United States v. Victor Angelini, 678 F.2d 380, 1st Cir. (1982)
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2d 380
10 Fed. R. Evid. Serv. 876
UNITED STATES of America, Appellee,
v.
Victor ANGELINI, Defendant, Appellant.
No. 81-1720.
United States Court of Appeals,
First Circuit.
Argued April 5, 1982.
Decided May 24, 1982.
Michael F. Natola, Everett, Mass., with whom Alfred Paul Farese, Everett,
Mass., was on brief, for appellant.
Janis H. Kockritz, Atty., Dept. of Justice, Washington, D. C., with whom
William F. Weld, U. S. Atty., Boston, Mass., and Ernest S. DiNisco, Sp.
Atty., Dept. of Justice, Roxbury, Mass., were on brief, for appellee.
Before COFFIN, Chief Judge, FAIRCHILD, * Senior Circuit Judge, and
CAMPBELL, Circuit Judge.
LEVIN H. CAMPBELL, Circuit Judge.
Victor Angelini was convicted after a jury trial of possessing with intent to
distribute and distributing methaqualone, a controlled substance, in violation of
21 U.S.C. 841(a)(2), 18 U.S.C. 2. The evidence presented against him at
trial consisted primarily of the testimony of Drug Enforcement Administration
Special Agent Keefe. Agent Keefe testified that, while working undercover, he
met with one Samuel Jacobs on October 7, 1980, at which time Jacobs
informed him of a new drug source from Florida. Jacobs arranged for Keefe to
meet the source on October 14. Angelini was introduced as the drug source at
this meeting. According to Keefe, Angelini stated that he could obtain various
drugs. Angelini also asked Keefe about a small sample of drugs he, Angelini,
had given Jacobs. Angelini went on to quote a price for shipments of the drugs.
The defense consisted chiefly of Angelini's denials of what Keefe said
The defense consisted chiefly of Angelini's denials of what Keefe said
transpired at the October 14 meeting. He said that he was not involved in drugs
and that while the general subject of drugs may have come up at the meeting,
he did not engage in any criminal activity. Angelini's wife also testified on his
behalf that he was not involved in drug trafficking.
Angelini sought to introduce evidence through three character witnesses that he
was law-abiding and truthful. The district court refused to allow the witnesses
to take the stand on the basis that law-abidingness was not relevant to the case;
no explicit distinct explanation was given as to the basis of the ruling with
respect to truthfulness. On appeal, Angelini asserts that these rulings were in
error. While we do not believe it was error for the district court to have
excluded the evidence concerning truthfulness, see note 1, infra, we hold that
the court erred in excluding evidence concerning Angelini's character as a lawabiding person.
Federal Rule of Evidence 404(a) states that an accused may introduce "(e)
vidence of a pertinent trait of his character." The word "pertinent" is read as
synonymous with "relevant." United States v. Staggs, 553 F.2d 1073, 1075 (7th
Cir. 1977); 22 Wright & Graham, Federal Practice and Procedure: Evidence
5236, at 383 (1978). Thus, the basic issue is whether the character trait in
question would make any fact "of consequence to the determination" of the
case more or less probable than it would be without evidence of the trait. See
Fed.R.Evid. 401; United States v. Staggs, 553 F.2d 1073.
Under this analysis, evidence of law-abidingness should have been admitted.
Evidence that Angelini was a law-abiding person would tend to make it less
likely that he would knowingly break the law. Such evidence has long been
recognized as relevant. See 1 Wigmore, Evidence 55 (Chadbourne rev. 1972).
In Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168
(1948), the Supreme Court stated that "(p)ossession of ... characteristics
(including law-abidingness) would seem ... incompatible with offering a bribe
to a revenue agent," which was the crime charged. Id., at 483, 69 S.Ct. at 222.
Similarly, in State v. Padgett, 93 W.Va. 623, 117 S.E. 493, 495 (1923), the
court stated
6 law-abiding trait of character would tend to negative indulgence in the propensity
A
of making moonshine liquor, and that was the nature of the inquiry attempted to be
made.
7
The observations made in these cases apply with equal force to the drug
offenses charged here.
In a case directly on point, United States v. Hewitt, 634 F.2d 277 (5th Cir.
1981), the Fifth Circuit held that evidence of a defendant's law-abiding
character was erroneously excluded in a trial for unlawful possession or receipt
of firearms. In the course of its analysis, the court stressed the relevancy of
such evidence. Id., at 279. As it noted, however, this inquiry does not end the
matter. While the Hewitt court went on to ask whether law-abidingness is a
"specific" or a "general" trait of character, we think the issue may be better
framed as whether it qualifies as a trait at all, or is so diffuse as to be merely
synonymous with good character generally, which is not admissible. Rule 404
permits evidence of traits only; an earlier draft was modified, deleting language
that would have allowed the introduction of evidence of a defendant's character
generally. See Advisory Committee's Note to Rule 404; Proposed Federal Rules
of Evidence 4-04(a)(1), 46 F.R.D. 161, 227 (1969). Under the common law,
there was a similar distinction made between general good character and
particular traits of character. See McCormick, Evidence 191, at 455 (2d ed.
1972); 1 Wigmore, Evidence 59, at 458; 22 Wright & Graham, Federal
Practice and Procedure: Evidence 5236, at 382. Since Rule 404 was intended
to restate the common law rule, 2 Weinstein & Berger, Evidence P 404(05)
(1981), it is useful to examine the cases to determine whether evidence of lawabidingness was normally held to be admissible.
With very few exceptions, the cases hold that evidence of a defendant's
character as a law-abiding person is admissible. See, e.g., State v. Padgett, 93
W.Va. 623, 117 S.E. 493; State v. Quinn, 344 Mo. 1072, 130 S.W.2d 511
(1939); Bishop v. State, 72 Tex.Crim. 1, 160 S.W. 705 (1913); Livingston v.
State, 589 S.W.2d 395 (Tex.Crim.1979); State v. Ervin, 22 Utah 2d 216, 451
P.2d 372 (1969); Finnie v. State, 264 Ark. 638, 593 S.W.2d 32 (1980). See
also, e.g., United States v. Jalbert, 504 F.2d 892, 895 (1st Cir. 1974) ("character
evidence is admissible ... to show a party's general renown for honesty and
lawfulness"); Commonwealth v. Nagle, 157 Mass. 554, 32 N.E. 861, 862
(1893) ("unwillingness to commit crimes generally" apparently assumed a
proper subject for character evidence). The only case we have found squarely
stating that evidence of law-abidingness is generally inadmissible is Chung
Sing v. United States, 4 Ariz. 217, 36 P. 205 (1894), but there is very little
discussion of the issue. There is no indication of a general common law rule
against the admissibility of evidence of law-abidingness (as distinguished from
good character generally which, as noted, was usually held inadmissible).
10
We hold, therefore, that the trait of law-abidingness was relevant and
admissible under Rule 404(a). We cannot say that the exclusion of this evidence
was harmless error. Cf. Michelson v. United States, 335 U.S. at 476, 69 S.Ct. at
218 (evidence of good character may in itself raise a reasonable doubt as to
defendant's guilt). We therefore remand for a new trial.1
11
Vacated and remanded.
Of the Seventh Circuit, sitting by designation
As guidance for the district court on retrial, we note our rejection of Angelini's
argument that he should have been permitted to introduce evidence of his
character for truthfulness. If not pertinent to the crime charged-and Angelini
does not argue that it is-such evidence is admissible "only after the character of
the witness for truthfulness has been attacked by opinion or reputation evidence
or otherwise." Fed.R.Evid. 608(a). The mere fact that an accused takes the
stand does not give him the right to present character evidence supporting his
veracity. United States v. Jackson, 588 F.2d 1046, 1055 (5th Cir.), cert. denied,
442 U.S. 941, 99 S.Ct. 2882, 61 L.Ed.2d 310 (1979). Nor does contradiction of
a witness, even the accused, necessarily require the admission of proffered
evidence for truthfulness. Id. The cross-examination of Angelini conducted
here could hardly be characterized as so "slashing," McCormick, Evidence
49, at 104, as to constitute an attack on credibility under Rule 608. While the
retrial may take a different course, necessitating a different approach by the
presiding judge, we see no error in the exclusion of the evidence under the
circumstances which obtained at the trial now under consideration
