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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 12-CF-778
KEITH A. MOORE, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia (CF3-11041-11)
(Hon. Ann O‟Regan Keary, Trial Judge)
(Argued September 25, 2014 Decided April 30, 2015)
Justin Murray, Public Defender Service, with whom James Klein, Samia Fam, and Shilpa S. Satoskar, Public Defender Service, were on the briefs, for appellant.
Patricia A. Heffernan, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, Elizabeth Trosman, John P. Mannarino, and Holly Shick, Assistant United States Attorneys, were on the brief, for appellee.
Before WASHINGTON, Chief Judge, GLICKMAN, Associate Judge, and PRYOR, Senior Judge.
Opinion for the court by Associate Judge GLICKMAN.
Dissenting opinion by Senior Judge PRYOR at page 30. 2
GLICKMAN, Associate Judge: Appellant Keith Moore was convicted of
robbing Lorenzo Thomas at gunpoint of over $1,000 in cash, and of other, related
crimes. The theory of Moore‟s defense at trial was that Thomas never had such a
large sum in his possession and that he fabricated the robbery in a desperate ploy to
forestall the imminent revocation of his probation on account of his inability to pay
court-ordered restitution. It therefore was important to the government‟s case to
show that Thomas was not lying, and hence to explain how he came to possess
over $1,000 in cash at the time of the alleged robbery. In doing so, the government
had an obstacle to overcome: While Thomas testified at trial that the money
allegedly stolen from him came from a tax refund and gambling proceeds, he
previously had said otherwise and lied about the source of the funds. For this and
other reasons, Thomas‟s credibility was a central issue at trial.
Prior to trial, to confirm that he in fact had received a tax refund, Thomas
gave his 2010 federal tax return to the prosecutor, who in turn provided it to
Moore‟s defense counsel and the court. In doing so, the prosecutor flagged the fact
that Thomas had obtained a sizable tax credit and refund—over three thousand
dollars—by claiming his twelve-year-old sister as his dependent. The prosecutor
stated that she had discussed this with Thomas before he testified in the grand jury,
and that “there was no understanding between him [and] the government about 3
whether claiming his sister as a dependent was appropriate.” Based on this
disclosure and additional information indicating that Thomas was not entitled to
the tax credit, Moore sought to cross-examine Thomas at trial about whether he
had committed tax fraud—primarily in order to impeach Thomas‟s veracity and
demonstrate that he was capable of fabricating the robbery in this case for a
monetary gain, and secondarily to explore Thomas‟s motive to curry favor with the
prosecution inasmuch as he had not been granted immunity from prosecution for
tax fraud. However, the trial court, doubting that the inquiry would be probative of
Thomas‟s veracity as a witness, and concerned that a digression into tax law would
confuse the jury, precluded the proposed cross-examination in its entirety. On
appeal, Moore contends that the court exercised its discretion erroneously in so
ruling, and that we cannot deem the error harmless. We agree, and we therefore
reverse Moore‟s convictions and remand for a new trial.
I.
The alleged robbery occurred on June 12, 2011, and was described at trial by
Thomas and his friend Dale Bolton.1 That afternoon, they testified, they had been
1 Bolton, who initially had claimed he was high on PCP and did not remember what had happened, was at trial a reluctant, hostile, and most unreliable (continued…) 4
gambling at the home of “Little Tey.” Thomas said he had arrived with a “couple
hundred dollars” from his tax refund and some money from his mother, and that he
won several hundred dollars, so that he had $1,066 by the time the gambling
ended. Bolton, however, testified that Thomas had lost some money while
gambling that afternoon, and was complaining about it.2
Upon leaving Little Tey‟s house, Thomas and Bolton joined Moore, Ronald
Kent, and their friend Demario Kennedy, and the group decided to go in Kent‟s
SUV to a liquor store where Thomas intended to purchase a $1,100 money order.
This was a matter of some urgency for Thomas, because he was on probation in
connection with his conviction in 2005 on four counts of armed robbery, and he
needed the money order to make an overdue payment of restitution and avoid
having his probation revoked at a violation hearing that happened to be scheduled
the following day. On the way, the group stopped in the parking lot of the
apartment complex where Moore‟s mother lived. Moore left the SUV to get his
(continued…) witness whose testimony was riddled with inconsistencies. On cross-examination, he claimed he had tailored his testimony to what he understood the prosecutor wanted him to say because she had “threatened [him] with perjury.” 2 According to Bolton, Moore was present at Little Tey‟s house too, along with his friend Ronald Kent. Moore may or may not have been gambling there. 5
brother Darrell while Bolton went to buy marijuana and PCP. Thomas, who
remained in the SUV, saw Moore hand his cell phone to Darrell.
The robbery allegedly took place when Moore returned to the SUV with his
brother. Although their accounts differed as to the details, Thomas and Bolton
testified that Moore pulled a gun on Thomas and, with his brother‟s assistance,
robbed him of his money, wallet, and cell phone. Moore then directed Thomas to
leave the area on foot, which he did. As Thomas departed, he saw Kent pull over
in the SUV and pick up Moore.3
Thomas fled to a nearby church, where he summoned the police and
reported that Moore and his brother had just robbed him with a silver handgun.
After broadcasting a lookout for Kent‟s SUV, the officers and Thomas went to the
parking lot where Thomas said the robbery took place. They found Thomas‟s
wallet lying on the ground. Any money that had been in it was missing. Thomas
and the officers then located Bolton, who had gone home, but he was unwilling to
speak with them.
3 Bolton testified that Moore proceeded to rob him as well, taking about $30 from his pockets. However, the jury acquitted Moore of robbing Bolton. 6
Meanwhile, not far away, other police officers spotted Kent‟s SUV and
followed it. As they did so, one of the officers saw a handgun thrown out of the
right rear passenger window of the SUV. The police later recovered a black
handgun on the ground in that vicinity. When the police succeeded in stopping the
SUV, they took its four occupants—Moore (who was sitting in the right rear
passenger seat), his brother, Kent, and Kennedy—into custody. In separate
showups, Thomas identified each of them. Moore, he stated, was the person who
held the gun to his head while his brother went through his pockets. The police
found $943 on Moore‟s person (all but $20 or $30 of it in his sock) and $61 on two
of the other passengers.4 From Moore‟s brother, the police took a blue Cricket cell
phone, which Thomas identified as his.5
4 In total, this was $62 less than Thomas claimed to have lost. The government argued that the “missing” $62 might have been spent to buy the two bottles of cold vodka and two bottles of cold beer that the police also found in the SUV. 5 The parties disagreed at trial as to whether the evidence established that the cell phone really belonged to Thomas. The police allowed Thomas to keep the phone, and by the time of trial he said he no longer had it or remembered the phone‟s number. A detective testified that he allowed Thomas to have the phone because Thomas was able to unlock it by entering a code, but on cross-examination the detective appeared to acknowledge that he really did not know the phone was locked or what Thomas actually did to “unlock” it. The detective also did not know the number of the phone or whether that number was registered to Thomas. 7
Thomas subsequently was shown a photograph of the black handgun
suspected of having been thrown from Kent‟s SUV. At first he said he did not
recognize it and recalled that Moore‟s gun was a different color (silver). However,
after continuing to examine the photo, Thomas noticed that the gun in the photo
was a Colt. He stated that Moore‟s gun was a Colt and then declared that the gun
in the photo was the gun Moore used to rob him. At trial, Thomas was shown the
black handgun and identified it as the one Moore used, even though he earlier had
said the weapon was silver. The defense challenged the credibility of this
identification.6
In addition to the foregoing evidence, the prosecution introduced a recording
of a telephone call Moore made to someone named Tracy three days after his
arrest.7 During the call, Moore told Tracy “I‟m gonna go ahead and take this shit
for everybody so them can come home,” “I sit up all night crying about [Thomas]
doing some shit like this,” and “if it was anybody else,” the police would not have
been called, “and I wouldn‟t even be right here man.” The government contended
6 The defense also disputed whether this or any gun actually had been thrown from the SUV. 7 The parties stipulated that Moore and Tracy both knew the call was being recorded. Evidently the call was made from the D.C. Jail. 8
that these statements amounted to inculpatory admissions, while the defense
argued that Moore was merely expressing his anger at Thomas for falsely accusing
him, his brother, and his friends of robbery.
The theory of Moore‟s defense at trial was that Thomas had fabricated the
robbery in order to get from Moore the money he needed to fulfill his overdue
restitution obligation at his probation violation hearing the following day, or at
least to create an acceptable excuse for his inability to do so.8 One thing that lent
some support to that theory, and that undercut Thomas‟s credibility, was his
dishonesty and inconsistency as to the source of the cash that Moore purportedly
stole from him. When Thomas was interviewed by the police on June 12, and for
several weeks afterward, he claimed to have earned most of the allegedly stolen
$1,066 working as a server at P.F. Chang‟s (a restaurant), and that his mother had
given him the rest. But after the prosecutor contacted P.F. Chang‟s and learned
that Thomas had stopped working there in January, Thomas admitted having lied
about the source of the money. He then told the prosecutor that much of the
money actually came from his 2010 tax refund. Later, and at trial, he said he won
a lot of the money gambling at Little Tey‟s on the afternoon of the robbery.
8 As to Bolton, the defense theory was that he had echoed his friend Thomas‟s story of a robbery only to avoid being prosecuted for perjury. 9
Thomas explained that he had lied about the source of the money initially because
he did not want to be “judged.”9
Sometime before trial, Thomas provided his 2010 federal tax return to the
prosecutor to confirm that he actually had received a tax refund as he had asserted.
The prosecutor furnished a copy of the return to Moore‟s defense counsel and the
court. In conjunction with that disclosure, the prosecutor highlighted the fact that
Thomas had claimed his twelve-year-old sister as his dependent and, with respect
to that fact, advised as follows:
Mr. Thomas agreed that there was no understanding between him or [sic] the government about whether claiming his sister as a dependent was appropriate. Mr. Thomas also had an opportunity to speak to his lawyer ... about this matter. Detective Peter Shaw was also present when I discussed this issue with Mr. Thomas, and this discussion took place before Mr. Thomas testified in the grand jury. Mr. Thomas said his mother did not claim his sister as a dependent in 2010.
The tax return, which Thomas filed with the aid of a paid tax preparer,
showed that Thomas‟s adjusted gross income (“AGI”) for 2010 was $9,245 and
that he was entitled to a federal tax refund of $4,387. This refund was entirely 9 Thomas testified at trial pursuant to promises of immunity protecting him from prosecution for illegal gambling and lying about the source of his stolen money. 10
attributable to three credits,10 the largest of which was an Earned Income Credit
(“EIC”) of $3,050.11 According to the accompanying Paid Preparer‟s Earned
Income Credit Checklist, Thomas claimed the EIC by representing (1) that his
twelve-year-old sister E.T. lived with him and met the other criteria listed in the
checklist for Thomas to claim her as his “qualifying child,”12 and (2) that no one
else was eligible to claim E.T. as his or her “qualifying child” under those criteria.
The latter representation was crucial, because if more than one taxpayer could have
claimed E.T. as a qualifying child, there were special “tiebreaker rules” (referenced
in the EIC checklist) that determined who would have been allowed to do so.
Those tiebreaker rules provide that if an individual‟s parents could claim her as a
qualifying child but neither parent does so, “such individual may be claimed as the
qualifying child of another taxpayer but only if the adjusted gross income of such
10 Thomas had zero taxable income for 2010, so his refund equaled the sum of his tax credits. 11 The other two credits were an Additional Child Tax Credit of $937 and a Making Work Pay Credit of $400. No issue has been raised about the propriety of these two credits. It would appear, however, that Thomas‟s entitlement to the Additional Child Tax Credit would be subject to the same question (whether Thomas could claim his sister as his “qualifying child”) that appellant raises with respect to the EIC. See 26 U.S.C. § 24 (2014). 12 A “qualifying child” is defined, essentially, as a son, daughter or sibling of the taxpayer (or a descendent of any such relative) who had “the same principal place of abode” as the taxpayer for more than half of the taxable year, and who meets certain age and other requirements. See 26 U.S.C. § 152 (c), (f) (2014). 11
taxpayer is higher than the highest adjusted gross income of any parent of the
individual.”13 If the taxpayer‟s AGI is not higher than that of the child‟s parent,
the taxpayer may not claim the child as his dependent even if the parent declines to
do so. The representation that no one but Thomas could claim his sister as a
qualifying child rendered it unnecessary for Thomas and the paid preparer to apply
this tiebreaker rule in filling out the EIC checklist—and they did not do so.
Before trial, Moore‟s defense counsel informed the court that she intended
to cross-examine Thomas about whether he had taken the earned income credit
dishonestly, i.e., knowing he was not eligible for it, and about his discussions with
the prosecutor concerning that issue. Counsel explained that she believed Thomas
must have known he was not entitled to claim his sister as his dependent for
purposes of the EIC because the sister (like Thomas himself) lived with their
mother, Terria McCallister, and Ms. McCallister‟s adjusted gross income likely
was greater than Thomas‟s paltry AGI because she was a federal government
employee. Ms. McCallister therefore was entitled to claim Thomas‟s sister as her
qualifying child and, counsel inferred, she had priority over Thomas under the
13 26 U.S.C. § 152 (c)(4)(C) (emphasis added). 12
tiebreaker rules.14 Counsel acknowledged that the tax return had been prepared by
a paid preparer rather than Thomas himself, but she pointed out that Thomas still
had to provide the preparer with the necessary factual information, which Thomas
evidently had “misrepresented” in some way.15
The prosecutor agreed with defense counsel‟s understanding that Thomas
was entitled to claim his sister as his qualifying child only if his AGI was greater
than that of his mother. After inquiring of Ms. McCallister as to why she had not
claimed the EIC on her own return, the prosecutor reported that she said “she was
present when … Thomas went to the accountant to prepare the [2010] tax returns
last year, and that no one asked her whether she was employed”—though, in fact,
14 Defense counsel did not point out the specific representation on the EIC checklist that no one other than Thomas could claim his sister as a qualifying child—a statement that seems to have been false, as it is undisputed that Thomas‟s mother could have done so. Rather, counsel surmised that the return preparer, applying the tiebreaker rule, might have asked Thomas, “does your mom work because [if] she makes more than you[,] [y]ou can‟t claim [the EIC],” and that Thomas might have lied and said his mother did not work. 15 In filling out the Paid Preparer‟s Earned Income Credit Checklist, the preparer represented that he had completed it “based on information provided by the taxpayer” or otherwise “reasonably obtained,” and that he did not know or have reason to know that the information used to determine the taxpayer‟s eligibility for the EIC was incorrect. 13
she was a federal government employee in 2010. The prosecutor did not say what,
if anything, Ms. McCallister had said about her adjusted gross income in 2010.
Defense counsel argued that Moore was entitled to cross-examine Thomas
about his possibly fraudulent tax return and his related discussions with the
prosecutor for two reasons: (1) to impeach Thomas‟s credibility because his
misrepresentations in his tax return were prior dishonest acts probative of his
character for untruthfulness and hence his lack of veracity as a witness; and (2) to
show that Thomas had a testimonial bias because his continuing exposure to
prosecution or revocation of his probation on account of his alleged tax fraud
provided him with a motive to curry favor with the prosecutor.16 The prosecutor
objected to the proposed cross-examination on the ground that it would “confuse
the jury and leave them with the impression that [Thomas] had done something
wrong when no one would be able to prove … what the correct interpretation of
the tax law is.”17
16 The immunity from prosecution that Thomas was given did not extend to prosecution for tax fraud. 17 The prosecutor previously had noted the “problem” that, in order to prove that Thomas claimed the EIC improperly, the defense might have to present extrinsic evidence in the form of testimony from Thomas‟s mother or a tax expert. Defense counsel agreed that she would be precluded from presenting such extrinsic evidence on the point, and that she would be stuck with Thomas‟s answers on (continued…) 14
Ultimately, the trial court decided to preclude all cross-examination of
Thomas relating to his allegedly falsified tax return. Observing that Thomas was
“not a tax expert” and “not the person who prepared the tax form,” the court
reasoned that even if he had claimed the earned income credit dishonestly, “[t]his
prior act ... would not be as relevant” as “many [other] areas for cross-
examination” available to the defense in this case, “including [other] prior
dishonesty of the witness.” Additionally, after characterizing the issue of
Thomas‟s right to claim the tax credit as “convoluted,” “difficult to explain,” and
“a matter of interpretation of tax law,” the court anticipated that the proposed
cross-examination would “leave the jury with only the ability to speculate” as to
whether “this is against the law,” and would “distract[] [the jury] “from the really
relevant issue, whether or not [Thomas is] truthful in his testimony.” 18
(continued…) cross-examination, but she argued that Thomas might “tell the truth” and admit that he had made misrepresentations in his tax return. Furthermore, counsel argued, at the very least she should be allowed to cross-examine Thomas with respect to his bias by eliciting what the prosecutor said to him about his tax return before he testified in the grand jury. 18 In focusing on whether the proposed cross-examination would be illuminative on the issue of Thomas‟s veracity, the court did not separately address whether it would be probative of his testimonial bias. 15
Thomas‟s credibility proved to be the central issue at trial. At the outset of
her closing argument, the prosecutor acknowledged that “the real issue is whether
or not you can believe Dale Bolton and Lorenzo Thomas.” Thomas was much the
more important of the two. Conceding that the jurors might not “like” Thomas in
light of “some of the things that he did in his past,” the prosecutor urged them to
believe him because he “honestly [took] ownership” of his past misdeeds; “his
story never changed, with the exception of the fact of where his money came
from”; and the evidence corroborated his account of having been robbed of over a
thousand dollars by Moore and his brother.
Moore‟s defense counsel, asserting that “[t]his case is about one man,
Lorenzo Thomas,” vigorously attacked him as “a witness who went from a
supposed robbery victim to a lying, egotistical manipulator right before our very
eyes.” Counsel argued that Thomas fabricated his story of a robbery out of
desperation, after “he lost all of his money” gambling, because he was facing
imminent revocation of his probation and twelve years in prison and his “time was
running out.” Counsel disparaged the evidence that supposedly corroborated
Thomas and emphasized that Thomas was contradicted or inconsistent on key
points, including the source of the purportedly stolen money, whether he won or 16
lost money gambling at Little Tey‟s, and whether he truly recognized the handgun
recovered by the police.
In rebuttal, the prosecutor challenged the defense characterization of
Thomas as a “master manipulator” and insisted that “the only lie he told was where
he got his money from. One lie.” “[A]sk yourselves,” the prosecutor exhorted the
jury, “is he someone who is capable of manipulating this whole thing?” The jury
found the case a difficult one. Its deliberations extended over four days, during
which it requested the court to provide “more detailed explanation of beyond a
reasonable doubt,” reported itself “unable to come to agreement regarding the
verdict,” and declared that it was “hung on a number of matters.” Ultimately, the
jury found Moore guilty of Thomas‟s armed robbery but not guilty of Bolton‟s
armed robbery.19
19 Moore was tried together with his brother Darrell and Ronald Kent. It is possible that the jury‟s difficulties primarily related to them. The jury found Darrell Moore guilty only of misdemeanor receiving stolen property (that of Thomas). It found Kent guilty of being an accessory after the fact to assault with intent to commit robbery while armed. 17
II.
Moore contends the trial court abused its discretion when it precluded him
from impeaching Thomas‟s veracity and showing his bias to curry favor with the
prosecutor through cross-examination about his misrepresentations in his 2010 tax
return and his confrontation with the prosecutor about those misrepresentations.
The government argues that we should affirm the trial court because Moore did not
proffer a sufficient factual foundation for the veracity and bias inquiries he sought
to pursue, and that any error in foreclosing those inquiries was harmless in view of
the strength of the prosecution case and the otherwise full opportunity Moore had
to cross-examine Thomas. As the case has been presented to us, we therefore may
determine whether Moore is entitled to a new trial by focusing primarily on two
questions—whether he made an adequate proffer to justify embarking on his
proposed cross-examination of Thomas and, if so, whether the court‟s preclusion
of that cross-examination was nonetheless harmless. We conclude that Moore‟s
proffer was sufficient for both desired areas of inquiry and that at least insofar as
the interdiction of his attempt to impeach Thomas‟s veracity is concerned, we
cannot deem the error harmless.20
20 We therefore find it unnecessary to address Moore‟s contention (which the government disputes) that reversal is required because the court curtailed his cross- (continued…) 18
A.
It is well settled that a sufficient factual predicate is a prerequisite to the two
types of cross-examination Moore sought to undertake in this case. We have held
that “[a] witness may be cross-examined on a prior bad act that has not resulted in
a criminal conviction only where (1) the examiner has a factual predicate for the
question, and (2) the bad act bears directly upon the veracity of the witness in
respect to the issues involved in the trial.”21 We likewise have held that “[i]n order
to pursue a line of cross-examination suggesting that a witness is biased, a
defendant must lay „a proper factual foundation.‟”22 The requirement of a factual
(continued…) examination for a legally improper reason, to wit, that other available evidence of Thomas‟s lack of veracity and bias was “more relevant.” 21 Murphy v. Bonanno, 663 A.2d 505, 508-09 (D.C. 1995) (internal quotation marks and brackets omitted); accord Bennett v. United States, 763 A.2d 1117, 1122 (D.C. 2000). “[W]here such impeachment is permitted, evidence of the prior misconduct may be elicited only by cross-examination of the witness; it may not be proved by extrinsic evidence.” Sherer v. United States, 470 A.2d 732, 738 (D.C. 1983). 22 McCraney v. United States, 983 A.2d 1041, 1052 (D.C. 2009) (quoting Scull v. United States, 564 A.2d 1161, 1164 (D.C. 1989)). 19
predicate “serves to prevent harassment of the witness, prejudice to the opposing
party, confusion of the issues, and unnecessary waste of time[.]”23
The trial court has discretion to determine whether a proffered factual
predicate is sufficient, and the court properly exercises that discretion “by
precluding cross-examination where the connection between the facts cited by
defense counsel and the proposed line of questioning is too speculative to support
the questions.”24 Nonetheless, the requirement of “a reasonable factual
foundation” is a “fairly lenient one.”25 It simply calls for a “credible” good faith
proffer of facts supporting a “genuine belief” or “well-reasoned suspicion” that the
witness committed a veracity-impeaching bad act or is biased in the manner
asserted; such a proffer, we have said, may be based on “plausible factual
allegations or itself [may be] plausible within the framework of facts that neither
party has contested.”26 The court has discretion in appropriate cases to test the
23 Id. 24 Id. (internal quotation marks and brackets omitted). 25 Clayborne v. United States, 751 A.2d 956, 963 (D.C. 2000) (internal quotation marks omitted). 26 Scull, 564 A.2d at 1164 & 1164 n.4 (internal quotation marks omitted); see also McCraney, 983 A.2d at 1052; Grayton v. United States, 745 A.2d 274, 280 (D.C. 2000). We note that appellant does not claim constitutional error in the (continued…) 20
proffer, or allow the examiner to substantiate it, through a preliminary voir dire of
the witness, which may be conducted outside the presence of the jury.27 Moreover,
because “cross-examination is often genuinely exploratory rather than directly
accusatory, [inasmuch as] counsel often cannot know in advance what an opposing
party‟s witness may have to say,” the foundational requirement is “flexible as well
as lenient. The more pointed and directly accusatory the examiner‟s question,
the stricter the foundational requirement becomes, while a „very slight‟ basis is
enough to support „nonaccusatory questions‟ on cross-examination.”28
(continued…) preclusion of his prior bad act cross-examination (as opposed to the preclusion of his cross-examination for bias). “„[T]he confrontation clause mandates that the trial court give [the] defendant leave to cross-examine about [a] prior [false] claim only where it is „shown convincingly‟ that the prior claim is false.‟” Garibay v. United States, 72 A.3d 133, 138 (D.C. 2013) (quoting Roundtree v. United States, 581 A.2d 315, 321 (D.C. 1990)). 27 See, e.g., Garibay, 72 A.3d at 139 (holding that where the factual proffer raised the possibility but did not show convincingly that the complainant previously had made a false allegation of sexual assault, the trial court should have permitted a “limited exploratory voir dire … to determine whether the witness fabricated an accusation”); McCraney, 983 A.2d at 1052 n.31 (“The judge clearly had the discretion to conduct a voir dire examination of Mascall outside the jury‟s presence as an aid to determining whether there might be grounds for the requested bias cross-examination.”) (citing Newman v. United States, 705 A.2d 246, 259 (D.C. 1997)); Roundtree, 581 A.2d at 324. 28 Clayborne, 751 A.2d at 963 (citation omitted); see also Scull, 564 A.2d at 1165 n.6 (“[A]n important purpose of cross-examination is exploration, and the trial court must give counsel some leeway to probe for information that she cannot prove before commencing cross-examination.”). 21
Evaluated in accordance with these principles, Moore‟s proffer passed
muster. As to whether Thomas took the $3,050 earned income credit in his 2010
federal tax return by dishonestly claiming his sister as his qualifying child, the
proffer included the following facts and circumstances: First, the tax return was
prepared by and with the assistance of a professional tax preparer. Second, the
preparer made a factual inquiry of Thomas (memorialized in the preparer‟s
checklist) to determine whether he satisfied the legal requirements for claiming his
sister as his qualifying child. Third, Thomas and his sister both resided with their
mother. Fourth, for that reason, their mother also met the initial criteria for
claiming Thomas‟s sister as a qualifying child (as Thomas must have known).
Fifth, under the “tiebreaker” rules, Thomas was permitted to claim his sister only if
his adjusted gross income in 2010 exceeded his mother‟s AGI. Sixth, Thomas‟s
AGI for the year was only $9,245.29 Seventh, as Thomas also surely knew, his
mother was a federal government employee in 2010 and her AGI therefore almost
certainly exceeded his.30 Eighth, Thomas therefore almost certainly was not
entitled to claim his sister as his qualifying child. Ninth, in order to do so anyway,
29 That was the figure shown on the tax return, which had been furnished to the court. Moore‟s defense counsel misspoke in argument and said Thomas‟s AGI was $9,400. The difference is immaterial. 30 There was no reason to think otherwise. Moreover, the prosecutor, who was aware of the significance of the tiebreaker rule and had interviewed Ms. (continued…) 22
he evidently misrepresented the facts in some way to convince the tax preparer that
he could claim his sister as his qualifying child and take the EIC.31
Moreover, it was reasonable for defense counsel to conclude that if Thomas
obtained his $3,050 tax credit (and tax refund) by this dishonest means, he
committed an act of tax fraud.32 Such an act of fraud would have been probative of
Thomas‟s lack of truthfulness and, more particularly, his willingness to lie for
financial gain. Thus, the proffer adequately identified a prior bad act that bore
directly upon Thomas‟s veracity in respect to the central issue at trial, which was
(continued…) McCallister about her failure to claim Thomas‟s sister as her qualifying child, did not claim that her AGI was less than Thomas‟s in 2010. If that were truly so, one would think the prosecutor would have trumpeted the fact as a decisive rebuttal of Moore‟s proffer. 31 Indeed, as discussed above in footnote 14 and the accompanying text, a misrepresentation is apparent on the face of the preparer‟s checklist—to wit, that no one other than Thomas himself met the initial criteria for claiming his sister as a qualifying child. Because defense counsel did not mention this misrepresentation in her proffer (and no one ever pointed it out to the trial court), we do not consider it in evaluating the sufficiency of Moore‟s proffer. But we think counsel surely would have questioned Thomas about it had she been allowed to do so. 32 See generally 26 U.S.C. §§ 7201 et seq (2014) (federal tax crimes); e.g. 26 U.S.C. § 7206 (2014) (“Any person who . . . willfully makes and subscribes any return. . . which contains or is verified by a written declaration that is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter . . . shall be guilty of a felony[.]”); 26 U.S.C. § 7207 (2014) (misdemeanor fraudulent tax filings). 23
whether he fabricated his robbery accusation to obtain money from Moore
dishonestly. The act therefore would have been a permissible subject of cross-
examination to impeach Thomas‟s credibility.33
It is true, as the government argues, that the proffered facts and
circumstances do not necessarily prove Thomas committed tax fraud. But they do,
in our opinion, give rise to a quite reasonable suspicion that he did so. Defense
counsel possibly could have confirmed that suspicion by questioning Thomas
under oath about what he told the tax preparer and what he understood about his
right to claim his sister as his qualifying child. At a minimum, the proffer was
sufficient to entitle Moore to conduct a limited exploratory voir dire of Thomas in
an effort to substantiate the suspicion that he had engaged in tax fraud. “It may
33 See Murphy v. Bonanno, 663 A.2d 505, 509-510 (D.C. 1995) (holding that trial court erred in precluding, on relevance grounds, cross-examination of plaintiff in action for assault and battery and trespass about prior acts of bank fraud and insurance fraud, as such acts “would certainly be probative of whether [the plaintiff‟s] present allegations to which she testified at length were worthy of belief”); see also Chnapkova v. Koh, 985 F.2d 79, 82 (2d Cir. 1993) (“Evidence that a witness has made false statements in a tax return is obviously a matter which affects the witness‟s credibility.”), abrogated on other grounds, Jaffee v. Redmond, 518 U.S. 1 (1996); United States v. Sullivan, 803 F.2d 87, 90-91 (3rd Cir. 1986) (“fraudulent replies” on witness‟s income tax forms held admissible to attack witness‟s credibility on cross-examination); United States v. Zandi, 769 F.2d 229, 236 (4th Cir. 1985) (stating that cross-examination of a witness about “false information” on his tax returns and other documents “bore on a relevant matter, i.e. his credibility, and was entirely appropriate”). 24
seem unlikely that [Thomas] would admit to having [falsified his tax return], or
that [he] would reveal information establishing convincingly that [he] did so, but
appellant was entitled to find out.”34 It is by no means an “improbable flight of
fancy”35 to suppose that Thomas would have admitted having been dishonest in
order to obtain a refund of a few thousand dollars, or that the jury would have
disbelieved him if he had professed innocence without giving a persuasive
explanation.
Moore also proffered adequate grounds to support his bias theory of cross-
examination. In addition to the foregoing facts suggesting that Thomas dishonestly
obtained a tax credit and refund to which he was not entitled, the court was
informed that (1) the prosecutor doubted it was “appropriate” for Thomas to claim
his sister as his dependent, (2) with a detective present, the prosecutor raised this
issue with Thomas and his attorney just before Thomas testified in the grand jury,
and (3) the immunity from prosecution that Thomas was granted did not protect
him from prosecution for tax fraud. This was enough of a factual predicate for the
defense to question Thomas about whether his fear of being prosecuted for tax
34 Garibay, 72 A.3d at 139. 35 Scull, 564 A.2d at 1164. 25
fraud (or having his probation revoked on account of it, or even having to face a
civil tax inquiry) gave him a motive to curry favor with the prosecutor that colored
and influenced his testimony at trial adversely to Moore.36 Exposure of this
motive, appellant suggests, would have helped explain why Thomas continued to
“stand by his initial fabrication” even after he succeeded in avoiding the revocation
of his probation on account of his failure to make restitution.37
Accordingly, to the extent the trial court precluded the proposed cross-
examination of Thomas because it considered Moore‟s factual proffer inadequate,
or the subject matter not probative of Thomas‟s veracity or bias, we conclude that
the court erred.
The trial court was concerned that the cross-examination might be confusing
and distracting to the jury, but it did not find that this danger so substantially
outweighed the probative value of the proffered cross-examination as to warrant a
36 See id. at 1165 (“In evaluating the possibility of bias in adverse testimony, the objective likelihood of prosecution and the subjective intent of the government to prosecute are irrelevant; rather, the witness‟ subjective belief in the possibility of prosecution is central, since it is this belief that can produce bias.”). 37 Brief for Appellant at 24. 26
total preclusion of the questioning under Rule 403.38 The record, in our view,
would not have supported such a finding. Straightforward questioning focused on
whether Thomas made a knowing misrepresentation on his tax return, and on his
discussion with the prosecutor concerning the propriety of his return, would not
necessarily have posed a substantial risk of confusion, and there was no genuine
dispute between the parties as to the material requirements of federal tax law. The
court therefore could have addressed its legitimate concerns by such measures as
requiring a preliminary voir dire of Thomas, imposing reasonable limits on the
scope and character of his questioning, and properly instructing the jury on its
consideration of his testimony.39 “The court would, of course, have had ample
authority and discretion to control the cross-examination to protect [Thomas] from
harassment and to keep the questioning relevant and within reasonable bounds.”40
38 See Johnson v. United States, 683 A.2d 1087, 1099 (D.C. 1996) (en banc) (adopting Federal Rule of Evidence 403). 39 See, e.g., Roundtree v. United States, 581 A.2d at 323 (explaining that even where a defendant has made a sufficient factual proffer to justify cross- examination into a witness‟s prior bad acts or bias, the trial court still has “wide latitude to „impose reasonable limits‟ on cross-examination „based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness‟ safety, or interrogation that is repetitive or only marginally relevant.‟”) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)); Scull, 564 A.2d at 1165 (“Any potentiality of confusion to the jury may be eliminated by proper instructions.”). 40 Garibay, 72 A.3d at 139. 27
B.
At least insofar as the defense was prevented from attempting to impeach
Thomas‟s veracity with his putatively dishonest tax filing, we are not convinced
that the erroneous ruling was harmless.41 We address this issue applying “the
customary harmless error standard” for non-constitutional error.42 Under that
standard, the burden is on the government to persuade us that “the judgment was
not substantially swayed by the error,” meaning it is “highly probable” the error
did not affect the jury‟s verdict.43 If the question of harmlessness is close enough
41 Were the record sparser than it is, we might consider remanding for the trial court to conduct a limited voir dire of Thomas in order to ascertain whether cross-examination actually would have borne out the suspicion that he dishonestly claimed his sister as his dependent. See Shorter v. United States, 792 A.2d 228, 236 (D.C. 2001) (holding that where trial court erred in preventing defendant from examining complainant about a prior allegation of sexual abuse, a remand was appropriate for the court to conduct a limited voir dire of the complainant in order to determine whether the allegation was in fact false); Garibay, 72 A.3d at 140 (same). If not, then we might find it easy to deem the error harmless. However, because we have discerned that Thomas‟s tax return reveals on its face an apparent material misrepresentation (the denial that anyone else, i.e., his mother, could have claimed his sister as a qualifying child), we do not consider such a step necessary or appropriate here. The existence of that apparent misrepresentation is sufficient by itself to establish that the requested cross-examination might have been successful in demonstrating Thomas‟s dishonesty to the jury. 42 Bennett v. United States, 763 A.2d 1117, 1125 & n.10 (D.C. 2000). 43 In re L.C., 92 A.3d 290, 299-300 (D.C. 2014) (quoting Kotteakos v. United States, 328 U.S. 750, 764 (1946)). 28
that the court finds itself “in virtual equipoise …, the court should treat the error …
as if it affected the verdict.”44
Harmlessness is a close question here, as the government‟s case against
Moore was not a weak one, but it did depend crucially on the testimony and
credibility of Thomas. Although Bolton also testified that Moore robbed Thomas,
Bolton simply was not a credible accuser. To be sure, Thomas‟s account of the
robbery was corroborated, and not just by Bolton; the jury readily could have
found that Thomas was corroborated not only by the physical evidence found on
Moore and at the scene of the alleged robbery, but as well by Moore‟s own
statements in his recorded phone call to Tracy. But Thomas also was contradicted
or inconsistent on important matters, including the source of his allegedly stolen
money, whether he actually won or lost money gambling with Little Tey, and the
color of the gun Moore allegedly used to rob him. Moreover, Thomas was
impeached with his past convictions, which included one for conspiracy to commit
credit card fraud, and the jury was informed that at the time of trial he had pending
charges for credit card theft and fraud. Impeachment of Thomas‟s truthfulness by
showing that he had defrauded the federal government with his tax return could
44 Hinton v. United States, 979 A.2d 663, 691 (D.C. 2009) (en banc) (quoting Fry v. Pliler, 551 U.S. 112, 121 n.3 (2007)). 29
have supported the defense theory that Thomas lied about the robbery to get money
to pay his debts; it was plausible Thomas knew Moore had a large amount of cash
on him (perhaps because they both had been at Little Tey‟s and Moore had been
gambling too). As Moore argues on appeal, the additional impeachment, if
successful,45 would have impeded the prosecutor from arguing to the jury that
Thomas was an honest witness who had told only “one lie” and who was not
manipulative enough to concoct a false story about having been robbed. In this
vigorously litigated and argued case, the additional reason to be skeptical of
Thomas might have been enough to tip the balance for the jury and cause it to
entertain a reasonable doubt of Moore‟s guilt.46
As we cannot deem the error harmless, we must reverse Moore‟s convictions
and remand his case for a new trial.47
45 In evaluating harmlessness we must “assum[e] that the damaging potential of the cross-examination [would have been] fully realized.” Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)). 46 As we are unable to conclude that the error in preventing Moore from attempting to impeach Thomas‟s veracity with his tax return was harmless, we find it unnecessary to consider whether the exclusion of the proposed bias cross- examination was harmless as well. 47 The government argues that reversal of Moore‟s convictions for unlawful possession of a firearm and carrying a pistol without a license would be unwarranted in any event, because the police testimony provided “compelling, (continued…) 30
So ordered.
PRYOR, Senior Judge, dissenting: This case presents evidentiary questions
involving an application of long-standing trial concepts. The details of the alleged,
armed robbery have been fully set forth in the majority opinion. At trial the
primary testimony of the complaining witness, as well as, the cross-examination of
him informed the jury of the context of gambling and drugs, which surrounded the
incident. The judge declined to allow cross-examination of the complainant on the
subject of his recent tax return for the purpose of testing his truthfulness and
veracity. The primary issues in this appeal stem from that ruling.
While the jury‟s primary role at trial is to be the factfinder, the settled case
law allows the cross-examiner to test the truthfulness and bias of the witness by
engaging the person on collateral subjects. The trial judge, in an effort to strike a
balance between evaluating credibility and relevance to the ultimate question, is
(continued…) independent evidence” of Moore‟s guilt on those charges. We do not agree. An officer testified to having seen someone toss a gun out the rear passenger window of Kent‟s SUV, next to which Moore was sitting, and a gun was found in the area. But if the jury had been persuaded to doubt Thomas‟s testimony that Moore had a gun and used it to rob him moments earlier, we think the jury reasonably might have hesitated to convict Moore of the weapons charges based on what remained of the government‟s case. 31
authorized to use discretion in imposing limits on such cross-examination.
Although cross-examination was permitted as to some collateral behavior of the
witness, it was precluded entirely as to tax questions. The judge concluded that
such questioning could only lead to jury speculation and also raise questions of
self-incrimination of the witness. In resolving this issue, I am mindful of the
Federal Rules of Evidence, Rule 403, which provides:
The court may exclude relevant evidence if its probative value is substantially outweighed by the danger of one or more of the following: unfair prejudice, confusing issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Bearing in mind Rule 403 and the exercise of discretion entrusted to the trial
judge, I conclude there was no error on this question. But understanding that
appellant‟s primary defense was to challenge the complainant‟s veracity, it would
appear that even if the exclusion of questions bearing on taxes was error, it was
harmless error. Thus the error must have had a substantial effect on the verdict.
Kotteakos v. United States, 328 U.S. 750 (1946); see also Bennett v. United States,
763 A.2d 1117 (D.C. 2000) (This kind of error to be evaluated under Kotteakos).
Lastly, I would clearly affirm the firearm violation.