Unpublished Disposition, 886 F.2d 334 (9th Cir. 1989)

MEMORANDUM

Ross was convicted in district court of conspiracy to commit bank robbery in violation of 18 U.S.C. § 1951, conspiracy to commit bank burglary and larceny in violation of 18 U.S.C. § 371, disposing of a firearm by an ex-felon in violation of 18 U.S.C. § 922(d) (1), and aiding and abetting in violation of 18 U.S.C. § 2. On appeal, Ross argues that the district court committed reversible error by allowing the prosecutor to cross-examine him concerning a kidnapping offense which he had previously committed. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

Ross asserts that the prosecutor's questions concerning the kidnapping constituted (1) inadmissible " [e]vidence of other crimes" in violation of Rule 404(b) of the Federal Rules of Evidence; (2) inadmissible uncharged misconduct evidence under Rule 608(b) of the Federal Rules of Evidence; and (3) prosecutorial misconduct. We review the district court's decision regarding admission of evidence for an abuse of discretion. See United States v. Jenkins, 785 F.2d 1387, 1396 (9th Cir. 1986) (intent evidence). If the evidence was erroneously admitted, our "standard for reviewing nonconstitutional errors in admitting evidence is that 'these errors are reversible only if it is more probable than not that the erroneous admission of the evidence materially affected the jurors' verdict.' " United States v. Bettencourt, 614 F.2d 214, 218 (9th Cir. 1980) (citations omitted). We review the claim of prosecutorial misconduct to determine whether it appears more probable than not that the alleged misconduct affected the jurors' verdict or the fairness of the trial. See United States v. Polizzi, 801 F.2d 1543, 1558 (9th Cir. 1986).

Ross's argument under Rule 608 of the Federal Rules of Evidence fails. He was simply caught in a lie. The prosecution's brief questioning on cross-examination was probative of Ross's truthfulness in light of his prior denial of ever having taken hostages. See Fed.R.Evid. 608(b) (prior specific instance of a witness's conduct may be inquired into on cross-examination if probative concerning his "character for truthfulness or untruthfulness"). The district court did not abuse its discretion by allowing cross-examination to contradict the testimony of Ross. See United States v. Havens, 446 U.S. 620, 626-27 (1980).

Even if improper cross-examination, the district court could properly admit the evidence under Rule 404(b) of the Federal Rules of Evidence. Ross's entire defense centered on his claim that he had no intention of actually carrying out the crimes which he had planned. Further, he specifically disavowed that he ever intended to take hostages. Thus, the kidnapping evidence was properly admissible to show that Ross could have the actual intent to carry out the crimes. See Fed.R.Evid. 404(b) (evidence of other crimes or bad acts admissible to show intent).

Even if Ross had been able to show that the cross-examination was improperly admitted, any prejudice resulting therefrom would have been insufficient to materially prejudice the jurors' verdict and therefore would have been harmless error. Prior to the prosecutor's cross-examination of Ross, the jury had seen or heard evidence including (1) the testimony of an undercover government agent about Ross's paid participation in fake robbery staged by the government, Ross's detailed plans to rob the First Interstate Bank Repository (the Bank), and Ross's facilitation of the agent's unauthorized entrance into the Bank; (2) the testimony of an informant who was also granted unauthorized admittance to the Bank by Ross and who also testified concerning another robbery Ross was planning to commit; (3) seven videotapes of Ross and others planning the various crimes they hoped to commit including Ross's statements about murdering another individual; and (4) the testimony of Ross himself. Clearly, the government did not lack for evidence. As Ross's brief states, " [b]y the time ROSS testified, the government had unleashed an armada of evidence; its case was not weak, its need for further ammunition nonexistent.... [T]he raising of the matter by the prosecutor was unnecessary." We agree: the government's case was sufficient without the disputed evidence. Thus, even if error had been committed, it is clear that the error would have been harmless. See United States v. Rogers, 722 F.2d 557, 560 (9th Cir. 1983) (holding that the improper admission of evidence is harmless error when the remaining evidence is sufficient to support a finding of guilty beyond a reasonable doubt), cert. denied, 469 U.S. 835 (1984).

Ross also contends that reversible error occurred when the district court failed to give a limiting instruction pertaining to his responses to the cross-examination. No request was made and Ross cites no authority, and we have found none, that required the district judge to give the instruction sua sponte. There was no plain error. See United States v. Loya, 807 F.2d 1483 (9th Cir. 1987).

Ross's allegations of prosecutorial misconduct are also without merit. First, because the district court did not abuse its discretion in allowing the prosecutor's questions, it is manifest that the posing of those questions was not prosecutorial misconduct. Second, because we find that even if error had been committed, it would have been harmless, it clearly is more probable than not that the alleged misconduct did not affect the jurors' verdict or the fairness of the trial. See Polizzi, 801 F.2d at 1558 (articulating the proper standard of review).

AFFIRMED.