United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 8, 2005 Decided January 31, 2006
No. 04-3078
UNITED STATES OF AMERICA,
APPELLEE
v.
CRICTINO FONSECA,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 03cr00106-01)
Sandra G. Roland, Assistant Federal Public Defender,
argued the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender. Mary M. Petras and Neil H.
Jaffee, Assistant Federal Public Defenders, entered appearances.
John P. Mannarino, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Kenneth L.
Wainstein, U.S. Attorney, John R. Fisher, Assistant U.S.
Attorney at the time the brief was filed, and Elizabeth Trosman,
Assistant U.S. Attorney. Roy W. McLeese, III, Assistant U.S.
Attorney, entered an appearance.
Before: TATEL, GARLAND, and GRIFFITH, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: A jury found defendant Crictino
Fonseca guilty of unlawful possession of a firearm and
ammunition by a convicted felon. Fonseca raises two issues that
are in contention on this appeal. First, he argues that the district
court violated the Speedy Trial Act by not beginning the trial
that resulted in his conviction until after the statutory deadline.
Second, he asserts that the court abused its discretion by limiting
his cross-examination of a government witness. Concluding that
the district court neither violated the Speedy Trial Act nor
abused its discretion in circumscribing cross-examination, we
affirm the judgment of conviction.1
I
On March 11, 2003, Fonseca was indicted on a charge of
possession of a firearm and ammunition by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). Fonseca’s first trial
stemming from this indictment began on August 18, 2003. Due
to the jury’s inability to reach a unanimous verdict, the district
1
Fonseca also argues, and the government agrees, that -- in the
course of imposing a sentence on Fonseca prior to the Supreme
Court’s decision in United States v. Booker -- the district court erred
by treating the United States Sentencing Guidelines as mandatory. See
United States v. Booker, 543 U.S. 220 (2005). Further agreeing that
the record is insufficient to “determine with confidence whether the
defendant suffered prejudice from the Booker error,” United States v.
Coles, 403 F.3d 764, 765 (D.C. Cir. 2005), both parties suggest that
we remand the record to the District Court “so that it may determine
whether it would have imposed a different sentence, materially more
favorable to the defendant, if sentencing had taken place under the
post-Booker sentencing regime.” Id.; see Appellant’s Br. at 26-27;
Appellee’s Br. at 39-42. We accept the parties’ suggestion and
remand the record for this limited purpose.
3
court declared a mistrial on August 26, 2003. On February 6,
2004, five months after the mistrial, Fonseca filed a motion to
dismiss the indictment, alleging that the court had failed to begin
his retrial within the time required by the Speedy Trial Act, § 18
U.S.C. 3161(e). The district court denied Fonseca’s motion to
dismiss, and a retrial was commenced on February 25, 2004.
At the retrial, Liz’a Williams testified that she lived in an
apartment at 601 Park Road in northwest Washington, D.C.
Fonseca was the resident manager of the apartment building.
On the evening of February 15, 2003, Williams went to a
neighbor’s house at 613 Park Road, where she and her friends
played cards, ate pizza, and drank piña coladas. Sometime
during the night, a heavy snow began to fall. At 7:00 a.m. the
next morning, Williams, along with her friend Wanda Johnson
and Fonseca’s girlfriend Kee-Kee, walked back toward 601 Park
Road, arguing loudly with one another. As the women stood
outside the apartment building quarreling, Fonseca leaned out of
the window of his second-floor apartment, which overlooked the
front of the building. Fonseca, who was holding a handgun, first
cursed at the women and then fired three shots at them. The
women ducked behind a parked car.
Metropolitan Police Department Officer Michael Rackey
testified that, at approximately 7:00 a.m. on February 16, he and
Officer Jeffrey Byrd drove to 601 Park Road in response to a
police radio report. They arrived at the scene within minutes
and were approached by Williams and Johnson, who said that
three shots had been fired at them from a second-floor window.
The women gave the officers a physical description of the
shooter and said that he was the building manager of 601 Park
Road.
Rackey testified that, after speaking with the women, the
officers entered the building, proceeded to the second-floor
4
apartment identified by Williams, and knocked on the door. As
they stood there knocking, the officers noticed defendant
Fonseca ascending the stairs from the basement. Because he
matched the description of the shooter provided by Williams and
Johnson, the officers arrested Fonseca on the spot. They then
entered Fonseca’s apartment and found that the window from
which the women said the shots had been fired was open.
Officer Rackey testified that he next went to the building’s
basement to search the area from which he had heard Fonseca
emerge. After opening the basement’s exterior door, Rackey
saw a single set of footprints in the freshly fallen snow. The
footprints led to a garbage bag, topped by an automobile tire.
Rackey lifted the tire and discovered a plastic bag containing a
revolver. The gun’s six chambers held three live rounds and
three expended shell casings.
In his defense, Fonseca called two witnesses. The first was
a forensic toxicologist from District of Columbia Pretrial
Services, who testified that Liz’a Williams had tested positive
for cocaine on January 13, 2003, following her arrest on an
unrelated charge of possessing drug paraphernalia. The district
court admitted the testimony to impeach Williams’ statement,
made during cross-examination, that she had not used drugs
since 2002. The defense also called Officer Byrd, who testified
that he thought the window that Williams and Johnson had
indicated as the location of the shooter was on the side of the
building, rather than the front. Fonseca did not testify.
On March 4, 2004, the jury found Fonseca guilty as
charged. On June 14, the district court sentenced him to a term
of 104 months’ imprisonment. We consider the two challenges
to Fonseca’s conviction below.
5
II
Fonseca’s first contention is that his retrial violated the
Speedy Trial Act because it did not commence until February
25, 2004, six months after his first trial ended in a mistrial. We
review this challenge, which concerns the meaning of the Act’s
statutory language, de novo. See Zhu v. Gonzales, 411 F.3d 292,
294 (D.C. Cir. 2005).
Under the Speedy Trial Act, the trial of a defendant charged
in an indictment must begin “within seventy days from the filing
date” of the indictment or from the date the defendant appears
before a judicial officer, whichever date occurs later. 18 U.S.C.
§ 3161(c)(1). “If the defendant is to be tried again following a
declaration by the trial judge of a mistrial,” as was the case here,
“the trial shall commence within seventy days from the date the
action occasioning the retrial becomes final.” 18 U.S.C. §
3161(e). The parties agree that “the date the action occasioning
the retrial” became final in this case was August 26, 2003, the
date the district court declared a mistrial. They further agree
that “seventy days from the date” of that action was November
4, 2003 -- seventy days after August 26, not counting August 26
itself. See United States v. Westbrook, 119 F.3d 1176, 1186 (5th
Cir. 1997); Gov’t of Virgin Islands v. Duberry, 923 F.2d 317,
320 n.8 (3d Cir. 1991); Speedy Trial Plan of the United States
District Court for the District of Columbia, at 10 (Oct. 30,
2002). Accordingly, unless another statutory provision is
applicable, both parties agree that the deadline for
commencement of the retrial was November 4, 2003.
There is another applicable provision. The Speedy Trial
Act provides that certain “periods of delay shall be excluded in
computing” the seventy-day period. 18 U.S.C. § 3161(h). The
exclusion at issue here is that described in § 3161(h)(1)(F),
which covers “delay resulting from any pretrial motion, from the
6
filing of the motion through the conclusion of the hearing on, or
other prompt disposition of, such motion.” 18 U.S.C. §
3161(h)(1)(F). The government filed such a pretrial motion on
the morning of November 4, 2003, the seventieth day after the
mistrial. The court did not resolve that motion until the day the
retrial began, February 25, 2004.
Fonseca contends that the government filed its pretrial
motion one day too late. According to the defendant, the period
of exclusion -- “from the filing of the motion through the . . .
disposition of [] such motion” -- does not begin until the day
after the motion is filed. Under that view, the period of
exclusion did not begin until November 5, 2003, too late to save
a retrial that had to begin no later than November 4.
We disagree. In our view, the most natural reading of the
phrase “from the filing of the motion” is that the period of
exclusion begins immediately “from the filing.” Fonseca’s
position, that the period begins from “the day after” the filing,
would require the insertion of language not in the statute.
Although we have never had occasion to reach a holding on this
issue, we have previously suggested that the period of exclusion
begins on the day a pretrial motion is filed. See United States v.
Wilson, 835 F.2d 1440, 1441 n.2 (D.C. Cir. 1987). This was
also the view of the Committee on the Administration of the
Criminal Law of the Judicial Conference of the United States.
See Guidelines to the Administration of the Speedy Trial Act of
1974, as Amended (Dec. 1979 rev., with amendments through
Oct. 1984), 106 F.R.D. 271, 288 (1984). And it is the reading of
all but one of the circuits that have considered the question. See
United States v. Daychild, 357 F.3d 1082, 1092-93 (9th Cir.
2004); United States v. Westbrook, 119 F.3d 1176, 1186 (5th
Cir. 1997); United States v. Parker, 30 F.3d 542, 546-47 (4th
Cir. 1994); United States v. Jodoin, 672 F.2d 232, 237 n.7 (1st
Cir. 1982) (Breyer, J.). Only the Sixth Circuit computes the
7
starting date for this exclusion from the day after the motion is
filed, and it has offered no explanation for that view other than
circuit precedent. See United States v. Thomas, 49 F.3d 253 (6th
Cir. 1995).2
Fonseca argues that there is no justification for beginning
the date of the exclusionary period on the date of the filing of a
pretrial motion for purposes of § 3161(h)(1)(F), while not
starting the seventy-day clock until the day after the filing date
of an indictment or the day after the action occasioning the
retrial becomes final for purposes of § 3161(c)(1) and (e). But
there is a justification: the statutory language governing the
starting of the Speedy Trial Act clock is different from the
language governing its tolling. The former requires the trial to
commence “within seventy days from the filing date” or “within
seventy days from the date” of the action requiring retrial. 18
U.S.C. § 3161(c)(1) & (e) (emphasis added). The latter tolls the
clock “from the filing of the motion.”
Accordingly, we conclude that the period of delay resulting
from the filing of the government’s motion in this case began on
November 4, 2003, in time to save Fonseca’s retrial from
violating the Speedy Trial Act.
III
Fonseca’s second contention is that the district court erred
in barring his counsel from cross-examining Liz’a Williams
about a crack pipe found in her purse when she was arrested in
January 2003. We review a district court’s evidentiary rulings,
including those involving the scope of cross-examination, for
abuse of discretion. United States v. Coumaris, 399 F.3d 343,
2
The precedent cited, United States v. Bowers, 834 F.2d 607 (6th
Cir. 1987), also offers no explanation.
8
347 (D.C. Cir. 2005); see United States v. Abel, 469 U.S. 45, 54-
55 (1984). Before examining the legal considerations, we first
describe the trial proceedings that led to defense counsel’s failed
attempt to cross-examine Williams regarding the pipe.
A
During her cross-examination of Williams, Fonseca’s
counsel asked Williams whether she was not just drinking piña
coladas on the night in question, but was “also getting high that
night.” 3/1/04 Tr. at 207. After Williams responded, “I don’t
use drugs,” the district court called the attorneys to the bench
and asked Fonseca’s counsel what her “good-faith basis [was]
for believing there were drugs.” Id. Counsel responded that
Fonseca’s girlfriend, Kee-Kee, had told her that the women
“were getting high that night.” Id. Defense counsel further
noted that Williams had answered the cross-examination
question by stating that she did not use drugs, and counsel said
that she now expected Williams would repeat her statement
from the first trial that she had not used drugs since she suffered
a heart attack in June 2002. Counsel told the court that she had
evidence that this statement was false: Williams had been
arrested on an unrelated charge in January 2003, the month
before the shooting incident, and had tested positive for cocaine
at that time. “I ought to be able to get into that to impeach her
credibility,” she argued. Id. at 208.
Over the government’s objection, the district court
permitted Fonseca’s counsel to pursue this line of questioning,
within limits. The court ruled that the inquiry about whether
Williams was using drugs on the night before the shooting was
directly relevant “to her ability to remember and also [to] her
perception of what was occurring at the time.” Id. at 209. Kee-
Kee’s statement to defense counsel, the court said, was
sufficient to establish a good-faith basis for that inquiry. The
9
court further ruled, however, that any questioning about
Williams’ drug test in January 2003 would require “more of a
predicate.” Id. The court said that if Williams testified (as
counsel expected) not just that “I don’t get high,” but that she
“wasn’t getting high at that time, and . . . wasn’t getting high
anytime around that time,” that would “open the door” to an
inquiry about the test results because it would “go to her
credibility.” Id. at 209-10.
Having obtained this favorable ruling, defense counsel
made an additional request. She advised the court that the police
report of Williams’ January 2003 arrest stated that “a crack pipe
was recovered from her purse.” Id. at 210. The court, however,
deemed that line of questioning inappropriate.
Fonseca’s counsel then resumed the cross-examination,
which proceeded as she anticipated it would at the bench
conference. Williams testified, “I don’t get high.” Id. at 211.
Counsel asked whether Williams meant that she did not smoke
crack on the night of the shooting, or that she never smoked
crack. Williams responded that she had not “gotten high” since
her June 2002 heart attack. Id. at 212. Counsel then asked
whether Williams recalled testing positive for crack cocaine on
January 13, 2003. When Williams said she did not, counsel
requested the court’s permission to use a police report of
Williams’ January 11 arrest to refresh her recollection “about
having an occasion to test” for drugs two days later. Id. at 215.
The court granted permission, again over the government’s
objection. Confronted by the report, which recounted the arrest
but did not mention a drug test, Williams said that she recalled
the day in question but that she “did not test positive for crack
cocaine that day.” Id.
Williams’ response did not end there. Sua sponte, she told
defense counsel that “[y]ou cannot discredit me with that arrest
10
because that was a ‘no paper’ arrest, and I was out the next day
because they found nothing on me.” Id. at 216. This statement
prompted counsel to attempt to cross-examine Williams about
the crack pipe with a leading question: “[Y]ou didn’t have
anything on you this day that you are talking about, this arrest,
correct?” Id. at 216. When the government objected, the court
sustained the objection, stating that the issue was “collateral.”
Id. There was no further discussion at trial or at the bench
regarding the crack pipe. During the defendant’s case, however,
the court admitted into evidence a record of Williams’ January
13, 2003 drug test, and it permitted a Pretrial Services
toxicologist to testify that Williams tested positive for cocaine
on that date.
B
Fonseca insists that the court improperly truncated his
counsel’s cross-examination by barring questions about
Williams’ possession of a crack pipe on January 11, 2003, a
month prior to the events at issue in this case. Fonseca does not
contend that Williams’ possession of the crack pipe was itself
directly relevant to the shooting. Indeed, he states that the “fact
that police officers recovered a crack pipe from Liz’a Williams
on January 11, 2003, would not ordinarily have been relevant at
appellant’s trial.” Appellant’s Br. at 21. Rather, Fonseca argues
that possession of the pipe was made relevant by Williams’
statements on cross-examination that she had not smoked crack
since 2002 and that “they found nothing on me” when she was
arrested in January 2003. Evidence that Williams possessed the
pipe was intended to rebut those statements and thus to
challenge Williams’ credibility. As the district court correctly
observed, however, the question of whether Williams possessed
a crack pipe in January 2003 was a “collateral” matter, 3/1/04
11
Tr. at 216, because that incident did not involve the charges
against Fonseca.3
That evidence concerns a collateral matter does not, of
course, necessarily render it inadmissible. To the contrary, such
evidence is admissible provided that it is “relevant” and not
otherwise prescribed by law or rule. See FED. R. EVID. 402.
Evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence.” FED. R. EVID. 401. And evidence that
would contradict Williams’ trial testimony, even on a collateral
subject, would have such a tendency because it would
undermine her credibility as a witness regarding facts of
consequence. The technique that defense counsel wished to
employ, known as “impeachment by contradiction,” is a well-
recognized tool for exposing a witness’ lack of credibility. See
WEINSTEIN’S FEDERAL EVIDENCE §§ 607.06[1], 608.20[3][a]
(2d ed. 2005) (hereinafter WEINSTEIN’S). And as we have
previously noted, “[p]articularly where a party is seeking to
impeach a witness whose credibility could have an important
influence on the outcome of the trial, the district court should be
cautious in limiting cross-examination.” Harbor Ins. Co. v.
Schnabel Foundation Co., 946 F.2d 930, 935 (D.C. Cir. 1991).
3
See United States v. Mitchell, 49 F.3d 769, 780 (D.C. Cir. 1995)
(stating that the subject of proposed cross-examination of a
government witness -- a challenge to the witness’ direct testimony that
he did not know that a particular airplane shipment contained cocaine
-- “was collateral to the issues at trial” because the defendant “was not
charged with th[at] cocaine shipment”); United States v. Innamorati,
996 F.2d 456, 479 (1st Cir. 1993) (stating that the “proposed
contradiction” of a government witness’ testimony that he did not
possess cocaine on a certain occasion was “collateral to the main
issues in this trial,” because the incident “did not in any way involve
any of the defendants or the charges against them”).
12
Nonetheless, under Federal Rule of Evidence 403, evidence
-- including evidence employed to impeach by contradiction --
“may be excluded if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative
evidence.” FED. R. EVID. 403; cf. FED. R. EVID. 608 advisory
committee’s notes to 2003 amendments (noting that the
amendments “leave[] the admissibility of extrinsic evidence
offered for other grounds of impeachment[,] such as
contradiction, . . . to rules 402 and 403”); WEINSTEIN’S §§
607.06[2], 608.20[3][a]. Rule 403 “call[s] for balancing the
probative value of and need for the evidence against” the
problems identified in the rule. FED. R. EVID. 403 advisory
committee’s notes to 1972 proposed rules; see Abel, 469 U.S. at
54-55; WEINSTEIN’S §§ 607.06[2], 608.20[3][a]. Because
evidence regarding collateral matters is more likely to implicate
those problems, while being of lesser probative value, trial
courts are afforded considerable leeway in deciding whether to
admit such evidence. See United States v. Mitchell, 49 F.3d 769,
780 (D.C. Cir. 1995); United States v. Innamorati, 996 F.2d 456,
479 (1st Cir. 1993); see generally WEINSTEIN’S § 403.06[2].
There is no doubt that Williams was a key witness against
Fonseca. But the district court did not prevent Fonseca’s
counsel from challenging her credibility. As we have recounted
above, the court permitted defense counsel to ask Williams
whether she used drugs shortly before the shooting incident,
based solely on a representation of what “Kee-Kee” had told
counsel. The court then permitted counsel to expand this
inquiry into questions about Williams’ drug use a month earlier,
because Williams “opened the door” with the statement that she
had not used drugs since 2002. Finally, the court permitted
counsel to complete the impeachment by admitting the test
results and toxicologist’s testimony into evidence. See
13
WEINSTEIN’S § 608.20[3][a]; FED. R. EVID. 608 advisory
committee’s notes to 2003 amendments. In short, the district
court provided Fonseca’s counsel ample opportunity to cast
doubt on Williams’ credibility.
This is not to say that a line of cross-examination regarding
Williams’ possession of a crack pipe would not also have been
relevant; it would have been, as it would have further
contradicted her claim not to have used drugs since 2002. But
in this respect it would only have been cumulative, and weakly
so at that. As the court noted, even if Williams had a crack pipe,
“the fact that she had it doesn’t necessarily mean that she was
using it.” 3/1/04 Tr. at 210. Although an inference to that effect
would certainly have been permissible, it was substantially
weaker than the direct evidence that the court permitted Fonseca
to introduce: test results showing cocaine in Williams’ system
in January 2003.4
Fonseca’s appellate counsel protests that cross-examination
regarding the crack pipe was relevant, not merely to contradict
Williams’ statement that she did not use drugs, but also to
contradict her claim that “they found nothing on me” at the time
of the January arrest. Although Fonseca’s trial counsel did not
make this more refined argument at the bench conference
(which took place before Williams made the “they found
nothing on me” remark), perhaps it could have been inferred
from the leading question she attempted to direct at Williams.
In any event, while establishing two contradictions may be more
persuasive than establishing one, when the contradictions relate
4
See Mitchell, 49 F.3d at 779-80 (affirming the district court’s
decision to deny, as cumulative, the use of a witness’ videotaped
statements to impeach his testimony on a collateral matter because the
court had permitted the defendant to use other material to impeach the
witness regarding the same matter).
14
to collateral matters, the second still remains cumulative as to
the fundamental purpose of the exercise: sowing doubt
regarding the general credibility of the witness.
Moreover, completing the impeachment regarding the “they
found nothing on me” statement posed problems of confusion
and delay that were absent from counsel’s successful effort to
contradict Williams’ statement that she had not used drugs at all
since 2002. The latter testimony was unambiguous, and it was
readily, directly, and powerfully contradicted by the drug test
results. The former testimony, by contrast, was ambiguous: in
context, the “nothing” Williams referred to could have been
drugs rather than drug paraphernalia. Moreover, impeachment
would have required more than the police report: the report did
not explain how the officer knew the purse belonged to Williams
(it was found in an apartment in which she and others were
present), nor why he concluded that the pipe deserved the
appellation “crack” (the report did not state that drug residue had
been found). Although appellate counsel suggested that the
police officer who authored the report could have been called to
testify, there was no proffer that he was available or that counsel
knew what he would say. Going down this road, then, would
have led to both delay and a “mini-trial” on a collateral matter,
two of the problems that Rule 403 seeks to avoid. See United
States v. Baylor, 97 F.3d 542, 545 (D.C. Cir. 1996).5
5
The case of United States v. Innamorati, 996 F.2d at 479-80,
presents a fact situation similar to that presented here. In Innamorati,
a cooperating government witness testified that he did not have
cocaine in his possession during an incident in which he was arrested
by local police -- an incident that occurred during the period of his
cooperation with the DEA. The defendants wanted to call the
arresting officers to testify that the witness did in fact possess cocaine
on that occasion. Such testimony would have shown that the witness
continued to use cocaine after he began cooperating with the DEA,
15
In support of his contention that the district court abused its
discretion by disallowing the proffered cross-examination,
Fonseca cites this court’s decision in United States v. Bell, 506
F.2d 207 (D.C. Cir. 1974). In Bell, a defendant charged with
narcotics offenses claimed during cross-examination that he had
never seen narcotics except on television. To contradict that
statement, the district court permitted a police officer to testify
that he had watched the defendant conduct a drug transaction a
few days before his arrest in the case at bar. We affirmed the
defendant’s conviction, holding that the district court had not
abused its discretion by permitting the testimony. See id. at 212-
15.
There is no inconsistency between our ruling in this case
and our ruling in Bell. In the latter, we held that it was
permissible for the district court to admit the requested
impeachment; we did not suggest that it would have been error
for the court to exclude it. Here, too, it would have been
permissible for the district court to allow defense counsel to
impeach the witness regarding the crack pipe. We hold only that
the court did not abuse its discretion by barring the
impeachment. The different outcomes reflect nothing more than
the nature of an “abuse of discretion” standard of review.
Where, as here, two different evidentiary rulings would be
rebutting his testimony to the contrary. It also would have directly
contradicted the witness’ specific assertion that he did not have
cocaine in his possession at the time of the arrest. Nonetheless, the
First Circuit affirmed the trial court’s exclusion of the evidence. As
Judge Boudin explained: “[T]he district court was justified in
preventing a major detour” into the incident because the evidence was
“collateral,” and the witness “admitted on cross-examination that he
had used cocaine long after he began cooperating,” thus rendering the
incident “at best cumulative evidence.” Id.
16
reasonable, the standard leaves the choice to the discretion of the
trial judge.
In sum, we reject Fonseca’s contention that his counsel
“was hamstrung” by limitations on cross-examination that
prevented counsel from “challeng[ing] the honesty and
credibility that Ms. Williams so doggedly asserted.” Appellant’s
Br. at 24. To the contrary, the court permitted counsel to
forcefully challenge Williams’ credibility on cross-examination
and then to introduce extrinsic evidence to complete the
impeachment.6 Because it is reasonable to conclude that the
probative value of the additional cross-examination sought by
the defense was marginal and substantially outweighed by the
factors identified in Rule 403, the district court’s ruling did not
constitute an abuse of discretion.
IV
For the foregoing reasons, we affirm both the district
court’s denial of Fonseca’s Speedy Trial Act motion and its
evidentiary ruling regarding the scope of cross-examination. As
discussed in footnote 1 above, we accept both parties’
suggestion that we remand the record to the district court for the
limited purpose of “determin[ing] whether it would have
imposed a different sentence, materially more favorable to the
defendant, if sentencing had taken place under the post-Booker
sentencing regime.” United States v. Coles, 403 F.3d 764, 765
(D.C. Cir. 2005) (referencing United States v. Booker, 543 U.S.
6
This case is therefore unlike United States v. Whitmore, in which
we reversed a conviction because “the court deprived [the defendant]
of any realistic opportunity to challenge the credibility of the only
witness who testified that [he] committed the firearm offense.” 359
F.3d 609, 612 (D.C. Cir. 2004).
17
220 (2005)); see United States v. Gomez, 431 F.3d 818, 822-23
(D.C. Cir. 2005).
So ordered.