FILED
NOT FOR PUBLICATION OCT 11 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-30266
Plaintiff-Appellee, D.C. No. 4:08-cr-00126-SEH-1
v.
MEMORANDUM *
ROBERT DARRYL WAR CLUB,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted August 29, 2012
Seattle, Washington
Before: SCHROEDER and GOULD, Circuit Judges, and RAKOFF, Senior District
Judge.**
Robert Darryl War Club appeals his conviction for the murder of Richard
Green, primarily on the basis of four evidentiary rulings made by the district court
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
during the trial, the dismissal of a juror after communication with a witness during
trial, and the denial of his motion for acquittal under Rule 29 of the Federal Rules of
Criminal Procedure. Full familiarity with the record on appeal is here presumed. We
affirm the district court and deny the appeal.
Turning first to the evidentiary rulings, such rulings are reviewed for abuse of
discretion, Old Chief v. United States, 519 U.S. 172, 174 n.1 (1997), and will not
result in reversal on appeal if they are harmless. See United States v. Morales, 108
F.3d 1031, 1040 (9th Cir. 1997) (en banc). If a defendant fails to object to the
evidentiary ruling at trial, the issue is reviewed for plain error. United States v. Graf,
610 F.3d 1148, 1164 (9th Cir. 2010).
War Club first appeals the district court’s exclusion of certain parts of the
testimony of defense witness Jayni Anderson. War Club’s theory of defense was that
Richard Green’s business partner and neighbor, Alvin Linville, and Linville’s friend,
Don Sharp, had killed Green. At trial, War Club first called Linville as a witness, and
Linville not only denied any involvement in the murder but also denied telling
Anderson, his friend, that he was angry at Green and wanted to kill him. War Club
then called Anderson, who was permitted to testify that during the months leading up
to Green’s murder, she had had numerous phone conversations with Linville in which
he told her that he was angry at Green because of a business dispute and that he
-2-
wanted to kill Green. Anderson further testified that on April 20, 2006, the day of
Green’s murder, Linville called her and told her that Green was dead before his body
was found that evening. However, the district court precluded Anderson from
recounting other statements that Linville had made to her and that similarly
contradicted his testimony at trial, such as that Linville had told her that he had
walked across the road to Green’s house in the middle of the night, which made Green
angry, that he had given Green’s half interest in a shop to Don Sharp, and that he and
Sharp were planning to go into business together growing marijuana.
It is well established that under Rule 613 prior inconsistent statements may be
used to impeach the credibility of a witness. United States v. Monroe, 943 F.2d 1007,
1012 (9th Cir. 1991). Yet a district court retains “broad discretion over whether to
admit extrinsic evidence to rebut a witness’ direct testimony, particularly on a matter
collateral to the case.” United States v. Chu, 5 F.3d 1244, 1249 (9th Cir. 1993).
Moreover, district courts are entitled to “wide latitude” under Rule 403 to balance the
probative value of such evidence against its prejudicial effect. United States v.
Higuera-Llamos, 574 F.3d 1206, 1209 (9th Cir. 2009). Here, we find that the district
court properly excluded the above testimony because the statements that War Club
sought to admit either were collateral to the central issue of whether Linville might
have killed Green or (in the case of the marijuana) were unduly prejudicial. While
-3-
War Club now argues that these statements should also have been admitted under the
“residual” exception of Rule 807, the total failure to make this argument at trial
renders it without basis here. See United States v. Tafollo-Cardenas, 897 F.2d 976,
980 (9th Cir. 1990).
War Club next claims that the district court erred in admitting only for
impeachment purposes Anderson’s testimony regarding Linville’s statements that he
was angry with Green over a business dispute, that he wanted to kill Green, and that
he knew Green was dead before the body was discovered, when, War Club argues,
they should have been admitted as substantive evidence of Linville’s then-existing
state of mind under Rule 803(3). Because War Club failed to argue that these
statements should be admissible for their substantive truth under Rule 803(3) at the
time of Anderson’s testimony, the district court’s decision is subject to plain error
review. See United States v. Tisor, 96 F.3d 370, 376 (9th Cir. 1996). While some of
these statements might arguably be admissible under Rule 803(3), the error, if it were
such, was not prejudicial. The district court’s ruling did not prevent War Club from
arguing that the only motive for Linville to lie was that he had in fact committed the
murder. Indeed, if the jury had accepted defense counsel’s argument on summation
that Linville had intentionally lied, they would have very likely inferred that he did
so because he was involved in the murder, thus exculpating War Club.
-4-
War Club next argues that the district court erred when it summarized Verizon’s
response to a subpoena for Anderson’s phone records as indicating that Verizon had
“no record of” Anderson’s phone “being in use during that period of time” when she
said that she had called Linville. In fact, the district court’s statement was accurate;
but even if it could have been misinterpreted at the time as implying that Anderson did
not have a phone at the relevant time, as opposed to the defense view that Verizon
simply failed to maintain such records for more than five years, the error was cured,
since the subpoena response itself was read into the record and War Club then argued
his interpretation of Verizon’s response in his closing arguments.
War Club next challenges the district court’s refusal to allow him to question
Aylissa Sharp regarding child abuse allegations that Aylissa had made against her
father, Don Sharp, many years earlier. War Club argues that these allegations would
show that Aylissa was susceptible to Don’s influence and that the trial court’s refusal
to allow this line of questioning violated War Club’s Sixth Amendment right to
confront witnesses against him. However, while “exposure of a witness’ motivation
in testifying is a proper and important function of the constitutionally protected right
of cross-examination,” Davis v. Alaska, 415 U.S. 308, 316-17 (1974), “trial judges
retain wide latitude insofar as the Confrontation Clause is concerned to impose
reasonable limits on such cross-examination based on concerns about, among other
-5-
things, harassment, prejudice, . . . or interrogation that is repetitive or only marginally
relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). Here, the district court
did not abuse its discretion in refusing War Club’s line of questioning: the allegation
was eight years old, so its relevance was diminished, the level of potential
embarrassment and prejudice to both Don and Aylissa Sharp was great, and the
inference defense counsel sought to draw from the proffered evidence was highly
speculative.
In addition to the foregoing evidentiary issues, War Club appeals the district
court’s decision to dismiss and replace a juror on the last day of trial after the juror
brought to the court’s attention the fact that she had received a telephone call from
Linville the prior evening that caused her to call the police. A district court’s decision
to replace a juror with an alternate is reviewed for abuse of discretion. United States
v. Alexander, 48 F.3d 1477, 1485 (9th Cir. 1995). When there has been improper
contact with a juror, courts apply a presumption of prejudice, even if such conduct is
unintentional. United States v. Rutherford, 371 F.3d 634, 641-42 (9th Cir. 2004).
Although the contact here was apparently accidental, and although the juror was
prepared to continue to serve, the fact that the juror was sufficiently upset by the
contact with Linville that she called the police showed that the threat of prejudice was
real, and War Club made no attempt to rebut the presumption of prejudice.
-6-
Accordingly, we find that the district court did not abuse its discretion in dismissing
the juror and replacing her with an alternate juror.
Finally, War Club appeals the district court’s denial of his motion for acquittal
under Rule 29 of the Federal Rules of Criminal Procedure. Objections to the
sufficiency of the evidence are reviewed de novo. United States v. Green, 592 F.3d
1057, 1065 (9th Cir. 2010). Although War Club raises some factual issues that the
jury could have found in his favor, none of these disputed issues, when viewed “in the
light most favorable to the prosecution,” rises to the level that no “rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” See
Jackson v. Virginia, 443 U.S. 307, 319 (1979). While the prosecution’s case was
largely circumstantial, it was a strong case based on physical evidence as well as
evidence tending to show War Club’s motive and opportunity, and thus War Club’s
Rule 29 motion must be denied.
AFFIRMED.
-7-