United States v. Carlos Cruz & Luis Olivier, 894 F.2d 41 (2d Cir. 1990). · Go Syfert
United States v. Carlos Cruz & Luis Olivier, 894 F.2d 41 (2d Cir. 1990). Cases Citing This Book View Copy Cite
57 citation events (45 in the last 25 years) across 8 distinct courts.
Strongest positive: Collins v. The Long Island Railroad Company (nyed, 2023-06-23) · Strongest negative: United States v. Whitmore, Gerald F. (cadc, 2004-03-05)
Treatment trajectory · 1991 → 2026 · click a year to view as-of
1991 2008 2026
Top citers, strongest first. 18 distinct citers. How cited ↗
discussed Cited "but see" United States v. Whitmore, Gerald F.
D.C. Cir. · 2004 · signal: but see · confidence high
But see United States v. Cruz, 894 F.2d 41, 43 (2d Cir.1990) (excluding cross-examination regarding earlier judicial finding in unrelated case that witness lacked credibility because of limited probative value).
discussed Cited as authority (verbatim quote) Collins v. The Long Island Railroad Company
E.D.N.Y · 2023 · signal: see also · quote attribution · 1 verbatim quote · confidence high
each hearsay statement within multiple hearsay statements must have a hearsay exception in order to be admissible.
discussed Cited as authority (verbatim quote) Ross v. Guy
E.D.N.Y · 2022 · signal: see also · quote attribution · 1 verbatim quote · confidence high
each hearsay statement within multiple hearsay statements must have a hearsay exception in order to be admissible.
discussed Cited as authority (rule) Calvin Harris v. Steven Andersen, Susan Mulvey, and Barbara Thayer (2×) also: Cited "see"
N.D.N.Y. · 2025 · confidence medium
"Such acts are only admissible insofar as they bear on a witness's propensity for truthfulness or untruthfulness," id., and, "[u]nder Rule 608(b), the court has discretion to permit or deny a line of inquiry on cross-examination," United States v. Cruz, 894 F.2d 41, 43 (2d Cir. 1990) (citation omitted).
discussed Cited as authority (rule) Junger v. Singh
W.D.N.Y. · 2021 · confidence medium
The Second Circuit found that the district court had erred by relying only on the factors articulated by United States v. Cruz, 894 F.2d 41 (2d Cir. 1990), i.e., “(1) whether the prior judicial finding addressed the witness’s veracity in that specific case or generally; and (2) whether the two sets of testimony involved similar subject matter.” Id. at 82 (explaining that the district court should not have limited its analysis to the two factors discussed in Cruz, because “in Cruz [the Second Circuit] did not purport to set out a rigid two-part test.”).
discussed Cited as authority (rule) Doe ex rel. Doe v. Darien Board of Education
D. Conn. · 2015 · confidence medium
Because “[e]aeh hearsay statement within multiple hearsay statements must have a hearsay exception in order to be admissible,” United States v. Cruz, 894 F.2d 41, 44 (2d Cir.1990) (citing Fed.R.Evid. 805), each layer of the double-hearsay must be analyzed separately.
cited Cited as authority (rule) United States v. FNU LNU
2d Cir. · 2014 · confidence medium
See United States v. Marcus, 560 U.S. 258, 262 , 130 S.Ct. 2159 , 176 L.Ed.2d 1012 (2010); United States v. Cruz, 894 F.2d 41, 44 (2d Cir.1990).
discussed Cited as authority (rule) United States v. Mejia
S.D.N.Y. · 2013 · confidence medium
The Second Circuit has explained that "[u]n-less the basis for proposed admission is obvious, it is the burden of counsel who seeks admission to alert the court to the legal basis for his [or her] proffer.” United States v. Cruz, 894 F.2d 41, 44 (2d Cir.1990) (quoting United States v. Pugliese, 712 F.2d 1574, 1580 (2d Cir.1983)); see also Chamberlin v. Princi-pi, No. 02-CV-8357, 2006 WL 647785 , at *1 n. 2 (S.D.N.Y.
cited Cited as authority (rule) United States v. Nelson
2d Cir. · 2006 · signal: cf. · confidence medium
Cf United States v. Cruz, 894 F.2d 41, 43 (2d Cir.1990).
discussed Cited as authority (rule) United States v. Nelson (2×) also: Cited "see"
S.D.N.Y. · 2005 · confidence medium
Although the Court of Appeals indicates at times that both issues are under consideration, see Cruz, 894 F.2d at 43 ("[the appellant] contends that the district court refused to allow this line of cross-examination and rejected the transcript ....”), its final ruling states only that "[t]he district court was within its discretion in refusing to admit the transcript." Id. at 43 .
discussed Cited as authority (rule) Carmody v. Pronav Ship Management, Inc.
S.D.N.Y. · 2004 · confidence medium
United States v. Cruz, 894 F.2d 41, 43-44 (2d Cir.1990) (“Unless the basis for a-proposed admission is obvious, it is the burden of counsel who seeks admission to alert the Court to the legal basis for the proffer.”) (quotation omitted); see also Ramey v. District 141, Int’l Assoc. of Machinists and Aerospace Workers, 378 F.3d 269, 281-82 (2d Cir.2004) (where defendant asserted a new argument for the admissibility of certain evidence, that it had failed to articulate at trial, this challenge to the trial judge’s evidentiary ruling would not be entertained on appeal); Fed.R.Evid. 103.
cited Cited as authority (rule) Perry v. Norris
E.D. Ark. · 1995 · confidence medium
See Fed.R.Evid. 805; United States v. Cruz, 894 F.2d 41, 44 (2d Cir.), cert. denied, 498 U.S. 837 , 111 S.Ct. 107 , 112 L.Ed.2d 77 (1990). 19 .
examined Cited as authority (rule) United States v. Schwartz (3×) also: Cited "see"
2d Cir. · 1991 · signal: cf. · confidence medium
Cf. United States v. Cruz, 894 F.2d 41, 43 (2d Cir.) (abuse of discretion when curtailment of cross-examination denies jury "sufficient information to make a discriminating appraisal of the particular witness's possible motives for testifying falsely"), cert. denied, --- U.S. ----, 111 S.Ct. 107 , 112 L.Ed.2d 77 (1990), quoting United States v. Blanco, 861 F.2d 773, 781 (2d Cir.1988), cert. denied, 489 U.S. 1019 , 109 S.Ct. 1139 , 103 L.Ed.2d 200 (1989). 72 DePanicis also alleges the trial judge's interjections rehabilitated Jamil and evidenced the trial court's bias supporting both Jamil's cr…
examined Cited as authority (rule) United States v. Schwartz (3×) also: Cited "see"
2d Cir. · 1991 · signal: cf. · confidence medium
Cf. United States v. Cruz, 894 F.2d 41, 43 (2d Cir.) (abuse of discretion when curtailment of cross-examination denies jury “sufficient information to make a discriminating appraisal of the particular witness’s possible motives for testifying falsely”), cert. denied, — U.S. -, 111 S.Ct. 107 , 112 L.Ed.2d 77 (1990), quoting United States v. Blanco, 861 F.2d 773, 781 (2d Cir.1988), cert. denied, 489 U.S. 1019 , 109 S.Ct. 1139 , 103 L.Ed.2d 200 (1989).
discussed Cited "see" United States v. Dixon
2d Cir. · 2013 · signal: see · confidence high
See United States v. Cruz, 894 F.2d 41, 44 (2d Cir.1990) (holding statements recorded in report inadmissible, because “[e]ach hearsay statement within multiple hearsay statements must have a hearsay exception in order to be admissible”).
examined Cited "see" United States v. Cedeno (3×)
2d Cir. · 2011 · signal: see · confidence high
See Cruz, 894 F.2d at 42-43 .
examined Cited "see" United States v. Cuadrado (Cedeño) (3×)
2d Cir. · 2011 · signal: see · confidence high
See Cruz, 894 F.2d at 42-43 .
cited Cited "see" United States v. Charles Williams, Claddis Arrington, Mary Ferguson, A/K/A \Mary Davis\"
unknown court · 1991 · signal: see · confidence high
See United States v. Cruz, 894 F.2d 41, 44 (2d Cir.), cert. denied, — U.S. -, 111 S.Ct. 107 , 112 L.Ed.2d 77 (1990); Felice v. Long Island R.R.
Retrieving the full opinion text from the archive…
UNITED STATES of America, Appellee,
v.
Carlos CRUZ and Luis Olivier, Defendants-Appellants
249, 264, Dockets 89-1200, 89-1236.
Court of Appeals for the Second Circuit.
Jan 9, 1990.
894 F.2d 41
Abraham L. Clott (The Legal Aid Soc., Federal Defender Services Appeals Unit, New York City of counsel), for defendant-appellant Olivier., Alexandra Rebay, Asst. U.S. Atty., New York City (Benito Romano, U.S. Atty. for the S.D.N.Y., Vincent L. Briccetti, Asst. U.S. Atty., of counsel), for appellee., Philip Katowitz, Brooklyn, N.Y., for defendant-appellant Cruz.
Carman, Mahoney, Miner.
Cited by 22 opinions  |  Published
MINER, Circuit Judge:

This appeal involves the exclusion of two pieces of evidence from a drug distribution and conspiracy trial. On February 2, 1989, defendant-appellant Luis Olivier was convicted, with Carlos Cruz [1] , of one count of conspiracy to distribute over 500 grams of cocaine, in violation of 21 U.S.C. § 846 (1982), and one count of possession of over 500 grams of cocaine with intent to distribute, in violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(B) (1982 & Supp. V 1987), and 18 U.S.C. § 2 (1982).

On appeal, Olivier argues that he was denied a fair trial because the district court improperly excluded a sentencing transcript from an earlier case in another court revealing the court’s finding that a government informant, a witness against Olivier in this case, was not credible. Olivier also contends that he was denied a fair trial by reason of the exclusion of inconsistent versions of the investigation report of his arrest. For reasons that follow, we affirm.

BACKGROUND

On July 27, 1988, Olivier offered to sell one kilogram of cocaine to Mario Perez for $20,000. Two Drug Enforcement Administration agents, Geisel and Hunt, observed Olivier talking to Perez, who was their informant. Perez and Olivier had been introduced earlier by another confidential informant. Olivier brought Perez into an apartment on West 162d Street, New York City, where Cruz was waiting with the cocaine. Cruz handed the package containing cocaine to Olivier, who then gave it to Perez. Perez signaled the agents that the sale was consummated, and Olivier and Cruz then were arrested.

Prior to trial, Olivier sought a ruling on his proposal to offer in evidence transcripts from a sentencing hearing conducted by Judge Edward R. Korman, United States District Judge for the Eastern District of New York, in another drug case. Judge Korman concluded that Perez’ testimony regarding his conversation with the defendant being sentenced in that case was not credible. United States v. Bisbicus, No. 87 Cr. 497(S) (E.D.N.Y. May 24 & June 17, 1988). The district court in Olivier’s case refused to admit the transcript, either as direct evidence or for purposes of cross-examining Perez, declaring that “it would be a grossly improper and a terrible abuse of my discretion and it would indicate a complete lack of knowledge of the rules of evidence to permit any cross-examination of Perez” based on the transcript.

At trial, Olivier sought to introduce two versions of the investigation report of the arrest, prepared by agent Geisel, which suggested the existence of a second informant. In the second version, paragraph 3 of the report had been altered so that the[*43] word “other” was deleted and the version read: “the SCI [Perez] told S/A Hunt that the-SCI was inside [the] apartment_” The government neither produced the second informant nor sought to introduce either version of the report. Olivier proposed to introduce the inconsistent versions of the report when he cross-examined Geis-el. He argued that the two versions of the report were not hearsay because they were being admitted solely as proof of government fabrication and not for the truth of the matters asserted therein. See Fed.R. Evid. 801(c). He asserted that the two versions were admissible under the business records exception to the hearsay rule. See id. Rule 803(6). He also contended that they were not hearsay because they were prior inconsistent statements of Geis-el and Hunt. See id. Rules 801(d)(1), 613(b). The court excluded these versions of the report as unsworn, prior inconsistent statements which contained double hearsay. See id. Rules 801(d)(1)(A), 805. Olivier, in his cross-examination of Geisel, did raise the issue of the alteration of the report, referring directly to the deletion of the word “other,” but was not permitted to introduce the report or elicit testimony as to the significance of the alteration. Olivier unsuccessfully moved for a mistrial. The jury convicted Olivier, and the court sentenced him to a term of imprisonment of 78 months, concurrently on each count, plus supervised release for five years, and a $100 special assessment.

On appeal, Olivier contends that the sentencing transcript is admissible under Fed. R.Evid. 608(b) for purposes of cross-examination because it is probative of Perez’ untruthful character. He also asserts that the inconsistent versions of the investigation report are admissible, in addition to the grounds raised in the district court, as public records, see Fed.R.Evid. 803(8), as admissions by a party-opponent or its agent, see id. Rule 801(d)(2)(B), and as material used by Geisel to refresh his recollection, see id. Rule 612.

DISCUSSION

Olivier contends that Rule 608(b) allows him to use the transcript of the sentencing proceeding before Judge Korman in Bisbicus to cross-examine Perez because that transcript shows a specific instance of Perez’ conduct concerning his untruthful character. He contends that the district court refused to allow this line of cross-examination and rejected the transcript, not because the court exercised its discretion in an evidentiary matter, but because the court erroneously believed that it lacked the power to permit the line of inquiry.

Under Rule 608(b), the court has discretion to permit or deny a line of inquiry on cross-examination. United States v. Pedroza, 750 F.2d 187, 195 (2d Cir.1984), cert. denied, 479 U.S. 842, 107 S.Ct. 151, 93 L.Ed.2d 92 (1986). “A trial judge abuses his discretion in curtailing cross-examination of a government witness when the curtailment denies the jury ‘sufficient information to make a discriminating appraisal of the particular witness’s possible motives for testifying falsely in favor of the government.’ ” United States v. Blanco, 861 F.2d 773, 781 (2d Cir.1988) (quoting United States v. Singh, 628 F.2d 758, 763 (2d Cir.), cert. denied, 449 U.S. 1034, 101 S.Ct. 609, 66 L.Ed.2d 496 (1980)), cert. denied, — U.S. -, 109 S.Ct. 1139, 103 L.Ed.2d 200 (1989). A party whose cross-examination of a witness is restricted must “make all reasonable efforts to alert the court to the relevance and importance of the proposed questions.” Jones v. Berry, 880 F.2d 670, 673 (2d Cir.1989).

The transcript in Bisbicus reflects only a finding that Perez lacked credibility as to his testimony in that case, not that he was lacking in veracity generally. In the absence of any connection between the subject of Perez’ testimony in Bisbicus and his testimony in the case at bar, it cannot be said that Judge Korman’s finding as to the former is relevant in any way to a resolution of the issues in Olivier’s case. The district court was within its discretion in refusing to admit the transcript.

Olivier offers several hearsay exceptions and other evidentiary rules that he contends permit the admission of the inconsistent versions of the investigation report.[*44] Among these are several grounds for admissibility not raised in the district court. Olivier argues here for the first time that the reports are public records, party-opponent admissions, and materials used to refresh a witness’s recollection. “Unless the basis for proposed admission is obvious, it is the burden of counsel who seeks admission to alert the court to the legal basis for his proffer.” United States v. Pugliese, 712 F.2d 1574, 1580 (2d Cir.1983). Since the bases for admissibility Olivier now urges are not obvious from the record, and the burden of alerting the district court was not met, the contentions raised here for the first time have been waived. Moreover, none of these grounds for admissibility apply here, and if error occurred in excluding the reports, the error was harmless.

The remaining grounds — that the reports are admissible as proof of government fabrication, as prior inconsistent statements, and as business records — are without merit. Regardless of the evidentiary rule invoked to assert the admissibility of the reports, the reports contain multiple hearsay and cannot be admitted under any exception to the hearsay rule. Whether the investigation reports are public or business records, prior inconsistent statements, or proof of fabrication, the reports remain inadmissible because Geisel’s recording of what Hunt told him Perez said constitutes multiple hearsay. See 4 J. Weinstein & M. Berger, Weinstein’s Evidence ¶805[01], at 805-5 (1988). Each hearsay statement within multiple hearsay statements must have a hearsay exception in order to be admissible. Fed.R.Evid. 805; see Felice v. Long Island R.R., 426 F.2d 192, 197 (2d Cir.), cert. denied, 400 U.S. 820, 91 S.Ct. 37, 27 L.Ed.2d 47 (1970). The district court correctly refused to receive the two versions of the report into evidence in the absence of a showing that they fit within the hearsay within hearsay exception.

CONCLUSION

The district court properly exercised its discretion in excluding the sentencing transcript. The investigation reports contained multiple hearsay. These reports were thus properly excluded from Olivier’s trial. The judgment is affirmed.

1

. Cruz’ Criminal Justice Act appellate counsel filed an Anders brief, requesting to be excused from this appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Cruz moved to withdraw this Anders brief and for an adjournment of his appeal while he obtained new counsel. Upon the filing of the Anders brief, the government moved for a summary affirmance of the conviction. We granted counsel's request to withdraw and Cruz’ request for an adjournment, and we denied the government’s motion for summary affirmance of the conviction.