During a methamphetamine conspiracy trial, the Sixth Amendment Right to Confrontation was not violated by the limitation of cross-examination of a cooperating witness, who had not yet "received the benefit of cooperat[ing]," to avoid the danger of creating "a mini-trial on irrelevant collateral matters [that] ... risked confusing the jury," since the defendant had been allowed an “adequate opportunity to impeach” the cooperating witness with probative evidence, in United States v. Baldenegro-Valdez, __ F.3d __ (8th Cir. Jan. 16, 2013) (Nos. 11-3183, 11-3581)
The Federal Evidence Blog highlighted a recent Fifth Circuit Case recently on the issue of limiting the cross-examination of a cooperating witness. The recent post on Limiting Cross-Examination About The Consequences Of The Sentencing Guidelines For A Cooperating Witness identified as one factor in the analysis of the appropriate scope of cross-examination of a witness regarding bias the obligation to consider whether the witness "had not yet been sentenced at the time of his testimony," since the witness would not be recounting a fact, but rather it would involve the witness offering his "own estimate of his sentence under the sentencing guidelines," testimony that could be "speculative and confusing to the jury." United States v. Roussel, _ F.3d _ (5th Cir. Jan. 16, 2013) (No. 11–30908).
Recently, the Eighth Circuit considered a similar issue on the scope of cross-examination of a witness in hopes of disclosing the witness's bias. The circuit outlined factors that played a role in the decision to restrict a defendant's right to cross-examine a prosecution witness. As with the Fifth Circuit in Roussel, the issue involved a careful balance that often seems to devolve into a Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam) analysis of the Confrontation Clause's "guarantee[ of] an opportunity for effective cross-examination, not cross-examination that is in whatever way, and to whatever extent, the defendant might wish." Baldenegro-Valdez, __ F.3d at __.
In the case, defendant Baldenegro-Valdez was arrested after unknowingly participating in a controlled buy conducted with Espana, who was a "suspect in a different methamphetamine conspiracy investigation than the one at issue here [in Baldenegro-Valdez's case]." Espana had started cooperating with the government after he was implicated in another, independent investigation. He agreed as part of his cooperation with the government to conduct the controlled buy that ultimately implicated the defendant, Baldenegro-Valdez. At trial "a primary point of contention ... was the impeachment of Espana. Defendants wished to impeach Espana regarding the facts surrounding his narcotics convictions, ranges of punishment..., other uncharged drug activities, and the fact that Espana had lied to the police before he began cooperating." The trial judge, after considering this proposed scope of examination, limited defendant's cross examination of Espana to "the existence and nature of the convictions, the statutory range of punishment, and the benefit he expected to receive by cooperating and testifying for the government." Baldenegro-Valdez, __ F.3d at __.
In appealing the conviction he received as a result of his trial, the defendant contended that the judge's exclusion of the defendant's proposed cross-examination of the witness at trial was erroneous. The circuit disagreed and affirmed the trial judge, noting that whatever the deficiencies of the cross-examination allowed, the defendant received the type of opportunity that was necessary if one were to impeach a witness. In particular, the circuit looked at the scope of examination the defendant was allowed to exercise. It included questions to the witness:
about the fact of his two convictions; the statutory range of punishments; the minimum and maximum punishment he faced; the fact that he had a plea agreement with the government; the fact that he hoped to receive a lesser sentence by cooperating with the government; and the fact that he could receive a sentence under the statutory minimum if the government filed the requisite motion. Consequently, defendants were able to fully cross-examine Espana on any potential bias or incentive for his testimony.Baldenegro-Valdez, __ F.3d at __. The circuit concluded that with this scope of examination, the defendants had been able to receive the opportunity to "fully cross-examine [cooperating witness] Espana on any potential bias or incentive for his testimony." Baldenegro-Valdez, __ F.3d at __. As a practical matter, the defendants had been "able to elicit for the jury that Espana faced a lengthy sentence (five to forty years) for his role in the conspiracy, and that he was hoping to get a sentence even lower than the five-year minimum by testifying." "Given that the 'touchstone of our inquiry' is whether defendants had an 'adequate opportunity to impeach'” the witness, concluded the circuit, "we find that [the defendant] did have such opportunity" and therefore the circuit could affirm the conviction. (citing United States v. Dale, 614 F.3d 942, 957 (8th Cir.2010)."
The circuit distinguished this from some of the issues that the defendant apparently complained that he was erroneously excluded from pursuing during his cross-examination of the witness. The circuit noted this included issues like "[a]llowing them to cross-examine Espana about the purity of the methamphetamine he was arrested with in the unrelated conspiracy and other similar facts would have created a mini-trial on irrelevant collateral matters and risked confusing the jury." Baldenegro-Valdez, __ F.3d at __ (citing United States v. Street, 548 F.3d 618, 627 (8th Cir. 2008) (Right to Confrontation does not include a right to "inquire further ... the truthfulness of [the witness's] individual past statements" beyond the fact that the witness had been convicted, limiting cross-examination to the witness's prior convictions).
Rejecting a contention by the defendant, who cited United States v. Caldwell, 88 F.3d 522, 525 (8th Cir. 1996), regarding limits on a defendant's cross-examination of a witness, the circuit distinguished the case, noting that a witness's motivation to testify should be considered in assessing the witness's bias or reliability. The circuit explained:
InBaldenegro-Valdez, __ F.3d at __ (emphasis added) (citing United States v. Jasso, No. 12–1158, 2012 WL 6097132, at *2–3 (8th Cir. Dec. 10, 2012) (there was no Sixth Amendment violation for refusing to allow cross-examination for bias regarding the somewhat complicated interplay between the witness's and the defendant's state and federal prosecutions)).
Caldwell we found that the district court abused its discretion by disallowing defense counsel to cross-examine a testifying witness about the ten-year mandatory minimum the witness would have faced had he not cooperated with the government by testifying. We found that such evidence was accurate and relevant rather than collateral, but ultimately concluded that the error was harmless beyond a reasonable doubt. Caldwell is distinguishable [from defendant Baldenegro-Valdez's case] because in it, the witness had already received the benefit of cooperation because the government had dismissed the charge with the mandatory minimum. In this [Baldenegro-Valdez's] case, however, defendants were allowed to cross-examine Espana about whether he pleaded guilty and received a cooperation deal, and about the lower sentence he hoped to receive, including the possibility of a government departure motion. Given the complex nature of the government's charging decisions, plea bargains and the sentencing guidelines, it was not an abuse of the district court's discretion to limit the somewhat technical sentencing and charging arguments counsel sought to make.... We are not persuaded that the jury would have had a “significantly different impression” of Espana's credibility had counsel been able to make the disallowed arguments, in addition to the arguments they were allowed to make. Accordingly, the district court did not abuse its discretion in limiting Espana's cross-examination.
The Eighth Circuit in Baldenegro-Valdez notes a factor often identified in cooperating witness cross-examination cases, particularly recently. The matter came up in United States v. Roussel, _ F.3d _ (5th Cir. Jan. 16, 2013) (No. 11–30908), which was decided the same day as Baldenegro-Valdez. But the same point was made, as the Eighth Circuit pointed out, in a case involving the same type of issue in the previous month. See "Oblique" Relevance Of Stale Prior Convictions Insufficient To Overcome FRE 609(b) Witness Impeachment Limitation, regarding United States v. Jasso, __ F.3d __ (8th Cir. Dec. 10, 2012) (No. 12-1158)
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