Unpublished Disposition, 912 F.2d 470 (9th Cir. 1990)

MEMORANDUM^* 

After the collapse of State Federal Savings & Loan Association (State Federal), a savings and loan association of Corvallis, Oregon, an indictment was filed against Brian J. Olsvik, Thomas E. Nevis, Mitchell Brown, and others. They were charged with conspiracy to defraud the United States, the Federal Home Loan Bank Board (FHLB), and the Federal Savings & Loan Insurance Corporation (FSLIC), and with the commission of multiple substantive offenses arising out of that conspiracy.

Their illegal acts were alleged to have consisted of the use of false entries in the books of State Federal, and other actions, all of which were designed to allow Nevis to obtain loans from State Federal which far exceeded the lending limits imposed upon that institution.

Olsvik and Nevis were found guilty of the conspiracy and of various of the substantive charges, and each appeals his conviction.

Olsvik claims that there was prejudicial error in the failure to admit certain deposition testimony of a deceased co-conspirator and that the evidence was not sufficient to convict him. We affirm his conviction.

Nevis also asserts that the evidence was insufficient to convict him and adds that his cross-examination and argument regarding a former co-conspirator, who pled guilty and testified against him, was unduly restricted. He also claims that the text of a certain lending limit regulation should have been placed before the jury. We affirm his conviction.

BACKGROUND

We have outlined the background facts of this case in our opinion in United States v. Brown, No. 89-30292, slip op. --- (9th Cir. ---- 1990), and will not repeat them here.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291.

We review evidentiary rulings for abuse of discretion. United States v. Bonallo, 858 F.2d 1427, 1435 (9th Cir. 1988); Bail Bonds by Marvin Nelson, Inc. v. Commissioner, 820 F.2d 1543, 1547 (9th Cir. 1987). This standard applies to rulings under Fed.R.Evid. 403. United States v. Layton, 855 F.2d 1388, 1402 (9th Cir. 1988), cert. denied, --- U.S. ----, 109 S. Ct. 1178, 103 L. Ed. 2d 244 (1989).

If no proper motion for acquittal has been made, we review the evidence for plain error under Fed. R. Crim. P. 52(b). See United States v. Ramirez, 880 F.2d 236, 238 (9th Cir. 1989) (court has power to prevent miscarriage of justice).

We will determine that a trial court's comment has deprived a defendant of a fair trial if the defendant can show prejudice. United States v. Herbert, 698 F.2d 981, 984 (9th Cir.), cert. denied, 464 U.S. 821, 104 S. Ct. 87, 78 L. Ed. 2d 95 (1983).

We review de novo an alleged violation of the right to confrontation under the sixth amendment. United States v. Jenkins, 884 F.2d 433, 435 (9th Cir.), cert. denied, --- U.S. ----, 110 S. Ct. 568, 107 L. Ed. 2d 562 (1989). Nevertheless, limitations on the scope of cross-examination are, basically, reviewed for abuse of discretion. United States v. McClintock, 748 F.2d 1278, 1289 (9th Cir. 1984), cert. denied, 474 U.S. 822, 106 S. Ct. 75, 88 L. Ed. 2d 61 (1985).

Finally, we review for abuse of discretion the district court's control of closing argument. United States v. Guess, 745 F.2d 1286, 1288 (9th Cir. 1984), cert. denied, 469 U.S. 1225, 105 S. Ct. 1219, 84 L. Ed. 2d 360 (1985).

DISCUSSION

1. Admission of Waters Deposition.

Prior to Olsvik's indictment, FSLIC had filed a civil action against Olsvik, Waters and others. Waters' deposition was taken, but by the time of the trial in this case he had died. Olsvik and the government sought to have portions of Waters' deposition admitted into evidence. The district court excluded those portions on the ground that Nevis objected to parts of them. Olsvik assigns that as error.

If the deposition were to be admitted at all, it would have to have been admitted under Fed.R.Evid. 804(b) (1) (former testimony) or 804(b) (5) (catchall). Olsvik's position raises some interesting issues which we have not previously decided, including whether FSLIC can be considered the predecessor in interest of the government in this case, and whether the predecessor in interest language of 804(b) (1) even applies when the proceeding at hand is a criminal case. However, it is not necessary or appropriate for us to decide those knotty issues at this time, because even if the evidence were otherwise admissible its exclusion was harmless.

It is true that Waters may have had every reason to be untruthful at his deposition, but his testimony could still have had some weight if admitted at trial. Still and all, the issues that Waters' deposition covered were also covered by other evidence at trial. Those included the relationship among the various loans, what the loan to one borrower rule meant to him, reliance upon legal advice, and the handling of a certain loan in process account. Add to that the fact that, whatever Olsvik may now argue, admission of the Waters deposition would have been a mixed blessing at best¹ , and the ineluctable conclusion is that the error, if any, was harmless. See United States v. Karr, 742 F.2d 493, 496-97 (9th Cir. 1984); United States v. Barrett, 703 F.2d 1076, 1081-82 (9th Cir. 1983).

2. Did the Evidence Support the Verdict?

Olsvik earnestly proclaims his innocence and argues that the evidence will not support the verdicts against him. However, he failed to make a motion for acquittal, so, as we stated above, we will review the record for plain error. We have done so.

We will not engage in a lengthy summary of the sordid details of this case. Suffice it to say that the evidence is strong, even overwhelming, and certainly supports the decision of the jury. Perhaps the ends of Waters and Olsvik were somewhat pure. The jury was not required to make that judgment. Neither are we. The evidence supports a determination that the means used to accomplish those ends were far from pure. In light of the evidence before us, the verdict must stand.

1. Attack on Guilty Pleas.

Jack Franks, one of the indicted co-conspirators, testified for the government at trial.²  Nevis, of course, sought to impeach Franks by attacking his motives and by attempting to demonstrate bias. The district court gave Nevis free rein so to do. However, Nevis also wished to suggest to Franks and to the jury that the guilty plea was actually invalid. At that point, the court intervened, and properly so.

It is undoubtedly true that defendants should be permitted to confront and cross-examine witnesses against them. It is also true that trial judges retain the power to impose restrictions upon that cross-examination, and have wide latitude to preclude "harrassment, prejudice, confusion of the issues ... or interrogation that is repetitive or only marginally relevant." Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435, 89 L. Ed. 2d 674 (1986). After all, what the constitution guarantees is "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Id.

The narrow restriction imposed upon Nevis in this case comes well within those parameters. The district court did not attempt to shield a witness from examination or try to bolster his credibility. Cf. United States v. Allsup, 566 F.2d 68, 72-73 (9th Cir. 1977); United States v. Mayer, 556 F.2d 245 (5th Cir. 1977); United States v. Marion, 477 F.2d 330 (6th Cir. 1973). Here all the court did was preclude Nevis from raising before the jury the purely legal issue of whether Frank's actual guilty plea was valid. See United States v. Poschwatta, 829 F.2d 1477, 1483 (9th Cir. 1987), cert. denied, 484 U.S. 1064, 108 S. Ct. 1024, 98 L. Ed. 2d 989 (1988). The fact that a witness should or should not have pled guilty is outside the point, and certainly did not tend to impeach that witness' testimony at trial. Even if one can spin some gossamer net that will pull the issue into focus, it would be so marginally relevant as to be properly excluded.

By the same token, the court's precluding Nevis from arguing his invalid guilty plea theory to the jury was no error at all.

Nevis, however, claims that he suffered great prejudice when, under the lash of repeated attempts to go into this improper matter, the court said "I think it's not relevant to this case in any event.... I took the plea. It was a valid plea...." Just so. The validity of the plea itself was outside the point in this case, and if counsel was insistant on going into its validity, that was a legal matter and he got a ruling on the law. Beyond that, the comment was fleeting, unemphasized, and unrepeated. It was in no way similar to the situation which moved the court to reverse in United States v. Marion, 477 F.2d 330 (6th Cir. 1973). There was no long harangue of the jury, no rehabilitation of the witness, and no tendency to mislead or prejudice the jury. Finally, the court told the jury to treat the statements of witnesses of Franks' ilk with great caution and warned it not to consider anything the court said or did as an indication of what the verdict should be.

2. Refusal to Admit Text of Regulation.

Here, as in Brown's trial, there were references to the loan to one borrower regulation--12 CFR Sec. 563.9-3 (1985) (recodified at 12 C.F.R. Sec. 563.93 (1990)). What we have said in Brown, slip op. ---, ---- applies here, too.

We repeat, however, that we recognize that use of the regulation is not entirely without danger. The district court properly took that into account when it determined that the regulation itself should not be admitted into evidence. Admission may well have unduly emphasized the language of the regulation and diverted the jury from its proper task. The issue was not the regulation as such, it was the falsification of records and diversion of funds. We cannot say that the district court abused its discretion when it made this ruling.

3. Did the Evidence Support the Verdict?

Nevis, too, claims that the evidence will not support the verdict against him. He, too, failed to make a proper motion for acquittal. He, too, makes his claim in the face of a record which contains ample evidence to sustain a conviction. His conviction must also be upheld.

CONCLUSION

In the course of the complex trial of this case, the district court avoided making any errors of substance, and the evidence was sufficient to establish a conspiracy and numerous substantive offenses all to the detriment of State Federal, FSLIC, and FHLB.

AFFIRMED.