United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 12, 2008 Decided July 22, 2008
No. 06-3172
UNITED STATES OF AMERICA,
APPELLEE
v.
MELVIN ERIC GEORGE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 06cr00043-01)
Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellant. with her on the briefs was A.
J. Kramer, Federal Public Defender. Tony W. Miles,
Assistant Federal Public Defender, entered an appearance.
Chrisellen R. Kolb, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Jeffrey A.
2
Taylor, U.S. Attorney, and Roy W. McLeese III, Florence Y.
Pan, and Frederick W. Yette, Assistant U.S. Attorneys.
Before: GINSBURG, BROWN and GRIFFITH, Circuit
Judges.
Opinion for the court filed by Circuit Judge BROWN.
BROWN, Circuit Judge: A jury convicted Melvin George
of robbing a Citibank branch of $2,095, in violation of 18
U.S.C. § 2113(a). For this crime he received a sentence of
ninety-two months in prison followed by three years of
supervised release. Mr. George’s sister, Janene George, gave
crucial testimony against him. At trial, Mr. George wanted to
cross-examine his sister about her mental illness. Doing so,
he believes, would have shown she was neither competent nor
credible. The district court, finding no basis for this
assumption, refused to let defense counsel cross-examine Ms.
George about her mental health; on that basis Mr. George
appeals his conviction.1 We affirm.
I
Mr. George moved into his sister’s Washington, D.C.
apartment on December 7, 2005. She gave him some clothing
to wear, including a black coat and a green, beige, and orange
kufi hat. Just one day later, Mr. George left the apartment in
the late morning, wearing the kufi hat, and returned a few
hours later with a bag full of cash. He counted the money at
1
Originally, Mr. George also challenged the district court’s practice
of accepting questions from jury members to pose to witnesses. He
concedes the same issue arose in United States v. Rawlings, 522
F.3d 403, 407–08 (D.C. Cir. 2008). Reply Br. 3. Therefore, our
decision in Rawlings that such a practice is not per se improper,
522 F.3d at 407–08, disposes of this challenge.
3
his sister’s kitchen counter, and when she asked Mr. George
where he got it, he said, “I robbed the bank,” and told her
where the bank was. Ms. George estimated she saw $2,200 to
$2,400 laid out on her counter.
Indeed, at just that time somebody had robbed a
Columbia Road bank of $2,095. A security camera captured
the transaction: a six-foot tall man wearing a patterned kufi, a
black coat, and wire-rimmed glasses showed the teller a
demand note, received the cash she gave him, and left
carrying the cash in a distinctive bag. A detective inspected
the video and prepared a description of the suspect, which the
police circulated by the end of the day.
Mr. George’s sister eventually identified him from the
description, but reporting his crime took a surprising amount
of perseverance. The response of police officials ranged from
derogatory to dismissive. At Ms. George’s first attempt, the
day after the robbery, the detective at the police station who
listened to her story told her to “[g]et . . . out” because she
was “a snitch.” On her second attempt, she reported the
robbery to her apartment complex’s rental office; the police
were called. The responding officer, encountering Mr.
George in the hallway after Ms. George had identified him as
the suspect, asked Mr. George what was wrong with his
sister and was she “lunching.” The officer left her $1.15 for
bus fare to come downtown and make a report. Finally, on
December 14, 2005, Ms. George met the detective who was
investigating the Citibank robbery; he showed her the
“wanted” posters for the first time. Two weeks later she
returned bearing what she said were Mr. George’s kufi and
the cash bag, as well as other physical evidence.
At trial, Mr. George’s sister was the government’s star
witness. Because the surveillance video was too fuzzy for a
4
positive identification, her testimony that Mr. George was the
person seen on the videotape was critical. Similarly, she
connected Mr. George to the kufi she gave the police.
Although an FBI forensic analyst found it impossible to tell
whether this was the kufi seen in the video, Ms. George
asserted it was the same hat. Moreover, she testified Mr.
George claimed to have robbed a bank, and she saw him with
cash roughly equivalent to the amount obtained in the
robbery.
Understanding the importance of Ms. George’s
testimony, defense counsel made considerable efforts to
impeach her credibility. Counsel cross-examined Ms. George
about a pending assault charge on which she was negotiating
a plea deal with police and brought out that she had once
assaulted and temporarily imprisoned her lover. The defense
also emphasized Ms. George’s twenty-year history of PCP
use—an addiction she admitted had continued throughout
December 2005. Finally, the defense wanted to cross-
examine Ms. George about her mental health history. She
had been hospitalized at the Psychiatric Institute of
Washington in April 2005 and had been diagnosed with
bipolar disorder. The disorder had persisted since 1990 and
symptoms included “episodes of rage, anger, irritability, and
racing thoughts,” leading to “behavior that is life threatening,
destructive, or disabling to self or others.” However, the
doctor observed “no clear psychotic symptoms.” The district
court refused to allow this line of cross-examination,
concluding that the sister’s records did not provide a basis
“upon which to cast doubt on her ability or her willingness to
tell the truth” and that even if they did, an expert would be
needed to interpret the significance of bipolar disorder for the
jury. Tr. 233–34.
5
II
The right to cross-examine prosecution witnesses is a
fundamental guarantee of the Confrontation Clause of the
Sixth Amendment. Delaware v. Van Arsdall, 475 U.S. 673,
678–79 (1986). Accordingly, a violation of this right is
reversible error unless the government shows it was harmless
beyond a reasonable doubt. Id. at 680–81. Whether the right
was violated must be gauged with respect to “the particular
witness, not . . . the outcome of the entire trial.” Id. at 680.
The central question is whether the jury would have received
“a significantly different impression of the witness’s
credibility had defense counsel been permitted to pursue his
proposed line of cross-examination.” United States v. Davis,
127 F.3d 68, 70–71 (D.C. Cir. 1997). Thus, there is rarely a
Confrontation Clause violation if “defense counsel is able to
elicit enough information to allow a discriminating appraisal”
of the witness’s credibility. United States v. Derr, 990 F.2d
1330, 1334 (D.C. Cir. 1993).
Below that threshold, “a trial court retains broad
discretion to control cross-examination.” United States v.
Hemphill, 514 F.3d 1350, 1360 (D.C. Cir. 2008). The court
“may prevent questioning that does not meet the basic
requirement of relevancy.” Id. In particular, defense counsel
“must have a reasonable basis for asking questions which
tend to incriminate or degrade the witness.” Id.
Denying cross-examination about Ms. George’s mental
health did not violate Mr. George’s right to confront her, in
part because she had already been impeached by much more
damning evidence. Ms. George freely admitted she hoped to
receive a reward for implicating her brother in the robbery.
Defense counsel elicited information about the plea
bargaining in which she was simultaneously engaged, a
6
substantial source of bias. In addition, counsel cross-
examined Ms. George about the violent behavior that had led
to her arrests. She had manifested violence towards her
cousin and towards her lover, and a jury could reasonably
infer she was less than kind to those close to her. These lines
of cross-examination already suggested Ms. George had
powerful motives to lie about her brother and no
overwhelming inclination to resist.
Mr. George now says the real point was that his sister’s
mental illness decreased her competence, as opposed to her
desire, to tell the truth. We are unable to find this argument
in the trial record, but regardless, defense counsel severely
undermined Ms. George’s competence as well. Counsel
established by cross-examination that Ms. George had used
PCP for twenty years, that she had used PCP during
December 2005, and that she had tested positive for PCP
around the time she testified to the grand jury. Tr. 297–99.
PCP is a dissociative drug that can cause delusions and
hallucinations and, with long-term use, memory loss. James
C. Munch, Phencyclidine: Pharmacology and Toxicology,
U.N. Office of Drug Control Bull. on Narcotics, 1974 No. 4,
at 9. Thus, it is often relevant “to develop the matter of drug
addiction in an effort to attack a witness’s competency and
capacity to observe, remember and recall.” United States v.
Kearney, 420 F.2d 170, 173 (D.C. Cir. 1969). Defense
counsel had the opportunity to apply Ms. George’s PCP use
in this way.
Against this background we must test whether the
additional cross-examination Mr. George wanted would have
provided “a significantly different impression” of his sister’s
credibility. Mental health records may, but do not
necessarily, “cast doubt on the accuracy of a witness’[s]
testimony.” United States v. Smith, 77 F.3d 511, 516 (D.C.
7
Cir. 1996); see also United States v. Slade, 627 F.2d 293, 304
(D.C. Cir. 1980) (mental history has the potential to be
relevant impeachment evidence). Mental illness “is relevant
only when it may reasonably cast doubt on the ability or
willingness of a witness to tell the truth.” Smith, 77 F.3d at
516. A defendant proposing a line of cross-examination has
the responsibility to make some proffer suggesting its
relevance. Davis, 127 F.3d at 71 (“[We cannot conclude that
. . . a reasonable jury might have received a significantly
different impression . . . since defense counsel made no
proffer . . . .”).
The days are long past when any mental illness was
presumed to undermine a witness’s competence to testify.
The category of mental illnesses includes a wide variety of
conditions, of varying degrees of severity and substantially
different effects. Simply labeling a witness as having “mental
health problems,” Def.’s 2d Mot. in Limine 3, or alluding to
her “issues with rage, anger, [and] racing thoughts,” Tr. 233,
does not provide a basis for thinking she cannot correctly
perceive reality. Mental illness is most highly relevant when
“the witness exhibited a pronounced disposition to lie or
hallucinate, or suffered from a severe illness . . . that
dramatically impaired her ability to perceive and tell the
truth.” United States v. Butt, 955 F.2d 77, 82–83 (1st Cir.
1992). We have recognized mental illness as potentially
relevant in a broader range of circumstances, so that, for
example, depression could in some cases be relevant to
credibility. Smith, 77 F.3d at 516. Nevertheless, some
indication is needed that a particular witness’s medical history
throws some doubt on the witness’s competence or
credibility. Id. at 516–17 (on the basis of hospitalization
alone, “without viewing the medical records,” no way to
decide whether the witness’s mental health was relevant);
compare United States v. Pryce, 938 F.2d 1343, 1346 (D.C.
8
Cir. 1991) (cross-examination allowed when a witness had a
history of hallucinations) and United States v. Lindstrom, 698
F.2d 1154, 1164 (11th Cir. 1983) (cross-examination allowed
when the witness’s treating psychiatrist wrote “[s]he
chronically misinterprets the words and actions of others”
(emphasis omitted)) with Butt, 955 F.2d at 82–84 (cross-
examination excluded on mental health of a witness who was
simply “an angry and alert individual” with “atypical
depression,” “rejection sensitivity,” “impulsivity and
despair”) and United States v. Jimenez, 256 F.3d 330, 343–44
(5th Cir. 2001) (“[A] diagnosis of schizophrenia or a
psychosis will be relevant . . . [F]or witnesses whose mental
history is less severe, district courts are permitted greater
latitude.”).
Nothing in Mr. George’s proffer at trial indicated why
bipolar disorder would cause Ms. George difficulty in
perceiving reality or motivate her to hurt her brother.2 The
bouts of anger and self-destructiveness she experienced are
just the sort of mental problem about which courts have often
prohibited cross-examination. See, e.g., Jimenez, 256 F.3d at
344 (no cross-examination about a witness’s suicidal
tendencies, especially considering the cross-examination
about his drug use and criminal activity). We do not
foreclose the possibility that testimony by an expert, which
the trial judge suggested, could have shown evidence of Ms.
George’s condition to be relevant to her credibility and
sufficiently distinct from evidence of drug use and violence
that the Confrontation Clause might require its admission.
2
The defendant points to an evaluation of Ms. George by the
District of Columbia Department of Mental Health three months
after trial to show what cross-examination would have revealed.
This record was not available at trial and therefore could not have
supplied a reasonable basis for thinking cross-examination about
Ms. George’s mental health would have been relevant.
9
But without such testimony, Mr. George’s counsel had only
words such as “episodes of rage” and “racing thoughts.”
Mental illness is not a generic badge of incompetence or
dishonesty.3
Nor did the district court abuse its discretion in excluding
this cross-examination. The court diligently applied the
standard we developed in Smith, asking whether Ms.
George’s mental illness would reasonably cast doubt on her
ability or willingness to tell the truth. Having concluded it
would not, it suggested the possibility of an expert to explain
why her bipolar disorder would be relevant. In the absence of
any further proffer by defense counsel, it was reasonable for
the district court to exclude cross-examination on the issue.
III
For the reasons given above, the judgment of the district
court is
Affirmed.
3
Because our conclusion that Mr. George’s right to cross-examine
Ms. George was not violated depends both on the limited relevance
of the mental health evidence he offered and on the nature of the
background impeachment evidence he introduced at trial, we do not
address whether a trial judge could, consistent with the
Confrontation Clause, exclude more relevant evidence solely on the
ground that other impeachment evidence had already been used at
trial.