     09-4950-cr
     USA v. Fredette


                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER

     Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after
     January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s
     Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either
     the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a
     summary order must serve a copy of it on any party not represented by counsel.
 1           At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 3   the 25th day of October, two thousand ten.
 4
 5   PRESENT:          RALPH K. WINTER
 6                     DEBRA ANN LIVINGSTON
 7                     GERARD E. LYNCH
 8                                     Circuit Judges,
 9
10
11   UNITED STATES OF AMERICA,
12             Appellee,
13
14            -v.-                                              No. 09-4950-cr
15
16   DANIEL E. EWALD, TOWN OF CLARENDON, VERMONT OFFICE OF CHILD SUPPORT,
17   LISA MAXFIELD
18              Petitioners,
19
20   FRANCIS FREDETTE,
21              Defendant-Appellant.
22
23
24                                    BARRY E. GRIFFITH, Griffith & Lundeen, P.C., Rutland, Vermont,
25                                    for Defendant-Appellant.
26
27                                    BARBARA A. MASTERSON, Assistant United States Attorney
28                                    (Gregory L. Waples, Assistant United States Attorney, on the brief),
29                                    for Tristam J. Coffin, United States Attorney, District of Vermont,
30                                    Burlington, Vermont, for Appellee.
31
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 1          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 2   DECREED that the judgment of the district court be AFFIRMED.

 3          Defendant-Appellant Francis Fredette (“Fredette”) appeals from a November 19, 2009

 4   judgment of the United States District Court for the District of Vermont (Murtha, J.), convicting

 5   him, after trial by jury, of one count of mail fraud, in violation of 18 U.S.C. § 1341, and one count

 6   of wire fraud, in violation of 18 U.S.C. § 1343, and sentencing him to concurrent 46-month terms

 7   of imprisonment on each count, followed by three years’ supervised release, restitution in the

 8   amount of $790,864.62, and special assessments totaling $200. We assume the parties’ familiarity

 9   with the underlying facts and procedural history of the case.

10          Fredette’s sole argument on appeal is that the district court erred in precluding him from

11   playing the full contents of an audiotape recording which he proffered to refresh the recollection of

12   a prosecution witness during that witness’s cross-examination. Fredette argues that by so limiting

13   cross-examination, the district court violated his rights under the Confrontation Clause of the Sixth

14   Amendment. See United States v. Lawson, 683 F.2d 688, 693-94 (2d Cir. 1982). We review a

15   district court’s limitations on cross-examination for abuse of discretion. See United States v.

16   Crowley, 318 F.3d 401, 418 (2d Cir. 2003). The right to confront and cross-examine witnesses “is

17   tempered by a trial judge’s wide latitude to impose reasonable limits in order to avoid matters that

18   are confusing or of marginal relevance.” United States v. Stewart, 433 F.3d 273, 311 (2d Cir. 2006)

19   (internal quotation marks omitted). We will reverse the district court under such circumstances only

20   when its “broad discretion” has been abused, United States v. Maldonado-Rivera, 922 F.3d 934, 956

21   (2d Cir. 1990), and on the facts before us, Fredette has failed to demonstrate as much.




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 1           On appeal, Fredette argues fleetingly that the statements on the audiotape demonstrated bias

 2   on the part of the witness, and the district court’s limitation on the use of the audiotape during cross-

 3   examination precluded him from adequately developing that bias for the jury. This assertion is

 4   belied by the record, however, which reveals that Fredette offered the audiotape at issue for the sole

 5   purpose of refreshing the witness’s recollection. A district judge “has broad discretion to organize

 6   or limit the use of evidence to refresh recollection.” Berkovich v. Hicks, 922 F.2d 1018, 1025 (2d

 7   Cir. 1991) (quoting 20th Century Wear, Inc. v. Sanmark-Stardust, Inc., 747 F.2d 81, 93 n.17 (2d Cir.

 8   1984)). “It is basic evidence law . . . that the propriety of refreshing a witness’ recollection on cross-

 9   examination lies largely within the sound discretion of the trial judge.” United States v. Baratta, 397

10   F.2d 215, 222 (2d Cir. 1968). Here, moreover, the district judge did not, in fact, truly limit

11   Fredette’s use of the statements on the audiotape to refresh the witness’s recollection. While the

12   court precluded Fredette from playing the audiotape itself, it permitted him to use the transcript of

13   the audiotape, without restriction, for the purpose of refreshing the witness’s recollection. Cf.

14   Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) (noting that the Confrontation Clause

15   “guarantees an opportunity for effective cross-examination, not cross-examination that is effective

16   in whatever way, and to whatever extent, the defense might wish”) (quoting Delaware v. Fensterer,

17   474 U.S. 15, 20 (1985)). Fredette’s counsel did so, and terminated his questioning of the witness

18   on his own accord. In so limiting Fredette’s use of the audiotape, the district court appropriately

19   exercised its discretion “to impose reasonable limits on cross-examination” in light of “concerns

20   about, among other things, harassment, prejudice, confusion of the issues, . . . or interrogation that

21   is repetitive or only marginally relevant.” Id. Accordingly, in light of the record before us, we




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 1   cannot conclude that the district court abused its discretion by precluding Fredette from playing the

 2   audiotape to refresh the witness’s recollection.

 3          To the extent that Fredette argues that the tape should have been received in evidence, he

 4   concedes, as he must, that he never actually offered the tape in evidence or presented the district

 5   court with any rationale for its admission. The district court cannot be faulted for failing to admit

 6   into evidence a tape that was never properly offered.

 7          We have considered all of Fredette’s remaining arguments and find them to be without merit.

 8   For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

 9
10                                                          FOR THE COURT:
11                                                          Catherine O’Hagan Wolfe, Clerk
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