United States v. Cherie Courtney ( 2011 )

Case: 10-30860 Document: 00511587873 Page: 1 Date Filed: 08/30/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 30, 2011
No. 10-30860
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CHERIE MARIE COURTNEY,
Defendant-Appellant.
Appeal from the United States District Court
for the Middle District of Louisiana
No. 3:04-CR-175
Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Cherie Courtney appeals her conviction of perjury. Finding no error, we
affirm.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 10-30860
I.
Courtney was charged with two counts of perjury under 18 U.S.C. § 1623as a result of giving false testimony in a criminal trial of a person with whom her
company did business. She was cross-examined by the government, which asked
whether she had previously been questioned by Billy Bass, a vice-president,
about her improper use of a business cell phone. Courtney objected to the ques-
tion (1) on the basis of relevance; (2) because she had not been provided with any
information about wrongful conduct in accordance with Federal Rule of Evidence
404(b); and (3) on hearsay grounds. The court overruled the first two objections
but sustained the third. The government then asked Courtney whether she
remembered admitting to Bass that she had lied to him about not using her busi-
ness cell phone for personal matters. Courtney responded that she did not recall
that conversation.
Next, the government asked Courtney whether she recalled being con-
fronted by Bass about a business trip during which she failed to conduct the
duties she was sent to perform. Courtney testified that she had not been sent
on the trip to perform those particular duties and that she did not recall being
confronted by Bass about her conduct on that trip. During this line of question-
ing, Courtney objected once on the basis of double-hearsay, but the court over-
ruled the objection.
The government asked Courtney whether she remembered failing to pro-
vide Bass with a police report concerning an accident while driving a company
vehicle, because the report would have contradicted Courtney’s earlier assertion
to Bass that she was not at fault in the wreck. Courtney responded that she did
not remember failing to provide Bass with the report.
During rebuttal, the government asked Bass whether he recalled any spe-
cific occasions on which he believed Courtney lied to him. Bass responded, “On
occasion, I would say yes.” Bass also testified that his opinion regarding Court-
2
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No. 10-30860
ney’s truthfulness was that it was “probably shady.”1
The district court found Courtney guilty on both counts. On appeal, she
argues that the district court reversibly erred by not requiring the government
to establish a good-faith factual basis for the portions of its cross-examination
concerning her truthfulness in her conversations with Bass.
II.
Where a defendant timely objects to an evidentiary ruling, we review for
abuse of discretion. United States v. Sumlin, 489 F.3d 683, 688 (5th Cir. 2007).
The objection to the admission of evidence must be sufficiently specific, such that
testimony could be taken and arguments could be made, allowing the district
court to address the issue properly. United States v. Burton, 126 F.3d 666, 671
(5th Cir. 1997).
Where the defendant does not adequately object to the evidence, we review
for plain error. Id. “We find plain error when (1) there was an error or defect;
(2) the legal error was clear or obvious, rather than subject to reasonable dis-
pute; and (3) the error affected the defendant’s substantial rights.” United
States v. Juarez, 626 F.3d 246, 254 (5th Cir. 2010). Because the three grounds
on which Courtney objected to the cross-examination did not encompass any con-
tention that the government lacked a good-faith factual basis for the cross-
examination, we review only for plain error.
III.
Federal Rule of Evidence 608(b) provides that “[s]pecific instances of the
conduct of a witness, for the purpose of attacking or supporting the witness’
character for truthfulness, other than conviction of crime as provided in rule 609,
1
Bass later expounded on his use of the word “shady”: “Shady. What I mean by that
is, not derogatory or anything, it’s not perfect, but its not bad, either.”
3
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No. 10-30860
may not be proved by extrinsic evidence.” Rule 608(b) does, however, permit
cross-examination regarding specific incidents of conduct of a witness if the tes-
timony is probative of the witness’s character for truthfulness.
For testimony about such an alleged bad act to be admissible under Rule
608(b), the questioning party must have a good-faith factual basis for the ques-
tioning. United States v. Nixon, 777 F.2d 958, 970-71 (5th Cir. 1985). That does
not mean that the basis-in-fact for the questioning must be proved before a good-
faith-inquiry may be made. Id. at 970. “[T]he government does not have a duty
in every case to introduce the factual predicate for a potentially prejudicial ques-
tion posed on cross-examination.” United States v. Davis, 609 F.3d 663, 681 (5th
Cir. 2010) (citation omitted). This principle holds especially true where there is
no contemporaneous objection to the cross-examination. Id.Although the government did not establish a factual basis for its question-
ing concerning Courtney’s past lies to Bass before it questioned Courtney about
the incidents, its good-faith factual basis was apparent during its direct examin-
ation of Bass on rebuttal, during which Bass testified that Courtney had lied to
him on occasion and that his opinion of Courtney’s truthfulness was that she
was “shady.” Any further questioning about these incidents was cut off by
Courtney’s own counsel’s objection. Accordingly, there was no error, let alone
plain error, in allowing the government’s questioning of Courtney on these
points.
AFFIRMED.
4