Petition for Writ of Certiorari — United States v. DiMatteo

83-1554

am «al

No.

6

Office - Supreme Court, U.S.

FILED

MAR 1Y 1984

ALEXANDER L. STEVAS.,

CLERK

In the Supreme Court of the Anited States

OCTOBER TERM, 1983

UNITED STATES OF AMERICA, PETITIONER

U.

RICHARD DIMATTEO, ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

REX FE. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

JOHN H. GARVEY

Assistant to the Solicitor General

SARA CRISCITELLI

Attorney

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether an adverse ruling on a defendant’s motion

in limine to restrict cross-examination of his proposed

witness is reviewable on appeal if the defendant does

not call the witness to testify at trial.

2. If so, whether the court of appeals erred in pre-

suming, both as to the proponent of the witness and as

to two co-defendants, that any error in the trial court’s

ruling was not harmless.

(I)

II

PARTIES TO THE PROCEEDING

In addition to Richard DiMatteo, respondents are

Morris Kessler and James Suggs.

TABLE OF CONTENTS

Page

cig hy eek uns chess ss 1

ER Se el a 1

ss aa ob deus vow eee s 2

Reasons for granting the petition.............. 8

ei we eb h easy én sso-004s609 12

EEE ee la

I ae a Naa ba chews Cabs dirk cis ax 13a

Ts ie Ska RG TOW UAV 00 ON Od 06's des 14a

TABLE OF AUTHORITIES

Cases:

New Jersey v. Portash, 440 U.S. 450 ..... 10

United States v. Cook, 608 F.2d 1175, cert.

Gy ON rt BOE vies ccvccdivenscecs 9

United States v. Fountain, 642 F.2d 1083,

cert. denied, 451 U.S. 993 ............. 9

United States v. Fulton, 549 F.2d 13825 .... 9

United States v. Halbert, 668 F.2d 489,

cert. denied, 456 U.S. 984 .............. 9

United States v. Hayes, 553 F.2d 824, cert.

denied, 434 U.S. 867 ........ccccccceees

United States v. Hendershot, 614 F.2d 648 .

United States v. Hickey, 596 F.2d 1082....

United States v. Kiendra, 633 F.2d 349....

United States v. Lipscomb, 702 F.2d 1049..

United States v. Luce, 713 F.2d 1236, peti-

tion for cert. pending, No. 83-912.. 8, 9, 10, 12

United States v. Murray, 492 F.2d 178,

cert. denied, 419 U.S. 942 .............. 9

ooo © ©

(III)

IV

Cases—Continued: Page

United States v. Palumbo, 401 F.2d 270,

cert. denied, 394 U.S. 947 ............. 8)

United States v. Panza, 612 F.2d 482, cert.

Gemene. GGr GBs He ka ee ei eb ti 11

United States v. Phillips, 664 F.2d 971 .... 11

United States v. Portillo, 633 F.2d 1313,

cert. denied, 450 U.S. 1048 ............. 9

United States v. Provenzano, 620 F.2d 985,

cert. denied, 449 U.S. 899 .............. 9

United States v. Toney, 615 F.2d 277, cert.

ee BB ae ere ee 9

United States v. Varella, 692 F.2d 1352,

cert. denied, No. 82-6845 (Oct. 3, 1983) .. 2, 4

United States v. Walters, 477 F.2d 386,

cert. denied, 414 U.S. 1007 ............. 9

United States v. Whitehead, 618 F.2d 528 .. 9

Constitution, statutes and rules:

Uc CE A 8 ick es oe el 5, 6, 8

BR Ue hioias 05 ceed ain 2

BE See conde hase eae 2

RTE TR RP perry pore 2

ee sis aid needs knkeed eens 2

Fed. R. Evid.

OL ee Ee aia ed aes reali 6

TE eto Jae a bo oe owed bee ea 6

In the Supreme Cowt of the Anited States

OCTOBER TERM, 1983

No.

UNITED STATES OF’ AMERICA, PETITIONER

v.

RICHARD DIMATTEO, ET AL.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS |

FOR THE ELEVENTH CIRCUIT

The Solicitor General, on behalf of the United States,

petitions for a writ of certiorari to review the judgment

of the United States Court of Appeals for the Eleventh

Circuit in this case.

OPINION BELOW

The opinion of the court of appeals (App., infra,

la-12a) is reported at 716 F.2d 1361.

JURISDICTION

The judgment of the court of appeals (App., infra,

13a) was entered on October 11, 1983. A petition for re-

hearing was denied on December 19, 1983 (App., infra,

14a). On February 8, 1984, Justice Powell extended the

time for filing a petition for a writ of certiorari to March

18, 1984 (a Sunday). The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

(1)

STATEMENT

After a jury trial in the United States District Court

for the Southern District of Florida, respondents

Kessler and DiMatteo were convicted of conspiracy to

import marijuana, in violation of 21 U.S.C. 963 (Count

One), conspiracy to possess marijuana with intent to

distribute it, in violation of 21 U.S.C. 846 (Count

Three), and importation (Count Two) and possession of

marijuana (Count Four), in violation of 21 U.S.C.

841(a)(1) and 952(a). Respondent Suggs was convicted

of conspiracy to possess marijuana (Count Three), but

was acquitted of possession of marijuana (Court Four).

Kessler and DiMatteo were each sentenced to concur-

rent terms of 30 months’ imprisonment on all counts, to

be followed by concurrent special parole terms of three

years. Suggs was sentenced to 18 months’ imprison-

ment, suspended in favor of three years’ probation. The

court of appeals reversed.

1. The evidence at trial, the sufficiency of which was

not disputed on appeal, established that early in 1980

respondent Kessler contacted Jimmy Miller, an inform-

ant working with the Drug Enforcement Administra-

tion, about a possible drug smuggling scheme (Tr.

538-539). Miller agreed to meet Kessler, but he also

notified the DEA (Tr. 539).

On April 3, 1980, Miller met with Kessler at the

Fontainebleau Hotel in Miami Beach. With Miller was

DEA Special Agent Charles Martinez. Miller intro-

duced Martinez as “Carlos,” a pilot with long experi-

ence flying drugs into the United States (Tr. 96-98).

Kessler told Martinez that he and his “long time part-

ner” Ricky (DiMatteo) were working with two groups

1 Other co-conspirators were convicted at an earlier trial.

Their convictions were affirmed on appeal. United States v.

Varella, 692 F.2d 1352 (11th Cir. 1982), cert. denied, No.

82-6845 (Oct. 3, 1983).

3

of Cubans and needed a pilot to help them fly marijuana

out of Haiti and Colombia in a DC-6 (Tr. 99-100, 113).

Martinez replied that he would not fly out of Colombia,

but he agreed to assist Kessler and his co-conspirators

in flying the marijuana from Haiti (Tr. 100-101). During

this two-hour meeting (Tr. 107) Kessler repeatedly left

Martinez to speak to “the Cubans” (later identified as

co-conspirators Varella and Chinea) (Tr. 102-105,

327-328), returning to Martinez with details about the

plane they were to use to transport 17,000 pounds of

marijuana (Tr. 101-103) and what Martinez would be

paid for his participation (Tr. 104). Martinez agreed to

meet with Kessler again the next morning.

On April 4, Martinez again met with Kessler at the

hotel. Kessler introduced Martinez to DiMatteo (Tr.

108-109, 328-329) and arranged a meeting for that after-

noon in DiMatteo’s hotel room at the Cricket Club, a

private club in Miami Beach (Tr. 107-110).

DiMatteo’s sponsor at the Cricket Club. Bobby

Caldevilla, was present at the afternoon meeting. The

co-conspirators discussed details of the planned mari-

juana importation, including the airplane, the proce-

dures to be followed, and Martinez’s payment. Martinez

told DiMatteo he would need $75,000 “front money” out

of the agreed total payment of $150,000. When

DiMatteo demurred, he agreed to take only $50,000

(Tr. 116-117).

On April 9, Martinez met respondent Suggs and two

others, who were “in charge of the off-loading opera-

tion” (Tr. 137-138). They arranged to meet the next

morning at the proposed landing field in central Florida

(Tr. 140). Early the next morning, Martinez flew in a

chartered plane to a small airport in Leesburg, Florida,

where he was met by Suggs (Tr. 141-144). Suggs then

drove Martinez to the proposed landing site. He de-

scribed the field’s dimensions to Martinez, and said that

even if the police were to learn that a plane had landed,

4

they would be able to unload the marijuana before the

police could get to the landing site (Tr. 144-145). Suggs

then drove Martinez back to the airport (Tr. 153-154).?

After several more meetings with other co-

conspirators (Tr. 157-162) Martinez flew to Haiti on

April 19, and the next day flew the loaded DC-6 to the

landing site in central Florida (Tr. 163-167). Martinez

and surveillance agents saw 10 to 15 people unload the

cargo into waiting trucks and drive the loaded trucks

away (Tr. 174-177). DEA agents followed three of the

trucks, seized their contents—a large quantity of mari-

juana (Tr. 320-322)—and arrested several individuals.

The main conspirators continued to meet, however, to

discuss how and why they had lost their marijuana and

how to recover their lost profits (Tr. 183-185). Martinez

spoke frequently with Kessler over the next three ,

weeks, reassuring him that they would receive their

share of the marijuana money (Tr. 186).

2. During the government’s direct case DiMatteo an-

nounced his intention to call Caldevilla as a defense wit-

ness (Tr. 244). After the government rested DiMatteo

reaffirmed his intention to call Caldevilla, as a witness

on his behalf, to testify that at the April 4 Cricket Club

meeting there had been no discussion of marijuana (Tr.

424). The government responded that if Caldevilla tes-

tified that the April 4 meeting concerned legitimate

business, it would cross-examine him about subsequent

drug discussions and transactions with Agent Martinez

unrelated to the charges in this case (Tr. 425).

2 Martinez described Suggs’ car as a big four-door green

Chrysler (Tr. 144). A surveillance agent saw Martinez leave the

Leesburg Airport in a green Chrysler bearing a license tag reg-

istered to Suggs (Tr. 322; GX 16).

* Caldevilla had originally beer charged in the same indict-

ment. The charges were dismissed after the district court

found, in the Varella trial, that co-conspirator statements could

not be used against him.

Winnie tal

5

DiMatteo’s attorney then made a proffer of

Caldevilla’s proposed testimony outside the presence of

the jury. He said that Caldevilla would testify about

“his relationship with Mr. DiMatteo and the fact that

Mr. DiMatteo was a guest of Mr. Caldevilla’s at the

Cricket Club in early April of 1980, and that he was in-

vited to come down here on business by Mr. Caldevilla

related to an oil deal with Niger[iJa” (Tr. 428). The deal

purportedly involved DiMatteo’s brother, an electrical

engineer in Pennsylvania (Tr. 428-429).

The government responded that Caldevilla’s April 4

meeting with Kessler and DiMatteo concerned narcot-

ics, not oil, and stated that Caldevilla had continued to

meet with Agent Martinez and Kessler through July 28

to negotiate another marijuana deal (Tr. 431-432).

Caldevilla had not yet been indicted for those subse-

quent activities, but an investigation was in progress

(Tr. 432). The government proposed to cross-examine

Caldevilla about his subsequent transaction to impeach

his testimony about the April 4 meeting (Tr. 434). The

prosecutor also stated that if Caldevilla claimed igno-

rance of the July marijuana meetings he would call

Agent Martinez as a rebuttal witness (Tr. 435).

Concerned about requiring Caldevilla to assert his

privilege against self-incrimination before the jury, the

court allowed him to present a dry run of his proposed

testimony out of the jury’s presence and cautioned him

on his Fifth Amendment privilege (Tr. 438-440).

Caldevilla testified in the voir dire that he was present

in the hotel room on April 4 and that he had heard no

conversation about marijuana or drugs (Tr. 446-447,

455-456). He said that he and DiMatteo had discussed

an oil deal involving DiMatteo and his brother (Tr. 453).

After the voir dire the court tentatively ruled that the

government could not question Caldevilla about his lat-

er marijuana transactions with Agent Martinez. The

6

court then recessed the trial overnight to permit the

government to research the issue (Tr. 458).

The next morning the government again argued that

Caldevilla’s subsequent marijuana-related conversa-

tions and dealings with Agent Martinez were relevant

to impeach his testimony that the April 4 meeting con-

cerned only legitimate business dealings, since those

contacts would have been inexplicable had Caldevilla

not learned at the meeting of Martinez’s apparent in-

volvement in illicit drug trafficking (Tr. 472-476). The

government accordingly contended that the impeach-

ment evidence was not directed at Caldevilla’s charac-

ter (Tr. 465, 490-491), se that unless Caldevilla admit-

ted the subsequent narcotics conversations with Agent

Martinez, it was entitled to impeach him directly by

putting on a rebuttal witness (Tr. 476-480). DiMatteo

responded that Fed. R. Evid. 608 precluded the use of

extrinsic evidence to prove Caldevilla’s subsequent con-

duct (Tr. 481).

The district court reversed its earlier ruling (Tr.

493-496). Relying on Fed. R. Evid. 403, it held that be-

cause Caldevilla’s testimony would directly conflict with

Martinez’s testimony about what happened at the April

4 meeting, the government’s proffered cross-

examination and rebuttal were material and relevant

(Tr. 494). The court noted that admission of the evi-

dence did not violate Fed. R. Evid. 608(b), since the

government’s proffered evidence was “not character ev-

idence or evidence designed to address the character of

the witness” (Tr. 494-495). Accordingly the court ruled

that the government could cross-examine Caldevilla

about the subsequent transactions, and if Caldevilla

denied them or refused to answer the questions, could

offer rebuttal testimony (Tr. 496).

After another voir dire of Caldevilla concerning his

July 1980 discussions with Martinez, during which

Caldevilla asserted his Fifth Amendment privilege (Tr.

RA eT RS ee Or ED

7

497-498), DiMatteo chose not to call him as a defense

witness before the jury (Tr. 511). DiMatteo then re-

quested a continuance to secure the testimony of two

other witnesses (whom he had not subpoenaed) who

had attended the April 4 meeting and could—he

said—testify along the same lines as Caldevilla. The

district court, finding that DiMatteo had had several

months to prepare for trial, denied his mid-trial request

for a continuance (Tr. 512-513).

3. The court of appeals reversed. It first concluded

that DiMatteo was entitled to seek review of the trial

court’s ruling in limine, even though he had never put

Caldevilla on the stand and the arguably inadmissible

evidence had never been introduced. “The trial court

was clearly apprised of the disagreement with its ruling

in the offer of proof, and that is the primary considera-

tion in preservation of error” (App., infra, 5a).

The court held that both Kessler and Suggs were also

entitled to review of the trial court’s ruling. Kessler

had not sought to put Caldevilla on the stand, but had

objected to the government’s proposed cross-

examination and rebuttal since it would refer to later

marijuana deals in which Kessler participated (Tr. 438,

487). That was sufficient, the court of appeals con-

cluded, to entitle Kessler to seek reversal based on the

district court’s ruling.* Finally, the court found that

Suggs should stand in the same position as his co-

defendants, since he had “adopted” their objections

(App., infra, 6a).5

4 The government had, however, agreed not to refer to

Kessler’s participation in the subsequent marijuana deal (Tr.

492-493).

5 Suggs’s only participation in the trial court discussion of this

issue was the following (Tr. 487):

THE COURT: Mr. Korchin, do you want to be heard?

MR. KORCHIN: No, Judge, I don’t think so. There is

nothing I can add.

iii

On the merits, the court of appeals held that the trial

court would have erred in admitting the government’s

rebuttal evidence (Agent Martinez’s testimony). It

found that the drug-related meetings between Martinez

and Caldevilla in July were specific acts of misconduct

that would have been “admitted solely to attack the

credibility of the witness,” in violation of Fed. R. Evid.

608(b) (App., infra, 9a).

Finally, having concluded that respondents had all

objected and that error would have been committed

(had everything occurred according to the parties’ prof-

fers), the court rejected the contention that the error

would have been harmless. The government argued

that if Caldevilla had invoked his Fifth Amendment

privilege before the jury, the trial court would have

been within its discretion in striking Caldevilla’s direct

testimony. The defendants would thus derive no benefit

from Caldevilla’s testimony, no matter which way the

trial court ruled (App., infra, 10a). The court of ap-

peals responded that that argument was “based on an

assumption about how the trial court would exercise its

discretion. This case involves enough hypothetical sce-

narios without our adding to the tale” (ibid.). The court

also did not consider, in its conclusion on harmless er-

ror, that- DiMatteo could have subpoenaed other wit-

nesses, but failed to do so.

REASONS FOR GRANTING THE PETITION

1. This case presents the question whether a criminal

defendant may appeal an adverse ruling on his motion

in limine to restrict cross-examination of a prospective

witness when he does not thereafter call the witness to

testify at trial. A closely related issue is presented in

Luce v. United States, petition for cert. pending, No.

83-912: whether a defendant may appeal an adverse rul-

ing on his motion in limine to restrict cross-examination

about the defendant’s prior conviction, when the de-

fendant has declined to testify at trial. In light of the

9

disarray among the circuits on that issue,? we have

taken the position that the petition for a writ of certio-

rari in Luce should be granted.?

6 The Sixth Circuit holds that a defendant who chooses not to

testify may not appeal the court’s preliminary ruling allowing

introduction of the impeachment evidence. United States v.

Luce, 713 F.2d 1236 (1983), petition for cert. pending, No.

83-912. The Ninth Circuit until recently took the same position.

See United States v. Fulton, 549 F.2d 1325, 1327 (1977);

United States v. Murray, 492 F.2d 178, 197 (1973), cert.

denied, 419 U.S. 942 (1974); United States v. Walters, 477 F.2d

386, 389, cert. denied, 414 U.S. 1007 (1973).

The current Ninth Circuit rule, announced in United States v.

Cook, 608 F.2d 1175 (1979) (en banc), cert. denied, 444 U.S.

1034 (1980), permits review when the defendant has announced

an unequivocal intention to testify if the motion is granted, and

has outlined the substance of his proposed testimony. See 608

F.2d at 1186 (opinion of Goodwin, J.); id. at 1188 (opinion of

Wallace, J.); id. at 1196-1197 (opinion of Hufstedler, J.); United

States v. Portillo, 633 F.2d 1313, 1321 (9th Cir. 1980), cert.

denied, 450 U.S. 1043 (1981); United States v. Hendershot, 614

F.2d 648, 651-652 (9th Cir. 1980). Cf. United States v. Halbert,

668 F.2d 489, 491-494 (10th Cir.), cert. denied, 456 U.S. 934

(1982). The First, Fourth, Fifth, Seventh, and District of Co-

lumbia Circuits have held that review is available even if the de-

fendant has not shown a firm intention to testify, or has not

made clear the substance of his testimony. See United States v.

Kiendra, 663 F.2d 349, 352 (1st Cir. 1981); United States v.

Whitehead, 618 F.2d 523, 528 (4th Cir. 1980); United States v.

Toney, 615 F.2d 277, 279 (5th Cir.), cert. denied, 449 U.S. 985

(1980); United States v. Fountain, 642 F.2d 1083, 1087 & n.3

(7th Cir.), cert. denied, 451 U.S. 993 (1981); United States v.

Lipscomb, 702 F.2d 1049, 1069 (D.C. Cir. 1983) (en banc). Cf.

United States v. Hickey, 596 F.2d 1082, 1087 (1st Cir. 1979).

The Third Circuit has explicitly held that review is available,

without addressing the question of the defendant’s obligation to

make a record. United States v. Provenzano, 620 F.2d 985,

1002 n.22, cert. denied, 449 U.S. 899 (1980). The Second Circuit

has implicitly held that review is available, albeit without

analyzing the issue. United States v. Hayes, 553 F.2d 824,

826-828, cert. denied, 484 U.S. 867 (1977); United States v.

Palumbo, 401 F.2d 270 (1968), cert. denied, 394 U.S. 947

(1969).

7 We have sent copies of our response to the petition in Luce

to counsel for respondents.

a ee

10

The same reasons that support a holding of unreview-

ability in {se dictate that result here. Even where

there is a athe of the witness’s and the government’s

evidence, as there was here, there is not the firm rec-

ord that testimony before the jury would have created,

and that gives the issue on appeal a “concrete factual

context.” New Jersey v. Portesh, 440 U.S. 450, 462

(1979) (Powell, J., concurring). More important,

permitting appeal by a defendant who has never put his

witness on the stand deprives the trial court of the op-

portunity to reconsider a possibly erroneous ruling, and

the prosecution of the chance to reassess the need for

its rebuttal evidence. It also allows defendants with no

real intention of calling a witness to inject.into the trial

proceedings, at no risk to themselves, a potential

ground for reversal. Because of these problems, a hold-

ing that the district court’s preliminary ruling is re-

viewable may have no other consequence than to dis-

courage the district courts from giving such rulings.

83-912 U.S. Br. 9-12.

2. We also argued in our brief in Lwce that where the

defendant’s proffered testimony is not actually intro-

duced at trial, it is difficult for the reviewing court to

determine whether any error in the district court’s rul-

ing was harmless (83-912 U.S. Br. 10). In this case the

court of appeals, after holding that the ruling in limine

was reviewable, concluded that the district court had

erred in ruling that it would permit the government to

put on Agent Martinez’s rebuttal testimony (App.,

infra, 6a-9a).8 The court then refused to consider that

® Though we have not presented the correctness of the evi-

dentiary ruling as a separate question here, we note our strong

disagreement with the court of appeals’ resolution of that issue.

The court improperly concluded that Martinez’s testimony about

later drug dealings with Caldevilla would have been offered “for

the purpose of attacking * * * [Caldevilla’s) credibility,” in vio-

lation of Fed. R. Evid. 608(b). In fact, as the district court spe-

SL ee TE TN oe ey &

11

Caldevilla’s testimony may have been stricken, and

hence that the district court’s error had been harmless

(id. at 10a):

We will not hold the error to be harmless based on

an assumption about: how the trial court would ex-

ercise its discretion. This case involves enough hy-

pothetical scenarios without our adding to the tale.

The very difficulty of reviewing such “hypothetical

scenarios,” of course, is one of the principal reasons

why the district court’s ruling should be held unreview-

able in the first place. Had Caldevilla actually testified

the district ¢ might, on his refusal to submit to

cross-examination regarding later dealings with

Martinez, have stricken Caldevilla’s testimony. See,

e.g., United States v. Panza, 612 F.2d 482, 438-439

(9th Cir. 1979), cert. denied, 447 U.S. 925, 926 (1980);

United States v. Phillips, 664 F.2d 971, 1027-1028 (5th

Cir. 1981). But if DiMatteo could not have the benefit of

Caldevilla’s testimony regardless how the district court

ruled on his motion in limine, it is hard to avoid con-

cluding that the preliminary ruling—if erroneous—was

harmless error.®

The court of appeals’ refusal to consider the question

of harmless error is still more difficult to explain as to

cifically noted, Martinez’s testimony was “not character evi-

dence or evidence designed to address the character of the

witness” (Tr. 494-495). Caldevilla’s proposed direct testimony

was that the April 4 meeting had not concerned marijuana. The

government’s rebuttal was designed to show that the subject of

drug dealing must have been discussed, else Caldevilla would

have had no occasion to solicit Martinez to engage in another

marijuana deal only three months later.

® The court of appeals also did not address the fact that

DiMatteo had failed to subpoena two other witnesses to the

April 4 meeting. They presumably could have given the same

account as Caldevilla (assuming it was true or that they were

willing to perjure themselves), but would not have been open to

Martinez’s rebuttal.

-

12

respondents Kessler and Suggs. Suggs was not even

present at the April 4 meeting (Tr. 496), so the district

court’s ruling could not possibly have harmed him. It

was no doubt for that reason that his counsel took no

part in the proceedings concerning Caldevilla’s testimo-

ny and the government’s rebuttal. See note 5, supra.

Kessler, like Suggs, did not join DiMatteo in proposing

Caldevilla as a witness (Tr. 438) (“we are not calling

that witness”). And though he said in passing that

Caldevilla’s testimony might be of “some benefit” to

him (Tr. 482), his only real interest was in making cer-

tain that the government’s cross-examination and re-

buttal did not enlighten the jury about his participation

with Caldevilla in the later marijuana transactions (a

subject the prosecution agreed to refrain from bringing

up (see note 4, supra)). That interest was fully satisfied

when DiMatteo decided not to put Caldevilla on the

stand.

a

CONCLUSION

The Court should defer consideration of the petition

for a writ of certiorari pending its decision on the peti-

tion in Luce v. United States, No. 83-912. It should

then dispose of this petition as appropriate in light of

that determination.

Respectfully submitted.

Rex E. LEE

Solicitor General

STEPHEN S. TROTT

Assistant Attorney General

ANDREW L. FREY

Deputy Solicitor General

JOHN H. GARVEY

Assistant to the Solicitor General

SARA CRISCITELLI

Attorney

MARCH 1984

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT.

No. 81-6001

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

Vv.

RICHARD DIMATTEO, MORRIS KESSLER,

JAMES SUGGS, DEFENDANTS-APPELLANTS.

Appeals from the United States District

Court for the Southern District of Florida

OcT. 11, 1983.

Before GODBOLD, Chief Judge, ANDERSON, Cir-

cuit Judge, and GOLDBERG*, Senior Circuit Judge.

GOLDBERG, Senior Circuit Judge:

In this direct appeal from convictions for various of-

fenses flowing out of a conspiracy to import marijuana

we are called upon to evaluate two evidentiary rulings.

Finding that the trial court improperly admitted extrin-

sic evidence to attack the credibility of a defense wit-

ness, we reverse the convictions of all three appellants

and remand.

I. BACKGROUND

A. Facts

In early 1980, a DEA informant, Miller, was con-

tacted by appellant Kessler regarding a possible drug

smuggling scheme. After this contact, Miller and DEA

*Honorable Irving L. Goldberg, U.S. Circuit Judge for the

Fifth Circuit, sitting by designation.

2a

agent Martinez met Kessler in Miami at the

Fontainebleau Hotel, on April 3, 1980. Kessler de-

scribed the scheme as involving flying marijuana from

Haiti and Colombia to the United States in a DC-6.

Kessler wanted agent Martinez to be the pilot. Nothing

was settled at that meeting, so another meeting was

scheduled the next day.

On April 4, 1980, agent Martinez again met appellant

Kessler. Kessler introduced Martinez to appellant

DiMatteo and some other conspirators. Bobby

Caldevilla was also present for part of that meeting. At

this meeting definite plans were made for the importa-

tion of marijuana. Subsequently, agent Martinez was

introduced to appellant Suggs, who was to participate

in unloading the plan when it landed in the United

States. Suggs showed agent Martinez the proposed

landing site. The marijuana was flown to the United

States on April 20, 1980. After the marijuana was un-

loaded into trucks, DEA agents seized it. Subsequently

the conspirators were arrested.

B. Procedure Below

Some of the conspirators were tried separately, and

their convictions have been affirmed by this Court.

United States v. Varella, 692 F.2d 1352 (11th

Cir.1982). Caldevilla was indicted, but after a James

hearing, United States v. James, 590 F.2d 575 (5th

Cir.) (en banc), cert. denied, 442 U.S. 917, 99

S.Ct. 2836, 61 L.Ed.2d 283 (1979), the trial court or-

dered that the charges against him be dismissed. Ap-

pellants DiMatteo, Kessler, and Suggs were tried be-

fore a jury and convicted of various counts flowing out

of the conspiracy.

DiMatteo and Kessler tried to show that they had

been attempting to establish legitimate business ven-

tures. DiMatteo wanted to introduce testimony by

Caldevilla that Caldevilla heard no discussion of mari-

juana at the April 4 meeting. After extensive voir dire

the trial court ruled that if Caldevilla so testified, the

3a

government could cross examine Caldevilla regarding

subsequent drug related conversations with agent

Martinez. The court further ruled that if Caldevilla as-

serted his fifth amendment rights against self-

incrimination, it would allow Martinez to testify regard-

ing the subsequent conversations. Given these rulings

by the trial court on the voir dire, DiMatteo decided not

to call Caldevilla as a witness. Both Kessler and Suggs

joined DiMatteo’s objection to the trial court’s rulings

on these matters.

Kessler attempted to show that his interest was in le-

gitimate business by introducing a recording of a phone

call to informant Miller made in the fall of 1980. The

government in turn introduced duplicates of other re-

cordings made by informant Miller in which Kessler dis-

cussed the drug transaction, rather than a legitimate

business deal.

Suggs’ court appointed counsel attempted to show

that Suggs was not an active participant in the conspir-

acy. Suggs had a very distinctive raspy voice due to

surgery on his larnyx. Suggs’ counsel tried to attack

Martinez’ credibility by showing that Martinez had nev-

er noticed Suggs’ distinctive voice. During the trial

Suggs became unhappy with his court appointed coun-

sel and after trial he requested a new trial because his

representation was inadequate. The trial court denied

the motion.

C. Issues on Appeal

We are presented with three issues on this appeal.

DiMatteo argues that the trial court’s ruling that agent

Martinez could testify regarding subsequent drug relat-

ed conversations with Caldevilla violated the extrinsic

evidence rule of Fed.R.Evid. 608(b). Kessler and Suggs

join in this argument. Kessler claims that the court im-

properly admitted duplicate recordings of his telephone

conversations with informant Miller. Suggs claims that

his counsel did not adequately represent him. We find

that the extrinsic evidence claim has merit, but that the

¢

4a

duplicate tape claim does not. Because of our disposi-

tion of the first argument, we need not address Suggs’

inadequate representation claim.

II. CALDEVILLA’S CHARADE

A. Voir Dire

When DiMatteo’s counsel prepared to call Caldevilla

to testify, the government apprised the court of the

possibility that its cross-examination might cause

Caldevilla to assert his fifth amendment right against

self-incrimination. In order to avoid prejudicing the

jury, the trial court decided to hold a lengthy voir dire

of Caldevilla. At the voir dire Caldevilla testified on di-

rect examination that he was present at the April 4

meeting and had heard no mention of marijuana at the

meeting.

At that point the government disclosed the fact that

on July 7, after the conspiracy involved in this case had

terminated, Caldevilla had engaged in discussions with

agent Martinez regarding an independent smuggling

conspiracy. The district court initially held that the

government could not inquire into the subsequent con-

versation. The court adjourned for the day, and the

government put the evening hours to productive use.

The next morning the court was persuaded by the gov-

ernment’s new-found case law to allow both cross-

examination on the July 7 meeting and extrinsic evi-

dence if Caldevilla’s answers were not forthright and

forthcoming. In order to avoid the prejudice that would

result from the cross-examination and extrinsic evi-

dence, DiMatteo chose to forego Caldevilla’s testimony.

B. Preservation of Error

DiMatteo and Kessler both urge before us that the

trial court’s rulings on the subsequent July 7 conversa-

tion was error. The government responds, first, that no

one can raise the error because none of the disputed

testimony was actually given, and, second, that Kessler

5a

cannot raise the error because he disavowed Caldevilla

as his witness. We treat these arguments in turn.

Though we are somewhat troubled by the hypotheti-

cal nature of the proceedings in this case, we believe er-

ror was amply preserved. The only authority brought

to our attention by the parties on this point clearly

holds that error is preserved when evidence is with-

drawn following an anticipatory ruling by the trial

court. United States v. Whitehead, 618 F.2d 523, 528

(4th Cir.1980). The government would have us force

DiMatteo to attest to the courage of his convictions by

suffering the prejudice of improperly admitted testimo-

ny in the faith that an appellate court would later cor-

rect the error. Seeing no merit in that position, we fol-

low Whitehead. The trial court was clearly apprised of

the disagreement with its ruling in the offer of proof,

and that is the primary consideration in preservation of

error. See generally, 21 C. Wright & K. Graham, Fed-

eral Practice and Procedure §§ 5040, 5041 (1977).

It is a bit more difficult to determine whether appel-

lant Kessler preserved any error during the offer of

proof. On the first day of the voir dire Kessler’s counsel

made a point of noting that DiMatteo was calling the

witness, not Kessler. Transcript at 438. However, he

clearly objected to the government’s intention to cross-

examine Caldevilla concerning the July 7 meeting: “[I]f

this line of questioning is pursued by the Government,

Mr. Kessler would be prejudiced by his inclusion in

these meetings in July concerning this other criminal

activity and I would like to note my objection on his be-

half to that taking place.” Jd. On the second day of the

voir dire Kessler’s counsel noted the benefit to Kessler

of Caldevilla’s exculpatory testimony, id. at 482, and

detailed at great length the legal ground for his objec-

tion. Jd. at 482-87. We believe that the trial court was

well aware of the disagreement with his ruling, and,

thus, Kessler adequately preserved the error for ap-

6a

peal. Finally, we note that Suggs’ counse! adopted the

objections of DiMatteo and Kessler. Jd. at 487.

C. Extrinsic Evidence and Specific Contradiction

Ignoring for the moment the hypothetical nature of

the proceedings before us, we shall assume the follow-

ing facts: Caldevilla testified on direct examination that

he heard no mention of marijuana at the April meeting

and, when questioned about the July meeting, he as-

serted his fifth amendment rights against self-

incrimination. The government then desired to intro-

duce the testimony of agent Martinez regarding the

July meeting. The question facing us is whether that in-

troduction was permissible. Because evidence may be

admissible for many purposes, Fed.R.Evid. 105, we

shall consider alternative theories of admissibility.

1. Attacking Caldevilla’s Credibility. —The govern-

meni desired to prove that the April meeting was about

marijuana, and Caldevilla tesiified to the contrary.

Thus, the government had a strong incentive to attack

Caldevilla’s credibility. The government wished to in-

troduce testimony regarding the July meeting to attack

Caldevilla’s credibility in testifying about the April

meeting. That approach, however, runs squarely into

Fed.R.Evid. 608(b), which provides: “Specific instances

of the conduct of a witness, for the purpose of attacking

or supporting his credibility ... may not be proved by

extrinsic evidence.” This rule is well established in this

Circuit. See, e.g., United States v. Cluck, 544 F.2d 195

(5th Cir.1976). Accordingly, the government could not

introduce agent Martinez’ testimony in order to attack

Caldevilla’s credibility.

2. Extrinsic Evidence and Specific Contradic-

tion. —The government recognizes the shield provided

by the plain words of Rule 608(b), and attempts to

penetrate that barrier by invocation of the doctrine of

specific contradiction. The government argues that

Rule 608(b) applies solely to attacks on the overall cred-

7a

ibility of the witness and that extrinsic evidence may be

admitted to attack specific facts to which the witness

testified, notwithstanding Rule 608(b). We believe that

this “specific contradiction” rule is not as broad as the

government would have us believe and can be stated in

simple terms—evidence may be admitted to prove or

Cisprove material facts in a case, even though a previ-

ous witness has testified to the contrary. To understand

the need for so obvious a rule, we must first explain a

peculiar potential reading of Rule 608(b).

Credibility can be attacked in two basic ways. First,

opposing counsel can show a witness to be generally

unbelievable; second, counsel can show that some par-

ticular testimony of the witness was unbelievable, for

example, by introducing controverting testimony. This

second proposition makes possible a slightly bizarre

reading of Rule 608(b). Suppose a prosecution witness

testifies that the defendant committed the crime. If the

defendar. sought to introduce testimony to the effect

that she did not commit the crime, the prosecution

could object on the basis of Rule 608(b)—the defendant

seeks to introduce extrinsic (exculpatory) evidence to

attack the credibility of the prosecution’s (inculpatory)

testimony.

Fed.R.Evid. 105 shows us the way to avoid this ab-

surd result. Evidence inadmissible for one purpose may

be admissible for another purpose. In the example just

given, the evidence inadmissible for attacking the credi-

bility of the prosecution’s witness may, of course, be

admissible to show that the defendant did not commit

the crime. This rather simple and obvious proposition

has been confused by its elevation to the lofty status of

the doctrine of specific contradiction. Extrinsic evi-

dence introduced exclusively in order to attack the

credibility of a witness is barred by Ruie 608(b), but ev-

idence that is admissible for other purposes is still ad-

missible for other purposes even though it may by im-

8a

plication reduce the credibility of another witness.

Thus, in United States v. Opager, 589 F.2d 799 (5th

Cir.1979), we said:

Similarly, we believe that Rule 608(b) should not

stand as a bar to the admission of evidence intro-

duced to contradict, and which the jury might find

disproves, a witness’ testimony as to a material is-

sue of the case.

The fact that the business records might have

the incidental effect of proving Posner a liar does

not affect their admissibility as relevant evidence.

In countless cases where facts are in dispute, one

party may be able overwhelmingly to disprove the

testimony of a prior witness. To exclude under

Rule 608(b) the latter otherwise relevant evidence,

as the government would have us do today, would

completely divorce legal proceedings from the truth

seeking process.

Id. at 803 (emphasis added). See also J. Wigmore, Evi-

dence § 1003, at 961 (J. Chadbourn rev. 1970.)!

1The government cites two pre-Federal Rules of Evidence

cases that it believes illustrates its view of the specific contra-

diction rule. In fact, as we explained in United States v.

Holman, 680 F.2d 1340, 1353-54 (11th Cir.1982), the two cases

are not quite so broad. Jackson v. United States, 311 F.2d 686,

689-90 (5th Cir.1963), held merely that when a criminal defend-

ant presents himself or herself as a law-abiding citizen not likely

to have committed a crime, the prosecution may introduce ex-

trinsic evidence of specific bad acts to show lack of good charac-

ter. “It must be remembered that the defendant himself in-

jected this idea that as a former violator he had now reformed

and neither needed, used, or handled narcotics.” Jd. at 689.

United States v. Gonzalez, 491 F.2d 1202, 1204 (Sth Cir. 1974),

though using unfortunately loose language, is to the same ef-

fect—Gonzalez alleged a blameless past not involving narcotics

and the government was allowed to introduce evidence to the

contrary. Gonzalez, in fact, relied upon Jackson for that propo-

sition. This rule is now codified in Fed.R.Evid. 404(a)(1).

9a

In the case before us, we need not consider whether

the evidence would be independently admissible, be-

cause the government, in accord with its understanding

of the principle of specific contradiction, has never ar-

gued that Martinez’ testimony was offered for any pur-

pose other than to attack Caldevilla’s credibility. See,

e.g., Transcript at 435 (“THE COURT: You are, in ef-

fect, trying to bring in subsequent similar or extrinsic

acts? MR. McMASTER [prosecuting attorney]: Not

against the defendant, Judge. Against a witness and it

goes to his credibility....”); id. at 478 (“I would bring

Agent Martinez in to directly impeach his credibility, to

prove on the stand that Mr. Caldevilia is a liar.”). In

fact, the government specifically disavowed any other

ground for admission:

It’s the Government’s position that [the defend-

ants] thereby open the door for the admission of

the evidence impeaching or what the Government

submits, at least, is going to be impeaching the

witness’ testimony.

If it’s material, Judge, it would only come in for

that one particular purpose and | should be al-

lowed to use whatever evidence I have to show

that Mr. Caldevilia is untruthful.

Id. at 491 (emphasis added). Though the trial court

made passing reference to other grounds for admissibil-

ity, id. at 494-95, it is clear that the sole ultimate basis

for admitting the evidence was to attack Caldevilla’s

credibility. The trial judge noted that he “would in-

struct the jury that the testimony with regard to this

matter is admitted and limited to the issue of the credi-

bility of the witness and is not addressed to the direct

guilt or innocence of any defendant... .” Jd. at 496.

Given the fact that the extrinsic evidence was admit-

ted solely to attack the credibility of the witness, and

the fact that Fed.R.Evid. 608(b) specifically prohibits

such a use of extrinsic evidence, the trial court’s ruling

was in error.

10a

D. Harmless Error

The government next argues that any error in the

trial court’s ruling would be harmless. The govern-

ment’s position is that if Caldevilla declined to answer

questions on cross-examination because of his fifth

amendment rights and the government was unable to

rebut with extrinsic evidence, the trial court would

have been within its discretion in striking Caldevilla’s

testimony on direct examination. See, e.g., United

States v. Diecidue, 603 F.2d 535, 552 (5th Cir.1979),

cert. denied, 445 U.S. 946, 100 S.Ct. 1345, 63 L.Ed.2d

781 (1980).2 Thus, the situation would be the same as it

is now—no testimony by Caldevilla, no rebuttal by

Martinez.

The problem with this argument is that the govern-

ment claims only that it was within the trial court’s dis-

cretion to strike the testimony. We will not hold the er-

ror to be harmless based on an assumption about how

the trial court would exercise its discretion. This case

involves enough hypothetical scenarios without our

adding to the tale. Given that the error is not harmless

and that all defendants objected, we must reverse all

the convictions and remand for a new trial.

2 We do not hold in fact that it would be proper for the trial

court to strike Caldevilla’s direct testimony under those circum-

stances. First “[i]t is generally only where the witness refuses

to answer on ‘direct’ as opposed to ‘collateral’ matters that his

direct testimony must be excised.” Diecidue, supra, 603 F.2d at

«552. Diecidue itself held that an attack on credibility was collat-

eral. Jd. Second, Diecidue dealt with a prosecution witness; the

calculus may change with a defense witness because of the de-

fendant’s right to present a defense. Again, we do not pass on

the issue one way or the other, but merely note that it is not a

foregone conclusion that striking Caldevilla’s testimony would

be permissible.

nl

lla

III. ADMISSION OF DUPLICATE TAPES

Defendant Kessler raises a second evidentiary argu-

ment, and because the same problem is likely to arise

on retrial, we address the issue briefly. Kessler made

several phone calls during the pendency of the conspir-

acy to informant Miller. Unbeknownst to Kessler, Mill-

er recorded many of those calls and turned the record-

ings over to DEA agents. The DEA made copies of

these recordings and the government introduced the

copies into evidence at trial. Kessler objected to the ad-

‘mission of the copies because “[t]hey are not originals

and they have not been in custody of the DEA exclu-

sively or in such a manner secured so that we know

these are the tapes and they are not the tapes originally

made.” Transcript at 549.

We construe this as raising two grounds for the ob-

jection. First, it questions the accuracy cf the copies,

and second, it objects simply to the introduction of du-

plicates rather than the originals. “A ‘duplicate’ is a

counterpart produced ... by mechanical or electronic

re-recording, ... or by other equivalent techniques

which accurately reproduces the original.” Fed.R.Evid.

100i(a). Thus, a duplicate must be an accurate repro-

duction of the original recording. Here Miller testified

that the duplicates were “exact recordings of conversa-

tions that were on the original tapes.” Transcript at

547. Thus, the government properly established that

the tapes introduced were duplicates of the original

recordings.

Under the Federal Rules of Evidence, “[a] duplicate

is admissible to the same extent as an original unless (1)

a genuine question is raised as to the authenticity of the

original or (2) in the circumstances it would be unfair to

admit the duplicate in lieu of the original.” Fed. R. Evid.

1003. The burden of raising an issue as to the authentic-

ity of the original is on the party opposing admission.

United States v. Georgalis, 631 F.2d 1199, 1205 (5th

12a

Cir.1980). We do not believe that Kessler ever met his

burden of raising a genuine issue as to the authenticity

of the originals. Furthermore, even if he had done so,

Miller’s testimony that the duplicates accurately repro-

duced the conversations would have been a sufficient

response. “If there is independent evidence of the accu-

racy of the tape recordings admitted at trial, we shall

be extremely reluctant to disturb the trial court’s deci-

sion even though at the time that decision was made

the government had not carried its particularized bur-

den of going forward.” United States v. Biggins, 551

F.2d 64, 67 (5th Cir.1977). Accordingly, we find no er-

ror in the admission of the duplicate tapes.

CONCLUSION

The district court and the government, fully recog-

nizing the possible consequences of error, were in

agreement that the government could introduce extrin-

sic evidence to attack the credibility of the proffered

testimony of a defense witness. That is precisely what

Fed.R.Evid. 608(b) prohibits, unless there are inde-

pendent grounds for admitting the extrinsic evidence.

Accordingly, we must reverse the convictions of all

three defendants and remand for a new trial.®

REVERSED and REMANDED.

3 Appellant Suggs also requested a new trial on the ground

that his court-appointed counse] was inadequate. Because we

reverse on other grounds, we need not address that argument.

13a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 81-6001

D.C. Docket No. 80-317-CR-SMA

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

Vv.

RICHARD DIMATTEO, MORRIS KESSLER,

JAMES SUGGS, DEFENDANTS-APPELLANTS.

Appeals from the United States District Court

for the Southern District of Florida

Before GODBOLD, Chief Judge, ANDERSON, Cir-

cuit Judge, and GOLDBERG’, Senior Circuit Judge.

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for

the Southern District of Florida, and was argued by

counsel;

ON CONSIDERATION WHEREOF, it is now here

ordered and adjudged by this Court that the judgment

of conviction of the said District Court in this cause be

and the same is hereby REVERSED; and that this

cause be, and the same is hereby, REMANDED to said

District Court in accordance with the opinion of this

Court.

OCTOBER 11, 1983

*Honorable Irving L. Goldberg, U.S. Circuit Judge for the

Fifth Circuit, sitting by designation.

l4a

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 81-6001

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,

Vv.

KICHARD DIMATTEO, MoRRIS KESSLER,

AND JAMES SUGGS, DEFENDANTS-APPELLANTS.

On Appeal from the United States District Court

For the Southern District of Florida

[Dec. 19, 1983]

ON PETITION FOR REHEARING

Before GODBOLD, Chief Judge, ANDERSON, Cir-

cuit Judge, and GOLDBERG*, Senior Circuit Judge

PER CURIAM:

The petition for rehearing is DENIED and no mem-

ber of this panel nor judge in regular active service on

the court having requested that the court be polled on

rehearing en banc (Rule 35, Federal Rules of Appellate

Procedure; Eleventh Circuit Rule 26), the suggestion

for rehearing en banc is DENIED.

ENTERED FOR THE COURT

/s/ GODBOLD

Chief Judge

*Honorable Irving L. Goldberg, U.S. Circuit Judge for the

Fifth Circuit, sitting by designation.