                           No. 95-2803WMS



                                *
DEBORAH R. MORRIS               *
             Appellant,         *
                                *
    v.                          *   Appeal from the United States
                                *      District Court for the
                                *    Western District of Missouri
UNITED STATES OF AMERICA        *
             Appellee.          *           [PUBLISHED]




                   Submitted:   December 12, 1995

                       Filed:   January 11, 1996




Before MAGILL, GOODWIN1, and MURPHY, Circuit Judges.

PER CURIAM

     The only issue in this appeal from a guideline sentence is
whether the government's agreement in a plea bargain "to take no
position " on a motion for a downward departure based on aberrant
behavior precluded cross examination of a defense psychologist who
testified at the sentencing hearing.       There was no error in
allowing cross examination to clarify the agreed facts.
     Deborah R. Morris, while living with her husband on a military


          1
               The HONORABLE ALFRED T. GOODWIN, United
     States Circuit Judge for the Ninth Circuit, sitting by
     designation.



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reservation became aware of marital infidelity on his part and set
fire to his bed while he was asleep. The prosecution was commenced
by an indictment charging assault with intent to commit murder.
The plea bargain resulted in the dismissal of the indictment and
the substitution of an information charging one count of assault
with intent to do bodily injury, contrary to 18 U.S.C. § 113 (c)
(Class D felony).


     After admitting the elements of the offense in a statement of
stipulated facts, which also admitted that "the offense required
more than minimal planning," she entered into the written plea
agreement which bound the government to recommend a sentence at the
lowest end of the guideline range and, as noted, to take no
position on Morris' announced intent to move for        a downward
departure from the guideline sentence on the ground of a single act
of aberrant behavior.


     At the sentencing hearing, the defense called a clinical
psychologist whose written report had been attached to the
presentence investigation report and is a part of the record on
appeal. During the hearing, the psychologist testified on direct
examination in a manner consistent with the written report, which
contained a generalized statement that the marital relationship
described by Ms. Morris with her husband is "very consistent with
the classical pattern of domestic violence. That is, the behaviors
and events she described suggest that she is a battered spouse."


     When the testimony began to develop additional expert
testimony about spousal abuse, the government cross examined the
witness to try to narrow the source of domestic turbulence to the
incident of marital infidelity by asking: "Isn't really the crux
of Ms. Morris' anger, though, not spousal abuse but infidelity?"



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     After further questions along the quoted line, the prosecutor
asked:


    "So, you're telling the court that this marital infidelity had
nothing to do with why she tried to kill her husband?"


     After a bit more of this sort of exchange, the defense
objected that the government was violating the plea agreement by
"taking a position."
      This Circuit has not had occasion in a published opinion to
discuss the boundaries of "taking a position" on departures from
guideline sentences. The control of cross examination during a
sentencing hearing, and the discretionary rulings necessary in that
control must be guided by specific facts and argument in each case.
The problem does not lend itself to global, black letter lists of
permitted and not permitted questions. Accordingly, we decide
only that in this case, where the witness began to shift the focus
of the grounds for a downward departure from the agreed fact that
marital infidelity had precipitated the offense, to a larger
collection of grievances based upon spousal abuse, the prosecutor
had the right to employ reasonable cross examination to bring the
inquiry back to the agreed facts. The court has the authority to
permit reasonable cross examination to present the true facts if
distortion of the facts otherwise would occur. An agreement "not
to take a position" does not deny the prosecutor the right to ask
questions to    keep the inquiry from becoming a wide ranging
application for leniency based upon spousal abuse when the motion
purported to be based upon the agreed statement of facts.       The
matter of spousal abuse and its accompaniment of "post traumatic
stress disorder" had appeared for the first time in the
psychologist's report, and did not appear in the stipulated facts.



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      We have defined "a single act of aberrant behavior as an act
that is `spontaneous and seemingly thoughtless'."       See United
States v. Garlich, 951 F.2d 161,164 (8th Cir. 1991). The motion in
this case was based upon the defense theory that the revelation of
an act of marital infidelity had so incensed an offended wife that
she acted out spontaneously in a single act of aberrant behavior.
When that basis for the motion began to expand into other conduct
on the part of the alleged victim, the government had a right to
employ cross examination to make certain that the defense was
keeping its motion within the agreed facts and not enlarging the
facts to include a generalized syndrome of stress brought on by
domestic violence and spousal abuse. We have examined the entire
record with some care because of the novelty of the question and we
find no basis for saying that the district court abused its
discretion in allowing reasonable cross examination.


AFFIRMED




     A true copy.


           Attest:


                CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT




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