On Appeal from the United States District Court for the District of Delaware, D.C. Criminal No. 87-00032-5.
Seitz, Higginbotham and Cowen, Circuit Judges.
A. LEON HIGGlNBOTHAM, JR., Circuit Judge.
Following a seven day jury trial, a federal jury found Cherubin Versaint guilty of possession and distribution of cocaine in violation of 21 U.S.C § 841 (1982), and of conspiracy to distribute and possess cocaine in violation of 21 U.S.C. § 846 (1982). On this appeal, Versaint contends that the district court abused its discretion by refusing to admit into evidence a police report proffered by the defense as substantive evidence of misidentification. This Court has jurisdiction pursuant to 28 U.S.C. § 1291. We will vacate the judgment and sentence*fn1 of the district court and remand this case for a new trial.
The relevant facts are undisputed. In the early morning hours of February 20, 1987, the Delaware State Police executed a "no knock" search warrant on a Seaford Delaware mobile home. Joint Appendix (hereinafter "Jt. App.") at 58, 267-68. The search warrant was based on a Delaware State Police investigation into a suspected crack cocaine distribution operation run from the home by its occupants. The investigation, which began in October 1986, included police surveillance of the home and a series of undercover visits there by Trooper Downes, a Delaware State Police officer. Id. at 284-88. During the search, the police discovered two guns and three pounds of cocaine, of which some was concealed under a bed and the rest buried in the backyard. Id. at 371; 374; 412-13.
The police arrested Versaint, who was found sleeping on a couch in the living room, and five others: Philistine Jean, who was found sleeping on the floor by the door, with a loaded gun nearby, Jt. App. at 369-70; 477, Well Thomas, Rosette Germain, Dernella Remedor, and Amy Deal.*fn2 Id. at 371. The police took them outside and placed them in front of a car in the light of its headlights. Id. at 226-27; 271; 300. Downes identified each of the individuals, except for one, Philistine Jean, as having been present during one or both of two undercover drug purchases he had made, on February 3rd and 17th. Subsequently, Downes identified each from their identification card or driver's license. Id. at 222-23.
A federal grand jury indicted all of the six.*fn3 Jt. App. at 14-15. The four count indictment specifically charged Versaint with one count of knowing distribution of crack cocaine in excess of five grams on February 17, 1987 (Count II) and one count of conspiracy to distribute and to possess and with intent to distribute crack cocaine from on or about January 26, 1987, through February 20, 1987 (Count IV). Id. at 44.
Versaint was tried jointly with Philistine Jean, Well Thomas, Rosette Germain and Dernelia Remedor.*fn4 Amy Deal was not tried, having entered into a plea agreement with the government. Jt. App. at 583-85. At trial, the government based its case against Versaint principally on Downes's testimony concerning his five visits to the mobile home and his two purchases of drugs from its occupants. Id. at 188-224. Deal, the government's cooperating witness, also gave testimony concerning Versaint's participation in the drug activities conducted from the mobile home. Id. at 102-03, 176-77. There was no physical evidence presented at trial linking Versaint to the premises. Id. at 478.
Downes's testimony at trial differed in three respects from the contents of a police report that he prepared on March 20, 1987, one month after the arrests, in which he described the February 17 undercover purchase of $50 worth of cocaine. Jt. App. at 615. At the top of Downes's report there is a box for the name of the subject of the report, which is filled in with the name "Jean." Id. The report does not name anyone else in connection with the drug transaction on February 17th. Id. At trial, however, Downes testified that (1) the individual who answered the door was Versaint, id. at 208; (2) that two people, Germain and Versaint, participated in the transaction, id. at 208-09; and (3) that two others, Remedor and Thomas, were present when he made the drug buys. Id. at 211-12.
Versaint sought to introduce Downes's report as substantive evidence, for the truth of its contents concerning the identity of the individual who answered the door and participated with Germain in the cocaine sales to Downes. Jt. App. at 232, 236. The district court held that the police report could not be admitted under Fed. R. Evid. 803(8)(C), the public records exception to the hearsay rule, because it lacked the requisite trustworthiness. The district court did, however, permit Versaint to use the report in order to impeach Downes's testimony. Jt. App. at 527-28.
In addition, Deal's testimony at trial differed from statements that she made prior to trial. At a meeting with police officers and attorneys from the United States Attorney's Office, Deal initially stated that Jean was the man involved in the drug sale to Downes. Jt. App. at 97-98. She also stated then that she believed chat the second drug sale to Downes occurred not on February 17th, but on February 19th. Id. at 21, 46-47. At a second pre-trial meeting, Deal stated that Versaint had been at the house, but did not positively identify him as the person who gave Downes the crack on that date. Id. at 46. At trial, however, Deal stated positively that Downes had bought the cocaine from Versaint. Id. at 176-77.
The defense attempted to impeach Deal by showing her a letter sent by the Assistant United States Attorney to Versaint's counsel pursuant to the prosecution's discovery obligations. Jt. App. at 180-81; see Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963) (due process clause requires prosecution to disclose exculpatory evidence to defendant). The purpose of showing Deal the letter, which related Deal's statement to the government about Jean, was to refresh her recollection about this prior statement. Upon being shown the letter, Deal did admit that she had first identified Philistine Jean as the person involved in the transactions with Downes, but she denied saying subsequently that she could not be positive that it had been Versaint who participated in the transactions. Jt. App. at 179, 181. The defense then tried to impeach Deal's testimony by bringing out this prior inconsistent statement through the testimony of two of the ...