Unpublished Disposition, 872 F.2d 431 (9th Cir. 1987)

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US Court of Appeals for the Ninth Circuit - 872 F.2d 431 (9th Cir. 1987)

UNITED STATES of America, Plaintiff-Appellee.v.David J. LABS, Defendant-Appellant.

No. 87-3170.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 9, 1989.Decided March 9, 1989.

Before SCHROEDER, POOLE and NELSON, Circuit Judges.


Appellant David J. Labs appeals the district court's limitation on Labs' cross-examination of a government witness and refusal to hold an evidentiary hearing concerning allegations of juror misconduct. We affirm the district court's rulings.

FACTUAL AND PROCEDURAL BACKGROUND

On May 14, 1987, defendant David J. Labs' residence was searched pursuant to a valid search warrant. Labs and his live-in girlfriend, Lynn Nastari, were both home at the time. A thorough search of the apartment revealed over three pounds of cocaine, over $20,000 in cash, and drug records. During the apartment search, a customer called the apartment on a beeper to set up a cocaine sale. One officer answered the call and told the customer the amount requested was available. The customer then arrived with $1,400 cash for the purchase. Both Labs and Nastari were arrested, Mirandized, and searched.

On June 9, 1987, Labs and Nastari were indicted for possession with intent to distribute in excess of 500 grams of cocaine, in violation of 21 U.S.C. §§ 841(a) (1) & 841(b) (1) (B) and 18 U.S.C. § 2. On July 31, 1987, Nastari was granted immunity in exchange for testimony against Labs, and the charges against her were dropped. At Labs' trial, Nastari's testimony proved very damaging to Labs. She stated that Labs had no job, and that he supported both his wife and herself from the money he earned selling drugs. Nastari also testified to the effect that all drug-related evidence found in the apartment during the search was defendant's property rather than her own. She also stated that cocaine customers used the beeper to contact Labs, and that he received about 75-100 calls per week.

Nastari also testified regarding her own conduct. She stated that she used up to half a gram of cocaine per day, which was supplied by Labs. She also stated that she bought baggies for Labs and that she had once made a delivery of cocaine. On cross-examination, Nastari admitted that she had used cocaine for five to six years, had violated her release agreement with the government, and had lied to the government concerning the extent of her involvement with cocaine. She also used cocaine found in Labs' apartment to pay her attorney. She gave the remaining cocaine to a friend, who subsequently became hooked on cocaine. Nastari also acknowledged that she had once traveled to San Francisco with a drug dealer, intending to distribute cocaine that she brought with her.

During Nastari's cross-examination, the defense sought to introduce the fact that if Nastari had not testified against Labs in exchange for immunity, she faced a mandatory minimum sentence of five years, with no possibility of parole. The government objected, and a discussion took place outside the presence of the jury. The defense argued that this information was relevant to bias, since it indicated that Nastari had a very powerful motive to lie. The government countered that it would be extremely prejudicial to reveal to the jury the penalties that Nastari had faced, since the jury would thereby be informed as to what penalties the defendant faced if convicted. The government argued that the defense should be permitted to elicit the fact that Nastari faced "very harsh penalties," but that the exact nature of the penalties was excludable under Fed.R.Evid. 403 in that it was more prejudicial than probative. The court ruled in favor of the government.

Defendant Labs was convicted on October 5, 1987. Two days later, the government received a letter from one of the jurors, Cheryl Clark-Hill. In the letter, Clark-Hill stated that the jury had been infuriated by Nastari's testimony and was "livid" that she had been given immunity. The jurors believed that Nastari had lied on the stand and that she had been equally involved in the distribution of cocaine. Clark-Hill stated that two of the jurors were so upset that Nastari had been given immunity that they were unwilling to convict Labs. Clark-Hill then stated that she promised these two jurors to do whatever she could to facilitate Nastari's prosecution. Ultimately, the two jurors agreed to vote guilty, and the defendant was convicted.

On the basis of this letter, the defendant filed a motion for a new trial and a motion to interview the jurors. The trial court held a hearing on these motions on November 6, 1987. At the hearing, the defendant also made an oral motion for an in camera evidentiary hearing concerning the alleged juror misconduct. The trial judge denied all three motions on the ground that there was no evidence of "any outside or extraneous influence" on the jurors.

On November 25, 1987, the defendant was sentenced to seven years in prison, without parole, to be followed by four years of supervised release. On December 1, 1987, he filed a timely notice of appeal with this court.

DISCUSSION

1. The limitations on the defendant's cross-examination of Nastari.

Defendant Labs argues that the trial court violated his sixth amendment right to confrontation by refusing to allow him to cross-examine Nastari concerning the specific penalties she would have faced had she not testified for the government. See Br. of Appellant at 13-22. Before examining the merits of this claim, it should be noted as an initial matter that this particular argument was not raised below by the defendant. When the government objected to the mention of penalties at trial, the defendant resisted the objection solely on the grounds that Nastari's potential sentence was highly probative to show bias on her part. See E.R. at 4-7.

The usual standard for permitting an objection on appeal to proceed on different grounds than those raised below is plain error. See United States v. Brock, 667 F.2d 1311, 1317 (9th Cir. 1982) (defendant's sixth amendment confrontation clause claim would be reviewed only for plain error where trial court ruling was challenged on different grounds below), cert. denied, 460 U.S. 1022 (1983). Nonetheless, there is support for the proposition that greater leniency should be employed where the grounds asserted on appeal are closely related to the grounds asserted below. United States v. Pollock, 726 F.2d 1456 (9th Cir. 1984). We find that, in this case, Labs' evidentiary argument below is so closely related to his confrontation clause argument on appeal that this more lenient standard should be employed. Labs' argument below that the evidence was necessary to impeach Nastari was sufficient to alert the district court to the constitutional overtones of its decision. Therefore, we decide the merits of Labs' sixth amendment claim.

In Delaware v. Van Arsdall, 475 U.S. 673 (1986), the Supreme Court spelled out the test for evaluating a sixth amendment challenge to a trial court's restrictions on a defendant's cross-examination of a government witness. The Court summarized the test as follows:

[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby 'to expose to the jury the facts from which jurors ... could appropriately draw inferences relating to the reliability of the witness.'

475 U.S. at 680 (quoting Davis v. Alaska, 415 U.S. 308, 318 (1974)). However, the Court emphasized that "trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Id. at 679. If the reviewing court concludes that the trial court restricted cross-examination to such a degree that the jury's ability to assess the credibility or reliability of the witness has been significantly impaired, then the confrontation clause has been violated. Id. at 684. This determination will require the court to consider such factors as "the importance of the witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case." Id.

Applying this test to the facts of this case, there was no violation of Labs' sixth amendment right to cross-examine Nastari. The facts sought to be elicited concerning the penalties Nastari faced were certainly relevant to bias, but only marginally so. Nastari was thoroughly cross-examined, and the reasonable restriction imposed by the trial court did not materially impair the jury's ability to assess her credibility. On cross-examination, the defense was able to elicit that Nastari was indicted on the same charges that Labs faced; that her agreement with the government helped her to avoid a felony prison sentence; that she had been a long-time cocaine user; that she continued to use cocaine after her arrest, despite the fact that this violated her release agreement; that she lied to the government repeatedly concerning her involvement in cocaine dealing; that she had used cocaine to pay an attorney; and that she had previously distributed cocaine on at least two occasions. In the face of this exhaustive cross-examination, it would be difficult to conclude that knowledge of the precise penalties Nastari faced would have significantly added to the jury's ability to judge Nastari's credibility and reliability.

This conclusion is supported by a number of cases that have considered similar confrontation clause claims. In United States v. Dadanian, 818 F.2d 1443, 1449 (9th Cir. 1987), rev'd in part on other grounds on rehearing, 856 F.2d 1391 (9th Cir. 1988), this court considered a claim strikingly similar to the one presented in this case. The defendants in Dadanian argued that their rights under the confrontation clause were violated by the trial court's refusal to permit the defense to cross-examine a government witness concerning the maximum jail time he would have faced had he not agreed to testify for the government. This court rejected the challenge, noting that the restriction was permissible under Van Arsdall, supra. The court also noted that Pitts had been thoroughly cross-examined:

Defense counsel elicited the fact that in exchange for Pitts' cooperation the government agreed to dismiss nine mail fraud counts and illegal gambling and racketeering charges. On cross-examination Pitts admitted he had lied to the FBI investigator who first questioned him, had perjured himself repeatedly, and falsified his income tax returns. Defense counsel was afforded more than an opportunity to expose Pitts' potential bias and motive in testifying. The amount of jail time Pitts faced is at best marginally relevant.

818 F.2d at 1449.

Given the extensive cross-examination of Nastari in the present case, Dadanian strongly suggests that the district court did not violate Labs' confrontation clause rights. In addition, the prosecution presented ample evidence other than Nastari's testimony to warrant convicting Labs, such as the large amounts of cocaine and contraband seized in the apartment and the attempted cocaine sale that took place during the search. This clearly distinguishes the present case from United States v. Rodriguez, 439 F.2d 782 (9th Cir. 1971), the only federal case this court has found in which a comparable confrontation clause claim was successful. In Rodriguez, the government relied almost exclusively upon a codefendant's immuned testimony. Accordingly, Rodriguez is only incidental to the court's holding in this case. Labs's sixth amendment confrontation clause rights were not violated.

2. The trial court's refusal to hold an evidentiary hearing concerning alleged juror misconduct.

Labs also challenges on appeal the trial court's refusal to hold an evidentiary hearing concerning alleged juror misconduct. He argues that Clark-Hill's promise to two jurors that she would do what she could to see that Nastari was punished for her actions constituted an "external" influence on the jury's deliberations, and that therefore the receipt of testimony concerning this promise is not barred by Fed.R.Evid. 606(b).

Fed.R.Evid. 606(b) provides, in part:

Upon inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict ..., except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror.

Labs argues that Clark-Hill's promise to the two jurors is analogous to a bribe and that it should therefore be considered an external influence. This argument is without merit. The law is well established that threats, intimidation, and overbearing conduct aimed at one juror by another juror are matters internal to the jury's deliberations, and that inquiry into allegations of such conduct is therefore barred by Rule 606(b). See United States v. Casamayor, 837 F.2d 1509, 1515 (11th Cir. 1988) ("the alleged harassment or intimidation of one juror by another would not be competent evidence to impeach the verdict under Rule 606(b)"); United States v. Barber, 668 F.2d 778, 786-87 (4th Cir.) (evidence that juror had been threatened by the jury foreman held inadmissible to impeach verdict under Rule 606(b)), cert. denied, 459 U.S. 829 (1982). See also United States v. Bagnariol, 665 F.2d 877 (9th Cir. 1981) (jurors may not be questioned about deliberative process or subjective effects of extraneous information).

AFFIRMED.

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* The Honorable Malcolm F. Marsh, United States District Judge for the District of Oregon, sitting by designation.

** 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 Circuit Rule 36-3.