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UNITED STATES of America, Plaintiff-Appellee, v.
Clinton WEBSTER, Defendant-Appellant. No. 82-2195.
United States Court of Appeals, Seventh Circuit.
734 F.2d 1191 (7th Cir. 1984)
Argued Jan. 5, 1984.
Decided May 9, 1984.

EMERGENCY DIGEST: Webster was tried for aiding and abetting the robbery of a
federally insured bank and receiving funds stolen from the bank. At Websters trial, the
Government offered the testimony of the bank robber, King. King then gave testimony
that exculpated Webster. To impeach King, the prosecutor introduced Kings prior
inconsistent statements to the FBI in which he inculpated Webster. The statements were
admitted and the judge instructed the jury that the out-of-court statements were to be
considered for impeachment only and not as substantive evidence of Websters guilt.
Webster was convicted and appealed his conviction to the United States Court of
Appeals for the Seventh Circuit. On appeal, Webster asserted that the trial court
erroneously allowed Kings prior inconsistent statements to be used as impeachment
evidence. Issue: Whether it was proper to use the prior inconsistent statements made
by King out of court to impeach Webster. Held: Yes. Judgment of conviction affirmed.
The Court of Appeals found that prosecution acted in good faith in putting the co-
defendant (King) on the stand. Thus, the evidence was not offered to intentionally place
inadmissible evidence before the jury. The prosecution first sought to question the co-
defendant out of the presence (voir dire) of the jury to find out what information, if any,
he would offer. Webster's counsel objected and the questioning was not allowed.

COMPLETE DIGEST
Clinton Webster was convicted of aiding and abetting the robbery of a federally
insured bank and receiving stolen bank funds and was sentenced to nine years in
prison. At Websters trial, the Government offered the testimony of the bank robber,
King. Before calling King to the stand, the prosecutor asked the court to allow her to
conduct a voir dire examination of King outside the presence of the jury because she
did not know what Kings testimony would be. Websters counsel objected and the
voir dire was not done. King gave testimony that if believed would have exculpated
Webster.

To impeach King, the prosecutor introduced Kings prior inconsistent statements to
the FBI in which he inculpated Webster. The statements were admitted and the
judge instructed the jury that the out-of-court statements were to be considered for
impeachment only and not as substantive evidence of Websters guilt. Webster was
convicted and appealed his conviction to the United States Court of Appeals.
Webster argues that the government should not be allowed to get inadmissible
evidence before the jury by calling a hostile witness and then using his out-of-court
statements, which would otherwise be inadmissible hearsay, to impeach him.

Webster urges on appeal that prosecutors use of impeachment by prior inconsistent
statement under FRE 607 be limited to when the prosecutor is surprised and
harmed by the witness testimony, regardless of the prosecutors good faith in
offering the testimony.

Issue:
Whether it was proper to use the prior inconsistent statements made by King out of
court to impeach Webster. - Yes

Held: Judgment of conviction affirmed.

Rule 607 of the Federal Rules of Evidence provides: "The credibility of a witness may
be attacked by any party, including the party calling him." But it would be an abuse
of the rule, in a criminal case, for the prosecution to call a witness that it knew would
not give it useful evidence, just so it could introduce hearsay evidence against the
defendant in the hope that the jury would miss the subtle distinction between
impeachment and substantive evidence--or, if it didn't miss it, would ignore it. The
purpose would not be to impeach the witness but to put in hearsay as substantive
evidence against the defendant, which Rule 607 does not contemplate or authorize.
The Court agrees that "impeachment by prior inconsistent statement may not be
permitted where employed as a mere subterfuge to get before the jury evidence not
otherwise admissible." United States v. Morlang, 531 F.2d 183, 190 (4th Cir.1975).
Although Morlang was decided before the Federal Rules of Evidence became
effective, the limitation on the prosecutor's rights under Rule 607 has been accepted
in all circuits that have considered the issue. See, e.g., United States v. Miller, 664 F.2d 94,
97 (5th Cir.1981); United States v. DeLillo, 620 F.2d 939, 946 (2d Cir.1980); Whitehurst v.
Wright, 592 F.2d 834, 839-40 (5th Cir.1979); United States v. Rogers, 549 F.2d 490, 497 (8th
Cir.1976). See also United States v. Gorny, 732 F.2d 597, 603-604 (7th Cir.1984).

There was no bad faith here. Before the prosecutor called King to the stand, she
asked the judge to allow her to examine him outside the presence of the jury,
because she didn't know what he would say. The Webster's counsel objected and the
voir dire was not held. Under these circumstances it cannot be thought that the
prosecutor put King on the stand knowing he would give no useful evidence. If she
had known that, she would not have offered to voir dire him, as the voir dire would
have provided a foundation for defense counsel to object, under Morlang, to the
admission of King's prior inconsistent statements.

Webster urges the Court, on the authority of Graham, Handbook of Federal Evidence
Sec. 607.3 (1981 and Supp.1983), to go beyond the good-faith standard and hold
that the government may not impeach a witness with his prior inconsistent
statements unless it is surprised and harmed by the witness's testimony. The Court
thinks it would be a mistake to graft such a requirement to Rule 607, even if such a
graft would be within the power of judicial interpretation of the rule.

Suppose the government called an adverse witness that it thought would give
evidence both helpful and harmful to it, but it also thought that the harmful aspect
could be nullified by introducing the witness's prior inconsistent statement. As there
would be no element of surprise, Professor Graham would forbid the introduction of
the prior statements; yet we are at a loss to understand why the government should
be put to the choice between the Scylla of forgoing impeachment and the Charybdis
of not calling at all a witness from whom it expects to elicit genuinely helpful
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evidence.

The good-faith standard strikes a better balance; and it is always open to the
defendant to argue that the probative value of the evidence offered to impeach the
witness is clearly outweighed by the prejudicial impact it might have on the jury,
because the jury would have difficulty confining use of the evidence to impeachment.
See Fed.R.Evid.403