United States v. Lancaster

Petition for rehearing en banc granted by
order filed 4/15/96; opinion filed 3/20/96
is vacated.
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 95-5012

BERT LANCASTER,
Defendant-Appellant.

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v. No. 95-5190

DERRICK VANLIEROP,
Defendant-Appellant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Leonie M. Brinkema, District Judge.
(CR-94-399-A)

Argued: December 7, 1995

Decided: March 20, 1996

Before MURNAGHAN, LUTTIG, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by published opinion. Judge Williams wrote the majority
opinion in which Judge Luttig joined and wrote a concurring opinion.
Judge Murnaghan wrote a dissenting opinion.

_________________________________________________________________
COUNSEL

ARGUED: Jerome Patrick Aquino, Alexandria, Virginia, for Appel-
lant Vanlierop; Gregory Bruce English, ENGLISH & SMITH, Alex-
andria, Virginia, for Appellant Lancaster. David Joel Stander, Special
Assistant United States Attorney, Alexandria, Virginia, for Appellee.
ON BRIEF: Helen F. Fahey, United States Attorney, Alexandria,
Virginia, for Appellee.

_________________________________________________________________

OPINION

WILLIAMS, Circuit Judge:

Derrick Vanlierop and Bert Lancaster appeal their convictions for
assault resulting in serious bodily injury, see 18 U.S.C.A. § 113(a)(6)
(West. Supp. 1995), and prisoner possession of a shank, see 18
U.S.C.A. § 13(a) (West Supp. 1995) (assimilating Va. Code Ann.
§ 53.1-203(4) (Michie 1994)); additionally, Vanlierop appeals his
conviction for simple assault on a correctional officer, see D.C. Code
Ann. § 22-505(b) (Michie 1994). Appellants contend primarily that
the district court's refusal to ask a proposed voir dire question regard-
ing whether any member of the venire would lend greater credibility
to the testimony of law enforcement officers based solely on their sta-
tus as law enforcement officers requires reversal of their convictions
under United States v. Evans, 917 F.2d 800 (4th Cir. 1990). Appel-
lants also challenge a decision of the district court excluding certain
evidence and a ruling by the district court limiting the cross-
examination of a witness. Although we determine that the district
court abused its discretion in refusing to ask the proposed voir dire
question, we conclude that this error does not require reversal because
it was cured by the other questions asked during voir dire, the district
court's credibility instruction, and the introduction of evidence cor-
roborating the testimony of the Government's chief witness. We also
conclude that neither of Appellants' remaining contentions has merit.
Accordingly, we affirm.

I.

Appellants' convictions stem from an incident at the Lorton Refor-
matory in Lorton, Virginia on May 14, 1994. According to the Gov-

2
ernment's theory of the case, Lancaster attacked another inmate,
Aaron Davis, with a shank while Vanlierop, using a shank of his own,
prevented correctional officers from coming to Davis's aid. Appel-
lants, for their part, did not dispute that the incident occurred. Rather,
they argued that Lancaster, having been attacked by Davis, acted in
self-defense and that Vanlierop was attempting to assist Lancaster.

The Government presented its case largely through the testimony
of Corporal Lloyd R. Staggs, III, who testified that he escorted a
group of ten inmates, including Appellants, to the prison yard for a
recreational period. The inmates were handcuffed together in pairs,
with one inmate's right wrist shackled to his partner's left wrist.1
Once all ten inmates had entered the yard, Corporal Staggs began to
remove the handcuffs, beginning with Lancaster and his partner. Cor-
poral Staggs then removed the handcuff from Vanlierop's partner.
Before he could remove Vanlierop's handcuff, Corporal Staggs
observed Lancaster stabbing Davis with a shank. Corporal Staggs
restrained Lancaster, but released him after Vanlierop approached
with a shank and ordered Corporal Staggs to release Lancaster. When
Corporal Staggs did so, Lancaster resumed his assault on Davis.

Corporal Staggs further testified that he complied with Vanlierop's
order to turn over his keys. Vanlierop then moved to the area where
the fight between Lancaster and Davis was taking place. Corporal
Staggs used this opportunity to call for assistance on his radio,
prompting Vanlierop to threaten to kill Corporal Staggs if he used the
radio. Shortly thereafter, other correctional officers arrived and
restored order. Vanlierop, who initially refused to surrender his shank,
was subdued by Lieutenant Charles Teixeira and Corporal Staggs.
During the course of his testimony, Corporal Staggs was shown two
shanks that were recovered from the prison yard after the incident.
Corporal Staggs identified the shanks as those used in the incident;
the shanks were then entered into evidence as Government exhibits.

On cross-examination, defense counsel questioned Corporal Staggs
regarding several instances of misconduct reported in his personnel
_________________________________________________________________
1 Vanlierop and Lancaster were not in the same pair. The record is
unclear as to whether Davis was in the group of ten inmates with Corpo-
ral Staggs, or was already in the prison yard.

3
file. These incidents included: a citation for "inexcusable neglect and
negligence" after Corporal Staggs improperly allowed inmates access
to an area where keys were stored; a citation for mishandling keys;
a citation for engaging in "horseplay" with inmates; a citation for neg-
ligence in the performance of a count of inmates; a recommendation
that Corporal Staggs's employment be terminated; and a citation for
lack of dependability.

The Government also presented the testimony of Lieutenant Teix-
eira, who testified that as he entered the prison yard, he observed
Vanlierop attempting to leave the area. Lieutenant Teixeira ordered
Vanlierop to stop, at which point Vanlierop turned toward Lieutenant
Teixeira and brandished a shank. Vanlierop initially refused to surren-
der the weapon, evidently fearful of inmates approaching from behind
Lieutenant Teixeira. Vanlierop dropped the shank only after Lieuten-
ant Teixeira threatened to spray him with mace. Lieutenant Teixeira
then subdued Vanlierop and placed handcuffs on him with the assis-
tance of Corporal Staggs. Other officers broke up the fight between
Lancaster and Davis.

Lieutenant Teixeira also testified regarding his favorable opinion of
Corporal Staggs's capabilities, stating that although Corporal Staggs
"tends sometimes to take things too lightly," (J.A. at 152,) no disci-
plinary action against him was warranted with respect to his conduct
during the May 14 incident. On cross-examination, defense counsel
referred to several of the disciplinary reports in Corporal Staggs's per-
sonnel file, inquiring after recitation of each incident whether Lieu-
tenant Teixeira was aware of the incident and whether it changed his
opinion of Corporal Staggs. Lieutenant Teixeira responded that he
was not aware of the incidents, but that his opinion of Corporal
Staggs was based solely on his personal observations and that knowl-
edge of the incidents did not substantially change his opinion. After
several such questions and answers, the district court sustained the
Government's objection and prohibited defense counsel from further
rehashing the contents of Corporal Staggs's personnel file.

Appellants, through the testimony of Vanlierop, presented a quite
different story than that offered by the Government. According to
Vanlierop, he and Lancaster, who were from New York City, were
subject to harassment from the other inmates, most of whom were

4
from Washington, D.C. Vanlierop testified that Davis, one of the
Washington inmates, particularly disliked Lancaster. Vanlierop testi-
fied that Lancaster, rather than being the aggressor in the May 14
incident, was the victim of an unprovoked attack by Davis. Davis
attacked Lancaster with a shank, stabbing him in the eye and neck.
Vanlierop stated that the prisoner to whom he was handcuffed began
pulling him toward Lancaster and Davis "because I think they was
[sic] trying to jump me and [Lancaster] being that [Davis] didn't like
Bert Lancaster and being that we are both from New York." (J.A. at
185.) Vanlierop seized Corporal Staggs's keys, unhandcuffed himself,
and ran over to Lancaster and Davis.2 According to Vanlierop, Lan-
caster wrested the shank away from Davis and began to stab Davis.
Seeing Lieutenant Teixeira and the other guards approaching, Van-
lierop grabbed the shank from Lancaster in order to protect himself
and Lancaster from the other inmates. Vanlierop denied threatening
Corporal Staggs. Lancaster did not testify, and the defense did not
present any evidence other than Vanlierop's testimony.

The jury convicted Appellants of assault by striking, beating, or
wounding; assault resulting in serious bodily injury; and prisoner pos-
session of a shank. In addition, the jury convicted Vanlierop of simple
assault on a correctional officer. At sentencing, the district court dis-
missed the convictions for assault by striking, beating, or wounding
on the basis that these convictions were subsumed by the convictions
for assault resulting in serious bodily injury. The district court then
sentenced Lancaster and Vanlierop to 100 months imprisonment and
to 115 months imprisonment, respectively. Appellants now challenge
the validity of their convictions on several grounds, which we address
seriatim.

II.

During voir dire, the district court refused to ask a question pro-
posed by Appellants regarding whether the members of the venire
would lend greater credibility to the testimony of a Lorton guard, a
police officer, or an FBI agent based solely on such an individual's
_________________________________________________________________
2 If Vanlierop's testimony is to be believed, one is left to wonder why
he chose to remove the handcuff from his partner's wrist, rather than
from his own wrist.

5
status as a law enforcement officer. Appellants maintain that the trial
amounted to a "swearing contest" between Vanlierop and Corporal
Staggs on the issue -- critical to the defense theory that Lancaster
acted in self-defense and Vanlierop merely assisted Lancaster -- of
whether Lancaster attacked Davis or vice versa, and that knowledge
of bias in favor of law enforcement officers based solely on their sta-
tus as law enforcement officers was vital to the intelligent exercise of
challenges to the venire. Relying on Evans, Appellants assert that the
district court's refusal to ask the proposed question mandates reversal
of their convictions.

We have noted previously that "`[t]he essential function of voir
dire is to allow for the impaneling of a fair and impartial jury through
questions which permit the intelligent exercise of challenges by coun-
sel.'" King v. Jones, 824 F.2d 324, 326 (4th Cir. 1987) (quoting
United States v. Brown, 799 F.2d 134, 135 (4th Cir. 1986)). A thor-
ough voir dire is vital to a fair trial for two, equally important, rea-
sons. First, "[w]ithout 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 evi-
dence cannot be fulfilled." Rosales-Lopez v. United States, 451 U.S.
182, 188 (1981) (plurality). Second, "lack of adequate voir dire
impairs the defendant's right to exercise peremptory challenges." Id.
Hence, although the district court enjoys broad discretion in conduct-
ing voir dire, see United States v. Muldoon, 931 F.2d 282, 286 (4th
Cir. 1991), this discretion is limited by the need to ensure that restric-
tions placed on voir dire by the district court do not "hinder[ ] a
defendant's opportunity to make reasonable use of his challenges,"
King, 824 F.2d at 326.

Appellants contend that the instant case is controlled by Evans. In
Evans, we considered a narrow factual situation in which the only evi-
dence the prosecution presented on one issue was the testimony of an
agent of the Drug Enforcement Administration (DEA) and the only
contrary evidence was the defendants' testimony. We held, limited to
the particular circumstances of the case, that the district court abused
its discretion when it refused to ask a proposed voir dire question
almost identical to the question proposed by Appellants in this case:
"Is there anyone who would give special credence and weight to the
word of a law enforcement officer simply because of the fact that he

6
occupies that position?" Evans, 917 F.2d at 806. We reasoned that an
affirmative answer to that question by any member of the venire
would have required the district court to remove the individual for
cause or, by way of further questions or instruction, to correct the
individual's mistaken assumption that the testimony of police officers
is entitled to "special credence." Id.

Because this case falls squarely within the limited confines of
Evans, we are compelled to conclude that the district court abused its
discretion in refusing to inquire whether any member of the venire
would lend greater credibility to the testimony of a guard at Lorton
solely because of his status as a correctional officer. Here, as in
Evans, the trial amounted to a credibility contest between Corporal
Staggs and Vanlierop with respect to the issue of whether Lancaster
was the attacker or the victim in the May 14 incident. See id.; see also
Rainey v. Conerly, 973 F.2d 321, 325 (4th Cir. 1992) (concluding,
based on Evans, that district court erred in refusing to ask proposed
voir dire question relating to the credibility of prison guards because
"the dispositive issue in this case depends on the evaluation of the
conflicting testimony of [Appellant] and other prisoners against that
of [Appellee] and other police officers"). Accordingly, we must con-
clude that the district court erred in refusing to ask the voir dire ques-
tion proposed by Appellants.3
_________________________________________________________________
3 We reject the Government's argument that Lancaster is not entitled to
a finding of error under Evans because he did not testify at trial. Under
the circumstances of this case, to hold that Evans does not apply to Lan-
caster because he did not testify at trial would effectively penalize him
for exercising his Fifth Amendment right to remain silent. Evans is con-
cerned with whether the defense has enough information to exercise
intelligently its challenges to the venire. Important for Evans is not
whether the defendant himself testified, but rather whether the trial
amounted to a credibility contest between law enforcement officers testi-
fying for the Government and non-law enforcement officers testifying
for the defense. We find nothing in Evans to indicate that every defen-
dant must testify in order to preserve his objection to the district court's
refusal to ask a proposed voir dire question regarding whether members
of the venire would lend greater credibility to the testimony of a law
enforcement officer based solely on his position as a law enforcement
officer.

7
That the district court erred in refusing to ask the proposed voir
dire question does not, however, establish that reversal is required.
See United States v. Nash, 910 F.2d 749, 753 (11th Cir. 1990) ("Even
if the district court failed to ask particular voir dire questions that may
be warranted . . ., we will find no abuse of discretion if the voir dire
questioning as a whole complied with `the essential demands of fair-
ness,' that is, if it gave reasonable assurance to the parties that any
prejudice of the potential jurors would be discovered." (quoting
United States v. Tegzes, 715 F.2d 505, 507 (11th Cir. 1983))). Rather,
we must decide whether, under the totality of the circumstances, the
error in refusing to ask the proposed voir dire question was harmless.
See Evans, 917 F.2d at 807. This determination

"hinges upon such factors as the importance of the govern-
ment agent's testimony to the case as a whole; the extent to
which the question concerning the venireperson's attitude
toward government agents is covered in other questions on
voir dire and on the charge to the jury; the extent to which
the credibility of the government agent-witness is put into
issue; and the extent to which the testimony of the govern-
ment agent is corroborated by non-agent witnesses."

Id. at 808 (quoting United States v. Baldwin, 607 F.2d 1295, 1298
(9th Cir. 1979)).

Utilizing the factors enumerated above, we concluded in Evans that
the district court's error in failing to ask the proposed voir dire ques-
tion was not harmless:

The factors . . . all fit our facts. The government's case
was completely dependent upon the testimony of Agent Val-
entine. He was the only witness for the government on the
issue of what happened in the automobile . . . . The credibil-
ity of Valentine was put into issue by the testimony of both
[defendants]. The testimony of Valentine was not corrobo-
rated by a non-agent witness. . . . The venire's attitude
toward government agents was not covered in any other
question on voir dire nor was it covered in the charge to the
jury.

8
Id. Appellants maintain that, as in Evans, each of the factors weighs
against a finding of harmlessness. Specifically, Appellants contend
that: (1) the testimony of Corporal Staggs was vital to the Govern-
ment's case, because without it the Government could not establish
that Lancaster was the aggressor in the attack; (2) the other questions
asked by the district court during voir dire did not address the venire's
attitude toward the credibility of law enforcement officers, nor did the
jury instructions cover this issue; (3) Corporal Staggs's credibility
was placed in issue when Appellants questioned him regarding the
contents of his personnel file; and (4) Corporal Staggs's testimony
that Lancaster was the aggressor in the attack against Davis was cor-
roborated neither by the testimony of a non-agent witness nor by
other evidence.

We recognize that some of the factors enumerated in Evans are
present in the instant case. To begin, Corporal Staggs's testimony was
vital to the Government's case because in determining whether Lan-
caster was the aggressor in the May 14 incident, the jury was required
to decide whether Corporal Staggs or Vanlierop was the more credi-
ble witness. See id. at 807 (noting that"this case was going to be
decided on the basis of whether the jury believed Valentine, testifying
for the government, or the defendants, testifying for themselves").
And, Appellants challenged Corporal Staggs's credibility. As in
Evans, Vanlierop's testimony contradicted that of Corporal Staggs,
placing Staggs's credibility at issue. See id. at 808 ("The credibility
of Valentine was put into issue by the testimony of[the defen-
dants]."). Furthermore, the cross-examination of Corporal Staggs
regarding the contents of his personnel file called into question his
competence as a correctional officer and, possibly, his motive to lie
in order to avoid disciplinary action as a result of his conduct during
the May 14 incident.

Nevertheless, we reject Appellants' contention that the instant case
is indistinguishable from Evans and conclude that reversal is unwar-
ranted under the totality of the circumstances. First, in contrast to the
"perfunctory" voir dire conducted by the district court in Evans, see
id. at 807, here the district court carefully probed the members of the
venire regarding any possible bias in favor of law enforcement offi-
cials resulting from the existence of a relative or friend in law
enforcement, asking repeatedly whether such an association would

9
make it difficult for the venireperson to render an impartial verdict.4
(See, e.g., J.A. at 40 ("Do you think that the fact that you have so
many family members in law enforcement would make it difficult for
you to be impartial in this case?"; "Would[employment by the
Bureau of Alcohol, Tobacco, and Firearms] make it difficult for you
to be impartial in this case?"); J.A. at 41 ("[W]ould you feel that you
would be somewhat predisposed towards favoring the prosecution?";
"[W]ould [employment as a parole officer] make it difficult for you
to be completely impartial in this case?"); J.A. at 42 ("Do you feel
that those relationships would make it difficult for you to be impartial
in this case? . . . I notice a little hesitation. Do you sort of think that
you might be tilted in favor of law-enforcement witnesses in this
case?").) We find it difficult to imagine that any potential juror could
fail to recognize that bias in favor of law enforcement officials was
inappropriate. Moreover, review of the transcript reveals that the
spirit of the voir dire proceeding was one of openness and that the
potential jurors forthrightly expressed their concerns about their abil-
ity to be impartial. Under these circumstances, the district court's
final voir dire question -- "Ladies and Gentlemen, do you know of
any reason, is there anything at all any of you know of that would
make it difficult for you to sit as an impartial juror in this case?" (J.A.
at 51 (emphasis added)) -- could not have failed to elicit an affirma-
tive response from any member of the venire harboring a bias in favor
of law enforcement officials. See United States v. Lawrence, 952 F.2d
1034, 1037 (8th Cir.) (holding that refusal to ask potential jurors
_________________________________________________________________
4 We are aware that in Evans we concluded that a single voir dire ques-
tion regarding whether any member of the venire"is employed or works
with or in any law enforcement capacity" did not reach the issue of the
weight to be given the testimony of a law enforcement officer. See
Evans, 917 F.2d at 805, 808. Although the analogous question asked by
the district court in this case was substantially broader -- "Do any mem-
bers of the panel . . . or your close personal friends or immediate family
members work in a law-enforcement capacity or have you previously
worked in a law-enforcement capacity?" (J.A. at 39) -- we do not rely
on the fact that this question was asked to support our conclusion that the
voir dire conducted by the district court was adequate to expose any
biases held by the members of the venire. Rather, we look to the follow-
up questions asked by the district court, which established in no uncer-
tain terms that the district court was deeply concerned about bias in favor
of law enforcement officials.

10
about credibility of police officers as witnesses was not error when
the district court questioned veniremembers about relationships with
individuals in law enforcement), cert. denied , 503 U.S. 1011 (1992);
United States v. Espinosa, 771 F.2d 1382, 1405 (10th Cir.) (conclud-
ing that district court's failure to ask veniremembers whether they
would credit a law enforcement officer's testimony solely because of
his position as a law enforcement officer did not require reversal
because the court questioned potential jurors at length regarding pos-
sible bias arising from relationships with law enforcement officials
and instructed jurors to consider testimony "`without prejudice or
sympathy'"), cert. denied, 474 U.S. 1023 (1985).

We note also that the district court asked the members of the venire
whether they would be prejudiced against Appellants because of their
status as inmates. While this question did not serve to ensure that the
jury did not afford too much weight to the testimony of the Govern-
ment's witnesses, it certainly kept the jury from making the equally
egregious mistake of giving too little weight to Vanlierop's testimony
solely because he was a prison inmate. Taken in this light, the ques-
tion regarding whether prospective jurors would be prejudiced against
Appellants because of their status as inmates is further evidence that
the voir dire conducted by the district court was adequate to ferret out
any bias and allow the impaneling of an impartial jury.

Second, the district court's instruction to the jury on credibility not
only was more extensive than the credibility instruction in Evans, but
also clearly placed the credibility of Vanlierop on equal footing with
the testimony of the Government's witnesses:

Now, in the case before you today, one of the most
important areas you are going to have to work on is the
credibility of witnesses, and I am going to give you now
some instructions about how you approach making a deci-
sion about the credibility of witnesses.

You, as jurors, are the sole and exclusive judges of the
credibility of each of the witnesses called to testify in this
case, and only you determine the importance that their testi-
mony deserves. After making your assessment concerning
the credibility of a witness, you may decide to believe all of

11
that witness' testimony, only a portion of it, or none of it at
all.

In making your assessment, you should carefully evaluate
all of the testimony given, the circumstances under which
each witness has testified and every matter in evidence
which tends to show whether a witness in your opinion is
worthy of belief.

Consider each witness' intelligence, motive to falsify,
state of mind and appearance and manner while on the wit-
ness stand.

Consider the witness' ability to observe the matters as to
which he has testified and consider whether he impresses
you as having an accurate memory of the matters about
which he testified.

Consider also any relation that a witness may bear to
either side of the case, the manner in which each witness
might be affected by your verdict and the extent to which,
if at all, each witness is either supported or contradicted by
other evidence in the case.

Inconsistencies or discrepancies in the testimony of a wit-
ness or between the testimony of different witnesses may or
may not cause you to disbelieve or discredit such testimony.

Two or more persons witnessing an incident or a transac-
tion may simply see or hear it differently. Innocent misre-
collection, like failure of recollection, is not an uncommon
human experience. In weighing the effect of a discrepancy,
however, always consider whether the discrepancy pertains
to a matter of importance or to an insignificant detail and
consider whether the discrepancy results from innocent error
or from intentional falsehood.

After making your own judgment concerning the believa-
bility of a witness, you can then attach such importance to
that testimony, if any, that you feel it deserves.

12
(J.A. at 235-37 (emphasis added).) This instruction, while similar in
many respects to the instruction considered inadequate in Evans,
unmistakably conveys to the jury that its credibility determinations
were to be based solely on its observation of the witnesses.

Third, Corporal Staggs's version of events was corroborated by
physical evidence introduced by the Government during trial. Accord-
ing to Appellants' version of events, only one shank was involved in
the incident in the prison yard: Davis used a shank to attack Lancas-
ter, who seized it and used it to defend himself; Vanlierop then seized
the same shank and used it to defend himself and Lancaster against
a mob of inmates. In contrast, Corporal Staggs testified that Vanlierop
and Lancaster each had a shank. The Government's subsequent intro-
duction into evidence of two shanks, identified by Corporal Staggs as
those used in the attack, corroborated Staggs's testimony.5

Evaluating the totality of the circumstances, the extensive question-
ing by the district court during voir dire, its credibility instruction, and
the admission into evidence of the two shanks used during the inci-
dent, persuade us that the instant case is distinguishable from Evans.
We conclude that the district court's error in failing to ask the pro-
posed voir dire question does not warrant reversal.

III.

Appellants next contend that the district court erred in granting the
Government's motion in limine to exclude evidence regarding an
assault on Appellant Lancaster that occurred three days after the May
14 incident. Appellants assert that this evidence was relevant to their
claim of self-defense. Decisions regarding the admission or exclusion
of evidence are committed to the sound discretion of the district court
and will not be reversed absent an abuse of that discretion. United
States v. Bostian, 59 F.3d 474, 480 (4th Cir.), petition for cert. filed,
___ U.S.L.W. ___ (U.S. Oct. 30, 1995) (No. 95-6607).
_________________________________________________________________
5 That the Government introduced evidence relating to Davis's injuries
is of no moment, for Appellants do not contend that Davis was not
injured during the incident. Rather, they claim that Lancaster injured
Davis in self-defense.

13
On May 17, 1994, Appellant Lancaster was assaulted by Davis's
cousin, another inmate. Appellants sought to introduce evidence of
the May 17 assault at trial, arguing that the evidence was relevant to
prove that Appellants acted in self-defense during the May 14 inci-
dent. According to Appellants' theory, the May 17 attack occurred
because the first attempt on Lancaster's life had failed.6 Appellants
argue that the district court's exclusion of this evidence violated their
Sixth Amendment right to compulsory process.

Appellants' compulsory process argument is unavailing. While
Appellants are correct that they have a "fundamental constitutional
right to a fair opportunity to present a defense," Crane v. Kentucky,
476 U.S. 683, 687 (1986), they have pointed to no authority for the
novel proposition that the right to present a defense encompasses the
right to present any evidence the defense wishes, regardless of its
admissibility under the Federal Rules of Evidence. Here, the district
court determined that evidence related to the May 17 attack on Lan-
caster was irrelevant and therefore inadmissible. See Fed. R. Evid.
402. This ruling was not an abuse of discretion because evidence
regarding the May 17 attack did not tend to make the existence of any
fact of consequence more or less probable. See Fed. R. Evid. 401.
There is no evidence that Davis was present during, or associated
with, the May 17 attack except for the fact that Lancaster's assailant
was Davis's cousin. And, the facts relating to the May 17 attack do
not serve to illuminate the circumstances surrounding the May 14
incident, Appellants' assertion to the contrary notwithstanding.
Accordingly, we conclude that the district court did not abuse its dis-
cretion in excluding evidence of the May 17 attack.

IV.

Finally, Appellants claim that the district court improperly limited
cross-examination of Lieutenant Teixeira with respect to his knowl-
edge of the contents of Corporal Staggs's personnel file. Appellants
assert that they were entitled to ask Lieutenant Teixeira about each
disciplinary report concerning Corporal Staggs in order to show that
_________________________________________________________________
6 In our view, a different inference -- that the May 17 attack on Lan-
caster constituted retaliation for Lancaster's attack on Davis on May 14
-- is equally reasonable.

14
Lieutenant Teixeira's opinion regarding Corporal Staggs's compe-
tency was formed without sufficient knowledge of Corporal Staggs's
disciplinary record. In response, the Government maintains that the
district court, after allowing Appellants to inquire about Lieutenant
Teixeira's knowledge of several instances of misconduct by Corporal
Staggs, properly forestalled further inquiry as unnecessarily cumula-
tive. See Fed. R. Evid. 403.

We conclude that the district court did not abuse its substantial dis-
cretion in determining that further cross-examination of Lieutenant
Teixeira regarding his knowledge of the contents of Corporal Staggs's
personnel file would be unnecessarily cumulative. See United States
v. Moore, 27 F.3d 969, 974 (4th Cir.) ("A district court's evidentiary
rulings are entitled to substantial deference and will not be reversed
absent a clear abuse of discretion."), cert. denied, 115 S. Ct. 459
(1994). Appellants inquired three times whether knowledge of a spe-
cific incident would change Lieutenant Teixeira's opinion of Corporal
Staggs's competency; each time Lieutenant Teixeira responded that
such knowledge would not alter his opinion. Moreover, the jury
already had been made aware of the full contents of Corporal Staggs's
personnel file during the earlier cross-examination of Corporal
Staggs. In light of these circumstances, we cannot say that the district
court's decision to limit the cross-examination of Lieutenant Teixeira
was arbitrary or irrational. See id. (noting that abuse of discretion in
excluding evidence will be found only when district court acted arbi-
trarily or irrationally).

V.

Having concluded that the district court's error in refusing to ask
the proposed voir dire question does not require reversal and that
Appellants' remaining assertions of error are without merit, we affirm
their convictions.

AFFIRMED

LUTTIG, Circuit Judge, concurring:

I believe that Judge Williams' opinion for the court properly inter-
prets our decision in United States v. Evans, 917 F.2d 800 (4th Cir.

15
1990), as limited to the very narrow facts presented in that case, and
correctly holds that the facts with which we are confronted are suffi-
ciently different from those in Evans that that decision is not control-
ling here. Among other distinguishing factors, the court specifically
instructed the jury in this case, unlike in Evans, that the "defendant's
testimony is to be judged in the same way as that of any other wit-
ness," see J.A. at 238 -- that is, in the same way as the testimony of
the two correctional officers who testified against Lancaster and Van-
lierop. Additionally, there were other witnesses to the assault who
could have been called to testify, as well as independent evidence of
the crime beyond the testimony of the persons involved.

If the opportunity arose, however, I would overrule Evans -- or at
the very least require that trial courts also ask each member of the
venire whether he would "give special credence and weight to the
word of [the criminal defendant] simply because of the fact that he
[is the criminal defendant]," see id . at 806, and excuse for cause any-
one who answers affirmatively, as Evans requires that we excuse
those who say that they would give more weight to officers of the law
than to criminal defendants. At a minimum, we should be evenhanded
in our pursuit of rules assertedly designed to ensure evenhandedness.

MURNAGHAN, Circuit Judge, dissenting:

Because I believe that our decisions in United States v. Evans, 917
F.2d 800 (4th Cir. 1990), and Rainey v. Conerly , 973 F.2d 321 (4th
Cir. 1992), require us to remand Appellants' cases for a new trial, I
respectfully dissent. Satisfied with the majority's recitation of the per-
tinent facts, I will proceed directly to a discussion of my colleagues'
conclusion that the district court's failure to ask Appellants' proposed
voir dire question concerning law enforcement officers' credibility1
constituted harmless error.
_________________________________________________________________

1 The precise question proposed by Appellants was: "Do any of you
believe that a guard at Lorton [Reformatory], a police officer or a mem-
ber of the F.B.I. is more worthy of belief than any other citizen of our
community?"

16
I.

A.

In Evans, the defendants had been charged with distributing crack
cocaine and with aiding and abetting such distribution. 917 F.2d at
802. Because, as in the case at bar, the principal evidence presented
against the defendants consisted of the testimony of a law enforce-
ment officer, id., the defendants asked the district court to pose the
following question to prospective jurors on voir dire: "Is there anyone
who would give special credence and weight to the word of a law
enforcement officer simply because of the fact that he occupies that
position?" Id. at 806. The district court refused to ask the question.
The impaneled jury subsequently found the defendants guilty. Id. at
802.

Upon reviewing the matter on appeal, we held that the district court
abused its discretion when it refused to ask the proposed question,
that the error was not harmless, and that the defendants were therefore
entitled to a new trial. Id. at 805-09. We identified several reasons for
our decision.

First, because at the heart of the case lay "a test of credibility"
between the defendants and a law enforcement officer, it was crucial
that the defendants and the court know if a prospective juror believed
that special weight should be given to a law enforcement officer's tes-
timony simply because of his occupation. Id. at 806. We stated that
"[t]he right of the peremptory challenge has long been recognized as
one of the most important rights secured to the accused," id. (citing
Swain v. Alabama, 380 U.S. 202, 219 (1965)), and that, under Swain,
"[a] voir dire that has the effect of impairing a defendant's ability to
exercise intelligently his challenges, whether for cause or peremptory,
is a ground for reversal, irrespective of prejudice," id. at 807. We con-
cluded that the question proposed by the defendants"was vital to a
fair exercise of peremptory challenges," id . at 807, and that an affir-
mative answer to the defendants' proposed question would have
required the district court--if it could not persuade the person through
instructions or additional questions to change his or her mind--to
excuse the prospective juror for cause, id. at 806.

17
Second, while the district court's failure to ask the proposed ques-
tion might have been cured by a jury instruction specifically dealing
with the weight that should be given to the testimony of a law
enforcement officer, only a general charge was given with respect to
evaluating witnesses' credibility. Id. at 806-07. Because the district
court's instructions did not include a "very clear . . . instruction on
this important issue," we concluded that the general charge did not
sufficiently address the issue raised in the proposed question. Id. at
807, 809.

Third, the question "would have taken only a moment" of the dis-
trict court's time. Id. at 806.

Finally, we noted that our sister circuits had found that, under cir-
cumstances such as those presented in Evans, failure to ask prospec-
tive jurors whether a witness's official status would unduly sway their
evaluation of his or her testimony could constitute reversible error. Id.
at 807-08 (citing United States v. Baldwin, 607 F.2d 1295, 1298 (9th
Cir. 1979); Brown v. United States, 338 F.2d 543, 545 (D.C. Cir.
1964) (opinion authored by then Circuit Judge Warren Burger)).

In light of all of those considerations, we determined that the
defendants in Evans were entitled to a new trial.

B.

In Rainey, a prisoner, Rainey, had brought an action against a
prison guard under 42 U.S.C. § 1983, alleging that excessive force
had been used against him by the guard. 973 F.2d at 322. Prior to the
commencement of the trial, Rainey submitted a list of seventeen ques-
tions that he wished the court to ask prospective jurors. Id. at 325.
One of the proposed questions was: "Simply because of their status,
would any member of the jury panel be predisposed to believe the
word of a law enforcement officer or prison guard against that of a
prisoner?" Id. at 325 n.1. The district court refused to ask that ques-
tion, a jury was impaneled, the trial was conducted, and a verdict was
returned in favor of the prison guard. Id. at 323.

Upon reviewing Rainey's claim on appeal that the district court's
refusal to ask the proposed question was reversible error, we con-

18
cluded that the issue was "directly controlled by" our decision in
Evans. Id. at 325. We noted the following similarities between the
two cases: the text of the rejected questions was nearly identical; "the
case[s] boiled down to a credibility determination between the testi-
mony of a police officer and that of the [prisoners]"; "no specific jury
instruction was given on the weight that should be accorded to the tes-
timony of law enforcement officials, other than a general credibility
instruction"; and in neither case did the prisoners "burden the trial
court with an overly long list of proposed voir dire questions." Id. We
therefore reached the following conclusion:

[T]he similarities between this case and Evans are so pro-
nounced that there appears to be no way that a principled
distinction can be drawn. Accordingly, we hold that, under
the law of this circuit, the district court's failure to question
the jurors as requested by Rainey entitles Rainey to a new
trial.

Id.; accord United States v. Amerson, 938 F.2d 116, 118 (8th Cir.
1991) (stating that "[w]hen, as here, a case turns on the credibility of
law enforcement officers, the district court has a responsibility to
ensure the jurors are not predisposed to believe the testimony of the
officers is inherently more credible than that of other witnesses").

II.

The majority in the case at bar rightly concludes that, under Evans
and Rainey, we are compelled to conclude that the district court in the
case at bar abused its discretion when it refused to ask prospective
jurors whether they believed that police officers and corrections offi-
cials are more "worthy of belief" than other members of the commu-
nity. As in those cases, Appellants here did not burden the district
court with a long list of proposed questions: in fact, while the prison-
ers in Evans and Rainey proposed seventeen questions, Appellants
proposed only eight. The gist of the officer-credibility question pro-
posed by Appellants is the same as that of the questions proposed in
Evans and Rainey. This case, like those, boiled down to a determina-
tion of the comparative credibility of the prisoners and law enforce-
ment personnel. And no jury instruction was given specifically

19
concerning the weight to be given to the testimony of law enforce-
ment officials.

I believe it is equally clear, however, that the district court's error
was not harmless and that Appellants are entitled to a new trial.
Indeed, as Chief Judge Ervin, Judge Hamilton, and Senior District
Judge Kellam found in Rainey, see 973 F.2d at 325, I do not believe
that any "principled distinction can be drawn" between those cases--
in which we held that new trials were warranted--and the case before
us today.

As the majority concedes, the testimony--and hence the credibility
--of Corporal Staggs was absolutely central to the Government's
case. As the majority further concedes, while the district court asked
prospective jurors whether they, their friends, or their relatives had
ever worked in a law enforcement capacity, the fact that a similar
question had been asked in Evans did not persuade us there that the
specific issue of how much weight would be given to a law enforce-
ment officer's testimony had been sufficiently addressed. See Evans,
917 F.2d at 805, 808. The majority believes, however, that Appellants
here were given a sufficient opportunity to conduct a meaningful voir
dire. I disagree.

The majority bases its holding, in part, on the fact that the court
below asked several prospective jurors follow-up questions concern-
ing their ability to be impartial in light of their close association with
law enforcement officials. As we held in Evans , however, questions
concerning a potential juror's work in a law enforcement capacity "do
not cover the essential question of increased weight or credence of a
police officer's testimony." 917 F.2d at 805, 808. That "essential
question" is no more addressed by two, or ten, or twenty questions
concerning impartiality due to law enforcement affiliations than it is
by a single one. The problem we recognized in Evans was one of sub-
stance, not repetition.

The majority also relies upon the fact that the court below asked
the members of the jury panel whether they knew of any reason what-
soever why it would be difficult for them to be impartial. The major-
ity fails to point out, however, that a similar question had been asked
in Evans. In that case, the members of the venire were asked:

20
 Now, considering all of the questions I have already asked
you, is there any reason why any one of you could not sit
on the jury and render a fair and impartial verdict based
upon the evidence presented here in the courtroom and the
instructions on the law as will be given you by the court?

917 F.2d at 806. If anything, the final, catch-all question posed by the
district court in Evans was more pointed, more probing than the
catch-all question asked in the case at bar and relied upon by the
majority. Yet a new trial was deemed necessary in Evans neverthe-
less; we should certainly, then, reach the same conclusion here.

The majority also takes some comfort in the district court's jury
instructions concerning the manner in which the jurors could weigh
the credibility of witnesses. We held in Evans that a similar general
charge did not specifically "tell[ ] the jury how it should weigh the
testimony of a police officer." Id. at 806. Indeed, we even went so far
as to state that "a very clear jury instruction on this important issue"
was required under the circumstances of that case. Id. at 809 (empha-
sis added). The fact that the district court in the instant case took a
few more sentences to convey substantially the same information
does not persuade me that a result different from that reached in
Evans is appropriate here. Moreover, the majority curiously empha-
sizes those portions of the instructions that indicate that "only [the
jury] determine[s] the importance that[each witness's] testimony
deserves" and that the jury should determine which witnesses "in
[their] opinion [are] worthy of belief." Far from telling the jury that
they were not automatically to assume that the testimony of a law
enforcement officer is more credible than that of an inmate, those
emphasized portions of the instructions unambiguously invited the
jury to weigh each witness's credibility in whatever manner they saw
fit--even, apparently, if that meant deciding that a corrections offi-
cial's testimony is inherently more credible than that of a prisoner.

Finally, the majority notes that Corporal Staggs's testimony was
corroborated by the finding of two shanks in the prison yard, rather
than one. Evidence in addition to the in-court testimony was appar-
ently introduced by the Government in Evans, too. In fact, in that
case, evidence of a far more incriminating nature appears to have
been admitted--namely, the post-arrest statements of one of the

21
defendants, in which he confessed to being present at the scene of the
alleged crime, to receiving a portion of the drug proceeds, and to sell-
ing crack cocaine on other occasions. 917 F.2d at 802-805 (upholding
the district court's denial of the defendants' motion to suppress those
statements). We nevertheless concluded that, because the verdict pri-
marily turned on the jury's weighing of two competing accounts of
relevant events--one offered by a law enforcement officer and the
other offered by prisoners--the district court's error in refusing to ask
the proposed question concerning law enforcement officers' credibil-
ity was not harmless.

III.

A dissenting opinion was filed in Evans. I must confess that, at
least in some respects, it appears that my two colleagues believe that
the principles governing this case are to be found in that dissent,
rather than in the opinion of the Evans majority and in the subse-
quently rendered unanimous panel opinion in Rainey. Like the major-
ity here, the dissenting judge in Evans conceded that the district court
should have asked the proposed voir dire question, but contended that
the court's failure to do so was harmless because (1) the jurors likely
would have claimed not to believe that law enforcement officers' tes-
timony is generally more credible than that of others,2 (2) the district
court made an effort to probe for possible bias by asking whether any
of the potential jurors worked in a law enforcement capacity and
whether they knew of any reason why they could not be impartial,
and (3) the district court gave general instructions concerning the
manner in which the testimony of witnesses could be evaluated. Id.
at 809-12 (dissenting opinion). Echoes of that dissenting opinion are
unmistakably present in the opinion handed down by the majority
today. Indeed, it seems to me that the majority has disregarded one
of the most fundamental and well established principles under which
we are to operate: that a panel of three Fourth Circuit judges may not
overrule a prior published panel opinion. See, e.g., Norfolk & Western
_________________________________________________________________
2 The Evans dissenter suggested that, on appeal, the defendants should
have been required to show that one or more members of the venire
panel would have confessed to believing that police officers' testimony
is more credible than that of other citizens. See Evans, 917 F.2d at 810
(dissenting opinion). The majority here does not advance that argument.

22
Ry. v. Director, OWCP, 5 F.3d 777, 779 (4th Cir. 1993) ("Even if we
were so inclined, . . . a panel of this court may not overrule another
panel's decision.").

Under the law of this circuit, as articulated in the majority opinion
in Evans and in the unanimous opinion in Rainey, I do not believe that
any other conclusion can be reached but that Appellants are entitled
to receive a new trial. The majority having concluded otherwise, I
must respectfully dissent.

23