APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA (D.C. Civil No. 77-1168)
Before Gibbons, Rosenn and Garth, Circuit Judges.
We are called upon to determine whether a letter written by the plaintiff Reginald Carter, a prison inmate, violated the Federal Rules of Evidence when it was read and admitted into evidence at the trial of a § 1983 action brought by Carter against prison authorities. We determine that it did not, and therefore affirm the judgment of the district court in favor of the defendants.
Reginald Carter is an inmate at the Pennsylvania State Correctional Institution at Huntingdon. He claims that he was severely beaten in the course of a routine "shakedown," or search, of his cell on September 22, 1977 by three prison guards, defendants John Fuiek, Duane Pyles, and Gilbert Levi. On the date of the incident, Carter was housed in Huntingdon's maximum security block as a result of his role in an escape attempt a week earlier in which a guard was seriously injured. Carter brought suit against the three guards and against Lowell Hewitt, superintendent of the prison, under 42 U.S.C. § 1983.
The defendants moved to dismiss the complaint, or, in the alternative, for summary judgment. Supporting affidavits were filed with their motion. The action was referred to a U.S. Magistrate under 28 U.S.C. § 636 (1976). The Magistrate directed Carter to file responsive affidavits, but Carter claimed that he was unable to do so due to the restrictions he was subject to as a maximum security prisoner. Faced with this circumstance, the Magistrate scheduled an evidentiary hearing at the prison, at which time Carter's factual contentions were fully tried.
At the hearing, conducted without a jury on July 24, 1978, Carter presented three witnesses and also testified himself. The three witnesses were inmates housed in cells adjacent to or near Carter's at the time of the alleged beating. They all testified that Fuiek, Pyles, and Levi, the three defendant guards, came to Carter's cell shortly after 2:00 in the afternoon of September 22, 1977, ordered him out of the cell, and proceeded to beat him with batons, flashlights, fists, and feet. They all testified that they could not actually see the beating, due to the restricted visibility from their cells, but that they could hear the blows being landed. Two testified that they never noticed any bruises on Carter as a result of the beating; one testified that he noticed some swelling of Carter's face.
Carter testified to the beating in greater detail. He stated that he was hit on the head three or four times with a flashlight and hit 30-35 times with a baton. He also claimed he was kneed in the face, causing his mouth to bleed. He testified, however, that the only visible signs of the beating as early as a day or two later were a swollen lip and some bruises on the back of his neck; all other injuries, he claimed, were covered by his clothes.
The defense called as witnesses the three defendant guards. They testified that they went to Carter's cell on the day in question for a routine shakedown. Fuiek entered the cell, ordered Carter out, and commenced the search. When Carter left the cell, he grabbed Officer Levi's baton and a struggle ensued. Pyles tried to pull Carter off Levi. Fuiek heard the commotion, left the cell, and demanded that Carter release the baton with the words, "turn it loose or I'll run this (flashlight) through your face." Carter then released the baton, and Fuiek completed his search. All three guards claimed that Carter had not been hit by anyone in any way.
The defense also put in the testimony of prison infirmary supervisor Morgan, that Carter would have shown more extensive injuries if he had been beaten as badly as he claimed, or in the manner that he described.
The incident giving rise to this appeal occurred during Carter's cross-examination. Carter was shown a letter written by one "Abdullah" to a fellow inmate at Huntingdon. Carter admitted that he had written the letter, and also admitted that he had denied writing this same letter when he had been questioned as to its authorship in an earlier prison disciplinary proceeding. Defense counsel asked Carter to read the letter. Carter objected on the grounds of relevance, claiming that the letter had been written six months after the alleged beating. The Magistrate then ordered Carter to read the letter but expressly reserved ruling on whether the letter was admissible. Complying with the Magistrate's direction, Carter read the letter aloud. The letter, which was undated, generally described to its unidentified recipient how to file a complaint charging prison guard brutality.*fn1 In its most significant portion, the letter reads:
This is a set up my brother compile complaints to be use for bullshit courts, possibly news media, and a radio program in Pittsburg (sic) & W.D.A.S. down Philly.
We want to establish a pattern of barbaric brutal harrassment (sic) and turn it on these chumps to the max.
Defense counsel suggested that this letter was a direction to file a false brutality complaint. Carter claimed that he was only encouraging the filing of a legitimate complaint.
Shortly after the hearing, the Magistrate submitted proposed findings of fact and conclusions of law to the district court. Resolving the matter that had been expressly reserved, the Magistrate admitted the letter in evidence as reflecting on Carter's credibility and demonstrating a modus operandi on Carter's part of filing false brutality complaints. Relying in part on the letter, the Magistrate recommended that the district court find that no beating had occurred and that judgment be entered in favor of the defendant guards. As to Superintendent Hewitt, the Magistrate recommended that his motion for summary judgment be granted since Carter had neither alleged nor proved that Hewitt had directed or encouraged the beating in any way. The district court adopted the Magistrate's recommendations*fn2 and entered judgment for the defendants.*fn3
Carter now appeals, challenging admission of the letter on three grounds. First, he claims that the letter constitutes character evidence rendered inadmissible by F.R.Evid. 404. Second, he claims that the letter is extrinsic evidence used to prove bad acts to impeach his credibility, and is therefore inadmissible under F.R.Evid. 608(b). Finally, he contends that, even if otherwise admissible, the letter should have been excluded under F.R.Evid. 403 because "its probative value is substantially outweighed by the danger of unfair prejudice."*fn4
The defendants meet none of these contentions in their brief. Rather, in what we must regard as a questionable litigation strategy, they do not argue that the letter is admissible; they argue, instead, that even if admission of the letter constituted error, the error was harmless. If the letter was inadmissible, as Carter contends, we would find it difficult to hold that its admission was harmless. Both the Magistrate and the district court expressly relied, and relied heavily, on the letter in their opinions. Since, however, on our own analysis, we cannot agree with Carter that the letter was inadmissible, we do not reach the defendants' claim that any such error was harmless.
We consider, and reject, each of the three grounds of inadmissibility raised by Carter, in turn.
We believe, quite simply, that the letter is admissible, substantive evidence because it bears on the central factual issue in the case whether Carter was beaten by prison guards on September 22, 1977. The standard of relevance established by the Federal Rules of Evidence is not high: evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to determination of the action more probable or less probable than it would be without the evidence." F.R.Evid. 401 (emphasis added). A factfinder could reasonably interpret this letter as reflecting a plan on Carter's part to promote the filing of false complaints. A factfinder could further draw the inference that Carter's own complaint about being beaten on September 22, 1977 had been filed pursuant to that plan. Thus, the letter is relevant: it has some tendency to make Carter's assertion that he was beaten less likely to be true than it would be without the evidence. Since the letter is relevant, it is also admissible, unless its admission is otherwise restricted. F.R.Evid. 402.
Carter claims, however, that F.R.Evid. 404(b) constitutes a restriction on admissibility. This rule provides:
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
Carter claims that before evidence of his act, solicitation of a false complaint, may be admitted under this rule to prove a plan of filing false complaints, there must be much greater similarity between the action solicited in his letter (the filing of a false complaint) and the action taken by Carter (the filing of a complaint charging the defendants with beating Carter on September 22, 1977). We cannot agree; his contention misconstrues both the nature of the evidence introduced and the rule itself.
Federal Rule of Evidence 404(b), in this context, governs attempts to prove the existence of a plan through evidence of a series of acts that conform to the plan. Thus, the rule would be implicated here if the defendants, merely by showing that Carter had filed false brutality complaints on several other occasions, thereby sought to prove that Carter had conceived and implemented a plan of filing such false complaints. This letter does not, however, serve that purpose. Rather, Carter's letter constitutes direct evidence of the existence of a plan, in its statement that "(t)his is a set up my brother . . .. We want to establish a pattern of barbaric brutal harrassment (sic) and turn it on these chumps to the max."
The difference is critical, and may be demonstrated by a simple example. Assume Carter's letter had stated, instead of its actual content, that "I think we can put these prison guards on the defensive by establishing a pattern of prison guard harassment. I intend doing so by encouraging prisoners to file numerous false complaints against the guards. Pursuant to this plan, I filed a false complaint of a beating by three guards on September 22, 1977." It could not be claimed that rule 404 would require such evidence to be in the form of proof of a series of discrete false complaints, and that in the absence of such proof the letter was inadmissible. And if we add to this hypothetical letter a request to the recipient to file a false complaint himself, it could not be claimed that rule 404 would demand great similarity between the complaint solicited and the complaint filed earlier by the author, before the letter could be admitted into evidence. The reason is clear. In the typical case ...