

A What?

Q I believe my question is, do you know of any reason why Mr. Aina would lie about you?

MR. MARTIN: Your Honor, I object. I object.

THE COURT: What's the objection.

MR. MARTIN: I think the witness was intending to answer the question, Your Honor. If [the prosecutor] apparently is not satisfied with the answer, then I either request he withdraw the question or allow the witness to complete the answer, please.

THE COURT: All right. Mr. Akitoye, the question is do you know of any reason why Mr. Aina would lie about you, do you understand the question?

THE WITNESS: Yes, I understand the question.

THE COURT: Can you answer that question, please.

A No.

On appeal, appellant's flagship argument is powered by this vignette. He contends that the last question was improper; that its impropriety was heightened by the suggestive nature of the preceding question (to which objection was sustained); and that compelling him to answer it constituted reversible error. We doubt, however, that the flagship ever left port. Even if it did, it lacks the propulsive force to complete the voyage that appellant has charted.

A. Procedural Default.

We begin with bedrock: error may not be assigned to a ruling admitting testimony into evidence "unless a substantial right of the [aggrieved] party is affected, and ... a timely objection or motion to strike appears of record, stating the specific ground of objection if the specific ground was not apparent from the context." Fed.R.Evid 103(a)(1); see also United States v. Nivica, 887 F.2d 1110, 1125 (1st Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 1300, 108 L.Ed.2d 477 (1990). Here, the grounds for the objection were not apparent. The objection could have been to form or to substance; and if the latter, on any number of bases, say, relevancy, or the lack of a proper foundation, or that the question called for a conclusion. Moreover, the argument advanced most strenuously on appeal--that the earlier "was-the-witness-lying" question indelibly stained the later "was-there-reason-to-shade" question--is somewhat sophisticated. Where, as in this situation, a party's basis for objecting is not self-evident, it becomes the attorney's obligation to make the grounds for objecting known, not the court's obligation to inquire. ²

In the final analysis, enforcing Evidence Rule 103(a)(1) is a natural corollary to our well-settled practice of refusing to consider on appeal issues not adequately raised below. See, e.g., United States v. Figueroa, 818 F.2d 1020, 1025 (1st Cir.1987); United States v. Argentine, 814 F.2d 783, 791 (1st Cir.1987). Accordingly, we have held litigants to fairly strict compliance with the imperatives of the Rule. See, e.g., United States v. Benavente Gomez, 921 F.2d 378, 385 n. 3 (1st Cir.1990); Brookover v. Mary Hitchcock Memorial Hosp., 893 F.2d 411, 414-15 (1st Cir.1990); Fashion House, Inc. v. K Mart Corp., 892 F.2d 1076, 1095 (1st Cir.1989); United States v. Piva, 870 F.2d 753, 759-60 (1st Cir.1989). Appellant has given us no sufficient reason to excuse noncompliance in this instance.

B. Propriety of the Question.

In any event, preserved objection or not, we think that allowing the question was well within the lower court's discretion.

To be sure, it is not the place of one witness to draw conclusions about, or cast aspersions upon, another witness' veracity. See United States v. Victoria, 837 F.2d 50, 55 (2d Cir.1988); United States v. Richter, 826 F.2d 206, 208 (2d Cir.1987); Gross v. Greer, 773 F.2d 116, 118 (7th Cir.1985). The "was-the-witness-lying" question framed by the prosecutor in this case was of that stripe. It should never have been posed and defendant's objection to it was justifiably sustained. The follow-on question, however, did not solicit an opinion on credibility; rather, it inquired into the existence of any known basis for bias on the part of a key witness. It seems to us that the latter type of question is considerably more palatable than the former. Cf. D'Aquino v. United States, 192 F.2d 338, 369 (9th Cir.1951) (in context of particular case, asking "was-the-witness-lying" questions on cross-examination held appropriate because doing so constituted "not an attempt to procure the opinion of one witness as to the veracity of another witness," but merely a means of "point[ing] up the contradiction in the [defendant's] own testimony"), cert. denied, 343 U.S. 935, 72 S.Ct. 772, 96 L.Ed. 1343 (1952).

Analytically, we forge the distinction along the following lines. Bias on the part of a witness is an allowable and established ground for inquiry on cross-examination under the Federal Rules of Evidence. See United States v. Abel, 469 U.S. 45, 49-52, 105 S.Ct. 465, 467-469, 83 L.Ed.2d 450 (1984); United States v. Boylan, 898 F.2d 230, 254 (1st Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 139, 112 L.Ed.2d 106 (1990); see also United States v. Aleman, 609 F.2d 298, 307 (7th Cir.1979) ("That the possible bias of a witness which may affect credibility is a proper and critical area of exploration by cross-examination is beyond question."), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 780 (1980). The reasons undergirding the concept of impeachment for bias

rest[ ] on two assumptions: (1) that certain relationships and circumstances impair the impartiality of a witness and (2) that a witness who is not impartial may--sometimes consciously but perhaps unwittingly--shade his testimony in favor of or against one of the parties.

3 J. Weinstein & M. Berger, Weinstein's Evidence p 607 at 607-27 (1990). Because objectivity is always material to the assessment of credibility, we, and other federal courts, have been hospitable to the point of liberality in admitting evidence relevant to a witness' bias. See, e.g., United States v. Rios Ruiz, 579 F.2d 670, 673 (1st Cir.1978); United States v. Houghton, 554 F.2d 1219, 1225-26 (1st Cir.), cert. denied, 434 U.S. 851, 98 S.Ct. 164, 54 L.Ed.2d 120 (1977); United States v. Robinson, 530 F.2d 1076, 1079 (D.C.Cir.1976).

Once it is accepted that a cross-examiner may bring out facts and circumstances tending to show bias, thereby weakening the credibility of a hurtful witness, we...