U.S. v. Reindeau

• Decision Date: 26 September 1991
• Docket Number: D,Nos. 645,863 and 672,s. 645
• Parties: 34 Fed. R. Evid. Serv. 249 UNITED STATES of America, Appellee, v. Paul J. REINDEAU, Steven Arthur Mitchell, Jr. and Billy Joe Kennedy, Defendants-Appellants. ockets 90-1460, 90-1461 and 90-1462.
• Court: U.S. Court of Appeals — Second Circuit

Page 32

947 F.2d 32

34 Fed. R. Evid. Serv. 249

UNITED STATES of America, Appellee, v. Paul J. REINDEAU, Steven Arthur Mitchell, Jr. and Billy Joe

Kennedy, Defendants-Appellants.

Nos. 645, 863 and 672, Dockets 90-1460, 90-1461 and 90-1462.

United States Court of Appeals, Second Circuit.

Argued Jan. 14, 1991.

Decided Aug. 19, 1991.

As Amended Sept. 26, 1991.

George J. Terwilliger, II, U.S. Atty., Burlington, Vermont (David V. Kirby, John P. Tavana, of counsel), for appellee.

Rubin, Rona, Kidney & Myer, Barre, Vt. (Richard I. Rubin, of counsel), for defendant-appellant Reindeau.

Abell, Kenlan, Schweiberg & Hall, P.C., Rutland, Vt. (Carolyn Browne Anderson, of counsel), for defendant-appellant Mitchell.

Harlow, Liccardi & Crawford, P.C., Rutland, Vt. (T. Lamar Enzor, of counsel), for defendant-appellant Kennedy.

Before OAKES, Chief Judge, WALKER, Circuit Judge and WEXLER, District Judge ^*.

WEXLER, District Judge.

Defendants Paul J. Reindeau ("Reindeau"), Steven Arthur Mitchell, Jr. ("Mitchell"), and Billy Joe Kennedy ("Kennedy") appeal from judgments entered in the United States District Court for the District of Vermont, after a jury trial before Lee P. Gagliardi, Judge, convicting them of: one count of possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d); one count, as against each, of knowingly and willfully making false declarations to a grand jury, in violation of 18 U.S.C. § 1623; and conspiring to make those false declarations, in violation of 18 U.S.C. § 371. On appeal, defendants argue, inter alia, that the trial court erred in refusing to allow them to cross-examine the government's expert witness concerning whether an explosive device involved was intentionally designed for use as a weapon. For the reasons stated below, we find merit in this contention and vacate the judgments of conviction for the counts involving possession of an unregistered firearm, and remand to the district court for a new trial. Finding no merit in defendants' other arguments, we affirm the convictions on the remaining counts.

BACKGROUND

On May 28, 1988, at approximately 2:30 a.m., on Berry Hill Road between the villages of Sheffield and Sutton, Vermont, an explosion was heard outside of a dairy farm owned by the Berry family. Following the explosion, according to the government's witnesses, a vehicle was seen traveling away from the farm. Police investigating the area detected and found tire spin marks, pieces of pipe, a piece of a burnt fuse, and pieces of maroon plastic, apparently of the type used on automobile interiors. On that same night, Reindeau was brought to a local hospital by Kennedy and Mitchell, having suffered serious injury to his hand, including the loss of portions of two fingers. Prior to and up through the trial, the factual circumstances surrounding the incident were disputed by defendants.

At trial, the government's case centered on the theory that the three defendants had traveled to the Berry Farm in a pickup truck with a small pipe bomb. The prosecution attempted to prove that defendants had planned to bomb the Berry Farm in retribution for the shooting of Kennedy four years earlier by the farm's owner, who had caught Kennedy stealing gasoline from the farm. With respect to the incident involving the explosion, the government theorized that the pipe bomb had exploded in Reindeau's hand as he prepared to throw it, causing his injury.

The defendants' explanation of the incident, as told to investigators and the grand jury, significantly differed from that of the government. According to defendants, on May 28, 1988, all three of them attended a party at the home of Randy Mitchell, defendant Mitchell's brother. At one point, Reindeau left the party. Sometime thereafter, defendants Mitchell and Kennedy left the party as well, in Randy Mitchell's pick-up truck. While travelling along a road which adjoined the Berry Farm, they noticed Reindeau seeking assistance. As they stopped to pick him up, they saw his injured hand and took him to the hospital for treatment. Reindeau had claimed that while passing along the farm, he noticed the device on the ground and decided to light the fuse, attributing the injury to a mishap. In fact, defendants' position was that the device in question was commonly used as a firecracker by farm boys in the area. Mitchell's counsel, in her opening statement at trial, went so far as to describe the device as a firecracker.

At trial, the government's proof included expert testimony regarding the explosion and the device which caused it. It is to be noted that, with respect to the count charging possession of an unregistered firearm, the relevant statute provides that "[i]t shall be unlawful for any person ... to receive or possess a firearm which is not registered to him...." 26 U.S.C. § 5861. For the purposes of this case, included within the category of firearms are "destructive devices," which are defined by the statute. See 26 U.S.C. § 5845(f) (" § 5845(f)"). It is therein provided that "[t]he term 'destructive On direct examination, the government's expert, Joseph Lund, an explosives enforcement officer with the Department of Treasury's Bureau of Alcohol, Tobacco and Firearms, testified that he believed the fragments of metal recovered from the scene were fragments of a pipe bomb. Moreover, Lund testified that a pipe bomb is an explosive device as defined by the statute, and that it has no "social, commercial or industrial applications." J.A. ¹ at 72. When the government asked Lund what a pipe bomb is designed for, the Court sustained a defense objection.

device' shall not include any device which is neither designed nor redesigned for use as a weapon...." Id.

On cross-examination, defendants sought to bring out the possibility that the device in question was of the type occasionally used as firecrackers in that region of Vermont. Given the fact that on direct examination the government's witness had testified that he believed the device was a pipe bomb with no purpose other than destruction, defendants attempted to challenge the expert's findings. In point of fact, the expert testified specifically that the device had "no legitimate use." J.A. at 72. Thus, defendants sought to determine whether the device in question could possibly have been designed as something other than a weapon, inasmuch as the statute provides that a destructive device "shall not include any device which is neither designed nor redesigned for use as a weapon." 26 U.S.C. § 5845(f).

However, when defendants questioned the expert witness on that point, the court curtailed the cross-examination. Throughout the cross-examination, the court sustained the government's objections to each attempt by defense counsel to raise the possibility that the device was of a design not covered by the statute. ² Following the cross-examination, and outside the presence of the jury, the Court entertained defendants' exceptions. At that time, defendants argued that it was for the jury to decide whether the device in question was a destructive device under the statute, and that the court had precluded any effective cross-examination of Lund. To that end, defendants noted that they specifically desired As noted above, the jury found each of the defendants guilty on all counts of the indictment. Reindeau and Mitchell both were sentenced to fifteen months incarceration on each count of conviction, to be served concurrently and followed by a term of two years supervised release. Kennedy was sentenced to twenty-one months incarceration on each count, to be served concurrently and followed by a term of two years supervised release. On appeal, defendants' contentions include: (1) that the government's evidence was insufficient to prove both a conspiracy to lie to the grand jury and that Kennedy and Mitchell aided and abetted the possession charge; (2) that the trial court erred in allowing evidence that Kennedy was previously shot by Raymond Berry; and (3) that the government's evidence was insufficient to prove that the destructive device was not registered to Reindeau, in violation of 26 U.S.C. § 5861(d). However, defendants' most compelling contention on appeal is that the trial court committed reversible error in restricting the cross-examination of the government's expert witness to bring out facts to support the defense theory under § 5845(f).

                to challenge the expert's determination that the device in question was in fact a destructive device under § 5845(f).   In response, the court noted that "[t]he question is not whether or not this was a firecracker.   The question's not [sic] whether this was a destructive device as defined under the statute.   The fact that you might make that error for other reasons to make bombs and other--all of that, that's not relevant to the issue in this case."   J.A. at 82
                

DISCUSSION

As this Court has noted, "[i]t is well established that the scope and extent of cross-examination are generally within the sound discretion of the trial court." United States v. Pedroza, 750 F.2d 187, 195 (2d Cir.1984) (citations omitted); United States v. Maldonado-Rivera, 922 F.2d 934, 955 (2d Cir.1990) (citations omitted). However, in Pedroza we cautioned that "[w]ide latitude should be allowed, ... when a government witness in a criminal case is being cross-examined by the defendant, ... and the trial judge's discretion 'cannot be expanded to justify a curtailment which keeps from the jury relevant and important facts bearing on the trustworthiness of crucial testimony....' " 750 F.2d at 195-96 (quoting Gordon v. United States, 344 U.S. 414, 423, 73 S.Ct. 369, 375, 97 L.Ed. 447 (1953)); see also Maldonado-Rivera, 922 F.2d at 955 (citations omitted) (noting that the basic purpose of the Confrontation Clause of the Sixth Amendment is to assure the opportunity for cross-examination). Nevertheless, a trial court's restriction of cross-examination should not be reversed...