United States v. Williams

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 09-4049
RANDOLPH WILLIAMS, a/k/a Red,
Defendant-Appellant.

Appeal from the United States District Court
for the District of South Carolina, at Spartanburg.
Henry M. Herlong, Jr., District Judge.
(7:08-cr-00025-HMH-1)

Argued: September 21, 2010

Decided: January 21, 2011

Before GREGORY and KEENAN, Circuit Judges, and
James C. DEVER III, United States District Judge for the
Eastern District of North Carolina, sitting by designation.

Vacated and remanded by published opinion. Judge Gregory
wrote the majority opinion, in which Judge Keenan joined.
Judge Dever wrote a separate opinion concurring in part and
dissenting in part.

COUNSEL

ARGUED: Andrew Mackenzie, BARRETT & MACKEN-
ZIE, LLC, Greenville, South Carolina, for Appellant. Robert
2 UNITED STATES v. WILLIAMS
Frank Daley, Jr., OFFICE OF THE UNITED STATES
ATTORNEY, Columbia, South Carolina, for Appellee. ON
BRIEF: W. Walter Wilkins, United States Attorney, Colum-
bia, South Carolina, for Appellee.

OPINION

GREGORY, Circuit Judge:

A jury convicted Randolph Williams of conspiracy to pos-
sess with intent to distribute heroin in contravention of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(C), 846. Williams appeals his
conviction because of a stipulation which was published to
the jury over his objection. He argues that this error impinged
on his Sixth Amendment right "to be confronted with the wit-
nesses against him." U.S. Const. VI. We agree and therefore
vacate his conviction.

I.

On January 8, 2008, Williams was indicted by a grand jury
for conspiracy to possess with intent to distribute heroin from
September 25, 2007, to October 10, 2007 in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(C), 846. Two co-defendants,
Sabrina Hutchinson and Victor Jackson, were also indicted as
members of the conspiracy. Subsequent to the indictment,
Williams pled not guilty, charges were dropped against
Sabrina Hutchinson, and Victor Jackson pled guilty.

On September 3, 2008, the district court held a hearing to
discuss pretrial matters for Williams’ trial. The Assistant
United States Attorney informed the court that she wished to
enter a stipulation regarding the testing of the drugs at issue.
She advised the court that the "defendant refuses to sign the
stipulation." J.A. 11. Williams’ defense attorney then asked
the court if it "had[ ] any problem with [her] signing the stipu-
 UNITED STATES v. WILLIAMS 3
lation over the objection of the defendant?" J.A. 11. The court
allowed the defense attorney to sign the stipulation and it was
read to the jury.

During the trial, the government presented its theory of the
crime. According to the government, the package of heroin
was shipped from drug producers in Panama to the Louisville
International Airport in Kentucky where it was intercepted by
law enforcement. From there, if it had not been intercepted,
the package would have been shipped to Sabrina Hutchin-
son’s house in Spartanburg, South Carolina where Victor
Jackson would retrieve it, and then deliver the package to
Williams. Williams, according to the government, planned to
distribute the heroin thereafter.

In support of its theory the government introduced several
pieces of evidence. First, the United States introduced the tes-
timony of Officer Eric Murphy from the Customs and Border
Protection Agency, who explained how the alleged heroin
arrived from Panama and caught his attention. Officer Mur-
phy subsequently conducted a field test which was positive
for heroin.

Second, Victor Jackson, who was Williams’ indicted co-
defendant, testified that he was asked by Williams to retrieve
the package in exchange for $500. During cross examination
it was revealed that Jackson initially lied to police about his
identity and would likely have his sentence reduced based on
his testimony.

Following this testimony, the government published the
stipulation by reading it to the jury1:

United States of America vs. Randolph Williams also
known as Red, Criminal No 7:08-25, the Govern-
1
The written and signed copy of the stipulation has been lost and so we
rely on the transcript for language of the stipulation.
4 UNITED STATES v. WILLIAMS
ment and counsel for the defendant, Randolph Wil-
liams, that counsel being Lora Collins stipulate the
following: that on October the 11th of the 2007 [sic]
lieutenant Beth Rampey Vaughn a certified forensic
chemist with the Spartanburg County Sheriff’s
Office forensic laboratory located in Spartanburg,
South Carolina, examined and analyzed the contents
of the package addressed to Sabrina Hutchinson, 142
Westover Drive No. 5, Spartanburg, South Carolina,
29306 and seized by Eric Murphy of Customs and
Border protection Louisville Kentucky, that the
package was seized on October the 3rd of 2007 from
the UPS sorting facility and submitted to forensic
chemist Rampey Vaughn under ICE file No.
GV13HE08GV0C1[ ], that forensic chemist Rampey
Vaughn who has been qualified as an expert in the
analysis of controlled substances in both state and
federal courts within the District of South Carolina
determined that this – that the package contained a
total weight of 98.61–grams of heroin, a schedule I
controlled substance. We do so stipulate, signed by
Lora Collins, attorney for the defendant, and Assis-
tant United States Attorney Regan A. Pendleton in
Greenville, South Carolina.

J.A. 40-41. The government then introduced testimony by
Officer Brian Duncan. He testified that he dressed as a UPS
delivery man and delivered the package to Ms. Hutchinson’s
house in order to ensure that Victor Jackson retrieve the pack-
age. Next Special Agent Paul Criswell testified as to the con-
tent of an alleged confession by Williams in which he detailed
the plan to retrieve and distribute the heroin. In cross-
examination, the defense pointed out that despite the custodial
nature of Williams’ interrogation, no written statement was
ever taken. Furthermore, the defense raised questions about
whether Williams was under the influence of medication at
the time of the interrogation. The government also called
 UNITED STATES v. WILLIAMS 5
Investigator Matt Hutchins who verified much of Special
Agent Criswell’s testimony.

The defense called Williams to testify on his own behalf.
Among other things, he testified that he was under the influ-
ence of the pain killer Percocet at the time of his interrogation
by Investigator Hutchins and Special Agent Criswell. He also
contradicted earlier statements regarding any admissions he
allegedly made to law enforcement. Finally, the government
called Sabrina Hutchinson who indicated that she did not
know and had never spoken with Williams.

In its charge to the jury, the court indicated that "[w]hen the
attorneys on both sides stipulate or agree to the existence of
a fact . . . you must, unless otherwise instructed, accept the
stipulation as evidence and regard that fact as proved." J.A.
97. The court listed the required elements as (1) "an agree-
ment existed between two or more persons to possess with the
intent to distribute heroin"; (2) "defendant knew of the con-
spiracy"; and (3) "defendant knowingly and voluntarily
became a part of the conspiracy." J.A. 102.

During their deliberation, the jury returned several ques-
tions to the court including: "What amount of drugs does it
take to qualify for distribution as opposed to self-use?" J.A.
109. The court replied by indicating that the jury should use
common sense but that the more drugs there are, the more
likely it is that there is an intent to distribute. The court then
retrieved the stipulation, marked it as the court’s exhibit no.
1, and sent it back with the jury. Later, the court gave the jury
the so-called Allen charge to encourage them to reach a ver-
dict and allowed them to go home for the night. The next
morning, the jury returned a guilty verdict. The jury also
found that Williams had intended to possess 98.61 grams of
heroin.

Williams’ sentencing guidelines were prepared relying on
a determination that he intended to possess 98.61 grams of
6 UNITED STATES v. WILLIAMS
heroin. After disposing of some other objections, the court
imposed a sentence of 78 months which was at the top of the
guideline range. Williams timely filed a notice of appeal.

II.

This Court reviews evidentiary rulings implicating constitu-
tional claims de novo. United States v. Abu Ali, 528 F.3d 210,
253 (4th Cir. 2008), cert. denied, 129 S. Ct. 1312, (2009) (cit-
ing United States v. Rivera, 412 F.3d 562, 566 (4th Cir.
2005).

If we conclude that there is a constitutional violation, then
evidentiary rulings of this kind are subject to harmless error
review. Erroneously admitted evidence is harmless if a
reviewing court is able to determine that "the constitutional
error was harmless beyond a reasonable doubt." United States
v. Abu Ali, 528 F.3d 210, 256 (4th Cir. 2008) (citing Chapman
v. California, 386 U.S. 18, 24 (1967)).

III.

A.

Both parties agree that the district court abused its discre-
tion by admitting the stipulation into evidence over Williams’
objection because it violated his right to confront witnesses
under the Sixth Amendment:

Admitting statements deemed reliable by a judge is
fundamentally at odds with the right of confronta-
tion. To be sure, the Clause’s ultimate goal is to
ensure reliability of evidence, but it is a procedural
rather than a substantive guarantee. It commands,
not that evidence be reliable, but that reliability be
assessed in a particular manner: by testing in the cru-
cible of cross-examination.
 UNITED STATES v. WILLIAMS 7
Crawford v. Washington, 541 U.S. 36, 61 (2004). Though nei-
ther party cites to a case from the Fourth Circuit, both parties
cite relevant cases from outside of this Circuit which have
held that where a defendant objects to the introduction of a
stipulation that is nonetheless introduced at trial, a district
court abuses its discretion. See e.g. Hawkins v. Hannigan, 185
F.3d 1146, 1155 (10th Cir. 1999).

A majority of our sister circuits have held that "a defen-
dant’s attorney can waive his client’s Sixth Amendment right
so long as the defendant does not dissent from his attorney’s
decision, and so long as it can be said that the attorney’s deci-
sion was a legitimate trial tactic or part of a prudent trial strat-
egy." United States v. Cooper, 243 F.3d 411, 418 (7th Cir.
2001) (citation omitted); see also Janosky v. St. Amand, 594
F.3d 39, 48 (1st Cir. 2010) (same); United States v. Gamba,
541 F.3d 895, 900 (9th Cir. 2008) ("defense counsel may
waive an accused’s constitutional rights as a part of trial strat-
egy"); United States v. Plitman, 194 F.3d 59, 63 (2d Cir.
1999) (same); United States v. Reveles, 190 F.3d 678, 683 n.6
(5th Cir. 1999) (same); Hawkins, 185 F. 3d at 1155 (same).

However, other circuits have found that a defendant’s
waiver is required for an attorney to waive a Sixth Amend-
ment right. See Clemmons v. Delo, 124 F.3d 944, 956 (8th
Cir. 1997) ("the law seems to be clear that the right of con-
frontation is personal and fundamental and cannot be waived
by counsel"), cert. denied, 118 S. Ct. 1548 (1998); Carter v.
Sowders, 5 F.3d 975, 981 (6th Cir. 1993) ("there must be evi-
dence in the record to support" a defendant’s waiver of a
Sixth Amendment right to confrontation for it to be valid).

While this Court is inclined to require that defendants make
a clear waiver of their Sixth Amendment right, the Court need
not reach this question here since both counsel and the district
court were aware that Williams objected to the introduction of
the stipulation. We can find no reasoning or case law that
8 UNITED STATES v. WILLIAMS
would uphold a waiver of a Sixth Amendment right by
defense counsel over a defendant’s objection.

Therefore, we find that the district court erred when it
accepted the stipulation over Williams’ objection and violated
his Sixth Amendment right.2

B.

Next we must determine whether Williams is entitled to a
new trial as a matter of law. To make this determination, this
Court must consider whether the constitutional violation was
harmless. An error will be deemed harmless if "the benefi-
ciary of . . . [the] constitutional error [can] prove beyond a
reasonable doubt that the error complained of did not contrib-
ute to the verdict obtained." Chapman v. California, 386 U.S.
18, 24 (1967).

Williams argues that the introduction of the stipulation was
not harmless. First, he argues that several pieces of evidence
presented at trial would not have been admissible but for the
stipulation. He also argues that the court’s use of the stipula-
tion to answer the jury’s question about defining intent to dis-
tribute was highly prejudicial. The government argues that the
error was harmless because the overwhelming uncontested
evidence was sufficient to prove guilt.

We find that the harm from the stipulation extended far
2
A stipulation may also be grounds for a violation of a defendant’s right
to a jury. A defendant has a right under the Fifth and Sixth Amendments
to have a jury determine guilt beyond a reasonable doubt on every element
of a charged offense. United States v. Gaudin, 515 U.S. 506, 509-10
(1995) (United States Constitution "requires criminal convictions to rest
upon a jury determination that the defendant is guilty of every element of
the crime with which he is charged, beyond a reasonable doubt.") How-
ever, this Court need not reach whether or not Williams’ right to jury trial
was violated since we find as a matter of law that Defendant’s Sixth
Amendment right was violated.
 UNITED STATES v. WILLIAMS 9
beyond identifying the substance in the package. The harm
from the stipulation falls into two broad categories. First,
while styled as a stipulation, it essentially established an ele-
ment of the crime. The government, having already secured
a conviction against Jackson, established the chain of custody,
and verified the identity and weight of the substance in the
package, had very little left to prove.

Second, prejudice also derives from the jury using the stip-
ulation to determine whether Williams had an intent to dis-
tribute heroin. The jury’s question during deliberation "What
amount of drugs does it take to qualify for distribution as
opposed to self-use?" indicates that the jury was unresolved
as to whether the government had met its burden of proof on
the first element of the crime. In an effort to clarify the stan-
dard, the district court told the jury that "the larger the quan-
tity of drugs increases the inference that drugs were possessed
with the intent to distribute as opposed to personal use," and
then gave the jury a copy of the stipulation. J.A. 112. The
stipulation was the only evidence of the amount of heroin.

Here, it is not difficult to identify the harm caused by the
stipulation. The district court handed the stipulation to the
jury and thereby indicated that it was important in determin-
ing whether Williams had an intent to distribute heroin. More-
over, the stipulation was marked as the court’s exhibit, giving
it an air of reliability higher than other evidence presented to
the jury. When an "answer to [a] jury’s question [is] supplied
by the trial judge" it is "thus stamped with the imprimatur of
the court." United States v. Ofray-Campos, 534 F.3d 1, 25 (1st
Cir. 2008) (finding that a judge’s indication that co-
defendants are incarcerated unduly prejudiced a jury verdict).
Therefore the stipulation was essential to the jury’s finding
that Williams was guilty of intent to distribute.

We find that this prejudice alone is enough to require that
the conviction be vacated. As a result of the clear prejudice
stemming from the stipulation, this Court concludes that it
10 UNITED STATES v. WILLIAMS
created pervasive prejudice and that the government cannot
come close to proving that it was "harmless beyond a reason-
able doubt." Arizona v. Fulminante, 499 U.S. 279, 307-08
(1991). Therefore, the Court finds that the conviction is
vacated and this matter is remanded to the district court for
further proceedings.

For the reasons explained above, we

VACATE AND REMAND

DEVER, District Judge, concurring in part and dissenting in
part:

I agree with the majority that the district court violated the
Confrontation Clause of the Sixth Amendment at trial in
accepting the stipulation that the package seized at the Louis-
ville airport contained 98.61 grams of heroin. I respectfully
dissent, however, from the majority’s conclusion that the error
requires a new trial. Notably, the stipulation did not connect
Williams to the seized package or inculpate Williams in the
charged conspiracy in any way. Having reviewed the record
in light of Neder v. United States, 527 U.S. 1 (1999), Dela-
ware v. Van Arsdall, 475 U.S. 673 (1986), and the substantive
law of conspiracy, I would affirm the conviction. I describe
the evidence and the events at trial at somewhat greater length
than the majority in order to explain why it is "clear beyond
a reasonable doubt that a rational jury would have found the
defendant guilty absent the error." Neder, 527 U.S. at 18.
Moreover, because the Confrontation Clause does not apply
to the calculation of drug weight at sentencing, I also would
affirm the sentence.

I.

The one-count indictment in this case states:

That beginning at a time unknown to the Grand Jury,
but beginning at least on or about September 25,
 UNITED STATES v. WILLIAMS 11
2007, and continuing through October 10, 2007, in
the District of South Carolina and elsewhere, the
Defendants, RANDOLPH WILLIAMS, a/k/a "Red";
TIMOTHY RAY BYRD, a/k/a Victor Oneill Jack-
son; and SABRINA T. HUTCHINSON, knowingly
and intentionally did combine, conspire and agree
together and have tacit understanding with each
other and various other persons, both known and
unknown to the grand jury, to knowingly, intention-
ally, and unlawfully possess with intent to distribute
a quantity of heroin, a Schedule I controlled sub-
stance, in violation of Title 21, United States Code,
Sections 841(a)(1) and 841(b)(1)(C);

All in violation of Title 21, United States Code, Sec-
tion 846.

J.A. 7.

Williams decided to go to trial and to make the United
States prove the three elements of the charged conspiracy
beyond a reasonable doubt:

(1) an agreement to possess heroin with the intent to
distribute existed between two or more persons; (2)
[Williams] knew of the conspiracy; and (3) [Wil-
liams] knowingly and voluntarily become part of the
conspiracy.

See United States v. Reid, 523 F.3d 310, 315 (4th Cir. 2008).
Williams’s theory of the case was simple: he did not know of
the alleged conspiracy or knowingly and voluntarily become
part of the alleged conspiracy.

At a pre-trial hearing on the morning of the first day of
trial, counsel for the United States and counsel for Williams
stipulated that the testimony of the government’s forensic
chemist would show that the package seized at the Louisville
12 UNITED STATES v. WILLIAMS
airport on October 3, 2007, contained 98.61 grams of heroin.
J.A. 11, 40–41. Defense counsel agreed to stipulate that the
seized package contained 98.61 grams of heroin as a trial
strategy because Williams’s theory of the case was that he did
not know about the alleged conspiracy and was not part of the
alleged conspiracy; therefore, the weight of the heroin "really
doesn’t matter." Id. at 11. Over Williams’s objection, the dis-
trict court accepted the stipulation. Id. at 11, 40–41.

On September 3, 2008, Williams’s trial commenced. Id. at
17. Agent Eric Murphy, of U.S. Customs and Border Protec-
tion, testified first. Id. at 19–26. Murphy explained that he
examined packages arriving into the United States from out-
side the United States and was assigned to the Louisville
International Airport in Louisville, Kentucky. See id. at
19–20. On October 3, 2007, Murphy was alerted to a package
shipped via United Parcel Service ("UPS") from Panama,
which U.S. Customs views as a high risk country for drug
smuggling. Id. at 21–22, 25. The package listed a return
address in Windex, Panama and was addressed to Sabrina
Hutchinson, 142 Westover Drive, Spartanburg, South Caro-
lina. Id. at 22–23.

Murphy identified the package, and it was received into
evidence. Id. at 22; Govt. Ex. No. 1. Murphy testified that on
October 3, 2007, he opened the package and found an enve-
lope inside. J.A. 22. Inside the envelope, he discovered a bag
containing a substance that field tested positive as heroin. Id.
at 23–25. Murphy also testified that drug smugglers com-
monly used the manner in which the substance was packaged
to conceal controlled substances. See id. at 24. The package
of heroin itself was admitted as an exhibit, and Murphy
showed the package of heroin to the jury. See id.; Govt. Ex.
No. 2.

After Murphy seized the heroin, he gave the package
(including the package of heroin) to U.S. Immigration and
Customs Enforcement ("ICE") agents in Louisville. J.A.
 UNITED STATES v. WILLIAMS 13
25–26. The ICE agents in Louisville, in turn, provided the
seized package to ICE agents in South Carolina. Id.

Next, Victor Jackson testified. Id. at 27–39. Jackson testi-
fied that he had known Williams since he (Jackson) was 13
or 14 years old and that Jackson was now 43. Id. at 28. Jack-
son and Williams were friends and Jackson would sometimes
drive Williams places and do errands for him. Id. Jackson had
not been employed for about four or five years, lived with his
girlfriend Sabrina Hutchinson at her residence in Spartanburg,
and was addicted to crack cocaine. Id. at 29. Jackson also
admitted that he had been convicted of distributing crack
cocaine. Id.

Jackson admitted that he pleaded guilty to the conspiracy
to possess with the intent to distribute a quantity of heroin
charged in the indictment. Id. at 29–30. Jackson also admitted
that he hoped that the prosecutor would make a motion to
reduce his sentence due to his cooperation. Id. at 30.

Jackson then testified about the conspiracy. Jackson
explained that Williams and he reached an agreement in the
fall of 2007. Id. at 30. Specifically, Williams asked Jackson
to receive a package addressed to Sabrina Hutchinson at
Hutchinson’s house. Id. Jackson knew that the package con-
tained drugs. Id. at 31-32. Once Jackson received the package,
Jackson agreed to call Williams to pick up the package. Id. at
31. In exchange for receiving the package, Williams agreed to
pay Jackson $500. Id. Jackson told Hutchinson (who Jackson
said was "a little slow") to be on the lookout for a package
and to let Jackson know when it arrived. Id. at 32.

In early October 2007, Williams called Jackson and said
that the package had been "intercepted" in Kentucky. Id.
About three or four days after that phone call, a UPS van
arrived at Hutchinson’s residence. Id. at 33. Jackson was
inside, peered out the window, and saw the UPS van. Id. Jack-
son immediately called Williams and told him what was hap-
14 UNITED STATES v. WILLIAMS
pening. Id. Williams told Jackson to speak to the UPS driver,
but not to sign for anything. Id.

While on the phone with Williams, Jackson opened the
door. Id. The UPS driver (who really was Lieutenant Brian
Duncan of the Spartanburg County Sheriff’s Department)
asked if Sabrina Hutchinson lived there, and Jackson said yes.
Id. at 34–35. The UPS driver then handed the package to
Jackson. Id. at 34. During his direct examination, Jackson
identified Government Exhibit No. 1 as the package he
received. Id.

After Jackson accepted the package, other officers exited
the UPS van and arrested Jackson. Id. Jackson agreed to coop-
erate and called Williams. Id. at 35-36. Williams, however,
did not answer his phone. Id.

On cross examination, Jackson admitted that he was a crack
cocaine addict and had sold bootleg copies of CDs and DVDs
to Williams. Id. at 37–38.

The prosecutor then read the stipulation to the jury. Id. at
40–41. Before the prosecutor read the stipulation, the court
instructed the jury that "a stipulation . . . is an agreement
between the attorneys for each side which you can accept as
having been proven." Id. at 40. The stipulation stated that the
prosecutor and defense counsel stipulate that a qualified,
expert forensic chemist had examined the package seized
from the UPS sorting facility on October 3, 2007, and the
package contained 98.61 grams of heroin, a schedule I con-
trolled substance. Id. at 40-41.

Next, Lieutenant Brian Duncan testified. Id. at 42-46. On
October 9, 2007, Special Agent Paul Criswell and ICE noti-
fied Duncan that "a package had been found in Kentucky that
contained heroin." Id. at 43. Criswell and ICE asked Duncan
to dress up to resemble a UPS driver and to make a controlled
delivery to 142 Westover Drive in Spartanburg. Id. Duncan
 UNITED STATES v. WILLIAMS 15
agreed. Thus, on October 10, 2007, Duncan posed as a UPS
driver and delivered the package to Jackson. Id. at 42-43.

Duncan testified that when Jackson answered the door,
Jackson was talking on the phone. Id. at 44. Duncan handed
the package to Jackson. Id. at 43. Criswell and Investigator
Matt Hutchins of the Spartanburg County Sheriff’s Office
then exited the van in which they had been hiding, and
arrested Jackson. See id. at 44. Duncan, Hutchins, and Cris-
well then asked Jackson if he would cooperate. Id. Jackson
agreed and tried to call Williams. Id. at 44-45. Williams, how-
ever, did not answer. Id. at 45.

Duncan then identified Government Exhibit No. 1 as the
package that he delivered to Jackson on October 10, 2007. Id.
Duncan also identified Government Exhibit No. 2 as the pack-
age of heroin contained inside Government Exhibit No. 1. Id.

On cross examination, Duncan admitted that Williams was
not at the residence when Duncan delivered the package con-
taining heroin to Jackson. Id. at 46.

Agent Paul Criswell then testified. Id. at 46-62. Criswell
explained that he was an ICE agent assigned to Greenville,
South Carolina. Id. at 47. On October 8, 2007, an ICE agent
in Louisville, Kentucky contacted him and told him that ICE
had intercepted a package of heroin in Louisville destined for
Sabrina Hutchinson, 142 Westover Drive, Spartanburg, South
Carolina. Id. at 47-48. Criswell then contacted the Spartan-
burg County Sheriff’s Office and Spartanburg City Police
Department to assist with a controlled delivery of the pack-
age. Id.

Criswell identified Government Exhibit No. 1 as the pack-
age that he received from the Louisville ICE office. Id. at 48-
49. Criswell also identified Government Exhibit No. 2 as "the
heroin that was contained within the package that [he]
received from [the] Louisville office." Id. at 49.
16 UNITED STATES v. WILLIAMS
Criswell then explained the role that he played in the con-
trolled delivery, in Jackson’s arrest, and in Hutchins’s inter-
view of Hutchinson and Jackson. Id. Criswell also explained
that he presented information from the investigation to the
U.S. Attorney’s Office, and a federal grand jury indicted Wil-
liams, Jackson, and Hutchinson on January 8, 2008. Id. at 49-
50. After the indictment, federal arrest warrants were issued.
Id. at 50. On January 9, 2008, Criswell, Hutchins, Duncan,
and an ATF agent went to arrest Williams at Williams’s resi-
dence. Id.; id. at 2.

Criswell identified Government Exhibit No. 4 as a state-
ment of rights and waiver of rights form ("waiver form"). Id.
at 50-51; Govt. Ex. No. 4. Criswell explained that he read the
waiver form to Williams on January 9, 2008. J.A. 51-52. Wil-
liams appeared to understand his rights, did not appear intoxi-
cated, agreed to waive his rights, and signed the waiver form.
Id. at 52-53; Govt. Ex. No. 4. Criswell and Hutchins also
signed the waiver form as witnesses. Id.

Criswell did not promise Williams anything or threaten
him. J.A. 53. Rather, Williams freely and voluntarily gave the
agents a statement regarding his involvement in the heroin
shipped from Panama to Hutchinson’s residence. Id. at 53-54.

According to Criswell, Williams said that he contacted
Jackson about bringing heroin into the United States. Id. at
54. Williams explained that he had been in contact with a man
nicknamed "Cool" in Panama and that Cool sent the package
containing the heroin. Id. (Criswell then identified Cool as
James Alexander Smith III and explained that authorities had
issued a federal arrest warrant in the Eastern District of New
York against Smith III. Id. at 55.) Williams also told Criswell
that he knew another man nicknamed "Coochie" a/k/a James
Alexander Smith, Jr., that Coochie had been found guilty of
conspiracy to distribute heroin, and that Williams had previ-
ously obtained heroin from Coochie. Id.
 UNITED STATES v. WILLIAMS 17
Williams then told Criswell that Jackson was supposed to
receive a package addressed to Sabrina Hutchinson and deliv-
ered to her residence. Id. at 55-56. When the package arrived,
Jackson was to call Williams. Id. In exchange, Williams
agreed to pay Jackson approximately $500. Id. at 56. Wil-
liams also told Criswell that while the package was in transit
from Panama, Cool called Williams and said that the package
had been held up in Kentucky. Id.

As for Williams’s intent, Williams told Criswell that once
he received the package from Jackson, he intended to sell the
heroin contained in the package. Id. at 56-57. Williams also
explained that Cool had "fronted" him the heroin, which
meant that Williams obtained the heroin on credit and would
use some of the proceeds of his heroin sales to pay Cool. Id.
at 57.

On cross examination, Criswell admitted that Williams had
gathered bottles of medication at his residence upon his arrest.
Id. at 60. Criswell also admitted that Coochie is incarcerated
within the Bureau of Prisons and that Williams had told Cris-
well that Cool was in prison in Panama. Id. at 61. Criswell
also admitted that he had not interviewed either Coochie or
Cool. Id.

Next, Investigator Matt Hutchins testified. Id. at 62-67.
Hutchins identified Government Exhibit No. 4 as the waiver
form that was given to Williams. Id. at 63. Hutchins testified
that Criswell read the waiver form to Williams and that
Hutchins signed the waiver form as a witness. Id. Hutchins
explained that Williams appeared to understand his rights,
that neither Hutchins nor Criswell threatened him, that Wil-
liams signed the waiver form, and that neither Hutchins nor
Criswell promised him anything. Id. at 64. Hutchins also testi-
fied that Williams was "very well aware of what was going
on" during the interview, that his information was "detailed
and coherent," and Williams said that he approached Jackson
18 UNITED STATES v. WILLIAMS
about receiving a package that would contain heroin. Id. at
64-65.

On cross examination, Hutchins testified that he was pres-
ent when Williams was arrested and that, before leaving his
residence, Williams gathered bottles of medication to take to
jail. Id. at 65. On redirect examination, Hutchins testified that
the officers did not allow Williams to ingest any medication.
Id. at 66. Rather, Williams gathered the bottles of medication,
placed them in a bag, and gave the bag to the officers. Id. at
66-67. The officers, in turn, gave the bag of medication to
intake at the jail and told Williams that, if he needed medica-
tion, the jail nurse would have to administer the medication.
Id. at 65-67.

Next, Sabrina Hutchinson testified. Id. at 86–91. Hutchin-
son explained that in October 2007, she was living with her
boyfriend Victor Jackson at 142 Westover Drive in Spartan-
burg. Id. at 86-87. Jackson asked Hutchinson if she would let
Jackson know if a package arrived. She agreed to do so. Id.
at 87-88. Hutchinson testified that she did not know she was
part of receiving heroin and did not know what Jackson was
asking her to do. Id. at 89.

Hutchinson testified that she only completed the seventh
grade. Id. at 88. Hutchinson also testified that after being
indicted in this case, her lawyer got her to "take some tests
and get some records." Id. at 88–89. Later, Hutchinson said
that the prosecutor dismissed the conspiracy charge against
her. Id. at 89.

On cross examination, Hutchinson admitted that she never
talked with Williams about receiving a package. Id. at 90.
Rather, Jackson spoke to her about a package and she agreed
to tell Jackson when the package arrived. Id. Finally, she testi-
fied that she did not know that Jackson used drugs and had
never met Williams or spoken to Williams on the phone. Id.
at 90-91. She only knew Williams was a friend of Jackson. Id.
 UNITED STATES v. WILLIAMS 19
The defense presented one witness: the defendant. Id. at 67-
83. Williams admitted that he had multiple drug arrests and
convictions, including for using heroin. Id. at 68. Williams
also admitted knowing Jackson since approximately 1981 and
admitted that Jackson sometimes drove him places because
Williams did not have a driver’s license. Id. at 68-69. As for
his more recent relationship with Jackson, Williams testified
that Jackson would sell him bootleg copies of CDs and
DVDs. Id. at 69.

Williams then testified about his medical condition. Id. at
70. He explained that in October or November 2007, he had
a portion of his colon removed. Id. In early January 2008, he
was at home in bed, when officers arrived with an arrest war-
rant naming Williams, Jackson, and Hutchinson in the
charged conspiracy. Id. at 70-72. Before the officers took him
to jail, Williams testified that he ingested prescription medi-
cine in front of the officers. Id. at 70-71. Williams also testi-
fied that the medicine makes him sleepy. Id. at 72.

Williams then testified about his memory of the events at
the jail. Id. at 73. Williams admitted that the officers advised
him of his rights and that he signed the waiver form. Id. After
signing the waiver form, officers then took him from the jail
to the sheriff’s department for an interview. Id. at 73-74.

During his interview, Williams told the officers that he
knew a man nicknamed "Cool" and that Cool’s real name was
Smith. Id. at 75-77. Williams then identified Cool in a photo-
graphic line-up. Id. Williams then explained that when he told
officers about agreeing to receive a package from Cool, he
was talking about a package that he received from Cool ten
years earlier. Id. at 77. As for his conversations with Jackson
about accepting a package, Williams testified that he only
spoke with Jackson about bootleg CDs and DVDs. Id. Finally,
Williams testified that he had not used heroin for about ten
years, that he had been married for ten years, and that he had
been going to church every Sunday. Id. at 78.
20 UNITED STATES v. WILLIAMS
On cross examination, Williams testified that he had been
addicted to heroin in 2000, but had been clean since 2000 or
2001. Id. at 79–80. As for his January 2008 interview with
officers, Williams testified that he confessed to being part of
the conspiracy due to threats from the officers. Id. at 80. Wil-
liams admitted, however, that he had seen phone records indi-
cating 44 phone calls between Jackson’s phone and his phone
during the time period of October 1, 2007, to October 10,
2007. Id. at 81-82. Williams also admitted that he was on the
phone with Jackson when the officers made the controlled
delivery to Jackson. Id. at 82.

The lawyers then delivered their closing arguments. United
States v. Williams, No. 7:08-cr-00025-HMH-1, [D.E. 171], at
3 (D.S.C. Sept. 3, 2008). Each argument was very succinct.
The prosecutor argued that the United States had proven
beyond a reasonable doubt that Williams and Jackson had
conspired to possess with intent to distribute a quantity of her-
oin. Id. In support, the prosecutor cited the package from Pan-
ama containing heroin and cited Williams’s confession and
his admission that he was on the phone with Jackson during
the controlled delivery of the package of heroin. Id. at 3–4.
The prosecutor conceded that Williams was in poor health
and a former heroin addict, but urged the jury to not use sym-
pathy to excuse Williams’s behavior. Id. at 4. The prosecutor
noted that Williams and Jackson did not mind using Hutchin-
son to facilitate the conspiracy and also cited the 44 phone
calls between Williams and Jackson during the time period of
October 1, and October 10, 2007. Id. at 5. The prosecutor then
stressed the need to use common sense in evaluating the evi-
dence. Id. The prosecutor rejected Williams’s claim that offi-
cers twisted his words during his post-arrest interview, but
somehow came up with the names Coochie and Cool. Id.
Finally, the prosecutor mentioned the package of heroin, the
stipulation that the package contained 98.61 grams of heroin,
Jackson’s testimony about how the conspiracy came into
being, and Williams’s confession concerning the conspiracy
to possess with the intent to distribute a quantity of heroin. Id.
 UNITED STATES v. WILLIAMS 21
at 5–6. The prosecutor then asked the jury to convict Wil-
liams. Id. at 6.

In response, defense counsel returned to the defense theme:
Williams had no knowledge of the alleged conspiracy and
never joined it. In support, defense counsel stated: "The
defense has stipulated there’s heroin in that package because
it was not heroin that Mr. Williams knew about." Id. at 6.
Defense counsel then reminded the jury that the package was
addressed to Sabrina Hutchinson and that Hutchinson testified
that she never talked to Williams about accepting a package
for him. Id. Rather, Hutchinson said that Jackson asked her to
accept a package and that Jackson told Hutchinson that the
package belonged to Williams. Id. at 6–7. Defense counsel
then questioned Jackson’s credibility in light of his guilty plea
to the charged conspiracy and his hope for a sentence reduc-
tion. Id. Defense counsel also noted that Jackson and Wil-
liams had known each other a long time, but the relationship
involved Jackson selling bootleg CDs and DVDs to Williams.
Id.

Defense counsel then noted that the government failed to
verify who sent the package of heroin from Panama and failed
to interview either Coochie or Cool. Id. at 7–8. As for Wil-
liams’s confession, defense counsel explained that he felt
pressured to tell the officers what they wanted to hear and that
his alleged confession actually concerned events of many
years before October 2007. Id. Defense counsel then asked
the jury to find Williams not guilty. Id. at 8. The jury was then
dismissed for the day.

On September 4, 2008, the jury returned and the district
court instructed the jury that, to prove that Williams is guilty,
"the Government [was required to] prove the following ele-
ments beyond a reasonable doubt": (1) "that an agreement
existed between two or more persons to possess with the
intent to distribute heroin"; (2) "that the defendant knew of
the conspiracy"; and (3) "that the defendant knowingly and
22 UNITED STATES v. WILLIAMS
voluntarily became a part of the conspiracy." J.A. 102. The
district court gave a variety of other standard instructions on
the burden of proof, how to consider the evidence, and the
law of conspiracy. See id. at 94-107.

After beginning deliberations, the jury sent a note to the
court and asked three questions. First, the jury asked, "What
amount of drugs does it take to qualify for distribution as
opposed to self-use?" Id. at 109. The court then repeated a
portion of its original charge:

[W]hile you should consider only the evidence in the
case, you are permitted to draw such reasonable
inferences from the testimony and exhibits as you
feel are justified in light of common experience. In
other words, you may make deductions and reach
conclusions which reason and common sense lead
you to draw from the facts that have been established
by the testimony and evidence in the case.

Id. at 112. It also stated:

Basically, what you are determining is whether the
drugs were for personal use of for the purpose of dis-
tribution. The possession of a large quantity of nar-
cotics does not necessarily mean that the defendant
intended to distribute them. On the other hand, a
defendant may have intended to distribute narcotics
even if he did not possess large amounts of them.
Having said that, the larger the quantity of drugs
increases the inference that drugs were possessed
with the intent to distribute as opposed to personal
use.

Id. at 112-13.

Second, the jury asked, "What is the street value of the
drugs?" The court responded: "There was no testimony or evi-
 UNITED STATES v. WILLIAMS 23
dence to that effect. And we don’t add to the record once you
go to the jury room." Id. at 113.

Finally, the jury asked, "Why were phone records not sub-
mitted as evidence and can we see them?" Id. The court
instructed the jury that "[t]he records actually were not admit-
ted in evidence and we cannot add to the record. I can tell you
that the only record is that the question was asked about the
phone records and the defendant agreed." Id. The court also
stated: "I marked as a Court’s Exhibit[.] It should have gone
to you anyway[;] you are being sent the stipulation which is
part of the record." Id. The jury then resumed deliberating. Id.

After lunch, the jury sent a note stating: "We need to hear
the judge’s charge to the jury again." Id. at 115. The court
then sent a copy of its charge to the jury. Id.

Later, the jury asked: "Can we get a copy of Williams’ tes-
timony? We also would like a copy of [Jackson’s] testimony."
Id. The court instructed the jury at 3:30 p.m. that it could get
the testimony transcribed, but "[i]t’s going to take a while.
You may go back to your jury room." Id. at 116. The jury
continued deliberating. Id. Later, the jury sent another note
stating: "We have 11 guilty and one not guilty. We cannot
reach [consensus]." Id. at 117.

At approximately 5:00 p.m., the court gave an Allen charge.
See id. at 118-20. The jury resumed deliberations. Id. at 120-
21. At 5:30 p.m. the jury asked: "We need to get clarification
on considering evidence based on a reasonable doubt and
common sense." Id. at 121. The court then instructed the jury
on reasonable doubt and common sense. See id. at 121-22.

The jury later sent another note: "Tomorrow can we review
the other officers’ testimony?" Id. at 123. The court instructed
the jury that "I will get the court reporter tonight to prepare
all of that testimony for you so you can have it to read tomor-
row." Id. at 124.
24 UNITED STATES v. WILLIAMS
On September 5, 2008, the jury resumed deliberating at
9:00 a.m. Id. at 126. Shortly after 1:00 p.m., the jury reached
a verdict and found defendant guilty. Id. at 126-28.

II.

I agree with the majority that the Fourth Circuit has not
decided whether and under what circumstances defense coun-
sel may waive a defendant’s Sixth Amendment right to con-
frontation. I also agree with the majority that the First,
Second, Fifth, Seventh, Ninth, and Tenth Circuits have held
in published opinions that defense counsel "may waive his cli-
ent’s Sixth Amendment right of confrontation by stipulating
to the admission of evidence, so long as the defendant does
not dissent from his attorney’s decision, and so long as it can
be said that the attorney’s decision was a legitimate trial tac-
tic." United States v. Plitman, 194 F.3d 59, 63–64 (2d Cir.
1999) (quotation omitted).1 The rationale for this waiver rule
is that a "well developed body of case law protects defendants
from constitutionally defective actions of their attorneys," Id.
at 64; see Strickland v. Washington, 466 U.S. 668, 687
(1984), and that courts "must accord proper weight to the role
of defense counsel in fashioning an overall trial strategy,
including one involving waiver of the right to confrontation,
for the defendant’s best advantage." Plitman, 194 F.3d at 64.
I also agree that the Sixth Circuit has held that the confronta-
tion right is personal and that defendant must waive it. See
Carter v. Sowders, 5 F.3d 975, 981 (6th Cir. 1993).2
1
See Janosky v. St. Amand, 594 F.3d 39, 47–48 (1st Cir. 2010); United
States v. Cooper, 243 F.3d 411, 418 (7th Cir. 2001); Hawkins v. Hanni-
gan, 185 F.3d 1146, 1154-56 (10th Cir. 1999); United States v. Stephens,
609 F.2d 230, 232–33 (5th Cir. 1980); United States v. Goldstein, 532
F.2d 1305, 1314–15 (9th Cir. 1976); accord United States v. Gonzales,
342 F. App’x 446, 447-48 (11th Cir. 2009) (per curiam) (unpublished).
2
In dicta, the Eighth Circuit has stated that "the right of confrontation
is personal and fundamental and cannot be waived by counsel." Clemmons
v. Delo, 124 F.3d 944, 956 (8th Cir. 1997).
 UNITED STATES v. WILLIAMS 25
Here, Williams objected to defense counsel’s tactical deci-
sion to stipulate to the forensic chemist’s testimony. J.A. 11,
40–41. Nonetheless, the district court accepted the stipulation,
thereby allowing defense counsel to waive Williams’s right to
confront the forensic chemist. Thus, under the standard of the
overwhelming majority of circuits or under the Sixth Circuit
standard, the district court violated Williams’s Sixth Amend-
ment right to confront the forensic chemist at trial about her
testimony. See, e.g., Melendez-Diaz v. Massachusetts, 129 S.
Ct. 2527, 2531–42 (2009); Plitman, 194 F.3d at 63–64.

III.

Of course, a defendant is entitled to a fair trial, not a perfect
trial. See, e.g., Van Arsdall, 475 U.S. at 681; United States v.
Hasting, 461 U.S. 499, 508–09 (1983). Moreover, the
harmless-error doctrine applies to the Confrontation Clause
error that occurred during the trial. See, e.g., Melendez-Diaz,
129 S. Ct. at 2542 n.14; Van Arsdall, 475 U.S. at 681; United
States v. Banks, 482 F.3d 733, 741–42 (4th Cir. 2007); United
States v. Kahn, 461 F.3d 477, 496 (4th Cir. 2006); United
States v. Iskander, 407 F.3d 232, 240 (4th Cir. 2005). The
harmless-error doctrine preserves the "principle that the cen-
tral purpose of a criminal trial is to decide the factual question
of the defendant’s guilt or innocence, and promotes public
respect for the criminal process by focusing on the underlying
fairness of the trial rather than on the virtually inevitable pres-
ence of immaterial error." Arizona v. Fulminante, 499 U.S.
279, 308 (1991) (quotation omitted). "When reviewing the
erroneous admission of [evidence], the appellate court . . .
simply reviews the remainder of the evidence against the
defendant to determine whether the admission of the [evi-
dence] was harmless beyond a reasonable doubt." Id.; Sher-
man v. Smith, 89 F.3d 1134, 1137 (4th Cir. 1996) (en banc);
see Fed. R. Crim. P. 52(a). In conducting this review, the
reviewing court must examine the "whole record." Neder, 527
U.S. at 16. The court then must ask: "is it clear beyond a rea-
26 UNITED STATES v. WILLIAMS
sonable doubt that a rational jury would have found the defen-
dant guilty absent the error?" Id. at 18.

In applying the harmless-error doctrine in this case, the
Supreme Court’s Van Arsdall decision is instructive. In Van
Arsdall, the Court analyzed a Confrontation Clause error and
stated:

Whether such an error is harmless in a particular
case depends upon a host of factors, all readily
accessible to reviewing courts. These factors include
the importance of the [erroneously admitted evi-
dence] in the prosecution’s case, whether the [erro-
neously admitted evidence] was cumulative, the
presence or absence of evidence corroborating or
contradicting the [erroneously admitted evidence] on
material points, the extent of cross-examination oth-
erwise permitted, and, of course, the overall strength
of the prosecution’s case.

Van Arsdall, 475 U.S. at 684.

Here, the erroneously admitted evidence was the stipulation
which identified the substance in the package seized at the
Louisville airport as heroin and stated that it weighed 98.61
grams. The stipulation did not connect Williams to the seized
package or inculpate Williams in the charged conspiracy in
any way. Unlike the majority, I do not believe that the stipula-
tion (alone or in combination with the court’s jury instruc-
tions) established the first element of the offense. Moreover,
I believe an examination of each Van Arsdall factor demon-
strates that "a rational jury would have found [Williams]
guilty absent the [erroneous admission of the stipulation]."
Neder, 527 U.S. at 18.

First, in determining whether the error was important in the
prosecution’s case, one must focus on the elements of the
charged crime. See Van Arsdall, 475 U.S. at 684. In order to
 UNITED STATES v. WILLIAMS 27
prove Williams guilty of conspiracy to possess with intent to
distribute a quantity of heroin in violation of 21 U.S.C.
§§ 841(a), 841(b)(1)(C), and 846, the government had to
prove "that (1) an agreement to possess [heroin] with intent
to distribute existed between two or more persons; (2) [Wil-
liams] knew of the conspiracy; and (3) [Williams] knowingly
and voluntarily became a part of this conspiracy." Reid, 523
F.3d at 315. The jury did not have to decide upon a specific
quantity of heroin. See id.3

The stipulation could have impacted only the jury’s finding
as to the first element: whether "an agreement to possess [her-
oin] with the intent to distribute existed between two or more
persons." Id. To prove this element, the government need not
prove the actual procurement or even the existence of heroin.
See United States v. Yearwood, 518 F.3d 220, 225–26 (4th
Cir. 2008) ("[T]he gravamen of the crime [of conspiracy] is
an agreement to effectuate a criminal act." (quotation omit-
ted)). If Jackson had agreed with Williams to receive a quan-
tity of heroin for distribution, and Williams had requested
heroin from Cool, the actual contents of any shipment from
Cool would be irrelevant to the existence of the conspiracy.
If Cool had actually shipped baking soda instead of heroin,
the agreement between Williams and Jackson would be unaf-
fected.4 Thus, the stipulation was not important or essential to
prove the existence of an agreement to possess a quantity of
3
The district court had the jury make a finding as to a specific drug
weight. See J.A. 105-06. In light of the offense charged in the indictment
and Reid, there was no need to submit the issue of drug weight to the jury.
See, e.g., Reid, 523 F.3d at 310, 314–17; United States v. Cannady, 283
F.3d 641, 647–49 (4th Cir. 2002); 21 U.S.C. § 841(b)(1)(C).
4
Because the stipulation is not essential to establish the first element and
did not increase the penalty for the crime beyond the prescribed statutory
maximum, the defendant’s right to a trial by jury was not violated. See,
e.g., Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); Reid, 523 F.3d
at 314–17; United States v. Johnson, 71 F.3d 139, 142 (4th Cir. 1995); see
also United States v. Fuller, 162 F.3d 256, 259–61 (4th Cir. 1998). The
majority does not reach this question. See Majority Op. at 8 n.2.
28 UNITED STATES v. WILLIAMS
heroin with the intent to distribute. See Van Arsdall, 475 U.S.
at 684; Banks, 482 F.3d at 742 (erroneous admission of
unnecessary evidence that violated Confrontation Clause
found harmless).

Second, even if the stipulation was important to the prose-
cutor’s case, the stipulation was cumulative as to the first ele-
ment of the offense. Van Arsdall, 475 U.S. at 684.
Independent of the stipulation, the jury had before it: (1) Jack-
son’s testimony concerning his role in the conspiracy; (2)
Criswell’s testimony concerning Williams’s confession to
participating in the conspiracy; (3) Hutchins’s testimony con-
cerning Williams’s confession to participating in the conspir-
acy; (4) Williams’s testimony that there were 44 phone calls
between his phone and Jackson’s phone from October 1 to
October 10, 2007; and, (5) Williams’s corroboration of Jack-
son’s testimony that he was on the phone with Jackson when
the package was delivered. Notably, Williams’s confession
included a statement of his intent to distribute and that he had
procured the drugs on credit. See United States v. Henley, 360
F.3d 509, 514 (6th Cir. 2004) (purchase of drugs by credit
arrangement suggests conspiracy with intent to distribute).
The promise of $500 to Jackson for the simple act of receiv-
ing a package of heroin at Hutchinson’s residence and calling
Williams indicates a conspiracy with the intent to distribute.
See United States v. Dolan, 544 F.2d 1219, 1221 (4th Cir.
1976). The 44 phone calls between Jackson and Williams in
a ten-day period (i.e., October 1 to October 10, 2007) indicate
a conspiracy. See Yearwood, 518 F.3d at 226. Furthermore,
Williams testified that he no longer used heroin, and there
was no evidence of personal use by anyone. Thus, indepen-
dent of the stipulation, there was overwhelming proof of an
agreement to possess heroin with an intent to distribute. Sim-
ply put, the stipulation was cumulative as to the first element.

Third, the stipulation’s statement that the seized package
contained heroin was corroborated by overwhelming and
uncontroverted independent evidence. Van Arsdall, 475 U.S.
 UNITED STATES v. WILLIAMS 29
at 684. Specifically, Murphy testified that the substance was
heroin based on a field test. J.A. 23–25. Such "field test" testi-
mony is competent to demonstrate that the substance seized
was heroin. See, e.g., Sherman v. Scott, 62 F.3d 136, 142 n.5
(5th Cir. 1995); United States v. Paiva, 892 F.2d 148, 160 (1st
Cir. 1989); see also Gonzalez, 342 F. App’x at 447-48; United
States v. Blotcher, 92 F.3d 1182, 1996 WL 442882, at *5-7
(4th Cir. 1996) (per curiam) (unpublished table decision). In
addition, Murphy testified that, based on his training and
experience, the packaging of the substance in the seized pack-
age was consistent with how smugglers packaged illegal nar-
cotics. J.A. 24. Murphy’s testimony and the package of heroin
were received into evidence without objection, and Murphy
then showed the package of heroin to the jury. See id. at 21-
25; see also id. at 45, 92; Govt. Ex. No. 2. Duncan also testi-
fied that the package of heroin contained in Government
Exhibit No. 2 was contained inside Government Exhibit No.
1, explained the controlled delivery to Jackson, and again
showed the package of heroin to the jury. Id. at 44-45. Fur-
thermore, Criswell explained his role in the investigation,
described Williams’s confession, and again showed the pack-
age of heroin to the jury. Id. at 47-49; Govt. Ex. No. 2. Thus,
three witnesses showed the package of heroin to the jury and
identified the package of heroin as being in the package sent
from Panama addressed to Sabrina Hutchinson, seized in Lou-
isville, and delivered to Jackson. Therefore, independent of
the stipulation, the evidence overwhelmingly establishes that
the substance in the package was heroin.

As for the stipulation’s reference to the heroin weighing
98.61 grams, I agree that there was no other evidence that the
heroin weighed precisely 98.61 grams. Cf. Van Arsdall, 475
U.S. at 684. However, the stipulation was not "the only evi-
dence of the amount of heroin." Majority Op. at 9. While I
acknowledge the difference between "weight" and "amount,"
we should focus on whether that precise weight figure would
be material to a rational jury. Neder, 527 U.S. at 18-19; Van
Arsdall, 475 U.S. at 684. In my view, the precise weight fig-
30 UNITED STATES v. WILLIAMS
ure would not be material to a rational jury. Rather, the more
probative piece of evidence to a rational jury would be the
amount of the substance that three witnesses identified as her-
oin and showed to the jury. After all, jurors do not just hear
testimony during a trial. They also see the physical evidence
that is introduced, such as the package of heroin introduced
as Government Exhibit No. 2 in this case. Here, the package
of heroin that the jury repeatedly saw was evidence — inde-
pendent of the stipulation — both of the amount of heroin and
that the amount was intended for distribution. See, e.g.,
United States v. Triana, 477 F.3d 1189, 1195 (10th Cir.
2007); United States v. Wright, 131 F.3d 1111, 1112-16 (4th
Cir. 1997); United States v. Richards, 638 F.2d 765, 769 (5th
Cir. 1981); Dolan, 544 F.2d at 1221-22. Moreover, the court
instructed the jurors that the amount of heroin was not dispo-
sitive to the determination of whether the drugs were intended
for distribution. J.A. 112-13. The court also instructed the
jurors that they should use their reason and common sense to
evaluate the evidence and testimony they had heard. Id. In
addition, a rational jury determining intent would focus on the
credibility dispute among Jackson (who testified to his role in
the conspiracy), the agents (who testified about Williams’s
confession), and Williams (who testified that the agents
threatened him and misunderstood him during his interview,
but who also made key admissions during his trial testimony).
A rational jury’s analysis of the credibility dispute would not
be impacted by the stipulation because the stipulation did not
inculpate Williams and was unrelated to the credibility dis-
pute. See, e.g., Neder, 527 U.S. at 18-19; Van Arsdall, 475
U.S. at 684.

Fourth, the record lacks any evidence contradicting the
stipulation. See Van Arsdall, 475 U.S. at 684. Williams’s
entire theory of the case was that he did not know about the
conspiracy alleged in the indictment among Jackson, Hutchin-
son, and others "known and unknown to the grand jury," and
that he did not join the conspiracy alleged in the indictment.
Therefore, Williams never contended that the package did not
 UNITED STATES v. WILLIAMS 31
contain heroin or "raised evidence sufficient to support a con-
trary finding." Neder, 527 U.S. at 19; Van Arsdall, 475 U.S.
at 684; Schneble v. Florida, 405 U.S. 427, 432 (1972); United
States v. Abu Ali, 528 F.3d 210, 256–57 (4th Cir. 2008). Fur-
ther, Williams never contended that the heroin was intended
for personal use, as opposed to distribution and therefore
"never raised evidence sufficient to support a contrary find-
ing." Neder, 527 U.S. at 19. Indeed, Williams testified that he
had not used heroin since 2000 or 2001. Williams also did not
contend that Jackson or Hutchinson obtained the package of
heroin for personal use in that there was no evidence that
either Jackson (a crack cocaine addict) or Hutchinson ever
used heroin. The only two elements that Williams will contest
at his new trial are the same two elements that he contested
at his first trial and which had nothing to do with the stipula-
tion: whether he knew of the conspiracy alleged in the indict-
ment and whether he knowingly and voluntarily became a
part of the conspiracy. Cf. Neder, 527 U.S. at 19-20 (finding
error harmless where defendant did not dispute omitted ele-
ment); United States v. Lovern, 293 F.3d 695, 700–01 (4th
Cir. 2002) (same).

Fifth, Williams had ample opportunity to cross examine
Murphy, Duncan, and Criswell on the facts contained in the
stipulation, specifically the identity of the substance in the
package and its weight. He never did so. For example, Wil-
liams’s attorney chose to forgo cross examination of Murphy,
without objection from Williams, despite Murphy’s testimony
that the substance field tested positive for heroin and was
packaged consistent with drug smuggling. Moreover, the
record reflects that had the stipulation been rejected, and had
the forensic chemist testified, the cross examination of the
chemist would have been identical to that of Murphy — non-
existent.

Finally, the overall strength of the prosecution’s case dic-
tates a finding of harmlessness. See Van Arsdall, 475 U.S. at
684. "[T]he government presented a substantial amount of
32 UNITED STATES v. WILLIAMS
evidence tending to inculpate [Williams]." Banks, 482 F.3d at
742. The stipulation was, at most, "duplicative of a wealth of
other evidence" presented by the prosecution. Khan, 461 F.3d
at 496; United States v. Smith, 451 F.3d 209, 222 (4th Cir.
2006); United States v. Mackey, 114 F.3d 470, 474–75 (4th
Cir. 1997); United States v. Blevins, 960 F.2d 1252, 1262–63
(4th Cir. 1992). Further, the two elements that Williams con-
tested — whether he knew of the conspiracy alleged in the
indictment and whether he knowingly and voluntarily became
a part of the conspiracy — had nothing to do with the stipula-
tion. A rational jury would not have considered the stipulation
in determining whether the government proved those ele-
ments beyond a reasonable doubt.

Each Van Arsdall factor strongly indicates that the error
was harmless beyond a reasonable doubt. Having reviewed
the whole record under the governing standard, I am con-
vinced that the district court’s error concerning the stipulation
was harmless beyond a reasonable doubt. Neder, 527 U.S. at
18-20; see Lovern, 293 F.3d at 700-01; United States v. Perry,
46 F.3d 1128, 1995 WL 45521, at *4 (4th Cir. 1995) (per
curiam) (unpublished table decision) (Defendant "failed to
present any evidence to cast doubt on the stipulation’s validity
. . . . The stipulation at issue in this case was not an admission
of guilt. [Defendant] never questioned that the bank was
robbed or whether its deposits were federally insured. The
sole issue challenged by the defense was one of identity.").
Thus, I respectfully dissent and would affirm the conviction.

IV.

As for Williams’s sentencing, the statutory maximum term
of imprisonment for conspiracy to possess with intent to dis-
tribute a quantity of heroin in violation of 21 U.S.C.
§§ 841(a)(1) and 846 is 240 months. See 21 U.S.C.
§ 841(b)(1)(C). At Williams’s sentencing hearing, Williams
did not object to the drug weight of 98.61 grams or present
any evidence to show that such an amount was not properly
 UNITED STATES v. WILLIAMS 33
attributed to him. See J.A. 134–47, 160, 171–73; cf. U.S.S.G.
§ 2D1.1(c)(8) (2008). In light of Williams’s accountability for
98.61 grams of heroin and U.S.S.G. § 2D1.1(c)(8), the presen-
tence report ("PSR") provided for a base offense level of 24.
See J.A. 165; U.S.S.G. § 2D1.1(c)(8) (2008). Thus, the district
court calculated Williams’s advisory guideline range as 63
months to 78 months. After considering the 18 U.S.C.
§ 3553(a) factors, the district court sentenced Williams to 78
months’ imprisonment. J.A. 148–49.

Williams argues that the district court violated the Confron-
tation Clause in relying on the stipulated weight of the heroin
at sentencing and the error was not harmless. Williams’s argu-
ment, however, fails because the Confrontation Clause did not
bar the sentencing court from considering the stipulated
weight of the heroin. Cf. Fry v. Pliler, 551 U.S. 112, 121
(2007) ("[I]t would not matter which harmless error standard
is employed if there were no underlying constitutional
error."). As the Fourth Circuit has explained repeatedly, "be-
cause the Sixth Amendment does not apply to the process of
calculating an advisory sentence under the [U.S. Sentencing]
Guidelines, [any] Sixth Amendment-based evidentiary restric-
tions do not apply to that process either." United States v.
Dean, 604 F.3d 169, 174 (4th Cir. 2010).5 Thus, the district
court did not violate the Confrontation Clause and properly
relied on the stipulated drug weight of 98.61 grams in the
5
The principle is so well established that it appears in countless unpub-
lished decisions. See, e.g., United States v. Martinez, 274 F. App’x 291,
293 (4th Cir. 2008) (per curiam) (unpublished); United States v. Debreus,
255 F. App’x 725, 727 (4th Cir. 2007) (per curiam) (unpublished); United
States v. Sullivan, 238 F. App’x 955, 956 (4th Cir. 2007) (per curiam)
(unpublished); United States v. Levesque, 232 F. App’x 364, 366 (4th Cir.
2007) (per curiam) (unpublished); United States v. LaChance, 223 F.
App’x 237, 238 (4th Cir. 2007) (per curiam) (unpublished); United States
v. Newbold, 215 F. App’x 289, 299 (4th Cir. 2007) (per curiam) (unpub-
lished); United States v. Statts, 189 F. App’x 237, 238 (4th Cir. 2006) (per
curiam) (unpublished); United States v. Cole, 180 F. App’x 435, 438 (4th
Cir. 2006) (per curiam) (unpublished).
34 UNITED STATES v. WILLIAMS
PSR. See Fed. R. Crim. P. 32(i)(3). Accordingly, there was no
error at sentencing, and I also would affirm the sentence.