United States v. Mitchell

113 F.3d 1528 (10th Cir. 1997)

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Nature of the Case

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Facts

D was indicted for bank robbery by intimidation in violation of 18 U.S.C. § 2113(a). At trial, D argued that the evidence only supports a conviction for the lesser crime of bank larceny, rather than bank robbery by intimidation, because Ms. Angela Muller, the only employee in the bank at the time of the robbery, could not have been intimidated by his actions. At trial, D claims the court improperly excluded extrinsic evidence of a prior inconsistent statement to impeach a government witness. D sought to impeach Muller's testimony by introducing a statement contained in a psychological counseling record. The record stated that Ms. Muller 'did report that she had some problems with forgetfulness since the above-listed event.' D asked how her memory was?; I think it's been pretty good. D asked do you have trouble sometimes with your memory and suffer from forgetfulness?; No. The court refused to allow questioning about the psychological record because of the court's concern that the statement might be privileged. The court eventually determined it was not privileged and then allowed the defense to proceed. Mueller testified that she could not recall making the statement to her psychologist. The court refused to allow the statement to be put into evidence. It held that if she said she can't remember that is different than a denial of the statement which would allow it to be used for impeachment. D objected. D was convicted of bank robbery by intimidation and sentenced to 210 months imprisonment. D appealed.