United States v. Ingmar Gillon

*
The HONORABLE LAURIE SMITH CAMP, United States District Judge for
the District of Nebraska, sitting by designation.
1 The HONORABLE ANN D. MONTGOMERY, United States District Judge
for the District of Minnesota.
United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-3584
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Minnesota.
Demon Echols, *
*
Defendant - Appellant. *
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Submitted: May 14, 2003
Filed: October 14, 2003
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Before LOKEN, Chief Judge, BRIGHT, Circuit Judge, and SMITH CAMP, * District
Judge.
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LOKEN, Chief Judge.
After a jury convicted De’mon Echols of federal robbery and firearms offenses,
the district court 1 sentenced him to 346 months in prison. Echols appeals, arguing the
district court abused its discretion and violated his rights under the Confrontation

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Clause of the Sixth Amendment when it denied his request to cross-examine the
crime victim on his illegal alien status. We affirm.
Dixie Dixon and Echols kidnaped Miguel Cigarrero on July 14, 2001. Echols
held a gun in the back seat of Cigarrero’s car as Dixon drove the trio to automated
teller machines in south Minneapolis, trying unsuccessfully to withdraw money from
Cigarrero’s bank account. Echols threatened to kill Cigarrero if he tried to escape.
Dixon then drove to Cigarrero’s apartment, leaving Echols in the car with Cigarrero
while Dixon entered the building. Cigarrero alerted a passing patrol car and escaped.
The police captured Echols and Dixon, and Cigarrero identified them at the scene.
The jury convicted Echols of carjacking, being a felon in possession of a firearm and
ammunition, and carrying a firearm in relation to a crime of violence. See 18 U.S.C.
§§ 2119, 922(g), 924(c)(1)(A) and (e).
Before the start of trial, the government asked whether the district court would
admit evidence of Cigarrero’s status as an illegal alien, because that might affect voir
dire of the prospective jurors. Defense counsel Johnson stated, “I guess I would
object to not being able to go into his illegal status.” The court responded:
THE COURT: I’m going to reserve any ruling on the relevance of the
citizenship status of the victim until I hear a little bit more about what
this case is and how the victim’s credibility is assailed during the cross-
examination, if at all. It strikes me that it’s a better subject for a curative
jury instruction at the conclusion of the case . . . rather than inquiring
about it on voir dire. So I will leave the issue alone. I would ask, Mr.
Johnson, that prior to seeking to elicit such testimony from the victim,
that you approach the bench and I will give you a green or red light prior
to you having that matter come out.
MR. JOHNSON: That’s fine, your Honor.

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After selection of the jury but before the government presented its case-in-
chief, counsel and the district court returned to this issue:
MR. JOHNSON: With regard to the immigration status . . . . I would
simply take the position that if the victim is going to testify, everything
and anything about him on cross-examination I should be able to ask.
I’m basing this [on], I’ve received reports [that] Mr. Dixon has
indicated that he and the victim, Mr. Cigarrero, knew each other, and
they put together a little scheme to try to get money out of his wife. . . .
THE COURT: I’m going to have to see how that develops. . . . If it’s
just a fact that . . . he’s not a legal alien . . . . and that’s a mere
coincidence . . . I don’t think it has any probative value. I think its
prejudicial value exceeds it.
On the other hand, if there is some reason to believe this victim
was selected perhaps because he wouldn’t likely go to the police
because he is illegal or some factual background that makes it more
relevant, I will keep an open mind as to the relevance reemerging.
But . . . with the limited submissions I’ve had so far . . . there isn’t
any basis to believe that the immigration status of the victim had
anything whatsoever to do with . . . who was selected and it was a
random victim, [so] I will remain with the ruling that you are required
to approach the bench prior to eliciting any testimony about immigration
status.
MR. JOHNSON: That’s fine.
Neither party raised the issue of illegal alien status during Cigarrero’s lengthy
testimony as the government’s principal trial witness.
On appeal, Echols argues that the district court abused its discretion by
precluding him from cross-examining Cigarrero about his illegal alien status. This

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fact was relevant to credibility, Echols argues, as “the threat of deportation would act
as a powerful incentive for Cigarrero to please the police officers.”
We conclude that Echols did not preserve this issue for appeal for three distinct
reasons. First, after receiving an unfavorable ruling prior to trial, Echols did not raise
the issue during trial. “Even if an issue is raised pre-trial . . . an attorney must make
an offer of proof during the trial in order to preserve the issue for appeal.” United
States v. Kirkie, 261 F.3d 761, 767 (8th Cir. 2001).
Second, the district court’s pretrial ruling was tentative, and the court expressly
invited Echols to raise the issue during trial, when its relevance could be weighed
more accurately against the risk of unfair prejudice. Because the district court
explicitly reserved its final ruling, Echols “cannot argue that an objection at trial
would have been futile.” United States v. Mihm, 13 F.3d 1200, 1204 n.3 (8th Cir.
1994). Thus, his failure to seek a final ruling at trial waived the issue.
Third, Echols did not present to the district court the relevance argument he
makes on appeal. Prior to trial, defense counsel alluded to a possible scheme between
Dixon and Cigarrero that had no apparent relationship to the latter’s immigration
status and broadly asserted that he should be allowed to cross-examine about
“everything and anything.” The alien status question was not revisited at trial.
Although the Sixth Amendment’s Confrontation Clause guarantees a defendant the
right to cross-examine adverse witnesses, “trial judges retain wide latitude insofar as
the Confrontation Clause is concerned to impose reasonable limits on such cross-
examination based on concerns about . . . prejudice.” Delaware v. Van Arsdall, 475
U.S. 673, 679 (1986); see F ED . R. EVID . 403 (a court may exclude relevant evidence
“if its probative value is substantially outweighed by the danger of unfair prejudice”).
Here, the district court expressed concern about possible prejudice and invited Echols
to explain the relevance of Cigarrero’s alien status. Echols did not do so. He first
presented his motive-to-cooperate and credibility arguments in a post-trial motion for

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new trial. We cannot conclude that the trial court abused its discretion by excluding
potentially prejudicial evidence when the proponent failed to show its relevance. See
Kirkie, 261 F.3d at 767.
The judgment of the district court is affirmed.
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