     06-1595-cr
     United States v. Figueroa

1                         UNITED STATES COURT OF APPEALS

2                                FOR THE SECOND CIRCUIT

3                                  August Term, 2007

4    (Argued: October 18, 2007                     Decided: November 18, 2008)

5                                Docket No. 06-1595-cr

6                    -------------------------------------

7                            UNITED STATES OF AMERICA,

8                                      Appellee,

9                                        - v -

10                                  EDWIN FIGUEROA,

11                                Defendant-Appellant.

12                   -------------------------------------

13   Before:     KEARSE, SACK, and HALL, Circuit Judges.

14               Appeal by the defendant, Edwin Figueroa, from a

15   judgment of conviction against him in the United States District

16   Court for the Western District of New York (David G. Larimer,

17   Judge) for unlawfully possessing a firearm.          At trial, the

18   district court prohibited defense counsel from cross-examining a

19   government witness about his swastika tattoos despite the fact

20   that the defendant was a member of a minority group.          We conclude

21   that, although the trial court's ruling was a violation of

22   Figueroa's rights under the Confrontation Clause of the Sixth

23   Amendment, the error was harmless.

24               Affirmed.
1                             JON P. GETZ, Muldoon & Getz, Rochester,
2                             NY, for Appellant.

3                             JOSEPH J. KARASZEWSKI, Assistant United
4                             States Attorney (Terrance P. Flynn,
5                             United States Attorney for the Western
6                             District of New York), Buffalo, NY, for
7                             Appellee.

8    SACK, Circuit Judge:

9              Defendant Edwin Figueroa appeals from a judgment of the

10   United States District Court for the Western District of New York

11   (David G. Larimer, Judge), following a jury trial, convicting him

12   of unlawful possession of a firearm.1   At trial, the district

13   court ruled that the defendant's counsel could not cross-examine

14   a government witness about his swastika tattoos.   We conclude

15   that this restriction on the scope of cross-examination was a

16   violation of the Confrontation Clause of the Sixth Amendment.    We

17   affirm the conviction, however, because we also conclude that the

18   error was harmless.2

19                              BACKGROUND

20             On January 26, 2004, Figueroa, then a New York State

21   parolee, resided in Rochester, New York.   He lived in an

22   apartment building with two apartment units.   On that date, New



          1
             Figueroa was convicted of being a felon in possession of
     a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e);
     possessing a firearm having a barrel less than sixteen inches in
     length in violation of 26 U.S.C. §§ 5822, 5845(a)(3), 5861(c) and
     5871; and possessing an unregistered firearm with a barrel less
     than sixteen inches in length in violation of 26 U.S.C.
     §§ 5845(a)(3-4), 5861(d) and 5871.
          2
             We address Figueroa's remaining claims in a summary order
     filed today.

                                    -2-
1    York State parole officers received a complaint from one Rick

2    Kerezman, who lived in the apartment adjacent to Figueroa's, that

3    Figueroa was drinking alcoholic beverages and using drugs in his

4    apartment, and that he had discharged a firearm there.      Because

5    such behavior would violate Figueroa's conditions of parole, the

6    officers decided to conduct an unannounced search of Figueroa's

7    residence later that day.

8               The Search

9               When the parole officers arrived, Figueroa was slow to

10   answer the door.    After the parole officers knocked, they saw a

11   shadow pass in front of a window.      Some five minutes later,

12   Figueroa opened the door and the parole officers began their

13   search.   They discovered a spent .22-caliber shell-casing on

14   Figueroa's living-room floor.    Figueroa told them that "John" had

15   recently fired a gun in his apartment.      He said he had told

16   "John" to leave.3

17              Continuing their search, the parole officers passed

18   through Figueroa's apartment and into a common interior hallway

19   that connected the building's two apartment units.      There they

20   found a sawed-off .22-caliber rifle just outside Figueroa's

21   apartment.   The officers notified the Rochester city police, who

22   arrested Figueroa and seized the gun and shell-casing.      Figueroa

23   told the police that his fingerprints were on the gun, but that

          3
             The district court denied Figueroa's motion to suppress
     this and two other statements he made to law enforcement
     officers. As we explain in our accompanying summary order, we
     find no error in that decision.

                                      -3-
1    he had never fired it.    He also told them that he was with a

2    friend when the gun was purchased but that he did not know how

3    the gun got into his house.     A ballistics expert later determined

4    that the spent shell-casing recovered from Figueroa's living room

5    was fired from the rifle found in the hallway.

6                The Evidence at Trial

7                On June 29, 2004,   Figueroa was indicted by a federal

8    grand jury in the Western District of New York for unlawfully

9    possessing the rifle.    On October 3, 2005, a jury trial on the

10   charges began in the United States District Court for the Western

11   District of New York.    Parole officers and police officers

12   testified to the events described above.

13               In addition, Frank Keough, Figueroa's roommate,

14   testified that Figueroa had told Keough that Figueroa wanted a

15   weapon for personal protection.      On the morning before his

16   arrest, Keough said, Figueroa told him that he had obtained a

17   weapon.    Figueroa showed Keough the sawed-off rifle that was

18   later recovered from the hallway.         Keough acknowledged that he

19   had a felony conviction and that he was addicted to drugs and

20   alcohol.    He testified that he had met Figueroa through their

21   neighbor, Kerezman.

22               April Fouquet, Kerezman's girlfriend and the occupant

23   of an apartment adjacent to Figueroa's, testified that she was at

24   home when the parole officers searched Figueroa's apartment.

25   When they knocked on his door, she heard him running around his

26   apartment.    The door of her apartment, which opens onto the

                                         -4-
1    common interior hallway, was ajar.     Fouquet, peeking through the

2    opening, saw Figueroa exit his apartment holding the rifle, which

3    he placed in the hallway.    Figueroa then "turned around, closed

4    the door and proceeded to run through [his] apartment" to open

5    the front door for the parole officers.    Trial Transcript, United

6    States v. Figueroa, No. 04-cr-6106 (W.D.N.Y. Oct. 5, 2005)

7    ("Trial Tr.") at 245-46.    Fouquet acknowledged that she had

8    previously been convicted of welfare fraud.    She also testified

9    that Figueroa and Kerezman were former roommates who had had a

10   falling out -- culminating in a physical fight -- a few weeks

11   before the events that led to Figueroa's arrest.

12             Jonathan Wright, another acquaintance of Figueroa,

13   testified that he purchased the rifle at issue in December 2003

14   while shopping at a Wal-Mart with Figueroa and Kerezman.    Like

15   Keough, Wright came to know Figueroa through Kerezman.    Wright

16   testified that he sold the rifle to Figueroa about one week

17   before Figueroa was arrested in exchange for fifty dollars and

18   some clothing.   He asserted that at the time of the sale to

19   Figueroa the rifle's barrel was not "sawed off."

20             The defense called two witnesses: Figueroa's landlord,

21   Nicholas Petrillo, and Figueroa's sister, Marisol Figueroa.

22   Petrillo testified that after Figueroa was arrested, Kerezman

23   asked if he could rent Figueroa's apartment.     Marisol Figueroa

24   testified that she, with other relatives, was in her brother's

25   apartment two days before his arrest.    Wright, the initial

26   purchaser of the rifle, was also present and behaving

                                      -5-
1    suspiciously: "pacing back and forth," "going in and out" of the

2    apartment.    Trial Tr. 360.   Wright was "up to something," she

3    said.   Id.

4               Figueroa did not testify in his own defense.

5               Swastika Tattoos

6               Before Jonathan Wright testified, defense counsel

7    informed the court that Wright had swastikas tattooed on his

8    body.   Counsel said that he intended to cross-examine Wright

9    about them.    Counsel argued, among other things, that Figueroa

10   was a member of a racial or ethnic minority; that the testimony

11   would be used to impeach Wright as to his bias and credibility;

12   and that Figueroa had a right to the proposed line of cross-

13   examination under the Confrontation Clause of the Sixth

14   Amendment.    Defense counsel also argued that the tattoos could be

15   connected to Wright's affiliation with a gang, although counsel

16   conceded that he had no information as to whether Wright was a

17   member of a gang.

18              The government objected to the proposed cross-

19   examination, arguing that the tattoos were relevant to Wright's

20   "belief system" but were "not in any way connected to credibility

21   or motive to lie in this particular case."     Trial Tr. 282.

22              The district court denied Figueroa's request to cross-

23   examine Wright about the tattoos or possible gang affiliation.

24              I'm not going to allow questioning of the
25              witness about his . . . tattoo swastikas.
26              Also, there's been no proffer or anything
27              other than a guess that he might belong to

                                       -6-
1              some gang or organization. I think that's an
2              impermissible question, too, without having a
3              better foundation.
 4             Generally [Rule] 608 [of the Federal Rules of
 5             Evidence] precludes use of –- or precludes
 6             attempts to show that a witness has a bad
 7             character, unless it relates to truthfulness,
 8             [or is] probative of truthfulness or
 9             untruthfulness, and I don't think the fact a
10             person has a tattooed swastika speaks to
11             that.
12             I mean, it just kind of attempts to attack
13             the character of a witness. . . .
14             And I found no case that says because someone
15             has a swastika tattoo, that he's more likely
16             to be untruthful. . . .
17                    . . . .
18             So if it's meant to show this man has a bad
19             character because he has a swastika and may
20             have some affinity toward people who follow
21             that cause, I think that's just character
22             evidence, which I don't think is admissible
23             and I don't think this wearing of a tattoo
24             goes to truthfulness or untruthfulness. I
25             don't think it comes under 608(a) or (b).
26             So I'll deny the request to examine this
27             witness about tattoos or gang membership
28             based on the proffer I received so far.
29   Id. at 283-84.

30             Verdict and Judgment

31             On October 6, 2005, the jury returned a guilty verdict

32   on all counts.   On March 30, 2006, the district court entered the

33   judgment of conviction.

34             Figueroa appeals.

35                                 DISCUSSION

36             I.     Standard of Review

37             "Only when th[e] broad discretion [of the district

38   court] is abused will we reverse [the] court's decision to

                                      -7-
1    restrict cross-examination."   United States v. Crowley, 318 F.3d

2    401, 417 (2d Cir.), cert. denied, 540 U.S. 894 (2003).     The

3    district court abuses its discretion "when (1) its decision rests

4    on an error of law (such as application of the wrong legal

5    principle) or a clearly erroneous factual finding, or (2) its

6    decision –- though not necessarily the product of a legal error

7    or a clearly erroneous factual finding –- cannot be located

8    within the range of permissible decisions."     Zervos v. Verizon

9    N.Y., Inc., 252 F.3d 163, 169 (2d Cir. 2001) (footnotes omitted).

10             II.   Figueroa's Confrontation Clause Claim

11             The district court prohibited Figueroa's counsel from

12   pursuing two lines of cross-examination of government witness

13   Jonathan Wright: (1) Wright's possible gang affiliation, and (2)

14   his swastika tattoos.   Figueroa argues that the district court

15   thereby violated his rights under the Confrontation Clause of the

16   Sixth Amendment to the United States Constitution.

17              A.   Legal Standards

18             The Confrontation Clause guarantees a criminal

19   defendant the right to cross-examine government witnesses at

20   trial.   See U.S. Const. amend. VI ("In all criminal prosecutions,

21   the accused shall enjoy the right . . . to be confronted with the

22   witnesses against him . . . .").    "Cross-examination is the

23   principal means by which the believability of a witness and the

24   truth of his testimony are tested."     Davis v. Alaska, 415 U.S.

25   308, 316 (1974).



                                       -8-
1               One way of discrediting a witness is "cross-examination

2    directed toward revealing possible biases, prejudices, or

3    ulterior motives of the witness as they may relate directly to

4    issues or personalities in the case at hand."   Id.   "The

5    motivation of a witness in testifying, including her possible

6    self-interest and any bias or prejudice against the defendant, is

7    one of the principal subjects for cross-examination."     Henry v.

8    Speckard, 22 F.3d 1209, 1214 (2d Cir.), cert. denied, 513 U.S.

9    1029 (1994).

10              [A] criminal defendant states a violation of
11              the Confrontation Clause by showing that he
12              was prohibited from engaging in otherwise
13              appropriate cross-examination designed to
14              show a prototypical form of bias on the part
15              of the witness, and thereby to expose to the
16              jury the facts from which jurors could
17              appropriately draw inferences relating to the
18              reliability of the witness.

19   Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986) (internal

20   quotation marks and ellipsis omitted).

21              "It does not follow, of course, that the Confrontation

22   Clause of the Sixth Amendment prevents a trial judge from

23   imposing any limits on defense counsel's inquiry into the

24   potential bias of a prosecution witness."   Id. at 679.    District

25   courts may "impose reasonable limits on such cross-examination

26   based on concerns about, among other things, harassment,

27   prejudice, confusion of the issues, the witness' safety, or

28   interrogation that is repetitive or only marginally relevant."

29   Id.   "Only when this broad discretion is abused will we reverse a



                                     -9-
1    trial court's decision to restrict cross-examination."     Crowley,

2    318 F.3d at 417.

3    B.   Gang Affiliation

4              We conclude that the district court did not abuse its

5    discretion in restricting Figueroa's cross-examination of Wright

6    regarding his possible gang affiliation.     "Although counsel may

7    explore certain areas of inquiry in a criminal trial without full

8    knowledge of the answer to anticipated questions, he must, when

9    confronted with a demand for an offer of proof, provide some good

10   faith basis for questioning that alleges adverse facts."     United

11   States v. Katsougrakis, 715 F.2d 769, 779 (2d Cir. 1983), cert.

12   denied, 464 U.S. 1040 (1984).     Here, defense counsel acknowledged

13   that he had no information as to whether Wright was affiliated

14   with a gang.     The district court therefore properly ruled that

15   Figueroa had not laid a proper foundation to question Wright on

16   this subject.4

17   C.   Swastika Tattoos

18             We think that the district court abused its discretion,

19   however, when it ruled that Figueroa could not cross-examine

20   Wright about his tattoos.     The record reflects that the defendant

21   is a member of a racial or ethnic minority group.     Wright, who

22   testified against Figueroa, bore two tattoos depicting swastikas.

23   Inasmuch as the tattoos suggested that Wright harbored animus



          4
             Defense counsel did not request permission to voir dire
     the witness outside the presence of the jury in an effort to
     establish a foundation for his proposed inquiry.

                                      -10-
1    against racial or ethnic minority groups and their members, they

2    were relevant to and probative of Wright's credibility, bias, and

3    motive to lie when testifying against Figueroa.

4                The Confrontation Clause protects the right to

5    "engag[e] in otherwise appropriate cross-examination designed to

6    show a prototypical form of bias on the part of the witness."

7    Van Arsdall, 475 U.S. at 680.    As we recently stated, "It is hard

8    to conceive of a more 'prototypical form of bias' than racial

9    bias."   Brinson v. Walker, No. 06-0618, draft slip op. 10, ___

10   F.3d ___, ___, 2008 WL ______, at *__, 2008 U.S. App. LEXIS ____,

11   at *___ (2d Cir. Nov. 13, 2008).    And "racial bias, at least when

12   held in extreme form, can lead people to lie or distort their

13   testimony, and therefore might bear on the accuracy and truth of

14   a witness' testimony, even though the bias is directed generally

15   against a class of persons and not specifically against the

16   accused."    Id. at 11, ___ F.3d at ___, 2008 WL ______, at *__,

17   2008 U.S. App. LEXIS ____, at *___ (citation and internal

18   quotation marks omitted).

19               It was apparently, and understandably, assumed by the

20   district court and the parties that the swastika is commonly

21   associated with white supremacism and neo-Nazi groups harboring

22   extreme forms of racial, religious and ethnic hatred and

23   prejudice against minority groups, including that to which

24   Figueroa assertedly belongs.5   The fact that a witness


          5
              See Anti-Defamation League, Hate on Display: Extremist
                                                         (continued...)

                                     -11-
1    customarily carries or displays a swastika, as a tattoo or

2    otherwise, therefore would tend to suggest that he or she holds

3    racial, religious or ethnic prejudices.    That in turn suggests a

4    basis on which the jury could find the witness's testimony not

5    credible.

6                "[T]he jury, as finder of fact and weigher of

7    credibility, has historically been entitled to assess all

8    evidence which might bear on the accuracy and truth of a witness'

9    testimony."    United States v. Abel, 469 U.S. 45, 52 (1984).   In a

10   criminal trial, a witness wearing or bearing a swastika should



          5
           (...continued)
     Symbols, Logos, and Tattoos, online version available at
     http://www.adl.org/hate_symbols/ (last visited Sept. 1, 2008).
     The ancient symbol of the swastika has for some ninety years been
     recognized as a symbol of National Socialism and the "Third
     Reich."

                 I myself, meanwhile, after innumerable
                 attempts, had laid down a final form; a flag
                 with a red background, a white disk, and a
                 black swastika in the middle. After long
                 trials I also found a definite proportion
                 between the size of the flag and the size of
                 the white disk, as well as the shape and
                 thickness of the swastika.
                 And this remained final.
                 Along the same lines arm-bands were
                 immediately ordered for the monitor
                 detachments, a red band, likewise with the
                 white disk and black swastika.
                 The party insignia was also designed along
                 the same lines: a white disk on a red field,
                 with the swastika in the middle. A Munich
                 goldsmith by the name of Füss furnished the
                 first usable design, which was kept.
     Adolf Hitler, Mein Kampf, 496 (Ralph Manheim trans., Houghton
     Mifflin Co. 1999) (1926).

                                     -12-
1    ordinarily be subject to cross-examination on credibility grounds

2    where a jury might reasonably infer that the symbol indicated

3    likely bias against the defendant.6

4              "[T]rial judges retain wide latitude insofar as the

5    Confrontation Clause is concerned to impose reasonable limits

6    on . . . cross-examination based on concerns about, among other

7    things, harassment, prejudice, confusion of the issues, the

8    witness' safety, or interrogation that is repetitive or only

9    marginally relevant."   Van Arsdall, 475 U.S. at 679.   The

10   government argues that the district court did not abuse its broad

11   discretion in this instance.   We disagree.

12             In federal courts, limits on the admission of relevant

13   testimony are largely governed by Rule 403 of the Federal Rules

14   of Evidence:   "Although relevant, evidence may be excluded if its

15   probative value is substantially outweighed by the danger of


          6
             There may, of course, be occasions when it is contested
     whether the defendant is, or is perceived to be, a member of a
     racial or religious minority group targeted by white supremacist
     groups associated with the swastika symbol. There may also be
     cases in which the witness bearing the swastika is not in fact a
     sharer of a creed or a committed member of an organization
     preaching or practicing racial or religious prejudice or hatred.
     See, e.g., Sarah Boxer, A Symbol of Hatred Pleads Not Guilty,
     N.Y. Times, July 29, 2000, at B11 ("Before the Nazi party adopted
     the swastika and turned it into the most potent icon of racial
     hatred, it traveled the world as a good luck symbol. It was
     known in France, Germany, Britain, Scandinavia, China, Japan,
     India and the United States. Buddha's footprints were said to be
     swastikas. Navajo blankets were woven with swastikas.
     Synagogues in North Africa, Palestine and Hartford were built
     with swastika mosaics."). It may therefore be appropriate for a
     district court, if asked to do so, to hear evidence outside the
     presence of the jury before making an assessment as to the
     relevance of a tattoo or similar display of or association with
     the symbol.
                                    -13-
1    unfair prejudice, confusion of the issues, or misleading the

2    jury, or by considerations of undue delay, waste of time, or

3    needless presentation of cumulative evidence."       Fed. R. Evid.

4    403.       In this case, however, the district court did not purport

5    to exclude the proffered cross-examination under Rule 403.       It

6    did not conclude that the cross-examination would be unduly

7    prejudicial, confusing or misleading to the jury, or cumulative.

8    The court based its decision solely on the ground that the

9    proposed cross-examination was designed to elicit "character"

10   evidence inadmissible under Rule 608 of the Federal Rules of

11   Evidence.7

12                  We think the district court thereby erred as a matter

13   of law.       The Supreme Court has held that impeachment for bias is

14   admissible under Rule 4028 even when the impeachment material is


            7
                 Rule 608 provides, in pertinent part:
                    Specific instances of the conduct of a
                    witness, for the purpose of attacking or
                    supporting the witness' character for
                    truthfulness, other than conviction of crime
                    as provided in rule 609, may not be proved by
                    extrinsic evidence. They may, however, in
                    the discretion of the court, if probative of
                    truthfulness or untruthfulness, be inquired
                    into on cross-examination of the witness (1)
                    concerning the witness' character for
                    truthfulness or untruthfulness, or (2)
                    concerning the character for truthfulness or
                    untruthfulness of another witness as to which
                    character the witness being cross-examined
                    has testified.
     Fed. R. Evid. 608(b).
            8
             Rule 402 provides, in pertinent part: "All relevant
     evidence is admissible, except as otherwise provided by the
                                                        (continued...)
                                        -14-
1    not independently admissible under Rule 608 as "concerning [the

2    witness's] character for truthfulness or untruthfulness," Fed. R.

3    Evid. 608.    See Abel, 469 U.S. at 51, 55-56 & n.4.9   Here, as in

4    Abel, the purpose of the proposed line of cross-examination was

5    not to show the witness's "character for truthfulness or

6    untruthfulness," Fed. R. Evid. 608; it was to impeach the witness

7    for bias.

 8               Bias is a term used in the "common law of
 9               evidence" to describe the relationship
10               between a party and a witness which might

          8
           (...continued)
     Constitution of the United States, by Act of Congress, by these
     rules, or by other rules prescribed by the Supreme Court pursuant
     to statutory authority." Fed. R. Evid. 402. "'Relevant
     evidence' means evidence having any tendency to make the
     existence of any fact that is of consequence to the determination
     of the action more probable or less probable than it would be
     without the evidence." Fed. R. Evid. 401. "A successful showing
     of bias on the part of a witness would have a tendency to make
     the facts to which he testified less probable in the eyes of the
     jury than it would be without such testimony." Abel, 469 U.S. at
     51.
          9

                 It seems clear to us that the proffered
                 [extrinsic] testimony with respect to [the
                 witness's] membership in [a hate group]
                 sufficed to show potential bias in favor of
                 [the defendant]; because of the tenets of the
                 organization described, it might also impeach
                 his veracity directly. But there is no rule
                 of evidence which provides that testimony
                 admissible for one purpose and inadmissible
                 for another purpose is thereby rendered
                 inadmissible; quite the contrary is the case.
                 It would be a strange rule of law which held
                 that relevant, competent evidence which
                 tended to show bias on the part of a witness
                 was nonetheless inadmissible because it also
                 tended to show that the witness was a liar.
     Abel, 469 U.S. at 56.


                                     -15-
1                lead the witness to slant, unconsciously or
2                otherwise, his testimony in favor of or
3                against a party. Bias may be induced by a
4                witness' like, dislike, or fear of a party,
5                or by the witness' self-interest. Proof of
6                bias is almost always relevant . . . .

7    Abel, 469 U.S. at 52.    Because the jury could have found that

8    Wright's tattoos were indicative of bias, examination of him on

9    that subject matter was relevant irrespective of its

10   admissibility vel non under Rule 608.    See id. at 55-56.10

11               "A district court by definition abuses its discretion

12   when it makes an error of law."    Koon v. United States, 518 U.S.

13   81, 100 (1996); see also Zervos, 252 F.3d at 169 ("A district

14   court [abuses its discretion] when . . . its decision rests on an

15   error of law (such as application of the wrong legal

16   principle) . . . .").    The district court therefore abused its

17   discretion in restricting Figueroa's cross-examination because

18   its decision rested on a legally erroneous application of Rule

19   608.

20               As noted, the district court did not purport to exclude

21   the proposed line of questioning under Rule 403.    "Because we

22   review a Rule 403 decision for abuse of discretion, and since the

23   district court did not exercise its discretion on this basis or

24   engage in a balancing process that we can review, we have no



            10
            Although Abel did not involve the Confrontation Clause
     because the witness impeached for bias in that case testified for
     the defense, we see no reason why that distinction would prevent
     us from applying its holding that evidence of potential bias that
     is admissible under Rule 402 need not be independently admissible
     under Rule 608.
                                     -16-
1    occasion to decide whether the [evidence was] properly excluded

2    under the Rule."   United States v. Colomb, 419 F.3d 292, 302 (5th

3    Cir. 2005) (citation omitted); accord United States v. Peak, 856

4    F.2d 825, 834 n.6 (7th Cir.) ("[T]he district judge did not

5    invoke Rule 403 to justify his evidentiary ruling.   This court,

6    therefore, cannot review the ruling on Rule 403 grounds."), cert.

7    denied, 488 U.S. 969 (1988).   Based on the proverbial cold record

8    before us, the reasons the court excluded the relevant tattoo

9    evidence seem relatively modest compared to the Rule 403 factors

10   favoring admissibility.   But the written record is cold indeed.

11   We therefore express no opinion as to whether, had the district

12   court prohibited the proposed line of questioning under Rule 403,

13   it would have been acting in the exercise of its sound

14   discretion.

15             We conclude that the district court's prohibition on

16   cross-examination for bias on the grounds upon which it relied

17   violated Figueroa's confrontation rights under the Sixth

18   Amendment.

19             III. Harmless Error Analysis

20             It does not necessarily follow from our conclusion that

21   Figueroa's Sixth Amendment rights were infringed that his

22   conviction must be reversed.   "[T]he constitutionally improper

23   denial of a defendant's opportunity to impeach a witness for

24   bias, like other Confrontation Clause errors, is subject to . . .

25   harmless-error analysis."   Van Arsdall, 475 U.S. at 684.   We will

26   affirm the judgment of the district court if we are satisfied

                                    -17-
1    "beyond a reasonable doubt that the error complained of did not

2    contribute to the verdict obtained."    Chapman v. California, 386

3    U.S. 18, 24 (1967).

 4              Whether such an error is harmless in a
 5              particular case depends upon a host of
 6              factors . . . . These factors include the
 7              importance of the witness' testimony in the
 8              prosecution's case, whether the testimony was
 9              cumulative, the presence or absence of
10              evidence corroborating or contradicting the
11              testimony of the witness on material points,
12              the extent of cross-examination otherwise
13              permitted, and, of course, the overall
14              strength of the prosecution's case.

15   Van Arsdall, 475 U.S. at 684; see also Henry, 22 F.3d at 1215-16.

16   We are persuaded beyond a reasonable doubt that the Confrontation

17   Clause error in this case did not contribute to the jury's

18   verdict.

19              Wright was not the only witness who saw Figueroa in

20   possession of the sawed-off rifle.    Keough, Figueroa's roommate,

21   testified that Figueroa had shown him "a black shotgun [that]

22   appeared to be cut off," and that this weapon matched the weapon

23   that the government showed him at trial.    And Fouquet, Figueroa's

24   neighbor, testified that she had seen a bullet hole in the wall

25   of Figueroa's apartment.   She also testified that she saw

26   Figueroa put the rifle in the hallway after the parole officers

27   knocked on his front door.   The parole officers corroborated

28   Fouquet's account, testifying that they waited several minutes

29   before Figueroa opened the door.   Any cross-examination of Wright

30   as to his tattoos would have been unlikely to affect the

31   credibility of Keough and Fouquet.    And the physical evidence

                                    -18-
1    relating to the gun, too, was consistent with the testimony of

2    Wright, Keough, and Fouquet: Officer Jenkins found a spent .22

3    caliber shell casing on the living room floor of Figueroa's

4    apartment, and according to the firearms expert who testified at

5    trial, that shell casing had been fired from the rifle that the

6    officers discovered in the hallway.     Therefore, even if Wright's

7    credibility had been undermined by cross-examination regarding

8    his swastika tattoos and related bias, the remainder of the

9    government's case was overwhelming.11

10             The district court's Confrontation Clause error

11   contributed to the guilty verdict in this case only if the jury

12   convicted Figueroa based substantially on Wright's unimpeached

13   testimony while ignoring or discrediting the testimony of Keough

14   and Fouquet, which was supported by physical evidence.    Our

15   review of the record convinces us that that is highly improbable.

16   We therefore conclude "beyond a reasonable doubt that the error

17   complained of," Chapman, 386 U.S. at 24 -- the district court's

18   refusal to permit Figueroa to impeach Wright's testimony by



          11
             Figueroa had other opportunities to cross-examine
     witnesses (including Wright) for bias. The evidence reflects
     that Wright, Keough, and Fouquet were all linked to Kerezman, who
     had an altercation with Figueroa shortly before the events that
     led to his arrest. Because Figueroa's possession of the rifle
     was independently established by the testimony of Wright, Keough,
     and Fouquet, Figueroa's most plausible defense theory was that
     these witnesses somehow conspired to frame him. Figueroa was
     able to pursue that defense theory at trial by cross-examining
     those three witnesses for bias stemming from their relationship
     with Kerezman and Kerezman's fight with Figueroa. It appears the
     jury did not discredit their testimony based on that line of
     questioning.
                                    -19-
1   cross-examining him about his swastika tattoos -- "did not

2   contribute to the verdict obtained," id.   The district court's

3   error was therefore harmless.

4                              CONCLUSION

5             For the foregoing reasons, and for the additional

6   reasons stated in an accompanying summary order addressing other

7   issues raised by Figueroa on appeal, the judgment of the district

8   court is affirmed.




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