United States v. Schellhaas ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-20601
Summary Calendar
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DAVID MICHAEL SCHELLHAAS,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Texas
USDC No. H-99-CR-480-1
_________________________________________________________________
April 12, 2001
Before JOLLY, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
David Schellhaas appeals his conviction and sentence for two
counts of wire fraud and one count of engaging in a monetary
transaction in criminally derived property. See 18 U.S.C.
§§ 1343, 1957. Schellhaas argues that the district court
reversibly erred, pursuant to FED. R. EVID. 608(b) and pursuant to
the Constitution, in excluding for cross-examination of witness
Steven King the evidence concerning the SEC complaint filed against
King and his Internet company. Schellhaas argues that the SEC
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
evidence was relevant to contradicting King’s testimony that he was
not a savvy investor and that he could not afford to lose the
amount of money at stake in the investment with Schellhaas. He
also contends that King could have been shading his trial testimony
in order to avoid criminal liability for his conduct, presumably
his conduct in the SEC matter.
Schellhaas has not demonstrated abuse of discretion by the
district court. See United States v. Jensen, 41 F.3d 946, 957 95th
Cir. 1994). The SEC complaint was a civil matter, not criminal,
involving allegations of fraud by King and his Internet business
from the failure to disclose fully certain information. The
complaint resulted in a dismissal by the district court in Florida
and a settlement between the parties in which King agreed to pay
approximately $300,000 in disgorgement, penalty, and interest
without admitting or denying any of the allegations. Under Rule
608(b), the documents themselves were inadmissable. The rule only
permits discretionary inquiry into collateral matters concerning a
witness’ truthfulness or untruthfulness. See Jensen, 41 F.3d at
957-58. The SEC litigation resulted neither in findings of fact
nor in admissions of fact from King about his business practices.
Thus, the probative value of an inquiry into the collateral matter
is marginal at best and could have resulted in distracting the
jury’s attention from material factual matters to complicated, SEC
2
regulatory matters. The district court did not abuse its
discretion. See Thorn, 950 F.2d 980, 986 (5th Cir. 1992); see also
United States v. Morrison, 98 F.3d 619, 628 (D.C. Cir. 1996) (no
abuse of discretion in district court’s view that the mere filing
of a complaint is not probative of a witness’ truthfulness).
Schellhaas argues that the district court’s exclusion of the
SEC matter violated his rights under due process and the
Confrontation Clause. Schellhaas did not base his objections in
the district court on constitutional grounds. Therefore, review is
for plain error. See United States v. Calverley, 37 F.3d 160, 162-
64 (5th Cir. 1994) (en banc). No error, plain or otherwise,
ensued. Because the court did not abuse its discretion under the
Federal Rules of Evidence, constitutional error was not implicated.
See United States v. Thorn, 917 F.2d 170, 175-76 (5th Cir. 1990).
A F F I R M E D.
3