United States v. Robinson

gation methamphetamine trade in that the official into prove the defendant knew proceed- Dodge at issue a federal proceeding City. jury investigation.

ing grand as a such (“In prosecu- § a 1512(g)(1) See 18 U.S.C. III. CONCLUSION section, this no tion for an offense under In this case there was sufficient evi- proved respect mind need state of be beyond find jury dence a reasonable ... the official the circumstance Phillips a doubt that ob- reasonable Mr. court, proceeding judge, magis- before a grand investiga- jury structed the federal government judge, grand jury, or trate methamphetamine into trade in tion a agency judge is before or court of the Dodge City in violation of 18 U.S.C. States, magistrate a United States 1512(c)(2). Therefore, § Mr. we AFFIRM judge, a a judge, bankruptcy Federal Phillips’s conviction. grand jury, or a Federal Government agency.”).

Turning the evidence

case, jury reasonable could conclude that a probable effect of

the natural disclos a identity impeding Bice’s Officer jury grand investigation

federal into Ms. methamphetamine

Lopez’s distribution Indeed, given supply her source. America, UNITED STATES of jury presented at could evidence Plaintiff-Appellee, Phillips purpose Mr. no other find that had investigation. to thwart such an than and reasonable inferences there evidence ROBINSON, David Earl Defendant- Phillips from tended to show that Mr. Appellant. (1) a law Officer Bice was enforce knew: No. 08-3120. (2) officer; he

ment had been or would be purchases attempting make controlled Court Appeals, United States (3) Lopez; at least two Ms. other Tenth Circuit. methamphetamine Dodge distributers Oct. approxi been in the City arrested jury months. The mately preceding ten heard extensive evidence that Mr.

also consistently

Phillips boasted law en officers that he had “burned”

forcement Bice, begs

Officer which the inference that actually intended to obstruct inves

tigation into the methamphetamine trade

in Dodge City-of grand which the federal necessary part.

jury proceedings were

Therefore, viewing this evidence in the

light government favorable most we that a

determine reasonable could Phillips guilty beyond reason

find Mr. an official obstructing pro

able doubt of

ceeding, grand which was the investi- Wurtz, question, Federal about events in Assistant details E. Ronald (David Federal Phillips, J. his mem- that the reason for Public Defender testified briefs), Defender, with him on the elapsed by Public that two ory years loss was KS, Defendantr-Appellant. Topeka, testimony Nothing time of trial. in the a jury suggested heard that the Cl had Brown, A. Assistant James capacity to or narrate. (Marietta reduced observe Parker, Acting Attorney Attorney, him on the with United States permitted Had defense counsel been KS, briefs), Plaintiff-Appellee. Topeka, conduct view the medical records and a cross-examination, jury proper LUCERO, EBEL, and Before a It would picture. have seen different TYMKOVICH, Judges. Circuit heavy that the a have learned Cl had been LUCERO, Judge. Circuit recently drug user since 2000 and had cannibis, alcohol, abusing opioids, been charged with Earl Robinson was David Valium, benzodiazepine, Klonopin, a firearm Darvo- possession felon in being a to a infor- gun cet, a confidential selling Hydrocodone. after The medical rec- (“Cl”). days before Robinson’s mant Six that he by ords contain admissions the Cl star witness—the half-pound marijuana in had smoked a a from Robin- gun Cl purchased who shortly trial and that he single day before to a involuntarily committed son—was smoking up of mari- pound had been facility. health The district have juana per jury week. would also files in camera the Cl’s medical reviewed history the Cl “long heard that had a defense access but refused counsel in- starting mental illness” which precluded It counsel them. also defense hallucinations, auditory seeing cluded his any about asking questions through that are “things out window history pre- or his use of mental health there,” really “hearing voices tell- was sub- medications. Robinson scription thing[s].” ing him to do If the had of 18 violating convicted of sequently information, may of this well been aware 924(a)(2) 922(g)(1) § § and sen- U.S.C. rejected testimony, without imprisonment. tenced to 33 months’ con- which Robinson could not have been if court’s must decide the district We victed. access to the provide refusal to jurisdiction under 28 Exercising U.S.C. pro- records contravened due Cl’s medical § we reverse and remand. limitations on and whether court’s cess violated the the Cl cross-examination I ques- We both Sixth Amendment. answer in the affirmative. tions A by imposed of the restrictions Because Cl, receiving agents a tip After from a court, the an incom- the district saw Tobacco, Alcohol, Fire- the Bureau of picture inaccurate of the Cl’s plete and (“ATF”) Explosives came to sus- arms and credibility. jury’s perspective, From the pos- illegally a man named pect “PJ” drug only “a little bit” of a the Cl had agent requested An sessing pistol. ATF violating problem “regularly” and was not attempt gun. purchase that the Cl using with the ATF agreement so, attempted however, the Cl to do When events, By that version of the Cl drugs. already that PJ had transferred he learned after becom- largely reformed himself Robinson, the Cl gun with whom Further, although ing an ATF informant. the hand- acquainted. Suspecting remembering various was also had trouble gun illegal activity, to be evidence of the Cl’s mental status and stated that in sought arrange buy” ATF a “controlled opinion the Cl would be testify able to Later, from Robinson. truthfully. at the in hearing, limine ruled, the court “I going grant am to ... up purchase, After the Cl set he and the Government’s motion limine pre- agent an ATF drove to Robinson’s home. clude [cross-examination on the men- encounter, beginning Before agent However, tal may condition]. I take it placed searched the Cl for contraband and under ... consideration at a later time recording pock- small audio device in his because the [Cl’s records will be medical] et. then approached The Cl presented to the Court.” It also informed male, home and an adult agent whom the parties the that the diagnosed Cl had been could identify, opened not the door to allow “poly-substance abuse, with mood disorder the approximately Cl inside. After one II, with an temporary, Axis for anti-social minute, the Cl returned agent’s to the car traits.” with a handgun. agent The took the hand- cash, gun, gave the him Cl and sent back day, The next the court heard additional pay

inside to for gun. Reentering arguments regarding the subpoena and home, Robinson’s dropped Cl off the the motion in Voicing limine. concern that cash and agent’s returned to the car. the Cl’s mental health issues could be used in a Cl, “scurrilous effort to discredit” the Following purchase, the Cl con- the court previous reaffirmed its ruling, firmed, using a photographic lineup, that concluding the Cl’s mental condition was person Robinson was the from whom he not material. It suggested that if defense purchased Robinson, gun. a previous- counsel permitted question were the Cl ly felon, convicted subsequently indict- treatment, about his recent could possession ed for of a firearm in violation infer that may “there be something seri- 924(a)(2). §§ 922(g)(1) 18 U.S.C. ously wrong with .... [the Cl] for [a]nd B reason, they’re going to believe him.” Shortly before Robinson’s gov-

ernment disclosed that the Cl had been Robinson’s objected counsel to the involuntarily committed to Osawatomie citing United States v. ruling, court’s Hospital by mother, State thought who Lindstrom, (11th Cir.1988), 698 F.2d 1154 him to be suicidal. government The re- which held that a district court contra- ported that the Cl would be released vened the Confrontation Clause nar- time testify. Robinson’s counsel then rowly limiting cross-examination as to a filed a motion requesting the district court witness’s psychiatric history. See id. subpoena issue a for the Cl’s mental 1159-64. The court took Robinson’s cited health records. The district court granted case law under consideration but did not the motion but ordered the Cl’s records to alter ruling. its Defense counsel also be directly transmitted to the court. sought stay pending receipt of the Cl’s meantime, government filed mo- medical which the court had not tion in preclude limine to Robinson’s coun- obtained, yet but that request was denied. sel inquiring into the Cl’s mental health at trial. C motion, argument

Prior to on at an The first witness at trial parte, ex hearing, camera agent the court was the ATF arranged who had spoke psychiatrist with a buy. Osawatomie. controlled process He described the psychiatrist relayed his diagnosis of of recruiting and retaining the Cl and surrounding diagnosis parties, gun psychiatric the events recounted Next, failed to the records con- government intro- disclose purchase. tained abuse of recording captured by the information audio duced illegal prescription drugs. Nor did pocket. It was carried in device static, parties that the rec- apprise and the interspersed low-quality, regarding detailed events that took ords contained evidence few details of the revealed Despite psychiatric home. its condition. inside Robinson’s place value, objected to the recording counsel court’s decision: evidentiary limited clear, I re- very Rob- so the record “[J]ust that when the Cl entered does reveal be drop quest, again, [the records] time once home for the second inson’s use— cash, provided name to me review—not for he called out Robinson’s off the option returning handgun’s miss- but for review with to the twice and referred him asking to the stand about [the Cl] number. ing serial objection them.” Robinson’s was over- government called the Lastly, the ruled. ATF agent’s He confirmed the the stand. buy argued and testified that the Cl controlled account planted had in lying gun man who him was and Robinson was the let that night buy. gun. him the Robinson’s home before the the house and sold On into solely consisted cross-examination, at- His case-in-chief of testi- Robinson’s counsel by mony called impeach eliciting impeach the Cl from witnesses tempted to history, suggested had pay- his Cl. One witness that Cl testimony on criminal ATF, dishonesty, reputation and the and three tes- he received from ments had tified that the Cl been inaccurate following intervention on his behalf ATF’s The of children with the law. Cl stated recollection number “serapefs]” in the household. a close friend of Robinson Robinson he was go and family, was able to come was convicted and sentenced Robinson pleased, house as he and had imprisonment. timely He to 33 months’ marijuana Robinson on the smoked appeal. filed this buy. the controlled The Cl night before maintained, however, that he had reformed II beginning after his work with the himself first that contends Robinson “regular- claimed he had not ATF. He violated the Due Process district court ly” agreement violated insisted by Fifth refus Amendment Clause prob- “a of a drug had little bit” he him mental health access to recall certain was unable lem. When cate records. Those records reveal three buy, about the controlled details claims gories of evidence that the reason for his memo- sole testified (1) illegal to his defense: were material of time. passage loss was ry (2) Cl; drug use the Cl’s (3) case-in-chief, condition; and use of prosecution’s health the Cl’s After tri prescription medications at the time of reported that it had reviewed court reviews de whether a in camera and reiter- al. “This court novo medical records process rights due have been ruling that it would furnish defendant’s ated its Nickl, 427 States v. Although the violated.”1 United to Robinson’s counsel. them (10th Cir.2005). 1286, 1296 previously provided had sought access aware that Robinson government dissent assert that our well 1. part due based in Cl’s records be confined to review of issue should pre-trial process grounds. In his motion plain disagree. We The district court error. 57-58, The Due Process Clause of the Fifth Amy S.Ct. 989. such material provides non-privileged Amendment person “[n]o information must be dis- life, Id. 60, ... closed to the deprived liberty, shall be defense. 107 S.Ct. property, without process due of law.” Const, prosecu- U.S. amend. V. In criminal The district court concluded that tions, the clause’s primary guarantee is the the Cl’s records did not contain informa right to a fundamentally fair trial. tion material to Robinson’s defense. We v. Bagley, 667, 473 U.S. 675- agree. cannot “[Evidence is material ... if 76, (1985); 105 S.Ct. 87 L.Ed.2d 481 there is a probability that, reasonable Ritchie, Pennsylvania see also 480 U.S. defense, the evidence been disclosed to the 39, 56, (1987); 107 S.Ct. 94 L.Ed.2d 40 the result of the proceeding would have

Brady Maryland, 83, 87, 373 U.S. 83 been different. A ‘reasonable probability’ (1963). Penn- 10 L.Ed.2d 215 a probability sufficient to undermine sylvania v. Ritchie holds that due process Ritchie, confidence in the outcome.” entitles a criminal defendant to have a U.S. (quotation S.Ct. 989 potentially witness’s privileged records re- omitted).2 alteration A defendant need viewed in camera to determine whether not show that the withheld records would they contain material evidence when the ultimately “resulted acquit [his] privilege asserted is not absolute but con- tal.” Kyles v. Whitley, 419, 434, exceptions tains that might allow for dis- (1995). 115 S.Ct. 131 L.Ed.2d 490 closure of material Rather, evidence. 480 U.S. at “the simply touchstone is whether subpoena the Cl’s Robinson invoked part waiver doctrine is intended in Nixon, 683, prevent United States v. party a 94 S.Ct. from "sandbagging” holding— 3090, (1974), arguments hope 41 L.Ed.2d back finding 1039 in in which the a more sympathetic explained appeal. Court audience on that "the Fifth Amendment Wain- 72, 89, wright Sykes, v. guarantees 433 person ... U.S. 97 that no shall be de- 2497, (1977). 53 L.Ed.2d 594 prived When the liberty dis- process without due of law. trict party understands to have raised duty It is the manifest of the courts to vindi- particular argument, goal that is met. See guarantees, cate accomplish those and to Pena, 1204, United States v. 216 F.3d that it is essential that all relevant and ad- (10th Cir.2000) (relying on the district court’s 711, produced.” missible evidence be Id. at understanding argument of an to determine 3090; 712, 94 S.Ct. see also id. at 94 S.Ct. issue); waiver Mejia-Alarcon, United States v. ("[T]he privilege allowance of the 982, (10th Cir.1993) (same). 995 F.2d 985 n. withhold evidence demonstrably that is rele- Admittedly, post-trial arguments Robinson’s vant in a deeply criminal trial would cut into Clause, centered on the Confrontation but guarantee process of due of law and all, hardly surprising. that is After "[a]ccess gravely impair the basic function of the to the records is ... not [defense] counsel’s courts.”). Further, post-trial in his "Motion goal; attempt ultimate it is an to discover Inspection to Permit of Sealed Medical Doc- information that can be used to cross-examine uments,” expressly argued Robinson that de- provide witness at or to a basis to nying "access to deny the documents tois therapist call the or counselor as a witness right ... his defendant to Due Process of question him or her about the witness’s guaranteed by Law the Fifth Amendment.” condition and treatment.” Clifford S. Fish- Perhaps importantly, denying most Robin- man, Defense Access to a Prosecution Wit-

son's motions inspection new trial and Records, Psychotherapy ness's Counseling of the the district court acknowl- 1, (2007). 86 Or. L.Rev. 3 n. 1 edged that Robinson had advanced a due process challenge, characterizing argu- materiality Ritchie's test was taken from the permit ment as: "[T]he court's refusal to ... beginning Court's line of decisions with Bra- inspection 87, violates defendant’s ... dy, Ritchie, Fifth 373 U.S. at 83 S.Ct. 1194. right process.” Amendment to due 480 U.S. at 107 S.Ct. 989. light during on what occurred ‘worthy ally confi no is one verdict the ultimate ” Ford, moments the Cl was inside Robinson’s v. few United States dence.’ Cir.2008) (Gorsuch, (10th J., dis those moments are house. But few Greene, 527 Moreover, (quoting Strickler senting) entire case. government’s 263, 290, 144 L.Ed.2d 119 S.Ct. buy U.S. was controlled name “controlled” (1999)). materiality applies test This entirely place It outside the only. took exculpatory force to both equal and, agent, govern- ATF as the view of the Bagley, 473 U.S. impeachment evidence. admits, recording its ment audio 676, 105 S.Ct. 3375. evidentiary “turned out be of little event 1.) (Appellee By Br. at 27 n. value.” “a exists reason conclude there We aspects claiming the crucial of the that ... the result able probability corroborated, story govern- were Cl’s have been different” proceeding would “seriously the extent ment underestimates been the contents privy rested to which the case al and been mental health records credibility of The Cl’s trial the Cl. the Cl on to cross-examine lowed testimony ability to link [its] was critical Ritchie, U.S. at 107 S.Ct. basis. Torres, buy.” the controlled omitted); [Robinson] see United States (quotation Torres, F.3d at 1282. 1282-84 Cir.2009) that evidence was (concluding only Because the was witness reversing conviction when material about possession who testified Cl, that the failed to disclose government testimony essentially and because depend testimony conviction on whose uncorroborated, credibility was of ed, government had been retained States v. paramount concern. See United occasions); prior two as an informant on (2d Cir.1995) 1200, 1210 Payne, 63 F.3d A, weighing materi Part III infra. (“In general, impeachment evidence has records, we ality note medical found to be material where wit- been only witness who testified supplied evidence ness issue possession; his tes directly to Robinson’s defendant(s) to the linking the crime.” essential —to timony was central —indeed omitted)). impor- (quotation Given the the arranged the case. He credibility, of Cl’s we cannot tance the negotiated firearm and purchase of the court’s conclusion that affirm the district only person who price. He is the purchase materi- medical records did not contain one only with Robinson and interacted Torres, F.3d at al information. See It is not who identified Robinson. 1282-83. in this say guilty verdict stretch to that testimony. reveal evidence These medical records depended upon case Torres, 1282-84; the Cl that is illegal drug by F.3d at use far cf. 441-45, 453-54, 115 Kyles, 514 U.S. than the was led to more extensive (concluding that evidence was trial, S.Ct. 1555 testified that he At believe. reversing and for new trial when material beginning act after up had cleaned have under suppressed evidence could the ATF and he was not work with key credibility prosecution’s mined using drugs. The medical rec- “regularly” witnesses). testimony. On his admis- ords belie (less facility than to mental health sion key as- corroborates Little evidence trial), the Cl admitted to one week before story. audio While the pects of Cl’s 2000, including using drugs since current recording confirms interaction between alcohol, cannibis, and “opio[i]d[s], agent, it sheds virtu- use and the ATF Cl Broun, benzodiazepine.” impeach.” He claimed to have to Kenneth S. McCor- 2006) (al- marijuana § half-pound smoked a few mick on ed. Evidence omitted). to days prior admission and told his doc- terations Had Robinson known smoking tors that he and a friend had been that the Cl much than “a more little up pound marijuana per to a week and bit” of a drug problem, certainly he would street-bought using opioids explored and “benzos.” have whether the Cl was using reported abusing prescription drugs He medi- at the time of alleged sale or at Valium, cations, including Klonopin, Dar- time of trial. United States v. Cf. vocet, Hydrocodone. (D.C.Cir.1972) Crosby, 462 F.2d (district court abused its discretion de- illegal drug Evidence of this extensive nying request subpoena defense key use have used impeach been witness’s medical records when witness credibility ways. Cl’s in several It direct- long drug time addict who had used ly testimony contradicts his that he had trial). drugs on day of drug problem “a little bit” of a “regularly” illegal evidence, he was not using In addition to the drug use drugs. Showing that the government’s capacity testify Cl’s could have been star lied witness on the stand could well further undermined evidence of his jury. Further, impacted the Cl’s mental condition. His medical records re- agreement with prohibited the ATF him veal that at hospital the time of admission (includ- (six engaging trial), from in criminal activity days before the was suffering use). ing drug illegal hallucinations, auditory could have seeing if willing inferred that “things through Cl were out the window that are repeatedly there,” breach really the terms of his infor- possibly experienc- face, mant agreement, might willing psychosis. also be their diag- On these falsely. to testify bear “ability noses on the Cl’s to perceive or to recall or testify events accurately.” Illegal drug use not merely does bear Butt, (1st United States v. veracity capacity but also on his Cir.1992) omitted). (quotation as a witness. “A credibility may witness’s attempt to any- access these records was always by showing be attacked or thing but a “scurrilous effort discredit” observe, remember, her capacity nar- Cl; aimed at uncovering legiti- rate impaired. is Consequently, the wit- mate doubts capacity as as a event, ness’s capacity at the time of the as witness. well as at the significant.” time of 4 Jack Margaret B. Weinstein & A. Ber- These records also show that the Cl was ger, Evidence, Weinstein’s Federal prescribed variety upon medications § ed., (Joseph McLaughlin M. discharge 607.05[1] 2d hospital from the —medications 2009). ed. drug Extensive use since 2000 the Cl was at using the of trial. time As suggests that the Cl could have un- concedes, been even the dissent the Cl’s use of der the influence at the time of alleged prescription the drugs is giv- relevant evidence Moreover, firearm sale. the potential “[i]f witness en its testimony, to color his par- the under influence of drugs ticularly or alcohol in light of Cl’s insistence that testifies, at the time he only condition is passage explained time his provable, evidence, on cross or by memory extrinsic lapses.3 United States v. Cf. 3. The district court could have admissibility. Mojica, allowed de- See United explore fense counsel to these (7th Cir.1999); issues outside F.3d 788-89 Fed. cf. presence jury argue and to their 104(a). R.Evid. definitively relevance before ruling on their (10th Cir.2000) Jones, agreement support ATF informant his F.3d drug habit. might prescription medications (suggesting “memory, perception, or a witness’s affect Moreover, cannot know whether we States v. Clem- comprehension”); United theory would have been differ Robinson’s (11th Cir.1994)

ons, 1504, 1511 32 F.3d permitted he been to review the ent had (“[A] drugs may not be use of witness’s files, material evidence in the Cl’s medical credibility, his but general to attack used jury nor can we determine how would ability underlying only perceive arguments. hypothetical have reacted to such trial.”).4 testify lucidly events and Montelongo, States v. Cf United . (10th Cir.2005) (“[W]e by persuaded govern- not We are say for certain how much informa reasoning that disclos- cannot ment and dissent’s might have elicited not have tion the Defendants ing the medical records would cross-examination, theory [the witness] of the case. bolstered Robinson’s have wit impeachment might [the how the viewed implies This argument cross-examination, if demeanor on ness’s] it undermines is material evidence ... persuasive in a manner how the evidence credibility of a witness jury.”). light have position at been with the defendant’s consistent question calling into Cl substantial evidence impeachment But here trial.5 abilities, perception retention have inconsistent with would not been Indeed, might argued have that the Cl theory of defense. tried, at issue but ineffectively did not remember events Robinson’s counsel information, the ATF’s merely parroting to im- was version without the withheld events.6 peach the Cl. contained in records may well have The evidence

Disclosing the records theory. was not cumulative. Because Robinson Robinson ar- bolstered Robinson’s he was his was denied access planted gun gued that argue drug that the Cl’s buy permitted night before controlled house the use, (the problems, use was Robinson’s mental health Cl that he admitted of trial af- drugs at time marijuana night). prescription If smoking house testimony. States v. lied fected his knew that the Cl had about (7th Cir.2007) Wilson, stand, might on the drug use (“[E]vidence a new provides basis theory plausible. more The found this and could impeachment is not cumulative drug use also nature of the Cl’s extreme material.”). None these avenues well be for the to frame a motive provides duplicative of those through impeachment his of funding continued Robinson: particular documents would brief. Whether that some of records dissent states we be inadmissible is matter privileged thus Al- nonetheless were inadmissible. subject to decide in the though may leave for the district court records be some privilege, we see assertion of first instance. a claim of no prose- privilege the Cl or the record course, obligated pres- 5. is not to (assuming government could even Of Robinson cution all; Cl). government any at bears ent evidence privilege on behalf of the claim the matter, establishing guilt beyond rea- of the burden did rule on the and district court not 358, Winship, In re argued parties’ sonable doubt. is briefs it not 1068, (1970). 368 S.Ct. 25 L.Ed.2d any privilege 90 that from court. We also note already been eviscerated be- disclosure has police reviewed 6. The Cl admitted apparently re- cause counsel testifying. prior appellate reports of the incident crafting his viewed the records 1274 pursue able and allowed to A

Robinson was Torres, trial. F.3d at 1284 at See The Sixth guaran Amendment (“Merely impeachment other evi- because of a right tees defendant to “be con presented dence was does mean against fronted with the him.” witnesses impeachment additional evidence is cumu- Const, amend. primary U.S. VI. inter “[A] ”). lative .... by [the est secured Confrontation Clause] Davis, right is the of cross-examination.” sum, against backdrop viewed 415 U.S. at 1105 (quotation S.Ct. case, centrality omitted). Although may a district court the withheld evidence Cl’s extensive through exercise its discretion reasonable abuse, issues, drug his mental health scope questioning, limits on the “[c]ross drugs use of at prescription the time of principal by examination is the means (whether individually trial considered believability which the of a witness and the cumulatively) lead us to conclude that the testimony truth of his are at tested.” Id. “worthy verdict is not confidence.”7 316, 94 1105. A may S.Ct. court violate Kyles, 514 U.S. 1555.

the Confrontation Clause when it inappro Ill priately “preludes entire relevant area Montelongo, cross-examination.” We next consider whether dis omitted). (quotation F.3d As the trict court violated the Confrontation Fifth Circuit has explained, “Where Clause it when forbade Robinson from witness the accused seeks cross-examine cross-examining the his mental witness, is the ‘star’ government providing history health prescription his use of case, an essential link in prosecution’s medications.8 “We de review novo wheth importance of full cross-examination to aer defendant’s Sixth Amendment con possible disclose necessarily bias is in rights frontation were violated cross- ” creased.” v. Wainwright, Greene F.2d examination restrictions.... (5th Cir.1981) omitted). 272, 275 (quotation Byrne, prohibited questioning Robinson was Cir.1999) omitted). (quotation con We prosecution’s star high witness on two clude that both cross-examination limita ly topics: relevant the Cl’s mental health tions violated the Confrontation Clause prescription and his medication use. We government and that the has not met its hold that both limitations constitute re extraordinary burden of proving that these versible error.9 constitutional errors were harmless be yond a reasonable doubt. See Delaware Evidence that the Cl has suffered from Arsdall, 673, 684, Van auditory U.S. 106 S.Ct. hallucinations saw out “things (1986). 89 L.Ed.2d 674 through really the window that are not Having 7. concluded the district de- 9. Because the district court did not limit Rob- process by refusing nied due Robinson ability regard- inson's to cross-examine the Cl provide use, portions illegal drug access material it did not violate the records, However, Cl's health respect. further harm- Sixth Amendment in that analysis unnecessary. Kyles, above, less-error See reasons discussed the court 435-36, U.S. at 115 S.Ct. 1555. process by refusing denied due disclose Cl's mental health records. II, questions regarding supra. scope given Because Part Had Robinson been likely are cross-examination re- access to arise on those no doubt cross- mand, we illegal think best for us to decide this examination drug Cl as to use issue. been different. Moore, in ma- and unlike Cl’s have Greene relevant because it would there” was wholly help testimony terial uncorrob- significant some “provide[d] Moore, Compare F.2d at [Cl’s] efforts to evaluate orated. jury in its Greene, or recall events to at in ability or to with 634 F.2d 275. Also as perceive to v. accurately.” Greene, testify See United the district court’s cross-examina- (1st Cir.1991); Moore, F.2d categorical. here was See prohibition tion too, So, 401. Fed.R.Evid. also Greene, see 634 F.2d at 275. Under these drugs at prescription his use of evidence of circumstances, un- the district court erred Jones, at 213 F.3d of trial. the time by imposing pro- a blanket der Rule Cf. Clemons, at 1261; F.3d 1511. More- scription of cross-examination related over, value was not substan- probative mental health condition and his of unfair outweighed by danger tially prescription use medications. issues, or mis- prejudice, confusion B jury. See Fed.R.Evid. 403. leading the party any a in a permit This case which district court’s refusal to is The malign attempts unfairly a witness inquiry history into Cl’s mental health minor mental health relatively distant prescription and use of medications violat- Moore, 923 F.2d at 912-13 issues. See ed the Sixth Amendment. As we ex- (not refuse to an abuse of discretion to in “a plained Montelongo, United States a consultation permit inquiry into witness’s violation when de- constitutional occurs prior therapist years a ten related prohibited engaging in oth- fendant is death). Instead, present case a child’s that, appropriate erwise cross-examination in which Wainwright, parallels Greene result, precludes eliciting him from as a relief af- granted the Fifth Circuit habeas jurors could information from which draw inquiry all into prohibited ter a trial court vital in his at inferences favor.” history prosecu- health the mental omitted). (quotation at 275-76. key tion’s witness. 634 F.2d Although violations of the Confron Greene, case turned subject tation are to harmless error Clause testimony single witness’s Arsdall, at analysis, Van marijuana. sibling him sold Our Greene not harmless these errors were just is as reason- “[i]t circuit reasoned that Id. beyond a reasonable doubt. As dis that a be informed of witness’s able II, supra, Part credibili cussed in incapacity at a time about which he govern ty lynchpin provides for the testify as would be proposes only is the witness who ment’s case: He then know that he suffered testimony and his identified Robinson Id. at sight hearing.” impairment linking Robinson only useful evidence case, testimony In this the mental health jury’s possession gun. view events that sought by Robinson concerns crucial. credibility was therefore place just days began, before trial took Payne, 63 F.3d at 1210. States v. unlike the situation into the Cl’s mental Cross-examination Moore, events oc- in which the relevant history may have undermined the health Moore, years before trial. See curred ten As noted credibility as witness. mental health at 913. The Cl’s above, credibility concerns not veraci- directly capacity relate to his issues also “observe, capacity to ty, the witness’s but id. 912-13 observe and remember. Cf. remember, at the time of (visit or narrate” both therapist for death of a child not to a time event. capacity). trial to witness’s As related realized,” Margaret Berger, fully B. & A. Jack Weinstein amination were Van Ars- Evidence, dall, § at Federal S.Ct. 607.05[1] Weinstein’s U.S. 2009). ed.,

(Joseph McLaughlin jury may M. 2d ed. been much more have inclined to jury disregard testimony. learned that Had Cl voices,” recently “hearing admitted to already have concluded We there exists “seeing out the things window [were] probability” a “reasonable would there,” really experiencing not and suicidal have reached a different decision had Rob- ideation, reasonably it could have conclud- been privy prescription inson the CPs capacity ed that the Cl had a reduced to drug usage; necessarily it follows that the observe, remember, recount. Absent prohibition district court’s on cross-exami- the district court’s restrictions on cross- regarding topic nation the same cannot Cl examining hospitalization, about his the high clear hurdle of harmlessness be- likely Robinson would have revealed these yond a Kyles, reasonable doubt. See narration, problems perception with 435-36, 1555; at U.S. Van Ars- along history with Cl’s “long of mental dall, 475 U.S. at 106 S.Ct. 1431. problems deeply illness.” Because these compromise IV credibility and be- gov- cause the Cl was the of fulcrum the stated, For the reasons we REVERSE case, beyond ernment’s we cannot conclude Robinson’s conviction and REMAND for reasonable doubt that proceedings further consistent with this have reached the same verdict had Robin- opinion.11 son been allowed cross-examine the Cl TYMKOVICH, Judge, Circuit hospitalization.

about recent Van Arsdall, dissenting. at 475 U.S. 106 S.Ct. 1431. reasons,

For similar I respectfully the district court’s dissent. Unlike the ma- jority, refusal to I allow cross-examination of the would hold that because Robinson regarding his use prescription adequately medi- did raise his Due Process cation cannot be court, deemed harmless. claim When Clause before the district discharged the Cl was subject from the to plain appeal error on review just hospital before instructed I disagree fails standard. also to continue to take majority three medications: 20 the that the district court violated ofmg day, citalopram mg once a the Confrontation preclud- Clause when it day, dicloxacillin four times mg and 1 inquiry ed an into the infor- confidential (Cl) risperidone twice a day.10 Robinson inqui- mant’s mental health. Such an permitted should have been as inquire ry would have than prejudicial been more to whether probative these medications affected under Federal Rule of Evidence memory, perception, ability nar- Finally, agree 403. I although with the rate the Assuming majority events issue. “that the district court erred damaging potential limiting th[is] cross-ex- Robinson’s cross-examination of 10. There is in the damaging potential little record about the exact assume "that the th[is] potential nature or side effects of these medi- realized," fully cross-examination were Van However, nearly always cations. there will Arsdall, 106 S.Ct. abe lack of evidence on the record about particular rights when a issue defendant’s conviction, 11. Because we reverse Robinson’s under the Confrontation Clause been challenge being we need not decide his by forbidding violated cross-examination during sentencing appeal shackled or his assessing that issue. In the harm of the Con- his sentence. violation, frontation Clause we must therefore arguments: precedent “Our is clear prescription medi- tial regarding the the Cl I taking, conclude— objection enough must ‘definite’ cations be of the record —that upon my review based district court ‘the precise to indicate to the re- and does not error was harmless the for ground’ party’s complaint.... a Absent quire reversal. specific objection, a the district court is to deprived opportunity correct its Due Process Claim I. action the first instance.” United States appeal on argument first Robinson’s (10th Winder, 1129, 557 F.3d Cir. v. pro- him due court denied district omitted) 2009) (internal (quoting citations Ritchie, Pennsylvania v. under cess Grant, 281, v. 548 F.2d Neu 39, 989, 94 L.Ed.2d 107 S.Ct. U.S. — Cir.1977)), denied, U.S. -, cert. (1987), reviewed the Cl’s when the court (2009); 174 L.Ed.2d 591 see camera before trial records in psychiatric Garcia, v. also United States to those rec- Robinson access and denied (10th Cir.1993) (“Defendant 1499, 1505 did government contends ords. The objection a specific not raise based on the below, subjecting this claim failed to raise Thus, clause at trial. we confrontation appeal. on plain to error review error.”). plain review for that the claim further asserts government brief, reply In his Robinson concedes I plain satisfy error standard. fails that “the issue disclosure [of agree. not psychiatric may records] have been adequately apprise not Robinson did squarely raised trial under [in court] claim, process court of due district Aplt. Reply the rubric of Due Process.”

making only general arguments admission, major- Despite Br. at And be- requisite specificity. lacked the did, indeed, ity asserts that Robinson to main- court’s decision cause district the due in his squarely process raise issue psychi- confidentiality CPs tain contrary subpoena the Cl’s med- pre-trial not the well- motion atric records was Ritchie, pro- due in his motion to post-trial settled law ical records and plain error claim falls short under cess review of these inspect My the records. review. me otherwise. motions convinces pre-trial motion does Nowhere in the A. to Preserve Due Pro- Failure pro- “due phrase Robinson mention cess Claim majority suggests Robinson’s cess.” The jurisprudence, Under our issues Nixon, citation of trial court—includ properly raised 3090, 41 L.Ed.2d 1039 94 S.Ct. U.S. implicate a defendant’s ing those that (1974), put the district court should re rights under Constitution —are process notice that due concerns were on plain error under the deferential viewed But Robinson cited Nixon play. Redcorn, United States standard. See general governing standards for (10th Cir.2008) (review Rule subpoenas under Federal issuance plain claim ing Brady process a due relevancy, Procedure 17: ad- of Criminal error). raise an issue properly In order id. missibility, specificity. at 699- fullest in the trial court and ensure the although And Nixon 94 S.Ct. 3090. a appeal, defendant possible review process in the tangentially discusses due drawing the object specificity, must analyzing whether President context precise claim trial attention to court’s privilege may assert United States not be The district court should advanced. subpoena, see id. at thereby quash poten at the defendant’s required guess 711-12, process Instead, this does 94 S.Ct. not mean raised his due claim. apprised the district court was of Robin- argues that two cases he submitted process Merely citing son’s due claim. prior district court United States case, may many proposi- which stand for (11th Lindstrom, v. 698 F.2d 1154 Cir. law, tions of cannot to properly amount 1983), Koh, Chnapkova and 985 F.2d 79 raising objection with the requisite (2d Cir.1993), “placed the [district court] error specificity plain avoid review on on process notice” of his due Aplt. claim. Winder, appeal. See 557 F.3d at 1136. Reply cases, however, Br. at 2. These are off the mark. post-trial Lindstrom was decided un- inspec As motion for for der tion, again failed to the Confrontation specifi Chnap- there Clause and court of cally apprise district his due kova under the relevancy standards He that process argued claim. the “denial Federal Rule Evidence 403. Neither to the prevents of access records counsel presents squarely case process argu- due adequately for Mr. Robinson from arguing suggests ments or even process rights due 1, for a new trial.” R. Doc. 72 Vol. at 1. infringed would be if the court refused to asserted, explanation, He also without that provide Robinson access to the Cl’s psy- deny access to the “[t]o documents is to chiatric records. deny the defendant his Sixth Amendment sum, In the record that shows Robin right counsel, to the effective assistance of objections specific son’s to the district right and his to Due Process of Law.” Id. court only were on based the Confronta at 2. objections” pre These “blanket are tion Clause. I would therefore review his cisely kind that “specificity lack the due process claim for plain error. See preserve

required to precise issue ... United v. Simpson, 1241, States Winder, appeal.” 557 F.3d at 1136 (10th Cir.1998) (reviewing plain for (quoting United Bedford, States v. error objections raised on different 1148, (10th Cir.2008), n. 4 F.3d cert. grounds court); in the district see also — denied, U.S. -, 1359, Redcorn, F.3d at (2009)). process L.Ed.2d 620 Due is an expansive topic, nothing in Robinson’s B. The Merits of Due Process cursory statements suggest he was argu Claim type for the contemplated relief claim, To support process his due Robin- Furthermore, Ritchie. in Robinson’s mo son primarily relies on the standards set tion for a new he confined his argu case, forth in Ritchie. a state trial ments to Confrontation Clause. This request a refused defendant’s to or- shows that general Robinson’s and cursory der a agency child services to disclose arguments in post-trial motion for in privileged pertaining records to the victim spection which, granted, if pur — of sexual abuse. state law privilege portedly permitted only him to “ade applicable to the qualified, records was argu[e] trial,” quately for a new R. Vol. competent jurisdiction” “court of could Doc. 72 at 1—were meant inform the Ritchie, order disclosure. 480 U.S. at specific more Confrontation argu Clause (internal quotation S.Ct. 989 marks Thus, ments the motion for new trial. omitted). the post-trial inspection motion for did not

specifically apprise the district court of Employing process analysis, a due particular process due claim. Supreme held Court that the state court part,

For his suggest Robinson does not should have conducted an in camera re- pre- post-trial records, motions properly view of the and should have re- means [is] defense rule where “disclosure “material” evidence to leased harm”); But the averting [imminent] 107 S.Ct. 989. Id. counsel. cf. no Chase, held that the defendant also Court Cir.2003) examine right personally process (refusing recognize danger- due “[although the noting that rule). ous-patient exception Jaffee ato may helpful be of an advocate eye Indeed, we have noted the federal held ... has never Court defendant privilege “is not rooted psychotherapist make the may alone ... defendant in a any right privacy constitutional but materiality [ex- as to determination quest which overrides public good Id. at 107 S.Ct. culpatory evidence].” evidence; privilege relevant is not sub- omitted).1 (citations 989 Glass, balancing component.” ject to Ritchie, added) (inter- Here, light (emphasis in the district 133 F.3d 1358 omitted). plain not error when did commit quotation court nal marks psychi- access to Cl’s denied Robinson circumstances, these Given the district review, plain-error atric records. “Under and de- judgment court exercised caution clear, ‘plain’ is if it is ‘obvious or an error spite thorny legal emerged issues that ” law.’ i.e., contrary if it is to well-settled though the eve of trial. And even Smith, 1253, v. 413 F.3d States United properly Rit- Robinson failed to raise his Cir.2005) (10th (quoting United claim, carefully chie court followed the 867, Edgar, F.3d v. States approved in Ritchie conduct- procedure Cir.2003)). court Any by the error district in psychi- an camera review Cl’s “contrary case not to well- in this records, informing parties atric law.” settled diagnosis, argu- psychiatric hearing recognize that important It (on from parties ments several occa- i.e., the of the Cl’s medical bulk records — sions), determining and the records the Cl’s statements to portions containing should remain confidential. See United their re- psychiatrists and statements (D.N.M. Haworth, v. 168 F.R.D. States garding potentially treatment —were 1996) (conducting analysis under Rit- v. subject privilege. to federal See Jaffee determining priv- that a chie and witness’s Redmond, 1, 15, 1923, 116 S.Ct. ileged psychotherapist records should not (1996) (“[W]e L.Ed.2d 337 hold defendants). disclosed be li-a communications between confidential Moreover, comports the court’s decision in and psychotherapist patients censed her materiality requirement. with the Ritchie are diagnosis the course treatment Ritchie, only material evidence— Under disclosure____”). compelled protected i.e., “probably have that which circuit, excep- privilege has few In this ... changed the outcome of trial” —need tions, plainly applicable and none were be disclosed to the defense. 480 U.S. See v. the facts this case. United States (10th Cir.1998) reviewing After 107 S.Ct. 989. Glass, 133 F.3d camera, case, interviewing a doctor in a records rule criminal (applying Jaffee hospital, hear- to the from Osawatomie State creating exception a narrow holding privileged wit- s medical records an adverse 1. Our decisions reaffirm Ritchie ness); Tansy, Tapia 1559- have that criminal defendants no constitution- (10th Cir.1991) (holding trial right personally inspect privileged rec- that a state al containing exculpatory evi- did not violate a defendant's constitu- potentially ords LaVallee, rights when it reviewed an affidavit tional dence. affidavit, camera, (10th Cir.2006) (refusing denied the sealed the affidavit). permit a defendant discover defendant access criminal prejudicial under ing arguments parties, probative from the the dis- than Federal Indeed, psychiatric trict court determined the Cl’s Rule of Evidence 403. the court irrelevant, prejudi- records contained characterized Robinson’s efforts use cial, evidence. or otherwise inadmissible evidence a mere “scurri- against Cl as my As below in the context of explained lous CL R. effort to discredit” the Vol. analy- Confrontation Clause harmlessness Doc. 93 at 10. sis, sound; ruling the district court’s Though psychiatric problems the Cl’s disclosure of the records would have had might provided Robinson ammunition

little effect on outcome credibility to damage the Cl’s before the trial. jury, ques the court’s decision to exclude short, the district court’s refusal to tions regarding state does permit inspect psy- Robinson to automatically establish Confrontation chiatric error plain records was not and Clause violation. Even when a defen cannot be the basis for reversal. rights dant’s Confrontation Clause are im plicated, presentation of “the evidence ... II. Confrontation Clause Claim comply ‘must established rules of evi I would that the Although hold district procedure.’” dence and States v. United court run afoul of the Due did not Process (10th Turner, 1337, 553 F.3d 1349 Cir. maintaining Clause in the confidentiality of 2009) Solomon, (quoting United States v. psychiatric agree the Cl’s I with 1231, (10th Cir.2005)), 399 F.3d 1239 cert. majority the that the district court erred denied, - U.S. -, 2446, 129 S.Ct. 174 when it prohibited inquir- Robinson from (2009). I L.Ed.2d 237 discern no error in ing into prescription the Cl’s medications the district court’s on reliance Rule 403 to so, at doing trial. the improperly court respect exclude cross-examination with “preclude[d] an entire relevant area of health, particularly light Cl’s mental in infringed cross-examination” and therefore in the court’s camera review of the rights. Robinson’s Confrontation Clause medical records and examination of the Montelongo, v. United States 420 F.3d Hinkle, psychiatrist. United States v. Cf. (10th 1169, Cir.2005) 1175 (quoting Parker (10th Cir.1994). 576, 37 579 F.3d Scott, v. F.3d Cir. Hinkle, Like the district in court 2005)). not, however, agree I do that the nothing trial court below “saw [the Cl’s district court erred in prohibiting Robin- or in testimony given file by medical] questioning son from regarding the Cl psychiatrist that suggested camera mental health. That was ruling based on credibility that the witness’ or perceptive an analysis under Rule Federal of Evi- capabilities Id.; impaired.” were see also dence 403 and was not an abuse of discre- Gonzalez-Sanchez, United States v. Moreover, tion. I hold any would that (1st Cir.1987) (“The trial error committed the district court in court found [the witness] suffered no hmiting cross-examination pre- on Cl’s mental incapacity that would affect his scription medications was harmless.

ability testify....”). Additionally, here, A. Mental Health jury district court was concerned the might improperly discount Cl’s testi In denying opportunity Robinson the mony recent merely because of his mental question the Cl regarding mental health health, problems. This is a valid consider any inquiry the court reasoned that into ation under Rule 403. United the defendant’s mental was state irrel- evant, Sasso, (2d Cir.1995); would have collateral 59 F.3d introduced is- cf. Hinkle, sues at at (noting would have been more 37 F.3d 579 n. “memory, perception, or was feet a witness’s the defendant believed court district Thus, agree I comprehension”). wit stigmatize the merely “attempt[ing] to district court’s pa majority apparent that the psychiatric as ness before Butt, regarding prohibition on cross-examination tient”); 955 F.2d States v. Cir.1992) (1st psychiatric medications im- a wit the Cl’s use of (noting that 83-84 an entire “preelude[d] relevant history “potentially properly psychiatric ness’s cross-examination,” denying Robin- may area of be exclud and therefore stigmatizing” evidence). opportunity impeach counsel son an ed memory perceptive faculties at the diag psychiatric informed of was Montelongo, 420 F.3d at time trial. given opportunity nosis and was 1316). Parker, F.3d at why (quoting cross-exam argue the district mental health issue ination on the The could have been avoided had issue under overly prejudicial relevant Robinson to con- the district court allowed its careful treatment 403. Given Rule or, minimum, voir dire duct issue, the district court say I cannot parties present arguments allowed the United States its discretion. See abused presence regarding outside (10th Cir.1996). McCarty, any taking medications circumstances, I hold time of trial. Robinson could then have In these why attempted fore- to demonstrate the medi- court’s decision to district cations were relevant to the Cl’s credibili- close cross-examination prosecutor likely would have re- ty. the “wide latitude” not exceed health did that the was irrelevant sponded in the context evidence courts are afforded trial Turner, prejudiced jury against challenges. or would have Clause Confrontation court then have an Delaware v. Van the Cl. The could made (quoting F.3d at 1349 553 Arsdall, 673, 679, ruling regarding on record informed the (1986)). admissibility of it the the evidence as did 89 L.Ed.2d the mental respect Cl’s health. with Prescription B. Medications ruling on But there is no such the record us. before not its But district court did confine the ruling to questions cross-examination Thus, this case stands contrast mental health. Robinson about the Cl’s court-imposed limita- involving cases other into the prohibited inquiring also from

was respect tions on cross-examination dem- prescription medications even psychiatric health and a witness’s mental why such cross-examination onstrating occasions, prior medications. On several Though the appropriate. have been would on upheld have various restrictions we that explicitly not state district court did cross-examination, usually inqui- but some psychiatric into the medi- any inquiry state al- ry into the witness’s mental was limits, was off defense counsel cations was LaVallee, States v. lowed. See United understandably hesitant to delve into Cir.2006) (concluding F.3d issue.2 the district court denied dis- although that out, medical points covery privileged a a witness’s majority witness’s As appear “did not to limit is the court drugs use of or medications relevant Jones, scope questions that defendants States v. credibility. See United (10th Cir.2000) on cross-examina- (sug- witness] could ask [the infringe af- tion” and therefore did prescription might medications gesting hand, the was tak- any to medications did not reference On the defense counsel other trial. ruling time of whether its indeed barred ask court view, In rights); my the relevant factors defendants’ Confrontation Clause dence.” Jones, a (holding require conclusion of harmlessness. prohibition district court’s cross-exami- argument appeal central nation was on a witness’s health the firearm is that Cl lied about trans- permissible allowed such because testimony action. But most of the Cl’s presence examination outside corroborated; uncorrob- Hinkle, jury); (holding F.3d at portion testimony orated addressed because court did not “rule out the district place the events that took inside Robin- all testimony regarding the witness’ men- during house few moments of the son’s health,” tal it did not violate the Confron- buy. consequence, controlled As a Robin- tation it Clause when excluded evidence theory son falls back on a that strains seeing psychiatrist). the witness was credulity argues lack of corrobora- —he sum, precedent suggests our the dis- critical, subject tion on this it is because granted trict court should open possibility leaves Cl “left the greater cross-examining the latitude night gun with before [Robinson] [the granted opportuni- Cl—or at least him the buy] merely up picked controlled ty argue that cross-examination was when the ATF took him to the residence.” regarding the medications the warranted — Aplt. Reply Br. at 8. The heard the taking psychiatric Cl was to treat his theory during closing arguments same problems. it, rejected persuaded and I am additional cross-examination not have made C. Harmless Error in bolstering theory. difference Notwithstanding the district er- court’s First, though testimony ror, constitutionally improper “the denial case, central to the it was impeach of a opportunity defendant’s largely by testimony corroborated ..., witness like other Confrontation Furthermore, agent. the ATF the ATF errors, subject Clause to ... is harmless- agent testified he saw unidentified Arsdall, analysis.” error Van 475 U.S. at (Robinson African-American) black male is 684, 106 S.Ct. 1431. error Because the house, invite the Cl into Robinson’s which dimension, of a constitutional “the Govern- least, suggests, in very the that the was Cl ment bears the burden to demonstrate with Robinson—and not alone—in the beyond the error was a rea- harmless house the time of the buy. controlled sonable Montelongo, doubt.” 420 F.3d at despite rough quality, And its the audio In conducting a harmless-error recording of buy the controlled at least analysis factors, we consider various in- minimally corroborated the Cl had cluding importance “the of the witness’ conversation with regarding Robinson the testimony prosecution’s case, in the illegal pistol’s missing serial number. testimony, cumulative nature of the Second, present Robinson to any failed presence corroborating or absence of important witnesses contradict the ele- contradictory testimony, of the extent Instead, of story. ments the Cl’s Robin- permitted, cross-examination otherwise to challenge and son called three witnesses strength the overall prosecu- Toles, tion’s case.” Cl’s recollection of the number of children United States v. (10th Cir.2002) in present the Robinson home at the time (citing Van Arsdall, 1431). buy, controlled in an attempt record, my credibility. Based on review of the I undermine the But dis- Cl’s agree majority’s with the conclusion Cl never testified he saw children at worthy Robinson’s verdict is “not confi- merely the time—he that he maintained provided in a room and Robinson the playing government children back heard the Thus, in nothing question credibili- during opportunity the transaction. the Cl’s story was suggests the Cl’s the record The district limitations on ty. court’s inaccurate. in light be viewed cross-examination must an the fact that Robinson was allowed Third, theory the Cl the defense’s —that searching cross-examination of otherwise gun lying planted and had short, many respects. Robin- not have been bol- frame Robinson—would motive, effectively challenged son the Cl’s regarding by admission of evidence stered bias, credibility the infor- even without The Cl psychiatric medications. mation contained the mental health rec- at the time taking medications ords. buy. may have been the controlled He drugs, but illegal the influence of under Finally, government’s against case counsel this information elicited have if strong Robinson would been even have during cross-examination and could had been to cross-exam- allowed explored drug abuse fully more psychiatric on his ine the Cl medications. to do That the Cl’s had he chosen so. government’s of testi- case consisted memory may have affected his medications mony carefully from the ATF agent, who any light trial does not shed at the time of buy and con- monitored controlled he lied about the transaction on whether firmed information he received intended to agents or whether he federal Cl; audio con- recording an Robinson for the crime. frame buy, which discuss- trolled recorded Fourth, op- given ample Robinson was handgun’s missing with Robinson the cross-examine the Cl on vari- portunity number; testimony from the Cl serial grounds, including his motive ous other himself, supervision who was direct under informant, becoming a confidential provided the ATF and accurate had favors from the payments and he received prior to the ATF on numerous information ATF, drug history, his criminal and his Though government’s occasions. case example, use. For the cross-examination been weakened might tangentially have history, the Cl had a criminal revealed inquire Robinson been into the able adult, juvenile both as and as during cross- psychiatric medications only after a confidential informant became examination, none gun “arrested with a and some he was facts would been contradicted. critical Topeka Department.” Police drugs record, my review of the entire Based also Doc. 93 at 96. The Cl R. Vol. by the any I am convinced that error made paid the ATF him for his services admitted in limiting cross-examination district charges not to promised file criminal beyond harmless a reasonable doubt. Furthermore, him. after the Cl against hold, and affirm Robin- I would so informant, ATF twice inter- became an conviction. son’s law, “scrapes” when he had with vened charges against ensuring no were filed III. Conclusion 2, Doc. Final- him. R. Vol. 93 at 99-101. reasons, foregoing respectfully I For mari- had smoked

ly, the Cl admitted he including dissent. juana various occasions— buy viola- the controlled night before —in agreement the ATF.

tion of his cross-examination revealed

This in favor of the potential bias

jury the Cl’s

Case Details

Case Name: United States v. Robinson

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Oct 20, 2009

Citation: 583 F.3d 1265

Docket Number: 08-3120

Court Abbreviation: 10th Cir.