United States v. Thomas C. Allen, 772 F.2d 1555, 11th Cir. (1985)

772 F.
2d 1555
19 Fed. R. Evid. Serv. 1431
UNITED STATES of America, Plaintiff-Appellee,

v.
Thomas C. ALLEN, Defendant-Appellant.
Nos. 85-8149, 85-8150.
United States Court of Appeals,

Eleventh Circuit.
Oct. 8, 1985.
B.W. Crecelius, Jr., Decatur, Ga., for defendant-appellant.

Robert S. Stubbs, Asst. U.S. Atty., Atlanta, Ga., for plaintiff-appellee.
Appeals from the United States District Court for the Northern District of
Georgia.
Before FAY, JOHNSON and CLARK, Circuit Judges.
PER CURIAM:
Appellant, Thomas C. Allen, was indicted along with Craig Anthony Vidler
and Ronald C. Martens for four counts of violating federal firearms regulations.
Generally, the charges alleged a conspiracy among the three named defendants
to purchase firearms with worthless checks and, then without a license, to
export some of the firearms out of the country without informing a common
carrier of the nature of the shipment. Subsequently, appellant alone, was
indicted for attempting to obstruct justice by trying to influence defendant
Vidler to change his testimony, in violation of 18 U.S.C. Sec. 1503.
Prior to trial, the government reached a plea agreement with Vidler and
Martens. They pled guilty to two of the four counts of firearms violations and
agreed not to fight deportation. The government agreed to dismiss counts 3 and
4 and recommend no more than a twelve month sentence on count 1 and a five
year suspended sentence with five years probation on count 2. Vidler and
Martens also agreed to testify against Allen.

3
Appellant was found guilty on all counts. He was sentenced to two years
confinement on counts 1, 3 and 4, charging firearms violations and of the one
count of attempting to obstruct justice. All sentences were to run concurrently.
Appellant was also placed on five years probation consecutive to the other
sentences. He filed a timely notice of appeal.
Appellant raises three issues on appeal: (1) whether the evidence was sufficient
to establish his guilt; (2) whether the trial court erred in refusing to grant
appellant's motion for a mistrial when a government witness stated that Allen
had escaped from custody on other charges; (3) whether the trial court erred in
limiting the cross-examination of a government witness; and (4) whether the
trial court erred in failing to grant appellant's motion for a mistrial when a
government agent testified concerning Allen's arrest on other charges.
As to the question of sufficiency, we have reviewed the record and determined

that the evidence was sufficient to support his conviction on all counts. A
reasonable jury could certainly conclude that the evidence established guilty
beyond a reasonable doubt. See United States v. Bell, 678 F.2d 547, 549 (5th
Cir. Unit B 1982) (en banc), aff'd on other grounds 462 U.S. 356, 103 S.Ct.
2398, 76 L.Ed.2d 638 (1983).
As to appellant's second contention, we find no error. Vidler, a government

witness, did refer to Allen's escape from custody. However, the trial court
properly denied the motion for a mistrial. We have reviewed defense counsel's
cross-examination of Vidler and agree with the district court that counsel's own
questioning brought about the comment objected to. Defense counsel cannot
complain of an alleged error invited or introduced by himself. See United States
v. Garrett, 727 F.2d 1003, 1012 (11th Cir.1984), cert. granted on other grounds
--- U.S. ----, 105 S.Ct. 78, 83 L.Ed.2d 27 (1984); see also Roland v. United
States, 295 F.2d 471, 472 (5th Cir.1961) (witness gave adverse answer to
counsel's questions during intense and persistent cross-examination court held
error was invited by appellant).
Appellant also complains of a statement made by custom's agent Borden during

cross-examination regarding appellant's arrest on other charges. Upon
questioning by the court, agent Borden did refer to the fact that appellant was
under arrest when he talked to him. In asking the question, however, the court
was attempting to determine whether defendant was under arrest for federal
firearms charges when he was questioned by the agent. We do not believe that
even if this colloquy constituted error that it was sufficiently prejudicial to the
appellant to warrant reversal.
8
Finally, appellant maintains that he should receive a new trial because the court
improperly limited his attempt to impeach one of the government's witnesses,
Tim Jones. Counsel for appellant wanted to cross-examine Mr. Jones regarding
his relationship with his ward, Ms. Annette Attaway. Attaway had been placed
in Mr. Jones' custody when he was employed by the GBI. He subsequently
became involved in an intimate relationship with her and due to this relationship
was dismissed from the GBI. They subsequently married.
The trial court determined that this "misconduct," which had never resulted in
criminal charges of any kind, did not relate to the witnesses capacity for
truthfulness. Alternatively, the court found that any probative value was
significantly outweighed by the prejudice. The extent of cross-examination with
respect to an appropriate subject of inquiry is within the trial court's discretion.
United States v. Darwin, 757 F.2d 1193, 1202 (11th Cir.1985). Fed.R.Evid.
611(a)(3) allows the court to exercise reasonable control over the examination
of witnesses to protect them from harassment or undue embarrassment. See also
United States v. Coyler, 571 F.2d 941 (5th Cir.), cert. denied, 439 U.S. 933, 99
S.Ct. 325, 58 L.Ed.2d 328 (1978) (court refused to allow defense counsel to ask
witness if he was homosexual). We do not find any abuse of discretion in the
trial court's action. The trial court, outside the presence of the jury, allowed
defendant to try to develop some link between Jones' credibility and his
relationship with Ms. Attaway. Defendant could not establish such a
relationship. Thus, the trial court did not abuse its discretion in refusing to allow
the contested cross-examination.
10
Therefore, the conviction of the appellant is
11
AFFIRMED.

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772 F.

UNITED STATES of America, Plaintiff-Appellee,

United States Court of Appeals,

B.W. Crecelius, Jr., Decatur, Ga., for defendant-appellant.

Martens also agreed to testify against Allen.

As to the question of sufficiency, we have reviewed the record and determined

As to appellant's second contention, we find no error. Vidler, a government

Appellant also complains of a statement made by custom's agent Borden during

Therefore, the conviction of the appellant is

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