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United States v. Barber

filed: February 21, 1992.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
KATHRYN LOUISE BARBER, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Nevada. Lloyd D. George, District Judge, Presiding. D.C. No. CR-89-00263-LDG

Before: Hug, Hall, and O'scannlain, Circuit Judges.

MEMORANDUM

I

Barber argues that the government promised Larson, as part of Larson's plea bargain, to dismiss the charges against Barber if she subjected herself to a polygraph examination. "'In determining whether a plea bargain has been broken, courts look to what was reasonably understood by [the defendant] when he entered his plea of guilty. If disputed, the terms of the agreement will be determined by objective standards.'" United States v. Pomazi, 851 F.2d 244, 250 (9th Cir. 1988) (quoting United States v. Travis, 735 F.2d 1129, 1132 (9th Cir. 1984) (quotations and citation omitted)), overruled on other grounds, United States v. Sharp, 941 F.2d 811, 815 (9th Cir. 1991).

The district court found, as a matter of fact, that the plea agreement did not include the term alleged by Barber, and the transcript of Larson's plea supports that finding. Larson's counsel ratified the prosecutor's statement that Disposition of Barber's case was not part of the negotiation underlying the plea bargain. The district court's finding that the plea bargain contained no term relating to Barber was not clearly erroneous.

II

Barber next argues that the district court abused its discretion by admitting a number of items into evidence which tended to rebut Barber's claim that she had no knowledge that the writ of execution was a forgery and that the goods taken from the Los Angeles vault were therefore stolen. We address each item of evidence in turn.

A

Barber argues that the district court erred by allowing the prosecutor to question Barber about her failure to return Sabatier's property to the bankruptcy court after the bankruptcy court had ordered her to do so. Barber testified at trial that she did not transport the property from Los Angeles to Las Vegas, but in the earlier bankruptcy proceeding had testified that she transported the property to Las Vegas and had given the property away. The district court therefore properly admitted the statements as prior inconsistent statements given under oath in a prior judicial proceeding. See Fed. R. Evid. 801(d)(1). The disputed statements were admissible for impeachment purposes and to show that Barber continued to possess the stolen property even after she knew it was obtained by illegal means. See United States v. Marvin, 687 F.2d 1221, 1228 (8th Cir. 1982) (in food stamp fraud prosecution, evidence of a subsequent fraud that was "vague and ambiguous" admissible to show appellant's "knowledgeable participation" and to establish a link between appellant and his codefendants), cert. denied, 460 U.S. 1081 (1983); United States v. O'Brien, 601 F.2d 1067, 1070 (9th Cir. 1979) (in prosecution for making false statement to Social Security Administration, evidence that defendant had several opportunities to report newfound employment "enough like the charged offense of knowingly making false statements to the government to be probative on the issue of appellant's knowledge, and was properly admitted.").

Because one reference to the bankruptcy court's orders to return property was proper, any error in admitting references to other orders of the bankruptcy court was harmless. Moreover, the government presented witnesses who testified that Barber stated her belief that Sabatier's art collection was worth hundreds of thousands of dollars, far in excess of the judgment she had a legal right to satisfy. Barber might have been entitled to a limiting instruction had she requested one, but she did not do so. The failure of the district court to so instruct the jury was not plain error.

B

Barber also challenges the admission of testimony by Sabatier that Barber had called Sabatier in France before the trial and threatened him in an attempt to prevent him from testifying. The district court did not abuse its discretion by admitting this evidence. People v. Ojeda, 758 F.2d 403, 408 (9th Cir. 1985) (evidence that defendant offered to compensate witness is relevant "as indicative of a consciousness of guilt").

III

Barber next argues that the prosecutor inappropriately expressed his personal views about the facts and demeaned defense counsel. Because Barber failed to object during the statement, this court reviews for plain error. United States v. Laurins, 857 F.2d 529, 539 (9th Cir. 1988), cert. denied, 4 ...


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