Unpublished Disposition, 899 F.2d 1226 (9th Cir. 1990)

MEMORANDUM^** 

Pinhas appeals his conviction for conspiracy to commit mail fraud and conspiracy to transport stolen merchandise interstate, in violation of 18 U.S.C. §§ 371, 1341 and 2314; fourteen counts of mail fraud, in violation of 18 U.S.C. § 1341; and two counts of interstate transportation of stolen property, in violation of 18 U.S.C. § 2314. Pinhas contends that the district court erred by admitting evidence of two prior bad acts on cross-examination. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and reverse and remand in part.

We review the district court's determination of the scope of cross-examination and decision regarding the admission of evidence for abuse of discretion. United States v. Jackson, 882 F.2d 1444, 1446 (9th Cir. 1989). We will reverse a conviction based on the district court's evidentiary rulings only if the error more likely than not affected the verdict. United States v. Emmert, 829 F.2d 805, 808 (9th Cir. 1987).

On direct examination, Pinhas testified that in late 1986 he opened a business called General Merchandise Club (GMC) and that he made false credit applications to obtain merchandise. The business suffered financial problems in February 1987, and Pinhas could not pay the bills. He then gambled and lost 75% of the money he had borrowed to start GMC. Pinhas testified that he did not have a gambling history.

On cross-examination the district court permitted the government to ask Pinhas about two prior failed businesses.

The government first questioned Pinhas about his business, H.P. Electronics.

Question: You have used gambling as an excuse before for having businesses go out of business. Isn't that right?

Answer: No.

Question: Take a look at page 91 when the detectives are asking you about other businesses, and you say, "Oh. Then I had the business in Santa Monica, H.P. Electronics. Also I was gambling. I went to court and made a Chapter 11." Did H.P. Electronics fold because you took the money and went gambling with it?

Answer: H.P. never folded. We moved to downtown under the name of Electro Mart.

Question: So did you lie to the police about filing chapter 11?

Answer: I filed chapter 11, but I made a deal with the creditors and opened a business named Electro Mart.

Specific instances of misconduct may be inquired into on cross-examination if probative of the witness's veracity. Fed.R.Evid. 608(b). Because Pinhas testified that he did not have a gambling history, this evidence was properly admitted to impeach his credibility. See id. Moreover, this evidence was properly admitted as a prior inconsistent statement. See Fed.R.Evid. 801(d) (2); Jackson, 882 F.2d at 1449.

The government also questioned Pinhas on cross-examination about a second business, L.A. Imports:

Question: And in fact you also were involved in a business called L.A. Imports?

Answer: Right.

Question: And you told the police that one day you went to the business and found that it had been padlocked by the court. Isn't that right?

Answer: Exactly because the owner--

Question: Excuse me, Mr. Pinhas, there is no question pending.

Answer: I cannot answer yes or no. I have to explain.

Question: You can explain it when your counsel asks you questions later on.

Pinhas contends that this evidence was not probative of truthfulness. He also implies that the evidence was so prejudicial that it affected the verdict. While the evidence may not be probative of his veracity, any prejudicial effect was dissipated by Pinhas's own testimony. On redirect, Pinhas testified as follows:

Question: Let me ask you about L.A. Imports.

Answer: Yes.

Question: You were involved in a business called L.A. Imports?

Answer: Yes.

Question: In what year?

Answer: In 1976, '77 and beginning of '78. I think it was maybe '77, '78, something like that.

Question: And that business eventually closed?

Answer: Yes.

Question: Why?

Answer: The owner--I had a concession inside--Los Angeles Import, it wasn't a store. It was a concession inside a store. The owner of that store owed money to, I think, IRS or some people, and one day, one morning, I came to the store, and I found the store locked. I had to pay $45 so I can get my merchandise out. That is the reason why the store was padlocked.

Pinhas's contention that the evidence regarding L.A. Imports and HP Electronics was too remote in time to be probative also lacks merit. See Jackson, 882 F.2d at 1447-48 (fourteen years still probative).

Finally, because Pinhas admitted that he made the false credit applications to open GMC there was more than ample evidence to support Pinhas's conviction. Indeed, Pinhas does not challenge the sufficiency of the evidence against him. Thus, even if the district court erred by admitting evidence of his prior failed business ventures, it more likely than not did not affect the verdict. See Emmert, 829 F.2d at 808.

The district court also imposed a special assessment on defendant Pinhas. Special assessments have been declared unconstitutional in our circuit. United States v. Munoz-Flores, 863 F.2d 654, 661 (9th Cir. 1988), cert. granted, 110 S. Ct. 48 (1989). That portion of defendant's sentence is vacated. In all other respects, the judgment is affirmed.

AFFIRMED in part and REVERSED and REMANDED in part.