Federal Evidence Review

Rejecting defendant's contention that his Sixth Amendment Confrontation Clause rights were violated during his cocaine conspiracy trial; circuit discounts defendant's charge that the trial judge restricted the defendant's cross-examination of a witness regarding the witness's prior smuggling conviction because the defendant failed to show any error in sustaining the government's objections to the defense cross-examination of the witness or to show any other definite limit on defendant's cross-examination of the witness, in United States v. Corrales, 608 F.3d 654 (10th Cir. June 14, 2010) (No. 09-3259)

Often the problem with an evidence appeal is not that the legal theory that is insufficient, it is that a party's was not able to show where the trial record reflects that the alleged error occurred. In a recent case the Tenth Circuit extensively explored the gap between a defendant's contentions that his right to cross-examine a cooperating accomplice had been restricted in a significant manner, violating his Sixth Amendment right to confrontation. Absent an ability to show this in the record, the defendant's appeal of his conviction on cocaine conspiracy charges was unavailing.

In the case, defendant Corrales was convicted of possession of cocaine with intent to distribute and conspiracy to possess cocaine with intent to distribute. As part of his appeal the defendant raised an evidentiary ground of error, alleging that the trial court improperly restricted his cross-examination of his accomplice (Padilla) who was now cooperating and testifying for the government. At trial, Padilla testified that he had been asked by a relative to smuggle drugs from Mexico to North Carolina. After crossing the border with the drugs Padilla panicked and was given directions for leaving the car in which the drugs were hidden at the defendant's house and that the defendant drove the witness home. Corrales, 608 F.3d at 656. The circuit's careful review of the trial record failed to show a basis for the contention that the trial court significantly restricted the defendant's cross-examination of the witness and so the defendant's conviction was readily affirmed.

As noted by the circuit, the defendant argued "that the district court violated his constitutional right to confront the witnesses against him by restricting the cross-examination of his coconspirator Padilla. He complains that he was not able to question Padilla fully about Padilla's smuggling offense in 2007, two years after Mr. Corrales's offense. We reject the complaint because Mr. Corrales has not shown that the district court restricted the cross-examination of Padilla on that subject." Corrales, 608 F.3d at 658 (citation omitted).

The record revealed that "the district-court ruling cited by Mr. Corrales as limiting his cross-examination of Padilla was far from a definitive ban. First, the court said that it intended to permit cross-examination of Padilla regarding the 2007 offense and the underlying events. Second, to the extent that the court commented on Rule 404(b) ... it said that it would consider further briefing on the matter." Corrales, 608 F.3d at 659. However, the defendant did not subsequently "request a ruling on any evidentiary issue, such as the extent to which he could cross-examine Padilla." The circuit examined an extensive exchange in the trial transcript between the court and counsel regarding the witness's 2007 conviction and concluded that it could "discern no limitations on the cross-examination of Padilla regarding his 2007 offense. Only two government objections [to defense questions to the witness about the 2007 conviction] were sustained; and Mr. Corrales does not (and could not) argue that these two rulings impaired his cross-examination." Corrales, 608 F.3d at 662.

The circuit also explored whether the defendant's contention was that "he refrained from asking certain questions because of his understanding of the district court's earlier comments [which he interpreted to preclude examination on the 2007 conviction]. But his brief on appeal does not tell us what additional questions he would have asked, much less what Padilla would have answered. We can hardly determine whether Mr. Corrales was prejudiced without knowing what evidence would have been elicited. Rather than pointing to excluded evidence, he essentially argues that Padilla's 2007 offense implies Mr. Corrales's own innocence, an argument that could have been (and largely was) made to the jury in closing argument." Corrales, 608 F.3d at 662 (citing United States v. Adams, 271 F.3d 1236, 1241 (10th Cir. 2001) (proffer of evidence is required to preserve claim that trial court improperly excluded testimony)). Even when the defendant was asked during oral argument by the circuit what evidence the trial court excluded in its rulings on cross-examination, the defendant was unable to cite anything that had not been covered by the defendant's cross-examination of the witness at trial.

In Corrales, the defendant concluded that the defendant was not deprived of his constitutional right to cross-examine cooperating witness Padilla. Nor was the defendant able to show from the trial record any substantial limitation or that any prejudice had arisen from any restriction imposed by the trial judge. While the evidentiary basis for Corrales may be weak, the case is clear example of the need to focus on the trial record to show both an error and that the error was prejudicial.