United States v. Larson

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 05-30076
v.  D.C. No.
PATRICIA ANN LARSON, CR-04-00110-SEH
Defendant-Appellant.


UNITED STATES OF AMERICA,  No. 05-30077
Plaintiff-Appellee,
v.  D.C. No.
CR-04-00110-SEH
LEON NELS LAVERDURE,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding

Argued and Submitted
January 13, 2006—Portland, Oregon

Filed August 28, 2006

Before: Diarmuid F. O’Scannlain, Susan P. Graber, and
Carlos T. Bea, Circuit Judges.

Opinion by Judge O’Scannlain

10263
 UNITED STATES v. LARSON 10267

COUNSEL

David F. Ness, Assistant Federal Defender, Federal Defenders
of Montana, Great Falls, Montana, argued the cause for
defendant-appellant Larson; Anthony R. Gallagher, Federal
Defender, District of Montana, was on the briefs. James B.
Obie, Helena, Montana, argued the cause for defendant-
appellant Laverdure and filed a brief.

Joseph E. Thaggard, Assistant United States Attorney, Great
Falls, Montana, argued the cause for the plaintiff-appellee;
William W. Mercer, United States Attorney, was on the brief.

OPINION

O’SCANNLAIN, Circuit Judge:

In these methamphetamine conspiracy conviction appeals,
we must consider whether defense counsel was improperly
prevented from cross-examining coconspirators about the
prison sentences they would have received but for their coop-
eration with the government, and whether other trial rulings
were proper.
10268 UNITED STATES v. LARSON
I

A

Beginning in April 2003, police officers in Great Falls,
Montana, investigated the possibility that Patricia Ann Larson
and Leon Nels Laverdure were involved in a conspiracy to
purchase and distribute methamphetamine.

The police first orchestrated a controlled purchase of
methamphetamine from Larson by a paid informant, one Con-
nie Riggs, who had met Larson “through some sort of party
or some kind of drug interaction” and had known her for “a
couple years.” Riggs drove Larson to a house where Larson
purchased approximately one sixteenth of an ounce of the
drug (1.80 grams), which she then sold to Riggs.

The police later arranged for two controlled purchases of
drugs from Laverdure by Jason Gilstrap, another confidential
informant. One purchase involved 1.46 grams of methamphet-
amine, and the other involved 1.79 grams. The police also
arranged for a confidential informant to purchase about 3.5
grams of methamphetamine from Joy Lynn Poitra and her
cousin, Rick Lee Lamere. Lamere would later acknowledge
receiving some of his methamphetamine from Laverdure. A
second controlled purchase followed shortly after, at which
time Poitra sold approximately 21 grams of methamphet-
amine to the informant.

B

On July 23, 2004, a federal grand jury filed indictments
against Larson, Laverdure, Lamere, and Poitra, charging each
with a single count: conspiracy to possess and distribute con-
trolled substances, “including but not limited to 500 grams or
more of a substance containing a detectable amount of
 UNITED STATES v. LARSON 10269
methamphetamine,” in violation of 21 U.S.C. §§ 841(a)(1)
and 846, between January 1, 1999, and February 29, 2004.1

Prior to trial, Poitra pleaded guilty under a superseding
indictment charging her with conspiring to possess a con-
trolled substance with intent to distribute at least 50 grams of
a substance containing a detectable amount of methamphet-
amine. Conviction for the originally charged offense would
have subjected Poitra to a term of imprisonment ranging from
five to 40 years.

With respect to Lamere, the government had notified him
of its intention to seek an enhanced sentence under 21 U.S.C.
§ 851 and, accordingly, Lamere allegedly would have faced a
mandatory minimum penalty of life imprisonment. Lamere
avoided the possibility of such enhancement by pleading
guilty to the conspiracy charge and admitting to having dis-
tributed five kilograms of a substance containing metham-
phetamine.

Both Poitra and Lamere agreed to testify against Larson
and Laverdure in exchange for the reduced charges.

C

The jury trial took place in Great Falls, Montana, before
District Judge Sam E. Haddon, on October 26 and 27, 2004.
Before any testimony was heard, Larson’s attorney requested
that the defendants be allowed to “sit at counsel table with us
so that we can consult with them.” The court denied the
request.
1
The indictment further alleged “the drug quantity attributable to Defen-
dant Larson to be five kilograms to fifteen kilograms of a substance con-
taining a detectable amount of methamphetamine and two to 3.5 kilograms
of cocaine”; and “the drug quantity attributable to Defendant Laverdure to
be five to fifteen kilograms of a substance containing a detectable amount
of methamphetamine.”
10270 UNITED STATES v. LARSON
1

On the second day of trial proceedings, the prosecution
elicited testimony from Poitra and Lamere. On the witness
stand, both Poitra and Lamere admitted to cooperating with
the government with the expectation of receiving a reduced
sentence.

On direct examination, Poitra testified that she had
obtained methamphetamine from Laverdure and that, on one
or two occasions, she had overheard phone calls during which
Laverdure would ask for “Patty” (i.e., Larson). Poitra said that
Laverdure would then travel to Larson’s house to obtain the
drugs. As to the controlled purchase which resulted in her
arrest, Poitra testified that she had obtained the methamphet-
amine from Larson through Laverdure.

On cross-examination, counsel for Larson attempted to
inquire about the likely prison term Poitra was facing absent
her cooperation with the government. Judge Haddon sustained
an objection by the prosecution and instructed the jury that the
term of imprisonment was a decision for the court alone.
Counsel was permitted to ask Poitra about the possibility of
imprisonment, but not about her understanding of the particu-
lar term she was likely to receive. Counsel was also able to
cross-examine Poitra as to inconsistencies among the state-
ments given to police in the course of three prior interviews.
Poitra admitted to extensive drug use and to drug dealing.
Finally, defense counsel cross-examined Poitra as to whether
the plea agreement included a promise of a reduced sentence
contingent upon her testimony at trial; Poitra acknowledged
her understanding that the only person who could move to
reduce her sentence was the Assistant United States Attorney.

On direct examination of Lamere, the prosecution elicited
testimony that Lamere had obtained methamphetamine from
Larson through Laverdure. Lamere knew this to have been the
case because, he said, Laverdure had told him it came from
 UNITED STATES v. LARSON 10271
Larson. Lamere also testified that one “Fatso” Komeotis
claimed to have obtained six ounces of methamphetamine
from Larson, which he had then passed on to Lamere. The
district court overruled two hearsay objections by defense
counsel.

On cross-examination, defense counsel, as it did when
examining Poitra, elicited testimony from Lamere that he was
testifying pursuant to a plea bargain under which he expected
the government to move for a reduced sentence.

2

The jury rendered guilty verdicts against Larson and Laver-
dure.2 On February 14, 2005, the district court sentenced Lar-
son to a 97-month term of imprisonment to be followed by a
four-year term of supervised release. On the same day, the
court sentenced Laverdure to a 188-month term of imprison-
ment to be followed by a four-year term of supervised release.

II

Larson and Laverdure’s first contention on appeal is that
the district court violated their Confrontation Clause rights
when it prevented counsel from cross-examining the govern-
ment’s cooperating witnesses as to the minimum terms of
imprisonment they would likely have faced if not for their
agreement to testify against the appellants.3
2
The jury also rendered “special verdicts” finding the “amount of drugs
attributable to . . . Larson, to be 309 grams of a substance containing a
detectable amount of methamphetamine,” and the “amount of drugs attrib-
utable to . . . Laverdure to be 364 grams of a substance containing a
detectable amount of methamphetamine.”
3
With respect to our standard of review, there is a certain lack of clarity
in our prior Sixth Amendment jurisprudence. In some cases we have
reviewed de novo whether limitations on cross-examination are so severe
as to violate the Confrontation Clause. See United States v. Adamson, 291
10272 UNITED STATES v. LARSON
More specifically, Larson and Laverdure argue that the
government’s case against them “was based almost entirely
on the testimony of Poitra and LaMere [sic] . . . . Their credi-
bility was, therefore, critical to the case.” Citing Delaware v.
Van Arsdall, 475 U.S. 673 (1986), they further contend that
but for the trial court’s limitation on cross-examination, the
jury likely would have received a “significantly different
impression” of the witness’s credibility.

The government’s position is that the extent of cross-
examination permitted was sufficient to pass constitutional
muster and, if not, any error was harmless beyond reasonable
doubt.

A

[1] The right to confrontation enshrined in the Sixth
Amendment includes the right to cross-examine adverse wit-
nesses. Davis v. Alaska, 415 U.S. 308, 315-17 (1974). This
right, in turn, ensures a defendant’s opportunity to demon-
strate any possible bias in the adverse witness as well as his

F.3d 606, 612 (9th Cir. 2002); United States v. Ortega, 203 F.3d 675, 682
(9th Cir. 2000); United States v. Beardslee, 197 F.3d 378, 383 (9th Cir.
1999). Yet in another line of cases, we have applied an abuse of discretion
standard. See Wood v. Alaska, 957 F.2d 1544, 1550 (9th Cir. 1992);
United States v. Lo, 231 F.3d 471, 482 (9th Cir. 2000); United States v.
Feldman, 788 F.2d 544, 554 (9th Cir. 1986). This is not the first occasion
on which we have noted the discrepancy. See United States v. Rodriguez-
Rodriguez, 393 F.3d 849, 856 (9th Cir. 2005).
However, as was the case in Rodriguez-Rodriguez, we need not render
a definitive holding as to the proper standard of review of this sort of Con-
frontation Clause claim if reversal is unwarranted under any standard. See
id. Moreover, the substantive Confrontation Clause standard, as we dis-
cuss further below, itself prescribes deference to the trial court’s decisions.
See, e.g., United States v. Jenkins, 884 F.2d 433, 435 (9th Cir. 1989).
We also note that we may affirm the decision below on any ground sup-
ported by the record, even if it differs from the reasoning of the district
court. Padilla v. Terhune, 309 F.3d 614, 618 (9th Cir. 2002).
 UNITED STATES v. LARSON 10273
motivation for testifying. Id. at 316-17 (“The partiality of a
witness is . . . ‘always relevant as discrediting the witness and
affecting the weight of his testimony.’ ” (quoting 3A J. Wig-
more, Evidence § 940, at 775 (Chadbourne rev. 1970))).

[2] A Confrontation Clause violation occurs where the
defendant is prevented from investigating “a prototypical
form of bias” if the jury “might reasonably have found [that
it] furnished the witness a motive for favoring the prosecution
in his testimony.” Van Arsdall, 475 U.S. at 679-80. Accord-
ingly, the cross-examination need not be certain to affect the
jury’s assessment of the testimony. Fowler v. Sacramento
County Sheriff’s Dep’t, 421 F.3d 1027, 1036 (9th Cir. 2005).
Additionally, limitations on cross-examination “cannot pre-
clude a defendant from . . . [making] ‘a record from which to
argue why [the witness] might have been biased.’ ” United
States v. Schoneberg, 396 F.3d 1036, 1042 (9th Cir. 2005)
(quoting Davis, 415 U.S. at 318 (first alteration added)).

But the right to cross-examine a witness for possible bias
or incredibility is not absolute or unlimited. In Van Arsdall,
the Supreme Court insisted that a trial court retains “wide lati-
tude” to exclude cross-examination that is, among other
things, harassing, prejudicial, confusing of the issues, threat-
ening to the witness’s safety, repetitive, or only marginally
relevant. 475 U.S. at 679. “ ‘[T]he Confrontation Clause guar-
antees an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.’ ” Id. (quoting Dela-
ware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam)).

Moreover, in prior cases we have explained that, although
the trial court cannot foreclose all inquiry into an otherwise
proper area of cross-examination, it may impose limitations
on cross-examination that are “reasonable” and not “arbitrary
or disproportionate to the purposes they are designed to
serve.” See, e.g., Fowler, 421 F.3d at 1037 (quoting Van Ars-
10274 UNITED STATES v. LARSON
dall, 475 U.S. at 679; and Michigan v. Lucas, 500 U.S. 145,
151 (1991) (internal quotation marks omitted)).

More specifically, the trial court does not err “ ‘as long as
the jury receives sufficient information to appraise the biases
and motivations of the witness.’ ” United States v. Shabani,
48 F.3d 401, 403 (9th Cir. 1995) (quoting United States v.
Feldman, 788 F.2d 544, 554 (9th Cir. 1986)). On this point,
the First Circuit’s formulation is apt: a trial court need allow
only a “minimal constitutional threshold level of inquiry,” and
it does not err provided that “there is sufficient evidence
before the jury (absent the excluded evidence) from which the
jury could make a discriminating appraisal of the possible
biases and motivations of the witnesses.” United States v.
Luciano-Mosquera, 63 F.3d 1142, 1153 (1st Cir. 1995) (inter-
nal quotation marks omitted); accord Wood, 957 F.2d at 1550
(holding that the jury need have only “ ‘sufficient informa-
tion’ upon which to assess the credibility of witnesses”).

B

[3] Accordingly, in this Circuit, we have distilled from the
foregoing cases three criteria under which we will evaluate a
claim that the trial court has violated the Confrontation Clause
by excluding evidence: (1) whether the excluded evidence
was relevant; (2) whether there were other legitimate interests
outweighing the defendant’s interest in presenting the evi-
dence; and (3) whether the exclusion of evidence left the jury
with sufficient information to assess the credibility of the wit-
ness. See Beardslee, 197 F.3d at 383 (citing United States v.
James, 139 F.3d 709, 713 (9th Cir. 1998)). We apply these
criteria to the present case.

1

[4] The parties do not specifically contest the potential rele-
vance of the excluded cross-examination. All else being
equal, we consider it more probable that a cooperating witness
 UNITED STATES v. LARSON 10275
otherwise facing a lengthy prison sentence will give testimony
biased in the government’s favor. Cf. James, 139 F.3d at 713
(citing Fed. R. Evid. 401).

2

As for the second criterion, “we begin by considering the
probative value of the evidence.” Id. As noted above, the
defense sought to elicit testimony that, but for their coopera-
tion, Poitra and Lamere were facing mandatory minimum sen-
tences of five years and life, respectively.

[5] The five-year mandatory minimum faced by Poitra was
of slight probative value. For an offense involving the sale of
narcotics, a five-year sentence is not particularly lengthy; the
jury likely assumed that Poitra’s sentencing exposure was at
least that extensive without being specifically told so.
Lamere’s exposure to a statutory life sentence has greater pro-
bative value. We note, however, that the potential for biased
or false testimony depends not only on the likely sentence the
witness would otherwise face, but also—and more directly—
on the reduction in sentencing he or she expects to receive. A
cooperating witness’s motivation to give biased or false testi-
mony is therefore not necessarily captured by the length of the
potential sentence—the witness knows that his sentencing
remains subject to the court’s discretion notwithstanding the
government’s motion. Lamere’s sentencing had not yet taken
place at the time he testified against Larson and Laverdure.

[6] We must also consider whether the excluded cross-
examination may have been prejudicial. See United States v.
Easter, 66 F.3d 1018, 1022 (9th Cir. 1995). Larson and
Laverdure sought to elicit testimony on cross-examination of
Poitra and Lamere that “would [have] place[d] before the jury
information from which it could infer the potential sentences
the appellants faced and that could sway the jury.” United
States v. Arocho, 305 F.3d 627, 636 (7th Cir. 2002), super-
seded by statute on other grounds as stated in United States
10276 UNITED STATES v. LARSON
v. Rodriguez-Cardenas, 362 F.3d 958, 960 (7th Cir. 2004);
accord United States v. Mulinelli-Navas, 111 F.3d 983, 988
(1st Cir. 1997); Luciano-Mosquera, 63 F.3d at 1153. Where,
as here, the defendants and cooperating witnesses were
charged as members of a single conspiracy, we consider that
danger especially troublesome. Moreover, we note that the
severity of the potential prejudice is likely commensurate with
the length of the prison term the cooperating witness may
have received. The inference (stemming from Lamere’s
potential sentence) that Larson and Laverdure could be sen-
tenced to life in prison may have strongly biased the jury
against conviction.

3

Lastly, we consider whether the jury was left with suffi-
cient other information to assess the credibility of Poitra and
Lamere.

[7] In this case, it is clear that the district court did not fore-
close “all inquiry” into the motivation for the cooperating
witnesses’ testimony. Van Arsdall, 475 U.S. at 679. On cross-
examination of Poitra, Larson’s attorney inquired about the
plea agreement Poitra had reached with the government. He
asked whether Poitra “was going to prison because of” the
admissions in the plea agreement, to which Poitra responded
affirmatively. Counsel then asked, “In fact, you’re going to
prison for a minimum of five years; right?” Judge Haddon
then interjected, “Well, just a minute counsel. You know that
the sentencing of defendants in this court is the responsibility
of the court. And I will make the decision about the appropri-
ate sentence at the appropriate time. That’s not a proper sub-
ject of cross-examination.” Counsel again attempted to ask
Poitra about her “understanding of the penalty [she was] fac-
ing.” Judge Haddon sustained the government’s second objec-
tion.

However, Larson’s trial counsel persisted, next asking,
“Your understanding is, short of your cooperation, you’re
 UNITED STATES v. LARSON 10277
likely to go to prison; correct?” Poitra answered affirmatively,
and the following exchange ensued:

Q. And you have a new baby, right?

A. He’s two years old.

Q. And obviously, you don’t want to go to prison
and leave your baby; do you?

A. No.

Q. And you also know that there’s only one person
in this courtroom that can even make a motion
to try to reduce your sentence; correct?

A. Yes.

Q. And that’s Mr. Thaggard [the Assistant U.S.
Attorney]; correct?

A. Yes.

....

Q. And so in a very real sense, your sentence is
directly affected by your testimony here?

A. Yes.

Defense counsel was able to question Lamere along similar
lines. Lamere testified that by his testimony against Larson
and Laverdure he hoped for the government’s motion to
reduce his prison sentence. He further acknowledged that the
government prosecutor was the only person who could make
the motion for the reduced sentence.4
4
The jury heard this testimony after the court’s admonition to defense
counsel that sentencing “is the responsibility of the court.” We are satis-
fied that the jury understood that the Assistant U.S. Attorney’s motion was
required to reduce Poitra and Lamere’s sentences.
10278 UNITED STATES v. LARSON
[8] In United States v. Dadanian, 818 F.2d 1443 (9th Cir.
1987), modified on other grounds, 856 F.2d 1391 (9th Cir.
1988), we rejected a claim that the district court violated the
Sixth Amendment when it “fail[ed] to allow cross examina-
tion of [a cooperating witness] about his maximum jail time
exposure.” 818 F.2d at 1449. The court explained that Van
Arsdall was not violated because the witness “was subject to
extensive cross examination about the terms of his agreement
with the government,” including questioning about an agree-
ment to dismiss nine mail fraud counts and illegal gambling
and racketeering charges in exchange for his testimony. Id.
This constituted “more than an adequate opportunity to
expose [the witness’s] potential bias and motive in testifying,”
and thus the prison time the witness faced was “at best mar-
ginally relevant.” Id.

The cross-examination permitted in this case was quite sim-
ilar to that which we deemed sufficient in Dadanian. Larson
and Laverdue, however, would have us distinguish that case.
They contend that in Dadanian the defense sought to inquire
into the penalties that a defendant “might” have faced (the
statutory maximum sentence), whereas in this case counsel
attempted to cross-examine Poitra and Lamere as to the sen-
tences they “would” otherwise face (the statutory minimum
sentences). They think the latter is more nearly relevant to a
showing of potential bias.

[9] However, we do not read Dadanian as suggesting that
our inquiry should turn on the length or certainty of the sen-
tence about which defense counsel sought to inquire. Rather,
in Dadanian we considered whether the trial court foreclosed
“all inquiry” into a prototypical form of bias or merely
imposed limitations that are reasonable and not arbitrary or
disproportionate to the purposes served. Where the court
allows extensive examination as to the existence of an agree-
ment by which a witness has traded adverse testimony for the
government’s motion for a reduced sentence, the defense has
provided the jury with sufficient information upon which to
 UNITED STATES v. LARSON 10279
judge the witness’s motivation for testifying and his or her
corresponding credibility. The length of the sentence the
cooperating witness would otherwise face—even where cer-
tain because of an applicable statutory minimum—is margin-
ally relevant in light of testimony about the existence of an
agreement generally. Such evidence may be excluded at least
where, as here, the jury may have improperly inferred that the
defendants faced sentences of similar duration.

Our holding is consistent with the opinions of several other
circuits, which considered and rejected similar Sixth Amend-
ment challenges. See Arocho, 305 F.3d at 636 (holding that
where the jury heard about the witnesses’ plea agreements,
that multiple counts were dismissed in exchange for testi-
mony, and that the witnesses expected to receive a substantial
benefit, the trial court did not violate the Confrontation Clause
by excluding cross-examination as to the “specific sentences
and the sentencing guideline ranges they faced both before
and after their cooperation with the government”); Mulinelli-
Navas, 111 F.3d at 987-88 (holding that the district court did
not violate the Confrontation Clause where it excluded cross-
examination as to the possible sentence faced by the cooperat-
ing witness because the defense was able to elicit testimony
as to the government’s agreement to drop charges against him
and that the U.S. Attorney would make a recommendation for
reduction in his sentence; district court had reasoned that
“matters of sentencing were in the sound discretion of the dis-
trict court judge”); Luciano-Mosquera, 63 F.3d at 1153 (hold-
ing that the district court did not violate the Confrontation
Clause when it cut off cross-examination into the 35-year
penalty a government witness would have faced on counts
that were dropped in exchange for his testimony; the defen-
dant had “sufficient opportunity to expose potential biases”
and “[a]ny probative value of information about the precise
number of years [the witness] would have faced . . . was
slight”); United States v. Nelson, 39 F.3d 705, 707-09 (7th
Cir. 1994) (holding that the court reasonably limited cross-
examination where it “prevented defense counsel from asking
10280 UNITED STATES v. LARSON
[the witnesses] what penalties they might have faced without
plea-bargains” where the jury heard about the plea bargains
and about “what the witnesses were to receive from the bar-
gains”; “once this core function is satisfied by allowing cross-
examination to expose a motive to lie, it is of peripheral con-
cern to the Sixth Amendment how much opportunity defense
counsel gets to hammer that point home to the jury”); Brown
v. Powell, 975 F.2d 1, 3-6 (1st Cir. 1992) (holding that the
trial court did not violate the defendant’s Sixth Amendment
rights when it excluded testimony that a cooperating witness
had avoided the possibility of a life sentence without parole
in exchange for his testimony; the jury had sufficient other
information before it to apprise possible biases and motiva-
tions).5

In sum, Poitra and Lamere were “subject to extensive cross
examination, which established a variety of potential flaws in
[their] testimony.” James, 139 F.3d at 714; accord Easter, 66
F.3d at 1022. We are satisfied, in light of the district court’s
“wide latitude” on such matters, that the jury received ade-
quate information with which to appraise the biases and moti-
vations of the cooperating coconspirators.

C

[10] Having considered the foregoing factors, we reject
Larson and Laverdure’s claim that the district court’s limita-
5
Decisions of this circuit in which the court found a Confrontation
Clause violation are distinguishable from the present case. For example,
Schoneberg involved circumstances in which defense counsel “was not
permitted to cross examine [the witness] about whether his testimony was
affected by the government’s promise to move for a sentence reduction if
his testimony satisfied the government.” 396 F.3d at 1040-41. Here, Lar-
son and Laverdure clearly had the opportunity “to make clear to the jury
what benefit or detriment will flow [from Poitra and Lamere’s testimony],
and what will trigger the benefit or detriment, to show why the witness
might testify falsely in order to gain the benefit or avoid the detriment.”
Id. at 1042.
 UNITED STATES v. LARSON 10281
tion on cross-examination of adverse witnesses violated their
Confrontation Clause rights. Poitra’s five-year minimum was
of slight probative value. With respect to Lamere’s potential
life sentence in particular, there was a significant danger of
undue prejudice from counsel’s intended line of cross-
examination. And as to each in equal measure, the jury other-
wise received sufficient information from which to evaluate
the cooperating witness’s biases and motivations.

III

Next, Larson and Laverdure contend that the district court
erred when it admitted, over counsel’s objection, Lamere’s
testimony that Laverdure and “Fatso” Komeotis told him that
Larson was the source of their methamphetamine. Larson and
Laverdure frame this objection as violating the Federal Rules
of Evidence, as well as the Sixth Amendment.6

A

Larson and Laverdure first contend that Lamere’s testi-
mony was hearsay. They argue that, although the
coconspirator-statement rule may encompass statements that
aid in the initiation of the conspiracy or those that “help plan
future strategy,” see FED. R. EVID. 801(d)(2)(E), the rule does
not permit the introduction of the statements at issue, which
they consider merely “chit chat, bragging, or descriptive com-
ments,” and, in any event, that there was inadequate founda-
tion here to support admission under Rule 801(d)(2)(E).
6
We review de novo the district court’s application of the hearsay rule.
United States v. Alvarez, 358 F.3d 1194, 1214 (9th Cir. 2004). However,
we apply a clearly erroneous standard in reviewing whether challenged
statements were made in the course and furtherance of a conspiracy.
United States v. Pena-Espinoza, 47 F.3d 356, 360-61 (9th Cir. 1995);
United States v. Shryock, 342 F.3d 948, 981 (9th Cir. 2003).
We review de novo whether the admission of an out-of-course state-
ment violated the Confrontation Clause. United States v. Bowman, 215
F.3d 951, 960 (9th Cir. 2000).
10282 UNITED STATES v. LARSON
The government’s position is that Laverdure and Komeo-
tis’s statements were made during the course and in further-
ance of a conspiracy.

1

[11] A coconspirator’s statement may be admitted against
a defendant where the prosecution shows by preponderance of
the evidence that (1) the conspiracy existed when the state-
ment was made; (2) the defendant had knowledge of, and par-
ticipated in, the conspiracy; and (3) the statement was made
“in furtherance of” the conspiracy. Bowman, 215 F.3d at 960-
61 (citing Bourjaily v. United States, 483 U.S. 171, 175 (1987)).7
In general, it is true that “[m]ere conversations between
coconspirators, or merely narrative declarations among them,
are not made ‘in furtherance’ of a conspiracy. Rather, to be
‘in furtherance’ the statements must further the common
objectives of the conspiracy or set in motion transactions that
are an integral part of the conspiracy.” United States v.
arbrough, 852 F.2d 1522, 1535 (9th Cir. 1988) (citations
omitted).

[12] In prior cases we have considered a coconspirator’s
identification of the defendant as the source of illegal drugs
as having been made “in furtherance of” the conspiracy. See
Williams, 989 F.2d at 1068-69; United States v. Paris, 827
F.2d 395, 400 (9th Cir. 1987). The broad context or circum-
stances in which the statement was made can serve as founda-
tion adequate to establish the purpose of such identification.
Moreover, the foundation need be sufficient only to infer the
statement’s purpose; it need not be laid bare on the pages of
the trial transcript. See United States v. Layton, 720 F.2d 548,
557 (9th Cir. 1983) (“The context of [the coconspirator’s]
statements supports an inference that they were made in fur-
therance of the conspiracy.”).
7
Komeotis need not have been indicted to be considered a coconspirator
for the purposes of Rule 801(d)(2)(E). United States v. Williams, 989 F.2d
1061, 1067 (9th Cir. 1993).
 UNITED STATES v. LARSON 10283
In Yarbrough, we considered the admission of testimony
that the declarant-coconspirator had conveyed details of past
criminal acts committed by members of an alleged conspir-
acy. See 852 F.2d at 1535 (involving, for example, reports of
certain murders committed by conspiracy members). With no
specific discussion as to “foundation,” the court treated the
statements as clearly having been made “with the intent to
keep [the] coconspirators abreast of what the [group] had
done, was doing, or would do in the future.” Id. at 1536;
accord United States v. Eaglin, 571 F.2d 1069, 1083 (9th Cir.
1977). The coconspirator was relaying facts as to what steps
had been taken in furtherance of the conspiracy’s ultimate
goal.

Similarly, in Williams, we considered out-of-court state-
ments identifying the defendant as the source of drugs and
held that the statements could be admitted under Rule
801(d)(2)(E). 989 F.2d at 1067-69. Larson and Laverdure
read Williams as involving statements that “were made to ‘set
in motion a transaction that is an integral part of the conspira-
cy.’ ” We disagree. In Williams we held simply that the state-
ments concerning drug source—as opposed to other
statements which involved a coconspirator’s request to buy
drugs—were “clearly designed to keep [the coconspirator]
informed as to the conspiracy’s activities.” Id. at 1068; see
also id. at 1069 (holding that four other statements also
“served to keep [a coconspirator] informed as to the group’s
drug supply”).

We also find helpful our holding in Pena-Espinoza. In that
case, a special agent testified that, while attempting to make
a controlled purchase of narcotics, he asked a coconspirator
“where the stuff came from, referring to the cocaine that [he]
bought yesterday.” 47 F.3d at 361. The court admitted testi-
mony as to the coconspirator’s answer that the defendant was
the source of the drugs. The testimony as to the coconspira-
tor’s statement was not connected to any explicit foundational
evidence as to why the declarant made the statement. See id.
10284 UNITED STATES v. LARSON
Instead, we relied on “other evidence in the record,” such as
“a drug courier’s several visits to [the defendant’s] house just
prior to making deliveries, and the defendant’s presence dur-
ing one of [the special agent’s] drug purchases.” Id. Thus, the
defendant’s status as a coconspirator was sufficient to estab-
lish the statements’ relevance to him and the manner in which
it furthered the conspiracy’s purpose.

2

[13] In light of the foregoing cases, and given the context
in which Laverdure and Komeotis made the statements at
issue in this case, we easily infer several ways in which they
furthered the objectives of the conspiracy. Most clearly, the
statements by Laverdure and Komeotis kept Lamere abreast
of the activities of the conspiracy. As in Yarbrough, the state-
ments informed Lamere of certain steps taken in the process
of reaching the ultimate goal of distribution of the metham-
phetamine. As in Williams, the statements served to keep
Lamere informed as to the group’s drug supply. And as in
Pena-Espinoza, Lamere’s status as a member of the conspir-
acy and the specific factual context in which the statements
were made—during purchases of illegal narcotics—provide
adequate foundation to infer the purpose of those statements.8
As the government suggests, the statements likely provided
assurance to Lamere “that he would receive methamphet-
amine from a source of supply known to him.” Given the dan-
ger of the endeavor, Lamere may also have been interested to
know precisely with whom he was dealing.9
8
As the prosecution pointed out at trial, “We’re looking at a business
here. And basically [Komeotis] and Laverdure were identifying their sup-
plier. And I think that that is highly relevant and it does pertain to the con-
spiracy and tends to advance it.”
9
To be sure, a supplier’s informing a potential buyer as to the ultimate
source of the illegal narcotics offered for the latter’s purchase is not a
“mere conversation between conspirators” nor simply a “narrative declara-
tion.” United States v. Fielding, 645 F.2d 719, 726 (9th Cir. 1981) (per
 UNITED STATES v. LARSON 10285
[14] For all of the foregoing reasons, the district court did
not commit clear error in admitting under Rule 801(d)(2)(E)
the out-of-court statements of Komeotis and Laverdure. As
such, the evidence was validly admitted against both Larson
and Laverdure. See United States v. Eubanks, 591 F.2d 513,
519 (9th Cir. 1979) (per curiam).

B

We next consider Larson and Laverdure’s claim that admis-
sion of the out-of-court statements violated the Confrontation
Clause.10

[15] The Supreme Court’s recent decision in Crawford v.
Washington, 541 U.S. 36 (2004), directs us to consider
whether the admitted out-of-court statements were “testimoni-
al.” As other circuits have done, we recognize that “Crawford
at least suggests that the determinative factor in determining
whether a declarant bears testimony is the declarant’s aware-
ness or expectation that his or her statements may later be
used at a trial.”11 United States v. Saget, 377 F.3d 223, 228

curiam). It is not a “casual admission of culpability to someone he had
individually decided to trust.” United States v. Moore, 522 F.2d 1068,
1077 (9th Cir. 1975) (involving a statement by a coconspirator to a person
unrelated to the conspiracy). And this is not a case in which the cocon-
spirator had “limited responsibilities” in the enterprise such that the
declarant’s statement was “immaterial to him.” United States v. Bibbero,
749 F.2d 581, 584 (9th Cir. 1984).
10
The government argues that the court could affirm the admission of
Laverdure’s out-of-court statement against Laverdure as an admission by
a party opponent. But if the statement were not the statement by a cocon-
spirator, most likely Bruton v. United States, 391 U.S. 123 (1968), and its
progeny bar its use in the joint-trial setting.
11
See also White v. Illinois, 502 U.S. 346, 365 (1992) (Thomas, J., con-
curring in part) (“[T]he Confrontation Clause is implicated by extrajudi-
cial statements only insofar as they are contained in formalized testimonial
materials, such as affidavits, depositions, prior testimony, or confes-
sions.”), quoted in Crawford, 541 U.S. at 51-52.
10286 UNITED STATES v. LARSON
(2d Cir. 2004); accord United States v. Hinton, 423 F.3d 355,
359 (3d Cir. 2005). The Crawford Court itself assumed that
statements made in furtherance of a conspiracy “by their
nature [are] not testimonial.” 541 U.S. at 56; accord United
States v. Sanchez-Berrios, 424 F.3d 65, 75 (1st Cir. 2005);
United States v. Lee, 374 F.3d 637, 644 (8th Cir. 2004).

[16] Given our holding above, the out-of-court statements
were clearly not testimonial in nature. It is unclear whether
we are still required to apply the test articulated in Ohio v.
Roberts, 448 U.S. 56 (1980), to determine the admissibility of
such non-testimonial statements. See United States v. Wei-
land, 420 F.3d 1062, 1076 (9th Cir. 2005) (stating that there
is “uncertainty” as to whether the Ohio v. Roberts test sur-
vives Crawford), cert. denied, 126 S. Ct. 1911 (2006); see
also Jensen v. Pliler, 439 F.3d 1086, 1090 (9th Cir. 2006)
(refusing to decide the issue), petition for cert. filed, ___
U.S.L.W. ___ (U.S. July 18, 2006) (No. 06-5449).

In Roberts, the Supreme Court held that the admission of
an out-of-court declaration in a criminal trial requires ade-
quate “indicia of reliability.” 448 U.S. at 66. The Court cited
two circumstances under which such indicia are established:
(1) where admitted under a “firmly rooted hearsay exception”;
or (2) where accompanied by “particularized guarantees of
trustworthiness.” Id. Later, in Bourjaily v. United States, the
Court held that “the co-conspirator exception to the hearsay
rule is firmly enough rooted in our jurisprudence that . . . a
court need not independently inquire into the reliability of
such statements.” 483 U.S. at 183-84. Thus, the Bourjaily
Court rendered the Sixth Amendment requirements for admit-
ting coconspirator statements “identical” to those of Rule
801(d)(2)(E). Id. at 182-84.

[17] The admission of the out-of-court statements was
proper under Rule 801(d)(2)(E). As such, even if Roberts sur-
vives Crawford, we hold that the Constitution was not vio-
lated. See United States v. Hagege, 437 F.3d 943, 958 (9th
 UNITED STATES v. LARSON 10287
Cir. 2006) (applying similar analysis), petition for cert. filed,
74 U.S.L.W. 3687 (U.S. May 23, 2006) (No. 05-1534).12

IV

Larson and Laverdure also contend that the district court
violated their constitutional rights to a fair trial and due pro-
cess when it denied a request that the court seat them at the
counsel table, instead seating them directly behind their attor-
neys. They argue that the arrangement “adversely affect[ed]
counsel’s ability to communicate with his client during the
trial,” and that it “served to undermine the presumption of
innocence” by injecting unnecessary and undue prejudice in
the trial proceedings.13

A

[18] The criminal process presumes that the defendant is
innocent until proved guilty. Deck v. Missouri, 544 U.S. 622,
630 (2005); see also Estelle v. Williams, 425 U.S. 501, 503
(1976) (explaining that the presumption is a basic component
of the right to a fair trial). Accordingly, the Constitution pro-
hibits any courtroom arrangement or procedure that “under-
mines the presumption of innocence and the related fairness
of the factfinding process.” Deck, 544 U.S. at 630 (citing Wil-
liams, 425 U.S. at 503). The presumption is so undermined
12
Admission under the coconspirator exception similarly alleviates any
difficulty under Bruton and its progeny. See 391 U.S. at 128 & n.3; accord
Sanchez-Berrios, 424 F.3d at 76; Eaglin, 571 F.2d at 1078.
13
At oral argument, counsel for Laverdure argued that the constitutional
error stemmed from the combined effect of the seating arrangement and
the proximity of federal marshals. The complaint about the marshals’ pres-
ence, however, was raised for the first time at oral argument. It was not
argued in the briefs, nor was there even any mention of it in the trial
record. We consider it waived. See Arpin v. Santa Clara Valley Transp.
Agency, 261 F.3d 912, 919 (9th Cir. 2001) (“[I]ssues which are not specif-
ically and distinctly argued and raised in a party’s opening brief are
waived.”).
10288 UNITED STATES v. LARSON
when the practice creates “an unacceptable risk . . . of imper-
missible factors coming into play.” Williams, 425 U.S. at 505.

1

The courts have invalidated various courtroom arrange-
ments and procedures as violating the right to a fair trial. See
Deck, 544 U.S. at 632-35 (invalidating the routine practice of
compelling defendants during the punishment phase of capital
cases to wear visible shackles); Williams, 425 U.S. at 503-05
(invalidating the trial court’s requirement that a defendant
appear in prison garb); Musladin v. LaMarque, 427 F.3d 653,
656-60 (9th Cir. 2005) (reversing a murder conviction
because spectators wore buttons depicting the alleged victim’s
photograph), cert. granted sub nom. Carey v. Musladin, 126
S. Ct. 1769 (2006); United States v. Olvera, 30 F.3d 1195,
1198 (9th Cir. 1994) (reversing a conviction because the
defendant was compelled to speak the words of the bank rob-
ber in front of the jury); Norris v. Risley, 918 F.2d 828, 831-
34 (9th Cir. 1990) (reversing a rape conviction because spec-
tators wore anti-rape buttons).

In contrast, the Supreme Court has upheld an arrangement
by which four uniformed security personnel sat in the first
row of the courtroom’s spectator section. See Holbrook v.
Flynn, 475 U.S. 560 (1986). The Court explained that the
deployment of security personnel is not “the sort of inherently
prejudicial practice that, like shackling, should be permitted
only where justified by an essential state interest specific to
each trial.” Id. at 568-69. Similarly, in Morgan v. Aispuro,
946 F.2d 1462 (9th Cir. 1991), we held that the use of a court-
room with special security features “did not ‘brand [the defen-
dant] in [the jury’s] eyes with an unmistakable mark of
guilt.’ ” Id. at 1465 (quoting Flynn, 475 U.S. at 571). And in
Williams v. Woodford, 384 F.3d 567 (9th Cir. 2004), we held
that the “noticeable deployment” of four deputy marshals—
“one near Williams, one near the jury, and one on each side
of the gate from the spectator section”—was not inherently
 UNITED STATES v. LARSON 10289
prejudicial, and we declined to remand to the district court for
an evidentiary hearing on the issue. Id. at 587-89.

The foregoing cases demonstrate that our core concern in
this area is to avoid any procedure that undermines the pre-
sumption of innocence by conveying a message to the jury
that the defendant is guilty. See Flynn, 475 U.S. at 567
(explaining that guilt is not to be determined on “grounds of
official suspicion, indictment, continued custody, or other cir-
cumstances not adduced as proof at trial” (internal quotation
marks omitted)); Williams, 425 U.S. at 503 (“[C]ourts must
carefully guard against dilution of the principle that guilt is to
be established by probative evidence and beyond a reasonable
doubt.”); Rhoden v. Rowland, 172 F.3d 633, 636 (9th Cir.
1999) (barring practices “creating an inherent danger that the
jury may form the impression that the defendant is dangerous
or untrustworthy . . . so as not to mark him as an obviously
bad man or to suggest that the fact of his guilt is a foregone
conclusion” (internal quotation marks omitted)); Olvera, 30
F.3d at 1197 (explaining that a trial practice cannot “isolate[ ]
the defendant from all others in a courtroom [nor] inevitably
associate[ ] him or her with the charged conduct” (emphasis
added)); Norris, 918 F.2d at 831 (holding that the invalidated
practice “constituted a continuing reminder that various spec-
tators believed [the defendant’s] guilt before it was proven”).

2

While shackling and prison garb subtly suggest that the
defendant should be imprisoned, and while buttons worn by
spectators directly advocate for that result, the courtroom pro-
cedure employed in this case is different. As with the uni-
formed security guards in Flynn, the jury may not have even
thought it remarkable that the two defendants were seated
immediately behind their attorneys. The jury most likely
“drew no impermissible inference” from the arrangement.
Musladin, 427 F.3d at 657 (citing Flynn, 475 U.S. at 569).
10290 UNITED STATES v. LARSON
[19] Given that the trial involved two defendants and the
participation of two attorneys, the jury may have just as easily
inferred that the arrangement simply ameliorated overcrowd-
ing at the counsel table, or that it facilitated a more orderly
and decorous courtroom. We are confident that the seating
arrangement was simply “taken for granted,” and it surely car-
ried a “wider range of inferences that a juror might reasonably
draw.” Flynn, 475 U.S. at 569. In short, the arrangement in no
way conveyed a message of Larson and Laverdure’s guilt and
it therefore cannot be considered either “inherently prejudi-
cial” or prejudicial in this particular case. See id.

We note the agreement of the First Circuit, which, in
United States v. Balsam, 203 F.3d 72 (1st Cir. 2000), con-
cluded that a similar seating arrangement did not cause preju-
dice by suggesting the defendant’s guilt. The court approved
a district court’s decision, based on “the small courtroom and
the attendant security concerns,” to seat the defendants in the
front row of the spectator section. Id. at 81-82. The First Cir-
cuit court noted that courtroom seating arrangements depend
on “such a variety of factors” that it would afford substantial
deference to the trial court’s decision. It concluded that “[t]he
front row in the spectator section is not an inherently prejudi-
cial location for seating criminal defendants.” Id.14

[20] Given that the seating arrangement in this case was not
“inherently prejudicial,” the district court need not have “jus-
tified [the arrangement] by an essential state interest specific
to [Larson and Laverdure’s] trial.” Flynn, 475 U.S. at 568-69;
Morgan, 946 F.2d at 1465 (holding that where a procedure is
not inherently prejudicial “the state does not have to justify its
decision” to employ that procedure). But see United States v.
Sorrentino, 726 F.2d 876, 887 (1st Cir. 1984) (holding that
14
The factual difference between Balsam and this case is not significant.
Though Balsam involved five defendants, deference is nonetheless due the
trial court’s opting for alternative seating arrangements, based on similar
concerns for courtroom security, for the two defendants at issue here.
 UNITED STATES v. LARSON 10291
the district court must articulate reasons of security or practicali-
ty).15

B

Larson and Laverdure also suggest that the seating arrange-
ment violated another constitutional value: a defendant’s right
15
Even if such a requirement were present, we think that the district
court complied with it. We observe that in Deck, the Supreme Court took
pains to assure the public that it did not “underestimate . . . the need to
give trial courts latitude in making individualized security determina-
tions.” 544 U.S. at 632. The trial transcript indicates that an “individual-
ized security determination” is precisely what took place in this case:
[LARSON’S COUNSEL]: I just wanted to ask permission if
our clients could sit at counsel table with us so that we can con-
sult with them.
THE COURT: Well, that is a matter that I’m going to leave
to the discretion of the marshals for security purposes, and that
will be their decision. And I have given them authorization to
have these people placed where they think necessary for those
reasons . . . . You need only turn around to talk to your client.
[LARSON’S COUNSEL]: They told me I had to ask you.
They told me it was your order.
THE COURT: Well, if they have no objection, I don’t. That’s
up to —
DEPUTY MARSHAL: I would prefer they stayed where
they’re at.
THE COURT: Marshal indicated he prefers the defendants
stay where they are presently seated. That’s where they will stay.
The judge relied on the informed, professional judgment of his deputy
marshal and thereby clearly indicated that the only relevant concern
involved in selecting this particular seating arrangement was courtroom
security. Cf. Norris v. Risley, 878 F.2d 1178, 1182 (9th Cir. 1989)
(explaining that a procedure is acceptable if it will be viewed only as a
sign of a normal concern for safety and order). This constitutes a permissi-
ble exercise of discretion, notwithstanding Larson and Laverdure’s
attempt to malign the decision as “a rubber stamping of a request by law
enforcement officers.”
10292 UNITED STATES v. LARSON
to a meaningful defense and competent counsel. See Deck,
544 U.S. at 631.

But there is no showing in the record that the seating
arrangement interfered with the appellants’ ability to commu-
nicate with their attorneys. Quite the contrary, the court
explicitly informed the attorneys that they “need only turn
around to talk to your client.” Counsel for Laverdure
acknowledged at argument that the appellants were seated
directly behind the attorneys and that counsel and client had
ready access to each other. See United States v. Jones, 766
F.2d 994, 1004 (6th Cir. 1985) (finding no violation of the
right to consult with counsel because the defendants could
pass notes to the attorneys and the attorneys could get up from
counsel table to speak with their clients). Moreover, there is
no suggestion that, like the practice of shackling, the court
imposed any physical burden, pain, or restraint that confused
or embarrassed Larson and Laverdure. Deck, 544 U.S. at 630-
31.

[21] We are persuaded that the challenged seating arrange-
ment was not inherently prejudicial, and Larson and Laver-
dure have not shown that they were actually prejudiced at
trial. We therefore reject these constitutional claims.

V

Larson and Laverdure’s final contention is that their trial
suffered from cumulative error. See, e.g., United States v.
Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996)). Having dis-
covered no error in Larson and Laverdure’s trial, we reject
this argument as well.

AFFIRMED.