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United States v. Frazier

November 22, 2006


On Appeal from the United States District Court for the Western District of Pennsylvania District Court Criminal No. 02-186 District Judge: The Honorable Joy Flowers Conti.

The opinion of the court was delivered by: Smith, Circuit Judge


Argued October 24, 2006

Before: SMITH, FISHER, and COWEN, Circuit Judges.


James Frazier appeals his conviction on one count of possession of crack cocaine with intent to distribute, in violation of 18 U.S.C. §§ 841(a) and 841(b)(1)(B)(iii). The sole issue raised by Frazier on appeal is whether the District Court erred when it admitted, pursuant to Federal Rule of Evidence 801(d)(1)(B), a prior consistent statement by a police officer witness based on a determination that the defense had raised an implied charge of recent fabrication or improper motive or influence against that witness. Because we agree with the District Court that Frazier's counsel triggered Rule 801(d)(1)(B) by impliedly charging recent fabrication, we will affirm the Judgment of the District Court.*fn1


On June 8, 2002, Officers Phillip Mercurio and Robert Kavals were working plain-clothes patrol in a high drug-traffic neighborhood in Pittsburgh. The officers observed two men engage in a discussion and hand-to-hand exchange that the officers believed to be a drug transaction. After the men completed the transaction, the officers drove their car toward the seller in the transaction (later identified as James Frazier), and stepped out of the car. Mercurio asked if he could speak with Frazier, at which point Frazier ran from the officers. Mercurio pursued Frazier on foot while Kavals followed in the officers' unmarked car.

After Frazier had run approximately twenty feet, Mercurio saw him reach into his right pocket, at which time Frazier pulled out a bag of crack cocaine and dropped it on the ground. As Frazier pulled out the bag, his cell phone also came out of his pocket and dropped onto the ground, though Mercurio could not tell whether or not Frazier intended to discard the cell phone. With respect to what happened next, Mercurio later testified at Frazier's trial that during his pursuit, he slowed down and picked up the bag of crack and then continued chasing Frazier. At a May 9, 2003 pre-trial suppression hearing, however, Mercurio testified that he continued chasing Frazier without stopping to pick up the crack, and that he retrieved it when he returned to the drop point after Frazier had been apprehended.

Mercurio chased Frazier on foot into an overgrown, abandoned lot, while Kavals blocked the other side of the lot, preventing Frazier's escape. The officers called for back-up and a canine unit to flush Frazier out of the lot so that he could be arrested. Mercurio and Kavals then secured the perimeter and waited for back-up to arrive. According to Kavals' testimony at trial, he asked Mercurio as they were waiting for back-up, "did you get it?," meaning the bag of crack, and also "do we have enough for the intent?" Mercurio responded affirmatively to both questions. The officers eventually arrested Frazier.

On September 10, 2002, a grand jury returned a two-count indictment charging Frazier with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) and possession with the intent to distribute five or more grams of crack cocaine, in violation of 18 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). The District Court granted Frazier's motion to sever the two counts, and on October 2, 2003, a jury convicted Frazier of the gun charge. Frazier's appeal before us raises no issues relating to this firearms conviction.

Frazier also proceeded to trial on the drug charge set forth in Count Two of the Indictment. On November 19, 2004, a jury trial on this charge ended in a hung jury. On March 18, 2005, at the conclusion of a second jury trial, a jury returned a verdict of guilty on the drug charge. The District Court sentenced Frazier to 360 months in prison followed by an eight-year term of supervised release.

Frazier's defense at the second trial on the drug charge focused, inter alia, on the differences between Mercurio's testimony at a pre-trial suppression hearing and at the trials regarding when he recovered the bag of drugs dropped by Frazier. The defense claimed that Mercurio's testimony at trial could not be trusted owing to the conflicting versions of the retrieval of the crack presented by Mercurio at the suppression hearing and the trial. Based on Frazier's attack on Mercurio's credibility, the District Court, over Frazier's objection, allowed Officer Kavals to testify to the questions he had asked Mercurio while the two were waiting for back-up. The Court ruled that the testimony was admissible as a non-hearsay prior consistent statement pursuant to Federal Rule of Evidence 801(d)(1)(B).

Frazier timely appealed his conviction, raising the single issue of whether Kavals' testimony as to Mercurio's prior consistent statement was properly admitted by the District Court.


The District Court had original jurisdiction pursuant to 18 U.S.C. § 3231. We exercise jurisdiction over the appeal pursuant to 28 U.S.C. § 1291. A district court's evidentiary rulings are generally reviewed for abuse of discretion. See Ansell v. Green Acres Contracting Co., Inc., 347 F.3d 515, 519 (3d Cir. 2003). We exercise plenary review over a district court's interpretation of the rules of evidence. Id. The evidentiary ruling here turned on whether Officer Mercurio's statement to Officer Kavals was offered to rebut a charge of recent fabrication or improper motive. This inherently factual inquiry does not have a sufficient legal component to warrant plenary review by this Court.

"Admission of evidence is an abuse of discretion if the district court's action was arbitrary, fanciful or clearly unreasonable. We will not disturb a trial court's exercise of discretion unless no reasonable person would adopt the district court's view." Id. (internal citations and quotations omitted).


Federal Rule of Evidence 801(d)(1)(B) states that a prior statement by a witness is admissible non-hearsay when it is "consistent with the declarant's testimony and is offered to rebut an express or implied charge of recent fabrication or improper influence or motive." The Supreme Court has said that four requirements must be met in order for prior consistent statements to be admitted into evidence under Rule 801(d)(1)(B): (1) the declarant must testify at trial and be subject to cross-examination; (2) there must be an express or implied charge of recent fabrication or improper influence or motive of the declarant's testimony; (3) the proponent must offer a prior consistent statement that is consistent with the declarant's challenged in-court testimony; and, (4) the prior consistent statement must be made prior to the time that the supposed motive to falsify arose. Tome v. United States, 513 U.S. 150 (1995); United States v. Collicott, 92 F.3d 973, 979 (9th Cir. 1996).

Requirements one and three are not at issue in this case. The District Court ruled that Officer Kavals could testify to Officer Mercurio's prior consistent statement because Frazier charged that Mercurio's trial testimony was fabricated. We now examine whether Frazier's actions at trial satisfied the two main elements of Rule 801(d)(1)(B) at issue in this appeal: a charge of fabrication and the premotive requirement.


In order for a prior consistent statement to be admitted under Rule 801(d)(1)(B), it must be "offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive." FED. R. EVID. 801(d)(1)(B). The Supreme Court in Tome instructed us that "[p]rior consistent statements may not be admitted to counter all forms of impeachment or to bolster the witness merely because she has been discredited." 513 U.S. at 158. The purpose of Rule 801(d)(1)(B) is not to "bolster[] the veracity of the story told," but to rebut a charge of recent fabrication or improper influence or motive. Id. See also United States v. Drury, 396 F.3d 1303, 1316 (11th Cir. 2005) ("Moreover, and perhaps more significant, prior consistent statements are treated as admissible non-hearsay only if they are offered to rebut a specific allegation of recent fabrication, not to rehabilitate credibility that has been generally called into question."). The Supreme Court in Tome did not precisely draw the line between types of impeachment that trigger the Rule and types that do not. However, the text of Rule 801(d)(1)(B) and precedent from this Court allow us to discern a standard that district courts should apply in making such determinations.

In drawing this distinction, this Court has stated that "there need be only a suggestion that the witness consciously altered his testimony in order to permit the use of earlier statements that are generally consistent with the testimony at trial." United States v. Casoni, 950 F.2d 893, 904 (3d Cir. 1991); See also Gaines v. Walker, 986 F.2d 1438, 1445 (D.C. Cir. 1993). Nothing in Tome alters the Casoni standard, and we will apply it here.

The statement in Casoni that "there need be only a suggestion" leaves substantial discretion to the District Court to allow prior consistent statements to be admitted as evidence under Rule 801(d)(1)(B). However, Casoni still mandates the suggestion of a conscious alteration by the opposing counsel, whether it be in an opening statement or on cross-examination. In this respect, we instruct district courts to consider the warning from the Fifth Circuit that "Rule 801(d)(1)(B) cannot be construed to allow the admission of what would otherwise be hearsay every time a [witness's] credibility or memory is challenged; otherwise, cross-examination would always transform [the prior consistent statement] into admissible evidence." United States v. Bishop, 264 F.3d 535, 548 (5th Cir. 2001). The line between challenging credibility or memory and alleging conscious alteration can be drawn when a district court determines whether the cross-examiner's questions reasonably imply intent on the part of the witness to fabricate. Other courts of appeals have drawn a similar line, albeit less explicitly. See also United States v. Ruiz, 249 F.3d 643, 648 (7th Cir. 2001); United States v. Lozada-Rivera, 177 F.3d 98, 103-04 (1st Cir. 1999); United States v. Street, 66 F.3d 969, 977 (8th Cir. 1995). See also Gaines, 986 F.2d at 1444 (stating that "in some cases, an attorney may be implying only that the witness has a faulty memory, not that he has wilfully altered his account of events").

Once the proponent of the prior consistent statement has indicated which questions, statements, or arguments by the cross-examiner suggest recent fabrication, a district court must then determine whether a suggestion of conscious alteration has been made. With respect to the standard by which a district court should judge whether Rule 801(d)(1)(B) has been triggered, a judge must make an objective determination based on its examination of the entire trial record to determine whether the impeaching counsel's trial tactics could reasonably be taken by a jury as implying recent fabrication or improper influence or motive.*fn2 If a district court determines that the impeaching counsel has, through the court's examination of the entire trial record, made an express or implied charge of recent fabrication or improper influence or motive, then this requirement of Rule 801(d)(1)(B) has been satisfied.

In this case, the District Court did not abuse its discretion when it concluded that counsel for Frazier implied recent fabrication on the part of Officer Mercurio by suggesting that Mercurio consciously altered his testimony. A strong suggestion of conscious alteration is discernable from the cross-examination of Mercurio conducted by Frazier's counsel. The thrust of the cross-examination suggested that Mercurio testified truthfully at the May 2003 suppression hearing, and that he then altered the details of his testimony at both subsequent trials based on a later-developed motive to facilitate a guilty verdict by improper means. Frazier's counsel pursued this theory as it related to two aspects of the evidence; the cell phone that Frazier dropped during the chase, and the time at which Mercurio recovered the crack that Frazier dropped during the same chase:

Q: Your testimony here today [on direct examination at trial] was also that you saw Mr. Frazier throw a phone to ...

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