United States v. Martinez ( 2019 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS May 6, 2019
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-8007
CHRISTOPHER LEE MARTINEZ,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of Wyoming
(D.C. No. 2:17-CR-00213-NDF-1)
_________________________________
Neil D. Van Dalsem, Office of the Federal Public Defender, Muskogee, Oklahoma, for
Defendant-Appellant.
Timothy J. Forwood, Assistant United States Attorney (Mark A. Klaassen, United States
Attorney, District of Wyoming, with him on the brief), Cheyenne, Wyoming, for
Plaintiff-Appellee.
_________________________________
Before HARTZ, MATHESON, and EID, Circuit Judges.
_________________________________
HARTZ, Circuit Judge.
_________________________________
A jury in the United States District Court for the District of Wyoming convicted
Defendant Christopher Lee Martinez on one count of attempting to entice a minor to
engage in illegal sexual activity. See 18 U.S.C. § 2422(b). On appeal Defendant argues
that the district court (1) should have authorized funds for a forensic psychologist, (2)
improperly excluded evidence of his history of mental illness, and (3) should have
allowed him to present evidence of his character for truthfulness. Exercising jurisdiction
under 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
A. Defendant’s Arrest
On July 22, 2017, Special Agent Brent Metcalfe of the Wyoming Division of
Criminal Investigation (DCI) posted a personal advertisement on the “Casual
Encounters” section listed on the Craigslist website at that time. The purpose of the
posting was to ferret out those who used the Internet to arrange sexual encounters with
minors. Metcalfe chose the date because of the expected influx of tourists for Cheyenne
Frontier Days. The advertisement was entitled “Fresh CFD Taboo” and read: “In town
with my dau. She is very eager. She wants to experience what Cheyenne has to offer.
Who wants to have some ‘fresh fun.’” R., Vol. 3 at 247–49. Metcalfe explained that he
used the terms fresh and eager to communicate to the reader that the subject of the
advertisement was young and sexually inexperienced.
Defendant, 27 years old at the time, was one of the first to respond, sending a
message shortly before 4:00 p.m. The email messages were relayed by Craigslist
between the correspondents. Metcalfe posed as the father, telling Defendant that he
hoped to “find a guy for my daughter, but she’s younger.” Id. at 256. When Defendant
asked how old the girl was, Metcalfe answered that she was 12. Defendant said: “Okay.
When you thinking? I’ll think about it. You ain’t a cop or law enforcement?” Id. at 257.
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Metcalfe assured him that he was not a cop and the conversation continued. It centered
on whether Defendant wanted to have sexual relations with the daughter. Defendant
asked Metcalfe what sexual acts he could engage in with the girl, whether he could take
her virginity, and whether Metcalfe had condoms. Defendant repeatedly sought
assurances that Metcalfe was not a “cop,” explaining that he was nervous because the
police had “popped a lot of people” during Frontier Days the previous year. Id. at 287.
With Defendant’s interest established, Metcalfe requested that they move their
conversation to “Kik,” an instant-messaging application that better allowed investigators
to obtain Defendant’s identity. Defendant agreed. After he asked Metcalfe to send him a
picture of the daughter, the two agreed to exchange pictures. Metcalfe sent Defendant a
picture of part of the chest of a life-like mannequin. Defendant asked for another picture
of the child’s full body with no face. Metcalfe refused to send additional pictures but
agreed that Defendant could come to his motel to take his daughter’s “V card” (referring
to her virginity). Id. at 302. Defendant eventually asked to message with the daughter
directly, and Metcalfe assumed the girl’s identity. Defendant asked if she wanted to “lose
[her] V card?” When Metcalfe asked what that meant, Defendant said “Virginity.” Id. at
310. After exchanging about 100 messages over almost five hours, Defendant agreed to
meet at a motel and said that he would bring a condom.
At 8:48 p.m., Defendant arrived at the motel parking lot and messaged Metcalfe,
asking him to come out. Metcalfe and several other officers exited their vehicles and
arrested Defendant in his truck. He was in possession of a phone and a condom.
Forensic analysis confirmed that the phone was the one used to communicate with
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Metcalfe on the Kik application. When interviewed by officers at the scene, Defendant
admitted to sending the messages but stated that he was getting ready to call the police
before he was arrested. When asked why he had a condom, he said something like, “You
have to be real.” Id. at 321.
B. Pretrial Motions
Defense counsel filed a pretrial motion under 18 U.S.C. § 3006A requesting a
forensic psychologist at the government’s expense. The motion stated the charge against
Defendant, the trial date, the cost of a forensic evaluation and polygraph by Dr. Charles
W. Dennison CP, Defendant’s minimal employment history, and his lack of funds to pay
Dr. Dennison. Other than stating that Defendant was on Social Security disability with a
mental-health diagnosis, the motion said nothing regarding his mental health and the need
for an evaluation except as follows:
Defendant was diagnosed with bipolar disorder, attention deficit disorder
(ADD), schizophrenia and depression when he was 18 years old. The
diagnosis was at Peak Wellness, Cheyenne, Wyoming. Defendant has a
Mental Health history of attempted suicide at 18 years of age,
hallucinations with the last occurrence taking place about 4-5 years ago.
Defendant was prescribed Trazadone, Invega, Amitriptyline, Abilify and
Fluoxetine. He is currently off medication.
...
Due to the nature of the charges in this matter, a forensic evaluation is
necessary.
R., Vol. 1 at 29. The district court denied the motion, saying:
Defendant failed to provide the Court with information regarding the
necessity for a forensic evaluation by Dr. Dennison at Government
expense. The Court routinely grants forensic evaluations in cases involving
receipt of child porn, for purposes of sentencing mitigation. However, this
4
case involves attempted enticement of a minor. . . . Given the mandatory
minimum sentence in this case, it is not clear the purpose of a forensic
evaluation. Defendant has failed to provide the Court with any explanation
of the necessity for an evaluation, either for trial or sentencing purposes. IT
IS ORDERED that Defendant’s Motion for Forensic Psychologist at
Government Expense is DENIED at this time based on the Court’s finding
that Defendant has not established the necessity for this evaluation.
R., Vol. 2 at 12 (italics added). Defense counsel did not renew the motion or later
provide further justification for a forensic psychologist.
The government then filed a motion in limine to prevent Defendant from
presenting evidence of his character for truthfulness and honesty and to exclude any
evidence of his mental illness. On the first issue, it argued that because the charged
offense of enticement of a minor is not a crimen falsi (that is, an offense in which a lie by
the defendant is one of the elements of the crime), testimony regarding Defendant’s
character for truthfulness was not relevant. Accordingly, it requested that Defendant’s
use of character evidence be limited to evidence that he is law abiding. The court agreed
that Defendant had not shown a basis for offering evidence of his character for
truthfulness, but said that it would later rule on specific issues related to character
evidence that might arise during trial.
On the second issue, the government contended that absent an insanity defense,
evidence of Defendant’s mental defects or lack of volitional control was not an allowable
defense. Although the government acknowledged that evidence of mental health could
be admitted to negate specific intent, it pointed out that Defendant bore the burden of
showing that the proffered evidence was being offered for that purpose. This issue was
addressed at the final pretrial conference, where the court gave defense counsel the
5
opportunity to explain the purpose of introducing evidence of Defendant’s mental health.
Defense counsel stated:
So my plan was to introduce a very limited number of medical records that
I’ve provided to the Government, and they basically just state that Mr.
Martinez was diagnosed with bipolar, I think back in 2010; that he was
prescribed medication. He’s also got ADD, I believe. And the only
purpose of those records is because I would have him testify and his family
testify that he has these mental issues and that his mental state of mind is
important because one of the elements in this case is that he obviously
knowingly had to complete this act, and that goes to that element of
whether or not he knowingly completed this act.
And the medical records themselves are really just to – there to corroborate
what he would testify to about his own character and state of mind.
R., Vol. 3 at 34 (emphasis added). Defense counsel acknowledged that Defendant “did
not plead guilty by reason of mental illness” but argued that the jury should decide
“whether or not [his mental illness] affected his decision to do the things he did or not.”
Id. at 35. And responding to the arguments by the government, he said:
We’re offering it to show his potential state of mind in general and who he
is. And this is a person – and like I said, I don’t know how you can – the
Court or any court could preclude an individual from getting on the stand
and testifying that, “Yes, I’m – you know, this is my background. I have
these issues that I’ve dealt with. I was on medication, but I wasn’t taking
the medication at the time,” and to describe his general makeup, I suppose.
Id. at 38.
The court granted the motion in limine. It expressed concern that the proffered
mental-illness testimony would “create[] the potential for confusion by the jury and
seek[ ] to suggest a justification as opposed to a defense to any of the elements that the
Government is required to prove by proof beyond a reasonable doubt.” Id. at 39. It noted
that this court had held “that psychological and psychiatric evidence that negates the
6
essential element of specific intent can be admissible” but that the admission of such
evidence required clear demonstration of “how such evidence would negate intent rather
than merely present a dangerously confusing theory of defense more akin to justification
and excuse.” R., Vol. 1 at 72 (internal quotation marks omitted). The court concluded
that without an expert or current medical records, Defendant lacked mental-health
evidence showing “some cognitive defect precluding him from forming the specific
intent for the charged offense” and thus the proffered evidence was irrelevant. Id. at 73.
C. Trial
The prosecution called only three witnesses at trial: Special Agent Robert
Leazenby of the Wyoming DCI testified in general about the conduct of child-
exploitation investigations; Agent Metcalfe testified about his communications with
Defendant; and Mark Timmons of the Wyoming DCI testified about his search of
Defendant’s car after the arrest.
Before calling any witnesses, Defendant renewed his request to be permitted to
offer mental-health evidence. He pointed to testimony by Agent Leazenby that
investigators like to talk to arrestees in such cases to determine their states of mind. The
prosecutor pointed out, however, that the state of mind Leazenby was referring to was
whether or not the arrestee wanted to have sex with the child. When the court asked
defense counsel how the mental-health evidence would relate to the instruction on the
knowingly element of the offense, counsel responded that he wanted to put on the
evidence simply as background evidence:
7
But that’s who he is and that’s kind of his general makeup, just as if a
person was employed and is – you know, as an officer and they’ve been
doing that for ten years. Well, in the last ten years he’s been doing really
nothing. Why has he been doing nothing? Because he’s on [Social
Security benefits], and the jury is going to know why he’s on [Social
Security benefits]. Well, that’s why.
R., Vol. 3 at 377. The court was not persuaded. It held that while information
concerning Defendant’s background may be relevant for sentencing purposes, it was not
relevant at the trial.
Defendant’s evidence consisted of (1) his own testimony, explaining that he was
not engaged in criminal activity but, rather, was attempting to identify someone engaged
in child exploitation, whom he would report to law-enforcement authorities, and (2) six
witnesses who testified to his character as a law-abiding citizen.
Defendant also unsuccessfully attempted to put on evidence of his character for
truthfulness, which he claimed had been attacked during his cross-examination by the
prosecution. He argued that such evidence would assist the jury in determining whether
to believe his statement that he did not intend to engage in sex with a minor. The court
rejected the argument, reaffirming its earlier ruling that such evidence was not relevant
because the charged offense did not include an element that concerned truthfulness. It
further observed that because the bulk of the evidence in the case involved contradictory
statements made by Defendant before and after his arrest, testimony regarding his
character for truthfulness would not be probative in helping the jury decide which if any
of his statements to believe.
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II. DISCUSSION
A. Denial of Motion to Hire Forensic Psychologist
The Criminal Justice Act (CJA) permits a court to authorize funding for an expert
witness at the government’s expense:
Counsel for a person who is financially unable to obtain investigative,
expert, or other services necessary for adequate representation may request
them in an ex parte application. Upon finding, after appropriate inquiry in
an ex parte proceeding, that the services are necessary and that the person is
financially unable to obtain them, the court . . . shall authorize counsel to
obtain the services.
18 U.S.C. § 3006A(e)(1). The defendant bears the burden of persuasion. See United
States v. Greschner, 802 F.2d 373, 376 (10th Cir. 1986). The necessity of services must
be established with specificity. In the present context, “[g]eneral allegations supporting a
request for court appointment of a psychiatric expert, without substantive supporting
facts, and undeveloped assertions that psychiatric assistance would be beneficial to the
defendant will not suffice to require the appointment of a psychiatrist to aid in the
preparation of a criminal defense.” Liles v. Saffle, 945 F.2d 333, 336 (10th Cir. 1991).
We review the denial of a CJA funding request for an abuse of discretion. See United
States v. Solon, 596 F.3d 1206, 1210 (10th. Cir. 2010).
On appeal Defendant argues that psychiatric testimony could have supported his
defense that he was merely trying to catch sexual predators, not trying to be one himself.
He states:
[Defendant’s] case provides a classic example of how psychological
evidence can be relevant in evaluating a defendant’s specific intent.
9
[Defendant] was charged with an attempt crime, a specific intent crime.[1]
What he was actually thinking is of critical importance. [Defendant’s]
entire defense to this case was that he did not really intend to break the law
by enticing a minor to have sex. He defended this case on the ground that
he intended to identify a person who was offering up a minor for sex.
For the jurors to evaluate that assertion, they certainly needed to know
about [Defendant’s] mental illness. The government’s case was based on
an argument that it would be completely bizarre for a person to have taken
steps [Defendant] took without first calling law enforcement. [Defendant]
should have been allowed to prepare a defense that informed the jury, that,
in fact, he is a person who suffers from mental illness, and he legitimately
may not proceed as a rational person would.
Even though his conduct may seem strange, he was not trying to commit a
crime. To the contrary, from the moment of his arrest, he explained that he
was trying to catch a criminal. A casual observer might find his
explanation, provided by a “normal” person, to not make a great deal of
sense or be persuasive. However, in evaluating [Defendant’s] explanation,
the jurors needed to know that, in fact, [Defendant] is mentally ill. While a
mentally healthy person may not have tried to catch the Craigslist poster, a
person with bipolar disorder may well have done so.
Aplt. Br. at 25–26.
This is an interesting argument, but we need not address it because it was not
raised below and Defendant does not argue for plain-error review on appeal. See United
1
To establish a violation of § 2422(b), the government must prove that the defendant
“(1) [used] a facility of interstate commerce; (2) to knowingly persuade, induce, entice, or
coerce; (3) any individual who is younger than 18; (4) to engage in any sexual activity for
which any person can be charged with a criminal offense or attempting to do so.” United
States v. Faust, 795 F.3d 1243, 1248 (10th Cir. 2015) (internal quotation marks omitted).
“To prove an attempt crime, the government must prove (1) an intent to commit the
substantive offense; and (2) the commission of an act which constitutes a substantial step
towards commission of the substantive offense, . . . [which] must be something more than
mere preparation.” United States v. Vigil, 523 F.3d 1258, 1267 (10th Cir. 2008)
(typographical errors corrected and internal quotation marks omitted). Thus, in this case
the government had to show that Defendant intended to entice a girl under 18 years old to
engage in criminal sexual activity.
10
States v. McGlothin, 705 F.3d 1254, 1267 (10th Cir. 2013) (if appellant forfeits an
argument before the district court and then fails to explain in appellate briefing how the
argument survives appellate review under the plain-error standard, then the appellant has
waived the argument on appeal). In his pretrial motion he stated that he suffered from
various mental illnesses. But he did not even attempt to explain how these disorders
could negate any element of the charged crime. He wrongly assumes that simply putting
the court on notice that he suffered from mental-health disorders was somehow enough to
satisfy his burden. It is not the job of the court, however, to come up with arguments
why a defendant’s mental illness must have influenced his conduct in committing a
crime.
Further, the court’s order said that Defendant’s motion was merely denied “at this
time” for lack of the requisite showing. It left open the opportunity for Defendant to
properly explain why the forensic psychologist was needed. If the need for such an
expert should have been obvious to the court, Defendant could have easily explained the
point. Yet Defendant never pursued the issue again. We cannot fault the district court
for denying Defendant’s motion in light of the remarkably sparse argument he proffered.
We see no abuse of discretion here. (To the extent that Defendant attempts to raise for
the first time on appeal a due-process challenge to the denial of an expert, we also decline
to address that argument. See id.)
B. Exclusion of Evidence of Defendant’s Mental-Health History
At trial Defendant unsuccessfully requested that the district court permit him to
offer evidence of his history of mental illness, including medical records from more than
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five years past, his testimony, and his wife’s testimony. The court ruled that it was
irrelevant. “We review a district court’s evidentiary rulings for abuse of discretion,
considering the record as a whole.” United States v. Trujillo, 136 F.3d 1388, 1395 (10th
Cir. 1998). An evidentiary decision will not be reversed if it “falls within the bounds of
permissible choice in the circumstances and is not arbitrary, capricious or whimsical.”
United States v. Wills, 826 F.3d 1265, 1270 (10th Cir. 2016) (internal quotation marks
omitted).
On appeal Defendant argues, as he did with respect to the denial of funds for a
psychiatric expert, that this mental-illness evidence could support his defense that he was
not seeking a sexual partner but was trying to catch a sexual predator. He contends that
the evidence would “explain[] that his arguably irrational behavior was the product of his
mental illness.” Aplt. Br. at 34. Again, however, he did not raise this argument in
district court, so we will not address it. See McGlothin, 705 F.3d at 1267.
What Defendant did argue in district court was that evidence of his mental illness
was relevant to communicating his overall background to the jury. To establish that
Defendant offered no relevant purpose for the mental-health evidence, we set forth
extended excerpts of defense counsel’s colloquy with the court when he renewed his
motion to admit the evidence. During the colloquy, counsel made clear that the purpose
of the evidence was simply to tell the jury what kind of person Defendant is:
DEFENSE COUNSEL: [A]s I understand the Court’s order, I’m not
allowed to introduce any evidence concerning his mental-health.
However, in talking with him and providing the background for the jury of
what he’s – who he is and what he’s doing, I think it is necessary to state at
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least to a certain extent that, number one, that he’s on – he’s been on SSI
[Social Security] since he was 17 for ADD, bipolar and depression, and
that’s what he’s been doing for the last 10 years. He doesn’t work.
So we at least need to explain that to the jury, that I think he should be
allowed to say, “Hey, this is what I’ve been doing for the last 10 years. I
was on medication. I was off medication because I didn’t like it,” whatever
reason.
....
[A]nd if you look at the instructions, the knowingly instruction also talks
about a person’s state of mind. And so the jury is going to consider his
state of mind, and we’re telling them to.
...
THE COURT [after also hearing from the prosecution]: How does the
stated diagnosis speak to the considerations in Instruction 24 which is that
he was conscious and aware of his actions, realized what he was doing or
what was happening around him and did not act because of ignorance,
mistake or accident? Even assuming that the diagnosis is – would be the
diagnosis today by a qualified healthcare professional, how does that
diagnosis relate to the instruction on knowingly?
DEFENSE COUNSEL: Well, Your Honor, I think we’re talking about two
different things here. And, number one, I am not trying to introduce this
evidence as evidence that he had a mental defect at the time and did not act
in accordance with the statute because of that mental defect.
What I am trying to introduce, simply, is that we have an individual that has
mental issues or a mental diagnosis and he’s been on SSI and it is part of
his background. Now, there’s a reason for that and the jury, I think, is
going to want to know what he’s – who this person is.
So, number one, I don’t think anything is prohibitive of talking about an
individual’s background, what he’s been doing. So I think that is fair game.
...
So I don’t – like I said, I’m not going to use it. I don’t think – I wasn’t
planning on bringing an expert to come in and testify that he suffers from
depression, ADD and bipolar, and therefore, that’s what – why he
committed this act. . . .
And that’s not what our intent is here. The only reason I want to introduce
the records is to show that when he says, “yeah, I’ve been on SSI,” that’s
documented and the jury doesn’t think that he is faking it or just some
person out there not – by choice not working in kind of a low-life situation
by choice.
13
So we are not offering as mental health defense that information, but
merely as background information and that’s who this person is and what
he’s been doing. The jury can do whatever they want with it, I suspect.
R., Vol. 3 at 372–78.
“Evidence is relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of consequence in
determining the action.” Fed. R. Evid. 401. To be sure, “[t]he bar for admission under
Rule 401 is very low”; the evidence need “only provide a fact-finder with a basis for
making some inference, or chain of inferences.” United States v. Jordan, 485 F.3d 1214,
1218 (10th Cir. 2007) (internal quotation marks omitted). But Defendant’s proffered
ground for admitting this evidence did not meet even this low bar. Defense counsel
never suggested a chain of inference from this evidence to an element of the crime or a
defense.
We recognize that it is generally appropriate to humanize a witness by letting the
witness tell the jury a few things about himself or herself. But even if such background
information can be admissible, Federal Rule of Evidence 403 permits exclusion of even
relevant evidence “if its probative value is substantially outweighed by the danger of . . .
unfair prejudice, confusing the issues, [or] misleading the jury.” Courts must be cautious
about admitting marginally relevant mental-health evidence because the jury may think
that it provides an “excuse” for misconduct or it may otherwise generate sympathy for the
defendant. See United States v. Cameron, 907 F.2d 1051, 1067 (11th Cir. 1990)
(“[P]sychiatric evidence . . . presents an inherent danger that it will distract the jury[ ]
from focusing on the actual presence or absence of mens rea, and . . . may easily slide
14
into wider usage that opens up the jury to theories of defense more akin to justification.”
(internal quotation marks omitted)). Here, the district court permitted some humanizing
evidence, such as Defendant’s testimony that he was unemployed and on social-security
benefits, because it saw no danger of improper prejudice or confusing the jury. But it
excluded the mental-health evidence, which it viewed as “just an effort to elicit
sympathy.” R., Vol. 3 at 378. This ruling was not an abuse of discretion.
C. Exclusion of Character Evidence
Defendant argues that the district court abused its discretion in excluding evidence
of his character for truthfulness after his credibility was allegedly attacked on cross-
examination. He contends that the court’s decision to exclude evidence of his character
for truthfulness was based on a misapplication of Rule 608 of the Federal Rules of
Evidence. “We review a trial court’s exclusion of character evidence for abuse of
discretion.” Tanberg v. Sholtis, 401 F.3d 1151, 1167 (10th Cir. 2005). But we review de
novo the district court’s legal interpretation of the Federal Rules of Evidence. See United
States v. Torrez-Ortega, 184 F.3d 1128, 1132 (10th Cir. 1999).
Under Rule 608 a witness’s credibility ordinarily may be attacked by presenting
evidence of the witness’s character for untruthfulness, but positive evidence of a truthful
character is permitted only in response to an attack on such character:
Reputation or Opinion Evidence. A witness’s credibility may be attacked
or supported by testimony about the witness’s reputation for having a
character for truthfulness or untruthfulness, or by testimony in the form of
an opinion about that character. But evidence of truthful character is
admissible only after the witness’s character for truthfulness has been
attacked.
15
Fed. R. Evid. 608(a). An advisory committee note clarifies what constitutes an attack on
character for truthfulness:
Opinion or reputation that the witness is untruthful specifically qualifies as
an attack under the rule, and evidence of misconduct, including conviction
of crime, and of corruption also fall within this category. Evidence of bias
or interest does not. Whether evidence in the form of contradiction is an
attack upon the character of the witness must depend upon the
circumstances.
Fed. R. Evid. 608(a) Advisory Committee Notes to 1972 proposed rules.
No firm line can be drawn regarding whether cross-examination of a witness
amounts to an attack on the witness’s character for truthfulness. But a useful test
employed by the courts is whether the questioning attacks the veracity of the witness’s
account of the facts in the specific case before the court or attacks the witness’s veracity
in general. The Ninth Circuit expressed the point as follows:
The purpose of Rule [608(a)] is to encourage direct attacks on a witness’s
veracity in the instant case and to discourage peripheral attacks on a
witness’s general character for truthfulness. To this end, the Rule prohibits
rehabilitation by character evidence of truthfulness after direct attacks on a
witness’s veracity in the instant case. However, the Rule permits
rehabilitation after indirect attacks on a witness’s general character for
truthfulness.
United States v. Dring, 930 F.2d 687, 690–91 (9th Cir. 1991); see Renda v. King, 347
F.3d 550, 554 (3d Cir. 2003) (“Direct attacks on a witness’s veracity in the particular
case do not open the door for evidence of the witness’s good character.” (emphasis
added)).
Some circumstances are easy to characterize. For example, impeachment of the
witness through evidence of a prior felony conviction or prior fraudulent activity is not
16
specific to the case being tried and amounts to an attack on character. See Dring, 930
F.2d at 691 (“[I]ndirect attacks on truthfulness include opinion evidence, reputation
evidence, and evidence of corruption, which require the jury to infer that the witness is
lying at present simply because he has lied often in the past.”); Weinstein’s Federal
Evidence § 608.12[1]; Roger Park & Tom Lininger, The New Wigmore: A Treatise on
Evidence: Impeachment and Rehabilitation § 9.2 (2012). In contrast, a cross-
examination that focuses on the witness’s memory or perception does not implicate
character. Also, evidence of bias generally is not an attack on character. The fact that the
witness is a party’s mother may lessen her credibility in this case, but it does not mean
that she is usually an untruthful person. See Wigmore § 9.2 at 332. But cf. id. (if the
proof of bias is that a party bribed the witness, the fact that the witness took a bribe is a
reflection on character). And “most courts do not view contradiction of one witness’s
testimony by other witnesses as an attack on character.” Weinstein § 608.12[4][ a]; see
United States v. Drury, 396 F.3d 1303, 1315 (11th Cir. 2005) (“An attack that consists
only of Government counsel pointing out inconsistencies in testimony and arguing that
the accused’s testimony is not credible does not constitute an attack on the accused’s
reputation for truthfulness within the meaning of Rule 608.” (internal quotation marks
omitted)); Kauz v. United States, 188 F.2d 9, 10 (5th Cir. 1951) (“The mere fact that a
witness is contradicted by other evidence in the case does not constitute an attack upon
his reputation for truth and veracity.”).
Perhaps the most difficult questions arise when a witness has been vigorously
cross-examined. “[A] slashing cross-examination can carry strong accusations of
17
misconduct and bad character, which even the witness’s forceful denial will not remove
from the jury’s mind.” 1 McCormick on Evidence § 47 at 309 (7th ed. 2013) (footnote
omitted). Those are situations in which our standard of review properly affords
substantial discretion to the trial judge.
In this case there was nothing resembling an abuse of discretion in the district
court’s exclusion of Defendant’s character-for-truthfulness evidence. The clear purpose
of the prosecutor’s cross-examination of Defendant was to obtain admissions for much of
the government’s case. Defendant not only admitted to what he did or did not do but also
to the unreasonableness of his actions. The following excerpt gives a flavor of the cross-
examination:
Q: So despite your plan to try to protect this young child, you don’t tell anyone
over the course of five hours what you’re doing?
A: Yes.
Q: Or where you’re headed?
A: Yes.
Q: Doesn’t that seem dangerous?
A: Yes.
Q: For you?
A: Yes.
Q: For the girl?
A: Yes.
Q: You brought up condoms in these conversations, correct?
A: Yes.
18
Q: You actually proposed having oral sex with a 12-year-old correct?
A: Yes.
Q: You repeatedly brought up all kinds of different sex acts that you and this 12-
year-old girl could engage in, correct?
A: Yes.
Q: You have testified that you were concerned about the welfare of this girl; is that
right?
A: Yes.
Q: And that you wanted to save her?
A: Yes.
Q: And I’m assuming you didn’t want to cause her any trauma or pain?
A: No.
Q: But you didn’t care enough to not ask for a photo, did you?
A: No.
Q: Don’t you think that it would be traumatic, for this girl’s photo to be shared?
A: Yeah.
Q: You specifically asked for more photos, didn’t you?
A: Yes.
Q: And you specifically requested full-body photos with no face?
A: Yes.
Q: Would you not agree that not having the face in those photos would actually
make it more difficult to hold this person accountable?
A: Yes.
Q: You were wanting to actually hold this person accountable. Wouldn’t you
want to see who the girl actually is?
A: Yes.
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Q: But instead, you specifically request no face photos, correct?
A: Yes.
Q: And you sent a photo of yourself and block all identifiers, don’t you?
A: Yes.
Q: You also don’t care enough about the safety of this child to not speak to her,
correct?
A: Yes.
R., Vol. 3 at 412–14. On two occasions Defendant initially disagreed with the
prosecutor, but then the matter was clarified and the prosecutor did not challenge his
answer. See id. at 4112; id. at 4163. The only occasion when the prosecutor was clearly
challenging the veracity of Defendant’s testimony was the final exchange: “Q: You
showed up to take her V card, didn’t you? A: No.” Id. at 418.
2
Q: And I believe you indicated before that you don’t feel like you’re very Internet
[savvy]? Is that how you said that?
A: No.
Q: Yet you specifically informed the purported father in this case how to share a
picture with you on Kik, correct?
A: That’s totally different than –
Q: So you’re Internet [savvy] when it comes to Kik, but not Internet [savvy] on
Craigslist where you’re specifically going to a certain section on there?
A: Yes.
3
Q: So you showed up ready to meet the girl, correct?
A: No.
Q: Is that a yes or a no?
A: No.
Q: You showed up to meet her father, is that what you’re indicating?
A: Yes.
20
As the district court observed, “The defendant’s response to virtually every
question by the Government was yes.” Id. at 431. Rather than challenging Defendant’s
veracity, the prosecutor generally wanted the jury to believe all his answers except the
last. Indeed, the frankness of Defendant’s admissions on cross-examination likely led the
jury to conclude that Defendant was basically a truthful person. But given all those
admissions, it would be impossible to believe that he was really intending to act as an
agent of law enforcement rather than as a sexual predator. The prosecution was
challenging Defendant’s veracity with respect to a specific issue in the present case (his
intent), not his general truthfulness. See Renda, 347 F.3d at 554; Dring, 930 F.2d at 690–
91. And the basis for the challenge was merely the unbelievability of his statement of his
intent in light of the undisputed facts. See Kauz, 188 F.2d at 10 (“The mere fact that a
witness is contradicted by other evidence in the case does not constitute an attack upon
his reputation for truth and veracity.”) If this be an attack on Defendant’s character for
truthfulness, then such an attack occurs whenever the prosecution puts on evidence
contrary to a witness’s account. We decline to interpret Rule 608(a) as permitting
evidence of a witness’s character for truthfulness whenever the witness’s testimony is
challenged.
III. CONCLUSION
We AFFIRM Defendant’s conviction.
21