Submitted: September 22, 2017
from United States District Court for the Northern District
of Iowa - Sioux City
LOKEN, ARNOLD, and SHEPHERD, Circuit Judges.
convicted Kevin Babb of conspiracy to distribute fifty grams
or more of actual methamphetamine and three counts of
distributing five grams or more of actual methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)
& (B), and 846. The district court sentenced him to
150 months in prison and 5 years supervised release. Babb
appeals, arguing the district court erred in excluding
evidence of prior convictions during the cross-examination of
a government witness and in refusing to give his requested
"buyer-seller" jury instruction. We affirm.
trial, Drug Enforcement Agency (DEA) Agent David Jensen
testified that in spring of 2014 Tyler Clark, who had a prior
felony drug conviction, began working as a confidential
informant after he was caught possessing methamphetamine and
a firearm was found in a warrant search of his residence.
Clark identified Mark Taylor as a middleman who sold
methamphetamine for Taylor's suppliers. The DEA arranged
three controlled buys in which Clark purchased
methamphetamine at Taylor's residence. On each occasion,
DEA agents gave Clark marked money before he entered
Taylor's home and watched Babb enter and leave the
residence while Clark was there. Clark quickly left the home
and immediately delivered the methamphetamine he had
purchased to the waiting agents. Photographs of Babb outside
Taylor's home at the time of the transactions were
admitted into evidence. A DEA forensic chemist, supported by
lab reports, testified that Clark purchased 13.2 grams of 99%
pure methamphetamine during the first controlled buy, 7.0
grams of 94% pure methamphetamine during the second, and 55.5
grams of 97% pure methamphetamine during the third.
testified that he participated in the controlled buys and
cooperated with the DEA in other ways in hopes of obtaining
leniency regarding his exposure to drug and firearm charges.
Clark testified that he did not meet Taylor's supplier
during the three controlled buys. However, on two occasions,
Clark saw Babb arrive while Clark was waiting to complete his
purchase. Taylor met briefly with Babb in another room and
then exchanged methamphetamine with Clark for the marked
money (which was never found). Taylor testified that he both
purchased user amounts of methamphetamine from Babb and
served as Babb's middleman in selling larger quantities
to third persons, including the controlled buys by Clark.
Cooperating conspirators Theresa Simeon, Ada Thill, and Pete
Thill also testified that Babb was involved in the
distribution of methamphetamine. Simeon testified that she
supplied Babb an ounce or more of methamphetamine as often as
twice daily for about a year, and that Babb often ordered
methamphetamine when Simeon went to Arizona to purchase the
drug in large quantities. The Thills testified that Simeon
stored methamphetamine at their house and Babb was one of
Simeon's customers. Ada Thill testified she delivered
ounce quantities of methamphetamine to Babb for Simeon on
three or four occasions.
The Cross-Examination Issue.
direct examination, Clark admitted he had a 1999 felony
conviction that exposed him to a substantial sentence if he
was convicted of new drug and firearm offenses. During cross
examination, defense counsel sought to impeach Clark's
credibility by questioning him about escape and drug
possession charges in 2001 and 2002 and a theft of stolen
property conviction in 2004. The district court excluded
evidence of these convictions because more than ten years had
passed since any confinement and Babb failed to show that
"its probative value . . . substantially outweighs its
prejudicial effect." Fed.R.Evid. 609(b)(1).
appeal, Babb argues the district court violated his Sixth
Amendment right to meaningful cross-examination when the
court did not allow Babb to use these prior convictions to
show that Clark's motive to testify for the government
was to avoid increased punishment if he was charged with
being a felon in possession of the firearm found in his
residence. "[E]xposure of a witness' motivation in
testifying is a proper and important function of the
constitutionally protected right of cross-examination."
Davis v. Alaska, 415 U.S. 308, 316-17 (1974).
"Where there are facts that would support a reasonable
inference of bias that relates to a witness's
credibility, the defendant should be permitted to make an
effective inquiry into that bias." United States v.
Jasso, 701 F.3d 314, 316 (8th Cir. 2012). The touchstone
of this inquiry "is whether [Babb] was given an adequate
opportunity to impeach the credibility of [Clark]."
United States v. Dale, 614 F.3d 942, 957 (8th Cir.
the district court noted that "the jury has . . . heard
of [Clark's] felony marijuana conviction in 1999, and . .
. because of that felony conviction Mr. Clark was not
supposed to be in possession of a firearm [and] could have
faced substantial charges. So that point I believe has been
made." This cross-examination gave Babb the means
"to obtain the effect that the excluded examination
would have allegedly established." Jasso, 701
F.3d at 317. "[T]rial judges 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 . . . interrogation that is
repetitive or only marginally relevant." Delaware v.
Van Arsdall, 475 U.S. 673, 679 (1986). The district
court did not abuse its discretion by limiting cumulative
inquiry into Clark's well-established motive for
cooperating. See United States v. Oaks, 606 F.3d
530, 540 (8th Cir. 2010) (standard of review).
general way to impeach a witness's credibility is to
introduce evidence of prior criminal convictions "to
afford the jury a basis to infer that the witness'
character is such that he would be less likely than the
average trustworthy citizen to be truthful in his
testimony." Davis, 415 U.S. at 316. Rule 609(a)
sets forth "rules [that] apply to attacking a
witness's character for truthfulness by evidence of a
criminal conviction." Rule 609(b) severely limits the
use of such evidence when the prior conviction is more than
ten years old. Under this Rule, "stale convictions
should be admitted very rarely and only in exceptional
circumstances." United States v. Stoltz, 683
F.3d 934, 939-40 (8th Cir. 2012) (quotation omitted). Here,
Babb concedes that the convictions in question were more than
ten years old. Clark admitted that he had a prior felony drug
conviction, providing a basis to attack his "character
for truthfulness." Thus, the district court "acted
well within its discretion when it excluded [Clark's
additional convictions] under Rule 609(b)." Id.
The Buyer-Seller ...