USA. v. Manske

• Decision Date: 09 July 1999
• Docket Number: 99-1850,Nos. 98-4245,s. 98-4245
• Citation: 186 F.3d 770
• Parties: (7th Cir. 1999) United States of America, Plaintiff-Appellee, v. Thomas D. Manske, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 770

186 F.3d 770 (7th Cir. 1999)

United States of America, Plaintiff-Appellee, v. Thomas D. Manske, Defendant-Appellant.

Nos. 98-4245, 99-1850

United States Court of Appeals, Seventh Circuit

Argued April 7, 1999

Decided July 9, 1999

Appeals from the United States District Court for the Western District of Wisconsin. No. 98-CR-51-S--John C. Shabaz, Chief Judge.

Before Flaum, Ripple and Rovner, Circuit Judges.

Flaum, Circuit Judge.

In 1996, Thomas Manske was convicted by a jury of one count of conspiracy to distribute cocaine in violation of 21 U.S.C. sec. 846, and sentenced to 151 months in prison. Manske appealed, seeking a new trial based on limitations the district court placed on his cross-examination of the government's key witnesses. Although we cannot definitively conclude that allowing him to make the prohibited inquiries would have changed the jury's verdict, the exclusion of this information undermines our confidence in the outcome, and thus, Manske's conviction is reversed.¹

Facts

The defendant was indicted as part of an on- going investigation of cocaine trafficking in northern Wisconsin. Before Manske's trial, the government had persuaded Stephen Pszeniczka and Daniel Knutowski to plead guilty to charges including distribution of cocaine, and, with their cooperation, successfully prosecuted Patrick Menting and Dennis Tushoski for similar crimes. See United States v. Menting, 166 F.3d 923 (7th Cir. 1999); United States v. Knutowski, 165 F.3d 33 (7th Cir. 1999) (unpublished order). Pszeniczka and Knutowski fingered Manske as their drug source--a contention Manske vigorously denied. At Manske's trial, both men testified that between 1993 and 1996, the defendant was their primary supplier of cocaine. They claimed that Manske delivered one to two ounces of cocaine to them at a time, either to Knutowski's home, or at various other locations, including a McDonald's parking lot. According to Knutowski, these deliveries occurred nearly every Wednesday over the course of three years. Pszeniczka and Knutowski also testified that on two occasions, they received cocaine from Manske at his home. In sum, the two painted a fairly detailed and consistent picture of their dealings with the defendant. Pszeniczka and Knutowski alleged that Manske sold them 5.78 kilograms of cocaine during the three years he was their supplier.

This testimony made up the bulk of the government's case, with the remainder supplied by tertiary witnesses. One of them, Mary Colburn, testified that on three occasions she either saw Manske deliver cocaine to Pszeniczka and Knutowski, or was nearby when such drug transactions occurred. Another witness, Jackie Campbell, had no direct knowledge of Manske's involvement in drug deals, but was able to provide inculpatory details against the defendant that were consistent with Knutowski and Pszeniczka's story. The government had no physical evidence to corroborate the witness testimony against Manske. There were no surveillance recordings implicating Manske, no cocaine found on his person or property, no money the government could trace to illegal drug transactions and no admissions by the defendant. The government presented telephone records showing calls between Manske and Knutowski, but because their lines were not wire-tapped the substance of the conversations was not identifiable.

Manske testified on his own behalf, acknowledging that he knew Knutowski and Pszeniczka. He also confessed to having engaged in illegal sports betting and bookmaking with them. According to Manske, the weekly Wednesday night meetings and phone calls between him and the two principal witnesses against him involved these gambling related activities. Like the government, Manske's case relied on oral testimony; he had no physical or documentary evidence with which to exonerate himself. Thus, his defense strategy hinged entirely on destroying the credibility of the witnesses against him. Manske was able to impeach Knutowski, Pszeniczka, Colburn and Campbell with the fact that they were receiving leniency from the government in return for their testimony, and with their extensive history of drug use and drug dealing. Manske also sought to cross-examine Pszeniczka about past acts of witness intimidation which the government acknowledged had taken place, arguing that these acts were probative of Pszeniczka's truthfulness. The defendant additionally expressed his desire to cross-examine other witnesses to explore whether they were biased against him and in favor of the government because they had previously been threatened by Pszeniczka or knew of these threats. Pursuant to a pre-trial motion in limine the district court barred the defendant from inquiring into these areas, thus keeping this evidence from the jury. Thus, the defendant was not able to delve into acts of witness intimidation and potential subornation of perjury which Pszeniczka had previously engaged in, nor was he able to ask Colburn and Campbell about occasions unrelated to his trial when Pszeniczka allegedly intimidated them and others into lying to law enforcement and in judicial proceedings.

After a three day trial, the jury retired for deliberations. Although the jury sent the district court a note that it was stalemated, it eventually convicted the defendant. Manske appealed, primarily on the grounds that the district court's limitations on his cross- examination of government witnesses were improper.

Motion in Limine

Because it is at the center of the defendant's appeal, we now return to the government's pre- trial motion in limine, and give it a fuller explication.

No doubt sensing that the defendant would be eager to inquire into Pszeniczka's background, the government made a pre-trial motion in limine to prevent Manske from exploring certain areas at trial. This motion sought to block the defendant from introducing any evidence relating to threats Pszeniczka made to various witnesses who testified in a related case, United States v. Tushoski, CR-96-83-C (W.D. Wisc. 1997).² The motion asked for limitations on Pszeniczka's cross-examination as well as that of Colburn and Campbell. Although the government did not identify the particular threats it sought to exclude, it is apparent from reading the motion in limine and the defendant's response to the motion which included the relevant portions of the transcript in Tushoski, that the parties and the court were familiar with the subject matter.

What the government sought to keep out was mention of roughly half a dozen incidents where Pszeniczka, or people acting on his behalf, allegedly threatened potential witnesses in an effort to keep them from incriminating him. (Collectively, this is referred to as "the threat evidence.") For example, an associate of Pszeniczka, Jeffrey Matter, gave a sworn statement averring that after having told the police that Pszeniczka was involved in drug dealing, Pszeniczka threatened him over the phone, and allegedly told him "if you don't change your statement you might as well be dead. Either I'll kill you or my friends will." As his statement indicates, after the threat, Matter changed his story. When Pszeniczka found out about the changed story, he supposedly called Matter and said "if you go back to what you first said, I'll put a cap in your head." Similarly, another individual, Leslie Ostrowski, had testified in a previous trial that Pszeniczka confronted her and verbally threatened her for speaking to the police about his cocaine activities.

Yvonne Pospahala, who was also familiar with Pszeniczka, told a Wisconsin law enforcement officer that Pszeniczka came by her house asking for Mary Colburn on one occasion, and, when Pospahala told Pszeniczka that Colburn had left town for fear of him, Pszeniczka allegedly said "good, if [Colburn] hadn't [she'd] be dead." Don Peeper, a customer and associate of Pszeniczka, had previously testified that he lied before a grand jury at Pszeniczka's urging and because of thinly veiled threats Pszeniczka leveled at him. In addition, the defendant wanted to question Jackie Campbell about Pszeniczka's statements to her about his mob connections and his willingness to use violence against people who "crossed him." A final piece of relevant threat evidence, which the government alluded to in its own trial against Pszeniczka, was an incident where Colburn and her boyfriend Harold Johnson (who testified at Manske's trial), found dolls with ropes around their necks hanging from a tree in Ms. Colburn's front yard adjacent to signs saying "Narcs Live Here" and "You're Dead." Apparently Colburn and Johnson took these to be threats from Pszeniczka warning them against their impending cooperation with the government against him.³

The government's argument for limiting cross- examination of Pszeniczka was that under Fed. R. Evid. 608(b),⁴ this evidence related to specific instances of conduct not probative of truthfulness or untruthfulness. Rather than dealing with truthfulness (or a lack thereof), the government argued that the threat evidence only went to show Pszeniczka's propensity for violence, and therefore could not be admitted. Manske responded by asserting that threats calculated to encourage people to break the law were in fact probative of Pszeniczka's truthfulness or untruthfulness. As to the bias evidence, the government argued that it was irrelevant and a waste of time. The defendant countered that the threat evidence supported his theory that the prosecution's case was based on an elaborate set-up relying on Pszeniczka's testimony and bolstered by other witnesses telling similar tales because of their fear of contradicting him.

The district court granted the government's motion in limine. The trial judge observed that FRE 608(b) did not allow Manske to use the threat evidence to cross-examine Pszeniczka because the threats "[did] not impact upon his credibility." The court also stated that "the fact that...