United States v. Dawson, Pierre ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
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Nos. 04-2557, 04-2592
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PIERRE DAWSON and ALPHONSO INGRAM,
Defendants-Appellants.
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Petition to Rehear Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 CR 688—Elaine E. Bucklo, Judge.
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SUBMITTED DECEMBER 7, 2005—DECIDED JANUARY 17, 2006
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Before CUDAHY, POSNER, and WILLIAMS, Circuit Judges.
POSNER, Circuit Judge. The government has moved for
rehearing, complaining about the following passage in our
opinion of September 28 and more particularly about the
sentence in that passage that we have italicized:
In suppression hearings in two previous cases,
involving other defendants, the trial judges had disbe-
lieved testimony by three government agents who
also testified for the prosecution in our case. Defense
counsel in our case wanted to use those judges’ rulings
to impeach the three witnesses’ testimony. The judge
2 Nos. 04-2557, 04-2592
refused on the basis of Rule 608(b) of the Federal Rules
of Evidence, which provides that “specific instances
of the conduct of a witness, for the purpose of attacking
or supporting the witness’ character for truthfulness,
other than conviction of crime as provided in rule 609,
may not be proved by extrinsic evidence.” Our defen-
dants were not proposing to use extrinsic evidence, how-
ever, but merely to ask each witness whether a judge had
disbelieved him or her in a previous case.
United States v. Dawson, 425 F.3d 389, 396 (7th Cir. 2005). We
went on to say that the error was harmless, and to affirm the
conviction. But the government is concerned about the
possible stare decisis effect of the passage and wants us to
delete or modify it. Although deletion would provide no
succor for the defendants, their lawyers have helpfully
responded to the government’s petition, and so we have had
the benefit of an adversary presentation of the issue.
The government bases its argument on two items to which
it did not refer in its appeal brief. One is a statement in the
committee note accompanying amendments to Rule 608(b)
made in 2003; the statement in its entirety is: “See also
Stephen A. Saltzburg, Impeaching the Witness: Prior Bad
Acts and Extrinsic Evidence, 7 Crim. Just. 28, 31 (Winter
1993) (’counsel should not be permitted to circumvent the
no-extrinsic-evidence provision by tucking a third person’s
opinion about prior acts into a question asked of the witness
who has denied the act’).” The second item is a footnote in
United States v. Davis, 183 F.3d 231, 257 n. 12 (3d Cir), as
amended by 197 F.3d 662 (1999), which, citing Saltzburg
article, states that the government “may [on cross-examina-
tion] question Davis [a defense witness] about lying to an
Internal Affairs officer about ripping up an individual’s
subway pass[, but] if he denies that such events took
Nos. 04-2557, 04-2592 3
place, . . . the government cannot put before the jury
evidence that he was suspended or deemed a liar by
Internal Affairs.” See also United States v. Whitmore, 384 F.3d
836 (D.C. Cir. 2004) (per curiam), which appears to approve
of the statement in Davis.
The passage in the committee note is not keyed to any
change in the text of Rule 608(b) made by the 2003 amend-
ments; in effect it is post-enactment legislative history— and
not by a legislature, either; it is a statement by a committee
of the Judicial Conference of the United States, i.e., a
committee of judges. Nevertheless it is entitled to
our respectful consideration. Tome v. United States, 513
U.S. 150, 160 (1995); Edward J. Imwinkelried, “Moving
Beyond ‘Top Down’ Grand Theories of Statutory Con-
struction: A ‘Bottom Up’ Interpretive Approach to the
Federal Rules of Evidence,” 75 Ore. L. Rev. 389, 394-95, 411-
12 (1996). Even Justice Scalia, no fan of legislative his-
tory, agrees. Tome v. United States, supra, 513 U.S. at 167-68(concurring opinion). The note itself, however, is to a
rule concerning extrinsic evidence; the reference to ques-
tions of a witness appears only in the quotation from
Professor Saltzburg’s article. The weight properly given
to such a reference is obscure.
Davis and Whitmore do not dispel the obscurity. They
do not distinguish clearly between presenting extrinsic
evidence that the witness was found not credible and, in
a paraphrase of Saltzburg’s statement, “inject[ing] the views
of a third person into the case to contradict the witness”
merely by asking the witness about those views. United
States v. Davis, supra, 183 F.3d at 257 n. 12. The passage we
quoted earlier from Davis was unexceptionable in distin-
guishing between questioning a witness and presenting
extrinsic evidence to contradict his answer; all that makes
4 Nos. 04-2557, 04-2592
the case seem to bear on the issue before us is the court’s
quotation of the passage from Saltzburg.
In Davis, moreover, the third person was not a judge; and
while one of the third persons in Whitmore was, the per
curiam opinion does not bother to mention the fact. The
distinction may be important. Rule 609 allows convictions to
be used to impeach credibility, suggesting that findings by
judges or juries are entitled to more weight than what any
old third party might happen to think about a witness’s
credibility. The quotation from Saltzburg’s article likewise
refers to “a third person’s opinion” without attempting to
distinguish among third persons. It is possible that
Saltzburg, and the committee, rather than interpreting Rule
608(b) were merely offering cautionary advice to district
judges regarding the exercise of discretion in the control of
cross-examination; more on this later.
Rule 608(b) begins: “specific instances of the conduct
of a witness, for the purpose of attacking or supporting
the witness’ character for truthfulness . . . may . . . in the
discretion of the court, if probative of truthfulness or
untruthfulness, be inquired into on cross-examination of the
witness . . . .” Clearly that would have allowed the judge to
permit the defendants’ lawyer in this case to ask the wit-
nesses whether they had lied in two previous suppression
hearings. And there is nothing to suggest that the “inquiry”
could not have extended to asking the witness whether a
judge, say, had ever found him not to be a credible witness.
After referring to “specific instances of the conduct of a
witness, for the purpose of attacking or supporting the
witness’ character for truthfulness,” that may be inquired
into on cross-examination, Rule 608(b) adds that: such
character “may not be proved by extrinsic evidence.” There
would have been a problem in this case had the defendants’
Nos. 04-2557, 04-2592 5
lawyer asked “has any federal judge ever found that you
lied on the stand?” and when the witness answered “no”
the lawyer sought to have the judge’s finding placed in
evidence. That would be “extrinsic evidence” and would be
barred by Rule 608(b) if the evidence were being used to
undermine the witness’s “character for truthfulness.” (It
could have uses that did not concern “character for truthful-
ness” and were therefore outside Rule 608(b).)
This is not to suggest that every question a lawyer
might want to ask about a third party’s opinion of the
credibility of a witness would be proper cross-examination.
It is to suggest only that such questions are outside the
scope of Rule 608(b). The trial judge has a responsibility
not to allow cross-examination to get out of hand, con-
fuse the jury, and prolong the trial unnecessarily. It
would be one thing to ask a witness whether a judge or jury
had disbelieved his testimony in the past if a
pattern of dishonest testimony by the witness could be
shown, and quite another to ask such a question when the
witness had testified frequently and been disbelieved in
only one case or where it was unclear whether and why
the witness’s testimony had been rejected. It would be
within the district judge’s discretion to permit the ques-
tion in the first case and to forbid it in the second. Where on
the spectrum the interrogation that the defendants’ lawyers
wanted to conduct in this case fell is unclear from the
record, but also unimportant, since if there was error in
refusing to permit the interrogation it was harmless.
The important point is that the decision whether to al-
low a witness to be cross-examined about a judicial de-
termination finding him not to be credible is confided to the
discretion of the trial judge; it is not barred by Rule 608(b),
which, to repeat, is a rule about presenting extrin-
sic evidence, not about asking questions.
6 Nos. 04-2557, 04-2592
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-17-06