Unpublished Disposition, 905 F.2d 1541 (9th Cir. 1989)

MEMORANDUM^** 

Clark appeals his conviction on a number of procedural

grounds and Peckham appeals the enhancement of his

sentence. We first address Clark's

contentions before turning to Peckham's.

CONFRONTATION CLAUSE

In his opening statement, the prosecutor in Clark's case mentioned that the police acted on an anonymous tip purporting to give Clark's whereabouts. Clark argues that the district court should have stricken this information as a violation of the Confrontation Clause because Clark did not have an opportunity to confront the tipster.

The cases cited by Clark all turn on this information being evidence. See, e.g., Harris v. Wainwright, 760 F.2d 1148, 1149 (11th Cir. 1985) (improper admission of testimony that "bolstered uncorroborated identification testimony"); Favre v. Henderson, 464 F.2d 359, 362 (5th Cir.), cert. denied, 409 U.S. 942 (1972) (policeman testifying as to tip that implicated defendant in the crime). The prosecutor's statement, of course, was not evidence. Moreover, the tipster's information went to the whereabouts of Clark, not to his criminal culpability. Cf. Harris, 760 F.2d at 1151 (court concluding that officer's testimony regarding tipster was substantive evidence of defendant's guilt and thus subject to the Confrontation Clause). See also United States v. Hernandez, 750 F.2d 1256, 1257 (5th Cir. 1985); Hutchins v. Wainwright, 715 F.2d 512, 516 (11th Cir. 1983), cert. denied, 465 U.S. 1071 (1984).

In this case, the challenged statement did not characterize evidence in the trial, see United States v. De Peri, 778 F.2d 963, 978-79 (3d Cir. 1985), cert. denied sub nom., Murphy v. United States, 475 U.S. 1110 (1986), nor was it related to an issue of guilt. We therefore find no abridgment of the Confrontation Clause.

IN-COURT IDENTIFICATION OF CLARK

We review improper in-court identification for abuse of discretion. United States v. Browne, 829 F.2d 760, 764 (9th Cir. 1987), cert. denied, 485 U.S. 991 (1988). The test is whether "the procedure for identification was so 'unnecessarily suggestive and conducive to irreparable misidentification' as to amount to a denial of due process of law." United States v. Williams, 436 F.2d 1166, 1168-69 (9th Cir. 1970), cert. denied, 402 U.S. 912 (1971) (quoting Stovall v. Denno, 388 U.S. 293, 302 (1967)) (quoted in Browne, 829 F.2d at 764).

Appellant's citation of United States v. Domina, 784 F.2d 1361 (9th Cir. 1986), cert. denied, 479 U.S. 1038 (1987), does not aid his case. In Domina, the court expressed "concern with in-court identification" when there is some other improper, suggestive indicia of guilt. Id. at 1368. In this case, the witness identified Clark, who was sitting with three other men, after viewing a videotape of the robbery. We have approved such identification. See, e.g., Browne, 829 F.2d at 764-65 (identification after viewing surveillance photographs is highly probative). Appellant also makes no attempt to challenge the trial court's adherence to the reliability factors articulated in Neil v. Biggers, 409 U.S. 188, 199-200 (1972), as applied to in-court identifications. See United States v. Field, 625 F.2d 862, 867 (9th Cir. 1980). On these facts we see no impropriety that prejudiced Clark.

CLARK'S MOTION FOR SEVERANCE

We review a motion for severance for abuse of discretion. United States v. Wyatt, 807 F.2d 1480, 1482 (9th Cir.), cert. denied, 484 U.S. 858 (1987). Appellee maintains that appellant's failure to make the appropriate motion at the time specified by the trial judge means that this issue is not preserved on appeal.

We may, for purposes of this appeal, assume that Clark did not waive the objection because we find no merit to his argument that the district court abused its discretion by denying the motion for severance. Appellant can show no prejudice by being prosecuted with Reed. See United States v. Vaccaro, 816 F.2d 443, 448 (9th Cir.), cert. denied, 484 U.S. 928 (1987). The prejudice must also be of such magnitude that a fair trial is impossible. See, e.g., United States v. Gonzales, 749 F.2d 1329, 1333 (9th Cir. 1984). That was not the case here.

Appellant claims that Agent Shumaker's comment regarding Clark's invocation of his right to silence violated the precepts of Doyle v. Ohio, 426 U.S. 610 (1976), and that he was thereby prejudiced by being tried together with Reed, about whom Shumaker was testifying. As appellee correctly demonstrates, the examination of Shumaker in this manner was an attempt to impeach the witness's credibility. Moreover, the agent's statement referred to all of the defendants and not to Clark specifically. Finally, the statement did not affect the verdict, as required by United States v. Patterson, 819 F.2d 1495, 1506 (9th Cir. 1987) (citing United States v. Pruitt, 719 F.2d 975, 978 (9th Cir.) (per curiam), cert. denied, 464 U.S. 1012 (1983)). This crucial condition not having been demonstrated by appellant, we reject his argument that we reverse on this ground.

LIMITATION OF CROSS EXAMINATION OF GOVERNMENT WITNESS OSBORN

We also review this issue for abuse of discretion. United States v. Gomez, 846 F.2d 557, 559 (9th Cir. 1988). Appellant's complaint arises out of the examination of Osborn.

Osborn was implicated in the robbery by Peckham, who testified that Osborn and a man named Pat participated with him in the robbery. The government called Osborn as a rebuttal witness and Osborn denied participating in the robbery. His testimony also revealed the existence of much animus between Osborn and Peckham stemming from the relationship of the two men with Marcie Melicher. Specifically, Clark argues that he should have been allowed to ask Osborn whether he knew that if he admitted taking part in the robbery he would be facing a sentence of twenty-five years in prison. The government objected to this question without giving a reason and the district court sustained the objection. Clark maintains that it was important for the jury to know that Osborn had a motive to lie.

Appellant attempts to distinguish United States v. Dadanian, 818 F.2d 1443 (9th Cir. 1987), on the ground that the government's case was "quite strong" there and that the limitation on cross-examination would have no impact on the verdict. In Dadanian, the court rejected the defendant's Sixth Amendment argument by noting that limits on cross-examination were proper "when based on concern about confusion of the issues or where the interrogation is repetitive or only marginally relevant." Id. at 1449 (citation omitted). Appellant's citation of United States v. Harris, 501 F.2d 1 (9th Cir. 1974), is unavailing. The "utmost importance" of the witness in Harris and the types of restrictions placed on cross-examination by the trial judge are not paralleled here.

The right of cross-examination is not absolute, Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986), and the jury had ample opportunity to gauge Osborn's biases. Moreover, reliance by Clark on Harris is misplaced because the outcome of the trial did not turn on Osborn's testimony. Osborn was not the government's principal witness and the testimony purporting to implicate Osborn in the crime was incredible in view of the animus between Osborn and Peckham.

THE APPROPRIATENESS OF INCREASING PECKHAM'S OFFENSE LEVEL

FOR SENTENCING

Peckham appeals the two-level increase of his offense level for willfully obstructing or impeding proceedings. The question of obstruction of justice is a fact question reviewed under the clearly erroneous standard. United States v. Burns, 894 F.2d 334, 336 (9th Cir. 1990) (per curiam). Peckham argues that his sentence was improperly increased on the basis of his testimony that determined Clark's guilt. The government argued for an increase in sentence because of Peckham's allegedly untruthful testimony.

Federal Sentencing Guidelines Section 3C1.1 directs an increase in offense level by two levels for obstruction of justice. Application Note 1(c) indicates that this may be based on "testifying untruthfully." We think the district court properly discerned the difference between an appropriate denial of guilt and untruthful testimony. The Sixth Circuit has rejected appellant's argument on very similar facts. See, e.g., United States v. Acosta-Cazares, 878 F.2d 945, 953 (6th Cir.), cert. denied, 110 S. Ct. 255 (1989); see also United States v. Baker, 894 F.2d 1083, 1084 (9th Cir. 1990) (holding that false statement to probation officer provided justification for upward adjustment). Appellant argues that in Franco-Torres, 869 F.2d at 797, the district court increased the offense level on the basis of an explicit factual finding that the defendant had attempted to discharge his firearm at a police officer. Accordingly, appellant claims that in the absence of an explicit finding of fact by the district court this court should reverse.

Even if there is a requirement for an explicit factfinding on this question, and we have no need to so hold in this case, the district court concluded that " 'the jury did not give any credence to the defendant's testimony' " and that " 'having heard that testimony in its entirety, I am convinced that it was not entirely truthful.' " Appellee's Brief, at 13 (quoting RT 2/27/89 12-13). On this basis, the district court's increase of offense level was not improper.

AFFIRMED.