UNITED STATES v. BATTS

J. BLAINE ANDERSON, Circuit Judge:

Batts and one Michael Heiges were charged in a two-count indictment with the importation of hashish in violation of 21 U.S.C. §§ 952, 960(a)(1) and 960(b)(2) and 18 U.S.C. § 2 and for possession of hashish with intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) and 18 U.S.C. § 2. Mr. Heiges, not wishing to test the fact-finding process, fled the jurisdiction and is still at large. Batts was tried by a jury and was convicted on both counts. Batts appeals and we affirm.

The sole issue presented for review is whether it was error to allow the government to introduce, in its rebuttal case, evidence of prior criminal activity of the appellant.

The facts taken in the light most favorable to the government reveal that Batts and Heiges arrived in Heiges' El Camino truck at the port of entry near Lynden, Washington. A subsequent search at the port of entry disclosed 15 bricks of hashish hidden in the wall of the truckbed. The concealed compartment in the wall of the truckbed was covered by a metal plate secured by phillips head screws. A set of tools which contained numerous phillips head screwdrivers was also found in the truck.

A detailed account of what occurred at trial is necessary to understand how the issue unfolded. Immigration Inspector Bunch, the initial inspection officer on the scene, was the first witness to testify. He testified that after asking the routine preliminary questions, he inspected the interior of the El Camino and found marijuana seeds. He then directed the truck to the secondary search area. He testified that the two occupants were "overly nervous and overly helpful." (R.T. 9) He then testified as to the occurrences surrounding the search and eventual discovery of the hashish. He also testified that he had discovered the set of tools in the bed of the El Camino.

The next person to testify was Customs Inspector Barnes. He testified that since he owned an El Camino and was familiar with its construction, he assisted Officer Bunch in his search of the vehicle. He testified as to his discovery of the hashish in the concealed compartment in the wall of the truckbed. He testified that appellant had told him that the set of tools found was appellant's. He testified that he had personally searched appellant and found a silver trinket around appellant's neck. He testified that appellant told him that it was a coke spoon.1 At this time, Exhibit 10, the coke spoon, was admitted without objection. He testified further as to comments by appellant regarding the "luckiness" of the search2 and to appellant's request for photos of the hashish.3

The next witness pertinent to our discussion was DEA Agent McClary. He testified that during his interview of appellant, appellant told him he was the driver of the vehicle. He also testified that Mr. Heiges did not have a valid driver's license and that appellant did have a valid driver's license. DEA Agent Brant was next to testify and he testified as to the chain of custody of the coke spoon and how the coke spoon was used. All of this testimony was adduced without objection. Upon the conclusion of his testimony, the government rested.

The first witness to testify for the defense was the appellant. He testified as to his personal history and background, including his family situation, education, and employment record. He identified the box of tools and testified that they were his, and that he did not permit anyone to use his tools unless he was personally present. He testified as to his acquaintanceship with Mr. Heiges and the reasons why he accompanied him on the trip to Canada. He described the sojourn into Canada and denied that he was driving the El Camino when it arrived at the port of entry. He also testified that he asked Inspector Barnes if the discovery of the hashish was just lucky,4 and that he had requested photos of the seizure.5 Appellant also denied any knowledge that the hashish was hidden in the car.

During cross-examination, and without objection, the following colloquy took place:

Appellant then called as a witness his girlfriend, who testified that she had received the coke spoon from a friend and had given it as a gift to the appellant. This friend also testified and corroborated the girlfriend's testimony.

On rebuttal, over appellant's objection, the government introduced evidence showing that appellant had sold a large amount of cocaine to an undercover agent seven months previous to the incident in question. This sale did not result in a conviction as the cocaine was suppressed because of an admittedly illegal search and seizure. The trial court firmly and correctly instructed the jury that such evidence was admissible only to impeach appellant's credibility and to show knowledge and intent.

As we base our affirmance on the proper exercise of the trial court's discretion, we must attempt to view this matter from the perspective of the trial court as the issue unfolded before it. It must first be recognized that testimony about the coke spoon and the coke spoon itself had already been received in evidence without objection before appellant took the stand. On cross-examination, appellant testified that he had no knowledge of cocaine or the uses for the coke spoon. This line of inquiry was not objected to by appellant's counsel. At this point, only the trial court, sua sponte, could have ordered the testimony stricken. Such a procedure by the trial court would have been questionable since, as noted, evidence relating to the coke spoon had already been received in evidence and it was at least arguable that appellant had opened up the subject area by testifying to other contemporaneous events at the port of entry.6

Had the trial court been faced with an objection, it was still within the court's power to admit the testimony. Rule 611(b), Federal Rules of Evidence, states, in pertinent part: "The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination." In light of the factors mentioned above, it would not appear to have been an abuse of discretion to allow this testimony. As there was no objection, the trial court was not faced with this issue.

On the basis of this testimony properly received by the trial court, the prosecutor stated:

The trial court was then squarely faced with the issue of whether to submit the case to the jury in its present false light or to allow the rebuttal evidence to put the jury on notice of all relevant factors necessary to perform its function of ascertaining the truth. More specifically, the trial court was faced with a confrontation of the "no extrinsic evidence rule" contained in Rule 608(b)7 and the general purpose of the rules of evidence as stated in Rule 102.8

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.

This view is supported by Judge Weinstein, who, in speaking directly to Rule 608(b), stated:

Judge Weinstein also sets forth Senator McClellan's position on the need for full cross-examination in conjunction with rule 608(b) as expressed in the Senator's letter of August 12, 1971, as follows:

While the original language was not readopted in the final version of the rules, the word "clearly" was omitted which we feel provides greater flexibility and discretion for the trial judge.

The comments of the trial judge appear to indicate, although not specifically stated, that he was undertaking the balancing test as advocated by Judge Weinstein. The trial court stated:

The admittance of rebuttal evidence is subject to the sound discretion of the trial court. United States v. Perez, 491 F.2d 167 (9th Cir.), cert. denied, 419 U.S. 858, 95 S.Ct. 106, 42 L.Ed.2d 92 (1974). Great deference must be accorded to this discretion and the judgment of the trial court. He was present and able to observe appellant's manner and demeanor on the stand. Our review of the "cold record" discloses to us that the general tenor of appellant's direct testimony was a portrayal of one completely naive about drugs. The trial judge was in the best position to evaluate the effect this mis-painted picture had on the jury. 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.

We must also note that the trial court was aided in applying the above-mentioned balancing test by the fact that the rebuttal evidence consisted of prior activity in drugs, albeit a different drug. The connecting factor between the crime charged here and the rebuttal evidence is the fact that the crime here charges an intent to distribute (hashish) and the rebuttal evidence discloses an act of distribution. Merely because the drugs involved are different does not strip this conduct of its evidentiary value. The past act of distribution of one drug is relevant to show knowledge, motive and intent on the part of appellant to partake in the attempt here to import commercial quantities of yet another drug for the purposes of distribution. Rule 404(b), Federal Rules of Evidence, further supports the trial court's ruling and the balancing process, we think, is implicit in the Rules, by providing, inter alia, that such evidence is admissible to show motive, intent, knowledge, or absence of mistake or accident. See also United States v. Marshall, 526 F.2d 1349, 1360-1361 (9th Cir.), cert. denied, 426 U.S. 923, 96 S.Ct. 2631, 49 L.Ed.2d 376 (1976). The relevant factor is the type of activity undertaken, not the identity of the drugs. United States v. Perez, supra; United States v. Rivera, 437 F.2d 879 (7th Cir. 1971). When such probative value is coupled with, as in the present case, a claimed lack of knowledge about drugs, the rule of evidence which could exclude such conduct should be carefully scrutinized and weighed in light of the ultimate purpose of ascertaining the truth. We believe the trial court properly exercised its discretion in not applying in isolation a rule of evidence which would destroy this goal.

We must emphasize that our holding today is based solely on the facts of the present case and the trial judge's discretionary powers in response to those facts. This decision should not be read as creating a new rule of evidence or a new approach to the Rules of Evidence. This decision merely reflects that when a rigid application of a rule of evidence would obstruct and defeat the central purpose of the rules as a whole, a balancing test of the peculiarities and relevant factors of the individual case should be undertaken. Under the facts of this case, the trial court correctly found that the balance was in favor of its ruling admitting the rebuttal evidence.9

AFFIRMED.

KENNEDY, Circuit Judge, dissenting:

The majority opinion all but concedes that its holding contradicts the law of this circuit which mandates that the exclusionary rule apply where illegally seized evidence is proffered to show prior bad acts. The opinion also contravenes express provisions of the Federal Rules of Evidence. The majority justifies its departure from these authorities either by attempted factual distinctions that are wholly unpersuasive or by arguments that have been expressly rejected by the draftsmen of the Federal Rules of Evidence. For these reasons, I respectfully dissent.

The majority must agree that Batts did not open the subject of his previous drug use. He briefly testified about his residence, education, and background, as will any defendant who takes the stand. Of necessity he then related the events at the customs station on the day of his arrest. The prosecution knew that Batts had been arrested on cocaine charges seven months before the incident at bar. On cross-examination the prosecution sought to find an opening by which it might introduce into evidence the defendant's prior bad acts. It took great pains to question Batts about the cocaine spoon he was wearing when he was arrested. The prosecution's obvious purpose in asking the defendant about the cocaine spoon was to invite Batts to deny any knowledge of cocaine, so that the damaging evidence of his earlier cocaine dealings might be brought to the jury's attention. By using this tactic, the prosecution introduced extrinsic evidence in rebuttal. The Government called an undercover agent who testified at length concerning his purchase of cocaine from Batts. It also introduced three clear plastic bags of cocaine that had been seized in violation of the fourth amendment at the time of Batts' arrest following the cocaine sale.

In United States v. Trejo, 501 F.2d 138 (9th Cir. 1974), this court considered the applicability of the exclusionary rule where illegally seized evidence is offered to show prior criminal conduct. In Trejo, after examining the relevant decisions of the Supreme Court on the issue, we held that the controlling distinction in deciding whether illegally seized evidence may be admitted for impeachment purposes is whether the subject of prior criminal conduct is opened by the defendant in his direct testimony or instead by the prosecution on cross-examination. We held that illegally seized evidence may not be admitted where the prosecution opens the line of inquiry. As stated in Trejo: "[S]ince the offered evidence does not focus on the truthfulness of [the] defendant's direct testimony, we hold its introduction into evidence to be error." 501 F.2d at 145.

The Trejo rule controls the instant case. The illegally seized evidence introduced in rebuttal did not focus on the truthfulness of Batts' direct testimony. As in Trejo, the defendant's protestations of innocence during his direct examination were limited to a general denial of the crime for which he was charged. The defense carefully avoided raising on direct the issue of Batts' previous experience with drugs. The relevance of the illegally-seized evidence for impeachment purposes is confined to the answers Batts gave to questions put to him by the prosecution on cross-examination. Since Batts did not testify on the subject of his prior conduct during his direct examination (or voluntarily raise it on cross-examination), it was error to allow the illegally seized cocaine into evidence.1

The majority's treatment of United States v. Trejo is unconvincing. Fed.R.Evid. 404(b), which permits the introduction of evidence of prior bad acts to prove motive or knowledge in a proper case, is merely a statement of the rules controlling the admissibility of prior conduct for specific purposes. It has nothing whatever to do with whether or not illegally seized evidence is subject to the operation of the exclusionary rule. I fail to see how the Federal Rules of Evidence may take precedence over a rule of constitutional dimension. Furthermore, application of the Rules of Evidence would be far too complex if we were to use them as ad hoc justifications for altering settled principles of constitutional interpretation to which they do not directly pertain. Finally, if the Trejo case were wrongly decided, as the majority hints that it was, then the holding of that case can be reversed only by our en banc reconsideration of the principles established therein.

The majority's second proffered rationale for admitting the rebuttal evidence, the claim that it constituted proper impeachment under Fed.R.Evid. 608(b), is contrary to the express terms of that rule. Rule 608(b) explicitly provides: "Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence." The rule codifies conventional practice which has evolved since the early eighteenth century. See 3A Wigmore, Evidence § 979 (Chadbourn rev. 1970); E. Morgan, Basic Problems of Evidence 73 (1962); Hale, Specific Acts and Related Matters as Affecting Credibility, 1 Hastings L.J. 89 (1950). Rule 608(b) has been applied unequivocally by this and other circuits.2

The majority holds that the trial judge properly exercised his discretion in admitting the rebuttal evidence so the case would not go to the jury under a "false light." What the court ignores is that the Federal Rules specifically provide only two exceptions to the "no extrinsic evidence" rule, neither of which permit extrinsic evidence of prior bad acts to impeach in these circumstances. Specific instances of conduct to support or impeach credibility are first provable when they have been the subject of criminal conviction, as provided in rule 609. Second, specific instances may be inquired into on cross-examination of the witness himself, in the discretion of the court, "if probative of truthfulness or untruthfulness . . . (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified." Fed.R.Evid. 608(b).

The legislative history of rules 608(b) and 609 indicates that Congress considered the balance between the importance of ascertaining the truth and the dangers of undue prejudice and that it designed these provisions carefully to provide these two exceptions to the rule, but no others.3 The discretion of trial judges to admit evidence of specific instances of conduct to impeach or support credibility was intended to be confined to these exceptions.

The legislative history of rule 608(b) cited in the majority opinion does not support the majority's conclusions. Considerable discussion in formulating the rules centered around the scope of cross-examination as to specific instances of conduct. It is instructive to note that while there were differences of opinion as to how broad the discretion of the trial court should be in permitting such cross-examination,4 all of the participants in the debate took for granted that a cross-examiner must accept the answers he receives about specific instances relating to credibility and that he could not introduce extrinsic evidence of those matters.5 This general understanding of rule 608(b) was succinctly expressed by Professor Cleary, the reporter of the Advisory Committee on Federal Rules of Evidence, in a statement to the House of Representatives during its hearing on the rules. Professor Cleary reported:

Federal Rules of Evidence: Hearings on H.R. 5463 Before the Special Subcommittee on Reform of Federal Criminal Laws of the Committee on the Judiciary, House of Representatives, 93d Cong., 2d Sess. 96 (1973), reprinted in 20 U.S.Sup.Ct. Digest 239, 256 (1975) (emphasis added).

In support of its interpretation of rule 608(b) the majority quotes from a letter by Senator McClellan to the Committee on Rules of Practice and Procedure and from Judge Weinstein's treatise on evidence. 3 Weinstein's Evidence ¶¶ 608[02] at 608-16, 608[05] at 608-24 (1975). The majority misperceives the type of discretion being discussed in those explanations. Both Senator McClellan's letter and the passage quoted from the treatise address the factors that the trial court is allowed to and should consider in the exercise of its statutory discretion to allow inquiry about specific instances of conduct during cross-examination of the witness himself. This is hardly support for the proposition that the court has discretion to override the limitations of rule 608(b) by an ad hoc and vaguely defined exception.

While the notes of the Advisory Committee on the Federal Rules make clear that some of the rules are ones of general import that can be applied with considerable flexibility, see, e. g., Notes to Federal Rules of Evidence 404(b), 611, the Committee's comments indicate that there is no discretion to ignore the specific language of the first sentence of rule 608(b). The comments identify no exception to the general rule except as stated in the rule itself. And Judge Weinstein notes that: "Rule 608(b) is intended to be restrictive — and was amended to ensure that it would be restrictively interpreted by trial courts . . . ." 3 Weinstein, supra, ¶ 608[05], at 608-28.6

Finally, even assuming that some exception could be made to rule 608(b), the court's appeal to the general principles of rule 102 has no merit. Where the prosecution declined to use the very device provided by the rule to allow some inquiry into prior conduct for impeachment purposes — the right to cross-examine Batts about his prior drug dealings — there is no justification for a court-created exception to rule 608(b). The prosecution chose not to press Batts about his denial of any knowledge about cocaine. Instead it waited until the end of the trial. Then the Government introduced a police detective who narrated the prior cocaine arrest in great detail, and in conclusion it introduced three plastic bags of cocaine. The effect of this on the jury was obviously overwhelming.

Thus, even if the majority's interpretation of the interplay of rules 608(b) and 102 were correct, I still could not agree that we should distort the rule where the prosecution manifestly failed to use it properly. And, if the evidence were properly admissible under rule 404(b), as the majority contends, the necessity for creating this new exception to rule 608(b), vanishes completely.

For these reasons, I would reverse the conviction.