Unpublished Disposition, 880 F.2d 416 (9th Cir. 1989)

MEMORANDUM^** 

Gaetano Abraxas Nielli appeals from his conviction in district court on one count each of reckless driving, speeding, trespass, and driving with a suspended license. His appellate counsel has filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 744 (1967). Upon making our own examination of the record, Penson v. Ohio, --- U.S. ----, 109 S. Ct. 346, 351 (1988), we grant counsel's motion to withdraw and affirm the convictions.¹ 

The district court did not abuse its discretion when it limited Nielli's cross examination of two prosecution witnesses on relevance grounds. At trial, defense counsel asked Sgt. Stanley Bragg whether demonstrators were present on the grounds of the Presidio when Nielli allegedly committed the charged offenses. While the question may have been relevant to Nielli's defense, the district court did not abuse its discretion when it excluded the evidence because it was cumulative. United States v. Bonanno, 852 F.2d 434, 439 (9th Cir. 1988); United States v. Hearst, 563 F.2d 1331, 1349 (9th Cir. 1977), cert. denied, 435 U.S. 1000 (1978). Defense counsel also sought to question Sgt. Ronald Hays regarding the incidents underlying the letter which barred Nielli from entering the grounds of the Presidio. However, Nielli did not bring a pretrial motion to suppress the bar letter on the basis of its invalidity as required by Fed. R. Crim. P. 12(b) (3). United States v. Davis, 663 F.2d 824, 831 (9th Cir. 1981). Moreover, he offered no explanation for his failure to make a timely objection. Id. Accordingly, the district court did not abuse its discretion in denying cross examination on this issue.

Counsel also suggests that the district court may have abused its discretion in excluding Nielli's testimony regarding a Department of Motor Vehicles (DMV) representative's out-of-court statements. At trial, Nielli testified that Joan Carlson, a DMV driver's license supervisor, told him that even with a suspended driver's license he could drive to and from work and in the course of his employment. The prosecutor moved to strike the testimony and the district court agreed. When defense counsel sought to question Nielli further on this subject, the district court sustained the prosecution's objections that the testimony was irrelevant.

An out-of-court statement is excludable hearsay if it is offered to prove the truth of the matter asserted. Fed.R.Evid. 801(c), 802. Here, the statement was not offered to prove the truth of the matter asserted, but rather to show that Nielli lacked the requisite knowledge of the terms of his license suspension to be convicted of driving with a suspended license. Accordingly, the district court erred when it excluded the testimony as hearsay. United States v. Beecroft, 608 F.2d 753, 760-61 (9th Cir. 1979). However, the record indicates that on the day the events occurred, Nielli was on his way to the Presidio to see an army officer about the bar letter. The record also indicates that he left his house for that purpose and returned directly home after leaving the Presidio. No evidence was offered that he was driving to or from work or in the course of his employment. Thus, the evidence did not support a conclusion that Nielli's driving was in the course of his employment. Accordingly, the district court did not abuse its discretion in excluding this testimony as irrelevant. United States v. Hanigan, 681 F.2d 1127, 1131 (9th Cir. 1982), cert. denied, 459 U.S. 1203 (1983).

The district court also did not abuse its discretion when it excluded evidence regarding a prior court action involving Nielli and the Army. Nielli sought to introduce this evidence to discredit the Army's witnesses. However, the record contains no evidence that the military personnel who testified at trial had been involved in the earlier action. Defense counsel did not ask the military personnel whether they had participated in the prior action, and the mere fact that Nielli was involved did not tend to prove that the Army witnesses had a motive to testify falsely. See United States v. Click, 807 F.2d 847, 850 (9th Cir. 1987). This evidence was also not admissible pursuant to Fed.R.Evid. 608(a) as reputation evidence affecting the witnesses' credibility. Also, if the evidence was admissible, the error was harmless.

AFFIRMED.