## Facts

- Barry Kendall Hogan and Mark Bradford Hogan were convicted of marijuana importation and conspiracy to import and possess marijuana with intent to distribute.
- The prosecution’s theory was that the Hogans used Barry Hogan’s airplane to facilitate a marijuana smuggling operation from Mexico into Texas.
- Mark Carpenter, the airplane’s pilot, was arrested in Mexico after landing at a remote airstrip; authorities discovered cash on the plane and a nearby truck containing a large quantity of marijuana.
- Shortly after his arrest, Carpenter gave out-of-court statements to Mexican and U.S. agents implicating himself and the Hogans in the conspiracy.
- After later returning to the United States, Carpenter testified under oath in related proceedings that there was no conspiracy and that his earlier inculpatory statements were fabricated due to torture; he faced a pending perjury charge based on this reversal.
- Before trial, the defendants sought to limit Carpenter’s testimony; the district court denied the request.
- Despite knowing Carpenter would provide exculpatory testimony at trial, the government called him, eliciting denials of the conspiracy and claims of coercion.
- The government then introduced Carpenter’s prior inculpatory statements through impeachment by calling agents and other witnesses to recount the earlier out-of-court statements, placing the substance of those statements before the jury.

## Issues

1. Whether the government may call a witness it knows will not provide helpful substantive testimony, primarily to impeach the witness with prior inconsistent statements that are otherwise inadmissible hearsay.
2. Whether this use of impeachment unfairly circumvents the hearsay rule and warrants reversal of the convictions.

## Decision

- The Fifth Circuit reversed the convictions and remanded for a new trial.
- The court held the government improperly called Carpenter primarily to impeach him with otherwise inadmissible hearsay.
- The court concluded the tactic created a substantial risk that the jury would treat the impeachment material as substantive evidence on key elements of the offenses.
- The court found the error was not harmless because Carpenter’s alleged prior statements supplied central proof for the government’s case.
- Other appellate claims were rejected as non-dispositive and did not independently require reversal.

## Legal Principles

- Federal Rule of Evidence 607 permits a party to impeach its own witness, but impeachment may not be used as a subterfuge to place otherwise inadmissible hearsay before the jury.
- When the proponent knows in advance that its witness will not provide supportive substantive testimony, calling the witness primarily to introduce prior inconsistent statements through impeachment is improper.
- Prior inconsistent statements admitted only for impeachment do not become admissible for their truth merely because they are presented in impeachment form.
- Reversal is warranted when the improper impeachment likely influenced the verdict, especially where the impeaching hearsay supplies essential proof lacking in admissible form.

## Conclusion

The court ordered a new trial because the prosecution used impeachment as a vehicle to present critical hearsay to the jury after calling a witness it knew would exculpate the defendants, undermining the hearsay rules and the fairness of the trial.


United States v. Hogan, 763 F.2d 697 (5th Cir. 1985)