The opinion of the court was delivered by: DITTER
Defendants Marion Ferrell and Karen Green were convicted of distributing and conspiring to distribute controlled substances in violation of 21 U.S.C. §§ 841(a)(1), 846 (1982). Presently before the court are the post-trial motions of each defendant.
Defendants complain that the court erroneously excluded extrinsic evidence about the drug activity of the government's chief witness, Ricardo Shabazz. Shabazz approached federal officials in May, 1983, and offered to assist them in their drug investigations in his neighborhood. Shabazz testified that he had agreed to help the federal agents because drug problems were tearing his community apart, and that people who were not directly involved in the drug activity "were starting to be victims of the drug problem." N.T. 62.
Obviously, Shabazz's testimony was a crucial element of the government's case. Shabazz was subjected to lengthy and rigorous cross-examination, much of it about his personal life and background. He was asked about his nickname. N.T. 121, 129, 132, and 136. He was asked if he wore a fez. N.T. 121. He was asked if he used drugs. N.T. 120. He was asked if he had ever sold drugs. N.T. 120, 132, 136, and 188. He was asked if he had a reputation for selling drugs. N.T. 137, 201. He was asked if he had a beeper and the name of the company from which it was rented. N.T. 152, 189. He was asked if he had ever used a beeper to aid in drug transactions. N.T. 154. He was asked about his failure to file tax returns. N.T. 126, 130, and 132. He was asked about his prior employment, his earnings, education, change of name, and marital history. N.T. 123-138. He was asked about his being in the witness protection program and money that he had received from the government for his services. N.T. 134, 182-83. He was asked extensively about the fact that his powers as a notary public had expired but he continued to do notary work nonetheless. N.T. 219-22. In addition, he was asked about the details of the various drug transactions. He revealed he had made 68 drug purchases from 20 persons for the DEA between May, 1983, and January, 1984. He was questioned as to his understanding about the officers who had him under surveillance, details concerning the conversations that were recorded, and his prior relationships with Green and Ferrell. Cross-examination was extensive and essentially unrestricted. Many of counsel's questions were mini-speeches to the jury, laced with sarcasm and augmented with innuendo. See, e.g., N.T. 120, 124, 132, 155 & 188.
On cross-examination Shabazz explicitly stated that he had not used or sold drugs in the past. Having elicited this response, defense counsel then tried to destroy his credibility by offering evidence to the contrary. Specifically, defendants sought to introduce the testimony of three witnesses who would state that "prior to 1983 [Shabazz] was dealing drugs in the area in which the [defendants are] claimed to be active . . . ." N.T. 4.145. When confronted with the limitations of Fed. R. Evid. 608 precluding such evidence, defense counsel resourcefully suggested other reasons why it should be received. My refusal to permit the evidence in question is assigned as error.
Of course, the evidence was not admissible if offered solely to contradict Shabazz and thus impeach his credibility. When information is elicited by cross-examination on collateral matters, the cross-examiner must accept the witness' statements. This does not mean he cannot press for a different answer or be rigorous and searching. What it does mean is that he cannot offer testimony to the contrary. See United States v. Bocra, 623 F.2d 281, 288 (3d Cir. 1980); Carter v. Hewitt, 617 F.2d 961, 969 (3d Cir. 1980). Fed. R. Evid. 608(b) provides:
Specific instances of conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the Court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness . . . concerning his character for truthfulness or untruthfulness . . . .
Defendants correctly assert that Rule 608 does not bar all extrinsic evidence that serves to impeach a witness. Rule 608 precludes evidence that is offered solely to prove that a witness has been untruthful. It does not limit a party's introducing extrinsic evidence that may have the effect of generally impugning a witness' credibility, but is offered for some other relevant purpose. See United States v. James, 609 F.2d 36, 45-48 (2d Cir. 1979), cert. denied, 445 U.S. 905, 100 S. Ct. 1082, 63 L. Ed. 2d 321 (1980); United States v. Rios Ruiz, 579 F.2d 670 (1st Cir. 1978); 3 J. Weinstein & M. Berger, Weinstein's Evidence para. 608 , at 9 (1982).
To establish error on my part, defendants, therefore, must have asserted some reason, other than attacking general credibility, for which the proffered evidence was relevant. Fed. R. Evid. 103(a)(2). They urge three such bases: (1) the evidence tends to show that Shabazz may have obtained the drugs which he turned over to the DEA agents from a source independent of the defendants; (2) the evidence shows Shabazz had an ulterior motive for participating in the investigation and testifying against the defendants; and (3) the evidence rebuts Shabazz's statement on direct examination that he became involved in the investigation because of the adverse impact of drug trafficking in his neighborhood.
Defendant's first argument, that Shabazz may have had a source of drugs other than Ferrell and Green, is unpersuasive. The speculation that counsel wanted the jury to engage in --unfounded on any evidence -- was that after Shabazz had been searched by DEA agents, he eluded their surveillance without their knowing it (even though he did not know just where any of them might be at a particular moment),
obtained drugs which he then attributed to innocent victims, among them Green and Ferrell, so he could remain on the government payroll. Just how he could have pulled off this feat of legerdemain was not even suggested, but it is the mainframe of the alternative source contention. The indictment charged, and the evidence showed, that Shabazz obtained drugs on four occasions between July 28 and August 30, 1983, from one or both of the defendants at Karen Green's house. The evidence which defendants sought to introduce was that of three witnesses, each of whom would testify that they knew Shabazz and "prior to 1983 he was dealing drugs in the area where the defendant is claimed to have been active as well, that is, the Richard Allen Homes and the surrounding areas." N.T. 4.145.
Relevant evidence means evidence having any tendency to make the existence of a fact that is of consequence more probable or less probable than it would be without the evidence. Fed. R. Evid. 401. Obviously, the proffered testimony addressed a time which was at best seven to eight months before July 28, 1983. It could have 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 ...