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United States v. Bonito

filed*fn*: October 11, 1991.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
HARRISON VICTOR BONITO, DEFENDANT-APPELLANT



Appeal from the United States District Court for the District of Arizona (Tucson); D.C. No. CR-90-00006-RMB; Richard M. Bilby, District Judge, Presiding.

Goodwin, Norris, and Thompson, Circuit Judges.

MEMORANDUM

Harrison Bonito appeals his conviction by a jury for involuntary vehicular manslaughter and his sentence of 36 months imprisonment.

On the evening of May 7, 1988, Darlene Brown died when a truck driven by appellant collided with her vehicle on Highway 70 on the San Carlos Indian Reservation. Five of her children also sustained injuries. The evidence showed that appellant was intoxicated at the time of the accident.

I

Appellant argues that the district court erred in sustaining the government's objection when defense counsel attempted to cross-examine FBI agent Leon Fish about his pretrial interview of Crystal Brown, the eight-year old daughter of the deceased, and in particular about a prior statement that she had made regarding the color of defendant's truck. We review a trial court's decision to limit the scope of cross-examination for abuse of discretion. United States v. Bonanno, 852 F.2d 434, 439 (9th Cir. 1988), cert. denied, 488 U.S. 1016 (1989).

Federal Rule of Evidence 613(b) provides that extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny that statement. Crystal Brown had previously been called to testify by the government and had been cross-examined by defense counsel. Defense counsel did not ask Crystal Brown about her prior statement, and the record reveals that no government objections prevented him from doing so. Given these circumstances, the trial court did not abuse its discretion in defense counsel's cross-examination of Fish.*fn1

II

Appellant argues that the results of his blood test should have been suppressed because he was not arrested prior to the withdrawal of his blood sample as required by United States v. Harvey, 701 F.2d 800, 805 (9th Cir. 1983). We review the district court's findings of fact relating to suppression of evidence for clear error but review de novo the application of the Fourth Amendment to those facts. United States v. Attson, 900 F.2d 1427, 1429 (9th Cir.), cert. denied, 111 S. Ct. 393 (1990).

The United States concedes that appellant was not under arrest at the time his blood was drawn, but argues that appellant consented to the procedure by initialing a consent form. Appellant testified that he did not initial the consent form, 1 Reporter's Transcript ("RT") at 43, but the detective who obtained the blood sample testified that appellant did initial the form, 1 RT at 29. Appellant also argues that he did not understand the form, but appellant demonstrated at the suppression hearing that he was able to read the form. 1 RT at 42-43. We hold that the district court's finding of fact that appellant understood and initialed the consent form was not clearly erroneous.

Finally, relying on Harvey, appellant argues that the consent form was invalid because it pertained to state traffic safety laws that do not apply within the reservation. Appellant's reliance on Harvey is misplaced. In Harvey we held that Montana's implied consent law did not apply within an Indian reservation. 701 F.2d at 805. The instant case does not involve implied consent, but the consent of a fully conscious person given by initialing a form. Assuming arguendo that Arizona's traffic safety laws did not apply within the reservation, we hold that the form was sufficient to express appellant's consent for the purposes of the Fourth Amendment because it clearly indicated that the signer was consenting to the withdrawal of blood.

III

Appellant argues that the district court erred in permitting the United States to mention Arizona's presumption of intoxication for a blood alcohol level over .10% because that presumption does not apply within the reservation. See, e.g., 1 RT at 131. However, even assuming that it was an error for the trial court to permit the presumption to be mentioned, we hold that the error was cured by the testimony of a qualified expert regarding the effects of appellant's .21% blood alcohol level. Harvey, 701 F.2d at 806 n.3.

Appellant also argues that his right to exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), was violated by the prosecution's failure to provide him with evidence establishing that the blood test was conducted in accordance with Arizona regulations. Compliance with Brady is reviewed de novo. United States v. Pisello, 877 F.2d 762 (9th Cir. 1989). Brady is violated only if the evidence that the prosecution refuses to produce is material. United States v. Juvenile Male, 864 F.2d 641, 647 (9th Cir. 1988). Because the blood test in this case was conducted by a qualified ...


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