U.S. v. Ling

• Decision Date: 30 August 1978
• Docket Number: No. 76-1728,76-1728
• Citation: 581 F.2d 1118
• Parties: 3 Fed. R. Evid. Serv. 1029 UNITED STATES of America, Appellee, v. Roger T. LING, II, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1118

581 F.2d 1118

3 Fed. R. Evid. Serv. 1029

UNITED STATES of America, Appellee, v. Roger T. LING, II, Appellant.

No. 76-1728.

United States Court of Appeals, Fourth Circuit.

Argued July 18, 1978.

Decided August 30, 1978.

Stanley S. Cohen, Baltimore, Md. (John B. McClellan, Baltimore, Md., Glen A. Jacobson, Second Year Law Student; Stanley H. Needleman, Baltimore, Md., on brief), for appellant.

Marsha A. Ostrer, Asst. U. S. Atty., Baltimore, Md. (Russell T. Baker, Jr., U. S. Atty., Baltimore, Md., John F. Hyland, Jr., Asst. U. S. Atty., on brief), for appellee.

Before BOREMAN, Senior Circuit Judge, and WINTER and HALL, Circuit Judges.

BOREMAN, Senior Circuit Judge:

Roger T. Ling, II, was convicted of conspiring to violate the federal narcotics laws, 21 U.S.C. § 846, and manufacturing a Schedule I non-narcotic controlled substance, 21 U.S.C. § 841(a)(1).

The facts underlying Ling's convictions are not disputed and appellant does not challenge the sufficiency of the evidence. Ling admitted that he agreed to manufacture an illegal drug known as DMT (dimethyltryptamine) for the "Pagans," a motorcycle gang. He was not a member of the gang, but apparently became associated with them through his sale of Nazi memorabilia to gang members. Ling purchased the chemicals and equipment necessary to produce the drug from Tilley Chemical Company in Baltimore, Maryland. Upon receiving Ling's orders, an employee at Tilley recognized the chemicals as those required for the manufacture of DMT and the company notified the Drug Enforcement Administration of the United States Department of Justice (DEA). DEA agents placed Ling under surveillance and monitored his transactions at Tilley. They followed him until he went to a secluded farmhouse where a shed had been set up as a clandestine chemical laboratory. Ling and several co-conspirators were arrested after they left the farm the following morning and a beaker containing an immediate chemical precursor of DMT was seized.

The main issue at Ling's trial was the credibility of the defendant. Ling took the witness stand in his own defense and testified that although he did participate in the manufacture of the drug, he intended to sabotage that manufacture before it was completed. Evidence adduced at trial showed that Ling was not popular with the Pagans and, in fact, his apartment had been burglarized by them and he had been severely beaten by them. On direct examination Ling admitted that he had an extensive gun collection and that he sometimes carried a gun, but he denied ever shooting anyone or using his guns to threaten anyone. Ling also testified that he did not drink alcoholic beverages because of an allergy. However, he did admit on direct examination that he did "drink on occasion."

On cross-examination, in an attempt to impeach defendant's credibility, the prosecutor asked Ling if he ever fired any of his guns on a public street and Ling answered "never." Based upon Ling's denial, the government introduced rebuttal testimony from Officer McKenny, a Baltimore police officer, who testified that he had arrested Ling for discharging a firearm in a public place, possession of a handgun and driving while under the influence of alcohol. According to Officer McKenny's testimony, Ling was given a breathalyzer test at the time of his arrest on these charges which test indicated a .04 reading and the drunk driving charge was subsequently dismissed. ¹ Officer McKenny also testified that Ling at all times denied firing a gun, the charge of discharging a firearm was dismissed and defendant received "probation before judgment" as to the charge of possession of a handgun a disposition that carries no penalty and is not considered a conviction under Maryland law.

Defense counsel interposed objections before, during and after Officer McKenny's testimony on the grounds that the prosecution was interjecting a collateral and irrelevant issue into the case which was highly prejudicial to the defendant. The prosecutor argued that the police officer's testimony was relevant and properly admissible because it bore directly on defendant's credibility by indicating prior inconsistent statements or conduct.

In an attempt to lessen the effect of Officer McKenny's testimony, defense counsel requested that the trial judge instruct the jury as to the legal significance of Maryland's "probation before judgment" procedure. The judge refused the requested instruction.

Ling argues on appeal that Officer McKenny's rebuttal testimony constituted inadmissible collateral evidence and the trial judge compounded the error by refusing to give the requested instruction. We think the judgments of conviction should be set aside and Ling awarded a new trial.

Ling was charged with a violation of federal drug laws and not with a firearms violation. Nevertheless, government counsel made numerous references during the government's case in chief to certain guns that were seized at the time of Ling's arrest or were owned by Ling, the seized weapons were admitted into evidence and the government attempted to impeach the credibility of the defendant with his alleged inconsistent statements or conduct concerning his misuse of firearms. The prosecutor admittedly and purposely interjected the firearm issue into the case in an effort to discredit Ling.

It is a well-settled rule that a defendant who voluntarily offers himself as a witness and testifies in his own behalf subjects himself to legitimate and pertinent cross-examination to test his veracity and credibility. However, when a defendant is cross-examined for the purpose of impeaching his credibility by proof of specific acts of past misconduct not the subject of a conviction, the examiner must be content with the witness' answer. The examiner may not, over objection, produce independent proof to show the falsity of such answer. This court has summarized the no extrinsic evidence rule by stating "the interrogator is bound by (the witness') answers and may not contradict him." United States v. Whiting, 311 F.2d 191, 196 (4 Cir. 1962), Cert. denied, 372 U.S. 935, 83 S.Ct. 882, 9 L.Ed.2d 766, Rehearing denied, 372 U.S. 972, 83 S.Ct. 1089, 10 L.Ed.2d 136 (1963). Although the cross-examiner may continue to press the defendant for an admission, he cannot call other witnesses to prove the misconduct after defendant's denial. In the instant case the prosecutor should have accepted Ling's answer that he never fired a gun on a public street and should not have attempted to impeach defendant's credibility on this collateral issue by use of the police officer's rebuttal testimony. ²

It is a general rule that arrest without more does not impeach the integrity nor impair the credibility of a witness because "(i)t happens to the innocent as well as the guilty." Michelson v. United States, 335 U.S. 469, 482, 69 S.Ct. 213, 222, 93 L.Ed. 168 (1948). This rule is based upon a clear recognition of the fact that the probative value of such evidence is so overwhelmingly outweighed by its inevitable tendency to inflame or prejudice the jury against the defendant that "total and complete exclusion is required in order that the right to trial by a fair and impartial jury may not be impaired." United States v. Pennix, 313 F.2d 524, 529 (4 Cir. 1963).

Furthermore, in the instant case the police officer's rebuttal testimony was not probative of the facts for which it was offered it was not evidence of either prior inconsistent statements or conduct. Ling always insisted that the sounds Officer McKenny heard were from his Car backfiring as he turned a street...