09-1857-cr(L)
United States v. Cuadrado (Cedeño)

                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT
                               August Term 2010
(Argued: March 23, 2011                            Decided: May 2, 2011)

Docket Nos. 09-1857-cr(L), 09-1908-cr(con), 09-1909-cr(con),
                       09-2096-cr(con)


                           UNITED STATES   OF   AMERICA,
                                                   Appellee,
                                      v.
          JORGE CEDEÑO, A/K/A MIGUEL, ANGEL DIAZ, A/K/A PETE, RAFAEL
               RODRIGUEZ,A/K/A DANCE, VICTOR DIAZ, A/K/A GAGO,
                                                   Defendants-Appellants,

      GERMAN CUADRADO, A/K/A GERALDO, JORGE FLORES, JUAN CAMACHO,
  SAILE PARRA, PLUTARCO ANGULO-AGUIRRE, A/K/A MATATAN, A/K/A PLATANO,

                                                   Defendants.*


Before:
                        JACOBS, Chief Judge, and
                   CALABRESI and CHIN, Circuit Judges.




      *
          Plutarco Angulo-Aguirre withdrew his appeal (No. 09-
3678-cr) on March 5, 2010.   The Clerk of Court is respectfully
instructed to amend the official case caption as shown above.
         Appeal from a judgment of the United States
District Court for the Southern District of New York

(McMahon, J.) convicting defendant-appellant Jorge Cedeño of
kidnapping, armed robbery, and related offenses.

         AFFIRMED.


                     CLINTON W. CALHOUN III, Calhoun & Lawrence,
                           LLP, White Plains, New York, for
                           Defendant-Appellant Jorge Cedeño.

                     MICHAEL A. LEVY, Assistant United States
                           Attorney (Nola B. Heller, Assistant
                           United States Attorney, on the
                           brief), for Preet Bharara, United
                           States Attorney for the Southern
                           District of New York, New York, New
                           York for Appellee.


CHIN, Circuit Judge:
         In this case, defendant-appellant Jorge Cedeño was

convicted of kidnapping, robbery, and related crimes.      He

was sentenced principally to 319 months' imprisonment.       On
appeal, he argues that the district court improperly limited
cross-examination of a government witness at trial by

barring his use of a state court's finding that the witness
had given false testimony in a prior judicial proceeding.

We conclude that the district court's evidentiary ruling was




                               -2-
erroneous, but find that the error was harmless.
Accordingly, we affirm. 1
                            BACKGROUND

          Before trial in this case, the government moved in
limine to preclude the defense from cross-examining one of
its witnesses, Detective Robert Goldrick, about a prior

adverse credibility finding made by the Appellate Division
of the Supreme Court of New York.    In 1990, the Appellate

Division refused to credit Goldrick's testimony at a

suppression hearing because it concluded that he had

"patently tailored" his testimony to avoid suppression of

evidence discovered at a traffic stop.     People v. Miret-
Gonzalez, 159 A.D.2d 647, 649-50 (2d Dep't 1990).      In other

words, the Appellate Division found that Goldrick had lied.

          The district court granted the government's
motion, holding as follows:

               The Appellate Division's adverse
          credibility finding reflects only a
          finding that Detective Goldrick "lacked
          credibility as to his testimony in that
          case, not that he was lacking in veracity
          generally." See United States v. Cruz,
          894 F.2d 41[, 43] (2d Cir. 1990).
          Detective Goldrick will not be testifying
          before the jury about the
          constitutionality of a search, the issue
          before the Appellate Division. In the

     1
          In a summary order also filed today, we address the
remaining issues raised by Cedeño and his co-defendants-
appellants, Angel Diaz, Rafael Rodriguez, and Victor Diaz.

                               -3-
         absence of any connection between the
         finding of tailoring in the case before
         the Appellate Division and his purported
         testimony in the case at bar, it cannot
         be said that [the] Appellate Division[']s
         finding is relevant to the detective[']s
         testimony in the present case. See Cruz,
         894 F.2d at 42-43.
United States v. Angulo-Aguirre, No. 07 Cr. 387, at *13
(S.D.N.Y. May 9, 2008) (footnote omitted).

         Notwithstanding its ruling on the government's
motion, the district court allowed Cedeño's co-defendant to

cross-examine Goldrick regarding the same credibility
finding at a pretrial suppression hearing, on grounds that

the co-defendant had raised Fourth Amendment objections

"similar in nature" to the objections raised by the
defendant in Miret-Gonzelez.    See id. at *13 n.1.

         Cedeño was tried, convicted, and sentenced.     This

appeal followed.
                         DISCUSSION

         We review a trial court's decision to limit the

scope of cross-examination for abuse of discretion.     United
States v. Figueroa, 548 F.3d 222, 226 (2d Cir. 2008).     A

district court abuses its discretion "when (1) its decision
rests on an error of law (such as application of the wrong

legal principle) or a clearly erroneous factual finding, or
(2) its decision -- though not necessarily the product of a

legal error or a clearly erroneous factual finding -- cannot


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be located within the range of permissible decisions."        Id.
at 226 (internal quotation marks omitted).     Even if a

reviewing court finds error, a new trial is not required if
the error was harmless.    Delaware v. Van Arsdall, 475 U.S.

673, 684 (1986); see also United States v. Paulino, 445 F.3d
211, 219 (2d Cir. 2006).
          In granting the government's motion in limine, the

district court relied exclusively on Cruz as it considered
only the two issues discussed there:      (1) whether the prior

judicial finding addressed the witness's veracity in that

specific case or generally; and (2) whether the two sets of
testimony involved similar subject matter.      Cruz, 894 F.2d

at 43.   We conclude that the district court's inquiry was

too narrow.

          First, in Cruz we did not purport to set out a

rigid two-part test, and, in fact, we did not do so.       See
id.   We held that the trial court acted "within its

discretion" in refusing to admit the transcript of a prior
proceeding in a different court where a different judge had
found the witness not credible.     Id.   We noted that the

prior court found that the witness was lacking credibility
only in the prior case and not in general, and that there
was no connection between the testimonies in the two cases.

Id.   We did not hold or suggest, however, that these were


                              -5-
the only factors to be considered or that they were
determinative factors.    See United States v. Nelson, 365 F.

Supp. 2d 381, 387-88 & 388 n.2 (S.D.N.Y. 2005) (discussing
Cruz and concluding two considerations were discretionary

factors).    Cruz held that consideration of these two factors
was sufficient to avoid a finding of abuse of discretion on
the particular facts of that case only; it did not hold that

consideration of these two factors is sufficient to avoid
such a finding in all cases.    Indeed, it is not.

            Second, as we noted in Cruz, Rule 608(b) of the

Federal Rules of Evidence vests the district courts with
discretion to permit cross-examination into "specific

instances of conduct" if the conduct is "probative of [that

witness's character for] truthfulness or untruthfulness."
Fed. R. Evid. 608(b), cited in Cruz, 894 F.2d at 43. 2     While

a district court may impose "reasonable limits" on cross-
examination to protect against, e.g., harassment, prejudice,
confusion, and waste, Van Arsdall, 475 U.S. at 679, it must

also give "wide latitude" to a defendant in a criminal case

to cross-examine government witnesses, see United States v.
Weiss, 930 F.2d 185, 197 (2d Cir. 1991) (citing United
States v. Pedroza, 750 F.2d 187, 195 (2d Cir. 1984)).      A

     2
          Rule 608(b) provides, however, that "extrinsic
evidence" may not be used to prove the "specific instances" of
conduct. Fed. R. Evid. 608(b).

                               -6-
rigid application of Cruz could unduly circumscribe both a
trial court's discretion in a manner "contrary to the plain

meaning of Rule 608(b)(1)," United States v. Brown, 69 F.
Supp. 2d 518, 519 n.1 (S.D.N.Y. 1999), and a defendant's

right under the Confrontation Clause to an effective cross-
examination.
         Third, this Court has previously upheld a district

court's ruling that a witness could be cross-examined based
on "prior occasions when his testimony in other cases had

been criticized by [a] court as unworthy of belief."        United

States v. Terry, 702 F.2d 299, 316 (2d Cir. 1983).     In
Terry, we held that:   "Proof that a judge . . . before whom

[the witness] had testified . . . had found that [the

witness] had 'guessed under oath' was probative of the
weight to be accorded his testimony."   Id.   See also United

States v. Whitmore, 359 F.3d 609, 619 (D.C. Cir. 2004)

("Nothing could be more probative of a witness's character

for untruthfulness than evidence that the witness has
previously lied under oath."); United States v. Schatzle,
901 F.2d 252, 255 (2d Cir. 1990) (finding witness's omission

of prior arrest from bar application "relevant to [the
witness's] capacity for truthfulness"); United States v.
Bagaric, 706 F.2d 42, 65 (2d Cir. 1983) (upholding ruling

permitting cross-examination of defendant at trial based


                             -7-
upon finding by immigration judge that defendant's testimony
in prior deportation proceeding was "not credible"),

overruled on other grounds by NOW, Inc. v. Scheidler, 510
U.S. 249 (1994).

           We hold that the district court erred in limiting
its analysis to the two factors discussed in Cruz without
considering other factors affecting the probity and

relevancy of a prior court's finding that a witness had
lied.3   The district court could have also considered, for

example:   (1) whether the lie was under oath in a judicial
proceeding or was made in a less formal context; (2) whether

the lie was about a matter that was significant; (3) how

much time had elapsed since the lie was told and whether

there had been any intervening credibility determination

regarding the witness; (4) the apparent motive for the lie
and whether a similar motive existed in the current

proceeding; and (5) whether the witness offered an

explanation for the lie and, if so, whether the explanation
was plausible.     See, e.g., United States v. Dawson, 434 F.3d

956, 959 (7th Cir. 2006), aff'g on reh'g, 425 F.3d 389 (7th


     3
          At oral argument, the government raised the question of
whether past judicial credibility determinations are inadmissible
hearsay. It did not raise this question in earlier briefing.
Accordingly, we treat the argument as forfeited and do not
discuss it further. See Warren v. Garvin, 219 F.3d 111, 113 n.2
(2d Cir. 2000) (declining to address an issue first raised at
oral argument).

                               -8-
Cir. 2005); Whitmore, 359 F.3d at 619; Hynes v. Coughlin, 79
F.3d 285, 293-94 (2d Cir. 1996); Terry, 702 F.2d at 316.

Here, for example, the Appellate Division found that
Goldrick expressly contradicted an incident report he wrote

on the day of the arrest and that his effort to explain the
contradiction was "unconvinc[ing]."    Miret-Gonzalez, 159
A.D.2d at 648-50.   Indeed, the district court felt that the

prior judicial finding was sufficiently relevant to permit
cross-examination on this basis at the suppression hearing.

         Although we conclude that the district court

committed error, we find also that the error was harmless.
At trial, Goldrick testified primarily about the arrest of

two co-conspirators and the discovery of incriminating

evidence during their arrest, and mentioned in passing the
police's non-custodial questioning of Cedeño.    Other

officers fully corroborated Goldrick's testimony.   Because
the error was harmless, the district court did not commit

reversible error.   See Paulino, 445 F.3d at 219.
                          CONCLUSION

         For the foregoing reasons, the judgment of the

district court is AFFIRMED.




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