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09-2337 & 09-2438 U.S. v. Beck

By: WISCONSIN LAW JOURNAL STAFF//November 5, 2010//

09-2337 & 09-2438 U.S. v. Beck

By: WISCONSIN LAW JOURNAL STAFF//November 5, 2010//

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Evidence
Cross-examination; bias; harmless error

It was err not to permit defendants to cross-examine a witness about his potential bias, but the error was harmless.

“[Rule 404(b)] bars ‘[e]vidence of other crimes, wrongs, or acts . . . to prove the character of a person in order to show action in conformity therewith.’ Fed. R. Evid. 404(b). Questions about Simmons’s bias as it relates to his gang allegiance and anticipated benefits for testifying falsely do not implicate Rule 404(b)’s prohibition. Here, the questions were not aimed at showing that because Simmons is a gang member, he lies generally and he was doing so here. Instead, it was offered to show why he was lying: that he was covering up for the real robbers (perhaps Mook, George, the unidentified man, or Big Bro) who were higher-ranking gang members. Because the cross-examination questions sought to show Simmons’s bias and not his bad character in general, they did not implicate Rule 404(b). See Young v. Rabideau, 821 F.2d 373, 378-79 & n. 3 (7th Cir. 1987). Further, the danger inherent in such questions is correctly resolved under a Rule 403 analysis. Harris, 587 F.3d at 867; United States v. Cooper, 591 F.3d 582, 589 (7th Cir. 2010). In this case, the questions were relevant, sufficiently probative to explore possible bias, and the issue of unfair prejudice was minimal, at least at the point where the court cut off the questioning. United States v. Seals, 419 F.3d 600, 606 (7th Cir. 2005).”

Affirmed.

09-2337 & 09-2438 U.S. v. Beck

Appeals from the United States District Court for the Western District of Wisconsin, Crabb, J., Manion, J.

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