THEODORE J. DE LISI, PETITIONER-APPELLEE,

v.

JAMES V. CROSBY, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, RESPONDENT-APPELLANT

PRYOR, Circuit Judge: The issue in this appeal is whether the district court erred when it granted a 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 De Lisi’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. 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 De Lisi’s 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.

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.

De Lisi 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 Racketeer 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 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 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 diamond-studded 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 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 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 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 evi-dentiary 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 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 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, 89 L.Ed.2d 674 (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 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.