                                                                           FILED
                               NOT FOR PUBLICATION                         DEC 02 2013

                                                                        MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                    U.S. COURT OF APPEALS



                               FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                          No. 12-50534

                 Plaintiff - Appellee,             D.C. No. 5:10-cr-00070-VAP-1

       v.
                                                   MEMORANDUM*
JOEL CLEVE MILLER,

                 Defendant - Appellant.

                      Appeal from the United States District Court
                          for the Central District of California
                      Virginia A. Phillips, District Judge, Presiding

                        Argued and Submitted November 8, 2013
                                 Pasadena, California

Before:        FISHER and CLIFTON, Circuit Judges, and SINGLETON, District
              Judge.**

      Joel Cleve Miller appeals his conviction for possession of an AK-47

machine gun in violation of 18 U.S.C. § 922(o)(1). Finding evidentiary error, we

vacate the conviction and remand for further proceedings.


          *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
         The Honorable James K. Singleton, Senior United States District Judge
for the District of Alaska, sitting by designation.
      1. The district court abused its discretion by precluding Miller from calling

two witnesses to testify about their alleged extramarital affair. Their testimony

about the affair would have corroborated Miller’s testimony and bolstered his

defense that he was framed in retaliation for threatening to report the alleged affair

to military authorities. If the jurors believed the affair took place, they may have

been more likely to believe that Miller was framed, that the AK-47 was actually

Christopher Bruce’s and that Miller was unaware that the AK-47 was fully

automatic. Corroborating evidence about the affair also may have led the jury to

question the credibility of two important government witnesses, Tina Loewenberg

and Michael Stults. If Miller’s ex-wife was framing him, these witnesses, who

were her friends, may have been influenced to give false testimony. The excluded

evidence therefore would have been helpful to the defense.

      The government has offered two theories upon which to sustain the

exclusion of the testimony, neither of which is persuasive. First, on this record,

there is no basis to conclude that Miller sought to call these witnesses for the

primary purpose of impeaching them with otherwise inadmissible evidence. See

United States v. Gilbert, 57 F.3d 709 (9th Cir. 1995) (per curiam); United States v.

Crouch, 731 F.2d 621 (9th Cir. 1984). Second, Miller did not seek to call these




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witnesses for the sole purpose of impeaching them, but rather to elicit substantive

evidence of the alleged affair, which would have bolstered his defense.

      When we discover an error not of constitutional magnitude, we must reverse

unless there is a fair assurance of harmlessness or, stated otherwise, unless it is

more probable than not that the error did not materially affect the verdict. See

United States v. Gonzalez-Flores, 418 F.3d 1093, 1099 (9th Cir. 2005). The

burden to show the harmlessness of the error is on the government. See id. The

government has not satisfied its burden here. Evidence of the affair would have

bolstered Miller’s theory of the case and might have undermined the credibility of

two key government witnesses, including the only witness (Stults) who presented

direct evidence that Miller knew the AK-47 was fully automatic. The evidence of

guilt was not so overwhelming as to render the error harmless. Nor can we dismiss

the excluded testimony as cumulative: corroborating testimony is not cumulative

when it bolsters the defendant’s contested version of the facts. See United States v.

Ibisevic, 675 F.3d 342, 351 (4th Cir. 2012).

      2. Because we hold that the error requires us to vacate Miller’s conviction,

we need not decide whether the error denied Miller his constitutional right to

present a defense. See United States v. Stever, 603 F.3d 747, 755 (9th Cir. 2010).




                                           3
      3. We reject Miller’s argument that the district court committed reversible

error when it failed to compel the government to grant use immunity to two

witnesses. The record does not support the conclusion that the prosecution

intentionally caused these witnesses to invoke the Fifth Amendment privilege

against self-incrimination with the purpose of distorting the factfinding process, or

that “the prosecution granted immunity to a government witness in order to obtain

that witness’s testimony, but denied immunity to a defense witness whose

testimony would have directly contradicted that of the government witness, with

the effect of so distorting the fact-finding process that the defendant was denied his

due process right to a fundamentally fair trial.” United States v. Straub, 538 F.3d

1147, 1162 (9th Cir. 2008). Given that Ms. Miller and Bruce would have directly

contradicted government witnesses only on minor points, there was no denial of

due process.

      VACATED AND REMANDED.




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