Appeal from the United States District Court for the Eastern District of Washington. D.C. No. CR-94-0184-WFN. Wm. Fremming Nielsen, District Judge, Presiding. Original Opinion Previously Reported at:,.
Before: Harry Pregerson and A. Wallace Tashima, Circuit Judges, and Robert E. Jones, District Judge*fn* Opinion by Judge Jones.
Appellant Edward P. Collicott, Sr. ("Collicott") appeals from his conviction on three counts of possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1). We reverse and remand for a new trial.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Surveillance and Arrest
On June 9, 1994, Spokane County Sheriff's Office Detectives ("Sheriffs") began surveillance of Collicott in Spokane, Washington. That day, Collicott rented a car in Spokane under a false name. Sheriffs observed Collicott driving this car, accompanied by Melauni Zaidi ("Zaidi").
At 9:52 p.m. that evening, Collicott checked into a motel with Zaidi in Yakima, Washington, under a false name. The surveillance team rented the room next door to Collicott. At 11:52 p.m., Sheriffs observed Collicott leaving the motel in his car. The surveilling officers followed Collicott and observed him exiting a convenience store with a white plastic bag. Collicott returned to the motel at 12:35 a.m.
Collicott and Zaidi checked out of the motel at 9:00 a.m. on June 10, 1994. Although two officers testified at trial that they observed Collicott put a white plastic bag into the rear passenger area of the rented car before driving away from the motel, neither officer stated that in their report.
Surveillance continued on the road. Shortly after Zaidi switched with Collicott as driver of the car, Sheriffs pulled them over. An officer observed Collicott reaching into the back seat of the car. When Sheriffs arrested Collicott, he falsely identified himself as William Collicott. Sheriffs obtained and executed a warrant, seizing $4,500 cash, syringes, balloons, and fake IDs from Collicott's person. They found a white plastic bag behind the driver's seat containing 11 grams of heroin, 125 grams of methamphetamine, and 26.5 grams of cocaine.
Officer Chris Kehl ("Kehl") interviewed Zaidi at the time of the arrest. She had no cash or drugs on her. She was not charged with any offense.
At Collicott's trial, the Government called Zaidi as a witness. She testified that she is an unemployed mother and a drug addict who supports herself through prostitution. She denied dealing drugs, but explained that the only drugs she had sold in the past 10 years was one-eighth ounce of marijuana in 1986.
Regarding the evening she spent with Collicott at the Yakima motel, Zaidi testified that Collicott placed a "pile of money" on the bed in the motel room. Sometime later, Collicott's friend, named Luis, allegedly entered the motel room while she was cooking and smoking cocaine in the room. After Luis left, she noticed a brown paper bag was in the room but the money that Collicott placed on the bed was gone. Zaidi also testified that she could not hear any Discussions between Collicott and Luis, and admitted that she was impaired by cocaine at the time.
On cross-examination, defense counsel asked Zaidi whether she recalled telling arresting officer Kehl that Luis came to the motel room between midnight and 1:00 a.m. that morning. Zaidi did not remember making any such statement. The colloquy was as follows:
Q. All right. Well, do you remember a police officer Kehl, K-e-h-l, or Chris Kehl or something, interviewing you?
Q. You don't remember telling him that this person you claim came to the room in Yakima came between midnight and 1:00 a.m.?
A. No, I do not remember saying that.
Q. You don't remember saying that?
Tr. 194. Zaidi was excused after a brief redirect examination.
Collicott then called Officer Kehl to the stand. The direct testimony of Officer Kehl follows:
Q. Okay. You were interviewing Melauni Zaidi after she was - the vehicle was stopped?
Q. And as part of your interview * * * you wrote in your notes and I presume this is something she told you?
Q. That sometime between midnight and one o'clock, a person allegedly arrived and delivered drugs to that room?
After this direct testimony, the Government attempted to examine Kehl about the remainder of the statements made by Zaidi to Kehl at the time of Collicott's arrest. However, Collicott objected on the ground that the testimony was improper hearsay and beyond the scope of the direct. The court overruled the objection and allowed Kehl to ...