                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-1190
                        ___________________________

                                   Charles Yang

                      lllllllllllllllllllllPetitioner - Appellant

                                          v.

                     Tom Roy, Commissioner of Corrections

                      lllllllllllllllllllllRespondent - Appellee
                                      ____________

                    Appeal from United States District Court
                   for the District of Minnesota - Minneapolis
                                  ____________

                         Submitted: November 20, 2013
                            Filed: February 25, 2014
                                 ____________

Before RILEY, Chief Judge, MELLOY and KELLY, Circuit Judges.
                              ____________

KELLY, Circuit Judge.

      A Minnesota jury found Charles Yang guilty of twelve counts of murder. After
appealing the verdict to the Minnesota Supreme Court, Charles Yang filed a habeas
corpus petition pursuant to 28 U.S.C. § 2254, alleging violations of his Sixth
Amendment Confrontation Clause rights during his trial. The district court1 denied
the petition with prejudice and on the merits. With jurisdiction under 28 U.S.C.
§ 2253, we affirm.

                                   I. Background

       On February 3, 2005, a pool hall fight between the largely Hmong gang
“Menace of Destruction” (“MOD”) and a group of Tibetan men resulted in two men
killed and four wounded. The sequence of events is set out in greater detail in the
district court opinion, but the following describes the facts as relevant here. Earlier
that day, MOD members made hostile comments to some of the Tibetans in the
parking lot of a pool hall in Columbia Heights, Minnesota. That night, at least one
of the Tibetans confronted one of the MOD members in the pool hall. A fight began
inside the hall, but both groups soon ran out the back door and into the alley nearby.
The district court found that at least twelve and possibly twenty gun shots were fired.
Once the gunfire started, police officers came quickly to the pool hall, and some
stopped a car that was leaving the area. MOD member Sai Vang was driving the car,
with petitioner Yang in the passenger seat and Yang’s brother Grogan Yang (also an
MOD member) in the back seat. Police found two guns under the driver’s seat and
a .357 Magnum Smith and Wesson under Yang’s seat, with six empty bullet shells.
Yang acknowledged that he, too, was a member of the MOD gang and had been at the
pool hall that night. A subsequent search of Yang’s home uncovered .357
ammunition in his bedroom.

      Yang was charged with aiding and abetting first-degree premeditated murder
(two counts); aiding and abetting first-degree premeditated murder for the benefit of


      1
      The Honorable Patrick J. Schiltz, United States District Judge for the District
of Minnesota, adopting the report and recommendations of the Honorable Steven E.
Rau, United States Magistrate Judge for the District of Minnesota.

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a gang (two counts); aiding and abetting attempted first-degree murder (four counts);
and aiding and abetting attempted first-degree murder for the benefit of a gang (four
counts). At trial, three witnesses testified against Yang based on conversations with
him while in the Anoka County Jail. Other prosecution witnesses included Vang (the
driver of Yang’s car) and Xee Lor, both of whom were also MOD members and were
also charged with twelve felony counts. Vang’s and Lor’s plea agreements allowed
them to plead guilty to lesser offenses, and they accordingly expected shorter
sentences than if they had gone to trial. The plea agreements also required them to
testify at Yang’s trial.

       The Minnesota trial judge prohibited defense counsel from cross-examining
codefendants Vang and Lor about the number of months by which their sentences
would be reduced based on their plea agreements; he permitted cross-examination
into the percentage of reduction, if the parties could agree on percentages to use. No
such agreement was reached. Although the district court denied Yang’s federal
habeas petition, the court granted a certificate of appealability on the issue of whether
Yang’s rights under the Confrontation Clause were violated by the limit on his
counsel’s ability to cross-examine Vang and Lor regarding the extent to which their
sentences might be reduced in exchange for their testimony against Yang.

                                    II. Discussion

       In reviewing a habeas petition, we first evaluate whether the state court ruling
at issue was contrary to, or an unreasonable application of, clearly established law as
reflected by the holdings, not the dicta, of Supreme Court decisions at the time of the
relevant state court decision. 28 U.S.C. § 2254(d)(1); see also Williams v. Taylor,
529 U.S. 362, 412 (2000). In this context, “contrary to” means that the state court
arrived at a conclusion opposite to that reached by the Supreme Court on a question
of law. Id. at 405. A ruling is an “unreasonable application of” Supreme Court
precedent if the state court identifies the correct governing legal principle but

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unreasonably—rather than simply erroneously or incorrectly—applies that principle
to the facts of the prisoner’s case. Id. at 409, 413. “In other words, the state court’s
application might be erroneous in our independent judgment without being
‘objectively unreasonable.’” Clemons v. Luebbers, 381 F.3d 744, 750 (8th Cir. 2004)
(quoting Wiggins v. Smith, 539 U.S. 510, 521 (2003)). We presume that the state
court’s factual determination is correct unless Yang rebuts it with clear and
convincing evidence. 28 U.S.C. § 2254(e)(1).

       If Yang’s Sixth Amendment rights were violated as a result of the Minnesota
court’s decision, he must also demonstrate that the error was prejudicial, meaning that
it had a “substantial and injurious effect or influence in determining the jury’s
verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quotation omitted). “A
‘substantial and injurious effect’ occurs when the court finds itself in ‘grave doubt’
about the effect of the error on the jury’s verdict.” Toua Hong Chang v. Minnesota,
521 F.3d 828, 832 (8th Cir. 2008) (quoting O’Neal v. McAninch, 513 U.S. 432, 435
(1992)). “‘Grave doubt’ exists where the issue of harmlessness is ‘so evenly balanced
that [the court] feels [itself] in virtual equipoise as to the harmlessness of the error.’”
Id.

   A. Contrary to or Unreasonable Application of Clearly Established Law

       A defendant has the right under the Sixth Amendment’s Confrontation Clause
to elicit enough facts about a witness’ “possible biases, prejudices, or ulterior
motives” to let the jury assess witness credibility. Davis v. Alaska, 415 U.S. 308, 316
(1974). “[T]he exposure of a witness’ motivation in testifying is a proper and
important feature of the constitutionally protected right of cross-examination.” Id.
at 316–17. “[A] criminal defendant states a violation of the Confrontation Clause by
showing that he was prohibited in engaging in otherwise appropriate
cross-examination designed to show a prototypical form of bias on the part of the
witness, and thereby ‘to expose to the jury the facts from which jurors . . . could

                                           -4-
appropriately draw inferences relating to the reliability of the witness.’” Delaware v.
Van Arsdall, 475 U.S. 673, 680 (1986) (quoting Davis, 415 U.S. at 318). Even so,
this right is not unlimited: a defendant is guaranteed “an opportunity for effective
cross-examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.” Delaware v. Fensterer, 474 U.S. 15, 20
(1985). The trial judge “retain[s] 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.”
Van Arsdall, 475 U.S. at 679. We take these considerations into account when
assessing Yang’s claim that the state court violated his Sixth Amendment rights.

       In affirming Yang’s verdict, the Minnesota Supreme Court relied on two
Minnesota decisions regarding two codefendants that applied this line of cases. In
State v. Greenleaf, 591 N.W.2d 488 (Minn. 1999) and State v. DeVerney, 592
N.W.2d 837 (Minn. 1999), the Court considered the impact on defendants’ Sixth
Amendment rights when the trial court limited the extent to which their codefendant
Martin was cross-examined about his plea agreement. Martin’s plea agreement
provided that he was required to testify truthfully at Greenleaf’s and DeVerney’s
trials and that he would receive a sentence ranging from 163 to 244.5 months.
Greenleaf, 591 N.W.2d at 502. The trial judge did not allow Greenleaf’s counsel to
question Martin about the exact number of months by which his sentence could be
reduced, but the judge “did not prohibit Greenleaf from cross-examining Martin
regarding every other aspect of the plea agreement, including the percentages by
which Martin’s sentence could be reduced.” Id. Mindful of Fensterer’s admonition
that “the Confrontation Clause guarantees only ‘an opportunity for effective cross-
examination,’” the Minnesota Supreme Court found that the trial judge was correct
to be “concerned that a recitation of the number of months of confinement Martin
could serve might mislead the jury regarding the number of months another
defendant, if convicted, might be confined.” Id. (quoting Fensterer, 474 U.S. at 20).

                                         -5-
Since “[i]t is for the court to sentence, and not the jury,” the trial court had “properly
prevented the jury from speculating about possible sentences.” Id. The Court
reached the same conclusion in codefendant DeVerney’s appeal. DeVerney, 592
N.W.2d at 845.

       Based on Greenleaf and DeVerney, the trial judge ruled that Yang could not
ask Vang and Lor about the specific number of months by which their sentences
might be reduced. Although Yang was permitted to ask them about the percentage
reduction, there was no such percentage explicitly included in their plea agreements,
nor could defense and prosecution counsel agree on one. Tr. 795–804, No. 11-177,
ECF No. 5 Ex. 4. Yang was thus unable to elicit information that would quantify
Vang’s and Lor’s anticipated sentence reductions. He was, however, allowed to ask
Vang about the charges that had been brought against him; those to which he
ultimately pled guilty; and whether he was satisfied with the plea agreement. Id. at
1777–79. On direct exam, Lor testified, unprompted, that he had taken a “32 years
plea agreement” with the state; when asked whether he agreed “to plead guilty to a
lower count of murder . . . to take advantage of less time in jail” and whether he
“believed [the plea agreement] was a good deal” for him, he answered in the
affirmative. Id. at 1843. On cross-examination, Yang asked Lor whether, as part of
his plea agreement, Lor would be able to serve his sentence for the charges arising
from the pool hall incident concurrently with a sentence for unrelated charges; Lor
again said yes. Id. at 1888. Lor was also cross-examined as to the charges he
originally faced and those to which he pled guilty in the plea agreement. Id. at 1893.
The Minnesota Supreme Court held that the trial court did not err in limiting cross-
examination: “the jury had sufficient information about [Yang’s] codefendants’ plea
agreements to assess their credibility,” since “[t]he jury knew that the codefendants
received considerably less jail time in exchange for their testimony.” State v. Yang,
774 N.W.2d 539, 553 (Minn. 2009).




                                           -6-
       In evaluating the Confrontation Clause implications, we are concerned that “the
accused should [be] able to contrast the original punishment faced by the witness with
the more lenient punishment contemplated by the plea agreement.” United States v.
Walley, 567 F.3d 354, 360 (8th Cir. 2009). This contrast, however, need not be in the
form of a particular number attached to the sentencing benefit received by a testifying
codefendant. In Walley, we evaluated on direct appeal the claim that the district court
improperly limited the defendant’s ability to cross-examine a cooperating witness,
Brandon Pender, about the possible sentence he was facing. During direct
examination, Pender admitted that he was testifying pursuant to a plea agreement with
the government and that he hoped to receive a reduced sentence as a result of his
testimony. The district court did not allow cross-examination about the forty-year
maximum sentence Pender faced or the five-year mandatory minimum sentence he
could avoid only if the government filed a substantial-assistance motion. Instead, the
district court allowed inquiry into whether Pender was “facing the possibility of a
significant sentence in this case.” Id. at 359. Given the information the jury had
about Pender’s cooperation plea agreement, we were “not persuaded that evidence of
Pender facing a ‘five-year sentence’ rather than a ‘significant sentence’ would have
given the jury a ‘significantly different impression’ of Pender’s credibility.” Id. at
360 (citing Van Arsdall, 475 U.S. at 680).

       In this case, the jury knew that Vang and Lor pled guilty to lesser charges and
that both hoped for a lower sentence as a result. See Walley, 567 F.3d at 360. Yang
argues, however, that the trial judge erred in forestalling specific inquiry into the
percentage by which Vang’s and Lor’s sentences were reduced by virtue of their plea
agreements. This, Yang asserts, violated his rights under the Confrontation Clause.
Although the agreements did not include percentages, Yang contends that the trial
judge could have estimated a percentage based on the sentences they potentially faced
from the original charges. We find that this was not a realistic possibility. Under
Minnesota law, a premeditated first-degree murder conviction meant a mandatory life
sentence, which is inherently not a fixed number of months. Minn. Stat. Ann.

                                         -7-
§ 609.185(a)(1) (2004). Calculating the sentences that Vang and Lor anticipated
absent a plea agreement would be complicated by the fact that they faced multiple
counts of murder, at least one of which was charged as a crime committed for the
benefit of a gang and thus subject to different sentence calculations. See Minn. Stat.
Ann. §§ 609.15(1), 609.229 (2004). More importantly, however, Vang and Lor had
not been sentenced at the time they testified, so estimating their percentage reduction
would have been little more than a guess. It is also unclear how defense counsel
would have elicited this information from Vang and Lor themselves. In this case,
permitting cross-examination based on conjecture likely risked confusing the jury,
without giving the jury a “‘significantly different impression’” of the witnesses’
credibility. See United States v. Baldenegro-Valdez, 703 F.3d 1117, 1123–24 (8th
Cir. 2013) (quoting Van Arsdall, 475 U.S. at 680). We find that the Minnesota
Supreme Court’s determination that Yang’s Confrontation Clause rights were not
violated was not an unreasonable application of Supreme Court precedent.

                                    B. Prejudice

       Even if the jury were left without enough facts to gauge Vang’s and Lor’s
credibility such that Yang’s Sixth Amendment rights were violated, Yang must show
that the state court’s error had a “substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht, 507 U.S. at 623 (quotation omitted). The
Supreme Court in Van Arsdall listed several factors for reviewing courts to use in
assessing prejudice: “the importance of the witness’ testimony in the prosecution’s
case, whether the testimony was cumulative, the presence or absence of evidence
corroborating or contradicting the testimony of the witness on material points, the
extent of cross-examination otherwise permitted, and, of course, the overall strength
of the prosecution’s case.” 475 U.S. at 684. Since the Minnesota Supreme Court
found no Confrontation Clause violation in Yang’s case, it did not assess prejudice;




                                         -8-
the district court therefore did so de novo.2 We agree with the district court that the
prosecution’s case did not depend so much on Vang’s and Lor’s testimony that
limiting their cross-examination was prejudicial to Yang.

       Although their testimony was damaging to Yang, Vang and Lor did not provide
enough material information to have a “substantial and injurious effect” on the jury’s
verdict. Brecht, 507 U.S. at 623. Vang testified that he only knew Yang had a gun
that night when Yang joined him in the car after leaving the pool hall. He did not
testify in detail regarding where Yang was during the altercation. Vang’s most
harmful statement was Yang’s admission to him that Yang had fired several shots but
did not know if any of them had hit someone. Lor’s contribution was less substantive
than Vang’s. He testified that Yang was in the pool hall when the fight started and
in Vang’s car when it was stopped by the police. In addition, the credibility of both
Vang and Lor was already suspect: Yang was able to show that some aspects of their
testimony did not match the accounts they initially gave the police. Likely because
of these credibility problems, the prosecution did not rely on either codefendant’s
testimony significantly during closing argument.

       Moreover, the Minnesota Supreme Court relied in part on the trial court’s jury
instruction that it could not find Yang guilty “based on Vang’s accomplice testimony
unless it was corroborated by someone other than an accomplice.” Yang, 774 N.W.2d
at 554. The Court found that Vang’s testimony—“[s]pecifically, the events inside the
pool hall, and Yang’s admission when he entered the car after the shootings” that he
had fired a gun several times—was, in fact, corroborated by “numerous witnesses,”


      2
       See Fry v. Pliler, 551 U.S. 112, 121–22 (2007) (holding that federal courts in
§ 2254 proceedings must “assess the prejudicial impact of constitutional error in a
state-court criminal trial” under the Brecht standard, whether or not the state appellate
court recognized and reviewed the error under the more rigorous “harmless beyond
a reasonable doubt” standard set forth previously in Chapman v. California, 386 U.S.
18, 24 (1967)).

                                          -9-
including three jailhouse informants who had allegedly spoken with Yang while
incarcerated with him at the Anoka County Jail. Id. While the informants may have
had something to gain from testifying, how much their testimony should be
discounted is a credibility determination left to the jury. Vang’s statement that Yang
had a gun at the pool hall was also corroborated by physical evidence: when the
police searched Vang’s car, there was a gun under Yang’s seat, and police later found
bullets of the appropriate size for that gun in Yang’s bedroom.

       Finally, as the district court acknowledged, Yang was charged with aiding and
abetting two murders and four attempted murders. A conviction on these charges did
not require the prosecution to prove beyond a reasonable doubt that Yang actually
used the gun found under his car seat. “Active participation in an offense is not
required”; rather, there must be “‘some knowing role in the commission of the crime
by a defendant who takes no steps to thwart its completion.’” Yang, 774 N.W.2d at
562 (quoting State v. Ostrem, 535 N.W.2d 916, 924–25 (Minn. 1995)). The
Minnesota Supreme Court found, and we agree, that “there was sufficient evidence
to prove that [Yang] actively participated in the shootings of the Tibetans, and that
he intended his presence to further the commission of these crimes.” Id. Even though
Vang testified about Yang’s admission that he had fired several shots, proving this
fact was not necessary for him to be convicted. We find that the limits imposed on
Yang’s cross-examination of the codefendants did not constitute prejudice.

                                  III. Conclusion

      We affirm the district court’s denial of Yang’s habeas petition on the merits.
                      ______________________________




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