United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-2224
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Missouri.
Darwin Beck, *
*
Appellant. *
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Submitted: December 11, 2008
Filed: February 23, 2009
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Before LOKEN, Chief Judge, BEAM, Circuit Judge, and KYLE,1 District Judge.
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KYLE, District Judge.
Darwin Beck appeals his conviction for being a felon in possession of a firearm.
He argues that the district court2 erred when it (1) limited cross-examination of a
Government witness, (2) failed to exclude evidence disclosed by the Government in
an untimely fashion, and (3) precluded defense counsel from arguing that the police
1
The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota, sitting by designation.
2
The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.
did not conduct a thorough investigation. We find no merit to any of these
contentions and, accordingly, affirm.
I. FACTUAL BACKGROUND
On September 25, 2007, St. Louis Metropolitan Police officers Steven Schwerb
and Jason Chambers traveled to a public-housing complex after dispatchers received
a 911 call that someone was “flourishing” a firearm. Upon arrival, they found
Dewayne Long, a resident of the complex, standing outside bleeding with a gash on
his head. Long told the officers that he and his cousin had attempted to break up a
fight between Beck and another resident of the complex and that Beck had hit him on
the head with a firearm. He also told the officers that the complex’s manager, Roger
Flowers, had arrived on the scene before them and had gone with Beck to his (Beck’s)
second-floor apartment.
Schwerb and Chambers then went to Beck’s apartment and placed him under
arrest. Beck admitted to the officers that he had fought with Long but denied having
a gun. The officers then asked for, and were given, permission to search Beck’s
apartment. Schwerb conducted the search but did not find a weapon. In the course
of his search, however, he observed a door in the kitchen that led onto a small porch.
He went out onto the porch and looked over the balcony and saw a pistol in a common
area on the ground below. He then went downstairs, retrieved the firearm, and
brought it back to the apartment. When questioned, Beck admitted that it was his, that
he had “messed up,” and that he had thrown it over the balcony when he saw the
officers arriving because he was a felon and was not permitted to possess it. The
officers later showed the firearm to Long, who confirmed that it was the firearm with
which Beck struck him.
Beck was initially tried in January 2008; that trial resulted in a hung jury. Long
did not testify at that trial because the Government could not locate him. Beck was
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re-tried in February 2008, and Long testified at the second trial. Beck was convicted
and now appeals.
II. DISCUSSION
A Limiting Schwerb’s cross-examination
Beck first argues that the district court improperly precluded defense counsel
from asking certain questions of Schwerb on cross-examination. “We review a trial
court’s limitation of cross-examination only for abuse of discretion; we will reverse
only if ‘there has been a clear abuse of discretion and a showing of prejudice to the
defendant.’” United States v. Barrett, 937 F.2d 1346, 1349 (8th Cir. 1991) (quoting
United States v. Rubin, 836 F.2d 1096, 1099 (8th Cir. 1988)); accord, e.g., United
States v. Cody, 114 F.3d 772, 776 (8th Cir. 1997); United States v. Caldwell, 88 F.3d
522, 524 (8th Cir. 1996).
In the spring of 2007, several St. Louis police officers were implicated in a
scandal concerning Cardinals World Series tickets. The officers purportedly had
seized tickets being sold by scalpers and used the tickets themselves or gave them to
friends. Seven officers, including Schwerb, were demoted as a result of the scandal
and suspended without pay for two weeks, although Internal Affairs never completed
its investigation into the allegations.
The Government moved in limine to exclude defense counsel from inquiring
about Schwerb’s involvement in the scandal, and the district court granted that
motion. Beck contends this was error because attacking Schwerb’s credibility was
essential to his case. We disagree.
Under Federal Rule of Evidence 608(b), specific instances of witness
untruthfulness may be inquired into on cross-examination in the discretion of the
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court.3 But such cross-examination – as with most evidence – is subject to exclusion
if its probative value is “substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay,
waste of time, or needless presentation of cumulative evidence.” United States v.
Beal, 430 F.3d 950, 956 (8th Cir. 2005) (quoting Fed. R. Evid. 403); see also United
States v. Drapeau, 414 F.3d 869, 875 (8th Cir. 2005) (“[t]rial judges retain ‘wide
latitude’ to impose ‘reasonable limits’” on cross-examination, particularly where the
subjects inquired into might confuse the jury or be “repetitive or only marginally
relevant”) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).
Here, the district court properly considered the effect the proposed cross-
examination would have had on the trial, noting that even if Schwerb’s testimony
were thoroughly discredited by the ticket scandal, such impeachment would have had
no impact on the testimony of Chambers (who testified that Beck admitted the gun
was his) or Long (who identified the gun and identified Beck as his assailant). Given
that Schwerb’s testimony was duplicative of, and corroborated by, the testimony of
Chambers and Long, the exclusion of the proposed cross-examination had little impact
on the Government’s case. Accordingly, we cannot say the district court abused its
discretion in precluding this line of impeachment. For the same reason, even if the
district court had erred, its error was harmless. See United States v. Santisteban, 501
F.3d 873, 879 (8th Cir. 2007) (harmless-error inquiry with respect to cross-
examination “depends on ‘the importance of the witness’ testimony in the
prosecution’s case, whether the testimony was cumulative, the presence or absence of
evidence corroborating or contradicting the testimony of the witness on material
points, the extent of cross-examination otherwise permitted, and, of course, the overall
strength of the prosecution’s case’”) (quoting Van Arsdall, 475 U.S. at 684).
3
Theft is conduct probative of truthfulness. See United States v. Callaway, 938
F.2d 907, 911-12 (8th Cir. 1991).
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B. Admission of the bloody towel
Long used a towel to stop the bleeding on his head caused by Beck’s assault.
Because the Government had been unable to locate Long before the first trial, it was
unaware of the towel until a Saturday two days before the start of the second trial.
The Government immediately disclosed the existence of the towel to Beck, who
moved in limine to preclude the Government from offering it. The district court
denied that motion, a decision we review for abuse of discretion. E.g., United States
v. Gianakos, 415 F.3d 912, 919 (8th Cir. 2005). We find no abuse of discretion here.
A district court does not abuse its discretion in allowing the introduction of
evidence disclosed in a dilatory fashion unless that evidence substantially prejudiced
the defendant. See United States v. Williams, 902 F.2d 675, 677 (8th Cir. 1990).
Here, Long testified that Beck hit him with a firearm, and he further testified
concerning the extent of his injury, which was consistent with being struck by an
object. Schwerb and Chambers corroborated Long’s version of events, testifying that
Long had a gash on his head when they arrived on the scene. The purpose of
admitting the towel was merely to corroborate this testimony. Accordingly, it likely
had little (if any) impact on the trial.
Furthermore, there is no dispute that Beck was aware, in advance, that Long
would be called to testify about the assault at the second trial. Accordingly, he cannot
credibly argue that the admission of the towel – which merely corroborated Long’s
testimony – somehow amounted to unfair surprise. Indeed, Beck could have
requested a continuance given the late disclosure, but tellingly he did not. See United
States v. Bissonette, 164 F.3d 1143, 1145 (8th Cir. 1999) (failure to request
continuance after untimely disclosure “indicat[es] that [the defendant] did not perceive
the need for additional time to prepare”).
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For these reasons, we conclude that Beck has failed to show any substantial
prejudice from the admission of the towel.
C. Lack of thoroughness of the investigation
Long was the only person Schwerb and Chambers interviewed before arresting
Beck. At the first trial, the district court granted the Government’s motion to preclude
Beck from arguing that the officers did not conduct a thorough investigation. This
ruling was based on the fact that Long was not going to testify; his statements to the
officers, therefore, were inadmissible hearsay. Those statements, however, explained
why Schwerb and Chambers did not talk to any other witnesses. Accordingly, defense
counsel might have given an unfair impression to the jury by arguing that the
investigation was not thorough, because the Government had no means to rebut such
an assertion with Long’s statements.
Before the second trial, the Government renewed all of its motions in limine,
and the district court adopted its earlier rulings. Beck now argues that the district
court erred by granting the Government’s motion regarding the thoroughness of the
investigation. But because Long testified at the second trial, the Government’s
concerns underpinning that ruling were rendered moot – Beck could argue that the
officers conducted a superficial investigation, and the Government could respond to
that assertion with Long’s testimony about what he told the officers. Beck clearly
recognized this, because the record is replete with instances in which he injected the
alleged lack of thoroughness of the investigation into the trial, including during
closing argument. Accordingly, while the district court may have granted the
Government’s motion in limine on this issue, that ruling ultimately did not impair
Beck’s defense in any way. We perceive no error, let alone a reversible one.
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IV. CONCLUSION
For all the foregoing reasons, we affirm Beck’s conviction.
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