United States v. Payne ( 2006 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0060p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 05-1280
v.
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LEONARD I. PAYNE, -
Defendant-Appellant. -
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 04-80038—Robert H. Cleland, District Judge.
Argued: December 8, 2005
Decided and Filed: February 13, 2006
Before: MOORE, ROGERS, and McKEAGUE, Circuit Judges.
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COUNSEL
ARGUED: Margaret Sind Raben, GUREWITZ & RABEN, Detroit, Michigan, for Appellant.
Dawn N. Ison, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.
ON BRIEF: Margaret Sind Raben, GUREWITZ & RABEN, Detroit, Michigan, for Appellant.
Dawn N. Ison, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.
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OPINION
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KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Leonard I. Payne
(“Payne”) appeals his conviction for passing counterfeit obligations, in violation of 18 U.S.C. § 472.
Payne argues that the district court erred in admitting out-of-court statements under the
coconspirator-statement exclusion from the hearsay definition, because (1) Payne was not a member
of the conspiracy and (2) certain statements were not made in furtherance of the conspiracy. Payne
also asserts that the district court improperly limited the scope of his recross-examination of a
witness.
Because the statements were admissible non-hearsay and the district court did not
unconstitutionally limit the scope of recross-examination, we AFFIRM Payne’s conviction.
1
No. 05-1280 United States v. Payne Page 2
I. BACKGROUND
On Monday, April 24, 2000, Katherine Wells (“Wells”), the asset-protection manager of a
J.L. Hudson Department Store (“Hudson’s”) in Ann Arbor, Michigan, discovered $4,000 in
counterfeit currency in the weekend’s cash intake. The currency was of poor quality and was readily
identifiable as counterfeit. Based on the store’s video-surveillance system, Wells was able to
determine that the counterfeit currency had been accepted at the men’s suit department register
during a sale of approximately $3,972 on the evening of Saturday, April 22, 2000. Wells identified
two salespeople — Payne and Louis Myers (“Myers”) — and four shoppers in the video recording
of the area near that register at the time of the transaction. Both the video and a point-of-sale
transaction report revealed that Payne processed the sale.
Myers observed the transaction and thought it unusual for two reasons. First, the customers
selected a large amount of clothing in a short period of time while paying little attention to size or
style. Second, Payne acted unusually during the transaction, showing no signs of the salesmanship
that Myers had seen him employ in the past.
The events leading up to the passing of the counterfeit currency were filled in by Ollie Hall
(“Hall”), a participant in the scheme. Earlier that day, Hall encountered an old friend, Fred McClure
(“McClure”), at a gas station. When their conversation turned to whether Hall needed money and
clothes, McClure mentioned that he had a “hookup” at the mall. Hall agreed to go to the mall with
McClure, but first they went to Hall’s parents’ house. There, McClure and Hall were joined by two
other men. McClure retrieved a bag from his car and emptied its contents, about $8,000 in
counterfeit currency, on a table in the home. He explained that he typically used his “hookup” —
a cashier at Hudson’s who turned out to be Payne — to obtain multiple items of clothing for the
price of one, with the two then splitting the clothing. This time, however, McClure had plans to use
the counterfeit currency. When Hall expressed doubts that anyone would accept the currency
because it was obviously counterfeit, McClure reassured him that Payne would accept it. Indeed,
while at the house, McClure called Payne and then told Hall that everything would proceed as
planned.
About an hour later, McClure, Hall, and the two other men left the house to go to Hudson’s,
with each carrying about $2,000 of the counterfeit currency. On the way, McClure had another
telephone conversation with Payne. Once the four men arrived at Hudson’s, McClure told the others
to select the clothing they wanted, which they proceeded to do. McClure broke away from the group
to speak with Payne, after which McClure told Hall that everything was fine, that everyone should
choose what they wanted, and that he (McClure) had chosen the clothing that Payne wanted. Hall
understood this last point to mean that McClure would deliver this clothing to Payne as payment for
his role in the scheme. McClure “paid” for the clothing using the counterfeit currency that he and
Hall were carrying, after which the four men exited the store leaving Payne behind. Hall confirmed
that the video introduced during Wells’s testimony depicted this transaction.
The group proceeded to a different Hudson’s branch, where McClure and Hall returned some
of the clothing they had “purchased” in order to receive a cash refund. McClure gave some of these
proceeds to Hall and the two other men. At some point afterward, Hall was present when McClure
spoke with Payne by telephone. Upon the completion of the telephone conversation, McClure told
Hall that Payne had asked for the clothing he had selected during the transaction. McClure was
concerned that Payne might have talked to the police, and McClure resolved not to deliver the
clothing for fear that the police might be waiting.
Payne was indicted for passing counterfeit obligations, in violation of 18 U.S.C. § 472.
Neither Payne nor McClure testified at trial, but their statements were introduced via Hall’s in-court
testimony. Payne objected to the statements as hearsay, but the district court ruled that, as
No. 05-1280 United States v. Payne Page 3
coconspirator statements, they were admissible non-hearsay. Payne also objected to a limitation on
the scope of his recross-examination of Hall: the district court forbade questions regarding the type
of phone McClure used to call Payne, ruling that the topic had already been explored during cross-
examination and redirect examination. A jury convicted Payne, and he was sentenced to one month
in prison and three years of supervised release. Payne now appeals.
II. ANALYSIS
A. Hearsay
Subject to certain exceptions, hearsay is inadmissible. FED. R. EVID. 802. We begin by
noting that if the out-of-court statements introduced at Payne’s trial had not been offered to prove
the truth of the matter asserted, there would be no hearsay problem. FED. R. EVID. 801(c) (defining
hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted”). But the government does not make
this argument, and it in fact conceded at oral argument that the statements were offered to prove the
truth of the matter asserted. Thus, we proceed with the hearsay inquiry.
1. Standard of Review
Payne argues that the district court erroneously admitted the out-of-court statements included
in Hall’s testimony. “‘In reviewing a trial court’s evidentiary determinations, this court reviews de
novo the court’s conclusions of law, e.g., the decision that certain evidence constitutes hearsay, and
reviews for clear error the court’s factual determinations that underpin its legal conclusions.’”
United States v. McDaniel, 398 F.3d 540, 544 (6th Cir. 2005) (quoting United States v. Reed, 167
F.3d 984, 987 (6th Cir.), cert. denied, 528 U.S. 897 (1999)). “This standard is consistent with the
Supreme Court’s admonition in General Electric Co. v. Joiner, 522 U.S. 136, 142 (1997), that we
review evidentiary decisions for an abuse of discretion, because it is an abuse of discretion to make
errors of law or clear errors of factual determination.” Id.; see also United States v. Jones, 107 F.3d
1147, 1153-54 (6th Cir.), cert. denied, 521 U.S. 1127 (1997).
2. Merits
The Federal Rules of Evidence exclude from the definition of hearsay “a statement by a
coconspirator of a party during the course and in furtherance of the conspiracy.” FED. R. EVID.
801(d)(2)(E). In order for a statement to qualify for this exclusion, “it must first be determined that
the conspiracy existed, that the defendant was a member of the conspiracy, and that the
co-conspirator’s statements were made ‘in furtherance of the conspiracy.’” United States v. Gessa,
971 F.2d 1257, 1261 (6th Cir. 1992) (en banc). In making this determination, the district court “may
examine the hearsay statements sought to be admitted.” Bourjaily v. United States, 483 U.S. 171,
181 (1987). Yet the statements alone are not enough; they must be corroborated by independent
evidence. United States v. Clark, 18 F.3d 1337, 1341-42 (6th Cir.), cert. denied, 513 U.S. 852
(1994). The offering party must prove by a preponderance of the evidence that a statement should
be admitted under Rule 801(d)(2)(E). Bourjaily, 483 U.S. at 176.
a. Payne’s Membership in the Conspiracy
Payne first argues that the government did not prove a critical element of the coconspirator-
statement exclusion: his membership in the conspiracy.1 The challenged statements themselves are
evidence that Payne was part of the conspiracy. Id. at 181. According to Hall, McClure said that
he had a “hookup” who worked as a cashier at Hudson’s. Although the usual scheme involved
1
Payne does not argue that no conspiracy existed at all.
No. 05-1280 United States v. Payne Page 4
receiving multiple articles of clothing for the price of one, McClure declared that “this time he was
going to do something different, and that was with the counterfeit currency.” Joint Appendix
(“J.A.”) at 127 (Trial Tr. at 312) (Hall Test.). When Hall expressed doubts about whether the
counterfeit currency would be accepted, McClure “said this guy was going to let it go through.” Id.
at 128. Hall testified that after speaking on the telephone with Payne, McClure stated “[t]hat we can
come out there now, and he was going to let it go through and everything was cool.” Id. at 129.
Hall also testified to McClure’s report of his conversation with Payne at the store: McClure said
“[t]hat everything was straight, you know, go ahead and get what you all are going to get.” Id. at
135. McClure also indicated that he had selected clothing that he would give to Payne in return for
accepting the counterfeit currency. Finally, Hall testified that after a telephone conversation with
Payne after the transaction, McClure said that Payne had asked to obtain the clothing he had
selected. All of these statements suggest that Payne and McClure conspired to pass counterfeit
currency at Hudson’s.
Of course, these statements must be corroborated by independent evidence. Clark, 18 F.3d
at 1341-42. In Bourjaily, statements indicating that a “friend” would be at a certain time and place
to purchase cocaine were corroborated when the defendant showed up at the given time and place,
picked up the cocaine, and was found to have a large sum of money in his car. 483 U.S. at 180-81.
In the instant case, McClure’s statements were similarly corroborated by the events that transpired.
Payne was in fact a salesperson at Hudson’s who operated a cash register; McClure met and spoke
with Payne when the group arrived at Hudson’s; Payne permitted Hall and the others to get the
clothing they wanted; and Payne accepted the counterfeit currency.
Payne’s membership in the conspiracy is further supported by other evidence that goes
beyond the scope of the statements. First, a Secret Service special agent testified that when large
sums of counterfeit currency are passed, the recipient typically knows the passer and knows that the
currency is counterfeit. Second, the currency was readily identifiable as counterfeit. A Secret
Service special agent who has investigated approximately one hundred cases of counterfeit currency
testified that the currency in this case was of poor quality. Two other Secret Service special agents
testified that they could discern that the currency was counterfeit by sight and touch. Even two
laypersons — Hall and Wells2 — testified that they could tell the currency was counterfeit. Indeed,
Hall believed that the currency’s counterfeit nature was so obvious that he “thought that . . . nobody
would ever take it.” J.A. at 128 (Trial Tr. at 313) (Hall Test.). This evidence shows that a typical
cashier would have recognized (and presumably declined) the counterfeit currency. Payne’s
acceptance of obviously counterfeit currency supports the inference that Payne was not a typical
cashier, at least during this transaction.
Third, Payne acted strangely during the transaction. Myers testified that a salesperson
working on commission (as Myers and Payne did) typically attempts to increase sales by building
a relationship with the customer, which might take the form of learning about his “history” and
“needs,” accompanying him throughout the store in order to recommend items he might buy,
complimenting his selections, requesting permission to put him on a client list, and giving him a
business card. J.A. at 191-94 (Trial Tr. at 430-33) (Myers Test.). Myers praised Payne’s
salesmanship, id. at 191 (“quite a competent salesm[a]n”), 197 (“a pretty stiff competitor”), 198
(“quite a quality salesman”), suggesting that Payne knew of and used these methods. Indeed, Myers
had seen Payne employ some of them in the past. On this occasion, however, Payne did not use any
of these sales tactics. Id. at 192 (“there didn’t appear to be any significant interaction between Mr.
Payne and the individuals”; “I didn’t observe Mr. Payne suggestively selling or trying to build or
2
Although Wells was the asset-protection manager at Hudson’s, she had not been trained to identify counterfeit
currency, nor had she previously investigated counterfeit currency or even been made aware of its presence during her
tenure at Hudson’s.
No. 05-1280 United States v. Payne Page 5
grow a sale”; “I don’t think I saw Mr. Payne leave our area [to walk with the customers]”), 194-95
(testifying that Payne did not give the customers his business card or request permission to add them
to his client list). Another unusual aspect of Payne’s behavior was his lack of excitement about the
magnitude of the sale. Id. at 196 (“[Y]ou generally gloat a little bit on a sale like that. That’s a
pretty good little piece of 3money for you.”). Payne’s unusual behavior supports the inference that
this was no ordinary sale.
Thus, the evidence shows that McClure and Payne discussed “buying” clothes at Hudson’s
with counterfeit currency before, during, and after the transaction; Payne accepted counterfeit
currency even though it was readily identifiable as such; Payne’s behavior during the transaction
was unusual when compared to both a typical salesperson’s tactics and his own past salesmanship;
and large sums of counterfeit currency are commonly passed to a person (i.e., Payne) who both
knows the passer (i.e., McClure) and knows that the currency is counterfeit. Payne’s membership
in the conspiracy was proved by a preponderance of the evidence.
b. In Furtherance of the Conspiracy
Payne’s second hearsay argument is more narrowly directed at a subset of statements:
McClure’s statements telling Hall about Payne’s request for delivery of his (Payne’s) clothing.
According to Payne, these statements were not made in furtherance of the conspiracy and therefore
should not have been admitted as coconspirator statements.
Statements designed to conceal an ongoing conspiracy are made in furtherance of the
conspiracy for purposes of Rule 801(d)(2)(E).4 United States v. Franklin, 415 F.3d 537, 552 (6th
Cir. 2005); United States v. Tocco, 200 F.3d 401, 419 (6th Cir. 2000); United States v. Monus, 128
F.3d 376, 393 (6th Cir. 1997), cert. denied, 525 U.S. 823 (1998). McClure told Hall about Payne’s
request for his clothing in the context of revealing McClure’s own concerns that Payne had spoken
to the police. McClure told Hall that McClure did not intend to meet Payne for fear that the police
would be there. Because McClure’s statements were part of a discussion regarding concealment of
an ongoing conspiracy, they were made in furtherance of the conspiracy.
Yet this conclusion does not end our inquiry, because embedded in McClure’s statements
was another out-of-court statement: Payne’s request for his clothing. In order to admit an out-of-
court statement that is nested within another, Rule 805 requires that both statements be admissible.
E.g., United States v. Gibson, 409 F.3d 325, 337 (6th Cir. 2005); United States v. Demjanjuk, 367
F.3d 623, 631 (6th Cir.), cert. denied, 543 U.S. 970 (2004); United States v. Maliszewski, 161 F.3d
992, 1008-09 (6th Cir. 1998), cert. denied, 525 U.S. 1183 & 1184 (1999). We need not decide
whether Payne’s statement qualified for the coconspirator exclusion of Rule 801(d)(2)(E), however,
3
Payne objects to the significance of Myers’s observations because Myers testified that he also would have
made the sale despite the customers’ unusual behavior. The logic of Payne’s argument appears to be that because a
salesperson who was not part of the conspiracy (Myers) would have made the sale, one cannot infer from the fact that
the sale took place that Payne was part of the conspiracy. This argument misses the mark for two reasons. First, the
relevant aspect of Myers’s testimony is not that Payne made the sale despite the customers’ strange behavior but that
Payne himself acted unusually. Second, Myers did not see the currency, so his “admission” that he would have made
the sale tells us nothing about whether he would have done so even after seeing currency that was readily identifiable
as counterfeit.
4
It is crucial that the conspiracy be ongoing, as “statements regarding concealment that are made after the
objects of the conspiracy have been completed are not made in furtherance of the conspiracy.” United States v. Martinez,
430 F.3d 317, 327 (6th Cir. 2005) (citing Krulewitch v. United States, 336 U.S. 440 (1949)). Here, the conspiracy was
alive because the statements concerned payment, an “integral” part of a conspiracy. United States v. Hamilton, 689 F.2d
1262, 1270 (6th Cir. 1982), cert. denied, 459 U.S. 1117 (1983); see also United States v. Emuegbunam, 268 F.3d 377,
396 (6th Cir. 2001), cert. denied, 535 U.S. 977 (2002); United States v. Rios, 842 F.2d 868, 874 (6th Cir. 1988), cert.
denied, 488 U.S. 1031 (1989).
No. 05-1280 United States v. Payne Page 6
because in any event Payne’s statement was admissible under Rule 801(d)(2)(A) as a party-
opponent’s own admission. Gibson, 409 F.3d at 337; United States v. Davis, 170 F.3d 617, 626-27
(6th Cir.), cert. denied, 528 U.S. 861 (1999); Maliszewski, 161 F.3d at 1007-08.
In sum, the out-of-court statements contained in Hall’s testimony were admissible at trial
because each qualified for an exclusion from the hearsay definition under either Rule 801(d)(2)(E)
or Rule 801(d)(2)(A).
B. Recross-Examination
1. Standard of Review
Payne next argues that the district court erroneously limited the scope of his recross-
examination of Hall, in violation of the Confrontation Clause. See U.S. CONST. amend. VI (“In all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses
against him . . . .”). “An essential component of the confrontation clause is the accused’s right to
cross-examine the state’s witnesses.”5 Miskel v. Karnes, 397 F.3d 446, 452 (6th Cir. 2005) (citing
Davis v. Alaska, 415 U.S. 308, 315-16 (1974)). “However, the right to cross-examine is not
absolute.” United States v. Beverly, 369 F.3d 516, 535 (6th Cir.), cert. denied, 543 U.S. 910 (2004).
“[A] trial court retains discretion to limit the scope of cross-examination, based on concerns such
as ‘harassment, prejudice, confusion of the issues, the witness’[s] safety, or interrogation that is
repetitive or only marginally relevant.’” Mason v. Mitchell, 320 F.3d 604, 633 (6th Cir. 2003)
(second alteration in original) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).
Accordingly, we review restrictions on cross-examination for an abuse of discretion. United States
v. Hines, 398 F.3d 713, 716 (6th Cir. 2005); United States v. Kone, 307 F.3d 430, 436 (6th Cir.
2002). We apply the same abuse of discretion standard when reviewing limits on recross-
examination. United States v. Odom, 13 F.3d 949, 957 (6th Cir.), cert. denied, 511 U.S. 1094 and
513 U.S. 836 (1994).
5
We once said rather bluntly that the “denial of counsel’s request to recross examine one of the prosecution’s
witnesses” is only “an evidentiary question [that] does not rise to a constitutional level.” Kinser v. Cooper, 413 F.2d
730, 733 (6th Cir. 1969). Yet this court and others have suggested that foreclosing recross-examination after the
government elicits one or more new issues on redirect would constitute a Sixth Amendment violation. United States
v. Dandy, 998 F.2d 1344, 1350 (6th Cir. 1993) (rejecting a Sixth Amendment claim because the district court simply
limited questions that went beyond the scope of direct and redirect examination), cert. denied, 510 U.S. 1163 (1994);
United States v. Riggi, 951 F.2d 1368, 1375 (3d Cir. 1991) (“When material new matters are brought out on redirect
examination, the Confrontation Clause of the Sixth Amendment mandates that the opposing party be given the right of
recross-examination on those new matters.”); United States v. Caudle, 606 F.2d 451, 458 (4th Cir. 1979) (“To deny
recross examination on matter first drawn out on redirect is to deny the defendant the right of any cross-examination as
to that new matter.”); United States v. Morris, 485 F.2d 1385, 1387 (5th Cir. 1973) (noting that although there is no
absolute constitutional right to recross-examination, denial of recross-examination “rise[s] to the level of harmful error”
if new matters are raised on redirect). We do not read these cases to be at odds with Kinser, which did not specify
whether a new matter had been raised on redirect.
Moreover, reading Kinser so broadly that it permits denying recross-examination of newly raised issues would
be inconsistent with the purpose of the Confrontation Clause. “[T]he Clause’s ultimate goal is to ensure reliability of
evidence, but it is a procedural rather than a substantive guarantee. It commands . . . that reliability be assessed in a
particular manner: by testing in the crucible of cross-examination.” Crawford v. Washington, 541 U.S. 36, 61 (2004).
Of course, the reliability of new matters drawn out during redirect examination is as important as the reliability of new
issues raised on direct examination. Thus, when new matters are elicited on redirect, the Clause requires “testing in the
crucible of [re]cross-examination.”
No. 05-1280 United States v. Payne Page 7
2. Merits
We have permitted district courts to curtail or even to deny recross-examination if the
government elicits no new matters on redirect examination. Odom, 13 F.3d at 957; United States
v. Dandy, 998 F.2d 1344, 1350 (6th Cir. 1993), cert. denied, 510 U.S. 1163 (1994). In the instant
case, the relevant issue is what Hall told law-enforcement agents about McClure’s use of a Nextel
phone to contact Payne. This topic was first elicited during Payne’s cross-examination of Hall:
Q. Did you say anything about a Nextel phone to the agents?
A. I said that Fred [McClure] had a Nextel phone. That’s what he called his
friend on.
Q. Who did he call?
A. The guy at Hudson’s that was his hookup, his partner, his Fred’s [sic] buddy,
whatever. They called each other.
Q. On a Nextel phone?
A. Fred had a Nextel phone.
Q. Did he use a Nextel phone?
A. Yes. He used a Nextel phone.
Q. Tell me what a two-way mode is on a Nextel phone?
A. I don’t own a Nextel phone so I don’t know.
Q. Sir, didn’t you indicate that Fred had used the phone to do a two-way mode
phone on a Nextel phone?
A. He used it where he could talk to him where I could hear it.
Q. Did you tell the agents that Fred used a Nextel phone to contact a Hudson’s
cashier, Leonard Payne, who Fred referred to as his hookup using the Nextel
two-way mode?
A. Yes, I did tell them that.
J.A. at 174-75 (Trial Tr. at 403-04) (Hall Test.). On redirect, the government questioned Hall on
this issue:
Q. Now, [Payne’s counsel] just talked to you about the Nextel two-way mode
phone. Did you observe Fred with a Nextel phone?
A. Yes, I did.
Q. Okay. Did you — and I think you testified to this earlier, and correct me if
I’m wrong. Did you observe him talking on it as you traveled to the
Hudson’s store on April 22nd?
A. Yes, I did.
Q. Okay. And did he tell you who he was talking to?
A. Told me who he was talking to, yes.
Q. Who was that?
A. The guy he was going to see who worked at the Hudson’s.
Q. Okay. And did you overhear any of the conversation?
A. Both of them, I did, when he talked to him. I could hear him. I don’t know
if he had him on intercom. I don’t know if he had him on the two-way mode.
I’m not for sure. I don’t know how to work a Nextel. I don’t own one.
Q. Okay. But you told the agents that, in your statement, you told the agents
that you believed it was a Nextel two-way mode?
A. Yes.
Id. at 181-82.
No. 05-1280 United States v. Payne Page 8
Payne asked for an opportunity to recross-examine Hall, arguing that the government
“brought up some new topics about the Nextel phone.” Id. at 184. The district court denied Payne’s6
request, ruling that the topic had already been explored during cross-examination and redirect.
Payne argues that the district court erred because the government did in fact elicit a new issue on
redirect. To support this contention, Payne notes that after Hall testified on cross-examination that
he had told the agents that McClure had a Nextel phone, he testified on redirect that he had told the
agents that he believed McClure had a Nextel phone. In other words, according to Payne, Hall
expressed more doubt on redirect than on cross-examination.
Examination of the transcript reveals, however, that this supposed change in testimony is
illusory. Hall never actually used the word “believe” in his testimony on redirect; he simply
answered “yes” to a government question using that word. Id. at 181-82 (“Q. Okay. But you told
the agents that, in your statement, you told the agents that you believed it was a Nextel two-way
mode? A. Yes.” (emphasis added)). Hall’s supposed change was instead simply a function of the
slightly different phrasings employed by Payne and the government. Compare id. at 174-75 (Cross-
Examination: “Q. Did you say anything about a Nextel phone to the agents?”; “Q. Did you tell the
agents that Fred used a Nextel phone to contact a Hudson’s cashier, Leonard Payne, who Fred
referred to as his hookup using the Nextel two-way mode?”), with id. at 181-82 (Redirect: “Q.
Okay. But you told the agents that, in your statement, you told the agents that you believed it was
a Nextel two-way mode?”). One would hardly expect a witness — especially a non-lawyer — to
notice the difference between these two questions, let alone intend to convey a different meaning
simply by responding, “Yes.”
The conclusion that there was no real change in the testimony about what Hall told the
agents is further supported by the testimony regarding what Hall saw. On both cross-examination
and redirect, Hall testified without hesitation or qualification that McClure had a Nextel phone.
Compare id. at 174-75 (Cross-Examination: “Q. Did he use a Nextel phone? A. Yes. He used a
Nextel phone.”), with id. at 181 (Redirect: “Q. . . . Did you observe Fred with a Nextel phone?
A. Yes, I did.”).
Finally, Payne’s reliance on two out-of-circuit precedents does not change the result. In each
case, the district court denied the opportunity for recross-examination even though new information
had been elicited on redirect. See United States v. Riggi, 951 F.2d 1368, 1375-76 (3d Cir. 1991);
United States v. Caudle, 606 F.2d 451, 458-59 (4th Cir. 1979). In contrast, and for the reasons
explained above, no new information was raised on redirect in the instant case.
Because the government elicited no new information on redirect, the district court did not
abuse its discretion by limiting the scope of Payne’s recross-examination of Hall.
III. CONCLUSION
For the reasons set forth above, we AFFIRM Payne’s conviction.
6
The court did, however, permit Payne to ask two more questions about Hall’s plea agreement with the
government.