Unpublished Disposition, 936 F.2d 580 (9th Cir. 1991)

MEMORANDUM^* 

Jennings appeals his conviction, after a jury trial, for armed robbery. Jennings asserts that several rules of evidence were violated, and that these violations prejudiced the presentation of his defense. Jennings further argues that the district court's limitation of his impeachment of an important government witness violated his Sixth Amendment right to confront witnesses. We affirm.

* Jennings argues that the district court improperly excluded evidence of Miguel Dumay's bad character under federal rule of evidence 404(b). Rule 404(b) prohibits the introduction of evidence of a person's prior bad acts in order to show action in conformity therewith. However, evidence of prior bad acts is admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Fed.R.Evid. 404(b).¹ 

Jennings argues that the evidence he sought to introduce at trial did not tend to show only propensity, but also tended to show that Daniela Dumay, the prosecution's star witness, lied at her husband's behest. Specifically, Jennings contends that Miguel Dumay's prior drug activity tended to show Daniela Dumay's motive to lie.

Jennings' argument fails. The evidence of Miguel's past drug dealing is relevant to Jennings' defense only to the extent that it supports an inference that Miguel was acting in conformity with his propensity on the particular occasion, so that there were drugs in the Dumay house. Yet this is precisely the inference that Rule 404(b) forbids. See United States v. Brown, 880 F.2d 1012, 1015 (9th Cir. 1989) (prior bad acts evidence went not to motive but propensity, and should have been excluded). Thus, Jennings' evidence falls within Rule 404(b)'s proscription, and it was properly excluded.² 

II

Jennings contends that the district court violated his right to confront witnesses by limiting his cross-examination of Daniela Dumay. A trial court's decision to limit the scope of cross examination is reviewed for abuse of discretion. United States v. Bonanno, 852 F.2d 434, 439 (9th Cir. 1988) (cross-examination was reviewed for abuse of discretion although a defendant's Constitutional right to confront witnesses was implicated), cert. denied, 488 U.S. 1016 (1989).³ 

The legal standard by which limitations on cross examination are evaluated is clear: A trial court does not abuse its discretion and violate a defendant's right to confront witnesses when it limits the scope of cross-examination so long as the jury receives sufficient information to appraise the biases and motivations of the witness. Bonanno, 852 F.2d at 439; see also United States v. Pace, 833 F.2d 1307, 1314 (9th Cir. 1987), cert. denied, 486 U.S. 1011 (1988); Feldman, 788 F.2d at 554.

We need not reach the question whether the district court would have abused its discretion by foreclosing inquiry into a history of Miguel Dumay's abusive treatment of his wife Daniela, since Jennings failed to adequately inform the district court of the contents of his proposed cross-examination. Rule 103 requires that the "evidence [be] made known to the court by offer or [be] apparent from the context...." Fed.R.Evid. 103(a) (2). Jennings now says that when he asked Daniela Dumay redundant questions regarding Miguel's infidelities, he intended to inquire into a history of physical abuse. However, nowhere does Jennings show that he made this proposed content of the cross-examination known to the court. Nor is this proposed content apparent from context. RT I at 42-45.⁴  Surely it was no abuse of discretion for the district court to foreclose prolonged, cumulative questioning about marital infidelities. And in the absence of an explanation from counsel, that was the apparent purpose of Jennings' inquiry into the Dumays' marriage.⁵ 

III

Jennings contends that the district court abused its discretion in allowing the government to introduce evidence that Jennings' codefendant, one Williams, had been convicted of robbery. The government called Williams as a witness and sought to lay a foundation for his testimony by establishing that he was a convicted criminal who testified pursuant to a grant of immunity. In the course of giving the jury this information about the witness, the government asked Williams whether he had been convicted "of the crime of robbery" a short time before, and Williams admitted that he had been convicted of robbery.⁶ 

Whether a question is asked of a codefendant to lay a foundation for testimony, or a question is asked of a codefendant to impeach testimony, the concern is the same: "The government may not introduce evidence of a co-defendant's conviction as substantive evidence of the guilt of the defendant who is on trial." United States v. Peterman, 841 F.2d 1474, 1479 (10th Cir. 1988) (finding admission proper for impeachment purposes and not outweighed by its prejudicial impact), cert. denied, 488 U.S. 1004 (1989). "The question is whether the government examined the witness for the primary purpose of placing before the jury substantive evidence which is not otherwise admissible." United States v. Gomez-Gallardo, 915 F.2d 553, 555 (9th Cir. 1990) (considering whether the government called witness to reveal through impeachment evidence that could not otherwise be brought before the jury).

It seems apparent that the government's purpose in calling Williams was to elicit testimony about the robbery. First, Williams' expected testimony about the details of what happened was crucial to the government's case. Moreover, only a single question was asked concerning whether Williams' had previously been convicted of a crime, and this question did not clearly relate to the events in issue. Thus, because we do not believe that the government's primary purpose in calling Williams was to establish that he had been convicted of the robbery at issue, we conclude that the district court did not abuse its discretion in allowing the government to ask Williams if he had been convicted of robbery.

IV

Jennings argues that the district court abused its discretion in excluding extrinsic evidence of certain prior inconsistent written statements of Daniela Dumay that Jennings offered on cross-examination. Daniela admitted that she had made the statements, and was cross-examined about their contents. Thus, since the jury already knew the contents of the written statements, they had sufficient information to evaluate her testimony without the introduction of the writings themselves. See Bonanno, 852 F.2d at 439.

The judgment of conviction is Affirmed.