F I L E D United States Court of Appeals Tenth Circuit
SEP 4 1998 PUBLISH
UNITED STATES COURT OF APPEALS PATRICK FISHER Clerk TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-1320
CHRISTOPHER A. SMITH,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 96-CR-491-S)
Jenine Jensen, Assistant Federal Public Defender (Michael G. Katz, Federal Public Defender, with her on the brief), Denver, Colorado, for Defendant- Appellant.
Stacey Ross Goh, Assistant United States Attorney (Henry L. Solano, United States Attorney, with her on the brief), Denver, Colorado, for Plaintiff-Appellee.
Before HENRY , BARRETT , and BRISCOE , Circuit Judges.
HENRY , Circuit Judge.
A grand jury charged Defendant Christopher Smith with the following
offenses: 1) interference with commerce by threats or violence, in violation of the Hobbs Act, 18 U.S.C. § 1951; and 2) theft from a federally licensed firearms
dealer, in violation of 18 U.S.C. § 922(u). A jury found him guilty on both
counts. Mr. Smith contends that the district court erred in the following respects:
1) allowing introduction of eyewitness identifications in violation of his due
process rights; 2) excluding the testimony of his expert witness; 3) allowing the
government to cross-examine one of his witnesses regarding her prior drug use;
4) denying his motion for judgment of acquittal on the Hobbs Act count; and 5)
ordering restitution in an amount greater than the loss he caused. We affirm in
part, reverse in part, and remand with instructions.
I. STATEMENT OF THE CASE
A. Factual Background
On the evening of January 15, 1996, two men entered a sporting goods
store in Colorado Springs. They walked up to the gun counter, and one of them
asked a sales associate if he could see two .45 caliber semiautomatic handguns
from the display case. The sales associate, Glen Dotson, cleared the two guns to
make sure they were unloaded. He then handed the man the guns, one at a time.
Once the man had the guns in his hands, he began to move down the counter.
Then he turned and ran out of the store. His companion ran also.
2 Mr. Dotson yelled for help as he chased the two men. Two employees,
Keith Stotts and George MacLarty joined the chase. The suspect 1 got into the
driver’s seat of a black Nissan 300ZX sports car. Although it was dusk or dark at
the time of the escape, the parking lot of the store was well-illuminated. Mr.
MacLarty testified that he saw the driver through the car window from about one
foot to one and a half feet away. Rec. vol. V at 233. As the getaway car lurched
out of the parking lot, Mr. Stotts and Mr. Dotson were in the car’s path. Mr.
Stotts testified that he got a good look at the driver through the windshield. Id.
vol. IV at 120. On its way out of the parking lot, the car struck Mr. Dotson and
broke his ankle. Mr. Dotson was unable to see the driver as the car was coming
toward him. Id. at 81. Another employee, Brian Cunico, happened to be in the
parking lot during the chase. He also testified that he saw the driver through the
windshield. Id. vol. V at 164.
After the men fled, the employees talked with one another about the
incident. Id. at 137-38. When a Colorado Springs police officer arrived, the
employees gave their statements to the officer in each others’ presence and then
discussed their statements with each other. Jennifer Sherman, who worked as a
cashier at the sporting goods store on the evening of the theft, testified that on
1 Although there were two perpetrators of the crime, this case concerns the identity of the man who took the guns. Thus, we shall refer to “the suspect” in the singular.
3 the night of the theft and the following day, store employees were discussing
their memories of the details of the suspect. She stated that at first, the
employees’ descriptions differed, but eventually everyone started agreeing as to
what he looked like. Id. vol. VII at 549.
The following day, Agent Scott Thomasson of the Bureau of Alcohol,
Tobacco and Firearms became involved with the case. Agent Thomasson
interviewed the six employees who were in the store at the time of the theft. A
couple days later, Agent Thomasson took Mr. Stotts and Mr. MacLarty to the
Sheriff’s Office to create computer composites of the suspect. He also took them
to a sketch artist, who used their input to create a sketch of the suspect.
Agent Thomasson enlarged the resulting sketch and made it into a
“wanted” poster. He took the poster to Doherty High School, the high school
nearest the scene of the theft, and he gave the poster to the school principal. A
teacher at Doherty thought he recognized the person in the sketch as a former
Doherty High School student, Mr. Christopher A. Smith. The principal then
obtained yearbooks containing Mr. Smith’s sophomore and junior yearbook
photos. In the sophomore photo, Mr. Smith was fifteen years old; in the junior
photo, he was sixteen. At the time of the theft he was nineteen years old, and at
trial he was twenty. Agent Thomasson requested a copy of the photo of Mr.
Smith in his junior year, and he also requested seven other photos from the same
4 yearbook.
Agent Thomasson took the eight photos to the sporting goods store;
however, he did not mount them to create a photo array. Instead, he laid the
photos onto the counter and asked Mr. Stotts if he could identify the suspect.
The names of the persons in the photos were not concealed. Thus, “Christopher
Smith” was printed on the bottom of Mr. Smith’s photo. After Mr. Stotts picked
the picture of Mr. Smith, Agent Thomasson indicated that Mr. Stotts had picked
the correct photo. Rec. vol. V at 146. Agent Thomasson had Mr. Stotts sign and
date the back of Mr. Smith’s photo.
Agent Thomasson then repeated this procedure with Mr. Cunico. Mr.
Cunico had attended Doherty High School, and he recognized Mr. Smith and one
other person as Doherty High students. When Mr. Cunico selected the picture of
Mr. Smith, Agent Thomasson had him sign and date the back of Mr. Smith’s
photo. A few days later, Agent Thomasson told Mr. Cunico that he had picked
the picture of the suspect. Id. at 178.
Agent Thomasson then showed the photographs to Mr. MacLarty. When
Mr. MacLarty picked Mr. Smith’s photo, Agent Thomasson had him sign and
date the back. Agent Thomasson “might have said, Nice job, or something like
that” after Mr. MacLarty picked Mr. Smith’s photo. Id. at 259.
Agent Thomasson also showed the photos to Kathy Walker, who was
5 working as a “greeter” at the sporting goods store on the evening of the theft.
She was able to see the suspect when he was at the gun counter. He came within
ten feet of her as he was running out of the store. Ms. Walker picked the photo
of Mr. Smith.
On the evening of the theft, Mr. Dotson had told police that he could not
identify the suspect. Approximately a week after the theft, Agent Thomasson
showed Mr. Dotson the photographs, but Mr. Dotson told him that he did not
recognize anyone. Agent Thomasson told Mr. Dotson to take his time and look at
the photographs. He then left Mr. Dotson alone in an office for about five
minutes. As with the other interviews, the photos were not mounted; they were
lying loose on a table. By this time, approximately three or four of Mr. Dotson’s
co-employees had signed and dated the back of Mr. Smith’s photo. Mr. Dotson
picked Mr. Smith’s photograph. When Agent Thomasson returned to the room,
he informed Mr. Dotson that everyone else had picked the picture of Mr. Smith
also.
On two occasions, Agent Thomasson interviewed Ms. Sherman. The first
interview took place within forty-eight hours of the theft. At that time, she told
him that she “absolutely could not identify” the suspect. Id. vol. VII at 550.
During the next couple of weeks, Agent Thomasson called Ms. Sherman five
times to ask if she could describe the suspect for a sketch artist. She told Agent
6 Thomasson that she “[did not] have enough to go by.” Id. at 551.
The second interview took place at the police station at around 9:00 or
9:30 p.m. At that interview, Agent Thomasson showed Ms. Sherman the photos.
She told him several times that she could not identify anyone. Eventually Mr.
Thomasson told her to guess. Agent Thomasson then removed the photos,
brought out a single mug shot of Mr. Smith, and told her this was “the guy that
other people had said did it . . . .” Id. at 555. He told her this was off the record,
and he asked her if she recognized the man in the mug shot. She testified that
she said something like, “I guess” because it was late and she wanted to go home.
Id. at 556.
B. Procedural History
Mr. Smith was charged with interference with commerce by threats or
violence, in violation of the Hobbs Act, 18 U.S.C. § 1951, and theft from a
federally licensed firearms dealer, in violation of 18 U.S.C. § 922(u). At Mr.
Smith’s first trial, the jury could not reach a unanimous verdict, and the judge
declared a mistrial. Subsequently, a grand jury returned an indictment charging
Mr. Smith with the same two counts. At his second trial, a jury convicted him on
both counts. The district court sentenced Mr. Smith to eighty-seven months’
imprisonment on both counts, to run concurrently. The court further ordered Mr.
7 Smith to pay $1,209.98 in restitution to the sporting goods store.
II. DISCUSSION
A. Did the identification procedures Agent Thomasson used violate Mr. Smith’s due process rights?
Mr. Smith argues that the procedures used by Agent Thomasson resulted in
unreliable pre-trial identifications, introduction of which violated his due process
rights. He also argues that these unreliable pre-trial identifications tainted the in-
court identifications. The government counters that the identification procedures
Agent Thomasson used were proper, and the identifications themselves were
reliable. The ultimate question of whether identification procedures violate a
defendant’s due process rights is a question of law, which we review de novo.
United States v. Sanchez , 24 F.3d 1259, 1262 (10th Cir. 1994).
When the constitutionality of a photo array is challenged under the Due
Process Clause, the court must engage in a two-pronged inquiry. First, we must
determine whether the photo array was impermissibly suggestive. If so, then we
must decide whether the identifications were nevertheless reliable considering the
totality of the circumstances. Id. at 1261-62. Courts may consider several
factors in determining whether a photo array is impermissibly suggestive,
including “the size of the array, the manner of its presentation by the officers,
8 and the details of the photographs themselves.” Id. at 1262.
1. Were the Photo Arrays Impermissibly Suggestive?
a. Size of the Array
Mr. Smith takes issue with the number of photographs Agent Thomasson
showed to each of the witnesses. Although Agent Thomasson testified that he
showed all eight photographs to each of the witnesses, some of the witnesses
testified otherwise. For example, Mr. Cunico testified that Agent Thomasson
showed him approximately six photos. Rec. vol. V at 167. Mr. Dotson testified
that he believed Agent Thomasson showed him four or five photos. Id. vol. IV at
90. We have stated that “the number of photographs in an array is not itself a
substantive factor, but instead is a factor that merely affects the weight given to
other alleged problems or irregularities in an array.” Sanchez , 24 F.3d at 1262.
Further, we have noted that “courts have held that a photo array with as few as
six pictures is not per se unconstitutional.” Id. However, we observed that six
photos is “a number sufficiently small to weigh heavily in the balance of factors
to be considered.” Id. at 1263. We turn, then, to the other factors to be
considered in deciding whether a photo array is impermissibly suggestive.
b. Manner of the Array’s Presentation
As to the second factor, Mr. Smith argues that the manner in which Agent
Thomasson presented the photos to the eyewitnesses was overly suggestive. First
9 of all, he argues that it was improper for Agent Thomasson to leave the names on
the photographs while showing them to some of the eyewitnesses. We think that
leaving the names on the photos was particularly problematic with respect to Mr.
Cunico. This is so because the pictures depicted students from a nearby high
school that Mr. Cunico had recently attended.
Secondly, Mr. Smith argues that it was improper for Agent Thomasson to
coach the witnesses. Several of the witnesses testified that after they picked Mr.
Smith’s photo, Agent Thomasson stated or implied that they had picked the
correct photo. He also had them sign and date the back of the photo, so that each
subsequent witness eventually saw the signatures of his or her co-employees on
the photo. Although we cannot condone the agent’s procedure in this respect, we
think it falls short of “coaching.”
However, we think the agent’s behavior bordered on coaching with respect
to two of the eyewitnesses. Agent Thomasson pressed Ms. Sherman and Mr.
Dotson to assume that the suspect’s picture appeared in the array. When Mr.
Dotson had difficulty picking the suspect, Agent Thomasson left him alone in the
room with loose photos, one of which had signatures on the back. Moreover, he
actually showed Ms. Sherman a mug shot of Mr. Smith and told her “off the
record” that Mr. Smith was the suspect.
c. Details of the Photographs
10 As to the third factor–the details of the photographs themselves–Mr. Smith
argues that Agent Thomasson should not have used a photo of him when he was
sixteen years old because he was nineteen years old at the time of his arrest. He
claims that the difference in his appearance from age sixteen to age nineteen is
significant. Mr. Stotts testified, however, that he did not think there was much of
a change in Mr. Smith’s appearance from the time of the photo to the time of
trial, when Mr. Smith was twenty. Although we recognize that the difference in
appearance from a sixteen-year-old to a nineteen-year-old may be significant, Mr.
Smith has not demonstrated that is so in this case.
After considering the above factors, we conclude that the photo arrays
shown to Mr. Cunico, Mr. Dotson, and Ms. Sherman were impermissibly
suggestive. As we noted above, Mr. Cunico testified that there were
approximately six photos in the array Agent Thomasson showed to him, and Mr.
Dotson testified that there were four or five. These are numbers sufficiently
small to weigh heavily in balancing the other factors.
As to Mr. Cunico, as we have discussed, the fact that the names were left
on the photos presented a problem because he had recently attended Doherty
High School. Furthermore, Mr. Cunico recognized at least two of the individuals
in the array as Doherty High students. As to Mr. Dotson and Ms. Sherman, as we
11 have discussed, Agent Thomasson pressed them to assume that the array
contained a photo of the suspect. We, therefore, must turn to the second prong,
i.e., whether, in view of the totality of the circumstances, the identifications were
nevertheless reliable. However, we need only determine whether Mr. Cunico’s
and Mr. Dotson’s identifications were reliable, since Ms. Sherman never made a
positive identification, and at trial she testified on behalf of the defense.
2. Were the Identifications Nevertheless Reliable?
The Supreme Court has enumerated five factors for courts to consider in
determining whether a pretrial identification is reliable:
the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.
Grubbs v. Hannigan , 982 F.2d 1483, 1490 (10th Cir. 1993) (quoting Neil v.
Biggers , 409 U.S. 188, 199-200 (1972)). These five factors “must be weighed
against the corruptive effect of a suggestive pre-trial identification procedure to
determine whether the identification testimony should have been suppressed.”
Id. The standard is whether there is a very substantial likelihood of
misidentification. Neil , 409 U.S. at 198. We turn now to a discussion of the five
factors. a. Opportunity to View
The government argues that each of the eyewitnesses viewed the suspect
12 anywhere from a few seconds to a few minutes at close range and that each of
these instances was long enough for the witnesses to retain a clear mental image
of the suspect. Mr. Cunico testified that he saw the driver through an untinted
windshield when the car was under a light post. He testified that he has 20/30
vision and that he was approximately 15 feet away from the car. Although Mr.
Dotson was unable to see the driver in the parking lot, he did have the
opportunity to view the suspect at close range when they were standing at the gun
counter. He testified that the suspect was a little over an arm’s length away from
him and that he was looking at the man’s face as he handed him the guns.
b. Degree of Attention
The government argues that based on the details the eyewitnesses recalled,
it is apparent that they paid close attention to the suspect. Mr. Smith concedes
that the degree of attention was probably high, but he argues that the witnesses
were more concerned with marking the getaway car than remembering the
suspect’s face. However, Mr. Dotson testified that he is more attentive with a
customer who is looking at firearms than he is with a customer who is looking at
other sporting goods.
c. Accuracy of Description
When the employees gave their statements to Agent Thomasson, they
almost all described the suspect as a white male, 5 feet 10 inches tall, 150
13 pounds, with hair between sandy blond and brown. Rec. vol. VI at 386. Mr.
Smith argues that the accuracy of the prior descriptions, however, was tainted by
the conversations and interviews that occurred shortly after the theft.
d. Level of Certainty
At trial, when counsel asked Mr. Cunico how sure he was when he picked
Mr. Smith’s photo, Mr. Cunico responded, “That’s the guy I remembered that
night.” Rec. vol. V at 182. Mr. Dotson, who was at first unable to identify the
suspect, eventually picked Mr. Smith’s picture. He testified that he “was real,
real sure” that he had identified the individual who took the guns from him. Id.
vol. IV at 91.
e. Time Between Crime and Confrontation
Mr. Smith concedes that the length of time between the theft and the
pretrial identification is not problematic.
We cannot say, weighing each of these factors, and balancing them against
the suggestiveness of some of Agent Thomasson’s procedures with respect to Mr.
Cunico and Mr. Dotson, that there is a very substantial likelihood of
misidentification. First of all, three other employees identified Mr. Smith. Thus,
Mr. Cunico’s and Mr. Dotson’s positive identifications were corroborated.
Moreover, both Mr. Cunico and Mr. Dotson had an opportunity to view the
14 suspect at fairly close range–Mr. Dotson in a well-lit store, and Mr. Cunico in a
well-lit parking lot. Mr. Dotson was particularly attentive to the suspect since he
was handling firearms. And both Mr. Cunico and Mr. Dotson were certain that
they had picked the photo of the man they saw on the evening of the theft.
Therefore, we hold that admission of the pre-trial identifications did not violate
Mr. Smith’s due process rights. In light of this holding, and since Mr. Smith’s
only ground for challenging the in-court identifications was the unreliability of
the pre-trial identifications, we likewise conclude there was no error in admitting
the in-court identifications.
B. Did the district court abuse its discretion in excluding Mr. Smith’s proffered expert testimony on eyewitness identification?
The defense proffered the testimony of Dr. Geoffrey Loftus, an expert on
the subject of eyewitness identification. The government filed a motion in
limine, seeking to exclude Dr. Loftus’s testimony. After a hearing, the district
court granted the government’s motion. We review the decision to exclude
expert testimony for an abuse of discretion. United States v. Call , 129 F.3d
1402, 1405 (10th Cir. 1997), cert. denied , 118 S. Ct. 2064 (1998).
According to Fed. R. Evid. 702,
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of
15 an opinion or otherwise.
Under Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579 (1993), a
district court faced with a proffer of expert testimony must first determine
whether it is reliable. Call , 129 F.3d at 1404. After determining that the
proffered testimony is reliable, the district court must then determine whether the
evidence will assist the trier of fact. Id.
During the defense’s proffer, Dr. Loftus testified extensively about various
factors that affect eyewitness identification and the circumstances that give rise
to inaccurate memories. For example, he testified that bright lights in a parking
lot at night, as well as window tinting, could affect the ability to see and
remember. Also, he testified that highly stressful events impair the ability to
remember. He further testified that a person’s confidence in his or her memory
does not necessarily correlate to the accuracy of that memory. He testified as to
“relation back,” whereby an initial identification can influence a later
identification. He testified about the “feedback factor,” whereby post-event
information may affect the accuracy of a memory. Finally, he testified about
“unconscious transference,” which allows someone to remember a face but not
the circumstances under which he or she saw the face.
“Until fairly recently, most, if not all, courts excluded expert psychological
testimony on the validity of eyewitness identification. But, there has been a trend
16 in recent years to allow such testimony under circumstances described as
‘narrow.’” United States v. Harris , 995 F.2d 532, 534 (4th Cir. 1993) (citations
omitted). “The narrow circumstances held sufficient to support the introduction
of expert testimony have varied but have included such problems as cross-racial
identification, identification after a long delay, identification after observation
under stress, and [such] psychological phenomena as the feedback factor and
unconscious transference.” Id. at 535. “Outside of such narrowly constrained
circumstances, jurors using common sense and their faculties of observation can
judge the credibility of an eyewitness identification, especially since deficiencies
or inconsistencies in an eyewitness’s testimony can be brought out with skillful
cross-examination.” Id.
In Harris , the defendant, on trial for robbery, challenged the district court’s
exclusion of expert testimony on the reliability of eyewitness identification. Id.
at 534. He argued that because the eyewitnesses discussed the robbery amongst
themselves, they could have reinforced each other’s misidentifications. Id. The
court noted that the defendant’s proffer included most of the common
justifications for admitting eyewitness identification expert testimony.
Nevertheless, the court concluded that “the facts simply do not support his
argument that the identification was suspect.” Id. at 535. The court rested this
conclusion on the fact that there was more than one identification. Thus, the jury
17 “could pick and choose from an evidentiary cornucopia.” Id. Accordingly, the
Fourth Circuit affirmed the district court’s exclusion of the expert testimony. Id.
at 536.
Several other circuits, pre- and post- Daubert , have affirmed the exclusion
of such testimony, while simultaneously eschewing a rule of per se
inadmissibility. See, e.g. , United States v. Rincon , 28 F.3d 921, 926 (9th Cir.
1994) (upholding the district court’s exclusion of expert eyewitness identification
testimony while noting that such a determination must be “based upon an
individualized inquiry”); United States v. Moore , 786 F.2d 1308, 1312 (5th Cir.
1986) (upholding the district court’s exclusion of eyewitness identification expert
testimony while recognizing that admission would be proper in some cases); see
also United States v. Downing , 753 F.2d 1224, 1226 (3rd Cir. 1985) (reversing
the district court’s exclusion of expert eyewitness identification testimony while
holding that the admission of such testimony is not automatic but conditional);
cf. United States v. Brown , 540 F.2d 1048, 1053-54 (10th Cir. 1976) (affirming
the district court’s exclusion of expert testimony regarding eyewitness
identification without discussing possibility of admission under other
circumstances).
It is clear to us from a review of the record that the district court
considered this matter in detail. The court conducted a lengthy Daubert hearing,
18 and it made extensive findings of fact and conclusions of law. The court did not
rely on a rule of per se inadmissibility. Indeed, it recognized that the trend is to
admit expert testimony on eyewitness identification under certain circumstances,
which should be examined on a case-by-case basis. The court found, however,
that in the instant case, the proffered testimony touches “on areas of common
knowledge.” Rec. vol. VIII at 680. Thus, it concluded that the testimony would
not assist the trier of fact.
The defendant urges us to adopt the Third Circuit’s approach in United
States v. Stevens , 935 F.2d 1380 (3rd Cir. 1991). In Stevens , the defendant
sought to introduce expert testimony concerning eyewitness identification. Id. at
1384. Both of the eyewitnesses to the crime “proclaimed that they were
exceedingly confident in their identifications of [the defendant].” Id. at 1400.
The expert would have testified about the lack of correlation between confidence
and accuracy in eyewitness identifications. Id. The district court excluded this
portion of the expert’s testimony. Id. at 1397. Relying on Downing , the Third
Circuit reversed. Id. at 1401.
We agree that expert testimony on eyewitness identification may properly
be admitted under Daubert in certain circumstances, but Stevens simply does not
persuade us that the district court abused its discretion in the instant case. We
note that here there were five eyewitness identifications, not one. Likewise, as
19 counsel for the government pointed out at argument, there was also testimony
that Mr. Smith changed his alibi. In this admittedly close case, we hold only that
the district court did not abuse its discretion in excluding the testimony under the
circumstances. See United States v. Blade , 811 F.2d 461, 465 (8th Cir. 1987)
(holding no abuse of discretion to exclude expert eyewitness identification
testimony where government’s case relied on more than eyewitness
identification); United States v. Smith , 736 F.2d 1103, 1107-08 (6th Cir. 1984)
(holding exclusion of expert eyewitness identification testimony harmless error
where government’s case included three separate eyewitnesses and a palm print
that discredited the defendant’s alibi).
Finally, Mr. Smith argues that not only did the district court exclude the
expert testimony as unhelpful to the trier of fact, but it also excluded the
testimony because the testimony touched on the ultimate issue in the case. As
Mr. Smith points out, the “ultimate issue” rule has been abolished. See Fed. R.
Evid. 704 & Advisory Committee Notes (“the so-called ‘ultimate issue’ rule is
specifically abolished by the instant rule.”) We have reviewed the record, and we
do not think the court erred. Throughout the hearing, the court was clearly
guided by the standards announced in Daubert and Rule 702. In any event,
because the court did not abuse its discretion in excluding the testimony, if the
court did err in this respect, such error was harmless.
20 C. Did the district court abuse its discretion in allowing an alibi witness to be cross-examined on her drug use twenty years earlier?
Mr. Smith’s alibi was that at the time of the theft, he was with his friend
Jamie Doyle at her house. Jamie’s mother, Janet Doyle, testified that she saw Mr.
Smith and her daughter leave the house around 6:55 p.m. on the evening of the
theft, just after she got home from work. Ms. Doyle testified that she
remembered the date because it was Martin Luther King Day, and many
employees at her workplace had the day off. Ms. Doyle further testified that she
remembered the time because she was surprised to see her daughter leaving the
house just minutes before the television program Melrose Place was scheduled to
air. The theft took place between 6:30 p.m. and 7:00 p.m.
Ms. Doyle was Mr. Smith’s primary alibi witness. Over defense objection,
the district court permitted the government to cross-examine Ms. Doyle about her
use of LSD twenty years earlier. The court also questioned Ms. Doyle on the
same topic. Mr. Smith argues that the district court erred when it allowed this
line of questioning. Mr. Smith further argues that the judge compounded the
error when he took up the questioning himself.
“[T]he extent of cross-examination with respect to any appropriate subject
is within the sound discretion of the trial court.” United States v. Hinkle , 37
F.3d 576, 579 (10th Cir. 1994). Likewise, we review a trial judge’s own
21 questioning for an abuse of discretion. United States v. Albers , 93 F.3d 1469,
1484 (10th Cir. 1996). Under this standard, we will reverse only when the trial
court’s decision is “arbitrary, capricious, whimsical, or manifestly unreasonable.”
United States v. Hernandez-Herrera , 952 F.2d 342, 343 (10th Cir. 1991) (internal
quotation marks omitted).
Mr. Smith argues that the cross-examination concerning Ms. Doyle’s drug
use was aimed at generally attacking Ms. Doyle’s character, an improper purpose
for raising the topic. The government, however, argues that Ms. Doyle’s ability
to remember the events of the evening of January 15, 1996 was directly in issue,
and, therefore, her prior use of LSD was relevant. Both parties cite United States
v. Cameron , 814 F.2d 403 (7th Cir. 1987) in support of their respective positions.
In Cameron , the defense sought to impeach a government witness by cross-
examining him about his prior use of LSD. Id. at 405. The defense’s rationale
was that individuals who use illegal drugs are likely to have no compunction
about lying under oath. Id. The district court refused to admit the evidence for
this purpose; however, the district court offered to allow the defense to introduce
the evidence to show the effect that drug use may have had on the witness’s
memory. Id. The defense declined the offer. Id. On appeal, the defendant
argued that the district court should have allowed him to introduce evidence of
prior drug use to impeach the witness’s character. Id. The Seventh Circuit
22 disagreed and affirmed the district court. Id.
In the case at bar, when defense counsel objected to the government’s
questioning concerning Ms. Doyle’s LSD use, the prosecutor stated that such
evidence goes “to her credibility to recall and recollection, her memory.” Rec.
vol. VIII at 723. Thus, unlike in Cameron , the evidence was offered for a proper
purpose. We think it was reasonable for the court to allow this inquiry. While
the use of certain drugs in the remote past may be entirely irrelevant to a
witness’s ability to remember, in this instance, it was for the jury to decide
whether Ms. Doyle’s use of LSD twenty years earlier affected her ability to recall
the evening in question. We cannot say that the district court abused its
discretion in allowing this line of questioning. We turn now to the court’s own
questioning of Ms. Doyle.
When counsel for the government asked Ms. Doyle how many times she
used LSD, she stated that she did not know. After defense counsel lodged an
objection, the court asked Ms. Doyle if she recalled how many times she used
LSD. When Ms. Doyle replied, “No,” the court then inquired if she had used it
regularly. After Ms. Doyle again replied, “No,” the court admonished counsel
for the government as follows: “You may inquire as to how regularly she used it
and over what period of time, and let’s move on.” Counsel elected to move on
rather than to pursue the topic. Rec. vol. VIII at 724.
23 A trial judge’s authority to question a witness “is, of course, beyond
dispute.” Albers , 93 F.3d at 1485. However, “in exercising this power a judge
must take care not to create the appearance that he or she is less than totally
impartial.” Id. We find nothing in the trial judge’s brief questioning that
suggests an appearance of partiality. Nor was the judge’s questioning arbitrary
or unreasonable. Thus, we find that the trial court did not abuse its discretion
when it briefly questioned Ms. Doyle.
D. Did the district court err in denying Mr. Smith’s motion for judgment of acquittal on the Hobbs Act count of the indictment?
After the government rested its case, Mr. Smith moved, pursuant to Fed. R.
Crim. P. 29, for judgment of acquittal on count one of the indictment. The
district court denied the motion. “We review the district court’s denial of a
motion for judgment of acquittal de novo , viewing all the evidence and drawing
all reasonable inferences in a light most favorable to the government.” United
States v. Lampley , 127 F.3d 1231, 1242 (10th Cir. 1997), cert. denied , 118 S. Ct.
1098 (1998). We conclude that the district court erred in denying Mr. Smith’s
motion. 2 Therefore, we vacate Mr. Smith’s conviction on count one and remand
2 The parties frame the issue as whether the district court abused its discretion in failing to dismiss count one of the indictment. Although Mr. Smith did raise issues relevant to the Hobbs Act count in a pretrial motion in limine, the parties have not called our attention to a formal motion to dismiss this count of (continued...)
24 with instructions to enter judgment of acquittal on that count.
Count one of the indictment charges a violation of the Hobbs Act. The
Hobbs Act provides that “[w]hoever in any way or degree obstructs, delays, or
affects commerce or the movement of any article or commodity in commerce, by
robbery or extortion . . .” shall be punished. 18 U.S.C. § 1951(a). The Act
defines “robbery” as “the unlawful taking or obtaining of personal property from
the person or in the presence of another, against his will, by means of actual or
threatened force, or violence, or fear of injury , immediate or future, to his person
or property, or property in his custody or possession . . . .” Id. at § 1951(b)(1)
(emphasis added).
The government contends that “the offense of robbery continues
throughout the escape phase of the crime.” Aple’s Brief at 21. Thus, it argues,
Mr. Smith committed a robbery because Mr. Dotson’s ankle was broken during
the escape. In support of this argument, the government offers various cases
which stand for the proposition that the escape phase of a bank robbery is part of
the ongoing crime. See, e.g. , United States v. Willis , 102 F.3d 1078, 1083 (10th
Cir. 1996) (stating that escape is part of overall conspiracy to commit bank
(...continued) 2
the indictment. Likewise, our search of the record reveals no such motion. Nevertheless, Mr. Smith did make a Rule 29 motion at trial, and, consequently, we treat this issue as a denial of a motion for judgment of acquittal.
25 robbery), cert. denied , 117 S. Ct. 2517 (1997); United States v. Von Roeder , 435
F.2d 1004, 1010 (10th Cir. 1970) (“The escape phase of a crime is not . . . an
event occurring after the robbery. It is part of the robbery.”) (internal quotation
marks omitted), vacated on other grounds , Schreiner v. United States , 404 U.S.
67 (1971). Mr. Smith, on the other hand, argues that “[t]he escape phase of a
theft does not transform the nature of the original crime from a theft into a
robbery.” Aplt’s Opening Brief at 39. We agree with Mr. Smith.
As noted above, the Hobbs Act defines “robbery” as the unlawful taking of
property by “means of actual or threatened force, or violence, or fear of injury . .
. .” 18 U.S.C. § 1951(b)(1). By contrast, “theft” (or “larceny”) involves the
taking of property without the owner’s consent, but without force or violence.
See Black’s Law Dictionary 1477 (6th ed. 1990) (defining “theft” as “[t]he
fraudulent taking of personal property belonging to another, from his possession .
. . without his consent, with intent to deprive the owner of the value of the same,
and to appropriate it to the use or benefit of the person taking.”); id. at 881
(defining “larceny” as the “[f]elonious stealing, taking and carrying, leading,
riding, or driving away another’s personal property, with intent to convert it or to
deprive owner thereof.”); see also 2 Wayne R. LaFave & Austin W. Scott, Jr.,
Substantive Criminal Law § 8.11(d) (1986) (“Robbery requires that the taking be
done by means of violence or intimidation. Larceny from the person or presence
26 of the victim is not robbery without this added element of force or fear.”)
In denying Mr. Smith’s motion for judgment of acquittal, the district court
found that there was sufficient evidence of force or fear for the Hobbs Act count
to go to the jury. The court noted that there was testimony that Mr. Smith
intentionally directed his car at the employees who chased him into the parking
lot and that he could have avoided doing so. Rec. vol. VI at 470. The court also
noted that there was testimony that the employees in the store may have seen Mr.
Smith carrying the guns, and they may not have known that the guns were
unloaded. Id. at 471. The district court concluded that this evidence was enough
to satisfy the force or fear elements of a Hobbs Act robbery.
As noted above, the Hobbs Act requires that a defendant take property by
means of actual or threatened force or violence. Here, Mr. Dotson handed two
guns to someone who he obviously thought was an ordinary customer. The
“customer” then simply turned and ran. Even the government concedes, albeit in
a discussion of a separate issue in this case, that Mr. Smith was not pointing a
gun at Mr. Dotson nor demanding money from him. Aple’s Brief at 15. In fact,
Mr. Smith did not threaten Mr. Dotson at the gun counter in any way.
As for fear of injury, Mr. Dotson knew that the guns were unloaded
because he had secured them before handing them to Mr. Smith. Even if other
employees who saw Mr. Smith running with the guns thought the guns were
27 loaded, there is no evidence that Mr. Smith brandished the guns or in any way
threatened any store employee. The evidence shows that he simply made his way
toward the door and ran into the parking lot.
The fact that several employees followed Mr. Smith into the parking lot,
and that Mr. Dotson was injured by the getaway car, does not support a finding
that Mr. Smith took the guns by means of force or violence. We think there was
insufficient evidence to prove that Mr. Smith accomplished the theft by means of
actual or threatened force or violence. Therefore, the district court should have
granted Mr. Smith’s motion for judgment of acquittal on count one of the
indictment.
Because we are vacating Mr. Smith’s conviction on count one, we shall
remand for resentencing on the remaining count. The Presentence Report
indicates that counts one and two were grouped together for sentencing purposes.
Now that the § 922 conviction is the only one remaining, Mr. Smith’s offense
level will need to be recalculated.
E. Was the district court’s restitution order erroneous?
The district court ordered restitution in the amount of $1,209.98 to cover
the cost of both guns stolen from the sporting goods store. Mr. Smith did not
object to the order of restitution. Therefore, we review the order for plain error.
28 See Fed. R. Crim. P. 52(b); United States v. Wainwright , 938 F.2d 1096, 1098
(10th Cir. 1991).
In crimes such as the one committed by Mr. Smith, federal law requires
that the sentencing court order the defendant to make restitution to the victim.
See 18 U.S.C. § 3663A(a)(1). However, a district court may not order restitution
in an amount that exceeds the loss caused by the defendant’s conduct. United
States v. Spring , 80 F.3d 1450, 1463 (10th Cir. 1996). Such a restitution order
would amount to an illegal sentence. United States v. Arutunoff , 1 F.3d 1112,
1121 (10th Cir. 1993). “[T]he imposition of an illegal sentence constitutes plain
error.” Wainwright , 938 F.2d at 1098.
Mr. Smith argues that the district court ordered him to pay restitution in an
amount greater than the loss he caused the sporting goods store. Although the
record on appeal does not include a copy of the sentencing hearing transcript,
both parties apparently agree that the government did not present evidence at the
hearing concerning the appropriate amount of restitution. The government bears
the burden of proving the amount of loss when seeking restitution. United States
v. Copus , 110 F.3d 1529, 1537 (10th Cir. 1997). A restitution order entered
without proof of loss is clearly erroneous. United States v. Herndon , 982 F.2d
1411, 1421-22 (10th Cir. 1992). Because that is what occurred here, the
restitution order appears to be illegal. Thus, imposition of the order constitutes
29 plain error.
III. CONCLUSION
For the foregoing reasons, we REVERSE the district court’s denial of
judgment of acquittal on count one of the indictment and VACATE Mr. Smith’s
conviction on that count. We REMAND for the district court to enter judgment
of acquittal on count one and for resentencing.