U.S. v. Buck, 96-10569

• Decision Date: 17 December 1997
• Docket Number: No. 96-10569,96-10569
• Citation: 133 F.3d 929
• Parties: NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. UNITED STATES of America, Plaintiff-Appellee, v. Tony BUCK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 929

133 F.3d 929

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee, v. Tony BUCK, Defendant-Appellant.

No. 96-10569.

United States Court of Appeals, Ninth Circuit.

Dec. 17, 1997.

Before: HUG, Chief Judge, WALLACE and HALL, Circuit Judges.

MEMORANDUM ^*

Defendant Tony Buck ("Buck") appeals from his conviction on six courts including Assault with Intent to Steal Property of the United States, in violation of 18 U.S.C. § 2114(a), Use of a Firearm During and in Relation to a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1) & (2), and Attempted Murder of a Postal Employee, in violation of 18 U.S.C. § 1114, stemming from two postal carrier robberies on September 12, 1995, and September 19, 1995. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I

Buck first contends that the district court under Rule 404(b) impermissibly admitted as "other crimes" evidence Buck's statement "that they used to do it all the time in California" in reference to postal carrier robberies. We disagree.

Whether evidence is other crimes evidence within the meaning of Rule 404(b) is a question of law we review de novo. United States v. Soliman, 813 F.2d 277, 278 (9th Cir.1987). Evidence is not other crimes evidence subject to Rule 404(b) when "the evidence concerning the ['other'] act and the evidence concerning the crime charged are inextricably intertwined." Id. at 279 (citation omitted).

We hold that Buck's statement about his prior criminal activity in California was "inextricably intertwined" with the charged crimes. Buck made the statement "that they used to do it all the time in California" during a conversation with codefendant Albert Times about their mutual need for money. This statement was immediately followed by a discussion about the possibility of robbing a postal carrier and eventually two actual robberies. This statement was particularly linked to the planning stages of the September 19th postal carrier robbery committed by Buck and Times--Buck's statement helped persuade Times that he had experience in committing this crime and that it was not a difficult crime to commit. Therefore, it is not other crimes evidence subject to Rule 404(b), but direct evidence properly admitted.

Even if the statement were inadmissible other crimes evidence under Rule 404(b), to admit it would have been harmless error. "Errors which do not rise to constitutional dimensions ... are not harmless unless it is more probable than not that the erroneous admission of the evidence did not affect the jury's verdict." United States v. Hill, 953 F.2d 452, 458 (9th Cir.1991). In this case, the evidence against Buck was considerable: Times testified that he drove the getaway car for Buck and that Buck admitted to shooting the mailman on September 19th; witnesses Araiza and Damwijk selected Buck's photo from a lineup and identified him in court as one of the men they saw in the vicinity of the robbery; Schuh testified that Buck admitted to her his participation in the robbery; and the victim of the attempted murder identified Buck in court as the man who shot him. In light of the extensive evidence against Buck, it is more probable than not that the admission of his statement did not affect the jury's verdict and is therefore harmless error.

II

Buck next contends that the district court violated his Sixth Amendment right to cross-examine adverse witnesses by prohibiting Buck from cross-examining cooperating codefendant Albert Times about Times' prior convictions. A court's decision to limit cross-examination of a witness is reviewed for an abuse of discretion, "considering whether the 'jury is otherwise in possession of sufficient information upon which to make a discriminating appraisal of the subject matter at issue.' " United States v. Brown, 936 F.2d 1042, 1048-49 (9th Cir.1991) (citation omitted). "The right to cross-examine adverse witnesses, stemming from the confrontation clause, is 'especially important with respect to accomplices or other witnesses who may have substantial reason to...