U.S. v. Dawson, 04-2557.

• Decision Date: 17 January 2006
• Docket Number: No. 04-2557.,No. 04-2592.,04-2557.,04-2592.
• Court: U.S. Court of Appeals — Seventh Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Pierre DAWSON and Alphonso Ingram, Defendants-Appellants.

434 F.3d 956

UNITED STATES of America, Plaintiff-Appellee, v. Pierre DAWSON and Alphonso Ingram, Defendants-Appellants.

No. 04-2557.

No. 04-2592.

United States Court of Appeals, Seventh Circuit.

Submitted December 7, 2005.

Decided January 17, 2006.

George W. Jackson, III (argued), Office of United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Joseph A. Morris (argued), Morris, Rathnau & Delarosa, Chicago, IL, Thomas A. Durkin (argued), Durkin & Roberts, Chicago, IL, Steven J. Weinberg (argued), Susan M. Pavlow, Weinberg & Rizzi, Chicago, IL, for Defendants-Appellants.

Before CUDAHY, POSNER, and WILLIAMS, Circuit Judges.

POSNER, Circuit Judge.

The government has moved for rehearing, complaining about the following passage in our opinion of September 28 and more particularly about the sentence in that passage that we have italicized:

In suppression hearings in two previous cases, involving other defendants, the trial judges had disbelieved testimony by three government agents who also testified for the prosecution in our case. Defense counsel in our case wanted to use those judges' rulings to impeach the three witnesses' testimony. The judge refused on the basis of Rule 608(b) of the Federal Rules of Evidence, which provides that "specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence." Our defendants were not proposing to use extrinsic evidence, however, but merely to ask each witness whether a judge had disbelieved him or her in a previous case.

United States v. Dawson, 425 F.3d 389, 396 (7th Cir.2005). We went on to say that the error was harmless, and to affirm the conviction. But the government is concerned about the possible stare decisis effect of the passage and wants us to delete or modify it. Although deletion would provide no succor for the defendants, their lawyers have helpfully responded to the government's petition, and so we have had the benefit of an adversary presentation of the issue.

The government bases its argument on two items to which it did not refer in its appeal brief. One is a statement in the committee note accompanying amendments to Rule 608(b) made in 2003; the statement in its entirety is: "See also Stephen A. Saltzburg, Impeaching the Witness: Prior Bad Acts and Extrinsic Evidence, 7 Crim. Just. 28, 31 (Winter 1993) (`counsel should not be permitted to circumvent the no-extrinsic-evidence provision by tucking a third person's opinion about prior acts into a question asked of the witness who has denied the act')." The second item is a footnote in United States v. Davis, 183 F.3d 231, 257 n. 12 (3d Cir.), as amended by 197 F.3d 662 (1999), which, citing the Saltzburg article, states that the government "may [on cross-examination] question Davis [a defense witness] about lying to an Internal Affairs officer about ripping up an individual's subway pass[, but] if he denies that such events took place, ... the government cannot put before the jury evidence that he was suspended or deemed a liar by Internal Affairs." See also United States v. Whitmore, 384 F.3d 836 (D.C.Cir.2004) (per curiam), which appears to approve of the statement in Davis.

The passage in the committee note is not keyed to any change in the text of Rule 608(b) made by the 2003 amendments; in effect it is post-enactment legislative history — and not by a legislature, either; it is a statement by a committee of the Judicial Conference of the United States, i.e., a committee of judges. Nevertheless it is entitled to our respectful consideration. Tome v. United States, 513 U.S. 150, 160, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995); Edward J. Imwinkelried, "Moving Beyond `Top Down' Grand Theories of Statutory Construction: A `Bottom Up' Interpretive Approach to the Federal Rules of Evidence," 75 Ore. L.Rev. 389, 394-95, 411-12 (1996). Even Justice Scalia, no fan of legislative history, agrees. Tome v. United States, supra, 513 U.S. at 167-68, 115 S.Ct. 696 (concurring opinion). The note itself, however, is to a rule concerning extrinsic evidence; the reference to questions of a witness appears only in the quotation from Professor Saltzburg's article. The weight properly given to such a reference is obscure.

Davis and Whitmore do not dispel the obscurity. They do not distinguish clearly between presenting extrinsic evidence that the witness was found not credible and, in a paraphrase of Saltzburg's statement, "inject[ing] the views of a third person into the case to contradict the witness" merely by asking the witness about those views. United States v. Davis, supra, 183 F.3d at 257 n. 12. The passage we quoted earlier from Davis was unexceptionable in distinguishing between questioning a witness and presenting extrinsic evidence to contradict his answer; all that makes the case seem to bear on the issue before us is the court's reference to Saltzburg.

In Davis, moreover, the third person was not a judge; and while one of the third...