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December 27, 1985


The opinion of the court was delivered by: WEINSTEIN



 Defendant Florence Abieyuwa Obayagbona was found guilty by a jury of conspiracy to distribute heroin. Relying on evidentiary errors she seeks a new trial. For the reasons indicated below her motion is denied.

 I. Facts and Trial

 The defendant is a 27-year-old citizen of Nigeria. She entered the United States on the morning of July 6, 1985, with another Nigerian woman, Ehimwema (Clara) Onaiwu, who admitted her guilt of various drug charges. Testifying at her own trial, defendant asserted that she came to the United States solely to buy cosmetics for her store in Benin, City, Nigeria.

 On July 16, an informant for the Drug Enforcement Administration arranged to meet Onaiwu to introduce her to a prospective purchaser of heroin. The informant picked up Ms. Onaiwu at her hotel when she was staying with defendant. He escorted the two comely young ladies by taxi to the Promenade, a modest restaurant on Brooklyn Heights convenient to this court and various law enforcement agencies, sometimes used by the government for undercover purchases of narcotics. Defendant wore a striking black-and-white long print dress with a matching petite black purse for the occasion. Onaiwu was more colorfully attired and carried a large red leather shoulder handbag. At the restaurant they were introduced to FBI Special Agent Michael Turner. Equipped with a microphone and the pseudonym "Joe," he was prepared to romance the ladies while simulating a desire to purchase substantial quantities of heroin.

 Sitting across the table, this attractive foursome flirted while "Joe" and Onaiwu negotiated the terms of a sale of 100 grams of heroin. For the most part defendant remained demurely silent except as she responded by appreciative murmurs to compliments.

 The agent asked to receive a small sample of the heroin for testing before completing the transaction. Onaiwu indicated that she needed a few hours to get the drug since it was in the Bronx. The four arranged to meet again at the same restaurant later that afternoon.

 During the second meeting they again sat a a small table -- the two men side by side facing the two women in an intimate group. Agent Turner suggested to Onaiwu that she go to the ladies' restroom to put the heroin sample in a piece of paper towel.

 What happened next was the subject of considerable controverst at the trial. Agent Turner's microphone recorded conversation between him and the informant. Neither woman's voice appears on the tape during those ensuing two-and-a-half minutes. The candid conversation between the two men working undercover about how their trap was closing strongly suggests that no target of an investigation could have been present. At trial Agent Turner testified that Onaiwu and the defendant left the table together after the agent suggest the trip to the ladies' room. The defense vigorously disputed this contention. Following a suggestion from the court that the incriminating conversation would be played unless counsel for the defense stipulated that the defendant had been absent from the table for approximately two-and-one-half minutes, that stipulation was entered into.

 According to the testimony of Agent Turner, the two women returned from the ladies' room together. It was, he said, the defendant and not Onaiwu who reached into a small black purse, took out a folded piece of paper towel and handed it to him. Turner testified that he took the paper to the men's room and tested the sample of powder it contained, determining that it was heroin. The agent returned to the table. After some further comments about defendant's pretty eyes by "Joe" and an implication that they would share hotel rooms, the two couples left the restaurant. FBI agents were waiting outside. They placed all four in custody.

 Agent Turner, "under arrest" for the sake of the scenario, was handcuffed and thus unable to touch the controls of his tape recorder. While the machine continued to record, his fellow agents asked about the heroin. Turner's words are audible against background noise and commotion: "The girl in the black and white [dress] handed it to me out of her purse. But they both went to the -- to the ladies' room at the [same] time." The defendant was, as you will recall, dressed in black and white. There was also some excited boasting about the fact that the ladies had arranged for hotel rooms where they would all remain together after the deal was consummated.

 In Onaiwu's large handbag, the FBI agents found extensive documents suggesting that Onaiwu used a variety of aliases in her own "cosmetic business." They also discovered a communication from one "Lizzy," then in federal prison for heroin dealing. In the letter the writer assured the recipient of their great mutual loyalty and referred to a "vow," apparently to support each other and others similarly situated were they apprehended. Onaiwu at trial admitted that the letter had been found in her bag but denied that she was the person to whom it had been addressed.

 Immediately following the arrest, the FBI agents tried to find the parcel of heroin that Onaiwu had said she would bring to the meeting. They were constrained because there was no female agent available to search the ladies' persons. The defendants were handcuffed, defendant with her hands behind her back and Onaiwu with her hands in front, and put into a waiting car. The driver of the car testified that the back floor was covered with empty coffee cartons, newspapers and other debris.

 A subsequent body search of the two ladies uncovered no heroin. The agents then went back to the car. There they found the parcel of heroin near where Onaiwu had sat. Onaiwu testified at defendant's trial that she had had the heroin in her girdle. Since her hands were relatively free, she had been able to remove the parcel and push it under the litter with her foot. The defendant testified that she had observed Onaiwu remove and conceal the heroin.

 Onaiwu and the defendant were indicted for conspiracy to violate the federal narcotics laws, distribution of heroin, and possession of heroin with intent to distribute. Onaiwu pleaded guilty to all three counts and was awaiting sentence at the time of defendant's trial. Defendant was acquitted of the possession and distribution count and convicted of the conspiracy count.

 The critical testimony at trial came from the defendant, Onaiwu, and Agent Turner. The confidential informant who had participated in the restaurant meetings was available as a witness but was called by neither side. On direct examination Agent Turner gave the version of the heroin deal already described. The agent was vigorously cross-examined for the purpose of showing that he was lying or mistaken when he testified that it was the defendant who handed him the sample.

 Defendant and Onaiwu gave an account different from the agent's. They said they left the table separately and that the defendant waited outside the ladies' room -- which was too small, according to them, to accommodate two persons at once. Onaiwu, they told the jury, borrowed the defendant's black purse for the sample and, without defendant's observing the action, placed the sample in it and then removed it at the table to give to Joe.

 After the testimony of Onaiwu and the defendant, the government sought on rebuttal to introduce the tape of Agent Turner's statement made contemporaenously with the arrest: "The girl in the black and white handed it to me out of her purse." Over objection, the court allowed the tape to be played. According to a stipulation, "14 minutes and 25 seconds" elapsed between the receipt of the sample by Special Agent Turner and his taped statement. The recording was admitted on the issue of credibility, both of Turner and of the two ladies, as well as evidence-in-chief. The jury was instructed to treat it cautiously:

 THE COURT: I will permit it, but I caution the ladies and gentlemen [of the jury], that this is hearsay. The defendant was not present during those remarks and the witness was not then subject to cross examination, with respect to why he made those remarks or anything about them. Is that clear? I am letting you hear it nevertheless, for whatever help it may give you on credibility of this witness or the other witnesses or as evidence of the acts charged, but I caution you, it's hearsay. It has to be received and evaluated with great caution. Is there any other instruction you wish me to give?

 MR. WASSERSTEIN [for defendant]: No, your Honor.

 (Emphasis added.)

 II. Law

 Since Agent Turner's statement was clearly recorded on tape, both the accuracy of the record and the fact that he made the statement are unquestioned. Of the four elements of credibility -- accuracy of observation, memory, capacity to communicate and sincerity -- the only one seriously at issue is sincerity. Did the agent-witness, while he was an extrajudicial declarant speaking into his recorder, tell the truth about what he then remember his observation to be?

 A. Admissibility of Agent Turner's Taped Statement

 1. Credibility Rehabilitation and a Prior Consistent Statement Under Rule 801(d)(1)(B)

 Rule 801(d)(1)(B) of the Federal Rules of Evidence excludes from its definition of hearsay a prior statement by a witness consistent with his testimony and ... offered to rebut an express or implied charge against him a recent fabrication or improper motive. . . .," provided that the declarant testifies at trial and is available for cross-examination on the statement. The defense argues that it did not charge Agent Turner with a recent fabrication or improper motive and therefore his recorded statement was inadmissible as evidence-in-chief under the hearsay rule.

 Before the enactment of the Federal Rules of Evidence, there was lively debate over the admissibility of prior consistent statements. See 4 Wigmore, Evidence §§ 1122-1133 (Chadbourn rev. 1972). See particularly the footnote discussing the reaction of Judges Augustus Hand and Friendly to Judge Cooley's statement in Stewart v. People, 23 Mich. 63, 74-76 (1871), that "discretion in receiving [consistent statements for rehabilitation] ought not to be set aside except in a clear case of abuse. Id. at § 1126, n. 6. Because he believed that "an improbable or untrustworthy story ... is not made more probable or more trustworthy by any number of repetitions of it," id. at § 1124, Wigmore concluded that a prior consistent statement should be admissible only in the most limited circumstances. If Wigmore was right the trier would not be much impressed with the consistency, but common experience with life and trials tells us that a prior consistent statement of a witness often has considerable probative force on the issue of credibility. The view of the Advisory Committee that drafted the Federal Rules is somewhat ambiguous. In its Notes to Rule 801(d)(1)(B) the Committee noted: "if the opposite party wishes to open the door for its admission in evidence, no sound reason is apparent why [the prior consistent statement] should not be received generally." Notes of Advisory Committee on Proposed Rules, 56 F.R.D. at 296. This laissez-faire attitude is understandable since the jury already has the witness's version from the witness stand and the consistent statement will generally help the trier only in evaluating his or her credibility.

 How the door was to be opened to prior consistent statements was not stated by the draftsmen. Nevertheless, it is clear from the whole thrust of the Rules that relevancy was to be broadly construed and the trial judge allowed broad discretion to allow in evidence that might assist the trier in determining the probability that material propositions were true. See Federal Rules of Evidence, Rules 102, 401-403, 611. Determining the credibility of a key witness is crucial to deciding the case so that evidence denigrating or supporting credibility should be readily admissible subject to rules of exclusion and such factors as possible confusion of the jury and waste of time by extrinsic proof. See, e.g., Rule 403, 608.

 Such free admissibility of prior consistent statements would be on the issue of credibility, not as direct evidence-in-chief, unless the hearsay rule was satisfied -- or, as in the case of Rule 801(d), declared nonoperative. Only if the prior consistent statement met the hearsay rule would it be admitted as an independent line of proof as well as on credibility of the witness. See generally the concurring opinion of Judge Friendly in United States v. Rubin, 609 F.2d 51, 66-70 (2d Cir. 1979), aff'd on other grounds, 449 U.S. 424, 101 S. Ct. 698, 66 L. Ed. 2d 633 (1981), pointing out the distinction between the two purposes for which prior consistent statements may be used and the different grounds for admissibility depending on purpose.

 Since the court allowed the taped statement to be used for both purposes, it is necessary to consider whether it falls within Rule 801(d)(1)(B). Before turning to the interpretation of that rule, to fully appreciate the prior consistent statement problem in the context of this case, it is desirable to dwell for a moment more on the credibility/evidence-in-chief distinction.

 Rule 801(d)(1)(B), as Judge Friendly persuasively argues, was enacted to make admissible as substantive evidence only a narrow category of the much larger group of prior consistent statements admissible for rehabilitation. See Rubin, 609 F.2d at 69-70. When the statement is used only for rehabilitation it does not fall within the more rigorous requirements of Rule 801(d)(1)(B). Consistent statements aimed solely at rehabilitation are offered only for the fact of their having been made, not for their truth. Hence they are not hearsay. See id. at 69. (We discuss the problem as one of hearsay even though for purely drafting convenience 801(d) defines non-hearsay.) Rule 801(d)(1)(B), to reemphasize the point, does not address the admissibility of prior consistent statements used only in connection with credibility. Accord, United States v. Check, 582 F.2d 668, 680-81 (2d Cir. 1978).

 The Supreme Court recently lent support to the liberal Friendly view of relevance as the test for admissibility of prior consistent statements on credibility. In United States v. Abel, 469 U.S. 45, 105 S. Ct. 465, 83 L. Ed. 2d 450 (1984), the district court had admitted evidence at trial to show that a defense witness and the defendant were members of a secret prison gang sworn to "lie, cheat, steal [and] kill" for mutual protection. The Supreme Court upheld the admission of this evidence. In so doing, it noted that "the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness' testimony." Abel, 105 S. Ct. at 469.

 For purposes of assessing credibility, a prior consistent statement made by a witness who is available for cross-examination is as relevant as the Abel witness' prior expression of commitment to the secret society. In both situations the danger of prejudice exists. In both situations the issue of credibility is merely influenced, not disposed of, by the admission of the evidence of consistency.

 Credibility of a witness is always critical in assessing the probative force of a testimonial line of proof and thus of the probability of the truth of the material proposition. Rule 401, Federal Rules of Evidence. See, e.g., Abel at 468-69; McKinzy v. Wainwright, 719 F.2d 1525 (11th Cir.); United States v. Mansaw, 714 F.2d 785 (8th Cir.), cert. denied sub nom. Holliman v. United States, 464 U.S. 964, 104 S. Ct. 403, 78 L. Ed. 2d 343 (1983). Questions of credibility are therefore basically governed by Rules 401 to 403 of the Federal Rules of Evidence Rules 608, 609 and 613 are examples of specific limits on admissibility of credibility evidence. There are no such limits in Rule 801; it does not constrain the use of prior consistent statements limited to rehabilitation of a witness. See Rule 105, Federal Rules of Evidence. Cf. United States v. Abel, 105 S. Ct. at 471 ("testimony admissible for one purpose and inadmissible for another purpose" is not "rendered inadmissible").

 In the context of this case, once the taped consistent statement of Turner comes in on credibility, there is no point in limiting it to that purpose. Since Turner was the sole government witness on the critical question of whether it was the defendant who turned over the sample, to decide Turner was credible at the trial was to decide that defendant and her colleague Onaiwu were lying and to determine the issue of guilt. That defense counsel recognized this tactical fact is revealed by his failure to object to the court's instruction to use this hearsay as evidence of guilt -- albeit very carefully because of its dangers. Failure to request a more ...

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