Opinion
CRIMINAL ACTION NO. 01-70; SECTION "N".
July 10, 2001
ORDER AND REASONS
Before the Court is defendant Allen Nicholas Tassin's Motion to Introduce Evidence Pursuant to Rules 404(a)(2), 405(b) and 608 of the Federal Rules of Evidence. For the following reasons, the defendant's motion is GRANTED IN PART and DENIED IN PART.
BACKGROUND
On March 22, 2001, a federal grand jury in the Eastern District of Louisiana charged defendant Allen Tassin with one count of kidnapping and one count of using a firearm in relation to the kidnapping. Tassin has pled not guilty to these charges.
Tassin was also charged with one count of possession of a firearm with an obliterated serial number, but the Government dismissed this charge with prejudice on July 5, 2001.
The defendant seeks to introduce evidence that one of the Government's primary witnesses, Donald Partain, "is one of questionable character and has a history of making false complaints to local police and fire departments." Specifically, the defendant seeks to produce evidence (1) that on May 31, 1999, Partain reported a false bomb threat at Pearl River Junior High School, (2) that Partain has made numerous false reports of fires, and (3) that Partain made numerous false complaints of harassment by his neighbors at the Twin Oaks Trailer Park.
LAW AND ANALYSIS
Under Federal Rule of Evidence 608, extrinsic evidence is generally "not admissible to prove specific conduct of a witness in order to attack his credibility." U.S. v. Farias-Farias, 925 F.2d 805, 809 (5th Cir. 1991) (citing Fed.R.Evid. 608(b) and United States v. Johnson, 848 F.2d 904, 906 (8th Cir. 1988)). Rule 608, however, "does permit inquiry on cross examination into specific instances of conduct which may bear on a witness' credibility in order to impeach the credibility of the witness." Id. (citing United States v. Draper, 888 F.2d 1100, 1104 (6th Cir. 1989)). In the instant case, the Court will permit the defendant to cross-examine Partain about his previous false complaints.
However, because Rule 608 prohibits impeachment of witnesses through extrinsic evidence of their previous acts, the inquiry into Partain's false complaints will be limited to cross-examination. In other words, if Partain denies making the threats, the defendant may further cross-examine him to extract an admission, but he may not call other witnesses to prove the discrediting acts. See U.S. v. Simpson, 709 F.2d 903, 908 (5th Cir. 1983) (citing Carter v. Hewitt, 617 F.2d 961, 969-71 (3rd Cir. 1980) (stating that "the great majority of the decisions finding violations of rule 608(b) do so when the extrinsic evidence that is challenged is obtained from a witness other than the one whose credibility is under attack")).
Accordingly, the Court holds that Tassin may cross-examine Partain about his history of making false complaints but may not call other witnesses to establish this history.