1

 The HONORABLE ALFRED T. GOODWIN, United

States Circuit Judge for the Ninth Circuit, sitting by

designation.

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No. 95-2803WMS

 

 *

DEBORAH R. MORRIS *

 Appellant, *

 *

 v. * Appeal from the United States

 * District Court for the 

 * Western District of Missouri 

UNITED STATES OF AMERICA *

 Appellee. * [PUBLISHED]

 

 Submitted: December 12, 1995

 Filed: January 11, 1996

 

Before MAGILL, GOODWIN1, and MURPHY, Circuit Judges.

PER CURIAM

The only issue in this appeal from a guideline sentence is

whether the government's agreement in a plea bargain "to take no

position " on a motion for a downward departure based on aberrant

behavior precluded cross examination of a defense psychologist who

testified at the sentencing hearing. There was no error in

allowing cross examination to clarify the agreed facts.

Deborah R. Morris, while living with her husband on a military
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reservation became aware of marital infidelity on his part and set

fire to his bed while he was asleep. The prosecution was commenced

by an indictment charging assault with intent to commit murder.

The plea bargain resulted in the dismissal of the indictment and

the substitution of an information charging one count of assault

with intent to do bodily injury, contrary to 18 U.S.C. § 113 (c)

(Class D felony). 

After admitting the elements of the offense in a statement of

stipulated facts, which also admitted that "the offense required

more than minimal planning," she entered into the written plea

agreement which bound the government to recommend a sentence at the

lowest end of the guideline range and, as noted, to take no

position on Morris' announced intent to move for a downward

departure from the guideline sentence on the ground of a single act

of aberrant behavior. 

At the sentencing hearing, the defense called a clinical

psychologist whose written report had been attached to the

presentence investigation report and is a part of the record on

appeal. During the hearing, the psychologist testified on direct

examination in a manner consistent with the written report, which

contained a generalized statement that the marital relationship

described by Ms. Morris with her husband is "very consistent with

the classical pattern of domestic violence. That is, the behaviors

and events she described suggest that she is a battered spouse."

When the testimony began to develop additional expert

testimony about spousal abuse, the government cross examined the

witness to try to narrow the source of domestic turbulence to the

incident of marital infidelity by asking: "Isn't really the crux

of Ms. Morris' anger, though, not spousal abuse but infidelity?"
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After further questions along the quoted line, the prosecutor

asked: 

 "So, you're telling the court that this marital infidelity had

nothing to do with why she tried to kill her husband?" 

After a bit more of this sort of exchange, the defense

objected that the government was violating the plea agreement by

"taking a position."

 This Circuit has not had occasion in a published opinion to

discuss the boundaries of "taking a position" on departures from

guideline sentences. The control of cross examination during a

sentencing hearing, and the discretionary rulings necessary in that

control must be guided by specific facts and argument in each case.

The problem does not lend itself to global, black letter lists of

permitted and not permitted questions. Accordingly, we decide

only that in this case, where the witness began to shift the focus

of the grounds for a downward departure from the agreed fact that

marital infidelity had precipitated the offense, to a larger

collection of grievances based upon spousal abuse, the prosecutor

had the right to employ reasonable cross examination to bring the

inquiry back to the agreed facts. The court has the authority to

permit reasonable cross examination to present the true facts if

distortion of the facts otherwise would occur. An agreement "not

to take a position" does not deny the prosecutor the right to ask

questions to keep the inquiry from becoming a wide ranging

application for leniency based upon spousal abuse when the motion

purported to be based upon the agreed statement of facts. The

matter of spousal abuse and its accompaniment of "post traumatic

stress disorder" had appeared for the first time in the

psychologist's report, and did not appear in the stipulated facts.
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 We have defined "a single act of aberrant behavior as an act

that is `spontaneous and seemingly thoughtless'." See United

States v. Garlich, 951 F.2d 161,164 (8th Cir. 1991). The motion in

this case was based upon the defense theory that the revelation of

an act of marital infidelity had so incensed an offended wife that

she acted out spontaneously in a single act of aberrant behavior.

When that basis for the motion began to expand into other conduct

on the part of the alleged victim, the government had a right to

employ cross examination to make certain that the defense was

keeping its motion within the agreed facts and not enlarging the

facts to include a generalized syndrome of stress brought on by

domestic violence and spousal abuse. We have examined the entire

record with some care because of the novelty of the question and we

find no basis for saying that the district court abused its

discretion in allowing reasonable cross examination. 

AFFIRMED 

A true copy.

Attest:

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