UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ARNOLD L. H. AMBERS, JR., a/k/a Heavy, Defendant-Appellant.
No. 95-5464
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
Decided: June 3, 1996
PUBLISHED. Argued: April 5, 1996. Before WILKINSON, Chief Judge, MICHAEL, Circuit Judge, and BUTZNER, Senior Circuit Judge. Affirmed by published opinion. Chief Judge Wilkinson wrote the opinion, in which Judge Michael and Senior Judge Butzner joined.
COUNSEL
OPINION
WILKINSON, Chief Judge:
Appellant Arnold L. H. Ambers, Jr. was convicted of conspiracy to possess and distribute crack cocaine, and was sentenced to 248 months in prison. On appeal, Ambers asserts that the district court abused its discretion by barring him from discussing the operation of the Sentencing Guidelines when
I.
On September 8, 1994, a grand jury indicted Ambers and several other individuals of conspiracy to possеss and distribute crack cocaine.
They will be testifying because they are gеtting something out of it, and the something that anybody who is charged in these cases is going to get out of it is the hope of what is called a 5K1.
Now, when someone is charged with conspiracy, that carries ten to life. Under the facts as presented by the United States Attorney‘s office, whаt the majority of these people are going to be coming in at is over 1.5 kilograms of crack cocaine. That is what is called Level 38. Now, Level 38 . . . .
The government objected at this point, and the district judge instructed Ambers’ counsel that “I“m not going to permit you to argue penalty.”
The judge clarified his position in a conference in chambers. “[T]he defense is certainly entitled to show that there is a serious potential penalty afflicting or potentially afflicting these witnesses,” he advised. He thus thought it “proper to inquire about whether they‘re faсing a serious penalty, and serious in terms of time in prison, so on,” including “the fact that the penalty is ten years to life.” But, he cautioned, “[w]e‘re not going into the Sentencing Guidelines at all,” because such a discussion would only confuse the jury.
During the trial, the government sought to establish that Ambers suрplied crack cocaine to a large distribution ring in Fluvanna County, Virginia. Several law enforcement officers described Ambers’ role in the drug conspiracy. The government also presented the testimony of thirteen witnesses who had executed plea agreements, mаny of whom were co-conspirators. Some testified that they had bought crack cocaine from Ambers, others that they had seen Ambers sell crack cocaine, and others that they had heard that Ambers supplied crack cocaine to local dealers.
In his cross-examination of these witnesses, Ambers’ counsel asked whether they hoped to gain favorable sentencing treatment as a result of their testimony. He questioned several about the nature of their plea agreements, including the minimum and maximum penalties for their offensеs. He also asked about provisions in their plea agreements allowing for a reduced sentence under
On February 16, 1995, the jury found Ambers guilty of conspiring to distribute crack cocaine. The sentencing hearing was held on May 26. The applicable range under the Sentencing Guidelines for Ambers’ offense was 235 to 292 months in prison. Ambers, though, had a prior conviction in 1989 for possession of cocaine with intent to distribute, and was thus subject to a minimum sentence under
II.
Ambers’ first claim is that the district judge improperly prevented him from questioning government witnesses about the precise еffect of the Sentencing Guidelines on their pending sentences. Consequently, Ambers alleges, he was unable to sufficiently expose a possible motivation for their testimony. We disagree. A district court‘s restrictions on cross-examination are reviewed for abuse of discretiоn. See United States v. Piche, 981 F.2d 706, 716 (4th Cir. 1992), cert. denied, 508 U.S. 916 (1993). Here, the district court acted within the scope of its considerable discretion in fashioning the reach of Ambers’ cross-examination.
To be sure, “the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally proteсted right of cross-examination.” Davis v. Alaska, 415 U.S. 308, 316-17 (1974). Nevertheless, “trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); see United States v. Morsley, 64 F.3d 907, 918 n.10 (4th Cir. 1995) (commenting on “the broad latitude afforded a trial judge in controlling cross-examination“), cert. denied, 116 S. Ct. 749 (1996).
These same principles hold true when cross-examination pertains to the motivation of a witness testifying for the government. Based on the sorts of concerns mentioned above, trial judges have sometimes exercised their broad discretion to limit inquiry into the potential sentences faced by a cooperating witness. See United States v. Luciano-Mosquera, 63 F.3d 1142, 1153 (1st Cir. 1995) (upholding restriction of cross-examination on penalty witness would have faced had government not dropped charges); United States v. Nelson, 39 F.3d 705, 707-09 (7th Cir. 1994) (upholding restriction of cross-examination on penalty witness would have faced without executing plea agreement); Brown v. Powell, 975 F.2d 1 (1st Cir. 1992) (same), cert. dismissed, 506 U.S. 1073 (1993); United States v. Dadanian, 818 F.2d 1443, 1449 (9th Cir. 1987) (same), modified on other grounds, 856 F.2d 1391 (1988).
The critical question, we have observed, is whethеr the defendant is allowed an opportunity to examine a witness’ “subjective understanding of his bargain with the government,” “for it is this understanding which is of probative value on the issue of bias.” Hoover v. Maryland, 714 F.2d 301, 305, 306 (4th Cir. 1983). Here, Ambers had ample freedom to explore the government witnesses’ subjective motive for testifying. His counsel asked the witnesses whether they were testifying to gain a reduced sentence, quizzed them about their understanding of the substantial assistance reduction under
The sole restriction imposed on Ambers was on examining precisely how a witness’ potential sentencing reduction fit into the structure of the Sentencing Guidelines. He could nоt explain, for instance, that a witness facing a sentence of ten years to life was being treated as a “Level 38” offender. This limitation was simply meant to avoid distracting the jury with a technical analysis of the Guidelines, an analysis that would shed little light on a witness’ subjective under-
standing of his plea agreement. Such grounds for controlling cross-examination are appropriate. Van Arsdall, 475 U.S. at 679 (allowing restrictions designed to prevent “confusion of the issues” and “repetitive” questioning). When faced with identical circumstances, the Second Circuit ruled:
We also reject the contention that the trial court erred when it barred the questioning of cooperating witnesses as to what effect the Guidelines would have on their sentences. The court permitted cross-examination of those witnesses as to their plea agreements, the statutory maximum sentences they faced, and the benefits they hoped to gain from cooperation. The court was well within its discretion in ruling that the vagaries of Guidelines calculations were not a proper subject for cross-examination.
United States v. Rosa, 11 F.3d 315, 336 (2d Cir. 1993), cert. denied, 114 S. Ct. 1565 (1994).
We agree with this reasoning. To entitlе defense counsel to explore the intricacies of the Guidelines scheme on cross-examination might do much to confuse lay jurors and little to enlighten them. The district court allowed Ambers abundant opportunity to explore the motivation of the government witnesses in tеstifying. The court plainly did not abuse its discretion in preventing Ambers from delving into the details of the Sentencing Guidelines.
III.
In his second assignment of error, Ambers asserts that he should have received a downward departure in his sentence under
(1995). The Commission‘s proposal, Ambers contends, illustrates that it had failed to consider thе appropriateness of the crack-powder distinction when initially drafting the Guidelines.
Ambers’ claim fails for many reasons. Simply because the Commission proposes a revision does not mean that it failed adequately to consider the existing policy; the Commission did cоnsider the crack-powder distinction when formulating the Guidelines. See United States v. Alton, 60 F.3d 1065, 1068-69 (3d Cir.), cert. denied, 116 S. Ct. 576 (1995). And at any rate, the broad issue of proper sentencing levels for crack cocaine offenses does not involve the sort of individual, case-specific mitigating circumstance justifying а departure under
IV.
Ambers also challenges his sentence on double jeopardy grounds. His argument stems from the use of his 1989 conviction to subject him to the mandatory minimum sentence prescribed by
This argument, however, misconceives the nature of a conspiracy offense. A
as substantive offenses“). As a result, “prosecution of a defendant for conspiracy, where certain of the оvert acts relied upon by the Government are based on substantive offenses for which the defendant has been previously convicted, does not violate the Double Jeopardy Clause.” Felix, 503 U.S. at 380-81.
Enhancing the sentence for conspiracy because of a prior conviction, where one of the overt acts supporting the conspiracy resulted in the prior conviction, likewise presents no double jeopardy problem. The enhancement increases the sentence for the current offense (conspiracy), not the sentence for the distinct, prior offense: “Enhancement statutes, whether in the nature of criminal history provisions such as those contained in the Sentencing Guidelines, or recidivist statutes which are common place in state criminal laws, do not change the penalty imposеd for the earlier conviction.” Nichols v. United States, 114 S. Ct. 1921, 1927 (1994); see Gryger v. Burke, 334 U.S. 728, 732 (1948). Based on this logic, the Supreme Court has consistently rejected double jeopardy challenges to sentencing schemes that enhance a defendant‘s sentence because of a prior conviction. Witte v. United States, 115 S. Ct. 2199, 2206 (1995).
The application of
V.
For the foregoing reasons, the judgment in this case is
AFFIRMED.