Thursday, August 02, 2007

Case o' The Week: Mand-min cross mandatory, at minimum? United States v. Larson, en banc

[Ed. note: Because I will be out of the state Monday August 6, this Larson Case o' The Week summary is being posted several days early].

Can one cross a rat about mandatory-minimum sentence? Yes! Or rather, "Probably!" Or perhaps, "Maybe!" The en banc decision in Larson is a huge improvement over a truly dismal opinion by the three-judge panel,
but will still leave many district courts scratching their heads. We've got more ammo, but the defense bar will still have to fight to effectively reveal the crushing mandatory sentences that cooperating witnesses hope to avoid by parroting the AUSA's version of events -- or rather, by "truthfully providing testimony." See United States v Larson, __ F.3d. __, 2007 WL 2192256 (9th Cir. Aug. 1, 2007) (en banc), decision available here.

Players: Argued by Montana AFPD David Ness, decision by Judge Paez. "Concurrence" by Judge Graber, et al., dissent by Judge Hawkins, et al.

Facts: Four co-Ds were charged in a meth conspiracy. Id. at *1. Co-D Poitra and Lamere (“P” & “L”) flipped. P was looking at a five year mand-min, L, a life mand-min. Id. During cross, the defense elicited P’s 5 year mand-min, Montana District Court Judge Haddon interrupted and instructed the jury sentencing was up to him, and limited cross on the subject. Id. at *2. In light of that ruling, L’s life mand-min wasn’t brought up before the jury. Id. The defense did impeach both cooperators, however, on other fronts. The convicted co-D’s appealed, and a three-judge panel held it was not a violation of the Confrontation Clause: the case went en banc.

Issue(s): “These appeals present the question whether the Sixth Amendment Confrontation Clause rights [the convicted defendants] were violated when they were barred from cross-examining two witnesses about the mandatory minimum prison sentences that they would have faced but for their cooperation with the Government.” Id. at *1.

Held: “Before addressing the merits of Defendants' constitutional arguments, we clarify the standard of review that we apply to Confrontation Clause challenges. Under the circumstances here, we review for abuse of discretion, and we hold that Defendants' Confrontation Clause rights were violated. The error was harmless, however, and we therefore affirm their convictions.” Id.

Of Note: We flagged the very troubling three-judge decision in Larson last September. See blog here. The en banc decision is much better, but the compromises necessary to corral the en banc majority do show at the seams. Here are the core holdings of Larson:

1. There is a new hybrid standard of appellate review for Confrontation Clause issues, de novo when an area is completely shut off from cross, “abuse of discretion” for limitations of cross within a subject area. Id. at *5.

2. Limitations on cross on mandatory-minimum sentences can rise to a Confrontation Clause error (i.e., "an abuse of discretion") but the analysis is context-specific. Id. at *6 (discussing factors in Confrontation Clause analysis).

3. Higher mand-mins have greater relevance to show witness motivation. Thus fewer limitations on cross exploring high mand-mins will be tolerated. This is not a per se rule permitting cross re: mandatory-minimums, but as (grumbling ) Graber points out, “The rationale that animates [the majority's] opinion could apply to any statutory minimum term of years, not just to a statutory term of life in prison. The strength of a witness’ incentive to assist the prosecutor may be just as great or greater if she is a young mother facing a 5-year statutory minimum term, or if he is terminally ill and subject to a 10 year statutory minimum.” Id. at *15.

How to Use: Larson will be all things to all parties (ironically, for a “clarifying” en banc decision). The government will argue that the fact that there was no Confrontation Clause error as to P means that lower mand-mins can’t be explored on cross. That spin isn’t true to the reasoning of the majority decision: here, P’s five-year mandatory minimum was disclosed to the jury, which avoided the Confrontation Clause error.

The defense will argue that any limitation on cross on mand-mins is a Confrontation Clause violation – but, unfortunately, we’ll probably have to slug through factual comparisons with the impeachment permitted in Larson. The defense should also emphasize the magical (and mythical) curative powers of limiting instructions: the majority reassures the government and its allies that limiting the jury’s consideration of sentencing can mitigate the jury’s exposure to the numbers discussed in a mand-min cross. Id. at *8 n.9. Nice to be able to use these platitudes about limiting instructions against the government, for a change.

For Further Reading: Larson looks like a Supreme Court case: more splits than an ice-cream parlor. So much for the unifying effect of the fifteen-member en banc. Reporter Pam MacLean has a great article on the end of the larger en banc panels. See article here.

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


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Anonymous Anonymous said...

You argue that "Larson will be all things to all parties," and I think you're right. In that vein, I think there is hidden gold in this case for federal defenders. Let me offer you guys the following and see what you think.

The court's "hybrid" test for confrontation clause cases is nothing of the sort. The court's ruling has the same effect as adopting a straight de novo standard for all confrontation clause challenges, whether the limit on cross examination excludes an entire area of inquiry or only limits it.

The court fooled itself into thinking it was setting different standards for those two situations by purporting to evaluate the limit in this case under the abuse of discretion standard. But look at what it actually did.

What it did was find that the limit was an abuse of discretion because it resulted in a Confrontation Clause violation. This is very similar to those cases in which a discretionary ruling (an evidentiary ruling, for example) is reversed for abuse of discretion because the court relied on an incorrect legal conclusion, where the correctness of the legal conclusion is subject to de novo review.

I think the court did the same thing here. It looked to see whether the limitation resulted in a Confrontation Clause violation -- exercising de novo review without saing so, in my opinion -- and, finding that there was a Confrontation Clause violation, holds that the trial court therefore abused its discretion in limiting the scope of inquiry.

I think you have a good argument for de novo review of every Confrontation Clause case.

Friday, August 03, 2007 12:53:00 AM  
Blogger Steve Kalar said...

Greg makes an excellent point, and develops it in greater depth in his blog at

Larson illustrates the subtle nature of standards of review. While appellate courts assure us that the standard is critical, how does de novo review differ from abuse of discretion review, in practice? As a practical -- not legal -- matter, would the outcome of this case have been different under de novo review, given the obvious compromises that generated the majority decision?

Academics, rather than we mere practitioners, are sure to have answers to these philosophical questions. More immediately, look forward to future pitched battles on the issue of whether a district court completely prohibited inquiry into a subject matter (de novo review), or limited cross within a subject area (abuse of discretion). It could be upon this fine edge that the standard -- and the outcome -- may turn. With that issue in mind, it can't hurt to complain in the trial transcript that a court is completely barring inquiry into an entire subject-area (rather than limiting cross within it). Salt the record thus, and you might earn yourself a better standard of review on appeal.

Friday, August 03, 2007 6:15:00 AM  

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