On Appeal from the United States District Court for the District of New Jersey, Trenton, D.C. Criminal No. 86-00013-3.
Higginbotham, Becker, and Greenberg, Circuit Judges.
A. LEON HIGGINBOTHAM, JR., Circuit Judge.
Appellant appeals his conviction on conspiracy to import Schedule I controlled substances in violation of 21 U.S.C. §§ 846, 963 (1982). At trial the district court denied defendant's motion to admit into evidence exculpatory statements of an alleged co-conspirator for purposes of impeachment under Fed. R. Evid. 806. Because we find that the district court's denial constituted reversible error, we will vacate the judgment of conviction, sentence and fine imposed.
In 1984, the Drug Enforcement Administration (DEA) learned that a major drug trafficking organization, believed to be directed by Stanley Karl Esser of the Netherlands, was seeking to distribute heroin and hashish in the United States. This information prompted a joint investigation by the DEA and Dutch authorities into Esser's activities.
DEA undercover agent Jack Short was selected to pose as an American cocaine dealer interested in doing business with Esser. In discussions between Esser and Short concerning the importation of narcotics, Esser mentioned that a person named "Hadji" would be able to supply the drugs. Afterwards, as determined from a wiretap, Esser contacted Hadji to discuss the deal that was being formulated. The government, using those remarks that Esser, an unavailable witness, had made to Short, and the recorded telephone conversations, prosecuted Appellant, Abdul Wali, asserting that he was Hadji.
At Wali's trial, Short testified that Esser told him that Esser could "pick up the heroin from Hadji's people in Pakistan . . . ." Transcript of the Trial of United States v. Wali, reprinted in Appellant's App. at A821. Esser also mentioned to Short that "Hadji was very big in the [drug] business in the United States" and that "Hadji might want his people in the States to deliver the heroin . . . ." Id. at A822-23. Moreover, Short testified that Esser said that his arrangement with Hadji was to transport 10 tons of hashish to the Netherlands and then send it in containers, two tons at a time, to the United States every two weeks. Id. at A826. When Wali's counsel objected on hearsay grounds to the admission of Short's testimony regarding Esser's statements, the government countered by claiming these statements were "co-conspirator exceptions" and the district court overruled the objection. Id. at A845-47.
Wali then sought to introduce statements that Esser had made to Dutch authorities exonerating Wali for the purpose of impeaching Esser's credibility. Esser had told Dutch police that "[a]s far as I know, Wali does not traffick in drugs. I never did anything for him, nor did he for me. " Id. at A1413. When asked whether Wali played a part in his buying and selling of hashish, Esser responded: "None at all." Id. at A1426. Moreover, Esser gave the following answers in response to questions from a DEA agent:
Q: Had you received the heroin sample from Hadji alias Abdul Wali?
Q: Did Hadji, Abdul Wali[,] ever deliver ...