Appeal from the United States District Court for the District of Alaska. D.C. NO. CR-92-52-01-HRH. H. Russel Holland, Chief District Judge, Presiding
Before: Tang, Farris, and Rymer, Circuit Judges.
This case arises out of allegations by the Government that Joseph C. Miller unlawfully amended the Personnel Policies and Procedures Manual of the Home Savings Bank ("Bank") in Anchorage, Alaska, in violation of a Capital Forbearance Agreement ("Forbearance Agreement") between the Bank and the Federal Savings and Loan Insurance Corporation ("FSLIC").
Mr. Miller was convicted of two charges, Counts I and III of the indictment. Count I was for making false entries in the Bank's Personnel and Police Procedures Manual in violation of 18 U.S.C. §§ 1006 and 2 (Count I). Count III was for misapplication of bank funds in violation of 18 U.S.C. §§ 657 and 2 (Count III). The judgment, however, states that Mr. Miller was convicted of Count I and Count II, bank fraud, which was the second count of the indictment. The judgment confuses Count II and Count III of the indictment. Fortunately, the offense level calculations in the presentence report were based on Mr. Miller's convictions of Counts I and III of the indictment and not Counts I and II. We are convinced that the judgment reflects merely a clerical mistake. This case is therefore remanded to the district court for correction of the judgment.
We review a trial court's decision to limit the scope of cross-examination for an abuse of discretion. United States v. Dischner, 974 F.2d 1502, 1514 n.12 (9th Cir. 1992), cert. denied, 122 L. Ed. 2d 682, U.S. , 113 S. Ct. 1290 (1993). A trial court abuses its discretion in limiting cross-examination whenever it prevents the jury from receiving sufficient information to Judge the biases and motivations of a witness. U.S. v. Guthrie, 931 F.2d 564, 568 (9th Cir. 1991). Nonetheless, this Court "must have a definite and firm conviction that the trial court committed a clear error of judgment in the Conclusion it reached upon consideration of the relevant factors." United States v. Whitworth, 856 F.2d 1268, 1283 (9th Cir. 1988), cert. denied, 489 U.S. 1084, 103 L. Ed. 2d 846, 109 S. Ct. 1541 (1989).
Mr. Miller claims that he should have been allowed to cross-examine Debra Pietrok about her sexual relationship with Bank Chairman Robert Gillam. The district court ruled that Ms. Pietrok's sexual relationship with Mr. Gillam was a collateral matter that was "not probative of her truthfulness or untruthfulness on the testimony that she [gave at] trial." [ER at 173-74.]
To the extent Mr. Miller maintains the contention he argued at trial, the district court's ruling is not an abuse of discretion in light of our decision in United States v. Payne, 944 F.2d 1458 (9th Cir. 1991), cert. denied, U.S. , 112 S. Ct. 1598 (1992), in which "the probative value of minor inconsistencies regarding an obviously embarrassing situation" was found to be "virtually nil and does not outweigh the prejudicial effect of introducing [the witness's] collateral sexual conduct." 944 F.2d at 1469.
The Government, however, asserts that Mr. Miller now, for the first time on appeal, argues that Ms. Pietrok's affair with Mr. Gillam was relevant to establishing her alleged bias "to maximize [Mr.] Miller's role and to protect or keep secret her relationship with [Mr.] Gillam by minimizing his role." [Blue Brief at 23.] Thus, the Government argues, Mr. Miller must establish that the district court's ruling was "plain error." See Fed. R. Crim. P. 52(b); Dischner, 974 F.2d at 1514.
We need not decide whether to review for abuse of discretion or plain error. The record supports the district court's decision under either standard. Ms. Pietrok admitted during trial that Mr. Miller was one person at the Bank she did not like. Thus the jury was made aware of Ms. Pietrok's possible bias against Mr. Miller. Furthermore, it is rank speculation to say that the mere existence of an affair between Ms. Pietrok and Mr. Gillam evidences Ms. Pietrok's motive to exculpate Mr. Gillam by falsely inculpating Mr. Miller. This simply is not a case in which to find that either Mr. Miller or Mr. Gillam was guilty.
Finally, even assuming the district court did err, the error is harmless. See Delaware v. Van Arsdall, 475 U.S. 673, 684, 89 L. Ed. 2d 674, 106 S. Ct. 1431 (1986).
When the confrontation clause is violated by a restriction on the scope of cross-examination, the Supreme Court has instructed reviewing courts to consider "whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt." Id. The factors to consider include the importance of the witness's testimony to the prosecution's case, whether the testimony was cumulative, whether there was evidence corroborating or contradicting the witness, the extent of cross-examination actually permitted, and the overall strength of the prosecution's case. Id.
In this case, Ms. Pietrok professed no direct knowledge on the critical issue of when Mr. Miller actually hand-wrote the severance policy changes in the manual. Instead, the evidence on this point was largely circumstantial, based on, among other things, the credibility of Mr. Miller's claim that he revised the severance policy in October 1987 but left the hand-written changes in his drawer until the next year; the fact that Mr. Miller's copy of the manual indicated in several places that he had dated some other changes in October and December 1988 (written over to read 1987); and the fact that the revised manual established greater severance benefits for a class of bank officials, "[Senior] Executive Officers," that otherwise were first differentiated from simple "Officers" in a manual revision dated April 1988.
Furthermore, there is little if any evidence, other than Mr. Miller's own testimony, that contradicts Ms. Pietrok's testimony. Indeed, several witnesses, such as Dave Rehfeldt and James T. Stanley, corroborated aspects of her testimony. Considering all this in light of the wide latitude given defense counsel to cross-examine Ms. Pietrok, save the limitation on her relationship with Mr. Gillam, the record demonstrates beyond ...