Bad character for truth/veracity

On April 12, 1982, John Foster was brutally assaulted while on duty as a correctional counselor at the federal prison in Lompoc, California. His attacker beat him repeatedly about the head and upper body with a metal pipe, inflicting numerous and permanently disabling injuries, one of which was a profound loss of short-term memory. Foster spent nearly a month in the hospital recuperating from his injuries, much of that time in a state of semiconsciousness. In an interview during his hospitalization on May 5, 1982, Foster selected respondent James Owens’ photograph from an array of possible suspects and informed FBI Agent Thomas Mansfield that it was respondent who had attacked him. Foster testified that at the time he made these statements, he was certain that his memory was accurate. He also recalled choosing respondent’s photograph from those Mansfield showed him. By the time of respondent’s trial in December 1983, Foster could no longer remember who had assaulted him or even whether he had seen his attacker. Nor could he recall whether any of the prison officials or other persons who visited him in the hospital had ever suggested that respondent had beaten him. A medical expert who testified on behalf of the prosecution explained that Foster’s inability to remember most of the details of the assault was attributable to a gradual and selective memory loss caused by his head injuries. The government introduced evidence of Foster’s May 5, 1982 out-of-court identification at trial. Defense counsel cross-examined Foster, but his memory loss precluded any inquiry into whether he had actually seen his assailant, whether he had an opportunity to see him, or whether hospital visitors had suggested respondent’s name to him.

Respondent John Abel and two cohorts were indicted for robbing a savings and loan in Bellflower, Cal., in violation of 18 U. S. C. §§ 2113(a) and (d). The cohorts elected to plead guilty, but respondent went to trial. One of the cohorts, Kurt Ehle, agreed to testify against respondent and identify him as a participant in the robbery. Respondent informed the District Court at a pretrial conference that he would seek to counter Ehle’s testimony with that of Robert Mills. Mills was not a participant in the robbery but was friendly with respondent and with Ehle, and had spent time with both in prison. Mills planned to testify that after the robbery Ehle had admitted to Mills that Ehle intended to implicate respondent falsely to receive favorable treatment from the Government. The prosecutor in turn disclosed that he intended to discredit Mills’ testimony by calling Ehle back to the stand and eliciting from Ehle the fact that respondent, Mills, and Ehle were all members of the “Aryan Brotherhood,” a secret prison gang that required its members always to deny the existence of the organization and to commit perjury, theft, and murder on each member’s behalf. Defense counsel objected to Ehle’s proffered rebuttal testimony as too prejudicial to respondent. After a lengthy discussion in chambers the District Court decided to permit the prosecutor to cross-examine Mills about the gang, and if Mills denied knowledge of the gang, to introduce Ehle’s rebuttal testimony concerning the tenets of the gang and Mills’ and respondent’s membership in it. At trial Ehle implicated respondent as a participant in the robbery. Mills, called by respondent, testified that Ehle told him in prison that Ehle planned to implicate respondent falsely. When the prosecutor sought to cross-examine Mills concerning membership in the prison gang, the District Court conferred again with counsel outside of the jury’s presence, and ordered the prosecutor not to use the term “Aryan Brotherhood” because it was unduly prejudicial. Accordingly, the prosecutor asked Mills if he and respondent were members of a “secret type of prison organization” which had a creed requiring members to deny its existence and lie for each other. When Mills denied knowledge of such an organization the prosecutor recalled Ehle. Ehle testified that respondent, Mills, and he were indeed members of a secret prison organization whose tenets required its members to deny its existence and “lie, cheat, steal [and] kill” to protect each other. Ehle then further described the organization and testified that “in view of the fact of how close Abel and Mills were” it would have been “suicide” for Ehle to have told Mills what Mills attributed to him. Respondent’s counsel did not request a limiting instruction and none was given. The jury convicted respondent. On his appeal a divided panel of the Court of Appeals reversed. 707 F. 2d 1013 (1983).

On July 31, 2003, Eric Besore contacted DEA task force officer Steven Thibodeau to arrange a controlled purchase of drugs from an individual nicknamed Hoot. Besore had previously agreed to assist Thibodeau with drug investigations in exchange for help dismissing a criminal speeding charge. Thibodeau and other agents gave Besore $1,000, equipped him with an electronic transmitting device resembling a pager, searched him and his vehicle, and sent a surveillance team including Thibodeau and Barry Kelly to monitor the transaction in Westbrook, Maine. Besore drove to a parking lot at King and Brown Streets. Kelly parked nearby to record transmissions from the device while Thibodeau maintained contact by cell phone. After a uniformed officer stopped a nearby vehicle, Besore moved his car up the street. Thibodeau later observed Besore in the driver's seat of his car with a black male later identified as Dwayne J. Anderson in the passenger seat. Kelly saw Anderson exit Besore's car and enter a green Subaru parked behind it. Besore then drove away and met Thibodeau, handing him a plastic bag containing a substance that field-tested positive for cocaine base. Thibodeau placed the substance in evidence envelope 159263, locked it in the DEA safe, and mailed it to the DEA laboratory in New York. Chemist Brian O'Rourke later confirmed the substance was cocaine base weighing 6.1 grams. On October 23, 2003, a grand jury indicted Anderson for knowingly and intentionally distributing five or more grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B). A two-day jury trial began on April 7, 2004, in the District of Maine. At trial the government introduced a copy of the recording from Besore's transmitting device along with a transcript prepared by the prosecutor. Kelly authenticated the transcript by comparing it to the tape. The court gave limiting instructions that the tape was the evidence and any discrepancies must be resolved in favor of the tape. Besore did not appear despite a government subpoena. The defense requested a missing witness instruction, which the court denied. The court also excluded evidence of Besore's prior felony conviction for tampering with a witness during cross-examination of Thibodeau and admitted the drugs over a chain-of-custody objection. The jury convicted Anderson after nearly two hours of deliberation. The PSR calculated a base offense level of 26 based on 6.1 grams of crack cocaine. It classified Anderson as a career offender, though the government later conceded he lacked the required predicate offenses and should be placed in criminal history category III. At sentencing on April 27, 2005, the district court found the substance was crack cocaine, set the Guidelines range at 78 to 97 months, and imposed a sentence of 78 months' imprisonment, five years of supervised release, and a $100 assessment. Anderson timely appealed both conviction and sentence.