DENNIS, Circuit Judge:
The primary issue in this criminal case is whether the district court's limitations on cross-examination violated the defendant's Sixth Amendment confrontation right and right to present a complete defense. After careful review of the district court's evidentiary rulings, we affirm the defendant's conviction.
John C. Skelton, Defendant, was indicted on one count for violating 18 U.S.C. § 875(b).
During the conversation, Jacobs was sitting next to his coworker, Victor Lujan, in an office building in Midland, Texas—Skelton made the call from Arkansas. Lujan testified that during the conversation, Jacobs suddenly started shaking, his breathing patterns changed, and he became very nervous. At some point, Jacobs handed the phone to Lujan, who testified that he heard the caller state that if Jacobs "didn't pay the money a city cop was actually going to pull him over [and] was going to handcuff him and shoot him."
On February 27 or 28, 2006, Jacobs spoke with Special Agent Dina Morales, who filled out a complaint reflecting that Jacobs had received a threatening phone call. She referred the case over to Texas Ranger Jess Malone. Malone and Morales ascertained the identity of the caller to be Skelton through phone records.
At trial, the district court did not permit defense counsel to ask Jacobs on cross-examination if he was only testifying to win favor with the Government in the event that the IRS investigates Jolt's financial books. The district court also denied Skelton's request to present extrinsic evidence that Jacobs was lying about stealing money from Jolt. However, the district court did allow some cross-examination regarding Jacobs prior dealings with Jolt. To that end, Jacobs testified that Towery's life insurance policy had lapsed because Jolt did not pay the premiums. He also testified that one of the companies owned by Jolt suffered a financial decline because Joe Moscarro, another co-owner, stole money from the company.
After the Government rested, Skelton moved for judgment of acquittal. The district court denied the motion. Skelton then called eight witnesses—Shane Towery, Mary Ann Stephens, Sharon Miller, Tina Kennedy, Mildred Lipham, Johnny Oldham, Beverly Brock, and Lance Hall— all of whom either worked for or were somehow associated with companies owned by Jolt. Each testified that Jacobs was not a truthful person and had the reputation for being untruthful. The district court did not permit these witnesses to testify about the allegations that Jacobs stole funds from Jolt and lied to the IRS.
During a break in the testimony, the parties presented arguments regarding the admissibility of rebuttal character testimony regarding Jacobs. Skelton maintained that he was entitled to ask the Government's rebuttal character witnesses "did you know" or "have you heard" questions involving specific alleged acts of dishonesty. The district court agreed that Skelton was entitled to ask such questions as; "Did you know Lance Hall, who was the brother-in-law of Shane Towery and the son-in-law of Mr. Towery, had an opinion that he thinks' [Jacobs] wasn't truthful," but that Skelton was not entitled to pose such questions as: "Do you know or have you heard that Sharon Miller, who worked for Mr. Jacobs, showed Shane Towery a
After the defense and the Government rested, Skelton renewed his motion for judgment of acquittal. The district court denied the motion. After two hours of deliberation, the jury sent the following note to the district court: "According to 18, U.S.C. Section 875(b), does `threat to injure a person' mean we have to believe beyond a reasonable doubt that there was a threat to shoot or physical injury in general?" The district court heard arguments on the issue. The Government argued that the district court should simply refer the jury to the instructions concerning the elements of the offense. Skelton argued that the district court should give the jury a specific instruction that the Government had to prove beyond a reasonable doubt that there was a threat to shoot Jacobs. The district court submitted the following response, "In response to Jury Note 1, you are referred back to the Court's Instructions to the Jury." The jury returned a verdict of guilty and Skelton was sentenced to 50 months imprisonment, three years of supervised release, and a $5,000 fine. He filed a timely notice of appeal.
II. STANDARDS OF REVIEW
We review alleged violations of a defendant's Sixth Amendment confrontation right de novo. United States v. Bell, 367 F.3d 452, 465 (5th Cir.2004). We also review alleged violations of a defendant's Sixth Amendment right to present a complete defense de novo. See United States v. Serrano, 406 F.3d 1208, 1214 (10th Cir. 2005) (citing United States v. Solomon, 399 F.3d 1231, 1239 (10th Cir.2005)); see also United States v. Soape, 169 F.3d 257, 270 (5th Cir.1999) ("We review . . . constitutional questions de novo."). Such claims, however, are subject to harmless error review. Bell, 367 F.3d at 465; see also United States v. Jimenez, 464 F.3d 555, 558 (5th Cir.2006). If there is no constitutional violation, then we review a district court's limitations on cross-examination for an abuse of discretion, which requires a showing that the limitations were clearly prejudicial. Jimenez, 464 F.3d at 558-59 (citing United States v. Restivo, 8 F.3d 274, 278 (5th Cir.1993)). Finally, we review the refusal to give a defense-tendered jury instruction for abuse of discretion. United States v. Correa-Ventura, 6 F.3d 1070, 1076 (5th Cir.1993).
A. Cross-Examination of Jacobs
Skelton argues that the district court erred in limiting his ability to cross-examine Jacobs and otherwise present evidence regarding the allegations that Jacobs stole from Jolt and lied to the IRS. "While the scope of cross-examination is within the discretion of the trial judge, this discretionary authority to limit cross-examination comes into play only after there has been permitted as a matter of right sufficient cross-examination to satisfy the Sixth Amendment." United States v. Elliott,
Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (internal quotations marks and citations omitted). This right "is particularly important when the witness is critical to the prosecution's case." Jimenez, 464 F.3d at 559 (quoting United States v. Mizell, 88 F.3d 288, 293 (5th Cir.1996)). However, "the 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." Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (per curiam) (emphasis in original); see also Bigby v. Dretke, 402 F.3d 551, 573 (5th Cir.2005) ("[T]he Confrontation Clause does not guarantee defendants cross-examination to whatever extent they desire."). The district court has "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' safety, or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). Thus, the Confrontation Clause is generally satisfied when the defendant has been "permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness." Restivo, 8 F.3d at 278 (quoting Davis, 415 U.S. at 318, 94 S.Ct. 1105); see also United States v. Tansley, 986 F.2d 880, 886 (5th Cir.1993) ("The relevant inquiry is whether the jury had sufficient information to appraise the bias and motives of the witness.").
In order to establish a violation of the confrontation right, the defendant need not establish that the jury would have reached a different result. Van Arsdall, 475 U.S. at 679-80, 106 S.Ct. 1431. Instead, the focus is on the particular witness. Id. at 680, 106 S.Ct. 1431. As the Supreme Court explained, "[i]t would be a contradiction in terms to conclude that a defendant denied any opportunity to cross-examine the witnesses against him nonetheless had been afforded his right to `confront[ation]' because use of that right would not have affected the jury's verdict." Id. Thus, to establish a violation of the
The determination of "[w]hether the exclusion of evidence is of a constitutional dimension depends on the [district] court's reason for the exclusion and the effect of the exclusion." Kittelson v. Dretke, 426 F.3d 306, 319 (5th Cir.2005). This determination typically includes an inquiry into the admissibility of the evidence under the Federal. Rules of Evidence.
Skelton first argues that any evidence relating to the allegations that Jacobs stole funds from Jolt and lied to the IRS is admissible as intrinsic "other act" evidence. "`Other act' evidence is `intrinsic' when the evidence of the other act and evidence of the crime charged are `inextricably intertwined' or both acts are part of a `single criminal episode' or the other acts were `necessary preliminaries' to the crime charged." United States v. Coleman, 78 F.3d 154, 156 (5th Cir.1996) (quoting United States v. Williams, 900 F.2d 823, 825 (5th Cir.1990)). "This evidence is admissible to complete the story of the crime by proving the immediate context of events in time and place." Id. (citing United States v. Kloock, 652 F.2d 492, 494-95 (5th Cir. 1981); United States v. Royal, 972 F.2d 643, 647 (5th Cir.1992)). Intrinsic "other act" evidence does not implicate Rule 404(b) of the Federal Rules of Evidence and "consideration of its admissibility pursuant to Rule 404(b) is unnecessary." United States v. Garcia, 27 F.3d 1009, 1014 (5th Cir.1994).
We agree with the Government that the "other act" evidence at issue is not intrinsic. Indeed, whether Jacobs stole money from Jolt and lied to the IRS is irrelevant to the question of whether Skelton threatened Jacobs, especially given that the Government need not establish a motive for the alleged threat. As the district court correctly recognized, "Let's say all that was true. . . . Does that give your client the right to threaten to kill him?" Because the issue of whether Jacobs committed these other alleged acts is not a requisite preliminary or otherwise necessary to complete the story of the crime charged, we conclude that evidence of these other alleged acts is not admissible as intrinsic "other act" evidence. Coleman, 78 F.3d at 156; Williams, 900 F.2d at 825.
None of the cases cited by Skelton compels a different result. Indeed, in each of these cases, the other act at issue consisted of a crime committed by the defendant that was inextricably intertwined with the offense charged. See, e.g., United States v. Smith, 930 F.2d 1081, 1087 (5th Cir. 1991) (finding no error when district court admitted drug-related testimony regarding defendant); Coleman, 78 F.3d at 156-57 (finding no error when district court admitted evidence that defendant attempted to carjack another vehicle shortly before car-jacking victim); United States v. Lamp, 779 F.2d 1088, 1095 (5th Cir.1986) (finding no error when district court admitted evidence of defendant's drug trafficking offenses to show nature and extent
The parties next debate whether evidence relating to the allegations that Jacobs stole funds from Jolt and lied to the IRS is admissible under. Rules 404(b) and 608(b) of the Federal Rules of Evidence. However, we find both parties to be mistaken in their analysis and conclude that neither Rule applies. The Government first argues that Rule 404(b) bars the admissibility of any evidence relating to the allegations that Jacobs stole funds from Jolt and lied to the IRS. That rule provides:
Nor does Rule 608(b) apply. That Rule provides, in pertinent part, that "[s]pecific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence." Fed.R.Evid. 608(b). This court has explained that "[t]he application of Rule 608(b) to exclude extrinsic evidence of a witness's conduct is limited to instances where the evidence is introduced to show a witness's general character for truthfulness." United States v. Opager, 589 F.2d 799, 801 (5th Cir.1979) (emphasis added). This court continued, "[w]e consider Rule 608(b) to be inapplicable in determining the admissibility of relevant
Id. at 802-03 (quoting United States v. Batts, 558 F.2d 513, 517 (9th Cir.1977), opinion withdrawn and aff'd on other grounds, 573 F.2d 599 (1978)). Thus, because this evidence is not being offered to establish that Jacobs has a general character for untruthfulness, Rule 608(b) does not bar its admissibility. Moreover, the Supreme Court has held that even if evidence is barred under Rule 608(b), it nonetheless may be admissible if it tends to show bias. United States v. Abel, 469 U.S. 45, 56, 105 S.Ct. 465, 83 L.Ed.2d 450 (1984); see also United States v. Martinez, 962 F.2d 1161, 1165 (5th Cir.1992) ("Extrinsic evidence may . . . be admissible for another purpose—for example, if it tends to show bias in favor of or against a party."). As the Supreme Court explained, "it would be a strange rule of law which held that relevant, competent evidence which tended to show bias on the part of a witness was nonetheless inadmissible because it also tended to show that the witness is a liar [under Rule 608(b)]." Id.
In short, we find that the evidence relating to the allegations that Jacobs stole funds from Jolt and lied to the IRS tends to show that he has a motive to lie in this case and should have been considered and evaluated as evidence of bias. The Supreme Court has recognized that "the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right to cross examination." Davis, 415 U.S. at 316-17, 94 S.Ct. 1105. The Supreme Court has also recognized that "proof of bias is almost always relevant because the jury, as finder of fact and weigher of credibility, has historically been entitled to assess all evidence which might bear on the accuracy and truth of a witness' testimony." Abel, 469 U.S. at 52, 105 S.Ct. 465. In fact, this court has stated that "cross-examination into any motivation or incentive a witness may have for falsifying his testimony must be permitted." United States v. Bratton, 875 F.2d 439, 443 (5th Cir.1989) (quoting United States v. Hall, 653 F.2d 1002, 1008 (5th Cir.1981)) (emphasis in original).
The admissibility of bias evidence, however, is subject to Rule 403. Thus, the probative value of admitting such evidence must not be substantially outweighed by any prejudicial effect. Id. In this respect, district courts retain wide discretion in "impos[ing] reasonable limits on defense counsel's inquiry into the potential bias of a prosecution witness, to take into account of such factors as `harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that [would be] repetitive or only marginally relevant.'" Olden v. Kentucky, 488 U.S. 227, 232, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988) (quoting Van Arsdall, 475 U.S. at 679, 106 S.Ct. 1431); see also United States v. Lamp, 779 F.2d 1088, 1095 (5th Cir.1986). Within this discretion, however, "[c]ounsel should be allowed
Here, the district court recognized that the evidence at issue is subject to Rule 403 and concluded:
At trial, although Skelton was not permitted to introduce extrinsic evidence that Jacobs actually stole money from Jolt and lied to the IRS, he was permitted to explore Jacobs' dealings with Jolt and was specifically permitted to ask if he was only testifying because of the allegations concerning the IRS. He was also permitted to ask Jacobs if he was lying in order to protect himself and whether he had received any assurances from the Government that he would not be prosecuted for his alleged misdeeds. Thus, we conclude that the district court did not err in limiting Skelton's cross-examination because it still gave Skelton ample room to explore the issue of bias. Nor do we find that these limitations give rise to a Confrontation Clause violation given that Skelton was nonetheless "permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness." Restivo, 8 F.3d at 278 (quoting Davis, 415 U.S. at 318, 94 S.Ct. 1105). Even if we did find a Confrontation Clause violation, any such error was harmless beyond a reasonable doubt. Indeed, although Jacobs was a key witness, his testimony that Skelton threatened to shoot him was corroborated by Lujan and Skelton was given ample room to explore the issue of bias and otherwise attack the credibility of Jacobs. See Kittelson, 426 F.3d at 319 (citing Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431).
B. Cross-Examination of Rebuttal Character Witnesses
The second issue raised by Skelton is whether the district court erred in denying him an opportunity to ask specific "did you know" and "have you heard" questions during cross-examination of the Government's rebuttal character witnesses under Rule 608(b). As quoted in part earlier, that Rule provides:
Fed.R.Evid. 608(b). According to this court, Rule 608(b) "permit[s] inquiry on cross examination into specific instances of
Here, the district court stated that Rule 608(b), when read in conjunction with Rules 404 and 405, applies differently to third-party witnesses, implying that Rule 608(b) somehow bars Skelton from inquiring into specific instances of conduct to test the reliability of the Government's rebuttal character witnesses. In doing so, the district court erred. This court has explained that "[o]nce a witness has testified concerning a defendant's good character, it is permissible during cross-examination to attempt to undermine his credibility by asking him whether he has heard of prior misconduct of the defendant which is inconsistent with the witness' direct testimony." United States v. Wells, 525 F.2d 974, 976 (5th Cir.1976) (citing Michelson, 335 U.S. at 479, 69 S.Ct. 213); see also Bright, 588 F.2d at 511-12. We see no reason why this Rule would apply differently to rebuttal character witnesses testifying about the character of other third-party witnesses. Indeed, three major treatises on evidence agree that Rule 608(b) permits a party to inquire into specific instances of conduct to test the reliability of a rebuttal character witness in such situations. See 4 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 608.23, at 68 (2d ed.2007); 3 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 6:41; at 266-68 (3d ed. 2607) ("The propriety of asking such probing questions is settled."); 2 Michael H. Graham, Handbook of Federal Evidence § 608.5, at 622-25 (6th ed.2006). As the third treatise explained:
Handbook of Federal Evidence § 608.5, at 622-25.
To be clear, we reiterate that Rule 608(b) permits "did you know" or "have you heard" questions regarding specific instances of conduct of the principal witness probative of truthfulness or untruthfulness to impeach the credibility of a rebuttal character witness, subject to Rule 403. Having concluded otherwise, the district court erred. Nonetheless, this court has held that although Rule 608 permits the impeachment of the general credibility of a witness, there is no constitutional right to do so. See Cloud v. Thomas, 627 F.2d 742, 743-44 (5th Cir.1980). Thus, based on this court's precedent, the district court's error does not implicate the Confrontation Clause.
C. Jury Instructions and Response to Jury Question
The third and final issue raised by Skelton is whether the district court abused its discretion by denying his proposed jury instruction that in order for the jury to find Skelton guilty, it must find beyond a reasonable doubt that he threatened to shoot Jacobs. When overruling a proposed jury instruction, "[a] court commits reversible error where (1) the requested instruction is substantially correct; (2) the requested issue is not substantially covered in the charge; and (3) the instruction `concerns an important point in the trial so that the failure to give it seriously impaired the defendant's ability to effectively present a given defense.'" United States v. John, 309 F.3d 298, 304 (5th Cir.2002) (quoting United States v. Grissom 645 F.2d 461, 464 (5th Cir.1981)).
In discussing the elements of the offense charged in the indictment, the district court instructed the jury that in order to find Skelton guilty, it must find beyond a reasonable doubt "[t]hat the defendant knowingly transmitted a communication containing a threat to injure the person of another, as charged in Count One of the indictment." The district court also gave the following instruction:
Skelton requested that the district court instead instruct the jury that in order to find him guilty, it must find beyond a reasonable doubt "[t]hat on February 24, 2006, John Skelton knowingly transmitted a telephone communication containing a threat to shoot Terry Lee Jacobs."
(emphasis added). Based on these instructions, we presume that the jury only considered the offense charged in the indictment, which clearly charges Skelton with threatening to shoot Jacobs on or about February 24, 2006. See United States v. Levine, 80 F.3d 129, 136 (5th Cir.1996) ("The jury is presumed to have followed the court's instructions."). Moreover, Skelton emphasized throughout trial that the Government had to prove that he threatened to shoot Jacobs. Accordingly, Skelton can hardly argue "that the failure to give [the proposed instruction] seriously impaired [his] ability to effectively present a given defense." John, 309 F.3d at 304 (quoting Grissom 645 F.2d at 464).
Skelton also argues that the district court erred in answering the following jury question, "[a]ccording to 18, U.S.C., Section 875(b), does `threat to injure a person' mean we have to believe beyond a reasonable doubt that there was a threat to shoot or physical injury in general?" The district court submitted the following response, "you are referred back to the Court's Instructions to the Jury." Again, those instructions closely track the Fifth Circuit Pattern Jury Instructions, are correct statements of the law, and limited the jury's consideration to the offense charged in the indictment, which specified that the threat at issue was a threat to shoot. Because juries are presumed to follow the district court's instructions and district courts are given wide latitude to respond to jury questions, see United States v. Stevens, 38 F.3d 167, 170 (5th Cir.1994) (citing United States v. Duvall, 846 F.2d 966, 977 (5th Cir.1988)), we conclude that the district court did not abuse its discretion in answering the jury question.
For the foregoing reasons, we affirm the district court's judgment of conviction and sentence.