dissenting:
It is uncontroverted that on January 12, 1993, Tory entered the A. Levy bank and walked directly to the teller station where he slid a piece of yellow paper across the counter to Sandra Seholle. The demand note read: “Give me the money from your drawer or I will shoot you in the face.” Ms. Seholle looked at Tory and she testified that he raised his shirt to reveal the butt of a bluish-*212black handgun. Ms. Scholle gave Tory $2,020 dollars and he fled the bank.
Shortly after the robbery, Ms. Scholle told an FBI agent that Tory was wearing “white sweatpants.” Her trial testimony was that he wore “white baggy jean-like looking pants, like painter pants.” Tory sought to introduce evidence that Ms. Scholle had initially told the agent that Tory wore sweatpants. The district court did not permit the testimony. Tory argues that this evidence “was crucial because if [he] was wearing white jogging pants with elastic band, he could not have carried a heavy gun ‘stuck in his waistband’ as described by bank teller Sandra Scholle.”
Trial court errors on nonconstitutional matters warrant reversal only if they more probably than not affected the outcome. United States v. Rahm, 993 F.2d 1405, 1415 (9th Cir.1993).
The district court may properly reject questioning about a tangential issue: the precise description of Tory’s pants during the robbery. “[Tjrial judges must retain a high degree of flexibility in deciding the exact point at which a prior statement is sufficiently inconsistent with a witness’s trial testimony to permit its use in evidence.” United States v. Morgan, 555 F.2d 238, 242 (1977).
According to the majority, Ms. Scholle’s “discrepancy” in describing Tory’s pants requires reversal. Tory argues that the jury might have concluded that sweatpants always have an elastic waistband and thus would not support a gun. Even if this is true, and it isn’t, the credibility of the teller is the issue, not the type of pants. The trial court’s decision to limit cross examination was within its broad discretion to admit or exclude evidence. United States v. Larios, 640 F.2d 938, 941 (9th Cir.1981). The court recognized, properly in my opinion, that the issue was tangential at best and likely of no consequence. Further, the pants that Tory claimed he wore were introduced into evidence without objection. The law, before the majority spoke, did not require that one looking at a pistol in support of a threat “to shoot you in the face” be absolutely precise in noting the kind of pants worn by the robber.
Ms. Scholle first saw Tory at a distance as he entered the bank. At that point, she had no reason to scrutinize his attire. By the time Tory was at her window, Ms. Scholle’s view of his pants was largely, if not entirely, impeded by the counter. In addition, if Tory displayed a gun to support his threat, even one who was absolutely without fear would focus her attention on the gun, not his pants. Ms. Scholle testified that she was in shock during the robbery. Her “discrepancy” when describing Tory’s pants was inconsequential.
If the majority’s holding is a requirement of the law, bank tellers now have a daunting task during armed robberies. While complying with a gunman’s demands, the teller must now note with precision each article of the assailant’s clothing. General descriptions — even accurate ones — are not sufficient. Evidence of any inconsistency, no matter how slight, is no longer a question for the trial court’s discretion; a refusal to allow such evidence is reversible error even where, as here, the only question is whether a gun was used. Identity is not at issue.
I agree with the majority that the district judge should not have interrupted defense counsel’s closing argument on the sweatpants issue. Tory’s counsel should have been permitted to argue that the sweatpants in evidence could not have supported a gun as Tory ran from the bank. The defect is that the pants introduced into evidence may or may not have been the pants Tory wore during the robbery. The question was properly one for the trier of fact.
The white sweatpants found in Tory’s house during the police search were admitted into evidence without objection. Tory testified that he wore the sweatpants during the robbery. The jury was fully aware of Tory’s theory of defense. By returning a guilty verdict on Count I, the jury necessarily rejected his argument that the sweatpants would not support a gun. I therefore conclude that the interruption was harmless error.
The majority holds that the district court erred in prohibiting defense counsel from asserting during closing argument that the government’s failure to produce surveillance *213photographs creates an inference that they would have shown Tory wearing sweatpants. Even if some would have permitted the argument, the court was within its discretion to preclude an argument that included speculation.
I would hold that the court’s restriction of Tory’s argument regarding the surveillance photographs was not error, but even if it were, it was harmless. Ms. Scholle unequivocally testified that Tory had a gun during the robbery. Tory’s demand note stated that he would shoot if his orders were not obeyed. His wearing of sweatpants was not the pivotal issue.
As the case was tried, I’d agree with the majority that the admission of the holster and gunbelt was error. But if the argument is that sweatpants won’t support a gun, then the holster and gunbelt found at Tory’s house would be properly admitted.
Although not perfect, Tory’s trial was fair. He was properly convicted. Record evidence supports the conviction. I would affirm.