United States v. Alexander D. McCord

Citations: 15 F.3d 1093; 1993 U.S. App. LEXIS 37645; 1993 WL 533463Docket: 92-50544

Court: Court of Appeals for the Ninth Circuit; December 22, 1993; Federal Appellate Court

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Ninth Circuit Rule 36-3 states that non-publication dispositions are not precedential and can only be cited under specific legal doctrines. In the case of United States v. Alexander D. McCord (No. 92-50544), McCord appealed his convictions for four counts of mail fraud, three counts of wire fraud, and one count of subscribing to a false tax return. He contended that the district court abused its discretion by (A) limiting cross-examination of rebuttal witness Dorthea Tomczyk, (B) excluding a tape recording related to her testimony and its transcript, and (C) denying motions for a mistrial. McCord also claimed he was deprived of a fair trial due to the trial judge's conduct.

The court affirmed the decision, noting that the restriction on cross-examination did not violate McCord's confrontation rights. The judge's discretion in limiting cross-examination was upheld, as long as the jury had adequate information to evaluate the witness's biases and motivations. The court emphasized that the trial court's decisions are generally not considered an abuse of discretion if they allow for sufficient jury insight into witness credibility.

Extensive limitations on cross-examination of key government witnesses have been upheld in previous cases, such as United States v. Garcia, where a trial court restricted inquiry into a witness's involvement in a murder but allowed questions regarding potential bias and motivation for testifying. Similarly, in United States v. Domina, limitations on questioning a witness about narcotics use were deemed appropriate when there was no evidence that the usage affected the testimony. Conversely, in Vargas, the court found an abuse of discretion when all cross-examination of a key witness was prohibited. In the current case, the trial court permitted extensive questioning of witness Tomczyk regarding her biases, motivations, and interactions with the government, while only limiting the method of questioning by prohibiting reading directly from a transcript. This approach met confrontation standards, with the court not abusing its discretion.

Additionally, McCord argued that the trial court improperly restricted cross-examination under Federal Rule of Evidence 403 by undervaluing the probative value of the tapes in relation to the unfair prejudice they could cause. The court has broad discretion to exclude evidence when its prejudicial impact outweighs its relevance, as established in case law. Here, the court determined that the tapes had minimal probative value given the damaging testimony already presented and that the nature of the questioning could mislead jurors, thus justifying their exclusion. McCord also contended that the district court erred in ruling a tape recording of a conversation inadmissible under Rule 403, which allows for exclusion of relevant evidence if its prejudicial impact outweighs its probative value. The review of such exclusions is for abuse of discretion, and the court's decision aligned with the principles of Rule 403.

Under Rule 403, district courts have significant discretion to exclude evidence if its probative value is substantially outweighed by potential prejudicial effects. In this case, the trial court excluded a recording after reviewing its transcript and arguments presented by counsel, determining it had minimal probative value and primarily served to attack the credibility of prosecution witness Tomczyk. The court concluded that introducing the tape would unfairly prejudice the government, as the jury might overvalue it. The appellate court found no abuse of discretion in the trial court's decision.

McCord's three motions for mistrial were also denied, with the district court's decisions reviewed for abuse of discretion. The court must consider all relevant circumstances rather than apply a rigid formula. Factors include whether errors are likely to cause reversal, if testimony unfairly prejudiced the defendant, and whether jury instructions can mitigate any harm. 

The first motion for mistrial related to prosecution remarks about client trust, which McCord argued misrepresented the law. The appellate court upheld the denial, noting jurors were instructed that opening statements were not evidence.

The second motion involved a prosecution expert's comments on McCord's client account management, which McCord claimed were irrelevant and prejudicial under Rule 403. The outcome of this second motion was not explicitly stated in the excerpt.

The trial court did not abuse its discretion by denying McCord's second mistrial motion, as the questioning of the expert witness regarding "churning" was appropriate and relevant to understanding McCord's knowledge and intent. McCord's third motion for a mistrial was also denied, stemming from a government inquiry about a client's health, despite prior agreement to avoid such questions. McCord had previously opened the door to this topic, and the jury was later provided with an explanation through stipulation, negating claims of unfair prejudice or prosecutorial bad faith.

McCord further argued that he was deprived of a fair trial due to alleged anti-defendant remarks and attitudes from the judge. Such claims are assessed under an abuse of discretion standard, with allegations reviewed for plain error if no objection was made during the trial. The judge's broad discretion in trial supervision means reversal is warranted only in cases of actual bias or the appearance of partiality. In this case, McCord's cited instances of judicial conduct—including a warning against frivolous mistrial motions and comments on defense counsel's questioning technique—were not deemed to exhibit bias or prejudice. The judge's remarks were made outside the jury's presence and were subject to curative instructions, leading the appellate court to conclude that there was no basis for finding the trial unfair.

McCord contends that the trial court's remark about a witness knowing "all about tricky lawyers" demonstrated an antagonistic tone that compromised the court's impartiality and belittled his counsel, thereby denying him a fair trial. However, McCord did not object to the comment, which the judge stated was made "for fun," indicating it was not meant to reflect hostility toward the defense. McCord further claims that this and other incidents cumulatively exhibited the trial court's bias in favor of the government; nonetheless, he did not formally object to the judge’s overall conduct during the trial. The court found that none of the cited incidents constituted an abuse of discretion, and no evidence suggested an anti-defendant bias in the trial court's behavior. The trial court effectively managed the trial and granted McCord adequate opportunity to present his case. The decision is affirmed unanimously without the need for oral argument, and the disposition is not suitable for publication, limiting its citation in future cases. The court also clarifies the standard for declaring a mistrial, stating that "manifest necessity" pertains to double jeopardy considerations rather than guiding the decision to declare a mistrial itself. The government challenges the timeliness of McCord's motion, but the court's findings on discretion negate the need to address this issue.