United States v. Bruce A. Beckman ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 99-2975
___________
United States of America, *
*
Plaintiff-Appellee, *
* Appeals from the United States
v. * District Court for the
* District of South Dakota.
Bruce A. Beckman, *
*
Defendant-Appellant. *
___________
No. 99-2978
___________
United States of America, *
*
Plaintiff-Appellee, *
*
v. *
*
Thomas Kelly, *
*
Defendant-Appellant. *
___________
Submitted: March 15, 2000
Filed: August 2, 2000
___________
Before RICHARD S. ARNOLD, LAY, and BEAM, Circuit Judges.
___________
LAY, Circuit Judge.
I. FACTUAL AND PROCEDURAL BACKGROUND
On January 16, 1997, Bruce A. Beckman and Thomas Kelly, along with six other
defendants, were charged by indictment with Conspiracy to Distribute a Controlled
Substance, in violation of 21 U.S.C. §§ 841(a)(1) and 846. On March 13, 1997, these
same individuals were charged by Superseding Indictment, altering the time frame but
not the crimes charged. Prior to trial, a number of the defendants changed their pleas
and entered guilty pleas. Specifically, George Bradstream, Davia Haines, John Root,
and Gene Rossman each entered into plea agreements by which they could receive
recommended reduced sentences in exchange for providing “substantial assistance” to
the prosecution. The remaining defendants, Beckman, Kelly, and two others,
proceeded to trial, which began June 22, 1998. On June 29, 1998, the district court
declared a mistrial due to the jury’s inability to reach a verdict. Following this trial, but
prior to retrial, the other two defendants entered guilty pleas, leaving Beckman and
Kelly to be re-tried beginning April 6, 1999. A guilty verdict was returned against each
on April 9, 1999.
The conspiracy at issue centered on Patrick Mitchell, who had moved to South
Dakota in early 1995 and began importing methamphetamine from his prior home state
of Oregon. Mitchell made driving trips from South Dakota to the West Coast with
various individuals, including Beckman, to obtain methamphetamine. Mitchell initially
imported smaller amounts of the drug, but with the passage of time and the growth of
the conspiracy, he eventually transported larger quantities. The drugs were sometimes
stored at Beckman’s residence. Mitchell temporarily lived at Kelly’s house and
provided Kelly with drugs in lieu of rent.
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During the course of the conspiracy, Mitchell’s ex-wife, Dana Chaffee, also
moved from Oregon to South Dakota, and the relationship between the two resumed.
Chaffee assisted with the drug operation by traveling with Mitchell, keeping records,
distributing drugs, and collecting money, all at Mitchell’s direction. Because of her
involvement, Chaffee was able to identify both Beckman and Kelly as being
participants in the drug conspiracy.
It was after Mitchell’s death in the fall of 1996, that evidence of the drug
conspiracy surfaced and the eight defendants were indicted.
II. DISCUSSION1
A. BECKMAN’S APPEAL
On appeal, Beckman claims: 1) the district court erred by failing to specifically
voir dire potential jurors on the presumption of innocence and the government’s burden
of proof; 2) the district court insufficiently instructed the jury on the government’s
control of sentence reduction in connection with plea bargains, resulting in insufficient
instruction on witness credibility; 3) the district court erred by failing to give a
supplemental jury instruction on the buyer/seller principle in response to a jury
question; and 4) the evidence was insufficient to sustain the verdict. We affirm
Beckman’s conviction on all issues.
1
In his briefs to this court, Kelly submits that, pursuant to Federal Rule of
Appellate Procedure 28(i), he joins the issues and arguments set forth in Beckman’s
briefs. The government contests the sufficiency of this blanket, non-specific joinder.
Finding no merit to the issues raised by Beckman, and in light of the fact that our
disposition of the claims briefed by Kelly affords him a new trial, we need not decide
whether Kelly properly joined Beckman’s issues.
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1. Voir Dire
Beckman contends that the district court erred in conducting voir dire by failing
to specifically question potential jurors regarding the presumption of innocence and the
government’s burden of proving all charges beyond a reasonable doubt. We disagree.
It is undisputed that voir dire is critical to ensuring a defendant’s right to trial by
an impartial jury. In Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981)
(citations omitted), Justice White, speaking for the plurality, stated:
Voir dire plays a critical function in assuring the criminal defendant
that his Sixth Amendment right to an impartial jury will be honored.
Without an adequate voir dire the trial judge's responsibility to remove
prospective jurors who will not be able impartially to follow the court's
instructions and evaluate the evidence cannot be fulfilled. Similarly, lack
of adequate voir dire impairs the defendant's right to exercise peremptory
challenges where provided by statute or rule, as it is in the federal courts.
It is also well-settled, however, that district court’s have broad discretion in conducting
voir dire. See id. at 188-89. When no contemporaneous objection is made to the
conduct of voir dire, as is true in this case,2 this court reviews challenges under the
plain error standard. See United States v. Van Chase, 137 F.3d 579, 582 (8th Cir.
1998). When considering challenges to voir dire, “the central inquiry is whether the
overall jury examination, coupled with the jury charge, adequately protects the
2
During voir dire, the district court held two bench conferences to inquire of all
counsel whether there were further lines of inquiry necessary. At no point did any
counsel request further instruction or inquiry on the presumption of innocence or
burden of proof.
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defendant from prejudice.” United States v. Eagle Hawk, 815 F.2d 1213, 1219 (8th
Cir. 1987).
In United States v. Cosby, 529 F.2d 143 (8th Cir. 1976), this court faced a
question similar to that presented here. On appeal, the defendant in Cosby argued that
the district court, while not bound by the language of the suggested questions, should
have more thoroughly explored the notions of presumption of innocence and
governmental burden of proof. The Cosby court, after reviewing the transcript of the
voir dire and jury instructions, rejected this argument in light of the court’s general
instructions on the presumption and burden, the overall thoroughness of the voir dire
inquiry, and the inquiry of the potential jurors regarding whether they could abide by
the court’s instructions. See id. at 148-49.
On a number of occasions during voir dire in this case, the district court
generally addressed the issues of presumption of innocence and governmental burden.
Specifically, the court stated:
[D]efendants are presumed to be innocent of this crime and that
presumption stays with them throughout the trial until the jury returns a
verdict after due deliberation that the defendants either are guilty or not
guilty of the offense for which they have been indicted.
And the burden of proof based upon that presumption is by what
is called proof beyond a reasonable doubt.
Further, the district court discussed and instructed on these principles on at least two
other occasions. We recognize that the district court did not specifically ask each
potential juror whether they comprehended and could apply these legal principles;
however, it did instruct the panel that it must accept the law as provided by the court
and then asked for a show of hands of those who could do so. The record reveals that
every juror’s hand was raised.
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We find that the overall voir dire and instructions in this case adequately
apprized the potential jurors of the presumption of innocence and the government’s
burden of proof. Additionally, this court should and does assume that a jury, sworn by
oath to follow the law, did, in fact, do so. Therefore, we hold that a district court need
not ask prospective jurors specific questions on their ability to apply instructions on
these principles, especially when no contemporaneous objection is made. Accord
United States v. Miller, 758 F.2d 570 (11th Cir. 1985) (holding court was not required
to ask specific questions of potential jurors regarding burden of proof, presumption of
innocence, reasonable doubt, and whether they agreed with such principles);
Grandsinger v. United States, 332 F.2d 80 (10th Cir. 1964) (finding no abuse of
discretion where court refused to explain legal principles of reasonable doubt and
presumption of innocence and refused to ask whether prospective jurors would give
accused the benefit of these principles); United States v. Price, 577 F.2d 1356 (9th Cir.
1978) (finding no error when court refused to instruct on presumption of innocence and
burden of proof and failed to ask jurors whether such laws were fair, where court did
ask if jurors would follow instructions and, at the close of trial, instructed on such
principles); United States v. Wooton, 518 F.2d 943 (3d Cir. 1975) (finding no abuse
of discretion in court’s refusal to propound requested questions regarding whether
panel could accept and apply legal principle of proof beyond reasonable doubt); United
States v. Gillette, 383 F.2d 843 (2d Cir. 1967) (finding no abuse of discretion where
court refused to ask jury panel whether legal principles of reasonable doubt and
presumption of innocence were understood). But cf. United States v. Blount, 479 F.2d
650 (6th Cir. 1973) (holding, where specific request is made, a court’s failure to
specifically inquire of prospective jurors on ability to accept and abide by the
presumption of innocence is a denial of right to impartial jury); United States v. Hill,
738 F.2d 152 (6th Cir. 1984) (holding, where specific request is made, court’s failure
to ask questions of prospective jurors regarding their understanding and ability to apply
instructions on burden of proof and presumption of innocence is reversible error). We
hold, following the majority of circuit courts, the district court did not plainly err in
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failing to more specifically or individually question potential jurors on the legal
principles at issue.
2. Jury Instructions
Beckman asserts that the district court’s instructions to the jury did not
adequately instruct on the government’s role in sentencing departures so as to allow a
proper assessment of witness credibility. We review the district court's jury
instructions for abuse of discretion. See Grain Land Coop v. Kar Kim Farms, Inc., 199
F.3d 983, 995 (8th Cir.1999). In conducting such review, this court must determine
“whether the instructions, taken as a whole and viewed in light of the evidence and
applicable law, ‘fairly and adequately submitted the issues in the case to the jury.’” Id.
(quoting White v. Honeywell, Inc., 141 F.3d 1270, 1278 (8th Cir. 1998)). 3
3
In its brief to this court, the government notes that when a defendant fails to
preserve a claim of instructional error, this court’s review is for plain error. See United
States v. McNeil, 184 F.3d 770, 777 (8th Cir. 1999). We note that during the colloquy
on the jury instructions both Beckman’s and Kelly’s attorneys voiced objections to
Instruction 13 and Beckman’s attorney offered Proposed Instruction 5. When rejecting
Proposed Instruction 5, the district court stated that Instruction 13 was the more
accurate statement of law. Because under either standard of review the district court’s
instructions were proper, we need not specifically address whether this exchange was
sufficient to preserve the claim of instructional error for appellate review.
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The issue of plea bargaining and its impact on sentencing and credibility was
discussed in Jury Instruction 13.4 Beckman objected to this instruction, arguing that
it was both inaccurate and an insufficient advisement of the government’s exclusive
capacity to decide whether a witness provided sufficient prosecutorial help to warrant
a motion for downward departure. Beckman offered Proposed Instruction 5 as an
alternative. Proposed Instruction 5 emphasized the prosecutor’s role and specifically
instructed the jury to consider the possibility that the government’s power might
motivate a witness to craft testimony accordingly.
As this court stated in United States v. Kabat, 797 F.2d 580, 588 (8th Cir. 1986):
It is not grounds for reversal that the charge might have been differently,
or even better, worded; a district court has wide discretion on choice of
4
Instruction 13 states, in pertinent part:
Plea agreements, grants of immunity, and consideration for reduced
sentences based upon cooperation and testimony in the trial of others are
recognized by law as legitimate tools of law enforcement. The wisdom
of a plea agreement and decision of prosecutors not to prosecute persons
involved in criminal conduct are the exclusive decision for the prosecution
and not matters for your consideration. Sentencing decisions are the
exclusive responsibility of the Court once a plea agreement is entered into
by the parties. Likewise, a further reduction in the sentence of
cooperating witnesses is the exclusive decision of the Court based upon
the government’s motion for a sentence reduction upon the filing of such
motion. The Court is free to exercise its independent decision as to
whether to grant the motion and, if granted, the extent of the departure
from either a mandatory minimum or a sentence below the United States
Sentencing Guidelines. In an appropriate case, the Court can provide a
sentence below the statutory mandatory minimum without a motion by the
government to do so.
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language, and we will not find that discretion abused when the
instructions as a whole accurately and adequately state the relevant law.
Instruction 13 was an accurate statement of law, touching upon the role of each party
in sentencing. Furthermore, we note that a number of the prosecution’s witnesses
testified to the government’s role in moving the sentencing court for downward
departure based on their cooperation. In light of this, we find the jury was sufficiently
aware of the sentencing process and any potential a cooperating witness may have to
please the prosecutor. Thus, when taken as a whole, the instructions in this case
accurately set forth the applicable law and we find no abuse of discretion on the part
of the district court in giving Instruction Number 13 and failing to give Proposed
Instruction Number 5.
3. Supplemental Jury Instruction
During jury deliberation in the second trial, members of the jury sent a written
question to the court asking: “If an amount of Meth. is distributed from one person to
another. Are both parties involved in conspiracy to distribute or is only the person
giving the drugs part of the conspiracy? and the other just guilty of possession?”
Following a discussion with counsel in chambers, the district court decided not to give
any supplemental instruction. Instead the district court referred the jury back to
Instructions 8 and 9, which set forth the elements and definition of a drug conspiracy,
and instructed the jury not to single out any one instruction during deliberation.
Beckman asserts that in light of this court’s expressed approval of buyer/seller
instructions and the fact that his proffered defense was that of merely being a buyer, the
district court abused its discretion by failing to give a supplemental instruction. We
disagree.
A trial court’s response to a jury’s request for supplemental instruction is a
matter within the sound discretion of the trial court. See United States v. Smith, 104
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F.3d 145, 148 (8th Cir. 1997) (citing United States v. White, 794 F.2d 367, 370 (8th
Cir. 1986)). When a jury explicitly requests supplemental instruction, a trial court
“must take great care ‘to insure that any supplemental instructions are accurate, clear,
neutral, and non-prejudicial.’” Id. (quoting United States v. Skarda, 845 F.2d 1508,
1512 (8th Cir. 1988)). This court has recognized that, in responding to a jury’s request
for supplemental instruction, it may be proper at times to simply refer the jury back to
the original instructions. See United States v. Gibbons, 968 F.2d 639, 646 (8th Cir.
1992).
Admittedly, this court has expressed approval of jury instructions marking a
distinction between buyers and sellers in drug conspiracy cases. See United States v.
Cabbell, 35 F.3d 1255 (8th Cir. 1994). In Cabbell, the court initially instructed on the
buyer/seller distinction, noting that transient sales where the buyer is purchasing drugs
only for personal use do not, standing alone, make a buyer a co-conspirator with a
seller. This court accepted such instruction as an accurate statement of the law.
Critically, however, approval of the initial instruction in Cabbell does not necessitate
an identical instruction be given in every case, so long as the instructions fairly and
adequately set forth the issues and applicable law.
In the present case, the district court’s initial instructions accurately and
thoroughly provided the elements and definition of the crimes charged. We cannot say
that it was an abuse of discretion for the court to refer to the jury back to the proper and
adequate instructions already given.
4. Sufficiency of the Evidence
Beckman argues that the evidence presented by the government is insufficient
to sustain his conviction for conspiracy to distribute methamphetamine. He contends
that the evidence presented was internally conflicting, incredible, tainted by the plea
agreements, and, at most, established that he bought and used methamphetamine for
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personal use. We disagree and find the evidence more than sufficient to uphold
Beckman’s conviction.
The standard of review for sufficiency of the evidence claims is whether, in the
light most favorable to the government, and giving the government the benefit of all
reasonable inferences, there is substantial evidence to support the jury's verdict. See
United States v. Gaines, 969 F.2d 692, 696 (8th Cir. 1992). Both direct and
circumstantial evidence can be the basis of a conviction. See United States v. Erdman,
953 F.2d 387, 389 (8th Cir. 1992). To convict an individual of conspiracy, the
government must prove “that there was a conspiracy with an illegal purpose, that the
defendant was aware of that conspiracy, and that he or she knowingly became a part
of it.” United States v. Mosby, 177 F.3d 1067, 1069 (8th Cir. 1999) (citing United
States v. Bass, 121 F.3d 1218, 1220 (8th Cir.1997)). “‘Once the government
establishes the existence of a drug conspiracy, only slight evidence linking the
defendant to the conspiracy is required to prove the defendant's involvement and
support the conviction.’” Id. (quoting United States v. Jenkins, 78 F.3d 1283, 1287
(8th Cir.1996)).
When viewed in the light most favorable to the government, the evidence
presented at trial reveals: Beckman was seen receiving and admitted to purchasing
methamphetamine from Mitchell; Beckman took trips to the West Coast with Mitchell
to aid in the transportation of methamphetamine and to invest, up-front, in the purchase
of the drugs; Mitchell’s drug ledger contained entries demonstrating that Beckman had
purchased drugs and continued to carry debts on such deals; the amount of debt
evidenced by the ledger supports the idea that Beckman was not a mere buyer;
Beckman stored drugs on his property for Mitchell; and Beckman assisted in the “break
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down” process of the methamphetamine.5 We find this evidence more than sufficient
to support Beckman’s conviction for conspiracy to distribute.
After having thoroughly reviewed the record and each of the four issues raised
by Beckman, we find no prejudicial ground of error and affirm his conviction.
B. KELLY’S APPEAL
On appeal, Kelly argues: 1) the district court erred by unconditionally admitting
into evidence a ledger, address books, and pocket pal prior to making the requisite
foundational findings; 2) his right to confrontation was violated by the district court’s
limitation of cross-examination of two witnesses; and 3) the prosecutor committed
prosecutorial misconduct in closing argument by suggesting facts not in the record. We
reverse and remand Kelly’s case for a new trial.
1. Admission Into Evidence of Ledger, Address Books and Pocket Pal6
Kelly argues that the district court erred in unconditionally admitting into
evidence a number of exhibits, including a ledger, address books, and a pocket pal,
prior to making required foundational findings. We reject Kelly’s contention.
We review a district court's evidentiary decisions for abuse of discretion and will
reverse only if an error substantially prejudiced the outcome. See United States v.
5
“Breaking down” drugs is the process by which a large quantity of drugs is
divided and carefully weighed out into smaller portions for purposes of resale and
distribution.
6
All three pieces of evidence raise the same issues on appeal and were briefed
as a single issue by the parties. As our reasoning in finding no error in their admission
is identical, we unify our discussion of them.
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Roach, 164 F.3d 403, 408 (8th Cir. 1998). Under Federal Rule of Evidence
801(d)(2)(E), a statement is not hearsay if made by “a coconspirator of a party during
the course and in furtherance of the conspiracy.” It is well-established that to admit
such a statement the government must demonstrate, by a preponderance of the
evidence, “(1) that a conspiracy existed; (2) that the defendant and the declarant were
members of the conspiracy; and (3) that the declaration was made during the course
and in furtherance of the conspiracy.” United States v. Bell, 573 F.2d 1040, 1043 (8th
Cir. 1978).7 See also United States v. Guerra, 113 F.3d 809, 813 (8th Cir. 1997);
United States v. Escobar, 50 F.3d 1414, 1423 (8th Cir. 1995). A district court’s
determination that these specific conditions have been met is reviewed under the clearly
erroneous standard. See United States v. Oseby, 148 F.3d 1016, 1023 (8th Cir. 1998).
When determining whether a conspiracy existed, a court may consider the co-
conspirator’s statement itself. See Bourjaily v. United States, 483 U.S. 171, 181
(1987).
On direct examination, Chaffee, the government’s first witness, testified that the
ledger, a small, spiral notebook, was used by Mitchell to keep track of money owed
and paid on methamphetamine sales. She further testified that she had seen him buy
the ledger and write in it, she recognized his handwriting, and she wrote in the ledger
on occasion at his direction. The writing in the ledger consisted solely of initials,
nicknames, and numbers, which Chaffee testified she could decipher. Additionally,
Chaffee identified two address books which she testified she had purchased for
Mitchell and that he used to keep track of contacts. She testified similarly regarding
the pocket pal. The government offered these exhibits into evidence and Kelly’s
counsel objected on grounds of hearsay, improper foundation, lack of due process, and
7
Kelly contends that admission of such a statement also requires sufficient indicia
of reliability to satisfy the Confrontation Clause. As we noted in United States v.
Roach, 164 F.3d 403, 409 n.5 (8th Cir. 1998), that proposition was rejected in
Bourjaily v. United States, 483 U.S. 171, 182-83 (1987).
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a violation of the Confrontation Clause. The district court admitted the exhibits without
making any foundational findings on the record. Chaffee then continued to testify,
indicating that, according to the notations in the ledger, Kelly owed Mitchell $1,500 for
methamphetamine purchased. It was only after this testimony that the district court
held a sidebar and found: 1) a conspiracy existed; 2) defendants and declarant were
arguably a party thereto; and 3) the declarations as to the sale of drugs in the ledger
were in furtherance of the conspiracy.
Kelly argues that at the time of this admission, the government had established,
at most, the existence of a conspiracy, but not his membership therein. Further, Kelly
contends that the ledger itself did not establish his membership by a preponderance of
the evidence, because the mere existence of “TK” and “Tom” next to numbers was
insufficient evidence. Thus, Kelly argues that the district court erred when it admitted
the evidence. We disagree.
The evidence presented to the district court at the time it made its preliminary
finding of admissibility demonstrated: Chaffee and Mitchell were engaged in a
conspiracy to sell methamphetamine; the ledger itself contained reference, albeit
cryptic, to Kelly; the purpose of the ledger was bookkeeping, thus demonstrating that
the statements therein were in furtherance of the conspiracy; and Kelly had knowingly
received methamphetamine from Mitchell. This evidence is sufficient to satisfy the
requisite findings.
Even if this court were to find the evidence insufficient at the time of admission,
any error from premature admission of the exhibits was harmless. We note that the
district court eventually made specific findings on the foundational elements, stating:
“The evidence is clear in this case that a conspiracy did exist, that the defendants and
the declarant were part of that conspiracy, and that the statements which were
admissible were made in furtherance of the conspiracy.” In light of the fact that the
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evidence would eventually have been admissible8 and the lack of a showing that the
arguably premature admission carried any prejudice, we find any error harmless.
2. Right to Confront and Cross-Examine
Kelly argues that his Sixth Amendment right of confrontation was violated when
the district court impermissibly restricted his cross-examination of two witnesses,
George Bradstream and Sandra Basham. We agree.
The Sixth Amendment guarantees a defendant an opportunity for effective cross-
examination of witnesses, including inquiry into motivation and bias. See United States
v. Warfield, 97 F.3d 1014, 1024 (8th Cir. 1996). The Confrontation Clause is not,
however, without limit; courts “retain wide latitude insofar as the Confrontation Clause
is concerned to impose reasonable limits on such cross-examination based on concerns
about, among other things, harassment, prejudice, confusion of the issues, the witness’
safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van
Arsdall, 475 U.S. 673, 679 (1986). See also Harrington v. Iowa, 109 F.3d 1275, 1278
(8th Cir. 1997). A critical factor in determining whether the right to confrontation has
been violated is whether defendant had other means available to obtain the same effect
as the excluded inquiry. See Warfield, 97 F.3d at 1024 (citing United States v.
Campbell, 845 F.2d 782, 788 (8th Cir. 1988)). If a reasonable jury might have received
a significantly different impression of a witness’ credibility had counsel been permitted
to pursue the proposed line of cross-examination, defendant has stated a Confrontation
Clause violation. See Harrington, 109 F.3d at 1277. “Absent a clear abuse of
discretion and a showing of prejudice, we will not reverse a district court’s ruling
8
At oral argument before this court, counsel for Kelly conceded that if the district
court had made the findings on the record at the outset or had only conditionally
admitted the evidence initially, the instant argument would not stand because the items
would have been properly admitted.
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limiting cross-examination of a witness on the basis that it impermissibly infringed upon
the defendant’s right of confrontation.” United States v. Brown, 110 F.3d 605, 611 (8th
Cir. 1997).
We find the district court’s limitation on the cross-examination of each of these
two critical witnesses violated Kelly’s Sixth Amendment right of confrontation and that
such limitation was not harmless.
a) Examination of Bradstream
On direct examination by the government, Bradstream testified he met Mitchell
at Kelly’s residence, he initially purchased methamphetamine from Kelly while Mitchell
resided at Kelly’s house, and he used methamphetamine with Kelly on multiple
occasions. Further, he testified he had known Kelly for over twenty years, considered
him a friend in the past, and still considered him a friend. On cross-examination,
Kelly’s attorney attempted to inquire into the scope of this friendship by asking
Bradstream whether he had tried to have sex with Kelly’s wife. The following
exchange occurred:
Q. You have told this jury that you still consider [Kelly] to be your
friend today, don’t you?
A. Yes, I do.
Q. You are as sure about that as you are about the rest of your
testimony?
MR. VARGO: Objection, Your Honor; argumentative.
THE COURT: I am not sure where you are going, counsel. He
has answered your question.
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...
Q. Now, you tried to have sex with Tom Kelly’s wife, didn’t you?
MR. VARGO: Objection, Your Honor.
THE COURT: Sustained.
Q. (MR. RENSCH CONTINUING:) Did you ever have any
controversy with Tom Kelly about his wife?
A. No.
Q. Did you ever, while you were drinking, ask [Kelly’s] wife to go to
bed with you?
MR. VARGO: Objection; relevance, Your Honor.
THE COURT: Sustained.
Q. (MR. RENSCH CONTINUING:) Do you think a friend would try
to sleep with a friend’s wife?
MR. VARGO: Objection, Your Honor.
THE COURT: Counsel, I have ruled on that objection twice now.
Why do you -- do not persist in that line of
questioning.
Following this, Kelly’s attorney made an offer of proof that Bradstream had testified
at the first trial that he had, in fact, asked Kelly’s wife to sleep with him. He asserted
that this testimony went to Bradstream’s motivation and bias. The district court
rejected this and disallowed the inquiry, finding that Bradstream had been thoroughly
cross-examined on his plea agreement, believability, and his ability to recall events.
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Further, the district court found that even if the testimony would arguably show bias,
its probative value was outweighed by its prejudicial impact.
We disagree with the district court. Bradstream’s testimony that he still
considered Kelly a friend worked to buttress his credibility and create the inference that
he had no motivation to lie. We find that impeaching and rebutting this inference was
a critical factor in Kelly’s defense. The additional information that could have been
obtained through cross-examination could substantially have changed the impression
the jury had of this important witness. Thus, we find the line of inquiry should have
been allowed. In light of the fact that Bradstream was an important government
witness, that his testimony regarding his “friendship” with Kelly bolstered his
credibility, and that during the first trial, when the district court allowed the inquiry, a
hung jury resulted, this court cannot say that the error was harmless beyond a
reasonable doubt. Thus, we find that the district court impermissibly limited cross-
examination so as to violate Kelly’s Sixth Amendment right to confrontation.
b) Examination of Basham
On January 23, 1997, Kelly was arrested. Special Agent Sandra Basham of the
Drug Enforcement Agency participated in this arrest pursuant to a federal arrest warrant
and thereafter conducted a custodial interview of Kelly. Basham testified that Kelly
admitted he had pooled money with friends to buy methamphetamine from Mitchell,
sold drugs provided, accepted drugs in lieu of rent, handed out envelopes as per
Mitchell’s instructions, that “all his troubles began” with Mitchell, and that he knew
Mitchell sold methamphetamine out of his garage while living there. On cross-
examination, Kelly’s attorney asked whether the interview with Kelly had been tape-
recorded; Basham responded in the negative. In an attempt to pursue this line of
inquiry, the following exchange took place:
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Q. Do you have access to tape-recording devices in that building if
you want them?
MR. VARGO: Objection, relevance.
THE COURT: Sustained.
Q. (MR. RENSCH CONTINUING:) Did you tape-record anything
Tom Kelly said that day?
MR. VARGO: Objection, relevance.
THE COURT: Sustained.
Q. (MR. RENSCH CONTINUING:) Other than the report that you
have had prepared in this case, are there any transcripts or notes
detailing what he said?
MR. VARGO: Objection; relevance, Your Honor.
THE COURT: Overruled.
A. Just the report I wrote.
Kelly argues that the ability to tape-record and the conscious choice not to do so
were important pieces of information going to the veracity of Basham’s written report
and the credibility of Basham in general.9 We agree.
Admittedly, cross-examination of Basham did reveal that the written report was
the only memorialization of the interview; however, the limited examination could not
reveal why no recording occurred. Testimony regarding the decision not to record a
9
At the first trial, Basham was allowed to answer this same line of questioning
and indicated that she had access to tape recorders, and that, while DEA policy was
apparently not to tape-record, she had done so in previous law enforcement jobs.
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statement, despite access to such technology, could significantly alter the jury’s
perception of the accuracy of the written report and of a witness’ credibility in general.
This court has recognized that cross-examination of officers on the details of custodial
interviews, specifically on whether the officer had access to a tape recorder, whether
he or she used it, and the reasoning behind such decision, is important to a defendant’s
right of confrontation. See United States v. Brown, 110 F.3d 605, 611 (8th Cir. 1997);
United States v. Molina, 172 F.3d 1048, 1060 (8th Cir. 1999). Thus, we find the
inquiry should have been allowed.
In light of the fact that Basham was an important government witness testifying
to allegedly inculpatory admissions and that this line of questioning was allowed in the
first trial in which a hung jury resulted, we cannot say that the error was harmless
beyond a reasonable doubt. Thus, we find that the limitation on cross-examination
violated Kelly’s Sixth Amendment right to confrontation.
3. Prosecutorial Misconduct
Kelly asserts that the prosecutor acted improperly by arguing facts not in the
record during closing argument. Prosecutorial misconduct during closing argument may
be grounds for reversal of a conviction. See United States v. Norton, 639 F.2d 427,
429 (8th Cir. 1981). Trial courts have broad discretion in controlling closing
arguments, and this court will not reverse absent an abuse of discretion. See United
States v. Segal, 649 F.2d 599, 604 (8th Cir. 1981).
This circuit has set forth a two-part test for reversible prosecutorial misconduct:
1) the prosecutor's remarks or conduct must have been improper; and 2) such remarks
or conduct must have prejudicially affected defendant's substantial rights so as to
deprive him a fair trial. See United States v. Macklin, 104 F.3d 1046, 1049 (8th
Cir.1997); United States v. Hernandez, 779 F.2d 456, 458 (8th Cir.1985). If this court
reaches the second step, the factors we consider are: 1) the cumulative effect of the
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misconduct; 2) the strength of the properly admitted evidence of the defendant's guilt;
and 3) any curative actions taken by the trial court. See United States v. Cannon, 88
F.3d 1495, 1502 (8th Cir.1996). The critical question, for purposes of review, is
whether the argument of which the defendant complains was so offensive as to deprive
the defendant of a fair trial. See United States v. Bohr, 581 F.2d 1294, 1301 (8th Cir.
1978).
At trial, the evidence revealed that Kelly was no longer employed as a truck
driver, a position he had held for nearly twenty years. On cross-examination, the
government asked Kelly whether he lost his job because he failed a drug test. Kelly
emphatically denied this. During closing argument the government argued:
Let’s talk about the statement he made to Agent Basham that “All my
problems started when I met Pat Mitchell.” Ladies and gentlemen, his
problems, as he describes them, are $400 debt and a guest who had lived
in his house for three months who he didn’t really want to live there, and
the fact that he had used methamphetamine once with Pat Mitchell. All
of this, ladies and gentlemen, took place a little over a year, year and a
half, shy of a year and a half before Tom Kelly was arrested and
interviewed. How would you say, ladies and gentlemen, that this $400
debt was the beginning of all your problems? All my problems started
when I met Pat Mitchell. What problems? It only makes sense, ladies
and gentlemen, if your problems that you are referring to are losing your
job because you are using meth, not showing up on time when failing your
drug test, of course, he denies. We talk about evaluating credibility.
Kelly’s attorney objected to the reference to the drug testing on the ground that it
assumed facts not in evidence. The court responded by stating:
Ladies and gentlemen, you are entitled to resolve the facts based upon not
only direct evidence, but any logical inference flowing from that evidence.
Now, at this time of the trial the government counsel as well as defense
counsel when they appear before you are entitled to argue those
inferences logically received from the direct evidence, but remember that
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with any counsel before you, what counsel say is not evidence. You may
make your own determination as to what the evidence is and any logical
inferences flowing there from.
The district court then instructed the government’s attorney to proceed.
There is no evidence in the record that Kelly lost his job due to a failed drug test.
In fact, the only evidence regarding a drug test in relation to Kelly’s employment is
Kelly’s denial that he lost his job due to such test. Further, at oral argument before this
court, the government’s counsel conceded that while he believed Kelly had failed the
test, there was no evidence one way or the other. During closing argument, an
attorney’s role is to assist the jury in analyzing, evaluating, and applying the evidence.
Segal, 649 F.2d at 604. Arguments that transcend such boundaries are improper. See
United States v. Risnes, 912 F.2d 957, 960 (8th Cir. 1990). The government’s closing
argument in this case did more than argue permissible inferences from the evidence, it
asserted facts not in evidence and attempted to argue and imply inferences therefrom.
This was clearly improper.
The government now asserts that even if such argument was improper there was
no prejudice. We cannot agree. When we consider the cumulation of error in limiting
cross-examination of two critical government witnesses, the improper final argument,
and the inadequacy of the district court’s instruction to the jury following objection to
the improper final argument, we find the errors cannot be said to be harmless.
In light of the improper limitation of cross-examination and the improper and
prejudicial final argument, we find that Kelly is entitled to a new trial.
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III. CONCLUSION
The conviction of Kelly is hereby REVERSED and a new trial granted. The
conviction of Beckman is hereby AFFIRMED.
Judge Beam concurs in the result.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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