UNITED STATES v. ABEL

Transcript: 

ORAL ARGUMENT BY STEPHEN S. TROTT ON BEHALF OF PETITIONER

Chief Justice Burger: Mr. Trott, I think you may proceed whenever you are ready.

Mr. Trott: Mr. Chief Justice, and may it please the Court:

This case is here on a writ of certiorari to the United States Court of Appeals for the Ninth Circuit.

I will argue that the Ninth Circuit was in error when it reversed Respondent's conviction for bank robbery on the basis of evidence that the Circuit perceived to be improper evidence of impeachment.

In arriving at that conclusion, the United States Court of Appeals for the Ninth Circuit announced the rather astounding proposition that it is error to introduce evidence that a person is a member of a group sworn to commit perjury on behalf of another party to the lawsuit.

The question presented, in essence, is whether or not it is proper to introduce evidence that a witness and a party to the actions are members of a group which espouses a tenet that members shall lie and commit perjury on each other's behalf if the case arises, if the need be, in order to escape the clutches of the law.

The facts as they relate to this particular issue are rather straightforward.

In just a few moments I would like to discuss them.

Petitioner believes that the facts are very important in this case.

Respondent, Mr. Abel, and two confederates committed a bank robbery.

They were indicted.

Two of the defendants went by way of pleas of guilty.

Mr. Abel decided that he would go to trial.

The Government called as one of its chief witnesses a Mr. Ehle, who was one of the original co-defendants who had pleaded guilty in order to obtain a deal.

Mr. Ehle implicated Respondent in all respects in this robbery.

Respondent relied on a defense of alibi, and in order to bolster that alibi Respondent called a witness by the name of Mills.

Mills testified that shortly before the trial, he had a conversation with Government witness Ehle wherein Mr. Ehle indicated that it was his intention to falsely implicate Respondent Abel in order to help himself out with respect to the charge that he had to face that was before that court.

Mr. Mills testified that when Mr. Ehle told him that he was going to falsely implicate Respondent, he decided that it was necessary to come forward and testify in the interest of justice and truth because he, Mr. Mills, could not bear to see an innocent person go to prison.

Confronted with this evidence, the prosecutor announced to the court that he intended to put on evidence for the purpose of impeaching this witness Mills, that in fact Mr. Mills and Respondent Abel belonged to a secret prison organization known as the Aryan Brotherhood, one tenet of which was to lie and commit perjury on behalf of other members if the case arose, another tenet of which was to deny the very existence of that organization for the purpose of enabling it to pursue its perjurious ideas.

After a long, complicated, and very professionally held hearing, the judge decided that this was proper evidence of bias; that it ought to be used to impeach witness Mills; the balancing test of Rule 4C3 was applied; the prosecutor was advised in his impeachment not to use the term Aryan Brotherhood because that term itself might somehow prejudice the interests of Respondent; and the cross-examination and the impeachment ensued.

Predictably, Mr. Mills denied the very existence of the secret prison organization that he was confronted with, and of course denied that he had any knowledge that members of this organization, which he was alleged to be, had a responsibility to each other to go into court and commit perjury if that were necessary.

Faced with these denials, the prosecutor then called Mr. Ehle back to the stand.

Mr. Ehle of course first laid a predicate for personal knowledge in this respect, and then proceeded by way of impeachment to establish bias, that on the basis of his first-hand personal knowledge he knew that Mills, Respondent Abel, and even himself were members of this organization and that two of its principal tenets were to lie and commit perjury and to deny the very existence of the organization.

The Ninth Circuit approached this from an analytical viewpoint that caused them, as I indicated earlier, to announce that evidence of membership in a group, even a group having these characteristics and attributes, without more was improper evidence of impeachment, did not show bias unless it was also demonstrated that the witness personally in some way had subscribed to these tenets, and in a split vote reversed this conviction.

I would argue, first of all, that one of the primary functions of the tryer of fact in a case... referring to a jury or a court... is to determine the credibility of witnesses.

It is a time-honored proposition that that is one of the primary functions of the tryer of fact.

I would submit that one of the best ways to determine whether or not a witness has credibility is to ask whether that witness is partial or biased either for or against a party to the action.

Indeed, this rule is so old that it finds its bases in common law.

Bias was one of the six ways under common law that a witness could be impeached.

It has survived the centuries because it finds its root in common sense and in the lessons of human experience.

It is an unhappy fact of life that, even under oath, certain people who are biased might come in and slant their testimony or, in some cases, even lie on behalf of people towards whom they are biased or with respect to whom they are not impartial.

This Court indeed has recognized in Davis v. Alaska that the bias of a witness is always relevant in reflecting on the credibility of a witness.

We all know that the job of a jury is not easy.

Jurors are selected on the basis of their lack of knowledge of the individuals involved, their lack of association with any of the witnesses or the parties, and usually the lack of knowledge of the case.

They are picked in this respect, placed in a very difficult position, and told: Judge the credibility of a witness.

I submit that when we get down to the fire machinery of the truth-finding process, that it is extremely important to give to those jurors the tools that they need to do this job and to assess the credibility of witnesses.

To announce, as the Ninth Circuit did, that evidence of bias of this sort should not be used, is to in effect leave the jury in the dark on a very, very critical point at issue in a case.

Now bias, however, as this Court knows--

Unidentified Justice: Mr. Trott, can I ask you a question here?

You emphasize the bias aspects so heavily, supposing that the witness and the defendant were not members of the same organization; that merely the witness was a member of an organization that professed perjury and all the rest of it.

Would your argument still apply?

Mr. Trott: --Yes.

I believe that evidence showing that type of bias, that type of attitude toward the court process itself, would be admissible to give a jury a handle on the context of the--

Unidentified Justice: By bias, then, you do not necessarily mean bias in favor of the defendant?

You just mean bias against the administration of justice?

Mr. Trott: --Yes.

And that would more properly, I think, be characterized as an attitude toward the proceeding itself and to the administration of justice.

I believe under those circumstances the correct approach--

Unidentified Justice: Are there any cases that adopt that definition of bias?

I always thought bias meant in favor of one party or the other.

Mr. Trott: --Well, that is why I say I think it would more properly be characterized as an attitude toward the court proceeding.

If one would read Devitt and Blackman, for example, the jury instructions, one would see that a juror is told that an attitude toward the proceeding itself is something that can be taken in to account.

Analytically, I think one would approach that pursuant to Rule 4C1, and the question would simply be whether or not this evidence is relevant, whether it has any tendency to make more likely or less likely a fact in contention.

And as is pointed out in almost all the cases, the attitude of witnesses is a fact of contention in a case like this.

Unidentified Justice: But, counsel, can we not assume that a defendant is opposed to the court?

Can we not assume that the defendant will just as leave not have the court around?

Mr. Trott: I think that is a fair assumption, yes, sir.

Unidentified Justice: Well, I do not understand what your point is here.

Your point is directed to the witness, is it not?

Mr. Trott: Yes.

And I believe that the appropriate test--

Unidentified Justice: Well, the witness was a convicted felon, wasn't he?

Mr. Trott: --Witness Mills, or witness Ehle?

Unidentified Justice: One of them was, wasn't he?

Mr. Trott: Yes.

Unidentified Justice: I mean, he doesn't like courts either.

Mr. Trott: This is an array of felons that were involved in this.

There's no question about that.

Unidentified Justice: And they've been in a lot of courts.

Mr. Trott: But I believe that the proper approach, as opposed to the approach, with all due respect, taken by the Ninth Circuit, is to ask whether the group in question has the attributes and the characteristics under the rule of relevancy that would cause a sensible person to draw a conclusion that membership in that group might provide a basis for lack of partiality.

As I was indicating, usually this comes in the form of circumstantial evidence.

Membership in a group, membership in a family, membership in a business firm, any number of varieties, is usually regarded as a sufficient basis for the inference of lack of partiality.

Unidentified Justice: Was the witness who gave this information to the court and the jury then impeached with his criminal record?

Mr. Trott: Yes.

Unidentified Justice: So the jury had before them the pros and the cons about the credibility of the person who was giving this information?

Mr. Trott: Yes.

Mr. Mills himself testified that he was in jail at the time he had the relevant conversations with Mr. Ehle.

So the context in which he ought to be viewed came out very early on direct examination.

Ordinarily evidence like this requires an inference.

A member of a group, you draw the inference that the member may be partial toward other members, and therefore the inference that there's possible bias is proper.

The interesting aspect of this case is that it is not necessary to draw that inference.

It was admitted almost from the beginning in this case that it would be proper to show that the witness and the Respondent were members of the same group.

And I suppose that it would therefore be proper to infer that they might be partial towards each other and therefore bias might exist.

The confusing part of this case is that the agreement is that it is all right to speculate on whether or not the bias exists, but somehow it is not all right to be able to prove that by direct evidence that these people have somehow agreed that they will go into court and commit perjury.

So the problem with this evidence is, in one strange way of characterizing it, it is too probative.

We allow a jury to speculate that members of a law firm might be biased towards each other because of a financial interest in testifying in court.

We allow jury to speculate that members of a family may be bias against each other.

But when we come to a group like this, somehow we now find out that not only we would allow that speculation, but we will not allow proof of the fact believe--

Unidentified Justice: Mr. Trott, may I ask another question there?

Do you think when you're impeaching a witness, you first question and ask him something on cross-examination, if he denies it, then you come back on rebuttal and you offer evidence to show he was lying when he denied it.

Do you think that every question that is permissible as cross-examination of the witness itself can also support rebuttal evidence?

Or do you think there are some cases in which you must take the answer and live with it?

Mr. Trott: --There are many cases where one must take the answer.

The question is whether or not it is a collateral matter or one of consequence.

The rule with respect to bias and credibility is that is always a matter of consequence, and therefore the subject of extrinsic evidence in case the facts are denied by the witness.

Unidentified Justice: So that if it weren't this kind of an organization, but membership in some say political group or some literary society or something like that, if the man denied... whenever he denies that he's also a member of the same organization as the defendant, it is your submission that that can always be rebutted on rebuttal evidence by collateral evidence?

Mr. Trott: Yes, Your Honor, if the Court believes, applying the proper test under Rule 401, that the evidence is relevant and does not trespass on the escape valve provided by 403.

Unidentified Justice: Well, I am assuming it's always sufficiently relevant to justify the question on cross-examination.

Mr. Trott: Yes.

It's our position that under those circumstances, the issue of credibility of witnesses being so important in the pursuit of the truth that extrinsic evidence ought to be allowed to rebut the denial of the witness under oath.

Unidentified Justice: Well, the Federal Rules of Evidence leave a fair amount of discretion in this area to the district court, don't they?

Mr. Trott: Yes, they do, quite a lot of discretion.

Unidentified Justice: And the district court allowed this evidence in.

Mr. Trott: The district court conducted lengthy hearings in chambers out of the presence of the jury, and in our view properly applied both the test of 401 and 403 to the evidence, and cut out, as I indicated before, the characterization of the group as the Aryan Brotherhood in the interest of making sure that that potentially prejudicial name somehow didn't infect the case.

Unidentified Justice: Suppose you had a civil case, the redistricting of a state, for example, and a person testifies as an expert to help make the plan, could he be on cross examination asked and required to answer that he had previously been a member of the republican or democratic state central committee and active in the party politics of that party?

Mr. Trott: The answer to the question is yes, and I believe so for the following reasons.

The test, again, to be applied is whether or not that fact would provide a sufficient predicate for the inference that there may be some sort of partiality for or against the party.

And again, the question is admissibility not weight of the evidence, and certainly anybody on the other side would be free to adduce evidence that would indicate the inferences were not fair.

But the question is relevance, and I think latitude ought to be given to trial judges who are on the spot who can get a feel for what is going on, for the tenor of the case, and for the jury to make these determinations.

If the evidence is relevant... and I believe evidence of bias is relevant to credibility which is always a fact of consequence... that ought to be communicated to the jury.

Unidentified Justice: May I ask, just to be sure I've gotten your position: Wouldn't it he sufficient for the Government to prevail in this case to say, as Justice Rehnquist suggested, that this is an area within the discretion of the judge, and sometimes he lets extrinsic evidence in and sometimes not.

Or are you asking us to say it must always be admitted?

Mr. Trott: I believe that Mr. Justice Rehnquist was describing the test that we would like to see.

We believe the trial judges ought to be given wide latitude, that the latitude was appropriate in this case, and that viewed from the context of an abuse of discretion, the actions of the judge in this case were not only proper but laudatory in the sense that the Judge was extremely concerned about the ability of the jurors to examine this evidence and determine whether or not it was accurate.

In a sense, the Ninth Circuit has essentially told the trial judges within the circuit that they must tie their hands and allow a conspiracy to obstruct justice and to commit perjury to happen in front of them and really to do nothing about it until the victim is produced in the sense of a skewed verdict.

Unidentified Justice: I suppose the jury was free to disbelieve that evidence, the impeaching evidence, on the ground that the man had a had criminal record and was not trustworthy.

Mr. Trott: Absolutely.

The entire array of possibilities was available.

The jury again had a sense of the attitude of the witness, the demeanor of the witness on the stand, the manner in which he testified, a better sense of the context, and as they are with all evidence, the jury was free to--

Unidentified Justice: Of course we have no way of knowing whether they decided to disbelieve all of them, do we?

Mr. Trott: --All we know is what the verdict was.

And it is conceivable, on the basis of the evidence in this case, that they could have thrown them all out.

They could have ignored Mills, they could have ignored Ehle, and gone on the basis of the surveillance photos, the fact that there was money, bait money in Respondent's pockets, Susan B. Anthony dollars in the man's pocket; that he was arrested a short time after the robbery.

It is conceivable a jury could have ignored the whole shooting match; that's correct.

Unidentified Justice: What if the question that was asked had been answered yes, do you believe to a secret type of prison organization, yes?

What would have been the next question?

Mr. Trott: And is it not true that two tenets of that organization are, one, that under oath you shall deny the existence of the organization; and two, that one member shall commit perjury on behalf of another if called upon to do so?

Unidentified Justice: Well, wouldn't the next one have been: Do you know whether the defendant is also a member?

Mr. Trott: Well, that could have been in there.

Unidentified Justice: If you're going to talk about bias in favor that he's partisan towards the defendant, that witness is, you should... I would suppose you would want to say they are both members and, hence, we support each other... they support each other.

Mr. Trott: I would agree.

Unidentified Justice: That is the bias part.

That's your bias argument.

If it's just a credibility thing that one of the tenets of the organization is to lie, wouldn't the court of appeals then have had much more to its opinion than you say it has?

Mr. Trott: Well, with all due respect, and not sounding like I'm trying to provide something after the fact, my third question would have been to tie the two together.

Because it is true, as I indicated in the questions presented, that there is a link that is involved in the inferences of partiality.

Otherwise, it becomes simply a question of credibility.

Unidentified Justice: Exactly, and your are making a partiality argument--

Mr. Trott: Yes.

Unidentified Justice: --primarily, rather than a credibility argument.

Mr. Trott: That's right.

That is correct.

This is a partiality question.

Unidentified Justice: So you would really want to... And that's why I suppose you asked, when you called... who did you call back?

You called--

Mr. Trott: Mr. Ehle, himself, came back.

Unidentified Justice: --Yes, you called him back and he said that Mills and the defendant were both members.

Mr. Trott: That's right.

That was the necessary linkage to showing bias.

Bias is a two-way proposition.

I don't believe you can have bias in a vacuum in the sense that it's understood as a term of law in the Rules of Federal Evidence.

But I can conceive of no policy reasons... and I find it hard to believe that this Court in promulgating the Federal Rules of Evidence, and Congress in working on the rules and making them tools with which judges approach their tasks, could have conceived that this ought to be the result; that somehow the operation of those rules should deprive the jury of this evidence.

Now the fear, of course, that was being articulated that is the undercurrent in the Circuit's opinion is that somehow the jurors will attach to that evidence itself, somehow decide these are all bad people, and find a verdict of guilt on the basis of whether or not they are bad people, rather than whether the evidence supports--

Unidentified Justice: Mr. Trott, may I follow up on Justice White's question?

I was just looking at part of the examination that is quoted in your brief.

It may not be the whole thing.

But I don't find that you asked if they're both members of the organization.

You just asked him about the organization.

Well, that's because he denied he was one, he was a member.

Mr. Trott: --He denied he was a member of the organization.

Unidentified Justice: But was he asked whether the defendant was a member of the organization?

Or was that merely brought out when you brought in your rebuttal witness?

Mr. Trott: I believe it was, Your Honor, but--

Unidentified Justice: Not in the part of the brief that the Court of Appeals quoted.

Mr. Trott: --Mr. Justice White, I ought to have my finger on that particular part of it, but I do know that that was part of the preliminary discussions and the offer of proof.

Once the man denied the very existence of the organization, I think it was appropriate to assume that he would then deny... he denied any knowledge of the organization.

But that was a sufficient predicate for then allowing the extrinsic evidence to come in as rebuttal to indicate that, yes, they did belong, and there was such an organization, and these were the tenets.

I believe that was sufficient to trigger the admissibility of the extrinsic evidence on this point.

As I was saying, the fear is of course that somehow the jury is going to be mislead by all of this evidence, but I would submit that the court in this case appropriately applied 403, applied the balancing test, and came to a determination that the probative value, the importance of this evidence, outweighed its potential prejudicial effect.

Unidentified Justice: General Trott, your submission on the bias prong of your argument, I take you would be the same if the two had been members of an Elks Lodge which had no tenets about perjury or anything else?

Mr. Trott: Yes, that's correct.

The question is whether or not that would be a sufficient predicate from which to infer partiality, and then to take the next step.

Unidentified Justice: You would leave it up to the jury.

Mr. Trott: The jury then decides what weight or effect the evidence has.

Unidentified Justice: And then the summing up, counsel, would probably remind the jury of the fact that, either in the redistricting case or a case like this, in the redistricting case he'd remind the jury that they better look closely at the testimony of the expert witness on redistricting because he had been formerly a member of the governing board of one of political parties.

Mr. Trott: May I correct myself on one point?

Page 36 of the Joint Appendix sets forth, halfway down the page, the following question by Mr. MacIntyre of Mr. Mills:

"Q All right."

"Do you and John, Mr. Abel, belong to any organization together?"

"A No, I don't".

Unidentified Justice: That's Mills, not Ehle, though.

Mr. Trott: Yes.

Unidentified Justice: Maybe I've got the witnesses mixed up.

Isn't Ehle the one who was the alibi witness, or am I wrong?

Have I got them backwards?

Mr. Trott: Mills is the one who came in and suggested he was lying to get out of jail, and this is the cross-examination of Mills: Do you belong to any organizations together?

And he said, No.

Unidentified Justice: Right.

Mr. Trott: Then Mr. Abel came in... rather, Mr. Ehle was called back and said, yes, we all do, but we deny it under oath and we commit perjury for each other.

But now since I'm a member of the witness protection program, I've broken ranks and that's why I'm giving you this information.

I submit that it's bad policy to leave the jurors in the dark on information like this, and to tell judges that their hands are tied.

I suggest that it would be more appropriate to allow judges to apply these rules, to analyze them, and to give the jury as much help as they can.

There is a suggestion here that somehow the First Amendment is implicated.

Quite frankly, I don't think this case has anything to do with the First Amendment.

I don't think it's a chilling effect on association to tell groups that subscribe to commit perjury in court that somehow on cross examination that might come out.

I don't believe it's a advocacy problem, it's a membership problem, or anything else.

And Brandenburg and Scales, cited liberally throughout these papers, are simply in apposition.

If the prison sanction for perjury, if the prison sanction for conspiracy to commit an obstruction of justice, is not sufficient to produce a chilling effect on these types of groups, I doubt very much that being cross examined in court is.

Unless there are any other questions, I have nothing further.

Chief Justice Burger: Very well.

Ms. Gomez--

ORAL ARGUMENT OF MS. YOLANDA BARRERA GOMEZ ON BEHALF OF RESPONDENT

Mr. Gomez: Mr. Chief Justice, and may it please the Court:

Just a few minutes ago you heard Mr. Trott tell you about the facts of this particular case.

One of the things that he told you was that the facts in this particular case were very important.

As you heard the recitation of the facts, there was no reference about the bank robbery itself.

That is one of the things that is very important in this case.

What we have to keep remembering is that we are talking of a bank robbery trial that was held in the Ninth Circuit, the Central District of California, and yet when we refer to the facts, we talk simply about the facts that happened at the trial, the testimony of Mills, the testimony of Ehle.

It is important to keep in mind what it is that we're talking about.

We're talking about the rights of a defendant.

We're talking about the rights of John Clyde Abel, who was denied a fair trial.

Unidentified Justice: Am I mistaken, that I recall some testimony in this case... or am I confusing it with another... that they found him in possession of some of the stolen property?

Mr. Gomez: Mr. Abel was found in possession of, I believe, one bait bill and eight Susan B. Anthony dollars.

There was testimony during the trial that Gramard, who was one of the defendants in the case, had owed money to Mr. Abel, and the inference, or at least the argument to the jury was that Mr. Gramard had, after the robbery, had paid the money that he owed to Mr. Abel.

That was basically the extent of the evidence against Mr. Abel.

Mr. Trott indicated that there was extensive evidence against him in the form of surveillance pictures, identifications, and that just isn't true.

a matter of fact, what happened is that there were some bank tellers that came in, identified Mr. Abel, or had identified Mr. Abel from a photo spread, and it was their testimony that the person that they claimed was Mr. Abel was a person who was standing in the middle of the lobby of the bank, that he was the one that was issuing all of the orders, he was the one that was wearing boots, and that he was the only one of the four robbers wearing boots, he was the one with the cigar in his mouth... when Ehle, the government witness, testified, Ehle testified that he was the one standing in the center of the lobby, he was the one smoking the cigar, and he was the one wearing the boots and issuing all of the orders.

So that the evidence against Mr. Abel was not clear at all.

Actually, there was a conflict between what the bank tellers were saying and what the key government witness, Mr. Ehle, was saying.

Unidentified Justice: On this impeachment question, instead of having a scenario that's been described in the record, suppose the impeaching witness, when called on the stand, related that he had had a conversation with this man, the defendant, at some time shortly before the trial in which he said he was going to lie and commit perjury on the stand in the hopes that it would get him off.

Would that be admissible to impeach him?

Mr. Gomez: No, because the defendant did not testify in the case.

Had the defendant testified--

Unidentified Justice: No, I am speaking of the witness.

Mr. Gomez: --Yes, I believe.

Unidentified Justice: Impeaching the witness.

Mr. Gomez: Yes.

Assuming... to make sure I understand the facts correctly... that the key government witness had in his offer of proof that he had spoken to Mills, the defense witness, before the trial, and Mills had indicated to him that he was going to lie, I do feel that that would have been proper testimony, proper cross-examination and rebuttal evidence.

In fact, I think that is the proper way to proceed, and that is exactly the way the defense proceeded in the case.

Our information was that the key government witness had indicated prior to trial that he was going to go to the trial and commit perjury; that he was going to lie and incriminate John Abel as one of the robbers so that he, the government witness, would be able to get a deal with the government so he would basically be able to walk out of the courtroom a free man.

And that's exactly the type of impeaching evidence that was offered by the defense.

I am very glad that you asked that question, because that brings me to the most important point of the Ninth Circuit argument.

That is, that if the impeachment is personal... that is, if the witness himself has indicated that he will lie, or if the witness himself has taken a perjury oath, or if a witness has lied in the past... all of that is permissible under the Ninth Circuit opinion.

Unidentified Justice: But you think the evidence, the testimony that they're both members of a group which is sworn to do that, is different from what we have just been discussing?

Mr. Gomez: That is exactly the objection that we have.

That is, that the impeachment of this case went not... the impeachment of Mills was not because he was a proven liar, not because he had lied, but because he allegedly belonged to an organization; and that that organization required its members to lie.

So the impeachment was on the basis... essentially what it came down to was on the basis of associating with bad people.

Because Mills was reputed to be friends, be acquaintances, belong to an organization with bad people, he was being impeached.

Unidentified Justice: Well, that certainly wasn't the way I understood the district court's ruling.

Just looking at it from a perjury point of view rather than a bias point of view, not the idea that these are generally bad people, but that one who belongs to an organization which is committed to perjure... members committed to perjure themselves can be presumed, for purposes of an evidentiary ruling, to subscribe to the tenet of the organization.

Now what is unreasonable about that?

Mr. Gomez: I am not sure that I understood the question.

I understood the Ninth Circuit opinion to say that if there was sufficient foundation to establish that Mills had in fact lied, or that in some way there was an indication that he subscribed to the beliefs of the organization, then that evidence would have been permissible.

Unidentified Justice: But my question is, the Ninth Circuit put a much higher threshold on the thing than the district court.

It seemed to me that it was virtually requiring evidence to convict the witness under the Smith Act.

And the district court took the position that, from a point of view of an evidentiary ruling where you don't have two weeks to try the witness and you're not trying to try the witness, this sort of affiliation is sufficiently relevant to go to the jury.

What's the matter with that?

Mr. Gomez: I believe that that is the government's interpretation of the Ninth Circuit opinion, and I think it is a false reading of the Ninth Circuit opinion.

I think the government is reading the opinion much too broadly.

There are references in the Ninth Circuit opinion to Scales and Brandenburg, and it is understandable why the government may have misread the Ninth Circuit opinion.

However, a very close reading of the opinion, I think, establishes that the reason that the Ninth Circuit made reference to these First Amendment cases was not to say that before a witness can be impeached, that impeachment must rise to the level of a conviction.

Rather, what they were saying was, first they reached their decision... and that is, that credibility is personal, and that a person cannot be impeached except if there is proper foundation to establish that his own personal credibility is being attacked.

Unidentified Justice: Let me ask you this.

What is wrong with the view, as I understood the district court to express it, that a person belonging to an organization which has committed its members, and one of the tenets of membership is to perjure itself, what is wrong with the district court allowing that evidence to go before the jury when the witness testified?

The Ninth Circuit said it couldn't.

You say the Ninth Circuit is right.

Why is the Ninth Circuit right?

Mr. Gomez: They are right because, as I stated earlier, the impeachment is because of his associations, and not because the individual has ever expressed any willingness to lie.

Unidentified Justice: Well, why isn't it a fair inference for a person who belongs to an organization that one of the membership tenets is that we perjure ourselves, that that person is willing to perjure themself?

Mr. Gomez: Well, that is what the Ninth Circuit basically analogized to Scales and Brandenburg, and it says like for example in Scales, there is much talk of the Fifth Amendment due process and the fact that the Smith Act basically offended the rights of the person not to be convicted unless... just because of sympathy because of association.

The person had to be more directly involved.

There is the same situation here.

We are talking of a person who may have joined--

Unidentified Justice: Even though we are just talking about whether a piece of evidence can go up to the jury, rather than whether the witness should go to jail?

Mr. Gomez: --Certainly, because we are talking of the great prejudice to the defendant in this case.

We have a critical defense witness who is being impeached not because he is a liar, not because he has indicated he will lie, but because it is reputed that he is a member of an organization that requires his members to lie.

No indication he has accepted the tenets.

No indication that he follows the creed.

And yet he is being impeached.

He is being portrayed as a liar, as a cheater, as a thief, as a killer, because that was the rebuttal testimony.

Unidentified Justice: Ms. Gomez, you probably heard my question to General Trott about the civil case.

Let's take it out of the criminal.

A redistricting case and the expert witness testifying about what the districts ought to be, do you think he could not be cross-examined to ask wasn't he formerly a member of the Republican National Committee, or the Republican State Central Committee, or whatever?

Mr. Gomez: I think that he can be asked that, assuming--

Unidentified Justice: Well, that's association.

Some people might think that was a bad association, and some might not think it.

[Laughter]

But the jury is left to decide whether that affects his truth telling.

Mr. Gomez: --I think there are several points that I would like to make in connection with that.

One is, assuming proper foundation he can be asked that.

We could have a situation, for example, of someone who initially joined one party, very quickly did not agree with the, for lack of a better term, the tenets or the beliefs of the Republican Party, switched over to the Democratic Party.

So I think first of all we need the foundation that he, when he was a republican, did follow the beliefs of the Republican Party.

Assuming that we have that, then, yes, the person can cross-examine regarding that.

Then we get to the secondary question.

Now let's assume the person denies that.

Then, can the examiner come back and present rebuttal testimony?

At that point we get basically to Justice Stevens' question that was asked earlier of Mr. Trott.

The question is: Are we talking of credibility?

Are we talking about bias?

Mr. Trott said we're talking of--

Unidentified Justice: But they are very closely related, are they not?

Mr. Gomez: --They are very closely related.

Unidentified Justice: The bias comes from, possibly, the value of the testimony, the credibility.

Mr. Gomez: That is certainly true, and I would agree with Justice Stevens that one of the ways to make the distinction, when we're talking of credibility, we're talking of the individual.

The individual lying, or the individual testifying, his demeanor and so on.

Bias is basically the relationship between that individual and someone else.

So that if the question is: Do you belong to an organization, alone, do you belong to an organization that requires you to lie?

We're not talking of bias.

We're talking of credibility.

We're talking about whether that person is lying on the stand.

Bias would have to be the relationship between that individual and someone else.

Now Mr. Trott said, when we're talking of bias or credibility, you can bring in rebuttal evidence.

That is totally contra to the Federal Rules.

It is contra to all cases that I am aware of in there.

Specifically--

Unidentified Justice: But counsel, in this case didn't the witness say, I did not belong to that organization?

Mr. Gomez: --Yes, he did.

Unidentified Justice: And don't you have a right to test the truth of that statement?

Mr. Gomez: I do not believe so.

In this case--

Unidentified Justice: Why not?

Mr. Gomez: --In this case--

Unidentified Justice: Why not?

Mr. Gomez: --Two reasons.

One is, in this particular case the person I believe... excuse me.

There could have been impeachment that he did belong to an organization along with the defendant.

Okay.

I don't believe that--

Unidentified Justice: My point is--

Mr. Gomez: --the government was in error.

Unidentified Justice: --can't you test out testimony to find out whether it is a lie or not, without anything more?

Mr. Gomez: I have no objection to the question that was asked--

Unidentified Justice: There is no right to lie.

Mr. Gomez: --Yes, Your Honor.

I have no objection to the initial question that was asked by the government before the sidebar conference.

That was the question of, isn't it true that you belong to the same organization as the defendant.

I think that was a proper question, and once he denied it I think it was proper for the government to bring in rebuttal evidence that they were both members.

And the reason that I think that is proper is because that goes to bias.

Unidentified Justice: Isn't that what happened here?

Mr. Gomez: No, Your Honor.

They went further.

Unidentified Justice: Well, now, tell me the difference.

Mr. Gomez: What they did... that was permissible.

Now following that, what they did is they asked questions such as, not only is it true that you belong to the same organization, but they added adjectives.

Isn't it true that you belong to a secret prison organization?

Conoting nefarious, illegal, odicus, whatever.

Then they asked, isn't it true that this organization requires that you deny its existence?

Isn't it true that this organization has restrictive membership?

Isn't it true that as a member of this organization, you are required to lie?

The rebuttal testimony went even further than that.

Not only did it prove all of the things I have just mentioned, but they added that the members were required to cheat, that the members were required to steal, that the members were required to kill for each other.

All of those questions weren't even asked on the cross-examination originally, but they were proven on rebuttal.

That is the difference.

If what they wanted to do was establish bias, the first question that they asked: Isn't it true that you belong to the same organization as Mr. Abel?

Was enough to show bias, and they could have proven that on rebuttal.

Unidentified Justice: And they couldn't have done anything more?

Mr. Gomez: No.

In this particular case... I can envision in some other case that happening, not in this case.

Unidentified Justice: But in this case, he couldn't have asked any more questions?

Mr. Gomez: They could have asked other questions such as their friendship, their having served time together, socializing, having their wives know each other, certain questions like that could have been asked.

Regarding the organization, no additional questions should have been asked.

Unidentified Justice: Well, on cross-examination the question was: Do you belong to any organizations?

And the answer is: No.

You don't suggest that if they wanted to ask some impeachment witness some other questions beyond that, there would have had to have been a foundation laid on cross-examination running through what kind of an organization is it?

Well, he says, I don't belong to any organization.

Mr. Gomez: Right.

Now what I'm talking of--

Unidentified Justice: Now you concede that you could ask the question on cross: Did you and the defendant belong to the same organization?

Mr. Gomez: --Yes, I do.

Unidentified Justice: And if the answer is no, you can call an impeaching witness?

Mr. Gomez: That is correct.

Unidentified Justice: Who would say, yes, they did belong to an organization.

Can you then ask the... you say you cannot then ask the impeaching witness what kind of an organization is it?

Mr. Gomez: That's correct.

Unidentified Justice: Well, I would think it would be very relevant to find out what kind of an organization it is to test out the extent of the bias.

Mr. Gomez: Maybe I'm misunderstanding the question.

I think it would have been permissible to ask, for example, is it a prison organization?

Or is it like an Elks Club?

Unidentified Justice: Well, tell me what kind of an organization is it?

Mr. Gomez: Right.

Unidentified Justice: And then he answers the question.

He says, well, it's a secret organization where the members agree to lie for one another.

Mr. Gomez: Now we're getting past--

Unidentified Justice: That's a description of the... and that seems to me a very, very, very relevant question to the bias issue.

They not only belong to an organization, but the organization, one of the tenets of the organization is you lie for each other.

Isn't that even a... if you concede that you can call the impeachment witness at all, I would think he could be able to testify to that.

Mr. Gomez: --We're talking basically at two levels.

One is whether the person can ask about what type of organization it is.

Is it an Elks Club?

Is it a Boy's Scout Club?

Unidentified Justice: You just ask the question.

You just ask the witness the question, and he answers the question.

You would want the answer stricken?

Mr. Gomez: I am saying it should not get into what are the tenets of the organization.

I think that's the distinction.

What type of organization?

It's a prison organization.

What are the tenets?

Now we're getting into this is what the members are supposed to do.

Unidentified Justice: Is it a secret organization?

Could you ask that?

Mr. Gomez: I have problems with that in terms of the prejudice, because "secret" of course connotes that it's illegal, certainly, that they must be doing something wrong.

Unidentified Justice: Not all secret organizations are illegal.

Mr. Gomez: It connotes that.

It is possible that that is not true, but I think it connotes that.

Unidentified Justice: There are a lot of fraternities that would resent the idea that they may be illegal.

They are secret.

Mr. Gomez: And I think the--

Unidentified Justice: So couldn't you, if you asked the witness were you and the defendant a member of Skull & Bones at Yale, no, well you call in people.

Were they members of Skull & Bones?

Yes.

Tell me about Skull & Bones.

You were in it, weren't you?

Yes.

Now can you describe Skull & Bones and say it's a secret organization?

We never tell anybody anything about it?

Mr. Gomez: --I'm afraid I'm not familiar with Skull & Bones.

Unidentified Justice: Let's take the Ku Klux Klan, then.

Mr. Gomez: Very well.

Unidentified Justice: That may vary from one place to another, but could a person be asked are you a member of the Ku Klux Klan?

Mr. Gomez: I think that when we're talking of the KKK, now, we're talking of great prejudice in terms of the name that is being used.

I think that there would be problems in terms that there would have to be a weighing procedure in terms of--

Unidentified Justice: Do you mean there's any question, any doubt that he could be required to answer if that's being offered for purposes of impeachment?

Mr. Gomez: --Well, I think it depends on what the exact facts are.

If we're talking of--

Unidentified Justice: Well, then, could he be asked, are the tenets of the Ku Klux Klan antisemetic and anti-Negro and anti-a lot of other things?

Mr. Gomez: --I believe that all of those questions can be asked if there is sufficient foundation for them.

Just like in this case, had there been some evidence that Mr. Mills had accepted the tenets, had taken an oath, those questions of the Aryan Brotherhood of the secret prison organization could have been asked of him.

Unidentified Justice: Well, Ms. Gomez, it does seem that the court below and your argument today is treating the questions of a witness going to bias or partiality almost like a trial on a substantive offense, that you have to prove beyond a reasonable doubt that the witness holds certain beliefs before the jury is allowed to weigh that fact into its credibility determination.

And yet, doesn't our jury system contemplate that jurors can consider a whole range of factors in deciding whether to believe a particular witness, whether they have a shifty look in their eyes, their manner of speech, anything, including a membership in an organization which is shared by the defendant in question?

I think that I am concerned about the strictness of your view of factors that go to credibility, basically.

Mr. Gomez: I think what it really boils down to is that the Ninth Circuit believes, and we certainly would agree with that position, that before a witness can be impeached on the basis of his credibility, that there must be a foundation to show that he is the one that holds these beliefs, not that he is associated with someone that has those beliefs.

I don't think that is the same standard as is used in a trial for purposes of conviction.

Because we're not talking of proof beyond a reasonable doubt that he has those beliefs.

I think any type of proof that he holds those beliefs.

If Ehle, for example, had said we're members.

I was there when he took an oath.

Or I was there when he said he is a good member and he is going to follow the beliefs of the secret prison organization.

I don't think that would necessarily be proof beyond a reasonable doubt, but I think that would be sufficient for the Ninth Circuit to believe Mills could be impeached on the basis of that evidence.

Unidentified Justice: Ms. Gomez, suppose in this particular case the question was: Were you and this man members of Bank Robbers Anonymous?

[Laughter]

Could they have proceeded?

Mr. Gomez: And we are assuming there is proper foundation for that?

Is that correct?

Unidentified Justice: Yes.

To ask the question.

Mr. Gomez: Well, Bank Robbers Anonymous--

Unidentified Justice: I don't know what foundation you have to ask on cross-examination for what organizations you belong to.

Mr. Gomez: --I think that there is a great prejudice in asking that.

To begin with, we're talking of someone who is a recovering bank robber.

Unidentified Justice: Well, I would assume that most questions asked by a prosecutor are damaging to the defendant.

Mr. Gomez: I think we can assume that what I'm talking about is undue prejudice versus the probative value.

Unidentified Justice: Well, the question is: Are you a member of the organization known as Bank Robbers Anonymous?

Mr. Gomez: I think that we would have problems with that question under Rule 404.

The reason for that is because it appears that the purpose of that question is to show that because he has robbed banks before, that he is likely to have robbed this particular bank.

Unidentified Justice: I don't see anything that said he had robbed a bank before.

Mr. Gomez: The fact that he--

Unidentified Justice: It was an organization known as Bank Robbers Anonymous.

Mr. Gomez: --Right.

And that term connotes that he is a recovering bank robber, which means that he would have robbed banks in the past.

Unidentified Justice: All he would have to do is say no.

[Laughter]

Mr. Gomez: I understood the question to be, what if he says no, can you prove that?

Unidentified Justice: Yes.

Mr. Gomez: And I think that is where my answer relates to that, that I think there is a problem to begin with in asking the question, and secondly in proving it.

Unidentified Justice: Well, one thing I agree with, it would hurt your defendant.

That I agree with.

Mr. Gomez: Well, it is more than just hurting the defendant.

We are talking of the prejudice, the type of atmosphere that is created especially in a case where the defendant does not testify, which is what happened here, because Mr. Abel did not put his credibility at issue.

He sat through the whole trial silently at counsel table while he heard references to the fact that he was not credible, to the fact that he was a liar, that he was a thief, that he was a killer, all of these references were being implied when he did not even put his credibility in issue.

That is what the real issue in this case is.

It is not just prejudice, but undue prejudice to the defendant when he didn't even testify.

Unidentified Justice: May I ask you--

--Would it have been different if he had testified?

Mr. Gomez: I think in terms of the admissibility of certain questions with regards to him, yes, it would have been different; had he put his credibility in issue, because--

Unidentified Justice: Did they ever ask him that question?

Mr. Gomez: --They could have asked him whether or not--

Unidentified Justice: Are you a member of that--

Mr. Gomez: --whether or not he was a member of the organization?

Yes.

Unidentified Justice: --They could have asked him that.

They couldn't ask the question that?

Mr. Gomez: They could ask the witness, and they did ask the witness that, and I have no objections to them asking whether or not they belonged to the same organization.

Unidentified Justice: Be careful now.

I'm talking about a hypothetical.

Mr. Gomez: I'm sorry.

The Bank Robbers Anonymous hypothetical?

Unidentified Justice: Yes.

Mr. Gomez: Again, I think it's the same situation with the witness and the defendant in terms of the prejudicial value.

Again we're talking of 404, the fact that if he robbed a bank before and that is the bank robbery charge now, that he is more likely to have committed the bank robbery that is at issue.

Unidentified Justice: Ms. Gomez, may I ask this broader question?

Do you view the decision of the Ninth Circuit Court of Appeals as being a constitutional one?

Mr. Gomez: I do not see it as being a constitutional opinion with regards to the First Amendment.

Certainly if we're talking of a fair trial, in that sense it is constitutional.

Unidentified Justice: But how would you characterize the rule, the constitutional rule?

Mr. Gomez: If we're talking a constitutional--

Unidentified Justice: Just saying there was no fair trial is not quite enough, is it?

Mr. Gomez: --No.

I think it is a due process, defendant's due process right to a fair trial.

I do not see this as a First Amendment case.

Unidentified Justice: I understand that, although there are two First Amendment decisions cited in the opinion.

But the Ninth Circuit did hold, as I understood it, and I think you've agreed, that there can be no impeachment by association with a group.

Mr. Gomez: Correct.

Unidentified Justice: So is that a constitutional ruling?

Mr. Gomez: I do not see that as constitutional.

When they are talking of association, I do not understand that to be the First Amendment right to association.

I see that as a term of art, basically, association meaning like guilt by association, "association" meaning being with other individuals.

I see their opinion as analogous to a situation where a person is cross-examined regarding his, for example, having a brother who has lied before, having family members who have lied.

It's the same situation.

The witness is being asked: Isn't it true that you belong to an organization of a bunch of liars?

That's the question that was essentially being asked of him.

It's the same thing as asking: Isn't it true that your family are a bunch of liars?

Or, isn't it true that your family are a bunch of criminals?

Certainly I don't think there's any quarrel that a witness cannot be impeached in that manner, that he cannot be asked: Isn't it true that your family are a bunch of liars?

Because... and the reason he can't be is because there has to be evidence that he, himself, is the same way.

He, himself.

Unidentified Justice: Is this because the answer would have no probative value?

Mr. Gomez: It is because... yes, because the answer... well, there is no foundation to ask the question, to begin with.

There is no reasonable belief.

Unidentified Justice: So does it get down to whether the lawyer asked the right question first?

Mr. Gomez: I'm sorry?

Unidentified Justice: You spoke of foundation.

Mr. Gomez: Yes.

Unidentified Justice: My inquiry was whether this case gets down finally to whether or not the prosecutor asked the correct question first.

Mr. Gomez: Well, when I'm talking of foundation, I'm talking about is there a good-faith belief for the prosecutor asking that question to begin with?

Do they have some information that this person lied?

And in this particular case, the Abel case, there was no foundation.

There was no evidence that the government had.

There was no reason for them to believe that Mills had ever lied, expressed a willingness to lie, had taken an oath, anything relating to lying other--

Unidentified Justice: How can you say that?

Ehle testified to that.

Mr. Gomez: --Ehle testified--

Unidentified Justice: And that was brought out in the offer of proof before all this happened.

Mr. Gomez: --Ehle did not testify, and there was nothing in the offer of proof, about Mills having lied.

The offer of proof in Ehle's testimony were that Mills was a member of the organization, and that the organization required its members to lie.

There was no evidence that Mills had ever indicated he would follow the tenets, that he believed in the tenets--

Unidentified Justice: Well, but, it seems to me you've got to break it up into two parts.

First was the question on cross-examination permissible?

As I understand your argument, you really are not objecting to the questions on cross-examination.

Rather, you're objecting to the extrinsic evidence, as I understand you.

Mr. Gomez: --No, I am objecting to both.

Initially, I see nothing wrong with--

Unidentified Justice: Well, the court of appeals didn't buy your argument on cross-examination, as I read the opinion.

Mr. Gomez: --I believe that they did.

I believe that they basically addressed themselves to no impeachment by association.

That is the focus of their argument.

Unidentified Justice: I see.

Mr. Gomez: But the way I see this case is, first of all, there was nothing wrong with the first question.

That is, isn't it true you are a member of the same association as the defendant?

I have no quarrel with that.

That is a proper question to demonstrate bias.

The questioning should have ended there.

Instead, the questioning was about the restricted membership, about the oath, the tenets.

Those were improper because there was no reason to believe that Mills had accepted the tenets.

Assuming now he's a member, there is no reason to believe--

Unidentified Justice: Even if the prosecutor had undisputed evidence that he really did belong to the organization but he didn't have it in writing that he had subscribed to the tenets other than by joining it, you would still say the question was improper?

Mr. Gomez: --If all they have is that he is a member of the organization, that is not enough under the Ninth Circuit holding for--

Unidentified Justice: Oh, I understand the Ninth Circuit.

But that would, in your view, not even be enough to ask the question on cross-examination?

Mr. Gomez: --That is correct.

That would not be enough, unless there was evidence that the witness subscribed to the tenets that he believed in the organization, and certainly it was not enough for rebuttal testimony.

Unidentified Justice: Well, when you call your impeaching witness, though, what you're really saying is that he just lied on the stand.

Mr. Gomez: Exactly.

Unidentified Justice: He just lied on the stand.

I asked him the question, does he belong to an organization, and he said no.

Do you belong to an organization with the defendant?

No.

Call an impeaching witness, he says they do.

So what it is is an assertion that he does lie, and he just did.

Mr. Gomez: Exactly, but now we have a situation of basically two people who have lied.

Ehle testified--

Unidentified Justice: So the jury has to decide which one of them is telling the truth.

That is what the jury is for, isn't it?

Mr. Gomez: --And that is the function of the jury.

But in this case, it was more than that.

It was not just showing that someone had lied.

It was a matter of showing that all of these individuals for the defense, including the defendant, were liars and cheaters.

Unidentified Justice: You have told us that before, and your time is up.

I wonder if you might answer, I would think your response to Justice White's question would be that you can't impeach on a collateral matter.

Mr. Gomez: That is correct.

That first of all I have problems with the lack of foundation.

Assuming a proper foundation, assuming that the government had information from Ehle that he had seen Mills take the oath.

Let's assume those facts for a minute.

Then I think the government can cross-examine Mills about the oath, but they cannot come back and prove it, and they cannot come back and prove it because of Rule 608(b), which says you cannot prove a collateral matter.

Chief Justice Burger: That completes your answer.

Do you have anything further, General Trott?

ORAL ARGUMENT BY STEPHEN S. TROTT -- REBUTTAL ON BEHALF OF PETITIONER

Mr. Trott: Briefly, Mr. Chief Justice.

May it please the Court: Essentially we have probably the most decent and fair criminal justice system in the world.

It goes way out of its way to protect the rights of everybody, including defendants.

I would suggest that the rule established by the Ninth Circuit, if adopted by this Court, injects an element of vulnerability and naivete into the truth-finding process that is absolutely unnecessary, and simply renders our criminal justice system a potential victim of the abhorrent beliefs of groups like the mafia, and the Aryan Brotherhood, and all the rest.

I would suggest, also, that unlike some cases, the opinion that you write, the opinion that has already been written by the Ninth Circuit, will be read by the Aryan Brotherhood and similar groups whose main goal in life is to commit crimes and get away with it, not as an interesting essay on the Federal Rules of Evidence or constitutional law, but functionally as a blueprint to get away with what their schemes are all about.

Unidentified Justice: Mr. Trott, what is your position on the applicability of Rule 608(b) to this situation?

Mr. Trott: It is our position that Rule 608 simply is not applicable.

It is the proverbial square hole into which this evidence as a round peg is attempting to be put.

It is clear that evidence that was 608 evidence would not be attackable with extrinsic evidence if it were denied.

However, evidence, as this Court well knows, may be inadmissable for one purpose, and it is inadmissible in that purpose, is admissible for another, and this is simply a question of bias.

We don't think 608 is controlling.

So I would finally simply end by indicating that it is the Government's position that it would be a travesty to require the victims and the witnesses to this bank robbery to have to go back for another trial simply on the basis that the tenets of the... the perjurious tenets of the Aryan Brotherhood were brought out for the consideration of this jury.

I think I might close simply by reiterating that the purposes of the federal Rules of Evidence as expressed in Rule 102 are to make sure that trials are conducted with fairness to the end that truth and the proper determination of a cause is determined.

I believe if the Rules are applied in that way, that this Court will agree that the Ninth Circuit's rule announced in this case was far too sweeping.

Unfortunately, if the case is decided in accord with the request of the Petitioner, it must return to the Ninth Circuit for determination with respect to other viable appellate issues which have not been brought to the attention of this Court.

Thank you.

Chief Justice Burger: Thank you, counsel.

The case is submitted.

We will hear arguments next in Ake against Oklahoma.