United States v. Stewart ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5734
WILLIAM E. STEWART,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Albert V. Bryan, Jr., Senior District Judge.
(CR-95-81-A)
Argued: June 6, 1996
Decided: July 17, 1996
Before WILKINSON, Chief Judge, MOTZ, Circuit Judge, and
CURRIE, United States District Judge for the
District of South Carolina, sitting by designation.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: William Benjamin Moffitt, MOFFITT, ZWERLING &
KEMLER, P.C., Alexandria, Virginia, for Appellant. Jack I. Hanly,
Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON
BRIEF: Helen F. Fahey, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Appellant William E. Stewart was convicted of converting govern-
ment property, 18 U.S.C. § 641, and of associated crimes of conspir-
acy, wire fraud, and mail fraud. He raises several contentions on
appeal, principally that the district court improperly restricted his
cross-examination of a government witness, and that testimony
adduced during the trial unfairly prejudiced his case. We affirm.
I.
This case involves the conversion of Digital Terrain Elevation Data
(DTED), which provides computerized imaging of the earth's surface.
The Defense Mapping Agency (DMA) produces DTED by digitizing
satellite imagery. The data has a variety of military uses and generally
is not available to the public. Department of Defense contractors may
be given access to DTED when necessary, but they are barred from
copying it. The DTED at issue in this case was being used by Cornell
University under such a contract.
Appellant Stewart was in the business of finding rare maps on
behalf of clients. In late 1992, Motorola Corporation sought Stewart's
assistance in locating maps of certain areas in Asia; Motorola wanted
to digitize the maps into a computer format for use in expanding its
cellular communications business. Stewart contacted Andrew Fox, a
graduate student at Cornell University whom he had met before, to
find out whether Cornell had the maps.
Fox discovered that Cornell had DTED for areas of Asia (and else-
where) in which Motorola was interested. According to Fox, Stewart
was made fully aware of the restrictions on circulating DTED. Stew-
art and Fox nevertheless set out to copy the DTED and sell it to
Motorola. Over a period of months, Fox secretly transferred most of
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the DTED at Cornell onto tapes, and Stewart paid Fox for his
expenses. Stewart sent Motorola an index of the available DTED, a
price list, and some sample tapes. Motorola, though, had difficulty
reading the tapes, and so while it expressed interest in buying the
data, it had not finalized a purchase at the time of Stewart's arrest.
Stewart also approached other potential buyers in 1993. One was
a firm in Seattle, Washington, to whom Stewart sent a sample tape
that Fox had copied. An employee of the firm, upon discerning that
the tape contained DTED, notified DMA. The Defense Criminal
Investigative Service (DCIS) then became involved. DCIS arranged
for the firm to purchase a tape containing DTED for an area in China,
for which Stewart charged $1750. DCIS also used an undercover
agent to buy two more tapes from Stewart for $3800.
On November 22, 1993, DCIS agents searched Stewart's and Fox's
residences. They discovered many of the tapes containing the DTED
copied from Cornell. At Stewart's residence, agents also found a doc-
ument showing that he planned to sell the data to Motorola for
$540,000. In the course of searching Fox's residence, agents recov-
ered some photographs of naked children. In a pre-trial motion, the
government sought to bar any attempt to impeach Fox's credibility
based on the photos, and the district court agreed.
Trial began on May 15, 1995. Fox testified on behalf of the govern-
ment pursuant to a plea agreement, describing his and Stewart's
unlawful conduct in detail, and alleging that Stewart fully understood
the illegality of copying and selling DTED but wanted to pursue the
enterprise in any event. Stewart denied any such awareness, testifying
that, except for an initial question to Fox at the outset of their deal-
ings, he never asked anyone whether copying DTED and profiting
substantially from its sale was unlawful (even after realizing its siz-
able value). Stewart, though, admitted that he hoped to sell data that
he obtained at little cost for $540,000. The jury convicted Stewart of
conversion, and also of conspiracy, wire fraud, and mail fraud.
II.
On appeal, Stewart claims that the district court erred in barring
any questioning of Fox about the pictures recovered at Fox's resi-
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dence. The court's restriction, Stewart urges, violated his right to
cross-examination, because it prevented him from exposing a possible
motivation for Fox's testimony -- avoiding prosecution for possess-
ing child pornography. See Delaware v. Van Arsdall, 475 U.S. 673
(1986).
We find this argument unpersuasive for several reasons. Initially,
the government denies that it ever contemplated bringing charges
against Fox based on the pictures, and there is simply no evidence in
the record to suggest otherwise. More significantly, the argument
Stewart now makes was not fairly presented to the district judge. The
pretrial motions addressing the photographs debate their use to
impeach Fox's credibility, not to question his motivation in testifying.
The government's initial motion to prohibit any questioning about the
photos was based solely on the ground that it was not probative of
truthfulness. Fed. R. Evid. 608. Stewart, responding that the question-
ing should be allowed, likewise stressed its probative value on credi-
bility under Rule 608. While his motion also contained some other
statements regarding the photos, a fair reading of the motion reveals
the unmistakable theme that Stewart sought to use the pictures to
question Fox's character for truthfulness.*
This is borne out by comments of the parties and the judge in a pre-
trial hearing. Stewart's counsel explained his reasons for wanting to
cross-examine Fox about the photographs in this manner:
If you look solely . . . at pornographic pictures, you proba-
bly would say it doesn't meet the Rule 608 standard in terms
of truthfulness or bearing on truthfulness. However, I think
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*Specifically, after discussing why the "photographs may very well
meet the evidentiary standard of Rule 608 and be proper impeaching
material," Stewart's motion also states that"when Andrew Fox was a
defendant, the materials seized were defined by the government agents
as ``pornographic materials,' but after Mr. Fox's Rule 11 Plea Agreement
and cooperation in the prosecution of Mr. Stewart, they now become just
photographs of naked children and thus no longer pornographic." Stewart
did not meaningfully expand upon this observation. His motion then con-
cludes by reemphasizing its general argument "that these pornographic
materials are very relevant because of the credibility issue in this case."
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that if you look at the community standard, . . . anybody that
would have pictures like that . . . [w]ould probably not tell
the truth. So, the underlying basis -- What I am suggesting
is that we ought to . . . have a voir dire to determine how
he got the pictures.
In response, the district judge said "I am not going to do that. It
doesn't have anything to do with this. Whatever you think of porno-
graphic material, it doesn't have to do with credibility."
The district court understandably interpreted Stewart's argument as
related to impeaching Fox's credibility, and its decision to bar any
such use of the photos was within its discretion. Appellant cannot
now obtain reversal on the ground that he would have used the photo-
graphs to question Fox's motive in testifying. We agree with the First
Circuit that it would be
incongruous to hold that the trial judge committed error by
prohibiting cross-examination to show bias when neither
counsel nor the context in which he asked his question made
his purpose clear to the judge. Reversal for denial of the
right to show bias on cross-examination thus requires both
an affirmative assertion of that right and a knowing decision
by the judge to deny or limit it.
Cheek v. Bates, 615 F.2d 559, 563 (1st Cir.), cert. denied, 446 U.S.
944 (1980); United States v. Garcia, 531 F.2d 1303 (5th Cir.), cert.
denied, 429 U.S. 941 (1976).
The district judge properly gave Stewart ample opportunity to
cross-examine Fox. Stewart questioned Fox extensively about his
motive in testifying in this case -- he asked Fox about his guilty plea
to one count of conversion, including his eligibility for a downward
departure in sentence for substantially assisting the government.
U.S.S.G. § 5K1.1. Fox was questioned about why certain charges
were not brought against him, what maximum penalties he faced, why
the government recommended a downward departure, and why he
avoided a prison sentence. Fox's motivation in testifying thus was
squarely placed before the jury. See United States v. Hamilton, 48
F.3d 149 (5th Cir. 1995) (no error in excluding evidence of past crim-
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inal proceedings against government witness when ample other
impeachment evidence was introduced).
For these reasons, we believe the trial was a fair one and that Stew-
art received the benefit of a vigorous defense.
III.
Stewart also alleges that the district court allowed the government
to make impermissible references to the military uses of DTED.
There was never any suggestion, Stewart points out, that he had
attempted to compromise national security. As a result, he asserts, tes-
timony regarding DTED's military applications only served to
unfairly prejudice him. And the district court, Stewart observes, had
agreed in a pretrial hearing to cut short any excessive testimony on
DTED's military uses.
We agree with Stewart that there is no evidence he attempted to
compromise national security. In our view, however, the district court
did not commit reversible error in allowing occasional references to
DTED's military applications. The government is entitled to some lat-
itude in describing the context of the charges against a defendant,
including their seriousness. See United States v. Dominguez, 835 F.2d
694, 700 (7th Cir. 1987). Here, the comments of the prosecutor and
certain witnesses on DTED's military uses did not rise to the level of
reversible error or call into question the essential fairness of the trial.
IV.
We have reviewed appellant's remaining assignments of error, and
find them to be without merit. For the foregoing reasons, the judg-
ment is hereby
AFFIRMED.
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