United States v. Larson

GRABER, Circuit Judge,

with whom RYMER, TALLMAN, CLIFTON, BEA, M. SMITH, and IKUTA, Circuit Judges, join, concurring in part and specially concurring in part:

I agree with the majority opinion except in one major respect: Defendants Patricia Ann Larson and Leon Neis Laverdure suffered no Confrontation Clause violation when the court disallowed a defense question to cooperating coconspirator Rick Lee Lamere concerning the statutory minimum prison sentence that he would face in the absence of the prosecutor’s help in exchange for his testimony. Accordingly, the district court did not abuse its discretion. I would affirm on that ground.

The Supreme Court consistently has held that a Confrontation Clause violation occurs when a trial judge prohibits any inquiry into why a witness may be biased, *1109Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); Davis v. Alaska, 415 U.S. 308, 318, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), because “exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination,” Davis, 415 U.S. at 316-17, 94 S.Ct. 1105. The defense must be able to expose through cross-examination a witness’ motive to lie, because “[a] reasonable jury might ... receive[ ] a significantly different impression of [the witness’] credibility” than it would if it had no basis for understanding why a witness may be biased. Van Arsdall, 475 U.S. at 680, 106 S.Ct. 1431. At the same time, the Supreme Court has taken care to caution that, although a defendant must be permitted to explore a witness’ biases, “trial 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, ... prejudice, confusion of the issues, ... or interrogation that is ... only marginally relevant.” Id. at 679, 106 S.Ct. 1431; see also Davis, 415 U.S. at 316, 94 S.Ct. 1105 (noting that the extent of cross-examination of a witness is “[sjubject always to the broad discretion of [the] trial judge”).

Applying those principles, we have found a violation of the Confrontation Clause when a witness had a motive to lie but the trial judge refused to allow cross-examination concerning that motive, leaving the jury to infer that the witness had no motive to lie. United States v. Schoneberg, 396 F.3d 1036, 1040-43 (9th Cir.2005) (holding that the limitations placed on the defendant’s cross-examination, coupled with the district court’s “emphatic admonitions,” “vitiated” the defendant’s attempt to establish that the witness had a motive to lie); see also Fowler v. Sacramento County Sheriff's Dep’t, 421 F.3d 1027, 1041 (9th Cir.2005) (concluding that there was a violation of the Confrontation Clause where all inquiry into a witness’ bias was foreclosed by the trial judge). Once a defendant has had an opportunity to question a witness about bias, we have permitted “reasonable limits,” Van Arsdall, 475 U.S. at 679, 106 S.Ct. 1431, on the scope of cross-examination. No Confrontation Clause violation occurs “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) (internal quotation marks omitted).

According to the majority, a defendant must be permitted to reveal to the jury not only the fact that the witness has made a deal with the government to testify in the hope of receiving a lesser sentence, but also the precise length of the statutory minimum sentence faced by the witness. “Obviously,” according to the majority, a lengthy statutory minimum sentence creates “an extremely strong incentive to testify to the Government’s satisfaction”; without such evidence, the jury in this case was unable “to determine just how strong Lamere’s motivation was to please the Government.” Maj. op. at 1106. Despite its superficial appeal, the majority’s argument suffers from two serious flaws.

First, the majority downplays the significant evidence before the jury that suggested Lamere’s strong incentive to lie. The jury knew the following facts to assist them in assessing Lamere’s credibility:

• Lamere was 31 years old and had five children;
• Lamere was a drug addict and a dealer who had sold at least 10 pounds of methamphetamine;
• Lamere previously had been convicted of seven felonies and had served 2-1/2 years in prison;
• Lamere had pleaded guilty to the drug conspiracy in the present case;
*1110• He faced another prison sentence as a result of that guilty plea;
• By testifying against Defendants, Lamere hoped to reduce his sentence in this case;
• Lamere had entered into a plea agreement with the government. Under his plea agreement, the government would assist Lamere in receiving a shorter prison term in exchange for his testimony against Defendants, but only if the government deemed his cooperation to be “substantial”;
• As defense counsel colorfully emphasized in cross-examining Lamere, “you know as well as I do that there’s only one person in this courtroom that can even make a motion to reduce your sentence” — the prosecutor; and
• The other cooperating witness, Joy Lynn Poitra, who was merely a novice criminal by contrast to Lamere, faced a five-year mandatory minimum sentence.

Knowing those facts, every reasonable juror already would have inferred that Lamere faced substantial prison time and that he was extremely eager to please the prosecutor. The excluded additional fact of the mandatory life term in the absence of a motion from the prosecutor would not have given the jury “a significantly different impression of [Lamere’s] credibility.” Van Arsdall, 475 U.S. at 680, 106 S.Ct. 1431. The jury knew Lamere’s age, 31, so any lengthy sentence (including the 38-year sentence he ultimately received, even with his substantial assistance to the government) would have been very bad for him. Depriving the jury of the slight marginal utility of knowing about the mandatory life term (in the absence of his cooperation) simply does not equate to a constitutional violation.

Second, the majority’s reasoning suffers from a logical flaw. The importance of cross-examination — as the majority recognizes — is to reveal a witness’ state of mind and, more particularly, the extent of the witness’ incentive to testify to the government’s satisfaction. Maj. op. at 1104, 1105. In that regard, the most important piece of the puzzle is the anticipated benefit that Lamere expected to receive if his assistance satisfied the prosecutor. Yet that information was both unknown and unknowable. The information was unknown because the district court had not yet sentenced Lamere. The information was unknowable because defense counsel did not ask Lamere what benefit he anticipated and, had he been asked the question, “How much of a reduction in your sentence do you expect to get?,” the only honest answer could have been, “I don’t know.”

The statutory minimum sentence that a witness faces is relevant for Confrontation Clause purposes only insofar as it pertains to the sentence that the witness has received or realistically anticipates receiving. So the majority’s focus on a statutory term of life in prison by itself is a red herring and, worse, that information in isolation could mislead a jury. The majority asserts that a long statutory minimum sentence necessarily means a proportionately significant psychological imperative to assist the prosecutor. Maj. op. at 1105-06. That assertion is incorrect. The important psychological factor — the extent of the witness’ motive to lie — is not the statutory minimum, however great or small, but instead is what the witness hoped to gain and, realistically, could expect to gain.

This case provides a good example. Although the statutory minimum sentence was life in prison, as it turned out, Lamere was sentenced to a staggering 38 years in *1111prison. Realistically, given his age, a 38-year prison term was nearly a life sentence anyhow. Is that benefit — the reduction of Lamere’s sentence from life to 38 years— as great as the benefit to a witness facing a three-year statutory minimum on whom the court imposes only probation? Not necessarily. Again, the key to understanding a witness’ bias is knowing how great a benefit the witness received or reasonably expected to receive.

The majority’s reliance on United States v. Chandler, 326 F.3d 210 (3d Cir.2003), therefore, is misplaced. Chandler in fact supports the proposition that the extent of the benefit, not the extent of the theoretical sentence, matters. In Chandler, the Third Circuit correctly focused on the enormous benefit that one witness actually had received (one month of house arrest versus more than eight years in prison) and the corresponding benefit that the second witness reasonably could anticipate based on the magnitude of the benefit that the first witness had received. Id. at 222. The court did not find the potential sentences, in isolation, significant, but instead rested its decision on the significant benefits that the witnesses either had received or reasonably could expect to receive. Id.; see also United States v. Mussare, 405 F.3d 161, 170 (3d Cir.2005) (reiterating that Chandler “requires an examination of whether the magnitude of reduction [in the witness’ sentence] would likely have changed the jury’s mind regarding[the witness’] motive for testifying” (emphasis added)), cert. denied, 546 U.S. 1225, 126 S.Ct. 1432, 164 L.Ed.2d 152 (2006). As noted, the record here does not answer that key question. Neither Poitra nor Lamere was asked about the magnitude of an expected benefit, and neither could have known what it was likely to be. And we now know, in hindsight, that the benefit that Lamere ultimately received was not substantial; his 38-year sentence effectively was almost a life sentence, given his age at the time of sentencing. Cf. United States v. Klauer, 856 F.2d 1147, 1149-50 (8th Cir.1988) (holding that no Confrontation Clause violation occurred by the exclusion of testimony about the “reduction of] an otherwise five to seven year sentence to three years” for a testifying co-conspirator).

Once a testifying co-conspirator’s biases and motivations have been exposed, the particular number of years faced (in the absence of concrete information about the actual benefit that a witness received or realistically can expect to receive) is only marginally relevant and is outweighed by concerns of jury confusion and jury prejudice. The circuit courts, including ours, agree on that proposition in a number of contexts, including the context of statutory maxima. See e.g., United States v. Dadanian, 818 F.2d 1443, 1449 (9th Cir. 1987) (holding that knowledge of the specific maximum term of imprisonment faced by a witness “is at best marginally relevant” in assessing the witness’ “potential bias and motive in testifying”), modified on reh’g on other grounds, 856 F.2d 1391 (9th Cir.1988); United States v. Arocho, 305 F.3d 627, 636-37 (7th Cir.2002) (holding that testimony about the specific sentences the testifying co-conspirators faced was, “at best, ... marginally relevant” and outweighed by the potential for jury prejudice), superseded by statute on other grounds as recognized in United States v. Rodriguez-Cardenas, 362 F.3d 958, 960 (7th Cir.2004); United States v. Cropp, 127 F.3d 354, 359 (4th Cir.1997) (holding that “whatever slight additional margin of probative information gained by quantitative questions” about the co-conspirators’ potential sentences of 10 and 20 years was outweighed by “the certainfjury] prejudice that would result” if the testimony had been allowed); United States v. Luciano-Mosquera, 63 F.3d 1142, 1153 (1st Cir.1995) (“Any probative value of information *1112about the precise number of years [the testifying co-conspirator] would have faced ... was slight ... [and] was outweighed by the potential for [jury] prejudice ... see also United States v. Durham, 139 F.3d 1325, 1334 (10th Cir.1998) (holding that additional testimony tending “to show how much prison time [the testifying co-conspirator] was avoiding through his plea agreement” was properly excluded by the district court in the light of the extensive cross-examination that was permitted).

I see no reason to stray from this universal rule even in the context of a statutory minimum. The key question is how much benefit the witness hopes to gain with cooperation, not how much sentencing discretion the district court retains if the witness does not cooperate. Consequently, there is no principled distinction between a statutory maximum and a statutory minimum faced by a cooperating witness. In either situation, a witness could receive a huge benefit or a tiny benefit. In either situation, a district court does not err by ruling that the probative value of the extra information is substantially outweighed by the potential for jury confusion and prejudice.

In summary, I would hold that the jury received enough information to appraise meaningfully Lamere’s biases and motives to lie, including his plea agreement and the hoped-for leniency in sentencing if he succeeded in pleasing the prosecutor. The exclusion of the statutory minimum sentence is not a Confrontation Clause violation in the absence of any means, other than pure speculation, to assess how much of a benefit the witness would receive. The district court therefore did not abuse its discretion when it excluded that portion of Lamere’s testimony.

It also bears noting that the majority’s rule is overbroad and impractical. The rationale that animates its opinion could apply to any statutory minimum term of years, not just to a statutory term of life in prison. The strength of a witness’ incentive to assist the prosecutor may be just as great or greater if she is a young mother facing a 5-year statutory minimum term, or if he is terminally ill and subject to a 10 year statutory minimum. Are 5-year and 10-year minima long enough to require disclosure in cross-examination? The majority’s opinion does not tell us the answer.

One practical consequence of that kind of ambiguity is that prudent trial judges will feel constrained to allow testimony about cooperating witnesses’ expected statutory minimum sentences. I question the wisdom of removing significant discretion from trial judges in the face of the Supreme Court’s reminders that they are to retain “broad discretion,” Davis, 415 U.S. at 316, 94 S.Ct. 1105, and “wide latitude,” Van Arsdall, 475 U.S. at 679, 106 S.Ct. 1431, in controlling cross-examination. I also question the desirability of that outcome in view of the potential, which the majority acknowledges, of such testimony to create jury confusion and jury prejudice.

Additionally, the majority’s rule may have unintended, far reaching consequences. What will happen if the court or the government miscalculates, or a witness misunderstands, the applicable statutory minimum? If the jury is misinformed, will the defendant have grounds for reversal or collateral attack if convicted? The majority has, I fear, written a recipe for unnecessary secondary litigation.

Finally, even if there were error, it was harmless beyond a reasonable doubt. Maj. op. at 1107-08. In that respect, as well as in all others except those discussed above, I agree with the majority opinion.

For the foregoing reasons, I concur in part and specially concur in part.