United States v. Terrence Brown, 788 F.3d 830

Background

Terrence Matthew Brown, president of The Softwear Group, purchased five homes in 2006 and obtained $224,500 in kickbacks by inflating loan applications; he signed certifications at closing acknowledging criminal exposure for false statements.
A grand jury charged Brown with five counts of wire fraud and one count of conspiracy to commit wire fraud; a jury convicted him on all counts and the district court sentenced him to 87 months' imprisonment.
Key prosecution witnesses: Stacy Parton (loan closer for three loans) and Garen Armstrong (investor who cooperated with the government). Parton testified she reviewed documents with Brown; on cross she said she did not recall certain statements attributed to her in a pretrial interview.
Defense sought to admit testimony from private investigator Mark Reeder recounting Parton’s alleged prior statements; the court excluded Reeder’s testimony as hearsay/improper impeachment because the court found Parton’s lack of recollection genuine and no adequate foundation was laid under Rule 613(b).
Defense attempted to probe Armstrong on his potential sentence exposure and motives for testifying; an objection was raised and defense counsel withdrew the contested question; the court sustained the government’s relevance objection during sidebar and limited further inquiry.
On appeal Brown argued Sixth Amendment Confrontation Clause violations from (1) curtailment of cross-examination of Armstrong and (2) exclusion of Reeder’s testimony. The Eighth Circuit affirmed.

Issues

Issue	Brown's Argument	Government's Argument	Held
Whether limiting cross-examination of Armstrong violated the Confrontation Clause	Court prevented inquiry into Armstrong’s understanding of his potential sentence and whether he testified to curry favor	Court properly limited questions about sentencing guideline calculations as irrelevant or cumulative; defense withdrew question	No constitutional violation; limitation was within court’s discretion
Whether exclusion of Reeder’s testimony recounting Parton’s prior statements violated Confrontation Clause or Rule 613(b)	Reeder’s testimony was admissible extrinsic evidence of Parton’s prior inconsistent statements to impeach her trial testimony	Parton said she did not recall the statements; trial court found lack of recollection genuine and refused to admit extrinsic evidence for impeachment without adequate foundation	No error; district court did not abuse discretion excluding Reeder under Rule 613(b); no Confrontation Clause violation

Key Cases Cited

United States v. Walley, 567 F.3d 354 (8th Cir. 2009) (Confrontation Clause protects opportunity for effective cross-examination, especially bias)
Delaware v. Van Arsdall, 475 U.S. 673 (U.S. 1986) (trial court has wide latitude to impose reasonable limits on cross-examination)
Delaware v. Fensterer, 474 U.S. 15 (U.S. 1985) (Confrontation Clause guarantees opportunity for effective cross-examination, not unlimited questioning)
United States v. Wilkens, 742 F.3d 354 (8th Cir. 2014) (discussing relevance and Rule 403 limitations on cross-examination)
United States v. Yarrington, 634 F.3d 440 (8th Cir. 2011) (admission of extrinsic evidence for impeachment when witness denies prior statement)
United States v. Rogers, 549 F.2d 490 (8th Cir. 1977) (trial judge discretion in assessing whether claimed faulty memory is inconsistent with prior statements)
United States v. Shillingstad, 632 F.3d 1031 (8th Cir. 2011) (exclusion of prior inconsistent statements when witness in good faith asserts lack of recollection)
United States v. Hale, 685 F.3d 522 (5th Cir. 2012) (exclusion of impeachment evidence on foundation grounds raises no constitutional concern)