United States v. Robinson

583 F.3d 1265, 2009 U.S. App. LEXIS 22965, 2009 WL 3358158
Court of Appeals for the Tenth Circuit·Decided October 20, 2009·No. 08-3120·Published·Cited by 38 cases

Opinions

LUCERO, Circuit Judge.

David Earl Robinson was charged with being a felon in possession of a firearm after selling a gun to a confidential informant (“Cl”). Six days before Robinson’s trial, the government’s star witness — the Cl who purchased the gun from Robinson — was involuntarily committed to a mental health facility. The district court reviewed the Cl’s medical files in camera but refused defense counsel access to them. It also precluded defense counsel from asking the Cl any questions about his mental health history or his use of prescription medications. Robinson was subsequently convicted of violating of 18 U.S.C. § § 922(g)(1) and 924(a)(2) and sentenced to 33 months’ imprisonment.

We must decide if the district court’s refusal to provide Robinson access to the Cl’s medical records contravened due process and whether the court’s limitations on cross-examination of the Cl violated the Sixth Amendment. We answer both questions in the affirmative.

Because of the restrictions imposed by the district court, the jury saw an incomplete and inaccurate picture of the Cl’s credibility. From the jury’s perspective, the Cl had only “a little bit” of a drug problem and was not “regularly” violating his agreement with the ATF by using drugs. By that version of events, the Cl had largely reformed himself after becoming an ATF informant. Further, although the Cl had trouble remembering various details about the events in question, he testified that the only reason for his memory loss was that two years had elapsed by the time of trial. Nothing in the testimony the jury heard suggested that the Cl had a reduced capacity to observe or narrate.

Had defense counsel been permitted to view the medical records and conduct a proper cross-examination, the jury would have seen a different picture. It would have learned that the Cl had been a heavy drug user since 2000 and had recently been abusing alcohol, cannibis, opioids, benzodiazepine, Valium, Klonopin, Darvocet, and Hydrocodone. The medical records contain admissions by the Cl that he had smoked a half-pound of marijuana in a single day shortly before trial and that he had been smoking up to a pound of marijuana per week. The jury would also have heard that the Cl had a “long history of mental illness” starting in 2000, which included auditory hallucinations, seeing “things out through the window that are not really there,” and “hearing voices telling him to do thing[s].” If the jury had been aware of this information, it may well have rejected the Cl’s testimony, without which Robinson could not have been convicted.

Exercising jurisdiction under 28 U.S.C. § 1291, we reverse and remand.

I

A

After receiving a tip from a Cl, agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) came to suspect a man named “PJ” of illegally possessing a pistol. An ATF agent requested that the Cl attempt to purchase the gun. When the Cl attempted to do so, however, he learned that PJ had already transferred the gun to Robinson, with whom the Cl was also acquainted. Suspecting the hand[1268]*1268gun to be evidence of illegal activity, the ATF sought to arrange a “controlled buy” from Robinson.

After the Cl set up the purchase, he and an ATF agent drove to Robinson’s home. Before beginning the encounter, the agent searched the Cl for contraband and placed a small audio recording device in his pocket. The Cl then approached Robinson’s home and an adult male, whom the agent could not identify, opened the door to allow the Cl inside. After approximately one minute, the Cl returned to the agent’s car with a handgun. The agent took the handgun, gave the Cl cash, and sent him back inside to pay for the gun. Reentering Robinson’s home, the Cl dropped off the cash and returned to the agent’s car.

Following the purchase, the Cl confirmed, using a photographic lineup, that Robinson was the person from whom he purchased the gun. Robinson, a previously convicted felon, was subsequently indicted for possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).

B

Shortly before Robinson’s trial, the government disclosed that the Cl had been involuntarily committed to Osawatomie State Hospital by his mother, who thought him to be suicidal. The government reported that the Cl would be released in time to testify. Robinson’s counsel then filed a motion requesting the district court to issue a subpoena for the Cl’s mental health records. The district court granted the motion but ordered the Cl’s records to be transmitted directly to the court. In the meantime, the government filed a motion in limine to preclude Robinson’s counsel from inquiring into the Cl’s mental health at trial.

Prior to argument on the motion, at an ex parte, in camera hearing, the court spoke with a psychiatrist at Osawatomie. The psychiatrist relayed his diagnosis of the Cl’s mental status and stated that in his opinion the Cl would be able to testify truthfully. Later, at the in limine hearing, the court ruled, “I am going to ... grant the Government’s motion in limine to preclude [cross-examination on the Cl’s mental condition]. However, I may take it under ... consideration at a later time because the [Cl’s medical] records will be presented to the Court.” It also informed the parties that the Cl had been diagnosed with “poly-substance abuse, mood disorder with an Axis II, temporary, for anti-social traits.”

The next day, the court heard additional arguments regarding the subpoena and the motion in limine. Voicing concern that the Cl’s mental health issues could be used in a “scurrilous effort to discredit” the Cl, the court reaffirmed its previous ruling, concluding the Cl’s mental condition was not material. It suggested that if defense counsel were permitted to question the Cl about his recent treatment, the jury could infer that “there may be something seriously wrong with [the Cl] .... [a]nd for that reason, they’re not going to believe him.”

Robinson’s counsel objected to the court’s ruling, citing United States v. Lindstrom, 698 F.2d 1154 (11th Cir.1988), which held that a district court contravened the Confrontation Clause by narrowly limiting cross-examination as to a witness’s psychiatric history. See id. at 1159-64. The court took Robinson’s cited case law under consideration but did not alter its ruling. Defense counsel also sought a stay pending receipt of the Cl’s medical records, which the court had not yet obtained, but that request was denied.

C

The government’s first witness at trial was the ATF agent who had arranged the controlled buy. He described the process of recruiting and retaining the Cl and [1269]*1269recounted the events surrounding the gun purchase. Next, the government introduced an audio recording captured by the device the Cl carried in his pocket. It was low-quality, interspersed with static, and revealed few details of the events that took place inside Robinson’s home. Despite its limited evidentiary value, the recording does reveal that when the Cl entered Robinson’s home for the second time to drop off the cash, he called out Robinson’s name twice and referred to the handgun’s missing serial number.

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United States v. Robinson, 583 F.3d 1265, 2009 U.S. App. LEXIS 22965, 2009 WL 3358158 (10th Cir. 2009).

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