U.S. v. Skelton

• Decision Date: 17 January 2008
• Docket Number: No. 06-51528.,06-51528.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John C. SKELTON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

514 F.3d 433

UNITED STATES of America, Plaintiff-Appellee, v. John C. SKELTON, Defendant-Appellant.

No. 06-51528.

United States Court of Appeals, Fifth Circuit.

January 17, 2008.

Mara A. Blatt (argued), Joseph H. Gay, Jr., Asst. U.S. Atty., San Antonio, TX, for U.S.

David L. Botsford (argued), Law Office of David L. Botsford, Austin, TX, for Skelton.

Appeal from the United States District Court for the Western District of Texas.

Before KING, BARKSDALE and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

The primary issue in this criminal case is whether the district court's limitations on cross-examination violated the defendant's Sixth Amendment confrontation right and right to present a complete defense. After careful review of the district court's evidentiary rulings, we affirm the defendant's conviction.

I. BACKGROUND

John C. Skelton, Defendant, was indicted on one count for violating 18 U.S.C. § 875(b).¹ According to the trial testimony sometime prior to February 24, 2006, Skelton called Terry Jacobs and had a short conversation regarding Slim Gabrel. Skelton hung up the phone because of a poor connection. On February 24, 2006, Skelton again called Jacobs. Skelton confirmed that he had called before and stated that "Slim Gabrel wants his money. He said you [Jacobs] stole your partner's money and didn't pay his life insurance. And Slim is going to get a percentage of that, what you stole." Jacobs stated that he did not steal anything and that he did not even know a Slim Gabrel. Skelton responded that he had seen the books, that Jacobs had indeed stolen money, and that although Slim Gabrel used to be a sheriff, he was now head of the West Texas Mafia. Jacobs stated that he did not know what Skelton was talking about to which Skelton responded that if he did not get the money, Jacobs would be murdered. Skelton explained that he had connections with the Ector County and Midland County Sheriffs Offices and that "[t]he way it's going to happen is, you're going to get stopped by a county patrol unit . . . and they're going to arrest you, put handcuffs on you, put you in the back seat, take you out in the country and shoot you in the head." Skelton also stated that "Slim wanted . . . me to go ahead and just kill you and collect the money from your wife . . . I don't think I'll do that . . . I'll just collect it from you, but I think it would be easier to collect it from your wife." Skelton instructed Jacobs to obtain two cashiers checks, one for $250,000 and the other for $50,000. The conversation ended with Skelton telling Jacobs that he would be in touch.

During the conversation, Jacobs was sitting next to his coworker, Victor Lujan, in an office building in Midland, Texas—Skelton made the call from Arkansas. Lujan testified that during the conversation, Jacobs suddenly started shaking, his breathing patterns changed, and he became very nervous. At some point, Jacobs handed the phone to Lujan, who testified that he heard the caller state that if Jacobs "didn't pay the money a city cop was actually going to pull him over [and] was going to handcuff him and shoot him."

On February 27 or 28, 2006, Jacobs spoke with Special Agent Dina Morales, who filled out a complaint reflecting that Jacobs had received a threatening phone call. She referred the case over to Texas Ranger Jess Malone. Malone and Morales ascertained the identity of the caller to be Skelton through phone records.² They met with Jacobs on March 3, 2006 and advised him to obtain a recording device in the event that Skelton called again. They also asked Jacobs if he suspected a motive for the calls. Jacobs explained that he had once worked for a company called Jolt Corporation ("Jolt"), which was formed in the early 1990's to purchase two companies, Hardrock (d/b/a MidTexas Construction) and Midwest Equipment. Jacobs was vice-president of Jolt, which eventually dissolved in 1999. He denied stealing money from the company but indicated that Jolt had failed to make payments on a life insurance policy on one of its co-owners, Don Towery, who died in 1999.³ He believed that these were the events referred to by Skelton during their phone conversation.

On March 10, 2006, Skelton again called Jacobs and demanded he pay back the life insurance money. When Jacobs informed him that he did not have that kind of money, Skelton responded that there would be trouble. Skelton also stated, "And you're either gonna give that money back or I'm gonna deal with your ass, boy." During the call, Skelton indicated that he was aware that Jacobs maintained a double set of books, that he had stolen the insurance premiums when Towery was dying of cancer, and that he would "call the income tax people showing you [Jacobs] stole the federal FICA." At that point, Jacobs hung up the phone, indicating on his recording device that he was nervous. During the next few weeks, Jacobs called Skelton—at the urging of Morales and Malone—in an attempt to get Skelton to threaten him again. However, Skelton made no further threats. He did at one point explain that he never wanted the money for himself; he only wanted Skelton to repay the previous co-owners of Jolt.

At trial, the district court did not permit defense counsel to ask Jacobs on cross-examination if he was only testifying to win favor with the Government in the event that the IRS investigates Jolt's financial books. The district court also denied Skelton's request to present extrinsic evidence that Jacobs was lying about stealing money from Jolt. However, the district court did allow some cross-examination regarding Jacobs prior dealings with Jolt. To that end, Jacobs testified that Towery's life insurance policy had lapsed because Jolt did not pay the premiums. He also testified that one of the companies owned by Jolt suffered a financial decline because Joe Moscarro, another co-owner, stole money from the company.⁴ Defense counsel also asked Jacobs, "Isn't it a fact that you hung up within a second of [Skelton] mentioning the federal FICA so that the agents that were going to hear this tape wouldn't learn about that?" Jacobs responded, "No." He also denied that the "reason that [he] sounded more nervous at that time is because of this reference to FICA."

After the Government rested, Skelton moved for judgment of acquittal. The district court denied the motion. Skelton then called eight witnesses—Shane Towery, Mary Ann Stephens, Sharon Miller, Tina Kennedy, Mildred Lipham, Johnny Oldham, Beverly Brock, and Lance Hall— all of whom either worked for or were somehow associated with companies owned by Jolt. Each testified that Jacobs was not a truthful person and had the reputation for being untruthful. The district court did not permit these witnesses to testify about the allegations that Jacobs stole funds from Jolt and lied to the IRS.

During a break in the testimony, the parties presented arguments regarding the admissibility of rebuttal character testimony regarding Jacobs. Skelton maintained that he was entitled to ask the Government's rebuttal character witnesses "did you know" or "have you heard" questions involving specific alleged acts of dishonesty. The district court agreed that Skelton was entitled to ask such questions as; "Did you know Lance Hall, who was the brother-in-law of Shane Towery and the son-in-law of Mr. Towery, had an opinion that he thinks' [Jacobs] wasn't truthful," but that Skelton was not entitled to pose such questions as: "Do you know or have you heard that Sharon Miller, who worked for Mr. Jacobs, showed Shane Towery a double set of books that had been maintained by Mr. Jacobs." Skelton argued that prohibiting him from asking such "did you know" or "have you heard" questions violated his confrontation right. The district court responded that it was following Rules 404, 405, and 608 of the Federal Rules of Evidence meticulously and overruled the objections. The Government proceeded to call five rebuttal witnesses— Beau Estes, Jeff Neely, Mark Bergen, Stephen Castle, and Butch Willis—all of whom testified that they knew Jacobs and that he was a truthful person. Skelton was not permitted on cross-examination to ask "did you know" or "have you heard" questions regarding specific alleged, acts of dishonesty.

After the defense and the Government rested, Skelton renewed his motion for judgment of acquittal. The district court denied the motion. After two hours of deliberation, the jury sent the following note to the district court: "According to 18, U.S.C. Section 875(b), does `threat to injure a person' mean we have to believe beyond a reasonable doubt that there was a threat to shoot or physical injury in general?" The district court heard arguments on the issue. The Government argued that the district court should simply refer the jury to the instructions concerning the elements of the offense. Skelton argued that the district court should give the jury a specific instruction that the Government had to prove beyond a reasonable doubt that there was a threat to shoot Jacobs. The district court submitted the following response, "In response to Jury Note 1, you are referred back to the Court's Instructions to the Jury." The jury returned a verdict of guilty and Skelton was sentenced to 50 months imprisonment, three years of supervised release, and a $5,000 fine. He filed a timely notice of appeal.

II. STANDARDS OF REVIEW

We review alleged violations of a defendant's Sixth Amendment confrontation right de novo. United States v. Bell, 367 F.3d 452, 465 (5th Cir.2004). We also review alleged violations of a defendant's Sixth Amendment right to present a complete defense de novo. See United States v. Serrano, 406 F.3d 1208, 1214 (10th Cir. 2005) (citing United States v. Solomon, 399 F.3d 1231, 1239 (10th Cir.2005)); see also United States v. Soape, 169 F.3d 257, 270 (5th Cir.1999) ("We review . . . constitutional questions de novo."). Such claims, however, are subject to harmless error...