Firearms — Making false statements — mistake of fact

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Where the district court prevented the defendant from introducing evidence of a mistake of fact in a prosecution for making false statements in connection with the purchase of a firearm, the conviction must be reversed.

“The government contends that the testimony from the prosecutor about whether he made a plea offer was irrelevant, or, if relevant, it was not necessary to obtain this testimony from him as only Bowling could testify about what he knew when filled out the form. We disagree. The county prosecutor’s testimony presents a possible defense and thus is clearly relevant. See Fed. R. Evid. 401; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 587 (1993) (holding that the basic standard of relevance under Rule 401 is “a liberal one.”). Bowling does not have to testify and should not be foreclosed from cross-examining the county prosecutor simply because he could personally say what he knew. Knowledge, or its absence, may be proved by all the facts and circumstances of the case. See United States v. Craig, 178 F.3d 891, 895 (7th Cir. 1999). Where cross-examination of a witness produces facts necessary to establishing a defense, the defendant may choose to rely on that testimony without having to testify himself. This is a strategic determination to be made by the defendant and his counsel. Here, the record suggests that only three persons could have testified concerning whether a plea offer had been communicated to Bowling: the county prosecutor, Bowling’s state counsel, and Bowling. Obviously, neither Bowling’s counsel, nor Bowling, should have to testify where the prosecutor is available as a witness. A jury is most likely to regard his testimony as objective as he does not have a personal interest in the outcome of Bowling’s federal case. Clearly the county prosecutor was the logical source for such testimony.”

Reversed and Remanded.

13-3895 U.S. v. Bowling

Appeal from the United States District Court for the Southern District of Indiana, McKinney, J., Manion, J.

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