United States v. Richard B. Lankford

955 F.2d 1545, 35 Fed. R. Serv. 245, 70 A.F.T.R.2d (RIA) 5087, 1992 U.S. App. LEXIS 5256, 1992 WL 43131

• Court: Court of Appeals for the Eleventh Circuit
• Decided: March 25, 1992
• Docket: 90-8583
• Status: Published

Opinions

FAY, Circuit Judge:

This case presents two questions concerning the district court’s exclusion of evidence in a criminal prosecution. Defendant-Appellant Richard B. Lankford was convicted on two counts of extortion and two counts of filing false income tax returns. During defense, counsel’s cross-examination of the government’s chief witness against Lankford, the district court precluded a line of questioning by defense counsel purporting to show motive for false testimony on behalf of the government witness. In addition, the district court excluded expert testimony offered by the defense to show that Lankford might reasonably have believed that a $1500.00 check he received was a gift and therefore not taxable income. For the reasons that follow, we disagree with the exclusion of evidence in both instances.

I. Procedural History

Richard Lankford was indicted on October 5, 1989 on twenty-one counts of extortion and two counts of extortion under color of official right, in violation of the Hobbs Act, 18 U.S.C. § 1951. In addition, the indictment alleged four counts of willfully filing and subscribing false income tax returns, in violation of 26 U.S.C. § 7206(1). On March 28, 1990, a jury convicted Lankford on two counts of extortion and on two counts for filing false income tax returns. The jury acquitted Lankford on one count of attempted extortion and failed to reach a verdict on the remaining counts. A post-verdict motion for acquittal or a new trial was denied on April 20, 1990, and on June 4, 1990 Lankford filed a timely notice of appeal.

II. Factual History

A. Extortion Charges

Richard Lankford served as the Sheriff of Fulton County, Georgia from January 1985¹ until he was convicted in the district court in 1990. The extortion charges against Sheriff Lankford involve a series of payments Lankford allegedly received from Jack LeCroy from 1985 through 1988. Le-Croy owns -a majority interest in the catering company, L & G Catering (“L & G”), that received a contract to provide food services to the Fulton County Jail.² Le-Croy testified that he believed Sheriff Lankford had awarded L & G the contract and that Lankford had the power to renew or to cancel the contract.

During the years in which L & G operated at the Fulton County Jail, LeCroy testified³ that Sheriff Lankford periodically asked him for money. While Lankford never threatened to terminate L & G’s contract with the county, LeCroy testified that he paid Lankford because he was afraid of losing his contract. Evidence was presented that Lankford solicited and received payments ranging in amount from $230 to $2000, with most payments being close to $1000.⁴

B. Income Tax Charges

One of the charges for filing false income tax returns was based upon a $1500 payment received by Lankford in 1984. Lankford resigned his position with the Fulton County Sheriffs office in 1984 in order to run for Sheriff in the November 1984 election. Evidence was presented that a sergeant at the Fulton County Jail solicited an inmate, Wesley Merritt, for a contribution to Lankford’s campaign.⁵ Merritt testified that he contacted his niece, Sandra Hudson, who was the manager of a liquor store, and requested that she write a check for $1500 from the store account. Hudson testified that an individual claiming to be Richard Lankford came to the liquor store to pick up the check, and requested that it be made out to his wife, Jacqueline. Hudson made out the check accordingly, but did not indicate on the check that it was intended as a campaign contribution. Lankford testified that he never picked up the check from the liquor store, but that he received the check from campaign workers who indicated it was a gift, to help his family meet expenses while he was unemployed.

III. Discussion

A. Cross-Examination of LeCroy

A district court’s evidentiary rulings may only be disturbed on appeal where there appears a clear abuse of discretion. United States v. Rodriguez, 917 F.2d 1286, 1289 n. 6 (11th Cir.1990). Further, this circuit has held that the trial court has broad discretion under Federal Rule of Evidence 611(b) to determine the permissible scope of cross-examination. United States v. Jones, 913 F.2d 1552, 1564 (11th Cir.1990) (citing United States v. Bent, 707 F.2d 1190, 1194 (11th Cir.1983), cert. denied, 466 U.S. 960, 104 S.Ct. 2174, 80 L.Ed.2d 557 (1984)).

The district court’s discretion in limiting the scope of cross-examination is subject, however, to the requirements of the Sixth Amendment. Greene v. Wainwright, 634 F.2d 272, 275 (5th Cir.1981);⁶ United States v. Williams, 592 F.2d 1277, 1281 (5th Cir.1979); United States v. Crumley, 565 F.2d 945, 949 (5th Cir.1978). The right of confrontation guaranteed by the Sixth Amendment includes the right of cross-examination. Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1109, 39 L.Ed.2d 347 (1974). Cross-examination has traditionally been allowed for the purpose of impeaching or discrediting the witness. Id. at 316, 94 S.Ct. at 1110. In particular, the exposure of a witness’ motivation in testifying has been labelled by the Supreme Court as an important function of the Sixth Amendment right to cross-examination. Id. at 316-17, 94 S.Ct. at 1110-11; United States v. Calle, 822 F.2d 1016, 1020 (11th Cir.1987); United States v. Andrews, 765 F.2d 1491, 1501 (11th Cir.1985), cert. denied, 474 U.S. 1064, 106 S.Ct. 815, 88 L.Ed.2d 789 (1986); Jenkins v. Wainwright, 763 F.2d 1390, 1392 (11th Cir.1985), cert. denied, 476 U.S. 1164, 106 S.Ct. 2290, 90 L.Ed.2d 730 (1986).

“This court has long recognized the particular importance of searching cross-examination of witnesses who have substantial incentive to cooperate with the proseeution.” Jenkins, 763 F.2d at 1392 (citations omitted). The importance of such cross-examination does not depend upon whether or not some deal in fact exists between the witness and the government. Greene, 634 F.2d at 276.

What counts is whether the witness may be shading his testimony in an effort to please the prosecution. “A desire to cooperate may be formed beneath the conscious level, in a manner not apparent even to the witness, but such a subtle desire to assist the state nevertheless may cloud perception.”

Id. (quoting Burr v. Sullivan, 618 F.2d 583, 587 (9th Cir.1980)). And further, where the witness sought to be cross-examined is the government’s “star” witness, “ ‘providing an essential link in the prosecution’s case, the importance of full cross-examination to disclose possible bias is necessarily increased.’ ” Id. at 275 (quoting United States v. Summers, 598 F.2d 450, 460 (1979)); see also Calle, 822 F.2d at 1020; Haber v. Wainwright, 756 F.2d 1520, 1522 (11th Cir.1985).

Therefore, while the discretion of the district court in ruling on the admissibility of evidence is entitled to a great deal of deference by this court, this discretion is somewhat narrower where the district court limits a defendant’s right to cross-examine witnesses against him. See United States v. Beale, 921 F.2d 1412, 1424 (11th Cir.1991) (“Subject to the Sixth Amendment, the district court has the discretionary authority to limit cross-examination.” (emphasis added)). Unless the defendant has been permitted sufficient cross-examinatipn to allow a jury to adequately assess the witness’ credibility, the district court’s limitation of cross-examination will be in’ error. Id.

The district court here limited Lank-ford’s cross-examination of the chief government witness against him, Jack. LeCroy. Lankford sought to elicit from LeCroy, as evidence of a possible motive for LeCroy’s cooperation with the prosecution, the fact that LeCroy’s sons had been arrested by state authorities for the sale of twenty pounds of marijuana.⁷ The district court refused to allow cross-examination concerning the drug arrests, concluding that it was too prejudicial. In addition, the district court questioned the likelihood that LeCroy had reason to fear a federal investigation of the state charges against his sons. We cannot agree.

Notwithstanding the fact that LeCroy had made no deal with the government concerning a federal investigation into his sons’ marijuana arrest, his desire to cooperate may have in fact been motivated by an effort to prevent such an investigation.⁸ We cannot imagine a much stronger motive for testifying on behalf of the government than the desire to protect one’s children. A reasonable juror could have concluded that LeCroy’s testimony was the result of his desire to protect his sons and to obtain federal assistance ip avoiding a subsequent federal prosecution against them. In addition, a reasonable juror could conclude that LeCroy might even have hoped that should things go “well” for the government in the Lankford case, he could later solicit help from the federal government in his sons’ state case. The probative value of such strong evidence of possible motive outweighs any possible prejudice to LeCroy. While the jury may not have believed that LeCroy was motivated by fear of a subsequent federal investigation of his sons’ affairs, the fact of the state arrest and the fact of a possible federal investigation were crucial to the jury’s assessment of LeCroy’s credibility.⁹ Accordingly, the exclusion of this evidence erroneously limited Lank-ford’s right, guaranteed by the Sixth Amendment, to cross-examine LeCroy for possible motive or bias.¹⁰

B. Expert Witness

In determining whether the district court erred in excluding testimony by an expert witness, we will only reverse where there is a clear abuse of discretion. See Rodriguez, 917 F.2d at 1289 n. 6. We note, however, that “where the element of willfulness is critical to the defense, the defendant is entitled to wide latitude in the introduction of evidence tending to show lack of intent.” United States v. Garber, 607 F.2d 92, 99 (5th Cir.1979) (en banc). Here, the district court determined that the tax expert Offered by the defense could not testify concerning the reasonableness of Lankford’s conclusion that the $1500 check he received was a gift rather than taxable income. Again, we cannot agree.

The Supreme Court has recently determined that a subjective “good-faith misunderstanding of the law or a good-faith belief that one is not violating the law” can negate the statutory willfulness requirement of' criminal tax' offenses. Cheek v. United States, — U.S. —, 111 S.Ct. 604, 609-11, 112 L.Ed.2d 617 (1991).¹¹ Such a question of whether a defendant believed in' good faith .that he was not violating the tax law is for the jury.¹² See id. 111 S.Ct. at 611. Here, the statute under which Lankford was convicted requires willfulness on the part of the individual who files a false tax return.¹³ It remained for the jury, then, to determine whether Lankford willfully failed to report as income the $1500 check he received.'

Any evidence concerning the reasonableness of Lankford’s belief that the $1500 he received was a gift rather than taxable income is relevant to the determination of whether Lankford willfully violated the tax laws. The Supreme Court has recognized that “the more unreasonable the asserted beliefs or misunderstandings [of a defendant] are, the more likely the jury will consider them to be nothing more than simple disagreement with known legal duties imposed by the tax laws and will find that the Government has carried its burden' of proving knowledge.” Cheek, 111 S.Ct. at 611-12. It is thus highly probative for the defense to show that the defendant’s belief — whether or not mistaken — was reasonable; evidence of a belief’s reasonableness tends to negate a finding of willfulness and to support a.finding that the defendant’s belief was held in good faith.

At trial, Lankford testified that he .subjectively believed that the $1500 check he received was a gift and that gifts need not be reported as income. The defense also presented evidence revealing that Lankford was facing personal financial difficulties while he was running for office, that members of the community were aware of these difficulties, and that Lankford received cash and the $1500 check from campaign workers, together with an explanation that the money was being provided for his family in recognition of the financial difficulties that the campaign- had imposed on him and his family. Expert testimony of the reasonableness of Lankford’s belief would be highly relevant to the assessment of whether Lankford willfully violated the tax laws. Thus, the critical issue here is whether, under facts such as those presented to the jury, it is reasonable for a political candidate to treat certain monies received during a campaign as political contributions, while treating other monies as gifts donated to assist him with living expenses incurred during the campaign. Most jurors would simply lack the specialized knowledge, background, and experience needed to assess the reasonableness of the gift/income tax interpretations unique to a- candidate’s finances during a political campaign, particularly where the candidate must resign his existing position in order to run for office.¹⁴

The gift/income tax opinion of the defense’s expert witness could have had a powerful impact on the issue of Lankford’s willfulness, the critical element in Lank-ford’s defense to Count 24. Lankford testified that he believed the $1500 check was a gift that was not taxable; his expert’s testimony revealed that a legitimate and well-founded legal analysis would have supported the reasonableness of that belief. By disallowing expert testimony on the gift/income issue, the trial court deprived Lankford of evidence showing that his asserted state of mind was reasonable. Accordingly, we hold that the exclusion of expert testimony on this issue was error. See Garber, 607 F.2d at 99.

The trial court’s error was further compounded, however, because thé government was permitted to elicit an expert opinion from Lankford’s tax preparer, called as a witness by the government.¹⁵ That expert testimony was used to establish that the reasonable and proper course of conduct where “campaign contributions” have been used for personal expenses would have been to report that amount as income. On this issue, however, the defense was not permitted to offer the testimony of its expert, a certified public accountant, certified financial planner, and tax lawyer. This expert opinion was sought to show, among other things, that it would have been just as reasonable to treat the $1500 check as a gift.¹⁶ Because the government was allowed to offer expert testimony on the reasonable tax implications of a “campaign contribution,” but the defense was not, we hold that the exclusion of the defense’s expert testimony, submitted in rebuttal, was error. It is an abuse of discretion “to exclude the otherwise admissible opinion of a party’s expert on a critical issue, while allowing the opinion of his adversary’s expert on the same issue.” United States v. Sellers, 566 F.2d 884, 886 (4th Cir.1977); see also United States v. Parshall, 757 F.2d 211, 213-14 (8th Cir.1985); Breidor v. Sears, Roebuck & Co., 722 F.2d 1134, 1140-41 (3d Cir.1983).

C. Harmless Error

1. Cross-Examination of LeCroy

Having found that the district court erred in limiting the cross-examination of LeCroy, we must next determine whether that error was “harmless beyond a reasonable doubt.” See Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986). In making this determination, a “host of factors” are to be considered, including “the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on .material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” Id. Assuming, as we must, that the damaging potential of LeCroy’s cross-examination would have been fully realized, see id., we simply cannot conclude that the limitation of the defense’s cross-examination of Le-Croy was harmless beyond a reasonable doubt.

LeCroy’s testimony on the counts involved in this appeal appears to have been crucial to the government’s case. It was LeCroy’s testimony that contradicted Lank-ford’s account of the nature of the transaction involved in Counts 18 and 27. It is true that there was evidence other than LeCroy’s testimony that showed that Lank-ford had been wired $2,000 in Las Vegas, but that fact was never disputed by Lank-ford. Lankford simply argued that the payment from LeCroy was an unsolicited loan that was later paid back; LeCroy’s testimony was the only evidence presented to show that the payment was not a genuine loan but the result of extortion. Similarly, LeCroy’s testimony appears to have been the critical evidence used to convict Lankford of Count 20.¹⁷

Without LeCroy’s testimony, the strength of the government’s case against Lankford on the counts to which LeCroy testified is insufficient for this court to conclude that the district court’s limitation on cross-examination was harmless beyond a reasonable doubt. Indeed, in ruling upon a motion for bond and release pending appeal, the trial judge recognized as much: “LeCroy’s testimony is the heart of the government’s case. If the defense were able to impeach LeCroy successfully, the verdict in this action could very well have differed.” (R1:59 at 4).¹⁸

2. Expert Witness

Similarly, we simply cannot conclude that the district court’s exclusion of the defense expert’s testimony was harmless. Although Lankford did state that he believed the $1500 check did not need to be reported, the district court did not allow him to present evidence to the jury to explain why that belief would have been reasonable. The government, however, was allowed to pose a hypothetical question to a tax preparer concerning whether the proper course of conduct should have been to report the $1500 as income. Given the possible construction of the facts by the jury and given the defense’s inability to present expert testimony to rebut the expert opinion elicited by the government, we simply cannot conclude that the trial court’s error was harmless. The weight to be given to expert testimony is within the province of the jury. However, fairness demands that if experts are presented, the jury must receive a full presentation on both sides of an issue. We cannot predict or guess what a jury will do. But, the excluded testimony of the expert was extremely relevant to the reasonableness of Lankford’s decision to treat the $1500 as a gift and not report it as income. Given the critical importance of the reasonableness issue in the determination of willfulness, we find that the trial court’s error could have had a substantial impact on the outcome of the trial. If the jury had been permitted to consider the excluded testimony, the jury’s verdict may well have been different.

IV. Conclusion

For the reasons set forth above, we REVERSE the district court’s exclusion of cross-examination concerning the drug arrest of Jack LeCroy’s sons. In addition, we REVERSE the exclusion of expert testimony assessing the reasonableness of Richard Lankford’s conclusion that a $1500 check was a gift rather than taxable income, and REMAND for a new trial.¹⁹

1 . Prior to his election as Sheriff, Lankford served as a deputy in the Fulton County Sheriffs Department for nine years.

2 . L & G was awarded the one-year food service contract for the jail in the spring of 1985. Its contract with the county was renewed for two additional one-year periods, and it continued to provide food service thereafter on a month-to-month basis until November 1, 1989.

LeCroy testified that when the contract was first awarded in 1985, the inmate population at the jail was approximately 850 and that the population nearly tripled by November 1989.

3 . LeCroy testified before a grand jury and at trial under a grant of use immunity.

4 . LeCroy's testimony that he made payments to Lankford was supported by the testimony of LeCroy’s former bookkeeper, Doris Anderson, who testified that she cashed checks for LeCroy in the amounts he claimed he paid to Lankford. In addition, checks that were drawn on the L & G account were admitted into evidence.

5 . Merritt testified that he had no direct contact with Lankford concerning the campaign contribution.

6 . The Eleventh Circuit in Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981.

7 . The evidence elicited from LeCroy outside the presence of the jury revealed that LeCroy’s two sons had been arrested for possession with intent to distribute 20 pounds of marijuana. The arrests occurred at Papa’s Country Buffet, a restaurant operated by LeCroy and his sons. The record reveals that LeCroy’s sons had entered guilty pleas to the state charges and that they were on probation at the time of the Lank-ford trial.

We note that, although the arrests of LeCroy’s sons occurred at an establishment operated by LeCroy, there appears to be no evidence linking LeCroy to the offenses committed by his sons.

8 . It is common knowledge that "joint task forces” exist between state and federal governments in which they work together, cooperating and sharing information. Furthermore, in some instances, the state and federal governments decide together in which court or courts charges will be brought. In cases where charges have already been brought in state court, it is not unusual for charges to be refiled in federal court after law enforcement officials have deemed the results of the state proceedings to be less than satisfactory. State probation sentences provide excellent examples of those situations that have led to subsequent federal proceedings against defendants that had previously been tried in state courts. It is LeCroy’s possible fear that subsequent federal action might have been taken against his sons, together with his desire to protect them, that may have motivated LeCroy to testify for the government. Such a conclusion would be further supported by the fact that LeCroy’s cooperation with the government appears to have begun about the time when LeCroy was admittedly worried about his sons and the charges they were facing.

9 . Although the defense did have the opportunity to bring out the fact that LeCroy had been given use immunity to testify, thereby implicating Le-Croy’s possible motivation in seeking to protect himself from charges connected to Lankford, inquiry into the grant of use immunity would not have allowed the jury to assess LeCroy’s credibility to the same extent or in the same manner as evidence of the arrests of his sons. After all, while LeCroy’s testimony could not be used against him, LeCroy could still be prosecuted for the acts about which he was testifying. Moreover, while a reasonable jury could have concluded that LeCroy was not motivated by any desire to protect himself, it could simultaneously have concluded that LeCroy was testifying out of a desire to protect his sons. In fact, a jury could have concluded that LeCroy chose to undertake a risk of prosecution in order to assist and protect his sons.

10 . In addition, as further motive for LeCroy’s cooperation with the government, Lankford sought to establish that LeCroy feared investigation into losses he had claimed on recent tax returns. We agree with the district court’s exclusion of this line of questioning.

The evidence of LeCroy’s -tax reporting is distinguishable from the evidence concerning the drug arrest of LeCroy’s sons because any contention that LeCroy feared a tax investigation is highly speculative. There is simply no indication that LeCroy had any reason to fear investigation by the Internal Revenue Service. In fact, testimony outside the presence of the jury established that LeCroy had been audited in 1982 with no change made to his return. Without any foundation whatsoever to support a possible conclusion by the jury that LeCroy feared investigation by the IRS, admission of such evidence would be more prejudicial than probative.

"[T]he Sixth Amendment does not require unlimited inquiry into the potential bias of a witness.” United States v. DeParias, 805 F.2d 1447, 1452 (11th Cir.1986) (citing Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986); Alford v. United States, 282 U.S. 687, 694, 51 S.Ct. 218, 220, 75 L.Ed. 624 (1931)), cert. denied, 482 U.S. 916, 107 S.Ct. 3189, 96 L.Ed.2d 678 (1987). As long as sufficient information is elicited from the witness from which the jury can adequately assess possible motive or bias, the Sixth Amendment is satisfied. Id.; United States v. Burke, 738 F.2d 1225, 1227 (11th Cir.1984). Where, as here, a witness’ motive for testifying may be exposed through alternative lines of questioning, the district court's refusal to allow prejudicial inquiry into motive that is grounded in nothing more than speculation is not in error. Here, LeCroy's motivation to protect himself had been sufficiently explored through inquiry into the use immunity that the government had granted Le-Croy in order to obtain his testimony.

On the other hand, the district court permitted no inquiry into the other distinct motive that LeCroy may have had for testifying, that of protecting his sons. Inquiry into this motive was supported by the state arrest of LeCroy’s sons on drug charges. That arrest was a matter of record, and it served as a factual foundation for the possible conclusion by a jury that Le-Croy feared a federal investigation of the state charges.

11 . We note that the district court did not have the benefit of the Supreme Court’s recent discussion of this area of the law when it tried the case.

12 . In fact, in criminal tax cases involving willfulness, "forbidding the jury to consider evidence that might negate willfulness would raise a serious question under the Sixth Amendment’s jury trial provision.” Cheek v. United States, — U.S. —, 111 S.Ct. 604, 611, 112 L.Ed.2d 617 (1991).

13 . The applicable section declares that an individual will be guilty of a felony if he:

Willfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter....

26 U.S.C. § 7206(1) (emphasis added).

14 .Although the defense does not argue that the law establishing the gift/income distinction is legally vague, the categorization of items as either gifts or income is rarely a simple matter. In fact, experts in the field of taxation often hold differing, well-grounded positions with respect to whether specific items are to be classified as either gifts or income under the tax laws. These conflicts result from sophisticated applications of the tax laws to a myriad of scenarios that often differ only as to the rendition or interpretation of the facts underlying the disputed classification. In the context of a political campaign, the complexity in the application of the tax law is seen when a "campaign contribution” is not received directly from the donor and no expression of donative intent is made, thereby requiring the gift/income distinction to be made without any direct knowledge of the donor’s actual intent. That is, the available facts must be studied to determine whether the contribution was intended to personally assist the candidate during the course of his campaign or to assist the candidate’s political campaign and political goals.

15 . Although Lankford’s tax preparer was never qualified as an expert, he held an accounting degree and had been preparing tax returns for over twenty years. Moreover, the trial court allowed the prosecution to question him as if he had been qualified as an expert.

16 . The defense also sought to have its expert . testify, concerning the distinction between gifts and taxable income under the Internal Revenue Code. Because it is for the judge to explain the , law to the jury, we agree with the district court’s refusal to allow such testimony.

17 . Although Henry Wilson testified that he witnessed Lankford receiving something green from LeCroy in the hallway of the old Fulton County Jail, Wilson’s relationship to- the Le-Croys and his strong sense of loyalty to them makes his testimony insufficient to convince us that the trial court's error was harmless beyond a reasonable doubt.

18 . We note again that Lankford was convicted on only four counts of the twenty-seven included in the indictment. The question of LeCroy’s credibility can hardly be overemphasized.

19 . The appellant raises two additional issues, alleging discrimination against prospective black jurors in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and asserting error in the district court’s answers to jury questions in the course of deliberations. Because we are remanding for a new trial, we need not reach these issues.