Unpublished Disposition, 852 F.2d 572 (9th Cir. 1988)

Annotate this Case
US Court of Appeals for the Ninth Circuit - 852 F.2d 572 (9th Cir. 1988)

UNITED STATES of America, Plaintiff-Appellee,v.Johnny BERMUDEZ, Defendant-Appellant.

No. 87-5317.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 9, 1988.Decided July 5, 1988.

Before TANG, FARRIS and KOZINSKI, Circuit Judges.


Johnny Bermudez appeals from his conviction for being a felon in possession of a firearm, 18 U.S.C. § 922(g) (1) (Supp.IV 1986), with sentence enhancement under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e) (1) (Supp.IV 1986).

Bermudez first argues that the district court erred in barring counsel from cross-examining Detective Bosket as to possible bias. After reviewing the record, we find no indication of bias, and conclude that the district court "had sufficient information to appraise the bias and motives of the witness" and did not err in excluding further cross-examination on that issue. Skinner v. Cardwell, 564 F.2d 1381, 1389 (9th Cir. 1977), cert. denied, 435 U.S. 1009 (1978).

Second, Bermudez argues that the district court abused its discretion in refusing to strike the testimony of Bosket, who had destroyed his rough notes of Bermudez's confession. This case is governed by United States v. Griffin, 659 F.2d 932 (9th Cir. 1981), cert. denied, 456 U.S. 949 (1982). Bosket's notes would not have been subject to production under either the Jencks Act, 18 U.S.C. § 3500 (1982), Brady v. Maryland, 373 U.S. 83 (1963), or Fed. R. Crim. P. 16, and there is no per se sanction for their destruction. Griffin, 659 F.2d at 938 n. 5, 941. The court did not abuse its discretion in refusing to strike Bosket's testimony.

Bermudez next argues that the trial court erroneously refused to permit a collateral attack on one of the prior convictions used to enhance his sentence. The record clearly indicates, however, that the court allowed the collateral attack, reviewed the convictions and found them valid and constitutional.

Finally, Bermudez asserts that the statute's mandatory 15-year sentence without possibility of parole constitutes cruel and unusual punishment. U.S. Const. amend. VIII. In light of the serious nature of Bermudez's prior convictions, we find no merit in his argument. See United States v. Bass, 794 F.2d 1305, 1310 n. 5 (8th Cir. 1986), cert. denied, 107 S. Ct. 233 (1986); cf. Rummel v. Estelle, 445 U.S. 263 (1980).



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3