United States v. Tywanne M. Aldridge

BYE, Circuit Judge,

concurring in part and dissenting in part.

I agree Tywanne M. Aldridge has failed to show the use of an Allen charge was improper once the jury deadlocked. Further, inasmuch as the majority declines to remand for a new trial on other grounds, I agree the sentence should be vacated and the case remanded for resentencing in light of Booker. I believe, however, the district court improperly restricted Al-dridge’s right to cross-examine an important government witness, and I disagree with the majority’s conclusion of the error being harmless beyond a reasonable doubt. Accordingly, I respectfully dissent.

The Confrontation Clause of the Sixth Amendment guarantees the right of an accused in a criminal prosecution “to be confronted with the witnesses against him.” United States v. Bartlett, 856 F.2d 1071, 1088 (8th Cir.1988) (quoting Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)). The right of confrontation means more than being allowed to confront the witness physically. Delaware v. Van Arsdall, 475 U.S. 673, 678, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (citing Davis, 415 U.S. at 308, 94 S.Ct. 1105). The main and essential purpose of confrontation is to provide a meaningful opportunity for the cross-examination of the adverse witnesses. Davis, 415 U.S. at 315, 94 S.Ct. 1105. The right is not, however, unlimited. United States v. Risnes, 912 F.2d 957, 959 (8th Cir.1990). “[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Van Arsdall, 475 U.S. at 679, 106 S.Ct. 1431. In Delaware v. Fensterer, the Supreme Court held “the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.” 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (per curiam) (citing Ohio v. Roberts, 448 U.S. 56, 73 n. 12, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)).

We subject Confrontation Clause errors to harmless-error analysis. Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431.

The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt. 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 witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.

Id.

First, I conclude the district court improperly limited Aldridge’s use on cross-examination of the FBI’s report prepared following McFarlane’s debriefing. McFar-*837lane was the government’s star witness against Aldridge. To convict Aldridge, the government had to prove he was predisposed to enter into the drug conspiracy before being solicited by the government’s informant. Without McFarlane’s testimony, the evidence of predisposition was scant to non-existent. Thus, the ability to attack the substance of McFarlane’s testimony — not just his credibility' — by highlighting his prior inconsistent statements was of paramount importance to Aldridge’s entrapment defense.

The majority characterizes the inconsistencies in the report as hard to evaluate. A careful review of the report, however, demonstrates McFarlane clearly provided authorities with two markedly different versions of his alleged drug distribution ring. In one version, McFarlane claimed he provided drugs to Monroe Lockhart who in turn supplied Preston Gardenhire and no one else. Gardenhire then sold the drugs to his brothers, Dywanne and Travis Lockhart. In this version, McFarlane fails to implicate Aldridge.

In a second version, McFarlane claims he supplied Monroe Lockhart who in turn supplied Preston Gardenhire. In this version, however, instead of supplying only Gardenhire, McFarlane claims Monroe also distributed to Dywanne and Travis Lockhart. Additionally, in this version McFarlane added Aldridge as someone who received drugs from Gardenhire.2

Aldridge’s attorney attempted to highlight these discrepancies during the cross-examination of FBI special agent Rick Young. Counsel for one of the co-defendants, however, objected citing concerns that the testimony might lead to the admission of evidence about his client’s previous drug dealings which the court had excluded under Fed.R.Evid. 404(b). Al-dridge’s attorney assured counsel and the court he intended to limit the cross-examination and there would be no mention of the other defendants. Counsel’s assurances appear to have satisfied those concerns, but the court nonetheless inquired of the government whether it would attempt to bring in the previously excluded evidence if the report was used. The government successfully argued counsel’s limited use of the report would open the door to the entire report and the court sustained the objection. The district court’s failure to recognize its broad authority to prohibit the government from using the report to violate the court’s earlier 404(b) ruling was erroneous. Consequently, the restrictions placed by the court on Al-dridge’s ability to attack McFarlane’s testimony were unnecessary and unreasonable.

Notably, the majority and the government fail to explain how the 404(b) evidence would have become admissible. Indeed, the government’s argument simply reiterates the district court’s ruling without explaining why it was correct. The ruling is especially suspect in light of the fact Aldridge’s attorney specifically told the court he would not ask about the other bad act evidence and intended only to question Young about the discrepancies relating to Aldridge. I see no reason why the district court could not have so limited the cross-examination, thereby allowing Aldridge to impeach McFarlane’s testimony and preserve the earlier ruling.

Second, applying those factors set forth in Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431, I am not convinced beyond a reasonable doubt the error was harmless. Here, *838as evidenced by the two acquittals, the government’s evidence was far from overwhelming. Aldridge did not deny he was involved in a drug conspiracy; but the burden was on the government to prove beyond a reasonable doubt he was predisposed to commit the offense. The only real evidence of predisposition came from McFarlane who operated an extensive criminal enterprise and had much to gain if Aldridge was convicted. Conversely, Al-dridge was twenty-two years old, attended the University of Kansas on an athletic scholarship, and had never been arrested or convicted for any crime. Furthermore, the government was unable to offer any evidence to effectively corroborate McFar-lane’s testimony. Thus, it was extremely important to Aldridge’s defense he be allowed to attack both McFarlane’s credibility and the substance of his testimony. Indeed, the critical nature of this evidence is demonstrated by the fact Aldridge’s two co-defendants, against whom prior bad evidence was ruled inadmissible, were acquitted.

Admittedly, Aldridge was able to cross-examine McFarlane extensively about his criminal past and the deal he worked out with the government. It was, however, important for Aldridge to show not only incentive to lie, but that McFarlane’s story was internally inconsistent. McFarlane was the only person who provided substantive testimony suggesting Aldridge was involved with drug trafficking before he met the government’s informant. The only other evidence the government points to as tending to show predisposition before this deal is one stray comment of dubious value on a tape recording. Because McFarlane told two different stories about Aldridge’s involvement in prior drug dealings, and because his testimony was pivotal to the government’s case, Aldridge should have been afforded every opportunity to discredit the testimony.

The district court intimates Aldridge attempted to use information in the report which had been the subject of the earlier Rule 404(b) ruling. As the transcript indicates, however, it is abundantly clear Al-dridge’s attorney did not intend to mention Gardenhire or Lockhart during the attempted cross-examination. The district court also concluded any error was harmless because Aldridge missed other opportunities to elicit the same information. For example, the court and the majority suggest Aldridge could have asked the same questions of a second FBI agent who was present during the debriefing. If, however, the court would not allow Al-dridge to ask the questions of Young, it is reasonable to conclude any attempt to ask them of another witness would have met a similar fate. Further, using the written report would have been more effective than simply asking whether McFarlane gave contradictory statements during the debriefing.

Finally, I cannot agree with the majority’s conclusion that the district court did not fully exclude the use of the report for impeachment. My review of the transcript suggests the report was excluded in its entirety. But, even if Aldridge could have used other portions of the report, the district court’s error was not obviated. The most effective use of the report was to demonstrate the inconsistencies in McFar-lane’s statements to the FBI. To allow Aldridge full use of other portions which were of no benefit to his defense hardly cures the error.

I recognize this is a close case. In the end, however, given the district court’s erroneous evidentiary ruling, the paucity of evidence of predisposition, the government’s use of an informant and witness who had a great deal to gain from lying, and the acquittal of Aldridge’s co-defen*839dants, I cannot say the error was harmless beyond a reasonable doubt. Accordingly, I would vacate the conviction and remand for a new trial

. Appended to the report, in the form of a diagram, is yet a third version of McFarlane’s drug distribution ring that appears to be an amalgam of the two versions outlined above, but includes additional conspirators.