US v. Larson, No. 05-30076 (8-1-07) (en banc). The 9th, in a strange split (Paez writing for the en banc majority of Schroeder, Fisher, and Gould), holds that a confrontation clause violation occurred when the trial court limited the cross of a witness facing a mandatory minimum sentence without a government motion for substantial assistance. Although constitutional error was found, the 9th deemed it harmless given the weight of evidence. The 9th also resolved the intra-circuit split on the proper standard of review of cross examination restriction. One line of cases used de novo; another abuse of discretion for limitation; and a third employed a mixed approach. Here, the 9th holds that: "If a defendant raises a Confrontation Clause challenge based on the exclusion of an area of inquiry, we review de novo. In reviewing a limitation on the scope of questioning within a given area, we recognize that 'trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such 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.'" (citation omitted) (slip at 9152). A challenge to an precluded area is de novo; a challenge to the manner or scope of cross on nonconstitutional grounds is abuse of discretion. This approach follows the Supremes in Van Arsdall, 475 US 673 (1986) and other circuits.
Turning to the error in the case here, the trial court was compelled to have permitted defense counsel question about mandatory minimums, and the need for a government motion to get under it. In this case, it was a mandatory life sentence.
Concurring, Graber joined by Rymer, Tallman, Clifton, Bea, M. Smith and Ikuta, would find no Confrontation Clause violation in failing to question on the mandatory minimum sentence. Confrontation is satisfied when there are questions about bias and motive; there was no specific need to go into the specific mandatory minimum given the extent of the cross on bias and background. Here, the defense established that the witness had a motive to lie.
Dissenting, Hawkins joined by Pregerson, Reinhardt, and Wardlaw would hold that the error was not harmless.
US v. Goetzke, No. 05-30267 (8-1-07). In a per curiam decision, the 9th affirms a conviction for attempting to persuade a minor to engage in unlawful sexual activity in violation of 18 USC 2422(b). The defendant had met the minor while the minor was staying at a family friend's ranch in Montana. At the ranch was defendant, who was a registered sex offender. The family brought the minor home, but the defendant started to write, and describe both sexual acts, and a possible meeting. A jury could rationally find that the letter writing, descriptions, and plans to commit unlawful acts (1) advanced a criminal purpose; and (2) provided some verification of the existence of that purpose.