United States v. Zane Higa, United States of America v. Zane Higa
95 Daily Journal DAR 6341, 95 Cal. Daily Op. Serv. 3680, 55 F.3d 448 (1995)
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Rule of Law:
Extrinsic evidence of a witness's prior inconsistent statements, if not collateral to the case, is admissible for impeachment under Federal Rule of Evidence 613(b) after the witness is afforded an opportunity to explain or deny the statements, and such evidence is not barred by Rule 608(b) which applies to specific instances of conduct. Furthermore, a sentencing court may, and should, make a specific finding of perjury to support an obstruction of justice enhancement under the Sentencing Guidelines.
Facts:
- Zane Higa was a customer service representative for Northwest Airlines and possessed a U.S. Customs badge that permitted him unchallenged access to international arrival areas and allowed him to bypass customs inspection.
- Higa was charged with conspiring with Yuuki Matsunaga and Masakatsu Rahbine to import methamphetamine, and aiding and abetting its importation.
- Masakatsu Rahbine, testifying under a plea bargain, stated that Higa approached him about helping to import methamphetamine, with a plan for Matsunaga to obtain the drug, Rahbine to transport it, and Higa to retrieve it past customs.
- Rahbine boarded a plane in Japan with methamphetamine taped to his body, later untaping it and placing it in a gift box inside a shopping bag, which he left in an overhead compartment upon landing in Honolulu.
- After Rahbine and Matsunaga cleared customs, Rahbine met Higa, who confirmed the plan was proceeding, and Higa later delivered the shopping bag with the gift box of methamphetamine to Rahbine.
- Benny Tamon, another government witness under a plea bargain, had previously told police and testified to a grand jury that he was part of the conspiracy and was supposed to meet Higa at the gate to receive the drug, but he failed to show up.
- At trial, Tamon testified that he did not remember his prior statements and, after receiving use immunity, repudiated his prior grand jury testimony, claiming the agents had written down false statements and that Higa had refused to participate in Rahbine's drug importation attempt.
Procedural Posture:
- Zane Higa was charged by the government with (1) conspiring to import methamphetamine; (2) aiding and abetting the importation of methamphetamine; (3) possessing methamphetamine with intent to distribute; and (4) distributing methamphetamine.
- A federal jury in the district court returned a verdict of guilty on counts 1 and 2 (conspiracy to import and aiding and abetting importation) and not guilty on counts 3 and 4 (possession and distribution).
- The district court imposed a two-level upward adjustment under Guidelines section 3B1.3 for abuse of a position of trust, but denied the government's motion for a two-level upward adjustment under Guidelines section 3C1.1 for obstruction of justice, stating that Higa's in-court testimony could not constitute a basis for the adjustment.
- Higa appealed the trial court's admission of evidence of prior inconsistent statements and the sentencing adjustment for abuse of a position of trust.
- The government cross-appealed the denial of the obstruction of justice adjustment.
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Issue:
Does a trial court abuse its discretion by admitting extrinsic evidence of a witness's prior inconsistent statements on a central issue of the case, and must a sentencing court make specific findings of perjury to apply an obstruction of justice enhancement under the Sentencing Guidelines?
Opinions:
Majority - Kleinfeld, Circuit Judge
Yes, a trial court does not abuse its discretion by admitting extrinsic evidence of a witness's prior inconsistent statements on a central issue of the case, and a sentencing court must make specific findings of perjury to apply an obstruction of justice enhancement under the Sentencing Guidelines. The court affirmed the trial court's admission of extrinsic evidence, which included the testimony of a lawyer and a customs agent, and portions of Tamon's grand jury testimony, to impeach Tamon's trial testimony. This was considered proper impeachment by prior inconsistent statements, or contradiction, and was not barred by Federal Rule of Evidence 608(b), which pertains to specific instances of conduct showing dishonesty, rather than prior contradictory statements. Citing United States v. Chu, the court emphasized that Rule 608(b) does not address impeachment by contradiction. The court also rejected the argument that the extrinsic evidence was collateral, applying the Wigmore test which asks if the fact could have been independently shown. It found Tamon's inconsistencies directly related to Higa's participation in the conspiracy, a central issue of the trial, distinguishing it from collateral matters. The district judge's careful procedure for determining inconsistencies using notes was also upheld. Regarding sentencing, the court affirmed the two-level upward adjustment for abuse of a position of trust, finding the district court's finding that Higa used his airline position for illicit access was not clearly erroneous. However, the court remanded the case for reconsideration of the obstruction of justice adjustment. This was based on the Supreme Court's intervening decision in United States v. Dunnigan, which clarified that a sentencing judge must make explicit factual findings as to whether a defendant committed perjury at trial before applying an obstruction of justice enhancement, a finding that had not been made at Higa's original sentencing.
Analysis:
This case clarifies the distinction between impeachment by prior inconsistent statements (contradiction) and impeachment by specific instances of conduct, affirming that Federal Rule of Evidence 608(b) does not preclude extrinsic evidence of the former, particularly when the inconsistencies relate to a central issue of the case. It reinforces the broad discretion of trial judges in managing such evidentiary matters. More significantly, it applies the Supreme Court's ruling in United States v. Dunnigan, establishing that sentencing courts must make explicit factual findings regarding perjury when considering an obstruction of justice enhancement for a defendant's trial testimony, thus providing crucial guidance for post-Dunnigan sentencing procedures.
