Unpublished Disposition, 897 F.2d 534 (9th Cir. 1983)

MEMORANDUM^** 

Appellant Michael A. Roberson appeals his conviction for uttering a forged writing. Roberson seeks reversal and remand with instructions to dismiss on grounds of preindictment delay. In addition, Roberson seeks a new trial on the grounds that the trial court committed reversible error by refusing to allow full cross-examination of a prosecution witness and by admitting the testimony of a late-discovered witness.

Despite our sense that the prosecution may not have acted prudently in failing to indict appellant sooner and that the trial court similarly may have not acted wisely in failing to allow fuller cross-examination, the law governing each of appellant's claims requires that we affirm.

* On May 31, 1983, Roberson brought a United States Treasury check payable to Peggy Momon into the Crocker Bank. Roberson approached Sharon Trejo, a teller who knew him and had previously cashed checks for him, to open an account for Momon. Trejo opened the account. Over the next few months, Roberson withdrew all the funds in that account.

In December 1983, Momon reported that she had neither received nor cashed her check. Momon had moved from the address to which the check had been mailed. Fingerprint analysis confirmed the presence of appellant's fingerprints on documents relating to the cashing of the check.

After the trial began, the prosecution learned of the existence of Paula Jackson, appellant's former girlfriend. Jackson testified that she had driven appellant to the bank on days when the account that appellant had opened in Momon's name reflected activity.

II

Appellant claims that the prosecution's three year and eight-month delay in bringing its indictment resulted in the disappearance of witnesses and evidence and thereby denied him due process. We review for abuse of discretion a trial court's denial of a motion to dismiss for preindictment delay. United States v. Sherlock, 865 F.2d 1069, 1073 (9th Cir. 1989).

In order for appellant to establish a cognizable claim for preindictment delay, appellant must first prove that he suffered "actual prejudice" from that delay. Id. Appellant claims he suffered actual prejudice because: 1) a party who might have been involved in the theft of the check could not be located at the time of the trial; 2) a witness who might have impeached an unfavorable witness had gone to Mississippi; and 3) fingerprints of another party might have disappeared from bank withdrawal slips.

Appellant's claims do not establish actual prejudice. To succeed on a claim for preindictment delay, appellant must first demonstrate how the loss of a witness or evidence is prejudicial. Id. But in this case appellant has failed to indicate how the loss of the allegedly missing party and witness harmed his defense. Likewise, he has failed even to indicate how identification of the owner of the allegedly missing fingerprints would have aided his case. Indeed, it is undisputed that appellant's fingerprints were found on all of the withdrawal slips in question. Mere speculation does not establish actual prejudice. Id.

This court reviews a district court's decision to limit cross-examination for abuse of discretion. United States v. Feldman, 788 F.2d 544, 554 (9th Cir. 1986), cert. denied, 479 U.S. 1067 (1987). Appellant contends that the district court's failure to permit impeachment of Trejo, a prosecution witness, denied him his sixth amendment right to cross-examine an adverse witness. Appellant sought to impeach Trejo's testimony by introducing Trejo's prior statements, given during appellant's prior state prosecution, in which Trejo admitted only to a casual relationship with appellant. In the instant trial, Trejo admitted she was sexually intimate with appellant.

In the prior state prosecution, Trejo was not directly asked whether she had an intimate relationship with appellant. Her failure to volunteer the nature of her relationship with appellant in the prior state trial provides little, if any, impeachment value. Furthermore, Trejo's testimony in the instant trial as to her sexually intimate relationship with appellant provides sufficient information for the jury to appraise Trejo's bias and motivations. See United States v. Kennedy, 714 F.2d 968, 973 (9th Cir. 1983), cert. denied, 465 U.S. 1034 (1984) (district court does not abuse its discretion in limiting cross-examination as long as the jury receives sufficient information to appraise the biases and motivations of the witnesses). We therefore reject appellant's sixth amendment claim.

C. ADMITTANCE OF A LATE DISCOVERED WITNESS' TESTIMONY

Appellant contends that the admittance of the testimony of Paula Jackson, a late-discovered prosecution witness not included on the witness list, denied him the right to due process and a fair trial.

Omission of a witness from a witness list constitutes reversible error where appellant was well aware of the existence and possible testimony of the late discovered witness. See United States v. Sukumolachan, 610 F.2d 685, 688 (9th Cir. 1980). Appellant makes no claim that he was unaware of Jackson's existence or possible testimony. Jackson was appellant's former girlfriend, and the person who drove him to the bank to withdraw funds from the account appellant opened in Momon's name. We therefore reject appellant's claim that admittance of Jackson's testimony violated his right to due process or a fair trial.

Appellant contends that the district court erred in refusing a continuance to allow him time to secure witnesses to impeach Jackson's testimony.

On the rare occasion when we reverse a trial court's decision to deny a continuance, that decision must rise to the level of a clear abuse of discretion. United States v. Mills, 597 F.2d 693, 698-99 (9th Cir. 1979). In the instant case, the district court found that the impeachment of Jackson's testimony by other witnesses would have little value since defense counsel had already "seriously challenged Jackson's credibility by virtue of a very rigorous cross-examination." Such weighing of the cumulative effect of additional testimony was well within the trial court's proper exercise of its discretion. We therefore reject appellant's argument that the district court erred in refusing him a trial continuance.

III

We AFFIRM the decision of the district court.