United States v. Ramirez, No. 07-2912-cr (Calabresi, Cabranes, Parker, CJJ) (2d Cir. June 29, 2010)
In this case, the circuit found that the district court erred in applying the “impeachment by contradiction” doctrine. But since the error was harmless, it affirmed.
At his drug conspiracy trial, defendant Jose Luis Rodriguez testified that he was not knowingly involved in the drug trafficking of which he was accused. He claimed that he was merely the driver for Jose Adames, the group’s ringleader, and never saw or knew of any cocaine on their trips. Rodriguez testified that he served as Adames’ chauffeur until late 2004, when he received a warning that Adames was involved with drugs, at which time he stopped driving for him.
To rebut this, the government called a police officer who testified that he saw Rodriguez handle cocaine during an unrelated traffic stop after the charged conspiracy had ended. Specifically, the officer saw Rodriguez outside a car putting plastic bags containing cocaine into a box. Rodriguez was arrested, but was not prosecuted in that case.
The circuit held that the admission of the account of the drug arrest was error. The officer’s testimony was extrinsic evidence of Rodriguez’ past conduct, which is prohibited by Fed.R.Evid. 608(b). And the court rejected the government’s effort to shoehorn the testimony into the “impeachment by contradiction” doctrine, which provides that where a defendant testifies on direct about a specific fact, the prosecution is entitled to prove that he lied as to that fact.
Here, the rebuttal testimony did not in fact contract Rodriguez. Rodriguez did not testify that he had never seen or handled drugs. Rather, he testified that he did not see or handle drugs during the time he worked for Adames, while the impeachment testimony concerned a later event. Since the government could not identify any point in the record where Rodriguez “forswore, as a universal matter, ever having seen drugs of any kind,” the testimony should have been precluded under Rule 608(b).
However, despite its concerns over the prejudicial impact of evidence of an unrelated drug arrest – which “can prove extremely damaging to a defendant at trial” because it “functions essentially as evidence of criminal propensity” – the court found the error to be harmless. The remainder of the government’s evidence was “sufficiently conclusive and its case [was] sufficiently robust.” In addition to Rodriguez’ confession, a string of co-conspirators took the stand and described Rodriguez’ knowing involvement in Adames’ operation.