                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         MAR 12 2002
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
 v.                                                    No. 01-5034
                                                  (D.C. No. 00-CR-80-B)
 JACQUELINE DALLESE MORRIS,                          (N.D. Oklahoma)
 a/k/a Jacqueline Dantzler,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, Circuit Judge, MCWILLIAMS, Senior Circuit Judge, and
STAGG **, District Judge. ***


      After a jury trial, Jacqueline Dallese Morris was convicted of obstruction of

correspondence in violation of 18 U.S.C. § 1702, uttering a forged security in

violation of 18 U.S.C. § 513, and false use of a social security number in

violation of 42 U.S.C. § 408(a)(7)(B). The district court sentenced Mrs. Morris to

      *
        This order and judgment is not binding precedent, except under the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.
      **
        The Honorable Tom Stagg, Senior District Judge, United States District
Court for the Western District of Louisiana, sitting by designation.
      ***
         We grant the joint motion of the parties to waive argument and have this
matter submitted on the briefs. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
five years probation on each of the counts, to run concurrently. In this appeal,

Mrs. Morris attacks the district court’s ruling on (1) the admissibility of several

items of evidence that she sought to have admitted, (2) her objection to the

Government’s rebuttal witness, and (3) her Batson challenge to the Government’s

peremptory strike against an African-American juror. We have jurisdiction

pursuant to 28 U.S.C. § 1291 and we affirm.



                                     Background

      In September of 1999, Mrs. Morris and her husband Darryl Morris rented a

house to Ms. Latahra Smith. From all accounts, the relationship between Ms.

Smith and Mr. and Mrs. Morris rapidly deteriorated. On November 1, 1999, Mr.

and Mrs. Morris began eviction proceedings against Ms. Smith for operating a day

care center at the house, not paying rent, and damaging the property. On

November 30, 1999, a default judgment was entered against Ms. Smith for

$4,500.00 for unpaid rent and damages. Ms. Smith moved out of the house the

same day.

      A few days later, three letters that appeared to contain checks and

addressed to Ms. Smith were delivered to the house. In fact, all three letters were

checks from the Oklahoma Department of Health and Human Services (“DHS”)

and were payable to Ms. Smith in the amounts of $33, $1,275, and $2,083. Mrs.


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Morris alleges that she called Ms. Smith, they argued about the money owed, and

Ms. Smith said that she could do whatever she wanted with the checks.

        On December 8, 1999, Mrs. Morris cashed the $33 check at a National

Check Cashers in Tulsa, Oklahoma. In order to get National Check Cashers to

allow her to cash the check, Mrs. Morris pretended to be Ms. Smith, using her

social security number and forging her name. Mrs. Morris also supplied

telephone numbers of people that she had previously contacted that could confirm

her false identity.

        On December 9, 1999, Mrs. Morris took the two remaining checks to

Muskogee Federal Credit Union where she had a checking account. Mrs. Morris

forged Ms. Smith’s signature on the back of the two checks and on a new

signature card for the account so that she could deposit the checks in her account.

During the next four days, Mrs. Morris withdrew the amount of the two checks

from the account.

        Ms. Smith informed DHS that she did not receive the checks and was told

that the two larger checks had been cashed at Muskogee Federal Credit Union.

Ms. Smith proved to the Credit Union that she had not endorsed the two checks

and was paid the amount of the checks. She denied both having spoken to Mrs.

Morris about the checks and having given permission for Mrs. Morris to cash

them.


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                                       Discussion

A. Evidentiary Issues

         We review the trial court’s evidentiary rulings for abuse of discretion.

United States v. Tan, 254 F.3d 1204, 1207 (10th Cir. 2001). Under this standard,

we will not disturb a trial court’s decision unless we have a definite and firm

conviction that the trial court exceeded the bounds of permissible choice in the

circumstances. United States v. Talamante, 981 F.2d 1153, 1155 (10th Cir.

1992).

         Mrs. Morris claims that the trial court erred “in refusing [her] evidence of

404(a)(2) bad character of the victim.” Aplt. Br. at 4 (referring to Fed. R. Evid.

404(a)(2)). In her brief, Mrs. Morris lists 39 specific instances of prior bad

conduct by Ms. Smith which Mrs. Morris sought to have admitted into evidence at

a pretrial hearing. Id. at 13-25. Mrs. Morris claims that “a large portion” of this

evidence was denied by the trial court. Id. at 13. Mrs. Morris fails to note that 10

of the instances listed in her brief were withdrawn by counsel and 22 were ruled

admissible at the pretrial hearing. V R. at 13-56. 1 Only the remaining seven

instances, which in reality are only six because instances three and thirty are




       Appellant failed to provide citations to the record in her brief. This
         1

would usually result in a waiver of review, United States v. Rodriguez-Aguirre,
108 F.3d 1228, 1237 n.8 (10th Cir. 1997), but the citations provided in the
Government’s brief cured this defect.

                                           -4-
duplicative, Aplt. Br. at 13, 21-22, were excluded at the pretrial hearing. These

six instances are: (1) Ms. Smith [then Mrs. Lewis] was found to have breached a

partnership agreement in a 1994 civil judgment, id. at 13, No. 3 and at 21-22, No.

30, (2) Ms. Smith was evicted immediately prior to moving into Mr. and Mrs.

Morris’ house for not paying rent by Mr. Kelly McNew, who was prepared to

testify that Ms. Smith lied about everything and could not be trusted, id. at 15,

No. 10, (3) Ms. Smith told Mrs. Morris that she had not been previously evicted

when she signed the lease, id. at 15, No. 11, (4) Ms. Smith filed a worker’s

compensation claim in 1993 that was dismissed because she was not eligible as a

part owner, id. at 19, No. 26, (5) a felony information was filed against Ms. Smith

[under her maiden name Canady] in 1994 for obtaining merchandise by means of

bogus checks, id. at 19, No. 27, and (6) Ms. Smith filed a false insurance claim

for $10,000.00 in 1993 that was denied, id. at 19, No. 28.

      In addition to the six instances of bad conduct excluded at the pretrial

hearing, Mrs. Morris asserts that the trial court erred in refusing to permit the

testimony of two defense witnesses, Gregory Meir and Barry Lewis, and the

introduction of six certified court documents. Aplt. Br. at 31. See VIII R. at 212-

14 (proffer); id. at 207 (describing the exhibits). According to the offer of proof,

Mr. Meir, Mr. Lewis’ attorney, would testify that Ms. Smith had falsely

represented in her divorce that her daughter was the child of Mr. Lewis. Mr.


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Lewis, Ms. Smith’s ex-husband, would testify about the false representation of

paternity, the 1993 fraudulent insurance claim, and “other frauds and bad

character in general of Latahra Smith.” Id. at 213. Of the six excluded exhibits,

two dealt with a 1996 misdemeanor conviction for obtaining property by bogus

checks, one dealt with a 2000 misdemeanor conviction for bogus checks, two

dealt with the misrepresentation of paternity as to Mr. Lewis, and one was never

described. 2 Id. at 197, 207.

      Mrs. Morris argues that the trial court abused its discretion in excluding the

above referenced evidence because it was admissible pursuant to Fed. R. Evid.

404(a)(2) as evidence of a pertinent trait of character of the victim, Fed. R. Evid.

405(b) as an essential element of the defense, Fed. R. Evid. 406 as evidence of

habit, Fed. R. Evid. 608(b) as specific instances of conduct of a witness

concerning the witness’s character for truthfulness or untruthfulness, and Fed. R.

Evid. 701 as opinion testimony by a lay witness. Aplt. Br. at 28-34.

      As a general rule, evidence of a character trait is not admissible for the

purpose of proving that a person acted in conformity with that trait on a particular

occasion. Fed. R. Evid. 404(a). There are, however, a number of situations

where character evidence is admissible because it is being offered for other



      2
           Obviously, we are unable to review the admissibility of the undescribed
exhibit.

                                          -6-
purposes. The grounds for admissibility raised by Mrs. Morris are best grouped

according to method of proof: (1) extrinsic evidence of specific instances of

conduct to prove a character trait, Rule 405(b) and Rule 406; (2) inquiry about

specific instances of conduct on cross-examination for the limited purpose of

attacking a witness’s credibility, Rule 608(b); and, (3) opinion testimony, Rule

701. It is important to remember that, even if evidence is admissible under one of

these rules, it may still be properly excluded under Fed. R. Evid. 402 as irrelevant

or under Fed. R. Evid. 403 as prejudicial, confusing, misleading, or cumulative.

      (1) Extrinsic evidence of specific instances of conduct.

      Fed. R. Evid. 405(b) and 406 allow the introduction of extrinsic evidence

of specific instances of conduct. In this case, extrinsic evidence of specific

instances of conduct include: the six certified court documents excluded at trial,

the testimony of Mr. Meir and Mr. Lewis that Ms. Smith misrepresented the

paternity of her daughter, the testimony of Mr. Lewis regarding the attempted

insurance fraud, the testimony of Mr. McNew that Ms. Smith failed to pay him

rent and lied about being eligible for state housing assistance, and any of the

judgments or the information filed against Ms. Smith dealing with the six

instances of conduct excluded at the pretrial hearing.

      Rule 405(b) allows the admission of proof of specific instances of a

person’s conduct in “cases in which character or a trait of character of a person is


                                         -7-
an essential element of a charge, claim, or defense ....” Fed. R. Evid. 405(b).

Because this evidence has the greatest capacity to arouse prejudice, confuse,

surprise, and consume time, proof of specific instances of a person’s conduct may

be used only when character is in issue “in the strict sense.” Talamante, 981 F.2d

at 1156 (citing Fed. R. Evid. 405 advisory committee’s note). Character is

directly in issue “in the strict sense” when it is a material fact that under the

substantive law determines rights and liabilities of the parties. Perrin v.

Anderson, 784 F.2d 1040, 1045 (10th Cir. 1986) (citing Edward W. Cleary,

McCormick on Evidence § 187, at 551 (3d ed. 1984)). In such a case the

evidence is not being offered to prove that the defendant acted in conformity with

the character trait; instead, the existence or nonexistence of the character trait

itself determines the rights and liabilities of the parties. Id. (citations omitted).

The most obvious example is a defamation action. Whether the plaintiff has the

character trait in question itself determines whether the defendant is liable.

      Mrs. Morris claims that the evidence of Ms. Smith’s character traits for

lying, cheating, and defrauding is admissible under Rule 405(b) as an essential

element of the defense because “the defendant’s theory was that [Ms. Smith]

intentionally lied to authorities in order to beat, cheat, and defraud the defendant

out of the money that [she] had previously agreed could be endorsed, cashed, and

applied to the just debt owed by [Ms. Smith] to the defendant.” Aplt. Br. at 31.


                                          -8-
We do not agree. Mrs. Morris admitted to opening Ms. Smith’s letters and

forging Ms. Smith’s name and social security number. Her defense was that she

had Ms. Smith’s permission. Mrs. Morris wanted to introduce evidence of lying,

cheating, and defrauding by Ms. Smith for the purpose of proving that Ms. Smith

was acting in conformity with these character traits when she denied having given

permission to cash the checks. The existence of the character traits of lying,

cheating, and defrauding by themselves does not determine the rights and

liabilities of the parties. The excluded extrinsic evidence is, therefore, not within

the Rule 405(b) exception.

      Rule 406 permits evidence of the habit of a person to prove that the

conduct of the person on a particular occasion was in conformity with the habit or

routine practice. Fed. R. Evid. 406. Although habit evidence is not character

evidence, the Tenth Circuit has noted that proving habit may offer a backdoor to

proving character because habit and character are closely akin. United States v.

Yazzie, 188 F.3d 1178, 1190 (10th Cir. 1999) (“[A]lthough evidence an

individual routinely acted in a particular manner may be offered to show he acted

in conformity on an occasion, those routine practices may also coalesce to provide

specific instances proving character.”). Habit is defined as “one’s ‘regular

practice of meeting a particular kind of situation with a specific type of

conduct.’” Id. (citing Fed. R. Evid. 406 advisory committee’s note). Examples


                                         -9-
include going down a particular stairway two stairs at a time, giving the hand

signal for a left turn, alighting from railway cars while they are still moving, Fed.

R. Evid. 406 advisory committee’s note; reacting with extreme violence to any

contact with a uniformed police officer, Perrin, 784 F.2d at 1046; and placing a

gun in your belt every morning, Yazzie, 188 F.3d at 1189.

      Mrs. Morris argues that the extrinsic evidence of specific conduct should

have been admitted as evidence of habit because “[Ms. Smith], when faced with

... financial adversity, had formed the habit of lying to obtain financial gain.”

Aplt. Br. at 32. Lying to obtain gain when faced with financial adversity is

neither a particular kind of situation nor a specific type of conduct. Additionally,

this court has held that stealing money through extortion or check forgery cannot

become a semi-automatic act and, thus, cannot constitute a habit under Rule 406.

United States v. Troutman, 814 F.2d 1428, 1455 (10th Cir. 1987); United States

v. Fairchild, No. 93-3090, 46 F.3d 1152, 1995 WL 21608 at *2 (10th Cir. Jan. 12,

1995) (unpublished). We find that the trial court did not abuse its discretion in

determining that this was not habit evidence.

      Additionally, we find that the exhibits, the testimony of Mr. Meir, and the

testimony of Mr. Lewis as to the false representation of paternity are cumulative

evidence. Fed. R. Evid. 403. The 1996 and 2000 convictions for bogus checks

and the misrepresentation of paternity issues were inquired into by Mrs. Morris’


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counsel on cross-examination and were admitted to by Ms. Smith. IX R. at 434-

38. Extrinsic evidence supporting these admissions would have been cumulative.

Fed. R. Evid. 403; United States v. Magleby, 241 F.3d 1306, 1316 (10th Cir.

2001) (citations omitted) (“Evidence is cumulative if repetitive, and if the small

increment of probability it adds may not warrant the time spent in introducing

it.”).

         (2) Specific instances of conduct on cross-examination.

         Under Fed. R. Evid. 608(b), “[s]pecific instances of the conduct of a

witness, for the purpose of attacking or supporting the witness’ credibility, ... may

not be proved by extrinsic evidence. They may, however, in the discretion of the

court, if probative of truthfulness or untruthfulness, be inquired into on cross-

examination of the witness (1) concerning the witness’ character for truthfulness

or untruthfulness ....” Rule 608(b), therefore, allows inquiry about specific acts

for the sole purpose of supporting or attacking a witness’s credibility.

         In this case, inquiry evidence would have included any bad act that Mrs.

Morris wanted to but was not allowed to ask Ms. Smith about on cross-

examination. As noted above, Ms. Smith was asked about the subject matter of

the six excluded exhibits and the misrepresentation of the paternity of her

daughter. Additionally, she was asked about being evicted by Mr. McNew, her

prior landlord. IX R. 433-34, 439-40. Therefore, the only remaining evidence that


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was not inquired about on cross-examination were the other five instances

excluded at the pretrial hearing: (1) the 1994 civil judgment for breach of

partnership agreement, (2) the alleged misrepresentation by Ms. Smith to Mrs.

Morris that she had never been evicted, (3) the 1993 dismissal of a workers

compensation claim, (4) the 1994 felony information for bogus checks, and (5)

the 1993 unsuccessful fraudulent insurance claim.

      While the trial court did not fully explain the bases for excluding inquiry

into these five instances, it is readily apparent from the context. The breach of

partnership was ruled to be “too far afield.” V R. at 35-36. As to the other four

instances, inquiry was denied unless a certified judgment was produced. V R. at

39-40, 50, 53-54, 54-55, 55-56. We believe that the trial court was relying on

Fed. R. Evid. 402 as to the instances excluded for being too far afield or

constituting mere allegations and Fed. R. Evid. 403 as to the remaining instances.

      Rule 402 makes irrelevant evidence inadmissible. Fed. R. Evid. 402. Rule

403, excludes evidence whose probative value is substantially outweighed by the

danger of unfair prejudice, confusion of the issue, misleading the jury or by

considerations of undue delay, waste of time or needless presentation of

cumulative evidence. Fed. R. Evid. 403. All five instances were six to seven

years old at the time of the trial. (1) The breach of the partnership agreement

would have caused confusion and undue delay because of the time required to


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explain the details of the civil case. (2) It was established at the pretrial hearing

that because the eviction by Mr. McNew was obtained after Ms. Smith signed the

first lease, she did not misrepresent having not previously been evicted to Mrs.

Morris. V R. at 50. 3 (3) There was no finding of fraud in the dismissal of the

workers compensation claim. Given that questioning was permitted regarding

obtaining merchandise by bogus check in 1996 and 2000 and bank fraud in 1999,

the (4) 1994 information filed against Ms. Smith for writing bogus checks and the

(5) unsuccessful insurance fraud seem to clearly be cumulative as well as

constituting mere allegations which in and of themselves are not probative of

anything. We find that the trial court did not abuse its discretion in excluding

inquiry about these five instances during cross-examination.

      (3) Opinion testimony.

      Rule 701 allows a witness, not testifying as an expert, to give testimony in



      3
        In Appellant’s brief, this instance is described as “[Ms. Smith] told the
defendant (Ms. Morris) that she had not been evicted before, and had never been
in trouble.” Aplt. Br. at 15. At the pretrial hearing, the court ruled that if Mrs.
Morris had certified copies of evictions prior to the signing of the lease Ms.
Smith could be questioned about the misrepresentation. V R. at 45. The court
excluded the eviction by Mr. McNew because the eviction became final after Ms.
Smith signed the first lease. Id. at 50. Mrs. Morris’ counsel withdrew evidence
of two evictions prior to the signing of the lease at the pretrial hearing and did not
offer a certified copy of any other prior eviction at the pretrial hearing or at trial.
Aplt. Br. at 13, No. 4 and at 14, No. 5; V R. at 36. Therefore, only the eviction
by Mr. McNew appears to remain as evidence that Ms. Smith lied to Mrs. Morris
about not having been previously evicted.

                                         - 13 -
the form of an opinion if the opinion is rationally based on the perception of the

witness and helpful to the determination of a fact in issue. Fed. R. Evid. 701.

Mrs. Morris’ entire argument in support of admitting opinion testimony consists

of:

      “In addition Rule 701 allows opinion testimony by lay witnesses.
       This rule would support testimony by lay witnesses that in their
      opinion the victim is untruthful.”

Aplt. Br. at 33. We, therefore, deem this argument waived for failure to brief.

Phillips v. Calhoun, 956 F.2d 949, 953 (10th Cir. 1992).

B. Rebuttal Witness

      Mrs. Morris asserts that the trial court erred in allowing the Government’s

rebuttal evidence - the testimony of Ms. Smith - which should have been

introduced in the case-in-chief. Aplt. Br. at 34. We review the trial court’s

decision to admit or exclude rebuttal evidence for abuse of discretion. Koch v.

Koch Ind’s, Inc., 203 F.3d 1202, 1224 (10th Cir. 2000). “Rebuttal evidence may

be introduced to explain, repel, contradict or disprove an adversary’s proof.”

United States v. LiCausi, 167 F.3d 36, 52 (1st Cir. 1999) (internal citations

omitted); Charles A. Wright & Victor J. Gold, 28 Federal Practice & Procedure §

6164, at 381 (1993). It is within the trial court’s discretion to allow evidence

offered in rebuttal that would achieve a proper function of rebuttal, but also could

have been offered during the Government’s case-in-chief. Federal Practice §


                                        - 14 -
6164, at 382-83 (citing cases therein). Mrs. Morris testified that Ms. Smith gave

her permission to cash the checks. Ms. Smith’s testimony that she did not give

permission was offered to contradict Mrs. Morris’ testimony and, therefore, was

offered to achieve a proper function of rebuttal. We find that the trial court did

not abuse its discretion in allowing Ms. Smith to testify in rebuttal. Additionally,

we note that if there was any prejudice due to Ms. Smith testifying in rebuttal, it

was eliminated by the trial court allowing Mrs. Morris to be recalled in

surrebuttal.

C. Batson Challenge

      Mrs. Morris contends that the trial court improperly allowed the

Government to use a peremptory strike against a juror because she was African-

American in violation of Batson v. Kentucky, 476 U.S. 79 (1986). Aplt. Br. at

37. In the context of a Batson violation, we review de novo whether the

prosecutor’s explanation is facially race neutral. We then review the trial court’s

ruling that the prosecutor did not intend to discriminate under the clearly

erroneous standard. United States v. Sneed, 34 F.3d 1570, 1580 (10th Cir. 1994).

      Mr. and Mrs. Morris and Ms. Smith are African-Americans. During jury

selection, only three African-Americans appeared in the panel of thirty-one. Of

the three African-Americans, only one, Ms. Yvette Maxwell, was excused by the

Government. Consequently, the jury of thirteen included two African-Americans.


                                        - 15 -
      In response to Mrs. Morris’ Batson challenge, the prosecutor explained that

Ms. Maxwell’s name appeared on a list of jurors who either had previously served

on a jury that returned a not guilty verdict where the United States Attorney’s

office felt the case was clearly proven beyond a reasonable doubt or who had said

or done something in the course of a previous trial that caused a significant legal

problem for the court or the prosecutor’s office. Aplee. Br. at 23 (quoting VI R.

at 57-58). The prosecutor had the list of disfavored jurors at the bench during the

challenge. Id. The prosecutor also noted that Ms. Maxwell was a landlord. The

trial court accepted the prosecutor’s explanation. VI R. at 58-59.

      We find that the two reasons given, being on a list of disfavored jurors and

being a landlord, are facially race neutral. After reviewing the record in this case,

we are not left with a definite and firm conviction that a mistake was committed

as to whether the prosecutor intended to discriminate. Accordingly, we hold that

the trial court’s ruling is not clearly erroneous and the Government’s peremptory

challenge was exercised in a constitutionally permissible manner.

      AFFIRM.

                                       Entered for the Court


                                       Paul J. Kelly, Jr.
                                       Circuit Judge




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