United States v. Joel Miller , 546 F. App'x 709 ( 2013 )

FILED
NOT FOR PUBLICATION DEC 02 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50534
Plaintiff - Appellee, D.C. No. 5:10-cr-00070-VAP-1
v.
MEMORANDUM*
JOEL CLEVE MILLER,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted November 8, 2013
Pasadena, California
Before: FISHER and CLIFTON, Circuit Judges, and SINGLETON, District
Judge.**
Joel Cleve Miller appeals his conviction for possession of an AK-47
machine gun in violation of 18 U.S.C. § 922(o)(1). Finding evidentiary error, we
vacate the conviction and remand for further proceedings.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James K. Singleton, Senior United States District Judge
for the District of Alaska, sitting by designation.
1. The district court abused its discretion by precluding Miller from calling
two witnesses to testify about their alleged extramarital affair. Their testimony
about the affair would have corroborated Miller’s testimony and bolstered his
defense that he was framed in retaliation for threatening to report the alleged affair
to military authorities. If the jurors believed the affair took place, they may have
been more likely to believe that Miller was framed, that the AK-47 was actually
Christopher Bruce’s and that Miller was unaware that the AK-47 was fully
automatic. Corroborating evidence about the affair also may have led the jury to
question the credibility of two important government witnesses, Tina Loewenberg
and Michael Stults. If Miller’s ex-wife was framing him, these witnesses, who
were her friends, may have been influenced to give false testimony. The excluded
evidence therefore would have been helpful to the defense.
The government has offered two theories upon which to sustain the
exclusion of the testimony, neither of which is persuasive. First, on this record,
there is no basis to conclude that Miller sought to call these witnesses for the
primary purpose of impeaching them with otherwise inadmissible evidence. See
United States v. Gilbert, 57 F.3d 709 (9th Cir. 1995) (per curiam); United States v.
Crouch, 731 F.2d 621 (9th Cir. 1984). Second, Miller did not seek to call these
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witnesses for the sole purpose of impeaching them, but rather to elicit substantive
evidence of the alleged affair, which would have bolstered his defense.
When we discover an error not of constitutional magnitude, we must reverse
unless there is a fair assurance of harmlessness or, stated otherwise, unless it is
more probable than not that the error did not materially affect the verdict. See
United States v. Gonzalez-Flores, 418 F.3d 1093, 1099 (9th Cir. 2005). The
burden to show the harmlessness of the error is on the government. See id. The
government has not satisfied its burden here. Evidence of the affair would have
bolstered Miller’s theory of the case and might have undermined the credibility of
two key government witnesses, including the only witness (Stults) who presented
direct evidence that Miller knew the AK-47 was fully automatic. The evidence of
guilt was not so overwhelming as to render the error harmless. Nor can we dismiss
the excluded testimony as cumulative: corroborating testimony is not cumulative
when it bolsters the defendant’s contested version of the facts. See United States v.
Ibisevic, 675 F.3d 342, 351 (4th Cir. 2012).
2. Because we hold that the error requires us to vacate Miller’s conviction,
we need not decide whether the error denied Miller his constitutional right to
present a defense. See United States v. Stever, 603 F.3d 747, 755 (9th Cir. 2010).
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3. We reject Miller’s argument that the district court committed reversible
error when it failed to compel the government to grant use immunity to two
witnesses. The record does not support the conclusion that the prosecution
intentionally caused these witnesses to invoke the Fifth Amendment privilege
against self-incrimination with the purpose of distorting the factfinding process, or
that “the prosecution granted immunity to a government witness in order to obtain
that witness’s testimony, but denied immunity to a defense witness whose
testimony would have directly contradicted that of the government witness, with
the effect of so distorting the fact-finding process that the defendant was denied his
due process right to a fundamentally fair trial.” United States v. Straub, 538 F.3d
1147, 1162 (9th Cir. 2008). Given that Ms. Miller and Bruce would have directly
contradicted government witnesses only on minor points, there was no denial of
due process.
VACATED AND REMANDED.
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