                                                                               FILED
                            NOT FOR PUBLICATION                                DEC 03 2012

                                                                           MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                           U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-30286

              Plaintiff - Appellee,              D.C. No. 4:10-cr-00087-CCL-4

  v.
                                                 MEMORANDUM*
GEOFFREY PETER SCHARDIEN,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Montana
                 Charles C. Lovell, Senior District Judge, Presiding

                     Argued and Submitted November 7, 2012
                                Portland, Oregon

Before: ALARCÓN, McKEOWN, and PAEZ, Circuit Judges.

       Geoffrey Peter Schardien appeals from the district court’s judgment of

conviction for conspiracy to possess, possession with intent to distribute, and

distribution of 500 grams of cocaine in violation of 21 U.S.C. §§ 846 and

841(a)(1). He alleges the trial court erred in denying his counsel the right to cross-



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
examine a cooperating witness about the fact that he received a mandatory

minimum sentence, and in denying his motion for a mistrial following alleged

prosecutorial misconduct. We have jurisdiction under 28 U.S.C. § 1291.

      We review for abuse of discretion both issues: (1) a trial court’s limitation

on the scope of cross-examination, United States v. Larson, 495 F.3d 1094, 1101

(9th Cir. 2007) (en banc), and (2) a claim of prosecutorial misconduct raised at

trial, United States v. Sarkisian, 197 F.3d 966, 988 (9th Cir. 1999). We affirm.

                                          I

      The Sixth Amendment guarantees the right of a criminal defendant “to be

confronted with the witnesses against him.” U.S. Const. amend. VI. The

“essential purpose” of the right is to secure the opportunity for cross-examination.

Delaware v. Van Arsdall, 475 U.S. 673, 678 (1986). Three factors determine

whether a defendant’s cross-examination right was violated: “(1) whether the

excluded evidence was relevant; (2) whether there were other legitimate interests

outweighing the defendant’s interest in presenting the evidence; and (3) whether

the exclusion of evidence left the jury with sufficient information to assess the

credibility of the witness.” Larson, 495 F.3d at 1103 (quoting United States v.

Beardslee, 197 F.3d 378, 383 (9th Cir. 1999)) (internal quotation marks and

brackets omitted). Schardien argues that his Sixth Amendment rights were


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violated when the district court restricted his cross-examination of a cooperating

witness regarding the mandatory minimum sentence the witness received, even

though the witness’s punishment was not altered by the deal he made with the

prosecution in exchange for his guilty plea.

      We disagree. The district court did not abuse its discretion. The cooperating

witness’s minimum sentence was of de minimus relevance here, because it was

only tangentially related to the benefit that he received for testifying as a

prosecution witness. Schardien failed to demonstrate that his interest in presenting

that evidence outweighed the Government’s interest in avoiding juror confusion.

The evidence was sufficient to permit the jury to weigh the cooperating witness’s

credibility through other testimony regarding his poor memory, drug use, felony

conviction, and the actual benefit he received from the plea deal, a promise that the

government would not prosecute his wife.

                                          II

      During redirect examination, the prosecutor asked an FBI agent whether

investigators had recordings of Schardien speaking about manipulating the jury.

Defense counsel moved for a mistrial. The district court admonished the jury to

disregard the question and the objection. “[J]uries are presumed to follow their




                                           3
instructions . . . .” Richardson v. Marsh, 481 U.S. 200, 211 (1987). The trial court

did not abuse its discretion in refusing to grant a mistrial.

      AFFIRMED.




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