Reply Brief — Pablo Santana Arellano, Petitioner v. United States

No. 23-7774

In the

Supreme Court of the United States

___________

Pablo Santana Arellano,

Petitioner,

v.

United States of America,

Respondent.

___________

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

___________

REPLY IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI

___________

Kevin Joel Page

Assistant Federal Public Defender

Federal Public Defender’s Office

Northern District of Texas

525 S. Griffin Street, Suite 629

Dallas, TX 75202

(214) 767-2746

Joel_page@fd.org

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................... ii

ARGUMENT ................................................................................................................. 1

Conflict prevails in the lower courts regarding the scope of the defendant’s

right to cross-examine cooperating witnesses. The core functions Confrontation

Clause – protecting against erroneous conviction and exerting democratic

control over the prosecution – are seriously undermined by the decision below

and similar rulings……………………………………………………………………1

1.

The decision below is wrong ..………………………………..………………4

2.

Conflict and unpredictable outcomes prevail in the lower courts………8

3.

The possibility of harmless error provides no good reason

to deny certiorari………………………………………………………………………14

CONCLUSION............................................................................................................. 16

i

Table of Authorities

Page(s)

Federal Cases

Andersen v. Maryland,

427 U.S. 463 (1976) .................................................................................................. 8

Baldwin v. Alabama,

472 U.S. 372 (1985) .................................................................................................. 8

Benson v. United States,

146 U.S. 325 (1892) .................................................................................................. 1

Blakely v. Washington,

542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) ........................................ 2

Coleman v. Alabama,

399 U.S. 1 (1970) .................................................................................................... 15

Crawford v. Washington,

541 U.S. 36 (2004) ............................................................................................ 1, 2, 9

Davis v. Alaska,

415 U.S. 308 (1974) .............................................................................................. 2, 4

Dawson v. Delaware,

503 U.S. 159 (1992) ................................................................................................ 15

Delaware v. Van Arsdall,

475 U.S. 673 (1986) .......................................................................................... 4, 6, 7

Florida v. White,

526 U.S. 559 (1999) .................................................................................................. 8

Giglio v. United States,

405 U.S. 150 (1972) .................................................................................................. 7

Gilbert v. California,

388 U.S. 263 (1967) ................................................................................................ 15

Greene v. McElroy,

360 U.S. 474 (1959) .................................................................................................. 4

Hagen v. Utah,

510 U.S. 399 (1994) .................................................................................................. 8

ii

Hoffa v. United States,

385 U.S. 293 (1966) .................................................................................................. 1

Lakeside v. Oregon,

435 U.S. 333 (1978) .................................................................................................. 8

Lisenba v. California,

314 U.S. 219 (1941) .................................................................................................. 1

Napue v. People of State of Ill.,

360 U.S. 264 (1959) .................................................................................................. 7

Richardson v. Marsh,

481 U.S. 200 (1987) .................................................................................................. 5

United States v. Arellano,

No. 23-10199, 2024 WL 1156535 (5th Cir. Mar. 18,

2024)(unpublished) ............................................................................................. 3, 14

United States v. Caldwell,

88 F.3d 522 (8th Cir. 1996) ................................................................................ 9, 10

United States v. Campbell,

986 F.3d 782 (8th Cir. 2021) .............................................................................. 9, 10

United States v. Chandler,

326 F.3d 210 (3rd Cir. 2003) .................................................................................... 11

United States v. Estate of Romani,

118 S.Ct. 1478 (1998) ............................................................................................... 8

United States v. Gaudin,

515 U.S. 506 (1995) .............................................................................................. 1, 2

United States v. Henry,

No. CR 16-1097 JH, 2018 WL 802006 (D.N.M. Feb. 8, 2018) ............................. 3, 8

United States v. Hill,

80 F.4th 595 (5th Cir. 2023) .................................................................................... 15

United States v. John-Baptiste,

747 F.3d 186 (3d Cir. 2014) .................................................................................... 11

United States v. Lanham,

617 F.3d 873 (6th Cir. 2010) ................................................................................ 3, 8

iii

United States v. Mussare,

405 F.3d 161 (3d Cir. 2005) .................................................................................... 11

United States v. Noel,

905 F.3d 258 (3d Cir. 2018)(recounting Chandler) ............................................... 11

United States v. Roan Eagle,

867 F.2d 436 (8th Cir. 1989) .............................................................................. 9, 10

United States v. Singleton,

165 F.3d 1297 (10th Cir. 1999)(en banc) ................................................................. 1

Washington v. Texas,

388 U.S. 14 (1967) .................................................................................................... 1

The Whiskey Cases, 99 U.S. 594 (1878)......................................................................... 1

State Cases

Bell v. State,

655 N.E.2d 129 (Ind.Ct.App.1995) ......................................................................... 12

Bullock v. State,

903 N.E.2d 156 (Ind.Ct.App.2009) ......................................................................... 12

Hamner v. State,

553 N.E.2d 201 (Ind.Ct.App.1990) ......................................................................... 12

Janner v. State,

521 N.E.2d 709 (Ind.Ct.App.1988) ......................................................................... 12

Jarrett v. State,

498 N.E.2d 967 (Ind. 1986) .............................................................................. 3, 5, 8

Jones v. State,

749 N.E.2d 575 (Ind.Ct.App.2001) ......................................................................... 12

McCain v. State,

948 N.E.2d 1202 (Ind.Ct.App.2011) ........................................................... 12, 13, 14

McCorker v. State,

797 N.E.2d 257 (Ind. 2003) .............................................................................. 12, 13

Samuels v. State,

505 N.E.2d 120 (Ind.Ct.App.1987) ......................................................................... 12

iv

Sigler v. State,

733 N.E.2d 509 (Ind.Ct.App.2000) ................................................................... 12, 13

Standifer v. State,

718 N.E.2d 1107 (Ind. 1999) ............................................................................ 12, 13

State v. Brown,

399 S.E.2d 593 (S.C. 1991) ............................................................................. 3, 8, 13

State v. Jackson,

233 A.3d 440 (N.J. July 2, 2020) .................................................................... 3, 8, 13

State v. Jackson,

243 N.J. 52 (2020), reconsideration granted by 243 N.J. 539, 235

A.3d 1026 (July 20, 2022) ................................................................................. 12, 14

State v. Mizzell,

563 S.E.2d 315 (S.C. 2002) ......................................................................... 12, 13, 14

State v. Smith,

No. A-1601-19, 2023 WL 4281375 (N.J. Super. Ct. App. Div. June

30, 2023) ............................................................................................................ 12, 13

Wright v. State,

836 N.E.2d 283 (Ind.Ct.App.2005) ......................................................................... 12

State Statutes

Delaware Code Title 5, § 1315 (1986) ........................................................................... 6

Constitutional Provisions

U.S. Const. amend. VI ....................................................................... 1, 2, 5, 6, 8, 13, 14

Other Authorities

2 J. Story, Commentaries on the Constitution of the United States 540541 (4th ed. 1873) ..................................................................................................... 1

ABA Model Rule of Professional Conduct 3.8 (2024) ................................................... 7

Hon. Stephen S. Trott, Words of Warning for Prosecutors Using

Criminals as Witnesses, 47 Hastings L.J. 1381, 1383 (1996) ................................. 1

John Adams, Diary Entry (Feb. 12, 1771), reprinted in 2 Works of John

Adams 252 (C. Adams ed. 1850) .............................................................................. 2

v

Letter from Thomas Jefferson to the Abbe Arnoux (July 19, 1789),

reprinted in 15 Papers of Thomas Jefferson 282 (J. Boyd ed. 1958)....................... 2

Letter XV by the Federal Farmer (Jan. 18, 1788), reprinted in 2 The

Complete Anti–Federalist 315 (H. Storing ed.1981) ................................................ 2

R. Stern, E. Gressman, K. Geller, S. Shapiro, Supreme Court Practice,

§ 4.9 (8th ed. 2002) ..................................................................................................... 8

4 W. Blackstone, Commentaries on the Laws of England 343 (1769) ......................... 2

Yvette A. Beeman, Note, Accomplice Testimony Under Contingent Plea

Agreements, 72 Cornell L.Rev. 800, 802 (1987) ....................................................... 1

vi

ARGUMENT

Conflict prevails in the lower courts regarding the scope of the defendant’s

right to cross-examine cooperating witnesses. The core functions

Confrontation Clause – protecting against erroneous conviction and

exerting democratic control over the prosecution – are seriously

undermined by the decision below and similar rulings.

In our country, prosecutors may offer a witness a reduced prison sentence in

exchange for his or her testimony against the accused.1 This gives the government

enormous power over the citizenry and poses an obvious threat of abuse and wrongful

conviction. Put simply, the threat of prison, or the hope of reprieve, may cause a

witness to lie or shade the truth, misleading a jury to convict an innocent person.2

The Framers imagined that the people’s primary check on the power of the

prosecutor would be the jury, not a judge – trial or appellate.3 Thus, when the

defendant elects a trial, every felony conviction exists at the sufferance of this

See United States v. Singleton, 165 F.3d 1297, 1301 (10th Cir. 1999)(en banc)(citing Hoffa v. United

States, 385 U.S. 293, 310–12 (1966); Lisenba v. California, 314 U.S. 219, 227 (1941); Benson v. United

States, 146 U.S. 325, 333–37 (1892); The Whiskey Cases, 99 U.S. 594, 599–600 (1878)).

1

2 See Washington v. Texas, 388 U.S. 14, 22–23 (1967)(“Common sense would suggest that [an accused

accomplice] often has a greater interest in lying in favor of the prosecution rather than against it,

especially if he is still awaiting his own trial or sentencing.”); Hon. Stephen S. Trott, Words of Warning

for Prosecutors Using Criminals as Witnesses, 47 Hastings L.J. 1381, 1383 (1996)(“Criminals are likely

to say and do almost anything to get what they want, especially when what they want is to get out of

trouble with the law.”); Yvette A. Beeman, Note, Accomplice Testimony Under Contingent Plea

Agreements, 72 Cornell L.Rev. 800, 802 (1987) (“Accomplice plea agreements tend to produce

unreliable testimony because they create an incentive for the accomplice to shift blame to the

defendant or other co-conspirators. Further, an accomplice may wish to please the prosecutor to ensure

lenient prosecution in his own case.”).

3 See Crawford v. Washington, 541 U.S. 36, 67-68 (2004)(Founders distrusted judges to fairly and

reliably evaluate the truthfulness and partiality of government witnesses, insisting instead on

presentation of the witness to the jury); United States v. Gaudin, 515 U.S. 506, 510–11 (1995)(right to

trial by jury “was designed ‘to guard against a spirit of oppression and tyranny on the part of rulers,’

and ‘was from very early times insisted on by our ancestors in the parent country, as the great bulwark

of their civil and political liberties.’”)(quoting 2 J. Story, Commentaries on the Constitution of the

United States 540-541 (4th ed. 1873)).

1

profoundly democratic institution.4 Indeed, the Sixth Amendment right of

Confrontation grew out of the Founders’ skepticism toward the use of witnesses that

curried favor with the prosecution in order to mitigate their own punishment.5

But the jury cannot check prosecutorial power unless the exercise of that power

is fully exposed to its view. The government’s view of the Confrontation Clause – that

judges and prosecutors may pick and choose which parts of a government’s deal with

the witness to tell the jury about – runs exactly contrary to the purpose of the

Confrontation Clause. In the government’s view, it suffices if the jury knows the

government’s witness avoided a mandatory minimum – it need not know that she

avoided ten years in prison.6 But of course many people who would not lie to avoid,

say, one year in prison, might do so to avoid ten years. Or, at least, many reasonable

juries could hold that view of human nature, or the nature of drug dealers. And our

system entrusts that question to the jury upon review of all relevant facts.7 It is

4 See Gaudin, 515 U.S. at 510–11 (citing 4 W. Blackstone, Commentaries on the Laws of England 343

(1769)); Blakely v. Washington, 542 U.S. 296, 306, 124 S. Ct. 2531, 2539, 159 L. Ed. 2d 403 (2004)(“Just

as suffrage ensures the people's ultimate control in the legislative and executive branches, jury trial

is meant to ensure their control in the judiciary.”)(citing Letter XV by the Federal Farmer (Jan. 18,

1788), reprinted in 2 The Complete Anti–Federalist 315, 320 (H. Storing ed.1981) (describing the jury

as “secur[ing] to the people at large, their just and rightful controul in the judicial department”); John

Adams, Diary Entry (Feb. 12, 1771), reprinted in 2 Works of John Adams 252, 253 (C. Adams ed. 1850)

(“[T]he common people, should have as complete a control ... in every judgment of a court of judicature”

as in the legislature); Letter from Thomas Jefferson to the Abbe Arnoux (July 19, 1789), reprinted in 15

Papers of Thomas Jefferson 282, 283 (J. Boyd ed. 1958) (“Were I called upon to decide whether the

people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave

them out of the Legislative”)).

5 See Crawford, 541 U.S. at 44, 50 (describing English political trials such as that of Sir Walter Raleigh

in which defendant was incriminated by witnesses “at the King’s mercy”).

6 See (Brief in Opposition, at 11-12).

7 See Davis v. Alaska, 415 U.S. 308, 318 (1974)(right of confrontation is the right “to expose to the jury

the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw

inferences relating to the reliability of the witness.”).

2

simply not for a judge to say that the length of the mandatory minimum avoided by

the witness is not relevant to her credibility.

As such, the decision below, and the comparable decisions of appellate courts,

undermines a critical check on one of the most dangerous powers now entrusted to

the government and its representatives. Moreover, the courts of appeals have divided

on the question presented.8 At a minimum, the decision below – and similar decisions

of federal courts of appeals – quite directly conflicts with the clearly stated decisional

law of several state courts of last resort.9 The expositors of federal law are in conflict

on a question of momentous import, which question is the sole basis for the decision

below.10 This Court should grant certiorari.

The government proffers three reasons to deny certiorari. First, it says that

the decision below is correct.11 Second, it claims that the question is fact-bound,

implicating no clear conflict in the law.12 And third, it argues that the error is

8 See United States v. Lanham, 617 F.3d 873, 884 (6th Cir. 2010))(“There is a circuit split on the issue

of whether defendants should be prohibited from asking cooperating witnesses, and former coconspirators, details about their sentences and sentencing agreements with the government to expose

the witnesses' bias.”); United States v. Henry, No. CR 16-1097 JH, 2018 WL 802006, at *2–3 (D.N.M.

Feb. 8, 2018) (citing Lanham).

9 See State v. Jackson, 233 A.3d 440, 449–50 (N.J. July 2, 2020); Jarrett v. State, 498 N.E.2d 967, 968-

69 (Ind. 1986); State v. Brown, 399 S.E.2d 593, 594 (S.C. 1991).

See United States v. Arellano, No. 23-10199, 2024 WL 1156535, at *1 (5th Cir. Mar. 18,

2024)(unpublished).

10

11 See (Brief in Opposition, at 9-12).

12 See (Brief in Opposition, at 12-19).

3

harmless.13 The government is wrong in all three assertions, and certainly has not

provided a good reason to deny certiorari.

1.

The decision below is wrong.

First, the government defends the decision below on the merits.14 Again, the

government’s chief witness avoided a ten-year mandatory minimum sentence by

testifying against the defendant.15 The court below permitted the government to

conceal that fact from the jury – for the all the jury knew, she might have avoided as

little as a year or even a month of prison. 16 This is the paradigmatic fact that crossexamination was designed to expose: a witness’s incentive to lie or shade the truth. 17

Relying on Delaware v. Van Arsdall, 475 U.S. 673 (1986), the government

points out that district courts may limit cross-examination to avoid “harassment,

prejudice, confusion of the issues, the witness’ safety, or interrogation that is

repetitive or only marginally relevant.”18 But none of that is implicated here, where

the cross-examination denied pertained to the mandatory minimum the witness

avoided by testifying for the government. Questioning on this matter is hardly

13 See (Brief in Opposition, at 19-21).

14 See (Brief in Opposition, at 9-12).

15 See (ROA.1122-24, 1170); [Appendix C, 6].

16 See (ROA.1203-04); [Appendix C, 39-40].

17 See Davis, 415 U.S. at 316–17 (“the exposure of a witness' motivation in testifying is a proper and

important function of the constitutionally protected right of cross-examination.”)(quoting Greene v.

McElroy, 360 U.S. 474, 496 (1959)).

18 Van Arsdall, 475 U.S. at 679; (Brief in Opposition, at 10).

4

“harassment,” does not jeopardize anyone’s safety, and implicates a core credibility

issue, not a remote one.

The government contends that it might create prejudice for the jury to know

that the relevant charge carried a ten-year mandatory minimum.19 But if the jury

were willing to disregard its solemn oath and acquit the defendant solely to avoid

giving a drug dealer ten years in prison, surely a drug dealer might be willing to lie

or shade the truth to avoid ten years of her own imprisonment. Thus, the government

appears to concede the profound probative value of the information concealed from

the jury – it agrees that a ten-year prison sentence is a momentous fact, which may

cause people to violate their oaths. The only question is whether that risk is higher

with a jury or a cooperating witness. As to the jury, there is an “almost invariable

assumption of the law that jurors follow their instructions.”20 By contrast, the law

treats the sworn testimony of cooperating witnesses as extremely suspect. 21 In any

case, the Confrontation Clause demands that courts err on the side of exposing the

truth through cross-examination.22 Every time the prosecution makes a deal to

reduce the sentence of its witnesses, there is a risk of prejudice to the government.

The practice is unsavory, and a jury might well punish it. But it is very much the

point of the Confrontation Clause that a jury will evaluate the means by which the

19 See (Brief in Opposition, at 11).

20 Richardson v. Marsh, 481 U.S. 200, 206 (1987).

21 See (Petition, at 15-16, n.1).

22 See Jarrett, 498 N.E.2d at 968–69 (“Against the crucial role of full and proper cross-examination,

the State's desire to censor sentencing information is clearly subordinate.”).

5

government assembles its case, and whether those tactics are well calculated to

distinguish the guilty from the innocent.

Taken as a whole, the Confrontation holding of Van Arsdall supports

Petitioner’s position. This Court in Van Arsdall ultimately remanded to the Delaware

Supreme Court to decide the question of harm,23 but it unequivocally found that the

limitation on cross-examination in that case violated the Sixth Amendment.24

Notably, the prohibited questioning in that case pertained only to the dismissal of a

public drunkenness charge.25 This was classified as a “violation,” less serious even

than an ordinary misdemeanor.26 By contrast, the district court here concealed from

the jury a ten-year mandatory minimum. And while the trial court in Van Arsdall

prohibited all questioning about the dismissed charge, it did so for essentially the

same reason that the district court excluded evidence of the ten-year mandatory

minimum. It exercised its discretion to weigh probative value and prejudice, and

concluded that the latter outweighed the former.27 The problem in Van Arsdall, as

here, was that the Constitution guarantees the right to expose a witness’s bias.

The government further contends that the denial of cross-examination may be

tolerated here because the court permitted other information about the plea

23 See Van Arsdall, 475 U.S. at 684.

24 See id. at 679.

25 See id.

26 See Delaware Code Tit. 5, §1315 (1986).

27 See Van Arsdall, 475 U.S. at 606.

6

agreement.28 Van Arsdall, again, found a Confrontation violation. It therefore does

not stand for the proposition that a district court may conceal potentially critical

elements of a plea agreement from the jury so long as some of that agreement is

disclosed.

And if there were authority to conceal elements of a witness’s plea agreement

so long as the most important information came to light, it would not help the

government here. The threat of a ten-year mandatory minimum is a powerful

incentive to toe the government’s line, even when compared to a lesser minimum

sentence. In the context of a witness who lied about his deal with the prosecution,

this Court would “not believe that the fact that the jury was apprised of other grounds

for believing that the witness … may have had an interest in testifying against

petitioner turned what was otherwise a tainted trial into a fair one.”29 The

government has offered no reason for a different rule when a district court rather

than a prosecutor conceals the potentially critical fact about the witness’s

credibility.30

28 See (Brief in Opposition, at 11-12).

29 Napue v. People of State of Ill., 360 U.S. 264, 270 (1959).

30 No prosecutor with any commitment to Due Process – or to complying with disciplinary rules --

would long consider the possibility of concealing a ten-year minimum from the defendant. See Giglio

v. United States, 405 U.S. 150, 154 (1972); ABA Model Rule of Professional Conduct 3.8

(2024)(prosecutor shall “make timely disclosure to the defense of all evidence or information known to

the prosecutor that tends to negate the guilt of the accused or mitigates the offense…”), available at

https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_prof

essional_conduct/model_rules_of_professional_conduct_table_of_contents/, last visited August 30,

3024. Obviously, this protection presumes the defendant’s ability to disclose the witness’s plea

agreement to the jury.

7

2.

Conflict and unpredictable outcomes prevail in the lower courts.

The question presented has divided the courts of appeals, as multiple judicial

opinions acknowledge.31 If nothing else, the decision below conflicts with the law of

multiple state courts of last resort, which courts provide the penultimate word on the

scope of the Confrontation Clause in their jurisdictions, subject to review only by this

Court.32 Indeed, the government has implicitly conceded the existence of a split in the

state courts of last resort on this federal constitutional issue.33

The government contests the split, noting cases in which the Third, Eighth,

and Ninth Circuits declined to find violations of the Confrontation Clause.34 But a

division of constitutional authority between the federal circuits and state supreme

courts would merit certiorari even if the federal courts of appeals were all aligned.35

Further, the government acknowledges that at least two lower federal courts

have perceived a circuit split – it simply disagrees with the assessments of those

courts. See (Brief in Opposition, at 19, n.4). But the perception of a division of

31 See State v. Jackson, 233 A.3d 440, 449–50 (N.J. July 2, 2020) 31; United States v. Henry, No. CR 16-

1097 JH, 2018 WL 802006, at *2–3 (D.N.M. Feb. 8, 2018); United States v. Lanham, 617 F.3d 873, 884

(6th Cir. 2010).

32 See State v. Jackson, 233 A.3d 440, 449–50 (N.J. July 2, 2020); Jarrett v. State, 498 N.E.2d 967, 968-

69 (Ind. 1986); State v. Brown, 399 S.E.2d 593, 594 (S.C. 1991).

33 See (Brief in Opposition, at 17-18)(conceding that “some tension may exist…”).

34 See (Brief in Opposition, at 13-17).

35 See R. Stern, E. Gressman, K. Geller, S. Shapiro, Supreme Court Practice, §4.9 (8th ed. 2002)(such a

division of authority is an “established reason for the grant of certiorari,” and “will warrant review of

either of the conflicting decisions since the Supreme Court is the final arbiter of matters of federal law

decided by either state or federal courts.”)(citing Florida v. White, 526 U.S. 559 (1999), United States

v. Estate of Romani, 118 S.Ct. 1478 (1998), Hagen v. Utah, 510 U.S. 399 (1994), Andersen v. Maryland,

427 U.S. 463 (1976), Lakeside v. Oregon, 435 U.S. 333 (1978), and Baldwin v. Alabama, 472 U.S. 372

(1985)).

8

authority may be as damaging as the reality. The governing rule in a given

jurisdiction, after all, will eventually become what lower courts perceive it to be. And

the wider perception of uniform federal law promotes public confidence in the legal

system and in the security of federally guaranteed rights.

In the government’s view, the conflicting outcomes of Confrontation challenges

on similar facts only shows that the issue is “fact-intensive” and unamenable to bright

lines.36 It may be the case that the federal courts of appeals fail to apply consistent

standards to adjudicate similar cases, but this is not a reason to deny review. To the

contrary, case-by-case adjudication of Confrontation claims does violence to the

constitutional design, which reposes in juries rather than judges the power to

determine the credibility of witnesses, and to check the executive authority in the

criminal sphere.37

The absence of bright line standards within the federal courts of appeals has

generated inconsistent and unpredictable results. In United States v. Campbell, 986

F.3d 782, 795 (8th Cir. 2021), cited by the government,38 the Eighth Circuit

distinguished its earlier Confrontation decisions in United States v. Caldwell, 88 F.3d

522 (8th Cir. 1996), and United States v. Roan Eagle, 867 F.2d 436 (8th Cir. 1989).

Caldwell and Roan Eagle found Confrontation violations in district court rulings

36 (Brief in Opposition, at 13).

37 See Crawford, 541 U.S. at 67–68 (“The Framers … knew that judges, like other government officers,

could not always be trusted to safeguard the rights of the people ... They were loath to leave too much

discretion in judicial hands. … By replacing categorical constitutional guarantees with open-ended

balancing tests, we do violence to their design. Vague standards are manipulable…”).

38 See (Brief in Opposition, at 15).

9

“forbidding cross-examination concerning potential minimum and maximum

sentences.” Campbell, 986 F.3d at 795 (recounting Caldwell and Roan Eagle). The

court in Campbell thought those cases distinguishable “because” in Caldwell and

Roan Eagle, “the government had already extended leniency to the cooperating

witnesses,” whereas the witness in Campbell merely entertained a “hope” of leniency

from the mandatory minimums.39

That distinction between a mere hope and a leniency “already extended,”

however, is nowhere to be found in either Caldwell or Roan Eagle.40 To the contrary,

Roan Eagle says that a witness has greater incentive to testify falsely to please the

government if he or she remains uncertain about the degree of leniency to come.41 Yet

because a later panel of the Eighth Circuit took the government’s view that judges

may supplant the jury in deciding the impact of a plea agreement on a witness’s

credibility, it upheld the denial of cross-examination about a specific mandatory

minimum.42 The Eighth Circuit cases cited by the government thus only demonstrate

that the absence of clear standards for adjudicating confrontation claims yields

uncertainty and conflict, not security in the exercise of fundamental constitutional

rights.

39 Id. (emphasis in original).

40 See Caldwell, 88 F.3d at 524-525; Roan Eagle, 867 F.2d at 443-444.

41 See Roan Eagle, 867 F.2d at 443 (“The details of a plea can be highly relevant to a jury in assessing

the credibility of a guilty-pleading co-defendant who has taken the stand to testify for the prosecution.

This is especially true if that witness has not yet been sentenced as there is a continuing incentive to

give testimony that strengthens the prosecution's case.”).

42 See Campbell, 986 F.3d at 795.

10

The government’s Third Circuit cases show the same pattern. As the

government correctly observes, that court honors no “categorical right” to crossexamination regarding all of the details of a co-defendant’s plea agreement.43 The

result is a series of conflicting and unpredictable outcomes. In United States v.

Chandler, 326 F.3d 210 (3rd Cir. 2003), the district court permitted testimony that a

witness pleaded to a lesser charge carrying between 12- and 18-months

imprisonment, ultimately receiving house arrest and probation.44 But the Third

Circuit found constitutional error because the district court excluded testimony that

the original charge could have carried eight years imprisonment, “[c]onsidering the

extent of that discrepancy…”45

Later, however, the Third Circuit subsequently permitted district courts to

suppress testimony about “things like mandatory or specific sentences like 10 years

or maximum of life.”46 Nothing in these opinions explains the disparate outcome save

the impulses of the panel. The same court that found constitutional error in the

suppression of an eight-year maximum in Chandler excused the suppression of a

radically higher maximum in Noel, apparently life imprisonment.47 Consequently,

43 United States v. Mussare, 405 F.3d 161, 170 (3d Cir. 2005).

44 See Chandler, 326 F.3d at 221-222.

45 United States v. Noel, 905 F.3d 258, 268 (3d Cir. 2018)(recounting Chandler).

46 Noel, 905 F.3d at 266; see also Mussare, 405 F.3d at 170; United States v. John-Baptiste, 747 F.3d

186, 212 (3d Cir. 2014).

47 Compare Chandler, 326 F.3d at 221-222 with Noel, 905 F.3d at 269.

11

nothing gives defendants in the Third Circuit any assurance that they may fully

expose the incentives of cooperating witnesses should they exercise their right to trial.

In any case, the law enunciated by several state courts of last resort offers a

clear bright line and is clearly contrary to the decision below and similar decisions.

In Indiana, the defendant unquestionably enjoys the right to cross-examine a witness

not merely about the fact of cooperation generally, but about the specific penalty

ranges the witness has avoided. The Indiana Supreme Court has said flatly that “[i]t

is … well-settled that the defendant is entitled to elicit the specific penalties a

witness may have avoided through her agreement with the State.”48 It has not

wavered in this view.49 Likewise, the New Jersey Supreme Court has held that “the

jury should have had full access to [the cooperating codefendant’s] plea agreement

history through the defense counsel's unfettered examination of that history.”50 And

the South Carolina Supreme Court has held that the defendant enjoys the right to

cross-examine regarding a cooperator’s plea agreement, even if the proposed crossexamination would tend to reveal the defendant’s own sentencing exposure.51

48 McCain v. State, 948 N.E.2d 1202, 1206 (Ind. Ct. App. 2011)(emphasis added).

49 See McCorker v. State, 797 N.E.2d 257, 266 (Ind. 2003)(“[t]he full extent of the benefit offered to

a witness is relevant to the jury's determination of the weight and credibility of the witness's

testimony.”)(emphasis added); Standifer v. State, 718 N.E.2d 1107, 1110 (Ind. 1999) 49(defendant was

entitled to cross-examine as to “the amount of time remaining on a sentence…”); see also Bullock v.

State, 903 N.E.2d 156, 159–60 (Ind.Ct.App.2009); Wright v. State, 836 N.E.2d 283, 289–290

(Ind.Ct.App.2005); Jones v. State, 749 N.E.2d 575, 580 (Ind.Ct.App.2001); Sigler v. State, 733 N.E.2d

509, 511 (Ind.Ct.App.2000); Bell v. State, 655 N.E.2d 129, 132–33 (Ind.Ct.App.1995); Hamner v. State,

553 N.E.2d 201, 203 (Ind.Ct.App.1990); Janner v. State, 521 N.E.2d 709, 715 (Ind.Ct.App.1988);

Samuels v. State, 505 N.E.2d 120, 123 (Ind.Ct.App.1987)).

50 State v. Jackson, 243 N.J. 52, 59 (2020)(emphasis added), reconsideration granted by 243 N.J. 539,

235 A.3d 1026 (July 20, 2022)(Table,) cited as good law by State v. Smith, No. A-1601-19, 2023 WL

4281375, at *5 (N.J. Super. Ct. App. Div. June 30, 2023).

51 State v. Mizzell, 563 S.E.2d 315, 317-18 (S.C. 2002).

12

The government offers only one response to the state authorities: it says that

in “several of the decisions” the trial court forbade even general examinations about

the penalties avoided by cooperation. But “several” is not “all,” so the fact remains

that state courts have applied the constitution differently from the court below on

indistinguishable facts.52

Further, many of the trial courts in the government’s cited state cases did

permit some cross-examination regarding the witness’s penal incentives to testify

favorably to the government.53 The prosecuting authorities in these cases thus could

have made essentially the same argument that prevailed here: that crossexamination revealed the incentives for bias, if not the force of those incentives. The

52 See McCain, 948 N.E.2d at 1207 (“McCain was permitted to ask McGuinn whether she faced a ‘very

substantial amount of time in jail’ and dodged ‘some very serious charges’ in exchange for her

participation as a confidential informant, but the trial court prohibited any discussion of the sentences

McGuinn might have received if convicted of her suspected drug offenses.”); Sigler, 733 N.E.2d at 511512 (“Defense counsel suggested, and the trial court and the State agreed, that he question the State's

witnesses about their plea agreements, and, when referring to the reduction in prison terms, he use

percentages rather than a specific number of years of imprisonment…. Here, the trial court improperly

disallowed defense counsel's questioning of the State's witnesses regarding their specific terms, in

years, of imprisonment.”); State v. Smith, No. A-1601-19, 2023 WL 4281375, at *4 (N.J. Super. Ct. App.

Div. June 30, 2023))(reversing even though the “[t]he judge …reasoned that ‘the defense clearly is

going to be permitted to question and cross-examine Ms. Soohoo on the deal that she has,’ and []

continued, ‘[s]he could be cross-examined on her awareness that she was facing a term of incarceration

in New Jersey State Prison. ... I have no objection to the use of the word “years.”’”); Mizzell, 563 S.E.2d

at 319 (“Steele's general admission he ‘could get a long sentence for these crimes,’ denies petitioners'

Confrontation Clause rights under the Sixth Amendment. A ‘long sentence’ may have different

meanings to different jurors.”).

53 See Jackson, 233 A.3d at 446 (defense counsel elicited testimony that defendant was offered three

years prison by the state, but received 180 days imprisonment and probation; court suppressed

evidence of a higher maximum sentence); McCorker, 797 N.E.2d at 266 (“Defendant was able to crossexamine Caldwell regarding … the presence of the beneficial plea agreement,” but was not permitted

to explore its terms); State v. Brown, 303 S.C. 169, 171, 399 S.E.2d 593, 594 (1991)(“On crossexamination, Bethel testified she was originally charged with trafficking in cocaine but the charge was

‘dropped’ as part of the agreement.”); Standifer, 718 N.E.2d at 1109 (“Standifer was permitted to reveal

that Larry was on parole but was not permitted to question him about the amount of time remaining.”).

13

state courts came to a different conclusion than the court below not because they

received different facts, but because they maintain a different view of the

Confrontation Clause.

In any case, the clearly enunciated holdings of each of these three courts – the

Supreme Courts of Indiana, New Jersey, and South Carolina -- leave no room for a

different outcome where the trial court permits only general questions about

sentencing exposure. All of them require full disclosure of the specific incentives to

testify for the government.54 As such, the courts below are in conflict on a momentous

constitutional question. And that conflict is not appreciably less serious because the

government can retrospectively posit hypothetical rules of decisions for the cases

below. The state courts, not the Solicitor General, state the holdings of their cases.

3.

The possibility of harmless error provides no reason to deny

certiorari.

Finally, the government contends that any error would be harmless. 55 As it

notes, the government made the same argument at length below,56 yet the court below

did not adopt it.57 If the court below regarded the error as harmless, it could simply

have said as much, rather than reaching a disputed constitutional issue on the

merits.

54 See McCain v. State, 948 N.E.2d at 1206; Jackson, 243 N.J.at 59; Mizzell, 563 S.E.2d at 317-18.

55 See (Brief in Opposition, at 19-21).

56 See (Brief in Opposition, at 20).

See United States v. Arellano, No. 23-10199, 2024 WL 1156535, at *1 (5th Cir. Mar. 18,

2024)(unpublished).

57

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Referring to “numerous other sources,” in addition to Gardeazabel, “including

the testimony of the officers who investigated the case and petitioner’s own recorded

statements,”58 the government seeks to persuade this Court that the outcome would

be the same with or without her testimony. Notably, however, it makes no argument

at all regarding its ability to prove Petitioner’s personal responsibility for the drug

quantity with independent evidence. Again, Gardeazabel testified that Petitioner

actually opened the bag in which police found Fentanyl,59 making it all but certain

that he “knew or should have known,”60 that it contained the requisite quantity. The

government has pointed to no evidence from an independent source with comparable

probative force on this issue.

In any case, this Court often grants certiorari without satisfying itself that an

error would be harmful. That is why its ordinary practice is to reach a merits question

presented and remand to determine questions of harmlessness.61

58 (Brief in Opposition, at 20).

59 (ROA.1134-35).

60 United States v. Hill, 80 F.4th 595, 604 (5th Cir. 2023).

61 See Dawson v. Delaware, 503 U.S. 159, 169 (1992); Gilbert v. California, 388 U.S. 263, 272 (1967); Coleman

v. Alabama, 399 U.S. 1, 11 (1970).

15

CONCLUSION

Petitioner respectfully submits that this Court should grant certiorari to

review the judgment of the United States Court of Appeals for the Fifth Circuit.

Respectfully submitted this 9th day of September, 2024.

JASON D. HAWKINS

Federal Public Defender

Northern District of Texas

/s/ Kevin Joel Page

Kevin Joel Page

Assistant Federal Public Defender

Federal Public Defender's Office

525 S. Griffin Street, Suite 629

Dallas, Texas 75202

Telephone: (214) 767-2746

E-mail: joel_page@fd.org

Attorney for Petitioner

16