Thursday, August 2, 2007
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Limits on Cross-Examination Violated Confrontation Clause—Court
Panel Says Jury Should Have Been Told Witness Was Subject to Life Term if He Did Not Cooperate
By KENNETH OFGANG, Staff Writer
A federal judge violated two defendants’ Confrontation Clause rights by not allowing their lawyers to question a co-conspirator about the potential life sentence he was facing in the event he did not cooperate with the government, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
In a sharply divided decision, an 8-7 majority of an en banc panel held that the governmental interest in having jurors render a verdict without regard to the potential consequences for the defendant was outweighed by the defendants’ right to show the extent of the witness’ bias.
But the court voted 11-4 to affirm the drug convictions of Patricia Ann Larson and Leon Laverdure of Great Falls, Mont., as four of the eight judges who said their rights were violated also concluded that the violation was harmless beyond a reasonable doubt.
Larson, Laverdure, Rick Lamere, and Joy Lynn Poitra were indicted for conspiracy in 2004, following a police investigation into methamphetamine sales in Great Falls. The prosecution notified Lamere that if convicted, he was subject to a mandatory sentence of life imprisonment, with no possibility of release, because he had distributed at least five kilograms of a substance containing methamphetamine and had at least two prior drug convictions.
Plea Agreement
Poitra and Lamere later agreed to plead guilty and testify against Laverdure and Larson. As part of the agreement, the government held open the possibility of “substantial assistance” departures from what would otherwise be mandatory minimum sentences of life imprisonment for Lamere and five years in prison for Poitra, who faced a 40-year maximum.
At trial, prosecutors presented evidence of six separate controlled buys in which the defendants sold between one gram and 21 grams of methamphetamine at a time to police informants. Poitra and Lamere testified that they had been involved in several drug deals with the defendants, and acknowledged that they were testifying under plea agreements and hoped to reduce their potential sentences.
Defense lawyers’ attempts to cross-examine Poitra and Lamere about the length of the mandatory sentences they were trying to avoid were stymied by U.S. District Judge Sam Haddon, who explained to counsel:
“You know that the sentencing of defendants in this court is the responsibility of the court. And I will make the decision about the appropriate sentence at the appropriate time. That’s not a proper subject of cross-examination.”
Jurors found the defendants guilty. Haddon sentenced Larson to more than eight years in prison and Laverdure to more than 15 years.
Paez Opinion
Judge Richard A. Paez, writing for the Ninth Circuit, said the district judge acted within his discretion in limiting the cross-examination of Poitra, but should have allowed jurors to learn of the severe sentence that Lemare was facing.
“We conclude that while the district court restricted defense counsel’s cross-examination of Poitra, defense counsel was able to adequately explore Poitra’s motivation to lie such that the court’s restriction was not an abuse of discretion and did not violate Defendants’ Confrontation Clause rights,” Paez wrote.
“Poitra testified that she had pleaded guilty and agreed to cooperate with the Government in exchange for a motion to reduce her sentence,” the judge continued. “She acknowledged that only the Government had the authority to make such a motion, and that she had a young child and did not want to go to prison.”
In Lamere’s case, however, the disclosure of his status as a cooperating witness who was heavily involved in the drug conspiracy; had a past record of drug convictions, including one for which he served 30 months in prison; and was trying to cut his sentence “did not reveal the magnitude of his incentive to the Government’s satisfaction” and “was therefore insufficient to allow the jury to assess Lamere’s credibility.”
The error was harmless, however, because there was substantial cross-examination of the witnesses, as well as strong independent evidence, and that jury was instructed to be cautious about co-conspirator testimony, Paez said. Chief Judge Mary M. Schroeder, Judge Raymond C. Fisher, and Judge Ronald M. Gould joined Paez’s opinion.
Judge Susan P. Graber, joined by Judges Pamela Ann Rymer, Richard Tallman, Richard Clifton, Carlos Bea, Milan Smith Jr., and Sandra Ikuta, concurred in the result, arguing in a separate opinion that no error occurred.
Graber noted that Lamere was ultimately sentenced to 38 years in prison, and said the disclosure of the potential life sentence would have told jurors little that they did not already know in terms of Lamere’s credibility.
The jury, she elaborated, was told that Lamere was the father of five; that he was a drug addict and dealer; that he had been to prison and was headed there again as a result of his role in the drug conspiracy; and that he was trying to reduce his sentence, but could only do so with the approval of the prosecutor.
Knowing the additional fact that he would have gotten a life sentence without that cooperation would have made little difference in assessing his motivation, Graber wrote, because “given his age, a 38-year prison term was nearly a life sentence anyhow.”
Judge Michael Daly Hawkins, joined by Judges Harry Pregerson, Stephen Reinhardt, and Kim Wardlaw, dissented.
Hawkins argued that the defense should have been allowed to question both co-conspirators about the potential mandatory sentences, and that excluding it from doing so was prejudicial error in “the context of the trial as a whole.”
Poitra and Lamere’s testimony, he argued, turned “[a] conceded street user of drugs” into a distributor facing a lengthy prison term. The independent evidence cited by Paez, he said, was insufficient to link the defendants to a conspiracy beyond the small sales in which the informants participated.
The case is United States v. Larson, 05-30076.
Copyright 2007, Metropolitan News Company