Eleventh Circuit Finds Prior Inconsistent Statements Were Properly Admitted in Case Described as “The Wire” in Real Life

Federal Rule of Evidence 801(d)(1)(B) provides an exclusion to the rule against hearsay if

The declarant testifies and is subject to cross-examination about a prior statement, and the statement:…

(B) is consistent with the declarant’s testimony and is offered:

(i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or

(ii) to rehabilitate the declarant’s credibility as a witness when attacked on another ground

Rule 801(d)(1)(B) was amended in 2014 to add the language that now forms subsection (ii). In the wake of the amendment, courts and scholars have grappled with the issue of whether a prior consistent statement is solely admissible under subsection (ii) if it addresses the precise issues upon which a witness was impeached. The latest example can be found in the recent opinion of the Eleventh Circuit in United States v. Graham, 2024 WL 4929254 (11th Cir. 2024).

The Eleventh Circuit described Graham as follows:

The Wire is said to be one of best television shows of all time. That is in large part because of its realistic depiction of gang violence in an American city….This case is about what happens when that fiction becomes reality.

Reginald Graham, Antonio Glass, Jerimaine Bryant, Mario Rodriguez, Torivis Reginald Ingram, Michael Walker, Levi Bryant, Curtis Bryant, Daniel Jones, and Samuel Hayes appeal their convictions and sentences for committing numerous crimes in connection with their membership in a Miami-based gang—the Dub Street Blood Family or DSBF. For nearly two decades, the gang operated in and tyrannized a community through its drug operations. When narcotics did not prove fruitful enough, its members turned to armed robberies. And when members stepped out of line or rivals encroached on the gang’s territory, its members did not hesitate to kill.

On appeal, one of the issues raised was that prior consistent statements by Donzell Jones were improperly admitted. The court dealt with the issue as follows:

When cross-examining Donzell Jones, defense counsel impeached him using an audio recording of his interrogation by two agents. On redirect, the government played other portions of that recording to rehabilitate him. Some portions of the interrogation played by the government apparently implicated Mr. Graham in a robbery….

The record, however, is silent as to what the recording actually says….And because it was impeachment evidence, neither party entered Donzell Jones’ interrogation transcript into evidence. Mr. Graham, moreover, did not provide us with a copy on appeal….

There is no dispute that the recording satisfied the first requirement of Rule 801(d)(1)(B). Defense counsel used a portion of it during Donzell Jones’ cross-examination. As to whether the government properly offered it to rebut defense counsel’s express or implied charge that Donzell Jones was not credible and/or had an improper motive in testifying as a cooperating witness, Mr. Graham argues that Rule 801(d)(1)(B) limits the scope of rehabilitation to the precise issues on which defense counsel impeached Donzell Jones. This broad legal assertion, however, is contrary to our precedent….The scope of the government’s use of the recording was within the discretion of the district court, and we are reticent to disturb its decision given the limited record before us (emphasis added).

I continue to question whether Rule 801(d)(1)(B) sweeps this broadly or merely covers the precise issues of impeachment, as argued by the defense.

-CM