IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-50175
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NOREEN VENISE ALEXIUS,
Defendant-Appellant.
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Appeal from the United States District Court for the
Western District of Texas
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(February 15, 1996)
Before GARWOOD, SMITH and DENNIS, Circuit Judges.
GARWOOD, Circuit Judge:
Defendant-appellant Noreen Venise Alexius (Alexius) appeals
her conviction under 18 U.S.C. § 1623 for making a false statement
under oath.
Facts and Proceedings Below
Alexius was previously convicted of harboring an escapee and
using a false social security number.1 This Court affirmed the
convictions obtained in that jury trial (the first trial) on direct
appeal. Subsequently, Alexius was indicted for making false
statements under oath in violation of 18 U.S.C. § 1623 (perjury)
1
She was acquitted of the third charge brought against her for
instigating or assisting a convict’s escape in violation of 18
U.S.C. § 752.
while testifying in the first trial. After another jury trial (the
perjury trial), Alexius was found guilty of perjury and sentenced
to 18 months of imprisonment. Alexius appeals her perjury
conviction.
From August 1989 to April 1993, Alexius was employed as a
correctional officer at the Federal Prison Camp in El Paso, Texas.
During this time, she befriended inmate Patrick Whiting (Whiting).
Using a false name, Alexius rented an apartment in El Paso (the
Dyer Street apartment) in late March while maintaining her separate
residence. Whiting escaped from the prison camp on March 28, 1993.
Alexius resigned from her job at the prison camp near the end of
April 1993. She subsequently traveled to Chicago. Alexius and
Whiting were arrested together on July 1, 1993, in Chicago.
Alexius and her husband, Kellie James (James),2 testified in
her defense at the first trial. After her conviction, she was
indicted for perjury committed in the first trial. At the perjury
trial, the district court refused to allow Alexius to cross-examine
a prosecution witness regarding his pending felony charges.
Alexius appeals her perjury conviction on two grounds.
Because we reverse on her complaint respecting cross-examination,
we do not reach her Gaudin3 complaint.
Discussion
2
Alexius and James were married in December 1993.
3
Alexius argues that the district court’s failure to submit the
issue of materiality to the jury was plain error and mandates
reversal under United States v. Gaudin, 115 S.Ct. 2310 (1995).
2
Alexius argues that the district court erred by improperly
limiting her Sixth Amendment right to cross-examine a prosecution
witness. A trial court is given “‘wide latitude’ in imposing
reasonable restraints upon defendant[s’] right to cross-
examination.” United States v. Townsend, 31 F.3d 262, 268 (5th
Cir. 1994), cert. denied 115 S.Ct. 773 (1995) (citation omitted).
We review a district court’s restriction of the scope of cross-
examination only for abuse of discretion. Id. at 267-68. And
evidentiary rulings constitute reversible error only when they
affect a defendant’s substantial rights. See United States v.
Hamilton, 48 F.3d 149, 154 (5th Cir. 1995) (citing Fed. R. Crim. P.
52 and United States v. Livingston, 816 F.2d 184, 190-91 (5th Cir.
1987)).
Prosecution witness Sanford Bailey (Bailey) testified in the
perjury trial that (1) Alexius’s mother, Caroline Massey (Massey),
asked him to purchase a bus ticket for Whiting, and (2) he saw
Whiting with Alexius when Massey took him to the Dyer Street
apartment. This testimony directly contradicted Alexius’s
testimony in the first trial, as well as her testimony in the
perjury trial, that Whiting never visited her there, calling into
question her veracity and that of Massey.4 Unlike the three other
4
Massey, a defense witness, denied Bailey’s assertions. She
testified that she never asked Bailey to purchase a bus ticket and
that she never took Bailey to the Dyer Street apartment. Massey
further testified that she had never seen Whiting at the Dyer
Street apartment.
3
allegedly perjured statements,5 Alexius’s only defense to the
charged perjury in respect to this statement was truth.
At the time of the perjury trial, Bailey was in federal
custody on a pending federal felony drug trafficking charge. There
was also a drug-related Ohio state charge pending against him.
Alexius sought to question Bailey on cross-examination about his
arrests and pending criminal drug charges, arguing that these gave
him a motive for fabricating his testimony. The district court
allowed Alexius to question Bailey outside the presence of the
jury. Bailey testified that he had received no promises for his
willingness to testify and that he did not know if his decision to
5
Alexius was charged in a single count indictment with knowingly
giving false testimony under oath on four subjects relevant to her
involvement with Whiting: (1) her receipt of collect telephone
calls from Whiting at her residence in El Paso; (2) a purported
trip by James to El Paso in early April 1993; (3) a trip she and
James purportedly took to Austin in June 1993; and (4) whether
Whiting had ever visited the Dyer Street apartment.
Alexius’s defense to the charge that she intentionally gave
false testimony regarding (2) and (3) above was good faith mistake;
she argued that she was merely confused about the dates of James’s
purported trips.
Alexius’s defense to the charge of falsely testifying about
the telephone calls involved in part a credibility contest between
Alexius and government witness Carol Davis (Davis) and in part a
dispute as to what a reasonable interpretation of Alexius’s first
trial testimony was. More than four hundred collect telephone
calls were made from the prison to Alexius’s residence between
November 1992 and the date of Whiting’s escape. No collect calls
were made from the prison to Alexius’s residence once Whiting
escaped. Alexius admitted that she received some of these calls
from Whiting, but she testified that Davis, who resided with her
between November 1992 and January 1993, became friends with Whiting
and was the recipient of most of Whiting’s calls. Alexius also
testified that she did not accept telephone calls from Whiting
until “later.” Davis testified that she answered about a dozen
calls from Whiting, that she did not know Whiting, and that the
extent of her conversations with Whiting was to get Alexius on the
line for him.
4
testify would aid him in his pending charges. The district court
then refused to allow Alexius to question Bailey regarding his
pending federal or state drug charges in the presence of the jury
because it did not “believe there [was] any indication that
[Bailey] has a bias or motive for testifying . . . .”
In its brief, the government argues that the district court
did not abuse its discretion by refusing to allow Alexius to cross-
examine Bailey on his pending charges because any suggestion that
the pending charges were relevant to motive or bias was purely
speculative. At oral argument, the government also argued that if
the district court erred by refusing to allow Alexius to cross-
examine Bailey regarding his pending felony charges, the error was
harmless. We are not persuaded by either argument.
I. Abuse of Discretion
The Supreme Court has recognized that a primary interest
secured by the Sixth Amendment’s Confrontation Clause is the right
of cross-examination. Davis v. Alaska, 94 S.Ct. 1105, 1110 (1974).
“Cross-examination is the principal means by which the
believability of a witness and the truth of his testimony are
tested.” Id. Although the district court retains its broad
discretion to prevent repetitive and unduly harassing
interrogation, a witness’s possible biases, prejudices, or
“motivation” are “subject to exploration at trial, and [are]
‘always relevant as discrediting the witness and affecting the
weight of his testimony.’” Id. (citation omitted). See also Olden
v. Kentucky, 109 S.Ct. 480 at 483 (1988).
5
In Davis, the government witness who initially identified the
defendant was on probation for a burglary committed as a juvenile.
Id. at 1107. The defense’s theory was that the government witness
made a hasty and faulty identification of the defendant in order to
shift the suspicion away from himself or because he feared that his
probationary status would be jeopardized if he did not
satisfactorily assist the government in obtaining a conviction.
Id. at 1108. The district court refused to allow the defendant to
question the government witness about his current probation.
Davis, 94 S.Ct. at 1108. The Supreme Court held that the district
court’s limitation on cross-examination was an abuse of its
discretion and reversed the conviction. Id. at 1112.
The instant case is similar to Davis. Alexius’s theory is
that Bailey was lying in order to curry favor with the prosecution.
At the time of the perjury trial, Bailey was in a “vulnerable
status” with respect to the government, see id. at 1111: he was in
federal custody on pending federal felony charges.6 As in Davis,
“[t]he accuracy and truthfulness of [the government witness’s]
6
See also, e.g., McCormick on Evidence (3d Ed., 1984) § 40 at 87
(“Self interest may be shown also in a criminal case when the
witness testifies for the state and it is shown that an indictment
is pending against him . . .”) (emphasis in original; footnote
omitted); 3A Wigmore, Evidence (Chadbourn Rev. 1970) § 949 at 790
(“That the witness is or has been under indictment may have several
bearings: . . . (3) if it is now pending over a witness for the
prosecution or the accused in a criminal case, it is relevant to
show the witness’ interest in testifying favorably for that side (§
967, infra).”) (emphasis in original; footnote omitted); § 967 at
814 (“the pendency of any indictment against the witness indicates
indirectly a similar possibility of his currying favor by
testifying for the state”) (emphasis in original; footnote
omitted).
6
testimony were key elements in the [government’s] case against”
Alexius. Id. And, as in Davis, “[w]e cannot speculate as to
whether the jury, as sole judge of the credibility of a witness,
would have accepted [Alexius’s] line of reasoning had counsel been
permitted to fully present it.” Id.
The government relies primarily on Hamilton, 43 F.3d at 149,
a post-Davis opinion, to support its contention that the district
court did not abuse its discretion by excluding any cross-
examination regarding Bailey’s pending charges.7 In Hamilton, we
noted the district court’s finding that the government witness did
not have an agreement or any pending negotiations with the
government regarding his willingness to testify, and we then held
that the district court did not abuse its discretion by prohibiting
cross-examination into pending state misdemeanor charges against
the government witness. Id. at 154-55. Hamilton does not control
the disposition of this case because it is distinguishable in three
material ways.
First, the pending charges in Hamilton were misdemeanor
charges, whereas the charges pending against Bailey were felony
charges. Because the penalties for felonies are greater than those
for misdemeanors, a witness is more likely to attempt to curry
7
The government also relies upon United States v. Summers, 598
F.2d 450 (5th Cir. 1979). Summers is inapposite. The district
court in Summers allowed cross-examination of the government
witness into facts sufficient to permit the jury to infer bias and
to permit defense counsel to establish a predicate from which he
could argue why the witness was biased. Id. at 459-61. The
district court in the instant case permitted no cross-examination
of Bailey into the only facts which showed his possible bias.
7
favor with prosecutors if he is facing felony charges than if he is
facing misdemeanor charges. Cf. Fed. R. Evid. 609(a)(1)
(permitting evidence of a witness’s felony convictions, but not
general misdemeanor convictions, to impeach the witness’s
credibility). Second, the pending charges in Hamilton were state
charges. In the instant case, Bailey was in federal custody for
his pending federal felony charge when he testified. In such
circumstances, it would be natural for Bailey to desire to curry
favor with the federal authorities. It seems likely to us that a
witness may expect to obtain less, if any, favor from state
officials for testifying in a federal case. See United States v.
Thorn, 917 F.2d 170, 175-76 (5th Cir. 1990) (holding that district
court’s refusal to allow cross-examination of government witness’s
state law indictment did not violate Sixth Amendment because (1)
there was no evidence the government could influence the state
court proceedings and the existence of pending state court
indictment on charges unrelated to offered testimony did not give
witness substantial reason to aid the government, and (2) the
defendant was able to question the credibility of the government
witness through other means). Finally, the defendant in Hamilton
was allowed to solicit evidence similar to the evidence he sought
to obtain on cross-examination from another witness.8 See also
8
The defendant in Hamilton sought to cross-examine the government
witness about pending misdemeanor DWI and theft charges. Hamilton,
48 F.3d at 154. The former girlfriend of the government witness in
Hamilton testified that “there was a warrant out for [the
government witness’s] arrest for hot checks in Austin, Texas. The
checks totaled $1,000 and he asked me to borrow money from one of
8
Thorn, 917 F.2d at 175-76; Summers, 598 F.2d at 459-61. In the
instant case, Alexius’s only defense on the charge of falsely
testifying about the telephone calls was truth and the
corresponding attack on Bailey’s credibility. The district court’s
refusal to allow Alexius to cross-examine Bailey regarding his
pending charges took away her only impeachment evidence.
The district court abused its discretion in refusing to allow
Alexius to cross-examine Bailey regarding his pending federal
felony charge.
II. Harmless Error Analysis
The Supreme Court addresses the question whether a
constitutional violation affects substantial rights under harmless
error analysis. See Chapman v. California, 87 S.Ct. 824, 827-28
(1967); e.g., Delaware v. Van Arsdall, 106 S.Ct. 1431, 1432-33
(1986)(holding that Sixth Amendment violation should have been
reviewed under harmless error analysis). When, as here, reviewed
on direct appeal, a constitutional violation is harmless error only
if it is clear beyond a reasonable doubt that the error did not
contribute to the verdict obtained. Chapman, 87 S.Ct. at 828; see
Lowery v. Collins, 996 F.2d 770, 772 (5th Cir. 1993), supplementing
Lowery v. Collins, 988 F.2d 1364 (5th Cir. 1993).
The government contended at oral argument that any error was
harmless because Bailey testified outside the presence of the jury
that he had received no promise of leniency from the government and
had no specific hope for leniency. In other words, the government
my best friends so that he wouldn’t have to go to jail.” Id.
9
argues that——because there was no direct evidence of Bailey’s motive
or bias——cross-examination into the basis of such motive or bias
could not have affected the jury’s assessment of Bailey’s
testimony. Neither contention establishes that the error was
harmless. See Davis, 94 S.Ct. at 1111 (describing the jurors “as
the sole triers of fact and credibility” in the context of a
district court’s limitation of cross-examination into possible
bias). Although it would have been proper for the jury to decide
that Bailey was not actually influenced by his status as one then
being held on federal felony charges, they could have also
concluded otherwise. Direct evidence of motive or bias is often
unobtainable. This does not preclude the jury from inferring it
under appropriate circumstances. See Carrillo v. Perkins, 723 F.2d
1165, 1169 (5th Cir. 1984).9
The jury could well have questioned Bailey’s veracity because
a person in Bailey’s situation would be under a natural tendency to
want to curry favor or “please the prosecution.” Id.
Consequently, we cannot say beyond a reasonable doubt that the jury
would have believed Bailey if the district court had not abused its
discretion by refusing to allow cross-examination into Bailey’s
pending federal felony charges. Because Bailey provided the only
9
See also United States v. Rodriguez, 439 F.2d 782, 783-84 (9th
Cir. 1971) (harm from refusing to allow government accomplice
witness to be cross-examined as to whether he knew the mandatory
minimum sentence if he were prosecuted for the offense and whether
he had “any hope or expectation” of leniency not cured by witness’
negative answer to a question by court “whether he had been given
any promise about what the court or prosecutor would do for him
because he had testified”) (emphasis in original).
10
evidence supporting the charge that Alexius’s statement in the
first trial that Whiting had never been to the Dyer Street
apartment was untrue——and his testimony was directly contradicted
by that of Alexius and Massey——his credibility was crucial to this
charge.10 Alexius’s perjury conviction accordingly cannot rest on
this statement.
The jury returned a general guilty verdict in the instant
case. It does not indicate which statement(s) the jury found to be
perjured. The jury may have found Alexius guilty only of
testifying falsely about Whiting’s presence in the Dyer Street
apartment. Consequently, the error cannot be harmless beyond a
reasonable doubt.11
10
The government at the perjury trial emphasized the importance
of the credibility contest. In its closing argument, the
government contrasted Alexius’s testimony (and her mother’s) with
Bailey’s, asking the jury to consider who had a personal interest
in the outcome. Alexius was not allowed to show Bailey’s possible
interest.
11
We recognize that in Griffin v. United States, 112 S.Ct. 466
(1991), the Supreme Court refused to extend the rule of Yates v.
United States, 77 S.Ct. 1064 (1957), to situations where one of
separate multiple grounds on which a general verdict may have
rested lacked adequate evidentiary support. See also Walther v.
Lone Star Gas Co., 952 F.2d 119, 126 (5th Cir. 1992). Griffin
reasoned that since jurors “are well equipped to analyze the
evidence,” there is only a “‘remote’” chance “‘that the jury
convicted on a ground that was not supported by adequate evidence
when there existed alternative grounds for which the evidence was
sufficient.’” Id. at 474 (quoting United States v. Townsend, 924
F.2d 1385, 1414 (7th Cir. 1991)). That rationale is inapplicable
here. Alexius’ jury may have rested its guilty verdict on her
first trial statement that Whiting had never been to the Dyer
Street apartment, because the jury had before it Bailey’s testimony
that Whiting was there with Alexius but did not have before it
information affecting Bailey’s credibility. Because of the
limitation on cross-examination of Bailey, the jury was not “well
equipped to analyze” his testimony. Unlike the situation addressed
11
Conclusion
For the foregoing reasons, we REVERSE Alexius’s conviction and
REMAND the case to the district court for another trial.
REVERSED and REMANDED
in Griffin, there is here no reason to suppose that the jury did
not rest its guilty verdict on this statement. And, this statement
was the only one of those charged as to which no defense of
mistake, confusion, or the like was raised.
12