* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 13 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 03-5053

v. (N.D. Oklahoma) HOMER PRICE,

Defendant - Appellant. (D.C. No. 02-CR-19-P)

ORDER AND JUDGMENT *

Before TACHA, Chief Circuit Judge, ANDERSON and BALDOCK , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument.-2-

Homer Price was convicted of possessing a firearm a fter a prior felony conviction, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), and was sentenced to 188 months’ imprisonment followed by five years’ supervised release. Mr. Price appeals his conviction, claiming that his Sixth Amendment right to confront witnesses was violated when the district c ourt refused to allow his attorney to use his prior acquittal in state court to impeach government witnesses’ testimony during cross-examination.

BACKGROUND The charge against Price resulted from a domestic d ispute between him and his wife, Lynn Price, on December 1, 2001, at theirresidence in Tulsa, Oklahoma. At Price’s trial in federal district court, Lynn Pr ice testified that her husband had returned to the house that day intoxicated and bega n arguing with her. When he ran out of cigarettes, she drove him to the store t o buy more. When they returned home, he continued to argue with and threaten her a nd, after entering the house, slapped her face. According to Lynn Price, she the n heard a gun go off and saw her husband holding a .38 revolver that he had prev iously bought for her. She called the police and reported that her husband had shot at her. She testified that Price then went to the bedroom and returned withoutthe revolver. She then went to the bedroom, retrieved the revolver, and left th e house in her car. She met-3-

police officers, including Officer Ashley Williams, a few blocks away and told them what had happened, and they took the revolver from her car. Meanwhile, Officer Michael Brown responded to the c all that Lynn Price had made before leaving the house. Officer Brown t estified that he parked his car half a house away from the Price residence and appr oached the residence on foot. As he approached, he saw lights in the house go off and then, according to his testimony, saw a man in the doorway holding a shotg un diagonally across his chest. Officer Brown then returned to his police c ar and called for backup. When other officers arrived, Officer Brown left his car again and moved behind a tree across the street from the house. He testified that during this time he saw the man come to the door several more times but on those oc casions the man was not carrying a shotgun. On one occasion, he saw the ma n walking with a cane. After some time, the man – who turned out to be Hom er Price – emerged from the house and was arrested by the waiting offi cers. The officers conducted a protective sweep of the house, during which they di d not observe any firearms. Officer Williams then arrived at the house with Lyn n Price, who gave consent to search the house. During the search, a spent .38 c aliber casing was found in the bedroom, and a shotgun, loaded with two rounds, was found in the bedroom closet.-4-

Price was taken to the police station by Officer Wi lliams. Officer Williams read Price his Miranda rights, and he signed a waiver form. Officer Will iams testified that Price appeared very intoxicated but not so intoxicated that he was incapable of understanding his rights or signing th e waiver. After signing the form, Price admitted to Officer Williams that he ow ned the shotgun. On February 8, 2002, Price was charged by federal g rand jury indictment with possessing firearms and ammunition having beenpreviously convicted of a felony, in violation of §§ 922(g)(1) and 924(e). O n February 21, 2002, Price was charged in state court of assault with a dangerous weapon, domestic assault and battery, and carrying a firearm while under the inf luence of alcohol, in violation of Oklahoma law. On May 15, 2002, the jury in his state court trial acquitted him of all the state law charges. The federal trial was held November 18-19, 2002. B efore trial, the government submitted a motion in limine requesting that the court not allow Price to refer explicitly to his acquittal in state courtor to the nature of the state court proceedings. Price’s attorney opposed the motion o n the grounds that she anticipated that the government’s witnesses might c hange their testimony in the federal trial, and she intended to use the state co urt acquittal to show the witnesses’ bias and motivation for doing so, under the theory that “the previous testimony was not sufficient to obtain a conviction in state court, so the stories-5-

have changed to increase the chances of conviction. ” R. Vol. I, tab 44 at 1. The district court postponed ruling on the motion until the issue arose at trial. At trial, the court first directed Price’s attorney to use the term “previous proceeding” when referring to the state court trial . When Price’s attorney subsequently sought to refer to the acquittal, the court directed her not to do so, stating that “[m]y ruling is based on what I have h eard and I don’t believe [the acquittal] is relevant to this case.” Trial Tr. at242, R. Vol. V. Price’s attorney then moved for a mistrial, and the court denied the motion. On November 20, 2002, the jury in his federal trial found Price guilty of the federal charge with respect to the shotgun but not with respect to the shotgun ammunition, the .38 revolver, or the .38 revolver a mmunition. Price brought this appeal.

DISCUSSION Price’s only argument on appeal is that the distric t court’s refusal to allow reference to his state trial acquittal during cross -examination of government witnesses violated his rights under the Sixth Amend ment’s Confrontation Clause. Whether a trial court’s restrictions on cross-exami nation violated a defendant’s Sixth Amendment confrontation rights is an issue of law we review de novo. United States v. Toles , 297 F.3d 959, 967 (10th Cir. 2002).-6-

“The right to cross-examine witnesses is an integra l part of the broader Sixth Amendment right to confront witnesses directly in a criminal trial.” United States v. Oliver , 278 F.3d 1035, 1041 (10th Cir. 2001). In particu lar, “‘the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.’” Delaware v. Van Arsdall , 475 U.S. 673, 678-79 (1986) (quoting Davis v. Alaska , 415 U.S. 308, 316-17 (1974)). Nevertheless, “trial judges retainwide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such crossexamination based on concerns about, among other th ings, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Id. at 679; see United States v. DeSoto , 950 F.2d 626, 629 (10th Cir. 1991). “[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” Van Arsdall , 475 U.S. at 679 (further quotation omitted). “On review, our t ask is to determine ‘whether the jury had sufficient information to make a discr iminating appraisal of the witness’ motives and bias.’” Oliver , 278 F.3d at 1041 (quoting United States v. Gault , 141 F.3d 1399, 1403 (10th Cir. 1998)) (further qu otation omitted). In this case, we do not believe the district court’ s refusal to allow reference to Price’s state trial acquittal amounted to a Conf rontation Clause violation.-7-

Although Price’s attorney was not allowed to refer to the acquittal, she was able to use the prior inconsistent statements that the g overnment witnesses had made during the state trial to call into question these witnesses’ reliability. The record indicates, for example, that in cross-examining Off icer Williams, Price’s attorney quoted the officer’s state court testimony that Pri ce had been “extremely” intoxicated whereas, as indicated above, in federal court Officer Williams testified that Price was not so intoxicated he coul d not understand or waive his Miranda rights. Trial Tr. at 154, 175, R. Vol. V. In qu estioning another officer, called as a defense witness in regard to the same i ssue, Price’s attorney quoted the officer’s state trial testimony that Price was in s uch a state of intoxication that he “was unable to walk without assistance,” whereas infederal court she claimed that Price would have been able to walk without assistance. Id. at 314, 319. In cross-examining Officer Brown, Price’s attorney quo ted the officer’s state trial testimony that he had parked one and a half houses away from the Price residence, whereas in federal court he claimed to have parked a half house away. Id. at 186, 208. Price argues that these inconsistent statements, bythemselves, were only useful for impeaching the witnesses’ credibility, n ot for showing bias. In order to show bias, he maintains, it would have been necessary to reveal that the inconsistencies may have been motivated by the stat e trial acquittal, which, under-8-

this theory, stimulated the witnesses’ desire to ob tain a conviction in the federal trial. We disagree. The idea that police officers testify ing for the prosecution might hope their testimony will help in obtaining aconviction is, we believe, not so unfamiliar that a jury would need to know of a p rior acquittal in order to draw an inference of bias, if warranted, from inconsiste nt past testimony. The trial transcript indicates that Price’s attorney implied the possibility of bias during her closing argument, stating “I guess if you are allow ed to tell it enough times, maybe eventually you will get it the way you want i t. I don’t know.” Trial Tr. at 362, R. Vol. VI. Through most of the trial, howeve r, Price’s attorney chose to downplay this suggestion, stating, for example, that “[i]t’s very easy 11 months later to characterize something that you heard or t hat you were involved in, not meaning to lie, not meaning to misrepresent. I’m n ot trying to tell you that these police officers are dishonest, but I am trying to t ell you that they could be very gravely mistaken.” Id. at 363. While Price’s attorney chose to emphasize the possibility of mistake and de-emphasize the possibi lity of bias on the part of the testifying police officers, we regard this as a str ategic decision on her part and not a result of an ability to imply bias more strongly. This is not a case, then, where “the trial court prohibited all inquiry into the possibility that [a witness] would be biased.” Van Arsdall , 475 U.S. at 679. In-9-

light of the fact that the charges at issue in the state trial, though arising out of the same incident, were entirely different from the charge at issue in the federal trial, we conclude that allowing reference to the s tate trial acquittal in the federal trial would have added little relevant information while posing a substantial risk of confusing the issue or misleading the jury. See United States v. De La Rosa , 171 F.3d 215, 219-20 (5th Cir. 1999) (“[E]vidence o f a prior acquittal will often be excludable . . . because its probative value lik ely will be ‘substantially outweighed by the danger of prejudice, confusion of the issues, or misleading the jury.’” (quoting Fed. R. Evid. 403)). We therefore uphold the district court’s ruling on this issue.

CONCLUSION For the foregoing reasons, the judgment of the district court is AFFIRMED. ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge