PATTY LOCKHART, PETITIONER V. UNITED STATES OF AMERICA No. 90-5423 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit Brief For The United States In Opposition OPINION BELOW The judgment order of the court of appeals (Pet. App. A1) is not reported, but the judgment is noted at 904 F.2d 714 (Table). JURISDICTION The judgment of the court of appeals was entered on May 16, 1990. The petition for a writ of certiorari was filed on August 10, 1990. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTION PRESENTED Whether the district court violated petitioner's Sixth Amendment right of confrontation when it limited her cross-examination on the collateral acts of a government witness to those bearing on his truthfulness. STATEMENT After a jury trial in the United States District Court for the Southern District of Georgia, petitioner was convicted on one count of possessing cocaine with intent to distribute it, in violation of 21 U.S.C. 849(a)(1), and one count of conspiring to commit that offense, in violation of 21 U.S.C. 846. /1/ The district court sentenced her to 121 months' imprisonment, to be followed by a three-year term of supervised release. The court of appeals affirmed by judgment order. Pet. App. A1. 1. The evidence at trial showed that petitione and her husband, co-defendant John T. Lockhart, conspired during July and August 1988 to distribute crack cocaine out of Satchel's Club, a nightclub in Augusta, Georgia, owned by John Lockhart. Petitioner and her husband were arrested in the nightclub on August 5, 1988, while both were in the process of selling a pound of crack cocaine to undercover agent Bill Henryhand of the Richmond County Sheriff's Department. That undercover sale, like previous sales by petitioner's husband to Agent Henryhand, had been tape-recorded by Henryhand and monitored by other law enforcement officials. The tapes and Henryhand's testimony constituted the core of the government's case at trial. The government also introduced the testimony of Gregory Dickerson, a bartender at Satchel's Club, who witnessed several crack sales made by petitioner and her husband in the summer of 1988. Gov't C.A. Br. 4-5. 2. During petitioner's cross-examination of Henryhand she established that Henryhand was hoping to find employment with another law enforcement agency, see Gov't C.A. Br. 14-15 n.10, and she attempted to inquire about several acts of misconduct that had led to his dismissal from the Sheriff's Department. Defense counsel argued that the inquiry into the acts of misconduct should be permitted to show Henryhand's "character or fitness to be a police officer." Gov't C.A. Br. 11. The government objected, and the court held a hearing on whether cross-examination should be permitted on those subjects. In the hearing, defense counsel asked Henryhand about three incidents: (1) a two-day suspension in May 1988 for personal use of an official vehicle; (2) Henryhand's false statements to his wife in September 1988 about his 16-day suspension for refusing to take a breathalyzer test after his gun had accidentally fired; and (3) an off-duty fight in a bar in October 1988 that ultimately led to Henryhand's dismissal from the Department. After the hearing, the district court concluded that the vehicle incident and the off-duty fight were not sufficiently relevant to Henryhand's credibility and refused to allow cross-examination on those incidents. The court, however, permitted cross-examination regarding the 16-day suspension and Henryhand's false statements to his wife about that incident. The court began the examination on that subject before the jury and then offered counsel for the defendants the opportunity to follow up on the court's questions. Counsel for both defendants declined the offer. Gov't C.A. Br. at 12-13. ARGUMENT Petitioner claims (Pet. 5-6) that by limiting her cross-examination of Henryhand, the district court violated her Sixth Amendment right of confrontation. This argument is without merit. The district court acted well within its discretion under Fed. R. Evid. 608(b) to curtail petitioner's inquiry into collateral acts of misconduct; /2/ the court allowed cross-examination on the one issue that had some bearing upon Henryhand's veracity -- his false statements to his wife. The Sixth Amendment does not require a district court to allow cross-examination of a government witness on collateral acts that do not bear on credibility. Instead, as this Court has explained, "trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on * * * 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). The district court, having heard the evidence and found it irrelevant, exercised its sound discretion to determine the scope of cross-examination. /3/ Petitioner's reliance on Davis v. Alaska, 415 U.S. 308 (1974), is misplaced. In Davis, the trial court had completely forbidden cross-examination as to the probationary status of the prosecution's key witness, even though that status gave the witness a possible motive to lie in order to avoid revocation of his probation. 415 U.S. at 311. This Court held that the proposed cross-examination should have been permitted, because it involved an "attack on the witness' credibility * * * directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they relate directly to issues or pesonalities in the case at hand," and not just "a general attack on the credibility of (a) witness." 415 U.S. at 316. /4/ The collateral acts at issue in this case could not have established any actual or potential "bias" by Henryhand against petitioner. Rather, as defense counsel acknowledged at trial, those acts bore only on Henryhand's general character. Henryhand's personal use of an official vehicle, for example, was not related in any way to petitioner's case and would have given Henryhand no motivation to lie. Nor would his untruthfulness to his wife, on which he was cross-examined before the jury anyway. Even if Henryhand's termination and desire to get a job with another law-enforcement agency gave him an incentive to lie -- which a full hearing revealed it did not -- the jury was told of his job aspirations. There is no direct relationship between Henryhand's termination and any of the issues or personalities involved in petitioner's case. Thus, the district court's decision fell squarely within its discretion under Rule 608. Petitioner asserts (Pet. 7-10) that the decision in this case conflicts with the decision of the Sixth Circuit in United States v. Garrett, 542 F.2d 23 (6th Cir. 1976). In Garrett, the defendant wished to show that the officer who arrested him had been subsequently suspended from the force for using drugs at the time of the arrest. The district court restricted cross-examination to a few general questions about the witness's drug use (which he denied) and about his suspension, without allowing counsel to inquire about the link between them. The defendant was further impeded by the trial court's refusal to order the prosecution to make available the officer's personnel file or to inspect the file in camera to determine if it contained relevant information. The Sixth Circuit reversed the conviction, holding that the officer's drug use related directly to the crime with which Garrett was charged. The court of appeals further found that the court had unfairly limited the defendant's access to the officer's personnel file. It concluded that "(t)he defense in case was not attempting to impeach the testimony of (the officer) by a general attack on his credibility, but this was an example of a more particular attack relating to the issues and personalities in the case at hand as described in Davis v. Alaska." 542 F.2d at 27. In this case, by contrast, Henryhand's collateral acts were not in any way related to petitioner's crimes. Moreover, petitioner had inspected Henryhand's personnel file and had a full opportunity outside the presence of the jury to cross-examine Henryhand in an attempt to establish that the incidents had given rise to some possible bias on Henryhand's part. While petitioner now claims (Pet. 10) that "Henryhand might well have looked upon a successful prosecution of (petitioner) as a means of being reinstated," petitioner was unable to bring out any facts supporting an inference that Henryhand had any expectation of being reinstated because of his testimony in this case. Instead, petitioner could establish only that Henryhand hoped to secure another law enforcement position, a point on which defense counsel was permitted to cross-examine Henryhand. In any event, the restrictions on petitioner's cross-examination of Henryhand could not have prejudiced her. As this Court has made clear, "the constitutionally improper denial of a defendant's opportuity to impeach a witness for bias, like other Confrontation Clause errors, is subject to Chapman (v. California, 386 U.S. 18, 24 (1967)) harmless-error analysis." Van Arsdall, 475 U.S. at 684. In light of the overwhelming evidence against petitioner, including her participation in a tape-recorded drug transaction and the testimony of bartender Dickerson regarding petitioner's other drug transactions at the nightclub, any error in restricting the cross-examination of Henryhand would be harmless beyond a reasonable doubt. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General SEAN CONNELLY Attorney NOVEMBER 1990 /1/ Petitioner's co-defendant, her husband John T. Lockhart, was convicted on those and other cocaine distribution charges. /2/ Rule 608(b) provides that specific instances of a witness's conduct may not be proved by extrinsic evidence for the purpose of attacking his credibility but they "may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness * * * concerning the witness' character for truthfulness or untruthfulness * * *." /3/ Petitioner claims (Pet. 4) that the district court "refused to allow defense counsel to conduct any cross-examination of Henryhand in the presence of the jury," but the court expressly gave defense counsel the opportunity to "follow up" the court's own questions. See Gov't C.A. Br. 12. Defense counsel indicated that they had no further questions. Id. at 13. /4/ This Court has defined "bias" as "a term used in the 'common law' of evidence to describe the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party. Bias may be induced by a witness' like, dislike, or fear of a party, or by the witness' self-interest." United States v. Abel, 469 U.S. 45 (1984).