## Facts

- A fishing vessel docked at Pier 3 in San Francisco Harbor carrying about 13,000 pounds of marijuana, transferred from the vessel *Panamco II* owned by Harold Speer.
- Alan James Dring had performed extensive repair and outfitting work on the *Panamco II* for Speer, without charge beyond travel expenses.
- Undercover customs agents observed an unidentified white male arrive in a blue pickup truck, communicate with eleven undocumented Mexican nationals in broken Spanish, and supervise transferring marijuana from the boat into a tractor-trailer.
- Agents stopped the tractor-trailer shortly after the unloading and arrested the driver and the eleven undocumented aliens; immigration authorities recorded identifying information and deported the aliens to Mexico.
- About twenty minutes later, agents located the blue pickup parked near Dring’s part-time residence at Pier 9; the engine was still warm, and registration records listed Dring as the owner.
- At trial, the prosecution presented eyewitness and circumstantial evidence placing Dring at the harbor; Dring asserted mistaken identity, offering an eyewitness and three alibi witnesses.
- The government rebutted the defense through cross-examination and contradiction evidence but did not introduce opinion or reputation testimony that Dring was untruthful and did not offer prior-misconduct or corruption evidence.

## Issues

1. Whether the defense could introduce opinion or reputation evidence of Dring’s truthful character under Federal Rule of Evidence 608(a) when the prosecution impeached him through inconsistency and contradiction but did not directly attack his character for truthfulness.
2. Whether admitting in-court identifications violated due process where witnesses had previously been shown only a single photograph of Dring.
3. Whether due process required dismissal because the government deported eleven undocumented alien eyewitnesses before the defense could interview them.

## Decision

- The Ninth Circuit affirmed the convictions.
- The district court properly excluded truthful-character evidence because ordinary impeachment by inconsistency or contradiction did not constitute an “attack” on Dring’s character for truthfulness under Rule 608(a).
- Although single-photo displays were suggestive, the in-court identifications were admissible because they were reliable under the totality of circumstances using the *Neil v. Biggers* factors.
- Deportation of the alien eyewitnesses did not violate due process because Dring failed to make a plausible showing that their testimony would have been material and favorable under *United States v. Valenzuela-Bernal*.

## Legal Principles

- Under FRE 608(a), a party may offer evidence supporting a witness’s truthful character only after the opponent attacks the witness’s character for truthfulness; impeachment by inconsistency, contradiction, or standard cross-examination alone does not automatically qualify as such an attack.
- A suggestive identification procedure (including a single-photograph display) does not require exclusion if, under the totality of circumstances, the identification is sufficiently reliable, assessed by factors such as opportunity to view, degree of attention, accuracy of description, certainty, and time between event and identification.
- A due process challenge based on deportation of potential witnesses requires a non-speculative, plausible showing that the lost testimony would be both material and favorable, and not merely cumulative; presence at the scene alone is insufficient.

## Conclusion

The Ninth Circuit upheld Dring’s drug-importation convictions, holding that routine impeachment did not permit bolstering with truthful-character evidence, the challenged identifications were reliable despite a suggestive photo procedure, and deportation of alien eyewitnesses did not warrant dismissal absent a concrete showing of material, favorable testimony.


United States v. Dring, 930 F.2d 687 (9th Cir. 1991)