Appeal from a judgment of the District Court for the Eastern District of New York (Leonard D. Wexler, Judge) convicting defendant, after a jury trial, of narcotics offenses. Appellant challenges the use of a prior consistent statement to rehabilitate the credibility of a witness. Affirmed.
Before KAUFMAN, TIMBERS, and NEWMAN, Circuit Judges.
JON O. NEWMAN, Circuit Judge:
This appeal challenges the use of a prior consistent statement to rehabilitate the credibility of a witness. Specifically, the issue is whether the consistent statement of a witness may be used to meet the impeaching force of the witness's prior inconsistent statement; the latter statement is alleged to be inconsistent with the witness's trial testimony because a key point in the testimony was not included. The issue arises on an appeal from a judgment of the District Court for the Eastern District of New York (Leonard D. Wexler, Judge) convicting Michel Pierre, after a jury trial, of importing heroin and possessing heroin with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1), 952(a), 960(a) (1982). We conclude that use of the consistent statement for rehabilitation was proper under the circumstances of this case and therefore affirm.
Customs agents searched Pierre's luggage at Kennedy airport upon his return from a trip to Pakistan, Russia, and Yugoslavia. What appeared to be bulky padding at the waist and shoulders of three suits turned out to be packages of heroin. Pierre was arrested and immediately interviewed, after appropriate advice as to rights, by an agent of the Drug Enforcement Administration (DEA). Pierre claimed that he was unaware of the contents of the suitcase, that it had been given to him by a friend, and that he was to deliver it to a specific bar in Philadelphia.
At trial the DEA agent testified that, during the interview, Pierre refused a request to cooperate by making a controlled delivery of the suitcase to the bar. On cross-examination, the agent acknowledged that his notes of the interview contained no reference to a request to Pierre, or a refusal by him, to make a controlled delivery. The notes were marked as a court exhibit but were not introduced into evidence. They consist of six pages of fragmentary phrases handwritten by the agent during the course of his questioning of Pierre. On redirect examination, the agent was permitted to testify, over objection, that his formal report was also marked as a court exhibit but not introduced into evidence. It consists of five single-spaced typewritten pages and was prepared by the agents three days after Pierre's arrest.
The sole issue on appeal is whether the trial judge erred in permitting the agent to testify that his formal report mentioned Pierre's refusal to make a controlled delivery. The defendant contends that this use of a prior consistent statement to corroborate trial testimony was prohibited by our decision in United States v. Quinto, 582 F.2d 224 (2d Cir. 1978). The Government, relying on Judge Friendly's concurring opinion in United States v. Rubin, 609 F.2d 51, 66 (2d Cir. 1979), aff'd on grant of certiorari limited to other issue, 449 U.S. 424, 428, 101 S. Ct. 698, 66 L. Ed. 2d 633 (1981), contends that reference to the formal report was permissible to rebut the misleading impression conveyed by the reference to the agent's notes.
The law of our Circuit concerning the permissible use of a prior consistent statement is not exactly a seamless web. We have allowed use of such statements to rebut challenges to credibility where the consistent statement was made prior to events creating a motive to testify falsely at trial. E.g., United States v. Lombardi, 550 F.2d 827 (2d Cir. 1977); United States v. Zito, 467 F.2d 1401, 1403-04 (2d Cir. 1972). In such circumstances, the prior consistent statement is not hearsay, Fed. R. Evid. 801(d)(1)(B), and may therefore be used as substantive evidence to prove the truth of the matter contained therein. Whether such statements may be used in any other circumstances has been a matter of some dispute. In the absence of recent motive to fabricate, the use of prior consistent statements to rehabilitate the credibility of a trial witness has sometimes been rejected, United States v. Quinto, supra; United States v. Sherman, 171 F.2d 619, 621-22 (2d Cir. 1948), cert. denied, 337 U.S. 931, 69 S. Ct. 1484, 93 L. Ed. 1738 (1949), and has sometimes been approved, United States v. Rubin, supra; United States v. Corry, 183 F.2d 155, 156-57 (2d Cir. 1950); see also Applebaum v. American Export Isbrandtsen Lines, 472 F.2d 56, 60-62 (2d Cir. 1972) (allowing use of prior consistent statement to rehabilitate credibility of deposition witness). On one occasion, we specifically declined to decide whether the criteria of Rule 801(d)(1)(B), which apply to prior consistent statements used as substantive evidence, also apply to such statements when used only to rehabilitate credibility. See United States v. James, 609 F.2d 36, 50 n.20 (2d Cir. 1979), cert. denied, 445 U.S. 905, 100 S. Ct. 1082, 63 L. Ed. 2d 321 (1980).
On closer examination, the apparent disarray of our decisions may yield a unifying explanation. Learned Hand's opinion in Sherman discounted the reliability of the prior consistent statement offered in that case because the statement had not been made under oath, 171 F.2d at 622. That circumstance, as Judge Friendly later pointed out, United States v. Rubin, supra, 609 F.2d at 68, sounds like a hearsay objection, which would bar the statement as substantive evidence but would not necessarily preclude its use for the non-hearsay purpose of rebutting the impeaching force of a prior inconsistent statement. Of course, not every prior consistent statement has much force in rebutting the effect of a prior inconsistent statement, and the issue ought to be whether the particular consistent statement sought to be used has some rebutting force beyond the mere fact that the witness has repeated on a prior occasion a statement consistent with his trial testimony.
A clear example of a consistent statement with such significant rebutting force is the statement approved for rehabilitative use in United States v. Corry, supra. In that case the witness denied making the prior inconsistent statement that had been used to impeach his trial testimony. The prior consistent statement was used to establish a pattern of consistency that tended not simply to corroborate the trial testimony but to diminish the likelihood that the witness had made the inconsistent statement attributed to him. See Stewart v. People, 23 Mich. 63, 74-76 (1871).
Another example of a prior consistent statement with significant rebutting force is a statement offered to clarify or amplify the meaning of the impeaching inconsistent statement. In such circumstances we have allowed use of the prior consistent statement under the doctrine of completeness. E.g., United States v. Fayette, 388 F.2d 728, 733-35 (2d Cir. 1968); United States v. Lev, 276 F.2d 605, 608 (2d Cir.), cert. denied, 363 U.S. 812, 80 S. Ct. 1248, 4 L. Ed. 2d 1153 (1960); United States v. Weinbren, 121 F.2d 826, 828-29 (2d Cir. 1941).
Against this pattern of selective use of prior consistent statements, consideration must be given to the extended discussion of the issue in Quinto and Rubin. In Quinto an agent of the Internal Revenue Service testified to a damaging admission made to him by the defendant taxpayer. On cross-examination the agent's credibility was attacked, but not by use of a prior inconsistent statement. Responding on redirect examination to "a general attack on the agent's credibility," 582 F.2d at 229, the prosecution offered the agent's memorandum of an interview at which the defendant had made the admission. The memorandum was offered both to corroborate the agent's testimony and as substantive evidence that the admission had been made, id. This Court reversed. Judge Waterman ruled that the memorandum could not be used as substantive evidence because it failed to satisfy the criteria of Rule 801(d)(1)(B), notably the requirement that a prior consistent statement antedate a motive to fabricate trial testimony. Whatever motive the agent had to fabricate his trial testimony, presumably a desire to obtain a conviction, was "as operative at the time" the memorandum was prepared as at the time of the trial testimony. Id. at 234. Then, in the portion of the opinion subsequently disputed by Judge Friendly, Judge Waterman ruled that the memorandum could not be used for the rehabilitative purpose of bolstering the agent's credibility, id. at 235, because the same criteria required for use as substantive evidence applied to use for rehabilitation, id. at 232.*fn1
In Rubin, a Government agent, Cox, testified to admissions made by the defendant in a series of interviews conducted during a three-year period. On cross-examination Cox was impeached with memoranda of several of these interviews prepared by other agents. The memoranda contained versions of the defendant's interviews allegedly at variance with those recounted by Cox at trial. To rebut the force of these allegedly prior inconsistent statements (though the statements were those of other agents, not those of Cox), the Government was permitted to offer memoranda of four other interviews, conducted during a five-month period, in which the defendant was reported to have made statements consistent with those recounted by the agent's trial testimony. The use of these prior consistent statements (again, those of other agents, not those of Cox) was upheld in a decision that produced three opinions.
Writing for the Court, Judge Mansfield noted that if the allegedly consistent statements had been offered as substantive evidence (to prove the truth of Cox's account of the defendant's statements), the criteria of Rule 801(d)(1)(B) would have to be met, especially the requirement that the statements had been made before a motive to fabricate arose. He then observed that "whether or not some lesser standard would be required if the prior statements had been offered merely to bolster Cox's credibility as a witness may be debated, as our esteemed brother, Judge Friendly, forcefully explains, notwithstanding our indication in Quinto that the standards for use of such statements for rehabilitative purposes should be the same as those under Fed. R. Evid. 801(d)(1)(B), 582 F.2d at 233." United States v. Rubin, supra, 609 F.2d at 61. Judge Mansfield then upheld use of the prior consistent statements because the defendant's objection had not been precise, because any error was harmless and, significantly, because the statements were "clearly admissible under the doctrine of ...