Unpublished Disposition, 857 F.2d 1479 (9th Cir. 1988)

No. 87-3086.

United States Court of Appeals, Ninth Circuit.

Before WALLACE and REINHARDT, Circuit Judges, and EDWARD DEAN PRICE,^*  District Judge.

MEMORANDUM^** 

This appeal arises from the conviction of the defendant by a jury of possession with the intent to distribute cocaine and unlawfully carrying a firearm during the commission of a felony. The following issues are presented for the Court's consideration:

1. Did the trial court abuse its discretion by allowing the prosecutor during cross-examination to ask a defense witness about a prior act of violence on the part of the defendant?

2. Did the trial court abuse its discretion when it allowed the government to ask a defense witness about a telephone conversation with the government's informant?

3. Did the trial court properly limit the defendant's examination of a witness?

4. Assuming that one or more of the above rulings by the trial court is found to be error, does this error amount to a reversible error?

During the course of the pretrial discovery, defendant's counsel requested, among other things, "any evidence of prior bad acts by the defendant that the government intends to introduce at trial," citing authority. The government's response to this request was negative. Prior to the trial the defendant filed a motion in limine. During the hearing on the motion in limine, the judge instructed the prosecutor to make it known to defendant the bad acts which the government intended to use at trial. The judge also indicated that if a situation arose where such use was contemplated during cross-examination, a hearing would be held.

During the direct testimony of a character witness, the witness testified that he knew the defendant was a kind person and not violent. He was asked if it would cause him to change his testimony if he learned that the defendant threatened someone with a gun before a female bystander. The character witness explained that his testimony only had to do with his personal relationship with the defendant. The defendant made a motion for a mistrial, which was denied.

The leading case on the presentation of character evidence in the United States is Michelson v. United States, 335 U.S. 469, 93 L. Ed. 168 (1948). In the course of that opinion, the court made the following observation:

The price a defendant must pay for attempting to prove his good name is to throw open the entire subject which the law has kept closed for his benefit and to make himself vulnerable where the law otherwise shields him. The prosecution may pursue the inquiry with contradictory witnesses to show that damaging rumors, whether or not well-grounded, were afloat--for it is not the man that he is, but the name that he has which is put in issue. Another hazard is that his own witness is subject to cross-examination as to the contents and extent of the hearsay on which he bases his conclusions, and he may be required to disclose rumors and reports that are current even if they do not affect his own conclusion. It may test the sufficiency of his knowledge by asking what stories were circulating concerning events, such as one's arrest, about which people normally comment and speculate. Thus, while the law gives defendant the option to show as a fact that his reputation reflects a life and habit incompatible with commission of the offense charged, it subjects his proof to tests of credibility designed to prevent him from forfeiting by a mere parade of partisans.

Id. at 479, 93 L. Ed. at 175-76.

However, it is difficult to fault the government for failing to predict what the character witness might testify to. As stated in Michelson, it is incumbent upon the defendant to realize that once he puts his character in issue he lays open to exposure all prior acts that he may have committed that may impinge upon the character attributed to him by the character witness. See also, Fed.R.Evid. 405(a). We find no error in the court's ruling.

The defendant also argues that the government's cross-examination concerning the threat violated the trial court's discovery order. The defendant did not raise this argument in the trial court. Thus, we review for plain error. See United States v. Hutson, 843 F.2d 1232, 1238 (9th Cir. 1988). A plain error is a highly prejudicial error affecting substantial rights. Id. As in Hutson, we conclude that, in light of the evidence presented in this case, the government's alleged violation of the discovery order did not have "an unfair prejudicial impact on the jury's deliberation." Id.

The defendant's main defense was entrapment; he argues that his participation came as the result of constant hounding by the undercover informant.

Defendant called his girlfriend¹  as a character witness. She testified that in November she started getting calls at her apartment from a person named "Jose". On cross-examination, she was asked: "Do you ever recall receiving a phone call from any individual and asking the caller: 'Is this about cocaine or drugs?' " The witness answered: "No". Defendant objected, and the government offered to show the basis for the question. The matter was raised during an in chambers conference, and defendant's counsel cited United States v. Candeleria-Gonzales, 547 F.2d 291 (5th Cir. 1977). The trial judge overruled defendant's motion to dismiss, subject to his reading the cited case.

This case does not aid the defendant here. In Gonzales, the prosecution was making inquiry as to whether the defendant's reputation would be affected by conviction of the crime charged in the trial in which the witness was testifying. The trial judge denied the motion subject to his reading of the case cited supra. No further reference appears in the record as to any subsequent ruling by the trial judge. Clearly, his conditional ruling was not error.

Finally, during the cross-examination of the undercover informant, defendant attempted to elicit from the informant confidential information that he had entered into a "sham" marriage to enable him to remain in the United States. First the witness objected, and when prodded by the court, the prosecutor objected. At a session out of the presence of the jury, and after an offer of proof, defendant's counsel was unable to cite a case supporting her position.

The extent of proper cross-examination lies within the sound discretion of the trial judge. Fed.R.Evid. 403, 608(b), 611(b). In Skinner v. Cardwell, 564 F.2d 1381, 1389 (9th Cir. 1977), the court stated that the determination of relevancy of offered cross-examination is within the discretion of the trial court. The tenuous relationship between the alleged sham marriage and his truthfulness as a witness was clearly within the court's discretion.

On appeal, the defendant now relies on United States v. Prantil, 764 F.2d 548, 555-56 (9th Cir. 1985). He argues that the question allowed the prosecutor to present his personal belief to the jury that there was a pattern of cocaine trafficking. We also reject this argument. Unlike Prantil, where the prosecutor made numerous prejudicial character attacks on the defendant in closing argument based on his own personal beliefs, id., the prosecutor's single question on cross-examination did not raise to that level. Moreover, the question does not even intimate anything relating to a pattern of cocaine trafficking.

In sum, the defendant's claimed errors fail. The judgment must be affirmed.