Unpublished Disposition, 848 F.2d 199 (9th Cir. 1988)

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U.S. Court of Appeals for the Ninth Circuit - 848 F.2d 199 (9th Cir. 1988)

No. 87-5020.

United States Court of Appeals, Ninth Circuit.

Appeal from the United States District Court for the Central District of California; Robert M. Takasugi, District Judge, Presiding.

MEMORANDUM* 

Before CANBY and WIGGINS, Circuit Judges, and CHARLES LOVELL**  District Judge.

INTRODUCTION

Appellant-Defendant Yvonne Nortey appeals the district court's refusal to suppress incriminating statements she made while in custody of the Los Angeles Police Department. Nortey was convicted of making a false statement to a government agent in violation of 18 U.S.C. § 1001. She argues that she was not given a proper Miranda warning in that she was not fully apprised of her rights to have an attorney present during questioning. She also contends that her statement was involuntary. Finally she raises an evidentiary issue regarding cross-examination of a government witness. We affirm.

DISCUSSION

Suppression of Nortey's Statement

The government relies on testimony of Police Officer Mason that he read Nortey her Miranda rights, including the right to have an attorney present, from a printed form, and that Nortey gave her statement voluntarily. It also relies on a waiver form signed by Nortey that states: "I hereby waive my rights and wish to take [sic] to the police. I do so freely." This evidence is clearly sufficient to support the district court's finding that proper warnings were given and that Nortey's statement was voluntary.

Nortey's argument consists of an attack on Officer Mason's credibility and an insistence on the truth of her testimony that she was not properly warned and was coerced. She argues that there were discrepancies in Officer Mason's testimony over whether he actually arrested her, and on what charges, when he took her to the police station. The discrepancies, if any, are minor and certainly did not compel the trial judge to reject Officer Mason's testimony that he gave Miranda warnings and that Nortey spoke voluntarily. In essence, Nortey is simply asking this court to resolve a credibility issue differently from the trial court, when the record makes clear that the trial court's findings were not clearly erroneous. We are neither inclined nor empowered to grant such relief. See United States v. Good, 780 F.2d 773, 774 (9th Cir.), cert. denied, 475 U.S. 1111 (1986); United States v. Miller, 753 F.2d 1475 (9th Cir., 1985); United States v. Hood, 493 F.2d 677 (9th Cir.), cert. denied, 419 U.S. 852 (1974).

Cross-Examination for Bias

We review the district court's limitation of cross-examination for abuse of discretion. United States v. Bleckner, 601 F.2d 382 (9th Cir. 1979).

Nortey argues that she should have been allowed further to cross-examine the government's witness Leonora Santos to show that Santos intended to sue the police for breaking her arm. By this testimony Nortey hoped to show bias in the Government's decision to prosecute, as well as bias against Nortey by the witness Santos. See Davis v. Alaska, 415 U.S. 308 (1973) (right of confrontation denied when the trial court prohibited the defense from questioning a prosecution witness as to his background as a probationer and as a possible suspect in order to show the witness' bias.)

The contention that Santos' testimony would have shown prosecutorial bias to the jury is simply inappropriate. Questions of selective or vindictive prosecution are for the court, not the jury. See, United States v. Oaks, 508 F.2d 1403, 1404 (9th Cir. 1974) cert. denied, 426 U.S. 952 (1976) (defense of discriminatory prosecution should be presented as Rule 12 motion before trial). Thus, the only potentially valid issue was bias of the witness against Nortey.

Any connection between the testimony Nortey sought to elicit and a possible bias by the witness Santos against Nortey was extremely attenuated. The testimony would have shown no direct reason why Santos would have an incentive to testify against Nortey. If anything, the testimony would only have suggested bias against the party directly responsible for breaking Santos' arm: the police. In light of the dubious value of the testimony sought, the trial court acted within its permissible discretion in limiting Nortey's cross-examination.

CONCLUSION

There was conflicting testimony concerning the adequacy of the Miranda warnings and the voluntariness of Nortey's statement. The evidence supporting the government's view was more than sufficient to convince us that the district court's resolution of the conflict was not clearly erroneous. The district court accordingly did not clearly err in refusing to suppress the defendant's statements.

Nortey's desired cross-examination of the government's witness, Leonora Santos, would not have shown bias by the witness against Nortey. It would have served no other proper purpose. The trial court did not abuse its discretion in excluding it.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3

 **

The Honorable Charles Lovell, United States District Judge for the District of Montana, sitting by designation