United States v. Embry

FILED
United States Court of Appeals
Tenth Circuit

December 16, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 11-5027
v. (N.D. of Okla.)
DEMONTE HOWARD EMBRY, (D.C. No. 4:10-CR-00056-CVE-1)

Defendant-Appellant.

ORDER AND JUDGMENT *

Before O’BRIEN, McKAY, and TYMKOVICH, Circuit Judges. **

Demonte Howard Embry was convicted of being a felon in possession of a

firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2),

and sentenced to seventy-seven months incarceration.

Embry presents two issues for review. First, whether a magistrate judge

abused his discretion in denying Embry’s discovery request for potentially

*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
exculpatory and impeaching FBI information. Second, whether the district court

erred in preventing Embry from impeaching his own witness on direct

examination with extrinsic evidence of the witness’s efforts to discredit a

government witness in an unrelated police corruption case. We find no error in

either ruling.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM.

I. Background

Two members of the Tulsa Police Department’s (TPD) Gang Unit, Officer

Mark Wollmershauser and Corporal Brian Blair, were patrolling near the

Seminole Hills apartments in Tulsa, Oklahoma. The patrol was part of a series of

directed patrols due to the area’s reputation as a high crime area. After circling

through the complex, the officers chose to stop and approach a group of four men.

According to Wollmershauser’s testimony, as the officers exited their

vehicle and approached the men, one of the men, Embry, removed a dark colored

handgun from the pocket of his hooded sweatshirt, leaned down behind a vehicle,

and then emerged with the gun no longer in his hand. After Embry stood back up,

Wollmershauser began to rapidly approach him, concerned Embry may take off

running, creating a dangerous situation for Blair and himself. Wollmershauser

testified he did not actually see the gun drop from Embry’s hands, but that he did

hear a loud “clank noise as if a metal object hitting the pavement” after observing

the gun in Embry’s hands for “about two seconds.” R., Doc. 113 at 25–26. Upon

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reaching Embry, Wollmershauser pulled Embry down to the ground, ordered the

other men to lay on the ground, and then handcuffed Embry. Upon handcuffing

Embry, Wollmershauser recovered the handgun and placed Embry under arrest.

Wollmershauser then picked up the gun—without using any gloves

—unloaded it and placed it inside his police vehicle, locking the door behind him.

Wollmershauser testified that quickly removing the gun from the situation “was

the fastest thing that I could extricate out of the situation to at least make us safer

somewhat.” Id. at 28. In defending his decision not to use any gloves, he

testified: “[i]t wasn’t a secure crime scene. . . . it was a rapidly evolving

situation” involving multiple threats to the two officers on scene. Id. at 31.

Subsequent examination showed, when the gun was picked up, it contained two

rounds in the magazine and an additional round in the chamber. Importantly, in

his police report, Wollmershauser did not include the names of the other three

men because they “didn’t possess a gun that day,” and “weren’t involved in any

criminal activity.” Id. at 49.

Once Embry was transported to the police station, a routine search

determined he was a convicted felon. Accordingly, a federal grand jury charged

Embry with possessing a firearm and ammunition after a felony conviction, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

As part of discovery, Embry moved for disclosure of exculpatory and

impeaching evidence from the government, requesting substantial information

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regarding the TPD and its officers. The district court judge referred this matter to

a magistrate judge. At the hearing, the government represented to the court that it

had turned over all of the information in its possession to Embry’s counsel.

Embry’s counsel also requested the police logs and radio traffic records from the

time surrounding the arrest. The prosecutor told the court that no logs were

available, but agreed to make inquiries with the relevant agencies. Based on these

representations, the magistrate judge concluded the discovery request was moot

and entered a minute order to that effect. The government made no further

representations prior to trial.

The case proceeded to trial on July 19, 2010. During a recess on the first

day of trial, in response to a subpoena from Embry’s counsel, the custodian of

records for the TPD appeared and provided a police radio log containing the

names of the three other men present during Embry’s arrest. Embry promptly

requested and was granted a mistrial “because the United States failed to follow

up on its representation to Embry’s counsel that it would inquire into the

existence of audio recordings of the records check.” R., Doc. 33 at 3.

Before the second trial began, the government filed a motion in limine

requesting a prohibition against “any party, witness, or other person from making

any reference to any investigation of members of the Tulsa Police Department for

illegal conduct.” R., Doc. 36 at 1. The district court granted the motion, finding

that “misconduct by certain Tulsa Police Department officers is not relevant to

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the issues in this case” since none of the investigating officers in Embry’s case

were subject to the probe. R., Doc. 42 at 1.

The second trial began on August 23, 2010. Officers Wollmershauser and

Blair both testified they had seen Embry take a dark pistol from his pocket and

squat down to place it on the ground. Embry presented testimony from the other

three men present that day; all testified they did not see Embry with a gun at the

relevant time. After several hours of deliberation, the jury announced it could not

come to a verdict and was hopelessly deadlocked. After the parties agreed, the

district court discharged the jury and set the case on its September jury trial

docket.

The third trial began on September 22, 2010. As before, the two officers

testified for the government, while the other three men present testified on

Embry’s behalf. The only new witness was a TPD forensic scientist who testified

for the government. The forensic scientist testified that she found a partial

fingerprint at the very front of the barrel of the gun, which appeared to be from a

left thumb. She was able to exclude Embry as a potential source of the print, but

concluded the print was consistent with both Wollmershauser and Blair. The

location of the print was consistent with an officer having held the gun to unload

it. After several hours of deliberation, the jury found Embry guilty. The district

court ordered the preparation of a presentence report and scheduled sentencing for

December 22, 2010.

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 On December 9, 2010, Embry filed a motion seeking access to:

1. All FBI-302s in the possession of the United States which reference
either Corporal Blair or Officer Wollmershauser;

2. A copy of Corporal Blair’s testimony in the matter of United States
v. Henderson and Yelton; and

3. A copy of the personnel files of Corporal Blair and Officer
Wollmershauser.

R., Doc. 68 at 4. This motion came about after news reports surfaced that Blair

had hurriedly left the courtroom to testify in a motion hearing as a defense

witness for TPD officers Jeff Henderson and Bill Yelton, who were on trial as

part of a wide-ranging corruption investigation involving the TPD. During the

hearing, Blair, who worked with Henderson as a member of the Special

Investigations Division, testified that: (1) he was friends with Henderson; (2) he

acted on tips from Henderson to investigate people who could testify against him

at Henderson’s trial; and (3) after investigating people to help in Henderson’s

defense, questions were raised about Blair’s actions prompting him to leave a

note with Henderson’s lawyer that he could no longer assist Henderson or Yelton.

Id. at 3.

The district court referred the motion to a magistrate judge, who authorized

Embry to order a copy of the transcript of Blair’s testimony in the Henderson

case, but denied the rest of the motion due to Embry’s failure to establish a

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specific evidentiary basis for his request. 1 Embry did not appeal the denial of his

discovery motion.

While the discovery motion was pending, Embry filed a motion for a new

trial, arguing that, had the jury been aware Blair was conducting investigations on

his own time to assist other police officers accused of corruption, it was likely his

testimony would have been discounted and Embry would have been acquitted.

Embry also argued that, had the court known of Blair’s involvement in the

Henderson case, its ruling on the government’s motion in limine regarding the

TPD corruption investigation before the second trial, would have possibly been

different. Additionally, Embry argued that Blair had assisted in the suppression

of the names of the individuals with him at the time of his arrest and of the

fingerprint evidence.

The district court agreed in part and granted Embry a new trial.

Specifically, the district court held: while Embry had provided no newly

discovered evidence that Blair suppressed information as to the identity of the

witnesses or the fingerprint evidence, Embry had presented new evidence that

Blair was friends with and engaged in independent investigations on behalf of

officers charged with criminal conduct. The court continued: “the Court’s

decision is not a license to inquire into the entire investigation of the TPD or to

1
While Blair’s testimony was part of the public record of the case,
Embry’s counsel had exhausted his funds for transcripts in this case and was
unable to order one without the court’s approval.

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seek additional discovery. Embry is limited to use of the transcript of Blair’s

testimony on September 22, 2010 to cross-examine Blair as to his assistance in

the defense of Henderson and Yelton.” R., Doc. 80 at 16 n.8.

In January 2011, the government filed a motion in limine to exclude the

testimony of Blair if called by Embry in his case-in-chief, arguing that use of the

Henderson hearing transcript would be inadmissible for purposes of substantive

testimony and may not be presented solely for impeachment. Embry opposed the

motion, arguing that, if the court granted the motion, he would be effectively

barred from calling Blair as a fact witness.

The district court granted in part and denied in part the motion. The court

granted the government’s request to exclude testimony regarding Blair’s

testimony in support of Henderson and Yelton or any other information regarding

the ongoing investigation of TPD officers. But the court denied the government’s

request to exclude Blair as a potential fact witness for Embry. In its discussion,

the district court noted Embry was entitled to call Blair as a fact witness and was

allowed to impeach the testimony of his own witness, but cautioned that a “party

may not call a witness knowing the witness will not provide substantive

testimony, but only to impeach the witness.” R., Doc. 87 at 2 (quoting United

States v. Woody, 250 F. App’x 867, 882 n.7 (10th Cir. 2007) (unpublished)).

Furthermore, the court observed that Federal Rule of Evidence 608(b)

prohibits the use of extrinsic evidence of specific instances of conduct to attack a

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witness’s capacity for truthfulness, and that such instances may only be inquired

into on cross-examination. The court also sanctioned the government’s failure to

disclose the information about Blair before Embry’s third trial, in light of the

strict requirements of Giglio v. United States, 405 U.S. 150 (1972), and its

progeny. But the court continued: Giglio only applies “to impeachment

information relating to a government witness,” and is inapplicable where the

government does not call the witness about whom impeachment evidence exists.

R., Doc. 87 at 3. “The Court’s previous instructions about Embry’s ability to

impeach Blair are therefore inapplicable if Blair is a witness for the defense.

Information about Blair’s testimony on behalf of Henderson and Yelton is not

relevant to the facts of Embry’s case, and may not be introduced by Embry

through Blair as a witness.” Id.

On January 18, 2011, Embry’s fourth trial began. Neither Embry nor the

government chose to call Blair to testify. Instead, the government called

Wollmershauser to testify as to his version of the events leading to Embry’s

arrest. The government again called the TPD forensic scientist who testified

similarly as in the third trial. Embry elected to call only one of the three men

who was there at the time of the arrest. This witness testified as before, stating he

had not seen a gun in Embry’s possession at the time of his arrest. The jury

found Embry guilty.

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 On February 16, 2011, the district court sentenced Embry to seventy-seven

months imprisonment. This appeal followed.

II. Discussion

Embry raises two arguments on appeal. First, he argues the magistrate

judge erred in his decision to limit discovery of further exculpatory and

impeaching information in response to his December 2010 motion. Second, he

argues the district court erred in limiting the manner in which Embry would be

allowed to impeach Blair’s testimony during the fourth trial.

We address each in turn.

A. Discovery

Embry filed a motion seeking discovery of personnel files and FBI-302

reports pertaining to Wollmershauser and Blair, along with a copy of Blair’s

testimony in a separate case. As detailed above, the district court referred the

motion to a magistrate judge, who ultimately authorized Embry to order a copy of

the transcript of Blair’s testimony in the Henderson case, but denied the rest of

the motion due to Embry’s failure to establish a specific evidentiary basis for his

request.

1. Standard of Review

A denial of a motion for discovery in a criminal case is reviewed for abuse

of discretion. United States v. Apperson, 441 F.3d 1162, 1191 (10th Cir. 2006).

The district court has abused its discretion when “its decision provides no rational

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explanation, inexplicably departs from established policies, is devoid of any

reasoning, or contains only summary or conclusory statements.” Gurung v.

Ashcroft, 371 F.3d 718, 720 (10th Cir. 2004) (internal quotation marks omitted).

But, as the government notes, Embry did not file timely written objections

to the magistrate judge’s opinion recommending the denial of his discovery

motion. In so doing, the government asserts Embry waived his right to appeal the

ruling and deprived this court of jurisdiction to hear the appeal. Despite the

government having raised this issue in their brief, Embry does not respond or

offer any explanation for his failure to do so in his Reply Brief.

We apply a “firm waiver rule when a party fails to object to the findings

and recommendations of the magistrate.” Casanova v. Ulibarri, 595 F.3d 1120,

1123 (10th Cir. 2010) (internal quotation marks omitted). The rule provides that

“the failure to make timely objection . . . waives appellate review of both factual

and legal questions.” Id. (quotation omitted). But two exceptions might apply:

(1) when a pro se litigant has not been informed of the time period for objecting

and the consequences of failing to object, or (2) when the “interests of justice”

require. Duffield v. Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quotation

omitted).

Embry was represented by counsel throughout this case so the first

exception is not applicable. In defining the scope of the “interests of justice”

exception, we have said that, “in many respects, the interests of justice analysis

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we have developed, which expressly includes review of a litigant’s unobjected-to

substantive claims on the merits, is similar to reviewing for plain error.”

Duffield, 545 F.3d at 1238 (internal quotation omitted). To show plain error, the

defendant must show “(1) error, (2) that is plain, which (3) affects substantial

rights, and which (4) seriously affects the fairness, integrity, or public reputation

of judicial proceedings.” Id. (quotation omitted). “[T]he failure to object to a

magistrate judge’s report and recommendation is really no different from, for

example, the failure of counsel in open court to object to the admission of

evidence.” Morales-Fernandez v. INS, 418 F.3d 1116, 1120 (10th Cir. 2005)

(quoting Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428 (5th Cir.

1996)).

Accordingly, we will review Embry’s motion under the interests of justice

exception.

2. Magistrate Judge’s Ruling Was Not in Error

“[T]he suppression by the prosecution of evidence favorable to an accused

upon request violates due process where the evidence is material either to guilt or

to punishment, irrespective of the good faith or bad faith of the prosecution.”

Brady v. Maryland, 373 U.S. 83, 87 (1963). The duty to disclose “extends to

prosecutors, police, and other government investigators. Accordingly, a

defendant may base a Brady claim on a government investigator’s failure to

disclose evidence material to guilt or punishment, even when the prosecutor

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personally did not know of that evidence.” United States v. Velarde, 485 F.3d

553, 559 (10th Cir. 2007) (internal quotations and citations omitted).

The two items Embry sought were: (1) all FBI-302 forms in the possession

of the United States which reference either Wollmershauser or Blair and (2) a

copy of the personnel files of Wollmershauser and Blair. Embry believed such

evidence would be useful in impeaching the testimony of the officers and in

corroborating the defense theory that the handgun had been planted. The

magistrate judge denied this request, ruling that “the defendant has to show that

further investigation under the Court’s subpoena power very likely will lead to

the discovery of evidence sufficient to support a new trial or at least . . . specific

allegations that show reason to believe that the defendant may, if the facts are

fully developed, be able to demonstrate that he’s entitled to a new trial.” R., Doc.

112 at 23. “In addition, there must be a firm evidentiary basis for believing such

evidence likely exists, and discovery is not to be allowed if it is a mere fishing

expedition based upon the defendant’s mere hopes of finding exculpatory

evidence.” Id. The magistrate judge concluded that Embry lacked a firm

evidentiary basis for the inquiry, and, in light of the government’s representations

to the court that none of the evidence sought was available, the request seemed

likely to be moot.

Embry relies on the fact that additional exculpatory evidence existed earlier

in this series of cases—notably the existence of the names of the witnesses

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discovered during the first trial—to conclude there was a pattern of suppression

that violated the government’s obligation of disclosure. Accordingly, he argues

granting his motion for post-trial discovery would work to remedy the pattern of

suppression. Embry also argues this case is very similar to Velarde in that the

defendant’s guilt or innocence revolves around the credibility of a key witness

and that a firm evidentiary belief already existed such that further discovery

would “not be a mere fishing expedition.” 485 F.3d at 561.

Velarde does not apply to the circumstances here. In Velarde, we classified

the type of circumstances that post-trial disclosure applies to as “rare” and

“limited.” Id. at 560. The magistrate judge carefully considered Velarde and our

cases applying it in making his decision before concluding: “I don’t find that this

is one of those rare class of cases.” R., Doc. 112 at 23. The magistrate judge

reiterated the government had a continuing duty to disclose exculpatory evidence

and that if, despite its prior representations, it learned that material evidence, such

as FBI-302s or other evidence existed, it had a duty to turn it over to Embry. See

United States v. Erickson, 561 F.3d 1150, 1163 (10th Cir. 2009) (“A Brady claim

fails if the existence of favorable evidence is merely suspected. That the

evidence exists must be established by the defendant.”).

Nothing in Embry’s appeal or in the record suggests Embry had a

sufficient evidentiary basis the magistrate judge otherwise ignored. Even now,

Embry simply asserts that since there had been evidentiary problems in the past,

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there must have been evidentiary problems with disclosure at the time of his

motion. This is simply not the case. We see no reason to reverse under the

interests of justice exception. 2

B. Impeachment

Prior to the fourth trial, the government filed a motion in limine asking the

district court to exclude the testimony of Blair if called by Embry in his case-in-

chief. The basis for the motion was the contention that use of the Henderson

hearing transcript was irrelevant for purposes of substantive testimony supporting

Embry’s defense, and consequently could not be used solely for impeachment of

Embry’s own witness. The court granted the government’s request to exclude

testimony regarding Blair’s testimony in support of Henderson and Yelton or any

other information regarding the ongoing investigation of TPD officers, but denied

the government’s request to altogether exclude Blair as a potential fact witness

for Embry. Ultimately, Blair was not called to testify by either side in the fourth

trial.

1. Standard of Review

The district court has broad discretion in determining the admissibility of

evidence. We review questions concerning the admission of evidence under an

2
It is worth pointing out that Embry was seeking this discovery as support
for his motion for a new trial—a motion that was ultimately granted by the
district court on the basis of Blair’s testimony in the Henderson case (after receipt
of the transcript as authorized by the magistrate judge). If there was any error
here, it was harmless because Embry received the ultimate relief he sought.

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abuse of discretion standard. We do not disturb an evidentiary ruling absent a

distinct showing that it was based on a clearly erroneous finding of fact or an

erroneous conclusion of law, or manifests a clear error in judgment. United

States v. Dowlin, 408 F.3d 647, 659 (10th Cir. 2005) (internal quotation omitted).

Whether the exclusion of evidence violates a defendant’s Fifth and Sixth

Amendment rights to present witnesses in his defense is a matter of law we

review de novo. Id. “However, the right to present defense witnesses is not

absolute. A defendant must abide the rules of evidence and procedure,” including

“standards of relevance and materiality.” Id. (quoting United States v. Bautista,

145 F.3d 1140, 1151–52 (10th Cir. 1998)).

2. Embry Was Allowed to Call Blair to Testify

A brief review of the district court’s reasoning clarifies the issue on appeal.

The district court ruled that Embry was not to use the transcript of Blair’s prior

testimony in Henderson and Yelton’s case solely to attack Blair’s credibility. To

support its conclusion, the court relied primarily on Rule 608(b), which provides:

“[s]pecific instances of the conduct of a witness, for the purpose of attacking or

supporting the witness’ character for truthfulness . . . may not be proved by

extrinsic evidence.” But, “on cross-examination,” extrinsic evidence, “if

probative of truthfulness or untruthfulness” may be inquired into. Fed. R. Evid.

608(b) (emphasis added). Thus, over the government’s objection, the court

allowed Embry to call Blair as a fact witness in his case-in-chief, with limitations

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on the use of extrinsic evidence—the transcripts. Generally, however,

“[i]nformation about Blair’s testimony on behalf of Henderson and Yelton is not

relevant to the facts of Embry’s case, and may not be introduced by Embry

through Blair as a witness.” R., Doc. 87 at 3; see also United States v. Green,

178 F.3d 1099, 1109 (10th Cir. 1999) (Giglio requirements apply only to impeach

information relating to a government sponsored witness).

Embry argues that the district court’s order effectively hamstrung his case-

in-chief in two ways. First, if Embry had called Blair as a witness, he would only

have been able to impeach Blair if he testified in a manner inconsistent with his

prior testimony (in either the prior trials in this case or in the Henderson case),

and not by using his Henderson testimony to directly attack Blair’s credibility

because of his prior statements supporting the discredited officers.

As a threshold matter, the district court followed the proper procedure that

follows from the Federal Rules of Evidence. Under the Rules, a party may attack

the credibility of its own witnesses, and may use extrinsic evidence of prior

inconsistent statements to do so. Fed. R. Evid. 607; 613(b). But before extrinsic

evidence may be used, the witness must first testify in a manner inconsistent with

his prior statements, and then must be afforded an opportunity to explain or deny

the prior inconsistent statement. Fed. R. Evid. 613(b). As the district court

recognized, Embry had every right to call Blair as a fact witness and, had he

testified in a manner inconsistent with his prior statements (after giving him an

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opportunity to explain or deny the prior statements), Embry would have been

entitled to impeach him with any prior inconsistent statements. But Embry was

not entitled to challenge Blair’s otherwise consistent testimony in these trials

solely with extrinsic evidence. See also 3 C HRISTOPHER B. M UELLER & L AIRD C.

K IRKPATRICK , F EDERAL E VIDENCE § 6:28 (3d ed. 2007) (“Impeachment by prior

inconsistent statements cannot be allowed as a mere subterfuge to get before the

jury evidence not otherwise admissible.”) (internal quotation omitted).

Second, as a further effect of the district court’s order, Embry argues he

was unable to advocate that Blair planted the gun in question and falsely accused

Embry of possessing it. According to Embry, by the time of the fourth trial,

sufficient evidence had been developed from which a jury could conclude the

handgun had been planted by Blair.

As to the general admissibility of Blair’s prior testimony in the Henderson

case, Embry argues the district court reached contradictory conclusions in its

order regarding his motion for a new trial and its order under appeal here. In

granting Embry’s motion for a new trial, the district court stated: “a police

officer’s work to discredit a government investigation could also impact a jury’s

assessment of that officer’s credibility and character for truthfulness in a case

prosecuted by the government. And where, as here, the only witnesses against a

defendant are police officers, anything that goes to their credibility is exculpatory

and admissible.” R., Doc. 80 at 13–14 (internal quotation omitted); see also

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Denver Policemen’s Protective Ass’n v. Lichtenstein, 660 F.2d 432, 436 (10th Cir.

1981) (finding that a balance must be struck between the right to exculpatory

material and an officer’s right to privacy). Embry contends this statement cannot

be reconciled with the court’s later decision to exclude use of the Henderson

testimony as direct impeachment evidence towards Blair’s testimony. But a

review of the court’s two orders shows the district court was consistent in its

belief that the Henderson testimony was only to be used on cross-examination, as

permitted by the Federal Rules of Evidence. On this point, the district court was

quite clear.

A party may not call a witness knowing he will not provide substantive

testimony, but only as a means to impeach the witness with damaging prior

statements. United States v. Peterman, 841 F.2d 1474, 1479 n.3 (10th Cir. 1988)

(listing cases); see also United States v. Buffalo, 358 F.3d 519, 524 (8th Cir.

2004) (“a witness may not be impeached on a collateral matter by use of extrinsic

evidence of prior inconsistent statements. . . . [but] only on a matter material to

the substantive issues of the trial”) (internal quotation omitted). While Embry

acknowledges this point, he argues this was not his goal. Instead, he contends he

faced a dilemma—had he called Blair as a witness, he “would have had to accept

[Blair’s] testimony as being truthful except to the extent that Corporal Blair had

previously given sworn testimony which conflicted with his trial testimony.”

Aplt. Reply Br. at 3. This is correct, and again, follows from Rule 608. As a

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matter of law, Embry was only able to raise the Henderson testimony on cross-

examination—not as part of any direct examination.

Despite the plain language of the Rule, Embry points to our decision in

Patton v. Mullin, where we held: “the rights to confront and cross-examine

witnesses and to call witnesses in one’s own behalf [are] essential to due

process.” 425 F.3d 788, 797 (10th Cir. 2005) (quoting Chambers v. Mississippi,

410 U.S. 284, 294 (1973)); see also Washington v. Texas, 388 U.S. 14, 19 (1967)

(“The right to offer the testimony of witnesses, and to compel their attendance, if

necessary, is in plain terms the right to present a defense, the right to present the

defendant's version of the facts as well as the prosecution’s to the jury so it may

decide where the truth lies.”).

While it is true that the right to confront and cross-examine witnesses is a

fundamental aspect of due process, in this case the district court denied the

government’s motion to exclude the entirety of Blair’s testimony and ruled that

Embry was allowed to call Blair as a witness for the defense. Under the Rules,

Embry was entitled to call Blair as a witness, but he was not entitled to use

extrinsic evidence to impeach Blair’s testimony on direct examination with

material in contravention of Rule 608(b).

Additionally, even though Rule 607 allows a party to impeach its own

witness—a point Embry stresses throughout his argument—that ability is

constrained on direct examination. As discussed above, Rule 608(b)(1) generally

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only allows impeachment testimony on cross-examination; however, two

situations remain where this testimony may be admitted on direct or redirect

examination: (1) where a party already has attacked the credibility of a witness by

referring to specific instances of conduct (e.g., during an opening statement), or

(2) where a party calling a witness anticipates cross-examination aimed at

showing untruthfulness through specific-instances evidence. See United States v.

Jones, 763 F.2d 518, 522 (2d Cir. 1985) (finding that when defense counsel

attacked government witnesses during opening statement, the government was

properly permitted to respond via witness testimony during direct examination);

United States v. Medical Therapy Sciences, Inc., 583 F.2d 36, 39–40 (2d Cir.

1978) (finding that the key event triggering the applicability of the rule is an

“attack” on the witness’s veracity; there is a vast difference between putting a

witness’s veracity in issue by eliciting the impeaching facts and merely revealing

the witness’s background).

Neither situation is applicable here. It would be unreasonable for Embry to

anticipate that the government would seek to introduce evidence of Blair’s

testimony in the Henderson case on cross-examination. In contrast, the situation

urged by Embry whereby specific instances of prior misconduct may be inquired

into on direct examination, has long been disallowed. See Bennett v. Longacre,

774 F.2d 1024, 1027 (10th Cir. 1985) (emphasizing the point: “a party may

inquire into specific instances of conduct by extrinsic evidence only on cross-

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examination . . . in challenging the truthfulness of [the witness’s] testimony”); see

also United States v. Logan, 121 F.3d 1172, 1175 (8th Cir. 1997) (finding that

“[c]ourts must be watchful that impeachment is not used as a subterfuge to place

otherwise inadmissible hearsay [evidence] before the jury”) (internal quotation

omitted). Accordingly, nothing in this case indicates Embry should fit into one of

the narrow grounds of exceptions under Rule 608(b)(1).

In sum, the district court did not err in excluding Blair’s Henderson

testimony. Since Embry could not question Blair about his involvement with the

Henderson case directly, he could not generate a statement inconsistent with his

trial testimony and thus would have no need or ability to impeach Blair with his

testimony as a prior inconsistent statement.

III. Conclusion

For the reasons set forth above, we AFFIRM.

Entered for the Court,

Timothy M. Tymkovich
Circuit Judge

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