Saturday, September 20, 2008
The Parting Of The Ways: 8th Circuit Makes Seemingly Erroneous Prior Consistent Statement Ruling In Drug Murder Case
The Eighth Circuit's recent opinion in United States v. Hoover, 2008 WL 4273910 (8th Cir. 2008), contains what I regard to be an incorrect prior consistent statement ruling. In Hoover, Jeffrey Hoover appealed from his conviction on two counts of using a firearm in connection with a drug trafficking offense in violation of 18 U.S.C. Section 924(c)(1), resulting in the deaths of Harold Fowler and Duane Johnson in 1997. While investigating those murders in 2005, police interviewed Benjamin Waldbaum and B.J. Kempton. At the time, neither revealed that they had any personal knowledge of the facts surrounding the deaths. Subsequently, however, authorities learned that Waldbaum had been talking about witnessing a homicide. Both Waldbaum and Kempton thereafter cooperated with police and testified at trial that they saw Hoover kill Fowler and Johnson in an apartment after a drug deal gone wrong.
Defense counsel thereafter impeached their testimony under Federal Rule of Evidence 613 through their prior inconsistent statements to police in which neither revealed that they had any personal knowledge of the facts surrounding the deaths. After this impeachment, the prosecution sought to introduce alleged prior consistent statements made by Waldbaum and Kempton prior to their police interrogations. Specifically, the prosecution wanted to present evidence that Waldbaum and Kempton told their girlfriendsbefore they talked to police that they were present at a drug rip-off killing and that the shooter was Hoover.
The prosecution sought to admit these statements for both rehabilitation and substantive purposes under Federal Rule of Evidence 801(d)(1)(B), which indicates that "[a] statement is not hearsay if...[t[he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive." Hoover countered that that Kempton's and Waldbaum's admitted presence in the apartment gave each an immediate motive to lie, meaning that their statements were not admissible under Federal Rule of Evidence 801(d)(1)(B) because they were not made before the motive arose.
The district court admitted the statements with a limiting instruction informing jurors that they were solely to be considered for rehabilitative purposes, Hoover was convicted, and he appealed. On appeal, the Eighth Circuit noted that "[t]he district court made no determination about when a motive to lie arose for Waldbaum or Kempton." Nonetheless, it found that it did not need to "determine whether Waldbaum's and Kempton's statements that are the subject of Hoover's challenge were made before either man had a motive to fabricate." According to the court, the two witness' prior statements had the purpose of demonstrating that there was no real inconsistency between their earlier story and their trial testimony. And the court found that "[i]n this circumstance, prior consistent statements may be admitted for rehabilitative purposes even if they are not admissible as substantive evidence under Rule 801(d)(1)(B)."
This conclusion immediately struck me as incorrect, so I did some research to determine when the Eighth Circuit first made such a conclusion. It turns out that it first did so in United States v. Andrade, 788 F.2d 521 (8th Cir. 1986). In Andrade, the defendant was interrogated by several FBI agents, and FBI Agent Brown rendered testimony concerning the interrogation that was consistent with three pages of handwritten notes he had taken during the interview. Defense counsel then sought to discredit Brown's testimony through rigorous interrogation of other FBI agents concerning their somewhat different recollections of the interrogation and possible errors in the reports concerning that interrogation. Afterwards, the trial court allowed the prosecution to introduce Agent Brown's notes, finding that this rehabilitative use of prior consistent statements is in accord with the principle of completeness promoted by Rule 106."
The Eighth Circuit then cited Andrade in United States v. Kenyon, 397 F.3d 1071, 1081 (8th Cir. 2005) for the proposition that "'rehabilitative use of prior consistent statements is in accord with the principle of completeness promoted by Rule 106.'" And then, in Hoover, the Eighth Circuit cited to Kenyon for the questionable conclusion I mentioned above, with the court now omitting any reference to Rule 106. By considering Federal Rule of Evidence 106, we can see where the Eighth Circuit erred in Hoover. Under Federal Rule of Evidence 106, the so-called "rule of completeness,"
"When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it."
Looking at this language, we can see the Eighth Circuit's reasoning in Andrade. In that case, defense counsel elicited a lot of testimony about the interrogation of the defendant and reports prepared based upon that interrogation. Thus, a significant part of that interrogation was before the jury, and the court found that Agent Brown's notes were another part of that interrogation which, in fairness, should have been considered contemporaneously by the jury.
In contrast, in Hoover, defense counsel had not introduced part of the police interrogation of Waldbaum and Kempton, with the prosecution trying to introduce another part of that interrogation. Instead, the prosecution was trying to introduce evidence of entirely separate conversations that Waldbaum and Kempton had with their girlfriends. There was thus no argument that Rule 106 considerations applied, which is why the Eighth Circuit's ruling was clearly erroneous.