United States v. Terrence Brown , 788 F.3d 830 ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 14-3189
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United States of America,
lllllllllllllllllllll Plaintiff - Appellee,
v.
Terrence Matthew Brown,
lllllllllllllllllllll Defendant - Appellant.
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: April 17, 2015
Filed: June 8, 2015
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Before MURPHY, COLLOTON, and KELLY, Circuit Judges.
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COLLOTON, Circuit Judge.
A jury convicted Terrence Matthew Brown of five counts of wire fraud and one
count of conspiracy to commit wire fraud. On appeal, Brown argues that the district
court1 violated his Sixth Amendment right to confront witnesses against him by
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The Honorable Brian C. Wimes, United States District Judge for the Western
District of Missouri.
limiting his cross-examination of a prosecution witness and excluding the testimony
of a defense witness. We conclude that there was no error in the district court’s
rulings, and we therefore affirm.
I.
In 2000, while in prison, Brown had an idea for a software company, which he
incorporated as “The Softwear Group.” In 2004, after completing his term of
imprisonment, Brown asked Garen Armstrong, a friend he met in prison, to invest in
his company. At the time, Armstrong was involved in the residential mortgage
business, and he invested in The Softwear Group. As president of the company,
Brown earned a salary of $5,000 per month.
When The Softwear Group began experiencing financial difficulties, Brown
saw the purchase of homes as a way to raise money for the company. With
Armstrong’s help, Brown purchased a total of five homes between July and October
2006. Brown received kickbacks from the home purchases by inflating the purchase
price on his loan applications. Armstrong prepared the loan applications while
Brown provided the necessary information and signed them. At each closing, Brown
signed documents in which he acknowledged that any false statement could result in
criminal prosecution, fine, or imprisonment. He represented to the lenders that he
would occupy each of the homes and that he earned $15,000 per month. After the
purchases, Brown received kickbacks totaling $224,500.
When the scheme was exposed, a grand jury charged Brown with wire fraud
and conspiracy to commit wire fraud, in violation of 18 U.S.C. §§ 1343 and 1349.
At trial, the prosecution presented testimony from Stacy Parton, the loan closer for
three of Brown’s five loans. She testified that she reviewed every document with
Brown and explained what each document meant.
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On cross examination, defense counsel questioned Parton about statements she
allegedly made to a private investigator, Mark Reeder, during a telephone interview
before trial. Parton testified that she did not recall telling Reeder: (1) that, after the
first closing, Brown “should have known what he was signing and what to do”; (2)
that she “explained to people what they were to sign, where to sign, and had them
sign”; (3) that “it was not up to [her] to determine what was legal or illegal”; (4) and
that “there was nothing wrong with buying and selling more than one house that you
weren’t living in because that’s what everybody else was doing.”
During the defense case, Brown called Reeder to testify about his interview
with Parton. Reeder testified that Parton told him: (1) her job as closer was to have
the parties sign documents, and it was not her job to go through the documents and
explain forms to people; and (2) it was not her job to determine whether or not what
Brown was doing was illegal.
The prosecution objected to Reeder’s testimony as hearsay. Defense counsel
argued that it was not hearsay because Parton’s prior statements to Reeder were
admissible to impeach her allegedly inconsistent testimony at trial. The district court
ruled that Parton’s testimony that she could not recall making certain statements to
Reeder was not inconsistent with her alleged prior statements as recounted by Reeder.
The court thus ruled that Reeder’s testimony could not be used to impeach Parton,
and it instructed the jury to disregard Reeder’s testimony.
Armstrong agreed to cooperate with the government in Brown’s prosecution,
and he also testified at trial. On cross-examination, defense counsel asked Armstrong
about his cooperation with the government and his plea agreement. Counsel
questioned Armstrong about the possible sentence he could face under the plea
agreement, but Armstrong stated that he did not know, as he and his lawyer had not
yet received discovery materials. Defense counsel then asked Armstrong about the
United States Sentencing Guidelines and Armstrong’s potential criminal history
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score, eliciting Armstrong’s testimony that his “criminal history” was going to be
“quite high” and “could be a three or a four.” In the middle of a follow-up question
that began “So you’re looking at substantial—,” the government objected. Defense
counsel replied, “I’ll let it go. That’s fine.”
At a sidebar immediately thereafter, defense counsel said that he was “just
trying to see if [Armstrong] knows what he’s looking at.” The district court noted
that Armstrong already testified that he did not know, and the court expressed
concern that the examination was “going far afield.” The court told defense counsel,
“I don’t know where you want to go with this,” and sustained the government’s
objection “as to relevance.” Defense counsel then moved to a different line of
questioning.
The jury returned a verdict of guilty on all counts, and the district court
sentenced Brown to 87 months in prison. Brown appeals his conviction, arguing that
the district court violated his Sixth Amendment right of confrontation by limiting his
cross-examination of Armstrong and by excluding Reeder’s testimony regarding his
interview with Parton.
II.
The Confrontation Clause of the Sixth Amendment guarantees the right of an
accused in a criminal prosecution “to be confronted with the witnesses against him.”
“The primary purpose of this right is to guarantee the opportunity for effective cross-
examination, particularly with respect to a witness’s potential bias.” United States
v. Walley, 567 F.3d 354, 358 (8th Cir. 2009).
A criminal defendant’s rights under the Confrontation Clause, however, are not
without limit. Courts “retain wide latitude insofar as the Confrontation Clause is
concerned to impose reasonable limits on such cross-examination based on concerns
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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). “[T]he Confrontation Clause
guarantees an opportunity for effective cross-examination, not cross-examination that
is effective in whatever way, and to whatever extent, the defense might wish.”
Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam).
Brown first contends that the district court violated his rights under the Sixth
Amendment when it prevented him from cross-examining Armstrong. He alleges that
the court did not allow him to ask Armstrong about his understanding of the potential
sentence that Armstrong faced as a result of his fraud activities. Brown also claims
that the court prevented him from asking Armstrong if his decision to testify was
influenced by a desire to please the government and thereby receive a reduced
sentence.
We do not agree that the court limited Brown’s cross-examination in this way.
The government objected while defense counsel was questioning Armstrong about
his potential criminal history score under the sentencing guidelines. The precise
question that drew the objection was not even completed, so we do not have a record
of what specific information Brown sought to elicit. And in any event, defense
counsel withdrew the question before the court even ruled on the government’s
objection. In response to defense counsel’s subsequent statement that he was “just
trying to see if [Armstrong] knows what he’s looking at,” the district court correctly
observed that Armstrong already had said that he did not know; the question had been
asked and answered.
Brown did not then attempt to ask Armstrong whether he testified in order to
please the government and receive a reduced sentence. The court did not preclude
that question. Defense counsel already had elicited, moreover, that Armstrong in a
prior case had received a reduction in sentence as a result of his cooperation with the
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government. Armstrong also acknowledged that he intended to plead guilty in his
pending case, and that he could be responsible for a loss amount in the millions and
could have a “quite high” criminal history score. Insofar as the colloquy at the
sidebar limited the cross-examination at all, the court simply thought that further
inquiry about Armstrong’s understanding of the sentencing guideline calculations was
not relevant. This limitation was not an abuse of discretion under the rules of
evidence or a constitutional violation, although Rule 403 was likely a more
appropriate ground for limiting the cross-examination than relevance under Rule 402.
See, e.g., United States v. Wilkens, 742 F.3d 354, 359 (8th Cir. 2014).
Brown also argues that the district court erred by excluding Reeder’s testimony
about his interview with Parton. Brown urges that Reeder’s testimony was admissible
under Federal Rule of Evidence 613(b) as extrinsic evidence of prior inconsistent
statements by Parton. We conclude that there was no error, because Brown did not
lay an adequate foundation for the admission of prior inconsistent statements.
When defense counsel examined Parton, she testified that she did not recall
making several statements to Reeder. If she had denied making the statements, then
Brown could have cited the denial as a basis to admit extrinsic evidence of the
statements. E.g., United States v. Yarrington, 634 F.3d 440, 448 (8th Cir. 2011).
And “[a] claimed inability to recall, when disbelieved by the trial judge, may be
viewed as inconsistent with previous statements when the witness does not deny that
the previous statements were in fact made.” United States v. Rogers, 549 F.2d 490,
496 (8th Cir. 1976). But “[t]he trial judge must be accorded reasonable discretion in
determining whether a claim of faulty memory is inconsistent with statements
previously given.” Id.The district court ruled that Reeder’s testimony was not proper impeachment
of Parton, because Parton testified that she did not remember making the suggested
statements to Reeder. “Where a witness in good faith asserts that she cannot
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remember the relevant events, the trial court may, in its discretion, exclude the
allegedly prior inconsistent statement.” United States v. Shillingstad, 632 F.3d 1031,
1037 (8th Cir. 2011). Particularly given that defense counsel made no effort to
refresh Parton’s memory regarding her interview with Reeder, the district court
reasonably determined that her lack of recollection was genuine. It was not an abuse
of discretion to exclude Reeder’s testimony under Rule 613(b) for lack of foundation,
and the exclusion on that basis raises no constitutional concern. See United States v.
Hale, 685 F.3d 522, 539 (5th Cir. 2012).
The judgment of the district court is affirmed.
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