FILED
NOT FOR PUBLICATION DEC 03 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-30286
Plaintiff - Appellee, D.C. No. 4:10-cr-00087-CCL-4
v.
MEMORANDUM*
GEOFFREY PETER SCHARDIEN,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, Senior District Judge, Presiding
Argued and Submitted November 7, 2012
Portland, Oregon
Before: ALARCÓN, McKEOWN, and PAEZ, Circuit Judges.
Geoffrey Peter Schardien appeals from the district court’s judgment of
conviction for conspiracy to possess, possession with intent to distribute, and
distribution of 500 grams of cocaine in violation of 21 U.S.C. §§ 846 and
841(a)(1). He alleges the trial court erred in denying his counsel the right to cross-
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
examine a cooperating witness about the fact that he received a mandatory
minimum sentence, and in denying his motion for a mistrial following alleged
prosecutorial misconduct. We have jurisdiction under 28 U.S.C. § 1291.
We review for abuse of discretion both issues: (1) a trial court’s limitation
on the scope of cross-examination, United States v. Larson, 495 F.3d 1094, 1101
(9th Cir. 2007) (en banc), and (2) a claim of prosecutorial misconduct raised at
trial, United States v. Sarkisian, 197 F.3d 966, 988 (9th Cir. 1999). We affirm.
I
The Sixth Amendment guarantees the right of a criminal defendant “to be
confronted with the witnesses against him.” U.S. Const. amend. VI. The
“essential purpose” of the right is to secure the opportunity for cross-examination.
Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986). Three factors determine
whether a defendant’s cross-examination right was violated: “(1) whether the
excluded evidence was relevant; (2) whether there were other legitimate interests
outweighing the defendant’s interest in presenting the evidence; and (3) whether
the exclusion of evidence left the jury with sufficient information to assess the
credibility of the witness.” Larson, 495 F.3d at 1103 (quoting United States v.
Beardslee, 197 F.3d 378, 383 (9th Cir. 1999)) (internal quotation marks and
brackets omitted). Schardien argues that his Sixth Amendment rights were
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violated when the district court restricted his cross-examination of a cooperating
witness regarding the mandatory minimum sentence the witness received, even
though the witness’s punishment was not altered by the deal he made with the
prosecution in exchange for his guilty plea.
We disagree. The district court did not abuse its discretion. The cooperating
witness’s minimum sentence was of de minimus relevance here, because it was
only tangentially related to the benefit that he received for testifying as a
prosecution witness. Schardien failed to demonstrate that his interest in presenting
that evidence outweighed the Government’s interest in avoiding juror confusion.
The evidence was sufficient to permit the jury to weigh the cooperating witness’s
credibility through other testimony regarding his poor memory, drug use, felony
conviction, and the actual benefit he received from the plea deal, a promise that the
government would not prosecute his wife.
II
During redirect examination, the prosecutor asked an FBI agent whether
investigators had recordings of Schardien speaking about manipulating the jury.
Defense counsel moved for a mistrial. The district court admonished the jury to
disregard the question and the objection. “[J]uries are presumed to follow their
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instructions . . . .” Richardson v. Marsh, 481 U.S. 200, 211 (1987). The trial court
did not abuse its discretion in refusing to grant a mistrial.
AFFIRMED.
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