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. 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 bias. Scales v. United States, 367 U.S. 203, and Brandenburg v. Ohio, 395 U.S. 444, distinguished. Pp. 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. 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. 55-56.

707 F.2d 1013, reversed.

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