Criminal Confessions of Cooperating Witnesses Not Admissible as Prior Consistent Statements Under Fed. R. Evid. 801(d)(1)(B), Holds Fifth Circuit

For the second time in the past two weeks, in United States  v. Portillo, No. 18-50793 (5th Cir. Aug. 5, 2020), a U.S. Court of Appeals publishes an opinion applying the 2014 amendment to Fed. R. Evid. 801(d)(1)(B) that expanded the admissibility of prior consistent statements.

The Second Circuit recently upheld the admission of prior consistent statements in United States v. Purcell, No. 19-238 (2d Cir. July 23, 2020) (see the July 24, 2020 blog post here). In this case, by contrast, the Fifth Circuit holds the prior consistent statement inadmissible, but goes on to hold that its admission – during the course of a three-month trial – was harmless error.

The two defendants were high-ranking members of a Texas-based biker gang, the Bandidos Outlaws Motorcycle Club, charged with racketeering, murder and drug crimes. Johnny Romo (Johnny), a club member, and his brother Robbie testified extensively for the government at trial. The judge also admitted statements that the brothers made to law enforcement, offered during the testimony of the law enforcement agents who examined them.

The district court held the witnesses’ statements admissible under Fed. R. Evid. 801(d)(1)(B)(i) – the original prior-consistent-statement rule – because “defendants cast doubt upon the reliability of the Romos’ testimony” during their cross examination, “suggesting that the brothers were fabricating their stories in order to receive a benefit from the government.” But the Fifth Circuit panel rejects this route of admissibility under Tome v. United States, 513 U.S. 150 (1995), which holds that a prior consistent statement is admissible under this rule only if “the statement [was] made before the alleged fabrication, influence, or motive came into being.” Here, the motive to lie existed at the time of the examination.

Alternatively, the government argues that the statements were admissible under the 2014 amendment, Fed. R. Evid. 801(d)(1)(B)(ii), i.e., “to rehabilitate the declarant’s credibility as a witness when attacked on another ground.”   The Fifth Circuit rejects this basis, as well. While the defendants cross-examined the brothers to expose inconsistent statements, “these inconsistencies were identified by the defendants in order to make a broader point: that the brothers subsequently changed their stories in order to get favorable deals from the government.” Thus the government could not resort to the catch-all language of (ii) to support admission of evidence that was properly excluded under (i). “Here, the plain language of 801(d)(1)(B)(ii) precludes the admission of the prior consistent statements under these circumstances because the defendants did not attack the Romo brothers on ‘another ground’ …. Here, it is impossible to separate the defendants’ attack on the brothers’ motivations from their charges of inconsistency, making it difficult to hold that the brothers were attacked on ‘another ground.’”

The government finally argued that the statements were “admissible under the common law rule of completeness,” see Fed. R. Evid. 106, that “allows a party to introduce other portions of a written or recorded statement when the opposing side introduced only a portion of that statement.” The panel rejects that basis, too. Even though the defendants referred to portions of the statements during cross examination, “the government does not clearly explain why this questioning created a misleading impression about the entirety of the prior consistent statements” that would justify its admission.

Despite holding that the district court abused its discretion in admitting the statements, the panel holds that any error was harmless. The government’s case was otherwise “powerful,” the prior consistent statements duplicated the brothers’ live testimony, and the government did not return to that evidence in closing arguments.

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