United States v. Larry Robinson

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Aug. 11, 2009
No. 08-16277 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00005-CR-1-JTC-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LARRY ROBINSON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 11, 2009)
Before DUBINA, Chief Judge, BIRCH and HULL, Circuit Judges.
PER CURIAM:
Appellant Larry Robinson appeals his conviction for being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On appeal,
Robinson argues that the district court improperly admitted evidence of his prior
convictions under Federal Rule of Evidence 404(b). Robinson also contends that
the district court violated his Sixth Amendment rights and abused its discretion by
not allowing him to cross-examine the arresting officer on a prior incident of
alleged untruthfulness.
A district court's evidentiary rulings are reviewed for abuse of discretion.
United States v. Breitweiser, 357 F.3d 1249, 1254 (11th Cir. 2004). "Where the
defendant is permitted to conduct sufficient cross-examination to satisfy sixth
amendment requirements, the scope of any further cross-examination is within the
sound discretion of the trial court and the trial court's decision will not be disturbed
on review absent an abuse of discretion." United States v. Machado, 804 F.2d
1537, 1545 (11th Cir. 1986).
To convict a defendant of being a felon in possession of a firearm under 18
U.S.C. § 922(g)(1), the government is required to prove beyond a reasonable doubt
that (1) the defendant was a convicted felon; (2) he knowingly possessed a firearm;
and (3) the firearm was in or affected interstate commerce. United States v.
Deleveaux, 205 F.3d 1292, 1296-97 (11th Cir. 2000). Possession can be actual or
constructive, proven via direct or circumstantial evidence. United States v. Greer,
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440 F.3d 1267, 1271 (11th Cir. 2006).
When a defendant pleads "not guilty" to being a felon in possession, he
places at issue the element of his knowing possession, which the government then
has the burden of proving beyond a reasonable doubt. United States v. Jernigan,
341 F.3d 1273, 1281 n.7 (11th Cir. 2003). To prove knowing possession, the
government may introduce a prior act into evidence, provided that the requirements
of Rule 404(b) are met. Id. at 1280. Rule 404(b) provides in relevant part:
"Evidence of other crimes, wrongs, or acts is not admissible to prove the character
of a person in order to show action in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident . . . ."
Fed. R. Evid. 404(b). We employ a three-prong test to determine the admissibility
of evidence under Rule 404(b): (1) the evidence must be relevant to an issue other
than the defendant's character; (2) there must be sufficient proof so that a jury
could find that the defendant committed the extrinsic act; and (3) the evidence's
probative value cannot be substantially outweighed by its undue prejudice.
Jernigan, 341 F.3d at 1280.
We conclude from the record that the district court properly analyzed the
Rule 404(b) evidence, admitted the prior convictions for a permissible reason, and
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took affirmative steps to limit any resulting prejudice to Robinson. We therefore
conclude that the district court did not abuse its discretion by admitting the prior
convictions into evidence.
Specific instances of conduct, "if probative of truthfulness or untruthfulness,
[can] be inquired into on cross-examination of the witness ... concerning the
witness' character for truthfulness or untruthfulness...." Fed. R. Evid. 608(b).
However, "[s]ubject to the Sixth Amendment, the district court has the
discretionary authority to limit cross-examination." United States v. Beale, 921
F.2d 1412, 1424 (11th Cir. 1991). The right to full cross-examination when
applied to the government's star witness or a witness who provides an essential link
in the government's case is important, United States v. Lankford, 955 F.2d 1545,
1548 (11th Cir. 1992), but not without limitation, as the Sixth Amendment “only
protects cross-examination that is relevant.” United States v. Lyons, 403 F.3d
1248, 1255 (11th Cir. 2005) (internal quotation marks omitted & emphasis added).
However, even relevant evidence "may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence." Fed. R. Evid. 403.
When an officer suspected of wrong-doing is cleared, information
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concerning those investigations has little if any probative value. United States v.
Taylor, 417 F.3d 1176, 1178–79 (11th Cir. 2005). Unproven allegations have “the
obvious potential to cause serious and unfair prejudice to the government." Id. at
1179-80 (quoting United States v. Novaton, 271 F.3d 968, 1007 (11th Cir. 2001)).
After reviewing the record and reading the parties’ briefs, we conclude that
the district court properly limited the cross-examination of Officer Stack because
previous incidences of alleged misconduct were unproven and, thus, were
irrelevant and unduly prejudicial to the government. Accordingly, we affirm
Robinson’s conviction.
AFFIRMED.
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