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.
 Figueroa was convicted of being a felon in possession of 1

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.

 We address Figueroa's remaining claims in a summary order 2

filed today.

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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. At trial, the district 1

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
 The district court denied Figueroa's motion to suppress 3

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.

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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
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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
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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
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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 cross13 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 cross19 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 cross23 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
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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
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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).
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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
 Defense counsel did not request permission to voir dire 4

the witness outside the presence of the jury in an effort to

establish a foundation for his proposed inquiry.

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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
 See Anti-Defamation League, Hate on Display: Extremist 5

(continued...)

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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. The fact that a witness 5
(...continued) 5

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).

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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
 There may, of course, be occasions when it is contested 6

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.

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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
 Rule 608 provides, in pertinent part: 7

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).

 Rule 402 provides, in pertinent part: "All relevant 8

evidence is admissible, except as otherwise provided by the

(continued...)

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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 402 even when the impeachment material is 8
(...continued) 8

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.

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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. Here, as in 9

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
 Although Abel did not involve the Confrontation Clause 10

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.

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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
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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
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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
 Figueroa had other opportunities to cross-examine 11

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.

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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
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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.