Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted June 14, 1988.
D.Nev.
AFFIRMED.
Appeal from the United States District Court for the District of Nevada. Howard D. McKibben, District Judge Presiding.
Before ALARCON, CYNTHIA HOLCOMB HALL, Circuit Judges, and KELLEHER District Judge.
Robert J. Kelleher, U.S. District Court for the Central District of California, sitting by designation.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3.
Joseph Monteiro appeals from the judgment of conviction for receipt of stolen bank funds in violation of 18 U.S.C. § 2113(e) (1982). We affirm.
I.
On July 10, 1984, attorney Joseph Monteiro was tried for receipt of stolen bank funds in violation of 18 U.S.C. § 2113(c) (1982). The government contends Monteiro knowingly accepted $10,000 in stolen funds from bank robber David Combs as a retainer for his defense. The government also contends that Monteiro agreed to "launder" an additional $30,000 in stolen funds for Combs through his bar, The Crazy Horse Saloon (Saloon).
On the first day of trial, Monteiro sought discovery under the Jencks Act, 18 U.S.C. § 3500 (1982), of the grand jury testimony of Joseph Balzano, a key prosecution witness. The district court reviewed a transcript of Balzano's grand jury testimony in camera and limited discovery to pages 38-53 of the transcript.
At trial, Combs testified that Monteiro knowingly accepted $10,000 in stolen funds as a retainer, and that Monteiro laundered other stolen funds for Combs through the Saloon. Balzano testified that he secretly owned the Saloon with Monteiro, and that he observed Monteiro laundering Combs's money.
In the midst of trial, Monteiro's wife claimed to have overheard government officials boasting that they had a tape recording of Monteiro "which would shock him when revealed." Monteiro's attorney sought discovery of this recording, and any other tapes in the government's possession. The United States Attorney assured the court that no such tape existed and the trial continued.
The jury was unable to reach a verdict. The district court declared a mistrial. A second trial on the receipt of stolen money charge was scheduled for February 12, 1985. Prior to this trial, Monteiro moved in limine to restrict inquiry into the ownership of the Saloon, and into the services provided at the Saloon. The Saloon was a topless bar. The district court granted Monteiro's motion in limine and "severely limited any examination in th [ese] area[s]." However, the district court warned Monteiro's attorney that he should object whenever a close question arose as to the admissibility of evidence under the motion in limine order.
At the second trial, Combs and Balzano repeated the testimony presented at Monteiro's first trial. Balzano also testified that he and a Tony Albanese secretly owned the Saloon with Balzano. Balzano testified that the Saloon was a topless bar. Monteiro's counsel did not object to this testimony.
On February 22, 1985, the jury returned a verdict of guilty against Monteiro on the receipt of stolen bank funds charge. Thereafter, on November 27, 1984, Monteiro was indicted for financing an extortionate extension of credit in violation of 18 U.S.C. § 893 (1982). Monteiro sought discovery under Fed.R.Crim.P. 16 and Brady v. Maryland, 373 U.S. 83 (1963), of exculpatory evidence in the government's possession with respect to the extortion charge. The government produced the entire transcript of Balzano's grand jury testimony leading to Monteiro's indictment in the receipt of stolen money case, and a tape recording of a conversation between Monteiro and Charles Disney which occurred on September 1, 1983.
On March 1, 1985, Monteiro moved for a judgment of acquittal and for a new trial in the receipt of bank funds case. He claimed that a judgment of acquittal was required because the government violated Rule 16 and Brady by failing to produce the Disney tape. He claimed that acquittal was also required because the district court in the first trial had erred in holding that pages 1-37 of Balzano's grand jury testimony were not discoverable under the Jencks Act. Finally, he contended a new trial was required because Combs's and Balzano's testimony was internally inconsistent.
The district court denied Monteiro's motions. The district court held that the government violated Rule 16 and Brady by failing to produce the Disney tape, but a judgment of acquittal was not required because that violation did not materially affect the verdict. The district court held that suppression of pages 1-37 of the transcript of Balzano's grand jury testimony, if error, was harmless. Finally, the district court held that a new trial was not required because the verdict was "not contrary to the weight of the evidence."
II.
The government's "suppression of ... evidence [discoverable under Brady ] requires reversal where there is any reasonable possibility that the suppressed evidence would have materially affected the verdict." United States v. Lehman, 792 F.2d 899, 901 (9th Cir.), cert. denied, --- U.S. ----, 107 S.Ct. 232 (1986). Monteiro contends that reversal is required because the government's failure to produce the Disney tape materially affected the verdict. We review this contention de novo. Id. at 901.
In their briefs, Monteiro and the government expend a great deal of effort arguing the question whether Monteiro specifically requested that the government produce the Disney tape. Prior to the Supreme Court's decision in United States v. Bagley, 473 U.S. 667 (1985), this discussion might have been relevant. In United States v. Claiborne, 765 F.2d 784 (9th Cir.1985),cert. denied, 475 U.S. 1120 (1986), we interpreted the Supreme Court's decision in United States v. Agurs, 427 U.S. 97 (1976), as "announc[ing] different 'materiality' tests ... according to the specificity of a defendant's request for information." Claiborne, 765 F.2d at 802.
If a defendant made a specific request for exculpatory information, which gave the prosecution notice of exactly what the defendant desired, undisclosed exculpatory information would be material if it might have affected the outcome of defendant's trial. On the other hand, if a defendant made either a general request for exculpatory information or made no request, the undisclosed exculpatory information would not be material unless it created a reasonable doubt that did not otherwise exist.
Id. at 802-03 (citations omitted).
The former materiality test is akin to the "harmless error beyond a reasonable doubt" standard. United States v. Goldberg, 582 F.2d 483, 489 (9th Cir.1978), cert. denied, 440 U.S. 973 (1979). The latter test "is stricter than the harmless error standard." Id. Under the latter test "the likelihood that the undisclosed evidence would have resulted in acquittal must be more than a reasonable possibility, but need not be probable." Id.
However, in Bagley, five Justices of the Supreme Court held that "evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." 473 U.S. at 685 (White, J. concurring); id. at 682-83 (Blackmun, J.). This standard applies regardless of the specificity of the discovery request. Id. at 682-83, 685; accord United States v. Browne, 829 F.2d 760, 765 (9th Cir.1987), cert. denied, 108 S.Ct. 1298 (1988). Accordingly, the parties' discussion of the specificity issue here is superfluous. Moreover, while the district court in this case applied the "more than a reasonable possibility" standard, it also applied the less strict harmless-error standard as a fallback position.
Monteiro contends that the Disney tape was material because it contained statements both consistent with his trial testimony and consistent with evidence he would have presented had he known of the existence of the tape. He also argues that his statement on the tape that he denied receiving stolen bank money directly supports his denial of guilt at trial. He contends his statements on the tape that he did not deal in drugs supports his testimony that he had a good reputation in the community. He contends he would have attacked prosecution witness Balzano's testimony by testifying he had threatened him had he known of statements to this effect on the tape.
The district court held that the government's failure to produce the Disney tape was not material because the prior consistent statements were inadmissible hearsay, and because the Disney tape was as inculpatory as exculpatory. We agree. The prior consistent statements were inadmissible hearsay because they were not made before Monteiro had a motive to fabricate. United States v. Rohrer, 708 F.2d 429, 433 (9th Cir.1983) ("[a] prior consistent statement is admissible to rehabilitate a witness only if made before the witness has a motive to fabricate"); accord United States v. Gwaltney, 790 F.2d 1378, 1384 (9th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1337 (1987). The statements made on the tape came after Balzano had identified Monteiro as having received stolen bank funds. Since these statements were inadmissible, they could not have materially affected the verdict.
Moreover, the tape was an inculpatory as exculpatory. For example, on the tape Monteiro, strongly implies that Balzano will be killed because of his testimony for the prosecution.
III.
Monteiro claims the district court erred in admitting "prejudicial character testimony" against him in violation of Fed.R.Evid. 403. "The district court's admission or exclusion of evidence under Rule 403 will be reversed only if it was an abuse of discretion." United States v. Layton, 767 F.2d 549, 553 (9th Cir.1985).
Balzano testified he observed Monteiro laundering stolen funds. He testified he was able to make this observation because "he and Tony Albanese were the 'real owners' [of the Crazy Horse Saloon] and Monteiro was brought in only to obtain gaming licenses." He testified that Albanese occupied a secret office on the premises "so that the liquor license people would not know he was there." Additionally, Balzano testified that the Crazy Horse Saloon was a topless bar.
Monteiro contends that the district court's admission of this evidence constituted reversible error. He contends that the probative value of this evidence was substantially outweighed by its prejudicial effect. However, he failed to object to the admission of this evidence when it was offered at trial. Accordingly, the propriety of the admission of that evidence cannot be challenged on appeal. United States v. Wilson, 690 F.2d 1267, 1273-74 (9th Cir.1982) ("if no objection is made at the time the evidence is offered and received, its admissibility generally cannot be challenged on appeal"), cert. denied, 464 U.S. 867 (1983).
Monteiro contends that he was not required to object because the district court granted his motion in limine to restrict inquiry into the Saloon's ownership and "topless" service. This claim lacks merit. As noted above, the district court admonished Monteiro's counsel at trial that he should not rely upon the court's disposition of the motion in limine but should instead object whenever a close question arose as to the admissibility of evidence:
THE COURT: I have already indicated this, so everybody understands, that I have already ruled on the motion in limine. I ruled in specific areas. There are some broad-brush areas that may touch on it or may not. I am not going to allow counsel to sit here and say nothing in these areas in which it is a very close question perhaps as to whether or not it just barely is touching into those areas or not. You are going to have to stand up and object.
[MONTEIRO'S COUNSEL]: Yes, sir.
THE COURT: Because I think it is improper to ask this Court to make all of those decisions when it [is] just barely touching in that area. At this point I see nothing that touched in any area that is prejudicial to anybody in this case. If I see it, I will attempt to enforce my ruling on the motion in limine. If you are concerned generally about a general question about all businesses, in the opinion of the Court, that does not relate to the motion in limine. You will have to make objection, and I will rule on it as I just did here.
Here, the admissibility of Balzano's testimony under the motion in limine order presented a close question. Accordingly, because Monteiro failed to make a timely objection to that testimony, he cannot now challenge its admission at trial.
IV.
Monteiro contends that the district court erred in denying his motion for new trial under Fed.R.Crim.P. 33. "[A] decision to grant or deny a new trial is within the sound discretion of the district court ... and the appellant carries a significant burden to show that the district court abused its discretion." United States v. Steel, 759 F.2d 706, 713 (9th Cir.1985) (citations omitted).
Monteiro contends a new trial was warranted because the testimony of two key government witnesses--Balzano and Combs--was "inherently contradictory." The district court agreed that "Joseph Balzano and David Combs ... were not the most believable witnesses." However, the court found "the jury's verdict is not contrary to the weight of the evidence." Accordingly, the district court denied the motion for new trial.
The district court did not abuse its discretion in denying the motion for new trial. The mere fact that the testimonies of Balzano and Combs were internally inconsistent did not mandate a new trial. Marshall v. United States, 436 F.2d 155, 156 (D.C.Cir.1971) ("[c]onflicts in testimony ... are for the jury to resolve and are not grounds for a new trial"); United States v. Indelicato, 611 F.2d 376, 387 (1st Cir.1979) (same).
V.
Monteiro contends that the district court in the first stolen bank funds trial violated the Jencks Act, 28 U.S.C. § 3500(b) (1982), when it refused discovery of certain portions of Balzano's grand jury testimony. "A trial judge's ruling that the government need not produce a witness's statement under the Jencks Act will not be overturned on appeal absent a clear showing of abuse of discretion." United States v. Cowley, 720 F.2d 1037, 1040 n. 1 (9th Cir.1983), cert. denied sub nom. St. Clair v. United States, 465 U.S. 1029 (1984). If an abuse of discretion is found, "courts cannot 'speculate whether [Jencks material] could have been utilized effectively' at trial, [and hence] the harmless-error doctrine must be strictly applied in Jencks Act cases." Goldberg v. United States, 425 U.S. 94, 111 n. 21 (quoting Clancy v. United States, 365 U.S. 312, 316 (1961)); see United States v. Bibbero, 749 F.2d 581, 585 (9th Cir.1984) (same), cert. denied, 471 U.S. 1103 (1985).
The district judge in the second stolen bank funds trial denied the motion for a new trial without deciding whether the entire transcript of Balzano's grand jury testimony was discoverable under the Jencks Act. The judge held, inter alia, that "[i]t was incumbent upon the defendant to renew his motion to produce the entire transcript upon the completion of the testimony of Joseph Balzano and his failure to do so constituted a waiver of his right to request a new trial for failure to disclose Jencks Act material."
We agree with the district court's decision that Monteiro waived his right to discovery of pages 1-37 of the transcript. While "[i]t is a familiar principle that no waiver occurs due to a defendant's failure to object where a reasonable person would expect that objection to be fruitless," Barnard v. Henderson, 514 F.2d 744, 746 (5th Cir.1975); United States v. Alvarez, 584 F.2d 694, 697 (5th Cir.1978), Monteiro has not presented any evidence to support an inference that the judge who presided at the second trial would have denied a motion to disclose pages 1-37 of the grand jury transcript. This is not an ordinary futility of demand case; two different judges were involved. In light of these unusual circumstances, we do not believe that a reasonable person would have concluded that a renewed attempt to discover pages 1-37 of Balzano's transcript would have been futile in light of the first judge's ruling. Accordingly, the district court did not abuse its discretion in denying the motion for a new trial. AFFIRMED.