UNITED STATES v. PISARI.
636 F.2d 855 (1st Cir. 1981))
 
COFFIN, C.J. On June 5, 1980 we issued our opinion in this case, reversing appellant's conviction and holding that rebuttal testimony of a government witness, Coombs, was improperly admitted, being admissible neither as independent proof of appellant's identity, Fed. R. Evid. 404(b), nor as impeachment by prior inconsistent statement. On August 4 we granted the government's petition for rehearing and withdrew our opinion. After receiving and considering new briefs from the parties, we arrive at the same result, a reversal, via a different analysis....
The parties, the district court, and this court have been mistaken in various ways in their analysis of the admissibility of agent Coombs' statement. The district court, as noted, admitted the evidence as proof of a prior inconsistent statement relevant to the credibility of the defendant. The government defends the district court's admission of the evidence for impeachment purposes, or as a proper resort to Rule 404(b), the testimony tending to prove that defendant had committed an earlier "strikingly similar'' crime and therefore was the person who committed the crime at bar. Appellant has attacked the testimony as constituting extrinsic evidence of specific conduct, in violation of Rule 608(b). He opposes the application of Rule 404(b), arguing that the testimony was not admitted on this basis and that in any event the evidence of misconduct was neither direct nor competent. As for the impeachment ground, appellant argues that defendant's denial of having engaged in robbery by knife is not necessarily inconsistent with his having falsely told the undercover agent that he had committed such an act. In our earlier opinion, we rejected both proffered grounds for admissibility on the rationale now understandably defended on rehearing by appellant.
In our rethinking of the admissibility of the Coombs testimony, we consider first the impeachment ground specifically relied on by the district court. The government has suggested the proper starting point for analysis by acknowledging that a denial on cross-examination which relates to a collateral matter cannot be disputed by extrinsic evidence, citing McCormick, Law of Evidence, ch. 56, §36 at 70 (2d ed. 1972). See also Saltzburg and Redden, Federal Rules of Evidence Manual, 390 (2d ed. 1977). As one treatise summarizes the test at common law,

The test for collateralness proposed by Wigmore and endorsed by a number of federal courts [footnote omitted] is "Could the fact, as to which the prior self-contradiction is predicated, have been shown in evidence for any purpose independently of the self-contradiction?'' In other words, the [prior inconsistent] statement may be proved if it relates to a matter which the examiner could have proven even if the witness had said nothing on the subject. 3 Weinstein's Evidence, ¶ 607[06], at 607-69, -70 (1978).

While at common law the test for collateralness was frequently mechanical, we are advised by commentators that: "The better approach--and one in accord with the structure of the federal rules--would be to eliminate mechanical application of the 'collateral' test in favor of the balancing approach mandated by Rule 403. Evidence at which the collateral test is primarily directed, which is relevant solely because it suggests that the witness may have lied about something in the past would generally be excluded because of its low probative value and its tendency to prejudice the jury. Evidence of higher probative value would be assessed in terms of its impact on the jury in light of the particular circumstances presented.'' Id. at 607-71 to -72.
The government assumes that the issue of collateralness is easily hurdled, because "[t]he identity of the perpetrator of a crime is always a relevant and material issue.'' That is, the government contends that the prior robbery of a drug dealer by appellant, having a knife as his weapon, is so "strikingly similar'' to the robbery of the postal installation in the pharmacy presented in this case that it is probative that the same person, appellant, committed both crimes.
We think the government has underestimated the similarity necessary to justify, under Rule 404(b), the admission of evidence of other crimes to prove identity. Weinstein quotes McCormick as stating that evidence may be admitted:

to prove other like crimes by the accused so nearly identical in method as to ear-mark them as the handiwork of the accused. Here much more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts. The device used must be so unusual and distinctive as to be like a signature. (Emphasis in original.) Id. at 404-92, quoting McCormick, Evidence §157 (1954)....

Our own precedents allowing "other crimes as signature'' evidence have involved the conjunction of several identifying characteristics or the presence of some highly distinctive quality. In United States v. Eatherton, 519 F.2d 603, 611 (1st Cir.), cert. denied, 423 U.S. 987 (1975), a gun and three ski masks taken from defendant corresponded in character and number to accessories used in a robbery a few days earlier. In United States v. Barrett, 539 F.2d 244, 248 (1st Cir. 1976), testimony that defendant possessed expertise in the operation of burglar alarms was admissible where, in the case at bar, a burglary had been facilitated by bypassing an alarm, "so distinctive a feature of the stamp burglary'' that defendant's expertise "reinforced the evidence that linked him to the burglary.''
In contrast, the only factor common to the postal installation burglary and the robbery about which agent Coombs quoted appellant was a knife. We have no idea whether the knives used on these occasions were either similar or distinctive. We have no clear idea of the propinquity of the events in time. In one case a store is the target of the crime; in the other, an individual is the target. In one case, there were two robbers; in the other, so far as we know, one. In this case the objects taken were drugs and money; we do not know whether drugs or money were taken in the other robbery....
We are, in short, unable to make the determination that the elements of the offense revealed in agent Coombs' testimony and in the case at bar are so distinctive as to give rise to an inference that the same person was involved in both. The single fact that in committing a robbery, one invokes the threat of using a knife falls far short of a sufficient signature ]or trademark upon which to posit an inference of identity. We therefore conclude that, since agent Coombs' testimony, not being justified as evidence bearing on the identity of appellant, was addressed only to a collateral matter, it was improperly admitted as impeachment evidence. Our analysis also necessarily rules out any invocation of Rule 404(b) as an independent basis of admissibility. No other basis has been suggested, nor does any commend itself to us....
Since we cannot say with certainty that the error was harmless, we must reverse....
Reversed and remanded.

 

 


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