U.S. v. Lord, s. 89-1252

• Decision Date: 11 July 1990
• Docket Number: 89-1256,Nos. 89-1252,s. 89-1252
• Citation: 907 F.2d 1028
• Parties: 30 Fed. R. Evid. Serv. 803 UNITED STATES of America, Plaintiff-Appellee, v. Nicholas D. LORD; Anthony Tiano, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1028

907 F.2d 1028

30 Fed. R. Evid. Serv. 803

UNITED STATES of America, Plaintiff-Appellee, v. Nicholas D. LORD; Anthony Tiano, Defendants-Appellants.

Nos. 89-1252, 89-1256.

United States Court of Appeals, Tenth Circuit.

July 11, 1990.

Michael G. Katz, Federal Public Defender, and Susan L. Foreman, Asst. Federal Public Defender, Denver, Colo., for defendants-appellants.

Michael J. Norton, U.S. Atty., and Linda Kaufman, Asst. U.S. Atty., Denver, Colo., for plaintiff-appellee.

Before ANDERSON, BARRETT, and BALDOCK, Circuit Judges.

PER CURIAM.

Defendants Anthony Tiano and Nicholas Lord appeal their criminal convictions on twelve counts of wire fraud, in violation of 18 U.S.C. Sec. 1343 (1982). ¹ Defendants were convicted, after a jury trial, for their involvement in a fraudulent telemarketing scheme. The district court sentenced both defendants, pursuant to the United States Sentencing Guidelines, to twelve months' incarceration.

On appeal, both defendants assert the following arguments: 1) the evidence was insufficient to convict them of the crimes charged; 2) the trial court erred by admitting evidence of the truthful character of three government witnesses; and 3) the trial court denied defendants equal protection of the laws by refusing to credit their sentences for time spent in a halfway house as a condition of their release on bond. Defendant Lord asserts a fourth argument: the trial court erred in determining defendant Lord was not entitled to a two-level downward adjustment, under the sentencing guidelines, for being a minor participant in the fraudulent scheme.

In order to obtain a conviction for wire fraud under 18 U.S.C. Sec. 1343, the government must establish 1) an interstate transmission by means of wire, 2) for purposes of executing a scheme or artifice to defraud. See United States v. Mann, 884 F.2d 532, 536 (10th Cir.1989). Upon careful review of the record, and considering both direct and circumstantial evidence and the inferences that can be drawn therefrom in the light most favorable to the government, see id. at 534-35, we determine sufficient evidence existed to support the convictions of both Mr. Tiano and Mr. Lord for wire fraud.

Defendants next argue that the trial court erred in admitting evidence of the truthful character of three of the government's witnesses before the witnesses' credibility had been challenged, contrary to Fed.R.Evid. 608(a)(2). Rule 608(a)(2) provides that "evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked." On direct examination of each of these three witnesses, the government elicited testimony concerning the existence of plea and cooperation agreements between these witnesses and the government. The witnesses further testified concerning the provisions of these agreements requiring them to testify truthfully and subjecting these witnesses to prosecution for perjury if their testimony was untruthful.

Because defendants did not raise an objection at trial to the admission of this evidence, we will not disturb the defendants' convictions absent a showing of plain error. Fed.R.Crim.P. 52(b); see also United States v. Young, 470 U.S. 1, 14-16, 105 S.Ct. 1038, 1045-47, 84 L.Ed.2d 1 (1985). Before determining whether plain error existed, however, we must first determine whether the trial court committed any error. See Young, 470 U.S. at 14, 105 S.Ct. at 1045-46 (after determining error was committed, Court then addressed whether the error amounted to plain error, justifying reversal); cf. United States v. Martinez, 890 F.2d 1088, 1094 (10th Cir.1989) (court first determined whether alleged prosecutorial misconduct was error, before deciding whether error was harmless), cert. denied, --- U.S. ----, 110 S.Ct. 1532, 108 L.Ed.2d 771 (1990).

The circuit courts are divided on the issue of when the government may present evidence of the truthfulness provisions of a witness's plea or cooperation agreement with the government. The majority of circuits allow the government to admit evidence of the truthfulness provisions of an agreement on direct examination of a witness, prior to any challenge to the witness's credibility. See United States v. Drews, 877 F.2d 10, 12 (8th Cir.1989); United States v. Edelman, 873 F.2d 791, 795 (5th Cir.1989); United States v. Mealy, 851 F.2d 890, 898-900 (7th Cir.1988); United States v. Townsend, 796 F.2d 158, 162-63 (6th Cir.1986); United States v. Oxman, 740 F.2d 1298, 1302-03 (3d Cir.1984), vacated and remanded on other grounds sub nom. United States v. Pflaumer, 473 U.S. 922, 105 S.Ct. 3550, 87 L.Ed.2d 673 (1985); United States v. McNeill, 728 F.2d 5, 14 (1st Cir.1984); United States v. Henderson, 717 F.2d 135, 137-38 (4th Cir.1983); cf. United States v. Sobamowo, 892 F.2d 90, 95 n. 3 (D.C.Cir.1989) (witness's testimony that he was ordered by the court to offer his full cooperation as part of a plea bargain did not serve to impermissibly bolster the witness's testimony), petition for cert. filed, No. 89-6943 (Mar. 16, 1990). These courts have noted that evidence concerning a plea agreement and its provisions may have both a bolstering and an impeaching effect on the witness's credibility. See, e.g., Drews, 877 F.2d at 12; Townsend, 796 F.2d at 163; McNeill, 728 F.2d at 14; see also United States v. Bowie, 892 F.2d 1494, 1499 (10th Cir.1990). Further, introduction of this evidence enables the jury to more accurately assess the witness's credibility, see Sobamowo, 892 F.2d at 95 n. 3; Drews, 877 F.2d at 12; Mealy, 851 F.2d at 899; Townsend, 796 F.2d at 163, regardless of whether the defense intends to use the agreement to impeach the witness's testimony, see McNeill, 728 F.2d at 14; Henderson, 717 F.2d at 138.

The Second Circuit, however, has held that, while the government may present evidence of the existence of an agreement and the witness's understanding of that agreement prior to any challenge to the witness's credibility, it is error for the government to introduce evidence of the agreement's truthfulness requirements prior to a challenge to the witness's credibility. See United States v. Cosentino, 844 F.2d 30, 32-35 (2d Cir.), cert. denied, 488 U.S. 923, 109 S.Ct. 303, 102 L.Ed.2d 322 (1988). The Eleventh Circuit also prohibits introduction of the truthfulness provisions of an agreement until the defense challenges the witness's credibility. See United States v. Cruz, 805 F.2d 1464, 1479-80 (11th Cir.1986), cert. denied, 481 U.S. 1006, 107 S.Ct. 1631, 95 L.Ed.2d 204 and 482 U.S. 930, 107 S.Ct. 3215, 96 L.Ed.2d 702 (1987). ²

The Second Circuit has determined that the existence of an agreement impeaches, rather than bolsters, the witness's credibility and has further determined that it is necessary to allow the government to establish the existence of an agreement between the government and the witness on direct examination, in order to prevent the jury from improperly inferring, when the agreement is brought up on cross-examination, that the government has tried to conceal that fact. See, e.g., Cosentino, 844 F.2d at 33. Admission of the entire plea agreement or evidence concerning the truthfulness provisions included in the agreement, however, tends to bolster, rather than impeach, the witness's credibility and, therefore, is not properly admitted into evidence until the defense has challenged the witness's credibility. See id. The Second Circuit, however, has acknowledged difficulties created by its procedure for admitting evidence concerning the provisions of an agreement. See id. at 33 n. 1 (noting that other circuits do not distinguish between the bolstering and impeaching provisions of a plea or cooperation agreement in admitting evidence of the agreement and its provisions, the Second Circuit stated that "[w]ere we writing on a blank slate, we might have followed the other circuits that avoid the distinctions we have required judges and lawyers to make during the heat of trial").

In light of the dual nature of a plea or cooperation agreement in both impeaching and bolstering the credibility of a witness, see Bowie, 892 F.2d at 1499, and the difficulties noted by the Second Circuit in drawing fine distinctions between which provisions of an agreement are bolstering and which are impeaching, see Cosentino, 844 F.2d at 33 n. 1, we adopt the reasoning of the majority of circuits addressing this issue and hold that it was not error for the trial...