                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 16-4303
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                                   Cahlan A. Clay

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                          Submitted: November 17, 2017
                              Filed: March 5, 2018
                                   [Published]
                                 ____________

Before COLLOTON and GRUENDER, Circuit Judges, and READE,1 District
Judge.
                         ____________


PER CURIAM.




      1
       The Honorable Linda R. Reade, United States District Judge for the Northern
District of Iowa, sitting by designation.
       A jury convicted Cahlan Clay of one count of unlawful possession of a firearm
as a previously convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
Clay appeals his conviction, arguing that the district court2 violated his Fifth and
Sixth Amendment right to present testimony in his defense and his Sixth Amendment
right to confront witnesses against him. We affirm.

                                          I.

      On September 23, 2012, Detective Anderson and Officer Thomas of the Kansas
City, Missouri Police Department were working off-duty at a wedding reception in
Kansas City. Around 2:45 a.m., Detective Anderson heard a “pop,” which he
believed was a gunshot. This was followed by one or two more “pops,” which he
knew were gunshots. The sounds originated from a large crowd gathered in a nearby
parking lot. The crowd scattered, and Detective Anderson and Officer Thomas
moved toward the parking lot.

      Detective Anderson testified that, upon entering the parking lot, he saw Clay
holding a handgun. Detective Anderson saw the muzzle flash of Clay’s handgun as
Clay fired at him. Clay fled after Detective Anderson returned fire. Detective
Anderson maintained focus on Clay and pursued him. While in pursuit, Detective
Anderson fired multiple times at Clay. One of his shots hit Clay, who fell to the
ground. As Detective Anderson approached, Clay surrendered his handgun by
dropping it and said, “I’m done.” The entire incident lasted approximately thirty
seconds to a minute.

      The State of Missouri charged Clay with four felonies arising out of the
incident. On April 21, 2015, Clay’s state court trial began in Jackson County,


      2
      The Honorable Roseann A. Ketchmark, United States District Court for the
Western District of Missouri.

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Missouri. Detective Anderson and Officer Thomas testified at the state trial. The
trial ended in a mistrial after the jury was unable to reach a unanimous verdict.

        On July 28, 2015, a federal grand jury charged Clay with one count of unlawful
possession of a firearm as a previously convicted felon. On March 22, 2016, Clay’s
first federal trial began. During the trial, Detective Anderson testified that he heard
one “pop” followed by two more “pops” before he approached the parking lot and
encountered Clay. During cross-examination, Officer Thomas testified that he never
saw the face of the person holding the gun in the parking lot, but saw that the shooter
was wearing a white t-shirt. Officer Thomas stated that his identification was based
on Clay’s clothing.

        During closing argument, defense counsel argued that the officers’ testimony
was contradicted by the trial evidence in two ways. First, Detective Anderson
testified that he had heard three gunshots prior to approaching the parking lot, where
Clay fired a fourth shot. This testimony was contradicted by the fact that only three
shell casings matching the handgun were recovered. Second, Officer Thomas
testified that the shooter was wearing a white t-shirt, but the evidence established that
Clay was wearing a black t-shirt over a white t-shirt. Detective Anderson and Officer
Thomas observed closing arguments from the gallery. On March 24, 2016, the
district court declared a mistrial after the jury was unable to reach a unanimous
verdict.

        On May 9, 2016, Clay’s second federal trial began. Both officers testified at
the second trial. Detective Anderson’s testimony was similar to his testimony at the
first trial, except he testified that he heard two shots, rather than three, prior to
entering the parking lot. Specifically, Detective Anderson testified that he heard a
“pop” that sounded like a gunshot, followed by a second “pop” that he was certain
was a gunshot. Detective Anderson also testified, however, that he was not counting
shots and that he was unsure of the total number of shots fired. Officer Thomas’s

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testimony was also substantially similar to the first trial, except that, on cross-
examination, he described the shooter as wearing a black t-shirt over a white t-shirt.

         Based on the officers’ testimony, defense counsel sought to elicit testimony,
through either cross-examination or defense witnesses, that the officers had been
present for closing arguments at the first trial. Defense counsel contended that this
evidence supported the argument that the officers changed their testimony to conform
to the physical evidence after seeing how defense counsel attacked their testimony in
the first trial. The district court found that Detective Anderson and Officer Thomas
had “committed [their] statements on the record multiple times” before the current
trial, including statements given after the incident, during depositions and trial in state
court and at the first federal trial. The district court determined that defense counsel
had ample opportunity to impeach the officers without referencing the first federal
trial and concluded that the proffered evidence was “more confusing than helpful.”
Defense counsel was allowed to impeach the officers with their prior testimony by
referring to the first federal trial as a “hearing.”

       During cross-examination, defense counsel also sought to question Detective
Anderson regarding the consequences he could face for an unjustified shooting. The
prosecution objected that the testimony was speculative. Defense counsel argued that
this evidence established that Detective Anderson had a motive to say that Clay had
a gun, even if he did not, to avoid punishment. The district court sustained the
objection, finding that the record was sufficient to allow defense counsel to “argue
the inference[]” but that such testimony would “distract[] from the purpose of the
charge and this trial.”

       During closing arguments in the second federal trial, defense counsel argued
that Clay was unarmed and that Detective Anderson lied about Clay being armed to
avoid punishment. Defense counsel also argued that the officers’ testimony was



                                           -4-
inconsistent with their prior sworn statements, which indicated that they had changed
their testimony to align it with the physical evidence.

       The jury returned a verdict of guilty, and the district court sentenced Clay to
120 months’ imprisonment. Clay raises two issues on appeal. First, Clay argues that
the district court violated his right to present a defense under the Fifth and Sixth
Amendments by excluding testimony that the officers were present for closing
arguments during the first federal trial. Second, Clay argues that the district court
violated his Sixth Amendment right to confront witnesses against him by limiting
defense counsel’s cross-examination of Detective Anderson.

                                          II.

      “We review claims of constitutional error de novo.” United States v. Hawkins,
796 F.3d 843, 863 (8th Cir. 2015) (quoting United States v. Sweeney, 611 F.3d 459,
473 (8th Cir. 2010)).

       “‘[T]he Constitution guarantees criminal defendants a meaningful opportunity
to present a complete defense,’ which includes the right to present testimony of
witnesses that is material and favorable to their defense and complies with the rules
of evidence.” United States v. Holmes, 413 F.3d 770, 774 (8th Cir. 2005) (alteration
in original) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)). The right to
present testimony is “grounded in the [F]ifth and [S]ixth [A]mendments.” United
States v. Turning Bear, 357 F.3d 730, 733 (8th Cir. 2004). Merely showing that a
district court denied a defendant’s request to present particular testimony, however,
does not establish error. See id. Rather, while the arbitrary exclusion of admissible
testimony may violate a defendant’s rights, “the Constitution leaves trial judges ‘wide
latitude’ to exclude ‘marginally relevant’ or ‘repetitive’ evidence” without running
afoul of a defendant’s right to present a defense. United States v. Herbst, 668 F.3d
580, 585 (8th Cir. 2012) (quoting Crane, 476 U.S. at 689).

                                         -5-
      Clay argues that the district court violated his right to present a complete
defense by excluding testimony that Detective Anderson and Officer Thomas were
present for closing arguments during the first federal trial. Clay contends that this
evidence would have bolstered his defense that Detective Anderson lied about seeing
him with a gun. Clay further argues that this evidence corroborated his defense by
giving the jury grounds to infer that both officers tailored their testimony to the
physical evidence.

       We find that the district court committed no error by excluding the requested
testimony. The district court found that the proffered testimony was of little
probative value and was outweighed by the risk of confusion of the issues. As did the
district court, we note the considerable amount of committed testimony in this case
that could be, and was, used to impeach the officers and call into question the
reliability of their testimony. The district court also found that defense counsel could
have used cross-examination to show that the officers viewed the physical evidence
subsequent to the night of the incident and had a chance to tailor their testimony,
without mentioning the prior trial. Although the defense was forbidden to inquire
whether the officers were present for closing arguments at a prior trial, nothing
prevented defense counsel from asking other questions to establish that the officers
learned after their prior testimony about evidence that contradicted their original
accounts. Clay thus had an adequate opportunity to lay the foundation for an
argument that the officers tailored their testimony to match other evidence. In light
of the above, the district court’s conclusion that the probative value of the testimony
was outweighed by the risk of confusion was not arbitrary, unreasonable, or
disproportionate.

       Additionally, we do not agree with Clay that Portuondo v. Agard, 529 U.S. 61
(2000) is instructive to this case. In Portuondo, the Supreme Court held that a
prosecutor did not violate the defendant’s rights when, during closing argument, she
“call[ed] the jury’s attention to the fact that the defendant had the opportunity to hear

                                          -6-
all other witnesses testify and to tailor his testimony accordingly.” Id. at 63. This
decision did not address the admissibility of testimony nor the standard used to
determine if a district court properly excluded proffered testimony. As discussed, the
district court properly weighed the concerns of confusion of the issues against the
probative value of the testimony, and it did not commit error when it excluded the
requested testimony.

                                         III.

       We review “evidentiary rulings regarding the scope of a cross[-]examination
for abuse of discretion, but where the Confrontation Clause is implicated, we consider
the matter de novo.” United States v. White Plume, 847 F.3d 624, 629 (8th Cir. 2017)
(quoting United States v. Williams, 796 F.3d 951, 960 (8th Cir. 2015)).

       The Sixth Amendment’s Confrontation Clause guarantees a criminal defendant
the right “to be confronted with the witnesses against him.” United States v. Brown,
788 F.3d 830, 833 (8th Cir. 2015). “The primary purpose of this right is to guarantee
the opportunity for effective cross-examination, particularly with respect to a
witness’s potential bias.” Id. (quoting United States v. Walley, 567 F.3d 354, 358
(8th Cir. 2009)). The right to cross-examination, however, is not without limitation.
The district courts “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.
(quoting Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)).

      Clay argues that the district court violated his Sixth Amendment rights by not
allowing him to cross-examine Detective Anderson about his observation of closing
arguments in the first federal trial and the potential consequences if the shooting of
Clay was unjustified. On the first issue, Clay presents a substantively similar

                                         -7-
argument as that addressed above. We find that Clay’s right to confront Detective
Anderson was not violated for the reasons discussed. Simply, evidence that Detective
Anderson observed closing arguments was of little probative value, and the district
court properly weighed its value against the potential for confusion of the issues.

       Turning to the second issue, Clay contends that Detective Anderson’s motive
to lie about Clay being armed and dangerous arises directly from Detective
Anderson’s improper use of deadly force and subsequent attempt to avoid
punishment. We find that the district court was well within its discretion when it
limited cross-examination on this subject. We recently addressed a similar issue in
Williams, 796 F.3d 951. In that case, the defendant was arrested for being a felon in
possession of a firearm after a handgun was found in his possession during a traffic
stop. The district court prevented the defendant from cross-examining the officers
about their potential motives for planting the handgun on the defendant. We held that
“the district court was well within its wide latitude of discretion when it required [the
defendant] to first lay a proper evidentiary foundation before implying that [the
officers] had planted a handgun on [the defendant] and perjured themselves.” Id. at
961.

        We find that Clay provided only speculation and conjecture in support of his
contention that Detective Anderson perjured himself to avoid punishment. We do not
agree with Clay that the differences between Detective Anderson’s testimony in the
first federal trial and the second federal trial provide a foundation for this question.
Rather, we agree with the district court that this line of questioning was “distracting
from the purpose of the charge and [the] trial.” Accordingly, the district court was
well within its wide latitude of discretion when it limited cross-examination on this
issue.




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                                  IV.

The judgment of the district court is affirmed.

                ______________________________




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