Unpublished Disposition, 848 F.2d 1243 (9th Cir. 1986)

MEMORANDUM^* 

Mary Elise Colby appeals from her convictions for importation of marijuana, in violation of 21 U.S.C. §§ 952 and 960, and for possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a) (1) and 18 U.S.C. § 2. Colby also appeals her sentence on the grounds that the district court improperly imposed consecutive sentences and failed to give Colby a summary of certain information contained in the presentence report, as required by Fed. R. Crim. P. 32(c) (3) (B). We affirm Colby's convictions, but remand for clarification on the sentencing issue.

FACTS

On October 17, 1986, Colby and Kenneth Tatum were arrested in San Luis, Arizona as they attempted to drive across the Mexican border into the United States. U.S. Customs agents stopped the car because the driver, Tatum, appeared nervous. The agents inspected the car and found that the gas tank had been tampered with. They removed the tank and discovered 35 pounds of marijuana hidden in a secret compartment.

Tatum pled guilty to a misdemeanor and agreed to testify against Colby and an alleged co-conspirator, Eleanor Jon Pritchett. Tatum was released from custody pending trial and shortly thereafter was shot, but not killed. Before trial, Colby asked the district court to preclude the government from referring to the shooting. Initially, the district court granted the motion. However, the district court reversed the decision after the defense offered Judy Anderson as a defense witness. The court ruled that if Mrs. Anderson were called to the stand, the government would be allowed to impeach her testimony by bringing out the fact that her husband had been indicted for the shooting. Based on this ruling, the defense decided not to call Mrs. Anderson. The defense made an offer of proof that Mrs. Anderson would have testified that Tatum was untrustworthy, paranoid, and addicted to alcohol and drugs, and that he had lied about meeting Colby and Pritchett at the Andersons' house the day before he and Colby were arrested.

Following a jury trial, Colby was convicted of importation (Count II) and possession with intent to distribute (Count IV), but was acquitted of the corresponding conspiracy charges (Counts I and III). Colby was placed on five years' probation with certain conditions, including completion of an inpatient drug rehabilitation program. Colby's probation was revoked after she left the inpatient facility without completing the program, and she was sentenced to consecutive terms of five years' imprisonment on Count II and five years' probation on Count IV.

* Colby's first contention is that the district court abused its discretion in ruling that the government could impeach Mrs. Anderson by revealing that her husband had been indicted for shooting Tatum. We reject this contention.

Colby first argues that the evidence was not relevant to her case, because although the government claimed to have evidence that Pritchett had hired Mr. Anderson to kill Tatum, it did not claim to have any evidence linking Colby to the shooting. This argument overlooks the reason for which the evidence was proffered: to show bias on the part of Mrs. Anderson. A jury could infer from Mr. Anderson's indictment that the Andersons were involved with Pritchett in such a way as to bias Mrs. Anderson against Tatum. Compare United States v. Abel, 469 U.S. 45, 51 (1984). Thus, the government's proposed cross-examination fell within the definition of "relevant evidence" and was not improper. Fed.R.Evid. 401; see also Fed.R.Evid. 611(b) (allowing cross-examination on "matters affecting the credibility of the witness").

Next, Colby argues that even if the shooting was relevant to show bias, it should have been ruled inadmissible under Rule 403 as unduly prejudicial. It was within the district court's discretion to weigh such prejudice against the probative value of the evidence. Abel, 469 U.S. at 53-55. We do not believe that the court abused its discretion here. Evidence showing bias on the part of a witness "is always significant in assessing credibility," because "the trier of fact must be sufficiently informed of the underlying relationships, circumstances and influences operating on the witness so that ... he can determine whether a mutation in testimony could reasonably be expected as a probable human reaction. Courts are therefore very liberal in accepting testimony relevant to a showing of bias." United States v. Robinson, 530 F.2d 1076, 1079 (D.C. Cir. 1976) (quoting 3 Weinstein's Evidence p 607 (1975)). The judge was prepared to give a cautionary instruction, which would have prevented much of the potential prejudice in these circumstances. See, e.g., United States v. Rosenwasser, 550 F.2d 806, 808-09 (2nd Cir.) (testimony regarding prior similar acts of a co-defendant not unduly prejudicial in light of cautionary instruction, even where prior act was related to the charges against the defendant), cert. denied, 434 U.S. 825 (1977).

The cases cited by Colby are distinguishable. In United States v. Ochoa, 609 F.2d 198, 205 (5th Cir. 1980), the court ruled that the bad conduct of defendant's brother, brother-in-law and friend was not relevant, because the character of those people was not in issue. Here, by contrast, Mrs. Anderson's credibility is central to her testimony. In United States v. DeCicco, 435 F.2d 478, 484 (2nd Cir. 1970), the evidence of prior bad acts added little to the evidence of intent already before the jury. Here, the government had no other means of demonstrating Mrs. Anderson's possible bias. See Gross v. Black & Decker (U.S.), Inc., 695 F.2d 858, 863 (5th Cir. 1983) (availability of other evidence to prove same facts is a factor to be considered).

In light of the above factors, we conclude that the district court did not err in ruling that the government could raise the shooting incident to impeach Mrs. Anderson. Colby's convictions are therefore affirmed.

II

Colby's second contention is that the district court abused its discretion in failing to reveal confidential information contained in the presentence report, or, in the alternative, by failing to provide a summary of the information relied upon, as required by Fed. R. Crim. P. 32(c) (3) (B).

The government contends that the district court complied with the rule by providing an oral summary of the information in camera, as the Rule permits. However, the record contains no indication whether such an oral summary was made, whether the summary, if any, was adequate, whether the judge relied on the information sought, and whether defendant and her counsel were given the opportunity to comment. See Rule 32(c) (3) (B). Without this information, we are unable to determine whether the trial court abused its discretion.

We therefore remand the case to give the district court an opportunity to clarify the record with respect to its compliance with Rule 32. If the court determines on remand that its compliance was sufficient, it should state on the record what actions were taken and the reasons justifying its conclusions. If not, the court should vacate Colby's sentence and sentence her anew.

This panel will retain jurisdiction over any subsequent appeal.

III

In light of our disposition of the above issue, it would be premature to rule on the third issue raised by Colby, whether the district court abused its discretion by imposing consecutive sentences. We therefore dismiss this claim, without prejudice to Colby's right to raise the issue in a subsequent appeal.

AFFIRMED IN PART, REMANDED IN PART.