United States v. Frazier ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
11-22-2006
USA v. Frazier
Precedential or Non-Precedential: Precedential
Docket No. 05-4428
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PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 05-4428
UNITED STATES OF AMERICA
v.
JAMES SEMME FRAZIER,
Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court Criminal No. 02-186
District Judge: The Honorable Joy Flowers Conti
Argued October 24, 2006
Before: SMITH, FISHER, and COWEN, Circuit Judges
(Filed: November 22, 2006)
Counsel: Thomas J. Farrell (Argued)
1000 Koppers Building
436 7th Ave.
Pittsburgh, PA 15219
Counsel for Appellant
Laura S. Irwin
Mary Beth Buchanan
Rebecca Ross Haywood (Argued)
700 Grant Street, Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
________________________
OPINION
________________________
SMITH, Circuit Judge.
James Frazier appeals his conviction on one count of
possession of crack cocaine with intent to distribute, in violation
of 18 U.S.C. §§ 841(a) and 841(b)(1)(B)(iii). The sole issue
raised by Frazier on appeal is whether the District Court erred
when it admitted, pursuant to Federal Rule of Evidence
801(d)(1)(B), a prior consistent statement by a police officer
witness based on a determination that the defense had raised an
implied charge of recent fabrication or improper motive or
influence against that witness. Because we agree with the
District Court that Frazier’s counsel triggered Rule 801(d)(1)(B)
by impliedly charging recent fabrication, we will affirm the
2
Judgment of the District Court.1
I.
On June 8, 2002, Officers Phillip Mercurio and Robert
Kavals were working plain-clothes patrol in a high drug-traffic
neighborhood in Pittsburgh. The officers observed two men
engage in a discussion and hand-to-hand exchange that the
officers believed to be a drug transaction. After the men
completed the transaction, the officers drove their car toward the
seller in the transaction (later identified as James Frazier), and
stepped out of the car. Mercurio asked if he could speak with
Frazier, at which point Frazier ran from the officers. Mercurio
pursued Frazier on foot while Kavals followed in the officers’
unmarked car.
After Frazier had run approximately twenty feet,
Mercurio saw him reach into his right pocket, at which time
Frazier pulled out a bag of crack cocaine and dropped it on the
ground. As Frazier pulled out the bag, his cell phone also came
out of his pocket and dropped onto the ground, though Mercurio
1
Because we will affirm the District Court’s Judgment based
on the text of Rule 801(d)(1)(B) and applicable precedent, we do
not address whether Officer Kavals’ testimony was admissible
to show the officers’ plan or the background of the investigation
or as rehabilitation of Officer Mercurio’s credibility. Also,
because we find no error, we do not address any harmless error
arguments.
3
could not tell whether or not Frazier intended to discard the cell
phone. With respect to what happened next, Mercurio later
testified at Frazier’s trial that during his pursuit, he slowed down
and picked up the bag of crack and then continued chasing
Frazier. At a May 9, 2003 pre-trial suppression hearing,
however, Mercurio testified that he continued chasing Frazier
without stopping to pick up the crack, and that he retrieved it
when he returned to the drop point after Frazier had been
apprehended.
Mercurio chased Frazier on foot into an overgrown,
abandoned lot, while Kavals blocked the other side of the lot,
preventing Frazier’s escape. The officers called for back-up and
a canine unit to flush Frazier out of the lot so that he could be
arrested. Mercurio and Kavals then secured the perimeter and
waited for back-up to arrive. According to Kavals’ testimony at
trial, he asked Mercurio as they were waiting for back-up, “did
you get it?,” meaning the bag of crack, and also “do we have
enough for the intent?” Mercurio responded affirmatively to
both questions. The officers eventually arrested Frazier.
On September 10, 2002, a grand jury returned a two-
count indictment charging Frazier with possession of a firearm
by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) and
possession with the intent to distribute five or more grams of
crack cocaine, in violation of 18 U.S.C. §§ 841(a)(1) and
841(b)(1)(B)(iii). The District Court granted Frazier’s motion
to sever the two counts, and on October 2, 2003, a jury
convicted Frazier of the gun charge. Frazier’s appeal before us
4
raises no issues relating to this firearms conviction.
Frazier also proceeded to trial on the drug charge set
forth in Count Two of the Indictment. On November 19, 2004,
a jury trial on this charge ended in a hung jury. On March 18,
2005, at the conclusion of a second jury trial, a jury returned a
verdict of guilty on the drug charge. The District Court
sentenced Frazier to 360 months in prison followed by an eight-
year term of supervised release.
Frazier’s defense at the second trial on the drug charge
focused, inter alia, on the differences between Mercurio’s
testimony at a pre-trial suppression hearing and at the trials
regarding when he recovered the bag of drugs dropped by
Frazier. The defense claimed that Mercurio’s testimony at trial
could not be trusted owing to the conflicting versions of the
retrieval of the crack presented by Mercurio at the suppression
hearing and the trial. Based on Frazier’s attack on Mercurio’s
credibility, the District Court, over Frazier’s objection, allowed
Officer Kavals to testify to the questions he had asked Mercurio
while the two were waiting for back-up. The Court ruled that
the testimony was admissible as a non-hearsay prior consistent
statement pursuant to Federal Rule of Evidence 801(d)(1)(B).
Frazier timely appealed his conviction, raising the single
issue of whether Kavals’ testimony as to Mercurio’s prior
consistent statement was properly admitted by the District
Court.
5
II.
The District Court had original jurisdiction pursuant to 18
U.S.C. § 3231. We exercise jurisdiction over the appeal
pursuant to 28 U.S.C. § 1291. A district court’s evidentiary
rulings are generally reviewed for abuse of discretion. See
Ansell v. Green Acres Contracting Co., Inc., 347 F.3d 515, 519
(3d Cir. 2003). We exercise plenary review over a district
court’s interpretation of the rules of evidence. Id. The
evidentiary ruling here turned on whether Officer Mercurio’s
statement to Officer Kavals was offered to rebut a charge of
recent fabrication or improper motive. This inherently factual
inquiry does not have a sufficient legal component to warrant
plenary review by this Court.
“Admission of evidence is an abuse of discretion if the
district court’s action was arbitrary, fanciful or clearly
unreasonable. We will not disturb a trial court’s exercise of
discretion unless no reasonable person would adopt the district
court’s view.” Id. (internal citations and quotations omitted).
III.
Federal Rule of Evidence 801(d)(1)(B) states that a prior
statement by a witness is admissible non-hearsay when it is
“consistent with the declarant’s testimony and is offered to rebut
an express or implied charge of recent fabrication or improper
influence or motive.” The Supreme Court has said that four
requirements must be met in order for prior consistent
6
statements to be admitted into evidence under Rule
801(d)(1)(B): (1) the declarant must testify at trial and be
subject to cross-examination; (2) there must be an express or
implied charge of recent fabrication or improper influence or
motive of the declarant’s testimony; (3) the proponent must
offer a prior consistent statement that is consistent with the
declarant’s challenged in-court testimony; and, (4) the prior
consistent statement must be made prior to the time that the
supposed motive to falsify arose. Tome v. United States, 513
U.S. 150 (1995); United States v. Collicott, 92 F.3d 973, 979
(9th Cir. 1996).
Requirements one and three are not at issue in this case.
The District Court ruled that Officer Kavals could testify to
Officer Mercurio’s prior consistent statement because Frazier
charged that Mercurio’s trial testimony was fabricated. We now
examine whether Frazier’s actions at trial satisfied the two main
elements of Rule 801(d)(1)(B) at issue in this appeal: a charge
of fabrication and the premotive requirement.
A.
In order for a prior consistent statement to be admitted
under Rule 801(d)(1)(B), it must be “offered to rebut an express
or implied charge against the declarant of recent fabrication or
improper influence or motive.” FED. R. EVID. 801(d)(1)(B).
The Supreme Court in Tome instructed us that “[p]rior
consistent statements may not be admitted to counter all forms
of impeachment or to bolster the witness merely because she has
7
been discredited.” 513 U.S. at 158. The purpose of Rule
801(d)(1)(B) is not to “bolster[] the veracity of the story told,”
but to rebut a charge of recent fabrication or improper influence
or motive. Id. See also United States v. Drury, 396 F.3d 1303,
1316 (11th Cir. 2005) (“Moreover, and perhaps more
significant, prior consistent statements are treated as admissible
non-hearsay only if they are offered to rebut a specific allegation
of recent fabrication, not to rehabilitate credibility that has been
generally called into question.”). The Supreme Court in Tome
did not precisely draw the line between types of impeachment
that trigger the Rule and types that do not. However, the text of
Rule 801(d)(1)(B) and precedent from this Court allow us to
discern a standard that district courts should apply in making
such determinations.
In drawing this distinction, this Court has stated that
“there need be only a suggestion that the witness consciously
altered his testimony in order to permit the use of earlier
statements that are generally consistent with the testimony at
trial.” United States v. Casoni, 950 F.2d 893, 904 (3d Cir.
1991); See also Gaines v. Walker, 986 F.2d 1438, 1445 (D.C.
Cir. 1993). Nothing in Tome alters the Casoni standard, and we
will apply it here.
The statement in Casoni that “there need be only a
suggestion” leaves substantial discretion to the District Court to
allow prior consistent statements to be admitted as evidence
under Rule 801(d)(1)(B). However, Casoni still mandates the
suggestion of a conscious alteration by the opposing counsel,
8
whether it be in an opening statement or on cross-examination.
In this respect, we instruct district courts to consider the warning
from the Fifth Circuit that “Rule 801(d)(1)(B) cannot be
construed to allow the admission of what would otherwise be
hearsay every time a [witness’s] credibility or memory is
challenged; otherwise, cross-examination would always
transform [the prior consistent statement] into admissible
evidence.” United States v. Bishop, 264 F.3d 535, 548 (5th Cir.
2001). The line between challenging credibility or memory and
alleging conscious alteration can be drawn when a district court
determines whether the cross-examiner’s questions reasonably
imply intent on the part of the witness to fabricate. Other courts
of appeals have drawn a similar line, albeit less explicitly. See
also United States v. Ruiz, 249 F.3d 643, 648 (7th Cir. 2001);
United States v. Lozada-Rivera, 177 F.3d 98, 103-04 (1st Cir.
1999); United States v. Street, 66 F.3d 969, 977 (8th Cir. 1995).
See also Gaines, 986 F.2d at 1444 (stating that “in some cases,
an attorney may be implying only that the witness has a faulty
memory, not that he has wilfully altered his account of events”).
Once the proponent of the prior consistent statement has
indicated which questions, statements, or arguments by the
cross-examiner suggest recent fabrication, a district court must
then determine whether a suggestion of conscious alteration has
been made. With respect to the standard by which a district
court should judge whether Rule 801(d)(1)(B) has been
triggered, a judge must make an objective determination based
on its examination of the entire trial record to determine whether
the impeaching counsel’s trial tactics could reasonably be taken
9
by a jury as implying recent fabrication or improper influence or
motive.2 If a district court determines that the impeaching
counsel has, through the court’s examination of the entire trial
record, made an express or implied charge of recent fabrication
or improper influence or motive, then this requirement of Rule
801(d)(1)(B) has been satisfied.
In this case, the District Court did not abuse its discretion
when it concluded that counsel for Frazier implied recent
2
The objective determination is a superior standard to the
subjective determination, where the district court would assess
whether the impeaching counsel actually intended to imply
fabrication or improper influence or motive. The objective
determination finds support in the text of the Rule. Rule
801(d)(1)(B) does not speak of motive on behalf of the cross-
examiner. It instead focuses on whether the opposing counsel’s
trial tactics constituted an express or implied charge. Whether
or not the opposing counsel intended to actually make such a
charge is irrelevant. See, e.g., United States v. Ettinger, 344
F.3d 1149, 1160-61 (11th Cir. 2003) (discussing the issue
without reference to the examiner’s motive); Lozada-Rivera,
177 F.3d at 104 (same); United States v. Cherry, 938 F.2d 748,
755-56 (7th Cir. 1991) (same). Further, a trial court is in a
better position to make this objective determination than an
appellate court because a trial judge considers not only trial
tactics that appear in the record but also those that do not.
Examples here include the cross-examiner’s tone of voice,
gestures, or any other nuances that will not be captured in a trial
transcript.
10
fabrication on the part of Officer Mercurio by suggesting that
Mercurio consciously altered his testimony. A strong
suggestion of conscious alteration is discernable from the cross-
examination of Mercurio conducted by Frazier’s counsel. The
thrust of the cross-examination suggested that Mercurio testified
truthfully at the May 2003 suppression hearing, and that he then
altered the details of his testimony at both subsequent trials
based on a later-developed motive to facilitate a guilty verdict
by improper means. Frazier’s counsel pursued this theory as it
related to two aspects of the evidence; the cell phone that Frazier
dropped during the chase, and the time at which Mercurio
recovered the crack that Frazier dropped during the same chase:
Q. Your testimony here today [on direct
examination at trial] was also that you saw Mr.
Frazier throw a phone to the ground during the
chase . . .
...
Q. Besides the November trial from last year, you
also testified under oath in this courtroom at a
hearing on May 9th of 2003, is that right?
...
A. Yes, sir.
Q. And, again, at that hearing, you testified under
11
oath . . . is that right?
A. Yes, sir.
...
Q. Before testifying, you met with [the Assistant
United States Attorney] to prepare, didn’t you?
...
Q. And you went over what you remembered of the
events of June 8, 2002, is that right?
...
Q. And you went over your reports from that
night or the day after?
...
Q. So that you could provide accurate testimony
on May 9th?
A. Yes.
Q. And at that hearing . . . you were asked this
question and gave this answer about what Mr.
Frazier dropped:
12
[“]Question: One of the things you
mentioned is that as [Frazier] is fleeing . .
. you see him drop something. What did
you see him drop?[”]
[“]Answer: I saw him drop a clear plastic
baggie.[”]
Period. That was your entire answer, right?
A. Correct.
Q. You didn’t say anything about a phone
dropping, did you?
A. Not at that hearing I did not, no.
Q. In fact, what I just read you was cross-
examination. But, during your direct examination
when you described what you saw fall to the
ground, you also failed to make any mention of
the phone, is that right?
A. Well, I didn’t fail to mention it. I
intentionally did not mention it due to the scope
of that hearing.
Q. Well, the question I just read to you was
simply what did he drop, right?
13
A. Yes.
Q. You weren’t asked specifically about crack
versus a phone, were you?
A. The scope of that hearing was to determine the
legality of the stop . . . [a]nd the cellphone at that
point had no bearing on that . . . .
Q. So, your explanation is that you just, given
your understanding of the purposes of the hearing,
you chose not to mention the phone?
...
Q. The hearing was on a motion to suppress the physical
evidence that was recovered on the night of June 8,
2002?
A. That’s correct.
Q. And that included the crack cocaine, right?
A. Correct.
Q. And it also included the cellphone?
A. That’s correct.
14
Q. Now, with respect to when you recovered the
bag of crack cocaine, your testimony here today
and back in November [at the first trial] was that
you recovered it as you were chasing Mr. Frazier,
is that right?
...
Q. Let’s get back to the May 9th, 2003 hearing. You say
that was about the admissibility of the crack cocaine,
right?
...
Q. And you met, as you said, with [the Assistant United
States Attorney] before that hearing, right?
...
Q. And prepared to give accurate and truthful
testimony?
[Objection by the Government, asked and
answered; sustained.]
...
Q. I’m done with asking about that. Of course,
you were not trying to give anything but accurate
15
and truthful testimony on May 9th, 2003.
A. Yes, sir.
Q. At that hearing . . . in your direct testimony
you described when you say you recovered the
crack cocaine, is that right?
...
Q. And your testimony on that day was that you ran past
the crack cocaine as it dropped to the ground, right?
A. I mistakenly testified to that, yes.
Q. And continued your pursuit, right?
...
Q. Waited until Mr. Frazier . . . had gone into the grove
of trees in a different abandoned field, is that right?
...
Q. And according to your testimony on May 9th, only
then [did] you return[] to Susquehanna Street and picked
up the crack cocaine?
...
16
Q. And that you returned to recover that crack
cocaine only once assisting officers arrived so that
you could be sure Mr. Frazier wouldn’t leave?
...
Q. And you gave that whole description of how
and when you went back to get the crack cocaine?
...
Q. And you are saying you were just confused on
that day?
A. Yes. I mistakenly testified to when it
occurred, yes.
Q. Under oath?
A. Yes.
A. 183-89 (emphasis added).
Several aspects of this line of inquiry, which was
sustained longer than any other in Frazier’s counsel’s cross-
examination of Mercurio, were reasonably susceptible to an
interpretation that the inquiry suggested intentional fabrication
by Mercurio of some of his trial testimony. Frazier’s counsel
repeatedly questioned Mercurio about all the preparations he
17
had made to testify truthfully and accurately at the suppression
hearing. Frazier’s counsel skeptically questioned Mercurio’s
explanation that he declined to mention the cell phone at the
hearing because he was merely testifying to evidence relevant
to the scope of the hearing, implying instead that Mercurio
omitted mention of the cell phone because the truthful version
of events did not include the cell phone.
Furthermore, Frazier’s counsel specifically questioned
whether Mercurio could possibly have been merely mistaken
after giving two different and detailed accounts of how he
recovered the crack. In his cross-examination, Frazier’s counsel
meticulously walked Mercurio through the details of his
testimony at the May 9th suppression hearing. He then
challenged Mercurio’s explanation that he was simply mistaken
in his hearing testimony, implying instead that Mercurio
testified truthfully at the hearing and intentionally lied at trial.
Also worth noting is the repeated use of the phrase
“under oath” in Frazier’s counsel’s cross-examination of
Mercurio. Oaths are administered to witnesses as a reminder to
them of their obligation to testify truthfully. They are not
intended to guarantee accuracy. See FED. R. EVID. 603 (“Before
testifying, every witness shall be required to declare that the
witness will testify truthfully, by oath or affirmation
administered in a form calculated to awaken the witness’
conscience and impress the witness’ mind with the duty to do
so.”). The fact that a witness is under oath has no bearing on the
quality of a witness’ memory (such that one is more or less
18
likely to make a mistake under oath). However, being under
oath is rife with implications for the witness’ intentions.
Frazier’s counsel’s repeated inquiries to Mercurio about being
under oath could reasonably be expected to draw the jury’s
attention not to Mercurio’s memory, but to his intentions.
We therefore conclude that Frazier’s attorney satisfied
the “recent fabrication” element of Rule 801(d)(1)(B) through
his cross-examination.
B.
The Supreme Court has imputed a “premotive”
requirement into Rule 801(d)(1)(B), so that statements are only
admissible under the rule “when those statements were made
before the charged recent fabrication or improper influence or
motive.” Tome, 513 U.S. at 167. The purpose of this
requirement is that, in most instances, a consistent statement that
predates the motive is more likely to be truthful than a prior
consistent statement made after the motive to fabricate arose.
Id. at 158-59. One potentially difficult issue in this context,
which is present in this case, is the degree to which the
proponent of the prior consistent statement must define and
specify this motive to fabricate.3 In this sense, the premotive
3
The Supreme Court in Tome did not discuss any substantive
differences between recent fabrication, influence, and motive.
Indeed, the Supreme Court labels the language of Rule
19
requirement reflects the common law temporal requirement that
any motive to fabricate must have arisen after the prior
consistent statement in order for the statement to be admissible.
See id. at 159. Frazier urges this Court to interpret Rule
801(d)(1)(B) and Tome as requiring the proponent of the prior
consistent statement to show the district court when the alleged
influence or motive to fabricate arose.
Frazier’s proposed standard is too demanding. The
Supreme Court in Tome did not speak to who has the burden to
show when the alleged motive arose. Rather, the Court
acknowledged that
801(d)(1)(B) as “somewhat peculiar.” Tome, 513 U.S. at 159.
One reasonable reading of Rule 801(d)(1)(B) is that “recent
fabrication” does not even contain a motive component because
the text of the Rule addresses each type of charge separately.
However, the majority opinion in Tome appears to apply its
premotive requirement to all of the charges against the declarant
listed in Rule 801(d)(1)(B). For example, the majority opinion
uses the phrase “motive to fabricate” five times. We are thus
bound by the Supreme Court to apply the premotive requirement
in “recent fabrication” cases as well as “improper influence or
motive” cases. See id. at 165 (“If the Rule were to permit the
introduction of prior statements as substantive evidence to rebut
every implicit charge that a witness’ in-court testimony results
from recent fabrication or improper influence or motive, the
whole emphasis of the trial could shift to the out-of-court
statements, not the in-court ones.”).
20
[w]e are aware that in some cases it may be
difficult to ascertain when a particular fabrication,
influence, or motive arose. Yet . . . a majority of
common-law courts were performing this task for
well over a century . . . and the [party objecting to
the prior consistent statement] has presented us
with no evidence that those courts, or the judicial
circuits that adhere to the rule today, have been
unable to make the determination.
Id. at 165-66. This statement implies that the premotive inquiry
is interrelated with the fabrication/motive/influence inquiry, and
should for the most part be left to the sound discretion of the
district court. Put differently, under the abuse of discretion
standard, a district court’s determination on the premotive
requirement–which should be made after an examination of the
parties’ positions, the record, and the Court’s own
judgment–will not be reversed unless “no reasonable person
would adopt the district court’s view.” Ansell, 347 F.3d at 519.
Several courts of appeals have adopted, at least
implicitly, the position that a Tome premotive analysis requires
the district court to consider the entire record rather than
requiring the proponent to offer a specific date on which the
motive arose. See, e.g., United States v. Londondio, 420 F.3d
777, 784-85, 785 n.3 (8th Cir. 2005), United States v. Trujillo,
376 F.3d 593, 611 (6th Cir. 2004) (deciding the premotive issue
21
“[b]ased upon [their] review of the record”); United States v.
Ruiz, 249 F.3d 643, 648 (7th Cir. 2001); United States v.
Fulford, 980 F.2d 1110, 1114 (7th Cir. 1992).
The facts of this case illustrate why a deferential stance
must be taken with respect to the District Court’s factual finding
on when the motive to fabricate arose. In this case, Frazier
asserts that the defense at trial alleged no recent fabrication or
improper motive, but simply argued that Mercurio told
inconsistent stories under oath. Frazier cites to several passages
from the trial transcript that he asserts imply no more than
confusion or mistake by Mercurio. The Government counters
that the defense at trial did imply recent fabrication by Mercurio
owing to an improper motive to increase the likelihood of
Frazier’s conviction. Although a reasonable factfinder could
have found otherwise, the record supports the District Court’s
finding that the defense implied that Mercurio altered his trial
testimony in order to improperly make Frazier’s conviction
more likely.4
The record supports the Government’s argument that
Officer Kavals’ prior consistent statement predated any motive
4
We do not decide today the degree to which a proponent of
the prior consistent statement must define and specify the
motive when “improper influence or motive” rather than “recent
fabrication” is at issue. We do hold that this motive is sufficient
in the “recent fabrication” context when the other requirements
of Casoni have been met.
22
Mercurio might have had to fabricate his testimony at the
November 14, 2004 trial. Frazier’s counsel’s cross-examination
of Mercurio implies that Mercurio told the truth at the May 9,
2003 suppression hearing but then fabricated his story at trial.
The conversation with Officer Kavals occurred on June 8, 2002.
While the Government does not provide a specific date for when
Officer Mercurio’s purported fabrication might have occurred,
this Court will not impose such a specific requirement. The
premotive requirement will be satisfied if a district court can
reasonably determine from the record a range of time when a
motive to fabricate could have arisen after the prior consistent
statement. In this case, the motive to fabricate must have been
formed sometime between the initial testimony at the
suppression hearing and the first trial, where Officer Mercurio’s
testimony was more damaging to Frazier.
We accord deference to a district court under the abuse
of discretion standard of review. We agree that the District
Court could reasonably have concluded that any motive to
fabricate by Officer Mercurio must have arisen after the initial
post-suppression hearing. The District Court here acted
reasonably–and certainly did not abuse its discretion–in
concluding that the premotive requirement of Rule 801(d)(1)(B)
was satisfied.
IV.
The District Court properly admitted Officer Kavals’
prior consistent statement as nonhearsay pursuant to Rule
23
801(d)(1)(B). Therefore, we will affirm the Judgment of the
District Court.
24