930 F.

2d 789
32 Fed. R. Evid. Serv. 988

UNITED STATES of America, Plaintiff-Appellee,

v.
Bobby Kent WALKER, Defendant-Appellant.
No. 89-5205.

United States Court of Appeals,

Tenth Circuit.
April 10, 1991.

Gordon Cecil, Asst. U.S. Atty. (Tony M. Graham, U.S. Atty., and Susan
W. Pennington, Asst. U.S. Atty., on the brief), Tulsa, Okl., for plaintiffappellee.
Kimberly Steele of Larry L. Oliver & Associates, P.C., (Larry R. Oliver of
Larry L. Oliver & Associates, P.C.; and David Booth, Federal Public
Defender, on the briefs) Tulsa, Okl., for defendant-appellant.
Before McKAY and MOORE, Circuit Judges, and SAFFELS, District
Judge.*
JOHN P. MOORE, Circuit Judge.

Bobby Kent Walker was convicted of two counts of unlawful possession of a

firearm by a felon under 18 U.S.C. Secs. 922(g) and 924(e)(1). He was
sentenced to 360 months plus a five-year term of supervised release. On appeal,
Mr. Walker argues that during trial the district court improperly disallowed
testimony of a witness for the defense, that it misapplied the sentencing
guidelines, and that Sec. 922(g) violates the equal protection clause. We affirm.

The evidence offered at trial showed that on March 10, 1989, the defendant
drove to the home of Richard Hyle, apparently because he was upset that Mr.
Hyle was dating his ex-wife. Mr. Hyle saw the defendant's car pull up and went
outside to speak with him. According to Mr. Hyle, the defendant pulled out a
gun and fired several times, hitting Mr. Hyle once in the leg. Mr. Hyle

retaliated in kind as Mr. Walker drove away. These events provide the basis for
the first count of the indictment.
3

The defendant was arrested on March 29, 1989, at a bar in Tulsa, Oklahoma.
One of the arresting officers testified that Mr. Walker tried to hide his weapon
when he spotted the officer approaching, but he in no way attempted to use the
weapon to prevent his arrest. These events provide the basis for the second
count of the indictment.

4I. Disallowance of Certain Testimony by a Defense Witness

5

The defendant argues that the district court improperly denied him the
opportunity to impeach Mr. Hyle by limiting defendant's questioning of Agent
Jaime Reyes of the Bureau of Alcohol, Tobacco, and Firearms, the case agent
investigating the charges filed against the defendant. At the pretrial detention
hearing, Agent Reyes stated that he learned Mr. Hyle was the first to shoot
from "[i]nterviews through Mr. Hyle." Thus to impeach Mr. Hyle's trial
testimony to the contrary, the defense called Agent Reyes.

The district judge cautioned defense counsel that for the purpose of impeaching
Mr. Hyle, counsel could not ask Agent Reyes what Agent Reyes had testified to
previously, but could only ask what Mr. Hyle had personally told him. This
caution notwithstanding, defense counsel asked, "And did you, at one time or
another during your work as a case agent, attain information of Mr. Hyle
indicating that he fired first?" Agent Reyes answered, "No." At that point,
another bench conference occurred, and the district judge noted that defense
counsel's question was improper because Mr. Hyle could only be impeached by
his own prior inconsistent statements, not by what Agent Reyes might have
known from other sources. The judge concluded that, regardless of the
improper question, the issue was irrelevant because the witness answered the
question in a manner that failed to impeach Mr. Hyle. The judge then refused to
allow defense counsel to attempt to elicit further testimony from Agent Reyes,
reasoning that Agent Reyes was called for the sole purpose of impeaching Mr.
Hyle and was never called as a witness himself.

The defendant complains that the district court's refusal to allow counsel to
further question Mr. Reyes was a denial of compulsory process. However, it is
well settled that it is not improper for the trial judge to limit impeachment
evidence on matters that are deemed collateral or irrelevant. United States v.
Warledo, 557 F.2d 721, 726 (10th Cir.1977). This rule stems from the trial
judge's power under Fed.R.Evid. 403 to exclude evidence which is more
prejudicial, misleading, or confusing than probative. A matter has been held to

be collateral if it could not have been introduced in evidence for any purpose
independent of the impeachment. State v. Oswalt, 381 P.2d 617 (Wash.1963).
8

There is no dispute that the issue of whether at some prior time Mr. Hyle stated
he had fired first was relevant only for impeachment purposes. The indictment
charged only the status offense of possession of a weapon and did not include
assault charges. Who fired first was irrelevant to the issue of guilt. The defense
effort to impeach Mr. Hyle on the issue of who fired first was therefore a
collateral issue.

The trial judge's ruling is consistent with several courts' and commentators'
treatment of collateral evidence introduced solely for impeachment purposes. In
United States v. Nace, 561 F.2d 763, 770 (9th Cir.1977), the Ninth Circuit held
that "impeachment ... on a collateral matter ... was properly excluded in the
discretion of the trial court." Id. (citing United States v. Carrion, 463 F.2d 704
(9th Cir.1972); Lenske v. Knutsen, 410 F.2d 583 (9th Cir.1969); Ramirez v.
United States, 294 F.2d 277 (9th Cir.1961)). In addition, commentators agree
that: "If the witness denies making a statement on a matter classified as
collateral, his examiner must take his answer--that is, he may not prove the
making of the statement by extrinsic evidence." J. Weinstein & M. Berger,
Weinstein's Evidence Sec. 607 at 607-107 (citing Cwach v. United States, 212
F.2d 520, 529-30 (8th Cir.1954) among others); see also E.W. Cleary,
McCormick on Evidence Sec. 36 at 77 (3d ed. 1984) and cases cited therein.
This analysis is supported by our decision in United States v. Bradshaw, 787
F.2d 1385, 1392 (10th Cir.1986), where we held that the trial court did not
abuse its discretion in refusing to grant a continuance where the evidence
sought "would have been limited to impeaching [the witness] on a collateral
matter."

10

However, adherence to established rules of evidence does not necessarily assure

that the district court has complied in this case with the defendant's Sixth
Amendment rights to confrontation and cross-examination. The confrontation
clause of the Sixth Amendment guarantees the right of an accused in a criminal
prosecution to confront adverse witnesses, Pointer v. Texas, 380 U.S. 400, 85
S.Ct. 1065, 13 L.Ed.2d 923 (1965), as well as the opportunity to cross-examine
hostile witnesses. Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 110910, 39 L.Ed.2d 347 (1974). These Sixth Amendment rights, however, are not
unlimited. As the Supreme Court noted in Delaware v. Van Arsdall, 475 U.S.
673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed.2d 674 (1986):

11 judges retain wide latitude insofar as the Confrontation Clause is concerned to

trial
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.
12

The Court in Van Arsdall found a violation of the defendant's confrontation

clause rights, but only because the trial judge cut off all inquiry into a material
matter. Id.

13

The actions of the district judge in the present case are consistent with the
limits to confrontation clause rights enunciated in Van Arsdall. In fact, the
competing concerns listed by the Van Arsdall Court are many of the same
concerns contained in Fed.R.Evid. 403 granting the trial court discretion to
exclude evidence that is prejudicial, misleading, confusing, or wasteful. Again,
that is not to say that a proper Rule 403 ruling will subsume the constitutional
issue, but it does identify the types of competing interests a court may consider
in determining the proper constitutional limits to a defendant's Sixth
Amendment right to confrontation and cross-examination.

14

Therefore, we hold that the district court did not abuse its discretion in not
allowing the further interrogation of Agent Reyes after he answered that he had
not been made aware that Mr. Hyle had fired first. The question put to the
witness was unclear; therefore, despite Agent Reyes' testimony at the detention
hearing, his response may not have been inconsistent. Moreover, it was relevant
only for the purposes of impeaching Mr. Hyle. It was within the district court's
discretion in both the context of Rule 403 and the Sixth Amendment
confrontation clause to hold that the defendant had to take Agent Reyes'
answer, and could not further question Agent Reyes as a means to impeach Mr.
Hyle on a collateral issue.

II. Application of the Sentencing Guidelines

15

The defendant argues that the district judge's sentencing him as a career
offender under U.S.S.G. Sec. 4B1.1 was error as a matter of law. Under the
Guidelines, a defendant is a career offender if:

16 the defendant was at least eighteen years old at the time of the instant offense,
(1)
(2) the instant offense of conviction is a felony that is either a crime of violence or a
controlled substance offense, and (3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled substance offense.
17

The defendant concedes that he satisfies points one and three, but argues that
the offense of possession of a firearm by a convicted felon cannot be a crime of
violence under point two. He cites 18 U.S.C. Sec. 16, incorporated by reference

in Sec. 4B1.1, which defines a crime of violence as:

18 an offense that has as an element the use, attempted use, or threatened use of
(a)
physical force against the person or property of another, or
19 any other offense that is a felony and that, by its nature, involves a substantial
(b)
risk that physical force against the person or property of another may be used in the
course of committing the offense.
20

The defendant cites United States v. Selfa, 918 F.2d 749, 751-52 (9th Cir.),
cert. denied, --- U.S. ----, 111 S.Ct. 521, 112 L.Ed.2d 532 (1990), and United
States v. Sherbondy, 865 F.2d 996, 1006-10 (9th Cir.1988), for the proposition
that a sentencing court is limited to examination of the elements of the statute
violated in determining the threat of physical violence to another. The
Sherbondy court stated: "There is no indication that Congress intended that a
particular statutory or common law crime would in some circumstances
constitute a common law felony and in other circumstances not, depending on
how the offense was committed...." Id. at 1008.

21

However, the Sentencing Guidelines' definition of a crime of violence in effect

at the time the defendant was sentenced governs this case. See United States v.
Brunson, 907 F.2d 117, 120 (10th Cir.1990); United States v. McNeal, 900
F.2d 119 (7th Cir.1990); United States v. Williams, 892 F.2d 296, 304 (3d
Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3221, 110 L.Ed.2d 668 (1990).
Therefore, Sec. 4B1.1 and accompanying commentary will be analyzed as it
existed on November 29, 1989, the date of sentencing.

22

As of November 1, 1989, Sec. 4B1.2 defined a crime of violence as any offense

that:

23

(i) has as an element the use, attempted use, or threatened use of physical force
against the person of another, or

24

(ii) is a burglary of a dwelling, arson, or extortion, involves use of explosives,

or otherwise involves conduct that presents a serious potential risk of physical
injury to another.
Application Note 2 to Sec. 4B1.2 states:

25
Often
offenses are included [as crimes of violence] where (A) that offense has as an
element the use, attempted use, or threatened use of physical force against the person

of another, or (B) the conduct set forth in the count of which the defendant was
convicted involved the use of explosives or, by its nature, presented a serious
potential risk of physical injury to another.
26

The November 1, 1989 amendments to both Sec. 4B1.2 and Application Note 2
make clear that the sentencing judge may consider the underlying conduct of
the defendant in committing the offense unfettered by the elements of the
offense. The commentary to the amendment states that "[t]he purpose of this
amendment is to clarify the definitions of crime of violence and controlled
substance offense used in this guideline." See Appendix C, amendment 268. As
the November 1, 1989 amendment is merely a clarification of the preNovember 1, 1989 definition of a crime of violence, we will examine the
treatment of this issue by courts prior to the effective date of the amendment as
guidance for construction of the post-November 1, 1989 language.

27

The cases cited by the defendant and those cited by the government appear at
first to be in conflict over the issue of whether prior to November 1, 1989, a
sentencing court could have examined the underlying conduct of the defendant
in determining whether the crime committed was a crime of violence for the
purposes of Sec. 4B1.1. However, closer examination shows that these cases
can be easily reconciled. While the Sherbondy and Selfa courts, cited by the
defendant, did hold that crimes of violence may be defined only by the
elements of the crime charged, these cases concerned determinations of
whether prior convictions constituted crimes of violence for the purposes of
sentencing under Sec. 4B1.1. These courts adopted this practical rule to avoid
"ad hoc mini-trials regarding an individual's prior criminal conduct. The
problems with such hearings are evident. Witnesses would often be describing
events years past. Such testimony is highly unreliable.... Additionally, there
would likely be substantial problems with court records and transcripts relating
to earlier convictions." Sherbondy, 865 F.2d at 1008. However, these concerns
do not apply when the court is examining the conduct of the defendant in the
instant offense. See United States v. Coble, 756 F.Supp. 470, 473-74
(E.D.Wash.1991). Therefore, we hold Sherbondy and Selfa are inapposite when
the issue is whether the conduct which is the subject of the current charges
constitutes a crime of violence.

28

Once the cases concerning examination of prior convictions are distinguished,

it is evident that prior to November 1, 1989, courts consistently held that
possession of a firearm by a convicted felon can constitute a violent crime for
the purposes of sentencing as a career offender. However, they were divided on
the exact rationale for reaching this conclusion. The Ninth Circuit in United
States v. O'Neal, 910 F.2d 663 (9th Cir.1990), held that under 18 U.S.C. Sec.

16, the referenced definition of a crime of violence under Sec. 4B1.1 prior to
November 1, 1989, any conviction under Sec. 922(g) of being a felon
possessing a firearm by its nature poses the requisite substantial risk that force
will be used. According to this rationale, the underlying conduct of the
defendant is irrelevant because it is assumed that any convicted felon
possessing a firearm is necessarily a substantial threat to persons and property.
29

Other courts read the "by its nature" language of 18 U.S.C. Sec. 16 less
comprehensively, and instead focussed on the commentary to Sec. 4B1.2,
referenced by Sec. 4B1.1, which prior to November 1, 1989 stated in
Application Note 1:

30 Commission interprets [a crime of violence] as follows: murder, manslaughter,

The
kidnapping, aggravated assault, extortionate extension of credit, forcible sex
offenses, arson, or robbery are covered by this provision. Other offenses are covered
only if the conduct for which the defendant was specifically convicted meets the
above definition. For example, conviction for an escape accomplished by force or
threat of injury would be covered; conviction for an escape by stealth would not be
covered.1
31

See United States v. Alvarez, 914 F.2d 915, 918 (7th Cir.1990); United States
v. Goodman, 914 F.2d 696, 698-99 (5th Cir.1990); United States v. McNeal,
900 F.2d 119, 122-23 (7th Cir.1990); United States v. Williams, 892 F.2d 296,
304 (3d Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3221, 110 L.Ed.2d 668
(1990); United States v. Thompson, 891 F.2d 507, 509-10 (4th Cir.1989), cert.
denied, --- U.S. ----, 110 S.Ct. 1957, 109 L.Ed.2d 319 (1990). In Williams and
McNeal, the Third and Seventh Circuits determined that possession of a firearm
where there is evidence that it had been fired constituted a crime of violence.
Specifically, in Williams, the court reviewed the examples in Application Note
1 and concluded that "possessing a gun while firing it ... is a crime of violence;
possession without firing the weapon is not." In Thompson, the Fourth Circuit
held that the mere pointing of a gun constitutes a crime of violence, and in
Alvarez and Goodman, the Seventh and Fifth Circuits held that possession plus
evidence of intent to fire the weapon constituted a crime of violence for the
purposes of Sec. 4B1.1.

32

Concluding that Application Note 1 to Sec. 4B1.1, even prior to November 1,

1989, strongly implied that the defendant's conduct may be taken into
consideration by the sentencing court, and noting that the Application Notes are
entitled to substantial weight in interpreting the Guidelines, United States v.
White, 888 F.2d 490 (7th Cir.1989), we agree with the majority of circuits that,
even prior to November 1, 1989, the conduct of the defendant in the instant

offense can be taken into consideration in determining whether the defendant

has committed a crime of violence for the purposes of sentencing under Sec.
4B1.1. However, we disagree with the O'Neal court's use of the "by its nature"
language to hold that possession of a firearm by a convicted felon necessarily
constitutes a crime of violence. See United States v. Hernandez, 753 F.Supp.
1191 (S.D.N.Y.1990) (declining to follow the logic of O'Neal ). Since the
defendant's conduct in the present case involves the actual firing of the firearm
at a person, it falls squarely within the reasoning of Williams and McNeal.
Therefore, even if the defendant had been sentenced prior to November 1,
1989, we would have reached the same conclusion. This is consistent with the
Guidelines' commentary that the amendments to Sec. 4B1.2 were meant to
clarify and not to change the definition of a crime of violence. Accordingly, we
hold the district court did not err in finding that the defendant's possession of a
firearm was a crime of violence.
33

This conclusion only applies to the count concerning the incident at Mr. Hyle's
house on March 10, 1989. The record shows no conduct attendant to the second
count which can be construed as a crime of violence. This, however, is small
consolation for the defendant, as the first count is sufficient to qualify him as a
career offender under Sec. 4B1.1.

III. Whether Section 922(g)(1) Violates the Equal Protection Clause

34
35

The defendant argues that because Sec. 922(g)(1) only applies to firearms that
have been involved in interstate commerce, it violates the equal protection
clause by discriminating against convicted felons who live in states without
firearms manufacturers. However, this argument has been rejected by numerous
courts, see, e.g., United States v. Wynde, 579 F.2d 1088 (8th Cir.), cert. denied,
439 U.S. 871, 99 S.Ct. 204, 58 L.Ed.2d 184 (1978), and cases cited therein, and
the defendant fails to distinguish his argument from those rejected previously.
We therefore see no merit in his argument.

36

AFFIRMED.

The Honorable Dale E. Saffels, United States Senior District Judge for the
District of Kansas, sitting by designation

The language quoted above is taken from the pre-November 1, 1989

Application Note