1

 The Honorable David R. Hansen stepped down as Chief Judge of the United

States Court of Appeals for the Eighth Circuit at the close of business on March 31,

2003. He has been succeeded by the Honorable James B. Loken.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-3466

___________

United States of America, * 

* 

Appellee, * 

* Appeal from the United States

v. * District Court for the Western

* District of Missouri.

Deon Love, * 

* 

Appellant. *

___________

Submitted: February 12, 2003

Filed: May 30, 2003

___________

Before HANSEN,1

 Chief Judge, LOKEN and SMITH, Circuit Judges.

___________

SMITH, Circuit Judge.

Deon Love was convicted of a federal firearm violation and was sentenced to

120 months' incarceration. He argues that his Sixth Amendment right of confrontation

was violated when the district court impermissibly restricted his cross-examination

of three government witnesses– William Craig Thomas, Tommy Cummings, and

Chris Davis. More specifically, Love urges that the district court's limit on his
2

 Appellant argues–as support for his primary argument of error–that the

district court made three other minor cross-examination errors. However, we disagree

with appellant's assertion, and find no error in the three other cross-examination

issues raised on appeal. Accordingly, our review is isolated to appellant's primary

allegation of error.

3

 See 18 U.S.C. §§ 922, 924 (1994).

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examination of Thomas is of "particular significance." We agree.2

 The district court's

constraints on Love's cross-examination of Thomas–a crucial adverse

witness–violated the Confrontation Clause of the United States Constitution.

Accordingly, we reverse Love's conviction and remand for new trial.

I.

Background

On January 23, 2002, a two-count indictment was returned charging Love with

being a felon and drug user in possession of a firearm and selling a stolen firearm.3

After trial, on May 21, 2002, a jury acquitted Love on the selling charge, but

concluded that he was guilty of illegally possessing a firearm.

In support of the government's claim that Love–an undisputed felon–illegally

"possessed" a firearm, the jury heard from only one witness who actually observed

Love with a firearm. Thomas testified that on April 27, 2001, he saw Love with a

"rifle" or "shotgun" and a "little revolver." Thomas stated that Love offered to sell

him these weapons because Love was a felon and could not legally possess them.

According to Thomas, he declined Love's offer, and Love maintained possession of

the firearms.

In response to this testimony, Love attempted to cross-examine Thomas about

his mental disability. The district court sustained the government's objection to any
4

 Interestingly, it was actually Thomas who made the objection–not the

government–as to inquiry into his mental defect. Neither the government nor Thomas

offered a basis for the objection. The district court sustained the objection without

comment.

5

 The precise proffer is as follows: 

What I wanted to question him on is statements or an opinion that Dr.

Novelus who submitted a report in favor of his mental disability, and

Mr. Thomas did receive that disability, Your Honor, Dr. Novelus

determined that Mr. Craig Thomas has – his short-term memory and

long-term memory are impaired. He has severe mental impairments and

he could also be an intrinsic schizophreni[c], which I can see where that

possibly may or may not be as relevant, but, Your Honor, I certainly

wanted to be able to question him regarding his mental ability and his

impairments. I think it went – it goes directly to his ability to be a

competent witness relating facts over a year old.

Appellant's Br., at 16.

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inquiry into Thomas's mental disability.4

 Love proffered evidence5 to the court that

Thomas had been diagnosed with schizophrenia and a short- and long-term memory

impairment. Love argued that Thomas's mental illness–specifically his impaired

memory–was relevant to his ability to competently recall and recount events more

than a year after they allegedly occurred. 

On appeal Love acknowledges that Thomas's schizophrenia diagnosis is of

questionable relevance and instead concentrates his argument on Thomas's disabled

memory. Similarly, our analysis is limited to whether the district court too narrowly

limited Love's cross-examination of Thomas's impaired memory. 

II.

Discussion
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The Sixth Amendment guarantees a defendant an opportunity for effective

cross-examination of witnesses. United States v. Warfield, 97 F.3d 1014, 1024 (8th

Cir. 1996). However, courts "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, harassment, prejudice, confusion of the issues,

the witness'[s] safety, or interrogation that is repetitive or only marginally relevant."

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); see also United States v.

Beckman, 222 F.3d 512, 524 (8th Cir. 2000). A Confrontation Clause violation is

shown when a defendant demonstrates that a reasonable jury might have received a

significantly different impression of a witness's credibility had counsel been permitted

to pursue the proposed line of cross-examination. Harrington v. Iowa, 109 F.3d 1275,

1277 (8th Cir. 1990). A trial court's decision to limit cross-examination will not be

reversed unless there has been a clear abuse of discretion and a showing of prejudice

to defendant. United States v. Brown, 110 F.3d 605, 611 (8th Cir. 1997).

Accordingly, we begin with a consideration of Love's right to challenge the

accuracy of Thomas's testimony with evidence that Thomas might have a mental

defect. As the Fifth Circuit has noted, "a defendant has 'the right to attempt to

challenge [a witness's] credibility with competent or relevant evidence of any mental

defect or treatment at a time probatively related to the time period about which he was

attempting to testify.'" United States v. Jimenez, 256 F.3d 330, 343 (5th Cir. 2001)

(quoting United States v. Partin, 493 F.2d 750, 763 (5th Cir.1974)). However, "[to]

be relevant, the mental health records must evince an 'impairment' of the witness's

'ability to comprehend, know, and correctly relate the truth.'" Jimenez, 256 F.3d at

343 (quoting Partin, 493 F.2d at 762). Factors which district courts should consider

before permitting such cross-examination include: 1) the nature of the psychological

problems; 2) whether the witness suffered from the condition at the time of the events

to which the witness will testify; 3) the temporal recency or remoteness of the

condition. See Boggs v. Collins, 226 F.3d 728, 742 (6th Cir. 2000). 
6

 In a footnote the government argues that once Thomas responded that

his disability was "diabetes," Love was barred from offering extrinsic evidence to

impeach the answer. The government cites United States v. Elliott, 89 F.3d 1360,

1368 (8th Cir. 1996) and United States v. Capozzi, 883 F.2d 608, 615 (8th Cir. 1989)

as support for this proposition. Both cases involve Federal Rule of Evidence 608(b).

Generally, a party's right to impugn the character for truthfulness of an opposing

party's witness is limited to questioning the witness on cross-examination. When such

cross-examination testimony goes into evidence, the examiner must take his answer,

and he cannot offer impeachment testimony. However, the scenario before us does

not involve a question of character and therefore does not implicate Rule 608(b).

Furthermore, Thomas did not intimate that "diabetes" was his exclusive disability. In

fact, by objecting to further inquiry into his mental disabilities, Thomas indicated that

his answer was not exclusive.

-5-

The government urges us to affirm because "the district court had ample

opportunity to observe Thomas's demeanor[,] to conclude that Thomas was not then

suffering from the defect[,] and was able to competently recall events from the past."

However, the government's argument misunderstands the role of the district court–

it is to determine the relevance of a witness's reported mental defect. We do not

expect the district court to assume the role of a mental-health expert, and we

recognize that the existence of a mental condition, which bears on competence, may

not be discernible from a witness's demeanor. 

In this case, upon Love's inquiry into Thomas's disability,6

 Thomas answered

"diabetes" and then promptly objected to any further questioning. The district court

sustained the objection without hearing any evidence of the witness's malady.

Evidence of Thomas's impaired memory diagnosis was first introduced during Love's

proffer. After becoming aware of the witness's alleged long- and short-term memory

affliction, the district court again sustained the objection and offered no comment on

the matter.
7

 The genesis of Thomas's disability diagnosis is a psychological

examination that he voluntarily submitted to in order to potentially–and in his case,

successfully–be entitled to early release from incarceration. 

-6-

We are convinced that the district court violated Love's right of confrontation

when it sustained Thomas's objection. First, we examine the nature of the

psychological problems. Collins, 226 F.3d at 742. Here the nature of the

psychological problem in question is memory loss–a condition that implicates

Thomas's ability "to comprehend, know and correctly relate the truth." Jimenez, 256

F.3d at 343 (citations omitted). Second, we look to whether the witness suffered from

the condition at the time of the events to which the witness will testify. Collins, 226

F.3d at 742. Thomas has suffered from this condition since at least 1996.7

 He testified

in May of 2002 about events that took place in April 2001–six years after receiving

a diagnosis of impaired memory. Finally, we consider the temporal recency or

remoteness of the condition. Id.Here the temporal gulf–five years–between Thomas's

diagnosis and the events that he observed is not of sufficient duration to eclipse the

relevancy of the inquiry. Accordingly, we conclude that the district court violated

Love's right of confrontation by limiting his cross-examination regarding Thomas's

mental defect. 

Despite finding error below, our inquiry is not complete. We must now

consider whether the record shows "beyond a doubt that the error complained of did

not contribute to the verdict obtained." Van Arsdall, 475 U.S. at 678–79. In United

States v. Caldwell, 88 F.3d 522, 524 (8th Cir. 1996), we held that when a trial court's

decision to limit cross-examination violates the Confrontation Clause, a

determination must be made as to whether "the error was harmless in the context of

the trial as a whole." The Supreme Court has held that "[t]he harmless error doctrine

recognizes the principle that the central purpose of a criminal trial is to decide the

factual question of the defendant's guilt or innocence . . . and promotes public respect

for the criminal process by focusing on the underlying fairness of the trial rather than
-7-

on the virtually inevitable presence of immaterial error." Van Arsdall, 475 U.S. at 681

(internal citation omitted). In assessing whether the error was harmless, we consider

"multiple factors, including the importance of the [witness's] testimony to the overall

case against [the defendant]; whether it was cumulative, the presence of corroborating

or contradicting evidence, the extent of cross-examination otherwise permitted, and

the overall strength of the government's case." Caldwell, 88 F.3d at 525.

Considering these factors, it is impossible for us to conclude that the error in

limiting the cross-examination of Thomas was "harmless beyond a reasonable doubt."

Van Arsdall, 475 U.S. at 684. First, in relation to importance of the witness's

testimony to the overall case against defendant, we note that Thomas was the sole

witness to see Love with a firearm in his possession. Second, because Thomas was

the only witness to observe Love with a firearm, it cannot be said that his testimony

was cumulative. Third, the record is void of any other examination regarding

Thomas's recall capacity–it was neither permitted nor attempted. The final factor–the

overall strength of the government's case–is fatal for the government's contention that

any error was harmless. 

The government argues that "even if the testimony of Thomas was disregarded

in its entirety, [the] . . . case against Love was strong." We are not so convinced. The

other witnesses–offered to support the selling charge of which Love was

acquitted–testified that at no time during the alleged sale did they observe a firearm

in Love's possession. Thus, if the testimony of Thomas was disregarded, then the

government is left with less than overwhelming evidence of Love's guilt, and we are

unable to say that the court's error was "harmless beyond a reasonable doubt."

Caldwell, 88 F.3d at 525.
8

III.

Conclusion

In conclusion, only one witness–Thomas–stated that he actually observed Love

possess a firearm. Love was barred from pursuing a line of questioning into this

critical witness's impaired memory diagnosis. This limitation denied Love his

constitutionally-guaranteed right to effectively cross-examine Thomas, and we cannot

definitively state "that this denial did not contribute to the verdict obtained." Id. at

678–79. We reverse and remand for new trial. 

A true copy.

Attest:

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