Unpublished Disposition, 925 F.2d 1472 (9th Cir. 1991)

MEMORANDUM^* 

Defendant appeals his conviction on federal bank robbery charges, arguing, inter alia, that several pieces of evidence were improperly admitted. We agree with appellant's challenge to the admission of one of these pieces, and vacate his conviction and remand for a new trial.

We review for abuse of discretion a trial court's decisions to admit evidence, its decisions relating to the scope and extent of cross-examination, and its weighing of the probative value of evidence against its prejudicial effect under Federal Rule of Evidence 403. See United States v. Burreson, 643 F.2d 1344, 1349 (9th Cir.) (admission of evidence), cert. denied, 454 U.S. 830 (1981); United States v. Jackson, 882 F.2d 1444, 1446 (9th Cir. 1988) (scope and extent of cross-examination); United States v. Feldman, 788 F.2d 544, 557 (9th Cir. 1986) (Rule 403 weighing), cert. denied, 479 U.S. 1067 (1987).

Appellant contends that the district court erred in allowing the government to cross-examine him in reference to an entry into his personal journal (referred to as his "notebook") describing a 1978 armed bank robbery attempt.¹  Appellant claims this line of examination, which included the prosecutor's reference to the actual passage in the notebook, violated Federal Rule of Evidence 608(b), and constituted evidence whose probative value was outweighed by its prejudicial effect on the jury.

We agree with appellant that the probative value of this line of questioning was far outweighed by its unfairly prejudicial effect, and that the failure of the district court to exclude this evidence constituted an abuse of discretion.²  We examine first the probative value of this evidence, and then weigh this value against its unfairly prejudicial effect.

The government offers two plausible theories³  supporting admissibility. First, it argues that the evidence is admissible under the doctrine of "specific contradiction," which holds that " [o]nce a witness ... testifies as to any specific fact on direct testimony, the trial judge has broad discretion to admit extrinsic evidence tending to contradict the specific statement, even if such statement concerns a collateral matter in the case." United States v. Benedetto, 571 F.2d 1246, 1250 (2d Cir. 1978), quoted in United States v. Giese, 597 F.2d 1170, 1190 (9th Cir.), cert. denied, 444 U.S. 979 (1979). The government contends that appellant's statement, made on cross-examination, that "I want the jury to know the truth, which is that I did not rob any bank," justified the government's attempt to show that appellant had in fact once entered a bank with the intention of robbing it. [See Red Brief at 25-30.]

However, in the context of the cross-examination, appellant's statement can fairly be read only to suggest that appellant was denying having robbed the two banks for which he was on trial.⁴  The government interprets appellant's statement that he did not rob "any" bank to mean that appellant testified that he had never robbed a bank, thus opening the way for the government to contradict him by showing that at one time he had intended to rob a bank. This reasoning provides only tenuous support for the admissibility of the evidence. The probative value of such evidence is minimal.

The government also argues that armed robbery per se involves dishonesty, and thus that evidence of appellant's 1978 armed robbery attempt spoke to appellant's credibility as a witness. Our court has held that evidence of armed robbery is relevant to the issue of the perpetrator's credibility as a witness. See, e.g., United States v. Kinslow, 860 F.2d 963, 968 (9th Cir. 1988), cert. denied, 110 S. Ct. 96 (1989). Thus, appellant's notebook entry, to the extent it shows that he once attempted to rob a bank,⁵  does have some probative value as an impeachment of his credibility. However, given the other evidence introduced to impeach appellant's credibility, and the temporal remoteness of the incident,⁶  the probative value of this particular evidence is not great.

The minimal probative value of this evidence must be weighed against the substantial unfair prejudice it caused. As we have explained, " [u]nfair prejudice results from an aspect of the evidence other than its tendency to make the existence of a material fact more or less probable, e.g., that aspect of the evidence which makes conviction more likely because it provokes an emotional response in the jury or otherwise tends to affect adversely the jury's attitude toward the defendant wholly apart from its judgment as to his guilt or innocence of the crime charged." United States v. Bailleaux, 685 F.2d 1105, 1111 (9th Cir. 1982) (emphasis deleted). In this case the evidence was unfairly prejudicial in that it tended to provoke the jury's instinct to punish appellant for the robbery described in the notebook, and not for commission of the crimes for which he was on trial. See 1 J. Weinstein & M. Berger, Weinstein's Evidence, p 403, at 403-34--403-36 (1990) (evidence provoking instinct to punish may constitute unfairly prejudicial evidence); J. Wigmore, Evidence Sec. 57 at 456 (3d ed. 1940) ("The deep tendency of human nature to punish, not because our victim is guilty this time, but because he is a bad man and may as well be condemned now that he is caught is a tendency which cannot fail to operate with any jury, in or out of court.")

Because introduction of appellant's notebook entry clearly increased the likelihood that the jury would convict, out of all proportion to its minimal probative value, Rule 403 requires that it be suppressed. See United States v. Bailleaux, 685 F.2d at 1111 ("When the effect on the jury of the non-probative aspect of the evidence is likely to be substantially greater than the effect of the probative aspect, the evidence should be excluded under Rule 403."); see also G. Weissenberger, Weissenberger's Federal Evidence Sec. 403.4, at 73-74 (1987) (" [w]hen probative value is extremely low, Rule 403 may be an appropriate basis for exclusion of the minimally helpful evidence where a negative attribute identified in Rule 403 can be cited"). Thus, the district court's failure to exclude this evidence constitutes an abuse of discretion.

Our holding requires that we vacate appellant's conviction and remand the case for a new trial. Before doing so, however, we will consider appellant's other evidentiary claims. We do so in the interest of judicial economy, since these issues have been briefed and argued, and will likely recur in appellant's new trial.⁷ 

Appellant claims that the district court should not have allowed the government's cross-examination of appellant on the subject of appellant's drug abuse, the amount of money he spent on his drug habit, and the means by which he obtained money to purchase drugs. He also challenges the district court's decision to allow the government to cross-examine him on his theft from a former employer. We agree with the government, however, that appellant opened the door on these issues by his direct testimony, which failed to present a complete picture of his drug addiction or his history of theft to support his drug habit. The district court did not abuse its discretion by allowing these lines of cross-examination. See United States v. Perry, 857 F.2d 1346, 1352-53 (9th Cir. 1988) (defendant "opened the door" to cross-examination on his prior convictions by his prior attempts to explain them away).

Finally, appellant challenges the district court's exclusion, as irrelevant and lacking a foundation, of fingerprints from the glass on the door of one of the banks, none of which matched those of defendant. The district court ruled that this evidence was inadmissible because while the defense offered to show that the robber exited through the door, it was unable to establish that the robber had to put his fingers on the glass in order to open it. Clerk's Record 454-56.

The district court's ruling does not constitute an abuse of discretion. We have said that on the question of relevancy " [a] rule of thumb is to inquire whether 'a reasonable man might believe the probability of the truth of the consequential fact to be different if he knew of the proffered evidence.' " United States v. Brashier, 548 F.2d 1315, 1325 (9th Cir. 1976) (quoting 1 J. Weinstein, & M. Berger, Weinstein's Evidence p 401(07), at 401-27 (1975)), cert. denied, 429 U.S. 1111 (1977). In this case, it was within the district court's discretion to decide that a reasonable man would not likely have changed his estimate of the probability of appellant's guilt had he known that fingerprints taken from the glass did not match appellant's, when the robber could have used other ways to open the door.

The judgment is VACATED, and the case is REMANDED for a new trial.