Tenth Circuit concludes, in fraud case involving the sale of aircraft parts, cross-examination of character witnesses did not include impermissible guilt-assuming hypothetical questions based on the charges, but any error was harmless based on overwhelming evidence of guilt, in United States v. Parker, 553 F.3d 1309 (10th Cir. Jan. 9, 2009) (No. 07-6239)
A Tenth Circuit case considered a close question whether the cross-examination of character witnesses crossed the line by including guilt-assuming hypotheticals.
In the case, defendant Parker and two others were charged with conspiring and committing fraud involving aircraft parts during 2000 through 2002. The investigation identified a number of individuals who had purchased engines from the defendant only to later learn that the defendant had falsely represented that the airplane engines had been properly overhauled. The engines were found to have significant defects or deficiencies, including cracks, rusted parts, and incorrect or missing parts.
At trial, the defense called four character witnesses. On cross-examination of one witness, the government asked whether the witness would “change your opinion of Mr. Parker if you found out he had been selling aircraft engines through Trade-A-Plane that were unairworthy.” Additionally, the witness was asked “if it became apparent to [Mr. Parker] through complaints from those purchasers that the engines were bad, would it change your opinion of him if you learned that he did not then go ahead and contact the other purchasers of the engines to warn them that they might have a defective engine?” Parker, 553 F.3d at 1320. On a second witness, the government asked questions about their “knowledge of Parker’s reputation outside the local community.” On another witness, the prosecutor asked “about his knowledge of co-defendant Good” and “details about the people” he “knew concerning Parker’s reputation.” Parker, 553 F.3d at 1321. After his conviction, the defendant challenged the uncharged sales before and during the conspiracy.
The circuit affirmed the cross-examination. The line of question did not assume guilt that the defendant was convicted of the charged offenses. The circuit noted:
“Our cases allow the prosecution in a criminal case to ask questions of the ‘have you heard’ variety when a character witness testifies about personal opinion of the defendant’s character, as opposed to offering testimony limited to the defendant’s general reputation in the community. The prosecution may ask a personal opinion witness whether he or she ‘has heard’ the defendant had been sued for fraud and whether that information ‘would have affected your opinion’ of good character.”
Parker, 553 F.3d at 1320 (citing SEC v. Peters, 978 F.2d 1162, 1169 (10th Cir. 1992) (in insider trading civil case, after seven defense witnesses provided opinion testimony about the defendant’s “impeccable” character, the SEC should have been permitted to cross examine whether they had heard about prior civil fraud suits and whether it would have affected their opinion; exclusion of character evidence was not harmless error); United States v. Polsinelli, 649 F.2d 793, 795–96 (10th Cir. 1981)). The circuit found no abuse of discretion. The circuit added, even if there was error, it was harmless based upon evidence of guilt.
Virtually every circuit (except the D.C. Circuit) has prohibited the cross-examination of character witnesses involving guilt-assuming hypotheticals which involve the charged conduct. The questions in Parker involved facts from the charged case. The saving grace in the case seems to be that any error was harmless based on strong evidence of guilt.
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