Unpublished Disposition, 852 F.2d 573 (9th Cir. 1986)

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US Court of Appeals for the Ninth Circuit - 852 F.2d 573 (9th Cir. 1986)

UNITED STATES of America, Plaintiff-Appellee,v.H. Daniel WHITMAN, Defendant-Appellant.

No. 86-5238.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 9, 1988.Decided June 30, 1988.

Before TANG, FARRIS and KOZINSKI, Circuit Judges.


H. Daniel Whitman appeals from his second conviction for conspiracy to obstruct justice, tampering with a federal witness, retaliation against a federal witness and conspiracy to deprive a witness of his civil rights.

Appellant first contends that the district court deprived him of his sixth amendment right to confrontation by limiting his cross-examination of government witnesses. We review such limitations for an abuse of discretion. United States v. Domina, 784 F.2d 1361, 1365 (9th Cir. 1986), cert. denied, 107 S. Ct. 893 (1987). When the cross-examination relates to the credibility of the witness, "the test as to whether the trial court's ruling violated the sixth amendment is 'whether the jury had in its possession sufficient information to appraise the biases and motivations of the witness.' " Chipman v. Mercer, 628 F.2d 528, 530 (9th Cir. 1980). The confrontation clause may be violated when defendant is foreclosed altogether from examining a witness' potential bias or prejudice. Id. at 533. The district judge has the authority to rule out a line of questioning that is only marginally relevant, id., or for which counsel has not established an adequate foundation or basis in fact. Domina, 784 F.2d at 1366. See also United States v. Garrett, 727 F.2d 1003, 1011 (11th Cir. 1984), aff'd on other grounds, 471 U.S. 773 (1985).

Here, appellant sought to explore whether a government witness testified in order to avoid prosecution for the crime of narcotic sales. Having established that the witness had never been threatened with criminal charges for this offense, the district court acted appropriately in prohibiting appellant's inquiry. Appellant also sought to impeach a government witness by showing that the witness' cocaine use impaired his ability to perceive and recall. The court did not abuse its discretion by prohibiting this line of cross-examination after appellant failed to establish that the witness was impaired during the events to which he testified. Because evidence of drug use may prejudice the jury, it "must be handled with some sensitivity." Domina, 784 F.2d at 1366-67. The district court has broad discretion in balancing the probative value of such cross examination against its potential prejudicial effect.

Appellant also claims that the court was overly strict in limiting the cross examination of a government witness to matters within the scope of direct examination. Such a restriction was well within the court's discretion. Fed.R.Evid. 611(b).

Finally, appellant contends that the district court's frequent interventions into the trial process undermined his right to effective assistance of counsel and to a fair trial. We review such claims de novo, but will reverse only if the district court's conduct clearly prejudiced appellant's rights. United States v. Bennett, 702 F.2d 833, 836 (9th Cir. 1983); United States v. Burt, 765 F.2d 1364, 1368 (9th Cir. 1985). The assessment must be made in light of the evidence of guilt. United States v. Poland, 659 F.2d 884, 894 (9th Cir. 1981), cert. denied, 454 U.S. 1059 (1981).

We have examined the record closely and do not find that the district court's interventions deprived appellant of his right to a fair trial. Although the court frequently interrupted defense counsel and made numerous sua sponte objections to questions posed by counsel, the judge never gave the jury the impression that he had formed an opinion regarding the defendant's guilt or the witnesses' credibility. Furthermore, the judge cautioned the jury to draw no inferences from his interventions. Reporter's Transcript at 45 (Jul. 17, 1986--Jul. 18, 1986).

Nor did the imposition of five contempt citations on defense counsel deprive appellant of the effective assistance of counsel. Although the justification for these citations may be questionable in some instances, defense counsel, to his credit, continued to represent his client vigorously. In light of the substantial evidence of defendant's guilt, the court's conduct did not violate appellant's right to due process.

While a federal district judge "has the right and duty to facilitate the orderly progress of a trial by direct participation," United States v. Pena-Garcia, 505 F.2d 964, 967 (9th Cir. 1974), he must vigilantly avoid any behavior that could create the appearance of partiality, or discourage counsel from acting forcefully on a client's behalf. Our criminal justice system places the district judge in a position of great authority; it is vital that he exercise this authority with appropriate dignity and restraint.



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