Opposition Brief — Milzman v. United States

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No. 91-846 JAN 27 1992

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In the Supreme Court of the United States

OCTOBER TERM, 1991

IRVIN JAY MILZMAN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

¥ Assistant Attorney General

NINA GOODMAN

Attorney

Department of Justice

Washington, D.C. 20530

(202) 514-2217

QUESTION PRESENTED

Whether the district court abused its discretion in

refusing to allow petitioner to introduce extrinsic

evidence of a government witness’s prior statement.

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TABLE OF CONTENTS

Page

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I _ninieesoemmenseccossnensescsenve 1

as cucimminotemennersenesaconenscs 4

a psevieseoeapececoerrerasece 10

TABLE OF AUTHORITIES

Cases:

Bowman v. Kaufman, 387 F.2d 582 (2d Cir.

Neen en, conenenensnconenes 7

United States vy. Balliviero, 708 F.2d 934 (5th

Cir.), cert. denied, 464 U.S. 939 (1983) _........ 9

United States v. Causey, 834 F.2d 1277 (6th Cir.

1987), cert. denied, 486 U.S. 1034 (1988) _........ 4

United States v. Insana, 423 F.2d 1165 (2d Cir.),

cert. denied, 400 U.S. 841 (1970) —.........0- 6

United States v. McCrady, 774 F.2d 868 (8th Cir.

Teen samsevesmuseanrscceceveceee 4

United States v. Palumbo, 639 F.2d 123 (3d Cir.)

cert. denied, 454 U.S. 819 (1981) —........02000.... 5, 6

United States v. Rogers, 549 F.2d 490 (8th Cir.

1976), cert. denied, 431 U.S. 918 (1977) -........... 6

United States v. Sisto, 584 F.2d 616 (5th Cir.

a OE A 9

United States v. Stone, 702 F.2d 1333 (11th Cir.

a cccpenrniavassnembosessyncs 5

United States v. Thompson, 708 F.2d 1294 (8th

SR 6, 7

United States v. Tracey, 675 F.2d 433 (1st Cir.

US 5

Williamson v. United States, 310 F.2d 192 (9th

Nees cememensensnsueasnccenes x

Woods y. United States, 279 F. 706 (4th Cir.

ES 8

Statutes and rule: Page

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3 | | a eaeeeenan PROPS TOD 2

nn ne caaieal 3, 4, 8, 10

In the Supreme Court of the United States

OCTOBER TERM, 1991

No. 91-846 z

IRVIN JAY MILZMAN, PETITIONER

Vv.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. Al-

A54) is reported at 934 F.2d 1325.

JURISDICTION

The judgment of the court of appeals was entered

on June 20, 1991. A petition for rehearing was de-

nied on August 29, 1991. The petition for a writ of

certiorari was filed on November 22, 1991. The juris-

diction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Western District of Texas, petitioner

was convicted on one count of conspiring to possess

(1)

2

methamphetamine with the intent to distribute it, in

violation of 21 U.S.C. 846, and two counts of filing

false income tax returns, in violation of 26 U.S.C.

7206(1). Gov’t C.A. Br. 6-7, 9. He was sentenced

to 235 months in prison and fined $100,000. Jd. at

9. The court of appeals affirmed. Pet. App. Al-A54.

1. The evidence at trial established that petitioner

was a member of a large-scale conspiracy to manu-

facture and distribute methamphetamine. One of the

government’s witnesses, Wesley Gerald Schneider,

pleaded guilty to participating in the conspiracy and

agreed to cooperate with the government. Schneider

testified at trial concerning various narcotics dealings

between petitioner and the leader of the drug opera-

tion, John Robinette. At one point during the course

of his testimony, Schneider testified that petitioner

sold methamphetamine for Robinette. 6 Tr. 1442.

Schneider also recounted a meeting that he had at-

tended in which petitioner asked Robinette for a re-

duction in price for the drug because petitioner was

Robinette’s major buyer and was paying cash. Pet.

App. A5; Gov’t C.A. Br. 21-22.

On cross-examination, petitioner’s counsel asked

Schneider whether he remembered a conversation that

had occurred at a local restaurant and touched on

petitioner’s role in the conspiracy. Schneider re-

sponded that he recalled that the conversation had

taken place, but could not recall what had been said.

Pet. App. A40; Gov’t C.A. Br. 51-52.

Petitioner subsequently called as a witness one

James Parker, who had been present during the res-

taurant conversation. Petitioner’s counsel asked

Parker to relate what the other two men had said.

The district court excluded Parker’s testimony on

hearsay grounds. Pet. App. A40.

3

Petitioner proffered Parker’s testimony outside the

presence of the jury. If permitted to testify, Parker

would have stated that, during the conversation in

question, Schneider informed petitioner that he had

told his attorney that he “thought [petitioner] was

one of John Robinette’s distribution points.” Accord-

ing to Parker, petitioner responded: “You shouldn’t

be telling your attorney that, it’s not so. I don’t ap-

preciate you spreading those kind of things about

me.” Schneider then replied: “Well, perhaps I’m

wrong. I’m sorry I brought it up.” 7 Tr. 1655-1656.

2. In the court of appeals, petitioner argued that

the district court abused its discretion in refusing to

permit him to introduce Parker’s testimony to im-

peach Schneider’s credibility. “He claimed that the

testimony was admissible under Rule 613(b), Fed.

R. Evid., which permits the district court to admit

“Te]xtrinsic evidence of a prior inconsistent state-

ment by a witness” after the witness “is afforded an

opportunity to explain or deny” the statement. The

court of appeals rejected petitioner’s claim, holding

that “on the facts of this case, Schneider’s claim of

faulty memory did not constitute an inconsistent

statement.” Pet. App. A41. Because Parker’s testi-

mony could not be used to impeach Schneider, the

court held that the district court did not abuse its

discretion in excluding Parker’s testimony as hear-

say. Pet. App. A41-A42.

4

ARGUMENT

Petitioner contends that the court of appeals erred

in holding that extrinsic evidence of a witness’s prior

inconsistent statement is not admissible under Rule

613(b) when the witness testifies that he does not

remember making the prior statement. Pet. 5-13.

The court of appeals, however, did not categorically

rule that extrinsic evidence may not be used for im-

peachment when a witness asserts an inability to re-

member; rather, the court ruled narrowly that ‘“‘on

the facts of this case” the district court did not

abuse its discretion in excluding the extrinsic evidence

of Parker’s prior statement. That conclusion was cor-

rect and does not warrant further review by this

Court.

Rule 613(b), Fed. R. Evid., provides in relevant

part: ©

Extrinsic evidence of a prior inconsistent state-

ment by a witness is not admissible unless the

witness is afforded an opportunity to explain

or deny the same and the opposite party is af-

forded an opportunity to interrogate the witness

thereon, or the interests of justice otherwise

require. * * *

A district court has considerable discretion in deter-

mining whether a witness’s prior statement is in-

consistent with his or her testimony at trial. See,

e.g., United States v. Causey, 834 F.2d 1277, 1282-

1283 (6th Cir. 1987), cert. denied, 486 U.S. 1034

(1988); United States v. McCrady, 774 F.2d 868,

873 (8th Cir. 1985).

The district court acted within its discretion in

excluding the proffered evidence of Schneider’s prior

statement, because the statement was not inconsist-

ent with Schneider’s testimony concerning petitioner’s

5

involvement in the distribution of methamphetamine

for Robinette. See, e.g., United States v. Stone, 702

F.2d 1333, 1340 (11th Cir. 1983) (no abuse of dis-

cretion in excluding extrinsic evidence where counsel

did not ‘clearly explain” inconsistency); United

States v. Tracey, 675 F.2d 433, 440 (1st Cir. 1982)

(starting point of analysis was whether prior state-

ments “in fact contradicted [the witness’s] testi-

mony”); United States vy. Palumbo, 639 F.2d 123, 128

n.6 (3d Cir.) (no abuse of discretion in excluding

prior statement when in-court assertion is ‘‘not nec-

essarily inconsistent”) (emphasis omitted), cert. de-

nied, 454 U.S. 819 (1981). According to Parker,

petitioner told Schneider that he “should not be tell-

ing [his] attorney that [petitioner was one of

Robinette’s distribution points], it’s not so.”” Schneider

responded, according to Parker: ‘Well, perhaps I’m

wrong. I’m sorry I brought it up.” In light of

Schneider’s extensive testimony concerning his first-

hand observation of petitioner’s dealings with

Robinette, see Gov’t C.A. Br. 21-22, the response at-

tributed to him by Parker suggests that Schneider

believed that he was wrong to have raised the subject

with his lawyer, not that he was wrong about the

nature of petitioner’s relationship with Robinette.

Even if the statement referred to Schneider’s conclu-

sion about the relationship between petitioner and

Robinette, Schneider’s tentative and apologetic ac-

knowledgement to petitioner that he might be

“wrong” can hardly be deemed inconsistent with

Schneider’s detailed testimony at trial concerning the

unlawful business relationship between Robinette and

petitioner.

Nor was there any inconsistency between petition-

er’s alleged prior statements during the restaurant

conversation and his testimony at trial that he did

6

not remember the contents of that conversation. Nei-

ther the district court nor the court of appeals found

that Schneider was falsely claiming lack of memory in

order to avoid impeachment with his prior stateinent.

Nor does petitioner point to anything in the record

that would support his suggestion, Pet. 12, that

Schneider was a “recalcitran[t]” witness. Because

there is no evidence that Schneider’s inability to re-

call the contents of his conversation with petitioner

was anything other than an honest failure of memory,

the district court did not abuse its discretion in rul-

ing that the proffered extrinsic evidence of petition-

er’s “restaurant statements” was inadmissible to im-

peach Schneider’s credibility. See, e.g., United States

v. Rogers, 549 F.2d 490, 496 (8th Cir. 1976), cert.

denied, 431 U.S. 918 (1977); United States v.

Insana, 423 F.2d 1165, 1170 (2d Cir.), cert. denied,

400 U.S. 841 (1970); see also Palumbo, 639 F.2d at

128 n.6 (“lack of memory as to the substance of a

prior statement may not be inconsistent in certain

circumstances with the prior statement”).

As petitioner notes, Pet. 9, courts of appeals have

held that a witness’s claim that he or she cannot re-

member making a prior statement may in effect be

inconsistent with the prior statement and thus justify

the admission of that statement for impeachment

purposes. Nothing in those decisions, however, con-

flicts with the decision in this case. In United States

v. Thompson, 708 F.2d 1294 (8th Cir. 1983), the

court of appeals held that the district court did not

abuse its discretion in permitting the prosecutor to

read portions of a witness’s testimony from a previ-

ous trial while he examined the witness. Jd. at 1302.

The witness admitted giving the prior testimony but

refused to acknowledge its truth, insisting that he

could not recall the events about which he had testi-

7

fied. Ibid. The court noted that a district court

“should have considerable discretion to determine

whether evasive answers are inconsistent with state-

ments previously given.” Jdid. Because the witness

in Thompson had been “particularly recalcitrant, ar-

gumentative, and hesitant,” the court of appeals con-

cluded that the district court did not abuse its discre-

tion in concluding that the evasive answers were

inconsistent with the prior statements. Jbid. That

determination does not conflict with the court of ap-

peals’ conclusion here that ‘‘on the facts of this case,”

Pet. App. A41, the district court acted within its dis-

cretion in refusing to find that Schneider’s lack of

recollection regarding the “restaurant statements”

was inconsistent with those statements.

The other allegedly conflicting decisions, all of

which precede the adoption of the Federal Rules of

Evidence, similarly fail to support petitioner’s claim.

In Bowman vy. Kaufman, 387 F.2d 582 (2d Cir.

1967), the court of appeals held that the district court

erred in excluding evidence of a witness’s prior state-

ment that the driver of a vehicle had told him that

its brakes did not work. In so holding, the court of

appeals noted that the witness was “evasive” and

“took questionably frequent resort to failure to re-

member and inability to recall.” Jd. at 589. The wit-

ness, moreover, flatly denied the substance of the

prior statement, rather than merely claiming that he

could not remember what he had said. Jhid. That

case, like Thompson, was thus one in which the wit-

ness’s testimony at trial was properly deemed incon-

sistent with his prior statements, even though the

testimony consisted mainly of assertions of lack of

recollection.

8

In Williamson vy. United States, 310 F.2d 192 (9th

Cir. 1962), the court of appeals held that the district

court acted properly in admitting extrinsic evidence

of a prior inconsistent statement even though the

defendant testified that he did not “recall saying

that.” Jd. at 198. The court noted that the incon-

sistency that the government sought to exploit was

not between the prior statement and the denial of

recollection, but between the prior statement and the

squarely contrary testimony that the defendant gave

at trial. Jbid. Moreover, the court explained, the

prior statement was admissible as affirmative evi-

dence because it was the admission of a party. Jd. at

199. Woods vy. United States, 279 F. 706 (4th Cir.

1922), was another case in which the witness al-

legedly made statements before trial that were in-

consistent with his trial testimony. The witness de-

nied any recollection of the prior statements, and

when the district court excluded proof regarding

those statements, the court of appeals reversed. The

court held that the defendant was entitled to intro-

duce the prior statements because they were incon-

sistent with the witness’s affirmative testimony at

trial and because they tended to show bias on the part

of the witness. /d. at 711.

In this case, unlike each of the foregoing cases,

there was no inconsistency between the prior state-

ment and the trial testimony, and the court of ap-

peals properly determined that there was no incon-

sistency between the prior statement and the witness’s

denial of recollection of the statement. The predicate

of inconsistency—which is essential for admission of

a prior statement under Rule 613(b)—was therefore

absent here.

Petitioner seizes on a single sentence in the court

of appeals’ opinion, in which the court stated that

9

proof of an inconsistent statement “may be elicited

by extrinsic evidence only if the witness on cross-

examination denies having made the statement.” Pet.

App. A41. That sentence, he contends, indicates that

the Fifth Circuit is now committed to the position

that a witness can bar the admission of an incon-

sistent statement just by feigning a lack of recollec-

tion of its contents. Pet. 8. Aside from the fact that

the authority the court cites at that point in its opin-

ion does not support that interpretation,’ we do not

believe that the quoted sentence should be read in that

fashion. Instead, the passage in question should be

read, we believe, as being consistent with the more

conventional point that an asserted failure to recall

a statement can in effect be inconsistent with the

prior statement itself if the circumstances make it

appear that the denial of recollection is feigned. That

interpretation of the sentence on which petitioner

focuses is buttressed by the court of appeals’ refer-

ence to United States v. Balliviero, 708 F.2d 934, 939-

940 (5th Cir.), cert. denied, 464 U.S. 939 (1983), in

the immediately following paragraph. That case

stands for the proposition that a denial of recollection

of a statement is not necessarily inconsistent with the

statement itself—an accepted principle of evidence

law thai appears to be the same principle that the

court of appeals intended to express in the sentence

on which petitioner focuses. Because there was no

inconsistency among the statements at issue in this

case—the witness’s trial testimony and either his

alleged “restaurant statements” or his denial of re-

1 The case cited, United States v. Sisto, 534 F.2d 616 (5th

Cir. 1976), states that a prior inconsistent statement may be

proved by extrinsic evidence “if on cross-examination the

witness has denied making the statement, or has failed to

remember it.” Id. at 622 (emphasis added).

10

collection of the content of those statements—the

court of appeals properly held the proffered evidence

inadmissible under Rule 613(b).

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

ROBERT S. MUELLER, III

Assistant Attorney General

NINA GOODMAN

Attorney

JANUARY 1992

vw” U. S. GOVERNMENT PRINTING OFFICE; 1992 312324 45276