IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 17, 2008
No. 06-51528 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff-Appellee
v.
JOHN C. SKELTON
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
Before KING, BARKSDALE, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
The primary issue in this criminal case is whether the district court’s
limitations on cross-examination violated the defendant’s Sixth Amendment
confrontation right and right to present a complete defense. After careful review
of the district court’s evidentiary rulings, we affirm the defendant’s conviction.
I. BACKGROUND
John C. Skelton, Defendant, was indicted on one count for violating 18
U.S.C. § 875(b).1 According to the trial testimony, sometime prior to February
1
18 U.S.C. § 875(b) provides:
Whoever, with intent to extort from any person, firm, association, or
corporation, any money or other thing of value, transmits in interstate or foreign
No. 06-51528
24, 2006, Skelton called Terry Jacobs and had a short conversation regarding
Slim Gabrel. Skelton hung up the phone because of a poor connection. On
February 24, 2006, Skelton again called Jacobs. Skelton confirmed that he had
called before and stated that “Slim Gabrel wants his money. He said you
[Jacobs] stole your partner’s money and didn’t pay his life insurance. And Slim
is going to get a percentage of that, what you stole.” Jacobs stated that he did
not steal anything and that he did not even know a Slim Gabrel. Skelton
responded that he had seen the books, that Jacobs had indeed stolen money, and
that although Slim Gabrel used to be a sheriff, he was now head of the West
Texas Mafia. Jacobs stated that he did not know what Skelton was talking
about to which Skelton responded that if he did not get the money, Jacobs would
be murdered. Skelton explained that he had connections with the Ector County
and Midland County Sheriff’s Offices and that “[t]he way it’s going to happen is,
you’re going to get stopped by a county patrol unit . . . and they’re going to arrest
you, put handcuffs on you, put you in the back seat, take you out in the country
and shoot you in the head.” Skelton also stated that “Slim wanted . . . me to go
ahead and just kill you and collect the money from your wife . . . I don’t think I’ll
do that . . . I’ll just collect it from you, but I think it would be easier to collect it
from your wife.” Skelton instructed Jacobs to obtain two cashiers checks, one for
$250,000 and the other for $50,000. The conversation ended with Skelton telling
Jacobs that he would be in touch.
During the conversation, Jacobs was sitting next to his coworker, Victor
Lujan, in an office building in Midland, Texas -- Skelton made the call from
Arkansas. Lujan testified that during the conversation, Jacobs suddenly started
shaking, his breathing patterns changed, and he became very nervous. At some
commerce any communication containing any threat to kidnap any person or
any threat to injure the person of another, shall be fined under this title or
imprisoned not more than twenty years, or both.
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No. 06-51528
point, Jacobs handed the phone to Lujan, who testified that he heard the caller
state that if Jacobs “didn’t pay the money a city cop was actually going to pull
him over [and] was going to handcuff him and shoot him.”
On February 27 or 28, 2006, Jacobs spoke with Special Agent Dina
Morales, who filled out a complaint reflecting that Jacobs had received a
threatening phone call. She referred the case over to Texas Ranger Jess Malone.
Malone and Morales ascertained the identity of the caller to be Skelton through
phone records.2 They met with Jacobs on March 3, 2006 and advised him to
obtain a recording device in the event that Skelton called again. They also asked
Jacobs if he suspected a motive for the calls. Jacobs explained that he had once
worked for a company called Jolt Corporation (“Jolt”), which was formed in the
early 1990's to purchase two companies, Hardrock (d/b/a MidTexas Construction)
and Midwest Equipment. Jacobs was vice-president of Jolt, which eventually
dissolved in 1999. He denied stealing money from the company but indicated
that Jolt had failed to make payments on a life insurance policy on one of its co-
owners, Don Towery, who died in 1999.3 He believed that these were the events
referred to by Skelton during their phone conversation.
On March 10, 2006, Skelton again called Jacobs and demanded he pay
back the life insurance money. When Jacobs informed him that he did not have
that kind of money, Skelton responded that there would be trouble. Skelton also
stated, “And you’re either gonna give that money back or I’m gonna deal with
your ass, boy.” During the call, Skelton indicated that he was aware that Jacobs
maintained a double set of books, that he had stolen the insurance premiums
when Towery was dying of cancer, and that he would “call the income tax people
showing you [Jacobs] stole the federal FICA.” At that point, Jacobs hung up the
2
Deborah Middleton, a telecommunications specialist, testified with respect to these
records at trial.
3
Skelton and Don Towery were cousins.
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No. 06-51528
phone, indicating on his recording device that he was nervous. During the next
few weeks, Jacobs called Skelton -- at the urging of Morales and Malone -- in an
attempt to get Skelton to threaten him again. However, Skelton made no
further threats. He did at one point explain that he never wanted the money for
himself; he only wanted Skelton to repay the previous co-owners of Jolt.
At trial, the district court did not permit defense counsel to ask Jacobs on
cross-examination if he was only testifying to win favor with the Government in
the event that the IRS investigates Jolt’s financial books. The district court also
denied Skelton’s request to present extrinsic evidence that Jacobs was lying
about stealing money from Jolt. However, the district court did allow some
cross-examination regarding Jacobs prior dealings with Jolt. To that end, Jacobs
testified that Towery’s life insurance policy had lapsed because Jolt did not pay
the premiums. He also testified that one of the companies owned by Jolt
suffered a financial decline because Joe Moscarro, another co-owner, stole money
from the company.4 Defense counsel also asked Jacobs, “Isn’t it a fact that you
hung up within a second of [Skelton] mentioning the federal FICA so that the
agents that were going to hear this tape wouldn’t learn about that?” Jacobs
responded, “No.” He also denied that the “reason that [he] sounded more
nervous at that time is because of this reference to FICA.”
After the Government rested, Skelton moved for judgment of acquittal.
The district court denied the motion. Skelton then called eight witnesses --
Shane Towery, Mary Ann Stephens, Sharon Miller, Tina Kennedy, Mildred
Lipham, Johnny Oldham, Beverly Brock, and Lance Hall -- all of whom either
worked for or were somehow associated with companies owned by Jolt. Each
testified that Jacobs was not a truthful person and had the reputation for being
4
SA Morales testified that there was proof that Moscarro had stolen money from one
of the companies owned by Jolt.
4
No. 06-51528
untruthful. The district court did not permit these witnesses to testify about the
allegations that Jacobs stole funds from Jolt and lied to the IRS.
During a break in the testimony, the parties presented arguments
regarding the admissibility of rebuttal character testimony regarding Jacobs.
Skelton maintained that he was entitled to ask the Government’s rebuttal
character witnesses “did you know” or “have you heard” questions involving
specific alleged acts of dishonesty. The district court agreed that Skelton was
entitled to ask such questions as: “Did you know Lance Hall, who was the
brother-in-law of Shane Towery and the son-in-law of Mr. Towery, had an
opinion that he thinks [Jacobs] wasn’t truthful,” but that Skelton was not
entitled to pose such questions as: “Do you know or have you heard that Sharon
Miller, who worked for Mr. Jacobs, showed Shane Towery a double set of books
that had been maintained by Mr. Jacobs.” Skelton argued that prohibiting him
from asking such “did you know” or “have you heard” questions violated his
confrontation right. The district court responded that it was following Rules
404, 405, and 608 of the Federal Rules of Evidence meticulously and overruled
the objections. The Government proceeded to call five rebuttal witnesses -- Beau
Estes, Jeff Neely, Mark Bergen, Stephen Castle, and Butch Willis -- all of whom
testified that they knew Jacobs and that he was a truthful person. Skelton was
not permitted on cross-examination to ask “did you know” or “have you heard”
questions regarding specific alleged acts of dishonesty.
After the defense and the Government rested, Skelton renewed his motion
for judgment of acquittal. The district court denied the motion. After two hours
of deliberation, the jury sent the following note to the district court: “According
to 18, U.S.C., Section 875(b), does ‘threat to injure a person’ mean we have to
believe beyond a reasonable doubt that there was a threat to shoot or physical
injury in general?” The district court heard arguments on the issue. The
Government argued that the district court should simply refer the jury to the
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No. 06-51528
instructions concerning the elements of the offense. Skelton argued that the
district court should give the jury a specific instruction that the Government had
to prove beyond a reasonable doubt that there was a threat to shoot Jacobs. The
district court submitted the following response, “In response to Jury Note 1, you
are referred back to the Court’s Instructions to the Jury.” The jury returned a
verdict of guilty and Skelton was sentenced to 50 months imprisonment, three
years of supervised release, and a $5,000 fine. He filed a timely notice of appeal.
II. STANDARDS OF REVIEW
We review alleged violations of a defendant’s Sixth Amendment
confrontation right de novo. United States v. Bell, 367 F.3d 452, 465 (5th Cir.
2004). We also review alleged violations of a defendant’s Sixth Amendment right
to present a complete defense de novo. See United States v. Serrano, 406 F.3d
1208, 1214 (10th Cir. 2005) (citing United States v. Solomon, 399 F.3d 1231,
1239 (10th Cir. 2005)); see also United States v. Soape, 169 F.3d 257, 270 (5th
Cir. 1999) (“We review . . . constitutional questions de novo.”). Such claims,
however, are subject to harmless error review. Bell, 367 F.3d at 465; see also
United States v. Jimenez, 464 F.3d 555, 558 (5th Cir. 2006). If there is no
constitutional violation, then we review a district court’s limitations on cross-
examination for an abuse of discretion, which requires a showing that the
limitations were clearly prejudicial. Jimenez, 464 F.3d at 558-59 (citing United
States v. Restivo, 8 F.3d 274, 278 (5th Cir. 1993)). Finally, we review the refusal
to give a defense-tendered jury instruction for abuse of discretion. United States
v. Correa-Ventura, 6 F.3d 1070, 1076 (5th Cir. 1993).
III. ANALYSIS
A. Cross-Examination of Jacobs
Skelton argues that the district court erred in limiting his ability to cross-
examine Jacobs and otherwise present evidence regarding the allegations that
Jacobs stole from Jolt and lied to the IRS. “While the scope of cross-examination
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No. 06-51528
is within the discretion of the trial judge, this discretionary authority to limit
cross-examination comes into play only after there has been permitted as a
matter of right sufficient cross-examination to satisfy the Sixth Amendment.”
United States v. Elliott, 571 F.2d 880, 908 (5th Cir. 1978).5 As the Supreme
Court has emphasized:
Cross-examination is the principal means by which the believability
of a witness and the truth of his testimony are tested. Subject
always to the broad discretion of a trial judge to preclude repetitive
and unduly harassing interrogation, the cross-examiner is not only
permitted to delve into the witness’ story to test the witness’
perceptions and memory, but the cross-examiner has traditionally
been allowed to impeach, i.e., discredit, the witness. . . . A more
particular attack on the witness’ credibility is effected by means of
cross-examination directed toward revealing possible biases,
prejudices, or ulterior motives of the witness as they may relate
directly to issues or personalities in the case at hand. The partiality
of a witness is subject to exploration at trial, and is always relevant
as discrediting the witness and affecting the weight of his
testimony. We have recognized that the exposure of a witness’
motivation in testifying is a proper and important function of the
constitutionally protected right of cross-examination.
Davis v. Alaska, 415 U.S. 305, 315 (1974) (internal quotations marks and
citations omitted). This right “is particularly important when the witness is
critical to the prosecution’s case.” Jimenez, 464 F.3d at 559 (quoting United
States v. Mizell, 88 F.3d 288, 293 (5th Cir. 1996)). However, “the 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)
(emphasis in original); see also Bigby v. Dretke, 402 F.3d 551, 573 (5th Cir. 2005)
(“[T]he Confrontation Clause does not guarantee defendants cross-examination
5
The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const. amend.
VI.
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No. 06-51528
to whatever extent they desire.”). The district court has “wide latitude insofar
as the Confrontation Clause is concerned to impose reasonable limits on such
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). Thus, the Confrontation Clause is generally satisfied when the
defendant has been “permitted to expose to the jury the facts from which jurors,
as the sole triers of fact and credibility, could appropriately draw inferences
relating to the reliability of the witness.” Restivo, 8 F.3d at 278 (quoting Davis,
415 U.S. at 318); see also United States v. Tansley, 986 F.2d 880, 886 (5th Cir.
1993) (“The relevant inquiry is whether the jury had sufficient information to
appraise the bias and motives of the witness.”).
In order to establish a violation of the confrontation right, the defendant
need not establish that the jury would have reached a different result. Van
Arsdall, 475 U.S. at 679-80. Instead, the focus is on the particular witness. Id.
at 680. As the Supreme Court explained, “[i]t would be a contradiction in terms
to conclude that a defendant denied any opportunity to cross-examine the
witnesses against him nonetheless had been afforded his right to
‘confront[ation]’ because use of that right would not have affected the jury’s
verdict.” Id. Thus, to establish a violation of the confrontation right, the
defendant need only establish that “[a] reasonable jury might have received a
significantly different impression of [the witness’s] credibility had [defense]
counsel been permitted to pursue his proposed line of cross-examination.” Id.
Finally, any violation of the confrontation right is subject to harmless error
review by analyzing the following factors: “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
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No. 06-51528
permitted, and, of course, the overall strength of the prosecution’s case.” Van
Arsdall, 475 U.S. at 684.
The determination of “[w]hether the exclusion of evidence is of a
constitutional dimension depends on the [district] court’s reason for the
exclusion and the effect of the exclusion.” Kittelson v. Dretke, 426 F.3d 306, 319
(5th Cir. 2005). This determination typically includes an inquiry into the
admissibility of the evidence under the Federal Rules of Evidence.
Skelton first argues that any evidence relating to the allegations that
Jacobs stole funds from Jolt and lied to the IRS is admissible as intrinsic “other
act” evidence. “‘Other act’ evidence is ‘intrinsic’ when the evidence of the other
act and evidence of the crime charged are ‘inextricably intertwined’ or both acts
are part of a ‘single criminal episode’ or the other acts were ‘necessary
preliminaries’ to the crime charged.” United States v. Coleman, 78 F.3d 154, 156
(5th Cir. 1996) (quoting United States v. Williams, 900 F.2d 823, 825 (5th Cir.
1990)). “This evidence is admissible to complete the story of the crime by
proving the immediate context of events in time and place.” Id. (citing United
States v. Kloock, 652 F.2d 492, 494-95 (5th Cir. 1981); United States v. Royal,
972 F.2d 643, 647 (5th Cir. 1992)). Intrinsic “other act” evidence does not
implicate Rule 404(b) of the Federal Rules of Evidence and “consideration of its
admissibility pursuant to Rule 404(b) is unnecessary.” United States v. Garcia,
27 F.3d 1009, 1014 (5th Cir. 1994).
We agree with the Government that the “other act” evidence at issue is not
intrinsic. Indeed, whether Jacobs stole money from Jolt and lied to the IRS is
irrelevant to the question of whether Skelton threatened Jacobs, especially given
that the Government need not establish a motive for the alleged threat. As the
district court correctly recognized, “Let’s say all that was true . . . . Does that
give your client the right to threaten to kill him?” Because the issue of whether
Jacobs committed these other alleged acts is not a requisite preliminary or
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No. 06-51528
otherwise necessary to complete the story of the crime charged, we conclude that
evidence of these other alleged acts is not admissible as intrinsic “other act”
evidence. Coleman, 78 F.3d at 156; Williams, 900 F.2d at 825.
None of the cases cited by Skelton compels a different result. Indeed, in
each of these cases, the other act at issue consisted of a crime committed by the
defendant that was inextricably intertwined with the offense charged. See, e.g.,
United States v. Smith, 930 F.2d 1081, 1087 (5th Cir. 1991) (finding no error
when district court admitted drug-related testimony regarding defendant);
Coleman, 78 F.3d at 156-57 (finding no error when district court admitted
evidence that defendant attempted to carjack another vehicle shortly before car-
jacking victim); United States v. Lamp, 779 F.2d 1088, 1095 (5th Cir. 1986)
(finding no error when district court admitted evidence of defendant’s drug
trafficking offenses to show nature and extent of income in tax fraud case);
United States v. Price, 877 F.2d 334, 337 (5th Cir. 1989) (finding no error when
district court admitted relevant recordings of conversations in which defendant
discussed other crimes he committed). Thus, Skelton has not cited any case in
which another act committed by a witness was somehow deemed inextricably
intertwined with the offense charged.
The parties next debate whether evidence relating to the allegations that
Jacobs stole funds from Jolt and lied to the IRS is admissible under Rules 404(b)
and 608(b) of the Federal Rules of Evidence. However, we find both parties to
be mistaken in their analysis and conclude that neither Rule applies. The
Government first argues that Rule 404(b) bars the admissibility of any evidence
relating to the allegations that Jacobs stole funds from Jolt and lied to the IRS.
That rule provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such
as proof of motive, opportunity, intent, preparation, plan,
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No. 06-51528
knowledge, identity, or absence of mistake or accident, provided that
upon request by the accused, the prosecution in a criminal case shall
provide reasonable notice in advance of trial, or during trial if the
court excuses pretrial notice on good cause shown, of the general
nature of any such evidence it intends to introduce at trial.
Fed. R. Evid. 404(b).6 We find that Rule 404(b) does not bar the evidence at
issue because it is not being offered as character evidence to show action in
conformity therewith. Contrary to the Government’s argument, Skelton is not
arguing that because Jacobs allegedly stole funds from Jolt and lied to the IRS,
he has a propensity to lie generally. Instead, he is offering this evidence to show
that Jacobs has a motive to lie about the alleged threat in this case, i.e., to divert
attention from his own alleged misdeeds and win favor with the Government.
Because Skelton is essentially introducing this evidence as evidence of bias, Rule
404(b) does not bar its admissibility.
Nor does Rule 608(b) apply. That Rule provides, in pertinent part, that
“[s]pecific instances of the conduct of a witness, for the purpose of attacking or
supporting the witness’ character for truthfulness, other than conviction of crime
as provided in rule 609, may not be proved by extrinsic evidence.” Fed. R. Evid.
608(b). This court has explained that “[t]he application of Rule 608(b) to exclude
extrinsic evidence of a witness’s conduct is limited to instances where the
evidence is introduced to show a witness’s general character for truthfulness.”
United States v. Opager, 589 F.2d 799, 801 (5th Cir. 1979) (emphasis added).
This court continued, “[w]e consider Rule 608(b) to be inapplicable in
6
To determine the admissibility of evidence under Rule 404(b), this court employs the
two-part Beechum test. United States v. Sumlin, 489 F.3d 683, 690 (5th Cir. 2007) (citing
Beechum v. United States, 582 F.2d 898, 911 (5th Cir. 1978) (en banc)). First, the court
determines whether the act is relevant to an issue other than character. Beechum, 582 F.2d
at 911. This inquiry includes a determination of whether there is sufficient evidence to
demonstrate that the witness actually committed the offense. Id. at 912-13. Second, the court
determines whether the evidence is admissible under Rule 403 by weighing the probative value
of the evidence versus its prejudicial effect. Id. at 913-14; see also United States v. Simmons,
470 F.3d 1115, 1125 (5th Cir. 2006) (internal quotations and citations omitted).
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No. 06-51528
determining the admissibility of relevant evidence introduced to contradict a
witness’s testimony as to a material issue. So long as otherwise competent, such
evidence is admissible.” Id. at 802. This court reasoned:
“We believe that the ultimate purpose of the rules of evidence
should not be lost by a rigid, blind application of a single rule of
evidence. Individual rules of evidence, in this instance Rule 608(b),
should not be read in isolation, when to do so destroys the purpose
of ascertaining the truth. This is especially so when a witness
directly contradicts the relevant evidence which Rule 608(b) seeks
to exclude. . . .” Similarly, we believe that Rule 608(b) should not
stand as a bar to the admission of evidence introduced to contradict,
and which the jury might find disproves, a witness’s testimony as to
a material issue of the case.
Id. at 802-03 (quoting United States v. Batts, 558 F.2d 513, 517 (9th Cir. 1977),
opinion withdrawn and aff’d on other grounds, 573 F.2d 599 (1978)). Thus,
because this evidence is not being offered to establish that Jacobs has a general
character for untruthfulness, Rule 608(b) does not bar its admissibility.
Moreover, the Supreme Court has held that even if evidence is barred under
Rule 608(b), it nonetheless may be admissible if it tends to show bias. United
States v. Abel, 469 U.S. 45, 56 (1984); see also United States v. Martinez, 962
F.2d 1161, 1165 (5th Cir. 1992) (“Extrinsic evidence may . . . be admissible for
another purpose -- for example, if it tends to show bias in favor of or against a
party.”). As the Supreme Court explained, “it would be a strange rule of law
which held that relevant, competent evidence which tended to show bias on the
part of a witness was nonetheless inadmissible because it also tended to show
that the witness is a liar [under Rule 608(b)].” Id.
In short, we find that the evidence relating to the allegations that Jacobs
stole funds from Jolt and lied to the IRS tends to show that he has a motive to
lie in this case and should have been considered and evaluated as evidence of
bias. The Supreme Court has recognized that “the exposure of a witness’
motivation in testifying is a proper and important function of the
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No. 06-51528
constitutionally protected right to cross examination.” Davis, 415 U.S. at 316-17.
The Supreme Court has also recognized that “proof of bias is almost always
relevant because the jury, as finder of fact and weigher of credibility, has
historically been entitled to assess all evidence which might bear on the accuracy
and truth of a witness’ testimony.” Abel, 469 U.S. at 52. In fact, this court has
stated that “cross-examination into any motivation or incentive a witness may
have for falsifying his testimony must be permitted.” United States v. Bratton,
875 F.2d 439, 443 (5th Cir. 1989) (quoting United States v. Hall, 653 F.2d 1002,
1008 (5th Cir. 1981)) (emphasis in original).
The admissibility of bias evidence, however, is subject to Rule 403. Thus,
the probative value of admitting such evidence must not be substantially
outweighed by any prejudicial effect. Id. In this respect, district courts retain
wide discretion in “impos[ing] reasonable limits on defense counsel’s inquiry into
the potential bias of a prosecution witness, to take into account of such factors
as ‘harassment, prejudice, confusion of the issues, the witness’ safety, or
interrogation that [would be] repetitive or only marginally relevant.’” Olden v.
Kentucky, 488 U.S. 227, 232 (1988) (quoting Van Arsdall, 475 U.S. at 679); see
also United States v. Lamp, 779 F.2d 1088, 1095 (5th Cir. 1986). Within this
discretion, however, “[c]ounsel should be allowed great latitude in cross
examining a witness regarding his motivation or incentive to falsify testimony,
and this is especially so when cross examining an accomplice or a person
cooperating with the Government.” United States v. Landerman, 109 F.3d 1053,
1063 (5th Cir. 1997) (citing United States v. Hall, 653 F.2d 1002, 1008 (5th Cir.
1981)).
Here, the district court recognized that the evidence at issue is subject to
Rule 403 and concluded:
I will give you [defense counsel] some leeway, but there will not --
you can preserve your record on other things that you might want
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No. 06-51528
to go into outside the presence of the jury. But we’re not going to try
Mr. Jacobs. This is Mr. Skelton’s trial. Certainly, he is entitled to
a fair defense and due process, and I’m going to give him that. But
we’re not going to try the case of whether Mr. Jacobs did or did not
steal money back in the 1990's. You’re going to have some limited
exploration of that, and then we’re going to move on.
At trial, although Skelton was not permitted to introduce extrinsic evidence that
Jacobs actually stole money from Jolt and lied to the IRS, he was permitted to
explore Jacobs’ dealings with Jolt and was specifically permitted to ask if he was
only testifying because of the allegations concerning the IRS. He was also
permitted to ask Jacobs if he was lying in order to protect himself and whether
he had received any assurances from the Government that he would not be
prosecuted for his alleged misdeeds. Thus, we conclude that the district court
did not err in limiting Skelton’s cross-examination because it still gave Skelton
ample room to explore the issue of bias. Nor do we find that these limitations
give rise to a Confrontation Clause violation given that Skelton was nonetheless
“permitted to expose to the jury the facts from which jurors, as the sole triers of
fact and credibility, could appropriately draw inferences relating to the
reliability of the witness.” Restivo, 8 F.3d at 278 (quoting Davis, 415 U.S. at
318). Even if we did find a Confrontation Clause violation, any such error was
harmless beyond a reasonable doubt. Indeed, although Jacobs was a key
witness, his testimony that Skelton threatened to shoot him was corroborated
by Lujan and Skelton was given ample room to explore the issue of bias and
otherwise attack the credibility of Jacobs. See Kittelson, 426 F.3d at 319 (citing
Van Arsdall, 475 U.S. at 684).
B. Cross-Examination of Rebuttal Character Witnesses
The second issue raised by Skelton is whether the district court erred in
denying him an opportunity to ask specific “did you know” and “have you heard”
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No. 06-51528
questions during cross-examination of the Government’s rebuttal character
witnesses under Rule 608(b). As quoted in part earlier, that Rule provides:
Specific instances of the conduct of a witness, for the purpose of
attacking or supporting the witness’ character for truthfulness,
other than conviction of crime as provided in rule 609, may not be
proved by extrinsic evidence. They may, however, in the discretion
of the court, if probative of truthfulness or untruthfulness, be
inquired into on cross-examination of the witness (1) concerning the
witness’ character for truthfulness or untruthfulness, or (2)
concerning the character for truthfulness or untruthfulness of
another witness as to which character the witness being
cross-examined has testified.
Fed. R. Evid. 608(b). According to this court, Rule 608(b) “permit[s] inquiry on
cross examination into specific instances of conduct which may bear on a
witness’ credibility in order to impeach the credibility of the witness.” United
States v. Farias-Farias, 925 F.2d 805, 809 (5th Cir. 1991); see also United States
v. Tomblin, 46 F.3d 1369, 1389 (5th Cir. 1995) (quoting United States v. Leake,
642 F.2d 715, 718 (4th Cir. 1981) (“Rule 608 authorizes inquiry only into
instances of misconduct that are ‘clearly probative of truthfulness or
untruthfulness,’ such as perjury, fraud, swindling, forgery, bribery, and
embezzlement.”). In order for an alleged bad act to be admissible under Rule
608(b), “[f]irst, the alleged bad act must have a basis in fact and second, the
incidents inquired about must be relevant to the character traits at issue in the
trial.” United States v. Nixon, 777 F.2d 958, 970 (5th Cir. 1985) (citing
Michelson v. United States, 335 U.S. 469, 481 n.18 (1948); United States v.
Crippen, 570 F.2d 535, 538-39 (5th Cir. 1978)). “That does not mean that the
basis in fact must be proved as a fact before a good faith inquiry can be made.
Id. (citing United States v. Bright, 588 F.2d 504, 512 (5th Cir. 1979)). The
district court has substantial discretion in determining the admissibility of
impeachment evidence under Rule 608(b). Farias-Farias, 925 F.2d at 809.
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Finally, even if character evidence is deemed admissible under Rule 608(b), its
admissibility is subject to Rule 403. Id.; see also United States v. Williams, 822
F.2d 512, 517 (5th Cir. 1987) (“The district court may under Rule 608(b)
determine if evidence is probative of truthfulness, and under Rule 403 exclude
even probative evidence if the prejudicial effect outweighs the probative value.”).
Here, the district court stated that Rule 608(b), when read in conjunction
with Rules 404 and 405, applies differently to third-party witnesses, implying
that Rule 608(b) somehow bars Skelton from inquiring into specific instances of
conduct to test the reliability of the Government’s rebuttal character witnesses.
In doing so, the district court erred. This court has explained that “[o]nce a
witness has testified concerning a defendant’s good character, it is permissible
during cross-examination to attempt to undermine his credibility by asking him
whether he has heard of prior misconduct of the defendant which is inconsistent
with the witness’ direct testimony.” United States v. Wells, 525 F.2d 974, 976
(5th Cir. 1976) (citing Michelson, 335 U.S. at 479); see also Bright, 588 F.2d at
511-12. We see no reason why this Rule would apply differently to rebuttal
character witnesses testifying about the character of other third-party witnesses.
Indeed, three major treatises on evidence agree that Rule 608(b) permits a party
to inquire into specific instances of conduct to test the reliability of a rebuttal
character witness in such situations. See 4 Jack B. Weinstein & Margaret A.
Berger, Weinstein’s Federal Evidence § 608.23, at 68 (2d ed. 2007); 3
Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 6:41, at 266-
68 (3d ed. 2007) (“The propriety of asking such probing questions is settled.”); 2
Michael H. Graham, Handbook of Federal Evidence § 608.5, at 622-25 (6th ed.
2006). As the third treatise explained:
The character witness may be asked not only concerning the specific
acts of the principal witness probative of truthfulness or
untruthfulness, but may be cross-examined concerning familiarity
with convictions as well as arrests, rumors, reports, indictments,
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No. 06-51528
etc., of the principal witness. Such facts have a natural bearing
upon the reputation of the principal witness and the character
witness’ opinion of the principal witness. Lack of familiarity with
such facts is relevant to an assessment of the basis for the character
witness’ testimony. Familiarity with such matters explores the
character witness’ standard of “truthfulness” or “untruthfulness.”
Whatever the form of the question, the cross-examiner must, of
course, have a good faith basis supporting his inquiry.
Handbook of Federal Evidence § 608.5, at 622-25.
To be clear, we reiterate that Rule 608(b) permits “did you know” or “have
you heard” questions regarding specific instances of conduct of the principal
witness probative of truthfulness or untruthfulness to impeach the credibility
of a rebuttal character witness, subject to Rule 403. Having concluded
otherwise, the district court erred. Nonetheless, this court has held that
although Rule 608 permits the impeachment of the general credibility of a
witness, there is no constitutional right to do so. See Cloud v. Thomas, 627 F.2d
742, 743-44 (5th Cir. 1980). Thus, based on this court’s precedent, the district
court’s error does not implicate the Confrontation Clause.7
C. Jury Instructions and Response to Jury Question
The third and final issue raised by Skelton is whether the district court
abused its discretion by denying his proposed jury instruction that in order for
the jury to find Skelton guilty, it must find beyond a reasonable doubt that he
threatened to shoot Jacobs. When overruling a proposed jury instruction, “[a]
court commits reversible error where (1) the requested instruction is
7
Skelton also argues that the district court’s evidentiary rulings violated his right to
present a complete defense. The Supreme Court has stated that “[w]hether rooted directly in
the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or
Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal
defendants a meaningful opportunity to present a complete defense.” Holmes v. South
Carolina, 547 U.S. 319, 324 (2007) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)). For
the same reasons we find no violation of Skelton’s confrontation right, we likewise conclude
that the district court’s evidentiary rulings provided Skelton with a meaningful opportunity
to present a complete defense and that any error is harmless beyond a reasonable doubt.
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No. 06-51528
substantially correct; (2) the requested issue is not substantially covered in the
charge; and (3) the instruction ‘concerns an important point in the trial so that
the failure to give it seriously impaired the defendant’s ability to effectively
present a given defense.’” United States v. John, 309 F.3d 298, 304 (5th Cir.
2002) (quoting United States v. Grissom, 645 F.2d 461, 464 (5th Cir. 1981)).
In discussing the elements of the offense charged in the indictment, the
district court instructed the jury that in order to find Skelton guilty, it must find
beyond a reasonable doubt “[t]hat the defendant knowingly transmitted a
communication containing a threat to injure the person of another, as charged
in Count One of the indictment.” The district court also gave the following
instruction:
You will note that the indictment charges that the offense was
committed on or about a specified date. The government does not
have to prove that the crime was committed on that exact date, so
long as the government proves beyond a reasonable doubt that the
defendant committed the crime on a date reasonably near the date
stated in the indictment.
Skelton requested that the district court instead instruct the jury that in order
to find him guilty, it must find beyond a reasonable doubt “[t]hat on February
24, 2006, John Skelton knowingly transmitted a telephone communication
containing a threat to shoot Terry Lee Jacobs.”
Skelton does not dispute that the district court’s instructions closely track
the Fifth Circuit Pattern Jury Instructions. Nor does he dispute that they
constitute a correct statement of the law. Thus, it can hardly be said that the
district court abused its discretion in overruling Skelton’s proposed jury
instruction. See United States v. Turner, 960 F.2d 461, 464 (5th Cir. 1992)
(holding that district court did not err in giving instruction that tracked Fifth
Circuit Pattern Jury Instructions and was correct statement of law). The thrust
of Skelton’s argument is that by not giving a specific date and not specifying an
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No. 06-51528
actual threat to shoot in the instructions, the jury could have found Skelton
guilty for other alleged threats not charged in the indictment such as his
statement in a subsequent phone call, “I’m gonna deal with your [Jacobs’] ass,
boy.” We reject this argument. The district court’s instructions state that in
order to find Skelton guilty, the Government must establish beyond a reasonable
doubt that Skelton “knowingly transmitted a communication containing a threat
to injure the person of another, as charged in Count One of the indictment.”
(emphasis added). As quoted in the instructions, the indictment states, in
pertinent part:
On or about February 24, 2006 . . . the Defendant, John C. Skelton,
knowingly and with intent to extort the sum of $300,000.00 from
Terry Lee Jacobs, did transmit in interstate commerce from
Arkansas to Texas, a telephone communication to the said Terry
Lee Jacobs, which telephone communication contained a threat to
injure the person of Terry Lee Jacobs, that is, a threat to shoot him,
in violation of Title 18 United States Code, Section 875(b).
(emphasis added). Based on these instructions, we presume that the jury only
considered the offense charged in the indictment, which clearly charges Skelton
with threatening to shoot Jacobs on or about February 24, 2006. See United
States v. Levine, 80 F.3d 129, 136 (5th Cir. 1996) (“The jury is presumed to have
followed the court’s instructions.”). Moreover, Skelton emphasized throughout
trial that the Government had to prove that he threatened to shoot Jacobs.
Accordingly, Skelton can hardly argue “that the failure to give [the proposed
instruction] seriously impaired [his] ability to effectively present a given
defense.” John, 309 F.3d at 304 (quoting Grissom, 645 F.2d at 464).
Skelton also argues that the district court erred in answering the following
jury question, “[a]ccording to 18, U.S.C., Section 875(b), does ‘threat to injure a
person’ mean we have to believe beyond a reasonable doubt that there was a
threat to shoot or physical injury in general?” The district court submitted the
following response, “you are referred back to the Court’s Instructions to the
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No. 06-51528
Jury.” Again, those instructions closely track the Fifth Circuit Pattern Jury
Instructions, are correct statements of the law, and limited the jury’s
consideration to the offense charged in the indictment, which specified that the
threat at issue was a threat to shoot. Because juries are presumed to follow the
district court’s instructions and district courts are given wide latitude to respond
to jury questions, see United States v. Stevens, 38 F.3d 167, 170 (5th Cir. 1994)
(citing United States v. Duvall, 846 F.2d 966, 977 (5th Cir. 1988)), we conclude
that the district court did not abuse its discretion in answering the jury question.
IV. CONCLUSION
For the foregoing reasons, we affirm the district court’s judgment of
conviction and sentence.
AFFIRMED.
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