Petition for Writ of Certiorari — Restivo v. United States

i abe na

rr. aise

NO. 931630 MarR 28 199

OFFICE OF THE CLERK

In the

Supreme Court of the United States

OCTOBER TERM 1993

i ge al

4 gS Pi oo

‘ pe atk nt ee wipe le es ee

ee a ea mee a uA bs =

ANDREW V. RESTIVO, II,

Petitioner

VERSUS

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Robert Glass

Counsel of Record

John Wilson Reed

Lane R. Trippe

GLASS & REED

338 Lafayette Street

New Orleans, LA 70130

Tel.: 504/581-9065

Attorneys for Petitioner

ENTS ARRURETET OT RS ET SE

A B Letter Service, Inc., 327 Chartres Si., New Orleans, La. (504) 581-5555

i

QUESTION PRESENTED

Is the Confrontation Clause of thb=

Sixth Amendment violated when a defendant is

prohibited from going beyond the written

particulars of a government-drafted plea

agreement in cross-examining a witness

concerning his motivations for, and expecta-

tions from, the plea agreement; and, in

particular, is prohibited from exposing the

witness’ perception that his cooperation

will cause the government not to prosecute

his children for their involvement in his

crimes; is prohibited from eliciting the

witness’ knowledge that, by his plea, he has

reduced his sentencing exposure by tens of

years; and is prohibited from exploring the

witness’ awareness that the government’s

sentencing assistance may be governed by

its satisfaction with the substance of his

testimony?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED. . «. « « « « « i

TABLE OF AUTHORITIES. . .. +6 « iv

OPINIONS BELOW. . . «© «© «© «© « «© « 1

JURISDICTION. . « «© «© « «© «© © @ « 1

CONSTITUTIONAL PROVISION INVOLVED 2

SENTENCING GUIDELINES SECTION

SKl1.1. een te te he Oa oy cae war ae 2

STATEMENT OF THE CASE ...«+« « 2

A. Course of proceedings and

disposition below. ..... 4

B. Statement of the facts... 4

Cc. The attempted cross-examina-

tion of Delchamps for bias . 9

REASONS FOR GRANTING THE WRIT

A.

The Fifth Circuit’s decision

in this case conflicts with

decisions in the Eighth, Ninth

and Eleventh Circuits.

1.

The Fifth Circuit’s con-

flict with the Eleventh

CESSES Sb en se ee ae

The Fifth Circuit’s con-

flict with the Eighth

CASES 6 i ee ee

17

25

3.

Circuit .

4.

flicts.

B.

curtailed .

Cc.

Amendment :

the defendant .

CONCLUSION .

iii

Summary of the con-

The Fifth Circuit overrode

the core value of the Sixth

confrontation by

The Fifth Circuit’s decision

flouts this Court’s instruc-

tions, as set forth in

Delaware v. Van Arsdall, on

how to evaluate Confrontation

Clause claims where cross-

examination for bias has been

The Fifth Circuit’s con-

flict with the Ninth

29

35

36

47

51

iv

TABLE OF AUTHORITIES

Cases: Page

Alford v. United States, 282

Goh Geet taeeal «0. 6-4 Sua 38

Davis v. Alaska, 415 U.S. 308

(1974). o > . . > > > > . > * 41

Delaware v. Van Arsdall,

475 U.S. 673 (1986) . « « « « 3e 4a¢ a0°

39, 41-42,

44, 46

Gordon v. United States,

344 U.S. 414 (1953) . « « « « 21, 34

Kentucky v. Stincer, 482 U.S.

730 (1987). * * > ° . © . 7 50

Mattox v. United States,

156 U.S. 237 (1895) . « «© « » 50

Olden v. Kentucky, 488 U.S.

Bat SES POLs 6 a a8 eee 08se 52

Pennsylvania v. Ritchie,

480 U.S. 39 (1987). .~. « «© « « 45

United States v. Lankford,

955 F.2d 1545 (llth Cir.

1992) . . . . . + . . . . . . 21-25

United States v. Lynn, 856

United States v. Mayans,

F.3d _—, - 1994 U.S. App.

LEXIS 2013 (No. 92-50530)

(Ste Cir. 279/96) « sc ww ss 32-33

Vv

United States v. Restivo,

8 F.3d 274 (Sth Cir. 1973). . 1, 18-19,

United States v. Roan Eagle,

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

cert. denied sub nom. Roan

Eagle v. United States, 490

U.S. 1028 (1989). 28 ht oe 26-29

Statutes and rules:

Amend. VI, U.S. Const. . eal 2, 49

§ 5K1.1, U.S. Sentencing

aBeNs 6 4 & eH 6 6 3 2

8 U8, Sia. se

1

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1993

ANDREW V. RESTIVO, II,

Petitioner

VERSUS

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OPINIONS BELOW

The United States Court of Appeals for

the Fifth Circuit issued its opinion affirm-

ing petitioner’s conviction on November 22,

1993. The Fifth Circuit’s opinion is re-

ported at 8 F.3d 274 (Appendix A). Panel

rehearing and a suggestion for rehearing en

banc were both denied on December 27, 1993,

and this also is reported at 8 F.3d 274

(Appendix B).

JURISDICTION

Jurisdiction to review by certiorari

the decision of a federal court of appeals

2

in a criminal case is established in Section

1254(a) of Title 28, United States Code.

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment provides in perti-

nent part:

In all criminal prosecutions, the

accused shall enjoy the right...

to be confronted with the wit-

nesses against him;....

SENTENCING GUIDELINES SECTION 5K1.1

Section 5Kl.1 of the United States

Sentencing Guidelines provides in pertinent

part:

—.

§5Kl.1. Substantial Assistance

to Authorities

Upon motion of the government

stating that the defendant has

provided substantial assistance

in the investigation or prosecu-

tion of another person who has

committed an offense, the court

may depart from the guide-

lines.***

STATEMENT OF THE CASE

This case involves the cross-examina-

tion for bias of a government witness who

had entered into a written plea agreement.

3

The Fifth Circuit held that a denial of

cross-examination as to the expectations and

motivations arising from the plea agreement

causes no Confrontation Clause violation so

long as the government informed the jury of

the written particulars of the plea agree-

ment. This holding brings the Fifth Circuit

into direct conflict with other courts of

appeals. It presents an evasion of this

Court’s command in Delaware v. Van Arscall,

475 U.S. 673 (1986), that denials cf con-

frontation for bias be recognized as consti-

tutional error, subject only to harmless

error review. As a consequence, it signals

to the trial courts of the Fifth Circuit a

trivialization of the defendant’s constitu-

tional right to confront the witnesses

against him and thereby to expose the bias-

ing motivations of the witness. Certiorari

is appropriate to remedy this serious ero-

sion of the right of confrontation and its

truth-seeking function.

en ee ee eee

4

A. Course of proceedings and dispo-

sition below.

A grand jury in the Eastern District of

Louisiana indicted petitioner Andrew V.

Restivo, II for various offenses arising

during and in connection with his tenure as

president of the Schwegmann Bank & Trust

Company, a New Orleans area bank. The

charges included counts alleging conspiracy,

bank fraud, misapplication by a bank offi-

cer, money laundering, false entries in bank

documents, and false declarations before a

grand jury investigating those offenses.

The jury convicted Restivo on 11 of the

12 counts charged. The district court

sentenced him to a prison term of 100 months

followed by three years supervised release.

B. Statement of the facts.

This case involved three principal

actors: petitioner Restivo, and government

witnesses Jerry Delchamps and Lloyd Ho*fman.

Restivo, in his mid-30’s;, was the president

5

of a small New Orleans area bank, the

Schwegmann Bank & Trust Company. Jerry

Delchamps ran Dixie Lloyds, a 10/20/10

automobile liability insurer, and related

companies, one of which arranged premium

financing at the Schwegmann Bank for low-

income automobile owners. Delchamps was a

borrower from, and maintained his insurance

and premium finance company operating ac-

counts at, the Schwegmann Bank. Lloyd

Hoffman was Delchamps’ loan officer at the

Schwegmann Bank.

The banking and related crimes were of

two sorts. First, Delchamps was the recipi-

ent of three large loans from the Schwegmann

Bank which were not board-approved, although

required to be so because each exceeded

$250,000. Second, Delchamps kited funds

between his accounts at the Schwegmann Bank

and his accounts at. another New Orleans area

bank, the Bank of Louisiana; as a result of

his bogus cross-deposits, the kited loss

6

between the two banks amounted to close to

$2 million.

It was by corrupting Hoffman that

Delchamps got Hoffman to help procure the

board-unauthorized loans. Delchamps enticed

Hoffman secretly to invest $6,000 in a

Delchamps company, and obligated Hoffman

further in the venture by a $150,000 note

Hoffman signed in Delchamps’ favor. Neither

Restivo, nor the Schweymann Bank Board, nor

anyone else at the Schwegmann Bank knew of

Hoffman’s compromised and divided loyalties.

Delchamps was able to begin and con-

tinue the check kite between his accounts at

the Schwegmann Bank and at the Bank of

Louisiana by corrupting officers of the Bank

of Louisiana. When these officers discov-

ered that Delchamps was writing checks from

his Bank of Louisiana accounts against

insufficient funds, Delchamps bribed them

with free insurance to permit him to contin-

ue the practice. Because of the uncertain-

7

ties of Delchamps’ financial condition,

Restivo instructed Schwegmann Bank officials

to verify daily over the telephone with the

Bank of Louisiana that there were sufficient

funds at the Bank of Louisiana to cover

Delchamps’ deposits of Bank of Louisiana

checks. The corrupt Bank of Louisiana

officials falsely verified each day that the

Bank of Louisiana checks were good. Delcha-

mps did not share knowledge of his check

kiting scheme with anyone at the Schwegmann

Bank, not even his corrupted loan officer,

Hoffman.

The government did not allege, and

there was no evidence, that Delchamps paid

off Restivo, or in any other way financially

benefitted Restivo, in order to obtain the

loans from the Schwegmann Bank without board

approval or to permit the check kite to

continue. The government’s theory of bene-

fit was that this young bank president

wanted his young bank to prosper, and there-

8

fore he wanted a major customer, Delchamps,

to stay afloat.

Restivo testified. He denied any

knowing and intentional participation in

Delchamps’ obtaining loans that Restivo

believed to be unauthorized,’ and he denied

any knowing or intentional assistance or

allowance of the check kite.

The government’s principal witnesses

against Restivo were Delchamps and Hoffman.

To convict Restivo on the allegations of

wrongdoing involving the check kite, the

jury had to believe Delchamps over Restivo.

To convict Restivo on the allegations of

wrongdoing involving the board-unauthorized

loans, the jury had to believe Delchamps and

Hoffman over Restivo.

*There were three such loans. Restivo

testified that he did not participate in

arranging the first two loans at all, and

believed that he had continuing authoriza-

tion for the third loan which he did ar-

range.

9

Cc. The attempted cross-examination

Both Delchamps and Hoffman had pled

guilty by the time of Restivo’s trial. They

did so under agreements to testify against

Restivo in exchange for significantly re-

duced charges Carrying greatly reduced

maximum penalties. In both cases, the

government confected written plea bargain

letters. Delchamps’ letter said he had pled

to two five year counts, Hoffman’s, that he

had pled to one five year count. In these

letters, the government noted the availabil-

ity of a substantial assistance motion under

Section 5Kl1.1 of the United States Sentenc-

ing Guidelines to enable the defendant to

receive a sentence below guidelines, but

asserted that no promise was made, and that

the government retained unfettered discre-

tion to make the motion or not.’ The plea

"After Restivo’s trial, the government

filed Section 5Kl.1 motions for both

Delchamps and Hoffman thereby enabling an 18

10

letters also state that the defendant

"agrees" that he will “be completely truth-

ful," and they repeat several times the

defendant’s obligation, under his part of

the bargain, to tell the truth.’

The government called Delchamps to the

witness stand before Hoffman. As a trial

stratagem, it fronted Delchamps’ plea bar-

gain during his direct examination, but

elicited only limited information about the

plea bargain.

The government had Delchamps ady'* th?

two count plea, but not that the plea bar-

gain thereby limited his sentencing exposure

to 10 years. Asked to state his understand-

ing of the plea agreement, Delchamps testi-

fied that he was to tell the truth. He

further stated his belief that if he told

month sentence for Delchamps and probation

for Hoffman.

*The Delchamps plea letter is reprinted

in Appendix E.

11

the truth, the government “would write a

letter for me... to the Judge and ask for a

lighter sentence." The government let pass

without comment or correction this apparent

contradiction to the unfettered discretion

purportedly reserved to the government in

the plea letter, and asked Delchamps no

questions about the Section 5Kl.1 motion.

The government thereafter introduced the

plea letter. Delchamps stated that there

were no other agreements and no promises.‘

On cross-examination, defense counsel

intended to confront Delchamps on unstated

consequences of his plea bargain, on the

meaning and impact of certain of the written

terms of the government-drafted plea letter,

and on certain of Delchamps’ statements on

the direct examination. The combination of

‘The government ’s direct examination of

Delchamps on his plea bargain is reprinted

in Appendix C; the cross-examination of

Delchamps on the plea bargain is reprinted

in Appendix D.

> eee

12

government objections and court rulings,

however, defeated these objectives. By the

conclusion of the cross-examination of

Delchamps on his plea bargain, the jury had

heard little more than what the government

had already presented on its direct examina-

tion.

Defense counsel first attempted to

explore the limits on sentencing exposure

Delchamps had achieved by agreeing to testi-

fy against Restivo. The court, however,

completely prohibited cross-examination on

any aspect of sentencing, including sentenc-

ing exposure, i.e., the "cap" achieved by

negotiating the plea to the two five-year

counts. All the defense was permitted to

elicit from Delchamps was that he knew that,

but for the plea bargain, he could also have

been charged with money laundering, but

because of the prohibition on questions

about sentence, the jury never learned the

additional fact that alone gives consequence

13

to the disclosure: that a single count of

money laundering carries the potential for

an additional 20 year sentence.°®

Defense counsel next turned to

Delchamps’ Section 5K1.1 expectations. The

court again permitted the government’s

version from its direct examination to go to

the jury untested by meaningful cross-exami-

nation. To the suggestion that he would get

the coveted Section 5K1l.1 letter only if the

government thought he earned it, Delchamps

reiterated his statement on direct, that he

would get it if he told the truth. when

defense counsel pressed Delchamps to concede

that the government would at least have to

buy his testimony as the truth, the govern-

ment objected that cross-examination on the

‘The government conceded in its brief

in the Fifth Circuit that Restivo had the

right to cross-examine Delchamps on his

potential sentence, and that the govern-

ment’s objection -- which provoked the

court’s denial of cross-examination on the

subject -- was erroneous.

14

subject should be limited to the plea bar-

gain letter itself. Immediately thereafter,

the court intervened, led Delchamps to agree

that the plea letter was his understanding

of the agreement, and cut off all further

cross-examination on how Delchamps might be

motivated or biased by his understanding of

and his desire for the motion for sentencing

departure,*

In the last effort to reveal Delchamps’

motivation to help the government convict

Restivo, defense counsel turned to benefits

Delchamps might expect or hope from the

government that were not expressed in the

plea letter. Cross-examination on a plea

agreement perforce means not only testing

the assertions of the witness about it but

also questioning both what was included and

what was excluded. Delchamps testified on

‘ THE COURT: And that docu-

ment is in evidence. The jury

can review it.

15

his direct examination by the government

that there were no other promises or agree-

ments besides the plea letter; he did not

testify that he was without hope or expecta-

tion of additional benefits.

Counsel began this cross-examination by

getting Delchamps to acknowledge that his

daughter and son-in-law worked for Dixie

Lloyds, wrote many of its checks, and were

integrally involved in overpayments that

caused cash flow problems, and, he was about

to admit, had purchased their home with

insurance company funds. Counsel intended

to show that Delchamps could reasonably have

believed that his daughter and son-in-law

were vulnerable to prosecution, and that by

pleading guilty and agreeing to testify

against Restivo, he was protecting them from

prosecution. As counsel pointed out to the

court:

[t}hey had an interest and par-

ticipated... [Tjhey did as much

as anybody did. They’re not

15

charged. They’re not named as

targets or subjects.

The government argued that there was no

such promise in the written plea letter it

had drafted,’ and that the cross-examina-

tion went “beyond the scope" of the govern-

ment’s “direct examination." The court

accepted the government’s arguments that the

cross-examination was bound to the govern-

ment-drafted plea letter, and shut the

cross-examination down. "Stay off this."

The case went to the jury without Delchamps

ever having been confronted with this motive

to lie or exaggerate, a motive from which

the jury could have understood that he had

powerful reason to give the government what

he believed the government wanted in order

"It is not in the plea agreement.

Show me the plea agreement where

it says I will not charge his

daughter or son-in-law. Show me

where it says that.

17

to protect his family from the possibility

of prosecution.®

REASONS FOR GRANTING THE WRIT

A. The Fifth Circuit’s decision in

this case conflicts with deci-

sions in the Eighth, Ninth and

Eleventh Circuits.

1. The Fifth Circuit’s conflict

re 4

The Fifth Circuit did not dispute that

Restivo was prevented from cross-examining

Delchamps on "(3) whether Delchamps pled

guilty to spare his daughter and son-in-law

"Hoffman also made a plea bargain and

signed a government-drafted plea letter

similar to Delchamps’. But unlike

Delchamps, Hoffman was shown to be biased

from sources besides the plea bargain.

Restivo had fired him from the bank, and

Hoffman resented it; his animus towards

Restivo is patent even on the cold record.

Moreover, after Restivo fired him, Hoffman

went to work for Delchamps and a jury might

thereby have inferred a testimonial alliance

between the two government witnesses.

Because of the government objections and

court rulings during the just completed

cross-examination of Delchamps, however,

Restivo’s counsel chose not engage in the

apparently futile exercise of cross-examin-

ing Hoffman on his plea bargain and thereby

not repeat the debacle of the Delchamps

cross-examination.

om,

18

from prosecution." 8 F.3d at 278. Instead,

the court listed other facts the jury

learned about Delchamps from which the jury

could draw inferences of his bias to give

favorable testimony for the government.

"“Restivo’s counsel,"*® said the court, “was

permitted to expose" these facts:

that Delchamps entered into a

plea agreement with the govern-

ment; that Delchamps could have

been charged with the more seri-

ous offense of money laundering

if not for his plea agreement;’°

and that the issuance of the Sec-

tion 5K1l.1 letter for sentencing

*This is a mischaracterization of the

record. It was the government on its direct

examination, not Restivo’s counsel in exer-

cising the right to confront and cross-

examine, that “exposed” the most significant

of the listed facts to the jury. See the

footnotes immediately following.

In fact, the jury never learned that

money laundering was a “more serious of-

fense" because the court prohibited ques-

tions on the higher sentence for and seri-

ousness of that offense.

[Sea eS Se ne,

19

purposes was within the discre-

tion of the government.”

Id.

The court concluded that there was no Sixth

Amendment violation because, "[b]Jased on

these facts, the jury could have inferred

that Delchamps was a biased witness." Id.

The three listed facts, however, were

all facets of but one source of bias that

might motivate a witness to give falsely

helpful testimony for the government. That

source of bias was the self-interest of the

witness in minimizing his time in jail.

Delchamps wanted the lowest sentence he

could get, and he both wanted and needed the

government’s help to get it.

“The government, not Restivo’s coun-

sel, introduced the plea bargain letter that

said that the Section 5Kl.1 letter was

within the sole discretion of the govern-

ment. Delchamps contradicted this "fact,"

stating twice that he would get the Section

SK1.1 letter if he told the truth. The jury

never learned, however, what "truth"

Delchamps was speaking about.

| ote oN

20

But there was a second distinct source

of bias, one not involving Delchamps’ self-

interest in achieving the lowest possible

sentence. Delchamps could reasonably have

believed that his daughter and son-in-law

were vulnerable to prosecution for their

roles in suspect aspects of his insurance

business. He would want to protect them, if

he could, from prosecution. And he could

reasonably expect that, if he played on the

government ’s side and helped the government

in its effort to win, the government would

not go after his family. Under these cir-

cumstances, it was appropriate to pose the

question, “Would a father lie to keep his

daughter out of the penitentiary?” The jury

never learned the facts which would have

forced it to confront this question and only

then judge whether Delchamps might be false-

ly implicating Restivo in his own misdeeds

in order to save his daughter and her hus-

band from prison.

21

In overruling Restivo’s claim under the

Confrontation Clause, the Fifth Circuit

somehow conceptualized bias as a uniform

state which, once demonstrated in any way

from any source, requires no further proof,

no matter how compelling another source of

bias might be. The court rejected the

proposition argued, that the Sixth Amendment

was violated because the witness’ very

distinct and independently powerful motiva-

tion to lie or exaggerate against Restivo

was kept from the jury.”

The Eleventh Circuit has ruled to the

contrary. United States v. Lankford, 955

P.2d 1545 (lith Cir. 1992), holds that,

“Compare what Justice Jackson observed

for a unanimous Court in Gordon v. United

States, 344 U.S. 414, 423 (1953), about a

judge’s latitude to reasonably control

cross-examination:

But this principle cannot be ex-

panded to justify a curtailment

which keeps from the jury rele-

vant and important facts bearing

on the trustworthiness of crucial

testimony.

22

under the Confrontation Clause, the defen-

dant is entitled to expose facts, brought

out in cross-examination, that support each

of several distinct sources of possible bias

or motivation to fabricate in the govern-

ment’s favor.

In Lankford, the principal government

witness was impeached by proof that he had

demanded use immunity before he would testi-

fy for the government. Id. at 1549, n.9.

The jury thereby learned that the witness

had benefitted personally by agreeing to

testify for the government; he had one

source of bias: self-interest in avoiding

a possible indictment based on admissions of

criminal wrongdoing. In a totally unrelated

incident, the witness’ sons had been arrest-

ed on state charges for the sale of 20

pounds of marijuana. There had been no

explicit deal for the sons with the federal

authorities. When defense counsel attempted

to prove the sons’ arrest and how that might

23

have motivated the witness to want to help

the government, the trial court refused to

permit the impeachment. The Eleventh Cir-

cuit reversed, holding that the fact of the

sons’ state prosecution could not be kept

from the jury under the Sixth Amendment:

Notwithstanding the fact’ that

LeCroy [the prosecution witness]

had made no deal with the govern-

ment concerning a federal inves-

tigation into his sons’ marijuana

arrests, his desire to cooperate

may have in fact been motivated

by an effort to prevent such an

investigation. We cannot imagine

a much stronger motive for testi-

fying on behalf of the government

than the desire to protect one’s

children. A reasonable juror

could have concluded that

LeCroy’s testimony was the result

of his desire to protect his sons

and to obtain federal assistance

in avoiding a subsequent federal

prosecution against them. In

addition, a reasonable juror

could conclude that LeCroy might

even have hoped that’ should

things go “well” for the govern-

ment in the Lankford case, he

could later solicit help from the

federal government in his sons’

state case.

Id. at 1549 (emphasis supplied).

24

Lankford therefore holds that personal

benefits to a government witness involving

his freedom on the one hand and protection

of the witness’ family from criminal penal-

ties on the other are distinct biasing

motivations for Sixth Amendment purposes.

The Confrontation Clause of the Sixth Amend-

ment was violated because this distinct and

independently powerful motivation to lie or

exaggerate against: the defendant was kept

from the jury.”

The Fifth Circuit and Eleventh Circuit

cases are in direct conflict. The question

-- impeachment of a government witness who

receives personal benefits but who may also

“Restivo’s case was much more compel-

ling on this score than was Lankford’s.

Delchamps’ children were more directly

vulnerable to a federal prosecution than

were the witness’ sons in Lankford. The

source of vulnerability in Restivo’s case

arose out of the very same conduct that

resulted in Delchamps’ plea and testimony.

And the prosecutor responsible for

Delchamps’ indictment directly controlled

the fate of Delchamps’ children.

25

have an equally strong or stronger motiva-

tion to protect family from prosecution --

is likely to recur. It involves a "proto-

typical form of bias on the part of the

witness." Delaware v. Van Arsdall, 475 U.S.

673, 680 (1986). It is, indeed, a special

case of the broader question: whether

allowance of impeachment for one proto-

typical form of bias makes immaterial under

the Confrontation Clause proof of a second

prototypical form of bias, distinct from the

first, and independently motivating.**

ZB The Fifth Circuit’s conflict

with the Eighth Circuit.

The Fifth Circuit acknowledged that

Restivo was prevented from cross-examining

Delchamps on "(1) whether a ‘cap’ existed on

Delchamps’ sentence as a result of his plea

agreement." 8 F.3d at 278. It is undisput-

“Petitioner notes that he cited and

relied on Lankford in his original brief to

the Fifth Circuit, yet the court failed even

to mention Lankford in its opinion.

26

ed that the plea bargain created an absolute

cap of 10 years on any sentence Delchamps

could receive. But in fact, the limitation

on cross-examination was broader than that.

The government successfully objected that

sentencing was “not [a] proper topic for the

jury," thus preventing all exploration of

Delchamps’ received and hoped for benefits

for testifying helpfully against Restivo.

The Fifth Circuit, in upholding this ruling,

therefore held that the specific sentencing

goals the accomplice witness had achieved

and still hoped to achieve by his plea

bargain and testimony could be kept from the

jury. The jury’s knowledge of the mere

existence of a plea agreement to lesser

charges and of the dis«'retionary Section

5K1.1 letter were all the biasing facts the

Confrontation Clause required.

This decision cannot sit side by side

with the Eighth Circuit’s decision in United

States v. Roan Eagle, 867 F.2d 436 (8th

27

Cir.), cert. denied sub nom. Roan Eagle v.

United States, 490 U.S. 1028 (1989). In

that murder prosecution, the government

witness was a former co-defendant who had

been given a plea bargain to manslaughter,

thereby reducing her sentencing exposure

from life in prison to 10 years. The jury

learned that the witness pled to a lesser

charge, but not what that plea meant for her

hopes for freedom. The trial court prohib-

ited cross-examination of the witness that

would have exposed this strongly biasing

motivation, but the Eighth Circuit ruled

that this foreclosure violated the defen-

dant’s Sixth Amendment right to confronta-

tion.

When the stakes are so high and

the credihility of the one-time

associate-in-crime is acutely

involved, the accused is entitled

as a matter of right to effective

cross~examination. This includes

not only the specific crime to

which the co-actor is pleading

guilty, but the range of punish-

ment to which the one pleading

guilty is exposed to in contrast

\

28

to what that person knows <-- or

ought to know -- is the potential

sentence for a conviction follow-

ing a plea of not guilty.

* * *

To save herself from years up to

life, she could plead guilty and

assure a maximum of ten years.

What greater inducement or incen-

tive could there be for one con-

fronted with that prospect to

eliminate all doubts and risks by

a plea of guilty to a known less-

er offense so that such person

cculd carry out the plea agree-

ment to testify affirmatively

against the former co-defendant.

Id. at 443."

Thus, the Fifth and Eighth Circuits are

at loggerheads over the meaning of the right

to confront and cross-examine for bias an

alleged “one-time associate-in-crime" who

becomes a government witness and saves or

hopes to save years behind bars if he does

the government’s bidding. In the Eighth

*It turned out that the plea-bargained

government witness in Roan Eagle did not

give any harmful testimony. Thus, the

credibility of the witness was not in issue

and the court affirmed the conviction.

29

Circuit, such a witness as of right “would

be subject to the most vigorous attack on

credibility” based on the sentence received

for testifying for the government. Id. at

443. In the Fifth Circuit, if from any

facts “the jury could have inferred that

[the witness] was a biased witness," 8 F.3d

at 278, no cross-examination, let alone

vigorous cross-examination, need be afforded

on the years of freedom achieved or antici-

pated. The difference in the credibility

testing process required in these two cir-

cuits, both operating under the command of

the same Sixth Amendment, could not be

starker.

3. The Fifth Circuit’s conflict

with the Ninth Circuit. _

The written plea bargain stated:

- The defendant understands that

he must be completely truthful.

- The defendant also agrees to

appear before the Grand Jury or

trial Jury and to testify

truthfully.

30

- The defendant agrees that if he

is not truthful, this agreement

will be null and void and the

defendant may be prosecuted for

perjury or making false state-

ments.*®

The Fifth Circuit acknowledged that Restivo

was prevented from cross-examining Delchamps

on "(2) whether the government had to agree

that Delchamps was telling the truth before

it filed a substantial assistance letter on

his behalf." 8 F.3d at 278. On direct

examination, Delchamps testified that he

would get the Section 5Kl.1 letter if he

told the truth, but that he would violate

the plea agreement "({iJf I would lie and

wouldn’t tell the truth.”

When Restivo’s counsel, on cross-exami-

nation, attempted to probe Delchamps’ belief

of what “telling the truth" in connection

with his plea bargain meant to him -- was it

“The plea letter also stated, "The

defendant agrees neither to implicate anyone

falsely nor to exculpate or protect anyone

falsely.”

31

the government buying and accepting his

story implicating Restivo, one that he had

already successfully sold? ~- the district

court shut down the examination by referring

the jury to the plea bargain letter.

THE COURT: Is your under-

standing of the plea agreement

what was represented by the docu-

ment that you signed?

THE WITNESS: Yes, ma’am.

THE COURT: And that docu-

ment is in evidence. fhe jury

can review it.

For all intents and purposes, then, the

district court ruled that the plea bargain

letter was the best evidence of Delchamps’

beliefs and motivations about his deal. The

witness’ conception of the "truth" in his

plea agreement and who would judge it and

how and in what way that might affect his

testimony could be kept from the jury; the

meaning of truth for Delchamps was besides

the constitutional point of the Sixth Amend-

ment. The jury’s knowledge of simply the

a

32

existence of a plea agreement to lesser

charges and of the discretionary Section

5K1.1 letter were all the biasing facts the

Confrontation Clause required.

In United States v. Mayans, __ F.3d

__, 1994 U.S. App. LEXIS 2013 (No. 92-

50530)(9th Cir. 2/9/94), three alleged

buyers of drugs from the defendant testified

against him. Their written plea bargains

were presented to the jury and the jury

could therefore read the written terms of

the agreements. The Ninth Circuit opinion

does not detail the plea bargains, but

presumably the witnesses pled guilty to

lesser or fewer charges and were subject to

and motivated by the government’s power to

give or withhold the Section 5Kl.1 letter

(or the parallel, post-sentence Rule 35 (b)

motion). When defense counsel attempted to

probe the witnesses’ understanding of spe-

cific provisions of their plea agreements,

however, the trial court cut off question-

33

ing, essentially holding the plea agree-

ments, rather than what was inside and

motivating the witnesses’ minds, to be the

best evidence of the witnesses’ understand-

ing of the agreements. The Ninth Circuit

reversed.

But the understanding of all

three of the witnesses clearly

was relevant, and the district

court erred by cutting off de-

fense counsel’s cross-examination

on the grounds that it was not.

The Fifth and Ninth Circuit decisions

conflict. In the Fifth Circuit, disclosing

the fact of a plea bargain, the fact that

the plea was to lesser charges, and the fact

that the government has discretion to file

a Section 5Kl.1 letter or not, is all the

confrontation to which the Sixth Amendment

entitles a defendant. In the Ninth Circuit,

the written plea agreement is the starting

point of the cross-examination, not its end

point. What is relevant in the Ninth Cir-

cuit is what the witness understands (be-

%

?

E

:

.

‘

D,

4

A

?,

34

lieves, hopes),’’

not simply and only what

the government has written up to be viewed

by the jury.”

"Cf. Gordon v. United States, 344 U.S.

414, 422 (1953).

But the question for the jury is

what effect they think these

words had on the mind and conduct

of a prisoner whose plea of

guilty put him in large measure

in the hands of the _ speaker.

They might have regarded it as an

incentive to involve others, and

to supply a motive to [the wit-

ness’) testimony other than a

duty to recount the facts as best

he could remember then.

“The Fifth Circuit is also in apparent

conflict with the First Circuit. In United

States v. Lynn, 856 F.2d 430 (lst Cir.

1988), the government-drafted plea bargain

included a clause requiring the witness to

pass a polygraph examination. However,

defense counsel was barred from cross-exam-

ining the witness on some “inconclusive”

responses in the polygraph examination. The

written plea agreement went to the jury.

The First Circuit reversed because defense

counsel was not permitted to test the wit-

ness on this part of his written plea bar-

gain.

This particular area of Bryon’s

potential bias had not yet been

fully explored by the deferse.

While the cross-examination of

Bryon was extensive, there were

35

4. Summary of the conflicts.

In Delaware v. Van Arsdall, 475 U.S.

673 (1986), this Court instructed courts

considering a claimed Confrontation Clause

violation to focus on the witness, and then

determine if “cross-examination designed to

show a prototypical form of bias” of the

witness had been foreclosed at trial, there-

by preventing a reasonable jury from receiv-

ing "a significantly different impression of

{the witness’] credibility.” Id. at 680.

The motivation to protect family from prose-

cution by testifying favorably for the

relatively few questions concern-

ing Byron’s continuing reasons to

lie to please the government.

Defense counsel elicited the de-

tails of Bryon’s many drug smug-

gling operations and of his deal-

ings with his associates in

crime, but cross-examination on

the foreclosed topic may have

presented the only concrete exam-

ple of the hold the government

might still have had over the

witness.

Id. at 433.

36

prosecution is a prototypical form of bias;

so is saving oneself years in jail; and so

is what you feel and believe you have to say

to get the government to help you and pre-

vent the government from hurting you.

Cross-examination on these prototypical

forms of bias was foreclosed by the district

court, but the Fifth Circuit chose not to

follow Van Arsdall’s instructions. The

Fifth Circuit thereby created conflicts with

the Eighth, Ninth and Eleventh Circuits, all

of which heeded Van Arsdall’s instructions,

conflicts which the Court should resolve by

granting certiorari.

B. The Fifth Circuit's decision

flouts this Court’s instructions,

as set forth in Delaware v. Van

Arsdall, on how to evaluate Con-

frontation Clause claims where

cross-examination for bias has

been curtailed.

In Delaware v. Yan Arsdall, supra, the

witness to the homicide was impeached by

proof that he had been very drunk. The

trial court refused to permit further im-

37

peachment of the witness on the separate

fact that a minor public drunkenness charge

had been dropped after he agreed to speak

with the prosecutor. The Court found a

violation of the Confrontation Clause be-

cause the defendant had been denied even the

opportunity for cross-examining the witness

on this separate issue potentially affecting

his credibility:

[Tjhe trial court prohibited all

inquiry into the possibility that

Fleetwood would be biased as a

result of the State’s dismissal

of his pending public drunkenness

charge. By thus cutting off all

questioning about an event that

the State conceded had taken

place and that a jury might rea-

sonably have found furnished the

witness a motive for favoring the

prosecution in his testimony, the

court’s ruling violated respon-

dent’s rights secured by the Con-

frontation Clause.

Id. at 679 (emphasis as in orig-

inal). |

Here, the trial court limited cross-examina-

tion to the government-drafted plea letter

and prohibited all inquiry into the possi-

38

bility that Delchamps was biased from a

motivation to protect his daughter and son-

in-law from the possibility of prosecu-

tion.*® As in Van Arsdail, the fact that

Government counsel never once contra-

dicted defense counsel’s assertions about

the children.

They had an interest and partici-

pated... [T]hey did as much as

anybody did. They’re not

charged. They’re not named as

targets or subjects.

And the preliminary questions of defense

counsel revealing the involvement of

Delchamps’ children in questionable aspects

of his insurance business gave more than

ample reason to believe that the cross-

examination would be successful -- whether

Delchamps admitted that he was so motivated

or not. But there is no requirement that

the cross-examiner be able to demonstrate in

advance that he will succeed.

To say that prejudice can be es-

tablished only by showing that

the cross-examination, if pur-

sued, would necessarily have

brought out facts tending to dis-

credit the testimony in chief, is

to deny a substantial right and

withdraw one of the safeguards

essential to a fair trial.

Alford v. United States, 282 U.S.

687, 692 (1931).

39

the jury learned of other impeaching facts

could not justify a total bar of the oppor-

tunity for cross-examination on this dis-

tinct source of potential bias.

Under Van Arsdall, the Fifth Circuit

was required to determine whether "{a}

reasonable jury might have received a sig-

nificantly different impression of [the

witness’] credibility had respondent’s

counsel been permitted to pursue his pro-

posed line of cross-examination." Id. at

680. That is because the Confrontation

Clause demands the opportunity for effective

confrontation of the witness.

{[Tj)he focus of the Confrontation

Clause is on individual witness-

es. Accordingly, the focus of

the prejudice inquiry in deter-

mining whether the confrontation

right has been violated must be

on the particular witness, not on

the outcome of the entire trial.

Id. at 680.

The Fifth Circuit should therefore have

focused on Delchamps to judge whether or not

40

the jury, hearing that Delchamps might

believe he was protecting his family by

testifying for the government, could get a

significantly different impression of him

than it got from his distinct and self-

centered interest in keeping his sentence

low.

The potentially biasing fact in Van

Arsdall was the prosecutor’s dismissal of a

minor public drunkenness charge. The Court

concluded that if the jury had known of this

fact, its impression of the witness would

have been significantly different.

Restivo’s case that the Confrontation Clause

was violated is inherently more persuasive.

The powerful motive to lie to protect a

child from a felony prosecution can hardly

be compared to the temptation to lie to get

out of a misdemeanor charge of public drunk-

41

enness.*° If the Fifth Circuit had abided

by Van Arsdall’s rules, it could not have

avoided finding a violation of the Confron-

tation Clause.

The Fifth Circuit violated Van

Arsdall’s rules, and it did so flagrantly.

It itemized the foreclosed lines of cross-

examination. But it refused to determine if

any one of those lines (or all of them

together) could have given the jury a sig-

nificantly different view of Delchamps’

credibility. It made no judgment on whether E

the district court had erroneously prohibit- i

*°See also Davis v. Alaska, 415 U.S.

308 (1974). There, the state’s witness

admitted that it “came across [his] mind"

that “the police might somehow think that

{he} had something to do with" the burglary,

id. at 313, a demonstration of some poten-

tial for bias. But that did not satisfy the

Sixth Amendment’s demand that the jury also :

know that the witness was on juvenile proba- ;

tion for burglary, because from that fact,

the jury could have inferred more concretely

that the witness felt vulnerable to police

pressure and that he might be considered a

suspect if he did not lay off suspicion on

someone else. Id. at 318.

_ + ee a he Ni. ke

42

ed proper questions. It gave no guida © to

district courts in the Fifth Circuit on what

cross-examination the Confrontation Clause

requires. Instead it jumped to other facts.

From these other facts, it said, the jury

might have inferred that Delchamps was a

biased witness. It concluded that there was

no Sixth Amendment violation without ever

having decided whether Restivo was "prohib-

ited from engaging in otherwise appropriate

cross-examination designed to show a proto-

typical form of bias on the part of the

witness." Van Arsdall, 475 U.S. at 680.

What the Fifth Circuit did is precisely

what Van Arsdall prohibits. The Fifth

Circuit engaged in a kind of outcome-deter-

minative analysis for Confrontation Clause

claims that the Court explicitly reject-

ed.** Without judging whether there had

been a denial of confrontation, it concluded

See 475 U.S. at 679-80; 684-86 (con-

curring opinion of Justice White).

43

that there could be no error because “the

jury could have inferred that Delchamps was

a biased witness.” 8 F.3d at 278. By doing

so, it not only avoided honoring Confronta-

tion Clause values. By failing to acknowl-

edge that proper lines of cross-examination

were foreclosed, it avoided even the fair

and diligent scrutiny that constitutional

harmless error analysis demands.”

“If the Fifth Circuit had conducted a

fair and diligent analysis for harmless

error, it would have had to acknowledge

Delchamps’ importance to the government’s

case. On the check kite and money launder-

ing counts, it was only Delchamps’ word that

Restivo had to know laid against Restivo’s

denials. Delchamps testified that he never

told Restivo explicitly that he was kiting

checks. There simply was no direct evidence

of Restivo’s knowledge and intent. Absent

Delchamps’ testimony, none of the govern-

ment’s purported corroborating evidence was

sufficient to support a conviction.

On the counts involving the loans, Delchamps

was aligned with Hoffman against Restivo.

However, there was little else to corrobo-

rate their word that Restivo had knowingly

and intentionally participated in issuing

loans that he believed required board ap-

proval. If Delchamps had been successfully

impeached and discredited, the jury would

have had to choose, one on one, between

Pe SST OT OO Oe Es SP ae See Se eee ee eee” | NT

44

Van Arsdall imposed a regime of honesty

in analyzing allegations that proper cross-

examination was foreclosed. And for good

reason. The Confrontation Clause promotes

accuracy in fact finding. Violations of the

Confrontation Clause should therefore be

discouraged because they lead to inaccuracy

in fact finding. Such violations should not

Restivo and Hoffman. At trial, Hoffman

displayed an animus towards Restivo deriving

from Restivo’s firing him, thus revealing

his bias against Restivo. But for the

improper decimation of the cross-examination

on Delchamps’ plea bargain, there would have

been a substantial basis for attacking

Hoffman on his plea bargain. Indeed, as a

result of the deficient, counter-productive

cross-examination of Delchamps, Hoffman’s

credibility as a plea-bargained witness was

bolstered. Even without such an impeach-

ment, on Count 4, where Hoffman and

Delchamps testified that Restivo was party

to one of the three loans but where the

documents did not support Restivo’s involve-

ment, the jury acquitted.

Thus, if Delchamps had been successfully

impeached, the outcome of the trial might

well have been different. On a fair and

diligent analysis for harmless error, a

court would have had major difficulty find-

ing the denial of confrontation harmless

beyond a reasonable doubt.

45

occur in the first place and, subject to

harmless error analysis which serves other

interests, such violations should be identi-

fied forthrightly when they occur and disap-

proved so that lower courts will be deterred

from repeating the errors.”?

Decisions, like the Fifth Circuit’s in

petitioner’s case, erode these constitution-

If --

(njormally the right to con-

front one’s accusers is sat-

isfied if defense counsel

receives wide latitude at

trial to question wit-

nesses[, }

Pennsylvania v. Ritchie, 480

U.S. 39, 52 (1987);

and if the right to confrontation is --

designed to prevent improper

restrictions on the types of

questions that defense coun-

sel may ask during cross-ex-

amination,

id.

then wide latitude is to be encouraged by

the appellate courts and improper restric-

tions on cross-examination should be disap-

proved.

en ? ad i¢

eee tS 6 Oe 6.) a eaten te eee Se

46

al values. By failing to acknowledge proper

cross-examination that has been foreclosed,

the court of appeals sends the wrong signal

to district courts under the court’s tute-

lage. Government-drafted plea bargains and

Section 5Kl.1 inducements are daily grist

for cross-examination in criminal trials in

every federal district court. It is wrong,

by opinions such as this, to encourage

district courts to tell juries to accept the

government’s version of the plea agreement

and to tell counsel to move on from there.

By disregarding Van Arsdall’s injunctions,

the Fifth Circuit has disserved the Confron-

tation Clause.

The Court should grant certiorari to

preserve, invigorate, and enforce the prin-

ciples on which Van Arsdall is based.

47

Cc. The Fifth Circuit overrode the

core value of the Sixth Amend-

ment: confrontation by the de-

fendant.

The Fifth Circuit concluded that there

was enough information from which "the jury

could have inferred that Delchamps was a

biased witness." It based its conclusion on

the following facts:

[a] that Delchamps entered into a

plea agreement with the govern-

ment; [b}) that Delchamps could

have been charged with the more

serious offense of money launder-

ing if not for his plea agree-

ment; and [c] that the issuance

of the §5K1.1 letter for sentenc-

ing purposes was within the dis-

cretion of the government.

The court then states that "“Restivo’s coun-

sel was permitted to expose" these facts to

the jury.

Except for one aspect of [b], however,

these facts were not “exposed” to the jury

on cross~-examination by Restivo’s counsel;

they were elicited by the government. It

was the government on its direct examination

that introduced to the jury the plea bargain

48

and the government’s formulation of how

Delchamps could get the Section 5K1.1 let-

ter.**

It is surely apparent that the govern-

ment did not intend that, upon its eliciting

these facts, the jury would find Delchamps

biased, turn away from him and discount his

testimony. To the contrary, the government

brought out these facts in order to advance

its case; to preempt and blunt defendant’s

attack on Delchamps’ credibility; and to

minimize any alleged biasing impact of the

plea bargain.

**As to the second of the facts, [b],

it is true that it was Restivo’s counsel who

exposed for the first time on cross-examina-

tion Deichamps’ knowledge that he could have

been charged with money laundering if not

for his plea agreement. But it is not true

that the jury learned, from the defense or

from anyone, that money laundering was a

“more serious” charge, because the court

barred Restivo’s counsel from exposing

anything about sentences and sentence expo-

sure. The money laundering information came

to the jury devoid of its significance for

Delchamps’ sentencing prospects.

49

On cGross-examination, however, the

court barred Restivo’s counsel from probing

these matters significantly beyond the terms

of the government-drafted plea ietter.

Instead of hearing what the plea bargain

truly meant to someone motivated to stay in

the government’s good graces; instead of

learning about the power of that arrangement

to tempt a witness to exaggerate or lie;

instead of understanding that the witness

might have hopes and expectations to protect

his family, although not promised in the

plea letter; the jury learned nothing but

the trivialization of the distorting effect

of the plea bargain that the government

wanted it to hear.

The Sixth Amendment is a defendant’s

right. “In all criminal prosecutions, the

accused shall enjoy the right... to be

confronted with the witnesses against him.”

The defendant ’s right under the Sixth Amend-

ment is an adversarial right that serves an

>

50

adversarial value and it cannot be satisfied

by the government ’s elicitation of facts any

more than ex parte affidavits or depositions

could satisfy that core Sixth Amendment

value. Mattox v. United States, 156 U.S.

237, 243 (1895). Without seeing and hearing

a witness react to the challenge of the

cross-examiner, there is no confrontation,

there is no “testing... and sifting of the

conscience of the witness.” Id.

The government cannot be trusted to

confront its own witnesses. Adversarial

"“cross-examination... is critical for ensur-

ing the integrity of the fact-finding pro-

cess." Kentucky v. Stincer, 482 U.S. 730,

736 (1987). That was a decision made by the

framers of the Constitution. The Fifth

Circuit’s decision cannot stand side by side

with the Constitution.

Certiorari should be granted to rein-

state in the courts of the Fifth Circuit the

principle that the government’s introduction

aes ee ee a ee eg eee fe eae — = Dinh bi Ras

51

of the plea bargain it drafted and entered

into with its witness is not confrontation

under the Sixth Amendment.

CONCLUSION

The Fifth Circuit has not abided by

this Court’s rules for analyzing claimed

violations of the Confrontation Clause. As

a consequence, it will not acknowledge when

district courts within its purview unconsti-

tutionally foreclose cross-examination on

prototypical forms of bias, and so will not

encourage its district courts to correct

their erroneous views. Its opinion instead

encourages them to persist in denying con-

frontation rights. As a further conse~

quence, the Fifth Circuit has created con-

flicts with other circuits that honestly

scrutinize violations of the Confrontation

Clause in accordance with this Court’s

rules. The Fifth Circuit has also confused

the government.’s presentation of facts that

might be perceived as biasing with the

52

defendant’s right to confront the govern-

ment’s version of those facts and cross-

examine on their potential for distorting a

witness’ testimony.

Certiorari should be granted to enforce

this Court’s rules in Confrontation Clause

cases, to resolve the conflicts among the

circuits that the Fifth Circuit’s violation

of the rules has occasioned, and to certify

that confrontation is a defendant’s right

that is not satisfied by the government

presenting its version of a plea bargain’s

implications. The Court should then declare

that petitioner’s confrontation rights were

violated. It may then remand for harmless

error analysis or, instead, make the judg-

ment itself that the confrontation viola-

tions were not harmless beyond a reasonable

doubt. See Olden v. Kentucky, 488 U.S. 227

(1988).

March 1994

53

Respectfully submitted,

Robert Glass

Counsel of Record

John Wilson Reed

Lane R. Trippe

GLASS & REED

338 Lafayette Street

New Orleans, LA 70130

Tel.: 504/581-9065

Attorneys for Petitioner