F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAY 27 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 97-2127
STANLEY BEGAY,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. No. CR-96-381-BB)
Robert R. Cooper, Albuquerque, New Mexico, for Defendant-Appellant.
Robert J. Gorence, Assistant United States Attorney (John J. Kelly, United States
Attorney, and Samuel L. Winder, Assistant United States Attorney, on the brief),
Albuquerque, New Mexico, for Plaintiff-Appellee.
Before BALDOCK, BARRETT, and LOGAN, Circuit Judges.
LOGAN, Circuit Judge.
Defendant Stanley Begay appeals after a jury convicted him on one count of
robbery on an Indian reservation in violation of 18 U.S.C. §§ 1153 and 2111, and
acquitted him on the related count of assault with an automobile.1 He argues that (1) the
district court abused its discretion by preventing him from impeaching government
witnesses regarding their prior convictions, and (2) his due process rights were violated
by the prosecutor’s misconduct while cross-examining a defense witness.
I
The critical facts supporting the indictment involved defendant, Frank Begay
(F.B.) (unrelated), and Rickie Hannah. Hannah loaned a car to F.B. one evening while
Hannah, who was ill, rested at the home of F.B.’s mother. F.B. returned the following
day with the vehicle and George Etcitty, whom Hannah had not met previously. Hannah
agreed to give Etcitty a ride home to Nageezi, New Mexico. En route to Nageezi,
Hannah, Etcitty and F.B. stopped at a curio shop where they encountered defendant,
whom F.B. and Hannah had never before met. The four left and ultimately picked up
Etcitty’s mother and stopped at a grocery store. F.B. then drove on to Etcitty’s mother’s
house with her, Etcitty, and defendant also in the car.
Upon arrival Hannah declined an invitation into the Etcitty home because he felt
ill. F.B. also remained in the car in the driver’s seat. The government’s evidence showed
1
The parties stipulated that defendant and the alleged victims were Navajo
Indians and the relevant events occurred on the Navajo Reservation in Indian Country.
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that while F.B. remained in the driver’s seat, someone grabbed him, threw him down,
pulled his forehead back, and held a knife to his throat. Hannah had fallen asleep, but
awoke when defendant struck his face. Defendant then kicked Hannah, struck him in the
face several times, pointed a gun at him, and ordered him from the vehicle. Hannah ran
away in fear that defendant would shoot him. F.B. had already exited from the driver’s
seat and left the immediate area. Hannah testified that defendant then approached him
and ordered him back into the car. Etcitty was now in the front passenger seat, so Hannah
sat in the back seat. After a short drive, the three encountered F.B. F.B. and Etcitty
testified at trial that defendant accelerated the car, hitting F.B., then drove on to a trading
post. While Hannah used the restroom, defendant and Etcitty left in Hannah’s car.
The following day, while another friend was driving Hannah home, they noticed
Hannah’s car parked at the trading post. Hannah located the keys and recognized the gun
found in the car as the one defendant had pointed at him the previous day.
II
A
Defendant first challenges the district court rulings disallowing cross-examination
as to Hannah’s prior conviction for marijuana possession and F.B.’s prior rape and
burglary convictions. We review decisions to admit or exclude evidence of prior
convictions for abuse of discretion. United States v. Linn, 31 F.3d 987, 991 (10th Cir.
1994), and afford substantial deference when the district court has engaged in the
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balancing required by Federal Rule of Evidence 609. United States v. Halbert, 668 F.2d
489, 495 (10th Cir. 1991).
Federal Rule of Evidence 609(a)(1) and (2) governs the use of prior conviction
evidence for impeachment purposes. It reads:
(a) General rule. For the purpose of attacking the credibility of a
witness,
(1) evidence that a witness other than an accused has been convicted
of a crime shall be admitted, subject to Rule 403, if the crime was
punishable by death or imprisonment in excess of one year under the law
under which the witness was convicted, and evidence that an accused has
been convicted of such a crime shall be admitted if the court determines that
the probative value of admitting this evidence outweighs its prejudicial
effect to the accused; and
(2) evidence that any witness has been convicted of a crime shall be
admitted if it involved dishonesty or false statement, regardless of the
punishment.
Rule 403 balancing applies unless the prior crime involves dishonesty or false statements;
the time limits in Rule 609(b) may also operate to exclude the prior conviction evidence.
Hannah received probation and a deferred sentence for possession of marijuana, a
felony. The defense made no showing of the value of establishing this conviction. The
district court found that a conviction for marijuana possession did not relate to dishonesty
and had limited probative value as to Hannah’s credibility; it concluded the evidence
lacked probative value for purposes of cross-examination and would possibly prejudice
the jury if admitted. A conviction for drug possession is not necessarily relevant to
credibility and is potentially prejudicial in arousing sentiment against a witness. Wilson
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v. Union Pacific R.R. Co., 56 F.3d 1226, 1231 (10th Cir. 1995) (civil case; plaintiff as
witness). We thus reject defendant’s challenge to the ruling on Hannah’s conviction.
F.B.’s rape and burglary convictions that the district court also excluded, were
nearly ten years old at the time of trial. Federal Rule of Evidence 609(b) generally
directs that convictions more than ten years old are not admissible. In excluding this
evidence, the district court considered its relevance for impeachment purposes, relying in
part on “Teamsters” [sic].2 The district court concluded that the prior convictions lacked
probative value and were not necessarily relevant to F.B.’s credibility.
We have held that a prior robbery conviction is not automatically admissible under
Rule 609(a)(2). In Seamster, this court held that a defendant’s prior burglary convictions
offered as impeaching evidence were not automatically admissible, but that the district
court did not abuse its discretion by allowing cross-examination of the defendant
regarding those crimes. See United States v. Seamster, 568 F.2d 188, 191 (10th Cir.
1978); see also United States v. Mejia-Alarcon, 995 F.2d 982, 989 (10th Cir. 1993)
(same); Christmas v. Sanders, 759 F.2d 1284, 1292 (7th Cir. 1985) (sex crimes not
generally relevant to veracity).
2
The district court undoubtedly intended to refer to United States v. Seamster, 568
F.2d 188 (10th Cir. 1978). We reject defendant’s argument that the district court ruling
was based on nonexistent precedent; the court’s inadvertent error in referring to Seamster
does not detract from it as binding precedent.
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Defendant argues that United States v. Jefferson, 925 F.2d 1242, 1256 (10th Cir.
1995), treats a prior robbery conviction as relevant to credibility. Although Jefferson
upheld the admission of such evidence against a testifying defendant by a district court
which believed it relevant to credibility, it does not require us to conclude under the facts
before us that failure to allow use of the prior convictions of F.B. and Hannah for
impeachment was an abuse of the district court’s discretion.
Further, F.B.’s testimony did not relate to the robbery count on which defendant
was convicted, but only to the assault count for which defendant was acquitted. Allowing
F.B. to be impeached with this evidence would not have affected defendant’s robbery
conviction. Thus, even if the court’s ruling was error it was harmless in the
circumstances of this case. See Mejia-Alarcon, 995 F.2d at 990-91 (applying harmless
error analysis).
B
Defendant raises two related arguments regarding the district court’s Rule 609
rulings. He asserts that the district court abused its discretion in allowing Hannah to
vouch for F.B.’s credibility while refusing to allow the prior conviction impeachment
evidence, and that the Rule 609 evidentiary rulings deprived him of due process under the
Fifth and Sixth Amendments.
Federal Rule of Evidence 608(a) allows opinion evidence regarding a witness’
credibility after an attack on that witness’ credibility. Part of defense counsel’s cross-
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examination of Hannah was designed to undermine F.B.’s credibility. Defense counsel
specifically inquired about Hannah loaning a car to F.B., who did not return the vehicle to
Hannah when promised. On redirect the government clarified with Hannah that although
F.B. lied about returning the vehicle, Hannah did not consider Frank to be a “liar.” II R.
157-58. This type of testimony is of the nature contemplated by Rule 608 and did not
amount to improper vouching by a witness of another witness’ credibility. Further, F.B.’s
credibility was of no consequence to the vehicle robbery conviction.
Defendant also argues that the district court’s unfavorable Rule 609 decisions
deprived him of due process, because he could not effectively impeach the credibility of
F.B. and Hannah. We review limitations on cross-examination of witnesses for abuse of
discretion, United States v. Hinkle, 37 F.3d 576, 579 (10th Cir. 1994), and reverse only if
any error affected the substantial rights of the accused. United States v. Robinson, 978
F.2d 1554, 1560 (10th Cir. 1992) (reviewing court considers trial record as a whole to
determine if error substantially influenced the jury).
Defendant had the opportunity to cross-examine F.B. and Hannah extensively and
to challenge their credibility, consistent with his right of confrontation. Miranda v.
Cooper, 967 F.2d 392, 401 (10th Cir. 1992) (right of confrontation is not unlimited). The
court permitted use of a DWI conviction and two incidents in which F.B. lied to law
enforcement officers. We believe those prior convictions were of minimal value on
cross-examination, especially in light of the jury’s acquittal on the assault charge, the only
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one to which F.B.’s testimony was relevant. See United States v. Pedraza, 27 F.3d 1515,
1529 (10th Cir. 1994) (admissibility of evidence is a factor to consider in evaluating
whether cross-examination is proper). We thus reject defendant’s constitutional claims.
III
Defendant next argues that the government committed prosecutorial misconduct
that denied him a fair trial. We review the denial of a motion for mistrial on these
grounds for abuse of discretion. United States v. Gabaldon, 91 F.3d 91, 93-94 (10th Cir.
1996). If prosecutorial misconduct violates a defendant’s due process rights by depriving
him of a fair trial, we must reverse. Greer v. Miller, 483 U.S. 756, 765 (1987). The
alleged error, however, must be viewed in the context of the entire case. Gabaldon, 91
F.3d at 93-94.
Defendant contends that the government’s cross-examination of Etcitty led the jury
to believe Etcitty lied when he denied observing defendant threaten anyone with a knife,
or allowed the jury to speculate that defendant used a knife in another incident and thus
was prone to such violence. The government responds that its questions only addressed
defendant’s access to a kitchen knife on the day in question and, because the jury
acquitted defendant on the assault charge, they either did not credit F.B.’s testimony
describing the knife at his throat or dismissed that brief portion of Etcitty’s cross-
examination as irrelevant to the assault charge.
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Facts uncovered during the investigation--but not admitted as evidence at trial--
were that shortly after abandoning Hannah’s vehicle defendant engaged in an altercation
in which defendant cut David Boyd’s face with a kitchen knife. Defense counsel
obtained agreement from the government not to use that assault at trial.
Defendant used Etcitty as a witness primarily to contradict F.B.’s testimony
describing defendant’s assault and the absence of a threat by defendant. In cross-
examination the government sought to impeach Etcitty’s credibility as a defense witness
by attempting to reveal inaccuracies or inconsistencies between his testimony and an
earlier statement he gave to FBI special agent Stephen Kam. Kam interviewed Etcitty
after the robbery, and Kam’s interview notes included Etcitty’s recollection of the Boyd
assault. They stated that “ETCITTY stated that at some point STANLEY BEGAY must
have found it [the gun] along with one of his [Etcitty’s] mother’s kitchen knives inside his
mother’s residence.” Appellant’s Opening Brief, Ex. C. The government’s cross-
examination included inquiry as to Etcitty’s reference to his mother’s kitchen knives in
conjunction with defendant’s access to the gun allegedly used in commandeering
Hannah’s car. The prosecutor specifically asked if Etcitty mentioned kitchen knives to
Kam because “that was the knife which Stanley Begay held to the throat of Frank
Begay?” III R. 301. Etcitty then denied seeing anyone being threatened.
After reviewing the record as a whole, we hold the district court did not abuse its
discretion in denying the motion for a mistrial. Etcitty’s speculation about how defendant
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obtained a knife was not probative on the issue of robbing Hannah of his vehicle. Faced
with relatively weak evidence to support the charge that defendant assaulted F.B. while
driving Hannah’s vehicle, the prosecutor may have felt compelled to highlight the alleged
physical altercation between F.B. and defendant that preceded the charged assault. Only
F.B. testified that defendant held a knife to his throat; Hannah only corroborated the
assault with the vehicle. An acknowledgment by Etcitty that defendant had access to a
knife would support the inference that defendant held a knife to F.B.’s throat. This
logical, albeit tenuous, use for that evidence was not improper.
Further, that portion of Etcitty’s cross-examination was brief, and at best
ambiguous to a jury unaware of the subsequent assault on Boyd. The district court did
not abuse its discretion in denying the mistrial.
AFFIRMED.
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