United States v. Dunson

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 24 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
No. 97-1163
DERRICK DUNSON,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 94-CR-159-B)

W. Melville Dole, Stayton & Dole, P.C., Aurora, Colorado, for Defendant-Appellant.

James C. Murphy (Henry L. Solano, United States Attorney, and Charlotte J. Mapes,
Assistant U.S. Attorney, with him on the brief), Assistant U.S. Attorney, Denver,
Colorado, for Plaintiff-Appellee.

Before PORFILIO, HOLLOWAY, and TACHA, Circuit Judges.

PORFILIO, Circuit Judge.
 A jury convicted Derrick Dunson on two counts of distributing crack cocaine in

violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii) based primarily on the testimony of

Fidel Garner, the government’s cooperating witness. Mr. Dunson appeals his conviction,

claiming the district court erred by: (1) excluding evidence of Mr. Garner’s prior

conviction for shoplifting; (2) precluding Mr. Dunson from recalling a witness to

demonstrate Mr. Garner’s bias; and (3) finding sufficient evidence to support Mr.

Dunson’s conviction. We perceive no error and affirm.

In July 1993, Fidel Garner sold crack cocaine to an undercover police officer.

After confronting Mr. Garner with the evidence against him, FBI Special Agent Schlaff

persuaded him to assist the government as a confidential informant and cooperating

witness. As part of this arrangement, Mr. Garner agreed to participate in controlled drug

buys.1

The controlled drug buys in this case were conducted in the following manner:
1

Immediately before the controlled buy, FBI agents searched Mr. Garner’s person and car
to ensure he had no drugs or firearms. The agents then wired Mr. Garner with a
microphone, provided him with the money to facilitate the buy, and recorded the serial
numbers of the money by photocopying the bills. After the buy, the agents met Mr.
Garner, debriefed him, and searched his person and car to retrieve the drugs purchased.

Under ordinary circumstances, the agents would then apprehend the seller and
compare the serial numbers of money found on his or her person to the serial numbers
recorded at the start of the operation. The agents would arrest the suspect and the
cooperating witness would testify at the suspect’s trial. Here, however, to protect Mr.
Garner’s status as a confidential informant in other ongoing cases, the government did not
arrest Mr. Dunson until almost two years after the controlled buys discussed below.

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 On March 1 and March 10, 1994, Mr. Garner, working with Agent Schlaff,

participated in two controlled cocaine buys targeting the defendant, Derrick Dunson. The

FBI agents recorded telephone conversations between Mr. Garner and Mr. Dunson, took

surveillance photographs, and shot videotape of the buys. In addition, Mr. Garner wore a

broadcasting microphone during his two encounters with Mr. Dunson. None of the FBI

photographs, videos, or tape recordings provided any direct evidence a drug transaction

occurred. Mr. Garner furnished the only direct evidence implicating Mr. Dunson in

illegal activity.

During Mr. Dunson’s trial, both the government and the defense thoroughly

explored Mr. Garner’s background as a “big time” drug dealer and the terms of his

agreement with the government. Agent Schlaff testified in return for Mr. Garner’s

cooperation, he promised to bring Mr. Garner’s assistance to the attention of the

prosecuting attorney. In fact, instead of facing a mandatory minimum of ten years in

prison, the prosecuting attorney offered Mr. Garner less than two years in a prison camp.

Agent Schlaff also testified the government provided Mr. Garner with approximately

$15,000 in cash and in kind to cover “[e]xpenses that were incurred during the

investigation [such as] hotel rooms, gas, moving expenses.”

While instructing the jury, the district court told them an informant’s or immunized

witness’ testimony should be considered with caution. The court explained Mr. Garner

was an informant and an immunized witness in the case and instructed the jury it must

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“determine whether the informer’s [or] immunized witness’ testimony has been affected

by self-interest or by the agreement he has with the [government] or his own interest in

the outcome of this case or by prejudice against the defendant.” The jury returned a

guilty verdict. The court sentenced Mr. Dunson to 97 months’ imprisonment on each

count to be served concurrently.

Shoplifting Conviction as Impeachment

Before trial, Mr. Dunson expressed his intention to impeach Mr. Garner with

evidence of Mr. Garner’s prior conviction for shoplifting. The government objected,

arguing shoplifting did not involve “dishonesty or false statement” and, therefore, did not

fall within the parameters of Fed. R. Evid. 609(a)(2) governing admission of prior

misdemeanor convictions.2 The district court sustained the government’s objection:

A straight theft offense is not the type of offense involving Rule 609(a)(2),
dishonesty or false statement contemplated by that rule. You know, a bad
check, fraud by check, perhaps use of a stolen credit card where one
represents one’s self dishonestly to be the lawful possessor of that credit
card might be a type of theft that would fall under 609(a)(2) as would a bad
check. But straight shoplifting, I think you are right, falls outside the scope
of 609(a)(2).

We perceive no error in the court’s analysis.

Fed. R. Evid. 609(a) provides:
2

For the purpose of attacking the credibility of a witness,
....
(2) evidence that any witness has been convicted of a crime shall be
admitted if it involved dishonesty or false statement, regardless of
the punishment.

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 In United States v. Mejia-Alarcon, 995 F.2d 982 (10th Cir. 1993), we reviewed

the law applicable to Rule 609(a)(2):

We have narrowly defined the term “dishonesty and false statement” as
used in Rule 609(a)(2). . . . The Conference Committee Report on the rule
specified the type of crimes contemplated by the rule:
By the phrase “dishonesty and false statement” the Conference
means crimes such as perjury or subordination of perjury, false
statement, criminal fraud, embezzlement, or false pretense, or any
other offense in the nature of crimen falsi, the commission of which
involves some element of deceit, untruthfulness, or falsification
bearing on the accused’s propensity to testify truthfully. . . .
Thus, relying on the Conference Committee Report, we have held that to be
admissible under Rule 609(a)(2), the prior conviction must involve “some
element of deceit, untruthfulness, or falsification which would tend to show
that an accused would be likely to testify untruthfully.” United States v.
Seamster, 568 F.2d 188, 190 (10th Cir. 1978).

Consequently, we have held that crimes like burglary, robbery, and theft are not
automatically admissible under Rule 609(a)(2), but that a conviction for making
false and misleading statements in the sale of securities is.

Id. at 988-89. Following the reasoning of Mejia-Alarcon, we do not believe the district

court erred in concluding shoplifting was not “automatically” a crime involving

“dishonesty or false statement” within the meaning of Rule 609(a)(2). See, e.g., United

States v. Amaechi, 991 F.2d 374, 379 (7th Cir. 1993) (“[S]hoplifting does not in and of

itself qualify as a crime of dishonesty under Rule 609.”); United States v. Sellers, 906

F.2d 597, 603 (11th Cir. 1990) (“[C]rimes such as theft, robbery, or shoplifting do not

involve ‘dishonesty or false statement’ within the meaning of Rule 609(a)(2).”);

McHenry v. Chadwick, 896 F.2d 184, 188 (6th Cir. 1990); United States v. Ortega, 561

F.2d 803, 806 (9th Cir. 1977) (“An absence of respect for the property of others is an

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undesirable character trait, but it is not an indicium of a propensity toward testimonial

dishonesty.”).

Mr. Dunson argues, however, even if shoplifting does not per se involve

dishonesty or false statement, in certain factual situations it may still fall within the

purview of Rule 609(a)(2). See, e.g., Mejia-Alarcon, 995 F.2d at 989-90 (“[W]e have

suggested that the trial court may look beyond the elements of an offense that is not

considered a per se crime of dishonesty to determine whether the particular conviction

rested upon facts establishing dishonesty or false statement.”); Seamster, 568 F.2d at 191

(“We conclude that the prior convictions of burglary offered as impeaching evidence in

this case were not automatically admissible under Rule 609(a)(2). This would not

exclude theft cases arising out of fraudulent and deceitful conduct which might bring

them within the ambit of Rule 609(a)(2).”). In particular, Mr. Dunson insists, without

citing any factual support, “the instant shoplifting conviction involved elements of both

deceit and untruthfulness.”

Our review of the record, however, reveals no support for Mr. Dunson’s

conclusory assertion. During a hearing on the motion in limine, Mr. Dunson did not

argue Mr. Garner’s shoplifting involved deceit or dishonesty, nor did he proffer any facts

suggesting it did. Counsel merely stated to the court, “the theft was from a Foley’s I think

in Aurora. It had to do with a thing of cologne. That’s it.” Nothing in this declaration

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suggests to this court or could have suggested to the trial court, Mr. Garner’s shoplifting

was in anyway perpetrated through deceit or dishonesty as Rule 609(a)(2) envisions.

Faced with a dearth of developed facts to support his claim, Mr. Dunson suggests

it was incumbent upon the trial court to sua sponte explore the circumstances underlying

Mr. Garner’s conviction in search of some indicia of deceit or dishonesty. We disagree.

While a court may consider evidence tending to demonstrate Rule 609(a)(2) governs, the

court need not ferret it out; that responsibility falls squarely on the proponent’s shoulders

and simply was not borne in this case.

Recall of Agent Schlaff

During its case in chief, the prosecution elicited testimony from Agent Schlaff

detailing many of the benefits Mr. Garner received in return for his cooperation. Mr.

Dunson chose not to cross-examine Agent Schlaff on this aspect of his testimony. During

the subsequent examination of Mr. Garner, the prosecution again detailed the numerous

benefits provided by the government. When Mr. Dunson cross-examined Mr. Garner,

however, he testified he did not receive any money from the government to relocate his

family members. Believing this testimony was incorrect, Mr. Dunson asked to recall

Agent Schlaff for the purpose of eliciting testimony “that in fact in 1995 [Agent Schlaff]

gave to Fidel Garner some 3,000 bucks for the purposes of relocating the mother of one

of Mr. Garner’s babies.” According to Mr. Dunson’s trial counsel, “[i]f the witness on

the stand says A, B and C, [and] I have another witness to say that’s not true . . . I think I

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can put that into evidence.” After hearing argument on the issue, the court concluded the

inquiry would “lead[] us off into a collateral inquiry that is inappropriate here. I am going

to sustain that government objection.” We review the court’s decision to exclude the

evidence for an abuse of discretion. United States v. Janusz, 135 F.3d 1319, 1323 (10th

Cir. 1998).

“[I]t is well settled that it is not improper for the trial judge to limit impeachment

evidence on matters that are deemed collateral or irrelevant.” United States v. Walker,

930 F.2d 789, 791 (10th Cir. 1991). We have stated a matter is collateral “if it could not

have been introduced in evidence for any purpose independent of the impeachment.” Id.

(citation omitted). However, “[b]ias is never classified as a collateral matter which lies

beyond the scope of inquiry.” United States v. Keys, 899 F.2d 983, 986 n.2 (10th Cir.

1990) (citation omitted).

On appeal, focusing on bias, Mr. Dunson claims the court erred in holding the

matter was collateral. He maintains Agent Schlaff’s testimony would have established

Mr. Garner’s bias towards Mr. Dunson by demonstrating “Garner’s potential fear of this

Defendant, fear which could explain to the jury why Garner might want to make sure the

Defendant was convicted and incarcerated for a lengthy period.” However, after a

thorough search of the record, we are unable to exhume a single mention of the words

“bias” or “fear” in counsel’s arguments to the trial court. To the contrary, Mr. Dunson’s

argument focused exclusively on the impeachment value of Agent Schlaff’s proposed

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testimony. Insofar as Mr. Dunson only proffered the testimony to the trial court for

impeachment purposes and, because we have specifically held impeachment testimony

may be collateral, we do not believe the district court’s similar conclusion in this case

constitutes an abuse of discretion.

Sufficiency of the Evidence

Indisputably, the prosecution’s case against Mr. Dunson rose and fell on Mr.

Garner’s testimony. In fact, Mr. Garner provided the only evidence establishing a number

of the crucial elements of the crimes. As the sole support for his insufficiency of the

evidence argument, Mr. Dunson maintains we must disregard Mr. Garner’s testimony as

incredible.

Mr. Dunson admits assessing the credibility of a witness is usually the province of

the jury. See, e.g., United States v. Pappert, 112 F.3d 1073, 1077 (10th Cir. 1997);

United States v. Russell, 109 F.3d 1503, 1506 (10th Cir. 1997). However, Mr. Dunson,

citing United States v. Gadison, 8 F.3d 186, 190 (5th Cir. 1993), insists Mr. Garner’s

testimony may be disregarded as incredible if it “assert[s] facts that the witness physically

could not have observed or events that could not have occurred under the laws of nature.”

Id. (citation omitted). Suffice it to say, we confidently conclude nature’s laws remain

undisturbed.

AFFIRMED.

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