United States v. Abel
469 U.S. 45 (1984)

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U.S. Supreme Court

United States v. Abel, 469 U.S. 45 (1984)

United States v. Abel

No. 83-935

Argued November 7, 1984

Decided December 10, 1984

469 U.S. 45

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Syllabus

Respondent and two cohorts were indicted for bank robbery. The cohorts pleaded guilty but respondent went to trial. One of the cohorts, Ehle, agreed to testify against respondent. Respondent informed the District Court that he would seek to counter Ehle's testimony with that of one Mills, who would testify that, after the robbery, Ehle had admitted to Mills that Ehle intended to implicate respondent falsely, in order 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 to testify that respondent, Mills, and Ehle were all members of a secret prison gang that was sworn to perjury and self-protection on each member's behalf. When, upon being cross-examined by the prosecutor, Mills denied knowledge of the prison gang, the prosecutor, as permitted by the District Court, recalled Ehle, who testified that he, respondent, and Mills were members of the prison gang and described the gang and its tenets. The jury convicted respondent. The Court of Appeals reversed, holding that Ehle's rebuttal testimony was admitted not just to show that respondent's and Mills' membership in the prison gang might cause Mills to color his testimony, but also to show that, because Mills belonged to the gang, he must be lying on the stand. The court further held that Ehle's testimony implicated respondent as a member of the gang, but that since respondent did not take the stand, the testimony could not have been offered to impeach him and prejudiced him "by mere association."

Held: The evidence showing Mills' and respondent's membership in the prison gang was sufficiently probative of Mills' possible bias towards respondent to warrant its admission into evidence. Pp. 469 U. S. 49-56.

(a) While the Federal Rules of Evidence do not by their terms deal with impeachment for "bias," it is clear that the Rules do contemplate such impeachment. It is permissible to impeach a witness by showing his bias under the Rules just as it was permissible to do so before their adoption. Here, Ehle's testimony about the prison gang certainly made the existence of Mills' bias towards respondent more probable, and it was thus relevant to support that inference. A witness' and a party's common membership in an organization, even without proof that the witness or party has personally adopted its tenets, is certainly probative of

Page 469 U. S. 46

bias. Scales v. United States,367 U. S. 203, and Brandenburg v. Ohio,395 U. S. 444, distinguished. Pp. 469 U. S. 49-53.

(b) The District Court did not abuse its discretion under Federal Rule of Evidence 403 in admitting Ehle's full description of the prison gang and its tenets, since the type of organization in which a witness and a party share membership may be relevant to show bias. The attributes of the prison gang bore directly not only on the fact of bias but also on the source and strength of Mills' bias. Pp. 469 U. S. 53-55.

(c) It was not error under Federal Rule of Evidence 608(b) -- which allows a cross-examiner to impeach a witness by asking him about specific instances of past conduct, other than crimes covered by Rule 609, which are probative of his veracity -- to cross-examine Mills about the prison gang to show, in addition to Mills' bias, his membership in the gang's past conduct bearing on his veracity. Nor was it error under Rule 608(b) to admit Ehle's rebuttal testimony concerning the gang. The proffered testimony with respect to Mills' membership in the gang sufficed to show potential bias in respondent's favor, and such extrinsic evidence is admissible to show bias. It is true that, because of the gang's tenets that the testimony described, the testimony might also have impeached Mills' veracity directly. But there is no rule of evidence that provides that testimony admissible for one purpose and inadmissible for another purpose is thereby rendered inadmissible. Pp. 469 U. S. 55-56.

707 F.2d 1013, reversed.

REHNQUIST J., delivered the opinion for a unanimous Court.

JUSTICE REHNQUIST delivered the opinion of the Court.

A divided panel of the Court of Appeals for the Ninth Circuit reversed respondent's conviction for bank robbery. [Footnote 1] The Court of Appeals held that the District Court improperly admitted testimony which impeached one of respondent's

Page 469 U. S. 47

witnesses. We hold that the District Court did not err, and we reverse.

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, in order 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. The District Court held that the probative value of Ehle's rebuttal testimony outweighed its prejudicial effect, but that respondent might be entitled to a limiting instruction if his counsel would submit one to the court.

At trial Ehle implicated respondent as a participant in the robbery. Mills, called by respondent, testified that Ehle

Page 469 U. S. 48

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. The District Court sustained a defense objection to a question concerning the punishment for violating the organization's rules. 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). The Court of Appeals held that Ehle's rebuttal testimony was admitted not just to show that respondent's and Mills' membership in the same group might cause Mills to color his testimony; the court held that the contested evidence was also admitted to show that, because Mills belonged to a perjurious organization, he must be lying on the stand. This suggestion of perjury, based upon a group tenet, was impermissible. The court reasoned:

"It is settled law that the government may not convict an individual merely for belonging to an organization that advocates illegal activity. Scales v. United States,367 U. S. 203, 367 U. S. 219-24 . . .; Brandenb\[u\]rg v. Ohio, 395

Page 469 U. S. 49

U.S. 444. . . . Rather, the government must show that the individual knows of and personally accepts the tenets of the organization. Neither should the government be allowed to impeach on the grounds of mere membership, since membership, without more, has no probative value. It establishes nothing about the individual's own actions, beliefs, or veracity."

Id. at 1016 (citations omitted). The court concluded that Ehle's testimony implicated respondent as a member of the gang; but since respondent did not take the stand, the testimony could not have been offered to impeach him and it prejudiced him "by mere association." Id. at 1017.

We hold that the evidence showing Mills' and respondent's membership in the prison gang was sufficiently probative of Mills' possible bias towards respondent to warrant its admission into evidence. Thus it was within the District Court's discretion to admit Ehle's testimony, and the Court of Appeals was wrong in concluding otherwise.

Both parties correctly assume, as did the District Court and the Court of Appeals, that the question is governed by the Federal Rules of Evidence. But the Rules do not by their terms deal with impeachment for "bias," although they do expressly treat impeachment by character evidence and conduct, Rule 608, by evidence of conviction of a crime, Rule 609, and by showing of religious beliefs or opinion, Rule 610. Neither party has suggested what significance we should attribute to this fact. Although we are nominally the promulgators of the Rules, and should in theory need only to consult our collective memories to analyze the situation properly, we are in truth merely a conduit when we deal with an undertaking as substantial as the preparation of the Federal Rules of Evidence. In the case of these Rules, too, it must be remembered that Congress extensively reviewed our submission, and considerably revised it. See 28 U.S.C. § 2076; 4 J. Bailey III & O. Trelles II, Federal Rules of

Page 469 U. S. 50

Evidence: Legislative Histories and Related Documents (1980).

Before the present Rules were promulgated, the admissibility of evidence in the federal courts was governed in part by statutes or Rules, and in part by case law. See, e.g., Fed.Rule Civ.Proc. 43(a) (prior to 1975 amendment); Fed.Rule Crim.Proc. 26 (prior to 1975 amendment); Palmer v. Hoffman,318 U. S. 109 (1943); Funk v. United States,290 U. S. 371 (1933); Shepard v. United States,290 U. S. 96 (1933). This Court had held in Alford v. United States,282 U. S. 687 (1931), that a trial court must allow some cross-examination of a witness to show bias. This holding was in accord with the overwhelming weight of authority in the state courts as reflected in Wigmore's classic treatise on the law of evidence. See id. at 282 U. S. 691, citing 3 J. Wigmore, Evidence § 1368 (2d ed.1923); see also District of Columbia v. Clawans,300 U. S. 617, 300 U. S. 630-633 (1937). Our decision in Davis v. Alaska,415 U. S. 308 (1974), holds that the Confrontation Clause of the Sixth Amendment requires a defendant to have some opportunity to show bias on the part of a prosecution witness.

With this state of unanimity confronting the drafters of the Federal Rules of Evidence, we think it unlikely that they intended to scuttle entirely the evidentiary availability of cross-examination for bias. One commentator, recognizing the omission of any express treatment of impeachment for bias, prejudice, or corruption, observes that the Rules "clearly contemplate the use of the above-mentioned grounds of impeachment." E. Cleary, McCormick on Evidence § 40, p. 85 (3d ed.1984). Other commentators, without mentioning the omission, treat bias as a permissible and established basis of impeachment under the Rules. 3 D. Louisell & C. Mueller, Federal Evidence § 341, p. 470 (1979); 3 J. Weinstein & M. Berger, Weinstein's Evidence

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