                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 03-3554
                                   ___________

United States of America,            *
                                     *
            Appellee,                *
                                     * Appeal from the United States
      v.                             * District Court for the
                                     * District of Nebraska
Harold Fox, also known as Rich,      *
                                     *
            Appellant.               *
                                ___________

                             Submitted: May 13, 2004
                                 Filed: January 31, 2005
                                 ___________

Before LOKEN, Chief Judge, SMITH, Circuit Judge, and DORR,1 District Judge.
                              ___________

DORR, District Judge.

      Harold Fox was charged in the United States District Court for the District of
Nebraska with conspiracy to distribute 500 grams or more of methamphetamine and
use of a firearm during or in relation to a drug trafficking crime. A jury convicted
Fox on both counts and the district court2 sentenced Fox to 168 months of


      1
       The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri, sitting by designation.
      2
       The Honorable Thomas M. Shanahan, United States District Judge for the
District of Nebraska.
imprisonment on Count I and 60 months of imprisonment on Count II, to run
consecutively. Fox appeals his conviction, arguing that the district court abused its
discretion and violated his Sixth Amendment right to confrontation. For the reasons
discussed below, we affirm Fox’s conviction. Fox has also challenged his sentence
based on the recent decision in Blakely v. Washington, --- U.S. ----, 124 S. Ct. 2531,
--- L. Ed. 2d ---- (2004). We remand Fox’s sentence to the district court for further
consideration in light of Blakely.

                                  I. Background

       On October 21, 2002, a two-count Indictment was filed in the United States
District Court for the District of Nebraska charging Harold Fox with one count of
conspiracy to distribute 500 grams or more of methamphetamine from December 1,
2001, up to and including August 23, 2002. The second count of the Indictment
charged Fox with using a firearm during or in relation to a drug trafficking crime.
Fox entered a plea of not guilty to the Indictment.

       On May 19, 2003, the matter proceeded to a jury trial. During trial, ten
witnesses testified in the government’s case about Fox’s receipt and distribution of
methamphetamine during the time frame of the conspiracy. Six of these individuals
– Tristan Carter, Timothy Noer, Jennifer Osborn, Ray Snover, Michael Karas, and
Angel Arroyo – were cooperating witnesses. At the time of trial, several of the
cooperating witnesses had already pled guilty and had been sentenced in connection
with their involvement in the conspiracy. Carter had pled guilty to conspiring to
distribute methamphetamine and use of a weapon and had been sentenced to 248
months of imprisonment. Karas had pled guilty to the same charges and was awaiting
sentencing. Arroyo, Snover, and Noer had pled guilty to conspiracy to distribute
methamphetamine. Arroyo had been sentenced to 138 months of imprisonment,
Snover had been sentenced to nine years of imprisonment, and Noer was awaiting



                                         -2-
sentencing. The cooperating plea agreements of all of these individuals were
received into evidence at trial.

      Tristan Carter, a cooperating witness, testified at Fox’s trial. Carter testified
that he had been distributing methamphetamine in Omaha, Nebraska, from
approximately January of 2002 until his arrest pursuant to a federal indictment on
August 23, 2002.

      On March 31, 2002, Carter and Fox were arrested in Kansas. An officer with
the Nemaha County Kansas Sheriff’s Department stopped a 1991 Mitsubishi driven
by Harold Fox and occupied by Tristan Carter and a female. During the search of the
vehicle, officers recovered .18 grams of methamphetamine, digital scales, a razor
blade, and a propane torch. Officers searched Carter and found a sunglasses case
containing 27.12 grams of methamphetamine.             Carter testified that the
methamphetamine found in the sunglasses case was his and the remainder of the
methamphetamine belonged to Fox, although he had supplied it to Fox.

       Carter described himself as Fox’s “somewhat” partner in the distribution of
methamphetamine. Carter and Fox were also both users of methamphetamine. Carter
said that he and Fox pooled their money on two occasions to buy methamphetamine
from Tim Noer. After their second combined purchase, Carter began purchasing
methamphetamine from Noer and others on his own. Over the next several months,
Carter purchased approximately 130 pounds of methamphetamine. Fox was one of
Carter’s customers. Initially, Carter sold Fox 8-ball amounts, increasing to one ounce
amounts. Carter estimated that he sold Fox methamphetamine on fifty to 100
occasions. He estimated the total quantity of methamphetamine that he sold to Fox
was around four to five pounds.

      Carter testified that Fox was reselling at least some of the methamphetamine
he received from Carter. Carter said that he went with Fox several times when Fox

                                         -3-
sold methamphetamine. Carter also testified that Fox carried a gun during some of
the drug deals he had with him. Carter testified that Fox traded a .357 handgun and
a .25 handgun to him for methamphetamine and to pay off some of his debt to Carter.

       On cross-examination, Carter testified that Jennifer Osborn was a friend of his
and that he worked with her. He stated that Osborn knew about his drug deals and
that he told her that he would kill her nephew if she ever talked to the police about
what he was doing. Carter stated that he understood he would get some percentage
reduction of his sentence for cooperating, but that he had no idea how much. He said
that he had no understanding that his threat to Osborn could affect his sentence.

      Following Carter’s testimony, the jury heard testimony from other co-
conspirators regarding Carter’s dealings with Fox, as well as Fox’s individual
dealings. Tim Noer testified that Fox was with Carter when Carter received one-
quarter pound of methamphetamine from Noer in Grand Island, Nebraska. Later on,
Carter and Fox pooled their money to make another purchase of methamphetamine
from Noer in Grand Island.

       Noer testified that he saw Fox at Carter’s residence two or three times. Noer
stated that on one occasion Fox wanted to trade a .357 handgun to him for an ounce
of methamphetamine. Fox later traded the .357 handgun to Carter for an ounce of
methamphetamine. Noer said that he saw Fox with the .357 handgun three times
before he traded it to Carter. Noer testified that he hoped to get his sentence reduced
by cooperating and that he believed the reduction would be approximately fifty
percent based on what he had read in the law library and heard from other people.

       Jennifer Osborn testified under a non-prosecution agreement and said that she
met Carter in July of 2001. She said that she was aware of Carter’s drug dealing and
that she would count the money Carter received from the sale of methamphetamine.
Osborn testified that she saw Fox receive methamphetamine from Carter at Carter’s

                                         -4-
residence at least thirty to forty times for a total of about one-half pound. She was
also present on one occasion when Fox gave methamphetamine to his sister. Osborn
said that she saw Fox with a handgun in the small of his back one time when he was
at Carter’s house for a drug transaction.

      Ray Snover, Angel Arroyo, and Michael Karas all testified that they witnessed
Carter deliver methamphetamine to Fox. Snover said that he saw Fox carrying a gun
during one of these drug deals. Arroyo testified that he purchased methamphetamine
from Fox between seven and ten times for a total of one-quarter pound and that he
sold Fox a total of one-half pound of methamphetamine. Karas testified that he saw
Fox receive methamphetamine from Carter and that he saw Fox trade the .357
handgun to Carter for methamphetamine.

      During cross-examination, Karas was questioned about his plea agreement, the
possible sentence he was facing, and the possible percentage reduction he was hoping
to receive for testifying. Karas testified that he was facing a minimum 15-year
sentence and that he had heard talk in the jail that a fifty percent reduction was
possible for testifying.

       On May 21, 2003, the jury found Fox guilty on both counts, and specifically
found that Fox was responsible for at least fifty grams of methamphetamine but less
than 500 grams of methamphetamine. During the sentencing hearing, the district
court enhanced the guideline sentence based on the court’s finding that 1.814
kilograms of methamphetamine were attributable to Fox. As a result, the district
court sentenced Fox to 168 months of imprisonment on Count I and 60 months of
imprisonment on Count II, to run consecutively.




                                         -5-
                                   II. Discussion

A. Carter’s Testimony

      Fox argues that the district court abused its discretion and violated his Sixth
Amendment confrontation right by sua sponte asserting the attorney-client privilege
on Carter’s behalf. Fox contends that he was not allowed to fully cross-examine
Carter regarding the benefits he had already received for his cooperation and further
benefits he hoped to receive for testifying against Fox.

       During cross-examination, Fox’s counsel attempted to ask Carter about
conversations he had with his attorney regarding the nature of his plea agreement and
the potential sentence he could receive. Counsel stated it was his intent, “to talk to
him about what his attorney told him about what the potential sentence is.” The
district court refused to allow defense counsel to inquire about communications
between Carter and his attorney on the basis that such communications were
privileged and confidential and that if Carter’s attorney had been in court “as he was
supposed to be” he would be asserting the privilege. However, the district court did
allow Fox’s counsel to inquire about what Carter’s knowledge and understanding of
his potential sentence and the guidelines was following his discussions of these issues
with his attorney.

        Defense counsel also inquired of Carter about the extent of departure a
cooperating witness usually obtains for testifying. The government objected based
on relevancy and the district court sustained the objection. Later, however, Carter
testified that he understood that he would get some percentage reduction if he
cooperated, but that he had no idea how much.

     Generally, the attorney-client privilege is personal and cannot be asserted by
anyone other than the client. See United States v. Hatcher, 323 F.3d 666, 674 n.2 (8th

                                         -6-
Cir. 2003) (citing United States v. Fortna, 796 F.2d 724, 732 (5th Cir. 1986), cited
with approval in United States v. Escobar, 50 F.3d 1414, 1422 (8th Cir. 1995)). In
this case, the district court sua sponte asserted the attorney-client privilege on behalf
of Carter. Regardless of the appropriateness of the district court’s assertion of the
privilege, the question is whether the district court’s limitation of defense counsel’s
cross-examination of Carter, resulted in a violation of the Confrontation Clause. Fox
argues that he was not allowed to fully cross-examine Carter regarding the benefits
he had already received for his cooperation and the additional benefits he hoped to
receive for testifying. Fox suggests that he should have been able to explore whether
Carter’s attorney informed him of the customary reduction received for testifying
against other parties.

       A Confrontation Clause violation is shown when a defendant demonstrates that
a reasonable jury might have received a significantly different impression of a
witness’s credibility had counsel been permitted to pursue the proposed line of cross-
examination. Harrington v. Iowa, 109 F.3d 1275, 1277 (8th Cir. 1997). A trial
court’s decision to limit cross-examination will not be reversed unless there has been
a clear abuse of discretion and a showing of prejudice to the defendant. United States
v. Brown, 110 F.3d 605, 611 (8th Cir. 1997). The focus of the prejudice inquiry in
determining whether the confrontation right has been violated is on the particular
witness, not on the outcome of the trial as a whole. Delaware v. Van Arsdall, 475
U.S. 673, 690, 106 S. Ct. 1431, 89 L. Ed. 2d 674 (1986).

        In the event that there is a violation of the Confrontation Clause, the Court
must consider whether the constitutional error was harmless beyond a reasonable
doubt. Van Arsdall, 475 U.S. at 681, 684. “The correct inquiry is whether, assuming
that the damaging potential of the cross-examination were fully realized, a reviewing
court might nonetheless say that the error was harmless beyond a reasonable doubt.”
Id. at 684. In assessing whether the error was harmless, the Court must consider “the
importance of the witness’ testimony in the prosecution’s case, whether the testimony

                                          -7-
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.”
Id. at 684; see also United States v. Caldwell, 88 F.3d 522, 525 (8th Cir. 1996).

       The record demonstrates that Fox’s counsel engaged in a lengthy cross-
examination of Carter. The district court permitted Fox’s counsel to ask Carter about
his understanding, after discussions with his attorney, about his potential sentence,
the sentencing guidelines, and the benefits he would receive for cooperating. Fox’s
counsel also went through the applicable sentencing guidelines with Carter in detail.
Carter testified that he understood that he would get some percentage off of his
sentence for cooperating, but that he had no idea how much.

       Further, defense counsel was able to question other cooperating witnesses
about the percentage of sentence reduction typically expected for cooperating.
Michael Karas, another cooperating witness, testified that there were “rumors” that
a cooperating witness would receive a fifty percent reduction of their sentence for
cooperating. In addition, Tim Noer testified that he believed, based on what he had
read in the law library and heard from other people, that the reduction for cooperating
would be approximately fifty percent. Regardless of the source of the information,
Fox was able to put before the jury evidence that there could be a fifty percent
reduction in sentence for cooperating. Fox’s counsel specifically argued to the jury
in regard to all the cooperating witnesses that “what they’re really angling for is a 50
percent reduction in their sentences.”

       Based on the evidence of record, we conclude that Fox has not shown that a
reasonable jury might have had a significantly different impression of Carter, his
credibility, or his motivation for testifying had defense counsel been able to pursue
the proposed line of questioning regarding Carter’s conversations with his attorney.
Clearly, there was substantial evidence before the jury regarding Carter’s situation,

                                          -8-
the sentence he received, his credibility, his motivations for testifying against Fox,
the fact that he hoped to receive a benefit for testifying against Fox, and the
possibility that a sentence could be reduced by fifty percent for cooperation. To allow
defense counsel to inquire about the substance of Carter’s conversations with his
counsel and to put such evidence before the jury would not have resulted in the jury
having a significantly different impression of Carter than they already had.
Therefore, there has been no showing of prejudice to Fox as a result of the limitation
that was placed on defense counsel’s cross-examination of Carter. See Brown, 110
F.3d at 611.

B. Carter’s Presentence Investigation Report

       Fox argues that Carter was the government’s main cooperating witness and,
although he threatened Osborn, he received a sentencing benefit in that he was not
assessed an enhancement for obstruction of justice based on the threat. Additionally,
Fox argues that the district court erred in failing to order the government to provide
defense counsel with a copy of Carter’s presentence investigation report. Fox
contends that the presentence investigation report is discoverable under Brady v.
Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215 (1963),
because it contains exculpatory evidence of a benefit conferred upon Carter by the
absence of any mention of the threat to Osborn which, Fox argues, resulted in no
enhancement of Carter’s sentence for obstruction of justice. Fox argues that he had
a right to explore whether Carter knew of this benefit and to show the jury, if Carter
denied knowledge, that the benefit was conferred.

      Fox’s counsel requested that the government be required to provide him with
a copy of Carter’s presentence investigation report and divulge any conversations
with Carter’s attorney regarding the prosecution version that was submitted to
probation. Defense counsel also suggested that there was an agreement between the
prosecutor and Carter’s attorney regarding the threat to Osborn.

                                         -9-
       The district court requested that the government disclose any conversations
with Carter’s attorney regarding the threat to Osborn or the prosecution version of the
offense. The district court also ordered the government to disclose any
communications, correspondence, or notes regarding any such conversations. The
prosecutor stated on the record that there was no agreement with Carter’s attorney as
to the Osborn threat and disclosed one piece of correspondence from Carter’s attorney
pertaining to the plea agreement, which requested that Carter be allowed to plead to
an ordinary firearm count rather than the brandishing count. The prosecutor advised
that there was nothing else in the prosecution file with respect to Carter’s plea, offer,
plea negotiation, or sentencing.

       The district court reviewed the presentence investigation report in camera and
found that it did not contain any mention of an obstruction of justice or the Osborn
threat. The district court concluded that the presentence investigation report was not
discoverable because it was not a statement of an accused or witness and was a
confidential court document. Further, the district court found that the presentence
investigation report was not discoverable because it did not contain any exculpatory
evidence, material, or information which Fox would be entitled to under Brady.

      To prove a Brady violation, a defendant must show that the prosecution
suppressed evidence that was favorable to the accused and that the evidence was
material to the issue of guilt or punishment. United States v. Duke, 50 F.3d 571, 577
(8th Cir. 1995) (citing Prewitt v. Goeke, 978 F.2d 1073, 1078 (8th Cir. 1992)).
Evidence is material if there is a reasonable probability that the disclosure of such
evidence would have led to a different result at trial. Duke, 50 F.3d at 577.

      Fox’s attorney questioned Carter during cross-examination about whether he
had an understanding that his threat to Osborn would have any consequence on his
sentencing. Later, counsel asked if Carter understood that the probation office,
during their presentence investigation, “may find that you obstructed justice because

                                          -10-
of your incident with Ms. Osborn.” Carter’s answer to both questions was “no.” At
the time of his testimony, the presentence investigation was completed and Carter had
already been sentenced. It was only after Fox’s counsel had rested his cross-
examination of Carter and Carter was excused as a witness that counsel requested the
trial court to compel the government to provide defendant with a copy of Carter’s
presentence investigation report. It is clear from the record that the presentence
investigation report made no mention of the threat, any sentence enhancement for
obstruction of justice, or any benefit conferred on Carter in relation to the threat.
Therefore, the report itself would have added nothing in terms of additional evidence.
 Further, Fox’s counsel questioned Carter about his understanding of whether or not
he got a sentencing benefit related to the threat and the possible obstruction of justice
enhancement. Therefore, there was nothing about the lack of information in the report
that would have raised a reasonable probability that disclosure of the report would
have led to a different result at trial. We conclude there was no Brady violation in
regard to the government’s decision to not produce a copy of Carter’s presentence
investigation report to defendant’s counsel.

C. Impeachment of Carter for Bias

      Fox also argues that the district court’s alleged errors, individually or in
combination, served to deny him of a full opportunity to impeach Carter for bias. The
Court recognizes the importance of a defendant’s opportunity to impeach a witness
for bias. However, even if we assume that the district court erred as Fox has
suggested, when we consider the factors relevant to the determination of whether
such error is harmless we conclude that any such error by the district court was
harmless beyond a reasonable doubt.

       Clearly, Carter’s testimony was important to the prosecution’s case. He gave
extensive testimony regarding his own purchases and sales of methamphetamine and
his interaction with Fox in the acquisition and distribution of methamphetamine.

                                          -11-
However, he was not the only witness to testify about Fox’s activities. Carter was
one of six cooperating witnesses who testified. Angel Arroyo, Ray Snover, Timothy
Noer, Jennifer Osborn, and Michael Karas also testified about Fox’s activities
regarding the purchase and sale of methamphetamine, and his dealings with Carter.
A number of these witnesses testified that they observed Fox receive
methamphetamine from Carter. Several of the cooperating witnesses saw Fox carry
a firearm during drug deals, and Michael Karas testified that he was present when Fox
traded the .357 handgun to Carter for methamphetamine. In addition, the district
court allowed extensive cross-examination of Carter regarding his understanding or
knowledge of his sentence and the benefits he hoped to receive through his
cooperation, which clearly demonstrated Carter’s motivation for testifying. Even if
additional evidence regarding Carter’s bias or motivation for testifying against Fox
had come in it would, at best, have been cumulative and would not have changed the
result because the government’s case against Fox was overwhelming.

       In light of the evidence of record, and our consideration of the foregoing
factors, we conclude that any error by the district court on these issues was clearly
harmless beyond a reasonable doubt.



D. Sentencing Arguments

       Finally, Fox filed a supplemental pro se brief raising two points of error in
regard to his sentence. First, Fox’s pro se brief argues that the district court erred in
the calculation of his criminal history category, and thereby his sentence, by including
one point for a California conviction in 1999. Fox’s argument regarding this matter
was appropriately and exhaustively addressed by the district court. In fact, the district
court adjusted Fox’s criminal history category downward based upon the court’s
finding that there was an overstatement of his criminal history. This adjustment
effectively negated this issue. Therefore, we find that Fox’s argument on this point

                                          -12-
is without merit. Second, Fox’s pro se brief argues that the district court erred when
it failed to sentence him based upon the maximum sentence authorized by the jury
verdict, which substantially limited the amount of drugs attributed to him.

       In this case, the jury made a specific finding that Fox was responsible for at
least 50 grams of methamphetamine, but less than 500 grams of methamphetamine.
The presentence investigation report recommended that Fox be found responsible for
1.814 kilograms of methamphetamine. Fox filed an objection to this recommendation
and argued the objection during the sentencing hearing before the district court.
However, the district court overruled Fox’s objection on this issue and found, based
on a preponderance of evidence, that 1.814 kilograms of methamphetamine were
attributable to Fox. This resulted in a significant enhancement to the applicable
guideline range utilized by the trial court in assessing its sentence.

       Oral argument in this matter was heard on May 13, 2004. Thereafter, the
United States Supreme Court issued its decisions in Blakely v. Washington, -- U.S.
--, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and United States v. Booker, – U.S. –,
2005 WL 50108 (Jan. 12, 2005). Fox has preserved this sentencing issue, and,
pursuant to Booker, is entitled to a new sentencing proceeding. See id. 2005 WL
50108 at *29 (Breyer, J. for the court) (noting that Booker applies to all cases on
direct review). We remand for resentencing in accordance with Booker.



                                   III. Conclusion

       In summary, we conclude that Fox is not entitled to prevail on any of his
arguments that the district court erred during trial as to the assertion of the attorney-
client privilege, cross-examination of Carter, or disclosure of Carter’s presentence
investigation report. As previously stated, there has been no showing of prejudice to



                                          -13-
Fox based on the district court’s actions and any error by the district court was clearly
harmless beyond a reasonable doubt. Accordingly, Fox’s conviction is affirmed.

      However, we remand for resentencing in accordance with Booker.

                        ______________________________




                                          -14-
