Unpublished Disposition, 865 F.2d 265 (9th Cir. 1988)

MEMORANDUM^* 

Appellants Kevin Allen (Allen) and Glen James (James) appeal their convictions for conspiracy to possess cocaine base with intent to distribute following a jury trial. James also appeals his conviction for possession of cocaine base with intent to distribute. Appellants contend that the district court improperly restricted cross-examination of a key prosecution witness. Allen also contends that the prosecutor made improper comments during his closing argument. Additionally, James argues that the district court allowed improper considerations to influence its sentencing decision and improperly admitted into evidence a photographic display which was prepared in an unduly suggestive manner. We affirm.

DISCUSSION

I. Cross-examination of Prosecution Witness Wardwall

We review the district court's limitation of the scope of cross-examination for an abuse of discretion. United States v. McClintock, 748 F.2d 1278, 1289 (9th Cir. 1984), cert. denied, 474 U.S. 822 (1985); United States v. Brutzman, 731 F.2d 1449, 1452 (9th Cir. 1984).

The sixth amendment to the Constitution guarantees the right of the defendant in a criminal prosecution "to be confronted with the witnesses against him." A primary right secured by the confrontation clause is the right of cross-examination. Davis v. Alaska, 415 U.S. 308, 315 (1974). "Cross-examination is the principal means by which the believeability of a witness and the truth of his testimony are tested." Id. at 316.

A defendant, however, does not have an unrestricted right to cross-examine adverse witnesses about any matter desired. Trial courts have broad discretion to limit the extent of cross-examination. Skinner v. Cardwell, 564 F.2d 1381, 1388-89 (9th Cir. 1977), cert. denied, 435 U.S. 1009 (1978). See also Davis, 415 U.S. at 316; Brutzman, 731 F.2d at 1452; Chipman v. Mercer, 628 F.2d 528, 531 (9th Cir. 1980). This court has held that the test for determining whether the trial court abused its discretion by restricting cross-examination is:

whether the jury is otherwise in possession of sufficient information upon which to make a discriminating appraisal of the subject matter at issue. When the refused cross-examination relates to impeachment evidence, we look to see whether the jury had sufficient information to appraise the bias and motives of the witness.

Skinner, 564 F.2d at 1389. See also Bright v. Shimoda, 819 F.2d 227, 228 (9th Cir. 1987), cert. denied, 108 S. Ct. 1246 (1988).

At appellants' trial, the government called Leslie Wardwall as a witness. The district court permitted broad inquiry into Wardwall's use of alias names, prior felony convictions and arrests, drug use, and current probation status. The court allowed extensive questioning about Wardwall's prior inconsistent testimony before a grand jury in this same case.

Appellants argue that the district court abused its discretion when it denied them the opportunity to question Wardwall about further details of his perjury conviction and a letter he wrote to a judge concerning a 1986 felony conviction.

Applying the Skinner test to the facts in this case, we conclude that the jury had ample information with which to assess Wardwall's credibility and, therefore, the district court did not abuse its discretion by restricting the cross-examination.

We review statements made during closing argument for plain error. United States v. Lopez, 803 F.2d 969, 972 (9th Cir. 1986), cert. denied, 107 S. Ct. 1958 (1987); United States v. Falsia, 724 F.2d 1339, 1342 (9th Cir. 1983); United States v. Lane, 708 F.2d 1394, 1399 (9th Cir. 1983); United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.), cert. denied, 444 U.S. 979 (1979). The prosecutor's statements must be highly prejudicial and affect substantial rights to constitute plain error. Id.

This court has held that "where the defendant opens the door to an argument, it is 'fair advocacy' for the prosecution to enter." Falsia, 724 F.2d at 1342. A prosecutor may comment on a defendant's failure to present exculpatory evidence as long as it does not call attention to defendant's failure to testify. Lopez, 803 F.2d at 973; United States v. Bagley, 772 F.2d 482, 494-45 (9th Cir. 1985), cert. denied, 475 U.S. 1023 (1986).

We conclude that the prosecutor's closing argument was a "fair reply" to defense counsel's suggestion that the probation officer was not called as a witness because he would not support Wardwall's testimony. See id. at 495. Even if the comment was improper, any error was harmless. See Colley v. Sumner, 784 F.2d 984, 991 (9th Cir.) (prosecutor's reference to absence of potential alibi witness was harmless), cert. denied, 479 U.S. 839 (1986).

III. Consideration of Disbelieved Testimony in Sentencing James

Sentencing within statutory guidelines is left to the discretion of the sentencing court and its decision is reviewable only for an abuse of discretion. Jones v. United States, 783 F.2d 1477, 1479 (9th Cir. 1986); United States v. Givens, 767 F.2d 574, 585 (9th Cir.), cert. denied, 474 U.S. 953 (1985). The sentencing court has broad discretion to consider a wide range of factors in determining an appropriate sentence. Id. at 585; United States v. Brown, 761 F.2d 1272, 1278 (9th Cir. 1985).

We conclude that the district court did not abuse its discretion in sentencing James. The court agreed with the jury's evaluation that James's witnesses had lied. The court specifically objected to James's presentation of false testimony, not his decision to stand trial. Cf. United States v. Medina-Cervantes, 690 F.2d 715, 716 (9th Cir. 1982) (trial court implied defendant had "a lot of lose" by exercising right to stand trial and imposed fine to reimburse government for cost of trial).

Trial court rulings to admit evidence are reviewed for an abuse of discretion. United States v. Polizzi, 801 F.2d 1543, 1555 (9th Cir. 1986); United States v. Ordonez, 737 F.2d 793, 811 (9th Cir. 1984).

James argues that the procedure used to produce a photographic display admitted into evidence at trial was inherently suggestive. This contention is meritless. The witness selected the photographs used in the display from a sample of approximately 1000 photographs. There is no evidence of suggestiveness or irreparable misidentification. Thus, the district court did not abuse its discretion by admitting the display into evidence.

CONCLUSION

The judgment of the district court is affirmed.

AFFIRMED.