                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-23-2003

USA v. Patterson
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3293




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                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                      No. 02-3293


                          UNITED STATES OF AMERICA,

                                          v.

                               ALVIN PATTERSON.
                                            Appellant


          ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
                       THE DISTRICT OF NEW JERSEY
                         (D.C. Crim. No. 01-cr-00515)

                   District Court Judge: Hon. Dennis A. Cavanaugh


                     Submitted Under Third Circuit LAR 34.1(a)
                                  June 17, 2003

                 Before: ALITO, ROTH, and HALL,* Circuit Judges.

                    (Opinion Filed:    June 23, 2003             )


                             OPINION OF THE COURT




      HALL, Circuit Judge:



      *
       The Hon. Cynthia Holcomb Hall, Circuit Judge for the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
       Alvin Patterson appeals his convictions for mail fraud and for conspiring to

unlawfully obtain employment benefits. We AFFIRM.

       Patterson assigns error to the district court’s denial of his request for production of

the handwritten notes taken by a government agent during meetings with Zachary Epps, a

key prosecution witness. According to Patterson, the district court abused its discretion by

denying his request without reviewing the notes in camera to determine if they contained

material subject to the Jencks Act. Generally, “reports, memoranda, or other internal

government documents made by . . . a government agent in connection with investigating

or prosecuting the case” are not discoverable. Fed. R. Crim. P. 16(a)(2). Once the

government has called a witness to testify for the prosecution, however, the Jencks Act

requires the production of “any statement . . . of the witness in the possession of the United

States which relates to the subject matter” of the witness’s testimony. 18 U.S.C. § 3500(b).

If a defendant makes a prima facie showing of the existence of a witness statement, the

court must review the statement in camera to determine if it is producible. United States v.

Smith, 984 F.2d 1084, 1086 (10th Cir. 1993); see also United States v. Sanchez-Gonzales,

294 F.3d at 563, 568 (3d Cir. 2002) (citing Smith favorably).

       Patterson argues that he made the requisite prima facie showing by introducing

evidence that notes were taken by a government agent during an interview with Epps.

Patterson, however, fails to note that under Smith and Sanchez-Gonzales, the defendant



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bears the burden of making a prima facie showing that the document at issue contains a

statement by a witness. By introducing evidence that a government agent took notes during

a meeting with Epps, Patterson did no more than direct the court’s attention to something

that might qualify as a statement by a non-testifying government agent. The district court

therefore had no obligation to review the notes in camera in the absence of any evidence

that Epps either approved the notes or somehow adopted them as his personal statement.

See 18 U.S.C. § 3500(e)(1) (defining “statement” as “a written statement made by said

witness and signed or otherwise adopted or approved by him”). Patterson introduced no

evidence that Epps adopted or approved the agent’s notes. For this reason, the district

court did not abuse its discretion by denying Patterson’s request for production without

reviewing the notes in camera.

       Patterson also contends that the district court abused its discretion by permitting the

government to cross-examine a defense witness about her son’s recent criminal conviction.

During cross-examination of defense witness Bertha West, the government asked West

whether she had a “dislike” for the New Jersey U.S. Attorney’s Office because it had

recently prosecuted her son, resulting in a 55-month sentence. Patterson argues that the

“collateral” nature of the conviction rendered it inadmissible. Patterson also alleges that

the conviction was improper character evidence. In addition, Patterson contends that the

probative value of the conviction was substantially outweighed by unfair prejudice.

       Patterson’s contention that the “collateral” nature of the evidence renders it



                                              -3-
inadmissible has no merit. Bias is not generally considered a collateral issue because it is

so intimately tied to the probative value of direct evidence in the case. See, e.g., United

States v. Scott, 267 F.3d 729, 735 (7th Cir. 2002) (“[T]he Federal Rules of Evidence do not

consider bias a collateral issue.”); United States v. Dunson, 142 F.3d 1213, 1216 (10th Cir.

1998) (“[B]ias is never classified as a collateral matter which lies beyond the scope of

inquiry.”); Justice v. Hoke, 90 F.3d 43, 48 (2d Cir. 1996) (“[E]xtrinsic proof tending to

establish a reason to fabricate is never collateral and may not be excluded on that

ground.”). Moreover, to the extent that any issues relating to West’s bias could be

considered collateral, the decision to permit cross-examination on collateral matters is

“within the sound discretion of the trial judge.” United States v. Rockwell, 781 F.2d 985,

988-89 (3d Cir. 1986).

       We are similarly unconvinced by Patterson’s contention that the conviction of Mrs.

West’s son was improper character evidence. Relevant evidence of bias is not inadmissible

merely because it has a tangential relationship to evidence of a witness’s character. See

United States v. Abel, 469 U.S. 45, 56 (1984) (declining to address the admissibility of

evidence under Rule 608(b) because “[i]t was enough that such evidence could properly be

found admissible to show bias”). Thus, the government’s line of questioning did not

constitute improper character evidence.

       Finally, the district court did not err by refusing to exclude the evidence under

Federal Rule of Evidence 403, which renders evidence inadmissible “if its probative value



                                              -4-
is substantially outweighed by the danger of unfair prejudice.” Fed. R. Evid. 403. As the

Supreme Court has noted, proof of bias is virtually always relevant because it bears on the

probative value of the facts to which the witness has testified. Abel, 469 U.S. at 52.

Patterson argues that the knowledge that West was the mother of a felon had a “certain,

negative impact” on the jury, but does not further elaborate as to how Patterson was

unfairly prejudiced. We recognize the possibility that the government’s questioning of

Bertha West (Patterson’s sister) revealed that Patterson’s nephew was a convicted felon.

However, it is extremely unlikely that the jury was substantially swayed by the knowledge

that Patterson’s nephew was a felon, particularly since the jury was already aware that

Patterson associated with convicted criminals such as Zachary Epps. Thus, the district

court acted well within its discretion by determining that the probative value of the

conviction was not substantially outweighed by unfair prejudice. See id. at 54 (noting that

“assessing the probative value” of evidence offered to show bias “and weighing any factors

counseling against admissibility is a matter . . . for the district court’s sound judgment”).

       We AFFIRM the judgment of the district court.




                                              -5-
       TO THE CLERK OF THE COURT:

Kindly file the foregoing Not Precedential Opinion.


                /s/Cynthia H. Hall

                  Circuit Judge




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