FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 March 18, 2005 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-15201

________________________

D. C. Docket No. 96-00400-CV-SH

THEODORE J. DE LISI, 

Petitioner-Appellee, 

versus 

JAMES V. CROSBY, Secretary, 

Florida Department of Corrections, 

Respondent-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(March 18, 2005)

Before ANDERSON, PRYOR and HILL, Circuit Judges.

PRYOR, Circuit Judge:

The issue in this appeal is whether the district court erred when it granted a
2

writ of habeas corpus on the ground that the state trial court violated Theodore De

Lisi’s rights, under the Confrontation and Compulsory Process Clauses of the Sixth

Amendment, by refusing to permit De Lisi to cross-examine James White, the star

witness for the government, about White’s bank records and tax returns and by

quashing a subpoena for White’s tax returns. The primary defense strategy was to

attack White’s credibility on several grounds, including his unexplained,

substantial, and potentially illegal income. To that end, De Lisi elicited abundant

evidence that White was a career criminal who lived a suspiciously lavish lifestyle

and had received lenient treatment by the government. The jury even heard White

invoke his privilege against self-incrimination in response to a question about tax

fraud, and in his closing argument DeLisi’s counsel reminded the jury about that

event. Because any error in limiting the cross-examination of White about the tax

returns and bank records was harmless and quashing the subpoena was not

material, we reverse the grant of habeas relief by the district court.

I. BACKGROUND

To explain the context of this appeal, we will review three matters. The first

matter is the events leading to the criminal charges against De Lisi. We will then

review the proceedings in the state courts. Finally, we will review the habeas

proceedings in the district court from which this appeal was taken.
3

A. The Events Leading to the Criminal Charges

James White, a convicted felon, worked as a confidential informant for the

Florida Department of Law Enforcement (FDLE). On June 17, 1988, White met

with De Lisi and his brother, Richard, to discuss importing marijuana from

Colombia for later distribution in New York by Richard. At that meeting, De Lisi

stated that “he didn’t want to do it or ... be involved in it.” White met with Richard

and De Lisi again on July 7, 1988, at the automobile paint and body shop owned

by the De Lisi family, to discuss importing marijuana, but De Lisi did not

participate in that part of the conversation. 

On July 19, 1988, the FDLE arranged a meeting between Richard and White

at the Pompano Air Center. The agent who monitored the meeting visually and

with electronic audio surveillance testified that two persons, neither of whom the

agent could identify as De Lisi, picked up White and drove away. After losing

electronic contact with and sight of the car, the agent went to the De Lisis’

automotive shop. The agent did not see the car or White at the automotive shop,

waited for approximately one minute, and returned to the Air Center, where he

found White waiting. The agent testified that, based on his observations and a

debriefing of White, the agent did not believe that White went to the automotive

shop that day. 
4

White testified that he was picked up at the Air Center by Richard, and that

De Lisi was not in the car. White further testified that Richard drove him to the

shop, where De Lisi was waiting and gave White a map of Colombia to show

White where to pick up the marijuana. It is undisputed that the map White gave

the agent had De Lisi’s fingerprints on it. 

B. The Proceedings in the State Courts 

In late 1988, De Lisi was charged by the State of Florida with trafficking in

excess of 100 pounds of marijuana, conspiracy to traffic in excess of 100 pounds of

marijuana, and a violation of the Florida Racketeering Influenced and Corrupt

Organizations Act (RICO). Richard and an associate, Terry Johnson, were also

charged with those crimes. After the state was unable to locate Johnson, a joint

trial was scheduled for the De Lisi brothers. 

On August 31, 1989, more than four months after the deadline for the

completion of discovery, the prosecution received a discovery response with 390

pages of defense exhibits that consisted primarily of White’s personal bank

records. Also after the deadline, De Lisi served a subpoena for the income tax

returns of both White and his wife, Shelley. After a pre-trial hearing on September

20, 1989, the court found that these untimely filings by De Lisi violated both

Florida discovery rules and the pretrial order, and the court granted motions by the
5

state to exclude the bank records and quash the subpoena for the Whites’ tax

returns. The court also based its order in part on erroneous information about the

bank records and Shelley White’s status as a witness, which the court received in

an ex parte communication with the prosecution. 

At trial, De Lisi’s defense strategy was to destroy White’s credibility on

several fronts, because White’s testimony was the linchpin of the case for the

government. De Lisi argued that White’s testimony was unreliable because White

was a career criminal still engaged in suspicious activities and White had possibly

given false testimony in another proceeding. De Lisi argued that because White

had received lenient treatment from the government and was at risk of further

prosecution and forfeiture of assets, White had an incentive to give false testimony

favorable to the government. De Lisi also contended that White had brain damage

from an accident and drug use, and White’s alleged mental impairment made his

testimony unreliable. 

During his cross-examination of White, De Lisi elicited several admissions

to support De Lisi’s argument that White lacked credibility and had reason to be

biased in favor of the prosecution. White admitted that he had been released from

jail when he began working as an informant, and his sentence was reduced from

five years to four months. White admitted that he no longer faced statewide
6

indictment when he agreed to work as an informant. White conceded that he had

been acquitted for a cocaine charge on a technicality, he used cocaine while

working as an informant, and he smuggled marijuana on at least thirty occasions

for which he was not prosecuted. White understood that his assets were subject to

forfeiture if he was convicted of drug smuggling, and White admitted that he had

taken precautions against forfeiture by forming an off-shore corporation in the

Cayman Islands. 

De Lisi also attempted to prove, during his cross-examination of White, that

White was still involved in illegal activities and perhaps had given false testimony

in an earlier trial. De Lisi established that, although White had testified at a trial

five years earlier to owning only $20,000 in liquid assets, and since then had an

annual income of about $50,000, White lived a lavish lifestyle inconsistent with a

middle-class income. White had spent at least $45,000 at East Coast Avionics

during the three years before trial, and spent approximately $5,000 per year to

maintain his guard dogs. White conceded that he owned a $500,000 ranch, a

$240,000 plane, a $223,000 motor home, a $43,000 Jaguar, a $15,000 diamondstudded Rolex watch that he wore at trial, and a 5.25 carat diamond pinky ring that

he also wore at trial. For emphasis, De Lisi required White to write the value of

each asset on a board that rested on an easel near the jury. The total value of those
7

assets exceeded one million dollars.

The only limitation placed on De Lisi’s strategy to discredit White pertained

to the bank records and tax returns, but De Lisi still scored points regarding both

White’s bank records and taxes. On cross-examination, White admitted that one

reason he created his corporation in the Cayman Islands was to avoid paying taxes

on illegal income. After De Lisi asked whether White had filed false tax returns,

the trial court informed White that he could choose not to answer if, by answering,

he might incriminate himself. White then invoked, in the presence of the jury, his

right not to incriminate himself. De Lisi argued in closing that White’s invocation

of the privilege regarding possible tax fraud evidenced that his testimony was

incredible. De Lisi also argued in closing that White had more bank accounts than

the president of each bank where White’s funds were deposited. 

De Lisi’s strategy failed. De Lisi was convicted on all three charges and

sentenced to thirty-year consecutive sentences on each charge. On August 7, 1991,

the Florida Second District Court of Appeals affirmed on direct appeal De Lisi’s

RICO and trafficking convictions, but overturned the conviction for conspiracy. 

DeLisi v. State, 585 So. 2d 963 (Fla. 2d Dist. Ct. App. 1991). The court held that,

although De Lisi’s fingerprints on the map, combined with White’s testimony that

De Lisi gave him the map, supported the RICO and trafficking convictions, the
8

fingerprints did not support a conviction for conspiracy. Id. at 964-65.

C. Federal Habeas Proceedings

On February 20, 1996, De Lisi filed a federal habeas petition that stated two

grounds for relief: (1) the trial court violated De Lisi’s rights under the

Confrontation Clause of the Sixth Amendment by excluding evidence of the

Whites’ bank statements and prohibiting De Lisi from cross-examining White

about White’s tax returns, and (2) the trial court violated De Lisi’s rights under the

Compulsory Process Clause of the Sixth Amendment by quashing the subpoenas

for the Whites’ tax returns. The district court denied De Lisi’s petition for lack of

exhaustion, and De Lisi appealed. The state conceded on appeal that the district

court erred, but argued that the petition should be dismissed because De Lisi was in

procedural default. This Court reversed and remanded for the district court to

address the issue of procedural default. On remand, the district court found that the

claims were procedurally barred. 

De Lisi appealed again. This Court reversed and held that De Lisi’s

confrontation and compulsory process claims were not procedurally barred because

the state appellate court did not declare that its judgment rested on a state

procedural bar. On remand, the magistrate judge held an evidentiary hearing

regarding both White’s bank statements and the error of the trial court in stating
9

that Shelley White was not a witness in the order excluding the bank statements. 

At the evidentiary hearing, De Lisi revised his argument about the bank

records and admitted that the records showed far less questionable income than he

had contended before the trial. At the pre-trial hearing, De Lisi asserted that the

bank statements proved that White deposited between four million and fifteen

million dollars in the bank accounts. At the evidentiary hearing ten years later, De

Lisi conceded that his earlier calculation was erroneous because he had misread

internal bank tracking numbers on the statements as the amount of the assets in

those accounts. At the evidentiary hearing, De Lisi admitted that the bank records

evidenced that White had deposited, at most, $750,000 into the account between

1984 and 1988. De Lisi’s financial expert also admitted, at the evidentiary hearing,

that the $750,000 might include a significant amount of double counting, and the

expert needed other documents he did not possess to arrive at an accurate

estimation. De Lisi’s financial expert also conceded that White’s net worth may

have increased from 1982 to 1989 by as little as $63,000, consistent with White’s

testimony at trial. 

After the evidentiary hearing, the magistrate judge recommended that De

Lisi’s habeas petition be granted. The district court adopted the magistrate judge’s

report and recommendation and granted De Lisi’s habeas petition. The state filed a
10

motion for stay, which the district court denied on October 12, 2004. The state

immediately filed a notice of appeal and an emergency motion for stay. We

entered a temporary stay, and upon letter briefs from both parties, stayed the order

of the district court pending appeal. 

II. STANDARD OF REVIEW

Because this habeas petition was filed before April 24, 1996, the effective

date of the Antiterrorism and Effective Death Penalty Act, that Act does not apply. 

Thompson v. Haley, 255 F.3d 1292, 1295 (11th Cir. 2001). We apply separate

standards for reviewing the determinations of the state courts and the district court. 

We presume the factual findings of the state court are correct if reasonably based

on the record, and we review the conclusions of law of the state court de novo. Id. 

We review the findings of fact of the district court for clear error, and the legal

conclusions of the district court de novo. Id. A determination of the harm caused

by erroneous evidentiary decisions in a criminal case is a conclusion of law. Lacy

v. Gardino, 791 F.2d 980, 986 (1st Cir. 1986).

III. DISCUSSION

Florida makes two arguments on appeal. First, Florida argues that the trial

court did not violate De Lisi’s rights, under the Confrontation Clause of the Sixth

Amendment, when the court refused to allow De Lisi to use White’s bank records
11

to cross-examine White, and any violation of the Confrontation Clause was

harmless when the court permitted White to assert his Fifth Amendment privilege

in response to questions about filing false income tax returns. Second, Florida

argues that the trial court did not violate De Lisi’s rights, under the Compulsory

Process Clause of the Sixth Amendment, when the court quashed De Lisi’s

subpoena for White’s income tax returns, because the excluded tax returns were

not material. We consider each argument in turn.

A. The Trial Court Did Not Violate De Lisi’s Confrontation Rights.

A limitation on cross-examination can violate the Sixth Amendment right to

confrontation if it prevents the defendant from showing that a witness is biased:

[A] criminal defendant states a violation of the Confrontation Clause

by showing that he was prohibited from engaging in otherwise

appropriate cross-examination designed to show a prototypical form

of bias on the part of the witness, and thereby “to expose to the jury

the facts from which jurors ... could appropriately draw inferences

relating to the reliability of the witness.” 

Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S. Ct. 1431, 1436 (1986). The

discretion of a trial judge to limit cross-examination is more narrowly

circumscribed when the witness is vital to the case presented by the government:

“where the witness sought to be cross-examined is the government’s ‘star’ witness,

providing an essential link in the prosecution’s case, the importance of full

cross-examination to disclose possible bias is necessarily increased.” United States
12

v. Lankford, 955 F.2d 1545, 1548 (11th Cir. 1992). 

Not every limitation on cross-examination violates the Confrontation Clause. 

“[T]he Sixth Amendment does not require unlimited inquiry into the potential bias

of a witness. As long as sufficient information is elicited from the witness from

which the jury can adequately assess possible motive or bias, the Sixth

Amendment is satisfied.” Id. at 1549 n.10 (internal citations and quotations marks

omitted). 

Florida contends that the district court erred when it found that the trial court

violated De Lisi’s right to cross-examine White, because any error of the trial court

was harmless. The district court concluded that the trial court violated De Lisi’s

rights both by permitting White to invoke his right not to incriminate himself and

by preventing De Lisi from cross-examining White about his bank records. We

first consider the decision of the trial court to permit White to invoke his right not

to incriminate himself, and then consider the decision of the trial court to exclude

White’s bank records.

1. White’s Invocation of His Fifth Amendment Privilege was Harmless Error.

Florida argues that if the trial court erred by permitting White to invoke his

right not to incriminate himself, any error was harmless. We agree. Although the

trial court erred by allowing White to invoke his privilege after White’s previous
13

waiver of that privilege, that error was harmless because De Lisi elicited

substantial evidence to allow the jury to assess White’s credibility.

The trial court erred by permitting White to assert his Fifth Amendment

privilege to refrain from responding to De Lisi’s question about whether White had

committed tax fraud. In a pre-trial deposition, White waived the privilege when he

answered the same question. “A witness who testifies at any proceeding, instead

of asserting his Fifth Amendment rights, loses the privilege.” United States v.

White, 846 F.2d 678, 690 (11th Cir. 1988).

Although the trial court erred by permitting White to assert his Fifth

Amendment privilege, that error entitles De Lisi to habeas relief only if the error

was not harmless. Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 827

(1967). Error is constitutionally harmful if “the error had substantial and injurious

effect or influence in determining the jury’s verdict.” California v. Roy, 519 U.S.

2, 5, 117 S. Ct. 337, 338 (1996). Because the erroneous exclusion of evidence

occurred “during the presentation of the case to the jury, [the error can be]

quantitatively assessed in the context of other evidence presented in order to

determine the effect it had on the trial.” Brecht v. Abrahamson, 507 U.S. 619, 629,

113 S. Ct. 1710, 1717 (1993) (internal citations and quotation marks omitted). 

Although this trial error is subject to harmless error review, trial errors are
14

subject, on habeas review, to an even less exacting standard than that employed on

direct review. “[W]here a judge, in a habeas proceeding, applying this standard of

harmless error, is in grave doubt as to the harmlessness of an error, the habeas

petitioner must win.” Roy, 519 U.S. at 5, 117 S. Ct. at 338. Grave doubt means

that, “in the judge’s mind, the matter is so evenly balanced that he feels himself in

virtual equipoise as to the harmlessness of the error.” O’Neal v. McAninch, 513

U.S. 432, 435, 115 S. Ct. 992, 994 (1995). We do not find ourselves in equipoise. 

The Supreme Court has explained that we must holistically evaluate the

cross-examination of the witness and determine whether an error in limiting crossexamination was harmless:

Whether such an error is harmless in a particular case depends upon a

host of factors, all readily accessible to reviewing courts. These

factors include the importance of the witness’[s] testimony in the

prosecution’s case, whether the testimony was cumulative, the

presence or absence of evidence corroborating or contradicting the

testimony of the witness on material points, the extent of

cross-examination otherwise permitted, and, of course, the overall

strength of the prosecution’s case.

Van Arsdall, 475 U.S. at 684, 106 S. Ct. at 1438. Although White’s testimony was

vital to the prosecution, was not cumulative, and lacked substantial corroboration,

the limitation on De Lisi’s cross-examination of White was insubstantial. 

De Lisi conducted a searching cross-examination of White in which De Lisi

elicited copious evidence to impeach White. When White invoked his right against
15

self-incrimination in the presence of the jury in response to a question about tax

fraud, that invocation actually benefitted De Lisi, as he reiterated in his closing

argument. Because the addition of the tax returns to this already ample evidence

would not have substantially changed the jury’s view of White’s bias or credibility,

the error of the trial court in permitting White to assert his Fifth Amendment

privilege cannot be said to have “had substantial and injurious effect or influence

in determining the jury’s verdict.” Roy, 519 U.S. at 5, 117 S. Ct. at 338. 

2. The Trial Court Did Not Violate the Confrontation Clause by Precluding CrossExamination About White’s Bank Records.

Florida next argues that the district court erred when it found that the trial

court violated De Lisi’s rights by preventing him from cross-examining White

about White’s bank records. De Lisi intended to question White about his bank

records to show that White had more assets than he could legitimately explain. 

The trial court did not violate De Lisi’s rights, because De Lisi showed, even

without the bank records, that White had suspiciously extensive assets. 

If anything, the exclusion of the bank records saved De Lisi from a potential

embarrassment. Before the trial, De Lisi asserted that the bank records evidenced

that White deposited between four million and fifteen million dollars, but ten years

later, De Lisi revised his estimate drastically downward. If the trial court had

permitted De Lisi to use the bank records, the government would have been able to
16

expose De Lisi’s earlier miscalculations and even bolster White’s damaged

credibility.

There is a stark contrast between the minor limitation of De Lisi’s crossexamination of White and the categorical limitations condemned by this Court and

the Supreme Court in other cases. In Lankford, the trial judge did not permit any

evidence that the children of the star witness of the government were subject to

pending government prosecution that might be dropped if the witness testified

favorably. 955 F.2d at 1548. In United States v. Baptista-Rodriguez, the trial

court excluded all the evidence necessary for several credibility challenges against

the star witness of the government. 17 F.3d 1354, 1366-67 (11th Cir. 1994). In

Van Arsdall, the trial court “prohibited all inquiry into the possibility that [the star

witness of the government] would be biased as a result of the State’s dismissal of

his pending public drunkenness charge.” 475 U.S. at 679, 106 S. Ct. at 1435

(emphasis added). In contrast, the trial court allowed De Lisi to conduct a broad

inquiry and elicit damaging admissions from White. Because the jury was allowed

to assess White’s credibility and possible motives for bias, “the Sixth Amendment

[was] satisfied.” Lankford, 955 F.2d at 1549 n.10. 

B. De Lisi Failed to Prove His Right to Compulsory Process Was Violated.

Florida argues that the trial court did not violate De Lisi’s right to
17

compulsory process, under the Sixth Amendment, when the court quashed De

Lisi’s subpoenas for White’s tax returns. We again agree. Because the tax returns

were not material under the deferential standard we employ on habeas review, the

trial court did not violate De Lisi’s rights when it quashed his subpoena.

To establish that the trial court violated his right to compulsory process, De

Lisi had to prove that the excluded tax returns were material. Taylor v. Singletary,

122 F.3d 1390, 1395 (11th Cir. 1997). De Lisi had to “show that the evidence

unavailable at trial could [have] reasonably be[en] taken to put the whole case in

such a different light as to undermine confidence in the verdict.” Id. This standard

is more rigorous than the harmless error standard: “the constitutional standard for

materiality ... imposes a higher burden on the petitioner than the harmless-error

standard of Brecht ....” Taylor, 122 F.3d at 1394; see also Kyles v. Whitley, 514

U.S. 419, 435-36, 115 S. Ct. 1555, 1566-67 (1995). 

We have already concluded that the limitations on cross-examination

regarding White’s tax returns and bank records were, at most, harmless error, and

De Lisi does not argue that the subpoenaed tax returns would have proved anything

different from the precluded cross-examination. Because De Lisi failed to

establish harmless error, he necessarily cannot meet the more rigorous standard of

materiality. De Lisi was not entitled to habeas relief.
18

IV. CONCLUSION

After De Lisi’s fierce assault on White’s credibility, the jury believed White

and convicted De Lisi with eyes wide open. The minor limitation of De Lisi’s

cross-examination of White either did not violate De Lisi’s constitutional rights or

was harmless error. The grant of habeas corpus by the district court is

REVERSED.