Appeal from the United States District Court for the District of Columbia (01cr00180-11)
Before: Ginsburg, Chief Judge; Randolph and Roberts,
The opinion of the court was delivered by: Randolph, Circuit Judge
Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time.
Maurice "Mo" Hayes challenges four evidentiary rulings made during his trial for submitting false overtime claims to the Department of Education.
The government sought to prove that Hayes, a Bell Atlantic technician assigned to the Department, conspired with fellow technicians Robert Sweeney and William Cousin to submit false time sheets claiming overtime pay. Elizabeth Mellen, the Department employee who supervised the Bell Atlantic contract, permitted this practice in order to secure the technicians' cooperation with her larger conspiracy to steal hundreds of thousands of dollars in electronic equipment. See United States v. Mellen, 89 Fed. App. 268, 2004 WL 438571 (D.C. Cir. Mar. 5, 2004). Some of the bogus hours represented time the technicians spent performing personal favors for Mellen. Others were pure padding.
Sweeney and Cousin cooperated with the government and testified against Hayes. The government also introduced mobile phone records and building security logs that, it argued, were inconsistent with the time sheets Hayes had completed. The jury convicted Hayes and the district court sentenced him to 27 months' imprisonment.
One issue arises from the cross-examination of Sweeney. Sweeney claimed he never received payment for favors he performed for Mellen and her family, and that his only reward was Mellen's acquiescence in the overtime scheme. Defense counsel showed Sweeney a copy of a $100 check from Mellen's relatives payable to Sweeney and dated the day the technicians performed one of these favors. Although Sweeney acknowledged that his date of birth and driver's license number appeared on the front of the check, and that this was the sort of information a bank would put on a check when cashing it, he said he did not recall receiving the check. The copy of the check, marked for identification but not introduced into evidence, showed only the front.
The trial resumed four days later. After testimony ended for the day, Hayes' attorney told the court that he had obtained the original check, that the back bore what purported to be Sweeney's signature, and that he was "going to have to call [Sweeney] to show him the endorsement on the back" of the check. A brief discussion took place between the court and counsel for the defense and prosecution, ending with the court's statement that it would "deal with this tomorrow." Late on the next day, after three defense witnesses testified and the government presented a rebuttal witness, defense counsel announced that he had no further witnesses and the jury left. At that point, defense counsel told the court that he had forgotten about introducing the check and recalling Sweeney to the stand. Treating these statements as motions, the court denied both.
Hayes argues that the court's refusal to allow him to recall Sweeney violated his Sixth Amendment right to confront the witnesses against him. The Confrontation Clause ensures effective cross-examination, but it does not deprive trial courts of all authority to restrict a defense attorney's questioning of government witnesses. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). Some questions on crossexamination go beyond the scope of direct, deal with matters at the fringe of the case, are repetitive, confuse the issues, harass the witness, or invite the jury to consider extraneous matters. Courts may impose reasonable limits on such crossexamination, even when the questioning is intended to undermine the witness's credibility. The Confrontation Clause is violated only when the court bars a legitimate line of inquiry that "might" have given the jury a "significantly different impression of [the witness's] credibility." Id. at 680; United States v. Davis, 127 F.3d 68, 70-71 (D.C. Cir. 1997). In this case, the district court thought that more cross-examination of Sweeney about the check would have little probative value and would confuse the jury in light of the fact that Sweeney's fraud -- which he admitted -- did not turn on whether he received money for doing favors for Mellen's relatives. See FED. R. EVID. 403. Hayes' attorney had already crossexamined Sweeney extensively about the check, eliciting responses that confirmed the accuracy of the personal information on the front and Sweeney's admission that this information indicated the check had been cashed. Recalling Sweeney to the stand to ask about the endorsement on the back could hardly have affected the jury's impression of his credibility. The district court therefore did not abuse its discretion in refusing to allow it.
The court also refused to admit the check into evidence at the close of the case. Whether Sweeney received the check was a collateral matter -- relevant to his credibility but not to the underlying case. While the court allowed Hayes to cross-examine Sweeney about the subject, the court properly precluded the introduction of extrinsic evidence (the check) to contradict Sweeney's answers. See United States v. Tarantino, 846 F.2d 1384, 1409 (D.C. Cir. 1988).
The next issue also arose during Sweeney's testimony. On the morning of December 9, 1999, investigators conducted a series of raids directed at the larger conspiracy, including visits to the homes of Sweeney and Hayes. The investigators persuaded Sweeney to phone his co-conspirators and allow the government to record the conversations. Sweeney's first call was to Mellen. It ended with the following exchange:
Mellen: Are you going to be able to handle this? ...