U.S. v. Opager

• Decision Date: 14 February 1979
• Docket Number: No. 77-5710,77-5710
• Parties: 3 Fed. R. Evid. Serv. 1013 UNITED STATES of America, Plaintiff-Appellee, v. Patricia Lynn OPAGER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 799

589 F.2d 799

3 Fed. R. Evid. Serv. 1013

UNITED STATES of America, Plaintiff-Appellee, v. Patricia Lynn OPAGER, Defendant-Appellant.

No. 77-5710.

United States Court of Appeals, Fifth Circuit.

Feb. 14, 1979.

Edgar Miller, Miami, Fla., Samuel L. Bare, III, Coral Gables, Fla., for defendant-appellant.

Jack V. Eskenazi, U. S. Atty., James E. McDonald, Linda Collins Hertz, Asst. U. S. Attys., Miami, Fla., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before BROWN, Chief Judge, GODBOLD and FAY, Circuit Judges.

JOHN R. BROWN, Chief Judge:

On February 23, 1977, appellant Patricia Lynn Opager made the regrettable mistake of selling a pound of 90.4% Pure cocaine to three buyers, two of whom happened to be law enforcement officers, and the third a government informant and acquaintance of Opager. As a result of this incident, Opager was convicted by a jury of knowingly and intentionally possessing cocaine with the intent to distribute and knowingly and intentionally distributing cocaine in violation of 21 U.S.C.A. § 841(a)(1). She was sentenced to serve two concurrent sentences of fifty-four months imprisonment, with a three year special parole term.

On this appeal, Opager makes four arguments. (1) The trial court should have found entrapment as a matter of law. (2) The trial court improperly limited both her direct examination of certain defense witnesses and her cross-examination of the government's confidential informant. ¹ (3) The trial court erroneously excluded certain business records that would have refuted part of the informant's testimony. (4) And, finally, the government failed to obey a court order requiring the government to disclose the whereabouts of the identified informant. We find that claims (3) and (4) are sufficient to warrant reversal of Opager's conviction.

At her trial, Opager attempted to establish an entrapment defense. Opager took the stand, testifying that she had never sold cocaine before and that she was pressured into this sale by the informant, Phillip Posner, and the two police officers. In turn, Posner testified to show Opager's "predisposition" to sell cocaine. He stated that he had observed her engage in cocaine transactions in the past. On cross-examination, Posner explained that he had worked at a beauty salon (the Clipper) with defendant in 1974 and again in 1976 and that during both times he had seen her use and sell cocaine. To impeach Posner's testimony, Opager presented five witnesses to attack Posner's character. By questioning witnesses and by attempting to offer into evidence business records from the beauty salon, ² she also sought to prove that she and Posner had not worked together in 1974. The District Court ruled that the records were inadmissible under F.R.Evid. 608(b) as extrinsic evidence of a specific instance of conduct introduced to discredit the witness's testimony. ³

Applicability of F.R.Evid. 608(b)

The District Court erred in applying F.R.Evid. 608(b) to determine the admissibility of the business records. The application of Rule 608(b) to exclude extrinsic evidence of a witness's conduct is limited to instances where the evidence is introduced to show a witness's general character for truthfulness. The purpose of such evidence is to show that if a person possesses "certain inadequate character traits as evidenced in a variety of ways including that he has acted in a particular way he is more prone than a person whose character, in these respects, is good, to testify untruthfully." 3 Weinstein, Evidence P 608(01).

In this case, we are convinced that the records were not offered for such a purpose. The documents show and would permit the jury to find that, contrary to Posner's testimony, Posner and Opager did not work together in 1974 and that therefore Posner did not witness any of the drug transactions he described as occurring at that time. Thus, the records do more than indicate Posner's capacity to lie, about which five witnesses had testified. Instead, as Opager's counsel strenuously argued at trial, The records were introduced to disprove a specific fact material to Opager's defense. The District Court's finding that such evidence merely went to the witness's character for truthfulness is unsupported by the trial record. ⁴

We consider Rule 608(b) to be inapplicable in determining the admissibility of relevant evidence introduced to contradict a witness's testimony as to a material issue. So long as otherwise competent, such evidence is admissible. McCormick, Evidence § 47 (2d ed. 1972); 3A Wigmore, Evidence §§ 1000-1005 (Chadbourn rev. 1970). This was long the rule in this Circuit prior to the enactment of the Federal Rules of Evidence. See, e. g., United States v. Dalton, 5 Cir., 1972, 465 F.2d 32; United States v. Halperin, 5 Cir., 1971, 441 F.2d 612. ⁵ We find no reason to reach a different result today. Accord, United States v. Batts, 9 Cir., 1977, 558 F.2d 513; United States v. Brown, 8 Cir., 1977, 547 F.2d 438, Cert. denied, 430 U.S. 937, 97 S.Ct. 1566, 51 L.Ed.2d 784.

In making this determination, we find helpful the Ninth Circuit's opinion in United States v. Batts, 558 F.2d at 513. In that case, the defendant on cross-examination testified that he had no knowledge of cocaine or its uses. To rebut this testimony, the trial court allowed the government to introduce evidence showing that the defendant had in fact recently sold a large amount of cocaine to an undercover agent. The Court observed that the case presented a "confrontation" between Rule 608(b) and the basic purpose of the federal rules as evidenced by F.R.Evid. 102. ⁶ Balancing these two interests, the Court held that in this case Rule 608(b) did not bar the admission of such evidence:

We believe that the ultimate purpose of the rules of evidence should not be lost by a rigid, blind application of a single rule of evidence. Individual rules of evidence, in this instance Rule 608(b), should not be read in isolation, when to do so destroys the purpose of ascertaining the truth. This is especially so when a witness directly contradicts the relevant evidence which Rule 608(b) seeks to exclude.

By admitting the rebuttal evidence, the trial court merely completed the picture as to appellant's true involvement and knowledge in the drug world and thereby corrected a distorted view of appellant's testimony.

Id. at 517, 518. Similarly, we believe that Rule 608(b) should not stand as a bar to the admission of evidence introduced to contradict, and which the jury might find disproves, a witness's testimony as to a material issue of the case.

The fact that the business records might have the incidental effect of proving Posner a liar does not affect their admissibility as relevant evidence. In countless cases where facts are in dispute, one party may be able overwhelmingly to disprove the testimony of a prior witness. To exclude under Rule 608(b) the latter otherwise relevant evidence, as the government would have us do today, would completely divorce legal proceedings from the truth seeking process.

That the payroll records are relevant evidence is unmistakable. The Federal Rules of Evidence define relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." F.R.Evid. 401. Posner's testimony that he saw Opager deal in cocaine in 1974 was a factor in establishing Opager's criminal "predisposition," itself a matter clearly of consequence to her case. Hence, the payroll records, "as indicative that a fact in issue did or did not exist," were clearly relevant. United States v. Allison, 5 Cir., 1973, 474 F.2d 286, 289, Cert. denied, 419 U.S. 851, 95 S.Ct. 91, 42 L.Ed.2d 82.

We see no reason why this relevant evidence should not have been admitted. See F.R.Evid. 402. ⁷ We find unconvincing the government's suggestion that the records were inadmissible due to Opager's failure to comply with the Standing Discovery Order. ⁸ Record at 372. For reasons discussed more fully below, we conclude that any failure to produce these records in a timely fashion is excused by the government's nondisclosure of the identified informant's whereabouts. Had Opager been supplied with this information, she might have had an opportunity to interview Posner and thereby discover that he would tell what might be an untrue story on the witness stand. Without a pretrial opportunity to interview him, it was not likely that she could reasonably glean this information. Because this lack of opportunity is the government's fault, the government cannot now complain about Opager's tardy discovery that the payroll records would be necessary to her defense. At any rate, these records were not needed as a part of her case "in chief." Opager needed them to destroy significant evidence brought out in the government's case. The erroneous exclusion of this evidence cannot be classed as harmless. ⁹

The District Court's exclusion of the records is itself reversible error. An additional such error is the government's refusal to obey the Court's order requiring disclosure of Posner's whereabouts.

Failure To Disclose Informant's Whereabouts

Pursuant to Opager's motion, on April 15, 1977, the United States Magistrate ordered the government to disclose to defendant the whereabouts and identity of the government's confidential but identified informant, Phillip Posner. The Magistrate's order was affirmed by the District Court on April 29, 1977. ¹⁰ Despite the Court's order, the United States Attorney failed to disclose Posner's whereabouts. On May 9, 1977, Opager filed her first motion to dismiss for failure of the government to comply with the Court's order. In a hearing on that motion, the District Court refused to dismiss the indictment but did direct the government either to supply Posner's address or...