Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Argued and Submitted March 11, 1997.
Appeal from the United States District Court for the District of Arizona, No. CV-92-00223-JMB; Richard M. Bilby, Chief District Judge, Presiding.
Before: CHOY, BRUNETTI, and FERNANDEZ, Circuit Judges
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Arizona state prisoner Marvin D. Tabron appeals the district court's denial of his petition for habeas corpus. A state court jury convicted Tabron of two counts of child molestation on the basis of evidence that included videotaped interviews and videotaped depositions of the children. Tabron claimed in the district court that the admission of the videotaped interviews violated his Confrontation Clause rights. The district court rejected that argument because the videotaped interviews were merely cumulative of the videotaped deposition testimony. It therefore denied his petition. We affirm.
U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him....").
Confrontation Clause violations, like other constitutional trial Errors, are subject to harmless error analysis. See Coy v. Iowa, 487 U.S. 1012, 1021-22, 108 S.Ct. 2798, 2803, 101 L.Ed.2d 857 (1988). An error is harmless unless it had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993) (citation omitted). We have previously found the denial of confrontation rights to be harmless when the erroneously admitted evidence was merely cumulative. See, e.g., United States v. Dees, 34 F.3d 838, 844-45 (9th Cir.1994); United States v. Baker, 10 F.3d 1374, 1405-06 (9th Cir.1993); Swan v. Peterson, 6 F.3d 1373, 1383 (9th Cir.1993). Tabron never argued to the district court that the videotaped interviews were not cumulative to the depositions. And, he failed to raise that argument in this court until he filed his supplemental reply brief. He has thus waived the argument that the videotaped interviews were not cumulative to the depositions, both by failing to raise it in a timely fashion in this court, see United States v. Ullah, 976 F.2d 509, 514 (9th Cir.1992), and by failing to raise it at all in the district court, see Duckett v. Godinez, 67 F.3d 734, 743 (9th Cir.1995), cert. denied, 517 U.S. 1158, 116 S.Ct. 1549, 134 L.Ed.2d 651 (1996); Stange v. United States Parole Comm'n, 875 F.2d 760, 761 n. 1 (9th Cir.1989); Willard v. California, 812 F.2d 461, 465 (9th Cir.1987). Once it found that the videotaped interviews were cumulative to the videotaped depositions, the district court did not err when it decided that any Confrontation Clause violation which occurred when the interviews were admitted was harmless.
Tabron argues for the first time on appeal that admission of the videotaped depositions also violated his Confrontation Clause rights. He did not make that claim in his petition before the district court. While he did allude to his lack of presence at the videotaped depositions in his reply brief in the district court, he did not, even then, claim that admission of those depositions violated his Confrontation Clause rights. The issue is therefore waived on appeal. Moreover, as far as we can tell from the record before us, he did not object to use of the depositions in his state court trial and has never argued to the state courts that their use violated the Confrontation Clause.
This may raise procedural default issues, but we do not decide those. See Noltie v. Peterson, 9 F.3d 802, 804-05 (9th Cir.1993); see also Martinez-Villareal v. Lewis, 80 F.3d 1301, 1306 (9th Cir.1996). The district court did mention that Tabron was present at the videotaped depositions, but we see no reason or basis for that unnecessary statement, and we hold that it should have no binding effect in any further proceedings.
AFFIRMED.