Opinion
No. 06-50081.
Argued and Submitted January 9, 2007 Pasadena, California.
February 16, 2007.
Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding. D.C. No. CR-05-00376-MLR.
Before: O'SCANNLAIN, KLEINFELD, and SMITH, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
James Michael Jerra appeals from his jury-trial conviction for subscribing to and filing false tax returns in violation of 26 U.S.C. § 7206(1). Jerra contends that the district court abused its discretion in making several evidentiary rulings, denying his motion for a change of venue, and excusing a juror. We find that the district court committed a number of evidentiary errors that, taken together, deprived Jerra of a meaningful opportunity to present a complete defense. Because we are unable to conclude that these errors were harmless, we vacate and remand for a new trial.
I.
We review a district court's evidentiary rulings for abuse of discretion. United States v. Estrada, 453 F.3d 1208, 1213 (9th Cir. 2006). "Under the abuse of discretion standard, we reverse where we have a definite and firm conviction that the district court committed a clear error of judgment." United States v. Finley, 301 F.3d 1000, 1007 (9th Cir. 2002) (internal quotation marks omitted).
II.
The district court abused its discretion in permitting Richard Leatherwood to testify that Jerra had a temper and a gambling habit, carried a weapon, and pelted cars with rotten eggs when drivers cut him off. This testimony is evidence of Jerra's bad character and whatever probative value it had was substantially outweighed by the risk of prejudice it posed. See FED. R. EVID. 403, 404.
The district court also abused its discretion in limiting Jerra's cross-examination of Leatherwood. Jerra's relationship with Leatherwood was relevant to his defense. By sustaining every government objection to Jerra's cross-examination of Leatherwood concerning business dealings they had in the 1990s, the district court thwarted Jerra's attempt to effectively cross-examine Leatherwood. See United States v. Lo, 231 F.3d 471, 482 (9th Cir. 2000) ("[W]e review a trial court's decision to limit the scope of cross-examination for abuse of discretion, and will find a Confrontation Clause violation only if the trial court's ruling limits relevant testimony, . . . prejudices the defendant . . . and denies the jury sufficient information to appraise the biases and motivations of the witness." (internal quotation marks omitted)).
Most significantly, the district court excluded, without exception, every piece of written evidence offered by the defense. This was a clear abuse of discretion. The district court erred in excluding the following defense exhibits: (1) an employment contract signed by Jerra and his business associate Alexander Mandeville (Defense Exhibit 101), (2) the personal income tax return for 2002 that Jerra intended to file (Defense Exhibit 105), (3) a schedule of payroll taxes to be paid on Jerra's behalf (Defense Exhibit 110), and (4) the Jandel Corporation's income tax returns filed in September 2003 (Defense Exhibit 112). These exhibits were relevant to Jerra's defense theory and admissible as duplicates under Federal Rule of Evidence 1003. On remand, if Jerra offers, authenticates, and otherwise lays a proper foundation for Defense Exhibits 101, 105, 110 and 112, the district court should admit the exhibits into evidence. See FED. R. EVID. 901. We particularly note that "[a] duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original." Fed.R.Evid. 1003.
We hold that these errors, taken together, were prejudicial to Jerra. The district court excluded all defense written evidence, yet permitted the government to introduce all of its evidence against Jerra. The exclusion of critical pieces of defense written evidence cannot be deemed harmless.
III.
We reject Jerra's claim that the district court abused its discretion in (1) denying his motion for a change of venue, (2) denying his motion in limine to admit evidence of Richard Leatherwood's twenty-five year old theft conviction, (3) excusing a juror for cause, and (4) excluding Defense Exhibits 106, 107 and testimony regarding alleged checks totaling $10 million.
A.
The district court properly denied Jerra's motion for a change of venue because 18 U.S.C. § 3237(b) only entitles a defendant to a change of venue when venue outside of the defendant's home district is based solely on a mailing to the IRS. See United States v. Melvan, 676 F. Supp. 997, 999 (C.D. Cal. 1987). Jerra, however, commenced and continued the offense in the Central District of California and made written declarations that he resided within the district.
B.
The district court also correctly denied Jerra's motion in limine to admit evidence of Richard Leatherwood's twenty-five year old theft conviction under Federal Rule of Evidence 609(b). Leatherwood's conviction has little probative value because it is very old and is not particularly strong evidence of his lack of trustworthiness or credibility. See United States v. Glenn, 667 F.2d 1269, 1273 (9th Cir. 1982) ("Generally, . . . theft crimes . . . do not involve `dishonesty or false statement' within the meaning of rule 609(a)(2).").
C.
The district court properly excused a juror after the juror revealed that he was having difficulty following the proceedings because of his limited English comprehension. The juror's inability to comprehend the proceedings was a just cause for his dismissal and the district court did not abuse its discretion in excusing the juror. See United States v. Speer, 30 F.3d 605, 610-11 (5th Cir. 1994) (holding that the district court did not abuse its discretion in excusing a juror who had difficulty comprehending and communicating in English).
D.
The district court properly excluded Defense Exhibits 106, 107 and testimony regarding alleged checks totaling $10 million. Jerra never attempted to admit Exhibits 106 and 107 into evidence. Thus, he has no basis for raising this issue on appeal. Additionally, the district court properly excluded Jerra's ex-wife's testimony about a check Jerra allegedly showed her. The best evidence rule requires that the original writing be produced. See FED. R. EVID. 1002.
III.
Based on the foregoing, we affirm the district court's (1) denial of Jerra's motion to change venue to the District of Nevada, (2) denial of Jerra's motion in limine to admit evidence of Richard Leatherwood's twenty-five year old theft conviction, (3) dismissal of a juror for just cause, and (4) exclusion of Defense Exhibits 106, 107, and testimony regarding alleged checks totaling $10 million. We vacate the verdict and remand the case for further proceedings consistent with our disposition.
VACATED AND REMANDED.