                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-3466
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
v.                                      * District Court for the Western
                                        * District of Missouri.
Deon Love,                              *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: February 12, 2003

                                 Filed: May 30, 2003
                                  ___________

Before HANSEN,1 Chief Judge, LOKEN and SMITH, Circuit Judges.
                              ___________

SMITH, Circuit Judge.

       Deon Love was convicted of a federal firearm violation and was sentenced to
120 months' incarceration. He argues that his Sixth Amendment right of confrontation
was violated when the district court impermissibly restricted his cross-examination
of three government witnesses– William Craig Thomas, Tommy Cummings, and
Chris Davis. More specifically, Love urges that the district court's limit on his

      1
        The Honorable David R. Hansen stepped down as Chief Judge of the United
States Court of Appeals for the Eighth Circuit at the close of business on March 31,
2003. He has been succeeded by the Honorable James B. Loken.
examination of Thomas is of "particular significance." We agree.2 The district court's
constraints on Love's cross-examination of Thomas–a crucial adverse
witness–violated the Confrontation Clause of the United States Constitution.
Accordingly, we reverse Love's conviction and remand for new trial.

                                          I.
                                    Background
      On January 23, 2002, a two-count indictment was returned charging Love with
being a felon and drug user in possession of a firearm and selling a stolen firearm.3
After trial, on May 21, 2002, a jury acquitted Love on the selling charge, but
concluded that he was guilty of illegally possessing a firearm.

       In support of the government's claim that Love–an undisputed felon–illegally
"possessed" a firearm, the jury heard from only one witness who actually observed
Love with a firearm. Thomas testified that on April 27, 2001, he saw Love with a
"rifle" or "shotgun" and a "little revolver." Thomas stated that Love offered to sell
him these weapons because Love was a felon and could not legally possess them.
According to Thomas, he declined Love's offer, and Love maintained possession of
the firearms.

      In response to this testimony, Love attempted to cross-examine Thomas about
his mental disability. The district court sustained the government's objection to any



      2
          Appellant argues–as support for his primary argument of error–that the
district court made three other minor cross-examination errors. However, we disagree
with appellant's assertion, and find no error in the three other cross-examination
issues raised on appeal. Accordingly, our review is isolated to appellant's primary
allegation of error.
      3
          See 18 U.S.C. §§ 922, 924 (1994).


                                         -2-
inquiry into Thomas's mental disability.4 Love proffered evidence5 to the court that
Thomas had been diagnosed with schizophrenia and a short- and long-term memory
impairment. Love argued that Thomas's mental illness–specifically his impaired
memory–was relevant to his ability to competently recall and recount events more
than a year after they allegedly occurred.

      On appeal Love acknowledges that Thomas's schizophrenia diagnosis is of
questionable relevance and instead concentrates his argument on Thomas's disabled
memory. Similarly, our analysis is limited to whether the district court too narrowly
limited Love's cross-examination of Thomas's impaired memory.

                                           II.
                                       Discussion


      4
        Interestingly, it was actually Thomas who made the objection–not the
government–as to inquiry into his mental defect. Neither the government nor Thomas
offered a basis for the objection. The district court sustained the objection without
comment.
      5
          The precise proffer is as follows:

      What I wanted to question him on is statements or an opinion that Dr.
      Novelus who submitted a report in favor of his mental disability, and
      Mr. Thomas did receive that disability, Your Honor, Dr. Novelus
      determined that Mr. Craig Thomas has – his short-term memory and
      long-term memory are impaired. He has severe mental impairments and
      he could also be an intrinsic schizophreni[c], which I can see where that
      possibly may or may not be as relevant, but, Your Honor, I certainly
      wanted to be able to question him regarding his mental ability and his
      impairments. I think it went – it goes directly to his ability to be a
      competent witness relating facts over a year old.

Appellant's Br., at 16.


                                           -3-
       The Sixth Amendment guarantees a defendant an opportunity for effective
cross-examination of witnesses. United States v. Warfield, 97 F.3d 1014, 1024 (8th
Cir. 1996). However, 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'[s] safety, or interrogation that is repetitive or only marginally relevant."
Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); see also United States v.
Beckman, 222 F.3d 512, 524 (8th Cir. 2000). A Confrontation Clause violation is
shown when a defendant demonstrates that a reasonable jury might have received a
significantly different impression of a witness's credibility had counsel been permitted
to pursue the proposed line of cross-examination. Harrington v. Iowa, 109 F.3d 1275,
1277 (8th Cir. 1990). A trial court's decision to limit cross-examination will not be
reversed unless there has been a clear abuse of discretion and a showing of prejudice
to defendant. United States v. Brown, 110 F.3d 605, 611 (8th Cir. 1997).

        Accordingly, we begin with a consideration of Love's right to challenge the
accuracy of Thomas's testimony with evidence that Thomas might have a mental
defect. As the Fifth Circuit has noted, "a defendant has 'the right to attempt to
challenge [a witness's] credibility with competent or relevant evidence of any mental
defect or treatment at a time probatively related to the time period about which he was
attempting to testify.'" United States v. Jimenez, 256 F.3d 330, 343 (5th Cir. 2001)
(quoting United States v. Partin, 493 F.2d 750, 763 (5th Cir.1974)). However, "[to]
be relevant, the mental health records must evince an 'impairment' of the witness's
'ability to comprehend, know, and correctly relate the truth.'" Jimenez, 256 F.3d at
343 (quoting Partin, 493 F.2d at 762). Factors which district courts should consider
before permitting such cross-examination include: 1) the nature of the psychological
problems; 2) whether the witness suffered from the condition at the time of the events
to which the witness will testify; 3) the temporal recency or remoteness of the
condition. See Boggs v. Collins, 226 F.3d 728, 742 (6th Cir. 2000).



                                          -4-
        The government urges us to affirm because "the district court had ample
opportunity to observe Thomas's demeanor[,] to conclude that Thomas was not then
suffering from the defect[,] and was able to competently recall events from the past."
However, the government's argument misunderstands the role of the district court–
it is to determine the relevance of a witness's reported mental defect. We do not
expect the district court to assume the role of a mental-health expert, and we
recognize that the existence of a mental condition, which bears on competence, may
not be discernible from a witness's demeanor.

        In this case, upon Love's inquiry into Thomas's disability,6 Thomas answered
"diabetes" and then promptly objected to any further questioning. The district court
sustained the objection without hearing any evidence of the witness's malady.
Evidence of Thomas's impaired memory diagnosis was first introduced during Love's
proffer. After becoming aware of the witness's alleged long- and short-term memory
affliction, the district court again sustained the objection and offered no comment on
the matter.




      6
         In a footnote the government argues that once Thomas responded that
his disability was "diabetes," Love was barred from offering extrinsic evidence to
impeach the answer. The government cites United States v. Elliott, 89 F.3d 1360,
1368 (8th Cir. 1996) and United States v. Capozzi, 883 F.2d 608, 615 (8th Cir. 1989)
as support for this proposition. Both cases involve Federal Rule of Evidence 608(b).
Generally, a party's right to impugn the character for truthfulness of an opposing
party's witness is limited to questioning the witness on cross-examination. When such
cross-examination testimony goes into evidence, the examiner must take his answer,
and he cannot offer impeachment testimony. However, the scenario before us does
not involve a question of character and therefore does not implicate Rule 608(b).
Furthermore, Thomas did not intimate that "diabetes" was his exclusive disability. In
fact, by objecting to further inquiry into his mental disabilities, Thomas indicated that
his answer was not exclusive.

                                          -5-
       We are convinced that the district court violated Love's right of confrontation
when it sustained Thomas's objection. First, we examine the nature of the
psychological problems. Collins, 226 F.3d at 742. Here the nature of the
psychological problem in question is memory loss–a condition that implicates
Thomas's ability "to comprehend, know and correctly relate the truth." Jimenez, 256
F.3d at 343 (citations omitted). Second, we look to whether the witness suffered from
the condition at the time of the events to which the witness will testify. Collins, 226
F.3d at 742. Thomas has suffered from this condition since at least 1996.7 He testified
in May of 2002 about events that took place in April 2001–six years after receiving
a diagnosis of impaired memory. Finally, we consider the temporal recency or
remoteness of the condition. Id. Here the temporal gulf–five years–between Thomas's
diagnosis and the events that he observed is not of sufficient duration to eclipse the
relevancy of the inquiry. Accordingly, we conclude that the district court violated
Love's right of confrontation by limiting his cross-examination regarding Thomas's
mental defect.

        Despite finding error below, our inquiry is not complete. We must now
consider whether the record shows "beyond a doubt that the error complained of did
not contribute to the verdict obtained." Van Arsdall, 475 U.S. at 678–79. In United
States v. Caldwell, 88 F.3d 522, 524 (8th Cir. 1996), we held that when a trial court's
decision to limit cross-examination violates the Confrontation Clause, a
determination must be made as to whether "the error was harmless in the context of
the trial as a whole." The Supreme Court has held that "[t]he harmless error doctrine
recognizes the principle that the central purpose of a criminal trial is to decide the
factual question of the defendant's guilt or innocence . . . and promotes public respect
for the criminal process by focusing on the underlying fairness of the trial rather than

      7
       The genesis of Thomas's disability diagnosis is a psychological
examination that he voluntarily submitted to in order to potentially–and in his case,
successfully–be entitled to early release from incarceration.


                                          -6-
on the virtually inevitable presence of immaterial error." Van Arsdall, 475 U.S. at 681
(internal citation omitted). In assessing whether the error was harmless, we consider
"multiple factors, including the importance of the [witness's] testimony to the overall
case against [the defendant]; whether it was cumulative, the presence of corroborating
or contradicting evidence, the extent of cross-examination otherwise permitted, and
the overall strength of the government's case." Caldwell, 88 F.3d at 525.

       Considering these factors, it is impossible for us to conclude that the error in
limiting the cross-examination of Thomas was "harmless beyond a reasonable doubt."
Van Arsdall, 475 U.S. at 684. First, in relation to importance of the witness's
testimony to the overall case against defendant, we note that Thomas was the sole
witness to see Love with a firearm in his possession. Second, because Thomas was
the only witness to observe Love with a firearm, it cannot be said that his testimony
was cumulative. Third, the record is void of any other examination regarding
Thomas's recall capacity–it was neither permitted nor attempted. The final factor–the
overall strength of the government's case–is fatal for the government's contention that
any error was harmless.

        The government argues that "even if the testimony of Thomas was disregarded
in its entirety, [the] . . . case against Love was strong." We are not so convinced. The
other witnesses–offered to support the selling charge of which Love was
acquitted–testified that at no time during the alleged sale did they observe a firearm
in Love's possession. Thus, if the testimony of Thomas was disregarded, then the
government is left with less than overwhelming evidence of Love's guilt, and we are
unable to say that the court's error was "harmless beyond a reasonable doubt."
Caldwell, 88 F.3d at 525.




                                          -7-
                                           III.
                                       Conclusion
       In conclusion, only one witness–Thomas–stated that he actually observed Love
possess a firearm. Love was barred from pursuing a line of questioning into this
critical witness's impaired memory diagnosis. This limitation denied Love his
constitutionally-guaranteed right to effectively cross-examine Thomas, and we cannot
definitively state "that this denial did not contribute to the verdict obtained." Id. at
678–79. We reverse and remand for new trial.

      A true copy.

             Attest:

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




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