U.S. v. Bolick

• Decision Date: 06 November 1990
• Docket Number: No. 89-5047,89-5047
• Citation: 917 F.2d 135
• Parties: , 31 Fed. R. Evid. Serv. 803 UNITED STATES of America, Plaintiff-Appellee, v. Michael Lee BOLICK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 135

917 F.2d 135

59 USLW 2343, 31 Fed. R. Evid. Serv. 803

UNITED STATES of America, Plaintiff-Appellee, v. Michael Lee BOLICK, Defendant-Appellant.

No. 89-5047.

United States Court of Appeals Fourth Circuit.

Argued Dec. 6, 1989.

Decided Oct. 23, 1990.

As Amended Nov. 6, 1990.

Neill A. Jennings, Jr., Greensboro, N.C., for defendant-appellant.

Thomas J. Ashcraft, U.S. Atty., W.D.N.C., Charlotte, N.C., for plaintiff-appellee.

Before RUSSELL, PHILLIPS, and MURNAGHAN, Circuit Judges.

MURNAGHAN, Circuit Judge:

Michael Bolick has appealed his conviction for conspiring to sell, and selling, cocaine. Bolick's primary contention is that the trial court impermissibly admitted prior consistent statements of government witnesses who had not yet been impeached. He also contends that the trial court impermissibly allowed the government to create a prejudicial "drug atmosphere" at trial under the guise of "background" evidence.

I

In early September 1987, undercover government agent D.C. Ramsey arranged to purchase an ounce of cocaine from Ray Samuel Dicks. Agent Ramsey had established a relationship with Dicks by purchasing drugs from him on several previous occasions. On September 3, Agent Ramsey gave Dicks $1500 with the understanding that Dicks would acquire the ounce of cocaine. Dicks allegedly acquired the cocaine from defendant Michael Bolick on September 8. Dicks in turn provided Agent Ramsey with the ounce of cocaine. At no time did Agent Ramsey have any direct contact with defendant Bolick.

The government's case against Bolick relied exclusively on the observations of three witnesses who were present when Bolick allegedly supplied Dicks with the cocaine for Agent Ramsey's purchase. Because he had no direct contact with Bolick, Agent Ramsey could provide no direct evidence against him. The three government witnesses were Ray Dicks, his wife Amy Blackburn Dicks, and Bartley Blackburn. The Dickses were charged as co-conspirators but were not tried with Bolick. Blackburn was not charged for any crime related to Agent Ramsey's purchase of the ounce of cocaine.

Ray Dicks, Amy Dicks, and Blackburn might well have worn signs saying, "Impeach me." Ray Dicks was to testify against Bolick in exchange for a seven year cap on his sentence for pending charges of sale and distribution of LSD and cocaine. At age 17 Dicks was convicted of a marijuana charge and burglary, serving a two and one-half year prison term. He has been convicted on three separate occasions for driving while intoxicated and has been convicted of at least five additional traffic offenses. He also has convictions for carrying a concealed weapon, and possibly for escaping from a Georgia penitentiary. All this in a 28-year lifetime. Amy Dicks had been "charged for shoplifting and [had] two DWI's." She was to testify against Bolick in exchange for a government recommendation that her sentence on pending charges not exceed four years. Blackburn's credentials begin with a federal parole violation. Blackburn had apparently been on probation for possession of a sawed-off shotgun when he was arrested for distribution of LSD. Blackburn also has suffered two convictions for breaking and entering, as well as convictions for destruction of private property and drunk driving. He also had charges pending for conspiring to sell acid and selling marijuana.

The controversy on appeal concerns the trial strategy adopted by the government which has the appearance of having been an attempt to minimize the unpalatability of its witnesses. Bolick's two allegations of error concern, specifically, the testimony of the first government witness, Agent Ramsey. Agent Ramsey began his testimony by recounting the manner in which he established his relationship with Dicks. That testimony included mention of three occasions on which Dicks sold Agent Ramsey L.S.D. Agent Ramsey testified that he purchased from Dicks 1200 hits of L.S.D. for about $3,750. Bolick is not alleged to have been involved in those sales.

After testifying to his limited knowledge of events between giving Dicks the $1500 for the cocaine purchase on September 3 and receiving the cocaine on September 8, Agent Ramsey began describing discussions he had with the Dickses and Blackburn ("the declarants"). The discussions in question took place on two occasions (April 1988 and August 1988), after the Dickses had been charged and long after the alleged conspiracy involving Bolick and the Dickses was over. Agent Ramsey's description of what the declarants had told him was detailed, consuming about eighteen pages of transcript. Agent Ramsey described separately his discussions with each of the declarants.

Of greatest importance for our purposes was that the district court, over objection, allowed Agent Ramsey to testify that each of the declarants told him that it was Bolick who had supplied the ounce of cocaine that Agent Ramsey eventually purchased. Thus, before any of the declarants had taken the stand, the jury was informed three times by arrant hearsay that each of the declarants told Agent Ramsey that Bolick was guilty. In response to the first of the numerous objections by Bolick's counsel, the district court gave the jury the following instruction:

Ladies and gentleman of the Jury, I will instruct you concerning [a] point of law--at this point, the testimony of this witness, concerning the transactions and discussions that he had with Mr. Ray Dicks, as to statements made by Mr. Dicks, will be taken by you not for the proof of what Mr. Dicks is said to have stated, but as corroboration of Mr. Dicks' testimony to come later in this case.

It may seem like a southern [sic] distinction to you, but I want you to remember it and apply what I'm telling you; to your deliberation. That is, to repeat the point. The testimony being offered here as to what Mr. Ray Dicks said, is not being--shall not be received by you as statements for the proof of what Mr. Ray Dicks said to this witness. But if you later find that Mr. Dicks made the statements which this witness says he made, then you may receive this testimony as corroboration of what Mr. Ray Dicks later says that he said, if you find that it does in fact corroborate this testimony.

Bolick's counsel repeated his objection to Agent Ramsey's recitation of Amy Dicks' out-of-court statements at the time Agent Ramsey recounted them, although he did not do so for Agent Ramsey's testimony as to Blackburn's declarations. On each objection, the district court referred the jury to the instruction cited above.

After Agent Ramsey had testified, the government called each of the declarants as witnesses. The government elicited from each declarant the same testimony inculpating Bolick that Agent Ramsey had recited while on the stand. (There were slight variations between Amy Dicks' actual testimony and her declarations as presented by Agent Ramsey.) On cross-examination, Bolick's counsel tried to impeach each of the declarants. The only witness called by the defense was Bolick, who admitted going to the Dickses' residence, where the cocaine transaction took place, but denied selling the cocaine.

The jury convicted Bolick and he was sentenced to a six-year prison term and a $5,000 fine.

II

We begin our analysis with Bolick's contention that the district court erred by allowing Agent Ramsey to recite each of the declarants' out-of-court statements inculpating Bolick before any of them had been impeached.

A

Federal Rule of Evidence 801(d)(1)(B) provides that a prior statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.

The government contends, and the district court instructed, that Agent Ramsey's testimony as to the declarants' prior consistent statements was not admitted for the truth of the matter asserted but for mere "corroboration," by which it presumably means "rehabilitation." There is considerable authority for the proposition that the requirements of Rule 801(d)(1)(B) must be met only when a prior consistent statement is offered for its truth and that general principles of trial court discretion apply when a prior consistent statement is admitted for some other purpose such as rehabilitation or background. See, e.g., United States v. Mazza, 792 F.2d 1210, 1215 (1st Cir.1986), cert. denied, 479 U.S. 1086, 107 S.Ct. 1290, 94 L.Ed.2d 147 (1987); United States v. Pierre, 781 F.2d 329, 333 (2d Cir.1986); United States v. Rubin, 609 F.2d 51, 66-70 (2d Cir.1979) (Friendly, J., concurring), aff'd on grant of certiorari limited to other issue, 449 U.S. 424, 101 S.Ct. 698, 66 L.Ed.2d 633 (1981); United States v. Obayagbona, 627 F.Supp. 329, 335-38 (E.D.N.Y.1985) (Weinstein, J.). But see generally Pierre, supra (discussing arguable split within Second Circuit law). Although we have not had occasion to address it squarely, we may have endorsed the proposition in United States v. Parodi, 703 F.2d 768, 785-86 (4th Cir.1983) (citing with apparent approval language from Judge Friendly's concurrence in Rubin, supra ). But cf. United States v. Henderson, 717 F.2d 135, 138 n. 1 (4th Cir.1983) (indicating, in context of separate issue of whether Rule 801(d)(1)(B) requires absence of motive to fabricate at time prior consistent statement made, that Parodi should be read narrowly), cert. denied, 465 U.S. 1009, 104 S.Ct. 1006, 79 L.Ed.2d 238 (1984).

Fortunately, for purposes of our opinion, we can assume, without deciding, that the prior consistent statements were admitted as rehabilitation and that they are not subject to the requirements of Rule 801(d)(1)(B). Even with the benefit of such assumptions, the admission of the statements was erroneous because the admission preceded impeachment of the declarants....