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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 12, 2004 Decided June 4, 2004
No. 03-3058
UNITED STATES OF AMERICA,
APPELLEE
v.
MAURICE W. HAYES, A/K/A MO,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(01cr00180–11)
Elisha A. King, appointed by the court, argued pro hac
vice for appellant. With her on the briefs was Charles B.
Wayne.
Nicole A. Saharsky, Attorney, U.S. Department of Justice,
argued the cause for appellee. With her on the brief were
Roscoe C. Howard, Jr., U.S. Attorney, John R. Fisher, Roy
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
W. McLeese III, and Gregory G. Marshall, Assistant U.S.
Attorneys.
Before: GINSBURG, Chief Judge; RANDOLPH and ROBERTS,
Circuit Judges.
Opinion for the Court filed by Circuit Judge RANDOLPH.
RANDOLPH, Circuit Judge: Maurice ‘‘Mo’’ Hayes challenges
four evidentiary rulings made during his trial for submitting
false overtime claims to the Department of Education.
The government sought to prove that Hayes, a Bell Atlan-
tic technician assigned to the Department, conspired with
fellow technicians Robert Sweeney and William Cousin to
submit false time sheets claiming overtime pay. Elizabeth
Mellen, the Department employee who supervised the Bell
Atlantic contract, permitted this practice in order to secure
the technicians’ cooperation with her larger conspiracy to
steal hundreds of thousands of dollars in electronic equip-
ment. See United States v. Mellen, 89 Fed. App. 268, 2004
WL 438571 (D.C. Cir. Mar. 5, 2004). Some of the bogus
hours represented time the technicians spent performing
personal favors for Mellen. Others were pure padding.
Sweeney and Cousin cooperated with the government and
testified against Hayes. The government also introduced
mobile phone records and building security logs that, it
argued, were inconsistent with the time sheets Hayes had
completed. The jury convicted Hayes and the district court
sentenced him to 27 months’ imprisonment.
One issue arises from the cross-examination of Sweeney.
Sweeney claimed he never received payment for favors he
performed for Mellen and her family, and that his only
reward was Mellen’s acquiescence in the overtime scheme.
Defense counsel showed Sweeney a copy of a $100 check from
Mellen’s relatives payable to Sweeney and dated the day the
technicians performed one of these favors. Although Swee-
ney acknowledged that his date of birth and driver’s license
number appeared on the front of the check, and that this was
the sort of information a bank would put on a check when
cashing it, he said he did not recall receiving the check. The
3
copy of the check, marked for identification but not intro-
duced into evidence, showed only the front.
The trial resumed four days later. After testimony ended
for the day, Hayes’ attorney told the court that he had
obtained the original check, that the back bore what purport-
ed to be Sweeney’s signature, and that he was ‘‘going to have
to call [Sweeney] to show him the endorsement on the back’’
of the check. A brief discussion took place between the court
and counsel for the defense and prosecution, ending with the
court’s statement that it would ‘‘deal with this tomorrow.’’
Late on the next day, after three defense witnesses testified
and the government presented a rebuttal witness, defense
counsel announced that he had no further witnesses and the
jury left. At that point, defense counsel told the court that
he had forgotten about introducing the check and recalling
Sweeney to the stand. Treating these statements as motions,
the court denied both.
Hayes argues that the court’s refusal to allow him to recall
Sweeney violated his Sixth Amendment right to confront the
witnesses against him. The Confrontation Clause ensures
effective cross-examination, but it does not deprive trial
courts of all authority to restrict a defense attorney’s ques-
tioning of government witnesses. Delaware v. Van Arsdall,
475 U.S. 673, 679 (1986). Some questions on cross-
examination go beyond the scope of direct, deal with matters
at the fringe of the case, are repetitive, confuse the issues,
harass the witness, or invite the jury to consider extraneous
matters. Courts may impose reasonable limits on such cross-
examination, even when the questioning is intended to under-
mine the witness’s credibility. The Confrontation Clause is
violated only when the court bars a legitimate line of inquiry
that ‘‘might’’ have given the jury a ‘‘significantly different
impression of [the witness’s] credibility.’’ Id. at 680; United
States v. Davis, 127 F.3d 68, 70–71 (D.C. Cir. 1997). In this
case, the district court thought that more cross-examination
of Sweeney about the check would have little probative value
and would confuse the jury in light of the fact that Sweeney’s
fraud—which he admitted—did not turn on whether he re-
ceived money for doing favors for Mellen’s relatives. See
4
FED. R. EVID. 403. Hayes’ attorney had already cross-
examined Sweeney extensively about the check, eliciting re-
sponses that confirmed the accuracy of the personal informa-
tion on the front and Sweeney’s admission that this informa-
tion indicated the check had been cashed. Recalling Sweeney
to the stand to ask about the endorsement on the back could
hardly have affected the jury’s impression of his credibility.
The district court therefore did not abuse its discretion in
refusing to allow it.
The court also refused to admit the check into evidence at
the close of the case. Whether Sweeney received the check
was a collateral matter—relevant to his credibility but not to
the underlying case. While the court allowed Hayes to cross-
examine Sweeney about the subject, the court properly pre-
cluded the introduction of extrinsic evidence (the check) to
contradict Sweeney’s answers. See United States v. Taranti-
no, 846 F.2d 1384, 1409 (D.C. Cir. 1988).
The next issue also arose during Sweeney’s testimony. On
the morning of December 9, 1999, investigators conducted a
series of raids directed at the larger conspiracy, including
visits to the homes of Sweeney and Hayes. The investigators
persuaded Sweeney to phone his co-conspirators and allow
the government to record the conversations. Sweeney’s first
call was to Mellen. It ended with the following exchange:
Mellen: Are you going to be able to handle
this? Is Mo in this?
Sweeney: I don’t know.
Mellen: Well you get Mo whatever you do.
Sweeney: Alright.
About an hour later, Hayes called Sweeney to tell him that
investigators had visited his home. The conversation includ-
ed the following exchanges:
Sweeney: Um, so, uh, what are you, what do
you think we’re going to do?
Hayes: Tell the truth.
5
Sweeney: Um-hum. Well, that’s what, that’s
what I did.
Hayes: That’s all you’ve gotta do.
Sweeney: Yeah, I was wondering about that,
uh, t.v. Liz [Mellen] got.
Hayes: Tell the truth.
Sweeney: Yeah, well, it’s kind of, kind of fuzzy
there, because like Martin got it and then it,
you know it was TTT
Hayes: That’s all you know.
Sweeney: No.
Hayes: Tell them what you know. Let it go.
Tell them what you know and let it go. Out of
your hands now. Tell the truth.
* * *
Sweeney: Well, um, I guess we’ll just have to
see how it goes.
Hayes: Well, tell the truth. The truth works.
All right.
The government moved for the admission of the first tape
during Sweeney’s testimony. The defense objected on the
basis of relevancy. The government replied: ‘‘In the tape,
Elizabeth Mellen tells Bob Sweeney to make sure that he
gets ahold of Mo and gets Mo in on covering this up.’’ The
court acknowledged that the tape ‘‘may not add anything’’ but
admitted it.
Concerned that the first tape suggested Hayes’ partic-
ipation in a cover-up, the defense sought to cross-examine
Sweeney about the second tape, in which Hayes told Sweeney
to ‘‘tell the truth.’’ The government objected, arguing that ‘‘it
is the defendant’s own self-serving hearsay’’ and beyond the
scope of the direct examination. The court sustained the
objection, agreeing with the government’s second ground
because Sweeney never testified that he ‘‘got Mo’’ as Mellen
had suggested. Later in the trial, Hayes sought to introduce
6
the second tape as substantive evidence, arguing that his
injunction to ‘‘tell the truth’’ demonstrated that he did not
have a guilty state of mind. The court denied this request as
well on the ground that the conversations were hearsay.
Hayes does not argue that the court erred in admitting the
first tape. His argument—with which we agree—is that the
court abused its discretion in refusing to allow him to cross-
examine Sweeney about the second tape and to introduce it as
substantive evidence. The government makes no effort to
defend the court’s ‘‘beyond the scope’’ ruling. The sole
purpose of admitting the first tape was to show that Mellen
asked Sweeney to get Hayes involved in a cover-up. It must
have left the jury with the impression that Sweeney followed
up and got Hayes to agree. Hayes was ‘‘not required to let
this potentially damaging inference hang in the air.’’ Macau-
lay v. Anas, 321 F.3d 45, 53–54 (1st Cir. 2003). ‘‘It is always
open in a criminal case for the defendant to explain away the
force of specific items of the government’s proof by showing
the existence of other hypotheses.’’ United States v. Foster,
986 F.2d 541, 545 (D.C. Cir. 1993).
The government does argue that the second tape was
hearsay, and that the district court therefore properly re-
fused to admit it into evidence. Hearsay is ‘‘a statement,
other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the
matter asserted.’’ FED. R. EVID. 801(c). Hayes argues he did
not offer his statements on the tape for their truth. Rather,
he claims the fact he told Sweeney to ‘‘tell the truth’’ indicates
he did not think he did anything wrong, making it less likely
that he had the specific intent required to sustain the conspir-
acy and theft charges. See Morissette v. United States, 342
U.S. 246 (1952) (theft); United States v. Wynn, 61 F.3d 921,
929 (D.C. Cir. 1995) (conspiracy). Most of Hayes’ statements
on the tape are not assertive and therefore do not express a
‘‘truth’’ for which they could be offered. See United States v.
Long, 905 F.2d 1572, 1579–80 (D.C. Cir. 1990). The imperative
‘‘tell the truth’’ does not expressly assert anything.
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The government argues that ‘‘tell the truth’’ was an implied
assertion. Investigators had visited Hayes earlier that morn-
ing and so, according to the government, he must have
suspected that Sweeney was cooperating. By saying ‘‘tell the
truth,’’ therefore, he was actually asserting ‘‘I am innocent.’’
But that is beside the point. Statements inadmissible for one
purpose may be admissible for another. Even if Hayes did
intend implicitly to assert his innocence, his statements were
still admissible to show his state of mind. See United States
v. Brown, 490 F.2d 758, 762–63 (D.C. Cir. 1973). The district
court abused its discretion in excluding the tape.
When explaining its decision to exclude the tape, the dis-
trict court noted that the government would not have the
opportunity to cross-examine Hayes about it because Hayes
would not take the stand. Hayes claims this statement
violated his Fifth Amendment right against self-incrimination
by making him choose between taking the stand and forfeit-
ing the chance to present otherwise admissible evidence.
(Hayes does not argue that the district court’s rulings on the
tape violated his Sixth Amendment right to confront the
witnesses against him.) We think Hayes misinterprets the
district court’s statement. The court never told Hayes he
would have to testify to have the tape admitted. Far from
saying, or even implying, that it would admit the tape if
Hayes testified, the court merely explained the rationale for
the hearsay rule. See Anderson v. United States, 417 U.S.
211, 220 (1974).
The district court’s errors in excluding the Hayes–Sweeney
tape and in refusing to permit cross-examination of Sweeney
about it, although not constitutional, would nevertheless lead
us to reverse Hayes’ conviction unless the errors had no
‘‘substantial and injurious effect or influence in determining
the jury’s verdict.’’ Kotteakos v. United States, 328 U.S. 750,
776 (1946). Given the strength of the government’s case, we
believe the court’s mistakes were harmless. Sweeney and
Cousin both testified about Hayes’ participation in the con-
spiracy. Documentary evidence corroborated their testimo-
ny. The sheer number of hours Hayes claimed, often in
excess of 90 hours a week, were implausible in light of the
8
progressive decline in the technicians’ workload, as recounted
by a defense witness. The government introduced building
security logs showing Hayes arriving and departing at times
inconsistent with his overtime claims, although other testimo-
ny indicated that these records were not necessarily reliable.
The government also introduced mobile phone records show-
ing Hayes making calls from Maryland on 183 occasions when
he claimed to be working in Washington, D.C. Hayes’ coun-
sel argued that someone else could have been using the
phone, but the vast majority of the calls were to Hayes’ home
or business, and Sweeney and Cousin testified that Hayes
always answered his mobile phone when they called it.
Moreover, the excluded tape would not have added much to
Hayes’ defense, and introducing it might have been counter-
productive. Although the jury could have inferred from the
conversation that Hayes lacked criminal intent, that is hardly
the only inference. The jury could well have thought Hayes
was telling Sweeney not to make their situation worse by
obstructing justice. More troubling is the fact that Hayes
could not cross-examine Sweeney about the tape, leaving the
jury with the impression Hayes may have participated in a
cover-up. But in light of the other evidence against Hayes,
we cannot say this restriction had any significant impact on
the verdict.
Affirmed.