Reply Brief — Sean Paul Baker, Petitioner v. United States

Supreme Court briefJun 2, 2026

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No. 25-6898

SEAN PAUL BAKER, PETITIONER,

UNITED STATES OF AMERICA, RESPONDENT.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

REPLY BRIEF FOR PETITIONER

MAUREEN SCOTT FRANCO

Federal Public Defender

CARL R. HENNIES

Assistant Federal Public Defender

Counsel of Record

OFFICE OF THE FEDERAL

PUBLIC DEFENDER

WESTERN DISTRICT OF TEXAS

300 Convent Street, Suite 2300

San Antonio, Texas 78205

Carl_Hennies@fd.org

(210) 472-6700

Counsel for Petitioner

TABLE OF CONTENTS

Table of authorities .......................................................................... ii

Introduction.......................................................................................1

Argument...........................................................................................3

The government implicitly concedes that the Tenth

Circuit’s decision is wrong. ..................................................3

II. The government downplays the clear circuit split. ............7

III. The government’s vehicle objection is baseless....................8

Conclusion .........................................................................................9

Cases

TABLE OF AUTHORITIES

Crawford v. Washington,

541 U.S. 36 (2004) ......................................................................... 3

Delaware v. Van Arsdall,

475 U.S. 673 (1986) ........................................................... 4–6, 8–9

Neder v. United States,

527 U.S. 1 (1999) .......................................................................... 8

United States v. Abel,

469 U.S. 45 (1984)......................................................................... 2

United States v. Flaming,

133 F.4th 1011 (10th Cir. 2025) .................................................... 6

White v. Coplan,

399 F.3d 18 (1st Cir. 2005) ............................................................ 7

Other Authorities

Rosanna Cavallaro, Rape Shield Evidence and the Hierarchy of

Impeachment, 56 AM. CRIM. L. REV. 295, 296 (2019) ................... 2

SEAN PAUL BAKER, PETITIONER,

UNITED STATES OF AMERICA, RESPONDENT.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

REPLY BRIEF FOR PETITIONER

INTRODUCTION

The Tenth Circuit adopted a bright-line constitutional rule: the

class of cases in which cross-examination is compelled by the

Confrontation Clause is “restricted to those which demonstrate a

theory of witness bias or motive to lie.” Pet. App. 16a–17a (citation

omitted). But this hierarchy of impeachment—placing bias and

motive above other theories directly relevant to a witness’s

reliability—is inconsistent with both this Court’s precedent and the

historical background of the Confrontation Clause. After all, the

right to confrontation guarantees defendants an opportunity 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.” Davis v. Alaska, 415 U.S. 308, 318

(1974). And “the jury, as finder of fact and weigher of credibility, has

historically been entitled to assess all evidence which might bear on

the accuracy and truth of a witness’ testimony.” United States v.

Abel, 469 U.S. 45, 52 (1984) (emphasis added). The Tenth Circuit

itself acknowledged criticism that its bright-line rule “lack[s]

justification” and is “constitutionally unsupportable.” Pet. App. 19a

(citing Rosanna Cavallaro, Rape Shield Evidence and the Hierarchy

of Impeachment, 56 AM. CRIM. L. REV. 295, 296 (2019)).

For its part, the government makes no attempt to defend the

court of appeals’ misguided rule. In fact, the government seems to

concede

that

Baker’s

proposed

cross-examination

was

constitutionally protected by applying this Court’s Confrontation

Clause precedent to analyze whether the district court’s restrictions

on cross-examination were reasonable. But that analysis ignores the

question presented and engages in an inquiry the court of appeals

never undertook. The government also downplays the clear circuit

split over the scope of the Confrontation Clause and raises a baseless

vehicle objection. None of the government’s arguments present any

obstacle to this Court granting certiorari, resolving the circuit split

on this important constitutional issue, and correcting the Tenth

Circuit’s ahistorical interpretation of the Confrontation Clause.

ARGUMENT

The government implicitly concedes that the Tenth

Circuit’s decision is wrong.

The Tenth Circuit’s conclusion that the Confrontation Clause

protects only theories of impeachment demonstrating a witness’s

bias or motive to lie is wrong. See Pet. 12–16. The government does

not defend the Tenth Circuit’s holding. Rather, the government

seems to concede that Baker’s cross-examination was protected by

the Confrontation Clause and misconstrues the Tenth Circuit’s

unequivocal holding to the contrary.

1. The government does not defend the Tenth Circuit’s brightline rule that only cross-examination demonstrating bias or motive

to lie is constitutionally compelled. See Pet. App. 16a–19a. Although

this Court looks to the “historical background of the [Confrontation]

Clause to understand its meaning,” Crawford v. Washington, 541

U.S. 36, 43 (2004), the government cites no historical tradition

imposing a strict hierarchy of impeachment that places bias and

motive above other evidence that bears on the accuracy and truth of

a witness’s testimony.

And the government’s argument on the merits implicitly

concedes that the Tenth Circuit was wrong to hold that Baker’s

proposed cross-examination was not protected by the Confrontation

Clause. The government argues that the “district court’s limitation

on cross-examination fell within its ‘wide latitude … to impose

reasonable limits on such cross-examination.’” Opp. 11 (quoting

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986)). But that is the

test for whether limitations on cross-examination conform with the

Confrontation Clause. See Van Arsdall, 475 U.S. at 679 (“[T]rial

judges retain wide latitude insofar as the Confrontation Clause is

concerned to impose reasonable limits on such cross-examination.”).

The Tenth Circuit, by contrast, held that Baker’s proposed crossexamination about the YouTube videos was not even protected by the

Confrontation Clause because it did not have “constitutional status.”

Pet. App. 16a–19a. So the court never undertook the fact-intensive

inquiry about whether the district court’s restriction on crossexamination was reasonable “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.” See Van Arsdall, 475 U.S. at 679. There is no reason for

this Court to undertake it in the first instance, and it need not do so

to reach the question presented.

In any event, the government’s argument that the restriction on

cross-examination was reasonable is wrong. A trial court violates

the Confrontation Clause when it “cut[s] off all questioning” about

a topic touching on a witness’s credibility. Id. (emphasis added).

That is exactly what happened here. The district court prohibited

any inquiry into D.P.’s ability to craft detailed fictional stories

about sex. That Baker was allowed to attack D.P.’s credibility in

other ways (see Opp. 12–13) did not show that she had made up

fictional stories about sex. And the government’s claim (Opp. 13)

that Baker “used cross-examination to establish [D.P.’s] alleged

‘propensity to sexual fantasy’” is unsupported. For example, while

Baker asked D.P. about writing “sexual content into a journal,” D.P.

responded, “No.” C.A. R3.141. Cross-examination about the videos

was the only way for Baker to rebut the government’s repeated

arguments to the jury that it was implausible that D.P. could have

“manufactured,” “crafted,” “concocted,” “invented,” or “made up”

detailed fictional stories about sex. See C.A. R3.449, 497, 498, 500.

So a “reasonable jury might have received a significantly different

impression of [D.P.’s] credibility had [Baker’s] counsel been

permitted to pursue his proposed line of cross-examination.” 1 See

Van Arsdall, 475 U.S. at 680.

In short, the government’s failure to either grapple with the

question presented or defend the Tenth Circuit’s ahistorical

constitutional rule shows that this Court’s review is warranted.

2. The government also suggests that there is a “tension” in the

Tenth Circuit’s caselaw because “in other cases involving

Confrontation

Clause

challenges

limitations

cross-

examination, the court of appeals has evaluated whether the

district court has imposed reasonable limits on cross-examination.”

Opp. 14–15 (citing United States v. Flaming, 133 F.4th 1011 (10th

Cir. 2025)) (cleaned up). But there is no tension. The court of appeals

correctly recognizes that even when cross-examination falls within

the scope of the Confrontation Clause, trial courts can “impose

reasonable limits on such cross-examination.” Flaming, 133 F.4th

at 1027 (quoting Van Arsdall, 465 U.S. at 679). Here, however, the

court of appeals found that cross-examination about the videos was

outside the scope of the Confrontation Clause. See Pet. App. 16a–

1 The government suggests (Opp. 13) that introducing the videos would

have been “detrimental” to Baker by “allow[ing] the government to argue

that any similarities between the videos and [D.P.’s] later sexual-abuse

allegations indicated that petitioner’s sexual abuse of [D.P.] over the course

of years had informed her storytelling.” But jurors are the “sole triers of

fact and credibility,” so it is up to the jury to resolve conflicting inferences

“relating to the reliability of the witness.” Davis, 415 U.S. at 318

19a. So the court had no occasion to consider whether the district

court’s limits on cross-examination were reasonable. See supra 4.

Thus, there is no “tension” in the Tenth Circuit’s decisions that

it needs to “reconcile.” Contra Opp. 15–16. But there is a direct

conflict between the bright-line rule that the Tenth Circuit adopted

below and this Court’s precedent requiring a case-by-case analysis.

See Pet. 13–14.

II.

The government downplays the clear circuit split.

The courts of appeals are divided over the scope of the

Confrontation Clause. Several circuits have joined the Tenth Circuit

in imposing a strict hierarchy of impeachment, while others have

rejected a bright-line rule for a case-by-case analysis. See Pet. 10–

12. The government does not seriously dispute the split but instead

raises hypertechnical factual distinctions between this case and

cases from other circuits. See Opp. 16–18. But the specific facts of

those cases are irrelevant because those courts correctly recognize

that the Confrontation Clause calls not for bright-line rules but for

a “balancing of interests depending on the circumstances of the

case.” See, e.g., White v. Coplan, 399 F.3d 18, 24 (1st Cir. 2005). This

split over whether the Confrontation Clause protects only theories

of bias and motive or instead calls for a more nuanced balancing test

warrants this Court’s review.

III.

The government’s vehicle objection is baseless.

This is an ideal vehicle for addressing the question presented.

The government cannot dispute that Baker raised his Sixth

Amendment argument at every level and that the district court and

the court of appeals each squarely addressed that issue on the

merits. See Pet. 17–18. And the government never claims that any

of its arguments would prevent this Court from reaching the merits

of the purely legal question presented. Still, the government claims

(Opp. 18–19) that this case would be a poor vehicle for considering

the question presented, arguing that any Confrontation Clause

violation was harmless. That argument is both irrelevant and

wrong on the facts.

1. The government’s harmless-error argument is no obstacle to

this Court’s review. This Court routinely resolves important

substantive issues and leaves any determination of harmless error

for the lower courts to make in the first instance on remand. See,

e.g., Van Arsdall, 475 U.S. at 684 (resolving question presented

about Confrontation Clause and remanding for harmless-error

analysis). Indeed, that is the Court’s “normal practice where the

court below has not passed on the harmlessness of any error.” Neder

v. United States, 527 U.S. 1, 25 (1999). Here, the court of appeals

did not address the government’s harmless-error argument. So the

mere possibility of harmless error—which no court has yet

examined—does not justify denying review of an important,

properly preserved constitutional question.

2. In any event, the Confrontation Clause violation was not

harmless. The government bears the burden to show that the error

was “harmless beyond a reasonable doubt.” Van Arsdall, 475 U.S.

at 684. It cannot do so here. This case turned on D.P.’s credibility,

and the government’s central theory at trial was that it was

implausible that she could have “manufactured,” “crafted,”

“concocted,” “invented,” or “made up” detailed fictional stories about

sex. See C.A. R3.449, 497, 498, 500. Excluding the videos harmed

Baker by depriving him of critical cross-examination directly

rebutting that theory. See supra 4–6.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.