United States v. Embry

FILED
United States Court of Appeals
Tenth Circuit
December 16, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 11-5027
v. (N.D. of Okla.)
DEMONTE HOWARD EMBRY, (D.C. No. 4:10-CR-00056-CVE-1)
Defendant-Appellant.
ORDER AND JUDGMENT *
Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges. **
Demonte Howard Embry was convicted of being a felon in possession of a
firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2),
and sentenced to seventy-seven months incarceration.
Embry presents two issues for review. First, whether a magistrate judge
abused his discretion in denying Embry’s discovery request for potentially
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
exculpatory and impeaching FBI information. Second, whether the district court
erred in preventing Embry from impeaching his own witness on direct
examination with extrinsic evidence of the witness’s efforts to discredit a
government witness in an unrelated police corruption case. We find no error in
either ruling.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.
I. Background
Two members of the Tulsa Police Department’s (TPD) Gang Unit, Officer
Mark Wollmershauser and Corporal Brian Blair, were patrolling near the
Seminole Hills apartments in Tulsa, Oklahoma. The patrol was part of a series of
directed patrols due to the area’s reputation as a high crime area. After circling
through the complex, the officers chose to stop and approach a group of four men.
According to Wollmershauser’s testimony, as the officers exited their
vehicle and approached the men, one of the men, Embry, removed a dark colored
handgun from the pocket of his hooded sweatshirt, leaned down behind a vehicle,
and then emerged with the gun no longer in his hand. After Embry stood back up,
Wollmershauser began to rapidly approach him, concerned Embry may take off
running, creating a dangerous situation for Blair and himself. Wollmershauser
testified he did not actually see the gun drop from Embry’s hands, but that he did
hear a loud “clank noise as if a metal object hitting the pavement” after observing
the gun in Embry’s hands for “about two seconds.” R., Doc. 113 at 25–26. Upon
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reaching Embry, Wollmershauser pulled Embry down to the ground, ordered the
other men to lay on the ground, and then handcuffed Embry. Upon handcuffing
Embry, Wollmershauser recovered the handgun and placed Embry under arrest.
Wollmershauser then picked up the gun—without using any gloves
—unloaded it and placed it inside his police vehicle, locking the door behind him.
Wollmershauser testified that quickly removing the gun from the situation “was
the fastest thing that I could extricate out of the situation to at least make us safer
somewhat.” Id. at 28. In defending his decision not to use any gloves, he
testified: “[i]t wasn’t a secure crime scene. . . . it was a rapidly evolving
situation” involving multiple threats to the two officers on scene. Id. at 31.
Subsequent examination showed, when the gun was picked up, it contained two
rounds in the magazine and an additional round in the chamber. Importantly, in
his police report, Wollmershauser did not include the names of the other three
men because they “didn’t possess a gun that day,” and “weren’t involved in any
criminal activity.” Id. at 49.
Once Embry was transported to the police station, a routine search
determined he was a convicted felon. Accordingly, a federal grand jury charged
Embry with possessing a firearm and ammunition after a felony conviction, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
As part of discovery, Embry moved for disclosure of exculpatory and
impeaching evidence from the government, requesting substantial information
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regarding the TPD and its officers. The district court judge referred this matter to
a magistrate judge. At the hearing, the government represented to the court that it
had turned over all of the information in its possession to Embry’s counsel.
Embry’s counsel also requested the police logs and radio traffic records from the
time surrounding the arrest. The prosecutor told the court that no logs were
available, but agreed to make inquiries with the relevant agencies. Based on these
representations, the magistrate judge concluded the discovery request was moot
and entered a minute order to that effect. The government made no further
representations prior to trial.
The case proceeded to trial on July 19, 2010. During a recess on the first
day of trial, in response to a subpoena from Embry’s counsel, the custodian of
records for the TPD appeared and provided a police radio log containing the
names of the three other men present during Embry’s arrest. Embry promptly
requested and was granted a mistrial “because the United States failed to follow
up on its representation to Embry’s counsel that it would inquire into the
existence of audio recordings of the records check.” R., Doc. 33 at 3.
Before the second trial began, the government filed a motion in limine
requesting a prohibition against “any party, witness, or other person from making
any reference to any investigation of members of the Tulsa Police Department for
illegal conduct.” R., Doc. 36 at 1. The district court granted the motion, finding
that “misconduct by certain Tulsa Police Department officers is not relevant to
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the issues in this case” since none of the investigating officers in Embry’s case
were subject to the probe. R., Doc. 42 at 1.
The second trial began on August 23, 2010. Officers Wollmershauser and
Blair both testified they had seen Embry take a dark pistol from his pocket and
squat down to place it on the ground. Embry presented testimony from the other
three men present that day; all testified they did not see Embry with a gun at the
relevant time. After several hours of deliberation, the jury announced it could not
come to a verdict and was hopelessly deadlocked. After the parties agreed, the
district court discharged the jury and set the case on its September jury trial
docket.
The third trial began on September 22, 2010. As before, the two officers
testified for the government, while the other three men present testified on
Embry’s behalf. The only new witness was a TPD forensic scientist who testified
for the government. The forensic scientist testified that she found a partial
fingerprint at the very front of the barrel of the gun, which appeared to be from a
left thumb. She was able to exclude Embry as a potential source of the print, but
concluded the print was consistent with both Wollmershauser and Blair. The
location of the print was consistent with an officer having held the gun to unload
it. After several hours of deliberation, the jury found Embry guilty. The district
court ordered the preparation of a presentence report and scheduled sentencing for
December 22, 2010.
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On December 9, 2010, Embry filed a motion seeking access to:
1. All FBI-302s in the possession of the United States which reference
either Corporal Blair or Officer Wollmershauser;
2. A copy of Corporal Blair’s testimony in the matter of United States
v. Henderson and Yelton; and
3. A copy of the personnel files of Corporal Blair and Officer
Wollmershauser.
R., Doc. 68 at 4. This motion came about after news reports surfaced that Blair
had hurriedly left the courtroom to testify in a motion hearing as a defense
witness for TPD officers Jeff Henderson and Bill Yelton, who were on trial as
part of a wide-ranging corruption investigation involving the TPD. During the
hearing, Blair, who worked with Henderson as a member of the Special
Investigations Division, testified that: (1) he was friends with Henderson; (2) he
acted on tips from Henderson to investigate people who could testify against him
at Henderson’s trial; and (3) after investigating people to help in Henderson’s
defense, questions were raised about Blair’s actions prompting him to leave a
note with Henderson’s lawyer that he could no longer assist Henderson or Yelton.
Id. at 3.
The district court referred the motion to a magistrate judge, who authorized
Embry to order a copy of the transcript of Blair’s testimony in the Henderson
case, but denied the rest of the motion due to Embry’s failure to establish a
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specific evidentiary basis for his request. 1 Embry did not appeal the denial of his
discovery motion.
While the discovery motion was pending, Embry filed a motion for a new
trial, arguing that, had the jury been aware Blair was conducting investigations on
his own time to assist other police officers accused of corruption, it was likely his
testimony would have been discounted and Embry would have been acquitted.
Embry also argued that, had the court known of Blair’s involvement in the
Henderson case, its ruling on the government’s motion in limine regarding the
TPD corruption investigation before the second trial, would have possibly been
different. Additionally, Embry argued that Blair had assisted in the suppression
of the names of the individuals with him at the time of his arrest and of the
fingerprint evidence.
The district court agreed in part and granted Embry a new trial.
Specifically, the district court held: while Embry had provided no newly
discovered evidence that Blair suppressed information as to the identity of the
witnesses or the fingerprint evidence, Embry had presented new evidence that
Blair was friends with and engaged in independent investigations on behalf of
officers charged with criminal conduct. The court continued: “the Court’s
decision is not a license to inquire into the entire investigation of the TPD or to
1
While Blair’s testimony was part of the public record of the case,
Embry’s counsel had exhausted his funds for transcripts in this case and was
unable to order one without the court’s approval.
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seek additional discovery. Embry is limited to use of the transcript of Blair’s
testimony on September 22, 2010 to cross-examine Blair as to his assistance in
the defense of Henderson and Yelton.” R., Doc. 80 at 16 n.8.
In January 2011, the government filed a motion in limine to exclude the
testimony of Blair if called by Embry in his case-in-chief, arguing that use of the
Henderson hearing transcript would be inadmissible for purposes of substantive
testimony and may not be presented solely for impeachment. Embry opposed the
motion, arguing that, if the court granted the motion, he would be effectively
barred from calling Blair as a fact witness.
The district court granted in part and denied in part the motion. The court
granted the government’s request to exclude testimony regarding Blair’s
testimony in support of Henderson and Yelton or any other information regarding
the ongoing investigation of TPD officers. But the court denied the government’s
request to exclude Blair as a potential fact witness for Embry. In its discussion,
the district court noted Embry was entitled to call Blair as a fact witness and was
allowed to impeach the testimony of his own witness, but cautioned that a “party
may not call a witness knowing the witness will not provide substantive
testimony, but only to impeach the witness.” R., Doc. 87 at 2 (quoting United
States v. Woody, 250 F. App’x 867, 882 n.7 (10th Cir. 2007) (unpublished)).
Furthermore, the court observed that Federal Rule of Evidence 608(b)
prohibits the use of extrinsic evidence of specific instances of conduct to attack a
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witness’s capacity for truthfulness, and that such instances may only be inquired
into on cross-examination. The court also sanctioned the government’s failure to
disclose the information about Blair before Embry’s third trial, in light of the
strict requirements of Giglio v. United States, 405 U.S. 150 (1972), and its
progeny. But the court continued: Giglio only applies “to impeachment
information relating to a government witness,” and is inapplicable where the
government does not call the witness about whom impeachment evidence exists.
R., Doc. 87 at 3. “The Court’s previous instructions about Embry’s ability to
impeach Blair are therefore inapplicable if Blair is a witness for the defense.
Information about Blair’s testimony on behalf of Henderson and Yelton is not
relevant to the facts of Embry’s case, and may not be introduced by Embry
through Blair as a witness.” Id.On January 18, 2011, Embry’s fourth trial began. Neither Embry nor the
government chose to call Blair to testify. Instead, the government called
Wollmershauser to testify as to his version of the events leading to Embry’s
arrest. The government again called the TPD forensic scientist who testified
similarly as in the third trial. Embry elected to call only one of the three men
who was there at the time of the arrest. This witness testified as before, stating he
had not seen a gun in Embry’s possession at the time of his arrest. The jury
found Embry guilty.
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On February 16, 2011, the district court sentenced Embry to seventy-seven
months imprisonment. This appeal followed.
II. Discussion
Embry raises two arguments on appeal. First, he argues the magistrate
judge erred in his decision to limit discovery of further exculpatory and
impeaching information in response to his December 2010 motion. Second, he
argues the district court erred in limiting the manner in which Embry would be
allowed to impeach Blair’s testimony during the fourth trial.
We address each in turn.
A. Discovery
Embry filed a motion seeking discovery of personnel files and FBI-302
reports pertaining to Wollmershauser and Blair, along with a copy of Blair’s
testimony in a separate case. As detailed above, the district court referred the
motion to a magistrate judge, who ultimately authorized Embry to order a copy of
the transcript of Blair’s testimony in the Henderson case, but denied the rest of
the motion due to Embry’s failure to establish a specific evidentiary basis for his
request.
1. Standard of Review
A denial of a motion for discovery in a criminal case is reviewed for abuse
of discretion. United States v. Apperson, 441 F.3d 1162, 1191 (10th Cir. 2006).
The district court has abused its discretion when “its decision provides no rational
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explanation, inexplicably departs from established policies, is devoid of any
reasoning, or contains only summary or conclusory statements.” Gurung v.
Ashcroft, 371 F.3d 718, 720 (10th Cir. 2004) (internal quotation marks omitted).
But, as the government notes, Embry did not file timely written objections
to the magistrate judge’s opinion recommending the denial of his discovery
motion. In so doing, the government asserts Embry waived his right to appeal the
ruling and deprived this court of jurisdiction to hear the appeal. Despite the
government having raised this issue in their brief, Embry does not respond or
offer any explanation for his failure to do so in his Reply Brief.
We apply a “firm waiver rule when a party fails to object to the findings
and recommendations of the magistrate.” Casanova v. Ulibarri, 595 F.3d 1120,
1123 (10th Cir. 2010) (internal quotation marks omitted). The rule provides that
“the failure to make timely objection . . . waives appellate review of both factual
and legal questions.” Id. (quotation omitted). But two exceptions might apply:
(1) when a pro se litigant has not been informed of the time period for objecting
and the consequences of failing to object, or (2) when the “interests of justice”
require. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quotation
omitted).
Embry was represented by counsel throughout this case so the first
exception is not applicable. In defining the scope of the “interests of justice”
exception, we have said that, “in many respects, the interests of justice analysis
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we have developed, which expressly includes review of a litigant’s unobjected-to
substantive claims on the merits, is similar to reviewing for plain error.”
Duffield, 545 F.3d at 1238 (internal quotation omitted). To show plain error, the
defendant must show “(1) error, (2) that is plain, which (3) affects substantial
rights, and which (4) seriously affects the fairness, integrity, or public reputation
of judicial proceedings.” Id. (quotation omitted). “[T]he failure to object to a
magistrate judge’s report and recommendation is really no different from, for
example, the failure of counsel in open court to object to the admission of
evidence.” Morales-Fernandez v. INS, 418 F.3d 1116, 1120 (10th Cir. 2005)
(quoting Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428 (5th Cir.
1996)).
Accordingly, we will review Embry’s motion under the interests of justice
exception.
2. Magistrate Judge’s Ruling Was Not in Error
“[T]he suppression by the prosecution of evidence favorable to an accused
upon request violates due process where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of the prosecution.”
Brady v. Maryland, 373 U.S. 83, 87 (1963). The duty to disclose “extends to
prosecutors, police, and other government investigators. Accordingly, a
defendant may base a Brady claim on a government investigator’s failure to
disclose evidence material to guilt or punishment, even when the prosecutor
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personally did not know of that evidence.” United States v. Velarde, 485 F.3d
553, 559 (10th Cir. 2007) (internal quotations and citations omitted).
The two items Embry sought were: (1) all FBI-302 forms in the possession
of the United States which reference either Wollmershauser or Blair and (2) a
copy of the personnel files of Wollmershauser and Blair. Embry believed such
evidence would be useful in impeaching the testimony of the officers and in
corroborating the defense theory that the handgun had been planted. The
magistrate judge denied this request, ruling that “the defendant has to show that
further investigation under the Court’s subpoena power very likely will lead to
the discovery of evidence sufficient to support a new trial or at least . . . specific
allegations that show reason to believe that the defendant may, if the facts are
fully developed, be able to demonstrate that he’s entitled to a new trial.” R., Doc.
112 at 23. “In addition, there must be a firm evidentiary basis for believing such
evidence likely exists, and discovery is not to be allowed if it is a mere fishing
expedition based upon the defendant’s mere hopes of finding exculpatory
evidence.” Id. The magistrate judge concluded that Embry lacked a firm
evidentiary basis for the inquiry, and, in light of the government’s representations
to the court that none of the evidence sought was available, the request seemed
likely to be moot.
Embry relies on the fact that additional exculpatory evidence existed earlier
in this series of cases—notably the existence of the names of the witnesses
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discovered during the first trial—to conclude there was a pattern of suppression
that violated the government’s obligation of disclosure. Accordingly, he argues
granting his motion for post-trial discovery would work to remedy the pattern of
suppression. Embry also argues this case is very similar to Velarde in that the
defendant’s guilt or innocence revolves around the credibility of a key witness
and that a firm evidentiary belief already existed such that further discovery
would “not be a mere fishing expedition.” 485 F.3d at 561.
Velarde does not apply to the circumstances here. In Velarde, we classified
the type of circumstances that post-trial disclosure applies to as “rare” and
“limited.” Id. at 560. The magistrate judge carefully considered Velarde and our
cases applying it in making his decision before concluding: “I don’t find that this
is one of those rare class of cases.” R., Doc. 112 at 23. The magistrate judge
reiterated the government had a continuing duty to disclose exculpatory evidence
and that if, despite its prior representations, it learned that material evidence, such
as FBI-302s or other evidence existed, it had a duty to turn it over to Embry. See
United States v. Erickson, 561 F.3d 1150, 1163 (10th Cir. 2009) (“A Brady claim
fails if the existence of favorable evidence is merely suspected. That the
evidence exists must be established by the defendant.”).
Nothing in Embry’s appeal or in the record suggests Embry had a
sufficient evidentiary basis the magistrate judge otherwise ignored. Even now,
Embry simply asserts that since there had been evidentiary problems in the past,
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there must have been evidentiary problems with disclosure at the time of his
motion. This is simply not the case. We see no reason to reverse under the
interests of justice exception. 2
B. Impeachment
Prior to the fourth trial, the government filed a motion in limine asking the
district court to exclude the testimony of Blair if called by Embry in his case-in-
chief. The basis for the motion was the contention that use of the Henderson
hearing transcript was irrelevant for purposes of substantive testimony supporting
Embry’s defense, and consequently could not be used solely for impeachment of
Embry’s own witness. The court granted the government’s request to exclude
testimony regarding Blair’s testimony in support of Henderson and Yelton or any
other information regarding the ongoing investigation of TPD officers, but denied
the government’s request to altogether exclude Blair as a potential fact witness
for Embry. Ultimately, Blair was not called to testify by either side in the fourth
trial.
1. Standard of Review
The district court has broad discretion in determining the admissibility of
evidence. We review questions concerning the admission of evidence under an
2
It is worth pointing out that Embry was seeking this discovery as support
for his motion for a new trial—a motion that was ultimately granted by the
district court on the basis of Blair’s testimony in the Henderson case (after receipt
of the transcript as authorized by the magistrate judge). If there was any error
here, it was harmless because Embry received the ultimate relief he sought.
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abuse of discretion standard. We do not disturb an evidentiary ruling absent a
distinct showing that it was based on a clearly erroneous finding of fact or an
erroneous conclusion of law, or manifests a clear error in judgment. United
States v. Dowlin, 408 F.3d 647, 659 (10th Cir. 2005) (internal quotation omitted).
Whether the exclusion of evidence violates a defendant’s Fifth and Sixth
Amendment rights to present witnesses in his defense is a matter of law we
review de novo. Id. “However, the right to present defense witnesses is not
absolute. A defendant must abide the rules of evidence and procedure,” including
“standards of relevance and materiality.” Id. (quoting United States v. Bautista,
145 F.3d 1140, 1151–52 (10th Cir. 1998)).
2. Embry Was Allowed to Call Blair to Testify
A brief review of the district court’s reasoning clarifies the issue on appeal.
The district court ruled that Embry was not to use the transcript of Blair’s prior
testimony in Henderson and Yelton’s case solely to attack Blair’s credibility. To
support its conclusion, the court relied primarily on Rule 608(b), which provides:
“[s]pecific instances of the conduct of a witness, for the purpose of attacking or
supporting the witness’ character for truthfulness . . . may not be proved by
extrinsic evidence.” But, “on cross-examination,” extrinsic evidence, “if
probative of truthfulness or untruthfulness” may be inquired into. Fed. R. Evid.
608(b) (emphasis added). Thus, over the government’s objection, the court
allowed Embry to call Blair as a fact witness in his case-in-chief, with limitations
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on the use of extrinsic evidence—the transcripts. Generally, however,
“[i]nformation about Blair’s testimony on behalf of Henderson and Yelton is not
relevant to the facts of Embry’s case, and may not be introduced by Embry
through Blair as a witness.” R., Doc. 87 at 3; see also United States v. Green,
178 F.3d 1099, 1109 (10th Cir. 1999) (Giglio requirements apply only to impeach
information relating to a government sponsored witness).
Embry argues that the district court’s order effectively hamstrung his case-
in-chief in two ways. First, if Embry had called Blair as a witness, he would only
have been able to impeach Blair if he testified in a manner inconsistent with his
prior testimony (in either the prior trials in this case or in the Henderson case),
and not by using his Henderson testimony to directly attack Blair’s credibility
because of his prior statements supporting the discredited officers.
As a threshold matter, the district court followed the proper procedure that
follows from the Federal Rules of Evidence. Under the Rules, a party may attack
the credibility of its own witnesses, and may use extrinsic evidence of prior
inconsistent statements to do so. Fed. R. Evid. 607; 613(b). But before extrinsic
evidence may be used, the witness must first testify in a manner inconsistent with
his prior statements, and then must be afforded an opportunity to explain or deny
the prior inconsistent statement. Fed. R. Evid. 613(b). As the district court
recognized, Embry had every right to call Blair as a fact witness and, had he
testified in a manner inconsistent with his prior statements (after giving him an
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opportunity to explain or deny the prior statements), Embry would have been
entitled to impeach him with any prior inconsistent statements. But Embry was
not entitled to challenge Blair’s otherwise consistent testimony in these trials
solely with extrinsic evidence. See also 3 C HRISTOPHER B. M UELLER & L AIRD C.
K IRKPATRICK , F EDERAL E VIDENCE § 6:28 (3d ed. 2007) (“Impeachment by prior
inconsistent statements cannot be allowed as a mere subterfuge to get before the
jury evidence not otherwise admissible.”) (internal quotation omitted).
Second, as a further effect of the district court’s order, Embry argues he
was unable to advocate that Blair planted the gun in question and falsely accused
Embry of possessing it. According to Embry, by the time of the fourth trial,
sufficient evidence had been developed from which a jury could conclude the
handgun had been planted by Blair.
As to the general admissibility of Blair’s prior testimony in the Henderson
case, Embry argues the district court reached contradictory conclusions in its
order regarding his motion for a new trial and its order under appeal here. In
granting Embry’s motion for a new trial, the district court stated: “a police
officer’s work to discredit a government investigation could also impact a jury’s
assessment of that officer’s credibility and character for truthfulness in a case
prosecuted by the government. And where, as here, the only witnesses against a
defendant are police officers, anything that goes to their credibility is exculpatory
and admissible.” R., Doc. 80 at 13–14 (internal quotation omitted); see also
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Denver Policemen’s Protective Ass’n v. Lichtenstein, 660 F.2d 432, 436 (10th Cir.
1981) (finding that a balance must be struck between the right to exculpatory
material and an officer’s right to privacy). Embry contends this statement cannot
be reconciled with the court’s later decision to exclude use of the Henderson
testimony as direct impeachment evidence towards Blair’s testimony. But a
review of the court’s two orders shows the district court was consistent in its
belief that the Henderson testimony was only to be used on cross-examination, as
permitted by the Federal Rules of Evidence. On this point, the district court was
quite clear.
A party may not call a witness knowing he will not provide substantive
testimony, but only as a means to impeach the witness with damaging prior
statements. United States v. Peterman, 841 F.2d 1474, 1479 n.3 (10th Cir. 1988)
(listing cases); see also United States v. Buffalo, 358 F.3d 519, 524 (8th Cir.
2004) (“a witness may not be impeached on a collateral matter by use of extrinsic
evidence of prior inconsistent statements. . . . [but] only on a matter material to
the substantive issues of the trial”) (internal quotation omitted). While Embry
acknowledges this point, he argues this was not his goal. Instead, he contends he
faced a dilemma—had he called Blair as a witness, he “would have had to accept
[Blair’s] testimony as being truthful except to the extent that Corporal Blair had
previously given sworn testimony which conflicted with his trial testimony.”
Aplt. Reply Br. at 3. This is correct, and again, follows from Rule 608. As a
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matter of law, Embry was only able to raise the Henderson testimony on cross-
examination—not as part of any direct examination.
Despite the plain language of the Rule, Embry points to our decision in
Patton v. Mullin, where we held: “the rights to confront and cross-examine
witnesses and to call witnesses in one’s own behalf [are] essential to due
process.” 425 F.3d 788, 797 (10th Cir. 2005) (quoting Chambers v. Mississippi,
410 U.S. 284, 294 (1973)); see also Washington v. Texas, 388 U.S. 14, 19 (1967)
(“The right to offer the testimony of witnesses, and to compel their attendance, if
necessary, is in plain terms the right to present a defense, the right to present the
defendant's version of the facts as well as the prosecution’s to the jury so it may
decide where the truth lies.”).
While it is true that the right to confront and cross-examine witnesses is a
fundamental aspect of due process, in this case the district court denied the
government’s motion to exclude the entirety of Blair’s testimony and ruled that
Embry was allowed to call Blair as a witness for the defense. Under the Rules,
Embry was entitled to call Blair as a witness, but he was not entitled to use
extrinsic evidence to impeach Blair’s testimony on direct examination with
material in contravention of Rule 608(b).
Additionally, even though Rule 607 allows a party to impeach its own
witness—a point Embry stresses throughout his argument—that ability is
constrained on direct examination. As discussed above, Rule 608(b)(1) generally
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only allows impeachment testimony on cross-examination; however, two
situations remain where this testimony may be admitted on direct or redirect
examination: (1) where a party already has attacked the credibility of a witness by
referring to specific instances of conduct (e.g., during an opening statement), or
(2) where a party calling a witness anticipates cross-examination aimed at
showing untruthfulness through specific-instances evidence. See United States v.
Jones, 763 F.2d 518, 522 (2d Cir. 1985) (finding that when defense counsel
attacked government witnesses during opening statement, the government was
properly permitted to respond via witness testimony during direct examination);
United States v. Medical Therapy Sciences, Inc., 583 F.2d 36, 39–40 (2d Cir.
1978) (finding that the key event triggering the applicability of the rule is an
“attack” on the witness’s veracity; there is a vast difference between putting a
witness’s veracity in issue by eliciting the impeaching facts and merely revealing
the witness’s background).
Neither situation is applicable here. It would be unreasonable for Embry to
anticipate that the government would seek to introduce evidence of Blair’s
testimony in the Henderson case on cross-examination. In contrast, the situation
urged by Embry whereby specific instances of prior misconduct may be inquired
into on direct examination, has long been disallowed. See Bennett v. Longacre,
774 F.2d 1024, 1027 (10th Cir. 1985) (emphasizing the point: “a party may
inquire into specific instances of conduct by extrinsic evidence only on cross-
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examination . . . in challenging the truthfulness of [the witness’s] testimony”); see
also United States v. Logan, 121 F.3d 1172, 1175 (8th Cir. 1997) (finding that
“[c]ourts must be watchful that impeachment is not used as a subterfuge to place
otherwise inadmissible hearsay [evidence] before the jury”) (internal quotation
omitted). Accordingly, nothing in this case indicates Embry should fit into one of
the narrow grounds of exceptions under Rule 608(b)(1).
In sum, the district court did not err in excluding Blair’s Henderson
testimony. Since Embry could not question Blair about his involvement with the
Henderson case directly, he could not generate a statement inconsistent with his
trial testimony and thus would have no need or ability to impeach Blair with his
testimony as a prior inconsistent statement.
III. Conclusion
For the reasons set forth above, we AFFIRM.
Entered for the Court,
Timothy M. Tymkovich
Circuit Judge
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