Rehearing En Banc Granted May 14, 1985.
JERRE S. WILLIAMS, Circuit Judge:
Eugene Leslie challenges his drug conviction on three grounds: the prosecutor improperly used all of his peremptory challenges against black veniremen, the plea agreement letters between the government and various government witnesses were incomplete and improperly vouched for the credibility of those witnesses, and Leslie was denied the opportunity to impeach the testimony of a government witness. We find merit in Leslie's first claim, and we reverse and remand on that claim. In all other respects, we affirm.
Leslie, a black man, was indicted, tried, and found guilty of conspiring to distribute narcotics in violation of 21 U.S.C. § 846 (1982), and of possessing narcotics with the intent to distribute them in violation of 21 U.S.C. § 841(a)(1) (1982). After the voir dire and after the district court excused veniremen for cause, the United States Attorney exercised each of his six peremptory challenges permitted by Fed.R.Crim.P. 24(b) against black veniremen. These six black veniremen were the only blacks on Leslie's jury panel of thirty-six. The prosecutor also used his sole peremptory challenge permitted by Fed.R.Crim.P. 24(c) to excuse the only black person on the panel of alternates. Immediately after both parties exercised their peremptory challenges, Leslie moved for a mistrial and argued that the pattern in which the prosecutor employed his peremptories demonstrated that the prosecutor's conduct was racially motivated. Leslie urged the district court to invoke its discretionary authority over the conduct of the trial to grant his motion. The prosecutor stated that he did not exercise his peremptory challenges for racial reasons, and he offered to explain, in camera, his reasons for striking the black veniremen. The district court denied Leslie's motion for a mistrial, stating that a prosecutor need not offer any explanation for the manner in which he exercises his peremptory challenges. As a result, Leslie was tried before and convicted by an all-white jury.
Leslie was indicted with at least six other people: Fernando Giron, Thomas Gray, Claude Griffin (Griffin), and Griffin's wife, son, and daughter. Gray and Griffin pled guilty and agreed to testify for the government in the case against Leslie and Giron, who were tried together. In connection with their plea arrangements with the government, Gray and Griffin executed standard plea agreement letters that the government provided. These plea agreement letters were admitted into evidence over Leslie's objection.
Consistent with their plea agreements, Gray and Griffin testified against Leslie and Giron at the trial. On the second day of the trial, after Gray, Griffin, and others had given devastating testimony against Giron, Giron agreed to plead guilty. The case against Leslie proceeded. The day after Giron had agreed to plead guilty, the government called Giron to testify against Leslie. In his direct testimony, Giron indicated that he occasionally had delivered cocaine to and had received payments from Leslie. In Leslie's vigorous cross-examination, Leslie sought to establish that Giron was biased against Leslie and had agreed to plead guilty and testify against Leslie only to curry favor with the prosecutor and the sentencing judge. Specifically, Leslie sought to have Giron concede that the government would not accept Giron's guilty plea unless Giron agreed to testify against Leslie. Giron made no such concession and testified that at the time the agreement was consummated he did not know he would be called as a government witness in Leslie's case.
In this appeal Leslie raises three claims. Initially, he argues that we should invoke our supervisory authority to ensure that federal prosecutors do not employ peremptory challenges to strike only black veniremen. Second, he claims that the district court improperly admitted the plea agreement letters into evidence because the letters were both under- and over-inclusive and because they improperly bolstered the credibility of the government witnesses. Third, he asserts that the district court erroneously denied him the opportunity to impeach Giron's testimony and demonstrate Giron's bias by calling Moriarity as a witness. We address each contention in turn.
1. THE SUPERVISORY POWER CLAIM
Racial discrimination in the selection of grand and petit jurors is a disturbingly familiar and recurring problem in our criminal justice system. The Supreme Court has stated that the systematic exclusion of persons based upon the persons' race from the grand jury pool, the petit jury pool, or the petit jury through the prosecutor's use of peremptory challenges violates a defendant's equal protection rights guaranteed by the Fourteenth Amendment. See Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965) (petit jury — peremptory challenges); Strauder v. West Virginia, 100 U.S. 303, 10 Otto 303, 25 L.Ed. 664 (1880) (grand and petit jury pools). In this case, Leslie concedes that he cannot satisfy the literal requirements of Swain by demonstrating that federal prosecutors in New Orleans systematically employed peremptory challenges to exclude blacks from petit juries in multiple cases over a period of time. He nevertheless argues that since this case, unlike Swain, involves a federal prosecution, this Court should use its supervisory authority over federal district courts and federal prosecutors to correct practices compromising the integrity of the judicial process and prevent prosecutors from striking veniremen solely because of the veniremen's race. He argues that the exclusion of blacks from the petit jury in his case undermines public confidence in the judicial system, impinges upon judicial integrity, and is manifestly unfair.
A. The Supreme Court's Exercise of Its Supervisory Power
The so-called supervisory power doctrine was articulated formally over four decades ago in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943),
Id. 318 U.S. at 340, 63 S.Ct. at 642.
Subsequent to McNabb, the Supreme Court has repeatedly exercised its supervisory power over lower federal courts in a wide variety of cases to reverse a conviction which was supported by false evidence, Mesarosh v. United States, 352 U.S. 1, 14, 77 S.Ct. 1, 8, 1 L.Ed.2d 1 (1956); Communist Party of the United States v. Subversive Activities Control Board, 351 U.S. 115, 125, 76 S.Ct. 663, 668, 100 L.Ed. 1003 (1956), to curtail improper practices by federal attorneys, United States v. Hale, 422 U.S. 171, 180 & n. 7, 95 S.Ct. 2133, 2138 & n. 7, 45 L.Ed.2d 99 (1975); Grunewald v. United States, 353 U.S. 391, 422 & 424, 77 S.Ct. 963, 983 & 984, 1 L.Ed.2d 931 (1957); Jencks v. United States, 353 U.S. 657, 668 & 672, 77 S.Ct. 1007, 1013 & 1015, 1 L.Ed.2d 1103 (1957); Roviaro v. United States, 353 U.S. 53, 60, 77 S.Ct. 623, 627, 1 L.Ed.2d 639 (1957), to suppress evidence government agents gained through misconduct, Mallory v. United States, 354 U.S. 449, 453 & 455, 77 S.Ct. 1356, 1358 & 1359, 1 L.Ed.2d 1479 (1957); Rea v. United States, 350 U.S. 214, 217, 76 S.Ct. 292, 294, 100 L.Ed. 233 (1956); Upshaw v. United States, 335 U.S. 410, 412 & 414 n. 2, 69 S.Ct. 170, 171 & 172 n. 2, 93 L.Ed. 100 (1948), to preserve a criminal contemner's right to a jury trial, Cheff v. Schnackenberg, 384 U.S. 373, 380, 86 S.Ct. 1523, 1526, 16 L.Ed.2d 629 (1966), or to protect the defendant from an overzealous district
In cases relevant to the case before us, the Supreme Court has invoked the supervisory power doctrine to protect the integrity of the juries. Long before the Supreme Court decided Taylor v. Louisiana, 419 U.S. 522, 529 & 538, 95 S.Ct. 692, 697 & 701, 42 L.Ed.2d 690 (1975), which held that the Sixth Amendment precluded the exclusion of members of distinctive groups of the community from the venires from which the jurys are drawn, the Court applied the supervisory power doctrine in both civil and criminal cases to prevent the systematic exclusion from jury service of members of distinctive groups of the community. In Thiel v. Southern Pacific Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946), a diversity case, the jury commissioner intentionally excluded from the petit jury lists all persons earning a daily wage. At trial, the plaintiff moved to strike the jury panel. The district court denied the motion, and the Ninth Circuit affirmed. Citing McNabb, the Court invoked its supervisory authority and reversed, reasoning that "[j]ury competence is an individual matter rather than a group or class matter ... [and to] disregard [that fact] ... open[s] the door to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury." Id. at 220, 66 S.Ct. at 985. The Court ultimately concluded that the "blanket exclusion of all daily wage earners ... must be counted among those tendencies which undermine and weaken the institution of jury trial." Id. at 224, 66 S.Ct. at 987. Later that year the Court decided Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181 (1946). Ballard involved the exclusion of women from the grand and petit jury lists in the federal courts in California. The Court denounced the practice of excluding women from jury service and found that the practice "deprive[d] the jury system of the broad base it was designed by Congress to have in our democratic society", and operated "`to destroy the basic democracy and classlessness of jury personnel.'" Id. at 195, 67 S.Ct. at 265. Again the Court relied upon McNabb and employed the supervisory power doctrine to reverse the defendant's conviction.
Thiel and Ballard are important for two reasons. First, they illustrate the applicability and scope of the supervisory power doctrine. More important, however, they emphasize the unifying premise in all of the supervisory power cases — that although the doctrine operates to vindicate a defendant's rights in an individual case, it is designed and invoked primarily to preserve the integrity of the judicial system.
B. The Federal Prosecutor's Duty in the Federal Criminal Justice System
Conceptually related to the purposes for which the supervisory doctrine was created is the federal prosecutor's obligation to serve the cause of justice in our criminal justice system. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), is the critical case establishing the prosecutor's duty to ensure that justice be done as a higher priority than obtaining a conviction. The defendant in Berger claimed that the prosecutor's conduct at trial overstepped the bounds of propriety and fairness and entitled him to a new trial. The Supreme Court agreed, and in the often quoted passage explained the nature of the prosecutor's duty and the values the duty is designed to effect:
Id. at 88, 55 S.Ct. at 633 (emphasis added).
This Court has echoed repeatedly the mandate of Berger. We have said that the cherished title "United States Attorney" is not a hunting license which exempts its holder from the ethical constraints of advocacy. See United States v. Beckett, 706 F.2d 519, 521 n. 5 (5th Cir.1983); United States v. Bursten, 453 F.2d 605, 610 (5th Cir.1971), cert. denied, 409 U.S. 843, 93 S.Ct. 44, 34 L.Ed.2d 83 (1972). Rather, possessing the title is a privilege, and this privilege requires federal prosecutors to adhere to the highest standards of fairness and justice. As we said in United States v. Corona, 551 F.2d 1386 (5th Cir.1977), "[w]e would be remiss if ... we did not recall the `heavy responsibility [of prosecutors] ... to conduct criminal trials with an acute sense of fairness and justice.'" Id. at 1391 (quoting United States v. Dawson, 486 F.2d 1326, 1330 (5th Cir.1974)).
C. Invoking the Supervisory Power Doctrine in this Case
The Court's general statements concerning the purposes for which the supervisory doctrine was created and the Court's sensitivity to the need to invoke the doctrine to preserve jury integrity, promote fairness, and assure justice compel our invoking the doctrine in this case. Ugly in its practice and insidious in its effects, invidious racial discrimination deserves protection in no area of society, least of all in the administration of justice in federal courts. Almost half a century ago, the Supreme Court spoke unanimously and clearly: "For racial discrimination to result in the exclusion from jury service of otherwise qualified groups ... is at war with our basic concepts of a democratic society and a representative government." Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84 (1940). That unequivocal statement and the wisdom of Thiel and Ballard apply with equal force today. We thus invoke our supervisory power to assure a minimum level of protection against the use of peremptory challenges to practice invidious racial discrimination in individual cases. We recognize that giving effect to the precept of equality conflicts with the total peremptoriness of peremptory challenges on the part of the prosecutor but hold that at some point the threat of invidious discrimination by federal officers sworn to effect justice exceeds the bounds of tolerance.
Our holding is narrow and is based upon the factual structure of the case before
In this case the district court treated the peremptory challenges as absolute and did not hear the prosecutor's proffered explanation. Since Leslie timely objected and since the prosecutor used all of his peremptory challenges against blacks only, the district court should have pursued the inquiry into the prosecutor's reasons for striking the black veniremen. We cannot determine from the record whether the prosecutor excused these veniremen simply because they were black or even if his actions would have been justified had he considered the veniremen's race as one of the factors that affected his decision to strike these veniremen. We therefore remand the case to the district court with directions to conduct a hearing to determine whether the prosecutor exercised his peremptory challenges for unjustifiable, racially discriminatory reasons.
This Court by no means intends to emasculate the wide latitude and discretion federal prosecutors enjoy in exercising peremptory challenges in future criminal cases. Nor do we suggest that a criminal defendant has a right to a jury containing all of the economic, social, religious, racial, political, and geographical groups of the community. See Apodaca v. Oregon, 406 U.S. 404, 413, 92 S.Ct. 1628, 1634, 32 L.Ed.2d 184 (1972); Swain, 380 U.S. at 208, 85 S.Ct. at 829; Ballard, 329 U.S. at 192, 67 S.Ct. at 263; Thiel, 328 U.S. at 220, 66 S.Ct. at 985. Although the historical roots of the peremptory challenge in the American system of justice run deep, peremptory challenges are not commanded by the Constitution. See McCray v. New York, 461 U.S. 961, 103 S.Ct. 2438, 2442 n. 7, 77 L.Ed.2d 1322 (Marshall, J., dissenting from denial of certiorari); Rosales-Lopez v. United States, 451 U.S. 182, 188 n. 6, 101 S.Ct. 1629, 1634 n. 6, 68 L.Ed.2d 22 (1981); Swain, 380 U.S. at 219, 85 S.Ct. at 835. In the exercise of our supervisory power and in the interest of justice, therefore, we conclude that the federal prosecutor's precious, though not absolute, right to employ peremptory challenges without review must yield in those cases where the defendant can establish that the prosecutor misused those challenges and engaged in invidious racial discrimination.
By resting our holding upon our supervisory power over federal district courts and federal prosecutors we, of course, need not and therefore do not consider whether the prosecutor's conduct in this case violated any of Leslie's constitutional rights. We note, however, that several federal appellate courts and state supreme courts recently have addressed the claim that a defendant's Sixth Amendment right to a jury drawn from a fair cross-section of the community
2. PLEA AGREEMENT LETTERS
Leslie also claims error in the contents and admission into evidence of the plea agreement letters between the government and Gray, Griffin, and the other government witnesses who testified against him. These letters contained promises by the witnesses to testify truthfully at any judicial proceeding or in any interview, and authorized the government to verify by any available means the truthfulness of the witnesses' statements. The letters also provided that the witnesses agreed to forfeit all proceeds, profits, and property acquired through illegal drug transactions and promised to provide the government with detailed personal financial information and records.
Leslie levels two distinct challenges against the letters. First, he claims that the letters were significantly under- and over-inclusive because they did not detail all aspects of the actual agreement between the witnesses and the government and because they contained language that was irrelevant to the concessions made by some of the witnesses. Second, he claims that the language of the letters improperly vouched for the credibility of the government witnesses.
A. The Completeness of the Plea Agreement Letters
Relying upon Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972), Leslie argues that the prosecutor did not disclose all of the considerations extended to the government witnesses which might have affected the witnesses'
An important aspect of the prosecutor's duty under Giglio, is to present to the jury as complete a picture as possible of the plea agreement between the witness and the government. United States v. Sanfilippo, 564 F.2d 176, 178 (5th Cir.1977); United States v. Nicholson, 525 F.2d 1233, 1236 (5th Cir.), cert. denied, 425 U.S. 972, 96 S.Ct. 2170, 48 L.Ed.2d 795 (1976). The prosecutor may satisfy this obligation by introducing either testimonial evidence of the plea agreement, Nicholson, 525 F.2d at 1236, or a plea agreement letter which memorializes the respective promises of the witness and the government. United States v. Martino, 648 F.2d 367, 389 (5th Cir.1981), cert. denied, 456 U.S. 949, 102 S.Ct. 2020, 72 L.Ed.2d 474 (1982). Regardless of which method the prosecutor chooses to prove the existence and the details of the plea agreement, Giglio requires the prosecutor to ensure that the disclosure of the plea agreement to the jury is accurate and complete.
In this case, each government witness with whom the government had negotiated a plea agreement testified on direct examination that the plea agreement letter constituted the entire agreement between himself and the government. Leslie's cross-examination of the various government witnesses, however, revealed that the agreements were significantly under- and over-inclusive of the respective promises made by the government and the witnesses. Griffin, for example, had been charged in three multiple-count indictments of extensive narcotics smuggling, possession, and distribution offenses, including the importation of hundreds of pounds of cocaine and tens of tons of marihuana. Griffin's plea agreement indicated that he pled guilty to one count in each of the three indictments, and these three counts carried a maximum sentence of 45 years. The agreement failed to mention, however, that Griffin had agreed to cooperate with the government largely because of the favorable treatment the government promised to provide his wife, son, and daughter. Like Griffin, his wife, son, and daughter had been charged in several multiple-count indictments for various narcotic offenses, and each was held on a very high bond. Griffin's wife's and son's bonds were set at $1,000,000 each, and his daughter's bond was set at $250,000. After Griffin negotiated his plea with the government and agreed to testify as a government witness, his wife's and son's bonds were reduced to $100,000, and his daughter's bond was reduced to $25,000. In addition, all of the felony charges against Griffin's wife, son, and daughter were dismissed, and each was allowed to plead guilty to a single misdemeanor count. Leslie revealed all of this information to the jury through Griffin's cross-examination, and he argued the issue to the jury during his closing argument.
Other plea agreements between the government and its witnesses demonstrated that the letters did not disclose all aspects of the negotiated plea. Gray's plea agreement, for example, did not reveal that in exchange for his promise to testify for
While we are disturbed by the apparent under- and over-inclusiveness of the submitted plea agreement letters, we find no Giglio violation in this case. Giglio would require a new trial in this case if there was any reasonable likelihood that the government's failure to correct the misinformation concerning the plea agreements affected the judgment of the jury. If a defendant successfully elicits all aspects of the plea agreement during the witnesses' cross-examination, however, any error in nondisclosure is harmless and not likely to affect the judgment of the jury. United States v. Decker, 543 F.2d 1102, 1105 (5th Cir.1976), cert. denied, 431 U.S. 906, 97 S.Ct. 1700, 52 L.Ed.2d 390 (1977); see also United States v. Miranne, 688 F.2d 980, 989 (5th Cir.1982), cert. denied, 459 U.S. 1109, 103 S.Ct. 736, 74 L.Ed.2d 959 (1983). In this case, Leslie disclosed all aspects of the plea agreements through his effective and thorough examination of the government witnesses, and in his closing argument he asserted that the government's promises provided each witness with an incentive to fabricate his story and falsely implicate Leslie. In view of Leslie's cross-examination and closing argument, we find no reasonable likelihood that the under- and over-inclusiveness of the plea agreement letters could have affected the judgment of the jury.
B. Improper Vouching for the Credibility of the Government Witnesses
In Leslie's alternative challenge to the admission into evidence of the plea agreement letters, he claims that the letters improperly vouched for the credibility of the government witnesses because the witnesses (1) promised to testify truthfully at any judicial proceeding, (2) were subject to perjury charges if they breached that promise, and (3) understood that the government reserved the right to test their veracity and the accuracy of their statements by "any means [it] saw fit." We find nothing improper in these plea bargained promises.
The first two of Leslie's three points are easily disposed of. A witness's promise in a plea agreement letter to testify truthfully at any judicial proceeding in which he or she may be called as a witness is the same promise he or she makes when called as a witness at trial. As such, a mere promise to testify truthfully does not amount to improper vouching. See Martino, 648 F.2d at 389. Closely related to the witness's promise to testify truthfully is the witness's understanding of the penalty for breaching that promise — perjury charges. A witness's written acknowledgement of his understanding of the penalty for testifying falsely obviously is not an improper vouching for the credibility of the witness's testimony.
The more difficult question is raised by Leslie's third point. It concerns the effect of the language in the plea agreement letter which authorized the government "to verify by any means it [saw] fit any statements or testimony given by the [witness]." We conclude that this language standing alone did not constitute improper vouching for the witnesses' credibility. In contrast is the case of Gradsky v. United States, supra, in which we held that the following statement by the prosecutor to the jury improperly bolstered the credibility of the government witnesses and required reversal:
373 F.2d at 710. We reasoned that the prosecutor's statement implied that the government had, in fact, independently verified the story that the government witnesses conveyed to the jury.
Leslie fails in his attempt to characterize the language at issue in this case as having the same meaning as the language we found offensive in Gradsky. Merely reserving the right to test independently the veracity of a witness's testimony neither implies that the right has been exercised nor reasonably could lead the jury to believe that the prosecutor possessed extrinsic evidence that convinced the prosecutor of the defendant's guilt. In fact, in this case the prosecutor repeatedly cautioned the jury in both his opening and closing arguments to examine independently the prosecution's witnesses and judge their credibility based upon the evidence presented. See United States v. Sims, 719 F.2d 375, 377 (5th Cir.1983) (prosecutor's suggestion to jury that government witness's testimony was circumspect and that the jury should examine testimony closely removed any doubt that neither prosecutor nor plea agreement letter served to vouch for the credibility of the government witness), cert. denied, ___ U.S. ___, 104 S.Ct. 1304, 79 L.Ed.2d 703 (1984). Ellis, 547 F.2d at 869 (same). In view of the prosecutor's cautionary remarks and the neutral nature of the statement in the plea agreement letters, we find that neither the prosecutor nor the plea agreement letters impermissibly vouched for the credibility of the government witnesses.
3. IMPEACHMENT OF A PROSECUTION WITNESS
Leslie's final claim is that the district court erred by refusing to permit him to impeach Giron's testimony by calling Moriarty,
Any incentive a witness may have to falsify his testimony, commonly referred to as bias, United States v. Canales, 744 F.2d 413, 425 (5th Cir.1984), is relevant to the witness's credibility and the resulting weight the jury should accord to the witness's testimony. United States v. Hall, 653 F.2d 1002, 1008 (5th Cir.1981); United States v. Diecidue, 603 F.2d 535, 550 (5th Cir.1979), cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d 781 (1980); 3 J. Weinstein, Weinstein's Evidence ¶ 607-03, at 607-23 (1982). As such, the party challenging the witness should be afforded an opportunity to pursue all relevant lines of inquiry aimed at discovering and disclosing such bias. Hall, 653 F.2d at 1008. The defendant seeking to demonstrate the existence of a bias may impeach a witness's claim of no bias either by effective cross-examination, Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974); United States v. Andrew, 666 F.2d 915, 924 (5th Cir.1982), or by introducing extrinsic evidence demonstrating the witness's bias. United States v. Lay, 644 F.2d 1087, 1090 (5th Cir.), cert. denied, 454 U.S. 869, 102 S.Ct. 336, 70 L.Ed.2d 172 (1981); Diecidue, 603 F.2d at 550. The district court has broad discretion in determining how bias may be proved and what extrinsic evidence is material to that purpose. The district court's judgment will be disturbed only where the defendant can show an abuse of discretion. United States v. Landes, 704 F.2d 152, 154 (5th Cir.), cert. denied, ___ U.S. ___, 104 S.Ct. 176, 78 L.Ed.2d 158 (1983); Diecidue, 603 F.2d at 550; United States v. Love, 599 F.2d 107, 108 (5th Cir.), cert. denied, 444 U.S. 944, 100 S.Ct. 302, 62 L.Ed.2d 312 (1979).
This case concerns the propriety of using certain extrinsic evidence, rather than extended cross-examination, to impeach Giron's testimony and show Giron's bias. In his first claim, Leslie argues that Moriarty's hearing testimony would have demonstrated that Giron made a prior, out of court statement that was inconsistent with his trial testimony and would have tended to show his bias. Because Leslie laid no foundation for the introduction of Giron's prior statement, we reject this claim and hold that the district court properly excluded Moriarty's testimony related to Giron's statement.
Fed.R.Evid. 613(b) provides, in part:
Rule 613(b) establishes three criteria that must be met before evidence of the prior statement is admissible:
United States v. Rice, 550 F.2d 1364, 1374 (5th Cir.), cert. denied, 434 U.S. 954, 98 S.Ct. 478, 54 L.Ed.2d 312 (1977). In United States v. Lay, supra, 664 F.2d at 1090, we concluded that Rule 613(b) and its foundation requirements apply in cases where the
Leslie failed to satisfy the first two aspects of the foundation requirement. As the district court found, Giron's trial testimony that he did not know at the time he consummated the plea agreement with the government that he would be called as a government witness in Leslie's case is not inconsistent with his response to Moriarty's question. At the time the agreement was made, Giron could have been willing to testify against Leslie but might not then have known that he in fact would be called as a government witness in Leslie's case and expected to testify against Leslie. Leslie also failed to afford Giron an opportunity to explain or deny making the statement, a specific requirement of Rule 613(b). Leslie, therefore, was not allowed to offer extrinsic evidence showing that Giron had made the statement. See United States v. Balliviero, 708 F.2d 934, 940 (5th Cir.) (since witness merely could not recall having made prior and allegedly inconsistent statement, rather than having denied making statement, defendant was properly barred from offering extrinsic evidence demonstrating that witness had made statement), cert. denied, ___ U.S. ___, 104 S.Ct. 351, 78 L.Ed.2d 316 (1983).
After Moriarty was excused as a witness at the hearing, the district court on three successive occasions offered Leslie the opportunity to question Giron. On each occasion, Leslie declined the opportunity and essentially waived his chance to ask Giron to explain or deny making the statement. Having failed to satisfy this minimal foundation requirement, Leslie cannot successfully argue that the district court abused its discretion in preventing him from calling Moriarty to testify about Giron's alleged prior statement.
Leslie also claims that Moriarty should have been permitted to testify at trial about Giron's understanding of the requirements of the plea agreement. Moriarty would have testified that he thought that Giron understood that he (Giron) would be required to testify against Leslie before the government would accept Giron's guilty plea. Other than Giron's response to the question concerning his "willingness" to testify against Leslie, Moriarty neither pointed to any other colloquy between himself and Giron nor reported any observation of Giron which supported his belief that Giron knew that the plea agreement was predicated upon his agreeing to testify against Leslie in this case. Moriarty's hearing testimony demonstrates that his perception of his client's understanding of the plea agreement was, at best, speculative. We find, therefore, that the district court did not abuse its discretion in denying Leslie's request to call Moriarty as a witness. The court properly weighed the minimal probative value of Moriarty's hearing testimony against its potentially prejudicial impact. See Landes, 704 F.2d at 154; Diecidue, 603 F.2d at 550.
In summary, we hold that district courts must exercise their supervisory power to ensure that prosecutors do not misuse peremptory challenges to engage in invidious racial discrimination. We reverse and remand with instructions for the district court to conduct a hearing consistent with this opinion for the purpose of determining whether the prosecutor in this case exercised his peremptory challenges for impermissible, racially discriminatory reasons. If the conclusion is that he did, there must be a new trial. In all other respects, the judgment of the district court is affirmed.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.