U.S. v. Walker

• Decision Date: 10 April 1991
• Docket Number: No. 89-5205,89-5205
• Citation: U.S. v. Walker, 930 F.2d 789 (10th Cir. 1991)
• Parties: 32 Fed. R. Evid. Serv. 988 UNITED STATES of America, Plaintiff-Appellee, v. Bobby Kent WALKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 789

930 F.2d 789

32 Fed. R. Evid. Serv. 988

UNITED STATES of America, Plaintiff-Appellee, v. Bobby Kent WALKER, Defendant-Appellant.

No. 89-5205.

United States Court of Appeals Tenth Circuit.

April 10, 1991.

Gordon Cecil, Asst. U.S. Atty. (Tony M. Graham, U.S. Atty., and Susan W. Pennington, Asst. U.S. Atty., on the brief), Tulsa, Okl., for plaintiff-appellee.

Kimberly Steele of Larry L. Oliver & Associates, P.C., (Larry R. Oliver of Larry L. Oliver & Associates, P.C.; and David Booth, Federal Public Defender, on the briefs) Tulsa, Okl., for defendant-appellant.

Before McKAY and MOORE, Circuit Judges, and SAFFELS, District Judge. ^*

JOHN P. MOORE, Circuit Judge.

Bobby Kent Walker was convicted of two counts of unlawful possession of a firearm by a felon under 18 U.S.C. Secs. 922(g) and 924(e)(1). He was sentenced to 360 months plus a five-year term of supervised release. On appeal, Mr. Walker argues that during trial the district court improperly disallowed testimony of a witness for the defense that it misapplied the sentencing guidelines, and that Sec. 922(g) violates the equal protection clause. We affirm.

The evidence offered at trial showed that on March 10, 1989, the defendant drove to the home of Richard Hyle, apparently because he was upset that Mr. Hyle was dating his ex-wife. Mr. Hyle saw the defendant's car pull up and went outside to speak with him. According to Mr. Hyle, the defendant pulled out a gun and fired several times, hitting Mr. Hyle once in the leg. Mr. Hyle retaliated in kind as Mr. Walker drove away. These events provide the basis for the first count of the indictment.

The defendant was arrested on March 29, 1989, at a bar in Tulsa, Oklahoma. One of the arresting officers testified that Mr. Walker tried to hide his weapon when he spotted the officer approaching, but he in no way attempted to use the weapon to prevent his arrest. These events provide the basis for the second count of the indictment.

I. Disallowance of Certain Testimony by a Defense Witness

The defendant argues that the district court improperly denied him the opportunity to impeach Mr. Hyle by limiting defendant's questioning of Agent Jaime Reyes of the Bureau of Alcohol, Tobacco, and Firearms, the case agent investigating the charges filed against the defendant. At the pretrial detention hearing, Agent Reyes stated that he learned Mr. Hyle was the first to shoot from "[i]nterviews through Mr. Hyle." Thus to impeach Mr. Hyle's trial testimony to the contrary, the defense called Agent Reyes.

The district judge cautioned defense counsel that for the purpose of impeaching Mr. Hyle, counsel could not ask Agent Reyes what Agent Reyes had testified to previously, but could only ask what Mr. Hyle had personally told him. This caution notwithstanding, defense counsel asked, "And did you, at one time or another during your work as a case agent, attain information of Mr. Hyle indicating that he fired first?" Agent Reyes answered, "No." At that point, another bench conference occurred, and the district judge noted that defense counsel's question was improper because Mr. Hyle could only be impeached by his own prior inconsistent statements, not by what Agent Reyes might have known from other sources. The judge concluded that, regardless of the improper question, the issue was irrelevant because the witness answered the question in a manner that failed to impeach Mr. Hyle. The judge then refused to allow defense counsel to attempt to elicit further testimony from Agent Reyes, reasoning that Agent Reyes was called for the sole purpose of impeaching Mr. Hyle and was never called as a witness himself.

The defendant complains that the district court's refusal to allow counsel to further question Mr. Reyes was a denial of compulsory process. However, it is well settled that it is not improper for the trial judge to limit impeachment evidence on matters that are deemed collateral or irrelevant. United States v. Warledo, 557 F.2d 721, 726 (10th Cir.1977). This rule stems from the trial judge's power under Fed.R.Evid. 403 to exclude evidence which is more prejudicial, misleading, or confusing than probative. A matter has been held to be collateral if it could not have been introduced in evidence for any purpose independent of the impeachment. State v. Oswalt, 381 P.2d 617 (Wash.1963).

There is no dispute that the issue of whether at some prior time Mr. Hyle stated he had fired first was relevant only for impeachment purposes. The indictment charged only the status offense of possession of a weapon and did not include assault charges. Who fired first was irrelevant to the issue of guilt. The defense effort to impeach Mr. Hyle on the issue of who fired first was therefore a collateral issue.

The trial judge's ruling is consistent with several courts' and commentators' treatment of collateral evidence introduced solely for impeachment purposes. In United States v. Nace, 561 F.2d 763, 770 (9th Cir.1977), the Ninth Circuit held that "impeachment ... on a collateral matter ... was properly excluded in the discretion of the trial court." Id. (citing United States v. Carrion, 463 F.2d 704 (9th Cir.1972); Lenske v. Knutsen, 410 F.2d 583 (9th Cir.1969); Ramirez v. United States, 294 F.2d 277 (9th Cir.1961)). In addition, commentators agree that: "If the witness denies making a statement on a matter classified as collateral, his examiner must take his answer--that is, he may not prove the making of the statement by extrinsic evidence." J. Weinstein & M. Berger, Weinstein's Evidence Sec. 607 at 607-107 (citing Cwach v. United States, 212 F.2d 520, 529-30 (8th Cir.1954) among others); see also E.W. Cleary, McCormick on Evidence Sec. 36 at 77 (3d ed. 1984) and cases cited therein. This analysis is supported by our decision in United States v. Bradshaw, 787 F.2d 1385, 1392 (10th Cir.1986), where we held that the trial court did not abuse its discretion in refusing to grant a continuance where the evidence sought "would have been limited to impeaching [the witness] on a collateral matter."

However, adherence to established rules of evidence does not necessarily assure that the district court has complied in this case with the defendant's Sixth Amendment rights to confrontation and cross-examination. The confrontation clause of the Sixth Amendment guarantees the right of an accused in a criminal prosecution to confront adverse witnesses, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), as well as the opportunity to cross-examine hostile witnesses. Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1109-10, 39 L.Ed.2d 347 (1974). These Sixth Amendment rights, however, are not unlimited. As the Supreme Court noted in Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986):

trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.

The Court in Van Arsdall found a violation of the defendant's confrontation clause rights, but only because the trial judge cut off all inquiry into a material matter. Id.

The actions of the district judge in the present case are consistent with the limits to confrontation clause rights enunciated in Van Arsdall. In fact, the competing concerns listed by the Van Arsdall Court are many of the same concerns contained in Fed.R.Evid. 403 granting the trial court discretion to exclude evidence that is prejudicial, misleading, confusing, or wasteful. Again, that is not to say that a proper Rule 403 ruling will subsume the constitutional issue, but it does identify the types of competing interests a court may consider in determining the proper constitutional limits to a defendant's Sixth Amendment right to confrontation and cross-examination.

Therefore, we hold that the district court did not abuse its discretion in not allowing the further interrogation of Agent Reyes after he answered that he had not been made aware that Mr. Hyle had fired first. The question put to the witness was unclear; therefore, despite Agent Reyes' testimony at the detention hearing, his response may not have been inconsistent. Moreover, it was relevant only for the purposes of impeaching Mr. Hyle. It was within the district court's discretion in both the context of Rule 403 and the Sixth Amendment confrontation clause to hold that the defendant had to take Agent Reyes' answer, and could not further question Agent Reyes as a means to impeach Mr. Hyle on a collateral issue.

II. Application of the Sentencing Guidelines

The defendant argues that the district judge's sentencing him as a career offender under U.S.S.G. Sec. 4B1.1 was error as a matter of law. Under the Guidelines, a defendant is a career offender if:

(1) the defendant was at least eighteen years old at the time of the instant offense, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

The defendant concedes that he satisfies points one and three, but argues that the offense of possession of a firearm by a convicted felon cannot be a crime of violence under point two. He cites 18 U.S.C. Sec. 16, incorporated by reference in Sec. 4B1.1, which defines a crime of violence as:

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

The defendant cites United States v. Selfa, 918...