Tenth Circuit agrees that the Sentencing Guideline Tables were properly excluded for use as a defense exhibit under FRE 403 during the cross-examination of the defendant’s daughter, who was a cooperating witness; the exclusion of the tables was justified because of the likely waste of time and jury confusion their use could cause and because the court provided an opportunity for the defendant to cross-examine the cooperating witness about her plea agreement, her understanding of her likely sentence and the possibility of bias because of this, in United States v. Keck, _ F.3d _ (10th Cir. July 1, 2011) (No. 10-8008)
Cross-examination of a cooperating witness can be important way to expose any likely bias as well as the effect terms of the witness' plea agreement has had on the witness's cooperation at trial. A recent Tenth Circuit case highlights some limits.In the case, defendant Keck was prosecuted on drug and money-laundering conspiracy charges. During the investigation, agents recorded drug transactions involving the defendant including calls in which he involved “his 17-year-old daughter in drug sales.” At trial, she testified as a cooperating witness for the government. The defense sought to show that the daughter’s testimony was influenced by “her cooperation with the government,” which “would reduce her sentence under the Guidelines from 151 months’ imprisonment to 37 months’ imprisonment.”
The defendant specifically sought to cross-examine the defendant's daugher using a “drug quantity table under USSG § 2D1.1, to show how drug quantities correlate to offense levels, and the sentencing guideline table, to show the prison time she faced.” The trial court excluded the exhibits as irrelevant, a waste of time, and confusing to the jury.
However, the trial judge did not leave the defendant without alternatives to probe this issue of bias. The trial court added that the defense could “cross examine [Keck’s daughter] to your heart’s content” about her knowledge of the plea agreement, its likely impact on her sentence, and any resulting bias,” along with technical sentencing matters if the witness was familiar with them such as “safety valve.” Keck, __ F.3d at __. The defendant elected not to pursue any cross-examination. The jury convicted the defendant. On appeal he challenged the exclusion of the Sentencing Guideline exhibits.
The Tenth Circuit found no error, particularly since the trial court had offered a “broad opportunity to cross examine the witness.” The circuit agreed with the trial court that the exhibits were “potentially confusing and time-wasting exhibits.” Finally, no prejudice could be shown since ultimately the defense decided against any cross-examination. Keck, __ F.3d at __.
While cross-examining a cooperating witness about their understanding of the terms of the plea agreement, matters outside their understanding concerning the intricacies can be time consuming and confusing to the jury. The Keck opinion shows how the balance can be struck to permit effective cross-examination on bias and related issues.
