USA v. Tavis Martin

Filing

OPINION: the district court's sentence is AFFIRMED in part and REVERSED in part, and this case is REMANDED to the district court with instructions to amend the written judgment to conform with the oral pronouncement of the special conditions of supervised release, decision not for publication. Boyce F. Martin , Jr., Circuit Judge; Deborah L. Cook, Circuit Judge and James L. Graham, AUTHORING U.S. District Judge for the Southern District of Ohio, sitting by designation.

Case: 12-5723

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0503n.06
12-5723
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,

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Plaintiff-Appellee,
v.
TAVIS MARTIN,
Defendant-Appellant

FILED
May 21, 2013
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF TENNESSEE

BEFORE: MARTIN and COOK, Circuit Judges; GRAHAM, District Judge.*
GRAHAM, District Judge.

Defendant-Appellant Tavis Martin

appeals the sentence of 120 months incarceration imposed following
his plea of guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. §922(g)(1).

Martin argues that the trial

court improperly restricted his cross-examination of government
witnesses

at

the

sentencing

hearing

in

violation

of

the

Confrontation Clause of the Sixth Amendment to the United States
Constitution.

Defendant also appeals the imposition of a special

condition of supervised release that he undergo treatment for a
gambling addiction as directed by his probation officer.
I. History of the Case
Martin

was

arrested

on

August

25,

2010,

based

on

the

allegations of Torressa Thompson that Martin had raped her while

*

The Honorable James L. Graham, United States District Judge
for the Southern District of Ohio, sitting by designation.

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threatening her with a handgun.

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In the presentence investigation

report (“PSR”), the probation officer recommended the application
of

the

cross-reference

provision

in

United

States

Sentencing

Guidelines (“U.S.S.G.”) §2K2.1(c), which instructs that “[i]f the
defendant used or possessed any firearm or ammunition in connection
with the commission or attempted commission of another offense,”
then the guideline range of the other offense as determined under
U.S.S.G. §2X1.1 (Attempt, Solicitation, or Conspiracy) is applied
if the resulting offense level for the other offense is greater
than the offense level calculated for the offense of conviction.
See

U.S.S.G.

§2K2.1(c)(1)(A).

The

application

of

U.S.S.G.

§2A3.1(a)(2), Attempt to Commit Criminal Sexual Abuse, combined
with Martin’s criminal history category of III, would ordinarily
have resulted in a total offense level of 38, with a guideline
imprisonment range of 292 to 365 months.

However, because the

statutory maximum penalty for the §922(g)(1) offense was ten years,
the guideline range in Martin’s case was 120 months.

Martin

objected to the facts recited in the PSR, claiming that his sexual
activity with Torressa Thompson was consensual.

He also objected

to the paragraphs in the PSR which applied the cross-reference
provision.

Martin’s version of the facts would result in a total

offense level of 20, with a range of 41 to 51 months.
The district court held a sentencing hearing on June 13, 2012.
Torressa Thompson testified that early on the morning of August 25,
2010, she had an argument with her boyfriend, Jamarious McCurdy.

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Torressa, who was three months pregnant at the time, requested that
he drive her to her mother’s house, where she resided.

Instead, he

drove her a few blocks from his apartment, forced her out of the
car and drove away. Torressa called her mother, Greta Thompson, on
her cell phone, and started to walk toward a nearby gas station.
Martin approached her from across the street and told her to stop.
As she started to run, Martin grabbed her in a choke hold and held
a silver gun to her head.

When she started screaming, he told her

to be quiet or he would kill her.

He took her phone and dragged

her into the back yard of an abandoned house across the street,
where he engaged in vaginal intercourse with her. Martin then took
her back to the street.

At that point, McCurdy and the police, who

had been called by Greta Thompson, arrived at the scene.

Martin

threw down the gun and was arrested.
Greta Thompson testified that around midnight on August 25,
2010, she received a phone call from her daughter, who stated that
McCurdy had put her out of the car and that she was walking to the
gas station.

Her daughter started to scream for help, and then the

call was disconnected. After unsuccessfully trying to reach her by
phone, Greta called McCurdy and the police, and drove to the gas
station. When she arrived at the scene, her daughter was dirty and
teary, and stated that she had been raped.
The

government

also

presented

the

testimony

of

Margaret

McCallum of the Memphis/Shelby County Rape Crisis Center, who
obtained a statement from Torressa concerning the rape.

McCallum

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conducted a physical examination of Torressa, during which she
observed an abrasion consistent with rape, and obtained vaginal
swabs

for

laboratory

testing.

The

parties

stipulated

to

a

laboratory report which stated that vaginal swabs taken from
Torressa contained sperm which matched Martin’s DNA.
Martin called his fiancee, McKeisha Webb, as a witness.

Webb

testified that she was dating Martin in August of 2010, and that
they had not had sexual relations for two to three months because
Martin’s uncircumcised penis would become irritated and would crack
and bleed.

Martin also relied on a letter from a doctor dated

October 24, 2011, which stated that defendant had sought medical
treatment in the form of antibiotics for an infection of his penis
at the jail facility where he had been incarcerated since December
of 2010.
The district court concluded that the government’s witnesses
were credible witnesses, and that the facts included in the PSR
were correct.

The court rejected Webb’s testimony, noting her

relationship with Martin.

The court also concluded that Webb’s

testimony was not corroborated by the doctor’s letter, noting that
the letter related to Martin’s medical condition over a year after
the offense, and that there was no medical evidence about Martin’s
condition at the time of the offense.

After addressing the

statutory sentencing factors, the district court imposed a sentence
of 120 months, the statutory maximum.

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II. Confrontation Clause Issues
Martin argues that the trial court improperly limited his
cross-examination of government witnesses in violation of the
Confrontation Clause.

A trial court’s evidentiary decisions are

reviewed for an abuse of discretion.
F.3d 598, 616 (6th Cir. 2004).

United States v. Wagner, 382

However, because Martin did not

raise his Confrontation Clause argument before the district court,
we review the district court’s rulings for plain error.
States v. Baker, 458 F.3d 513, 519 (6th Cir. 2006).

United

To constitute

plain error, “there must be error, (2) that is ‘plain,’ (3) and
that ‘affects substantial rights.’”

Johnson v. United States, 520

U.S. 461, 466-67 (1997)(quoting United States v. Olano, 507 U.S.
725, 732 (1993)).

An error “affects substantial rights” when it

“affected the outcome of the district court proceedings.”
507 U.S. at 734.

Olano,

If these three conditions are met, an appellate

court may exercise its discretion to address the issue if the error
seriously

affects

proceedings.

the

fairness

or

integrity

of

the

judicial

Johnson, 520 U.S. at 467.

The Confrontation Clause protects a defendant’s right to
cross-examine the witnesses against him. Davis v. Alaska, 415 U.S.
308, 315-16 (1974); see also Vasquez v. Jones, 486 F.3d 135, 143
(6th Cir. 2007)(“[T]he Confrontation Clause affords the right to
impeach a witness with his criminal record, subject to the trial
court’s discretion to impose reasonable limitations to prevent
harassment and annoyance of the witness.”). However, “trial judges

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retain wide latitude ... to impose reasonable limits on such crossexamination
harassment,

based

on

prejudice,

concerns

about,

among

confusion

of

issues,

the

other

things,

the

witness’

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. Holden, 557 F.3d 698, 704 (6th Cir. 2009).
The Supreme Court has explained that “the Confrontation Clause
guarantees an opportunity for effective cross-examination, not
cross-examination

that

is

effective

in

whatever extent, the defense might wish.”

whatever

way,

and

to

Delaware v. Fensterer,

474 U.S. 15, 20 (1985)(emphasis in original).

In the trial

context, “under the Confrontation Clause, a defendant must show
that, had he been able to cross-examine a witness on an issue, [a]
reasonable jury might have received a significantly different
impression of [the witness’s] credibility[.]’”
Faulkenberry,

614

F.3d

573,

589

(6th

Cir.

United States v.
2010)(quoting

Van

Arsdall, 475 U.S. at 680); see also Holden, 557 F.3d at 704 (noting
that “[t]he key issue is whether the jury had enough information to
assess the defense’s theory of the case despite the limits placed
on cross-examination”).
The government notes that this court has previously held that
the Confrontation Clause does not apply to sentencing hearings.
See, e.g., United States v. Paull, 551 F.3d 516, 527-28 (6th Cir.
2009); United States v. Moncivais, 492 F.3d 652, 665 (6th Cir.
2007); United States v. Katzopoulos, 437 F.3d 569, 573-76 (6th Cir.

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2006).

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As we stated in United States v. Mejia-Ruiz, 433 F. App’x

455, 459 (6th Cir. 2011), most of those opinions addressed the
admissibility of testimonial hearsay at sentencing hearings, not
the right to cross-examine a testifying witness.

We need not

decide the question of whether the Confrontation Clause applies in
the latter context, however, because, even assuming that the
Confrontation Clause does apply, Martin has not demonstrated any
infringement of his right to cross-examine witnesses.
Martin first argues that he was improperly denied his right to
cross-examine Torressa Thompson concerning her prior misdemeanor
conviction for a theft offense, shoplifting.

The government

opposed this line of impeachment, noting that shoplifting was not
an offense where “establishing the elements of the crime required
proving–or
statement.”

the

witness’s

Fed.

R.

admitting–a

Evid.

dishonest

609(a)(2);

see

act

United

or

false

States

v.

Washington, 702 F.3d 886, 893 (6th Cir. 2012)(shoplifting is not a
crime of dishonesty or false statement)(citing McHenry v. Chadwick,
896 F.2d 184, 188 (6th Cir. 1990)).

The district court agreed with

the government’s position and disallowed this line of questioning.
Adherence to Rule 609(a)(2) was not required in this case, as
the Federal Rules of Evidence do not apply to sentencing hearings.
See Fed. R. Evid. 1101(d)(3); United States v. Christman, 509 F.3d
299, 304 (6th cir. 2007).

But the district court’s reliance on

Rule 609(a)(2), even if erroneous, did not deprive Martin of any
meaningful cross-examination.

The rationale behind Rule 609(a)(2)

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is that crimes of stealth such as theft and shoplifting “have
little

bearing

on

a

witness’s

character

for

truthfulness.”

Washington, 702 F.3d at 893; see also United States v. Barb, 20
F.3d 694, 696 (6th Cir. 1994)(conviction under worthless check
statute “is not, as a matter of law, a conviction involving
dishonesty and adds nothing to the factfinder’s ability to judge
the credibility or propensity for truthfulness of a witness”).
Likewise, there is no evidence in the record suggesting that
Torressa’s conviction for misdemeanor shoplifting was a crime
involving dishonesty or false statement, or that it was relevant to
her credibility as a witness.
Martin relies on Vasquez v. Jones, 496 F.3d 564 (6th Cir.
2007).

That case is distinguishable.

In Jones, we held that the

state court’s refusal to permit defendant to impeach the hearsay
statement of a nontestifying witness introduced at trial with
evidence of the witness’s prior convictions resulted in prejudicial
error under the Confrontation Clause.

Id. at 575.

Here, the

district court, the trier of fact at the sentencing hearing, was
made aware of the shoplifting conviction by defense counsel, and
justifiably concluded that it was not relevant for impeachment
purposes.

Martin also argues that it was unfair to deny him the

right to cross-examine Torressa Thompson concerning her shoplifting
conviction, while permitting the government to ask Webb, the
defense witness, whether she had ever been convicted of a crime, to
which she responded, “Driving while license suspended.” Sentencing

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Hrg. Tr. p. 100.
inquiry.

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Yet, defense counsel raised no objection to this

The district court made no reference to this conviction

in its evaluation of Webb’s credibility as a witness.
Although noting that the question would have no probative
effect, the district court did permit defense counsel to ask
Torressa if she had ever been arrested, and she responded, “Yes.”
Sentencing Hrg. Tr. p. 56.

Defense counsel was also permitted to

thoroughly cross-examine Torressa concerning the events surrounding
the rape and Torressa’s previous statements.

We cannot say that

the district court might have received a significantly different
impression of her credibility had it permitted cross-examination
concerning her shoplifting conviction, or that the district court’s
ruling affected the outcome of the sentencing hearing.
Martin

also

contends

that

the

district

court

improperly

precluded him from cross-examining Greta Thompson regarding her
opinion of Torressa’s boyfriend, Jamarious McCurdy.

On direct

examination, counsel for the government asked Greta if she liked
McCurdy, but then withdrew the question.
61.

Sentencing Hrg. Tr. p.

On cross-examination, Greta stated that she didn’t care for

McCurdy, and that she “didn’t really care for a lot of his ways.”
Sentencing Hrg. Tr. p. 67.

When defense counsel asked her to

elaborate on what those ways were, the government objected on the
ground

that

examination.

the

question

was

outside

the

scope

of

direct

Defense counsel acknowledged that the government had

withdrawn the question, and the district court correctly ruled that

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the question was outside the scope of direct and was not relevant.
Sentencing Hrg. Tr. p. 67.

Defense counsel made no argument as to

why the witness’s opinion of McCurdy had any bearing on whether
Torressa Thompson was raped by Martin.
court

permitted

the

In addition, the district

cross-examination

of

Torressa

Thompson

concerning the difficult relationship she had with McCurdy, who
became argumentative when he was drinking, and the fact that she
had previously called the police on one such occasion.
Hrg. Tr.

pp.

35-37.

Any

further

cross-examination

Sentencing
of Greta

Thompson concerning that subject would have been cumulative, and
the district court’s limitation of the cross-examination of Greta
Thompson did not deny Martin any confrontation rights.
Lastly, Martin notes that in discussing the evidence presented
at the hearing, the district court stated that “the law presumes
that each witness has attempted to and has, in fact, testified to
the truth unless it is demonstrated to [the] contrary.” Sentencing
Hrg. Tr. p. 119.

This statement was erroneous.

See United States

v. Maselli, 534 F.2d 1197, 1202-03 (6th Cir. 1976)(holding that it
was error to give a jury instruction concerning a legal presumption
of the truthfulness of witnesses).

Martin does not explain how

this isolated statement by the district court denied him a right to
confront

or

cross-examine

witnesses.

Despite

the

confusing

reference to a presumption of truthfulness, it does not appear that
the district court later applied any such presumption in evaluating
the credibility of the witnesses.

The above statement was the

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court’s only reference to a presumption of truthfulness. Following
this statement, the district judge noted that “the testimony was by
and large not in conflict[.]”
district judge

then

stated

Sentencing Hrg. Tr. p. 119.
that

“we

make

decisions

The

based in

evidence” and “we don’t disregard anybody’s evidence, we evaluate
it all.”
engaged

Sentencing Hrg. Tr. pp. 119-20.
in

an

extensive

explanation

The district judge then

as

to

why

he

found

testimony of the government’s witnesses to be credible.
the circumstances
corroboration

of

to

be

consistent

Torressa

testimonial evidence.

with

Thompson’s

rape,

testimony

and
by

the

He found
noted

the

expert

and

Sentencing Hrg. Tr. pp. 120-24.

The judge

explained that Webb, the defense witness, was “in love with the
defendant and is not a credible witness[.]”

The district court

further found that Webb’s testimony concerning Martin’s physical
problems was not supported by any contemporaneous medical evidence.
Sentencing Hrg. Tr. pp. 124.
In

summary,

substantial

we

rights

find
or

the

no

error

outcome

that
of

affected

the

Martin’s

district

court

proceedings.
III. Special Condition of Supervised Release
Martin also raises as error the inclusion in the written
judgment of a special condition of supervised release concerning
treatment for a gambling addition at the direction of the probation
officer,

because

the

district

court

said

nothing

condition in pronouncing the oral sentence in court.

about

this

This court

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has not yet decided whether the trial court must announce special
conditions of supervised release at the sentencing hearing.

See

United States v. Swanson, 209 F. App’x 522, 524 & n.3 (6th Cir.
2006).

We need not decide this issue here.

The government

concedes that the district court’s failure to orally impose the
special condition constituted an abuse of discretion in this case,
and asks that this case be remanded to the district court for
amendment

of

the

written

judgment

to

conform

with

the

oral

pronouncement of the conditions of supervised release.
IV. Conclusion
In

accordance

with

the

foregoing,

the

district

court’s

sentence is affirmed in part and reversed in part, and this case is
remanded to the district court with instructions to amend the
written judgment to conform with the oral pronouncement of the
special conditions of supervised release.