United States v. Melton

27 F. App'x 664
Court of Appeals for the Seventh Circuit·Decided December 11, 2001·No. No. 00-3051·Published

Opinion

ORDER

Jeremy Melton was convicted of theft of firearms and conspiracy to commit arson, steal firearms, and possess stolen firearms. He appeals his convictions, arguing that the district court erred in excluding evidence that a government witness had failed a polygraph examination regarding that witness’s involvement in the firearms theft, and also in excluding testimony regarding another individual’s alleged confession. We find no error in the district court’s exclusion of this evidence and therefore affirm Melton’s convictions.

I. BACKGROUND

Jeremy Lemke, a friend of defendant Jeremy Melton’s, devised a scheme to break into and steal guns from Bob’s Trading Post, a federally-licensed firearms dealer. Melton agreed to help with the break-in and theft, and Lemke’s brother, Christopher, agreed to create a diversion by setting fire to another local business. Jeremy Lemke also recruited Juvenal Le-mus to participate, but on the day the burglary was to occur, Lemus could not be reached. The plan went forward without Lemus, with Melton and Jeremy Lemke breaking into and stealing 14 guns from Bob’s while Christopher Lemke set fire to the other targeted business.

During its investigation of the burglary, Treasury Department agents interviewed Lemus, who initially denied any knowledge of or involvement in the scheme. He submitted to a polygraph examination, during which he responded “no” to the following three questions:

Did you plan with anyone to steal any of those weapons?
Did you yourself steal any of those weapons?
Do you know for sure who stole any of those weapons?

[666] The polygraph examiner reported that “[biased upon the physiological reactions of Juvenal Lemus, he was attempting deception in his answers to the above relevant questions.” Agent Steve Smith told Lemus’s attorney that Lemus had lied on all three questions, and Lemus then agreed to cooperate. Christopher and Jeremy Lemke ultimately confessed and agreed to cooperate with the government.

Lemus and both Lemkes testified for the government about Melton’s participation in the scheme. A jury convicted Melton of theft of firearms in violation of 18 U.S.C. § 922(u) and conspiracy to commit arson, steal firearms, and possess stolen firearms in violation of 18 U.S.C. § 371.

II. ANALYSIS

A. Exclusion of Polygraph Evidence

At trial, the district court ruled that Melton could not question Agent Smith and Lemus about the results of Lemus’s polygraph examination. Melton’s theory was that Lemus and another individual, Cory Cusak, had actually participated in the theft of firearms with the Lemke brothers. Evidence that Lemus lied on the polygraph-particularly in response to the second question about whether he had stolen any of the guns-was relevant, according to Melton, both to the issue of Lemus’s credibility and to discredit the government’s theory that Lemus was not involved in the burglary. Melton claims that the court’s limitation of his cross-examinations of Agent Smith and Lemus violated his Sixth Amendment right to confront witnesses against him. We generally review a court’s limitation of cross-examination, including its decision whether to exclude cross-examination about polygraph examinations, for abuse of discretion, United States v. Robbins, 197 F.3d 829, 844 (7th Cir.1999), but if the limitation directly implicates the defendant’s Sixth Amendment right to confront witnesses against him, we review the limitation de novo. Id.; United States v. Cavender, 228 F.3d 792, 798 (7th Cir.2000); see United States v. Nelson, 39 F.3d 705, 708 (7th Cir.1994).

In exercising its discretion in determining whether to admit polygraph evidence, “the trial court must engage in a delicate balancing of many factors including probative value, prejudicial effect, confusion of the issues, misleading the jury, and undue delay.” United States v. Olson, 978 F.2d 1472, 1480 (7th Cir.1992); Robbins, 197 F.3d at 844. Here, the district court allowed Melton to cross-examine Le-mus about his responses to the polygraph questions and to establish that Lemus decided to cooperate after Agent Smith communicated to him his belief that Lemus had lied in response to those questions. The only effect of the district court’s limitation was that Melton was prevented from questioning witnesses about the polygraph examiner’s opinion that Lemus was “attempting deception” in response to the three questions posed during the examination. But we agree with the district court that the polygraph examiner’s conclusion that Lemus “was attempting deception” in his responses does not establish that Le-mus’s response to any particular question was indeed false. Melton offered no expert testimony (through the examiner or otherwise) establishing the reliability of the test or supporting his interpretation of the examiner’s conclusion, and therefore the court was entitled to conclude that the report did not provide a sufficient basis for inferring that Lemus lied in response to the second question or actually committed the theft. See United States v. Lea, 249 F.3d 632, 640 (7th Cir.2001); United States v. Pulido, 69 F.3d 192, 204 (7th Cir.1995). The district court was therefore within its [667] discretion in barring cross-examination about the polygraph test or its results.

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United States v. Melton, 27 F. App'x 664 (7th Cir. 2001).

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