In fraud prosecution, limitation on cross-examination of a cooperating witness concerning his “actual exposure under the” Sentencing Guidelines “or further benefits” he might receive for cooperating did not violate the Confrontation Clause based on other information about his potential bias and the need to avoid “speculative and confusing” information for the jury, in United States v. Roussel, _ F.3d _ (5th Cir. Jan. 16, 2013) (No. 11–30908)
Cooperating witnesses are often subject to the most vigorous and intense cross-examination as defense counsel tries to expose witness bias based on the terms of a plea agreement, immunity or other benefit conferred by the government. The limits of cross-examination are normally established by either the Confrontation Clause or FRE 403. The Fifth Circuit recently considered the limits of cross-examination of a cooperating witness concerning the Sentencing Guidelines and other benefits.
The case involved a scheme to defraud a utilities provider based on a bribery plan. Defendant Roussel, a New Orleans Police Department Captain and Traffic Division commander, was indicted along with businessman Branch. Branch pled guilty, cooperated and testified at trial. During trial, defense counsel cross-examined Branch concerning the terms of his plea agreement and attempting to suggest he was biased based on his cooperation and hope to receive a reduced sentence. The trial court ultimately barred further cross-examination of Branch about the terms of his “plea agreement” concerning his “actual exposure under the” sentencing guidelines “or further benefits” he might receive. Defense counsel “repeatedly questioned Branch about the sentencing guidelines’ effect on the magnitude of his benefit.” The trial court then stated, “[w]e’ve beat this horse to death, Mr. Reed. We really have. We’re not going into sentencing guidelines.” Roussel, _ F.3d at _. After his conviction, he argued that the limitation on cross-examination violated his Confrontation Clause rights.
The Fifth Circuit affirmed, concluding the limitation did not violate the Confrontation Clause. The central question was whether “the defendant [can] show that a reasonable jury might have had a significantly different impression of the witness’s credibility if defense counsel had been allowed to pursue the questioning.” [United States v.] Davis, 393 F.3d [540,] 548 [(5th Cir. 2004)]. The circuit concluded that the jury “had more than enough information to infer [his] potential bias in testifying.” As the circuit explained, the information included:
Branch’s maximum statutory penalty on the initial charges (30 years), the government’s agreement to prosecute Branch on only one of the six charges and Branch’s agreement to plead guilty on that charge, and the resulting statutory cap on Branch’s sentence (five years). Additionally, the jury had a copy of Branch’s full plea agreement. Beyond that, the jury knew that the government could ask for an even lesser sentence depending on the value of Branch’s cooperation.
This was more than sufficient to satisfy the Confrontation Clause, and does not indicate that the district court abused its discretion by limiting questioning into Branch’s possible exposure under the sentencing guidelines. Given that he had not yet been sentenced at the time of his testimony, Branch’s own estimate of his sentence under the sentencing guidelines would have been speculative and confusing to the jury.
That the jury knew about a possible 25-year sentencing reduction and Branch’s plea to only one of six counts in exchange for his cooperation was more than enough information to infer Branch’s bias as a witness, and, therefore, there was no Confrontation Clause violation nor abuse of discretion in limiting Roussel’s counsel’s cross-examination.
Roussel, _ F.3d at _.
For another case noting the potential confusion in using the Sentencing Guideline Tables during cross-examination under FRE 403, see United States v. Keck, 643 F.3d 789 (10th Cir. 2011); see also Sentencing Guideline Materials Not Needed For Cross-Examining Cooperator (discussing Keck case).
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