U.S. v. Mizell

Citation88 F.3d 288
Decision Date01 July 1996
Docket NumberNo. 95-10593,95-10593
Parties44 Fed. R. Evid. Serv. 1396 UNITED STATES of America, Plaintiff-Appellee, v. Cynthia MIZELL, also known as Cynthia L. Walker, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Christopher Allen Curtis, Assistant U.S. Attorney, Fort Worth, TX, for U.S.

Frank D. McCown, Fort Worth, TX, Davis Gray McCown, Fort Worth, TX, for Cynthia Mizell.

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

Before KING, DAVIS and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Cynthia Mizell appeals her convictions for conspiracy to commit robbery affecting interstate commerce and robbery affecting interstate commerce, in violation of 18 U.S.C. § 1951. Finding no reversible error, we affirm.

I

Mizell, John Walker, and Kevin Turnage drove to the Armored Transport Company ("ATC") in Fort Worth, Texas, and Walker robbed two armored car guards at gunpoint, stealing more than $400,000. As a result of these events, Turnage pleaded guilty to misprision of a felony in exchange for his cooperation with the government's prosecution of Mizell. 1 Mizell was charged by indictment with conspiracy to commit robbery affecting interstate commerce and robbery affecting interstate commerce. The government then filed a superseding information, charging Mizell with misprision of a felony, in violation of 18 U.S.C. § 4.

Mizell agreed to waive indictment on the superseding information and pleaded guilty to the misprision of a felony charge in exchange for the government's agreement to dismiss the indictment containing the robbery charges. Pursuant to her guilty plea, Mizell stipulated that she conspired with Walker and others to commit robbery and that she actually participated with Walker and others in committing robbery of the armored car guards. At Mizell's plea agreement hearing, the district court rejected the plea agreement based upon its finding, as required by § 6B1.2(a) of the sentencing guidelines, 2 that the misprision charge did not adequately reflect the seriousness of Mizell's actual offense behavior. Consequently, Mizell withdrew her guilty plea, and both the superseding information and the original indictment were set for trial.

Before the trial began, the district court gave Mizell an opportunity to ask that the information charging the misprision offense be dismissed. Mizell rejected this suggestion and stated that she wanted to leave the information pending, so the case would be tried to the jury on both counts of the indictment as well as the lesser count in the information. The jury returned guilty verdicts on the information and on both counts of the indictment.

Mizell appealed her convictions. This Court affirmed Mizell's conviction for misprision, but reversed and remanded her conspiracy and robbery convictions for a new trial. United States v. Mizell, No. 93-1512, 38 F.3d 570 (5th Cir. Oct. 13, 1994). A second jury convicted Mizell of conspiracy and robbery affecting interstate commerce. Mizell now appeals these convictions, arguing several points of error, each designed to demonstrate that she was denied a fair trial.

II

Mizell argues that the district court violated her Sixth Amendment right to present witnesses on her own behalf by not allowing her to elicit certain testimony from a prosecution witness. The government contends that the district court's actions constituted a proper limitation of Mizell's right to cross-examine the witness.

Kevin Turnage testified at trial as a witness for the prosecution. He testified about his involvement in the robbery, the roles that the other participants played, and his plea agreement with the government. As to Mizell, Turnage testified that she drove the car to the scene of the robbery, and that she participated in counting the money after the robbery. In contrast, Mizell testified that she did not drive the car to the scene of the robbery, that she had no prior knowledge that a robbery was going to take place when they drove to the ATC, and that she did not help count the money after the robbery. Mizell's attorney, Frank McCown, cross-examined Turnage concerning the events surrounding the robbery, his plea agreement with the government, dishonest statements that he had given the FBI, and his drinking problem and how it affected his memory of the robbery.

McCown then attempted to question Turnage about the FBI approaching him after receiving Mizell's account of the robbery, which contradicted what Turnage had told them earlier. The district court admonished McCown to stay within the scope of direct examination. 3 McCown then informed the district court that "probably everything else" he had to ask Turnage was outside the scope of the direct examination and requested that Turnage be recalled during the defense's case-in-chief. The district court denied the request because Mizell had not listed Turnage on her witness list, as required by the local discovery rules. 4

At the end of trial, McCown made a proffer of the evidence that he wanted to establish through additional examination of Turnage. McCown wanted to ask Turnage about inconsistent statements that he had made to the FBI about Mizell's and his own involvement in the robbery and whether implicating Mizell in the robbery was Turnage's only chance for leniency with the government. In addition, McCown wanted to establish that John Walker had made various threats against Turnage and his family in the event that Turnage implicated Walker in the robbery. These threats, Mizell argues, would indicate that Walker was a violent man. Mizell argues further that this testimony would add credence to Mizell's claim that she feared Walker and therefore was afraid to report the robbery after it occurred. 5

A

McCown told the district court that he did not list Turnage on his witness list because he assumed that he would be able to inquire into the proffered issues on cross-examination. A district court has broad discretion to reasonably restrict cross-examination; however, this discretion is limited by the Sixth Amendment. United States v. Cooks, 52 F.3d 101, 103 (5th Cir.1995). "Cross-examination to expose a witness'[s] motive for testifying is always relevant as discrediting the witness and affecting the weight of his testimony, and is especially important with respect to witnesses who may have substantial reason to cooperate with the government." Id. at 103-04 (citation omitted). This right is particularly important when the witness is critical to the prosecution's case. Id. at 104. A "criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby to expose to the jury the facts from which jurors ... could appropriately draw inferences relating to the reliability of the witness." Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 1436, 89 L.Ed.2d 674 (1986) (citation omitted); cf. Cooks, 52 F.3d at 104 ("The constitutional right is not violated, however, if the jury ha[s] sufficient information to appraise the bias and motives of the witness.").

We find that McCown's questions concerning inconsistent statements that Turnage had made to the FBI and Turnage's motive for implicating Mizell were probative of Turnage's credibility and were therefore proper subjects on cross-examination. See FED.R.EVID. 611(b) ("Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness."). Turnage was the prosecution's sole witness as to Mizell's direct involvement in the robbery; none of the other robbery participants testified at Mizell's trial. Therefore, only Turnage could directly contradict Mizell's own testimony that she did not drive the car to the scene of the robbery and that she did not know that a robbery was about to take place when she went in the car with John Walker and Turnage. 6 Certainly, an earlier statement by Turnage to the FBI that he "believed," but did not know, that Mizell drove the car to the ATC would have been probative of his credibility and his ability to remember Mizell's role in the crime. In addition, if implicating Mizell in the robbery was Turnage's only opportunity for leniency, this fact could also affect his credibility. By not allowing Mizell to impeach Turnage's credibility with this evidence, the district court restricted Mizell's cross-examination of Turnage.

However, such restriction does not rise to the level of a Sixth Amendment violation unless such restriction was unreasonable. Cooks, 52 F.3d at 103. In order to determine whether a district court's restriction of cross-examination is reasonable, we must assess whether the jury was given adequate information to appraise the bias and motives of the witness. Id. The district court allowed McCown to ask several questions concerning Turnage's inconsistent statements to the FBI and his motive to testify against Mizell. On cross-examination, Turnage admitted that in his first statement to the FBI, he lied about Mizell's involvement in the robbery. McCown was also able to ask Turnage whether he had initially told the FBI that he and Walker had discussed committing the robbery several days before they actually did commit the crime. Turnage denied making this statement to the FBI. The statement would have contradicted his testimony at trial that he did not know that they were going to commit a robbery until he was already in the car on the way to the ATC. The prosecution also elicited testimony from Turnage concerning inconsistent statements he had given the FBI. On direct examination, Turnage admitted that when he first spoke with the FBI, he stated that he did not drive the car, contrary to Turnage's testimony at trial that he drove the car away from the robbery. Turnage also...

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