Opposition Brief — Smith v. United States

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No. 10-18

In the Supreme Court of the United States

WEBSTER M. SMITH, PETITIONER

ON PETITION FOR A WRIT OF CERTIORAR

LOTHE UNITED STATES COURT OF APTLAI

KOR THE ARMED FORC!I

BRIEF FOR THE UNITED STATES IN OPPOSITION

NEAL KUMAR KATYAI

Acting Solicitor General

Counsel of Record

LANNY A. BREURR

| istant Attorney Genera

COTT A.C. MEISLI

Adlorney

Department Of Justice

Washington 1 U5 SO0-O00

, “pre Pid ( Brief (lt) 44 (LO} G0)

WY) SIL 22I

QUESTION PRESENTED

Whether the United States Court of Appeals for the

Armed Forces applied the correct standard of review to

petitioner’s claim that the military judge's limitation on

the cross-examination of a government witness violated

the Confrontation Clause of the Sixth Amendment,

TABLE OF CONTENTS

Page

Se EE EE Te POLAT Rea OE AT eRe ta

IE ns Os ov oc 6 oira yu eae et ceed oe eu ees

Rr arany oe Pare eet era gee en ne er eee 2

I cu eee cae her ee ese v ect en veeeeel eee 10

ee ee 20

TABLE OF AUTHORITIES

Cases:

Alford v. United States, 282 U.S. 687 (1981) ............ 13

Davis v. Alaska, 415 U.S. 308 (1974) 2.00.2 eee. 14

Delaware v. Van Arsdall, 475 U.S. 673

Pi ew eee eee ee ae ee eae 4, 20, 41, 12,138

District of Columbia v. Clawans, 300 U.S. 617 (1937) .13

Gall v. United States, 552 U.S. 38 (2007) ............ 12,14

General Elec. Co. v. Joiner, 522 U.S. 136 (1997) 2.2.00... 12

Glasser v. United States, 315 U.S. 60 (1942) 2200000000... 13

Miller v. Fenton, 474 U.S. 104 (1985) 2.0.2... eee, 12, 13

Monsanto Co. v. Geertson Seed Farms, 1308S. Ct. 2743

CES Sk as ta ay cin eee eee er ee Cee cee 12

Old Chief v. United States, 519 U.S. 172 (1997) ....... 13

Olden v. Kentucky, 488 U.S. 227 (1988) ........... 19

Snyder v. Louisiana, 552 U.S. 472 (2008) 2.2.0... .13

Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379

PRR RN RoR a7 EN Pe Pepe mone hare mE is 15

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

United States v. Atwell, 766 F.2d 416 (10th Cir.),

cert. denied, 474 U.S. 921 (1985) .............. . 17,18

United States v. Banker, 60 M.J. 216 (C.A.A.F. 2004) . 4

(111)

lV

Cases—Continued: Page

United States v. Carruthers, 64 M.J. 340 (C.A.A.F.

DOTY cand a dewneda cada me eee eee 17

United States v. Cole, 31 M.J. 270 (C.M.A. 1990) ......... 7

United States v. Davis, 393 F.3d 540 (5th Cir. 2004) ..... 16

United States v. Hitt, 473 F.3d 146 (5th Cir. 2006),

cert. denied, 549 U.S. 1860 (2007) ............... 14,15

United States v. ]srael, 60 M.J. 485 (C.A.A.F. 2005) ...8,17

United States v. Kenyon, 481 F.8d 1054 (8th Cir. 2007) .. . 16

United States v. Larson, 495 F.3d 1094 (9th Cir. 2007),

cert. denied, 552 U.S. 1260 (2008) .......... 10, 16, 17, 18

United States v. Linzy, 604 F.3d 319 (7th Cir. 2010),

cert. denied, No. 10-5391, 2010 WL 2786838 (Oct. 4,

BED nce x u0e-dws cena Cea eee ee 14, 15, 16

United States v. Martinez-Vives, 475 F.3d 48 (st Cir.

TOE) ci cea caress aeesaee eee eee 14,15

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

BOGOR) x cas divine b0sns) eee 17

United States v. Mullins, 613 F.3d 1278 (10th Cir.

DOUG) | 5 occ eh want bas 8 ee ee 14

United States v. Oaks, 606 F.8d 530 (8th Cir. 2010) ...... 14

United States v. Robinson, 583 F.8d 1265 (10th Cir.

|) re Pree trrar irr A 17

United States v. Rosario Fuentez, 231 F.3d 700

(10th Cir. S000). 6anes wei ane eee 18

White v. Coplan, 399 F.3d 18 (ist Cir.), cert. denied

S46 U.S. Fis. GOGO) i is s'nn0'eoe- bea ee 19

Wisniewski v. United States, 358 U.S. 901 (1957)... .. 17. 18

Constitution, statutes and rules: Page

U.S. Const. Amend. V1 (Confrontation Clause) ..... DUSSUM

Uniform Code of Military Justice, 10 U.S.C. 801 ef seq.:

Art. 31(b), 10 U.S.C. 881(b) ....... nee ere re 5

Art. 66(¢), 10 U.S.C. 860(¢@) .. 2... -. eer .. 1,19

Art. 67(a), 10 ULS.C. 867(a) 20

Art. 80, 10 U.S.C. 880 ........ are ee

Art. 86, 10 U.S.C. 886 ......... Ted oi ae

ee oe, 20 U.U. B92 ........ sol ona ey

ES O°. | me eee

mee eee 80 1.59.0. 92) ........ ee —

Ast. 127,10 U.S.C. 927 ....... cera 2,4

Art. 128, 10 U.S.C. 928 ...... i RS Oe sa ees wh 4

art. 194, 10 US.C. 934 ........ 2,4

Military R. Evid.:

ee ok ees ey ole

Jn the Supreme Court of the Gnited States

No. 10-18

WEBSTER M. SMITH, PETITIONER

U.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ARMED FORCES

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Armed Forces (Pet. App. la-21a) is reported at 68

M.J. 445. The opinion of the United States Coast Guard

Court of Criminal Appeals (Pet. App. 23a-58a) is re-

ported at 66 M.J. 556. The order of the military judge

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

JURISDICTION

The judgment of the United States Court of Appeals

for the Armed Forces was entered on March 29, 2010.

The petition for a writ of certiorari was filed on June 28,

2010. The jurisdiction of this Court is invoked under 28

U.S.C, 1259(3).

2

STATEMENT

Following a general court-martial, petitioner was con-

victed of one specification of sodomy, in violation of Arti-

cle 125 of the Uniform Code of Military Justice (UCMJ),

10 U.S.C. 925; one specification of extortion, in violation

of Article 127 of the UCMJ, 10 U.S.C. 927; one specifica-

tion of indecent assault, in violation of Article 1384 of the

UCMJ, 10 U.S.C. 984; one specification of attempting to

disobey a lawful order, in violation of Articles 80 and 92

of the UCMJ, 10 U.S.C. 880, 892; and one specification of

absence without leave, in violation of Article 86 of the

UCMJ, 10 U.S.C. 886. Pet. App. 28a-24a. The members

sentenced petitioner to dismissal from the Coast Guard,

six months’ confinement, and forfeiture of all pay and

allowances. /d. at 24a. The convening authority ap-

proved the sentence as adjudged. /bid. The United

States Coast Guard Court of Criminal Appeals affirmed.

Td. at 23a-58a. On discretionary review, the United

States Court of Appeals for the Armed Forces (CAAF)

also affirmed. /d. at la-21a.

1. Petitioner is a former Coast Guard Academy ¢a-

det. Pet. App. 3a. In 2005, he and a female classmate,

referred to in the petition appendix as “SR,” were as-

signed to neighboring vessels in Norfolk, Virginia as part

of the Academy’s cadet summer training program. /bid.

While there, SR engaged in activity that violated Coast

Guard regulations and the UCMJ, and thereby poten-

tially jeopardized her career. /bid.; id. at 60a, 62a. Peti-

tioner heard rumors about the incident and contacted

SR. Jd. at 3a. SR discussed the situation with petitioner

but, as she later admitted, lied about some of the details

to make herself look better. /d. at 3a, 26a. Petitioner

assured SR that he would “try to squash [the] rumors.”

Td. at 3a.

Q

o

After they had returned to the Academy in the fall,

petitioner contacted SR again and told her he was still

hearing the rumors. Pet. App. 3a, 26a, 60a. At this point,

SR told petitioner the whole truth about the incident, out.

of fear that he would otherwise stop helping her. /d. at

26a. Petitioner said that he would need “motivation” to

continue helping SR to suppress the rumors. /d. at 3a,

26a; C.A. App. 200. Although denying that he was de-

manding sexual favors, petitioner proposed that he and

SR take a nude photograph together as a sign of trust.

Pet. App. 3a-4a. SR permitted petitioner to take the pho-

tograph in her room that evening. /d. at 4a, 26a.

Petitioner returned to SR’s room later that night.

Pet. App. 4a. He laid down in her bed, fondled her

breast, and inserted his fingers into her vagina. C.A.

App. 183-136, 201; Pet. App. 4a. Petitioner then per-

formed oral sex on SR, after which SR performed oral

sex on petitioner. C.A. App. 1385-138; Pet. App. 4a, 60a.

Petitioner claimed that this sexual activity was con-

sensual—an assertion that, if true, would have meant

that both he and SR violated Coast Guard regulations

against consensual sexual activity in Academy barracks.

See Pet. 4; C.A. App. 188-189 (regulations). SR, how-

ever, explained that she had verbally objected to peti-

tioner’s actions. Jd. at 134-1385. She further explained

that she went along only because she was “scared to up-

set him because he had a big secret of mine.” Pet. App.

26a; C.A. App. 137.

2. a. Following an investigation into this and other

alleged misconduct involving petitioner, the prosecuting

authority determined that ten specifications against peti-

tioner should be tried by general court-martial. C.A.

App. 89-98. Three of the specifications concerned peti-

tioner’s activities with SR: one specification of sodomy,

4

in violation of Article 125 of the UCMJ, 10 U.S.C. 925;

one specification of extortion, in violation of Article 127

of the UCMJ, 10 U.S.C. 927; and one specification of in-

decent assault, in violation of Article 134 of the UCMJ, 10

U.S.C. 934. C.A. App. 95. Petitioner was also charged

with an additional specification of sodomy; an additional

specification of extortion; one specification of absence

without leave, in violation of Article 86 of the UCM, 10

U.S.C. 886; one specification of disobeying a lawful order,

in violation of Article 92 of the UCMJ, 10 U.S.C. 892; one

specification of rape, in violation of Article 120 of the

UCMJ, 10 U.S.C. 920; one specification of assault, in vio-

lation of Article 128 of the UCMJ, 10 U.S.C. 928; and one

specification of unlawful entry, in violation of Article 134

of the UCMJ, 10 U.S.C. 934. C.A. App. 91, 92, 95.

b. Before the court-martial, petitioner filed a motion

seeking to introduce evidence of SR’s sexual history.

Pet. App. 59a. According to petitioner, the incident that

SR had been trying to keep secret was a sexual encoun-

ter with an enlisted man. /d. at 27a. Petitioner claimed

that SR had originally told petitioner that the encounter

involved only oral sex and was not consensual, but had

admitted in the fall that the encounter included inter-

course and was consensual. /bid.

Petitioner did not dispute that this evidence was pre-

sumptively barred by Military Rule of Evidence (M.R.E.)

412, which generally prohibits the introduction in a

sexual-misconduct case of evidence “offered to prove that

any alleged victim engaged in other sexual behavior.”

M.R.E. 412(a)(1); see Pet. App. 61a; C.A. App. 179-181.

Petitioner argued, however, that the evidence was admis-

sible under the Rule’s exception for “evidence the exclu-

sion of which would violate the constitutional rights of

5

the accused.” M.R.E. 412(b)(1)(C); see Pet. App. 61a;

C.A. App. 180-181.

As required by the Rule, see M.R.E. 412(c)(3), the

military judge held a closed evidentiary hearing on peti-

tioner’s motion. Pet. App. 60a. Petitioner testified about

his claims regarding the nature of SR’s secret. /d. at

59a; C.A. App. 107-108. After being informed of her

rights against compulsory self-incrimination, SR declined

to testify at the hearing. /d. at 100, 177-178; see UCMJ

Art. 31(b), 10 U.S.C. 831(b).

ce. The military judge denied petitioner’s motion in a

written order, rejecting “several theories” offered by

petitioner for admitting evidence of SR’s sexual history.

Pet. App. 59a-64a. The military judge determined that

the evidence was not admissible for the purpose of im-

peaching SR’s credibility generally, reasoning that SR’s

unwillingness to admit unlawful activity to petitioner was

not very probative of her character for truthfulness; that

members (the military equivalent of jurors) might well

consider the evidence improperly “for its tendency to

prove that [SR] is a bad person”; and that “conflicting

testimony on this point * * * could easily sidetrack

members” from focusing on the charged offenses. /d. at

62a. The military judge further determined that the

sexual-history evidence was not admissible in order for

the members to assess how far SR might go to protect

her secret, because the members “could be informed that

the secret was information that if revealed could have an

adverse impact on her Coast Guard career, including

possibly disciplinary action under the UCMJ.” Jbzd.

Finally, the military judge determined that the evi-

dence was not admissible to show that SR “has a propen-

sity to bring false accusations against men with whom

she has had consensual sexual encounters,” because its

6

“minimal probative value” was “outweighed by danger of

unfair prejudice to [SR]’s privacy interests and the po-

tential danger of sidetracking the member{[s’] attention

to a collateral issue.” Pet. App. 63a, 64a. The military

judge noted that the evidence was “not strong since it

comes from the accused, who has an obvious bias.” /d. at

63a. “More important,” the military judge continued, the

alleged prior sexual misconduct did not involve “an offi-

cial complaint.” /bid. “[E]ven if [SR] falsely told [peti-

tioner] in confidence that her sexual encounter with the

enlisted man was non-consensual in an effort to suppress

rumors,” the military judge reasoned, “this would have

little value in proving that her official allegations against

[petitioner] resulting in a public trial are also false.” I/d.

at 64a.

d. During the court-martial, SR testified on direct

examination that she had been involved in a “bad situa-

tion” during the summer of 2005 that she believed could

threaten her career and jeopardize her ranking. C.A.

App. 124. She further testified that she did not reveal

the “whole situation” to petitioner at first. Jd. at 125.

On cross-examination, defense counsel elicited from

SR that, to convince petitioner to help her, she had ini-

tially “lie|d] to” him by omitting details about her prior

conduct that painted her in “a bad light.” C.A. App. 148-

149. In accordance with the pre-trial ruling, the military

judge did not permit the defense to cross-examine SR

about the specific details of her secret.

e. The members found petitioner guilty on all three

specifications—sodomy, extortion, and indecent as-

sault—relating to his conduct with SR. C.A. App. 173-

174. They also found petitioner guilty of leaving his place

of duty and attempting to disobey an order. /bid. They

acquitted him of the remaining charges. /bid. Petitioner

7

was sentenced to six months of confinement, dismissal

from the Coast Guard, and forfeiture of all pay and allow-

ances. /d. at 175.

3. The United States Coast Guard Court of Criminal

Appeals affirmed. Pet. App. 23a-58a. As relevant here,

petitioner argued on appeal that the military judge had

violated his rights under the Confrontation Clause of the

Sixth Amendment “by limiting his cross-examination of

SR.” /d. at 24a. The court majority reviewed that claim

de novo, pursuant to its statutory obligation to affirm

“only such findings of guilty * * * as it finds correct in

law and fact and determines, on the basis of the entire

record, should be approved.” UCM Art. 66(¢), 10 U.S.C.

866(c); see Pet. App. 25a & n.7; see also United States v.

Cole, 31 M.J. 270, 272 (C.M.A. 1990) (Article 66(c) confers

“de novo power of review’’).

Applying that de novo standard, the majority found

“no error in the military Judge’s ruling” limiting the

scope of cross-examination. Pet. App. 38a. It recog-

nized that “the Confrontation Clause guarantees an op

portunity for effective cross-examination, not cross

examination that is effective in whatever way, and to

whatever extent, the defense might wish.” /d. at 2&a

(quoting Delaware v. Van Arsdall, 475 U.S. 673, 679

(1986)). Petitioner, it determined, had the opportunity

“to attack SR’s credibility by means of showing a prior

lie”; “to show” by means other than sexual-history evi-

dence “that SR had a motive to lie in her testimony

against” petitioner; and to “portray|]| [SR] as the archi-

tect of a scheme of false allegations intended to cover up

her own misconduct.” /d. at 8la-32a (internal! quotation

marks omitted).

That SR’s previous lie was allegedly about her sexual

history “was no more than superficially relevant, was not

re.

material, and was not vital to |petitioner’s] defense.”

Pet. App. 38a; see id. at 28a (confrontation right violated

only if excluded evidence is “relevant,” “material,” and

“vital” to defense). In particular, the court rejected any

“parallel” between SR’s motivation to lie to petitioner

about sexual activity with an enlisted man and her moti-

vation to lie to the authorities, and under oath, about her

sexual activity with petitioner. /d. at 31a. In the former

situation, where there were rumors of misconduct, “it is

fair to argue” that “avoiding discipline” motivated SR to

lie. /d. at 30a. In the latter situation, “[t]here is no evi-

dence on the record, no suggestion, and no reason to be-

lieve that anyone knew about” her sexual activity with

petitioner, “and thus no reason to believe a preemptive

false report on her part would be useful to her.” /d. at

dla.

Judge Tucher dissented in relevant part. Pet. App.

40a-58a. He would have held “that the military judge

abused his discretion when he prohibited the defense

from cross-examining SR on her false statement to [ peti-

tioner] that the encounter [with the enlisted man] was

nonconsensual,” and that such error was non-harmless.

Id. at 40a, 58a. He viewed the excluded inquiry to have

been “highly probative of the defense theory that SR

engaged in a pattern of fabrication to avoid discipline.”

Id. at 40a.

4. The CAAF granted discretionary review on the

Confrontation Clause issue and affirmed by a divided

vote. Pet. App. la-2la. The two-judge plurality stated at

the outset that the CAAF “[t]ypically” reviews eviden-

tiary decisions for abuse of discretion, and that it “ha[s]

also applied the abuse of discretion standard to alleged

violations of the Sixth Amendment Confrontation

Clause.” /d. at 5a (citing, onter ala, United States v.

Israel, 60 M.J. 485, 48% (C.A.A.I*. 2005)). The plurality

then concluded that the additional cross-examination of

SR barred by the military judge “was not ‘constitution

ally required.” /d. at 6a. Jt explained that by allowing

petitioner “to present a fairly precise and plausible the

ory of bias’—namely, that SR “lied to preserve a secret

which if revealed could have an adverse impact on her

Coast Guard career”—the military judge had “provided

[petitioner] what he was due under the Confrontation

Clause: an opportunity to impeach the complainant's

credibility.” /d. at 7a (internal quotation marks omitted).

The plurality determined that, with the “vital” issue of

SR’s prior lie already in evidence, “it is unclear why the

lurid nuances of her sexual past would have added much

to [petitioner’s}] extant theory of fabrication.” /bid.

Judge Baker concurred in the result. In his view, the

case was “governed” by the CAAF’s decision in (/nited

States v. Banker, 60 M..J. 216, 225 (2004), which placed on

petitioner “[t]he burden * * * to prove why the M.R.I[:.

412 prohibition should be lifted.” Pet. App. Sa. Judge

Baker concluded that petitioner’s “theory of admission

|wa|s too far-fetched to pass constitutional * * * mus-

ter” because, among other things, “i]t does not logically

follow that someone who would lie to protect her privacy

from a probing acquaintance would lic to the police and

commit perjury.” /d. at 9a.

Judge Erdmann, joined by Chief Judge le ffron, di:

sented in relevant part. Pet. App. 10a-2la. Reviewing

for abuse of discretion, id. at 14a, the dissenting: judyes

concluded that “the evidence [was] clearly admissible,”

id. at 14a, and that the error was non-harmless, 7d. at

21a. In their view, the defense should have been permit

ted to argue that SR had previously lied about the con

sensual nature of her sexual activity with an enlisted man

1()

in order to avoid discipline, thereby increasing the likeli

hood that she was lying about the consensual nature of

her sexual activity with petitioner for similar reasons.

See, e.g., ubid.

ARGUMENT

Petitioner contends (Pet. 12-26) that the CAAF erred

in reviewing for abuse of diseretion his claim that the

military judge’s limitations on the cross-examination of

SR violated the Confrontation Clause of the Sixth

Amendment. That contention lacks merit. The CAAF’s

standard of review was correct and consistent with this

Court’s precedents, in particular Delaware v. Van Ars

dall, 475 U.S. 673 (1986). There is furthermore no con

flict among the circuits that warrants further review of

petitioner's case. This Court has recently denied certio

rari on the question presented, Larson v. United Slates,

552 U.S. 1260 (2008), and should do so again here.

1. a. In Van Arsdall, this Court held that a trial

court's restrictions on a defendant's cross-cxamination of

a prosecution witness for bias amounted to a violation of

the Confrontation Clause, but that the violation was sub

ject to constitutional harmless-error analysis. 475 U.S.

at 679-680. In reaching that conclusion, the Court ob

served that the Confrontation Clause does not “| pre

vent| | a trial judge from imposing any limits on defense

counsel’s inquiry into the potential bias of a prosecution

witness.” /d. at 679. Rather, the Court explained, “trial

judges retain wide latitude insofar as the Confrontation

Clause is concerned to impose reasonable limits on such

cross-exXamination 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.” /bid. The Court found a vio

lation of the Confrontation Clause in Van Arsdall itself

1]

only because “the trial court [had] prohibited al/ inquiry

into the possibility that {the prosecution witness] would

be biased as a result of the State’s dismissal of his pend-

ing public drunkenness charge.” /bid.

The military judge’s restriction here on the cross-ex-

amination of SR is exactly the type of “limit[] on defense

counsel’s inquiry into the potential bias of a prosecution

witness” that the Confrontation Clause gives a trial court

“wide latitude” to impose. Van Arsdall, 475 U.S. at 679.

The military judge did not “prohibit[] al/ inquiry into” a

potential source of bias, 7bid., but instead “allowed [peti-

tioner| to present a fairly precise and plausible theory of

bias’—namely, that SR had previously lied to protect

herself and was doing so again, Pet. App. 7a. The mem-

bers heard SR “admit]] that she had been in a ‘situation’

that could have jeopardized her career and her ranking

as a cadet; that the ‘situation’ was in violation of cadet

regulations and possibly a violation of the UCMJ; and

that she initially lied to [petitioner] about the ‘situation.””

Ibid. Petitioner was limited only from cross-examining

SR about the alleged sexual nature of that situation.

That limitation was based on the very sorts of “con-

cerns”—“harassment, prejudice, confusion of the issues,

* * * fand] marginal{] relevan|ce|”’—that the Confronta-

tion Clause permits trial courts to take into account. Van

Arsdall, 475 U.S. at 679; see Pet. App. 62a-64a (express-

ing concern that the members would take sexual-history

evidence as proof that SR “is a bad person,” that such

evidence could create “prejudice to [SR]’s privacy inter-

ests,” that such evidence could “sidetrack{] the mem-

ber[s’] attention to a collateral issue,” and that the “pro-

bative value of this evidence is * * * low”).

In light of the military judge’s “wide latitude” to cabin

cross-examination in this way, Van Arsdall, 475 U.S. at

12

679, abuse of discretion was necessarily the appropriate

standard of review. Petitioner objects that Van Arsdall

merely “addresses the substance of the Confrontation

Clause,” and “reveals nothing about the proper appellate

standard of review.” Pet. 23. But the proper appellate

standard of review naturally depends upon the issue the

appellate court is considering. Under Van Arsdall, as

applied to this case, the issue the appellate court is con

sidering is whether the military judge’s limitation on

cross-examination was within the “wide latitude” he en

joys under the Confrontation Clause. 475 U.S. at 679.

Such consideration is inherently deferential—the ques-

tion is not what the appellate court itself would have

done, but instead whether what the trial court did was

“reasonable,” 7b¢d.—and is therefore properly described

as “abuse-of-discretion,” rather than “de novo,” review.

See, e.g., Gall v. United States, 552 U.S. 38, 56 (2007)

(observing that review of whether a sentence is “reason-

able” equates to review of “whether the District Judge

abused his discretion” in weighing the relevant factors);

see also Monsanto Co. v. Geertson Seed Farms, 1308.

Ct. 2743, 2766 (2010) (““Deterence * * * is the hallmark

of abuse-of-discretion review.”) (quoting General Elec.

Co. v. Joiner, 522 U.S. 136, 143 (1997)).

b. Petitioner suggests (Pet. 16-22) that deferential

review of Confrontation Clause claims is anomalous and

inappropriate. That suggestion is misplaced. The stan-

dard of review applied to a determination of constitu-

tional dimension depends upon the nature of that deter-

mination. See Miller v. Fenton, 474 U.S. 104, 113 (1985)

(“[A]n issue does not lose its factual character merely

because its resolution is dispositive of the ultimate con-

stitutional question.”). Not every constitutional right, or

even every constitutional trial right, is reviewed de novo.

13

A defendant’s constitutional right to be free of racial bias

in jury selection, for example, is reviewed for clear error.

See, e.g., Snyder v. Louisiana, 552 U.S. 472, 478 (2008).

That is because the critical issue is the prosecutor's dis-

criminatory intent, and the trial court is uniquely situ-

ated to observe not only the prosecutor’s demeanor in

explaining his reasons for striking certain jurors but also

the demeanor of the potential jurors themselves. Jd. at

477.

Confrontation Clause claims similarly involve the

sorts of judgment calls that the trial judge is in the best

position to make. Cf. Miller, 474 U.S. at 113-114 (selec-

tion of standard of review “at times has turned on a de-

termination that, as a matter of the sound administration

of justice, one judicial actor is better positioned than an-

other to decide the issue in question”). “In deference to

a [trial] court’s familiarity with the details of the case and

its greater experience in evidentiary matters, courts of

appeals afford broad discretion to a |trial] court’s eviden-

sop rulings.” Sprint/United pier Co. v. Mendelsohn,

552 U.S. 379, 384 (2008); see, e.g., Old Chief v. United

States, 519 U.S. 172, 180, 183 n.7 (1997); United States \

Abel, 469 U.S. 45, 54 (1984). In particular, and as peti-

tioner acknowledges (Pet. 24-26), this Court has repeat-

edly held that “|t]he extent of cross-examination with

respect to an appropriate subject of inquiry is within the

sound discretion of the trial court,” Alford v. United

States, 282 U.S. 687, 694 (1931), and has reviewed restrie-

tions on cross-examination for abuse of that discretion.

[bid.; see Glasser v. United States, 315 U.S. 60, 83 (1942);

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

(1937). As Van Arsdall demonstrates, a trial court re-

tains “wide latitude” to exercise its discretion even under

the Confrontation Clause, 475 U.S. at 679, and there is

14

accordingly no basis for allowing an appellant automati-

eally to ratchet up the standard of review simply by 1n-

voking the Constitution. See Davis v. Alaska, 415 U.S

308, 318 n.6 (1974) (noting that, in Alford, the Court had

reviewed a cross-examination claim of “constitutional

dimension” for abuse of discretion).

2. Petitioner asserts (Pet. 12-16) that certiorari is

warranted because five federal circuits—the First, Fifth,

Seventh, Eighth, and Tenth—would all have reviewed his

claim de novo. That assertion lacks merit. No disagree-

ment exists among the circuits that would justify grant-

ing the petition.

a. Asa threshold matter, the difference between “de

novo” and “abuse of discretion” review for a claim like

petitioner's is largely, if not entirely, a matter of termi-

nology. All five of the aforementioned circuits recognize

Van Arsdall’s conclusion that the Confrontation Clause

permits a trial judge to place “reasonable” limits on

eross-examination. United States v. Martinez-Vives, 475

F.3d 48, 538 (st Cir. 2007); United States v. Hitt, 473

F.3d 146, 155-156 (Sth Cir. 2006), cert. denied, 549 U.S.

1360 (2007); United States v. Linzy, 604 F.8d 319, 323

— Cir. 2010), cert. denied, No. 10-5391, 2010 WL

2786838 (Oct. 4, 2010); United States v. Oaks, 606 F.3d

530. 539-540 po Cir. 2010); United States v. Mullins,

613 F.3d 1273, 1283 (10th Cir. 2010). As discussed above,

de novo review a “reasonableness” is the functional

equivalent of abuse-of-discretion review. See supra at

12; Gall, 552 U.S. at 56.

b. Even if there were a difference between de novo

and abuse-of-giscretion review in this context, four of the

five circuits petitioner cites—the First, Fifth, Seventh,

and Eighth—expressly hold that a trial court’s limitation

on the cross-examination of government witnesses does

15

not always receive de novo review. Instead, these cir-

cuits employ a hybrid approach that varies the standard

of review depending upon the precise nature of the defen-

dant’s challenge: they review de novo arguments that

limitations on cross-examination violated the Confronta-

tion Clause by effectively preventing the defendant from

challenging the witness, but review lesser limitations for

abuse of discretion. See Martinez-Vives, 475 F.3d at 53

(“On a challenge to a district court’s limitation of cross-

examination, we first perform a de novo review to deter-

mine whether a defendant was afforded a reasonable

opportunity to impeach adverse witnesses consistent with

the Confrontation Clause. Provided that threshold is

reached, we then review the particular limitations only

for abuse of discretion.”) (internal quotation marks and

citations omitted); //?tt, 473 F.3d at 155-156 (“A district

court's limitation of cross-examination of a witness is

reviewed for abuse of diseretion. Abuse-of-discretion

review is only invoked if the limitation did not curtail the

defendant’s Sixth Amendment right to confront wit-

nesses. Whether a defendant’s Sixth Amendment rights

were violated is reviewed de novo.”) (citations omitted);

Linzy, 604 F.3d at 323 (“When deciding whether limits

on cross-examination are permissible, we must first dis-

tinguish between the core values of the Confrontation

Clause and more peripheral concerns which remain

within the trial court’s ambit. * * * In determining

whether the district court abused its discretion by limit-

ing cross-examination, we must examine whether the

jury had sufficient details about the witness to assess the

witness’ motives and biases. On the other hand, where

the limit imposed on cross-examination implicates the

core values of the Confrontation Clause, we review the

limitation de novo.”) (internal quotation marks, alter-

16

ations, and citations omitted); United States v. Kenyon,

481 F.3d 1054, 1063 (8th Cir. 2007) (“We review eviden-

tiary rulings regarding the scope of a cross examination

for abuse of discretion, but where the Confrontation

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

(citation omitted).

Though these circuits articulate their rules in differ-

ent ways,’ the rules appear to be functionally similar.

The Ninth Circuit recently considered the law in all of

these circuits, as well as this Court’s precedents, in an en

bane decision addressing the proper standard of review

for Confrontation Clause cross-examination claims. See

United States v. Larson, 495 F.3d 1094, 1101-1102 & n.6

(2007), cert. denied, 552 U.S. 1260 (2008). Relying on

Van Arsdall, the Ninth Circuit concluded that de novo

review applies “{ilf the defendant raises a Confrontation

Clause challenge based on the exclusion of an area of in-

quiry,” but that abuse-of-discretion review applies “[i]n

reviewing a limitation on the scope of questioning within

a given area.” Jd. at 1101. The Ninth Circuit went on to

observe that this holding brought it “in line with a num-

ber of [its] sister circuits,” including the First, Fifth,

Seventh, and Eighth, id. at 1101 n.6, and this Court de-

clined to review the issue, 552 U.S. at 1260.

' There are some differences, for example, regarding the justification

for applying abuse-of-discretion review to certain types of limitations

on cross-examinauion—in particular, whether such deferential review

is appropriate because those limitations implicate the Confrontation

Clause only marginally, see Liazy, 604 F.3d at 323, or because those

limitations do not implicate the Confrontation Clause at all, see, e.g.,

United States v. Davis, 393 F.3d 540, 548 (5th Cir. 2004). What is im

portant for present purposes, however, is not whether challenges to

those limitations are appropriately labeled as “constitutional,” but the

standard of review that such challenges receive.

17

As previously explained (supra at 11), the military

judge here did not exclude an entire “area of inquiry”

(SR’s lie about her previous miseonduct), but instead

merely “limitfed] the scope of questioning within [that]

area” (barring questions about the precise nature of that

miseonduet). Larson, 495 F.3d at 1101. Therefore, un-

der the hybrid standard just described, petitioner’s claim

would be reviewed for abuse of discretion—the same

standard of review that the CAAF applied.”

e. The Tenth Circuit, for its part, has two separate

lines of cases that each set forth different rules. In some

of its recent cases, the Tenth Circuit appears to have

announced that de novo review applies to all Confronta-

tion Clause cross-examination claims. See United States

v. Robinson, 583 F.3d 1265, 1274 (2009); United States v.

* The petition does not argue that the military judge’s ruling did ex

clude an entire “area of inquiry,” and such a fact-bound argument about

how petitioner’s particular claim ought to be characterized would not

warrant this Court’s review. Indeed, review on that basis would be es-

pecially unwarranted in light of precedent indicating that the CAAF it-

self would review de novo the preclusion of an entire area of examina-

tion. The CAAF has stated, in a case cited by the plurality here (Pet.

App. 5a), that a “defendant’s Sixth Amendment right to confront the

witnesses against him is violated where it is found that a trial judge has

limited cross-examination in a manner that precludes an entire line of

relevant inquiry.” United States v. Israel, 60 M.J. 485, 488 (2005) (cit-

ing United States v. Atwell, 766 F.2d 416, 419 (10th Cir. 1985) (explain-

ing that abuse of discretion review is inappropriate “where the trial

court precludes inquiry into an entire area of relevant cross-examina-

tion”)); see United States v. Carruthers, 64 M.J. 340, 344 (C.A.A.F.

2007) (stating that a “military judge’s discretionary authority arises

only after there has been permitted as a matter of right sufficient cross-

examination.”) (emphasis added; internal quotation marks omitted).

Even if the CAAF had misapplied its own precedent, that would be a

matter for the CAAF, not this Court, to resolve. See Wisniewski v.

United States, 353 U.S. 901, 902 (1957) (per curiam).

18

Montelongo, 420 F.3d 1169, 1173 (2005).In other prece-

dents, however, it has—like the First, Fifth, Seventh,

Kighth, and Ninth Circuits—applied a hybrid abuse-of-

discretion/de novo standard. See United States v.

Rosario Fuentez, 231 F.3d 700, 704 (10th Cir. 2000)

(“The complete denial of access to an area properly sub-

ject to cross-examination infringes on the Sixth Amend-

ment right of confrontation, and constitutes reversible

error. On the other hand, merely limiting the scope of

cross-examination is a matter well within the trial judge’s

discretion and such an error will not lead to reversal un-

less an abuse of discretion, clearly prejudicial to the de-

fendant, is shown.”) (internal quotation marks and cita-

tions omitted); see also, e.g., United States v. Atwell, 766

F.2d 416, 419-420 (10th Cir. 1985).

The Tenth Circuit’s divergent precedents do not give

rise to a circuit conflict that would warrant this Court’s

review. The Tenth Circuit has never explained or tried

to reconcile the two lines of cases, and it is therefore un-

clear what standard it would apply to a claim like peti-

tioner’s. It is up to the Tenth Circuit, not this Court, to

resolve this conflict, see Wisniewski v. United States,

353 U.S. 901, 902 (1957) (per curiam), just as the Ninth

Circuit recently resolved a similar intra-circuit conflict

on the very same issue, see Larson, 495 F.3d at 1100-

1102.

3. Even if the question presented otherwise war-

ranted this Court’s review, this case would not be an ap-

propriate vehicle for considering it. In arguing that

the standard of review was outcome-determinative here,

petitioner (Pet. 15-16) and his amicus (NACDL Amicus

19

Br. 7-16)’ ignore that petitioner’s conviction was af-

firmed under both abuse-of-discretion and de novo stan-

dards of review. As previously discussed (see supra at 7-

8), the majority of the United States Coast Guard Court

of Criminal Appeals reviewed the military judge’s ruling

under a special military-specific statute that requires de

novo appellate review of all issues. Pet. App. 25a & n.7;

UCMJ Art. 66(c), 10 U.S.C. 866(c). It, like the CAAF,

upheld the military judge’s evidentiary ruling. Pet. App.

25a.

Accordingly, what petitioner asserts here is not

merely the right to de novo review of his claim (which he

already has had), but instead the right to de novo review

by a second appellate court. That assertion implicates

features that are peculiar to the military system, which

interposes two appellate tribunals between the trial court

and this Court, one of which conducts de novo review and

one of which primarily exercises discretionary jurisdic-

* Amicus National Association of Criminal Defense Lawyers addi

tionally errs in suggesting (NACDL Amicus Br. 8-9, 11-12) that the

military judge’s evidentiary ruling in this case conflicts with rulings on

similar facts in Olden v. Kentucky, 488 U.S. 227 (1988) (per curiam), and

White v. Coplan, 399 F.3d 18 (1st Cir. 2005). In Olden, the trial court

barred “all evidence” about the extramarital live-in relationship that

the victim was allegedly lying to protect, going so far as to prevent the

defense even from trying to show that she had lied about her living

arrangements during direct examination. 488 U.S. 230 (emphasis add-

ed); see 2d. at 232 (recognizing trial court’s broad discretion reasonably

to limit cross-examination, but concluding that “the limitation here was

beyond reason”). Similarly, in White, the trial court barred “all in-

quiry” into the victims’ alleged prior false allegations of sexual assault.

399 F.3d at 22 (emphasis added). Here, by contrast, the members

heard testimony from SR herself that she had previously lied in cireum-

stances where she might have faced punishment for telling the truth;

the only thing the members did not hear was the alleged sexual context

of that lie. See, e.g., Pet. App. 7a.

20

tion. See UCMJ Art. 67(a), 10 U.S.C. 867(a) (describing

CAAF’s jurisdiction). Petitioner therefore is incorrect in

asserting (Pet. 16 n.14) that “[t]he military context in

which this case arises does not affect its suitability as a

vehicle to answer the question presented.”

Finally, there are indications that the judges in

the CAAF plurality and concurrence would have affirmed

petitioner’s conviction even under a de novo stan-

dard. See Pet. App. 6a (“We conclude that further cross-

examination of [SR] was not ‘constitutionally required.”

(plurality opinion); 2d. at 7a (“The military judge * *

provided [petitioner] what he was due under the Con-

frontation Clause: an opportunity to impeach the com

plainant’s credibility.”) (plurality opinion); zd. at 9a (“The

problem for [petitioner] is that his theory of admission is

too far-fetched to pass constitutional * * * muster.”)

(opinion concurring in the result). No further review is

warranted.

-

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NEAL KUMAR KATYAL

Acting Solicitor General

LANNY A. BREUER

Assistant Attorney General

ScoTt A.C. MEISLER

Attorney

OCTOBER 2010