Unpublished Disposition, 872 F.2d 431 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 872 F.2d 431 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Amador CATAULIN, Defendant-Appellant.

No. 88-5251.

United States Court of Appeals, Ninth Circuit.

Submitted March 8, 1989.* Decided March 16, 1989.

Before SNEED, FARRIS, and PREGERSON, Circuit Judges.


MEMORANDUM** 

Amador Cataulin, a postal employee, appeals his conviction pursuant to 18 U.S.C. § 1709 for embezzlement of mail and stealing the contents of a letter.1  He contends that the district court erred by giving a supplemental jury instruction that negated the specific intent requirement of section 1709; by replaying only part of a videotape that had been admitted into evidence; and by not permitting a cross-examination question to Cataulin's supervisor regarding her recommendation concerning his application for a promotion.

I. The District Court's Supplemental Jury Instruction

Cataulin contends that the district court's response to the jury's question as to whether personal use includes smoking people out improperly transformed section 1709 from a specific intent offense into a general intent offense.2  See United States v. Ford, 632 F.2d 1354, 1361 (9th Cir. 1980), cert. denied, 450 U.S. 934 (1981).3  Whether a jury instruction misstated elements of a statutory crime is a question of law to be reviewed de novo. United States v. Douglass, 780 F.2d 1472, 1475 (9th Cir. 1986).

In the present case, the supplemental instruction did not undermine the original instructions regarding specific intent. In the later instruction, the district court was simply defining personal use; the earlier instructions on specific intent remained intact. The district court told the jury three times that the specific intent to misappropriate another's property was a necessary part of the charged offense. Looking at the jury instructions as a whole, United States v. Burgess, 791 F.2d 676, 678 (9th Cir. 1986), the district court did not err in giving the supplemental instruction regarding personal use.

II. The District Court's Decision to Allow Only a Partial Replaying of the Videotape

Cataulin contends that the partial replaying, during jury deliberations, of the videotape showing him taking the letters was error. He argues that even though only the replayed part was actually shown during the trial, the entire tape was admitted into evidence and therefore should have been shown to the jury upon request. Cataulin also argues that the partial replaying of the videotape overemphasized the portion that was replayed, contributing to the alleged error. A district court's decision regarding a jury's request for the replaying or rereading of testimony after deliberations have begun is reviewed for abuse of discretion. United States v. Binder, 769 F.2d 595, 600 (9th Cir. 1985).4  A district court's decision regarding relevance of evidence is reviewed for an abuse of discretion. United States v. Burreson, 643 F.2d 1344, 1349 (9th Cir.), cert. denied, 454 U.S. 830, 847 (1981).

Here, Cataulin chose not to request a full showing of the tape during the trial. Furthermore, the unplayed portion does not appear to have contained any evidence relevant to the case. Therefore, the district court did not abuse its discretion in permitting the replaying of only the portion of the videotape shown at trial. In addition, Cataulin has not shown that he was prejudiced in any way by the partial replaying.

III. The District Court's Refusal to Permit a Cross-Examination Question Regarding Cataulin's Supervisor's Recommendation

Cataulin contends that the district court abused its discretion by improperly limiting cross-examination of Cataulin's supervisor, Rosalind Simpson. Specifically, the district court did not allow Cataulin's attorney to question Simpson about the substance of her recommendation regarding Cataulin's applications for promotion because the recommendation was "confidential." "The right to cross-examine is not unlimited and the scope of cross-examination is within the sound discretion of the trial court and will not be disturbed on appeal absent clear abuse of discretion." United States v. Bleckner, 601 F.2d 382, 385 (9th Cir. 1979).

In this case, the district court did not limit the scope of the cross-examination generally; it merely disallowed one question. The district court's ruling did not preclude Cataulin from further exploring Simpson's alleged bias on cross-examination. The court in fact overruled the government's objection to this area of inquiry and expressly permitted the inquiry for purposes of impeachment. Thus, it was primarily Cataulin, and not the district court, who limited cross-examination into Simpson's potential bias. Therefore, Cataulin has not shown that the district court abused its discretion by refusing to allow a question about Simpson's recommendation. Nor has he shown that he was prejudiced by this slight limitation on cross-examination.

The district court is AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 34-4

 **

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

 1

Section 1709 states in pertinent part:

Service officer or employee, embezzles any letter ... entrusted to him or which comes into his possession intended to be conveyed by mail ... or steals, abstracts, or removes from any such letter ... any article contained therein, shall be fined not more than $2,000 or imprisoned not more than five years, or both.

 2

The judge responded:

I guess the only common sense definition that I can give you on that is that the instruction says that the defendant is accused of doing--of taking something from the mail for his personal use or doing an act for his personal use. And my understanding of that term means that the defendant does that act for any purpose selected by him for doing it. And it's up to you to make a determination whether in this case if the accusation is true, that he did that criminal act for his personal use.

 3

Cataulin attempts to demonstrate his contention that the jury was misled by the supplemental instruction by discussing in his brief and including in the Excerpt of Record a letter written to his attorney by a juror after Cataulin was convicted. This evidence of the effect of the supplemental instruction on the verdict may not be considered in deciding this question. See Fed.R.Evid. 606(b) ("Upon inquiry into the validity of a verdict ... a juror may not testify [or submit an affidavit or other evidence] as 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 ... or concerning the juror's mental processes in connection therewith....")

 4

In the instant case, Cataulin's contention relates to the replaying of evidence, not testimony. This distinction does not affect the standard of review; the district court's decision is reviewed for abuse of discretion