United States v. Francisco Garcia-Gastelum ( 2016 )

FILED
NOT FOR PUBLICATION
MAY 23 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10123
Plaintiff - Appellee, D.C. No. 4:14-cr-00507-RCC-
DTF-1
v.
FRANCISCO GARCIA-GASTELUM, MEMORANDUM*
AKA Francisco Garcia,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, Chief District Judge, Presiding
Submitted May 10, 2016**
San Francisco, California
Before: FARRIS, O’SCANNLAIN, and CHRISTEN, Circuit Judges.
Francisco Garcia-Gastelum appeals his conviction for illegal reentry by
challenging the trial judge’s decision, over objection, to permit the prosecution to
ask three questions to law enforcement witnesses on direct examination which
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Garcia-Gastelum argues were impermissible leading questions. We have
jurisdiction over an appeal from the district court’s entry of final judgment against
Garcia-Gastelum pursuant to 28 U.S.C. § 1291 and we AFFIRM.
We review a district court’s decision to allow a leading question for abuse of
discretion. United States v. Castro-Romero, 964 F.2d 942, 943 (9th Cir. 1992) (per
curiam). Federal Rule of Evidence 611 regulates the use of leading questions in
federal court. The rule states that “leading questions should not be used on direct
examination except as necessary to develop the witness’s testimony.” Fed. R. Evid.
611(c). The district court is afforded broad discretion under this rule to permit the
use of leading questions on direct examination. Miller, 885 F.2d at 514. Courts
have recognized the appropriateness of allowing leading questions on direct
examination to establish “undisputed preliminary matters” or to elicit information
that does not substantially expand or alter earlier testimony elicited through non-
leading questions. Fed. R. Evid. 611, Advisory Committee Notes (1972); Miller,
885 F.2d at 515. Reversal on the basis of improper leading questions is only
appropriate if the district court’s ruling “amounted to, or contributed to, the denial
of a fair trial.” Miller v. Fairchild Indus. Inc., 885 F.2d 498, 514 (9th Cir. 1989) (as
amended) (quoting Cleary, ed., McCormick on Evidence at 12).
2
Even assuming the three questions Garcia-Gastelum challenges were leading
questions—and it is disputable whether Question 1 and Question 3 was
leading—none of the challenged questions were improper. Use of these questions
did not prejudice proceedings to the extent that the defendant did not receive a fair
trial. Questions 1 and 3 established an undisputed preliminary matter, and Question
2 elicited information that related to an undisputed matter previously explored in
detail on cross examination. It was not an abuse of discretion by the district court
to permit the prosecution to ask these three questions on direct examination.
Rather, it was within the sound discretion of the district court to allow these
questions as necessary to develop the witnesses’ testimony.
AFFIRMED.
3