Opposition Brief — Alston Campbell, Jr., Petitioner v. United States

No. 20-1790

In the Supreme Court of the United States

ALSTON CAMPBELL, JR., PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

BRIAN H. FLETCHER

Acting Solicitor General

Counsel of Record

KENNETH A. POLITE, JR.

Assistant Attorney General

JOEL S. JOHNSON

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTIONS PRESENTED

1. Whether the district court violated the Confrontation Clause of the Sixth Amendment by limiting petitioner’s ability to cross-examine the cooperating witnesses who testified against him about the precise sentences the witnesses faced.

2. Whether the court of appeals applied the correct

standard of review in considering petitioner’s claim that

the district court’s limitation on his cross-examination

of cooperating government witnesses violated the Confrontation Clause.

(I)

ADDITIONAL RELATED PROCEEDING

United States Supreme Court:

William Marcellus Campbell v. United States, No.

21-5666 (petition for writ of certiorari filed Sept.

13, 2021)

(II)

TABLE OF CONTENTS

Page

Opinion below ................................................................................ 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument....................................................................................... 6

Conclusion ................................................................................... 22

TABLE OF AUTHORITIES

Cases:

Alford v. United States, 282 U.S. 687 (1931) ...................... 15

Commonwealth v. Sacket, 39 Mass. 394 (1839) .................. 11

Cuevas Cabrera v. United States, 137 S. Ct. 2240

(2017) ...................................................................................... 6

Davis v. Alaska, 415 U.S. 380 (1974) ......................... 7, 10, 16

Delaware v. Van Arsdall, 475 U.S. 673 (1986) .......... passim

District of Columbia v. Clawans, 300 U.S. 617 (1937)....... 15

Gall v. United States, 552 U.S. 38 (2007) ............................ 15

Glasser v. United States, 315 U.S. 60 (1942) ...................... 15

Heinrich v. United States, 564 U.S. 1040 (2011) .................. 6

Hunter v. United States, 140 S. Ct. 2522 (2020) ................... 6

Jarrett v. State, 498 N.E.2d 967 (Ind. 1986) ....................... 14

Larson v. United States, 552 U.S. 1260 (2008) ..................... 6

Lipscombe v. United States, 574 U.S. 1081 (2015) ............... 6

Manley v. State, 698 S.E.2d 301 (Ga. 2010) .................. 14, 15

Olden v. Kentucky, 488 U.S. 227 (1988) ................................ 7

People v. Bonilla, 160 P.3d 84 (Cal. 2007),

cert. denied, 552 U.S. 1117 (2008) ..................................... 14

Perez-Amaya v. United States, 132 S. Ct. 2378 (2012) ........ 6

Reid v. United States, 556 U.S. 1235 (2009) ......................... 6

Shannon v. United States, 512 U.S. 573 (1994) .............. 8, 11

Smith v. United States, 562 U.S. 1061 (2010) ....................... 6

(III)

IV

Cases—Continued:

Page

Snyder v. Louisiana, 552 U.S. 472 (2008)........................... 16

State v. Brown, 399 S.E.2d 593 (S.C. 1991)......................... 14

State v. Davis, 1 A.3d 76 (Conn. 2010) ........................... 19, 20

State v. Donelson, 302 N.W.2d 125 (Iowa 1981) ................. 15

State v. Gracely, 731 S.E.2d 880 (S.C. 2012) ....................... 14

State v. Jackson, 233 A.3d 440 (N.J. 2000).......................... 14

State v. Mizzell, 563 S.E.2d 315 (S.C. 2002) ....................... 14

State v. Orn, 482 P.3d 913 (Wash. 2021) .............................. 19

State v. Rainsong, 807 N.W.2d 283 (Iowa 2011) ................ 19

State v. Vogleson, 571 S.E.2d 752 (Ga. 2002) ...................... 14

Trent v. United States, 138 S. Ct. 2025 (2018) ...................... 6

United States v. Bentley, 561 F.3d 803 (8th Cir.),

cert. denied, 558 U.S. 865 (2009) ....................................... 17

United States v. Cooks, 52 F.3d 101 (5th Cir. 1995) ........... 12

United States v. Cropp, 127 F.3d 354 (4th Cir. 1997),

cert. denied, 522 U.S. 1098 (1998) ............................... 11, 12

United States v. Davis, 393 F.3d 540 (5th Cir. 2004) ......... 18

United States v. Dunn, 723 F.3d 919 (8th Cir. 2013),

cert. denied, 571 U.S. 1145 (2014) ................................. 5, 18

United States v. Ford, 761 F.3d 641 (6th Cir.),

cert. denied, 574 U.S. 1054 (2014) ..................................... 17

United States v. Garcia, 13 F.3d 1464 (11th Cir.),

cert. denied, 512 U.S. 1226 (1994) ..................................... 18

United States v. Jiménez-Bencevi,

788 F.3d 7 (1st Cir. 2015) ................................................... 18

United States v. John, 849 F.3d 912 (10th Cir.),

cert. denied, 138 S. Ct. 123 (2017) ..................................... 19

United States v. Kenyon, 481 F.3d 1054 (8th Cir.

2007), cert. denied, 558 U.S. 865 (2009) ............................ 17

United States v. Kiza, 855 F.3d 596 (4th Cir. 2017) ........... 17

V

Cases—Continued:

Page

United States v. Larson, 495 F.3d 1094

(9th Cir. 2007), cert. denied, 552 U.S. 1260

(2008) ........................................................................ 13, 18, 21

United States v. Luciano-Mosquera,

63 F.3d 1142 (1st Cir. 1995), cert. denied,

517 U.S. 1234 (1996)............................................................ 12

United States v. Mullins, 613 F.3d 1273 (10th Cir.),

cert. denied, 562 U.S. 1035 (2010) ............................... 18, 19

United States v. Mussare, 405 F.3d 161

(3d Cir. 2005), cert. denied, 546 U.S. 1225 (2006) ............ 17

United States v. Rushin, 844 F.3d 933

(11th Cir. 2016) .............................................................. 11, 12

United States v. Tones, 759 Fed. Appx. 579

(9th Cir. 2018), cert. denied, 140 S. Ct. 67 (2019) ............ 13

United States v. Trent, 863 F.3d 699 (7th Cir. 2017),

cert. denied, 138 S. Ct. 2025 (2018) ....................... 11, 12, 18

United States v. Ulbricht, 858 F.3d 71 (2d Cir. 2017),

cert. denied, 138 S. Ct. 2708 (2018) ................................... 17

United States v. Vega, 826 F.3d 514 (D.C. Cir. 2016),

cert. denied, 137 S. Ct. 1238, and 137 S. Ct. 2240

(2017) .................................................................................... 17

United States v. Wright, 866 F.3d 899 (8th Cir. 2017),

cert. denied, 138 S. Ct. 2026 (2018) ............................. 11, 12

Wilson v. United States, 564 U.S. 1040 (2011) ..................... 6

Wisniewski v. United States, 353 U.S. 901 (1957) ....... 17, 19

Wright v. United States, 138 S. Ct. 2026 (2018) ................... 6

Constitution, statutes, and rule:

U.S. Const.:

Amend VI ......................................................................... 18

Confrontation Clause ............................................. passim

21 U.S.C. 841(a)(1) ............................................................... 1, 3

VI

Statutes and rule—Continued:

Page

21 U.S.C. 841(b)(1)(A) ......................................................... 1, 3

21 U.S.C. 841(b)(1)(C) ......................................................... 1, 3

21 U.S.C. 846 ........................................................................ 1, 3

Fed. R. Evid. 403 ..................................................................... 7

In the Supreme Court of the United States

No. 20-1790

ALSTON CAMPBELL, JR., PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-44)

is reported at 986 F.3d 782.

JURISDICTION

The judgment of the court of appeals was entered on

January 21, 2021. The petition for a writ of certiorari

was filed on June 21, 2021. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a jury trial in the United States District

Court for the Northern District of Iowa, petitioner was

convicted of conspiring to distribute cocaine and cocaine

base, in violation of 21 U.S.C. 841(a)(1), (b)(1)(A) and

846; and possessing cocaine with intent to distribute it,

in violation of 21 U.S.C. 841(a)(1) and (b)(1)(C). Judgment 1. The district court sentenced petitioner to 262

months of imprisonment, to be followed by five years of

(1)

2

supervised release. Judgment 2-3. The court of appeals

affirmed. Pet. App. 1-44.

1. In 2016, a task force began investigating drug

trafficking by petitioner and his family in eastern Iowa.

Pet. App. 2. The multiyear investigation employed confidential informants, controlled buys and payoffs, wiretaps, and surveillance. Ibid. Officers observed petitioner’s participation in payoffs and transactions suspected to be drug purchases, and they recorded and

took photographs of him during certain transactions.

See, e.g., Trial Tr. 118-122, 139-142, 341, 350-358, 473476, 493-495, 525-528; see also Gov’t C.A. Br. 21-22, 28.

Wiretap evidence revealed that petitioner, using multiple cell phones, regularly discussed large sums of

money, used coded language, and received orders for

cocaine and cocaine base. See, e.g., Trial Tr. 153, 157,

343, 590-600, 609-619, 625-627, 749-756; see also Gov’t

C.A. Br. 24-28. And during a search of petitioner’s residence, officers found several firearms, ammunition,

three bags of caffeine and lidocaine (commonly used as

cutting agents for cocaine), bowls and a spoon with cocaine residue, plastic baggies, empty duffle bags, a bag

sealer, and a receipt for a storage garage. Trial Tr. 158159, 162-176; see Gov’t C.A. Br. 28-29. At the storage

garage, officers recovered mail addressed to petitioner

and a coffee can with a false bottom containing cocaine,

cocaine base, and cutting agents. Trial Tr. 176-183; see

Gov’t C.A. Br. 29.

Following the investigation, a federal grand jury in

the Northern District of Iowa charged petitioner and

several other defendants with various drug-trafficking

offenses. Pet. App. 5-6. The grand jury charged petitioner with conspiring to distribute five kilograms or

3

more of a mixture containing a detectable amount of cocaine and 280 grams or more of a mixture containing a

detectable amount of cocaine base, in violation of 21

U.S.C. 841(a)(1), (b)(1)(A) and 846; and possessing cocaine with intent to distribute it, in violation of 21 U.S.C.

841(a)(1) and (b)(1)(C). Superseding Indictment 2, 7.

After several defendants pleaded guilty, petitioner and

the remaining defendants proceeded to trial. Pet. App.

2, 6.

At trial, the government presented testimony from,

inter alia, four cooperating witnesses who had entered

plea agreements but had not yet been sentenced. Pet.

App. 12, 88. In their plea agreements, the cooperating

witnesses acknowledged that they faced statutory minimum sentences of either ten or 20 years (depending on

the witness). The plea agreements further specified

that the witnesses could avoid those minimum sentences if the government, in its “sole discretion,” filed a

motion for departure based on the defendant’s “substantial assistance” to the prosecution. Id. at 132, 147;

id. at 161, 176-177; id. at 191, 197-198; id. at 208, 225.

The government objected to defense counsel’s planned

introduction of the plea agreements on cross-examination

of the cooperating witnesses. Id. at 48. The district

court sustained that objection on the grounds of relevance and juror confusion, but noted that defense counsel could still ask the cooperating witnesses about the

substance of their plea agreements. Id. at 52.

The government also requested that defense counsel

not be allowed to ask the cooperating witnesses about

the precise penalties they were facing. Pet. App. 53-54.

The government observed that because the witnesses

and petitioner faced similar charges, the witnesses’ sentencing exposure could “be extrapolated by the jury” to

4

determine the penalty that would apply to petitioner,

thereby inviting jury nullification. Id. at 54; see id. at

48, 53-54. The district court granted the government’s

request, instructing that defense counsel could question

the cooperating witnesses “as to whether they’re facing

a substantial amount of time”—including that they were

“facing a mandatory minimum” or “an increased

amount of time in prison because of their prior criminal

history”—but not as to the precise term of imprisonment they were facing. Id. at 54-56; see id. at 62. The

court further permitted defense counsel to question the

witnesses about a sentencing court’s inability to depart

downward from the applicable statutory minimum

“without a government motion.” Id. at 94. The court

explained that the judge, not the jury, determines punishment, and that the limitation on cross-examination

was necessary to prevent the jury from inferring the

specific sentence that petitioner himself might face if

convicted of the crimes with which he was charged. See

id. at 54, 84.

A jury found petitioner guilty of both charged offenses. Judgment 1. The district court sentenced him

to 262 months of imprisonment, to be followed by five

years of supervised release. Judgment 2-3.

2. The court of appeals affirmed. Pet. App. 1-44.

As relevant here, petitioner contended that the district

court’s limitation on cross-examination of the cooperating witnesses violated his Confrontation Clause rights.

Id. at 35. The court of appeals reviewed that claim for

abuse of discretion, quoting this Court’s observation in

Delaware v. Van Arsdall, 475 U.S. 673 (1986), that trial

courts “retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on

such cross-examination based on concerns about, among

5

other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.” Pet. App. 10 (quoting

Van Arsdall, 475 U.S. at 679). At the same time, the

court recognized “the sanctity of a defendant’s ability to

expose witness bias,” observing that a limitation on

cross-examination may violate the Confrontation

Clause when the defendant “shows that a reasonable

jury might have received a significantly different impression of the witness’s credibility had defense counsel

been permitted to pursue his proposed line of crossexamination.” Ibid. (quoting United States v. Dunn,

723 F.3d 919, 934 (8th Cir. 2013), cert. denied, 571 U.S.

1145 (2015)).

The court of appeals found that the district court did

not abuse its discretion when it “allowed defense counsel to cross-examine the government’s cooperating witnesses about looming mandatory minimum or ‘substantial’ sentences they faced, the possibility of receiving an

increased sentence based on prior criminal history, and

their hopes of earning a reduced sentence through their

cooperation,” but precluded “cross-examination that

would reveal the precise amount of incarceration, in

years, that any witness was facing.” Pet. App. 10; see

id. at 35. The court of appeals noted that the “degree of

leniency” each witness would receive “in exchange for

his cooperation” was “unascertainable at the time of

cross-examination,” because the record showed only

that the witnesses “ ‘hoped through [their] assistance to

reduce by an undefined degree the sentence that [they]

otherwise faced.’ ” Id. at 11-12 (citation omitted; brackets in original). And finding no error, the court declined

to decide whether the limitation prejudiced petitioner.

Id. at 12.

6

ARGUMENT

Petitioner contends (Pet. 21-35) that the district

court violated the Confrontation Clause by not allowing

him to elicit testimony about the precise sentences that

the cooperating witnesses faced, and that the court of

appeals erred in reviewing that claim for abuse of discretion. Further review is unwarranted. The court of

appeals’ decision was correct, and no conflict in the circuits or state courts of last resort warrants further review in this case. Indeed, this case would be a poor vehicle for considering petitioner’s arguments because he

would not be entitled to relief even if this Court agreed

with them.

This Court has repeatedly denied review on the Confrontation Clause question, see, e.g., Hunter v. United

States, 140 S. Ct. 2522 (2020) (No. 19-7021); Wright v.

United States, 138 S. Ct. 2026 (2018) (No. 17-1059);

Trent v. United States, 138 S. Ct. 2025 (2018) (No. 17830); Lipscombe v. United States, 574 U.S. 1081 (2015)

(No. 14-6204); Heinrich v. United States, 564 U.S. 1040

(2011) (No. 10-9194); Wilson v. United States, 564 U.S.

1040 (2011) (No. 10-8969); Reid v. United States, 556

U.S. 1235 (2009) (No. 08-1011), as well as the standardof-review question, see, e.g., Cuevas Cabrera v. United

States, 137 S. Ct. 2240 (2017) (No. 16-7775); PerezAmaya v. United States, 132 S. Ct. 2378 (2012) (No. 118631); Smith v. United States, 562 U.S. 1061 (2010) (No.

10-18); Larson v. United States, 552 U.S. 1260 (2008)

(No. 07-7481). The same result is warranted here. *

One of petitioner’s co-defendants has also filed a petition for a

writ of certiorari raising the same two questions presented. See

William Marcellus Campbell v. United States, No. 21-5666 (Sept.

13, 2021).

*

7

1. The court of appeals correctly rejected petitioner’s Confrontation Clause claim. Petitioner’s renewal of that claim does not warrant this Court’s review.

a. This Court has recognized that “exposure of a witness’ motivation in testifying is a proper and important

function of the constitutionally protected right of crossexamination.” Delaware v. Van Arsdall, 475 U.S. 673,

678-679 (1986) (quoting Davis v. Alaska, 415 U.S. 308,

316-317 (1974)). The Court has thus cautioned that a

trial court may violate the Confrontation Clause if it

“prohibit[s] all inquiry” into a potential basis for a witness’s bias or prejudice. Id. at 679; see Olden v. Kentucky, 488 U.S. 227, 231-232 (1988) (per curiam); Davis,

415 U.S. at 316-318.

This Court has simultaneously recognized, however,

that “trial judges retain wide latitude insofar as the

Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns

about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation

that is repetitive or only marginally relevant.” Van

Arsdall, 475 U.S. at 679; cf. Fed. R. Evid. 403 (“The

court may exclude relevant evidence if its probative

value is substantially outweighed by a danger of,” inter

alia, “unfair prejudice” or “confusing the issues”). The

Court has thus emphasized that “the Confrontation

Clause guarantees an opportunity for effective crossexamination, not cross-examination that is effective in

whatever way, and to whatever extent, the defense

might wish.” Van Arsdall, 475 U.S. at 679 (citation

omitted). Accordingly, to establish that a limitation on

cross-examination violated the Confrontation Clause, a

defendant must demonstrate that “[a] reasonable jury

8

might have received a significantly different impression

of [the witness’s] credibility had [defense] counsel been

permitted to pursue his proposed line of crossexamination.” Id. at 680.

Here, the district court’s limitation on crossexamination fell within its “wide latitude * * * to impose reasonable limits on such cross-examination.” Van

Arsdall, 475 U.S. at 679. The information that petitioner sought to elicit was highly prejudicial to the

proper conduct of the trial because petitioner was

charged with the same or similar offenses as the cooperating witnesses. Compare Superseding Indictment 2,

7, with Pet. App. 132, 161, 191, 208. Thus, as the district

court recognized, if the jury had been informed of the

precise statutory minimums for the witnesses’ offenses,

it likely would have inferred that petitioner himself

faced a similar minimum sentence. See Pet. App. 53-55,

84. That inference would have created a significant risk

of prejudice to the jury’s unbiased evaluation of the evidence. As this Court has noted, “providing jurors sentencing information invites them to ponder matters that

are not within their province, distracts them from their

factfinding responsibilities, and creates a strong possibility of confusion.” Shannon v. United States, 512 U.S.

573, 579 (1994).

At the same time, although the district court declined to allow disclosure of the precise sentences that

the cooperating witnesses faced, it allowed petitioner’s

counsel to elicit enough information for the jury to

infer that the witnesses potentially had a significant,

sentencing-related incentive to cooperate with the government. Defense counsel was permitted to crossexamine the cooperating witnesses about their “looming

mandatory minimum[s]” and “ ‘substantial’ ” sentences

9

in light of their criminal history, and “their hopes of

earning a reduced sentence through their cooperation.”

Pet. App. 10; see id. at 54-56. For example, defense

counsel asked one cooperating witness whether he was

“facing an enhanced number of years because of [his]

extensive criminal record”; whether he had “a possibility of * * * getting a reduction in the number of years

[he was] facing if a motion [was] made by the government on [his] behalf ”; and whether he would “like that

to happen.” Id. at 64. The witness responded in the

affirmative to each question. Ibid.

Under those circumstances, the district court’s narrow restriction on inquiry into the precise sentences the

cooperating witnesses faced reasonably balanced the

limited incremental probative value of such information

against the substantial risk of prejudice to the jury’s impartial evaluation of the evidence without regard to petitioner’s own sentencing exposure. The court of appeals correctly found that the precise minimum sentences would not have given the jury “a significantly different impression of the witnesses’ credibility,” Pet.

App. 10 (citation omitted); see Van Arsdall, 475 U.S. at

680, and that no Confrontation Clause violation occurred. And petitioner’s narrow, circuit-specific disagreement (Pet. 21-22) with the court’s distinction of this

case, where the witnesses had not yet been granted any

leniency, from circuit precedent that had allowed questions about cooperating witnesses’ precise sentencing

exposure where “the government had already extended

leniency to the cooperating witnesses,” Pet. App. 11,

does not warrant this Court’s review.

b. Petitioner asserts that the “original meaning” of

the Confrontation Clause permits “almost unfettered

10

cross-examination,” suggesting that it categorically entitles a defendant to elicit the precise sentence that a

cooperating witness faces absent cooperation. Pet. 23.

That rigid rule, however, is inconsistent with this

Court’s admonition that the Confrontation Clause

leaves trial judges with “wide latitude,” Van Arsdall,

475 U.S. at 679, and “broad discretion,” Davis, 415 U.S.

at 316, to impose reasonable limits on cross-examination

based on the circumstances of a particular case. In arguing that such a categorical rule is required here, petitioner greatly overstates the probative value of the

precise sentences faced by cooperating witnesses and

altogether disregards the prejudicial effect of revealing

sentencing information to the jury.

First, petitioner errs in suggesting that, as a categorical matter, only the precise sentence that a cooperating witness faces can adequately convey the witness’s

potential bias. See, e.g., Pet. 28. As this case well illustrates, that information is not necessary for defense

counsel thoroughly to cross-examine the witness as to

potential bias. Under questioning from defense counsel, for example, one cooperating witness acknowledged

that he faced an “enhanced” sentence because of his

“extensive criminal record,” and that a government motion could lead to “a reduction in the number of years”

he was facing, with an ultimate result “below a mandatory minimum.” Pet. App. 64. Admissions like those

make clear that a particular witness has an incentive to

testify favorably to the government.

Second, petitioner disregards the risk of prejudice

and confusion posed by questions about the precise sentence a cooperating witness faces. This Court has endorsed the “familiar precept[]” that “providing jurors

11

sentencing information * * * creates a strong possibility of confusion.” Shannon, 512 U.S. at 579. Courts of

appeals have similarly recognized the “certain prejudicial impact” that results when a jury learns the sentencing consequences of its verdict. United States v. Cropp,

127 F.3d 354, 359 (4th Cir. 1997), cert. denied, 522 U.S.

1098 (1998); see, e.g., United States v. Wright, 866 F.3d

899, 906 (8th Cir. 2017) (sentencing information would

“introduce improper and confusing considerations before” a jury) (citation omitted), cert. denied, 138 S. Ct.

2026 (2018); United States v. Trent, 863 F.3d 699, 705

(7th Cir. 2017) (sentencing information “might confuse

or mislead the juries”), cert. denied, 138 S. Ct. 2025

(2018); United States v. Rushin, 844 F.3d 933, 939 (11th

Cir. 2016) (sentencing information “could invite jury

nullification”). Petitioner has no response to that problem.

Even setting aside this Court’s precedents, petitioner’s historical argument lacks solid foundation. Petitioner acknowledges that “early American criminal

records are sparse,” and the earliest state decision he

cites is from 1839—over 50 years after ratification of the

Constitution. See Pet. 31 (citing Commonwealth v.

Sacket, 39 Mass. 394, 396 (1839)). Moreover, the few

American sources that petitioner discusses, see Pet. 2933, stand only for the general proposition that defense

counsel has latitude to inquire into sources of bias on

cross-examination—a principle that the decision below

endorsed and applied. Those sources shed no light on

the narrow question presented here concerning whether precise quantification of a cooperating witness’s potential sentence is categorically required in all circumstances.

12

c. The court of appeals’ decision is consistent with

many other decisions that have upheld restrictions on

the disclosure of the precise sentences that cooperating

witnesses avoided or hoped to avoid. See, e.g., Wright,

866 F.3d at 905-908; Trent, 863 F.3d at 704-706; Rushin,

844 F.3d at 938-940; Cropp, 127 F.3d at 360; United

States v. Luciano-Mosquera, 63 F.3d 1142, 1153 (1st

Cir. 1995), cert. denied, 517 U.S. 1234 (1996); see also

Pet. 13-15 (listing cases).

Petitioner contends (Pet. 10-11) that the decision below conflicts with decisions of the Fifth and Ninth Circuits. But the courts of appeals treat the inquiry into

whether and to what extent a defendant should be permitted to question a cooperating witness about the benefits he hopes to receive in exchange for his cooperation

as fact-intensive and case-specific. The courts have resolved that question in different ways when considering

different sets of facts. That is neither unexpected nor

problematic, and it does not indicate the existence of a

conflict warranting this Court’s intervention.

In United States v. Cooks, 52 F.3d 101 (1995), the

Fifth Circuit declined to adopt a categorical rule and

recognized that restrictions on cross-examination about

specific sentences do not violate the Confrontation

Clause “if ‘the jury has sufficient information to appraise the bias and motives of the witness.’ ” Id. at 104

(brackets and citation omitted). Moreover, because that

case involved cross-examination about a witness’s potential sentences on unrelated state charges, the court

had no occasion to consider the substantial risk of prejudice that arises where, as here, disclosure of the sentence faced by a cooperating witness would allow the

jury to infer the sentence to which a conviction would

subject the defendant himself. Id. at 103-104 & n.13.

13

Nor did the Ninth Circuit’s decision in United States

v. Larson, 495 F.3d 1094 (2007) (en banc), cert. denied,

552 U.S. 1260 (2008), purport to adopt a categorical rule.

The court instead recognized, consistent with this

Court’s precedents, that the relevant Confrontation

Clause inquiry is whether a “reasonable jury might

have received a significantly different impression of the

witness’ credibility had . . . counsel been permitted to

pursue his proposed line of cross-examination.” Id. at

1106 (brackets and citation omitted). In Larson itself,

a bare majority of the en banc court found a Confrontation Clause violation where a cooperating witness faced

a minimum sentence of life in prison and the defendant

was not allowed to elicit any testimony about the existence or magnitude of that mandatory minimum. Id. at

1105-1107; see id. at 1108 (Graber, J, concurring in part

and specially concurring in part). The court suggested

that a mandatory life sentence is particularly probative

of a cooperating witness’s potential bias. Id. at 11051107. But the court had no occasion to consider a circumstance where, as in this case, defense counsel was

permitted to cross-examine cooperating witnesses

about “ ‘substantial’ sentences,” where those sentences

were something less than life in prison. Pet. App. 10.

The Ninth Circuit thus has not treated Larson as establishing a categorical rule permitting inquiry into the

specific details of any mandatory minimum sentence

faced by a cooperating witness. For example, the court

found no error in the preclusion of inquiry into the specific statutory minimum penalties the cooperating witnesses would have faced where “sufficient” other evidence allowed “the jury to properly evaluate the credibility of the cooperating witnesses.” United States v.

14

Tones, 759 Fed. Appx. 579, 585 (9th Cir. 2018), cert. denied, 140 S. Ct. 67 (2019).

Petitioner also contends (Pet. 11-13) that the decision below conflicts with the decisions of various state

courts of last resort. Although some tension may exist,

petitioner fails to identify a square conflict warranting

the Court’s review in this case. In several of the decisions petitioner cites, the trial court appeared to preclude defense counsel not only from asking a cooperating witness quantitative questions about the particular

penalty he faced, but also any qualitative questions on

that subject (e.g., about the degree of severity). See

State v. Gracely, 731 S.E.2d 880, 882-883 (S.C. 2012);

State v. Vogleson, 571 S.E.2d 752, 755 (Ga. 2002); State

v. Jackson, 233 A.3d 440, 452 (N.J. 2000); State v.

Brown, 399 S.E.2d 593, 594 (S.C. 1991); Jarrett v. State,

498 N.E.2d 967, 968 (Ind. 1986). The state supreme

courts thus had no occasion to address the question presented here, where the trial court precluded questions

concerning the “specific number of months” of imprisonment faced by the cooperating witnesses, but permitted cross-examination about the existence of substantial

mandatory minimums. Pet. App. 56.

The other decisions petitioner cites differ from this

one on a variety of grounds. State v. Mizzell, 563 S.E.2d

315 (S.C. 2002), did not involve a cooperating witness,

as the relevant witness there “had neither agreed to a

plea bargain nor pled guilty.” Id. at 318. People v.

Bonilla, 160 P.3d 84 (Cal. 2007), cert. denied, 552 U.S.

1117 (2008), did not involve a limitation on crossexamination at all. Id. at 100. Manley v. State, 698

S.E.2d 301 (Ga. 2010), distinguished between situations

where “the defendant was seeking to elicit ‘objective ev-

15

idence’ of the disparity between the sentence the witness will get as a result of his cooperation and the sentence he faced had he not cooperated, as opposed to”

situations where defense counsel sought to elicit “the

witness’s mere hope for or speculation about the possibility of a lower sentence.” Id. at 304-305. And finally,

State v. Donelson, 302 N.W.2d 125 (Iowa 1981) (en

banc), did not expressly purport to interpret or apply

the Confrontation Clause.

2. Petitioner’s additional challenge to the standard

that the court of appeals applied to his Confrontation

Clause claim likewise does not warrant further review.

a. The court of appeals correctly applied abuse-ofdiscretion review to petitioner’s claim. As discussed

above, “trial judges retain wide latitude insofar as the

Confrontation Clause is concerned to impose reasonable limits” on “defense counsel’s inquiry into the potential bias of a prosecution witness,” Van Arsdall, 475

U.S. at 679, including limitations on the questions defendants may ask cooperating witnesses about the sentences they are facing. See Alford v. United States, 282

U.S. 687, 694 (1931) (observing that “[t]he extent of

cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial

court”); Glasser v. United States, 315 U.S. 60, 83 (1942);

District of Columbia v. Clawans, 300 U.S. 617, 632

(1937). Given that broad discretion, appellate review is

necessarily deferential. The question on appeal is not

what the appellate court itself would have done, but instead whether what the trial court did was “reasonable.” Van Arsdall, 475 U.S. at 679. Trial court determinations subject to a reasonableness standard are

properly reviewed for abuse of discretion. See, e.g.,

Gall v. United States, 552 U.S. 38, 56 (2007) (observing

16

that review of whether a sentence is “reasonable”

equates to review of “whether the District Judge

abused his discretion”).

Petitioner contends that an alleged Confrontation

Clause violation “presents a question of law” because it

involves application of “the proper standard to essentially undisputed facts.” Pet. 34 (citation omitted). But

the substantive standard in this context is reasonableness, which inherently requires the exercise of discretion. Petitioner further suggests (Pet. 35) that de novo

review is appropriate merely because a Confrontation

Clause claim is constitutional in nature. But not all constitutional claims are subject to de novo review. Instead, the proper standard of review depends on the

character of the right asserted. A defendant’s constitutional right to be free of racial bias in jury selection, for

example, is reviewed for clear error, because the critical

issue is the prosecutor’s discriminatory intent, and the

trial court is uniquely situated to observe both the prosecutor’s demeanor in explaining his reasons for striking

certain jurors and the demeanor of the potential jurors

themselves. See Snyder v. Louisiana, 552 U.S. 472,

477-478 (2008). Similarly here, a challenge to a limitation on cross-examination is appropriately reviewed for

abuse of discretion, given the trial judge’s unique position in managing the admission of evidence and the trial

more generally. See Davis, 415 U.S. at 318 n.6 (noting

that, in Alford, the Court had reviewed a crossexamination claim of “constitutional dimension” for

“abuse of discretion”).

b. To whatever extent “de novo” review in a context

where a district court may adopt “reasonable” restrictions may differ from “abuse of discretion” review,

no conflict in the lower courts on the appellate standard

17

for Confrontation Clause claims warrants this Court’s

review. The decision below is consistent with many

other decisions that have reviewed Confrontation

Clause challenges to limitations on cross-examination

for abuse of discretion. See, e.g., United States v. Ulbricht, 858 F.3d 71, 118 (2d Cir. 2017), cert. denied, 138

S. Ct. 2708 (2018); United States v. Mussare, 405 F.3d

161, 169 (3d Cir. 2005), cert. denied, 546 U.S. 1225

(2006); United States v. Kiza, 855 F.3d 596, 603-604 (4th

Cir. 2017); United States v. Ford, 761 F.3d 641, 651 (6th

Cir.), cert. denied, 574 U.S. 1054 (2014); United States

v. Vega, 826 F.3d 514, 542 (D.C. Cir. 2016), cert. denied,

137 S. Ct. 1238, and 137 S. Ct. 2240 (2017); see also Pet.

16 (citing cases). And petitioner errs in asserting that

the decision below conflicts with decisions from various

other courts of appeals. At the outset, Eighth Circuit

precedent on this question appears to be mixed. Although the decision in this case reviewed petitioner’s

claim for abuse of discretion, see Pet. App. 9, the Eighth

Circuit has elsewhere stated that “[w]e review evidentiary rulings regarding the scope of cross examination

for abuse of discretion, but where the Confrontation

Clause is implicated, we consider the matter de novo.”

United States v. Bentley, 561 F.3d 803, 808 (quoting

United States v. Kenyon, 481 F.3d 1054, 1063 (8th Cir.

2007)), cert. denied, 558 U.S. 865 (2009). Petitioner

failed to cite that caselaw in his briefs below and did not

seek rehearing en banc. This Court should decline to

intervene for that reason alone, because “[i]t is primarily the task of a Court of Appeals to reconcile its internal

difficulties.” Wisniewski v. United States, 353 U.S. 901,

902 (1957) (per curiam).

18

In any event, this case does not implicate any conflict

in the circuits. Petitioner asserts that four courts of appeals employ a hybrid approach in reviewing Confrontation Clause challenges to limits on cross-examination,

under which courts review “de novo” a challenge based

on the exclusion of “an entire ‘area of inquiry,’ ” but review for “abuse of discretion * * * ‘limitation[s] on the

scope of questioning within a given area.’ ” Pet. 16

(quoting Larson, 495 F.3d at 1101, and citing United

States v. Jiménez-Bencevi, 788 F.3d 7, 21 (1st Cir.

2015); United States v. Trent, 863 F.3d 699, 704 (7th Cir.

2017); United States v. Garcia, 13 F.3d 1464, 1468 (11th

Cir.), cert. denied, 512 U.S. 1226 (1994)). But such an

approach would not help petitioner, since his claim

would be reviewed for abuse of discretion even under

the hybrid model. The district court here did not foreclose all questioning about the cooperating witnesses’

potential sentences, but merely “limit[ed] * * * the

scope of questioning within [that] area” by barring

cross-examination about their precise length. Larson,

495 F.3d at 1101.

Petitioner also asserts (Pet. 15-16) that the Fifth and

Tenth Circuits apply de novo review across the board.

But the Fifth Circuit uses a hybrid approach of a sort

that would make no difference here. See, e.g., United

States v. Davis, 393 F.3d 540, 548 (2004) (rejecting Sixth

Amendment challenge after finding “no abuse of discretion in the trial court’s limitation of [a witness’s] cross

examination”). And the Tenth Circuit’s precedent is internally inconsistent, as that court itself has recognized.

In United States v. Mullins, 613 F.3d 1273 (Gorsuch,

J.), cert. denied, 562 U.S. 1035 (2010), the court cited

conflicting caselaw on this question, observing that

19

“[t]here may be some tension within our circuit’s precedents” but leaving “the task of reconciling whatever

conflict there may be in our precedents for a case where

the standard of review might affect the outcome.” Id.

at 1283 n.4. Even the decision petitioner cites, although

it did not cite any potentially conflicting precedent, expressed skepticism about de novo review and noted that

“[a]t some point it may be appropriate to reexamine our

standard of review,” but that “the standard of review

does not affect the result here.” United States v. John,

849 F.3d 912, 918 (10th Cir.), cert. denied, 138 S. Ct. 123

(2017). This Court should permit the Tenth Circuit an

opportunity to harmonize its own precedents in the first

instance. See Wisniewski, 353 U.S. at 902.

Petitioner is also mistaken in his claim (Pet. 16) that

“[s]tate courts are equally divided on the standard of

review.” State v. Orn, 482 P.3d 913 (Wash. 2021) (en

banc), observed that “a trial court’s rulings on Sixth

Amendment claims are generally reviewed de novo,”

but explained that the limitation there violated the defendant’s constitutional rights “[e]ven under the abuse

of discretion standard.” Id. at 920 (emphasis added).

State v. Rainsong, 807 N.W.2d 283 (Iowa 2011), did not

involve a limitation on cross-examination. Id. at 289.

And State v. Davis, 1 A.3d 76 (Conn. 2010), applied a

hybrid approach, emphasizing that the “trial court has

wide discretion to determine the relevancy of evidence

and the scope of cross-examination” and that an appellate court would “make every reasonable presumption

in favor of upholding the trial court’s rulings on these

bases.” Id. at 85 (citations and brackets omitted). The

court explained that “[i]f, after reviewing the trial

court’s evidentiary rulings, we conclude that the trial

court properly excluded the proffered evidence, then

20

the defendant’s constitutional claims necessarily fail,”

and that it would review a defendant’s Confrontation

Clause claim “ ‘de novo’ ” only if it “conclude[d] that the

trial court improperly excluded certain evidence.” Ibid.

(citation omitted).

3. Even if the questions presented otherwise warranted this Court’s review, this case would not be an appropriate vehicle for considering them. Petitioner

would not be entitled to relief if he prevailed on the second question alone, because no Confrontation Clause violation occurred under any standard of review. See pp.

7-11, supra. And even if he prevailed on the first question presented, any error was harmless beyond a reasonable doubt.

As this Court has explained, “the constitutionally improper denial of a defendant’s opportunity to impeach a

witness for bias, like other Confrontation Clause errors,

is subject to * * * harmless-error analysis.” Van Arsdall, 475 U.S. at 684. Whether an error was harmless

depends on a “host of factors,” including “the importance of the witness’ testimony in the prosecution’s

case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points,

the extent of cross-examination otherwise permitted,

and, of course, the overall strength of the prosecution’s

case.” Ibid.

In this case, the government’s other evidence both

corroborated the testimony of the cooperating witnesses and independently supported petitioner’s convictions. Officers observed petitioner’s participation in

payoffs and suspected drug purchases. See, e.g., Trial

Tr. 118-122, 139-142, 341, 350-358, 473-476, 493-495,

21

525-528; see also Gov’t C.A. Br. 21-22, 28. Wiretap evidence revealed that petitioner, using multiple cell

phones, regularly discussed large sums of money, used

coded language, and received orders for cocaine and cocaine base. See, e.g., Trial Tr. 153, 157, 343, 590-600,

609-619, 625-627, 749-756; see also Gov’t C.A. Br. 24-28.

And during a search of petitioner’s residence, officers

found several firearms, ammunition, three bags of cutting agents, bowls and a spoon with cocaine residue,

plastic baggies, empty duffle bags, a bag sealer, and a

receipt for a storage garage. Trial Tr. 158-159, 162-176;

see Gov’t C.A. Br. 28-29. At the storage garage, officers

recovered a coffee can with a false bottom containing

cocaine, cocaine base, and cutting agents. Trial Tr. 176183; see Gov’t C.A. Br. 29. Petitioner contends (Pet. 20)

that the cooperating witnesses were necessary to establish drug quantity, but several significant items of independent evidence spoke to that question. See, e.g., Pet.

App. 32-33; Gov’t C.A. Br. 26-28.

In addition, the district court permitted defense

counsel to explore the cooperating witnesses’ incentives

to testify favorably for the government, and barred inquiry only into the granular details of their sentencing

exposure. See, e.g., Pet. App. 54-56, 62, 94. Particularly

in light of the overwhelming evidence of petitioner’s culpability, any marginal value gleaned from additional

cross-examination would not have affected the jury’s

verdict. See Larson, 495 F.3d at 1108 (finding error

harmless because “the Government offered significant

evidence” of guilt and defense counsel was allowed to

explore the cooperating witness’s “desire to obtain a

lesser sentence”). Any Confrontation Clause error in

this case was harmless.

22

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

BRIAN H. FLETCHER

Acting Solicitor General

KENNETH A. POLITE, JR.

Assistant Attorney General

JOEL S. JOHNSON

Attorney

OCTOBER 2021