U.S. v. Robinson

• Decision Date: 20 October 2009
• Docket Number: No. 08-3120.,08-3120.
• Citation: 583 F.3d 1265
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. David Earl ROBINSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

583 F.3d 1265

UNITED STATES of America, Plaintiff-Appellee, v. David Earl ROBINSON, Defendant-Appellant.

No. 08-3120.

United States Court of Appeals, Tenth Circuit.

October 20, 2009.

Ronald E. Wurtz, Assistant Federal Public Defender (David J. Phillips, Federal Public Defender, with him on the briefs), Topeka, KS, for Defendant-Appellant.

James A. Brown, Assistant United States Attorney (Marietta Parker, Acting United States Attorney, with him on the briefs), Topeka, KS, for Plaintiff-Appellee.

Before LUCERO, EBEL, and TYMKOVICH, Circuit Judges.

LUCERO, Circuit Judge.

David Earl Robinson was charged with being a felon in possession of a firearm after selling a gun to a confidential informant ("CI"). Six days before Robinson's trial, the government's star witness — the CI who purchased the gun from Robinson — was involuntarily committed to a mental health facility. The district court reviewed the CI's medical files in camera but refused defense counsel access to them. It also precluded defense counsel from asking the CI any questions about his mental health history or his use of prescription medications. Robinson was subsequently convicted of violating of 18 U.S.C. § § 922(g)(1) and 924(a)(2) and sentenced to 33 months' imprisonment.

We must decide if the district court's refusal to provide Robinson access to the CI's medical records contravened due process and whether the court's limitations on cross-examination of the CI violated the Sixth Amendment. We answer both questions in the affirmative.

Because of the restrictions imposed by the district court, the jury saw an incomplete and inaccurate picture of the CI's credibility. From the jury's perspective, the CI had only "a little bit" of a drug problem and was not "regularly" violating his agreement with the ATF by using drugs. By that version of events, the CI had largely reformed himself after becoming an ATF informant. Further, although the CI had trouble remembering various details about the events in question, he testified that the only reason for his memory loss was that two years had elapsed by the time of trial. Nothing in the testimony the jury heard suggested that the CI had a reduced capacity to observe or narrate.

Had defense counsel been permitted to view the medical records and conduct a proper cross-examination, the jury would have seen a different picture. It would have learned that the CI had been a heavy drug user since 2000 and had recently been abusing alcohol, cannibis, opioids, benzodiazepine, Valium, Klonopin, Darvocet, and Hydrocodone. The medical records contain admissions by the CI that he had smoked a half-pound of marijuana in a single day shortly before trial and that he had been smoking up to a pound of marijuana per week. The jury would also have heard that the CI had a "long history of mental illness" starting in 2000, which included auditory hallucinations, seeing "things out through the window that are not really there," and "hearing voices telling him to do thing[s]." If the jury had been aware of this information, it may well have rejected the CI's testimony, without which Robinson could not have been convicted.

Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand.

I

A

After receiving a tip from a CI, agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") came to suspect a man named "PJ" of illegally possessing a pistol. An ATF agent requested that the CI attempt to purchase the gun. When the CI attempted to do so, however, he learned that PJ had already transferred the gun to Robinson, with whom the CI was also acquainted. Suspecting the handgun to be evidence of illegal activity, the ATF sought to arrange a "controlled buy" from Robinson.

After the CI set up the purchase, he and an ATF agent drove to Robinson's home. Before beginning the encounter, the agent searched the CI for contraband and placed a small audio recording device in his pocket. The CI then approached Robinson's home and an adult male, whom the agent could not identify, opened the door to allow the CI inside. After approximately one minute, the CI returned to the agent's car with a handgun. The agent took the handgun, gave the CI cash, and sent him back inside to pay for the gun. Reentering Robinson's home, the CI dropped off the cash and returned to the agent's car.

Following the purchase, the CI confirmed, using a photographic lineup, that Robinson was the person from whom he purchased the gun. Robinson, a previously convicted felon, was subsequently indicted for possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

B

Shortly before Robinson's trial, the government disclosed that the CI had been involuntarily committed to Osawatomie State Hospital by his mother, who thought him to be suicidal. The government reported that the CI would be released in time to testify. Robinson's counsel then filed a motion requesting the district court to issue a subpoena for the CI's mental health records. The district court granted the motion but ordered the CI's records to be transmitted directly to the court. In the meantime, the government filed a motion in limine to preclude Robinson's counsel from inquiring into the CI's mental health at trial.

Prior to argument on the motion, at an ex parte, in camera hearing, the court spoke with a psychiatrist at Osawatomie. The psychiatrist relayed his diagnosis of the CI's mental status and stated that in his opinion the CI would be able to testify truthfully. Later, at the in limine hearing, the court ruled, "I am going to ... grant the Government's motion in limine to preclude [cross-examination on the CI's mental condition]. However, I may take it under ... consideration at a later time because the [CI's medical] records will be presented to the Court." It also informed the parties that the CI had been diagnosed with "poly-substance abuse, mood disorder with an Axis II, temporary, for anti-social traits."

The next day, the court heard additional arguments regarding the subpoena and the motion in limine. Voicing concern that the CI's mental health issues could be used in a "scurrilous effort to discredit" the CI, the court reaffirmed its previous ruling, concluding the CI's mental condition was not material. It suggested that if defense counsel were permitted to question the CI about his recent treatment, the jury could infer that "there may be something seriously wrong with [the CI] .... [a]nd for that reason, they're not going to believe him."

Robinson's counsel objected to the court's ruling, citing United States v. Lindstrom, 698 F.2d 1154 (11th Cir.1983), which held that a district court contravened the Confrontation Clause by narrowly limiting cross-examination as to a witness's psychiatric history. See id. at 1159-64. The court took Robinson's cited case law under consideration but did not alter its ruling. Defense counsel also sought a stay pending receipt of the CI's medical records, which the court had not yet obtained, but that request was denied.

C

The government's first witness at trial was the ATF agent who had arranged the controlled buy. He described the process of recruiting and retaining the CI and recounted the events surrounding the gun purchase. Next, the government introduced an audio recording captured by the device the CI carried in his pocket. It was low-quality, interspersed with static, and revealed few details of the events that took place inside Robinson's home. Despite its limited evidentiary value, the recording does reveal that when the CI entered Robinson's home for the second time to drop off the cash, he called out Robinson's name twice and referred to the handgun's missing serial number.

Lastly, the government called the CI to the stand. He confirmed the ATF agent's account of the controlled buy and testified that Robinson was the man who let him into the house and sold him the gun. On cross-examination, Robinson's counsel attempted to impeach the CI by eliciting testimony on his criminal history, the payments he received from the ATF, and the ATF's intervention on his behalf following "scrape[s]" with the law. The CI stated he was a close friend of the Robinson family, was able to come and go from Robinson's house as he pleased, and had smoked marijuana with Robinson on the night before the controlled buy. The CI maintained, however, that he had reformed himself after beginning his work with the ATF. He claimed that he had not "regularly" violated his CI agreement and insisted he had only "a little bit" of a drug problem. When he was unable to recall certain details about the controlled buy, the CI testified that the sole reason for his memory loss was the passage of time.

After the prosecution's case-in-chief, the court reported that it had reviewed the CI's medical records in camera and reiterated its ruling that it would not furnish them to Robinson's counsel. Although the court had previously provided the CI's psychiatric diagnosis to the parties, it failed to disclose that the records contained information on the CI's abuse of illegal and prescription drugs. Nor did the court apprise the parties that the records contained detailed evidence regarding the CI's psychiatric condition. Robinson's counsel objected to the court's decision: "[J]ust so the record is very clear, I request, once again, that [the records] be provided to me for review — not for use — but for review with the option of returning [the CI] to the stand and asking him about them." Robinson's objection was overruled.

Robinson argued to the jury that the CI was lying and had planted the gun in Robinson's home the night before the buy. His case-in-chief consisted solely of testimony from witnesses called to impeach the CI. One witness suggested that the CI had a reputation for dishonesty, and three testified that the CI had been inaccurate in his recollection of the number of children in the Robinson household.

Robinson was...