                                                                                 F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                  DEC 2 2003
                                    TENTH CIRCUIT
                                                                             PATRICK FISHER
                                                                                      Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                            No. 03-6006
 HARRY GEORGE FRANKLIN,                                  (D.C. No. 02-CR-47-M)
                                                            (W.D. Oklahoma)
           Defendant-Appellant.




                                 ORDER AND JUDGMENT*


Before KELLY, BRISCOE, and LUCERO, Circuit Judges.


       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this

appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered

submitted without oral argument.

       Defendant Harry George Franklin appeals his jury convictions of incest committed

in Indian country, in violation of 18 U.S.C. § 1153 and Okla. Stat. tit. 21, § 885, and



       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The 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.
sexual abuse of a minor under the age of sixteen, in violation of 18 U.S.C. §§ 1153 and

2243(a). We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

                                             I.

       Franklin’s sixteen-year-old granddaughter (the victim) reported to school officials

that Franklin had been sexually assaulting her. School officials relayed the information to

law enforcement authorities. The victim indicated that Franklin began fondling her when

she was twelve years old and over time proceeded to engage in more offensive behavior,

including repeated acts of sexual intercourse. Law enforcement authorities searched

Franklin’s mobile home and seized various items, including a used condom. Scientific

DNA analysis revealed that both Franklin’s and the victim’s DNA were isolated on either

side of the surface of the condom. The investigation also revealed that both Franklin and

the victim were Indians, and that Franklin’s mobile home, where the sexual molestation

occurred, was located on tribal land.

                                             II.

       As his sole issue on appeal, Franklin contends the district court erred in limiting

his cross-examination of the victim regarding what he describes as her “mental

condition.” We review the district court’s limitations on cross-examination of a witness

for an abuse of discretion and we will reverse “only if any error affected the substantial

rights of the accused.” United States v. Begay, 144 F.3d 1336, 1339 (10th Cir. 1998). In

doing so, we review de novo whether a defendant’s confrontation rights were violated by


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reason of improper restrictions on cross-examination. United States v. Sinclair, 109 F.3d

1527, 1537 (10th Cir. 1997).

       During the government's case-in-chief, the victim testified in detail regarding

Franklin’s conduct. On cross-examination, defense counsel asked the victim: “During the

past three years, was there an incident in the mobile home . . . where you ran down the

hallway and you said, ‘I’m crazy, I’m crazy, I’m crazy.” Tr. at 173. The victim

responded, “Yes,” but was unable to remember when the incident occurred. Id.

Immediately thereafter, government counsel asked for a bench conference and objected to

the inquiry. Defense counsel stated that he wanted “to find out if [the victim] sees people

who don’t exist, talks to people who don’t exist, and they talk to her.” Id. at 174. The

district court sustained the government’s objection and prohibited defense counsel from

additional inquiry into the proposed subject matter.

       Federal courts sometimes permit “the impeachment of government witnesses based

on their mental condition at the time of the events testified to.” United States v. Butt, 955

F.2d 77, 82 (1st Cir. 1992). However, the decision of whether to permit evidence or

cross-examination of a witness regarding his or her mental condition falls within the

broad discretion of the district court in attempting to balance possible prejudice versus

probative value. See, e.g., United States v. Moore, 923 F.2d 910, 913 (1st Cir.1991)

(noting evidence of witness’ mental instability, even if relevant, may be excluded on basis

of jury confusion or prejudice). “In assessing the probative value of such evidence, [a]


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court should consider such factors as the nature of the psychological problem, . . . the

temporal recency or remoteness of the [mental condition], . . . and whether the witness

suffered from the problem at the time of the events to which she is to testify, so that it

may have affected her ability to perceive or to recall events or to testify accurately.”

United States v. Sasso, 59 F.3d 341, 347-48 (2d Cir. 1995) (internal citations and

quotations omitted).

       After examining the record on appeal in this case, we find no abuse of discretion

on the part of the district court in limiting the cross-examination of the victim. Defense

counsel did not attempt to ask the victim whether she had ever been treated for mental

illness, nor did he attempt to introduce any extrinsic evidence, such as medical records,

pertaining to the victim’s mental health. See United States v. Smith, 77 F.3d 511, 516

(D.C. Cir. 1996) (“[t]he soundest course . . . is for the District Court to consider the

medical history of the specific witness in question so as to render an informed decision

regarding the relevance of that history”). Further, during the bench conference regarding

the cross-examination of the victim, defense counsel made no proffer of evidence to the

district court. Thus, aside from the victim’s admission to having once said “I’m crazy,

I’m crazy, I’m crazy,” there was no indication that the victim had suffered from or been

treated for a mental illness that may have affected her ability to accurately perceive or

recall the events in question. The district court acted within its discretion in prohibiting

defense counsel from inquiring about the victim’s mental health.


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AFFIRMED.

            Entered for the Court

            Mary Beck Briscoe
            Circuit Judge




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