Several exceptions exist to the rule enunciated in Brown. We distinguished Brown in United States v. Benson, 495 F.2d 475, 478-79 (5th Cir.), cert. denied, 419 U.S. 1035, 95 S. Ct. 519, 42 L. Ed. 2d 310 (1974), where the trial court allowed an F.B.I. agent's written summary of the defendant's post-arrest statement to be sent to the jury room. We distinguished Brown, first, because Brown concerned a violation of the hearsay rule, whereas in Benson the written summary constituted the defendant's own statement. Second, in Benson, the document was received into evidence and delivered to the jury only because defense counsel used it extensively in his cross-examination of the F.B.I. agent. See id. at 478-79. See also United States v. Brantley, 733 F.2d 1429, 1438 (11th Cir.1984), cert. denied, 470 U.S. 1006, 105 S. Ct. 1362, 84 L. Ed. 2d 383 (1985) (rule of Brown inapplicable where statement was not hearsay).

The Eighth Circuit similarly distinguished Brown and Ware where the district court permitted the submission to the jury of an agent-written memorandum on an envelope containing heroin where the defendant had challenged vigorously the proper handling of the exhibit, the chain of custody, and the written entries thereon. See United States v. Parker, 491 F.2d 517, 522-23 (8th Cir.1973). The court held that the one hearsay statement in the memorandum was merely cumulative, id., and noted that where chain of custody is not an issue, "the sending of such exhibits to the jury may well be found to be error[,]" id. at n. 6. See also United States v. Coleman, 631 F.2d 908, (D.C.Cir.1980) (not improper to submit to the jury an agent's "skeletal" notes on envelope of drugs prepared not solely for litigation but also to preserve record of chain of custody).

The question then is whether the instant case falls under the rule of Ware and Brown or under one of the exceptions. Because, as is explained infra, Officer Chason's report was inadmissible hearsay, was not used extensively on cross-examination, and no challenge was made to the accuracy of the report or the chain of custody of any evidence, the rule of Brown controls this case.

The Admissibility of the Report under Fed.R.Evid. 801(d)(1)(B)

It is undisputed that Chason's report constitutes inadmissible hearsay unless one of the exclusions or exceptions to the hearsay rule permitted its admission.5 The government contends the exclusion of Fed.R.Evid. 801(d)(1)(B) made the report admissible because Pendas's counsel's cross-examination of Officer Chason included an implied charge that Chason fabricated the discovery of marijuana seeds on the appellants' boat to strengthen the government's case. A thorough review of the record, however, demonstrates that Pendas's counsel made no such charge, and that even if the record could be so construed, the report contained additional levels of hearsay which rendered it inadmissible. Rule 801(d)(1)(B) provides as follows:

(d) Statements which are not hearsay. A statement is not hearsay if--

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is ... (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive....

Fed.R.Evid. 801(d)(1)(B).

Pendas's counsel examined Chason about the discovery of the seeds, the alleged field-test of the seeds, and their subsequent, pre-trial destruction. The thrust of the examination focussed on the absence of any residue, dust, or other evidence on the boat that would have indicated the recent presence of 15 bales of marijuana. The examination with regard to the discovery of the seeds focussed on the possibility that the seeds, found under the ripped-out seat cushion of the forward cabin, could have been there when Pendas purchased the boat one week earlier. Counsel argued that those seeds may have had no connection to the bales of marijuana found in the ocean, but that the destruction of the seeds prevented proof of their relationship to the bales. This cross-examination did not include a charge of recent fabrication of the discovery of the seeds.6

Even if the cross-examination could be so construed, Rule 801(d)(1)(B) would not make the report admissible because of the presence of additional levels of hearsay. Rule 805 of the Federal Rules of Evidence provides that "[h]earsay within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules." See Southern Stone Co. v. Singer, 665 F.2d 698, 703 (5th Cir. Unit B Jan. 1982) (even if one level of double-hearsay statement was not hearsay under Rule 801(d)(1)(B), second level of hearsay was not excepted from hearsay rule and document was inadmissible); accord, United States v. Dotson, 821 F.2d 1034, 1035 (5th Cir.1987).

Here Chason's report contained numerous examples of hearsay within hearsay:

I was informed that Matagorda was chasing a high speed unlighted radar contact ... GM3 Swikehardt observed the 2 persons on board one to two minutes after observing the POB, GM3 Swikehardt reported they were tossing objects overboard.... I was advised by C.G. Matagorda that the helicopter and CGC Cape Gull had located numerous bales in the approximate location the VSC was observed tossing packages overboard....7

When the district court overruled defense counsel's objections to admission of the report, defense counsel requested that the additional levels of hearsay be redacted from the report. The district court, however, refused this request.

Because the hearsay statements within the report have not been shown to be admissible under any of the exceptions to the hearsay rule, the unredacted document was inadmissible. Rule 801(d)(1)(B) thus provides no exception to the principle enunciated in Brown.

The Admissibility of the Report Under Rule 106

The government contends that if the report was improperly admitted under Rule 801, it was admissible under the completeness doctrine which informs Rule 106 of the Federal Rules of Evidence. The government asserts that defense counsel read from the report and used it extensively on cross-examination such that it was essentially introduced into evidence. Fairness thus required introduction of the entire document. This argument is without merit. Rule 106 provides as follows:

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

Fed.R.Evid. 106. The rule is an expression of the doctrine of completeness. See Advisory Committee note, following Rule 106, citing McCormick, Handbook of the Law of Evidence, Sec. 56 (2d Ed.1972). The rule is based on two considerations: First is the misleading impression created by taking matters out of context; second, the inadequacy of repair work when delayed to a point later in the trial. Id., citing McCormick at Sec. 56; see also United States v. Soures, 736 F.2d 87, 91 (3rd Cir.1984) cert. denied, 469 U.S. 1161, 105 S. Ct. 914, 83 L. Ed. 2d 927 (1985).

"Technically, Rule 106 is limited in its application to instances when a party introduces a writing or recorded statement into evidence." Rainey v. Beech Aircraft Corp. 784 F.2d at 1529 n. 11.8 In Rainey, however, we held that the rule required that the plaintiff be permitted to introduce the remainder of a letter after defense counsel cross-examined the plaintiff about isolated statements in the letter that tended to support the defendant's theory of the case. The remainder of the letter would have explained the misleading impression created by the isolated statements taken out of context. We held that the defendant's cross-examination was "tantamount to the introduction of the letter into evidence," id. at 1529 n. 11, and that the concerns of Rule 106--fairness and completeness--required permitting the plaintiff to testify as to the remainder of the letter, id. at 1529-30. See also United States v. Rubin, 609 F.2d 51, 63 (2d Cir.1979), aff'd, 449 U.S. 424, 101 S. Ct. 698, 66 L. Ed. 2d 633 (1981) (no error to admit document which defense counsel used extensively and quoted from copiously on cross-examination and where defense counsel himself revealed the portion later claimed to be prejudicial).9

Once a part of a document can be said to have been introduced, Rule 106 does not automatically make the entire document admissible. While there are conflicting Circuit Court decisions on whether the rule makes admissible parts of a document that otherwise would be inadmissible under the Rules of Evidence,10 it is consistently held that the rule permits introduction only of additional material that is relevant and is necessary to qualify, explain, or place into context the portion already introduced. See United States v. Sweiss, 814 F.2d 1208, 1211 (7th Cir.1987); United States v. Sutton, 801 F.2d 1346, 1369 (D.C.Cir.1986); United States v. Smith, 794 F.2d 1333, 1335 (8th Cir.), cert. denied, --- U.S. ----, 107 S. Ct. 419, 93 L. Ed. 2d 370 (1986); United States v. Dorrell, 758 F.2d 427, 434-35 (9th Cir.1985); United States v. Soures, 736 F.2d 87, 91 (3d Cir.1984), cert. denied, 469 U.S. 1161, 105 S. Ct. 914, 83 L. Ed. 2d 927 (1985); United States v. Crosby, 713 F.2d 1066, 1074 (5th Cir.), cert. denied, 464 U.S. 1001, 104 S. Ct. 506, 78 L. Ed. 2d 696 (1983); United States v. Costner, 684 F.2d 370, 373 (6th Cir.1982); United States v. Marin, 669 F.2d 73, 82-83 (2d Cir.1982).

In the instant case, counsel for Pendas used the report in his cross-examination of Chason. He did not, however, read from the report to suggest that Chason's testimony was inconsistent with the report or otherwise attack Chason's credibility with the report. At one point counsel inadvertently began to read from the report when questioning Chason about the testing of the seeds:

Q. And there is no record of the test?

A. I believe there is a record of it in my statement, isn't there?

Q. You referred to several seeds in the vicinity of the starboard--strike that. What I am referring to is any record of what precise test was conducted.

A. Oh, no, sir. You mean the type of test?

Q. Right. In other words, somebody put in a report somewhere a field-test was conducted?

A thorough review of the cross-examination reveals that neither this reading nor the general use of the report was so extensive as to be tantamount to introduction of the report into evidence. In Rainey, isolated sentences were read out of context which tended to create a misleading impression of the whole. Here defense counsel made no such use of Chason's report such that fairness required admission of the entire document.

The government fails to point to any specific portion of the report introduced by defense counsel for which the remainder was relevant and necessary to harmonize the introduced portion. Defense counsel's inadvertent reading the portion about the testing of the seeds did not make the entire report admissible. The report itself makes brief mention of the testing of the seeds, and the great majority of it was irrelevant to the issue. Because the report contained extensive material that had no relevance to any parts purportedly admitted, it was error to admit the entire unredacted report. Rule 106 did not permit its introduction. Because neither Rule 801(d)(1)(B) nor Rule 106 made the report admissible, and the government has demonstrated no other basis for its admissibility, the rule of Brown controls the issue and mandates reversal.

The strength of the evidence against the appellants at their trial ordinarily would militate in favor of a conclusion that the improper admission was harmless. Brown, however, makes clear that where the jury is given such a "neat condensation of the government's whole case" against the defendants, such that "the government's witnesses in effect accompanied the jury to the jury room," the error is not harmless even though "there was overwhelming evidence properly received on the defendant's guilt." Brown, 451 F.2d at 1234.

Accordingly, we REVERSE the convictions of the appellants and REMAND for a new trial.