                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-29-2006

USA v. Harris
Precedential or Non-Precedential: Precedential

Docket No. 05-2016




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                                          PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                        No. 05-2016


             UNITED STATES OF AMERICA

                             v.

                   WILLIAM HARRIS,

                                  Appellant


      On Appeal from the United States District Court
                for the District of New Jersey
                   (D.C. No. 04-cr-00423)
     District Court Judge: Honorable William J. Martini


                Argued: December 12, 2006

Before: FUENTES and VAN ANTWERPEN, Circuit Judges,
            and PADOVA,* District Judge

________________
*The Honorable John R. Padova, District Judge of the Eastern
District of Pennsylvania, sitting by designation.
                 (Filed: December 29, 2006)

Robert Little, Esq. (Argued)
515 Valley Street
Suite 170
Maplewood, NJ 07040

       Counsel for Appellant


George S. Leone, Esq.
Mark E. Coyne, Esq. (Argued)
Office of United States Attorney
970 Broad Street
Room 700
Newark, NJ 07102

       Counsel for Appellee


                 OPINION OF THE COURT


VAN ANTWERPEN, Circuit Judge.

       A jury in the District of New Jersey convicted William
Harris of being a felon in possession of a firearm in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Harris now appeals
from that conviction, claiming he was denied a fair trial
because (1) he was improperly cross-examined by the

                               2
government about the credibility of police witnesses, (2) the
prosecutor improperly vouched for the credibility of
government witnesses during summation, and (3) the District
Court did not permit him to question a witness about
testimony in an unrelated criminal case that may have shown
a particular racial bias on the part of the witness. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and will affirm.

                              I.

       On May 8, 2003, officers of the Newark Police Auto
Theft Task Force approached Harris while he was in his car
and arrested him for possessing a handgun. At trial, Harris
and police witnesses provided very different accounts of
Harris’ roadside arrest and his subsequent detention at the
police station. Harris’ testimony conflicted with that of
police with respect to how and why the officers approached
Harris, what Harris had done before his arrest, the discovery
and origin of the weapon found in Harris’ vehicle, and the
origin and contents of a signed statement produced by police.

        At trial, after police witnesses and Harris gave
incongruous testimony, the prosecutor cross-examined Harris
about whether police witnesses had lied. As part of her cross-
examination, the prosecutor restated various assertions of
police witnesses that directly contradicted Harris’ testimony
and then asked Harris if it was his testimony that the police
witnesses were lying. For example, the prosecutor asked,
“Mr. Harris, it’s your testimony that when Detective Walker
told this jury that you were holding a gun in your hand that


                              3
night, he was lying?” Harris’ App. at 147A.1 At no time
during this examination did Harris object to these questions.

        After cross-examining Harris, the prosecutor made the
following statement during her summation: “So it’s the
defendant’s theory, as you heard, that it’s a big conspiracy . . .
that this gun just appeared, this statement was fabricated, this
statement was forged . . . and that then these officers came
into federal court, each one of them, with a collective 37
years of experience in the Newark Police Department, and


       1
         Other similar questions to which Harris now objects
include the following: (1) “So it’s your testimony, then, that
Officer O’Connor, when he came to court and explained how he
typed everything, he said, he - - that he was lying?” Harris’
App. at 123A. (2) “And it’s your testimony that Sergeant
Ferreira, when he testified and said how he showed your
statement to you, he was lying?” Harris’ App. at 123A. (3)
“And it’s your testimony that when he described how you were
taking the gun from your front waistband and putting it on the
floor of your car, he was lying?” Harris’ App. at 147A-148A.
(4) “It’s your testimony that Officer O’Connor just made that
up?” Harris’ App. at 163A. (5) “Sir, it’s your testimony that
Sergeant Ferreira was lying to this jury when he said that he
asked you if you swore to the contents of the form?” Harris’
App. at 177A. (6) “And how about when Officer O’Connor
said that you signed this statement, that he saw you sign the
statement, was he lying?” Harris’ App. at 177A. (7) “So when
Officer O’Connor said that you signed the form and he saw you
sign the form, he was lying?” Harris’ App. at 177A.

                                4
they put all that on the line to come in and tell you something
the defendant says wasn’t true.” Harris’ App. at 208A
(emphasis added). Although Harris now claims this statement
improperly bolstered the credibility of police witnesses, at no
time during the prosecutor’s summation did Harris object.

        Just before trial, the District Court made a preliminary
ruling with respect to a motion in limine filed by the
government. The motion sought to prevent Harris from
questioning one of the police officers involved in Harris’
arrest about an unrelated criminal case in which the officer’s
testimony may have shown a bias against Hispanics. The
District Court, in granting the government’s motion,
explained that the African-American officer’s alleged bias
against Hispanics was not relevant in Harris’ case because
Harris is not Hispanic (he is African-American) and because
such bias would not be relevant to the officer’s credibility.
After this preliminary ruling, Harris did not seek to admit
evidence of the arresting officer’s alleged bias.

                               II.

A. Prosecutor’s Questions to Harris About Police Witness
Credibility

       Harris first claims that the prosecutor improperly
influenced the jury’s determinations of witness credibility by
repeatedly asking Harris whether various police witnesses
had lied in an effort to convict him. Because Harris did not
object to any of the allegedly improper questions at trial, both
parties agree that we review this challenge under the plain

                               5
error standard of section 52(b) of the Federal Rules of
Criminal Procedure. See United States v. Johnson, 302 F.3d
139 (3d Cir. 2002).

        Under plain error review, we may grant relief if (1) the
District Court committed an “error,” (2) the error is “plain,”
and (3) the error “affect[s] substantial rights.” United States
v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 123 L. Ed. 2d
508 (1993). An error is “[a] deviation from a legal rule.”
United States v. Russell, 134 F.3d 171, 180 (3d Cir. 1998)
(citation omitted). It is “plain” when it is “clear under current
law.” Olano, 507 U.S. at 734. And, it “affect[s] substantial
rights” when it is “prejudicial,” i.e., it “affect[s] the outcome
of the district court proceedings.” Id. Even if these
requirements are satisfied, the court should only exercise
discretion to grant relief “‘in those circumstances in which a
miscarriage of justice would otherwise result.’” Id. at 736
(internal citations omitted).

       Of the federal courts of appeals that have examined the
propriety of questions posed to a criminal defendant about the
credibility of government witnesses, it appears nearly all find
that such questions are improper. See United States v.
Thomas, 453 F.3d 838, 846 (7th Cir. 2006); United States v.
Williams, 343 F.3d 423, 438 (5th Cir. 2003); United States v.
Sanchez, 176 F.3d 1214, 1219-20 (9th Cir. 1999); United
States v. Sullivan, 85 F.3d 743, 749 (1st Cir. 1996); United
States v. Boyd, 54 F.3d 868, 871 (D.C. Cir. 1995); United
States v. Richter, 826 F.2d 206, 208 (2nd Cir. 1987); but see
United States v. Williamson, 53 F.3d 1500, 1523 (10th Cir.
1995) (characterizing as unpersuasive the reasoning set forth

                                6
in Richter as to why such questions should not be allowed).
These other courts find such questions force defendants to
assess the credibility of others who have testified at trial–a
function exclusively reserved to the jury.2 See, e.g., Thomas,
453 F.3d at 846.

       However, despite their disapproval, courts of appeals
generally have not reversed a conviction solely because such
questions were posed unless opposing counsel specifically
objected to them. Compare Thomas, 453 F.3d at 846
(concluding questions did not influence jury’s verdict);
Williams, 343 F.3d at 438 (concluding that such questioning,
“though inappropriate, is not reversible error”); Sullivan, 85
F.3d at 750 (finding questions were harmless); Boyd, 54 F.3d
at 871 (finding defendant “suffered no prejudice from the
prosecutor’s improper questions”) with United States v.
Geston, 299 F.3d 1130, 1136 (9th Cir. 2002) (explaining “it is
reversible error for a witness to testify over objection whether
a previous witness was telling the truth”) (emphasis added).

       Today, we follow our sister circuits and hold that
asking one witness whether another is lying is inappropriate.
Such questions invade the province of the jury and force a
witness to testify as to something he cannot know, i.e.,
whether another is intentionally seeking to mislead the
tribunal. In addition, as Harris’ counsel explained during oral


       2
       See generally McCormick on Evidence § 43 n. 8 (6th ed.
2006) (explaining why it is usually impermissible to ask one
witness about another witness’ credibility).

                               7
argument, such questions force defendants into choosing to
either undermine their own testimony or essentially accuse
another witness of being a liar.

        However, we are not unmindful that “[i]t is essential . .
. to the proper functioning of the adversary system that when
a defendant takes the stand, the government be permitted
proper and effective cross-examination in an attempt to elicit
the truth.” United States v. Havens, 446 U.S. 620, 626-27,
100 S.Ct. 1912, 64 L.Ed.2d 559 (1980). Consequently, such
questions would obviously be proper if a defendant opened
the door by testifying on direct that another witness was
lying. See, e.g., Boyd, 54 F.3d at 871 (explaining that had the
defendant “testified on his own that the officers were lying,
such questions might be proper”). Similarly, it is often
necessary on cross-examination to focus a witness on the
differences and similarities between his testimony and that of
another witness. This is permissible provided he is not asked
to testify as to the veracity of the other witness. See, e.g.,
United States v. Gaines, 170 F.3d 72, 81-82 (1st Cir. 1999)
(explaining that questions that avoid the “‘L’ word” and call
upon a witness to say whether another was “mistaken” or
“wrong” may be acceptable); United States v. Gaind, 31 F.3d
73, 77 (2d Cir. 1994) (explaining that “[a]sking a witness
whether a previous witness who gave conflicting testimony is
‘mistaken’ highlights the objective conflict without requiring
the witness to condemn the prior witness as a purveyor of
deliberate falsehood, i.e., a ‘liar.’”). We do not foreclose the
possibility that other circumstances may make a question
about another witness’ veracity appropriate.


                                8
       Although we find the District Court erred in permitting
the prosecutor to ask Harris whether police witnesses had
lied, we find the error was not “plain.” The Supreme Court
has never ruled on the propriety of these questions, and, until
now, neither had this Court in a precedential opinion.
Furthermore, it is not likely that such questions, standing
alone and without objection, would have “affected the
outcome of the district court proceedings.” Olano, 507 U.S.
at 734. In conclusion, the District Court’s error was not clear
under the law as it existed during Harris’ trial and this
challenge must fail.

B. Alleged Vouching by Prosecutor

        Harris also alleges the prosecutor impermissibly
vouched for the credibility of police witnesses by indicating
in her summation that they would be jeopardizing their
careers if they were to lie in court. Because Harris did not
object to the alleged vouching at trial, we review this claim
under the plain error standard. See United States v. Brennan,
326 F.3d 176, 182-86 (3d Cir. 2003); United States v. Walker,
155 F.3d 180, 187-88 (3d Cir. 1998).

        As the Supreme Court explained in United States v.
Young, “a criminal conviction is not to be lightly overturned
on the basis of a prosecutor’s comments standing alone, for
the statements or conduct must be viewed in context; only by
so doing can it be determined whether the prosecutor’s
conduct affected the fairness of the trial.” 470 U.S. 1, 11, 105
S.Ct. 1038, 84 L.Ed.2d 1 (1985). With respect to improper
vouching, two criteria must be met: “(1) the prosecutor must

                               9
assure the jury that the testimony of a Government witness is
credible; and (2) this assurance [must be] based on either the
prosecutor’s personal knowledge, or other information not
contained in the record.” Walker, 155 F.3d at 187.

       When viewed in the context of the entire summation,
the prosecutor’s statement in this case was isolated and made
in response to Harris’ allegations that the police forged his
signature on a confession and planted a weapon in his
vehicle. In addition, at the end of the trial, the District Court
gave clear instructions to the jury regarding the evidentiary
value of statements by lawyers, the jury’s exclusive role in
making determinations of credibility, and the weight of police
witness testimony relative to that of other evidence. Overall,
while the prosecutor’s comment may have relied on
information not in the record, the District Court’s jury
instructions and the isolated nature of the comment prevented
the kind of “miscarriage of justice” that would require
reversal. Olano, 507 U.S. at 736 (internal citations omitted).

C. District Court’s Ruling That Excluded Evidence of Alleged
Racial Bias

       Finally, in a supplemental brief,3 Harris claims the


       3
        The supplemental brief was filed by counsel and raised
an issue Harris attempted to present in a pro se brief. Local
Appellate Rule 31.3 prohibits the filing of pro se supplemental
briefs except in cases in which counsel plans to withdraw under
Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d

                               10
District Court’s decision to prevent him from questioning an
arresting officer about an alleged racial bias violated his
rights under the Confrontation Clause. Harris asserts we
should review his claim de novo. In contrast, the government
argues Harris did not preserve this issue for appellate review
and, as a result, we should review it for plain error.

         The law on this point is clear: “[A] party who
unsuccessfully opposes an in limine motion to exclude certain
evidence can appeal that ruling without an offer of proof at
trial if the district court was fully informed and made a
pretrial ruling with no suggestion that it would reconsider that
ruling at trial. Concomitantly, where a district court makes a
tentative in limine ruling excluding evidence, the exclusion of
that evidence may only be challenged on appeal if the
aggrieved party attempts to offer such evidence at trial.”
Walden v. Georgia-Pacific Corp., 126 F.3d 506, 519 (3d Cir.
1997).

        The District Court in this case made a “preliminary
ruling” with respect to the government’s motion in limine at
the outset of the case. Specifically, the District Court Judge
stated, “my preliminary ruling will be that you’re not going to
get into it.” Gov’t App. at 103. After this ruling, Harris did
not attempt to offer evidence of the officer’s bias at trial. For
this reason, we will apply the plain error standard.4


493 (1967).
       4
        Concluding that the District Court’s ruling was final
and, as a result, applying the abuse of discretion standard would

                               11
        District courts retain “‘wide latitude insofar as the
Confrontation Clause is concerned 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.’” United States v. Mussare, 405
F.3d 161, 169 (3d Cir. 2005) (quoting Delaware v. Van
Arsdall, 475 U.S. 673, 678-79, 106 S. Ct. 1431, 89 L. Ed. 2d
674 (1986)). In deciding whether a specific limitation
violates a defendant’s rights under the Confrontation Clause,
we consider “(1) whether the limitation significantly limited
the defendant’s right to inquire into a witness’s motivation for
testifying; and (2) whether the constraints imposed fell within
the reasonable limits that a district court has the authority to
impose.” Id. (citation omitted).

       Harris alleges that testimony by a police witness in an
unrelated criminal matter is evidence of that officer’s bias
against Hispanics. Harris further argues that this bias affected
the officer’s testimony in this case, even though Harris and
the witness were both African-American. The District Court
ruled that, even if the officer’s earlier testimony supported an
inference that he held a bias against Hispanics, there was no
basis to believe that race was a factor in the officer’s decision
to stop Harris, an African-American.

       We agree with the District Court’s conclusion and find
no plain error. Assuming the officer held a bias against


not change our decision with respect to this claim.

                                12
Hispanics, it is not at all apparent how such a bias would
factor into the officer’s decision to stop or testify against an
African-American. Furthermore, given the District Court’s
wide latitude in these matters, we find that excluding
evidence of the alleged bias was well within the District
Court’s discretion.

                               III.

      For the foregoing reasons, we will affirm the District
Court’s Order of judgment and conviction.




                                13
