*2 BIRCH, Judges, Before FAY and Circuit *, Judge. District Senior and HOFFMAN FAY, Judge: Circuit questions con- presents This case two court’s exclusion evi- cerning district prosecution. Defen- criminal dence dant-Appellant Richard B. Lankford was counts of extortion and two convicted on re- filing false income tax two counts defense, counsel’s cross-ex- During turns. wit- government’s chief amination of the Lankford, the district court against ness by questioning defense precluded line of motive for to show purporting counsel govern- testimony on behalf false addition, the district ment witness. offered court excluded might show that defense to reasonably $1500.00 have believed gift and therefore check he received For the income. reasons taxable follow, disagree with exclusion we instances. evidence in both * Hoffman, sitting by designation. U.S. Dis- Walter E. Senior Honorable Virginia, Judge for the Eastern District trict I. History Procedural asked him money. While Lankford never threatened to terminate L & G’s con- Richard Lankford was indicted Octo- tract with the county, LeCroy twenty-one 1989 on testified ber counts extor- *3 paid he tion and two counts of Lankford because extortion under he was afraid of right, color of official in losing violation of the his contract. Evidence present- was Act, addition, Hobbs 18 U.S.C. 1951. In § ed that Lankford solicited and received alleged the indictment four of will- counts payments ranging in amount from fully filing subscribing false income $2000, with payments most being close to returns, tax in violation of 26 U.S.C. $1000.4 7206(1). 28, 1990, On March con- §
victed Lankford on two of extortion counts B. Income Tax Charges and on two filing counts for false income tax returns. jury acquitted Lankford One of the charges for filing false in- on one attempted count of extortion and come tax returns was based upon a $1500 failed to reach a on remaining verdict payment received Lankford in 1984. post-verdict counts. A acquittal motion for Lankford resigned position with the or a new denied on April was County Fulton Sheriffs in office 1984 in and on June 1990Lankford filed a timely order to run for Sheriff in the November appeal. notice of 1984 election. Evidence presented was sergeant at the County Fulton Jail II. History Factual inmate, solicited an Wesley Merritt, for a A. Charges Extortion contribution to Lankford’s campaign.5 Richard Lankford served as the Sheriff Merritt testified he contacted his of Fulton County, Georgia January from niece, Hudson, Sandra who manag- was the 19851 until he was convicted in the district liquor store, er of a requested that she charges 1990. extortion write a check for $1500 from the store against Sheriff Lankford involve a series of account. Hudson testified individu- payments allegedly Lankford received from al claiming to be Richard Lankford came to Jack LeCroy from 1985 through 1988. Le- liquor pick up check, store Croy owns -a majority interest in the cater- requested that wife, it made be out to his ing company, (“L G”), L & G Catering & Jacqueline. Hudson made out the check that received a contract to provide food accordingly, services to did but not indicate County the Fulton on the Jail.2 Le- Croy testified that he check that it believed Sheriff intended campaign as a Lankford had awarded L & G the contract contribution. Lankford testified that he and that power Lankford had the to renew never picked up the check liquor from the or to cancel the contract. store, but that he received the check campaign
During the workers who years in which indicated it was a operat- L & G Jail, ed at the County gift, help LeCroy family Fulton testi- meet expenses while fied3 that Sheriff Lankford periodically he was unemployed. Sheriff, 1. Prior to his election LeCroy grand 3. testified before a and at served as a deputy County in the grant Fulton Sher- immunity. trial under a of use Department years. iffs for nine LeCroy's testimony 4. payments he that made
2. L & G one-year was awarded the food service supported by Lankford was jail contract for spring of 1985. Its Anderson, bookkeeper, former Doris county contract with the was renewed for two LeCroy who testified that she cashed checks periods, one-year additional and it continued to in the paid amounts claimed he he to Lankford. provide food service thereafter addition, on month-to- checks that were on L & drawn month basis until November 1989. G account admitted into were evidence. LeCroy testified when the contract was first awarded population the inmate Merritt testified that had no direct contact jail approximately 850 and that concerning campaign with Lankford contri- population nearly tripled by November 1989. bution. (citations Jenkins, F.2d at 1392 tion.” III. Discussion such cross- omitted). importance A. Cross-Examination upon whether depend does examination evidentiary rulings court’s A district in fact exists between deal or not some appeal where disturbed may only be Greene, 634 government. and the witness of discretion. a clear abuse appears there F.2d at 276. Rodriguez, 917 may the witness is whether What counts Further, Cir.1990). 1289 n. effort to testimony in an shading his be has trial court held that has circuit co- “A desire to please prosecution. of Evi Rule under Federal discretion broad the con- formed beneath operate may *4 permissible 611(b) the to determine dence level, apparent in a manner scious States United scope of cross-examination. witness, a subtle but such to the even (11th 1552, Cir. 1564 Jones, F.2d 913 v. state nevertheless desire to assist Bent, 707 v. 1990) (citing States perception.” may cloud Cir.1983), de (11th cert. 1190, 1194 F.2d Sullivan, F.2d 618 Burr v. (quoting Id. 2174, 960, 80 104 S.Ct. nied, 466 U.S. further, Cir.1980)). (9th 583, And 587 (1984)). 557 L.Ed.2d sought to be cross-exam where the witness witness, government’s “star” ined is in discretion district court’s “ prose in link ‘providing an essential is scope of cross-examination limiting the of full cross- importance cution’s of however, requirements subject, possible is nec bias examination disclose to v. Greene Wain Amendment. the Sixth ” (quoting at 275 Id. essarily increased.’ Cir.1981);6 272, (5th 275 F.2d 634 wright, 450, Summers, F.2d v. 598 United States 1277, Williams, F.2d 592 v. Calle, F.2d at (1979)); 822 see also 460 Cir.1979); v. (5th United States 1281 1520, F.2d 1020; Wainwright, 756 Haber v. Cir.1978). 945, (5th F.2d 949 565 Crumley, Cir.1985). (11th 1522 by guaranteed confrontation right of right of Therefore, includes the discretion of the Sixth Amendment while Alaska, 415 v. ruling Davis the admissi in cross-examination. court the district 1105, 1109, 39 great deal 94 S.Ct. entitled to bility of evidence court, has (1974). discretion by 347 Cross-examination this L.Ed.2d deference of purpose the district allowed for where traditionally been somewhat narrower to cross- discrediting right the witness. or limits defendant’s impeaching of court particular, against 1110. In him. See Unit 316, at 94 S.Ct. examine Id. at witnesses 1412, Beale, 1424 motivation 921 v. F.2d exposure of witness’ ed States Cir.1991) by (11th (“Subject Sixth labelled Su to testifying has been Amendment, court has the dis of the district important function as an preme Court limit authority to cross-examina right cretionary to cross-exami the Sixth Amendment de 1110-11; (emphasis added)). Unless 316-17, at 94 tion.” nation. Id. permitted sufficient 1016, been Calle, fendant has F.2d v. 822 1020 United States cross-examinatipn ade allow a Andrews, Cir.1987); v. (11th United States credibility, the the witness’ Cir.1985), quately assess 1491, cert. F.2d limitation cross-examina 815, court’s 1064, district denied, 106 S.Ct. 474 U.S. Id. in’ error. tion will be (1986); Jenkins Wain L.Ed.2d 789 Cir.1985), F.2d wright, 763 limited Lank- court here The district denied, the chief cross-examination ford’s 90 L.Ed.2d him, Le Jack. against government witness Le sought to elicit par- long recognized Croy. Lankford has “This court motive for possible aof searching Croy, cross-exam- as evidence importance of ticular prosecution, with LeCroy’s cooperation who have substantial of witnesses ination ar- sons had been the fact that proseeu- cooperate incentive former adopted precedent decisions City Circuit Bonner 6. The Eleventh prior (11th Cir.1981), Prichard, October Fifth Circuit rendered by rested state authorities for the sale of sons and to obtain ip federal assistance pounds twenty marijuana.7 avoiding The district a subsequent federal against addition, refused to allow them. In cross-examination a reasonable arrests, juror could concerning drug conclude concluding that LeCroy might even hoped prejudicial. addition, that it was too should things go “well” for government questioned district court the likelihood case, he could later solicit help from LeCroy had reason to fear a federal investi- government federal in his sons’ state case. gation of state charges against probative value such strong evi agree. sons. We cannot possible dence of motive outweighs Notwithstanding the fact that Le possible prejudice to LeCroy. While the Croy had govern made no deal with the jury may not have believed concerning ment a federal investigation by motivated fear of a subsequent arrest, into his marijuana sons’ his desire federal investigation affairs, of his sons’ cooperate may have in fact motivat the fact of the state arrest and fact investig ed prevent effort such an possible investigation federal were cru imagine We cannot a much ation.8 jury’s cial to the *5 assessment of LeCroy’s stronger motive for testifying on behalf of credibility.9 Accordingly, the exclusion of government than the protect desire to this evidence erroneously limited Lank- one’s children. A juror reasonable could ford’s right, guaranteed by the Sixth have that LeCroy’s concluded testimony Amendment, to cross-examine LeCroy for was the result of his protect desire to his possible motive or bias.1 7. The LeCroy evidence elicited from Although outside the 9. the defense did have opportunity presence jury LeCroy’s revealed two bring that to LeCroy out the given fact that been had possession sons had been arrested for tent to distribute 20 with in- immunity testify, use thereby to implicating Le- pounds marijuana. possible Croy’s seeking protect motivation in to Buffet, Papa’s Country arrests occurred Lankford, charges himself from connected to operated by LeCroy restaurant and his sons. inquiry grant into the immunity of use LeCroy’s The record reveals that sons had en- jury not have LeCroy’s allowed the to assess guilty pleas tered they charges to the state and that credibility to the same extent or in the same probation were on at the time of the Lank- manner as evidence the arrests of his sons. ford trial. all, LeCroy’s testimony After while could not be that, although We LeCroy’s note the arrests of him, against LeCroy used prose- could be still operated sons occurred at an by establishment cuted for the testifying. acts about which he was LeCroy, appears there linking to be no evidence Moreover, jury while a reasonable could have LeCroy by to the offenses committed his sons. LeCroy concluded that by was not motivated himself, any knowledge protect 8. It is "joint desire to common it task could simulta- that forces” exist govern- neously between state LeCroy testify- have concluded federal that they together, ments in cooperating ing fact, work protect out of a desire In sons. Furthermore, sharing information. LeCroy could have concluded that chose to instances, govern- some the state and federal undertake a risk order together ments decide charges in which or courts protect assist and his sons. brought. will be In cases where charges court, already brought have been in state addition, LeCroy’s In as further motive for charges it is not unusual for to be refiled cooperation government, Lankford in federal court after law enforcement officials sought LeCroy investiga- that establish feared have proceedings deemed results of the state tion into losses had claimed he on recent tax satisfactory. to be less probation than State agree returns. We with the district court’s ex- provide sentences examples excellent of those questioning. clusion of this line subsequent situations have led that federal LeCroy’s reporting The evidence of -tax is dis- proceedings against previ- defendants had that tinguishable concerning evidence ously LeCroy’s tried in state courts. It is drug LeCroy’s any arrest of possible sons subsequent because con- fear that federal action LeCroy might sons, investigation tention against feared a tax have is together been taken them, highly speculative. protect There simply with his no may desire to indica- LeCroy LeCroy any testify government. motivated tion that had reason to investi- fear gation by fact, Such a supported conclusion would be Revenue further Internal Service. In presence the fact cooperation with the outside estab- government appears begun LeCroy to have about the lished that had been audited in 1982 time when admittedly change worried with no to his made return. Without charges about they his sons and the facing. were support possi- foundation whatsoever to violating the tax See Expert jury.12
B.
Witness
law for the
Here,
id.
at 611.
S.Ct.
the statute
determining
the dis
whether
under which Lankford was
re
convicted
excluding testimony by
trict court erred in
quires
part
willfulness on the
of the indi
witness,
only
expert
we will
reverse
files
vidual who
a false tax return.13
It
of discretion.
where there is a clear abuse
then,
jury,
remained for the
to determine
Rodriguez,
See
F.2d at 1289 n. 6. We
willfully
report
whether Lankford
failed
note, however,
the element of
that “where
income the
check he received.'
$1500
defense,
willfulness
is critical
latitude in the
defendant
is entitled to wide
Any
concerning
the reasonable-
tending to show
introduction of evidence
ness of Lankford’s belief that
he
$1500
Garber,
lack of intent.” United States
gift
received was a
rather
than taxable
banc).
(5th Cir.1979) (en
income is relevant
to the determination of
Here,
determined that the
the district court
willfully
whether
violated the tax
by the defense could not
tax
Offered
Supreme
recognized
laws.
Court has
concerning the reasonableness
testify
“the
more unreasonable
the asserted
check
Lankford’s conclusion
misunderstandings
beliefs or
a defen-
[of
gift
was a
rather
than taxable
received
are,
likely
more
will
dant]
agree.
Again,
income.
we cannot
nothing
consider
them to
more
than
simple disagreement
legal
with known
Supreme
recently
Court has
imposed by
duties
the tax laws and will
subjective
“good-faith
determined that
find that
the Government has carried its
misunderstanding
good-
of the law or a
Cheek,
proving knowledge.”
burden' of
violating the
faith
that one is not
belief
highly pro-
at 611-12.
It
is thus
statutory
negate
can
willfulness
*6
law”
for
the defense to
bative
show that
requirement
of' criminal
tax' offenses.
— U.S. —,
States,
defendant’s belief —whether or not mistak-
Cheek v. United
reasonable;
609-11,
(1991).11
604,
en —was
evidence of a belief’s
L.Ed.2d 617
negate
question
finding
of whether a defendant
reasonableness
tends to
a
Such a
good
support a.finding
in'
faith .that
believed
he was not willfulness
that
and
by
jury
supported by
ble conclusion
that
feared
was
the state arrest of
IRS,
investigation by the
admission of such evi-
drug charges.
sons on
That arrest
awas matter
prejudicial
proba-
be
dence would
more
than
record,
it
as a factual
and
served
foundation
tive.
by
possible
for the
conclusion
that Le-
require
Sixth Amendment does not
un
"[T]he
investigation
Croy feared a federal
of the state
inquiry
potential
limited
into the
bias of a wit
charges.
DeParias,
1447,
ness.” United States
(11th Cir.1986) (citing
Delaware v. Van
We
court did not
note that
district
have
11.
673, 679,
Arsdall,
1431, 1435,
U.S.
106 S.Ct.
Supreme
Court’s
discus-
benefit
recent
States,
(1986);
L.Ed.2d
Alford
sion of this area of the law
it tried the
when
218, 220,
282 U.S.
51 S.Ct.
J551
the defendant’s
good
belief was held in
gift/income
tax opinion of the de-
faith.
expert
fense’s
witness could have had a
powerful impact on the issue of Lankford’s
trial,
At
Lankford testified that he .sub-
willfulness, the critical element in Lank-
jectively believed
check he
$1500
ford’s defense to
Count
Lankford testi-
gift
received was a
gifts
need not
fied that he believed the $1500 check
awas
reported
as income. The defense also
gift that
taxable;
was not
expert’s
tes-
presented evidence revealing that Lankford
timony revealed
legitimate and well-
facing personal
was
financial difficulties
legal
founded
analysis would
sup-
office,
while he was running for
that mem-
ported the reasonableness of that belief.
bers of the community were aware of these
By disallowing expert
testimony on the
difficulties, and that Lankford received
gift/income issue, the trial
deprived
cash and the
check
campaign
Lankford of evidence showing that his as-
workers, together
explanation
with an
serted state of mind was reasonable. Ac-
the money
being
provided for his fami-
cordingly, we hold that
the exclusion of
ly in recognition of the financial difficulties
expert testimony on this
was error.
issue
campaign-
imposed
had
on him and
Garber,
See
the reasonable involved evidence other than true that there was contribution,” the defense was but paign Lank- testimony that showed that LeCroy’s of the de exclusion not, that the we hold $2,000 Vegas, in Las in re testimony, submitted ford had been wired expert fense’s disputed by of discre Lank- fact was never buttal, It is an abuse but that error. was argued simply admissible otherwise exclude the ford. tion “to expert LeCroy a critical an unsolicited party’s payment on was of a opinion back; LeCroy’s of his opinion paid issue, allowing the that was later while loan presented issue.” only same testimony on the adversary’s Sellers, genu- F.2d was not a payment that the v. to show of extortion. Sim- Cir.1977); United States ine loan but the result see also testimony appears Cir. to have Parshall, LeCroy’s 213-14 ilarly, Co., Sears, & evidence used to convict 1985); Roebuck the critical Breidor Cir.1983). (3d 20.17 1140-41 Lankford of Count testimony, Without Error Harmless C. against strength government’s case LeCroy 1. Cross-Examination of counts to which Lankford on the for this court to is insufficient the district testified Having found that court’s limitation that the district conclude limiting the cross-examina court erred beyond harmless determine on cross-examination was LeCroy, must next we tion Indeed, ruling upon beyond a a reasonable doubt. “harmless that error was whether ap pending and release a motion for bond v. Van Delaware reasonable doubt.” See recognized as much: peal, judge the trial Arsdall, making “LeCroy’s testimony is the heart of (1986). In 89 L.Ed.2d If defense were government’s case. determination, factors” are a “host of LeCroy successfully, the considered, impeach including importance “the able to be very could well have in this action testimony prosecu in the verdict of the witness’ (R1:59 4).18 cu differed.” whether tion’s mulative, presence or of evi absence Expert contradicting Witness corroborating or
dence
testimony of
the witness
.material
simply cannot con
Similarly, we
oth
of cross-examination
points, the extent
district court’s exclusion of
that the
clude
course,
and, of
the over
permitted,
erwise
testimony was harm
expert’s
the defense
prosecution’s case.”
strength of the
Id.
all
state that he
Although Lankford did
less.
must,
damaging
Assuming,
that the
as we
check did not need to be
the believed
*8
LeCroy’s cross-examination
potential of
did not allow
the district court
reported,
realized,
id.,
fully
see
we
would have been
ex
jury
to the
to
present evidence
him to
that the limitation
simply cannot conclude
have
rea
why that
been
plain
belief
cross-examination of Le-
the defense’s
however,
government,
was
sonable.
beyond
Croy
harmless
a reasonable
question to a
pose hypothetical
to
allowed
doubt.
prop
concerning
preparer
whether
tax
to
of conduct
have been
course
should
LeCroy’s testimony on the counts in- er
as income. Given
appears
report
appeal
$1500
in this
to have
volved
by the
the facts
possible construction of
government’s
crucial to the
case.
It was
inability to
given
the defense’s
jury
LeCroy’s testimony that contradicted Lank-
the ex
expert testimony to rebut
present
of the nature of the transac-
ford’s account
beyond
the trial court's error was
Although Henry
wit-
that
a reasonable doubt.
Wilson testified that he
harmless
receiving something green
nessed Lankford
hallway
Fulton
from
in the
of the old
again
was convicted
note
that Lankford
18. We
Jail,
relationship
Le-
County
to- the
Wilson’s
twenty-seven includ
only four counts
on
Croys
strong
loyalty
them
sense of
to
and his
LeCroy’s
question of
ed in the indictment.
credibility
testimony
us
insufficient to convince
makes his
overemphasized.
hardly be
can
pert opinion
government,
elicited
jority
we
held that it did.
In ruling in this
manner,
simply cannot conclude that
the trial
the majority seemingly ignores the
court’s error
harmless.
mandates of
weight
to
Delaware
Arsdall,
v. Van
given
expert testimony
is within the
jury must
presentation
receive a full
(1)
issues:
whether the trial court’s limita-
both sides of
predict
an issue. We cannot
tion of the cross-examination
state’s
guess
But,
or
what a
will do.
the witness
violated
Confrontation Clause
excluded
expert
was ex
(2)
whether such a violation could be
tremely
relevant
the reasonableness of
found to be harmless error. The Court
Lankford’s decision to treat the
$1500
answered
questions
both
in the affirmative.
gift
report
and not
it as income. Given the
Addressing
issue,
the first
the Court rec-
importance
critical
of the reasonableness
ognized that the Confrontation Clause does
willfulness,
issue in the determination of
prevent
we find that the trial
error
court’s
could
judge
trial
imposing
from
any limits on
impact
have had a substantial
on the out
defense
inquiry
counsel’s
poten-
into
come
of the
If the
trial.
had been
tial bias of a
witness. On
permitted to
consider
excluded testimo
contrary,
judges
retain wide lati-
ny,
jury’s
may
verdict
well have been
tude insofar as the Confrontation Clause
different.
is concerned
impose
reasonable limits
on such cross-examination based on con-
IV. Conclusion
about,
cerns
among
things,
other
harass-
above,
For the reasons set forth
we RE-
ment, prejudice,
issues,
confusion of the
VERSE the district court’s exclusion of
safety,
witness’
interrogation
or
concerning
drug
cross-examination
repetitive
ar-
only
or
marginally relevant.
rest of
addition,
Jack
sons. In
we
Id.
1555
968,
415,
U.S.
110 S.Ct.
1556 is that an error Supreme stated Court proposed hearing the only after “prove can be if the harmless jury. the This of presence outside the constitu doubt that yond a reasonable held repeatedly
court has did not contrib complained of tional error may limit cross-exami- judge that a 24, 87 Id. at the verdict obtained.” ute to infringing the defendant’s nation without Supreme Court has made at 828. “(1) S.Ct. rights where amendment sixth Clause violations Confrontation clear that per- the cross-examination jury,-through harmless error. See Ari subject to are facts sufficient mitted, exposed to — -, Fulminante, U.S. zona v. 111 relating to the inferences draw for it to 1263, (1991). 1246, 302 113 L.Ed.2d (2) witness; S.Ct. reliability of Lay, v. in United States The Fifth Circuit by defense conducted cross examination (5th A, May 1087, Unit Cir. F.2d 1091 make a record 644 him to enabled counsel 869, denied, 1981), 102 argue why the wit- cert. he could from (1981), 336, 172 stated 70 L.Ed.2d might have biased.” ness erroneously judge exclud the trial “where 1016, Calle, 1020 F.2d v. 822 States first evidence, must deter ed [the court] Cir.1987) v. (quoting United States (11th have been mine what the evidence .would Cir.1979)); (5th 450, Summers, 461 the trier determine whether and then Burke, 738 v. F.2d States also United see guilty the defendant have-found fact would Cir.1984) (11th (finding no 1225, 1227-28 doubt with addi beyond a reasonable where Amendment violation Sixth Later cases inserted.” tional evidence credibility and as gauge adequately could asserting factors have clarified that from the testi motive or bias possible sess prosecution’s “the error are harmless witness); mony solicited cumulative, testimony was -the whether the 1549, Haimowitz, 1559 F.2d 706 v. of evidence corroborat presence or absence no Cir.1983) (holding there was contradicting testimony of the ing or counsel defense where abuse discretion points, the extent of on material witness expose facts from which opportunity had permitted, otherwise cross-examination regarding draw fair inferences jury could course, strength of and, overall denied, witness), credibility of United States prosecution’s case.” 974, 79 L.Ed.2d 104 S.Ct. Cir.1990) LeCroy Lang, 904 testimony of lengthy Arsdall, U.S. at (quoting Van and cross-examination about direct both 1438). cooperation immunity and his S.Ct. at grant of certainly allowed the government with the from the be discerned The most can part argue bias on defendant LeCroy’s sons were arrested record is that and, likewise, was sufficient twenty pounds of mari possession of credibility. Accord weigh LeCroy’s jury to points Two juana intent to distribute. by this Circuit out ingly, both test set disagree with vehemently me to convince in Delaware the earlier test enunciated majority’s holding that the exclusion Arsdall, supra, are satisfied. v. Van error. not harmless this evidence was court committed Finally, if the trial even out, First, pointed previously an abuse of constituted an error which testifying LeCroy was was well aware that discretion, not rise to the such error does immunity. If grant of use under a inappropriate It is of reversible error. level raising the convictions is purpose of sons’ court conviction on reverse a lower bias, you can create how to establish affect do not account of errors which juror’s mind of bias more asserting rights the party substantial testifying showing by than 2111; Fed. error. U.S.C. § very avoiding prosecution for witness 52(a). R.Crim.P. the defendant with which crimes 26 Thus, admitting this charged? California, 386 U.S. Chapman in nature. (1967), clearly be cumulative L.Ed.2d Oliver L. North demon- John M. Poindexter and high-profile criminal trials of 26. The recent *12 Second, Lankford went to charged trial 1984 income tax return. The defense of- with 26 counts. The to chose convict fered Tokars’ testimony support to Lank- only four counts related to two transac- argument ford’s that he believed the $1500 tions. of Both these transactions were cor- gift was a to him and his family. As with roborated other indepen- witnesses or the limitation of the cross-examination of dent evidence. This indicates that when I LeCroy, again agree cannot that the trial convicting of came down to an court committed error in excluding the evi- issue of whether' Lankford or LeCroy was dence. Furthermore, I emphatically con- telling the truth the to convict. refused tend that all of possible errors of the Consequently, already because the jury re- judge should be considered harmless LeCroy fused to believe it simply when was error. against Lankford’s, his word any additional trial, At presented defense lengthy going to the bias of would proffer of Tokars’ testimony. The ques- have no effect. tions in appear issue to be the following: A inevitably defendant will be able to Q. Assuming that those facts are raise errors on appeal any criminal you do opinion have an true,27 as to especially one of length magni- whether or not that check gift was a tude. justice system The criminal cannot and therefore not includable in income bogged become in alleged down errors that and not subject taxation, to or whether absolutely no affect jury’s on the or not it a campaign contribution perception of a witness or on the outcome that was converted to Richard Lank- Therefore, the trial. I argue that the personal ford’s use and thus income trial court was ruling, correct its did not subject to taxation? discretion, and, abuse its did, even if it A. My opinion would [TOKARS] be that error was harmless. that would gift subject to taxation.
II. Cross-Examination Expert Witness [*] [*] [*] [*] [*] [*] Q. And second issue the majority what’s the opin- basis of that addresses
is whether the ion? trial court in limiting erred testimony defendant’s wit- Well, A. it appears that none of the ness, Fred Tokars. The portion excluded parties expressed intent, their so what Tokars’ only relevant to I would do is fall trying back on Count 24 charged the defendant with look at their conduct and trying to the failure report check infer intent. It appear doesn’t Liquor East Side Store as income on his though Sheriff Lankford himself solic- difficulty strate 5) prosecuting a witness for Lankford a campaign manager has crimes which are testimony given related to keep treasurer to campaign track of contri- grant under immunity. of use See butions. North, 6) States v. modified, All campaign F.2d checks to are made out to (D.C.Cir.1990); Poindexter, the Sheriff Campaign United States v. Lankford deposit- separate (D.C.Cir.1991); ed in a campaign Kastigar only bank used see account also States, expenses. 7) Liquor pleased stores are L.Ed.2d Lankford’s campaign. 8) Liquor gave Eastside Store a check to Mrs. hypothetical Tokars, In its the defense payable Lankford that was made to Mrs. requested following: that he assume the Lankford. 1) supports a wife and two'chil- 9) deposited Mrs. Lankford the check into the' dren. family’s joint personal checking account 2) running Lankford is plat- for sheriff on a and used it car insurance and other expanding form of the role sheriff. items. 3) public knowledge It is gave that Lankford R12:167-69. attempting hypo- Before ask the up job to run for sheriff. jury present, thetical with the the defense mod- 4) during Lankford has little income assumption cam- ified comport # 8 with Lankford’s paign support family. testimony. Liquor who employee at Eastside wrote contribution. campaign ited a *13 Lankford, himself, check, that testified ato out obviously written check was the told her to make the store and came to individual, being Mrs. that personal in his wife’s name. Presented check out could you Lankford, I think so and testimony of Lankford Sandra that it with the intent was payor’s the infer that juries decide what Hudson, jury had to gift. abe decided, telling traditionally have who a time at occurred this Also because testimo- and Hudson’s Lankford the truth. community in the people when most exclusive; not both could mutually ny was have a did sheriff knew that Unfortunately for telling the truth. be course, gave up his he, of
job and that him. against Lankford, decided of run sheriff deputy as a job probably that he knew fice, they well that a correctly asserts majority The you Then live on. money to admitting or needed in discretion broad judge has of the the actions a look at testimony take and could excluding expert check, and recipient of manifestly or the payee upheld unless is action of the recipient Sans, it’s no doubt erroneous. Lank gift. Mrs. it as a Cir.1984), check treated de person in her check deposited ford nied, mon and used checking account deciding al whether to L.Ed.2d car buy insurance ey for—to testimony, the fundamental expert admit I, from And so car. and to use such whether court is the trial test for intent, you their parties, looking trier of “assist the fact.”28 evidence gift. it’s a to infer standard, advisory com this Explaining Rule of Evidence note Federal mittee’s Rl2:169-70. 702 states: testimony as discusses majority test for deter- certain is no more There thorny some deciphering expert was if the than may be experts used mining when laymen tax code—one in the issue inquiry whether the common sense just the I believe not understand. could qualified to laymen would be untrained testifying is expert Here opposite. intelligently to the best determine defendant’s processes mental particular issue with- degree the possible ascer- attempting to is expert mind. having a from those enlightenment out thinking at a individual what an tain subject understanding specialized no scien- time, something for which given opinions dispute. When in the involved This ever been devised. has method tific un- excluded, they are it is because are issue. complex tax involve a does not count and a helpful superfluous and therefore involves most this count com- Instead time. waste telling the truth. all, iswho issue mon earlier, omitted). argued As (citations present- The defense issue of the basic wheth- presents Count 24 completely different two ed the Wesley and Sandra or Merritt er involving the transaction of the versions their telling truth. Since Hudson are that his Lankford testified check. weighed experts, have juries, not inception, him the check gave campaign staff Now not credibility of witnesses. campaign head- day at one some cash process. to muddle the time Sutton, a Reverend (R9:29-30). quarters. part on the recent time, majority relies testified at that staff member decision Supreme Court picked United States previously had worker that another — U.S. —, States, Liquor Store. Cheek v. from Eastside up the check (1991), find L.Ed.2d 617 Hudson, hand, the S.Ct. Sandra other On the issue, expert by qualified as an a witness 702: Fed.R.Evid. 28. See skill, training, experience, edu- knowledge, or technical, scientific, specialized or other If knowledge cation, testify may in the form of an thereto to un- of fact the trier will assist opinion otherwise. or a fact determine or to derstand the testimony that Tokars’ is admissible. The analysis of events by does noth- considered Cheek Court the issue of ing wheth to aid the jury in determining the rea- er a trial committed error in instruct sonableness of Lankford’s beliefs when he ing ignore the defendant’s was deciding testi whether the $1500 check was mony explaining why he believed he did not income or gift. Additionally, nothing in pay have to taxes. The supports Court found Cheek the broad notion that ex- prove pert code, violation of willful the tax should be sup- admitted to *14 prove port Government must “that the law reasonableness of the defendant’s imposed duty defendant, a on the belief that the that he is not violating the law. Con- defendant knew of this duty, sequently, and that the the majority’s reliance on the voluntarily defendant and intentionally Cheek decision vio is misfounded. lated duty.” Id. S.Ct. at 610. In Furthermore, the trial court properly ex- discussing prong, the second the defen cluded expert testimony because admit- dant’s knowledge, the Court held a ting it would' have violated Fed.R.Evid. defendant’s claim of ignorance of the law 704(b),29 prohibits expert testimony or of a misunderstanding of the law result on whether a defendant had the mental ing good-faith in a belief that he was not state constituting an element of the crime. violating negates the law knowledge Willfulness is the mental required state for
prong of proving willfulness whether or
the crime with which the defendant was
not the claimed belief or misunderstanding
convicted.
7206(1).
See I.R.C.
§
is objectively reasonable.
Id. at 610-11. Cheek Court defined willfulness to mean “a
The Court then concluded the discussion voluntary, intentional violation of a known
with the language the majority cites to legal duty.” Cheek, 111
S.Ct. at 610
support its conclusion of admissibility, writ
In previous case,
a
the Court
formu-
“ha[d]
ing “the more unreasonable the asserted
lated
requirement
of
as
willfulness
bad
are,
beliefs or misunderstandings
the more
faith
intent,
or evil
... or knowledge that
likely
will consider them to be
taxpayer
should
reported
more
nothing more than simple disagreement
income than he did.” United States v.
with
legal
known
duties.” Id. at 611-12. Bishop,
From this
majority
concludes that To- 2017,
(1973)(citations
L.Ed.2d
omit-
kars’
should be admitted as pro
ted).
bative of the
reasonableness
Lankford’s
Admittedly, the courts have had trouble
actions.
I disagree with
conclusion.
determining in tax
at
point
cases what
an
.
for
decide
expert
.704(b).
violates Rule
example,
For
determining willfulness is whether the de-
in United States v. Windfelder, the Sev-
fendant
subjectively
was
aware of
legal
enth Circuit held
agent’s
that an IRS
testi-
duty
issue, here,
duty
to declare the mony that the
“intentionally
defendant
un-
as
key
income. The
then is what did derstated his income” and was “well aware
honestly
defendant
believe at the time of
happened”
what
to Windfelder’s assets
of the transaction. Consequently, evidence was
704(b)
inadmissible under Rule
because
of reasonableness must have some connec-
it impermissibly
opinion
stated an
tion with the
actions
the accused. Con-
knowledge or
defendant’s
willfulness.
versely, Tokars wished to examine the United
v. Windfelder,
States
transaction
its
after
occurrence and to give
(7th Cir.1986).
The Fifth Circuit in
opinion
his
that the transaction constituted-
Dotson,
conversely,
States v.
found
gift.
no,
Nothing in the record indicates
error where an agent, while
document-
Lankford
knowledge
had
of the expla-
ing consecutive increases in a defendant’s
nations
offers.
post
Tokars
worth,
Such
net
testified
“[tjhis
is indica-
facto
704(b):
29. Fed.R.Evid.
did
have the
-state
mental
or condition
expert
testifying
No
respect
constituting
witness
an
charged
element
crime
the mental state or condition of a defendant
or
a defense
thereto. Such ultimate issues
may
in a criminal case
opinion
an
state
or
are matters for the
of fact
trier
alone.
inference
toas whether the defendant did or
personal
his
money
use.
to could use.
experience shows
my
tive,
and based
to decide—
intentionally in-
the issue for
This was
willfully and
me,
he
transaction was cor
knowing full well that
version of
whose
income
creased
due thereon.”
of factual issues
the taxes
rect. The resolution
reported
had not
Dotson,
jury.
Tokars’
always matter
tes
part
opinion
on other
1132-33,
nothing
more than
timony
vacated
Cir.1987).
willfully
F.2d 1034
violated
grounds,
on whether
that this
borderline
704(b)
laws,
accordingly,
pro
commented
Rule
tax
expert
mere-
statement,
found that
but
testimony.
hibits his
indi-
of the facts
analysis
“explained
ly
to the enactment
Fed.R.Evid.
Prior
not,
evasion,
... di-
and did
cating willful
the use
704(b),
discussed
the Fifth Circuit
question....”
ultimate
rectly embrace
expert testimony to contest willfulness
Circuit
the Ninth
a third
yet
Id.
Garber,
case of United States
exclusion
trial court’s
upheld a
*15
Cir.1979).31
(5th
The
case
F.2d 92
Garber
wanted
who
testimony from an accountant
selling her
was
a defendant who
involved
charged with
testify that a defendant
to
very high prices. Garber was one
at
blood
owed
income tax returns
to file
the failure
people in the
only
or
known
two
three
alleged period. United
taxes for
no
antibody in her blood.
a certain
world with
(9th
492,
Brodie,
495
F.2d
858
v.
States
to allow an
The trial court refused
testimo-
Cir.1988).
that this
The court held
recognized theory of tax
testify that a
to
opinion
state an
impermissibly
ny would
supported the defendant’s belief
law
and, accord-
willfulness
to the taxpayers’
was not
income from the sale
blood
conclusion
the ultimate
ingly, address
Appeals reversed
The
taxable.
Court
very
had
“the
was
im-
powerful
of “its
and held that because
the evidence.”
the law and
to answer
willfulness,”
pact
the issue Garber’s
on
at 495-96.30
Id.
conflicting
there were
the evidence
testimony
Tokars’
of Mr.
purpose
liability
tax
theories of
should
that,
as the defendant
if the facts were
In
jury.
at 99.
go
to
Id.
allowed
gift.
check was
argues,
then
case, Lankford’s
contrast
to the Garber
way of
simply another
conclusion
This
argue that based on
defense does not
did not have
re
stating that Lankford
or
same event
transaction
only point
If
To
state.
mental
quired
an-
and the defense
reaches one conclusion
transac
that this
to make was
kars wished
uses one version
other.
Instead Tokars
only
needed to
gift then
was a
tion
controversy
argue
are in
facts that
Commis
the donor’s intent. See
discuss
he assumes then this
if the facts are as
Duberstein,
80
363 U.S.
v.
sioner
gift.
is a
transaction
(1960)
1196,
1190,
tion testified Hudson Sandra ambiguity $1500. of check for fact, and the of trier and told the store Cases, to it came Lankford 704(b) in tax that Rule of application did wife. She trial his the check imagine how her to write my mind strains him check. gave its discretion. this and abused could open tobewill decision today’s effect defense, that Lankford testified In his involving a disease in cases door his entered workers campaign couple of testimony as to what tomind headquarters campaign his office at in point certain thinking aat person around with him the check handed answer cannot analysis Scientific time. for his fami- this was cash, telling him that weighing all after question. wife used his then testified ly. He a defen- determine must insurance, bills, car some money pay by its verdict state. mental dant’s then The defense car loan. his willfully evaded Lankford found who Gregory Sutton a Reverend presented in this agree that cannot I tax. income working Lankford’s he was testified discre- abused judge instance the check when headquarters campaign tion. Ross Sergeant He testified came in. Mr. Le- the limitation Again, as to have in and claimed brought the check ardently cross-examination, believe I Croy’s Fi- Store. Liquor East Side gotten it testimony was Tokars’ exclusion Tokars, who, called Mr. nally, defense Chap contrast error. harmless complicated lengthy and in addition rea beyond a concluding standard man whether, general, concerning error the constitutional doubt sonable attempt- money, taking had been not contribute did complained long hypothetical34 testify after ed error obtained, a nonconstitutional verdict de- by the presented facts based on error if the harmless considered may be I gift. awas this transaction fense that *17 verdict, substantially influence "did context in the above whether must decide sup evidence sufficient there was and substantially opinion of that exclusion error.” from the apart verdict port the trial. of the outcome influenced 1016, 1021 Calle, F.2d States I not believe argued, v. Wain do Palmes Cir.1987) (quoting previously As complex Cir. for count called resolving this wright, Montal versions the tax law. 1984)); analysis of legal also see 711, 110 much that vo-Murillo, U.S. differ so this transaction of (1990) (stating that to be- L.Ed.2d which witnesses to decide jury had un harmless will be weighing error the credibil- nonconstitutional after lieve. as the record from concludes that Lank- concluded ity less of the witnesses had a may have campaign the error contri- willfully a whole that taken had ford of outcome on the influence” To use. personal “substantial used it for bution and Accordingly, the proceeding). reject the verdict, had reach this testify Tokars from preventing for To- is whether made that were assumptions basic be substantially influenced Lankford Moreover, ing miss- opinion. give kars ing convicted. assumptions the list ing from for of Merritt solicitation of the mention trial, brief, earlier discussed As discrep- Faced with the contribution. presented the'opin- the foundation ancies between in the was solicited that he Wesley Merritt and what by Tokars35 given ion contri- campaign County Jail for Fulton Lankford, exclu- convicting believed the East he called He testified bution. on the effect opinion had no owned, Tokars’ sion of and Store, Liquor Side Lankfords, deputies. Notice- a few sheriff supra 27. note See 34. Merritt, Wesley missing list are ably this prepare for his that to indicates The record 35. Hudson, LeCroy. Jack Sandra minister, the testimony, Tokars interviewed
J563 trial. I believe so incon- City for the Cochran; White; Freddie sequential its exclusion would have Wayne Rogers; Wayne Tripp; Sonja Chapman met the Curtis, test, reasonable doubt Larry Williams, and J. Individu ally much less lower standard of substan- and in their capacities official tially Members influenced trial. The fact Bleckley is that County Board Education, Tokars was testify allowed to Defendants-Appellees. forty pages record, judge that the listened No. 91-8306. eighty-seven pages of the prof- defense’s United States of Appeals, Court fer, and in the end excluded only a- small Eleventh Circuit. portion the testimony. opposed As reversing judge, praised he should be March for his valiant effort to consider all sides of ruling. Therefore, issue before I have found no discretion, abuse of error,
even if there was that it would have
met the harmless error standard. HALL, Sr.; Walker;
Rev. E.K. David Donalson; Harris; Ates; Richard Willie *18 Roberson;
Rev. Wilson C. and NAACP
Chapter Cochran, Bleckley County,
Plaintiffs-Appellants, HOLDER,
Jackie Individually capacity
official County as Commis
sioner Bleckley County, Georgia; Johnson, Individually
Robert and in his capacity
official Superintendent as Bleckley County;
Elections for Charles Killebrew, Individually and in his offi capacity Mayor cial City as
Cochran; Barlow; Lonnie Jessup; Ben Crooms; Basby;
C.C. Billy Willie Ray
Godfrey, Greer, and T.C. Individually
and in capacities their official as Alder City Cochran;
men of the William J.
Lucas, Individually and in his official
capacity Superintendent of Elections