                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 08-2202
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of South Dakota.
Clyde White,                             *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: December 11, 2008
                                 Filed: March 4, 2009
                                  ___________

Before WOLLMAN, BYE, and RILEY, Circuit Judges.
                           ___________

WOLLMAN, Circuit Judge.

        A jury found Clyde White guilty of one count of being a drug user in possession
of a firearm, in violation of 18 U.S.C. §§ 922(g)(3) and 924(a)(2). The district court1
imposed a sentence of fourteen months’ imprisonment. White appeals his conviction.
We affirm.




      1
       The Honorable Richard H. Battey, United States District Judge for the District
of South Dakota.
                                          I.

      In July 2006, White set off from Florida on a solo motorcycle trip across the
United States. In August, he arrived in Sturgis, South Dakota, for the annual
motorcycle rally. While attending the rally, White stayed at a campground with
members of the Outlaw motorcycle club, of which he was a member. On Friday,
August 11, White was involved in a motorcycle accident. He suffered a broken ankle
and two cracked ribs, and his motorcycle was rendered inoperable. White was taken
to a hospital, but decided to return to Florida rather than to undergo immediate
surgery.

      White made arrangements to ride at least part of the way to Florida with other
Outlaw members whom he met at the campground. Because the cab of the members’
pickup truck was already full, White agreed to ride in the truck’s bed. As the group
took a detour through Badlands National Park on their return trip, they were pulled
over by a park ranger for a defective tail light. Investigating officers found several
weapons in the truck’s cab and a 9mm Beretta in the bed. White and the other
occupants were transported to the Pennington County Jail, where they were processed
and booked. An inventory of White’s personal items revealed that he possessed a tin
containing powdery residue that later tested as cocaine. White was required to
provide a urine sample, which tested positive for 18.1 nanograms per milliliter of THC
(marijuana) and .431 micrograms per milliliter of benzoylecgonine (cocaine).

       At trial, Chief Ranger Mark Gorman testified that he had advised White of his
rights before interviewing him at the county jail. According to Gorman, White said
that “the Egyptian 9 millimeter” found in the bed of the truck was his and that he
wanted it back. Gorman further testified that when asked why he had the gun, White
referred to a violent confrontation between Outlaw members and a rival motorcycle
gang, suggesting that the gun was for protection. During the presentation of his case,
White denied making these statements.

                                         -2-
     While cross-examining one of the investigating officers earlier during the trial,
White’s counsel attempted to offer into evidence a document entitled “Arrest Report
and Custody Authorization” (Report).

       In response to the district court’s query regarding the document’s relevance,
counsel stated that he intended to use it during Ranger Gorman’s testimony. After
stating, “Why don’t you wait for Mr. Gorman to testify,” the district court declined
to admit the Report, questioning its relevance.

        During his cross-examination of Ranger Gorman, defense counsel asked
Gorman to identify the Report, and then again offered it as an exhibit. The district
court sustained the government’s relevance-based objection, precluded defense
counsel from further questions regarding the Report, and granted counsel permission
to file a written offer at a later time.

     The following morning, defense counsel submitted a written offer, which stated,
among other things:

             Of particular importance is block 100 of the form, entitled
      “Arrestee’s Rights Given By:” and filled out as “Not Given.” Witness
      Gorman testified at length that a statement was taken regarding
      Defendant White’s possession of a weapon, his manipulation of it and
      related circumstances. The credibility of this witness, who also testified
      that Defendant White’s Miranda rights were provided to him from a
      card, is a central issue in this case. The statement at issue was not video
      taped, signed by Defendant or otherwise verified and Exhibit 113 should
      be received concerning the credibility issue.

      After considering the offer, the district court denied it, again rejecting the
proffered Report as irrelevant.




                                         -3-
                                         II.

        On appeal, White argues that the district court erred in denying the admission
of the Report and in precluding further cross-examination of Ranger Gorman
regarding the “Not Given” notation thereon. White asserts that these denials violated
his Fifth and Sixth Amendment rights. Additionally, he argues that these evidentiary
rulings, as well as others, coupled with comments made by the district court, reflected
trial court bias sufficient to deprive him of his right to a fair trial.

                                          A.

       We review challenges to a district court’s evidentiary rulings for abuse of
discretion, but where constitutional rights are implicated, “we consider the matter de
novo.” United States v. Ragland, No. 07-2428, slip op. at 7 (8th Cir. Feb. 11, 2009)
(citing United States v. Kenyon, 481 F.3d 1054, 1063 (8th Cir. 2007)). We will
reverse, however, only if the error is more than harmless. Chapman v. California, 386
U.S. 18, 22 (1967). Thus, “[e]ven when an evidentiary ruling is improper, we will
reverse a conviction on this basis only when the ruling affected substantial rights or
had more than a slight influence on the verdict.” United States v. Gustafson, 528 F.3d
587, 591 (8th Cir. 2008) (citing United States v. Ballew, 40 F.3d 936, 941 (8th Cir.
1994)).

       “Criminal defendants have a fundamental right to present the testimony of
witnesses in their defense, a right grounded in the fifth and sixth amendments.”
United States v. Turning Bear, 357 F.3d 730, 733 (8th Cir. 2004). The right to cross-
examination, however, is not without limitation. Ragland, No. 07-2428, slip op. at 7
(citing United States v. Depreau, 414 F.3d 869, 875 (8th Cir. 2005)) (internal
quotations omitted). The admission of the Report and further cross-examination
thereon would not likely have had sufficient influence on White’s conviction to
warrant a reversal. White did not challenge the admission of his alleged confession

                                         -4-
during the pretrial suppression hearing, and thus nothing in the Report would have
changed the substance of Ranger Gorman’s testimony. The record does not indicate
that Ranger Gorman wrote “Not Given.” Rather, the testimony shows that multiple
persons were involved in the booking process. Thus, although we question the basis
of the district court’s ruling rejecting the proffered exhibit, we are satisfied that any
error in ruling it inadmissible was at worst harmless.

                                           B.

        White argues that the district court made prejudicial comments throughout the
trial and restricted the presentation of his defense to such a degree as to deprive him
of a fair trial.

       The trial judge is “more than a mere moderator; he is the governor of the trial
for the purpose of assuring its proper conduct.” Dranow v. United States, 307 F.2d
545, 572 (8th Cir. 1962) (internal quotations omitted). We are, therefore, “reluctant
to disturb a judgment of conviction by reason of a few isolated, allegedly prejudicial
comments of a trial judge . . . .” United States v. Warfield, 97 F.3d 1014, 1027 (8th
Cir. 1996) (quoting United States v. Evans, 30 F.3d 1015, 1018 (8th Cir. 1994))
(internal quotations omitted). “Reversal is warranted where the court’s comments
throughout the trial are one-sided and interfere with a defendant’s case to such an
extent that the defendant is deprived of the right to a fair trial.” Id.

       Most of the comments referred to by White as evidence of bias were made
either during the course of sustaining the government’s objections or in the way of
admonitions that counsel keep his questions relevant and proceed with his case.
While perhaps some of the comments might have been better left unsaid, overall they
reflected nothing more than the district court’s desire to keep the proceedings moving
in an orderly, efficient manner.



                                          -5-
        The only comment that we deem worthy of mention occurred in response to a
government objection during closing arguments. White’s counsel argued that White’s
THC level “was so low that it was almost a negative test,” asserting that fifteen
nanograms per mililiter is the generally accepted threshold. The state’s forensic
chemist had testified that ten nanograms per milliliter is the threshold the state uses
to indicate a positive presence of marijuana. Under either test, however, White’s
results were positive at 18.1 nanograms per milliliter. The district court sustained the
government’s objection to White’s mischaracterization of the testimony regarding the
test, saying that the amount did not matter because “[t]he important point is whether
or not there was marijuana or cocaine in the urine test.” White argues that in making
these comments, the judge took the issue of whether White was an “unlawful drug
user” out of the jury’s hands.

       Jury instruction number seven stated:

       The phrase “unlawful user of a controlled substance” means a person
       who uses a controlled substance in a manner other than as prescribed by
       a licensed physician. The defendant must have been actively engaged in
       the use of a controlled substance during the time he possessed the
       firearm, but the law does not require that he used the controlled
       substance at the precise time he possessed the firearm. Such use is not
       limited to the use of drugs on a particular day, or within a matter of days
       or weeks before, but rather that the unlawful use has occurred recently
       enough to indicate that the individual is actively engaged in such
       conduct.

       At the outset of the trial, the district court instructed the jury that “[y]ou should
not take anything I may say or do during the trial as indicating what I think of the
evidence or what I think the verdict should be.” Again, after the parties had rested and
just prior to closing arguments, the district court reminded the jury that “nothing I
have said or done is intended to suggest what your verdict should be. That is entirely
up to you.”

                                            -6-
       “We afford district courts wide latitude in controlling closing arguments.”
Warfield, 97 F.3d at 1021. The district court’s comments in sustaining the
government’s objection did not undermine the law set forth in instruction seven. Nor
did they have any impact on the fact that White’s positive test for cocaine was nearly
three times greater than the threshold amount of .15 micrograms per milliliter.

                                          III.

       Having studied the record with care, we conclude that it reflects no bias on the
district court’s part and that the district court’s evidentiary rulings did not result in
prejudicial error to White.

      The judgment is affirmed.
                      ______________________________




                                          -7-
