United States v. Adams

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 27 2001
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
vs. No. 00-3411

DALE L. ADAMS,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 00-CR-10080-01-JTM)

Nancy Landis Caplinger, Assistant United States Attorney (and James E. Flory,
United States Attorney, on the briefs), Topeka, Kansas, for Plaintiff - Appellee *.

Timothy J. Henry, Assistant Federal Public Defender (and David J. Phillips,
Federal Public Defender, on the briefs), Wichita, Kansas, for Defendant -
Appellant.

Before KELLY and ANDERSON, Circuit Judges and STAGG **, District Judge.

KELLY, Circuit Judge.

*
The appellee was unable to attend and thus, waived oral argument.

The Honorable Tom Stagg, Senior District Judge, United States District
**

Court for the Western District of Louisiana, sitting by designation.
 Defendant-Appellant Dale L. Adams was found guilty by a jury of

possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1), and

sentenced to 51 months and three years supervised release. At trial, the

government relied upon a series of incriminating statements made by Mr. Adams

immediately following his arrest. On appeal, he contends that the district court’s

exclusion of expert testimony by a clinical psychologist denied his right to due

process and a fair trial. He also claims that his conviction under 18 U.S.C. §

922(g)(1) exceeds the scope of congressional power.

Background

Wichita police responded to a residential disturbance on March 2, 2000.

Upon arriving at the scene, an officer looked into a vehicle occupied by Mr.

Adams and another individual and saw a black plastic case, which he determined

contained an assault-style semi-automatic pistol.

Upon questioning, Mr. Adams told the officer that both the vehicle and the

weapon inside the vehicle belonged to him. The officer then retrieved the

weapon, a 9mm semi-automatic pistol, from the interior of the car and arrested

Mr. Adams on charges of possession of an illegal firearm. After being read his

Miranda rights, Mr. Adams stated that he purchased the weapon a few days

earlier, stowed it at his residence, and that day had removed it to the vehicle. Mr.

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Adams gave the same account after the officers transported him to police

headquarters where he was re-interviewed. In both statements, Mr. Adams

provided details about his purchase of the weapon, such as the time, date, and

location of purchase, and the name of the seller.

Mr. Adams was charged with possession of a firearm by a felon. 1 He was

arraigned on June 16, 2000, and trial was set for August 22, 2000. After a

possible plea agreement collapsed on August 14, 2000, defense counsel arranged

a psychological examination for Mr. Adams. The defense anticipated introducing

the resulting psychological report and, on August 18, 2000, delivered the report to

the government. The government immediately moved for exclusion of the report,

first, because the substance was inadmissible, and, second, because the defense

notified the government about the report past the deadline set out in the district

court’s discovery order. The district court sustained the government’s motion.

Mr. Adams tried again at the onset of trial to admit the psychologist’s

report, claiming that it was relevant to Mr. Adams’s mental condition and

education, factors that could be considered in judging the credibility of his

incriminating statements. Again, the government objected to the substance and

timing of the evidence and again the court excluded it.

At trial, the government relied heavily on the incriminating statements that

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Mr. Adams had a prior felony conviction for the sale of cocaine.

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Mr. Adams made to the officers immediately following his arrest. Mr. Adams

testified at trial, denying the veracity of his earlier confessions, and claiming that

he lied to protect his girlfriend from incrimination. Nevertheless, the jury

returned a guilty verdict.

Discussion

A. Adequacy of the Offer of Proof

At the outset we are faced with the question of whether Mr. Adams made

an offer of proof to the trial court adequate to preserve the claimed error of

excluding the psychologist’s testimony. “Error may not be based on a ruling

excluding evidence unless ‘the substance of the evidence was made known to the

court by offer [of proof] or was apparent from the context within which questions

were asked.’” Inselman v. S & J Operating Co., 44 F.3d 894, 896 (10th Cir.

1995) (quoting Fed. R. Evid. 103(a)(2)). On numerous occasions we have held

that “‘merely telling the court the content of ... proposed testimony’ is not an

offer of proof.” Polys v. Trans-Colorado Airlines, Inc., 941 F.2d 1404, 1407

(10th Cir. 1991)(quoting Gates v. United States, 707 F.2d 1141, 1145 (10th Cir.

1983). In order to qualify as an adequate offer of proof, the proponent must, first,

describe the evidence and what it tends to show and, second, identify the grounds

for admitting the evidence. Phillips v. Hillcrest Med. Ctr., 244 F.3d 790, 802

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(10th Cir. 2001); Polys, 941 F.2d at 1407. If the proponent’s offer of proof fails

this standard, then this court can reverse only in instances of plain error that

affected appellant’s substantial rights. Phillips, 244 F.3d at 802; Fed. R. Evid.

103(d).

A twofold purpose underlies these required showings. First, an effective

offer of proof enables the trial judge to make informed decisions based on the

substance of the evidence. Polys, 941 F.2d at 1406. Second, an effective offer of

proof creates “a clear record that an appellate court can review to ‘determine

whether there was reversible error in excluding the [testimony].’” Id. at 1407

(quoting New Mexico Sav. & Loan Assoc. v. United States Fidelity & Guar. Co.,

454 F.2d 328, 334 (10th Cir. 1972)).

Federal Rule of Evidence 103(a)(2) does not mandate a particular form for

offers of proof. Instead, the rule invests the trial judge with discretion in

determining the form of the offer. Fed. R. Evid. 103(b). There are at least four

ways to make an offer of proof of testimony and achieve the purposes underlying

the rule. 1 McCormick on Evidence § 51, at 216 n.9 (John W. Strong, 5th ed.

1999). First, and most desirable from all standpoints except cost, the proponent

may examine the witness before the court and have the answers reported on the

record. Id.; 21 Charles Alan Wright & Kenneth W. Graham, Federal Practice and

Procedure § 5040, at 214 (1977). The question and answer method necessitates

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excusing a jury, but this concern is not present when the offer of proof is made, as

here, at a pretrial motion hearing. When the proponent proffers testimony in this

manner, opposing counsel may be permitted “to cross-examine the witness to

develop any factors which would put the proferred testimony in its true light.”

Wright & Graham § 5040, at 214.

The second, and least favorable, method for making an offer of proof of

testimony is a statement of counsel as to what the testimony would be. Id. at 215.

In this case, the colloquy between counsel and the district court was so lacking in

detail that it is difficult to decipher why exclusion of the evidence might be error.

During the hearing on the motion in limine, defense counsel stated that he had

asked the examining psychologist to “look into whether or not [Mr. Adams’s]

personality, mental makeup, however you want to put it, would he be so inclined

– given the testing that’s done, would there be a possibility that he would give a

false statement to the police.” R.O.A. Supp. Vol. I, at 4. Counsel then proffered

that the examining psychologist had “suggested in one of the paragraphs [of the

report]... that his personality certainly is one that could have been – statements to

the police could have been false.” Id.

An offer of proof of testimony by counsel is the least favored method

because of its potential to fall short of the standard required by the rules of

evidence as well as the standard set out in Phillips and Polys. Defense counsel’s

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offer of proof made during the colloquy with the judge illustrates the potential

pitfalls of this method. Specificity and detail are the hallmarks of a good offer of

proof of testimony, Wright & Graham § 5040, at 213, and conclusory terms,

especially when presented in a confused manner, mark poor ones. 1 Christopher

B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 14, at 71 (2d ed. 1994).

Defense counsel hardly met the baseline requirement of “‘merely telling the court

the content of ... [the] proposed testimony.” Polys, 941 F.2d at 1407. As for the

additional requirements set out in Phillips and Polys, counsel did not explain the

significance of the proposed evidence or what he expected the evidence to show.

Phillips, 244 F.3d at 802; Polys, 941 F.2d at 1407. Nor did counsel clearly

identify “the grounds for which [he] believes the evidence to be admissible.” Id.

Documentary offers of proof comprise the third and fourth proper forms of

proffering anticipated testimony. McCormick § 51, at 216 n.9. The first of these,

and least common, is a statement written by examining counsel describing the

answers the proposed witness would give if permitted to testify. Id. More

common, and relevant to this case, the proponent of the evidence may introduce a

“written statement of the witness’s testimony signed by the witness and offered as

part of the record.” Id. (emphasis added). In using either method of documentary

proffer for anticipated testimony, “[i]t is suggested...that the writing be marked as

an exhibit and introduced into the record for proper identification on appeal.” Id.;

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see also Palmer v. Hoffman, 318 U.S. 109, 116 (1943); 1 Michael H. Graham,

Handbook of Federal Evidence, § 103.7, at 61 (5th ed. 2001). Indeed the primary,

formal reason for an offer of proof is “to preserve the issue for appeal by

including the proposed answer and expected proof in the official record of trial.”

McCormick § 51, at 216 n.9 (emphasis added).

On the morning of the pretrial hearing, counsel for Mr. Adams apparently

sent a facsimile of the psychologist’s report directly to the district court judge,

who referred to the report during the hearing. R.O.A. Supp. Vol. I, at 8. The

report was not marked as an exhibit. “Documents and other exhibits are usually

marked for identification and become part of the record on appeal, even if

excluded.” Wright & Graham § 5040, at 213. Nor was it filed as an exhibit to a

pleading. The report is not part of the record below.

Merely sending a facsimile of the psychologist’s report to the judge on the

morning before the hearing unfortunately does not guarantee that the faxed item

will actually be marked as an exhibit or filed and become part of the record. Our

rules anticipate that when an appeal is based upon the challenge to the admission

or exclusion of evidence, we be furnished not only with pertinent transcript

excerpts, but also with pertinent trial exhibits that are part of the record. 10th

Cir. R. 10.3(D)(1) & (2).

Mr. Adams has moved to supplement the record. The appellate rules allow

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supplementation of the record on appeal in instances where “anything material...is

omitted from or misstated in the record by error or accident.” Fed. R. App. P.

10(e)(2). Because the district court judge did make passing reference to a

recently faxed psychologist’s report, R.O.A. Supp. Vol. I, at 8, and because

counsel as an officer of the court represents that this is the same report that was

before the district court, and because the government does not oppose it, we will

grant the motion. We remind counsel, however, of the importance of a valid,

properly presented, detailed, and recorded offer of proof when testimony is

involved and of the importance of insuring that supporting documentary evidence

be made part of the record.

B. Exclusion of Psychologist’s Testimony

The admission or exclusion of expert testimony is reviewed for abuse of

discretion. United States v. Rice, 52 F.3d 843, 847 (10th Cir. 1995). However,

Mr. Adams suggests that, in this case, exclusion of the psychologist’s report

effectively precluded Mr. Adams’s theory of defense, thereby violating his right

to a fair trial and due process – a violation that he claims warrants de novo

review. We disagree. Mr. Adams cites United States v. Smith, 63 F.3d 956 (10th

Cir. 1995), and United States v. Bindley, 157 F.3d 1235 (10th Cir. 1998), as

evidence that de novo review is required here. Aplt. Br. at 12. Both cases are

inapposite. Both Smith and Bindley determined that it was reversible error for a

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trial court to refuse a jury instruction on a theory of defense after a defendant

makes a threshold showing as to each element of the defense, and that the

adequacy of the defendant’s threshold showing is reviewed de novo. Smith, 63

F.3d at 965; Bindley, 157 F.3d at 1241. But while an adequate threshold showing

entitles a defendant to a jury instruction on that theory of defense, it does not

entitle that defendant to have admitted whatever evidence he desires to support

that theory. The Constitution affords trial judges “wide latitude” to exclude

evidence that is repetitive, marginally relevant, poses an undue risk of

harassment, prejudice, or confusion of the issues, or is otherwise excluded

through the application of the evidentiary rules. Crane v. Kentucky, 476 U.S.

683, 689-90 (1986). Mr. Adams confuses a fundamental right, the right to present

a theory of defense, with one that is not fundamental, the right to present that

theory in whatever manner and with whatever evidence he chooses. Exclusion of

the report was an evidentiary ruling which we review for abuse of discretion.

Rice, 52 F.3d at 847.

1. Exclusion Based Upon Timing.

On June 21, the district court issued a discovery order requiring the

defendant to file all motions and notices pursuant to Federal Rules of Criminal

Procedure 12(b)(1), 12(b)(2), and 12.2 no later than 30 days following

arraignment. R.O.A. Vol. I: 11. The order also warned that failure to comply

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with this order or to show good cause for not being able to comply may result in

disallowance of use of evidence or defenses not disclosed. Id. Mr. Adams

concedes that his failure to notify the government of the psychological report

until three days prior to trial – over a month past the prescribed deadline –

permits sanctions by the district court under Rule 16 of the Federal Rules of

Criminal Procedure. Aplt. Br. at 16-17. Nevertheless, Mr. Adams claims that the

district court erred when it excluded this evidence as untimely.

The test for determining whether a witness was appropriately excluded for

untimely disclosure was described in United States v. Wicker, 848 F.2d 1059,

1061 (10th Cir. 1988). In Wicker, the court considered three factors: (1) the

reason for the delay in disclosing the witness; (2) whether the delay prejudiced

the other party; and (3) the feasibility of curing any prejudice with a continuance.

Id.

The court clearly weighed the first Wicker factor concerning the reason for

the delay in identifying the proposed witness, noting that three months had passed

since the defendant’s indictment, that defense counsel knew or should have

known of defendant’s claim that he lied to the police in order to protect his

girlfriend, and that concerns about the defendant’s mental state and ability had

been raised by the defendant’s grandmother both prior to and at the plea hearing.

R.O.A. Supp. Vol. I, at 6-7.

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 The court did not explicitly weigh the second factor, the potential prejudice

to the government, or the third factor, the feasibility of granting a continuance.

While the court in Wicker suggested that a district court “should consider [the

three factors] in determining if a sanction is appropriate,” the court also noted

that the three factors “merely guide the district court” and do not “dictate the

bounds of the court’s discretion.” Id. Furthermore, even in the absence of

prejudice, a district court may suppress evidence that “did not comply with

discovery orders to maintain the integrity and schedule of the court...” Id. The

district court justifiably excluded the evidence on the basis of its unexplained

untimeliness alone.

The record on appeal indicates, however, that the final two factors weigh

strongly in favor of exclusion of the evidence. First, Mr. Adams’s notice of intent

to introduce expert psychological testimony only three days before a trial date,

left the government no opportunity to conduct its own psychological examination

of the defendant, or otherwise mount a rebuttal. The untimely notice seems

significantly prejudicial to the government.

With regards to the third factor, the feasibility of a continuance, the

government suggested during the hearing in limine that it would need up to 120

days to conduct its own psychological examination of Mr. Adams, as permitted

under Rule 12.2(c) of the Federal Rules of Criminal Procedure. R.O.A. Supp.

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Vol. I, at 3. A continuance adequate to accommodate the described needs of the

government would significantly delay the trial. We agree with the district court

that its ruling could be sustained on the grounds of untimeliness alone.

2. Exclusion Based on the Substance of the Evidence

Mr. Adams also challenges the exclusion of the psychologist’s report on the

basis of its substance. Mr. Adams sought to introduce the psychological evidence

in order to diminish the credibility of his earlier statements to the police. R.O.A.

Supp. Vol. I at 4-5. On appeal, he indicates that “[t]he proffered testimony . . .

showed Adams’ neurocognitive impairment and dependent personality structure

[and] support[s] the possibility the statements he gave to the police were false.”

Aplt. Br. at 14.

Mr. Adams cites Crane v. Kentucky, 476 U.S. 683 (1986), as precedent for

allowing expert testimony bearing on the credibility of prior testimony or a

confession. Aplt. Br. at 15-16. Crane did distinguish pretrial inquiries into the

voluntariness of a confession from a defendant’s challenge to the reliability of the

confession during the course of the trial. Crane, 476 U.S. at 687. Even after a

confession is deemed voluntary, evidence concerning the “physical and

psychological environment that yielded the confession can also be of substantial

relevance to the ultimate factual issue of a defendant’s guilt or innocence.” Id. at

689. The “blanket exclusion” of evidence regarding the circumstances of a

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confession precludes a fair trial. Id. at 690. Crane did not address, however,

whether the “physical and psychological environment that yielded the

confession,” id. at 689, includes the psychological makeup of the confessor, or

when expert testimony should be admitted to address that element. Only two

circuit courts have dealt with the question of the admissibility of expert testimony

concerning credibility, and both, under the facts of those cases and the manner of

presentation, concluded that the respective trial court committed error in

excluding such testimony. United States v. Shay, 57 F.3d 126, 132 (1st Cir.

1995); United States v. Hall, 93 F.3d 1337, 1346 (7th Cir. 1996).

A district court may allow expert testimony “[i]f [the expert] scientific,

technical, or other specialized knowledge will assist the trier of fact to understand

the evidence or to determine a fact in issue.” Fed. R. Evid. 702. 2 The Supreme

Court has held that Rule 702 imposes a special obligation upon a trial judge to

ensure that all expert testimony, even non-scientific and experience-based expert

testimony, is both relevant and reliable. Kumho Tire Co. v. Carmichael, 526 U.S.

137, 147 (1999); Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592-93

(1993).

We have said that “[t]he credibility of witnesses is generally not an

An amendment to Federal Rule of Evidence 702 became effective
2

December 1, 2000, after the trial in this case.

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appropriate subject for expert testimony.” Toledo, 985 F.2d at 1470. Though

Crane prohibits categorical exclusion of this type of evidence, it does not require

its categorical admission – the rules of evidence still apply. There are a variety of

reasons that evidence related to the credibility of a confession may be excluded.

First, “expert testimony which does nothing but vouch for the credibility of

another witness encroaches upon the jury's vital and exclusive function to make

credibility determinations, and therefore does not ‘assist the trier of fact’ as

required by Rule 702.” United States v. Charley, 189 F.3d 1251, 1267 (10th Cir.

1999) (quoting Rule 702). See also United States v. Call, 129 F.3d 1402, 1406

(10th Cir. 1997) (testimony concerning credibility is often excluded because it

usurps a critical function of the jury, which is capable of making its own

determinations regarding credibility); United States v. Samara, 643 F.2d 701, 705

(10th Cir.), cert. denied, 454 U.S. 829 (1981). Also, a proposed expert’s opinion

that a witness is lying or telling the truth might be “inadmissible pursuant to Rule

702 because the opinion exceeds the scope of the expert’s specialized knowledge

and therefore merely informs the jury that it should reach a particular

conclusion.” Shay, 57 F.3d at 131. Yet another rationale for exclusion is that the

testimony of impressively qualified experts on the credibility of other witnesses is

prejudicial, unduly influences the jury, and should be excluded under Rule 403.

Toledo, 985 F.2d at 1470; cf. Call, 129 F.3d at 1406 (polygraph results may be

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excluded under Rule 403 because jury may overvalue scientific results as

indication of truthfulness).

In this case, Mr. Adams defended on the basis that the repeated,

incriminatory statements he gave to law enforcement were untrue, made only to

protect his girlfriend, who he believed at the time to be pregnant. R.O.A. Vol. II,

at 208-09. The expert concluded that Mr. Adams’s low neurocognitive

functioning and dependent personality structure “strongly raise[] the possibility,

given the conflicting explanations made by Mr. Adams and others, that he was not

telling the truth when he made incriminating statements to Wichita Police

Officers and ATF agents. His statements that he was “protecting a girlfriend”

when he confessed to possession of the firearm is consistent with his personality

and cognitive state, and indicative of his difficulty making appropriate and

reasoned choices.” Report at 5 (emphasis added).

The district court was careful to recognize that, in some circumstances,

credibility testimony by an expert might be allowed, however, it did not abuse its

discretion in excluding it here. R.O.A. Supp. Vol. I, at 8. The psychologist, in

light of the conflicting explanations and his evaluation of Mr. Adams, concluded

that Mr. Adams’s account (that he lied to protect his pregnant girlfriend) was

plausible, albeit misguided. We have reviewed the report, and find the district

court within its discretion in holding that the report was little more than a

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professionally-trained witness testifying that, based upon his history, “Mr. Adams

is the type of person who would have lied about his involvement to the police.”

Id. at 7. This case is readily distinguishable from Hall, 93 F.3d at 1341, where

the defendant claimed that a personality disorder caused him to confess during

interrogation and sign a statement in order to gain approval of his interrogators,

and Shay, 57 F.3d at 129-30, where the defendant claimed that his confession was

the product of a mental disorder characterized by an extreme form of pathological

lying. In this case, there simply is no question about the voluntariness of the

confessions–and defendant’s recantation that he lied in order to protect his

girlfriend is precisely the type of explanation that a jury is capable of resolving

without expert testimony. The offered testimony does little more than “vouch for

the credibility of another witness” and thereby “encroaches upon the jury's vital

and exclusive function to make credibility determinations.” Charley, 189 F.3d at

1267. The judge was well within his discretion in determining that the evidence

lacked relevance and would not “assist the trier of fact as required by Rule 702.”

Id.

C. Commerce Clause

Finally, Mr. Adams raises a facial challenge to 18 U.S.C. § 922(g)(1),

claiming that enactment of the possession statute exceeded congressional power

under the Commerce Clause. Citing United States v. Lopez, 514 U.S. 549 (1995),

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United States v. Morrison, 529 U.S. 598 (2000), and Jones v. United States, 529

U.S. 848 (2000), Mr. Adams claims that mere possession of a firearm does not

“affect interstate commerce,” and is therefore insufficient to meet the federal

jurisdictional requirement. Aplt. Br. at 19-23. Our decision in United States v.

Dorris, 236 F.3d 582 (10th Cir. 2000), resolved this issue and now forecloses Mr

Adams’s facial challenge to the statute.

AFFIRMED.

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