U.S. v. Cruz, s. 249

• Decision Date: 09 January 1990
• Docket Number: 264,Nos. 249,D,s. 249
• Citation: 894 F.2d 41
• Parties: 29 Fed. R. Evid. Serv. 620 UNITED STATES of America, Appellee, v. Carlos CRUZ and Luis Olivier, Defendants-Appellants. ockets 89-1200, 89-1236.
• Court: U.S. Court of Appeals — Second Circuit

Page 41

894 F.2d 41

29 Fed. R. Evid. Serv. 620

UNITED STATES of America, Appellee, v. Carlos CRUZ and Luis Olivier, Defendants-Appellants.

Nos. 249, 264, Dockets 89-1200, 89-1236.

United States Court of Appeals, Second Circuit.

Argued Nov. 2, 1989.

Decided Jan. 9, 1990.

Abraham L. Clott (The Legal Aid Soc., Federal Defender Services Appeals Unit, New York City of counsel), for defendant-appellant Olivier.

Alexandra Rebay, Asst. U.S. Atty., New York City (Benito Romano, U.S. Atty. for the S.D.N.Y., Vincent L. Briccetti, Asst. U.S. Atty., of counsel), for appellee.

Philip Katowitz, Brooklyn, N.Y., for defendant-appellant Cruz.

Before MINER and MAHONEY, Circuit Judges, and CARMAN, Judge. ^*

MINER, Circuit Judge:

This appeal involves the exclusion of two pieces of evidence from a drug distribution and conspiracy trial. On February 2, 1989, defendant-appellant Luis Olivier was convicted, with Carlos Cruz ¹, of one count of conspiracy to distribute over 500 grams of cocaine, in violation of 21 U.S.C. Sec. 846 (1982), and one count of possession of over 500 grams of cocaine with intent to distribute, in violation of 21 U.S.C. Secs. 812, 841(a)(1), 841(b)(1)(B) (1982 & Supp. V 1987), and 18 U.S.C. Sec. 2 (1982).

On appeal, Olivier argues that he was denied a fair trial because the district court improperly excluded a sentencing transcript from an earlier case in another court revealing the court's finding that a government informant, a witness against Olivier in this case, was not credible. Olivier also contends that he was denied a fair trial by reason of the exclusion of inconsistent versions of the investigation report of his arrest. For reasons that follow, we affirm.

BACKGROUND

On July 27, 1988, Olivier offered to sell one kilogram of cocaine to Mario Perez for $20,000. Two Drug Enforcement Administration agents, Geisel and Hunt, observed Olivier talking to Perez, who was their informant. Perez and Olivier had been introduced earlier by another confidential informant. Olivier brought Perez into an apartment on West 162d Street, New York City, where Cruz was waiting with the cocaine. Cruz handed the package containing cocaine to Olivier, who then gave it to Perez. Perez signaled the agents that the sale was consummated, and Olivier and Cruz then were arrested.

Prior to trial, Olivier sought a ruling on his proposal to offer in evidence transcripts from a sentencing hearing conducted by Judge Edward R. Korman, United States District Judge for the Eastern District of New York, in another drug case. Judge Korman concluded that Perez' testimony regarding his conversation with the defendant being sentenced in that case was not credible. United States v. Bisbicus, No. 87 Cr. 497(S) (E.D.N.Y. May 24 & June 17, 1988). The district court in Olivier's case refused to admit the transcript, either as direct evidence or for purposes of cross-examining Perez, declaring that "it would be a grossly improper and a terrible abuse of my discretion and it would indicate a complete lack of knowledge of the rules of evidence to permit any cross-examination of Perez" based on the transcript.

At trial, Olivier sought to introduce two versions of the investigation report of the arrest, prepared by agent Geisel, which suggested the existence of a second informant. In the second version, paragraph 3 of the report had been altered so that the On appeal, Olivier contends that the sentencing transcript is admissible under Fed.R.Evid. 608(b) for purposes of cross-examination because it is probative of Perez' untruthful character. He also asserts that the inconsistent versions of the investigation report are admissible, in addition to the grounds raised in the district court, as public records, see Fed.R.Evid. 803(8), as admissions by a party-opponent or its agent, see id. Rule 801(d)(2)(B), and as material used by Geisel to refresh his recollection, see id. Rule 612.

word "other" was deleted and the version read: "the SCI [Perez] told S/A Hunt that the ----SCI was inside [the] apartment...." The government neither produced the second informant nor sought to introduce either version of the report. Olivier proposed to introduce the inconsistent versions of the report when he cross-examined Geisel. He argued that the two versions of the report were not hearsay because they were being admitted solely as proof of government fabrication and not for the truth of the matters asserted therein. See Fed.R.Evid. 801(c). He asserted that the two versions were admissible under the business records exception to the hearsay rule. See id. Rule 803(6). He also contended that they were not hearsay because they were prior inconsistent statements of Geisel and Hunt. See id. Rules 801(d)(1), 613(b). The court excluded these versions of the report as unsworn, prior inconsistent statements which contained double hearsay. See id. Rules 801(d)(1)(A), 805. Olivier, in his cross-examination of Geisel, did raise the issue of the alteration of the report, referring directly to the deletion of the word "other," but was not permitted to introduce the report or elicit testimony as to the significance of the alteration. Olivier unsuccessfully moved for a mistrial. The jury convicted Olivier, and the court sentenced him to a term of imprisonment of 78 months, concurrently on each count, plus supervised release for five years, and a $100 special assessment.

DISCUSSION

Olivier contends that Rule 608(b) allows him to use the transcript of the sentencing proceeding before Judge Korman in Bisbicus to cross-examine Perez because that transcript shows a specific instance of Perez' conduct concerning his untruthful character. He contends that the district court refused to allow this line of cross-examination and rejected the transcript, not because the court exercised its discretion in an evidentiary matter, but because the court erroneously believed that it lacked the power to permit the line of inquiry.

Under Rule 608(b), the court has discretion to permit or deny a line of inquiry on cross-examination. United States v. Pedroza, 750 F.2d 187, 195 (2d Cir.1984), cert. denied, 479 U.S. 842, 107 S.Ct. 151, 93 L.Ed.2d 92 (1986). "A trial judge abuses his discretion in curtailing cross-examination of a government witness when the curtailment denies the jury 'sufficient information to make a discriminating appraisal of the particular witness's possible motives for testifying falsely in favor of the government.' " United States v. Blanco, 861 F.2d 773, 781 (2d Cir.1988) (quoting United States v. Singh, 628 F.2d 758, 763 (2d Cir.), cert. denied, 449 U.S. 1034, 101 S.Ct. 609, 66 L.Ed.2d 496 (1980)), cert. denied, --- U.S. ----, 109 S.Ct. 1139, 103 L.Ed.2d 200 (1989). A party whose cross-examination of a...