FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-30004
Plaintiff-Appellee,
v. D.C. No.
1:07-CR-30032-PA
ANDREW STEVER,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding
Argued and Submitted
December 9, 2009—Portland, Oregon
Filed May 4, 2010
Before: Jerome Farris, Dorothy W. Nelson and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon
6701
6704 UNITED STATES v. STEVER
COUNSEL
Bryan E. Lessley and Tonia L. Moro, Assistant Public
Defenders, for the defendant-appellant.
UNITED STATES v. STEVER 6705
Kent S. Robinson, Acting U.S. Attorney, and Douglas W.
Fong, Assistant U.S. Attorney, for the plaintiff-appellee.
OPINION
BERZON, Circuit Judge:
Andrew True Stever brings a direct appeal of his convic-
tion, after trial by jury, on one count of conspiracy to manu-
facture 1000 or more marijuana plants, 21 U.S.C.
§§ 841(a)(1) and 846, and one count of manufacture of mari-
juana, 21 U.S.C. § 841(a)(1). Stever sought to defend on the
ground that the marijuana growing operation found on an iso-
lated corner of his mother’s 400-acre property was the work
of one of the Mexican drug trafficking organizations (DTOs)
that had recently infiltrated Oregon. He was prevented from
doing so by two district court rulings, the first denying him
discovery related to the operations of DTOs and the second
declaring that defense off-limits. We consider whether these
rulings violated Rule 16 of the Federal Rules of Criminal Pro-
cedure, Stever’s rights under Brady v. Maryland, 373 U.S. 83
(1963), and Stever’s Sixth Amendment right to make a defense.1
I.
On July 7, 2007, officers executed a warrant to search the
400-acre rural property on which Stever lived with his
mother. The officers discovered a marijuana growing opera-
tion in an isolated corner of the property bordering a 40-acre
tract belonging to the Forest Service. Most of the more than
7000 marijuana plants grew on the Stever property. The
remaining plants, along with a camping tent, cook tent, and
disassembled greenhouse—all camouflaged to prevent aerial
detection—were located on Forest Service land.
1
We do not reach Stever’s challenge to the jury instructions given by the
district court.
6706 UNITED STATES v. STEVER
Two men the investigating officers described as Hispanic
fled the scene when the officers arrived, leaving behind vari-
ous personal effects, including clothing, two firearms, a cell
phone, and a wallet containing the resident alien ID card of
Alfredo Jesus Beltran-Pulido (Pulido). The wallet also con-
tained Stever’s business card and Stever’s mother’s cell phone
number. A later review of Stever’s phone records showed that
he frequently called some of the phone numbers contained in
the cell phone found at the scene.
Stever told friends, family, and later the police, that he had
hired Pulido and several of his Hispanic associates in May to
work on a generator and repair fences on the property. For
part of this time, Pulido lived in a trailer on the Stever prop-
erty; he also spent some time camping in a field near the gen-
erator. Stever’s mother confirmed that these men had been
hired to work on the generator, which she was having repaired
because she hoped to sell it. Pulido and Stever also socialized
together. Pulido was briefly romantically involved with one of
Stever’s friends.
The Government presented evidence that, in mid-May,
2007, Stever abruptly revoked the permission his mother had
given a neighboring rancher to graze his cattle on the prop-
erty. Stever told the rancher that someone without any cattle
was willing to pay more for a lease.
The Government also presented testimony that tire tracks
observed on a dirt road leading from the Stevers’ house to the
area of the marijuana operation on the morning of the raid
matched the tread on the pick-up truck that Stever drove.
Stever, however, provided unchallenged testimony that the
same tread was used by at least half the pick-up trucks in the
county, including many police and Forest Service trucks, and
likely including some of the police vehicles that traveled the
same road to the marijuana operation to conduct the raid.
The operation was located about a mile—along a winding
dirt road—from the house in which Stever lived with his
UNITED STATES v. STEVER 6707
mother and was separated from the rest of the property by a
large forested hill. The house sat close to the main, paved
road, such that ingress and egress from the house would not
take Stever to the area of the property that contained the oper-
ation. There was no testimony that anyone had seen Stever
travel to the part of the property that contained the marijuana
operation.
On the day after the raid, Stever reported a vehicle stolen.
He told the police that his friend Keith Reed’s Mazda had dis-
appeared from outside his (Stever’s) house overnight. The
vehicle was found one week later, abandoned outside a conve-
nience store in Eugene, Oregon, with an ignition key tucked
inside the visor.
Stever was indicted on October 5, 2007. He sought pre-trial
discovery of any reports in the government’s possession
describing the “characteristics, modus operandi, and other
information regarding” Mexican DTOs involved in growing
marijuana, explaining that he had knowledge that the United
States Attorney’s Office for the District of Oregon was then
prosecuting a number of factually similar marijuana cases
involving such organizations. The Government did not deny
that it possessed such reports. Instead, it refused to comply
with the request.
Stever filed a Motion to Compel Discovery on May 28,
2008. In that Motion, and in a subsequent Motion to Recon-
sider, Stever drew upon news reports, publically available
information, and one email apparently obtained from the gov-
ernment pursuant to an earlier discovery request to argue that
Mexican DTOs had recently infiltrated Eastern Oregon, that
the operation on Stever’s property bore several distinctive
characteristics of Mexican DTO operations, and that Mexican
DTOs tended to exclude local Caucasians from their opera-
tions. The district court denied discovery, reasoning only that
“[t]he issue is not necessarily who planted the marijuana, but
whether or not the defendant is guilty as charged.”
6708 UNITED STATES v. STEVER
Denied discovery regarding Mexican DTOs, Stever moved
in limine to prevent the Government from arguing at trial that
Stever conspired with a DTO to manufacture marijuana.
Stever contended that, although he was entitled to argue that
a Mexican DTO was responsible for the operation, the Gov-
ernment should be barred from arguing that Stever conspired
with such an organization, since the discovery rulings
deprived Stever of the necessary information to rebut that
accusation. The district court granted Stever’s motion to bar
the Government from arguing about Mexican DTOs, but also
ruled sua sponte that it would not permit Stever to put on evi-
dence regarding Mexican DTOs or “who else might have
been involved.”
Stever made several offers of proof to substantiate the argu-
ments made in his discovery motions and in his motion in
limine. He cited news reports of hunters and landowners
stumbling across the marijuana operations of Mexican DTOs
trespassing on public and private lands in Northern California
and a report of the National Drug Intelligence Center explain-
ing that increased eradication efforts in California had spurred
Mexican DTOs to move into Eastern Oregon. He proffered
the internal law enforcement communication apparently
obtained through prior discovery, which identified a similar
operation on federal land in Oregon as the likely work of a
Mexican DTO. He also proffered a defense expert who would
testify that DTO operations typically excluded local Cauca-
sians.
At trial, Stever’s attorneys argued to the jury that Stever
had no involvement in the operation, but, given the district
court’s rulings, could offer no explanation for its presence on
the Stever property. So they proffered no affirmative defense
at all, telling the jury only that they had “decided to hold [the
prosecution] to [its burden of proof].” Prosecutors emphasized
the location of the operation, calling its presence on an acces-
sible, though remote, area of the Stever property a strong
UNITED STATES v. STEVER 6709
piece of evidence in their circumstantial case. The jury
returned guilty verdicts on both counts.
II.
We review the discovery rulings of the district court for
abuse of discretion, United States v. Chon, 210 F.3d 990, 994
(9th Cir. 2000), “[a] significantly deferential test that looks to
whether the district court reaches a result that is illogical [or]
implausible,” United States v. Hinkson, 585 F.3d 1247, 1262
(9th Cir. 2009) (en banc). We review de novo whether there
has been a violation of Brady v. Maryland, 373 U.S. 83
(1963), or the Sixth Amendment right to make a defense.
United States v. Shryock, 342 F.3d 948, 983 (9th Cir. 2003);
United States v. Kincaid-Chauncey, 556 F.3d 923, 930 n.7
(9th Cir. 2009).
A.
[1] Stever first argues that the district court abused its dis-
cretion by denying discovery of materials related to the opera-
tions of Mexican DTOs. Federal Rule of Criminal Procedure
16 grants criminal defendants a broad right to discovery. The
government must disclose, upon defendant’s request, all “doc-
uments . . . within the government’s possession, custody, or
control . . . [that are] material to preparing the defense[.]” FED.
R. CRIM. P. 16(a)(1)(E)(i). Information is in the possession of
the government if the prosecutor “has knowledge of and
access to the documents sought by the defendant.” United
States v. Santiago, 46 F.3d 885, 893 (9th Cir. 1995). “A
defendant must make a threshold showing of materiality,
which requires a presentation of facts which would tend to
show that the Government is in possession of information
helpful to the defense.” Id. at 894 (internal quotation marks
and citation omitted).
Stever claimed that the Government was in possession of
law enforcement reports, officer training materials, and other
6710 UNITED STATES v. STEVER
documents bearing on the operations of Mexican DTOs in
Eastern Oregon and California. He cited news reports and
ongoing prosecutions and noted that Detective Mogle averred
in his search warrant affidavit that his training had familiar-
ized him with investigations of drug trafficking organizations.
The Government does not deny that it possesses material
within Stever’s Rule 16 request.
Stever argues that the documents were “material to prepar-
ing [his] defense,” FED. R. CRIM. P. 16(a)(1)(E)(i), for three
interrelated reasons. First, the documents could rebut the
inference that the owners of the property must have been
involved in the marijuana operation, because they would dem-
onstrate that Mexican DTOs have grown marijuana by tres-
passing on large tracts of public and private land in Eastern
Oregon without the knowledge of the owners. Second, the
documents could buttress the inference that this particular
marijuana operation was the work of a Mexican DTO by dem-
onstrating that operations run by Mexican DTOs have several
distinctive characteristics in common with this operation.
Third, the documents could corroborate Stever’s evidence that
Mexican DTOs are secretive and familial and so are unlikely
to have involved a local Caucasian in their operations.
The Government denies that those inferences, even if sup-
ported by the undisclosed evidence, are relevant to Stever’s
guilt or innocence. The district court agreed and denied dis-
covery on that basis, repeatedly insisting that evidence about
who else was responsible for the grow was not relevant to
assessing the likelihood that Stever was involved.
[2] The district court’s conclusion was illogical. Evidence
is relevant if it has “any tendency to make the existence of
any fact that is of consequence to the determination of the
action more probable or less probable than it would be with-
out the evidence.” FED. R. EVID. 401 (emphasis added). The
requested evidence, if it existed, tended to show that a Mexi-
can DTO planted the marijuana. It also tended to make it
UNITED STATES v. STEVER 6711
more probable that Stever was not involved, as there would
then be an alternative explanation for the grow that would not
entail the consent, much less the participation, of any of the
Stevers.
The Government makes several arguments in support of the
district court’s ruling. First, the Government argues that evi-
dence must relate to a particular Mexican DTO to be proba-
tive of Stever’s innocence. This argument fails. Evidence that
makes it more likely that a Mexican DTO—any Mexican
DTO—was responsible for this operation makes it less likely
that Stever was.
Next, the Government argues that a showing that this grow
was the work of a Mexican DTO would not tend to exonerate
Stever, because Stever could have conspired with the DTO.
Although such cooperation is certainly possible, Stever cor-
rectly argues that his guilt is less likely with Mexican DTO
involvement than without it, both because without such
involvement a jury would naturally assume that someone with
legitimate authority over the land was at least in part responsi-
ble, and because he proffered evidence of the exclusivity of
Mexican DTO operations.
The Government also argues that the requested information
would be character evidence barred by Federal Rule of Evi-
dence 404. Rule 404(b) provides, “Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith.”
(Emphasis added.) The Government cites no authority for the
proposition that the modus operandi of a criminal organiza-
tion is inadmissible character evidence. Certainly, this situa-
tion does not present the risks of unfair prejudice and
unreliable psychiatric evaluation that motivated the Advisory
Committee in formulating Rule 404. See FED. R. EVID. 404(a)
advisory committee’s note (1972).
[3] In any event, this circuit’s precedent forecloses the
Government’s argument. In United States v. Murillo, we
6712 UNITED STATES v. STEVER
approved the introduction by the prosecution of expert testi-
mony regarding the modus operandi of couriers involved in
drug trafficking organizations. 255 F.3d 1169, 1176 (9th Cir.
2001) (overruled on other grounds as recognized in United
States v. Mendez, 476 F.3d 1077, 1080 (9th Cir. 2007)). Like-
wise, in United States v. Cordoba, we affirmed the admission
of testimony that drug traffickers typically do not entrust large
quantities of drugs to unknowing transporters. 104 F.3d 225,
230 (9th Cir. 1997). Evidence that Mexican DTOs plant in
remote areas of land that they do not own, operate their grows
in certain visibly ascertainable ways, and typically do not
involve Caucasians in their operations is similarly admissible
consistent with Rule 404.
Finally, the Government argues that the evidence would
invite the jury to engage in impermissible speculation about
Mexican DTOs and their “correlat[ion] with the Stever prop-
erty grow.” But the district court is not free to dismiss logi-
cally relevant evidence as speculative: “[I]f the evidence [that
someone else committed the crime] is in truth calculated to
cause the jury to doubt, the court should not attempt to decide
for the jury that this doubt is purely speculative and fantastic
but should afford the accused every opportunity to create that
doubt.” United States v. Vallejo, 237 F.3d 1008, 1023 (9th
Cir. 2001) (quoting John Henry Wigmore, Evidence in Trials
at Common Law § 139 (1983)) (alterations in original). The
jury will still be instructed to decide whether a doubt created
by the evidence is a reasonable one and, if it is not, to convict.
Viewed in that light, the danger the Government invokes is
only the danger that the jury will not follow the instructions
given, a risk which we may not entertain in light of “the cru-
cial assumption underlying our constitutional system of trial
by jury that jurors carefully follow instructions.” Francis v.
Franklin, 471 U.S. 307, 324 n.9 (1985).
[4] Moreover, as the Government conceded, the case
against Stever was circumstantial. Prosecutors asked the jury
to infer that Stever was involved in the operation based pri-
UNITED STATES v. STEVER 6713
marily on its location on his property and his various interac-
tions with Pulido, who was linked to the operation by physical
evidence. Stever sought to counter the circumstantial infer-
ences that the Government asked the jury to draw with evi-
dence of other, logically relevant circumstances from which
obverse inferences to those sought by the Government could
be drawn. The district court’s conclusion that the discovery
was not relevant was thus based on a misapplication of the
principles of logical relevance, and the denial of Stever’s
motion to compel therefore an abuse of discretion.
To win reversal of the conviction on this ground standing
alone, Stever would have to show a likelihood that the out-
come would have been different if the material had been dis-
closed. See Chon, 210 F.3d at 994-95; United States v.
Amlani, 111 F.3d 705, 712 (9th Cir. 1997). This he cannot do,
because the Government has never surrendered the materials
for review. It is possible, indeed, that no relevant materials
exist, although the Government has never so maintained. Or
the available relevant materials may show that Mexican DTOs
in Oregon do not operate without the connivance of those in
control of private lands on which they conduct marijuana
operations, or do involve Caucasians in their growing activi-
ties. Without the actual material, there is no way to judge
prejudice. So, if we were considering the Rule 16 question by
itself, we would have to remand for a determination whether
the Government’s documents in fact contain, or would have
led to, information that might have altered the verdict. See
United States v. Alvarez, 358 F.3d 1194, 1209 (9th Cir. 2004).
As we explain in the next section, however, Stever’s Sixth
Amendment claim merits reversal of the conviction, so
remand on the Rule 16 issue is unnecessary.2
2
Stever’s Brady claim is premised on nondisclosure of the same materi-
als involved in the Rule 16 argument. It would require attention if we were
remanding the case to the district court, because the “reasonable probabili-
ty” standard of prejudice applicable to Brady violations is more favorable
to defendants than the standard applicable to discovery errors. Compare
Strickler v. Greene, 527 U.S. 263, 280 (1999) with Chon, 210 F.3d at
994-95. But in light of our analysis of Stever’s Sixth Amendment claim,
Part B infra, we need not decide whether Brady would provide an alterna-
tive basis for remand.
6714 UNITED STATES v. STEVER
B.
[5] Stever argues that the combination of the discovery rul-
ing and the in limine exclusion of all evidence about Mexican
DTOs violated his Sixth Amendment right to present a
defense. Whether grounded in the Sixth Amendment’s guar-
antee of compulsory process or in the more general Fifth
Amendment guarantee of due process, “the Constitution guar-
antees criminal defendants ‘a meaningful opportunity to pre-
sent a complete defense.’ ” Holmes v. South Carolina, 547
U.S. 319, 324 (2006) (quoting Crane v. Kentucky, 476 U.S.
683, 690 (1986)). This right includes, “at a minimum, . . . the
right to put before a jury evidence that might influence the
determination of guilt.” Pennsylvania v. Ritchie, 480 U.S. 39,
56 (1987); accord Washington v. Texas, 388 U.S. 14, 19
(1967) (“The right to offer the testimony of witnesses . . . is
in plain terms the right to present a defense, the right to pres-
ent the defendant’s version of the facts . . . . [The accused] has
the right to present his own witnesses to establish a defense.
This right is a fundamental element of due process of law.”).
Moreover, “[w]hen evidence is excluded on the basis of an
improper application of the [evidentiary] rules, due process
concerns are still greater because the exclusion is unsupported
by any legitimate state justification.” United States v. Lopez-
Alvarez, 970 F.2d 583, 588 (9th Cir. 1992).
Accordingly, this court has found constitutional error where
a district court erroneously excluded evidence intended to
refute the prosecution’s theory of motive, United States v.
Whitman, 771 F.2d 1348, 1351 (9th Cir. 1985), and also
where the misapplication of the hearsay rules resulted in the
exclusion of evidence that contradicted the theory of a prose-
cution for tax evasion, United States v. Boulware, 384 F.3d
794, 808 (9th Cir. 2004).3 While emphasizing that “not every
3
In other circumstances, the erroneous exclusion of relevant evidence is
a simple evidentiary matter, reviewed for abuse of discretion. See United
States v. Lynch, 437 F.3d 902, 913 (9th Cir. 2006); United States v.
UNITED STATES v. STEVER 6715
[evidentiary] error amounts to a constitutional violation,” id.
(quoting Lopez-Alvarez, 970 F.2d at 588), Boulware and
Lopez-Alvarez make clear that the erroneous exclusion of
important evidence will often rise to the level of a constitu-
tional violation. 384 F.3d at 808; 970 F.2d at 588.
Some limited guidance may also be had by analogy to cases
that assess the constitutional implications of the exclusion of
relevant evidence pursuant to the correct application of an
evidentiary rule. In balancing the interest of a state in enforc-
ing its evidentiary rules against the interest of defendants in
presenting relevant evidence in their defense, those cases con-
sider the so-called Miller factors:
the probative value of the evidence on the central
issue; its reliability; whether it is capable of evalua-
tion by the trier of fact; whether it is the sole evi-
dence on the issue or merely cumulative; and
whether it constitutes a major part of the attempted
defense.
Alcala v. Woodford, 334 F.3d 862, 877 (9th Cir. 2003) (quot-
ing Miller v. Stagner, 757 F.2d 988, 994 (9th Cir. 1985). The
same considerations are useful in considering whether evi-
dence erroneously excluded was so important to the defense
that the error assumes constitutional magnitude, although, as
we have explained, the substantive standard is more forgiving
where the evidence was erroneously excluded on purely evi-
dentiary principles.
[6] Applying these considerations, we note, first, that
Stever’s proffered evidence was probative on the central
Crosby, 75 F.3d 1343, 1346-47 (9th Cir. 1996). But Stever does not frame
his challenge in terms of the Federal Rules of Evidence; he maintains that
the exclusion was so broad, and the discovery error so critical, that his
Sixth Amendment rights were violated by preclusion of a defense that
should have been permitted.
6716 UNITED STATES v. STEVER
issue, whether he was involved in the marijuana operation.
His offer of proof included government reports describing
Mexican DTO operations on public and private land and an
expert witness who would testify that Mexican DTO opera-
tions in Oregon excluded local Caucasian landowners. If per-
mitted to do so, Stever could very possibly have developed
further evidence to buttress his defense theory.
[7] “[F]undamental standards of relevancy . . . require the
admission of testimony which tends to prove that a person
other than the defendant committed the crime that is charged.”
Crosby, 75 F.3d at 1347 (alteration in original) (internal cita-
tions omitted). Here, as in Crosby, the crime occurred in a
remote location, and little evidence bore directly on which
individuals were involved. See id. Even putting aside Stever’s
claim that this operation resembled in its physical characteris-
tics that of a Mexican DTO, the evidence that sophisticated
criminal organizations trespassed on private land in Eastern
Oregon to grow marijuana would have “rebutt[ed] the infer-
ence that [Stever] must have committed the [crime] because
no one else was in a position to do so.”4 Id.
4
This case is different from Perry v. Rushen, 713 F.2d 1447 (9th Cir.
1983), and other cases that recognize the freedom of states to structure
their evidentiary rules so as to avoid mini-trials on the guilt of other sus-
pects, see Holmes, 547 U.S. at 326-28 (intimating that a South Carolina
evidentiary doctrine that requires more than “bare suspicion” or “a conjec-
tural inference” before an accused may offer evidence that someone else
committed the crime is consistent with the United States Constitution)
(quoting State v. Gregory, 16 S.E.2d 532, 534-35 (1941)). For one thing,
as we have explained, Stever’s evidence was not rejected pursuant to the
correct application of any evidentiary doctrine. Moreover, Stever’s evi-
dence is of greater relevance than evidence that someone else could have
committed the crime in a run-of-the-mill case. In most cases, the possibil-
ity that someone else committed the crime will be self-evident to the trier
of fact, so the probative value of evidence that vaguely suggests that possi-
bility is vanishingly small. See, e.g., Perry, 713 F.2d at 1455 (discounting
the probative value of evidence that someone other than the defendant also
had the opportunity to commit a sexual assault in Golden Gate Park).
Here, by contrast, the jury may well not have been aware that criminal
organizations are in the habit of growing marijuana on other people’s pri-
vate land, so evidence that confirms that possibility is much more signifi-
cant. Cf. Crosby, 75 F.3d at 1347.
UNITED STATES v. STEVER 6717
[8] The evidence is also reliable. Both the proffered docu-
ments and any undisclosed reports were prepared by law
enforcement in their fight against Mexican DTOs, and the
authors presumably have every reason to ensure that the infor-
mation they contain is accurate. See Alcala, 334 F.3d at 886
(recognizing the reliability of police testimony). The Govern-
ment does not suggest that Stever’s proffered expert is unreli-
able, and the district court did not preclude his testimony on
that basis.
[9] The evidence is also capable of evaluation by the trier
of fact. Stever could have introduced government reports into
evidence, and his proffered expert could have elaborated on
the information therein. It is beyond dispute that proper expert
testimony is capable of evaluation by a jury. See Daubert v.
Merrell Dow Pharm., Inc., 509 U.S. 579, 595-96 (1993).
The last two Miller factors weigh most strongly in favor of
finding that Stever’s evidence was important to his attempted
defense. Because the district court ruled sua sponte that
Stever could not make his preferred defense in any form, it
excluded “the sole evidence on [an] issue” that “constitut[ed]
a major part of the attempted defense.” Alcala, 334 F.3d at
877. Precluded from pointing to any alternative explanation
for the operation on his mother’s property, Stever was con-
fined to poking holes in the Government’s case and, as his
lawyer argued to no avail in closing, holding the prosecution
to its burden of proof. Stever was, quite literally, prevented
from making his defense.
[10] This handicap was far more sweeping than that
imposed by other erroneous evidentiary rulings we have
found in our cases. From well before the trial, the Govern-
ment refused to turn over documents—documents it does not
deny it possesses and as to which it claims no privilege of any
kind—relating to the Mexican drug growing operations in
Eastern Oregon. The district court then compounded this error
by concluding that the documents were irrelevant to the point
6718 UNITED STATES v. STEVER
of immateriality, without even reviewing the requested docu-
ments in camera. Having denied Stever the opportunity to
explore this discovery avenue, the district court declared a
range of defense theories off-limits, without considering in
any detail the available evidence it was excluding. As we
have explained, its reason for doing so—that any such evi-
dence was necessarily irrelevant—was deeply flawed. Stever
was not only prevented from putting on evidence important to
his defense, see Boulware, 384 F.3d at 808; he was prevented
from making his defense at all. We must conclude that
Stever’s Sixth Amendment rights were violated.
[11] A violation of the right to present a defense requires
reversal of a guilty verdict unless the Government convinces
us that the error was harmless beyond a reasonable doubt. Rit-
chie, 480 U.S. at 58; see also Chapman v. California, 386
U.S. 18, 22-24 (1967). In a circumstantial case, and without
the benefit of much of the evidence that might have been
developed, we cannot say that disabling Stever from arguing
that a Mexican DTO, not him, was responsible for the mari-
juana on his property was harmless error.
III.
We hold that Stever was denied his Sixth Amendment right
to make a defense, the error was not harmless beyond a rea-
sonable doubt, and his conviction must therefore be reversed.
REVERSED.