USA v. Tavis Martin
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the written judgment to conform with the oral pronouncement of the special conditions of supervised release, decision not for publication.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.
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0503n.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
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
Confrontation Clause of the Sixth Amendment to the United States
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
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.
threatening her with a handgun.
In the presentence investigation
report (“PSR”), the probation officer recommended the application
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.
§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.
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
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.
Torressa, who was three months pregnant at the time, requested that
he drive her to her mother’s house, where she resided.
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.
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
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.
McCallum of the Memphis/Shelby County Rape Crisis Center, who
obtained a statement from Torressa concerning the rape.
conducted a physical examination of Torressa, during which she
observed an abrasion consistent with rape, and obtained vaginal
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.
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
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
The district court concluded that the government’s witnesses
were credible witnesses, and that the facts included in the PSR
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.
II. Confrontation Clause Issues
Martin argues that the trial court improperly limited his
cross-examination of government witnesses in violation of the
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).
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.
If these three conditions are met, an appellate
court may exercise its discretion to address the issue if the error
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
retain wide latitude ... to impose reasonable limits on such crossexamination
safety, or interrogation that is repetitive or only marginally
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
whatever extent, the defense might wish.”
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[.]’”
United States v.
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
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.
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.
opposed this line of impeachment, noting that shoplifting was not
an offense where “establishing the elements of the crime required
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
The rationale behind Rule 609(a)(2)
is that crimes of stealth such as theft and shoplifting “have
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.
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.
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
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
Hrg. Tr. p. 100.
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.
precluded him from cross-examining Greta Thompson regarding her
opinion of Torressa’s boyfriend, Jamarious McCurdy.
examination, counsel for the government asked Greta if she liked
McCurdy, but then withdrew the question.
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
Defense counsel acknowledged that the government had
withdrawn the question, and the district court correctly ruled that
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.
In addition, the district
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.
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
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
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[.]”
Sentencing Hrg. Tr. p. 119.
evidence” and “we don’t disregard anybody’s evidence, we evaluate
Sentencing Hrg. Tr. pp. 119-20.
The district judge then
testimony of the government’s witnesses to be credible.
Sentencing Hrg. Tr. pp. 120-24.
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.
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
condition in pronouncing the oral sentence in court.
has not yet decided whether the trial court must announce special
conditions of supervised release at the sentencing hearing.
United States v. Swanson, 209 F. App’x 522, 524 & n.3 (6th Cir.
We need not decide this issue here.
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
pronouncement of the conditions of supervised release.
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.
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