                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         MAY 20 2004
                                 TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,

          v.                                            No. 03-2188
                                                  (D. Ct. No. CR-02-1715)
 MICHAEL L. LAMB,                                       (D. N. Mex.)

               Defendant - Appellant.


                            ORDER AND JUDGMENT          *




Before TACHA , Chief Circuit Judge,     LUCERO and MURPHY , Circuit Judges.


      Defendant-Appellant Michael L. Lamb was convicted of possessing with

the intent to distribute, and conspiring to possess, more than five kilograms of

cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(ii), and 846. Gerald

Schultz, Mr. Lamb’s coconspirator, testified as a government witness at trial. Mr.

Lamb challenges the District Court’s ruling that prohibited cross-examination of

Mr. Schultz regarding a previous auto-theft arrest and conviction for

misdemeanor assault. We take jurisdiction pursuant to 28 U.S.C. § 1291 and


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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.
AFFIRM.

                              I. INTRODUCTION

      According to the trial testimony, on September 2, 2002, Mr. Lamb and Mr.

Schultz left Missouri for Chihuahua, Mexico, after having made a similar trip in

the previous month. The two men arrived at a hotel in Chihuahua the following

morning, leaving their car in valet parking. An unidentified individual came to

their room that day, taking the keys and the valet parking receipt. Four days later,

the car was returned; and both men left Chihuahua for Kansas City.

      Outside Tucumcari, New Mexico, the car began experiencing mechanical

difficulties. The men took the car to a repair shop; and, during repairs, a block of

cocaine fell from the front of the car. The mechanic notified the local police

department, resulting in the arrest of Mr. Lamb and Mr. Schultz.

      Pursuant to a plea agreement, Mr. Schultz agreed to testify as a government

witness against Mr. Lamb. On cross-examination, Mr. Lamb’s attorney

questioned Mr. Schultz on a number of issues, including his mental health

treatment, his illegal drug use both before and during the conspiracy, his plea

agreement, and his false statements to police. Mr. Lamb’s attorney then

attempted to cross-examine Mr. Schultz concerning his 1994 auto-theft arrest and

his conviction for misdemeanor assault. The District Court prevented this line of

questioning, finding it irrelevant, potentially misleading, and impermissible under


                                        -2-
Rule 404(b) of the Federal Rules of Evidence. Mr. Lamb was convicted, leading

to this appeal.

                          II. STANDARD OF REVIEW

      A defendant may challenge limitations on cross-examination through two

means. See, e.g., United States v. Walton, 552 F.2d 1354, 1364 (10th Cir. 1977).

First, he may assert that the district court’s ruling violated the Confrontation

Clause of the Sixth Amendment to the Federal Constitution. When a defendant

contends that a district court ruling violated his rights under the Confrontation

Clause, we review de novo whether an error occurred and, if so, we review

whether the error was harmless beyond a reasonable doubt. United States v. Joe,

8 F.3d 1488, 1497 (10th Cir. 1993) (quoting Chapman v. California, 386 U.S. 18,

24 (1967)). Second, he may challenge the district court’s application of the

Federal Rules of Evidence. Under such claims, we review for an abuse of

discretion whether an error occurred and, if so, whether the error was harmless by

a preponderance of the evidence. United States v. Begay, 144 F.3d 1336, 1339

(10th Cir. 1998).

                                III. DISCUSSION

      Mr. Lamb claims that the District Court violated his constitutional rights

under the Confrontation Clause and abused its discretion under the Federal Rules

of Evidence in limiting the scope of his cross-examination of Mr. Schultz. We


                                         -3-
disagree.

A.     Confrontation Clause

       “The main and essential purpose of confrontation is to secure for the

opponent the opportunity of cross-examination.”        Davis v. Alaska , 415 U.S. 308,

315-16 (1974) (quotations omitted). The Confrontation Clause guarantees only

effective cross-examination, it does “not [guarantee] cross-examination that is

effective in whatever way, and to whatever extent, the defense might wish.”

Delaware v. Fensterer , 474 U.S. 15, 20 (1985) (per curiam). “Effective

cross-examination only requires that the trial judge not limit the scope of cross-

examination so that it prevents the jury from having sufficient information to

make a ‘discriminating appraisal’ of the relevant issue.”     Miranda v. Cooper, 967

F.2d 392, 402 (10th Cir. 1992). In guaranteeing this effective cross-examination,

district courts have “wide latitude . . . to impose reasonable limits . . . [on]

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.” Delaware v. Van Arsdall, 475 U.S. 673,

679 (1986).

       Here, the relevant issue was whether Mr. Lamb, in conspiracy with Mr.

Schultz, possessed over five kilograms of cocaine with the intent to distribute it.

To address this issue, the District Court granted defense counsel broad latitude in


                                            -4-
cross-examining Mr. Schultz on a wide array of topics, including: his agreement

to serve as a government witness, his drug addictions, his mental status after the

arrest, his psychiatric and drug-related hospitalization, his trips with Mr. Lamb to

Mexico, his initial false statements to police, his previous careless driving

convictions, his previous driving-while-intoxicated convictions, and his driving-

under-the-influence convictions. Given this broad scope, we find that the jury

had “sufficient information to make a ‘discriminating appraisal’ of the relevant

issue.” Miranda, 967 F.2d at 402.

      Moreover, the District Court’s exclusion of questions regarding Mr.

Schultz’s previous auto-theft arrest and misdemeanor assault was not contrary to

the tenets of the Confrontation Clause because these questions do not pertain

either to the charges faced by Mr. Lamb or to Mr. Schultz’s credibility. First,

these questions clearly reference activities that occurred well before, and

independently of, the present drug-trafficking conspiracy. Second, absent specific

evidence to the contrary, which is lacking in this record, neither a previous theft,

see United States v. Dunson , 142 F.3d 1213, 1215-16 (10th Cir. 1998) (holding

that a shoplifting theft is not a crime involving “false and misleading statements”

unless otherwise shown), nor a misdemeanor assault,    see United States v. Harvey,

588 F.2d 1201, 1203 (8th Cir. 1978) (“An assault conviction does not involve

dishonesty or false statement.”), impacts a witness’s credibility.


                                         -5-
       In short, the District Court’s ruling permitted Mr. Lamb’s attorney to cross-

examine on all relevant topics relating to the drug-trafficking trips to Mexico and

to Mr. Schultz’s credibility.   See Begay , 144 F.3d at 1339 (holding that excluding

discussion of some prior convictions on cross-examination was not a violation of

the Confrontation Clause when the district court allowed impeachment of the

witness based upon a prior DWI and lies previously told to law enforcement).

Therefore, we find that the District Court’s limitation of Mr. Schultz’s cross-

examination did not violate the Confrontation Clause.

B.     Federal Rules of Evidence

       We also find that the District Court did not abuse its discretion in applying

the Federal Rules of Evidence. Rule 609(a) governs the use of prior convictions

for persons other than the defendant on cross-examination. It provides:

       For the purpose of attacking the credibility of a witness, (1) evidence
       that a witness other than an accused has been convicted of a crime
       shall be admitted, subject to Rule 403, if the crime was punishable by
       death or imprisonment in excess of one year . . . ; and (2) evidence
       that any witness has been convicted of a crime shall be admitted if it
       involved dishonesty or false statement, regardless of the punishment.
       Fed. R. Evid. 609(a)

       As such, the District Court did not abuse its discretion pursuant to Rule 609

unless one of these two conditions are satisfied. Mr. Schultz’s auto-theft arrest

cannot fall under Rule 609 because it did not lead to conviction. Because his

assault conviction was a misdemeanor, it does not satisfy the requirements of


                                          -6-
Rule 609(a)(1). Further, the misdemeanor assault does not, absent more specific

facts, involve dishonesty or a false statement, as required by Rule 609(a)(2).          See

Harvey, 588 F.2d at 1203. Thus, the District Court’s ruling was proper under

Rule 609.

       Mr. Lamb also argues that a district court must permit cross-examination on

specific instances of conduct, such as an arrest for auto theft, when they

“concern[] the witness’ character for truthfulness or untruthfulness[.]” Fed. R.

Evid. 608(b). Again, absent more specific allegations, mere assault does not

impugn a witness’s credibility.    See Harvey, 588 F.2d at 1203. Further, the          arrest

for auto theft has no bearing on a witness’s character for truthfulness.         See

Dunson , 142 F.3d at 1216. This conclusion holds especially true when, as in this

case, the witness was not tried for, much less convicted of, theft, but was only

briefly arrested on suspicion of theft. Therefore, Rule 608(b) does not mandate

cross-examination on these matters.

       Finally, we find no merit in Mr. Lamb’s claim that the auto-theft arrest

shows Mr. Schultz’s “motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident” pursuant to Fed. R. Evid. 404(b). Mr.

Lamb contends that Mr. Schultz’s identification of another as the driver of the

stolen vehicle, after being charged with auto theft, establishes his modus operandi

of giving information to authorities in exchange for lenient treatment. At a


                                            -7-
minimum, a presentation of modus operandi evidence must show a similarity

between the past act and the present act.     See United States v. Kravchuk , 335 F.3d

1147, 1156 (10th Cir. 2003). Here, Mr. Schultz has agreed to cooperate with the

government in exchange for lenient treatment. According to defense counsel’s

proffer, there is simply no indicia of cooperation in exchange for lenient

treatment in connection with the auto-theft arrest. Because there is no similarity

at all between Mr. Schultz’s cooperation in this case and his past conduct related

to the auto-theft arrest, we find that the District Court did not abuse its discretion

in excluding questioning of Mr. Schultz’s alleged arrest for auto theft.



                                  IV. CONCLUSION

         Based on the foregoing, we AFFIRM the District Court’s exclusion of Mr.

Schultz’s 1994 conviction for misdemeanor assault and his alleged arrest for auto

theft.

                                            ENTERED FOR THE COURT,



                                            Deanell Reece Tacha
                                            Chief Circuit Judge




                                             -8-
