Petition — Renfro v. United States

In the

Supreme Court of the United States

OCTOBER TERM, 1979

WILL RENFRO,

Petitioner

versus

UNITED STATES OF AMERICA,

Respondent

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

WILLIAM M. PACE

Post Office Box 112

Aberdeen, Mississippi 39730

601-369-2310

Attorney for Petitioner

SANE ER. LAPSE NY Fate RERUN cea ee emma

AB Letter Service, inc., 327 Chartres St., New Orleans, La. (804) 581-8588

a

>

IN THE

SUPREME COURT OF THE UNITED STATES ~»

OCTOBER TERM 1979

NO.

WILL RENFRO,

Petitioner

versus

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner prays that a writ of certiorari issue to review

the decision of the United States Court of Appeals for the Fifth

Circuit rendered June 30, 1980, in case No. 79-5457

QUESTION PRESENTED

Did the District Court’s refusal to allow the defendant to

cross-examine the government’s principal witness concerning

previously expressed bias, and the court’s instruction to the

jury to disregard that line of questioning, constitute reversible

error and a violation of the defendant’s Fifth and Sixth Amend-

ment rights?

TABLE OF CONTENTS

PAGE

Nee a iS dade wes ved kaw Od 1

a i Sin be 54 boned 6 4 300 00 4-0 60s ew ba we’ 4

ns bu 0 46.050 060 cc enedenees oa 4

EE 4

EO 6

PE oer c sic cc ccc ccc cccereeccecycccccccces 8

Ee 10

Appendix ies

District Court Judgment Commitment Order,

ER A-1

TABLE OF AUTHORITIES

Cases:

Chapman v. California, 386 U.S. 18 (1967) ...........24.. 9

Davis v. Alaska, 415 U.S. 309 (1974) ........ceceee cues 8

Kotteakos v. United States, 328 U.S. 750 (1946) .......... 9

Constitutional Provisions and Statutes:

Constitution of the U.S., Fifth Amendment .............. 4

Constitution of the U.S., Sixth Amendment .............. 5

SP SP he CRS AOS ee EE EE REE OE No area 4

WEE MN. 5 i cs foei cae eens ei 4

Rules:

Rule 17.1 (a), Rules of the Supreme Court ............... 4

Rule 403, Federal Rules of Evidence ............... +. 5, 6

Rule 607, Federal Rules of Evidence ..............000: 5,6

OPINIONS BELOW

Petitioner Will Renfro was convicted of an assault upon a

federal officer (18 U.S.C. 111) in the U. S. District Court for

the Northern District of Mississippi and appealed to the U. S.

Court of Appeals for the Fifth Circuit. The judgment of con-

viction was affirmed by the Fifth Circuit in opinion No. 79-

5457 issued on June 30, 1980.

GROUNDS FOR JURISDICTION

On June 30, 1980, the U. S. Court of Appeals for the

Fifth Circuit affirmed a judgment of conviction against peti-

tioner. Petitioner seeks review by this court pursuant to 28

- U.S.C. 1254 (1) and Rule 17.1 (a), Rules of the Supreme Court.

PROVISIONS INVOLVED

Constitution of the United States, Fifth Amendment

No person shall be held to answer for a

capital, or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury,

except in cases arising in the land or naval forces,

or in the militia, when in actual service in time of

war or public danger; nor shall any person be

subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled

in any criminal case to be a witness against him-

self, nor be deprived of life, liberty, or property,

without due process of law; nor shall private

property be taken for public use, without just

compensation.

Constitution of the United States, Sixth Amendment

In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial,

by an impartial jury of the State and district

wherein the crime shall have been committed,

which district shall have been previously ascer-

tained by law, and to be informed of the nature

and cause of the accusation; to be confronted

with the witnesses against him; to have com-

ulsory process for obtaining witnesses in his

a8 and to have the assistance of counsel for

his defense.

Rule 403. Exclusion of Relevant Evidence on

Grounds of Prejudice, Confusion, or Waste

of Time

Although relevant, evidence may be ex-

cluded if its probative rm rtapens wg out-

weighed by the danger of unfair prejudice, con-

fusion of the issues, or misleading the jury, or by

considerations of undue delay, waste of time, or

needless presentation of cumulative evidence.

Rule 607. Who May Impeach

The credibility of a witness may be

attacked by any party, inciuding the party

calling him.

STATEMENT OF THE CASE

Federal investigators conducted an investigation in

DeSoto County, Mississippi, for approximately three years

involving alleged bribes received by county officials including

petitioner, County Supervisor Will Renfro. Mr. Renfro con-

tends that the F.B.I. agents, particularly Agent Tichenor, were

frustrated and angered by their inability to secure enough

evidence for an indictment.

On May 9, 1979, Petitioner Renfro met Agent Tichenor

in the hall of the DeSoto County Courthouse at Hernando,

Mississippi. Agent Tichenor said that Mr. Renfro lifted him off

the floor, threw him down and tried to vigorously twist his

head off. Petitioner Renfro testified that Agent Tichenor

slipped on some sawdust on the floor and that he picked

Tichenor up from the floor. No other persons saw this incident

although other courthouse employees arrived on the scene

within seconds, Agent Tichenor -was not injured and the entire

incident lasted only a few seconds.

Mr, Renfro was indicted and tried for assaulting a Federal

officer. His attorney, pursuant to Rule 607, attempted to cross-

examine Agent Tichenor regarding the agent’s prior statements

of bias and prejudice against Mr. Renfro in an effort to attack

the agent’s credibility. The District Court, relying on Rule 403,

halted the line of questioning and immediately instructed the

jury to disregard it:

THE COURT:

Now, members of the jury, I am going to

ask that you disregard this bine of anenloutil.

Has nothing to do with the charge you are here

about today. Let’s get back to what happened

on May 9. That is what we are here to try, who

did what and when.

The Court, after hearing argument of counsel in cham-

bers, ruled that although it may be relevant, evidence of this

kind “has its probative value substantially outweighed by the

prejudice, by the danger of unfair prejudice and confusion of

the jury...”

The particular testimony sought by defense counsel,

and denied by the Court, involved whether Agent Tichenor

had offered immunity to three propective witnesses if they

would testify that they had paid bribes to County Supervisor

Renfro.

Petitioner Renfro was convicted in the District Court and

appealed to the U. S. Court of Appeals for the Fifth Circuit.

The Fifth Circuit affirmed the conviction and dismissed peti-

tioner’s argument on the ground that if the impeachment

line of questioning had been pursued, it would have ‘‘wasted

valuable time and judicial resources” and “such a clash would

have operated to confuse and mislead the jury.”

ARGUMENT

The appeals court decision affirming the denial of the

right of a full cross-examination for impeachment purposes,

and the lower court’s admonition to the jury to disregard that

line of questioning, appears to be in direct opposition to a

prior decision of the Supremem Court. In assessing the impact

of the lower court’s action, it is important to note that Agent

Tichenor was the only witness, aside from Petitioner Renfro,

to the alleged assault although other witnesses arrived on the

scene within seconds and saw both men on the floor.

The Supreme Court held in Davis v. Alaska, 415 U.S.

309 (1974) that it is a violation of a criminal case defendant’s

Sixth Amendment right to confront witnesses against him to

restrict his defense in developing the issue of bias before the

jury. The trial court in the Davis case had limited the defense

to asking the main prosecution witness if he was biased.

Counsel was unable to make a record from which

to argue why Green might have been biased or

otherwise lacked that degree of impartiality

expected of a witness at trial. On the basis of

the limited cross-examination that was permit-

ted, the jury might well have thought that de-

fense counsel was engaged in a speculative and

baseless line of attack on the credibility of an

apparently blameless witness . . . Defense

counsel should have been permitted to expose

to the jury the facts from which jurors, as the

sole triers of fact and credibility, could appro-

priately draw intcrences relating to the reliabil-

ity of the witness. 415 U.S. at 318.

The lower court not only prevented Renfro from pursu-

ing indications that Agent Tichenor had offered immunity to

prospective witnesses if they would swear that they had paid

bribes to Renfro, but admonished the jury to disregard that

entire line of cross-examination. Petitioner contends that this

court action was also in violation of the due process clause of

the Fifth Amendment,

The lower court’s admonition to defense counsel and the

jury to ‘disregard this line of questioning” tended to strengthen

Agent Tichenor in the minds of the jury and indicated to them

that the court believed the impeachment evidence was untrue

or else that it was totally unimportant. There is considerable

reason to believe that this error contributed to the jury’s

verdict, and in such cases the conviction must be set aside.

Kotteakos v. United States, 328 U.S. 750 (1946); Chapman v.

California, 386 U.S. 18 (1967).

The Court of Appeals should not have sanctioned this

departure from a prior decision of the Supreme Court.

Respectfully submitted,

/S/ William M. Pace

WILLIAM M, PACE

Attorney for Petitioner

CERTIFICATE OF SERVICE

In compliance with the Rules, I certify that I have

served three copies of the above petition for writ of certiorari

upon Mr, H. M. Ray, United States Attorney, P. O. Box 886,

Oxford, Mississippi 38655, and three copies to the Solicitor

General, Department of Justice, Washington, D.C. 20530, by

first class mail.

This the day of August 1980.

/S/ William M. Pace

WILLIAM M. PACE

APPENDIX A

A-l |

United States of Amories vs. ( United Si..tes District Court for

WILL ©. RENFRO. ——4 RORTHERM DISTRICT OF MISSISSIFPL

DEPENDANT

Leweee eee waeweeoeaeaae Jd oncnat nn cnud79-34-K —

IUDGMENT AN PROBATION/COMMITME

tn the presence of the attorney bw the gov. inement a 1

the ile lenitant sppecred in person on ts date | Aug. 1979 |

counse: \t../ WITHOUT COoUunsEL ND 6 8 OS ON oa

25 wm counsat Mon, Tr. Hal Freeland one Fon. G. A. Gafford, Oxford MS,

Cau

LJ GUILTY, and the court being satistiad thet LJ NOLO CONTENDERS, 1«X_) NOT GUILTY

PLEA there 1 0 factus! bean tor the ples

eo LJ MOT GUILTY. Defendant 1 uiecharget

rentinstnanwan et { ss eutv.

prey ren charged of the ottermets) of §§ 111 and 1114, Title 18, Uniced

Powe & ) tates Code (assault ing an FBI agent), es charged in Count 1 of the

The cow! sched whether Grtenden! had enythung 0@ apy why judgment newts net le ponmunesd Berens me mefecwrt | awe 10 Mr Curls ay

wee hewn, or qumeered te the court, the court ad aiged the defender! quity a charerd and comveted and ordered that The Met mio ©

Tid) mont cornemrted tw the centedy of the Atterrwy General o hie ether: 1/od repr Nor woe tor © gored of Eighteen

) months.

senvence | UNder the Voluntary Surrender Plan the defendant shall re on his

on to the institution designated for his confinement as trected by

PROBATION the Clerk at the appropriate time. In an eee however, th

oncen | Sentence is stayed until September 1, 197

CONDITIONS in ectinon to the wpeciel condiuam of gremetien inpesnd chow, 44 heretey corcherrd Hthot Ue germs at currant amen oF yw ot nate Bet rms! core Hor

of te pega! te empeeed The Cans! emmy chenge ihe wrdetmens of protest m ethene @F Gutered tee pervert of yw ata nms sot +

eather © mentees prideeten erred ot Free wears perenettedl bay Naw, emy rete 6 eeere ant geet row he

od

PROBATION \ eae |

The court orders Commiiment to the custody of the Alto: ney Cane: af ant socemmnends,

16 te orctorert thst the Chev ® ctetewer

© Car tiled copy Of thee peteert

COMMITMENT ard corneretoreet to wre US Mew

AECOMME N- rat oF Othe cms aetoont Of cor

OATION

—_— i#-—

Jar 77 Aw Ye

APPENDIX B

A-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILL RENFRO,

Defendant-Appellant.

No, 79-5457.

UNITED STATES COURT OF APPEALS,

FIFTH CIRCUIT.

JUNE 30, 1980.

Defendant was convicted in the United States District

Court for the Northern District of Mississippi, William C.

Keady, J., of assaulting an FBI agent engaged in performance

of his official duties, and he appealed. The Court of Appeals,

Sam D. Johnson, Circuit Judge, held that: (1) defendant, who

did not challenge magistrate’s ruling on discovery motion until

after trial, was not entitled to raise issue on appeal; (2) in

prosecution of defendant for assaulting FBI agent who was

engaged in an investigation of defendant’s alleged involvement

in racketeering and acceptance of kickbacks in his capacity as

A-3

member of county board of supervisors, trial court did not

abuse its discretion in excluding evidence indicating that FBI

agent had offered other county officials immunity if they

would testify against defendant on grounds that probative

value of such evidence was substantially outweighed by danger

of unfair prejudice; and (3) where defendant, during direct

testimony, chose to completely reenact his version of the

assault, trial court did not abuse its discretion in permitting

Government, on rebuttal, to reenact its version of the assault

in response to defendant’s presentation.

Affirmed.

1. United States Magistrates

Appeals from magistrate’s ruling must be to district

court.

5. Federal Courts

Appellate courts are without jurisdiction to hear appeals

directly from federal magistrates.

3. Criminal Law

Defendant, who did not challenge magistrate’s ruling on

discovery motion until after trial, was not entitled to raise issue

on appeal from his conviction for assaulting an FBI agent

engaged in performance of his official duties.

A-4

4. Assault and Battery

Instruction given on forcible assault, which required

jury to view the “fear” and “expectation of immediate bodily

harm” from standpoint of victim, was not erroneous.

5. Criminal Law

Trial judge’s determination that potential prejudice

outweighs probative value of evidence will be reversed by Court

of Appeals only if exclusion constitutes an abuse of discretion.

Fed.Rules Evid. Rule 403, 28 U.S.C.A.

6. Criminal Law

In prosecution of defendant for assaulting FBI agent who

was engaged in an investigation of defendant’s alleged involve-

ment in racketeering and acceptance of kickbacks in his capac-

ity as member of county board of supervisors, trial court did

not abuse its discretion in excluding evidence indicating that

FBI agent had offered other county officials immunity if they *

would testify against defendant on grounds that probative

value of such evidence was substantially outweighed by danger

of unfair prejudice. Fed.Rules Evid. Rule 403, 28 U.S.C.A.

A-5

¥ Witnesses

Where defendant called four character witnesses who

testified about defendant’s good reputation for honesty and

integrity in the community and for p. ce and quiet in the

community, trial court did not err in permitting prosecutor, on

cross-examination, to ask witnesses whether they had heard

about specific prior instances when defendant acted dishonestly

or violently.

8. Criminal Law

In prosecution of defendant for assaulting FBI agent

engaged in performance of his official duties in which defend-

ant, during direct testimony, chose to completely reenact his

version of the assault, trial court did not abuse its discretion in

permitting Government, on rebuttal, to reenact its version of

the assault in response to defendants’s presentation.

9. Criminal Law

Trial judge has authority within limits to control scope

of rebuttal testimony.

Appeal from the United States District Court for the

Northern District of Mississippi.

A-6

Before GODBOLD, TJOFLAT and SAM D. JOHNSON,

Circuit Judges.

SAM D. JOHNSON, Circuit Judge:

Will Renfro is a former defensive tackle for the Washing-

ton Redskins, Pittsburgh Steelers, Philadelphia Eagles, and New

York Giants. On May 9, 1979, Renfro was involved in an

incident with FBI Agent Wayne Tichenor. Renfro’s actions

produced an indictment and conviction for assaulting an FBI

agent engaged in the performance of his official duties.1 We

af%rm that conviction.

This case stems from an FBI investigation into alleged

racketeering and acceptance of kickbacks by the five elected

members of the DeSoto County Board of Supervisors. Defend-

ant Renfro was a member of the County Board in May 1979

and Agent Tichenor was actively involved in the investigation

into the County Board, On May 9, 1979, Agent Tichenor was

in the DeSota County Courthouse interviewing clerks and re-

viewing county records for evidence against defendant Renfro.

Shortly after noon, Tichenor left the chancery clerk’s office on

the second floor to interview another witness in the Renfro

investigation. Within seconds of the agent’s exit, employees in

4. See 18U.S.C.§ 111.

A-7

the clerk’s office heard a loud noise in the hall. When they got

to their office door, the employees saw Agent Tichenor lying

on the floor with defendant Renfro on top of him.

The Government’s position at trial was that Renfro,

angered by the FBI investigation, picked Tichenor up and

threw him to the floor. Only Agent Tichenor observed the

assault. The prosecution did introduce, however, testimony

from the courthouse employees who stated that they arrived

in the hallway within seconds of the alleged assault. These

witnesses testified that they saw Renfro on top of Tichenor

holding him on the floor. One witness stated that it looked

like Renfro had his hands around Tichenor’s neck “chocking

him.” Another witness said it appeared that Renfro was about

to hit Tichenor.

The defendant’s position at trial was that the agent

accidentally slipped and fell on the sawdust covered floor.

Renfro testified that had the events described by Agent Tiche-

nor actually occurred, Tichenor would have been severely in-

jured. Renfro contended that Tichenor was frustrated by his

inability to obtain a conviction against any of the members

of the DeSoto County Board of Supervisors, and was willing

to lie about the accident in order to garner some type of con-

viction against one of the supervisors.

A-8

On July 11, 1979, after a two day trial, the jury returned

a verdict finding the defendant guilty as charged. The district

court entered judgment and ordered that Renfro be incarcer-

ated for 18 months. Defendant then instituted this appeal,

raising six procedural and evidentiary points of error.

PROCEDURAL POINTS OF ERROR

A. The Discovery Order

Prior to trial, defendant made a motion pursuant to

F.R.Crim.P. 16 and Brady v. Maryland, 373 U.S. 83, 83 S.Ct.

1194, 10 L.Ed.2d 215 (1962), requesting that the United

States produce and permit defendant to inspect and copy a

wide range of materials and evidence. The items requested in

this motion included materials that the Government had com-

piled relating to the assault charge, and materials that the

Government had obtained in its investigation into the defendant

in his capacity as a member of the Board of Supervisors of

eer

DeSoto County.

Defendant presented this discovery motion to a federal

magistrate prior to trial. He sought to justify discovery of

materials from the investigation into his activities as a member

of the Board of Supervisors on the ground that such informa-

tion was needed to show Agent Tichenor’s bias. After a full

hearing, the magistrate ruled that Renfro could not examine

the information from the investigation into his activities as a

A-9

member of the Board of Supervisors. Defendant never appealed

this order to the district court prior to trial. Defendant first

raised the possibility that the magistrate erred in a post-trial

motion.

[1-3] 28 U.S.C. § 636(b)(1)(A) provides that a judge

may request that a magistrate hear pre-trial matters pending

before the judge, including discovery motions in criminal trials. .

Appeals from the magistrate’s ruling must be to the district

court. United States v. Reeds, 552 F.2d 170 (7th Cir. 1977)

(per curiam). In the case at bar, while Renfro did appeal the

magistrate’s ruling to the district court, he did not do so until

after trial. This delay deprived the trial judge of his ability to

effectively review the magistrate’s holding. In essence then,

defendant is now appealing a magistrate’s decision directly to

this Court. The law is settled that appellate courts are without

jurisdiction to hear appeals directly from federal magistrates.

Id.; United States v. Cline, 566 F.2d 1220, 1221 (5th Cir.

1978); United States v. Haley, 541 F.2d 678 (8th Cir. 1974).

Accordingly, this part of defendant’s appeal must be dismissed.

B. The Jury Charge

[4] Defendant’s final procedural point of error is his

contention that the trial judge erroneously defined forcible

assault in the jury charge. The charge defines forcible assault

A-10

any willful threat or attempt to inflict ire

injury upon the person of another when — wit

an apparent present ability to do so, and includes any

intentional display of force such as would give the victim

reason to fear or expect immediate bodily harm (empha-

sis added). Defendant contends that this instruction was

invalid because it required the jury to view the “‘fear’’

and “expectation of immediate bodily harm” from the

standpoint of the victim. Renfro argues that the proper

charge for forcible assault should ask whether Sie in-

timidating actions “would have caused fear of injury to

a reasonable man.” In Shaffer v. United States, 308 F.2d

654 (5th Cir. 1962) and United States v. Marcello, 423

F.2d 993 (5th Cir.), cert. denied, 398 U.S. 959, 90 S.Ct.

2172, 26 L.Ed.2d 543 (1970), this Circuit, in dicta,

approved the instruction given by the district court.

Defendant’s arguments do not convince us that this

twice-approved charge is now incorrect. This point of

error is overruled.

EVIDENTIARY POINTS OF ERROR

A. The Cross-Examination of Agent Tichenor

During cross-examination, defense counsel sought to ask

Agent Tichenor about his conversations with Lee Harris, Mal-

colm Harris, and William Harris (the Harris brothers) during

the FBI investigation into the alleged racketeering and corrupt-

ion in DeSoto County. Counsel sought to elicit testimony from

Tichenor that he (Tichenor) had offered the Harris brothers

immunity from prosecution for accepting payoffs if they would

testify against Renfro and other members of the Board of

A-11

Supervisors. The trial judge refused to allow this cross-ex7#'-

nation. Defendant contends that this refusal limited his al »

to establish Tichenor’s bias and constitutes reversible error. —

[5] The trial judge based his decision to limit defend-

ant’s cross-examination on Federal Rule of Evidence 403. Rule

403 provides that a judge may exclude relevant evidence “‘if its

probative value is substantially outweighed by the danger of

unfair prejudice.” A trial judge’s determination that potential

prejudice outweighs the probative value of evidence will be

reversed by this Court only if the exclusion constitutes an abuse

of discretion. United States v. Authement, 607 F.2d 1129

(5th Cir. 1979) (per curiam). In the case at bar, the trial court

did not abuse its discretion.

[6] The district court could reasonably have concluded

that the evidence sought had minimal probative value. First,

testimony from Agent Tichenor that he had offered the Harris

brothers immunity would have, at best, only a slight tendency

to establish bias. Second, to the extent that Tichenor’s offer

of immunity would indicate some bias, that bias was also

established: (a) by testimony from Tichenor on cross-exami-

nation that he had been active in the FBI investigation into the

alleged racketeering in DeSoto County for three years and

(b) by questions posed to Tichenor on cross-examination asking

whether he had ever said that the FBI had enough .“‘on Will

Renfro to hang him.”’

A-12

In examining the other side of this scale, the trial judge

could reasonably have concluded that the potential prejudice

posed by the evidence was substantial. Had the trial court

allowed defense counsel to proceed with the proposed line of

questioning, the Government would undoubtedly and under-

standably have sought to introduce evidence to rebut the

defendant’s allegation. In the end, the trial might have devolved

into a lengthy dispute about the racketeering charges and the

FBI’s investigation into Renfro and other parties. Aside from

wasting valuable time and judicial resources, such a clash would

have operated to confuse and mislead the jury.

Defendant was being tried for assaulting an FBI agent.

Although evidence of the agent’s bias was relevant, the trial

judge was reasonable in concluding that the prejudice posed

by defense counsel’s proposed line of questioning exceeded

the probative value. See e. g., Howell v. American Live Stock

Insurance Co., 483 F.2d 1354 (5th Cir. 1973). We cannot say

that the trial court abused its discretion.

B. The Introduction of Extrinsic Evidence

Since the trial court refused to allow defense counsel

to cross-examine Agent Tichenor about his offer of immunity

to the Harris brothers, the defendatnt sought to call the bro-

thers as witnesses. Defendant intended to elicit testimony from

the Harris brothers that Tichenor was out to get the DeSoto

A-13

County Board of Supervisors, and that he was determined to see

them, Renfro included, in jail. Defendant contends that the

trial court erred in refusing to allow the Harris brothers to

testify.

A review of the record, however, indicates that defense

counsel decided not to put the Harris brothers on the witness

stand. The record reflects that defense counsel made this

tactical decision after the Government stated that if the Harris

brothers testified, it would introduce rebuttal evidence. The |

Government indicated that its rebuttal evidence would include

five witnesses who were present at the interviews between the

FBI and the Harris brothers. Apparently, all of the witnesses

were willing to testify that Agent Tichenor never —_ any of

a statements attributed to him.

In light of the Government’s proposed rebuttal testi-

mony, defense counsel chose not to call the Harris brothers to

the stand. Defendant cannot now contend that the trial court

erred in excluding this testimony. This point of error is over-

ruled.

C. Specific Instance Testimony

[7] At trial, defendant called four character witnesses.

These witnesses testified about defendant’s good reputation for :

“honesty and integrity in the community” and for ‘‘peace and

A-14

quiet in the community.” On cross-examination, the Govern-

ment asked the witnesses whether they had heard about specific

prior instances when defendant Renfro acted dishonestly or

violently. Defendant contends that the district court erred

in allowing the Government to question the character witnesses

about specific instances of alleged misconduct by Renfro.

in United States v. Wells, 525 F.2d 974 (5th Cir. 1976),

this Court stated:

eae a witness has testified ee a defend-

ant’s character, it is permissi uring cross-

cxathilaiiain 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 . . . Courts have imposed two important

limitations upon judicial discretion in admitting inquiries

concerning such prior misconduct: first, a requirement

that the prosecution have some good faith factual basis

for the incidents inquired about [Citations omitted} and

second, a requirement that the incidents inquired about

are relevant to the character traits involved at the trial.

Id. at 976, 977. See also United States v. Bynum, 566 F.2d

914 (5th Cir. 1978). Defendant does not contend that the

prosecution lacked a good faith factual basis for the incidents

inquired about or that the incidents were not relevant to the

character traits involved at the trial. Renfro’s contention that

the district court erred in allowing this line of questioning must

be rejected.

A-15

D. Rebuttal Evidence

[8] Agent Tichenor, during the Government’s case-in-

chief, described and demonstrated by arm movements the

actions that he and Renfro took during the assault. Defendant

Renfro, during direct testimony, chose to completely re-enact

his version of the assault. During rebuttal, the Government

re-enacted its version of the assault in response to defendant’s

presentation. On appeal, defentant contends that the trial court

abused its discretion in allowing the Government to present this

second re-enactment.

[9] The trial judge has the authority, within limits, to

control the scope of rebuttal testimony. Geders v. United

States, 425 U.S. 80, 86, 96 S.Ct. 1330, 1334, 47 L.Ed.2d 592

(1976). The trial judge did not abuse his discretion when he

allowed the Government to re-enact the assault.

CONCLUSION

The judgment entered by the district court is

AFFIRMED.

|

-

~~ as

ae.