US v. Adams

• Decision Date: 27 November 2001
• Docket Number: No. 00-3411,00-3411
• Citation: 271 F.3d 1236
• Parties: (10th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff - Appellee, vs. DALE L. ADAMS, Defendant - Appellant
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1236

271 F.3d 1236 (10th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff - Appellee, vs. DALE L. ADAMS, Defendant - Appellant.

No. 00-3411

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

November 27, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS. (D.C. No. 00-CR-10080-01-JTM)

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Nancy Landis Caplinger, Assistant United States Attorney (and James E. Flory, United States Attorney, on the briefs), Topeka, Kansas, for Plaintiff - Appellee^*.

Timothy J. Henry, Assistant Federal Public Defender (and David J. Phillips, Federal Public Defender, on the briefs), Wichita, Kansas, for Defendant - Appellant.

Before KELLY and ANDERSON, Circuit Judges and STAGG^**, District Judge.

PAUL KELLY, Jr., Circuit Judge.

Defendant-Appellant Dale L. Adams was found guilty by a jury of possession of a firearm by a felon in violation of 18 U.S.C. 922(g)(1), and sentenced to 51 months and three years supervised release. At trial, the government relied upon a series of incriminating statements made by Mr. Adams immediately following his arrest. On appeal, he contends that the district court's exclusion of expert testimony by a clinical psychologist denied his right to due process and a fair trial. He also claims that his conviction under 18 U.S.C. 922(g)(1) exceeds the scope of congressional power.

Background

Wichita police responded to a residential disturbance on March 2, 2000. Upon arriving at the scene, an officer looked into a vehicle occupied by Mr. Adams and another individual and saw a black plastic case, which he determined contained an assault-style semi-automatic pistol.

Upon questioning, Mr. Adams told the officer that both the vehicle and the weapon inside the vehicle belonged to him. The officer then retrieved the weapon, a 9mm semi-automatic pistol, from the interior of the car and arrested Mr. Adams on charges of possession of an illegal firearm. After being read his Miranda rights, Mr. Adams stated that he purchased the weapon a few days earlier, stowed it at his residence, and that day had removed it to the vehicle. Mr. Adams gave the same account after the officers transported him to police headquarters where he was re-interviewed. In both statements, Mr. Adams provided details about his purchase of the weapon, such as the time, date, and location of purchase, and the name of the seller.

Mr. Adams was charged with possession of a firearm by a felon.¹ He was arraigned on June 16, 2000, and trial was set for August 22, 2000. After a possible plea agreement collapsed on August 14, 2000, defense counsel arranged a psychological examination for Mr. Adams. The defense anticipated introducing the resulting psychological report and, on August 18, 2000, delivered the report to the government. The government immediately moved for exclusion of the report, first, because the substance was inadmissible, and, second, because the defense notified the government about the report past the deadline set out in the district court's discovery order. The district court sustained the government's motion.

Mr. Adams tried again at the onset of trial to admit the psychologist's report, claiming that it was relevant to Mr. Adams's mental condition and education, factors that could be considered in judging the credibility of his incriminating statements. Again, the government objected to the substance and timing of the evidence and again the court excluded it.

At trial, the government relied heavily on the incriminating statements that Mr. Adams made to the officers immediately following his arrest. Mr. Adams testified at trial, denying the veracity of his earlier confessions, and claiming that he lied to protect his girlfriend from incrimination. Nevertheless, the jury returned a guilty verdict.

Discussion

A. Adequacy of the Offer of Proof

At the outset we are faced with the question of whether Mr. Adams made an offer of proof to the trial court adequate to preserve the claimed error of excluding the psychologist's testimony. "Error may not be based on a ruling excluding evidence unless 'the substance of the evidence was made known to the court by offer [of proof] or was apparent from the context within which questions were asked.'" Inselman v. S & J Operating Co., 44 F.3d 894, 896 (10th Cir. 1995) (quoting Fed. R. Evid. 103(a)(2)). On numerous occasions we have held that "'merely telling the court the content of ... proposed testimony' is not an offer of proof." Polys v. Trans-Colorado Airlines, Inc., 941 F.2d 1404, 1407 (10th Cir. 1991)(quoting Gates v. United States, 707 F.2d 1141, 1145 (10th Cir. 1983). In order to qualify as an adequate offer of proof, the proponent must, first, describe the evidence and what it tends to show and, second, identify the grounds for admitting the evidence. Phillips v. Hillcrest Med. Ctr., 244 F.3d 790, 802 (10th Cir. 2001); Polys, 941 F.2d at 1407. If the proponent's offer of proof fails this standard, then this court can reverse only in instances of plain error that affected appellant's substantial rights. Phillips, 244 F.3d at 802; Fed. R. Evid. 103(d).

A twofold purpose underlies these required showings. First, an effective offer of proof enables the trial judge to make informed decisions based on the substance of the evidence. Polys, 941 F.2d at 1406. Second, an effective offer of proof creates "a clear record that an appellate court can review to 'determine whether there was reversible error in excluding the [testimony].'" Id. at 1407 (quoting New Mexico Sav. & Loan Assoc. v. United States Fidelity & Guar. Co., 454 F.2d 328, 334 (10th Cir. 1972)).

Federal Rule of Evidence 103(a)(2) does not mandate a particular form for offers of proof. Instead, the rule invests the trial judge with discretion in determining the form of the offer. Fed. R. Evid. 103(b). There are at least four ways to make an offer of proof of testimony and achieve the purposes underlying the rule. 1 McCormick on Evidence 51, at 216 n.9 (John W. Strong, 5th ed. 1999). First, and most desirable from all standpoints except cost, the proponent may examine the witness before the court and have the answers reported on the record. Id.; 21 Charles Alan Wright & Kenneth W. Graham, Federal Practice and Procedure 5040, at 214 (1977). The question and answer method necessitates excusing a jury, but this concern is not present when the offer of proof is made, as here, at a pretrial motion hearing. When the proponent proffers testimony in this manner, opposing counsel may be permitted "to cross-examine the witness to develop any factors which would put the proferred testimony in its true light." Wright & Graham 5040, at 214.

The second, and least favorable, method for making an offer of proof of testimony is a statement of counsel as to what the testimony would be. Id. at 215. In this case, the colloquy between counsel and the district court was so lacking in detail that it is difficult to decipher why exclusion of the evidence might be error. During the hearing on the motion in limine, defense counsel stated that he had asked the examining psychologist to "look into whether or not [Mr. Adams's] personality, mental makeup, however you want to put it, would he be so inclined given the testing that's done, would there be a possibility that he would give a false statement to the police." R.O.A. Supp. Vol. I, at 4. Counsel then proffered that the examining psychologist had "suggested in one of the paragraphs [of the report]... that his personality certainly is one that could have been statements to the police could have been false." Id.

An offer of proof of testimony by counsel is the least favored method because of its potential to fall short of the standard required by the rules of evidence as well as the standard set out in Phillips and Polys. Defense counsel's offer of proof made during the colloquy with the judge illustrates the potential pitfalls of this method. Specificity and detail are the hallmarks of a good offer of proof of testimony, Wright & Graham 5040, at 213, and conclusory terms, especially when presented in a confused manner, mark poor ones. 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence 14, at 71 (2d ed. 1994). Defense counsel hardly met the baseline requirement of "'merely telling the court the content of ... [the] proposed testimony." Polys, 941 F.2d at 1407. As for the additional requirements set out in Phillips and Polys, counsel did not explain the significance of the proposed evidence or what he expected the evidence to show. Phillips, 244 F.3d at 802; Polys, 941 F.2d at 1407. Nor did counsel clearly identify "the grounds for which [he] believes the evidence to be admissible." Id.

Documentary offers of proof comprise the third and fourth proper forms of proffering anticipated testimony. McCormick 51, at 216 n.9. The first of these, and least common, is a statement written by examining counsel describing the answers the proposed witness would give if permitted to testify. Id. More common, and relevant to this case, the proponent of the evidence may introduce a "written statement of the witness's testimony signed by the witness and offered as part of the record." Id. (emphasis added). In using either method of documentary proffer for anticipated testimony, "[i]t is suggested...that the writing be marked as an exhibit and introduced into the record for proper identification on appeal." Id.; see also Palmer v. Hoffman, 318 U.S. 109, 116 (1943); 1 Michael H. Graham, Handbook of Federal Evidence, 103.7, at 61 (5th ed. 2001). Indeed the primary, formal reason for an offer of proof is "to preserve the issue for appeal by including the proposed answer and expected proof in the official record of trial." McCormick 51, at 216 n.9 (emphasis added).

On the morning of the pretrial hearing, counsel for Mr. Adams apparently sent a facsimile of the psychologist's report directly to the district court judge, who...