U.S. v. Peltier
| Decision Date | 23 November 1982 |
| Docket Number | No. 80-1095,80-1095 |
| Citation | 693 F.2d 96 |
| Parties | 12 Fed. R. Evid. Serv. 119 UNITED STATES of America, Plaintiff-Appellee, v. Leonard PELTIER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Bruce Ellison, Rapid City, S.D., for defendant-appellant.
Lourdes Baird, Asst. U.S. Atty., Los Angeles, Cal., argued, for plaintiff-appellee; Andera Sheridan Ordin, U.S. Atty., Los Angeles, Cal., on brief.
Appeal from the United States District Court for the Central District of California.
Before GOODWIN and ANDERSON, Circuit Judges, and GILLIAM *, District Judge.
Leonard Peltier appeals his conviction of escape from a federal prison in violation of 18 U.S.C. Sec. 751, and of being a felon in possession of a firearm in violation of 18 U.S.C.App. Sec. 1202(a). Peltier contends that he was denied adequate cross-examination of a government witness, and that he was improperly restricted in presenting his theory of defense.
In an unpublished decision on March 20, 1981, we remanded for a new trial because of the trial court's restriction of the defendant's right to cross-examine a government witness. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). The government petitioned for rehearing. The memorandum of March 20, 1981, was withdrawn and the cause was remanded to the district court for the purpose of supplementing the record on the limited question whether the abbreviation of cross-examination was harmless error. Supplemental briefs were received. After reviewing the entire record of the trial and the supplemental materials filed by the government and by the defendant, we are satisfied that while the trial court appeared to have cut short the cross-examination of a witness without an adequate reason in the record for having done so, there was no prejudice to the defendant; and the supplemental materials made it clear that error was harmless beyond a reasonable doubt.
The trial judge refused in Peltier's case to permit cross-examination that would have shown bias on the part of an FBI agent against Peltier. Ordinarily, a defendant is always allowed to bring out facts tending to show bias or prejudice on the part of a prosecution witness. But in this case, the witness testified only to facts material to counts and defendants not involved in this appeal. Because the agent testified to nothing relevant to the case against Peltier, the denial of Peltier's right to show that the agent had reason to be biased against Peltier was harmless. Moreover, the facts from which an inference of bias against Peltier could have been drawn were brought out by other counsel, cross-examining on behalf of other defendants. Cf. United States v. Willis, 647 F.2d 54 (9th Cir.1981), where the denial of the right of cross-examination was prejudicial.
The record reveals a lengthy and abrasive contest between opposing counsel throughout the trial over the extent to which questions of witnesses were within or without the proper scope of cross-examination. The defense in Peltier's behalf attempted to bring up during cross-examination a wide range of issues that had not been addressed during the direct examination. The production of the government's evidence was prolonged by aggressive cross-examination, and the record reveals that at times the presiding judge felt it necessary to abbreviate the cross-examination. What originally appeared to be an undue restriction upon cross-examination turned out, upon the whole record, to be explainable in terms that are fully consistent with a fair trial and no ground for reversal is revealed.
A question not addressed in our original disposition remains. One of the theories of the defense was that the armed jail break was the product of duress. Peltier argued in effect that a jail break was his only possible response to his fear that the United States government...
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