Monday, September 04, 2006

Case o' The Week: Taking the "Confrontation" out of the Confrontation Clause, United States v. Larson

A snitch works off a mandatory minimum life sentence by testifying at trial. “OK to exclude this fact in a jury trial,” says the Ninth, in a remarkably unpersuasive decision. United States v. Patricia Ann Larson, __ F.3d. __, 06 Cal. Daily Op. Serv. 10263 (9th Cir. Aug. 28, 2006), opinion available here. An opinion that cries out for en banc review.

Players: Hard fought case by Montana Defender Anthony Gallagher and AFPD David Ness.

Facts: Two snitches testify in a meth trial. Id. at 10263, 10270. Snitch A was looking at five to forty, Snitch B could have gotten mandatory life. Id. at 10269. The trial judge refused to allow defense cross about the likely prison term the snitches were facing absent their cooperation with the government. Id. at 10270. The defense was allowed to cross regarding the snitches’ understanding that only the AUSA could move for a reduced sentence. Id.

Issue(s): “[The] first contention on appeal is that the district court violated their Confrontation Clause rights when it prevented counsel from cross-examining the government’s cooperating witnesses as to the minimum terms of imprisonment they would likely have faced if not for their agreement to testify against the appellants.” Id. at 10271.

Held: Where the court allows extensive examination as to the existence of an agreement by which a witness has traded adverse testimony for the government’s motion for a reduced sentence, the defense has provided the jury with sufficient information upon which to judge the witness’s motivation for testifying and his or her corresponding credibility. The length of the sentence the cooperating witness would otherwise face—even where certain because of an applicable statutory minimum – is marginally relevant in light of testimony about the existence of an agreement generally. Such evidence may be excluded at least where, as here, the jury may have improperly inferred that the defendants faced sentences of similar duration.”
Id. at 10278-79.

Of Note: One snitch faced a five-year mandatory minimum; the second, life. Id. at 10275. The fact that Snitch A was facing five years was of “slight probative value,” explained the panel, because “a five-year sentence is not particularly lengthy.” Id. The panel’s dismissal of this exposure as evidence of bias is staggering, particularly because Snitch A was the twenty-two year old mother of a two-year old baby. Id. at 10277.

Snitch B’s exposure to a “statutory life sentence” has greater probative value,” reluctantly concedes the Court. Id. at 10275. (Gee, do you think?) The panel hold that this evidence of bias was properly excluded, however, because the jury might improperly infer that the defendants were looking at life. Id. at 10276. Actually, the jury could have inferred that the defendants faced a sentence of anywhere from five years to life – the two snitches’ exposures. Moreover, the Ninth has reassured us ad nauseam that jury instructions cure all: why wouldn’t a simple cautionary jury instruction to “not consider punishment as a factor in the defendant’s guilt” cure this potential prejudice?

Larson is fundamentally unfair and is divorced from the realities of criminal practice. Snitch A was never really going to get the stat max of forty years: the five year mandatory minimum was the real motivation for this 22-year old mother to lie on the stand. Snitch B was working off life in prison: the most motive to lie imaginable. Any experienced practitioner knows that mandatory minimums drive defendants to cooperate in the vast majority of 5K cases – and the Ninth here tolerates the entire subject being off limits for the jury? Larson should go en banc -- the Montana folks are preparing the petition now. That we have to tolerate snitch testimony is a sad fact of federal practice; that this testimony cannot be meaningfully tested at trial goes too far.

How to Use
: Larson does not say mandatory minimums are never fair game for cross. Instead, the panel held that this defense was allowed sufficient cross – and the life sentence carried sufficient prejudicial impact – that the limitation on cross did not violate the Confrontation Clause. Id. at 10278. Distinguish the 3-prong analysis of Larson (id. at 10274) when a court tries to shut down your cross: the government will undoubtably read the case far too broadly.

For Further Reading: 47-year old defendant Patricia Larson got eight years in this case. See press release here. Cooperator Joy Potria got 41 months, about twenty months off her 5-year mand-min. Cooperator Rick Lamere got 38 years, with some Rule 35 action possible.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at



Anonymous Anonymous said...

You might want to mention the composition of the panel, since that explains the result.

Tuesday, September 05, 2006 10:26:00 AM  
Anonymous Anonymous said...

Diarmuid F. O’Scannlain authored the opinion and was joined by Susan P. Graber, and Carlos T. Bea,

This opinion really does lower the bar at just how shoddy a work can be and still be accepted by the Ninth. It should have been unpublished simply to hide the poor analysis.

Monday, September 11, 2006 9:45:00 AM  

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