Petition for Writ of Certiorari — Smith v. United States

Supreme Court, U.S.

” rece

No. 10- 19-18 JUN 28 2010

IN THE

Supreme Court of the Ynited States

WEBSTER M. SMITH,

Petitioner,

Vv.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

PETITION FOR A WRIT OF CERTIORARI

DANIEL S. VOLCHOK

Counsel of Record

SETH P. WAXMAN

A. STEPHEN HUT, JR.

EDWARD C. DUMONT

WILMER CUTLER PICKERING

HALE AND DORR LLP

1876 Pennsylvania Avenue N.W.

Washington, D.C. 20006

(202) 663-6000

danije).volchok@wilmerhale.com

OFFICE OF THE CLERK

QUESTION PRESENTED

When a trial judge’s restriction on the cross-

examination of a prosecution witness is challenged on

appeal as a violation of the Confrontation Clause, is the

standard of review de novo, as five circuits have held,

or abuse of discretion, as six other circuits (and the

court of appeals here) have concluded?

(1)

TABLE OF CONTENTS

Page

QUESTION PRESENTED............scssssccvesssesscssoroesssceseeeors i

TAB OF AU IEE Bene wisciseresavsininnsrisncnnrnivernnnnie V

PTE Ete ET tacssicenesssererieinnnnrssneisanenisomieinainaisis ]

FEE sittin cerninnsissieanbiassingimniananiens 2

CONSTITUTIONAL PROVISION INVOLVED.......... 2

BE Ae CITES cciisinss neces nein 2

REASONS FOR GRANTING THE PETITION........11

I. CAAF’S STANDARD-OF-REVIEW HOLDING

IMPLICATES AN ESTABLISHED CIRCUIT CON.

FLICT ON AN IMPORTANT AND RECURRING

QUESTION OF FEDERAL LAW....sssssesssscscsssssenesessnees 12

A. The Courts Of Appeals Are Deeply Di-

vided Over What Standard Of Review Ap-

plies To Confrontation Clause Claims Like

BP, Se eh cesninacnsieciascinaiciniibapsiritiessaninamdeennbiewis 12

B. The Question Presented Is Recurring And

Important, And This Case Is A Good Vehi-

COS FOF CII TE or cceetsscosnsvssvcsseiccssesnnvsriovtenesesens 14

II]. CAAF’S STANDARD-OF-REVIEW HOLDING IS

i 16

A. Under This Court’s Precedent, Mixed

Questions Of Law And Fact Are Reviewed

De Novo When Constitutional Rights Are

EINE cc vncccconiahaibisteaimamabidiiiciuds 17

B. The Cases Relied On By Courts That Em-

ploy Abuse-Of-Discretion Review Do Not

Support That Approach .u.......csccsscsesscseseseersees 22

CAI Ais On icsnuribanetasiiennibinateuaaaamaank 26

iv

TABLE OF CONTENTS—Continued

Page

APPENDIX A: Opinion of the United

States Court of Appeals for the Armed

TTI iciisttaseicctnctudiaenengiicncaesieveesdnbeicbelansebitlinitlonisssndnesiatne la

APPENDIX B: Opinion of the United

States Coast Guard Court of Criminal

APPENDIX C: Order of the Military

Judge Denying Petitioner’s Motion To

Conduct the Cross-Examination at is-

SRE aera een NEEUE ore nay eI CUO nO RIB PTT 59a

APPENDIX D: Order of the Court of

Criminal Appeals Denying Reconsid-

nce cheesinil 65a

Vv

TABLE OF AUTHORITIES

CASES

Page(s)

Alford vy. United States, 282 U.S. 687 (1931).......0. 24, 25

Arizona v. Fulminante, 499 U.S. 279 (1991)......ccscsee 18

Bose Corp. v. Consumers Union of United

States, Inc., 466 U.S. 485 (1984) oe ceeeoees 19, 20

Brewer v. Williams, 480 U.S. 887 (1977).......ccsccseseeees 19

Brinegar v. United States, 338 U.S. 160

6 RE SRE Se eee eae ne sstiacudecuilonmian 20

Browning-Ferris Industries of Vermont,

Inc. v. Kelco Disposal, Inc., 492 U.S.

REE eee arnt 22

California v. Green, 399 U.S. 149 (1970)... ec eeeeeeeees 21

Cooper Industries, Inc. v. Leatherman Tool

Group, Inc., 682 U.S. 424 (2001) 0... eceeesenees 20, 22

Cooter & Gell v. Hartmarz Corp., 496 U.S.

Rae IE ITE er OO TE: 18

Daubert v. Merrell Dow Pharmaceuticals,

FON Te 5 as ee Wieichceitsinibietinsiinreninniiencinnsitin 24

Davis v, Alaska, 415 U.S. 308 (1974) 0... cesses 10, 21, 25

Delaware vy. Van Arsdall, 475 U.S. 678

SR scciscrncsnscipsceiteieiidtlat eatascigeebia teaite ied 10, 22, 23

Derrick v. Peterson, 924 F.2d 813 (9th Cir.

SID caiasabncsisieideniainrinicsaiaieasn aad tea a 19

vi

TABLE OF AUTHORITIES—Continued

Page(s)

General Electric Co. v. Joiner, 522 U.S. 136

ES UT RE PC us 23, 24

Glasser v. United States, 315 U.S. 60 (1942)........... 25, 26

Harte-Hanks Communications, Inc. Vv.

Connaughton, 491 U.S. 657 (1989) ......ccceeeeseeeneeees 19

Ker v. California, 374 U.S. 23 (1963)......ecesseesseesseseersees 18

Kirby v. United States, 174 U.S. 47 (1899)........ccccsecsens 21

Lilly v. Virginta, 527 U.S. 116 (1999)... eee 17, 18, 19

McNary v. Haitian Refugee Center, Inc.,

a sesnvenivnnnainbinibs 21

Miller v. Fenton, 474 U.S. 104 (1985)... ceescesenes 18, 20

Miranda v. Arizona, 384 U.S. 436 (1966)... 18

News-Press v. United States Department of

Homeland Security, 489 F.8d 1173

i ssianiiniomasveaens 15

Old Chief v. United States, 519 U.S. 172

a aicuiabiaacis 24

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

et oe aminieiiibonnenin 8,10

Ornelas vy. United States, 517 U.S. 690

RCRA ei ene ee FO 17, 18, 19, 20

Parker v. Levy, 417 U.S. 133 (1974) ...cccsesssecssereseeeseeeeree 16

Pierce v. Underwood, 487 U.S. 552 (1988)... 18

Potnter v. Texas, 380 U.S. 400 (1965) .......cececeeeeeereneens 2]

Pullman-Standard vy. Swint, 456 U.S. 273

(1982)....... A ES pe OER Ne a OR Ro 17,18

vil

TABLE OF AUTHORITIES—Continued

Page(s)

Salve Regina College v. Russell, 499 U.S.

Se ED eiseseiSiadehvencansanseaaindhsenedbbbidighdamiatovbiuns 15, 18

Smith v. [llinois, 390 U.S. 129 (1968) ...scccerseseserseneee 25

Spring Co. v. Edgar, 99 U.S. 645 (1879)....scsesseresessers 24

Strickland v. Washington, 466 U.S. 668

SEITE sosicssoipitanatalnanahdeicisimpibiitacaiaciaciimeiibataibnteiianiiaseetaain 18

Sumner v. Mata, 455 U.S, 691 (1982) .....sssccsrescereeeeeee 19

Thompson v. Keohane, 516 U.S. 99 (1995) ...sesrsseseseeee 18

United States v. Abel, 469 U.S. 45 (1984)... cccccenee 24

United States v. Allen, 363 F. App’x 352

a MT scaniccacsshclchasncpeeuhdedhdnasbenpiniietcnvnsioeen 14

United States v. Askanazi, 14 F. App’x 538

DT scat nc cnencsiesdaiannsseiiinnanmiaisinisibieionanaias 14

United States v. Ayala, 43 MJ. 296

ai nT TTI cscasth aa ascpagtesbbinenensiunicenetebeieinieninis 9,13

United States v. Bajakyian, 524 U.S. 321

SII isis ssinipnenniiiaiadinsaesiasohMiapiaminsarssanasiisaiaitidathin 17, 18

United States v. Banker, 60 MJ. 216

acca scart eistensaenecagenbnandoes 6

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

NN cana aaiediataciidctarecah ideal Mb scdiiinieinsninn 12

United States v. Buenaventura, 45 M.J. 72

OE NS Bb: SOURS RR Re 77a ETE 8

United States v. Cain, 59 MJ. 285

RN I soiteniiccsisstaseierdeamamaani reset abiasasieatanseell 4

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Collier, 67 MJ. 347

a a eciedenjuisbbuailienin 8

United States v. Erving L., 147 F.3d 1240

ct cutedennie 19

United States v. Franco, 484 F.3d 347 (6th

REESE SA Reale Re cl a 13

United States v. Frederick, 182 F.3d 496

(RRR AE TC 17

United States v. Graham, 83 F.3d 1466

a essdiseuneinieann 14

United States v. Hardy, 586 F.3d 1040 (6th

a shimnntanbiion 14

United States v. Hooper, 26 C.M.R. 417

I su ivannldurmnensenn 25

United States vy. Israel, 60 MJ. 485

a iehinineinentini 8

United States v. Jass, 569 F.8d 47 (2d Cir,

a cinevsaeunan 14

United States v. Jimenez, 464 F.3d 555 (5th

ae STD cénsicaicieseninastinncniea Ssaiaha daidalan euiiecheneseets 12

United States v. Larson, 495 F.3d 1094 (9th

a eI 12, 13, 14, 23

United States v. LeBrun, 363 F.3d 716 (8th

a scecdiciepseitebipntiinten 19

United States v. McConney, 728 F.2d 1195

(9th Cir, 1984) (em banc) .vccscsssssessesssnsossssesnsesensen 17

ix

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. McElhaney, 64 MJ. 120

RE 15

United States v. Montelongo, 420 F.3d 1169

COE ra an. cccenceccccvccccees 12

United States v. Moss, 63 MJ. 233

CCD Fa ee ietienkescnssssctcvesncocsccsececenees 8

United States v. Mussare, 460 F.3d 161 (3d

CONF ai a aeretancssecesnccve vnc 0 s00e0s 22

United States v. Nobles, 422 U.S. 225 (1975)... 26

United States v. Orisnord, 483 F.3d 1169

COs a aie cssasesseoverecvsceece cece: 14

United States v. Rosa, 11 F.3d 315 (2d Cir.

DORE) ccsciccceentensanaieetaenee Ratt enesencesnereceserserees 13, 22

United States v. Scheetz, 293 F.8d 175 (4th

Che accent cccccccsccces 13-14

United States v. Schreane, 331 F.3d 548

RS 24

United States v. Shaffer, 46 M.J. 94

ESS SE 8

United States v. Shelton, 200 F. App’x 219

COE a, aia ccssnecensccceccoeves 13

United States v. Silveus, 542 F.3d 993 (3d

Che, ceca iaecahasicsaercocserrecocscceces 13

United States v. Smith, 308 F.8d 726 (7th

ae, cca lccniassecccrseveesonceee 12

United States v. Vega Molina, 407 F.3d 611

(Tap CORP, Se eee ti aiaceen ssenrennseccccccevcees nace

X

TABLE OF AUTHORITIES—Continued

Page(s)

United States v. Vitale, 459 F.3d 190 (2d

Soran, MITT iasoicociadaiiiceniieigeaenvhdeabdeahciadhciee hari 14

United States v. Williams, 504 U.S. 36

AEE Coe ae eae 16

United States v. Williams, 37 M.J. 352

Os acl 24-25

Verizon Communications, Inc. v. FCC, 535

Fs See IIITTTIEIN “cies satahtccnindticsebdehettdieniamtteeiepandbaceacuiites 16

Weiss v. United States, 610 U.S. 163 (1994)... 4

Williams v. Taylor, 529 U.S, 362 (2000) .....cccccccsecreesveees 19

CONSTITUTIONAL AND STATUTORY PROVISIONS

SF SN TIIIIEE WA secsetithiamenineacahornababbiioaesinncecanat passim

Fy a esninteninniiiainamaal 21

10 U.S.C.

ST iciicehisiihinaichiiilamaiamiipaeinduandibihideetdaasaatbaiansdadnaaniaatant 4

| EE en a em MNE ee nen 4

TENE ee ene OC ENE RTE 3

Iai icaceisadsecdiehatsidesbbshainsnsecudasasiinenedandaaedilasestiosctudaaiaaet 4

28 U.S.C.

acai oo eeeaeamadaieiennaianl 2

5 ETE Serene Kea nmr oR hi 19

RULES

Federal Rule of Civil Procedure 11 .........ccccccccccsccccecerees 18

x)

TABLE OF AUTHORITIES—Continued

Page(s)

Federal Rule of Evidence

EECA ERNE ie oe Oe ee cn ER a 2A

IEA is cclaheaichactdieentnahiniaenaadiuannaimainmheaneaedaeedeasesndanan 5

Tei iiccneeeieicacmsnellianlaselieiilahi aheainacinninanansaiici 24

Military Rule of Evidence 412 (2005 ed.) ..........cccsceeee 5,6

OTHER AUTHORITIES

Childress, Steven Alan & Martha S. Davis,

Federal Standards of Review (3d ed. 1999)............ 15

Hamilton, Jesse, Coast Guard Admiral Rep-

rimanded: Ex-Academy Superintendent

To Retire After Probe Finds Inappropriate

Behavior, Hartford Courant, Feb. 27, 2007,

Kime, Patricia, Academy Takes Heat Over Sex-

Assault Cases, Navy Times, Mar. 27, 2006,

Oe, Be sccaaceasvanniendsisecansabinbiatiaiiehs ised cas ceeiatstteteantascnciianes 3

Lightman, David, Academy Under Scrutiny;

Coast Guard Harassment Isaue Gets At-

tention of Congressional Panels, Hartford

Courant, May 18, 2006, at B1.........csccssseessssssseeeesserens 3

Yardley, William, Coast Guard Addresses Sex

Assaults, N.Y. Times, Feb. 28, 2006, at B7.............. 3

In THE

Bupreme Court of the United States

No. 10-

WEBSTER M. SMITH,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

PETITION FOR A WRIT OF CERTIORARI

Webster M. Smith respectfully petitions for a writ

of certiorari to review the judgment of the United

States Court of Appeals for the Armed Forces in this

case.

OPINIONS BELOW

The opinion of the court of appeals (App. 1a-21a) is

reported at 68 M.J. 445. The opinion of the intermedi-

ate appellate court, the Coast Guard Court of Criminal

Appeals (App. 23a-68a), is reported at 66 M.J. 656. The

order and opinion of the trial judge denying petitioner's

request to conduct the cross-examination at issue here

(App. 59a-64a) is unreported.

2

JURISDICTION

The judgment of the court of appeals was entered

on March 29, 2010. This Court’s jurisdiction is invoked

under 28 U.S.C. § 1259(3).

CONSTITUTIONAL PROVISION INVOLVED

The Sixth Amendment to the United States Con-

stitution provides in relevant part that “{iJn al) criminal

prosecutions, the accused shall enjoy the right ... to be

confronted with the witnesses against him.”

STATEMENT

This case implicates a deep circuit conflict regard-

ing the standard of review that applies when a trial

judge’s restriction on the cross-examination of a prose-

cution witness is challenged on appeal as a violation of

the Confrontation Clause. The Court of Appeals for the

Armed Forces (CAAF) held here that the standard of

review is abuse of discretion rather than de novo. Ap-

plying the former standard, the court rejected peti-

tioner’s Confrontation Clause claim by a vote of 3-2.

1. In early 2006, officials at the United States

Coast Guard Academy filed sixteen specifications (the

military equivalent of criminal charges) against peti-

tioner Webster Smith, a cadet who was then a few

months from graduation. See CAAF J.A. 89-92. Four

weeks later, Academy officials lodged an additional five

specifications. /d. at 93-95. Most of the specifications

alleged that Mr. Smith had engaged in some form of

sexual misconduct with one of several female cadets.

' At the time these charges were brought, Academy officials,

hike their counterparts at the other service academies, were facing

3

Pursuant to Article 32 of the Uniform Code of Mili-

tary Justice (UCM), 10 U.S.C. § 832, an investigation

of the charges against Mr. Smith was conducted by an

impartial officer. See CAAF J.A. 193-195. After com-

pleting his investigation (including hearing from all of

the accusers), the investigating officer concluded that

most of the charges lacked foundation. Specifically, he

recommended that twelve of the twenty-one charges be

dismissed outright, that two others be resolved admin-

istratively by Academy officials, and that just seven be

referred for trial by general court-martial. See Appel-

late Ex. 17. As to nine of the twelve charges for which

he recommended dismissal, the officer found that there

were not even reasonable grounds to conclude that Mr.

Smith had committed the offense. See id.

Disregarding several of the investigating officer’s

recommendations, the official overseeing the prosecu-

tion (the Academy superintendent) directed that eleven

of the twenty-one charges be dismissed and that the

other ten be tried by general court-martial. This was

the first (and to date only) time in the Academy’s 130-

year history that a cadet had been court-martialed.

See, e.g., Jesse Hamilton, Coast Guard Admiral Rep-

rimanded. Ex-Academy Superintendent To Retire Af-

ter Probe Finds Inappropriate Behavior, Hartford

intense scrutiny and pressure from the public, the media, and

Congress about perceived laxity in their handling of allegations of

sexual harassment and sexual assault. See, e.g., David Lightman,

Academy Under Scrutiny; Coast Guard Harassment Issue Gets

Attention of Congressional Panels, Hartford Courant, May 18,

2006, at Bl; Patricia Kime, Academy Takes Heat Over Sez-Aseault

Cases, Navy Times, Mar. 27, 2006, at 36; William Yardley, Coast

Guard Addresses Sex Assaults, N.Y. Times, Feb. 28, 2006, at B7.

4

Courant, Feb. 27, 2007, at Al. Mr. Smith pleaded not

guilty to all ten charges.’

2. Prior to trial, the military judge (the military

term for the trial judge, see 10 U.S.C. § 826) imposed a

restriction on the defense’s cross-examination of a key

prosecution witness, SR.’ SR, a fellow cadet, accused

Mr. Smith of sexually assaulting her and extorting sex-

ual favors from her. The defense maintained that the

two cadets’ sexual encounter was consensual! and that

SR was fabricating her accusations because the encoun-

ter occurred in Chase Hall, the Academy dormitory,

where sexual activity is prohibited by cadet regulations

and punishable by expulsion from the Academy, see

App. 34a, 16a n.8. To support this argument, the de-

fense intended to elicit on cross-examination the fact

that SR had previously made a false allegation of sexual

assault, telling Mr. Smith (and allowing him to tell oth-

ers) that a consensual sexual encounter she had had

with an enlisted man was not consensual.‘ Like the

Chase Hal) encounter, the encounter with the enlisted

man was prohibited by cadet regulations (and hence the

UCMJ, see 10 U.S.C. § 892; see also United States v.

Cain, 59 M.J. 285, 292-293 (C.A.A.F. 2004)). The de-

fense thus planned to argue to the jury (“members” in

military parlance) that SR was once again falsely accus-

The general court-martial had original jurisdiction under

Article 18 of the UCMJ, 10 U.S.C. § 818. See, ¢.9., Weiss v. United

States, 610 U.S. 168, 167 (1994).

>In their opinions in this case, the appellate courts referred

to SR only by her initials. This petition does likewise.

‘Mr. Smith testified at a pre-trial hearing that SR Initially

told him the encounter with the enlisted man was not consensual

and later acknowledged that it was consensual. See App. 4a, 60a.

5

ing a man of assaulting her in order to evade discipline

that she could otherwise face for willingly engaging in

sexual activity that was barred by military regulations.

See App. 27a-28a, 40a, 62a-63a. Noting that the three

charges involving SR rested entirely on her testi-

mony—the government offered no other evidence as to

any of them—the defense contended that Mr. Smith

was constitutionally entitled to inform the jury of facts

that bore so directly on her credibility. See CAAF J.A.

180-181.

The government sought to exclude the proposed

cross-examination of SR pursuant to Military Rule of

Evidence 412. See CAAF J.A. 183-187. That rule, the

nearly identical military counterpart to Federal Rule of

Evidence 412, generally bars the admission of

“le]vidence offered to prove that any alleged victim en-

gaged in other sexual behavior.” M.R.E. 412(a)(1) (2005

ed.).° The rule includes an exception, however, for

“evidence the exclusion of which would violate the con-

stitutional rights of the accused.” M.R.E. 412(b)(1)(C).

This exception, which the defense invoked in seeking to

conduct the proposed cross-examination of SR, see

CAAF J.A. 180-181, “addresses an accused’s Sixth

Amendment right of confrontation,” United States v.

Banker, 60 M.J. 216, 221 (C.A.A.F. 2004). Hence, the

issue for the military judge was whether the Confron-

tation Clause required that the proposed cross-

examination be allowed.

The judge concluded that it did not. See App. 59a-

64a. He agreed that the defense’s theory about SR’s

* Minor amendments were made to Military Rule of Evidence

412 in 2008 The version cited herein is the one that was in effect

throughout the court-martial proceedings.

6

prior fabrication of assault “would be a valid reason for

admitting this evidence under M.R.E. 412(b)(1)(C),” i-e.,

pursuant to Mr. Smith’s Sixth Amendment rights.

App. 63a. He nonetheless prohibited the proposed

cross-examination, in part because allowing it could, he

believed, “sidetrack[{] the member(s’) attention to a col-

lateral issue,” App. 64a, and in part because the only

evidence of SR’s prior false accusation came from Mr.

Smith, whose credibility the judge questioned, see App.

63a.° The judge ultimately allowed defense counsel to

reveal to the jury only that SR had lied to Mr. Smith in

unspecified ways about unspecified conduct that she

believed involved a violation of cadet regulations and

possibly the UCMJ (but for which prosecutors had indi-

cated they would not prosecute her). See App. 4a-5a,

19a & n.6; CAAF J.A. 145, 148-149.

3. Following a week-long trial, the jury acquitted

Mr. Smith on six of the ten charges. See CAAF J.A.

173-174. It convicted on the other four, as well as on a

lesser-included offense of one of the six counts of ac-

quittal. See id.; App. 2a. The three convictions that

pertained to sexual conduct (sodomy, indecent assault,

and extortion of sexual favors) were all based on the

allegations by SR, whose credibility—including motive

to lie—the defense was not permitted to explore fully.

. SR, the only other apparent source of evidence on the point,

invoked her privilege against self-incrimination and thus did not

testify at the pre-trial heanng on the proposed cross-examination

See App. 4a, 54a, 69a; CAAF J.A. 177-178. Although she dropped

that invocation in order to testify at tnal, the military judge did

not require her, upon waiving the privilege, to address whether in

fact she had made a prior false accusation so that he could revisit

his ruling on the proposed cross-examination in the event she cor-

roborated Mr. Smith’s testimony by admitting that she had.

7

By contrast, the jury acquitted Mr. Smith of every sex-

related charge on which his accuser was subject to full

cross-examination. The verdict also meant that the

government had failed to prove even one of the original

sex-related charges that Academy officials had leveled

against Mr. Smith. All of those charges were either

dismissed before trial (many as lacking any foundation,

seé supra p.8) or resulted in acquittal.

The jury sentenced Mr. Smith to six months’ con-

finement, forfeiture of all pay and allowances, and dis-

missal from the Coast Guard (i.e., expulsion from the

Academy). See App. 2a; CAAF J.A. 175. Mr. Smith

served his period of confinement immediately after

trial, earning release a month early for good behavior.’

4. After the Coast Guard Court of Criminal Ap-

peals affirmed his convictions and sentence—over a

lengthy dissent regarding the restriction on the cross-

examination of SR, see App. 40a-58a—Mr. Smith peti-

tioned CAAF for further review. CAAF granted re-

view of the Sixth Amendment question, but following

briefing and argument it affirmed by a splintered 3-2

vote. See App. la-2la

In presenting his Confrontation Clause claim, Mr.

Smith argued that because he was raising a constitu-

tional challenge to the military judge’s ruling, CAAF

should review the ruling de novo rather than for abuse

of discretion. In support of that argument, Mr. Smith

’ Following his release, Mr. Smith returned to his home state

of Texas, where he has completed his undergraduate work, mar-

ried, become a father, and remained steadily employed. Upon his

return, however, Mr. Smith was also forced to register as a sex

offender, as Texas law mandates lifelong registration for indecent-

agsault convictions.

8

cited cases from several circuits that employ de novo

review of Confrontation Clause claims like his. Writing

for a two-judge plurality, Judge Stucky rejected that

position, holding that under CAAF precedent, review

was only for abuse of discretion. See App. 5a (citing

United States v. Moss, 63 M.J. 233, 236 (C.A.A.F. 2006),

and United States v. Israel, 60 M.J. 485, 488 (C.A.A.F,

2005))."

Applying that standard, the plurality concluded

that “[t]he military judge did not abuse his discretion.”

App. 7a. The plurality deemed it significant that the

defense had been allowed to show the jury that SR had

lied to Mr. Smith about conduct that she believed could

have threatened her career. See id. The plurality also

reasoned that “{wJhile Cadet SR’s credibility was in

contention, it is unclear why the lurid nuances of her

sexual past would have added much to Appellant’s ex-

tant theory of fabrication.” /d. Finally, the plurality

sought to distinguish cases cited by Mr. Smith, includ-

ing this Court’s decision in Olden v. Kentucky, 488 U.S.

227 (1988) (per curiam), that held comparable restric-

tions on the cross-examination of key prosecution wit-

nesses to be unconstitutional. See App. 7a-8a; see also

App. 29a-31a (court of criminal appeals majority seek-

ing to distinguish other CAAF cases with similar hold-

ings).

Judge Baker, also applying the abuse-of-discretion

standard, concurred in the result. See App. 8a-10a. He

® CAAF has long applied this standard to Confrontation

Clause claims. See, e.g., United States v. Collier, 67 MJ. 347, 353

(C.A.A.F, 2009), United States v. Shaffer, 46 MJ. 94, 98 (C_A.A.F.

1997); United States v. Buenaventura, 45 MJ. 72, 79 (C.A.A.F.

1996).

9

acknowledged that the military judge’s ruling might

well have violated the Confrontation Clause on the the-

ory that the jury “needed to know the nature of ‘the se-

cret’ in order to assess beyond a reasonable doubt

whether SR might succumb to pressure to protect the

secret.” App. 9a. But in his view, Mr. Smith’s alternate

“theory of admission [wa]s too far-fetched to pass con-

stitutional ... muster.” Id.’

Judge Erdmann, joined by Chief Judge Effron,

agreed that CAAF “review[s) a military judge's deci-

sion to admit or exclude evidence for an abuse of dis-

cretion.” App. 13a (citing United States v. Ayala, 43

M.J. 296, 298 (C.A.A.F. 1995)). But they dissented from

the other judges’ application of that standard. See App.

10a-21a. The fatal problem in their view was that “the

military judge prevented the defense from presenting

to the panel an explanation of the circumstances that

would have provided a motive for the complainant to

make a false allegation of’ sexual assault. App. 10a; see

also App. 21a (“Smith had a commonsense explanation

> Two of Judge Baker's articulated bases for this conclusion

were factually incorrect. First, Judge Baker stated that “it was

SR herself who reported her sexual contact with Appeliant; this

cuts against Appellant’s theory that SR would lie to cos val her

own misconduct.” App. 9a. In fact, “[tJhe record does not disclose

whether SR voluntanly came forward or was first approached by”

Coast Guard investigators, App. 628 n.8 (court of criminal appeals

dissent); see also App. 51a-63a. Second, Judge Baker stated that

“to support (Mr. Smith's] theory of admission the members needed

to know that SR had ‘lied’ to Appellant about her sexual miscon-

duct,” and “[t)his much the military judge permitted.” App. 9a. To

the contrary, the military judge did not permit the jury to hear

that what “SR had ‘lied’ to Appellant about [was] sexual miscon-

duct.” Jd. Indeed, that prohibition was the crux of Mr. Smith’s

challenge on appeal.

10

for SR’s claim that the sexual activity was nonconsen-

sual and the military judge's ruling prevented the

members from considering this theory.”). Emphasizing

that “this was a ‘he said-she said’ case and for the

charges at issue in this appeal, the critical question for

the members was the credibility of the sole prosecution

witness,” App. 17a (footnote omitted), the dissenters

concluded—relying on this Court’s precedent—that a

Sixth Amendment violation had occurred because “‘{a]

reasonable jury might have received a significantly dif-

ferent impression of [the witness’s] credibility had [de-

fense counsel] been permitted to pursue his proposed

line of cross-examination,” App. 14a-15a (alterations in

original) (quoting Delaware v. Van Arsdall, 475 U.S.

673, 680 (1986)); accord App. 41a (court of criminal ap-

peals dissent) (“The excessive restrictions imposed on

Appellant’s Sixth Amendment confrontation rights al-

lowed SR to testify through non-factual euphemisms on

critical issues related to the Government’s proof and

her own credibility, and allowed the Government to

create a substantially different impression of her truth-

fulness than what the defense had sought to show

through the excluded evidence.”),

The dissenters also disagreed with the plurality

that the cross-examination allowed by the military

judge was sufficient, explaining that “[w}ith this limited

information about SR’s secret, the members were left

to speculate whether the secret was a minor discipli-

nary infraction or a more serious charge, but they had

no idea that the proffered evidence directly implicated

SR’s motive and credibility.” App. 19a-20a; see also

App. 45a-46a (court of criminal appeals dissent) (citing

Davis v. Alaska, 415 U.S. 308, 316-317 (1974), and

Olden, 488 U.S. at 232 (per curiam)). As to the plural-

ity’s stated doubt about the need for the “lurid nu-

1]

ances” of SR’s secret, App. 7a, the dissenters explained

that what was important about the proposed cross-

examination, and what its focus would have been, was

“not the lurid nuances of the victim’s sexual past ..., but

rather the allegation that SR had previously lied about

a sexual encounter under similar circumstances.” App.

18a (internal quotation marks omitted).'°

REASONS FOR GRANTING THE PETITION

CAAF’s holding regarding the appropriate stan-

dard for appellate review of Confrontation Clause

claims like Mr. Smith’s conflicts with the holdings of

several other courts of appeals. The conflict is estab-

lished and the issue is both recurring and important.

Moreover, this case is a good vehicle for resolving the

conflict, both because the issue was raised throughout

the case and because CAAF’s splintered decision apply-

ing abuse-of-liscretion review shows that the use of

that relatively lax standard may well have determined

the outcome here. Finally, CAAF’s use of an abuse-of-

discretion standard is wrong, as Mr. Smith had a right

to plenary appellate review of his constitutional claim

raising a mixed question of Jaw and fact. Under these

circumstances, this Court’s review is warranted.

1? Tn addition to defending the merits of the military judge's

ruling, the government raised a jurisdictional objection before

CAAF, contending that Mr. Smith’s petition for discretionary re-

view by that court was untimely. CAAF unanimously rejected

that argument. See App. 2a-3a (plurality opinion), 10a (dissent),

8a-10a (Baker, J., concurring in the result) (implicitly rejecting the

jurisdictional argument by addressing the merits).

12

IL CAAF’s STANDARD-OF-REVIEW HOLDING IMPLICATES

AN ESTABLISHED CIRCUIT CONFLICT ON AN IMPOR-

TANT AND RECURRING QUESTION OF FEDERAL LAW

A. The Courts Of Appeals Are Deeply Divided

Over What Standard Of Review Applies To

Confrontation Clause Claims Like Mr.

Smith's

CAAF employed abuse-of-discretion review in re-

solving Mr. Smith’s Sixth Amendment challenge to the

military judge’s restriction on the defense’s cross-

examination of SR. See, e.g., App. 6a. That approach

conflicts with the holdings of five circuits, which con-

sider comparable Confrontation Clause claims de novo,

reserving abuse-of-discretion review for non-

constitutional challenges. For example, the Seventh

Circuit has stated that “[o}rdinarily, a district court’s

evidentiary rulings are reviewed for abuse of discre-

tion. However, when the restriction [on cross-

examination] implicates the criminal defendant’s Sixth

Amendment right to confront witnesses against him, ...

the standard of review becomes de novo.” United

States v. Smith, 308 F.3d 726, 788 (7th Cir. 2002) (cita-

tion omitted). The First, Fifth, Eighth, and Tenth Cir-

cuits have adopted the same approach. See, e.g., United

States v. Vega Molina, 407 F.3d 511, 622 (1st Cir. 2005);

United States v. Jimenez, 464 F.3d 655, 668-559 (5th

Cir. 2006); United States v. Bentley, 561 F.3d 803, 808

(8th Cir. 2009), cert. denied, 130 S.Ct. 1275 (2009);

United States v. Montelongo, 420 F.3d 1169, 1173 (10th

Cir. 2005).""

"In United States v. Larson, 495 F.8d 1094 (9th Cir. 2007)

(en banc), the Ninth Circuit stated that it was adopting an ap-

proach that “brfought it) in line with [these five] sister circuits,”

13

Six other circuits, by contrast—the Second, Third,

Fourth, Sixth, Eleventh, and District of Columbia Cir-

cuits—take the same approach that CAAF does, apply-

ing abuse-of-discretion review even when a restriction

on the cross-examination of a prosecution witness is at-

tacked on constitutional grounds.” The Sixth Circuit,

for example, stated in one case that “[defendant] argues

that his right to confrontation was violated when the

trial court ‘unfairly’ limited his cross-examination of [a]

government witness .... We review the district court’s

restriction on a defendant’s right to cross-examine wit-

nesses for abuse of discretion.” United States v.

Franco, 484 F.3d 347, 353 (6th Cir. 2007). Cases from

the other circuits in this group are to the same effect.

See, e.g., United States v. Rosa, 11 F.3d 316, 335 (2d

Cir. 1993); United States v. Silveus, 642 F.3d 993, 1005

(8d Cir. 2008); United States v. Shelton, 200 F. App’x

219, 221 (4th Cir. 2006) (citing United States v. Scheetz,

id. at 1101 1.6 (citing a case from each of the five). The court's ac-

tual holding, however, was that abuse-of-discretion review is

proper for some constitutional challenges, specifically those ad-

dressing “a limitation on the scope of questioning within a given

area” rather than “the exclusion of an (entire) area of inquiry.” /d.

at 110).

"2 ‘The dissenters stated in this case that under the abuse-of-

discretion standard, conclusions of law are reviewed de novo. App.

13a. The authority they cited for that statement, however, United

States v, Ayala, involved a suppression ruling rather than a re-

striction on croas-examination. See 43 M.J. at 298. To petitioner’s

knowledge, no CAAF case states that the abuse-of-discretion

standard repeatedly applied by the court when reviewing restric-

tions on defendants’ cross-examination includes de novo review of

legal conclusions. Nor did the plurality or the concurring judge

here indicate that any aspect of their review was conducted de

novo,

14

293 F.3d 175, 184 (4th Cir. 2002)); United States v. Oris-

nord, 483 F.3d 1169, 1178 (1)th Cir, 2007); United

States v. Graham, 83 F.3d 1466, 1474 (D.C. Cir. 1996)."’

In short, CAAF’s use of an abuse-of-discretion

standard in this case perpetuates a clear—and recog-

nized—conflict in the circuits. See United States vy,

Larson, 495 F.3d 1094, 1100 & n.5 (9th Cir. 2007) (en

banc) (resolving “an intra-circuit conflict regarding the

standard of review for Confrontation Clause challenges

to a trial court's limitations on cross-examination” while

acknowledging a parallel “disagreement among the cir-

cuits”).

B. The Question Presented Is Recurring And

Important, And This Case Is A Good Vehicle

For Deciding It

The circuit conflict at issue here warrants resolu-

tion by this Court. As indicated by the cases cited in

the previous section, the constitutionality of restric-

tions on cross-examination arises frequently in criminal

3 A few unpublished deciaiona from some of the circuita in

this group have reviewed restrictions on cross-examination de

novo, notwithstanding (and without acknowledging) the contrary

precedent cited in the text. See, ¢.g., United States v. Allen, 353

F. App’x 362, 354 (11th Cir. 2009) (per curiam); United States v.

Askanazi, 14 F. App’x 538, 640 (6th Cir. 2001) (per curiam). Other

cases, addressing other types of Confrontation Clause claims, have

proclamed in dicta that alJ such claims are subject to de novo re-

view—again without confronting the cases cited in the text. See,

¢.9., United States v. Jase, 669 F.3d 47, 66 (2d Cir. 2009) (Bruton

claim; “We review ‘aJlleged violations of the Confrontation

Clause ... de novo[.!’” (alteration and omission in onginal) (quoting

United States v. Vitale, 459 F.3d 190, 195 (2d Cir. 2006))), cert. de-

nied, 130 S. Ct. 2128 (2010); United States v. Hardy, 586 F.3d 1040,

1043 (6th Cir. 2009) (similar for admission of affidavit).

16

prosecutions, and in every part of the country. Those

cases also show that the conflict over the standard for

appellate review of such restrictions is established;

there is thus no benefit to be gained by giving the lower

courts additional time to consider the issue. Moreover,

the question presented is important, because the stan-

dard of review can determine the outcome of an appeal.

See Salve Regina Coll. v. Russell, 499 U.S. 225, 238

(1991) (“{T lhe difference between a rule of deference

and the duty to exercise independent review is much

more than a mere matter of degree.” (internal quota-

tion marks omitted)); see also, e.g., News-Press v.

United States Dep't of Homeland Sec., 489 F.3d 1173,

1187 (11th Cir, 2007) (“In even moderately close cases,

the atandard of review may be dispositive of an appel-

late court’s decision.”); 1 Steven Alan Childress & Mar-

tha S. Davis, Federal Standards of Review § 1.02, ut 1-

16 (3d ed. 1999). That is particularly true when one

standard is highly deferential; CAAF, for example, has

stated that “the abuse of discretion standard is a strict

one,” satisfied only when “(tlhe challenged action [is]

arbitrary, fanciful, clearly unreasonable, or clearly er-

roneous,” United States v. McElhaney, 54 M.J. 120, 130

(C.A.A.F. 2000) (internal quotation marks omitted).

Finally, disuniformity created by the conflict directly

affects a fundamental] individual right. Some defen-

dants in criminal cases enjoy less protection of the criti-

cal right to confront their accusers because of the fortu-

ity of where their trials were held—or, as to cases de-

cided by CAAF, because they have chosen to wear the

nation’s uniform.

This case presents a good vehicle to resolve the cir-

cuit conflict. To begin with, Mr. Smith’s standard-of-

review argument. was both pressed and passed upon in

the court of appeals, see Pet’r’s CAAF Br. 12-13; App.

16

6a, rendering the issue suitable for review by certio-

rari. See, eg., Verizon Comme'ns, Inc. v. FCC, 535

US. 467, 630 (2002) (quoting United States v. Williams,

604 U.S. 36, 41 (1992)). In addition, CAAF’s rejection

of Mr. Smith’s argument may well have determined the

ultimate outcome. Even applying highly deferential

review, CAAF was narrowly divided as to the constitu-

tionality of the military judge's ruling in this case. If

even one of the three judges who deemed that ruling

not to be an abuse of discretion were to conclude, upon

reviewing without deference, that it was inconsistent

with the Sixth Amendment, Mr. Smith would prevail."

Il. CAAF’s STANDARD-OF-REVIEW HOLDING IS WRONG

This Court’s review is also warranted because

CAAF’s use of an abuse-of-discretion standard to re-

view Mr. Smith’s Confrontation Clause claim was erro-

neous. The military judge’s ruling that Mr. Smith chal-

lenged presented a mixed question of law and fact.

When a constitutional right is involved, as here, this

Court has repeatedly held de novo review of such

mixed questions appropriate. The decisions from this

Court that CAAF and other courts have relied on to

justify abuse-of-discretion review are inapposite.

“The military context in which this case arises does not af-

fect [ts suitability as a vehicle to answer the question presented.

Although servicemembers’ constitutional rights can be more cir-

cumscribed than those of their civilian counterparts when morale,

good order and discipline, or other military interests so require,

see Parker v. Levy, 417 U.S. 783, 758 (1974), that ia not the case

here. CAAF has never articulated a military-specific rationale for

employing abuse-of-discretion review in cases like this (nor did the

government offer one below), and in fact no military interest would

be undermined if CAAF reviewed constitutional challenges to re-

strictions on defendants’ cross-examination without deference.

17

A. Under This Court’s Precedent, Mixed Ques-

tions Of Law And Fact Are Reviewed De

Novo When Constitutional Rights Are In-

volved

The military judge’s restriction on the cross-

examination of SR involved a quintessential “mixed

question{] of law and fact—.e., [a] question{) in which

the historica) facts are admitted or established, the rule

of law is undisputed, and the issue is whether the facts

satisfy the ... standard.” Pullman-Standard vy. Swint,

456 U.S. 273, 289 n.19 (1982). Under this Court’s cases,

such questions are reviewed de novo when, as here,

they implicate constitutional rights. As a plurality ex-

plained in Lilly v. Virginia, 527 U.S. 116 (1999), the

Court's “prior opinions ... indicate that ... with ... fact-

intensive, mixed questions of constitutional law, ...

‘{iIndependent review is ... necessary ... to maintain

control of, and to clarify, the legal principles’ governing

the factual circumstances necessary to satisfy the pro-

tections of the Bill of Rights,” id. at 136 (alteration and

last two omissions in original) (quoting Ornelas v.

United States, 517 U.S. 690, 697 (1996)); see also United

States v. Bajakjian, 524 U.S. 321, 337 n.10 (1998) (em-

ploying de novo review because the pertinent issue

“calls for the application of a constitutional standard to

the facts of a particular case”), Pullman-Standard, 456

U.S. at 290 n.19 (“There is also support in decisions of

this Court for the proposition that conclusions on mixed

questions of law and fact are independently reviewable

by an appellate court.” (citations omitted)); United

States v. Frederick, 182 F.3d 496, 499 (7th Cir. 1999)

(Posner, J.) (noting that this Court has embraced de

novo review of mixed questions involving “certain con-

stitutional issues”); United States v. McConney, 728

F.2d 1195, 1203 (9th Cir. 1984) (en banc) (“The pre-

18

dominance of factors favoring de novo review is even

more striking when the mixed question implicates con-

stitutional rights.” (citing Ker v. California, 374 U.S. 23

(1963)))."°

The Court has thus held that de novo review—

though with deference typically given to associated fac-

tual findings—is appropriate for a wide variety of trial

court rulings that implicate constitutional rights.

These include rulings on: whether a hearsay statement

bears sufficient indicia of “trustworthiness” to satisfy

the Confrontation Clause, see Lilly, 527 U.S. at 136

(plurality opinion); whether a fine is unconstitutionally

excessive, see Bajakyian, 524 US. at 336 n.10; whether

police had probable cause or reasonable suspicion to

conduct a search, ses Ornelas, 617 U.S. at 699; whether

a defendant was “in custody” for purposes of Miranda

v. Arizona, 384 U.S. 436 (1966), see Thompson v. Keo-

hane, 516 U.S. 99, 112-113 (1995); whether a confession

was voluntary, see Arizona v. Fulminante, 499 U.S.

279, 287 (1991) (citing Miller v. Fenton, 474 U.S. 104,

110 (1985)); whether defense counsel was constitution-

ally ineffective, see Strickland v. Washington, 466 U.S.

668, 698 (1984); whether a pre-trial identification proce-

'S Where constitutional rights are not implicated, “deferential

review of mixed questions of law and fact is warranted when it

appears that the district court is ‘better positioned’ than the appel-

late court to decide the issue in question or that probing appellate

scrutiny will not contribute to the clarity of legal doctmne.” Salve

Regina Coll., 499 U.S. at 233; ses also Cooter & Gell v. Hartmarz

Corp., 496 U.S. 384, 405 (1990) (adopting deferential review of rul-

ings under Federal Rule of Civi! Procedure 11); Perce v. Under-

wood, 487 U.S. 562, 558 n.1 (1988) (citing other examples); Pudl-

man-Standard, 456 U.S. at 290 n.19 (citing examples of both ap-

proaches).

19

dure was unconstitutionally suggestive, see Summer v.

Mata, 455 U.S. 691, 597 (1982) (per curiam); whether a

defendant waived his right to counsel, see Brewer v.

Williams, 480 U.S. 387, 403-404 (1977); and several

First Amendment questions, see Harte-Hanks

Comme'ns, Inc. v. Connaughton, 491 U.S. 657, 685-686

n.33 (1989) (citing cases).’°

The Court’s rationale for these various holdings

supports de novo review here. First, the Court has re-

peatedly observed in these cases that “the (relevant)

legal! rules ... acquire content only through application.

Independent review is therefore necessary if appellate

courts are to maintain control of, and to clarify, the le-

ai Although some of these cases involved review of state-

court judgments, their standard-of-review holdings apply equally

to federal cases like this one. Ses Lilly, 627 U.S. at 1386 (plurality

opinion) (relying on Ornelas, a federal criminal case, to support its

standard-of-review holding in a state criminal] case); see also Bose

Corp. v. Consumers Union of U.S., Inc., 466 U.S 485, 499 (1984)

(“[SJurely it would pervert the concept of federalism for this Court

to lay claim to a broader power of review over state-court judg-

ments than it exercises in reviewing the judgments of intermedi-

ate federal courts.”). That is true even for decisions from this

Court on federal habeas review of a state-court judgment. While

those cases’ standard-of-review holdings generally do not apply in

the habeas context post-AEDPA, see Williams v. Taylor, 629 U.S.

362, 411 (2000) (citing 28 U.S.C, § 2264(dX(1)), they remain valid

and instructive for cases on direct review (state or federal). See

Ornelas, 517 U.S, at 697 (citing Miller, a state-habeas case, to sup-

port its standard-of-review holding in a direct-review case); sce

also, 6.9., United States v. LeBrun, 368 F.3d 716, 719 (8th Cir.

2004) (en banc) (“Thompson's rationale [in the habeas context) re-

quires that on direct appeal we review the district court’s custody

determination de novo.”); United States v. Eronng L., 147 F.3d

1240, 1245 (10th Cir. 1998) (similar, citing Derrick v. Peterson, $24

F 2d $13, 818 (9th Cir. 1991)).

20

gal principles.” Ornelas, 617 U.S. at 697, quoted in, e.7.,

Cooper Indus., Inc. v. Leatherman Tool Group, Inc.,

532 U.S. 424, 436 (2001); accord Miller, 474 U.S. at 114.

The same is true of the Sixth Amendment “rules” that

apply to restrictions on the cross-examination of prose-

cution witnesses. Second, the Court has stated in the

search-and-seizure context that a

policy of sweeping deference would permit, “[iJn

the absence of any significant difference in the

facts,” “the Fourth Amendment’s incidence [to]

tur{n) on whether different trial judges draw

general conclusions that the facts are sufficient

or insufficient to constitute probable cause.”

Such varied results would be inconsistent with

the idea of a unitary system of law.

Ornelas, 517 U.S. at 697 (alterations in original) (quot-

ing Brinegar v. United States, 338 U.S. 160, 171 (1949)).

Again, the same is true as to the Confrontation Clause.

More generally, this Court has explained that ple-

nary appellate review of constitutional mixed questions

“reflects a deeply held conviction that judges—and par-

ticularly Members of this Court—must exercise such

review in order to preserve the precious liberties es-

tablished and ordained by the Constitution.” Bose

Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485,

510-511 (1984); see also id. at 503 (“When the standard

governing the decision of a particular case is provided

by the Constitution, this Court’s role in marking out

the limits of the standard through the process of case-

by-case adjudication is of special importance.”). That is

surely true of a defendant’s right to confront the wit-

nesses against him through cross-examination: This

Court has labeled cross-examination “the greatest legal

engine ever invented for the discovery of truth.”

21

California v. Green, 399 U.S. 149, 158 (1970) (internal

quotation marks omitted). It has also deemed the right

of confrontation to be “one of the fundamental guaran-

tees of life and liberty,” Kirby v. United States, 174

U.S. 47, 55 (1899), and so “fundamental and essential to

a fair trial” as to be incorporated against the States,

Pointer v. Texas, 380 U.S. 400, 403 (1965). And it has

stated that an impermissible restriction on a defen-

dant’s right of cross-examination is “constitutional er-

ror of the first magnitude.” Davis v. Alaska, 416 U.S.

308, 3318 (1974). Deferential review of trial-court rul-

ings is insufficient to safeguard such a critical constitu-

tional right."’

Finally, this Court's cases support the specific ap-

proach espoused by Mr. Smith and adopted by several

circuits, whereby non-constitutiona] challenges to re-

strictions on cross-examination are reviewed for abuse

of discretion while constitutional challenges are re-

viewed de novo. In Cooper Industries, Inc. v. Leather-

man Tool Group, Inc., the Court adopted the same ap-

proach for punitive damages awards. “If no constitu-

tional issue is raised” regarding the excessiveness of

such an award, the Court stated, “the role of the appel-

'” Decisions outside the mixed-question context reinforce the

conclusion that de novo review {s appropriate here. For example,

in McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991),

this Court construed a statutory provision mandating abuse-of-

discretion review of certain individual immigration decisions. See

td. at 485-486 & n.6 (discussing 8 U.S.C. §1160(e)). The Court held

that the statute did not preclude judicial review of due process

challenges to the broader immigration program—and part of its

rationale was that “the abuse-of-discretion standard ... does not

apply to constitutional or statutory claims, which are reviewed de

novo by the courts.” Id. at 493.

22

late court ... is merely to review the trial court’s [ex-

cessiveness] ‘determination under an_ abuse-of-

discretion standard.’” 532 U.S. at 433 (quoting Brown-

ing-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc.,

492 U.S. 257, 279 (1989)). By contrast, the Court went

on to hold (relying on Ornelas and Bajakajian), “courts

of appeals should apply a de novo standard of review

when passing on ... the constitutionality of punitive

damages awards.” Id. at 436.

What all these cases recognize is the anomaly of

employing an abuse-of-~discretion standard when the

issue is whether or not a particular ruling violated a

constitutional right. Such a standard suggests that a

district court has “discretion” to commit a constitu-

tional violation, and that appellate judges could uphold

a ruling even if they believe that such a violation oc-

curred, See, ¢.g., Elcock v. Kmart Corp., 233 F.3d 734,

743 (3d Cir. 2000) (“Of course, an abuse of discretion

means much more than that the appellate court dis-

agrees with the trial court.”). That is plainly wrong.

B. The Cases Relied On By Courts That Employ

Abuse-Of-Discretion Review Do Not Support

That Approach

The circuits that have reviewed Confrontation

Clause challenges to restrictions on cross-examination

deferentially have not addressed the cases discussed in

the previous section. They have instead relied on other

decisions by this Court that supposedly endorse abuse-

of-discretion review. That reliance is misplaced.

To begin with, several circuits have based their

choice of deferential review on language in Delaware v.

Van Arsdall, 475 U.S. 673 (1986). See, eg., Rosa, 11

F.3d at 335; United States v. Mussare, 450 F.3d 161,

169 (3d Cir. 2005). But what the Court said in the rele-

23

vant portion of Van Arsdall is that “trial judges retain

wide latitude insofar as the Confrontation Clause is

concerned to impose reasonable limits on ... cross-

examination based on concerns about, among other

things, harassment, prejudice, confusion of the issues,

the witness’ safety, or interrogation that is repetitive

or only marginally relevant.” 475 U.S. at 679. That

statement reveals nothing about the proper appellate

standard of review. It instead addresses the substance

of the Confrontation Clause, and in particular it rejects

the notion that that clause, as a substantive matter,

proscribes any restrictions on defendants’ cross-

examination. This is clear from the immediately pre-

ceding sentence, in which the Court stated that “(i]t

does not follow, of course, that the Confrontation

Clause of the Sixth Amendment prevents a trial judge

from imposing any limits on defense counsel’s inquiry

into the potential bias of a prosecution witness.” Id. It

is also clear from the next few paragraphs, where the

Court went on to find that a Confrontation Clause vio-

lation had occurred—without ever referring to abuse of

discretion. See id. at 679-680.""

The Sixth Circuit has also relied on this Court’s

statement in General Electric Co. v. Joiner, 522 US.

136, 141 (1997), that “abuse of discretion is the proper

'8 he Ninth Circuit similarly relied on Van Arsdall in hold-

ing that the standard of review depends on the details of the de-

fendant’s Confrontation Clause challenge, i.e., that de novo review

applies when the trial court “exclufdes) ... an (entire) area of in-

quiry,” but not when it limits “the scope of questioning within a

given area.” Larson, 495 F.3d at 1101. As just discussed, how-

ever, Van Arsdall addressed only the substance of the confronta-

tion guarantee. The Ninth Circuit’s holding, moreover, improperly

conflates substance with the standard of review.

24

standard of review of a district court’s evidentiary rul-

ings.” See United States v. Schreane, 331 F.3d 548, 564

(6th Cir. 2003) (citing Joiner for the proposition that

“[aJn appellate court reviews all evidentiary rulings—

including constitutional challenges to evidentiary rul-

ings—under the abuse-of-discretion standard”). Joiner

was not a criminal case, however, and thus did not im-

plicate the Confrontation Clause. Moreover, the rele-

vant ruling in Joiner was not a constitutional one but

rather a ruling on the exclusion of expert testimony

under Federal Rule of Evidence 702 and Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579

(1993). See Joiner, 622 U.S. at 138-139. The same is

true of the cases Joiner cited to support its statement

that evidentiary rulings are reviewed for abuse of dis-

cretion; each likewise concerned a non-constitutional

ruling by the trial judge. See Old Chief v. United

States, 519 U.S. 172, 180 (1997) (balancing under Fed-

eral Rule of Evidence 403 in regard to admission of de-

fendant’s prior conviction); United States v. Abel, 469

U.S. 45, 54-55 (1984) (same in regard to admission of

government rebuttal testimony); Spring Co. v. Edgar,

99 U.S. 645, 658 (1879) (admission of expert testimony).

In light of the mixed-question precedent from this

Court discussed in the previous section, Joiner’s refer-

ence to “evidentiary rulings” is most sensibly read to

refer only to non-constitutional rulings. Joiner is thus

consistent with Mr. Smith’s contention that non-

constitutional challenges to restrictions on cross-

examination should be reviewed for abuse of discretion

while constitutional claims should be reviewed de novo.

CAAF’s deferential review in cases like this, mean-

while, traces to Geders v. United States, 425 U.S. 80

(1976), and Alford v. United States, 282 U.S. 687 (1931).

See, e.g., United States v. Williams, S37 M.J. 352, 361

25

(C.M.A. 1993) (citing Geders); United States v. Hooper,

26 C.M.R. 417, 426 (C.M.A. 1958) (citing Alford). Nei-

ther case supports deferential review of constitutional

challenges. The Court in Alford did review a restric-

tion on cross-examination for abuse of discretion, see

282 U.S. at 694, but nothing in its opinion indicates that

the defendant’s attack on the restriction was constitu-

tionally based. Indeed, the opinion never mentions ei-

ther the Sixth Amendment generally or the Confronta-

tion Clause in particular. Not until decades later did

this Court state that Alford’s holding included a “con-

stitutional dimension,” Davis, 415 U.S. at 318 n.6 (citing

Smith v. Illinois, 390 U.S. 129, 132-133 (1968))—and in

doing so it plainly recognized the inconsistency be-

tween that “constitutional dimension” and Alford’s use

of abuse-of-discretion review, see id. (“Although ... we

reversed [in Alford] because of abuse of discretion and

prejudicial error, the constitutional dimension of our

holding in Alford is not in doubt.” (emphasis added)).

Geders provides even less support for CAAF’s use

of deferertial review. The Court in Geders did not re-

view a restriction on cross-examination, nor say that

such restrictions are reviewed for abuse of discretion.

It stated that a trial judge’s determination regarding

“the order in which parties will adduce proof’—a non-

constitutional matter—“will be reviewed only for abuse

of discretion.” 425 U.S. at 86. In the next sentence the

Court, citing Glasser v. United States, 316 U.S. 60, 83

(1942), noted that, “(within limits, the judge may ...

control the scope of examination of witnesses,” Geders,

425 U.S. at 86-87. But while Glasser did review a re-

striction on cross-examination for abuse of discretion,

as with Alford there is no indication in Glasser (the

relevant portion of which totals only three sentences)

that the defendant had raised a constitutional challenge.

26

See Glasser, 315 U.S. at 83.' Again, then, this Court’s

precedent is consistent with the approach used by five

courts of appeals and urged by Mr. Smith here. In any

event, to the extent these cases reflect any uncertainty

on the question presented, that is an additional factor

weighing in favor of review.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

DANIEL S. VOLCHOK

Counsel of Record

SETH P. WAXMAN

A. STEPHEN HUT, JR.

EDWARD C, DUMONT

WILMER CUTLER PICKERING

HALE AND DORR LLP

1875 Pennsylvania Avenue N,W.

Washington, D.C. 20006

(202) 663-6000

daniel,volchok@wilmerhale.com

JUNE 2010

'I The Court in Geders also cited United States v. Nobles, 422

U.S. 225 (1976), but Nobles did not involve the Confrontation

Clause, The issue there was whether the defense had to disclose

certain material in order to permit adequate crogs-examination by

the prosecution. Sea Nobles, 422 U.S. at 227; see also id. at 24)

(labeling the defendant’s invocation of the Sixth Amendment “mis-

conceive[d]”).