                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             APR 13 2004
                                    TENTH CIRCUIT
                                                                        PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,                     No. 03-5053
           v.                                           (N.D. Oklahoma)
 HOMER PRICE,                                        (D.C. No. 02-CR-19-P)

                Defendant - Appellant.


                              ORDER AND JUDGMENT          *




Before TACHA, Chief Circuit Judge,       ANDERSON and BALDOCK , Circuit
Judges.




       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




       This order and judgment is not binding precedent, except under the
       *

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Homer Price was convicted of possessing a firearm after a prior felony

conviction, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), and was sentenced

to 188 months’ imprisonment followed by five years’ supervised release.

Mr. Price appeals his conviction, claiming that his Sixth Amendment right to

confront witnesses was violated when the district court refused to allow his

attorney to use his prior acquittal in state court to impeach government witnesses’

testimony during cross-examination.



                                 BACKGROUND

      The charge against Price resulted from a domestic dispute between him and

his wife, Lynn Price, on December 1, 2001, at their residence in Tulsa, Oklahoma.

At Price’s trial in federal district court, Lynn Price testified that her husband had

returned to the house that day intoxicated and began arguing with her. When he

ran out of cigarettes, she drove him to the store to buy more. When they returned

home, he continued to argue with and threaten her and, after entering the house,

slapped her face. According to Lynn Price, she then heard a gun go off and saw

her husband holding a .38 revolver that he had previously bought for her. She

called the police and reported that her husband had shot at her. She testified that

Price then went to the bedroom and returned without the revolver. She then went

to the bedroom, retrieved the revolver, and left the house in her car. She met


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police officers, including Officer Ashley Williams, a few blocks away and told

them what had happened, and they took the revolver from her car.

      Meanwhile, Officer Michael Brown responded to the call that Lynn Price

had made before leaving the house. Officer Brown testified that he parked his car

half a house away from the Price residence and approached the residence on foot.

As he approached, he saw lights in the house go off and then, according to his

testimony, saw a man in the doorway holding a shotgun diagonally across his

chest. Officer Brown then returned to his police car and called for backup. When

other officers arrived, Officer Brown left his car again and moved behind a tree

across the street from the house. He testified that during this time he saw the man

come to the door several more times but on those occasions the man was not

carrying a shotgun. On one occasion, he saw the man walking with a cane.

      After some time, the man – who turned out to be Homer Price – emerged

from the house and was arrested by the waiting officers. The officers conducted a

protective sweep of the house, during which they did not observe any firearms.

Officer Williams then arrived at the house with Lynn Price, who gave consent to

search the house. During the search, a spent .38 caliber casing was found in the

bedroom, and a shotgun, loaded with two rounds, was found in the bedroom

closet.




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       Price was taken to the police station by Officer Williams. Officer Williams

read Price his Miranda rights, and he signed a waiver form. Officer Williams

testified that Price appeared very intoxicated but not so intoxicated that he was

incapable of understanding his rights or signing the waiver. After signing the

form, Price admitted to Officer Williams that he owned the shotgun.

       On February 8, 2002, Price was charged by federal grand jury indictment

with possessing firearms and ammunition having been previously convicted of a

felony, in violation of §§ 922(g)(1) and 924(e). On February 21, 2002, Price was

charged in state court of assault with a dangerous weapon, domestic assault and

battery, and carrying a firearm while under the influence of alcohol, in violation

of Oklahoma law. On May 15, 2002, the jury in his state court trial acquitted him

of all the state law charges.

       The federal trial was held November 18-19, 2002. Before trial, the

government submitted a motion in limine requesting that the court not allow Price

to refer explicitly to his acquittal in state court or to the nature of the state court

proceedings. Price’s attorney opposed the motion on the grounds that she

anticipated that the government’s witnesses might change their testimony in the

federal trial, and she intended to use the state court acquittal to show the

witnesses’ bias and motivation for doing so, under the theory that “the previous

testimony was not sufficient to obtain a conviction in state court, so the stories


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have changed to increase the chances of conviction.” R. Vol. I, tab 44 at 1. The

district court postponed ruling on the motion until the issue arose at trial. At

trial, the court first directed Price’s attorney to use the term “previous

proceeding” when referring to the state court trial. When Price’s attorney

subsequently sought to refer to the acquittal, the court directed her not to do so,

stating that “[m]y ruling is based on what I have heard and I don’t believe [the

acquittal] is relevant to this case.” Trial Tr. at 242, R. Vol. V. Price’s attorney

then moved for a mistrial, and the court denied the motion.

      On November 20, 2002, the jury in his federal trial found Price guilty of the

federal charge with respect to the shotgun but not with respect to the shotgun

ammunition, the .38 revolver, or the .38 revolver ammunition. Price brought this

appeal.



                                    DISCUSSION

      Price’s only argument on appeal is that the district court’s refusal to allow

reference to his state trial acquittal during cross-examination of government

witnesses violated his rights under the Sixth Amendment’s Confrontation Clause.

Whether a trial court’s restrictions on cross-examination violated a defendant’s

Sixth Amendment confrontation rights is an issue of law we review de novo.

United States v. Toles , 297 F.3d 959, 967 (10th Cir. 2002).


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       “The right to cross-examine witnesses is an integral part of the broader

Sixth Amendment right to confront witnesses directly in a criminal trial.”      United

States v. Oliver , 278 F.3d 1035, 1041 (10th Cir. 2001). In particular, “‘the

exposure of a witness’ motivation in testifying is a proper and important function

of the constitutionally protected right of cross-examination.’”       Delaware v. Van

Arsdall , 475 U.S. 673, 678-79 (1986) (quoting      Davis v. Alaska , 415 U.S. 308,

316-17 (1974)). Nevertheless, “trial judges retain wide latitude insofar as the

Confrontation Clause is concerned to impose reasonable limits on such cross-

examination based on concerns about, among other things, harassment, prejudice,

confusion of the issues, the witness’ safety, or interrogation that is repetitive or

only marginally relevant.”     Id. at 679; see United States v. DeSoto , 950 F.2d 626,

629 (10th Cir. 1991). “[T]he Confrontation Clause guarantees an         opportunity for

effective cross-examination, not cross-examination that is effective in whatever

way, and to whatever extent, the defense might wish.”        Van Arsdall , 475 U.S. at

679 (further quotation omitted). “On review, our task is to determine ‘whether

the jury had sufficient information to make a discriminating appraisal of the

witness’ motives and bias.’”     Oliver , 278 F.3d at 1041 (quoting   United States v.

Gault , 141 F.3d 1399, 1403 (10th Cir. 1998)) (further quotation omitted).

       In this case, we do not believe the district court’s refusal to allow reference

to Price’s state trial acquittal amounted to a Confrontation Clause violation.


                                            -6-
Although Price’s attorney was not allowed to refer to the acquittal, she was able

to use the prior inconsistent statements that the government witnesses had made

during the state trial to call into question these witnesses’ reliability. The record

indicates, for example, that in cross-examining Officer Williams, Price’s attorney

quoted the officer’s state court testimony that Price had been “extremely”

intoxicated whereas, as indicated above, in federal court Officer Williams

testified that Price was not so intoxicated he could not understand or waive his

Miranda rights. Trial Tr. at 154, 175, R. Vol. V. In questioning another officer,

called as a defense witness in regard to the same issue, Price’s attorney quoted the

officer’s state trial testimony that Price was in such a state of intoxication that he

“was unable to walk without assistance,” whereas in federal court she claimed

that Price would have been able to walk without assistance.     Id. at 314, 319. In

cross-examining Officer Brown, Price’s attorney quoted the officer’s state trial

testimony that he had parked one and a half houses away from the Price residence,

whereas in federal court he claimed to have parked a half house away.      Id. at 186,

208.

       Price argues that these inconsistent statements, by themselves, were only

useful for impeaching the witnesses’ credibility, not for showing bias. In order to

show bias, he maintains, it would have been necessary to reveal that the

inconsistencies may have been motivated by the state trial acquittal, which, under


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this theory, stimulated the witnesses’ desire to obtain a conviction in the federal

trial.

         We disagree. The idea that police officers testifying for the prosecution

might hope their testimony will help in obtaining a conviction is, we believe, not

so unfamiliar that a jury would need to know of a prior acquittal in order to draw

an inference of bias, if warranted, from inconsistent past testimony. The trial

transcript indicates that Price’s attorney implied the possibility of bias during her

closing argument, stating “I guess if you are allowed to tell it enough times,

maybe eventually you will get it the way you want it. I don’t know.” Trial Tr. at

362, R. Vol. VI. Through most of the trial, however, Price’s attorney chose to

downplay this suggestion, stating, for example, that “[i]t’s very easy 11 months

later to characterize something that you heard or that you were involved in, not

meaning to lie, not meaning to misrepresent. I’m not trying to tell you that these

police officers are dishonest, but I am trying to tell you that they could be very

gravely mistaken.”      Id. at 363. While Price’s attorney chose to emphasize the

possibility of mistake and de-emphasize the possibility of bias on the part of the

testifying police officers, we regard this as a strategic decision on her part and not

a result of an ability to imply bias more strongly.

         This is not a case, then, where “the trial court prohibited   all inquiry into the

possibility that [a witness] would be biased.”        Van Arsdall , 475 U.S. at 679. In


                                               -8-
light of the fact that the charges at issue in the state trial, though arising out of

the same incident, were entirely different from the charge at issue in the federal

trial, we conclude that allowing reference to the state trial acquittal in the federal

trial would have added little relevant information while posing a substantial risk

of confusing the issue or misleading the jury.     See United States v. De La Rosa ,

171 F.3d 215, 219-20 (5th Cir. 1999) (“[E]vidence of a prior acquittal will often

be excludable . . . because its probative value likely will be ‘substantially

outweighed by the danger of prejudice, confusion of the issues, or misleading the

jury.’” (quoting Fed. R. Evid. 403)). We therefore uphold the district court’s

ruling on this issue.



                                    CONCLUSION

       For the foregoing reasons, the judgment of the district court is AFFIRMED.

                                                  ENTERED FOR THE COURT


                                                  Stephen H. Anderson
                                                  Circuit Judge




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