been much more. Counsel conceded that they had no evidence that Shabazz possessed any drugs in July or August, 1983. N.T. 4.147. Counsel contended, however, that the evidence would be relevant to show that the drugs Shabazz said he obtained from Ferrell and Green did not come from either of them. Specifically, it was asserted that the jury should be able to consider whether Shabazz had alternative sources of drugs because he had been a drug dealer on prior occasions. N.T. 4.151. To state this argument is to reveal its fallacies. If the jury had accepted the testimony that Shabazz had been a drug dealer "prior to 1983," it would not increase the probabilities that he still had a source of drugs in July and August of 1983. It would not increase the probabilities that his source of drugs, wherever it may have been "prior to 1983," was in July and August 1983, in the vicinity of Karen Green's home. It would not increase the probabilities that if he had had a source of drugs in July and August of 1983 in the area where Karen Green lived that he would have obtained drugs there rather than from Green and Ferrell. In short, if Shabazz had been a drug dealer "prior to 1983" it does not lessen the probability that he bought drugs in July and August 1983 from Karen Green and Marion Ferrell.
Assuming for the sake of argument, however, that the evidence had a tendency, however slight, to establish that in July and August, 1983, Shabazz had an alternative source of drugs, the probative value would have been substantially outweighed by the danger of confusing the issues and misleading the jury. Fed. R. Evid. 403. The effect of receiving this evidence would have been to have a trial within the trial. Obviously, the credibility of the three witnesses would have been important and would have been subject to attack and counterattack. If the government had sought to introduce evidence to show that Shabazz did not have prior drug dealings, it would have been relevant. The focus would quickly have shifted from the guilt or innocence of the defendants to the collateral matters which Fed. R. Evid. 608(b) is intended to preclude.
There is no question about the fact that what counsel had planned to do right along was to impeach Shabazz's credibility by showing he was a liar. N.T. 148, 151. It was not until after counsel had additional time to think about the matter that they came up with the theory that Shabazz had an alternative source of drugs because he had been a drug dealer on prior occasions. N.T. 4.151. On the grounds of Rules 401, 403, and Rule 608(b) the offer was properly rejected.
The same argument mounted by defendants here was considered and rejected by the Ninth Circuit in United States v. Norman, 402 F.2d 73 (9th Cir. 1968), a case decided before the present rules of evidence were adopted. In Norman, defendant was convicted of violating the narcotics laws. The government's case centered on the testimony of Porter White, a special employee of the government, who had made a purchase of heroin from the defendant. Procedures similar to the ones utilized by the DEA in this case were used in Norman. Defendant attempted to introduce the testimony of several individuals who would have stated that they had purchased narcotics from White, arguing that this evidence tended to show that White had an independent source of drugs. The district court excluded the evidence. The court of appeals affirmed, stressing that the probative value of the evidence was low and the risk of improperly shifting the jury's focus was high. See id. at 77.
Defendants next contend that the proffered evidence was probative of Shabazz's "motive." First, they contend that the motive of a witness is always relevant, especially in a criminal trial. Second, they contend that motive became relevant when the prosecutor put it in issue by eliciting Shabazz's purpose in contacting the DEA.
Defendant's contention that the motive of a witness may be explored through extrinsic evidence is correct. In fact, the Supreme Court has observed that the exposure of a witness's motivation in testifying is so significant that, in a criminal case, curtailment of examination of motive may amount to a denial of due process or the right to confrontation. See Davis v. Alaska, 415 U.S. 308, 316-17, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974). However, "motive" as used in Davis and the cases cited by defendants, does not refer to the witness' general reasons for becoming involved in the controversy. Rather, the motive which must be brought to the jury's attention is the possible motive for a witness on the stand to lie or shade the truth. See, e.g., id. at 316-18 (confrontation clause required defense counsel to have the opportunity to cross-examine witness, who was on juvenile probation and may have had a motive to testify favorably to the prosecution); United States v. Harvey, 547 F.2d 720, 722-24 (2d Cir. 1976) (error to exclude evidence that key government witness, who had once accused defendant of fathering her child, may have had a motive to testify falsely against the defendant); United States v. Robinson, 174 U.S. App. D.C. 224, 530 F.2d 1076, 1080 (D.C. Cir. 1976) (no error in admitting evidence that key defense witness may have had reason to testify favorably to defendant); J. Weinstein & M. Berger, Weinstein's Evidence para. 607 , at 23-24 (1982) ("since bias of a witness is always significant in assessing credibility, the trier must be sufficiently informed of the underlying relationships, circumstances and influences operating on the witness so that, in light of his experience, he can determine whether a mutation in testimony could reasonably be expected as a probable human reaction).
Consequently, counsel must have offered some theory which would have shown that Shabazz had a reason to lie, for which the proffered evidence was relevant. Counsel's theory is that Shabazz engaged in the DEA investigation in order to obtain money. Believing a steady flow of DEA funds would only be possible if he provided federal officials with numerous drug traffickers, Shabazz obtained drugs from a single source and then named numerous individuals, such as Ferrell and Green, as his suppliers.
Although counsel may have labeled this argument as one relating to motive, it is predicated on the same factual basis as their first argument -- that Shabazz had a source of drugs independent of Green and Ferrell. For reasons already expressed, the offered evidence is insufficiently probative of that point. See Fed. R. Evid. 401, 403.
Counsel's final argument, that the evidence is admissible to rebut Shabazz's claimed reason for becoming involved in the DEA investigation, takes two forms. Their first argument is that Shabazz was not driven by a desire to eradicate a drug problem, but rather by a desire to obtain federal funds. This argument simply adds dressing to the motive argument that was previously rejected, and it must fail as well.
Counsel's alternative argument, that the evidence should have been admissible simply to rebut Shabazz's claimed reason for involvement, bears different analysis. Counsel argues that a person who has sold drugs in the past would not be likely to take part in a drug investigation in order to protect the community.
Involved here is a question concerning the scope of permissible rebuttal testimony. Under the Federal Rules of Evidence, the trial court is accorded broad discretion to control the admission of rebuttal evidence. See Geders v. United States, 425 U.S. 80, 47 L. Ed. 2d 592, 96 S. Ct. 1330 (1976). In the Third Circuit, a two-step process has evolved to provide the district court with guidance in ruling on rebuttal questions. See United States v. Pantone, 609 F.2d 675, 681 (3d Cir. 1979). See also American Home Assurance Co. v. Sunshine Supermarket, Inc., 753 F.2d 321, 325 (3d Cir. 1985). First, the court must determine to what extent the offered evidence rebuts the witness' prior assertion. See Pantone, 609 F.2d at 681. Next, under Rules 403 and 607, the court must balance the probative rebuttal value of the evidence against the danger of prejudice or confusion. Id.
In this case, the proffered evidence provides nothing of substance for rebuttal. The fact remains that the so-called rebuttal evidence speaks to some unknown time in the past. Numerous reasons could explain away any apparent discrepancy between Shabazz's statement that he contacted DEA officials in order to alleviate a drug problem in his community and the proffered testimony that Shabazz had been seen in the past distributing drugs. Most apparent is the possibility that some event had caused Shabazz to reform in the interim.
Again, the potential for confusion that might result from the introduction of this evidence under a rebuttal theory is great. The door would have been open to a full-scale trial of Shabazz's drug involvement and to any explanation for reform. The jury's attention would have been shifted improperly from the main event to a side show. As with counsel's other theories, the balance favors exclusion.
See id.; Fed. R. Civ. P. 403, 607; J. Weinsten & M. Berger, Weinstein's Evidence para. 607 , at 67 (1982).
The need to give careful consideration to prejudice or confusion is magnified when the evidence offered in rebuttal would otherwise be barred by Rule 608(b). Cf. Pantone, 609 F.2d at 681 (prejudice must be carefully examined where offered rebuttal evidence would have been inadmissible under Rule 404(a)).
In sum, after detailed review of the record and the contentions made by the defendants, I am convinced that it was entirely proper for me to exclude the offered testimony.
Defendants other contentions are rejected without discussion.
AND NOW, this 17th day of July, the motions of Marion Ferrell and Karen Green for a new trial are hereby refused.
Marion Ferrell is hereby ordered to report for sentencing at 9:30 a.m. on July 30, 1985.
Karen Green is hereby ordered to report for sentencing
at 9:30 a.m. on July 30, 1985.