*1 Although Morgan seeks an evidentiary
hearing to develop the factual basis for his
claim, the arguments he has put forth are
insufficient to warrant him protection un-
der the state-created danger doctrine even
were he to prove everything he has al-
leged. Accordingly, there is no genuine
issue of material fact and we opt not to
transfer this case to the district court for
further fact finding.
IV sum, because Morgan has not alleged
a colorable claim for equitable estoppel or
violation of his substantive constitutional
rights, his case does not warrant transfer to the district court for further fact finding
under 28 § U.S.C. 2347(b)(3). We deny
the petition for review.
PETITION DENIED.
UNITED STATES of America,
Plaintiff-Appellee,
Patricia Ann LARSON, Defendant-
Appellant.
United States of America,
Plaintiff-Appellee,
Leon Neis Laverdure, Defendant-
Appellant.
Nos. 05-30076, 05-30077.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted En
Banc March 2007.
Filed Aug.
Before: MARY SCHROEDER, M. Judge, Chief Circuit HARRY PREGERSON, STEPHEN REINHARDT, RYMER, PAMELA ANN HAWKINS, GRABER, P. SUSAN KIM WARDLAW, McLANE RAYMOND C. FISHER, GOULD, RONALD M. PAEZ, RICHARD A. RICHARD C. TALLMAN, CLIFTON, RICHARD R. BEA, SMITH, T. CARLOS MILAN D. JR., IKUTA, and SANDRA S. Circuit Judges. PAEZ;
Opinion by Judge Concurrence by GRABER; Judge Dissent Judge HAWKINS.
PAEZ,
Judge:
Circuit
appeals
These
present
question
whether the Sixth Amendment Confronta-
rights
tion Clause
of Defendants Patricia
Ann Larson and Leon Neis Laverdure
they
were violated when
were barred from
cross-examining two witnesses
about
prison
sentences that
they would have
cooper-
faced but for their
ation with the Government. A three-judge
panel of our court held that
no
there was
constitutional violation and affirmed De-
fendants’ convictions. United
States
Larson,
(9th Cir.2006).
violated. The error was howev- er, and we therefore affirm their convic- tions.1
1. Defendants challenge do not their sen- tences. that if and Lam- represented ment
I. satisfaction, it would file ere testified to its Background sentence, a motion for reduced recom- Depart- Police Great Falls In depar- mending to the court extent of a number of began investigating ment cooperation. See ture warranted Falls, Great Montana drug dealers (2004). pleaded § 5K1.1 U.S.S.G. paid April Department area. charge and admit- guilty conspiracy to the a con- Riggs to make informant Connie kilograms five having ted distributed of metham- grams of 1.8 purchase trolled containing methamphetamine. a substance *4 police un- from Larson. The phetamine motion for sub- Only by the Government’s second controlled successfully attempted a Lamere receive a stantial assistance could Riggs. In Octo- buy through Larson from statutory mandatory sentence below the Gilstrap made informant Jason ber imprisonment. of life See methamphet- purchases of two controlled 3553(3); § § cmt. n. U.S.S.G. 5K1.1 U.S.C. Laverdure, in amount from one amine (2004). pleaded guilty under a Poitra in amount grams 1.46 and the other of charged her superseding indictment 2003, a third In December grams. of 1.79 to conspiring possess to with intent grams 3.2 of metham- purchased informant fifty grams at least of a sub- distribute Joy Lynn Poitra and her from phetamine of containing a detectable amount stance cousin, weeks la- Rick Lee Lamere. Two of her methamphetamine. As a result ter, another purchased same informant statutory a minimum sen- plea, she faced methamphetamine twenty-one grams of in the imprisonment tence of five from Poitra. § Gov- absence of a 5K1.1 motion ernment, 23, 2004, grand jury maximum sen- potential a federal with a July On Laverdure, Poitra, Larson, forty years prison. and U.S.C. tence of indicted 841(b)(1)(B). indictment, charging § single Lamere in a pos- conspiracy one to each with count In Larson and Laverdure October intent to dis- methamphetamine with sess jury. trial before a Poitra proceeded to Lam- informed tribute.2 The Government for the Lamere as witnesses and testified prior he at least two had ere because Poitra testified Government.3 convictions, he faced a statuto- felony drug cousin, 2003, Laverdure, her third offered life ry mandatory minimum sentence methamphetamine. purchase her help to of re- possibility without the imprisonment accompanied Lav- later agreed and Poitra 841(b)(1)(A). § lease. See 21 U.S.C. purchase he went to erdure when alley in an She waited methamphetamine. into and Lamere entered Both Poitra toward Larson’s whereby to while Laverdure walked they agreed plea agreements .25 returned with Laverdure testify against Larson house. and to cooperate which Poitra return, methamphetamine, ounces of the Govern- and Laverdure. Larson, to kilograms to five alleged to of cocaine between Janu- 3.5 indictment containing 29, 2004, kilograms of a substance February fifteen ary the four 1, 1999, Laverdure, to methamphetamine and five others) (and conspired possess with the “to containing substances, kilograms of a substance fifteen in- controlled intent to distribute (No specific methamphetamine to Lamere. grams cluding to 500 or more but not limited methamphetamine attributed amount containing a detectable amount substance Poitra.) methamphetamine,” violation of 841(a)(1) §§ 846. The indictment U.S.C. had been sen- kilograms nor Lamere of a sub- 3. Neither Poitra to fifteen attributed five at the time. tenced containing methamphetamine and two stance purchase later sold. Poitra continued acknowledged sentence. Poitra that she did, methamphetamine regularly from Laver- and further that she testified had dure, totaling two-year-old pris- child did not about 3.5 ounces. She testi- want a on sentence. fied that she overheard Laverdure calling “Patty” methamphet- Larson obtain Lamere testified he obtained about amine on one or two occasions. Poitra ten methamphetamine ounces of from Lav- further testified that she from obtained occasions, On four erdure. Lamere was twenty-one the 3.2 both told Laverdure that was his Larson grams methamphetamine that she sold source, methamphetamine her identifying informant, to the confidential and that as the source of 1.5 ounces total. Lamere quantity Lamere obtained the latter that he purchased also testified six ounces her from Larson. methamphetamine from man named Fasto Komeotis. Komeotis told Lamere acknowledged before the drugs that the came from Larson. Lam- that she had charged also been with con- ere that he drop testified would Komeotis spiring possess methamphetamine with *5 off away about a block from intent to distribute Larson’s coop- and that she was house and that Komeotis erating with the would return expectation that the Gov- drugs. with the ernment would move to reduce her sen- tence. that drug She admitted she was a Lamere pleaded guilty testified that he a addict and dealer. On cross-examina- to conspiring to distribute more than 500 tion, Poitra also admitted that she had grams of methamphetamine and that he engaged police the in a high-speed car cooperating was with the Government in that, and caught, chase when she had been the he hope that would a receive reduced marijuana, found with methamphetamine, sentence. He admitted that he a was both a digital weigh drugs, scale to and ammu- drug drug addict and a dealer. He testi- nition for a 9mm handgun. She acknowl- fied that he had sold at pounds least ten of edged that she had grams, distributed 280 methamphetamine and that he had been ounces, roughly ten of methamphetamine. $3,600 averaging day in drug sales. He questioned Larson’s counsel Poitra about also that admitted he had been convicted testimony, inconsistencies in her including felonies, of seven including drug-related previous her police statement to that a 2-J¿ felonies, and that he had served person other than Larson or Laverdure cross-examination, in prison. On Lamere only had been Lamere’s source of metham- acknowledged that direct examination phetamine. he fifty testified that he pur- made about Laverdure, chases from but that at his
Larson’s counsel asked Poitra whether change plea hearing of he had testified mandatory she faced a minimum sentence only that he dealt with Laverdure three or five-years of imprisonment in the absence four times. of a motion the Government to reduce sentence; her she answered that did. she Other witnesses also testified on behalf The judge interjected district that this line of the Government. Riggs Informant tes- questioning of improper was and informed regarding tified purchase her controlled of the “all that matters related to sen- approximately of methamphet- ounce tencing are the decision of the court and amine from Larson. Riggs admitted to only.” court, however, the court The per- having drug had a problem and alcohol for mitted to counsel ask Poitra whether she twenty-eight years, and to improperly us- understood that the Assistant ing money gave Government her Attorney could move to her reduce for making controlled purchase buy to to cross- counsel allow to refused it when drug that acknowledged Riggs drugs. about Lamere and examine and drugs buy other each help often users they that sentences minimum metham- obtained Larson that, when with cooperation the absence originally had her, Larson for phetamine panel three-judge A Government. for exchange drug of the some for asked Confronta- their that she determined that our testified Riggs assistance. her be- violated were rights con- second, unsuccessful attempted had sentence five-year Poitra’s cause Larson. from buy trolled value, examination probative slight ofwas he testified Gilstrap Informant life potential Lamere’s regarding Lav- from purchases controlled two made preju- undue risk significant created bought had he testified He erdure. suf- received otherwise “the dice, Laverdure from methamphetamine some evaluate which from ficient little” “very before, times” few “a moti- biases witness’s cooperating Gil- gram. Í4 approximately amounts at 1210. Larson, 460 vations.” addict drug awas he strap admitted Defen- rejected also panel three-judge drug possession for arrested been had who evi- court’s district challenge dants’ times three prison gone had testify allowing ruling dentiary acknowl- Gilstrap felonies. drug-related him told Komeotis Laverdure involvement his that, a benefit edged meth- their source was Larson permit- he purchases, controlled in the denial court’s and to amphetamine, an still family while live ted table, counsel to sit request their *6 inmate. at id. See counsel. behind than rather case, its rested Government the After 1210-17. dis- the moved Laverdure and Larson our focus we proceeding, en banc In this prevent- ruling its to reconsider court trict Confrontation Defendants’ statutory on inquiry the into inquiring from ing them dis- the that holdWe challenge. that Clause sentences mandatory minimum discretion its abuse did the court trict court denied The faced. Lamere and cross-examination limiting Lav- Defendants’ and Larson found The motion. Confrontation Defendants’ that Poitra, but sentenced later court The guilty. erdure dis- the when violated fol- were rights imprisonment, Clause 97-months Larson ques- from Defendants release. barred supervised trict court by four lowed life the about 188- tioning Laverdure sentenced court The aof absence in the four he followed imprisonment, months reduce Government by the release. motion supervised years of the however, that conclude, We sentence. argue, Laverdure Larson appeal, On Defen- affirm harmless, we was error court district things, other among convictions.4 dants’ rights Clause Confrontation their violated 2531, 65 56, S.Ct 100 Roberts, U.S. 448 pan- three-judge with agree we Because admissi- (1980), to determine 597 L.Ed.2d remaining issues of the disposition el's state- nontestimonial out-of-court bility of adopt those appeal, on raise Defendants 541 Washington, v. survived ments Crawford excep- opinion panel of the portions 177 1354, L.Ed.2d 158 36, S.Ct. 124 U.S. Unit- of See paragraphs three final of the Supreme at 1213. F.3d 460 (2004). See F.3d 393 Rodriguez-Rodriguez, v. States ed however, Craw- clarified, since has Court Larson, F.3d 460 See III.B. 849, Section 856 pro- clause Confrontation "eliminates] ad- paragraphs ford final These 1210-17. unreliable admission against tection unresolved an issue dressed statements” non-testimonial out-of-court Ohio articulated test whether time: 1100
II.
limitations on cross-examination are so se-
vere as to violate the Confrontation
Clause
Standard of
Review
is a question of law
novo.”).
reviewed de
begin
We
by acknowledging an intra-
A second line of
circuit
cases
conflict
has applied
regarding
an
the standard of
abuse of discretion
review for
See,
standard.
e.g.,
Confrontation Clause challenges
Lo,
States v.
to a trial
231
471,
(9th
F.3d
court’s
482
limitations on cross-exami
Cir.2000) (“[W]e review
nation.5
a trial
See United
court’s deci-
States Rodriguez-
sion to limit the scope
Rodriguez,
393
849,
(9th
F.3d
cross-examination
Cir.)
856
for abuse of discretion,
(recognizing the
and will
conflict),
cert.
find
denied, 544
Confrontation
1041,
U.S.
125
only
violation
2280,
S.Ct.
if the
161 L.Ed.2d
trial
(2005).
court’s
1074
ruling limits
One line of
relevant testimo-
Ninth Circuit
ny[,] ... prejudices
cases has applied
de
defendant ...
novo
See,
review.
denies the
e.g.,
United States
sufficient
v. Holler,
411
F.3d
appraise
1061,
(9th
Cir.) (“We
1066
biases and motivations of
review de
novo
witness.”) (internal
whether a
quotation
limitation on
marks omit-
cross-examination
ted) (alterations
violated the
confrontation.”),
original);
defendant’s right of
United States
v. Shabani,
t.
48
denied,
(9th
F.3d
cer
546
403
996, 126
S.Ct.
597, 163
(reviewing limits
L.Ed.2d
on
496 (2005); United
cross-examination for'
v. Wilmore,
abuse of discretion);
F.3d
(9th
Wood v. Alaska,
Cir.
2004) (“Whether
F.2d 1544,
(9th
Cir.1992) (“Because
limitation on cross-ex
trial judges
amination is so
have broad
restrictive that it
discretion
consti
both to
tutes a
determine
violation of a
relevance and to
defendant’s Sixth
determine
Amendment
whether prejudicial
right is reviewed de
effect or
novo.”)',
other con-
United States
cerns
v. Adamson,
outweigh the probative
value of the
evidence,
Cir.2002) (“We
we will
review
find a
de
Sixth
novo
Amendment
whether
violation
limitations
if we conclude that
cross-examination
the trial
are so severe
as to
abused
violate
its
discretion.”).
Confronta
*7
tion Clause.”); United States v. Ortega,
A third line of cases combines these two
675,
203 F.3d
(9th
682
Cir.2000) (“Whether
approaches. See, e.g., United States v.
that "the Confrontation Clause has
appli
no
discretion a Confrontation Clause claim based
cation to such statements and
per
therefore
on a limitation on cross-examination); United
mits their admission even if they lack indicia
Smith,
States v.
209,
451
(4th
F.3d
220
Cir.
of reliability.” Whorton v. Bockting, - U.S.
2006) (reviewing restrictions on cross-exami
-,
1173,
127 S.Ct
1183,
1101
(9th
...
limitations on cross-examina-
948,
Cir.
Whether
979-80
Shryock, 342 F.3d
severe as to amount to a viola-
tion are so
(“Whether
2003)
limitations on cross-exam
ques-
confrontation clause is a
as
violate
are so severe
ination
novo.”).
de
tion of law reviewed
a
of law
question
Clause
Confrontation
an
We review for
de novo....
we review
We resolve this conflict
conclud
limi
the district court’s
of discretion
abuse
appro
ing
approach
that the third
is most
cross-examination.”); United
following ap
tation of
hold that
priate. We
1121,
a
Bensimon,
should be used
review whether
proach
F.3d
v.
States
restricted
defen
(“This
improperly
trial court
Cir.1999)
(9th
reviews de novo
court
cross-examining
prosecution
dant from
on cross-examina
the limitation
whether
witness;
raises a Con
If the defendant
right of con
defendant’s]
[the
tion violated
challenge
on the
frontation Clause
based
court, however,
The district
frontation.
review
inquiry,
of an area of
we
exclusion
restricting
discretion
has considerable
reviewing
de novo. In
a limitation on the
cross-examination,
will find
and this court
area,
questioning
given
within
scope
has been
only when that discretion
error
recognize
judges
that “trial
retain wide
abused.”)
(citations omitted); United
insofar
the Confrontation
latitude
(9th
James,
709,
impose
is concerned to
reasonable
(“The
impose
may
district
limits on such cross-examination based
cross-examination,
limits on
reasonable
about, among
things,
concerns
other
dis
review for an abuse of
which we will
harassment,
is
prejudice, confusion of the
Whether limitations on cross-ex
cretion.
sues,
safety,
interrogation
or
witness’
to a
are so severe as
amount
amination
only marginally
or
rele
repetitive
that is
is a
clause
violation of the confrontation
Arsdall, 475
vant.” Delaware v. Van
novo.”) (cita
law we
de
question
1431,
review
In Van
the Court
475
Van
U.S. at
judges
678,
1431,
“trial
retain wide latitude insofar as
right
106 S.Ct.
includes “the
the Confrontation Clause is concerned to
cross-examination,”
effective
Davis
impose reasonable limits” on cross-exami Alaska,
308, 318,
1105,
415 U.S.
94 S.Ct.
held, however,
nation.
Id. The Court
(1974).
L.Ed.2d 347
Effective cross-exam-
prohibited
inqui
where “the trial court
all
ination is critical to a fair trial because
bias,
ry
possibility”
into the
of a witness’
is the principal
“[c]ross-examination
means
the defendant’s Confrontational Clause by
believability
which the
of a witness and
rights were violated.
Id. This standard
testimony
the truth of his
are tested.”
recognizes
also
that whether
has
there
Davis,
316,
We,
Discussion (9th 1036, Cir.2005) 396 F.3d (quoting A. Constitutional Error Davis, 1105) U.S. 94 S.Ct. (footnotes omitted) (alterations original). in
The Confrontation Clause of the Amendment, Sixth which “guarantees the The issue here is whether the dis right of an accused in a prosecu criminal trict court erred when it prevented de tion ‘to be confronted with the witnesses fense counsel from exploring the mandato- novo.”).
dence violates the Confrontation Clause is re-
viewed de
in this court is the
ing of defendants
Poitra and
sentences
ry minimum
And I will
responsibility of
court.
aof U.S.S.G.
in the absence
Lamere faced
appropri-
the decision about
We
make
Government.
§
5K1.1 motion
time.
appropriate
ate sentence at the
should
factors courts
three
have identified
subject
a
cross-
proper
not
a
That’s
determining whether
defen-
in
consider
cross-
examination.
right to
Clause
dant’s Confrontation
violated:
I ask
examination was
Can
COUNSEL]:
[DEFENSE
facing?
penalty she’s
(1)
her about the
evidence was
the excluded
[whether]
relevant;
advisory
give
I
THE
don’t
COURT:
(2)
opinions.
legiti-
there were other
[whether]
the defen-
outweighing
mate interests
to Poitra]:
COUNSEL
[DEFENSE
the evi-
presenting
dant’s interest
your understanding
pen-
of the
What’s
(3)
dence;
the exclusion
[whether]
you’re facing?
alties
jury with sufficient
left the
evidence
Judge,
going
I’m
[GOVERNMENT]:
credibility
to assess the
object to this.
the witness.
THE
Sustained.
COURT:
Beardslee,
be-
gentleman,
And ladies and
that is
(citing United States
court, all matters related to
cause in this
(9th Cir.1998));
James,
709, 713
139 F.3d
of the court
sentencing are the decision
(“A
Holler,
limi-
Q. you’re going district Although the prison. right? years, minimum of five further examina- firmly that no ruled regarding the ac- permitted A. Yes. would be witnesses minute, cooperating sentences the Well, just tual THE COURT: response.7 faced, Poitra’s it did not strike sentenc- know that the counsel. You testimony, nor disregard Poitra's *10 judge’s re- the district dissent treats The negate testi- striking an- Poitra’s any to Poitra’s of his comments as tantamount did marks however, admonished judge, never swer. The jury sufficiently apprised considering probative Because the was value of the evi- James, testify of Poitra’s incentive to to the dence.” at 713. The Gov- probative mandatory of a life satisfaction—including ernment’s the man- value sen- significant. cooperating A datory minimum sentence that tence witness statutorily who faces a faced in the mandated cooperation absence with life in prison government unless the no Government—there was Sixth moves reduction of the for sentence has a Amendment error. compelling testify incentive to the gov- to Lamere, respect With to the dis Thus, ernment’s satisfaction. the manda- prior trict court’s it ruling made abundant sentence, tory potential nature ly permit clear that it would not defense sentence, length and the witness’ regard counsel cross-examine Lamere obvious motivation to avoid such a sen- mandatory ing minimum life sentence tence cast considerable doubt on the be- coopera that he faced in the absence of lievability testimony. of the witness’ tion. Defense counsel heeded court’s judge’s The district stated reason affirmatively admonition and did not ex denying cross-examination of this area of plore the issue with Lamere.8 inquiry was that “all matters related to a mandatory The fact Lamere faced sentencing are the decision the court minimum sentence imprisonment of life only.” and the court In the context of this of cooperation the absence with the Gov- case, statement was inaccurate. clearly ernment assessing was relevant to that, dispute There was no in the absence testimony, his as it would reveal to Government, of a motion the court jury potential Lamere’s biases and motiva- required would be to sentence Poitra and testifying against tions for Defendants. statutory Lamere to the minimum sen- In evaluating legitimate whether other for the they pled tences offenses to which out-weighed interests guilty. Defendants’ interest The Government had the discre- evidence, presenting begin by “we potential tion to control the sentences that Q. mony fact, five-year that she you signed plea agreement. faced a And in cooperation. plea sentence in the agreement absence of gov- And the calls for the court, instructions, in its final instructed the ernment’s assistance in the event that it jury substantial; consider all the evidence. The your cooperation deems therefore free to take into account that Poitra right? five-year faced a minimum sentence in the Yep. A. Q. cooperation give absence of and to such testi- you And know as well Ias do that there’s mony weight appropri- as much itas deemed only person one in this courtroom that record, ate. On this we can assume that your can even make a motion to reduce sentence; followed the court’s instructions. correct? Yes, A. I do. 8. Defense counsel for Larson examined Lam- Q. prosecutor] And that’s Thaggard; [the Mr. regarding cooperate ere his incentive to right? the Government as follows: Yep. A. Q. that, you pled although We note guilty conspiracy And defense in this counsel did case; attempt question correct? Lamere further on the Yes, sentence, A. I have. issue life Defen- Q. you prison And facing are dants did not sentence as forfeit their Confrontation well; right? light result of this conviction as Clause claims in of the district court's Moreover, A. Yes. ruling. clear Defendants moved Q. by testifying you today, hope And here ruling for the court to reconsider its at the any prison you case, reduce may sentence that close of the arguing Government's facing; be correct? rights their Confrontation Clause were violat- A. Yes. ed the limitation. *11 jury the whether Finally, consider receive, the and could Lamere and Poitra information sufficient with provided was the form cannot rationale court’s district credibility. Lamere’s to assess otherwise evi- relevant of exclusion the for basis a both was Lamere that learned jury The dence. had he that dealer, and and addict drug a that however, risk the recognize, We methamphet- of pounds ten least sold sentence potential the infer could jury been had he that admitted Lamere amine. of admission from the defendant by a faced had he that and felonies seven of convicted a witness’ regarding testimony testi- Lamere prison. in served 2-/£ informa such sentence, that was guilty pleaded had he that fied the influence some could tion a wit- as Government the with cooperating United See process. deliberative jury’s hope that in the Defendants against ness 872, Frank, F.2d v. States He ac- reduced. be would sentence his it that law the (“It long been Cir.1991) has the was prosecutor the knowledged or to consider jury a for inappropriate is could who courtroom in the person their consequences the informed be his sentence. reduce tomove risk added Here, was verdict.”). there the above although that, conclude We part were Lamere because credi- on Lamere’s doubt did cast evidence metham distribute to conspiracy same the magnitude the reveal did not it bility, United Defendants. as Cf. phetamine the Government’s testify to to incentive his (1st 77, 82 Alvarez, F.2d States cross-exami- permitted satisfaction. concern the Cir.1993) (recognizing allow to insufficient therefore nation confuse or mislead might testimony “such credibility. Lamere’s assess to jury the here, the where, as particularly jury; the Schoneberg: in explained As we pen same the testify to to sought witness some allows agreement plea aWhere defendants”). Howev the alties a witness to flow to detriment or benefit interest an has Government the er, while defen- testimony, the result aas a de inferring from jury a preventing in to cross-exam- permitted be must dant in sentence, any such potential fendant’s clear to make sufficiently witness ine the right aby defendant’s outweighed terest detriment or benefit what jury to the wit cooperating aof bias the explore to bene- the trigger will flow, what will sent mandatory life facing iswho ness wit- why the detriment, show to or fit Chandler, 326 See ence.9 to order falsely testify might ness (“[W]hile the (3d 210, 223 detriment. the or avoid the benefit gain keeping interest valid had government here jury Although the 1042. F.3d at it 396 which from information jury from to benefit stood learned prospective defendant’s] [the infer might satisfaction, Government’s to testifying convicted, that be to she were satisfying way “toward long awent which defen [the to yield to had ... interest id. requirement,” constitutional probe right constitutional dant’s] extent not learn did mo ulterior or biases, prejudices, possible testifying from benefit he stood (inter her.”) which against witnesses tives Government.10 satisfied manner omitted). marks quotation nal pun- 7.4, jury consideration regarding confusion, district potential avoid To 9. ishment, warranted. provide discretion has to mod- or instruction limiting appropriate an jury's the dissent agree with We Instruc- Jury Criminal Model Circuit ify Ninth Poitra’s regarding exposure *12 1106 Obviously, an individual facing life pris- ing the maximum penalties govern-
on without the possibility of release has an ment’s witness would have faced in the
extremely strong incentive to
absence of
testify
government
to the
cooperation).
Dadanian,
Government’s
satisfaction.11 Thus,
referred to such
evidence as
“at best
jury was deprived
marginally
relevant”
evidence
to
witness’
would
“potential bias and
motive in
allowed it
testifying.”
to
just
determine
how
These
*13
Chandler,
ry
prosecution.
from the
case
to the
an instructive
Chandler,
govern
one
Third Circuit.
Thus,
reasoned, although
Id.
as the court
a minimum 97-month
ment witness
in-
jury was aware of the witnesses’
Guidelines,
Sentencing
under the
sentence
lie, they were not aware of the
centives to
ar
only
month of house
one
but received
incentives,
which
magnitude
those
and
guilty plea
for his
exchange
rest
jury’s
as-
likely
would
have affected
jury
222. The
F.3d at
testimony.
326
testimony. Applying
of their
sessment
pleaded
only that the first witness
heard
here, any
from a
reasoning
reduction
twelve- to
with a
guilty to an offense
sig-
such a
life sentence is of
range,
sentence
Guidelines
eighteen-month
in-
magnitude
excluding
this
nificant
charged with
have been
that he could
jury important infor-
formation denied the
offense,
he received one
and that
greater
Lamere’s
necessary
mation
to evaluate
See
probation.
arrest and
month of house
credibility.14
witness faced Guidelines
id. The other
account,
Taking the above factors into
years, and
minimum sentence
twelve
conclude that the district court abused
we
government
expected
she
testified that
discretion, violating
its
Defendants’ Sixth
in exc
a reduced sentence
to move for
right
to effec-
Amendment constitutional
The
See id.
cooperation.
for her
hange
it prevented
when
tive cross-examination
government’s
court sustained
district
the manda-
exploring
counsel from
defense
that the
objections regarding
penalties
in the
tory life
that Lamere faced
sentence
coopera
faced in the absence
witnesses
a motion
the Government.
absence of
the district court
tion.
held that
Chandler
the defendant’s Confrontation
violated
Analysis
B.
Error
Harmless
rights because:
Clause
that Defen
Having determined
had little reason to
would have
rights
were
dants’ Confrontation
[the
infer from that
violated,
next determine whether
gov-
cooperation with the
witness’]
first
beyond a
error
harmless
reasonable
meant the differ-
might have
ernment
Arsdall,
U.S. at
Van
doubt.
eight years in
more than
ence between
Chapman
California,
(citing
S.Ct.
hand, and the modest
on the one
prison,
18, 24,
17 L.Ed.2d
87 S.Ct.
received, he in fact
the oth-
(1967)).
witness’]
nature of [the
er. The limited
in a
an
is harmless
such
error
Whether
that he had benefited
acknowledgment
a host of
depends upon
particular case
that ac-
cooperation
from his
makes
factors,
readily
to review-
all
accessible
insufficient for
knowledgment
include the
ing
factors
courts. These
strength of his incentive
appreciate the
Arocho,
We further note
this determination.
305 F.3d
636-37
understand. Cf.
following
(affirming
on cross-examination
be sentenced
limitation
Lamere would
guideline
potential
sentencing
quality
and
sentences
evaluation of the
the Government's
faced,
cooperating
ranges
witnesses
testimony
trial
significance
at this
inquiry
“detailed
recognizing that such a
to the
subsequent
its
recommendation
issues,
many
place
dispute
side
could
regarding
reduc-
sentencing
a sentence
jury as to the real issue
could also confuse the
Thus,
incriminating Lamere’s
the more
tion.
hand”).
Laverdure, the
testimony against Larson and
gain from the Gov-
stand to
more he would
yet been
had not
14. The fact that Lamere
on his behalf.
ernment’s motion
consequence to
is therefore of no
sentenced
importance
testimony
of the
strong
witness’
in Larson was
even without Lamere’s
case,
prosecution’s
whether the testi-
testimony. Poitra testified that Larson
cumulative,
mony was
presence
or
was the source
the methamphetamine
corroborating
absence of evidence
or
that Laverdure obtained for her. Poitra
contradicting the testimony of the wit- overheard
calling “Patty”
Laverdure
Lar-
points,
ness on material
the extent of
drugs,
son
obtain the
and Poitra accom-
cross-examination
permitted,
otherwise
panied
alley by
Laverdure to an
Larson’s
and,
course,
strength
overall
of house while he went to Larson’s
*14
and
home
prosecution’s
the
case.
methamphetamine.
returned with
In addi-
Id.;
Schoneberg,
see also
With to we to the confidential informant were indirect- conclude that the Confrontation er Clause ly Furthermore, obtained from Larson. beyond ror was harmless a reasonable Riggs and Detective Gerhart testified as to doubt. Even without testimony, Lamere’s Riggs’ purchase controlled from Larson. the Government significant offered evi above, As discussed the cross-examination dence of Laverdure’s involvement in a Lamere, of instruction, and the court’s also conspiracy possess methamphetamine to gave jury the reason to doubt Lamere’s with intent to distribute. Poitra’s testi credibility. mony alone was sufficient to establish his We therefore conclude that the constitu- involvement in the conspiracy. testi She beyond tional error was harmless a rea- 2003, fied that in Laverdure—who knew sonable doubt. Accordingly, we AFFIRM that Poitra was a methamphetamine both (No. 05-30076) the convictions of Larson user and seller—offered to obtain meth (No. 05-30077). and Laverdure amphetamine for her. She testified that he sold her methamphetamine aon num GRABER, Judge, Circuit with whom occasions, ber of totaling about 3.5 ounces. RYMER, TALLMAN, CLIFTON, BEA, addition, Gilstrap Sergeant and Kohm SMITH, IKUTA, M. and Judges, Circuit testified that Laverdure had sold metham join, concurring part in specially and phetamine to Gilstrap on two occasions. concurring part: Furthermore, it while was constitutional I agree with majority opinion except prevent error to defense counsel from major respect: one Defendants Patricia cross-examining Lamere about the manda- Ann Larson Leon Neis Laverdure suf- tory minimum life sentence that he faced fered no Confrontation Clause violation in the of absence Government cooperation, when the court disallowed a ques- defense cross-examination, on defense counsel did tion to cooperating coconspirator Rick Lee explore past, Lamere’s criminal history as Lamere concerning statutory a drug seller, user and desire to obtain prison sentence that he would face in the a lesser through testimony his absence of the prosecutor’s help ex- against co-conspirators. note, too, We change for his testimony. Accordingly, that the jury court instructed the that it the district court did not abuse its discre- testimony should view the cooperat- tion. I would ground. affirm on that ing witnesses with greater caution than that of other witnesses. Supreme The consistently Court has
We also conclude that held that a Confrontation Clause Confrontation violation Clause error respect was harmless occurs when a trial judge prohibits any Larson. The against Government’s inquiry why ease biased, into a may witness be
1109 Clause Confrontation 673, violation Arsdall, U.S. 475 Van v. Delaware bias witness’ into inquiry (1986); all where 674 1431, L.Ed.2d 679, S.Ct. Once judge). trial 94 foreclosed U.S. Alaska, 415 Davis ques opportunity an had has (1974), because defendant L.Ed.2d 1105, 39 S.Ct. permit bias, about in testi- witness tion a motivation witness’ of a “exposure Arsdall, 475 limits,” Van function important “reasonable ted proper is a fying scope right 679, 106 protected S.Ct. constitutionally atU.S. Davis, Confrontation No cross-examination,” cross-examination. must long defense “as occurs 316-17, S.Ct. violation appraise cross-examina- through expose sufficient able be receives “[a] lie, because witness.” motive witness’ motivations biases sig- a ] receive[ ... 401, 403 might Shabani, reasonable wit- [the impression different marks nificantly (internal quotation no it had if it would than credibility” ness’] omitted). *15 may witness why a understanding basis a defendant majority, According to the at Arsdall, 475 U.S. Van biased. be jury not the to to reveal permitted be must time, the same theAt 1431. 106 S.Ct. amade has the witness that fact the only caution to care taken has Court Supreme the testify in to government the with deal permit- be must a defendant that, although sentence, but a lesser receiving of hope biases, “trial witness’ a explore to ted statutory the of length precise the also the insofar latitude wide retain judges witness. by the sentence minimum im- to concerned is Clause Confrontation a majority, the to according “Obviously,” cross-exam- such on limits reasonable pose cre- statutory lengthy about, among concerns on based ination tes- to incentive strong extremely “an ates confusion prejudice, ... things, other satisfaction”; ... the Government’s to is tify that interrogation issues, ... or the case in this jury evidence, the 679, 106 such at Id. without relevant.” marginally strong how just at “to determine Davis, unable was 1431; also see S.Ct. the please to was extent the motivation that (noting Lamere’s 94 S.Ct. Despite “[sjubject at 1106. Maj. op. a witness Government.” cross-examination argu- trial majority’s [the] the appeal, discretion broad superficial the to its always flaws. serious two from suffers judge”). ment found signif- the downplays principles, majority those First, Applying the sug- that jury the Confrontation the violation before a evidence icant the lie but to motive lie. had to incentive a witness strong when Lamere’s gested cross-examina allow to assist refused judge following facts trial the knew the motive, leaving that concerning credibility: assessing Lamere’s in them mo had no witness infer had old years (cid:127) was 31 Lamere Schoneberg, to lie. tive children; five Cir.2005) (9th 1036, 1040-43 F.3d addict drug (cid:127) Lamere placed limitations (holding least sold had who dealer coupled cross-examination, defendant’s methamphetamine; pounds admoni “emphatic court’s district convict- been had (cid:127) previously Lamere attempt defendant’s tions,” “vitiated” served had felonies seven ed a motive had witness establish prison; in 2-1/2 Sacramento Fowler lie); also see guilty pleaded (cid:127) had Lamere 1027, 1041 Dep’t, County Sheriff's case; present in conspiracy drug awas there (concluding (cid:127) He faced prison another sentence as Second, the majority’s reasoning suffers a result of that guilty plea; from a logical flaw. The importance of (cid:127) By testifying against Defendants, cross-examination —as the majority recog- Lamere hoped to reduce his sentence nizes—is to reveal a witness’ state of mind case; this and, more particularly, the extent of the (cid:127) Lamere had entered into a plea witness’ incentive to testify to govern- agreement with the government. ment’s satisfaction. Maj. op. Under his plea agreement, gov- In that regard, the most important piece of ernment would assist re- puzzle is the anticipated benefit
ceiving a prison shorter term ex- Lamere expected to receive if his assis- change for his testimony against tance satisfied the prosecutor. Yet that Defendants, but only if the govern- information was both unknown and un- ment deemed his cooperation to be knowable. The information was unknown “substantial”; because the district court yet had not sen- (cid:127) As defense counsel colorfully empha- tenced Lamere. The information was un- sized in cross-examining Lamere, knowable because defense counsel did not “you know as well as I do that ask Lamere what benefit he anticipated there’s only one person in this court- and, had he been asked the question, “How room that can even make a motion to much of a reduction in your sentence do reduce your sentence”—the prosecu- *16 you expect to get?,” only the honest an- tor; and swer could have been, “I don’t know.” (cid:127) The other cooperating witness, Joy
Lynn Poitra, who was merely a nov- The statutory minimum sentence that a ice criminal by contrast to Lamere, witness faces is relevant for Confrontation faced a five-year mandatory mini- Clause purposes only insofar as it pertains mum sentence. to the sentence that the witness has re- Knowing those facts, ceived or every realistically reasonable anticipates receiving. juror already would So have the inferred majority’s that focus on a statutory term Lamere faced substantial prison of life time prison and in by is a red herring itself that he was extremely eager to please and, worse, the that in information isolation prosecutor. The excluded additional fact could mislead a jury. The majority as- of the mandatory life term in the absence serts that a long statutory minimum sen- of a motion from prosecutor the would not tence necessarily means a proportionately have given the jury “a significantly differ- significant psychological imperative to as- ent impression of [Lamere’s] credibility.” sist prosecutor. the Maj. op. at 1105-06. Arsdall, Van 475 U.S. at 106 S.Ct. That assertion is incorrect. The important 1431. The jury knew Lamere’s age, 31, so psychological factor —the extent of the wit- any lengthy sentence (including the 38- ness’ motive to lie—is not the statutory year sentence he ultimately received, even minimum, great however or small, but in- with his substantial assistance to gov- the stead is what the witness hoped to gain ernment) would have been very bad for and, realistically, could expect gain. him. Depriving the jury of the slight marginal utility of knowing about This the case provides good a example. Al- (in mandatory life term the absence of though his the statutory minimum sentence cooperation) simply does not equate to a was life in prison, as it out, turned constitutional violation. was sentenced to a staggering years 38 in
1111 United sentencing. of time the Cf. a 38- age, Realistically, given prison. 1147, 1149-50 Klauer, F.2d v. States life sentence nearly a term prison year no Confronta- that (holding of reduction benefit —the that Is anyhow. the exclu- occurred violation years— to 38 life from sentence Lamere’s of] the facing about testimony “reduction of a witness sion the benefit as great year to seven whom five on otherwise statutory an three-year co-conspira- testifying Not probation? only years” three imposes court the to under- key tor). the Again, necessarily. how knowing is bias a witness’ standing biases co-conspirator’s testifying aOnce or received witness the a benefit great the exposed, been motivations and to receive. expected reasonably (in the faced years of number particular States on United reliance about majority’s The concrete of absence Cir.2003), (3d or F.3d Chandler, received witness that benefit actual fact in receive) Chandler misplaced. therefore, is is expect can realistically the extent that proposition outweighed supports relevant marginally theoreti of the extent benefit, preju confusion concerns Chandler, sentence, matters. ours, courts, cal including circuit The dice. on focused correctly Circuit Third number in a proposition on agree actually witness one benefit enormous statutory context contexts, including arrest house (one month received had Dadani e.g., See maxima. prison) eight than more 1987) versus (9th Cir. 1443, 1449 an, F.2d sec benefit corresponding specific of the knowledge (holding anticipate could reasonably witness ond aby imprisonment term maximum the benefit magnitude on based relevant” marginally best “is at witness Id. received. had witness first bias “potential witness’ assessing the sen the potential not find did reh’g on testifying”), motive modified instead but isolation, significant, tences, in (9th Cir. grounds, other *17 bene significant the on decision its rested Arocho, F.3d 305 v. States 1988); United received had either witnesses the that fits Cir.2002) (holding (7th 627, 636-37 Id.; receive. expect reasonably could or the sentences specific the testimony about Mussare, 405 v. States also United see was, “at faced co-conspirators testifying (reiterating (3d 161, 170 F.3d out relevant” marginally best, ... examination an “requires that Chandler jury preju for potential the by weighed [in reduction magnitude the whether other by statute dice), superseded have likely would sentence] the witness’ v. States recognized as grounds wit regarding[the mind jury’s changed 958, 960 F.3d 362 Rodriguez-Cardenas, (emphasis testifying” motive ness’] 127 Cropp, v. States Cir.2004); United (7th 1225, 126 denied, 546 added)), cert. Cir.1997) (holding that (4th 354, 359 F.3d (2006). As 152 1432, L.Ed.2d S.Ct. pro margin additional slight “whatever answer not does here record noted, the by quantitative gained information bative nor Neither question. key po co-conspirators’ about questions” magnitude about asked was Lamere was 10 and sentences tential could neither benefit, and expected an prejudice certainfjury] “the by outweighed And be. likely was it what known testimony had if result” would benefit hindsight, that know, in nowwe Luciano- allowed); United been not was received ultimately (1st Cir. 1142, 1153 63 F.3d Mosquera, effective substantial; 38-year his value 1995) (“Any probative age sentence, given life almost ly was about precise number of years years, [the just to a statutory term of life in testifying co-conspirator] would have faced prison. The strength of a witness’ incen- ... slight was ... [and] was outweighed tive to assist the prosecutor may just be by potential for [jury] prejudice ... great greater or if she is a young mother see also United States Durham, 139 facing 5-year statutory term, minimum 1325, Cir.1998) (holding or if he is terminally ill subject to a 10 that additional testimony tending “to show year statutory minimum. Are 5-year and how much prison time [the testifying co- 10-year minima long enough to require conspirator] was avoiding through his plea disclosure in cross-examination? The ma- agreement” was properly excluded jority’s opinion does not tell us the answer. district court in the light of the extensive cross-examination that permitted). One practical consequence of that kind of ambiguity
I see no is prudent reason to stray trial judges from this uni- versal will rule feel even constrained context of allow testimony statuto- ry minimum. about The key question cooperating witnesses’ expected how much benefit the statutory hopes witness to gain I question sentences. with cooperation, not how much wisdom of removing sentenc- significant discre ing discretion the district from trial retains if judges in the face of the the witness does not cooperate. Supreme Conse- Court’s reminders that they are quently, there is no principled distinction retain “broad discretion,” Davis, 415 between a statutory maximum and a 316, statu- U.S. at S.Ct. and “wide lati tory minimum a cooperating tude,” wit- Van Arsdall, 475 U.S. ness. In either situation, a witness could S.Ct. in controlling cross-examina receive a huge benefit or a tiny benefit. tion. I question also the desirability of In either situation, a district court does that outcome in view of the potential, not err by ruling that probative value which the majority acknowledges, of such of the extra information is substantially testimony to create jury confusion and outweighed by the potential for jury confu- jury prejudice. sion and prejudice. Additionally, the majority’s rule may In summary, I would hold that the jury have unintended, far reaching received conse- enough information to appraise quences. What will happen if the court meaningfully or Lamere’s biases and motives the government lie, miscalculates, or a including his witness plea agreement and the *18 misunderstands, hoped-for the applicable leniency statutory in sentencing if he suc- minimum? If jury the ceeded in is pleasing misinformed, prosecutor. the will The the exclusion defendant of have grounds the statutory reversal or minimum sen- collateral tence is not a attack if convicted? Confrontation majori- The Clause viola- ty has, tion fear, in the I of written a any absence means, recipe for other unneces- than pure sary speculation, secondary litigation. to assess how much of a benefit the witness would receive. Finally, even if there were error, it was The district court therefore did not abuse harmless beyond a reasonable doubt. its discretion when it excluded portion that Maj. op. at 1107-08. In that respect, as of Lamere’s testimony. well as in all others except those discussed It also bears noting that the majority’s above, I agree with the majority opinion. rule is overbroad and impractical. The rationale that animates its opinion could For the foregoing reasons, I concur in apply to any statutory minimum term of part and specially concur part. govern- the which years, five time—of whom with Judge, HAWKINS, Circuit to be cause could judge, ment, not the and REINHARDT, and PREGERSON, reduced. join, Judges, LAW, Circuit WARD from benefit
dissenting:
event, any supposed
any
immediately undercut
was
made
is
this admission
drugs
of
user
street
conceded
A
interruption:
sponte
testimony
sua
of
court’s
by the
the
through
a distributor
into
mandatory
minute
Well,
just
facing
witnesses, both
COURT:
THE
two
the sen-
nothing particu-
that
know
is
You
There
counsel.
terms.
prison
this
“sing-
colleagues
defendants
of
tencing
former
about
larly new
is
the
here
of
problem
responsibility
is the
supper”
court
for their
ing
—the
full
the
of
the deci-
know
make
not
I
did
And will
jury
court.
the
that
and
motivation
sen-
appropriate
witnesses’
the
the
of
sion about
extent
they
what
time.
about
actively misled
appropriate
the
they were
tence
con-
properly
of
majority
subject
The
a proper
know.
not
did
That’s
the
violated
happened
what
that
cludes
cross-examination.
confronta-
Amendment
Sixth
defendants’
least
to
tried
counsel
defense
When
that
ultimately concludes
but
rights,
tion
the
of
understanding
own
Poitra’s
explore
harmless
was
violation
constitutional
this
to
relevant
facing clearly
was
she
penalty
—
majori-
in the
Thus,
I concur
while
error.
the
of
lie, regardless
to
motivation
her
of
standard
of the
analysis
ty opinion’s
actually imposed
court
the
sentence
—the
con-
its
II)
with
agree
and
(Section
review
sus-
the court
objected
government
Confrontation
awas
there
clusion
Moreover,
the
objection.
the
tained
re-
the
respect
violation
of the
light
(and, in
further
Rick
cross-examining
on
strictions
case, incorrect-
in this
involved
mínimums
dissent
III.A.),
respectfully
I
(Section
jury:
the
ly) admonished
the
conclusion
majority’s
from
gentle-
ladies
And
COURT:
THE
cross-examination
restrictions
court,
in this
because
man,
the Confronta-
violate
not
Poitra did
Joy
sentencing
related
matters
all
Clause.
the court
decision
are
concludes
majority
that’s
And
only.
the court
moti-
Poitra’s
sufficiently apprised
was
that’s
up and
is set
law
way the
asked
counsel
defense
because
lie
vation
this court.
works
way it
mini-
for a
prison
going
was
if she
her
statements, coun-
court’s
of the
Because
responded
she
five
mum
convey
allowed
effectively
was
sel
into
transcript calls
review
A
“yes.”
a mandato-
facing
the fact
even
actually
whether
question
a motion
absent
ry minimum
an-
affirmative
Poitra’s
heeded
or
heard
may
jurors
Although the
government.
at oral
conceded
government
swer,
incen-
general
of Poitra’s
aware
been
immedi-
court’s
because
argument,
fully aware
*19
lie, they were
tives
if the
But even
intervention.1
ate
incentives, which
those
magnitude
to the
it was
“yes,”
answer
heard
as-
their
affected
significantly
have
could
“mini-
she
whether
question
Indeed,
testimony.
of her
sessment
jail
time—not
jail
mum”
chance
Poitra,
I didn't
to Ms.
spect
Attorney who
Assistant
1. The
did
actually
district
object before
at trial
Laverdure
Larson
prosecuted
also
sponte.”
before
sua
argument
oral
appeal. At
argued
that,
re-
court,
"With
stated
he
banc
the en
little testimony about sentencing that was witnesses was
beyond
harmless
a reason-
allowed—Poitra’s
testimony about
five
able doubt.
Id.
although Lamere was facing a mandatory
minimum sentence of life parole. without
Having heard Poitra mention years, five
and being barred from learning anything
about Lamere’s exposure, a juror rational may well have thought that Lamere only Jeffrey BECK, H. Liquidating Trustee faced five years. of the Estates of Crown Vantage, Inc. Because of concerns, these I also cannot Paper Crown Company, Appel agree with the majority’s conclusion re- lant, garding (Section harmless error III.B.). In assessing the harmlessness of the Con- frontation error, we must consider PACE UNION, INTERNATIONAL the trial whole, as a including the impor- behalf of member and former member tance of the improperly-restricted wit- participants pension plans spon nesses and the strength of the other evi- sored the Debtors; dence presented by government. See Arsdall,
Van 106 S.Ct. Miller; Edward Jeffrey D. Macek, on 1431. behalf of themselves and others
Connie Riggs similarly testified that situated, she had pur- Appellees. chased a small amount of methamphet- Pace Union, International AFL-CIO, amine from Larson in a controlled buy, but Chemical & Energy Workers Interna even in that sale Larson did not per- tional Union, on behalf of sonally have members the drugs and had to go else- and former member where to participants obtain of an %eth ounce for Riggs. pension plans, On Appellant, a second attempted purchase by Riggs, Larson did not have any drugs and said she could not obtain any for Riggs. Jason Jeffrey H. Beck, Liquidating Trustee Gilstrap testified that in two controlled the Estates of Crown Vantage, Inc. and buys he had directly purchased a small Paper Crown Company, Appellee. amount of methamphetamine (also about yieth ounce) of an from Laverdure. Nos. 03-15303, 03-15331. These sales, small however, do not link United States Court of Appeals, Larson or Laverdure to a much larger Ninth Circuit. conspiracy to distribute drugs with Poitra and Lamere, which was the charge sole Aug. contained in the indictment. Poitra and Rodger Landau, M. McDermott, Will & Lamere were critical witnesses to establish Emery, Los CA, Angeles, Mary Warren, the charged conspiracy, and the jury was Esq., Shearman & Sterling, York, New not sufficiently apprised of their incentive NY, Jeffrey H. Beck. to curry favor with the government. Thus, I cannot say that the Confrontation *20 Christian L. Raisner, Esq., Plotz, John Clause error with respect to these crucial Esq., Weinberg Roger & A Rosenfeld Pro-