U.S. v. Keithan, 84-1260
| Decision Date | 19 December 1984 |
| Docket Number | No. 84-1260,84-1260 |
| Citation | 751 F.2d 9 |
| Parties | UNITED STATES of America, Appellee, v. Chris KEITHAN, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
Steven A. Sussman, Boston, Mass., for defendant, appellant.
Maurice R. Flynn, III, Asst. U.S. Atty., Boston, Mass., with whom William F. Weld, U.S. Atty., Boston, Mass., was on brief, for appellee.
Before CAMPBELL, Chief Judge, ALDRICH and TIMBERS, * Senior Circuit Judges.
Chris Keithan appeals from a judgment of conviction, entered March 20, 1984 after a jury trial in the District of Massachusetts, convicting her of eight counts of mail fraud and aiding and abetting mail fraud in violation of 18 U.S.C. Secs. 1341 and 2 (1982). She was sentenced to fifteen months in prison, of which five months are to be served and the balance of the sentence is to be suspended. She also was ordered placed on probation for three years following her release from prison. Execution of the sentence has been stayed pending appeal. We affirm.
Essentially, the indictment charged that Keithan and codefendant William Burhoe had defrauded numerous elderly people in the sale of insurance policies. Burhoe, who also was convicted in the instant case, withdrew his appeal after being sentenced to three years in prison upon his plea of guilty in a related case. There was evidence from which the jury could have found that Keithan and Burhoe engaged in a variety of fraudulent practices, including acceptance of money meant for insurance premiums and then stealing it; selling insurance in disregard of insurance already in effect; making false claims as to the coverage of specific insurance policies; and continuing to solicit insurance payments after defendants no longer were licensed or after they had been terminated as insurance salesmen.
On appeal, Keithan claims that the district court committed reversible error in its evidentiary rulings in three respects: (1) limiting cross-examination of government witness Richard Keller, (2) allowing the taking and use at trial of videotaped depositions of two other government witnesses, and (3) permitting the government to introduce evidence which it is claimed had not been disclosed to Keithan's counsel prior to its introduction, in violation of the court's pre-trial discovery order. We shall address each of these claims of error seriatim.
As part of its case in chief, the government called Richard Keller to testify to a conversation he had had with Burhoe in 1983. During this conversation Burhoe explained a plan that he and Keithan had devised, following Keithan's termination by one insurance company, to sell as much insurance as possible; to send the company a worthless check; to keep the premiums for themselves; and then to leave town. Keithan's counsel cross-examined Keller, called his own witness to attack Keller's credibility, and finally recalled Keller on the last day of the trial to question him on the issue of bias.
Keller had been convicted of substantially similar charges as those for which Keithan was being tried. He was released from prison in 1982. While in prison, Keller wrote two letters to a friend, stating his belief that, due to the government's apparent decision to concentrate its resources on "drug cases", others in the insurance fraud racket might escape prosecution. He also expressed his regret at having pled guilty when he did. Keithan's counsel offered these letters as proof of Keller's bias in wanting to see other people go to jail for the crime for which he went to jail. Keithan claims that the district court's exclusion of the letters as irrelevant improperly limited her cross-examination of Keller. We disagree.
It is axiomatic that the trial court is given wide discretion in controlling the scope of cross-examination. Fed.R.Evid. 611(b); United States v. Goguen, 723 F.2d 1012, 1019 n. 9 (1st Cir.1983); United States v. Brown, 603 F.2d 1022, 1026 (1st Cir.1979). To show an abuse of discretion, a defendant must show that the restrictions imposed upon his cross-examination clearly were or could have been prejudicial. Harris v. United States, 367 F.2d 633, 636 (1st Cir.1966), cert. denied, 386 U.S. 915 (1967). Cf. United States v. Honneus, 508 F.2d 566, 572 (1st Cir.1974), cert. denied, 421 U.S. 948 (1975). There has been no such showing here. As the court here correctly observed, Keller's desire to see other guilty persons convicted is the way every worthwhile citizen would feel. It is difficult to imagine how Keithan was prejudiced by this restriction on the otherwise wide latitude accorded her by the court in cross-examining Keller.
We hold that the court did not abuse its discretion in excluding Keller's letters.
Keithan challenges the propriety of taking and allowing the use of videotaped depositions at the trial of this criminal case. Our inquiry with respect to this claim of error is a bifurcated one: the propriety of taking the depositions and the propriety of using the depositions at trial. United States v. Mann, 590 F.2d 361, 365 (1st Cir.1978).
Turning first to the propriety of taking the depositions in the instant case, Fed.R.Crim.P. 15(a) in relevant part provides:
"Whenever due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved for use at trial, the court may upon motion of such party and notice to the parties order that testimony of such witness be taken by deposition...."
The decision whether to grant or deny a motion to take the deposition of a proposed witness for use at a criminal trial is committed to the discretion of the district court. We have held that this discretion is not broad, and should be exercised carefully. United States v. Mann, supra, 590 F.2d at 365. In the instant case government witnesses Frank and Hattie Robidoux were of advanced age. They...
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