                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-14-2003

USA v. Chandler
Precedential or Non-Precedential: Precedential

Docket 01-2572




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"USA v. Chandler" (2003). 2003 Decisions. Paper 593.
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                                 PRECEDENTIAL

                                            Filed April 14, 2003

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                          No. 01-2572


               UNITED STATES OF AMERICA,
                                v.
                   LINDA LEE CHANDLER,
                                      Appellant.

     On Appeal from the United States District Court
         for the Western District of Pennsylvania
                  D.C. No. 00-CR-00169
      District Judge: Honorable Donetta W. Ambrose

                     Argued May 2, 2002
  BEFORE: ROTH and STAPLETON, Circuit Judges, and
             POLLAK,* District Judge

                     (Filed: April 14, 2003)




  * Honorable Louis H. Pollak, District Judge for the United States
District Court for the Eastern District of Pennsylvania, sitting by
designation.
                             2




                      Troy Rivetti (argued)
                      Bonnie R. Schlueter
                      Office of United States Attorney
                      633 United States Post Office
                       & Courthouse
                      Pittsburgh, PA 15219
                       Counsel for the Appellee
                      Warren A. Brown (argued)
                      200 E. Lexington Street, Suite 120
                      Baltimore, MD 21202
                      Joseph K. Williams, III
                      1442 Pennsylvania Avenue
                      Pittsburgh PA, 15233
                       Counsel for the Appellant


                OPINION OF THE COURT

POLLAK, District Judge:
   Linda Lee Chandler was convicted of participation in a
drug-distribution conspiracy. On appeal, she challenges
several evidentiary rulings entered by the District Court.
Because we agree with Chandler that the constraints
placed by the District Court upon her cross-examination of
two government witnesses unduly restricted her ability to
defend herself at trial, we reverse and remand for a new
trial.

                              I
  On September 13, 2000, Linda Lee Chandler (“Chandler”)
and three co-conspirators—Frederick White, Teodora
Yearwood, and William Yearwood—were charged in a five-
count indictment, the first count of which alleged that, from
1995 to 1998, all four co-conspirators had conspired, in
violation of 21 U.S.C. § 846, to distribute and possess with
intent to distribute more than five kilograms of cocaine. The
                                 3


third count of the indictment also charged Chandler with
money     laundering,     in  violation  of   18   U.S.C.
§ 1956(a)(1)(A)(i). (The second, fourth, and fifth counts
charged White, Teodora Yearwood, and William Yearwood,
respectively, with money laundering.) The government
alleged that, beginning in 1995, Chandler became part of a
drug organization headed by a man named William Baker,
and assisted Baker’s organization by buying, transporting,
storing, and selling cocaine.
   Frederick White, Teodora Yearwood, and William
Yearwood pled guilty, but Chandler proceeded to trial. A
number of the government’s witnesses had been members
of the alleged conspiracy. They included William Baker, Sly
Sylvester (a drug dealer allegedly supplied by William
Baker), and Kathleen Yearwood (allegedly a supplier of
cocaine to the group), together with two of the persons
named as co-conspirators in Chandler’s indictment—
Frederick White (Chandler’s boy-friend) and William
Yearwood (Kathleen’s father, and an alleged drug courier).1
Another government witness, Annette Yearwood (Kathleen’s
sister), observed but did not participate in illegal activities.
Through other witnesses, the government introduced
testimony regarding surveillance of Chandler, her financial
history, and her contacts with other members of the
conspiracy. The jury convicted Chandler of the drug
trafficking charge but acquitted her of the money
laundering charge. She was sentenced to 121 months of
imprisonment.

                                 II
  Chandler presents three issues on appeal. The first
concerns the District Court’s admission into evidence of
testimony and documents relating to Chandler’s financial
history, including her non-filing of tax returns. We review
this ruling for abuse of discretion. See United States v.
Casoni, 950 F.2d 893, 902 (3d Cir. 1991). For reasons
explained below, we do not find that the District Court
abused its discretion in admitting that evidence. The

1. Teodora Yearwood, who was the third co-conspirator indicted along
with Chandler, did not appear as a witness in Chandler’s trial.
                              4


second issue concerns limitations imposed by the District
Court upon the scope of cross-examination of government
witnesses. We review the imposition of those limitations for
abuse of discretion. See United States v. Ellis, 156 F.3d
493, 498 (3d Cir. 1998). As explained below, we find that
these limitations did constitute an abuse of discretion, and
that the error was not harmless. We therefore remand this
case for a new trial. In light of our resolution of this second
issue, we do not find it necessary to resolve the third issue
Chandler has presented—namely, whether the District
Court erred in refusing to grant a mistrial after a
government witness disclosed to the jury information
asserted to be inadmissible as evidence, and prejudicial to
Chandler.

                              A
  Chandler contends that the District Court erred when it
admitted her bank records, her 1996 tax return, and
testimony regarding her failure to file tax returns for the
years 1997 and 1998. When the government presented a
witness who was to testify to these matters, the following
sidebar took place:
    THE COURT:          You want to ask him about tax
                        returns?
    MR. RIVETTI:        Yes, we need a Court order to
                        disclose them even to defense
                        counsel. They have not been turned
                        over.
    THE COURT:          I know you want to show income,
                        but are you going to be able to show
                        expenditures through this witness?
    MR. RIVETTI:        This    witness,   part  of   the
                        investigation was the subpoenaing
                        of the Defendant’s bank records,
                        which show repeated cash deposits.
                        There is a number of cash deposits
                        over $500.
    THE COURT:          Okay.    Let’s    hear   what     your
                        objection is.
                       5


MR. SCORATOW: First of all, the high prejudicial
              nature, we have a witness who will
              come in and testify he gave her the
              money, it is perfectly legal, it is
              loans. He also is an attorney and he
              does taxes, he looked over her taxes
              and he would tell her when she
              earned enough and when she didn’t
              earn enough to pay income taxes.
              The highly prejudicial nature she
              doesn’t have tax returns, they can
              show her income coming in, they
              have her bank accounts to try to do
              that and show this is the money she
              had from Mr. Baker. The mere fact
              that she filed returns or not, if
              those were gifts or otherwise not
              properly filed, unless they can come
              in and they’re saying this is income
              tax fraud, which she’s not charged
              with, it is the nature of another
              crime, it proves nothing, it’s
              speculative, especially when they
              know we have Mr. Massung who is
              going to testify to where she got the
              money.
MR. RIVETTI:     Your Honor, the case law is clear
                 that     unexplained  income     is
                 probative as to whether or not the
                 Defendant is involved in drug
                 trafficking.
THE COURT:       Right. What he is saying is why
                 can’t you show her bank records?
MR. SCORATOW: That’s right, they can’t.
MR. RIVETTI:     The defense has said—in fact,
                 during his opening statement he
                 said that she cut hair, that she had
                 real income. I think that the tax
                 returns rebut that inference. First of
                 all, no tax returns—
                              6


    THE COURT:          I am going to allow them. I think it’s
                        relevant and I think the case law I
                        looked at supports it. I will sign it
                        now. The objection of Defendant is
                        noted.
   In support of Chandler’s contention that the trial court
committed reversible error in admitting various items of
financial information, Chandler relies on the Sixth Circuit’s
decision in United States v. Carter, 969 F.2d 197 (6th Cir.
1992). In Carter, the court reviewed a district court’s ruling
admitting evidence, over the defendant’s objection, that the
defendant had spent three thousand dollars on home
appliances over a two-year period in 1989 and 1990, and
had not filed tax returns for the years 1985 through 1990.
The Sixth Circuit concluded that the district court had
“abused its discretion by allowing the government to use a
plethora of irrelevant financial information.” Neither “the
fact that Carter purchased a few appliances over a two-year
period,” nor her failure to file tax returns, the court found,
was “probative on the issue of whether Carter engaged in a
cocaine transaction on December 1, 1989,” the crime with
which she was charged. Id. at 200, 201.
   Chandler contends that her tax information, as well as
bank records showing over $8,200 in cash deposits over a
six-month period in 1996 and 1997, likewise were “not
probative of any issue in the case.” Further, she argues
that the admission of the tax return evidence was “highly
prejudicial,” presumably because a jury might have inferred
from her failure to file returns in 1997 and 1998 that she
had committed tax fraud.
  There exists considerable appellate support for the
admission in evidence, in drug-trafficking cases, of financial
information of the sort admitted in Chandler’s trial. “In a
narcotics prosecution, it is well established that the
government may introduce evidence of cash purchases
coupled with tax evidence tending to show that a defendant
had no legitimate source of cash.” United States v. Prix, 672
F.2d 1077, 1084 (2nd Cir. 1982). See also United States v.
Mitchell, 733 F.2d 327 (4th Cir. 1984) (same); United States
v. Briscoe, 896 F.2d 1476, 1500 (7th Cir. 1990) (holding
that it is “well settled that in narcotics prosecutions, a
                              7


defendant’s possession and expenditure of large sums of
money, as well as his or her failure to file tax returns, are
relevant to establish that the defendant lacked a legitimate
source of income and that, in all probability, the reason for
the failure to report this income is due to the defendant’s
participation in illegal activities”).
   Courts of appeals consistently have upheld the
admissibility of such evidence when it reasonably supports
the government’s assertion that the defendant possessed
substantial cash not obtained through legitimate means. In
United States v. Figueroa, 976 F.2d 1446, 1455 (5th Cir.
1992), the Fifth Circuit concluded that evidence that the
defendant had not filed tax returns “tended to make it less
likely that the large bank deposits during these tax periods
derived from legitimate sources.” In United States v. Trotter,
889 F.2d 153, 155 (8th Cir. 1989), the Eighth Circuit
similarly found that the defendant’s “failure to file any tax
returns was probative of net worth and therefore relevant to
[the defendant’s] claim that the money [recovered from his
car] was not the product of drug distribution.”
   Nor does this general rule apply only when very large
sums of otherwise unexplained cash are involved. In
Mitchell, the Fourth Circuit rejected the defendant’s
argument that his failure to file tax returns was
inadmissible when “the government’s only evidence of
Bennett’s sudden accession of wealth was the purchase of
a $4,000 motorcycle.” Mitchell, 733 F.2d at 331. This
argument, the court explained, “misses the point of the
evidence.” Id. The touchstone of the admissibility inquiry is
not the amount of money in the defendant’s possession, but
whether defendant’s failure to account for its source tends
to support the government’s claim that the money was
obtained through illegitimate means. In other words, to the
extent that a defendant’s failure to file tax returns
evidences a lack of legitimate income, that evidence, in
combination with evidence that the defendant possesses a
significant sum of cash, generally is admissible in support
of the government’s contention that the defendant obtained
the cash through the distribution of narcotics.
  The Sixth Circuit’s rejection of such tax evidence in
Carter represents a relatively narrowly drawn exception to
                                    8


this rule. Far from questioning the general admissibility of
tax evidence in narcotics prosecutions, the court held only
that the defendant’s modest $3,000 expenditure over a
period of two years did not make it more likely that she had
engaged in a single cocaine transaction during the period
for which she had not filed tax returns.2
   In the case at bar, the government introduced Chandler’s
tax history—particularly her 1996 return and evidence that
she did not file for 1997 and 1998—to demonstrate that her
legitimate income was insufficient to explain the more than
$8,200 of cash deposits made to her account over a six-
month period from 1996 to 1997. In reviewing the district
court’s evidentiary ruling, we inquire only whether it was
within the court’s discretion to find that Chandler’s tax
information tended to make it more likely that Chandler
derived some of the money in her bank account from her
involvement in the distribution of narcotics. It is difficult to
see how the fact that Chandler reported no earned income
during a period in which she made over $8,200 in cash
deposits does not tend to support the government’s
position. Nor did the court’s admission of such evidence
preclude Chandler from introducing evidence to rebut the
government’s inference that she obtained the money
through her participation in narcotics transactions.
Moreover, even if we are to regard Chandler’s non-filing of
tax returns, in combination with her relatively modest cash

2. Further, it should be noted that it does not appear from the Sixth
Circuit’s opinion in Carter that the trial court in that case gave the jury
any limiting instruction directing the jury’s attention to the limited
pertinence of the tax return evidence. In the case at bar, after Chandler
testified on direct examination about her tax history, the District Court
instructed:
    [T]his is not a tax case. The Defendant in this case, Ms. Chandler,
    is not charged with any violation fo the Internal Revenue Code. You
    are to consider the evidence provided by this witness only in relation
    to the charges filed against the Defendant, and that is a conspiracy
    to distribute cocaine and a money laundering charge. This is not a
    tax case, she is not charged with any violation of the Internal
    Revenue Code, and you should not consider the evidence in light of
    that. You should only consider it as it relates to the charges filed
    against her in this case.
                                   9


deposits, as only marginally probative of whether Chandler
was involved in a drug conspiracy, we cannot say that the
District Court abused its discretion in admitting the
evidence.

                                   B
   The second issue Chandler raises on appeal concerns
limits placed by the District Court upon Chandler’s cross-
examination of government witnesses. At trial, Chandler’s
attorney, Martin Scoratow, attempted to cross-examine
Sylvester about the sentence reduction he had received,
and to cross-examine Kathleen Yearwood about the
reduction she hoped to receive, in exchange for their guilty
pleas and cooperation. Mr. Scoratow sought to cast doubt
on the reliability of Sylvester’s and Yearwood’s testimony by
demonstrating to the jury that they had very compelling
reasons to incriminate Chandler. Mr. Scoratow’s efforts in
this regard, while not wholly cut off, were substantially
restricted. The question is whether the restrictions imposed
by the District Court can fairly be regarded as within the
due exercise of that court’s discretion.
Testimony of Sly Sylvester
  During the course of his direct testimony, Sylvester—who
had been sentenced prior to Chandler’s trial—acknowledged
that he was testifying pursuant to a cooperation agreement
between himself and the government. Sylvester said that he
had agreed to plead guilty to charges of selling three ounces
of cocaine, to cooperate with law enforcement agents, and
actively to work with them to identify and apprehend
William Baker, the alleged leader of the drug distribution
enterprise.3 In return, the government limited the charges
against him to those associated with the three-ounce
cocaine sale, despite the fact that he admitted to having
dealt “about five kilos” of cocaine during the relevant time
period. The government also moved at sentencing to reduce
Sylvester’s term of imprisonment for the three-ounce sale

3. Sylvester made phone calls to Baker that were recorded by the agents,
wore a microphone during personal meetings with Baker, and purchased
six ounces of cocaine from Baker at the direction of the agents.
                            10


below the otherwise applicable range. Sylvester explained to
the jury that although “12- to 18-month[s] was the
statutory time parameters” for the offense to which he had
pleaded guilty, he had received only one month of house
arrest and a term of probation. On cross-examination,
Sylvester admitted that he could have been charged with
trafficking in much larger quantities of cocaine:
    Q:                 Did anyone explain to you what the
                       penalties for five kilos is under the
                       guidelines?
    MR RIVETTI:        Your Honor, I object to these
                       questions regarding the penalties
                       for five kilos.
    THE COURT:         Okay. Penalties should not be
                       discussed in the case, I would
                       agree.
    MR. SCORATOW: All right.
    Q:                 Did    they   ever—well,  was   it
                       explained to you that it was much
                       more serious, that the Government
                       actually gave you a break by
                       charging you this small amount?
    A:                 That’s a great question because
                       they only had me on three ounces.
                       That’s what they said the terms of
                       this would be 12 to 18. I am not so
                       sure exactly of your question.
                       Would you want me to say to you
                       that the bigger you sell, the more
                       you sell, the more penalty? Well, of
                       course.
    Q:                 Okay. At the time you sold that
                       three ounces, you had been dealing
                       for awhile, hadn’t you?
    A:                 Yes, sir.
Later, Sylvester admitted that he had gone to a drug
treatment program at the government’s request, even
though he did not believe that he was addicted to cocaine.
                              11


When Mr. Scoratow asked if that meant Sylvester would “do
anything” to reduce his jail time, however, Sylvester
insisted that he would not lie. Mr. Scoratow also asked if
Sylvester was only testifying against Chandler to avoid
reneging on his agreement with the government:
    Q:                 Let’s talk about that agreement. The
                       final person who put in that you’re
                       honest and truthful is sitting right
                       here, Mr. Rivetti, isn’t that correct?
    A:                 I’m sorry?
    Q:                 The person who put what we call
                       that 5K motion in to Judge Ziegler
                       was Mr. Rivetti right here?
    A:                 Yes.
    Q:                 So he’s the arbitrator on if you’re
                       truthful or not, right?
    A:                 Yes. I would believe so.
    Q:                 So if you say what he wants, you’re
                       truthful?
    A:                 Well—
    Mr. Scoratow:      No other questions.
    A:                 We are also in a court of law, sir,
                       and you can’t perjure yourself no
                       matter what sentence was put in
                       front of you, no matter what you’re
                       supposed to say or do. And to me
                       that’s the bottom line.
Testimony of Kathleen Yearwood
  Unlike Sylvester, Kathleen Yearwood had not been
sentenced before Chandler’s trial. On direct examination,
Yearwood testified that she had pled guilty shortly before
Chandler’s trial to trafficking in from “15 to 50 kilos” of
cocaine, and had agreed to assist the government in
ongoing drug investigations by, inter alia, wearing a wire
during meetings with drug dealers. In return, she hoped
that the government would move for a reduced sentence
                            12


against her. In his cross-examination of Yearwood, Mr.
Scoratow suggested that her testimony was influenced by
her agreements with the government. For example, after
intimating that co-conspirator Frederick White may have
been more culpable than Chandler, Mr. Scoratow asked
Yearwood:
    Q:               But [White] is not on trial, you want
                     to talk about Linda Chandler, is
                     that correct?
    A:               Right.
    Q:               Because you have an agreement,
                     isn’t that correct, and Mr. Rivetti is
                     going to, you hope, put in a motion
                     to cut your time?
    A:               Yes.
    . . .
    Q:               Now you want to help yourself and
                     help—because you are in serious
                     trouble. You were dealing in
                     multikilos. Yes or no?
    A:               I’m 50. No more than 50.
    Q:               No more than 50 in this. But do you
                     think you dealt more than 50?
    A:               No, I don’t think so.
    . . .
    Q:               How many lie detector tests did the
                     Government put you on?
    A:               None, but they can put me on them.
    Q:               Isn’t that in your plea agreement
                     letter?
    A:               Yes, it is.
    Q:               But they haven’t, and it’s Mr. Rivetti
                     who is going to write that letter to
                     this Judge to say that you’re honest
                     and forthright, so you are going to
                             13


                       talk about Linda Chandler, is that
                       correct?
    A:                 No.
    Q:                 That’s what you are here for today,
                       to talk about Linda Chandler?
    A:                 No, I’m here to tell the truth.
    . . .
    Q:                 And you know that you’re here,
                       you’re facing a heavy sentence—
                       what did your attorney, Mr. Riester,
                       tell you you’re facing?
    MR. RIVETTI:       Your honor, again I object         to
                       discussing the penalties here.
    THE COURT:         The objection is sustained. I think
                       the point’s been made that she
                       knows by testifying she might get a
                       reduction.
    MR. SCORATOW: Okay. No other questions.
  Chandler contends that, by barring defense counsel from
cross-examining Sylvester and Kathleen Yearwood about
the specific benefits they had received or hoped to receive
in exchange for their testimony, the District Court deprived
her of her Sixth Amendment right of confrontation.
Principles enunciated by the Supreme Court in Delaware v.
Van Arsdall, 475 U.S. 673 (1986) guide our inquiry:
    The Confrontation Clause of the Sixth Amendment
    guarantees the right of an accused in a criminal
    prosecution “to be confronted with the witnesses
    against him.” The right of confrontation, which is
    secured for defendants in state as well as federal
    criminal proceedings, Pointer v. Texas, 380 U.S. 400,
    85 S. Ct. 1065, 13 L. Ed. 2d 923 (1965), “means more
    than being allowed to confront the witness physically.”
    Davis v. Alaska, 415 U.S., at 315, 94 S. Ct., at 1110.
    Indeed, “ ‘[t]he main and essential purpose of
    confrontation is to secure for the opponent the
    opportunity of cross-examination.’ ” Id., at 315-316, 94
                              14


    S. Ct., at 1110 (quoting 5 J. Wigmore, Evidence § 1395,
    p. 123 (3d ed. 1940)). Of particular relevance here,
    “[w]e have recognized that the exposure of a witness’
    motivation in testifying is a proper and important
    function of the constitutionally protected right of cross-
    examination.” Davis, supra, at 316-317, 94 S. Ct., at
    1110 (citing Greene v. McElroy, 360 U.S. 474, 496 79
    S. Ct. 1400, 1413, 3 L. Ed.2d 1377 (1959)). It does not
    follow, of course, that the Confrontation Clause of the
    Sixth Amendment prevents a trial judge from imposing
    any limits on defense counsel’s inquiry into the
    potential bias of a prosecution witness. On the
    contrary, 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.
Id. at 678-79.
   Governed by these principles, our review of the District
Court’s decision to truncate Chandler’s cross-examination
of Sylvester and Kathleen Yearwood proceeds in two stages:
First, we must determine whether that ruling significantly
inhibited Chandler’s effective exercise of her right to inquire
into either witness’s “motivation in testifying”; and second,
if the District Court’s ruling did significantly inhibit
Chandler’s exercise of that right, whether the constraints it
imposed on the scope of Chandler’s cross-examination fell
within those “reasonable limits” which a trial court, in due
exercise of its discretion, has authority to establish.

                              1
   In Van Arsdall, the state trial court had barred defense
counsel from cross-examining a prosecution witness about
the state’s agreement to dismiss the witness’s pending
drunk-driving charge in exchange for his testimony against
the defendant. The Supreme Court held that by cutting off
all inquiry into “an event . . . that a jury might reasonably
have found furnished the witness a motive for favoring the
                             15


prosecution in his testimony,” the trial court’s ruling
deprived the defendant of his right to cross-examination
secured by the Confrontation Clause. Van Arsdall, 475 U.S.
at 680. Confrontation Clause claims, the Court elaborated,
should be considered in relation to the potential effect of
the foreclosed cross-examination on the jury’s evaluation of
a particular witness. Under the circumstances presented in
Van Arsdall, “a reasonable jury might have received a
significantly different impression of [the witness’s]
credibility had [defense] counsel been permitted to pursue
his proposed line of inquiry.” Id. at 680.
   Following Van Arsdall, circuit courts generally have
agreed that “[w]hether a trial court has abused its
discretion in limiting the cross-examination of a witness for
bias depends on ‘whether the jury had sufficient other
information before it, without the excluded evidence, to
make a discriminating appraisal of the possible biases and
motivation of the witnesses.’ ” Brown v. Powell, 975 F.2d 1,
4 (4th Cir. 1992) (quoting United States v. Tracey, 675 F.2d
433, 437 (1st Cir. 1982)). See also United States v. Luciano-
Mosquera, 63 F.3d 1142, 1153 (1st Cir. 1995) (adopting the
“discriminating appraisal” formulation); United States v.
Graham, 83 F.3d 1466, 1475 (D.C. Cir. 1996) (same);
United States v. Salameh, 152 F.3d 88, 131 (2nd Cir. 1998)
(same); United States v. Ward, 211 F.3d 356, 363 (7th Cir.
2000) (same); United States v. Turner, 198 F.3d 425, 429
(4th Cir. 1999) (To prohibit the cross-examination of a
prosecution witness “on relevant evidence of bias and
motive may violate the Confrontation Clause, if the jury is
precluded from hearing evidence from which it could
appropriately draw adverse inferences on the witness’s
credibility.”) With respect to the cross-examination of
cooperating witnesses who expect to obtain, or have
obtained, a benefit from the government in exchange for
their testimony, the “critical question . . . is whether the
defendant is allowed an opportunity to examine a witness
[sic] ‘subjective understanding of his bargain with the
government,’ ‘for it is this understanding which is of
probative value on the issue of bias.’ ” United States v.
Ambers, 85 F.3d 173, 176 (4th Cir. 1996) (quoting Hoover
v. State of Maryland, 714 F.2d 301, 305, 306 (4th Cir.
1983)).
                             16


  Uncertainty remains, however, over whether the
Confrontation Clause guarantees to defendants the
opportunity to cross-examine their alleged former co-
conspirators-turned-prosecution-witnesses        about     the
specific penalty reduction that they believed they would
obtain, or that they did obtain, through their cooperation.
Some courts of appeals have suggested that a trial court
can secure to a defendant the “minimal constitutional
threshold level of inquiry,” Luciano-Mosquera, 63 F.3d at
1153, by permitting her to inquire whether a prosecution
witness has received some type of benefit from the
government in exchange for her testimony, even while
precluding the jury from learning the “actual number of
years” a witness believes she would have faced absent her
cooperation. United States v. Cropp, 127 F.3d 354, 359 (4th
Cir. 1997). The First Circuit’s analysis in Brown v. Powell
captures this position. In that case, a prosecution witness
who originally had been charged, as a co-conspirator with
the defendant, with first degree murder (carrying a
maximum sentence of life without parole) entered into an
agreement with the government under which, in exchange
for his testimony against the defendant, he was allowed to
plead guilty to manslaughter (carrying a sentence of fifteen
to thirty years). The trial court prohibited the defense from
asking the witness about his understanding of the
maximum penalty for first degree murder—that is, the
penalty he avoided through his cooperation—and permitted
only testimony that the witness’s sentence of fifteen to
thirty years reflected a reduction. 975 F.2d at 4. Upholding
the ruling of the trial court, the First Circuit wrote:
    The issue here is whether the trial court abused its
    discretion and committed constitutional error when it
    prevented the jury from hearing the potential penalty
    Warner [the witness/co-conspirator] avoided by
    pleading out of a first-degree murder charge. . . . The
    jury at petitioner’s trial was clearly given sufficient
    information from which it could conclude that . . . the
    accomplice . . . had a substantial motivation to testify
    against petitioner and lie. . . . [T]he jury could have
    inferred that by pleading guilty to manslaughter and
    receiving a sentence of 15 to 30 years, Warner had
    avoided a significantly harsher penalty than if he had
                            17


    been tried and convicted . . . . The jury had more than
    sufficient information to conclude that Warner had a
    strong incentive to lie in order to receive a lesser
    sentence.
Id. at 5.
   In contrast, other appellate courts have held that the
Confrontation Clause guarantees to defendants the right to
inform the jury not only that a witness/co-conspirator
received or might receive prosecutorial leniency in exchange
for his testimony, but also the “concrete details of the
agreement [the witness] made with the government.”
Hoover, 714 F.2d at 303. In Hoover, an accomplice-turned-
government-witness revealed during direct examination that
he had received a “grant of immunity from prosecution” for
murder in exchange for his testimony against a murder
defendant. Id. When defense counsel repeatedly sought to
inquire on cross-examination whether, as a result of his
agreement with the government, the witness also expected
the prosecutor to intervene on his behalf in other,
apparently unrelated, pending criminal matters, the trial
judge upheld the prosecutor’s objections. The Fourth
Circuit concluded that the trial court’s “sustained and
effective refusal to permit inquiry into [the witness’s]
subjective understanding of his bargain with the
government stepped beyond the constitutional bounds of
the trial court’s discretion, and abridged the fundamental
right to confront adverse witnesses secured to [the
defendant] by the fourteenth amendment.” Id. at 306. The
court explained:
    The trial judge may limit such cross-examination only
    to preserve the witness’ constitutional immunity from
    self-incrimination, to prevent attempts to harass,
    humiliate or annoy him, or where the information
    sought might endanger the witness’ personal safety.
    When such factors are not present, substantial
    limitations on the attempts of a defendant to
    undermine as biased a witness’ testimony constitute
    constitutional error.
    . . .
                              18


    The trial judge’s traditional discretion to control the
    limits of cross-examination cannot be exercised until
    the constitutionally required threshold level of inquiry
    has been afforded the defendant. Moreover, any
    exercise of discretion once that threshold is reached
    must be informed by the utmost caution and solicitude
    for the defendant’s Sixth Amendment rights.
Id. For the Hoover court, in other words, even informing the
jury that a witness had received immunity from prosecution
from murder in exchange for his testimony fell short of
satisfying the “constitutionally required threshold of
inquiry” sufficient for the jury to evaluate that witness’s
potential bias and motive to lie. See also United States v.
Tracey, 675 F.2d 433, 438 (1st Cir. 1982) (“Especially
where the witness is an accomplice of the defendant or may
have some other substantial reason to cooperate with the
government, the defendant should be permitted wide
latitude in the search for the witness’ bias.”); Burr v.
Sullivan, 618 F.2d 583, 587 (9th Cir. 1980) (same).
   The circumstances of the present case do not require us
to resolve whether the Confrontation Clause entitles a
defendant categorically to inquire into the “concrete terms”
of a cooperating witness’s agreement with the government,
including the specific sentence that witness may have
avoided through his cooperation. Rather, we need only
decide whether, if the trial court had not prohibited
Chandler from cross-examining Sylvester and Kathleen
Yearwood with respect to the magnitude of the sentence
reduction they believed they had earned, or would earn,
through their testimony, the jury might have “received a
significantly different impression of [their] credibility.” Van
Arsdall, 475 U.S. at 680.
   Sly Sylvester testified on direct examination to having
sold roughly five kilograms of cocaine. Under § 2D.1(c)(5) of
the 2001 Sentencing Guidelines, the base offense level of a
defendant convicted of trafficking in “[a]t least 3.5 KG but
less than 5 KG of Cocaine,” is 30, which translates into a
prison sentence of between 97 and 121 months. Sylvester
testified that, under his agreement with the government, he
was permitted to plead guilty to selling only three ounces of
cocaine, a base level offense of 16, for which he was subject
                              19


to 21 to 27 months in prison under the Guidelines. (The
range to which Sylvester referred during cross-examination
—12 to 18 months—presumably reflected a three-point
reduction he had received for acceptance of responsibility
and timely notification of his intent to plead guilty.) On
cross-examination, Sylvester further acknowledged that,
pursuant to his plea agreement, the government had filed
a § 5K.1.1 motion urging a downward departure, the
eventual result of which was that Sylvester was sentenced
to one month of house arrest, plus probation.
   Kathleen Yearwood testified that she had pled guilty to
trafficking in from “15 to 50 kilos” of cocaine, an offense
which, under § 2D.1.1(c)(3) of the Guidelines, yields a base
offense level of 34. This means that Yearwood was subject
to a sentence of between 151 and 188 months. Before the
trial judge precluded defense counsel from inquiring into
the specifics of her hoped-for benefit, Yearwood testified
that she expected the government to move for a downward
departure in exchange for her cooperation.
   In light of these facts, we have little difficulty concluding
that a reasonable jury could have “reached a significantly
different impression” of Sylvester’s and Yearwood’s
credibility had it been apprised of the enormous magnitude
of their stake in testifying against Chandler. With respect to
Sylvester, the jury learned only that he pled guilty to an
offense carrying a sentence of between 12 and 18 months,
that he could have been charged with a greater offense, and
that he received only one month of house arrest, plus
probation. The jury would have had little reason to infer
from that information that Sylvester’s cooperation with the
government might have meant the difference between more
than eight years in prison, on the one hand, and the
modest sentence he in fact received, on the other. The
limited nature of Sylvester’s acknowledgment that he had
benefitted from his cooperation made that acknowledgment
insufficient for a jury to appreciate the strength of his
incentive to provide testimony that was satisfactory to the
prosecution. Similarly, if Yearwood, facing a sentence under
the Guidelines of upwards of twelve years, anticipated a
benefit equal to even a fraction of Sylvester’s proportionate
penalty reduction, her mere acknowledgment that she
                              20


hoped that the government would move for a lesser
sentence did not adequately enable a jury to evaluate her
motive to cooperate.
   A criminal defendant “states a violation of the
Confrontation Clause by showing that he was prohibited
from 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 appropriately draw inferences
relating to the reliability of the witness.’ ” Van Arsdall, 475
U.S. at 680 (citing Davis v. Alaska, 415 U.S. 308, 318
(1974). Chandler has made just such a showing. In Van
Arsdall, moreover, the Supreme Court found that the trial
court’s foreclosure of inquiry into a relatively modest benefit
—dismissal of a pending drunk-driving charge—was
sufficient to support the conclusion that the court had
withheld information necessary for the jury to make a
“discriminating appraisal” of the witness’s “possible biases
and motivation.” Sylvester received a benefit of far greater
magnitude through his cooperation. Yearwood presumably
hoped for similar treatment. For these reasons, we conclude
that Chandler was barred from cross-examining Sylvester
and Yearwood about facts which would have borne directly
on the jury’s consideration of the weight, if not the fact, of
their motive to testify as they did—facts, that is, which
would have underscored dramatically their interest in
satisfying the government’s expectations of their testimony.

                              2
   Having found that the District Court’s curtailment of
Chandler’s inquiry into the specifics of Sylvester’s and
Yearwood’s agreements with the government significantly
curtailed Chandler’s ability to inquire into two key
government witnesses’ “motivation for testifying,” we now
turn to the question of whether that ruling nevertheless fell
within the District Court’s discretion to impose “reasonable
limits” on a defendant’s right of cross-examination. The
government contends that its asserted interest in restricting
Chandler’s inquiry—its desire to prevent the jury from
inferring the sentence to which the defendant could be
exposed were she found guilty—warranted the District
                             21


Court’s ruling limiting cross-examination. While we
appreciate the government’s interest in withholding
information that potentially could induce a jury to “nullify”
the federal law that Chandler was alleged to have violated,
we find that such an interest is outweighed by Chandler’s
constitutional right to confront Sylvester and Yearwood.
   The Supreme Court’s decision in Davis v. Alaska, 415
U.S. 308 (1974), governs our analysis. In Davis, the Court
reviewed a state trial judge’s ruling prohibiting the
defendant from cross-examining a key prosecution witness
about his status as a juvenile probationer. Defense counsel
sought to reveal that “at the same time that Green [the
witness] was assisting the police in identifying petitioner he
was on probation for burglary,” with the intention of
arguing that the witness was testifying both “out of fear or
concern of possible jeopardy to his probation,” and because
he was a potential suspect, Davis, 415 U.S. at 311. The
trial court foreclosed the inquiry. The prosecution
maintained that the ruling was warranted because the
state’s “important interest in protecting the anonymity of
juvenile offenders . . . outweighs any competing interest
this petitioner might have in cross-examining [the witness]
about his being on probation.” Id. at 319.
   The Court, speaking through Chief Justice Burger,
expressly rejected that argument, announcing that “the
right of confrontation is paramount to the State’s policy of
protecting a juvenile offender.” Id. Whatever harm is done
to the interests of the witness or the state, the Court
explained, “is outweighed by petitioner’s right to probe into
the influence of possible bias in the testimony of a crucial
identification witness,” and for that reason “must fall before
the right of petitioner to seek out the truth in the process
of defending himself.” Id. The state’s asserted interest, the
Court concluded, “cannot require yielding of so vital a
constitutional right as the effective cross-examination for
bias of an adverse witness.” Id. at 320.
  We conclude that, while the government had a valid
interest in keeping from the jury information from which it
might infer Chandler’s prospective sentence were she to be
convicted, that interest did not trump Chandler’s
entitlement under the Confrontation Clause. That interest,
                             22


like the state’s interest in protecting the anonymity of
juvenile offenders, had to yield to Chandler’s constitutional
right to probe the “possible biases, prejudices, or ulterior
motives of the witnesses” against her. Id. at 316. We
therefore decline to adopt the reasoning of the cases relied
on by the government, see Luciano-Mosquera, 63 F.3d at
1153; Cropp, 127 F.3d at 359, insofar as they hold that
“information about the precise number of years” a witness
believes the he would have faced absent his cooperation
with the government is commonly “outweighed by the
potential prejudice [of] having the jury learn what penalties
[a] defendant [is] facing.” Luciano-Mosquera, 63 F.3d at
1153.

                             3
  Having determined that Chandler was deprived of an
adequate opportunity to cross-examine Sylvester and
Yearwood, we must next inquire whether the District
Court’s error is one that requires reversal. We are again
guided by Van Arsdall. Citing its earlier decision in
Chapman v. California, 386 U.S. 18 (1967), the Van Arsdall
Court held that when it has been established that a
defendant’s right to confront adverse witnesses was
infringed by excessive limits on cross-examination, the
reviewing court must then determine whether the error was
harmless. See Van Arsdall, 475 U.S. at 684. The Court
explained:
    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.
    Whether such an error is harmless in a particular case
    depends upon a host of factors, all readily accessible to
    reviewing courts. These factors include 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.
                                   23


      Cf. Harrington [v. California, 395 U.S. 250, 254 (1969)],
      Schneble v. Florida, [405 U.S.427, 432 (1972)].
Id.
   After reviewing the record in this case, we cannot say
that the District Court’s error was harmless beyond a
reasonable doubt. Several facts lead us to this conclusion.
First, although Kathleen Yearwood and Sly Sylvester were
not the only witnesses who testified against Chandler, they
were important to the government’s case. Of the
government’s nine witnesses,4 three were law enforcement
officers: Pennsylvania narcotics agent David Nale, Special
Agent Charles Dahlmann of the U.S. Treasury, and Moon
Township police officer Douglas Busch. Although their
investigation    had   involved   surveillance,  fingerprint
evidence, garbage searches, undercover drug purchases,
and the use of informants who recorded conversations
among the co-conspirators, none of these three could
supply any direct evidence of Chandler’s involvement in
drug trafficking, the offense of which Chandler was found
guilty. Nor did William Yearwood and Annette Yearwood,
both of whom could testify only that Linda Chandler, along
with others, was present in their house when drug
transactions took place, provide such evidence. The
testimony of the remaining co-conspirators—Baker, White,
Sylvester and Kathleen Yearwood—therefore was essential
in showing that Chandler was criminally involved. All four
testified pursuant to plea agreements, and, as Mr. Scoratow
attempted to show, all had motives to implicate Chandler.
Mr. Scoratow also showed the jury that several of the co-
conspirators had provided testimony inconsistent with their
prior representations. For example, although Baker testified
at Chandler’s trial that he had never used cocaine, earlier
he told probation officers that he had a cocaine “problem.”
Because so much depended on the credibility of the
cooperating witnesses, additional information about their

4. In order of their appearance, the government’s nine witnesses were (1)
Moon Township police officer Douglas Busch, (2) Pennsylvania narcotics
agent David Nale, (3) Sly Sylvester, (4) William Baker, (5) Frederick
White, (6) William Yearwood, (7) Annette Yearwood, (8) Kathleen
Yearwood, and (9) Special Agent Charles Dahlmann of the U.S. Treasury.
                             24


motives in testifying might have proven decisive. In light of
these facts, we lack “a sure conviction” that the District
Court’s limitations on cross-examination “did not prejudice
the defendant”; nor can we say that it is “ ‘highly probable’
that the district court’s errors did not contribute to [the]
jury’s judgment of conviction.” Casoni, 950 F.2d at 902
(citations omitted). Accordingly, we will reverse and remand
for a new trial.
                            25


ROTH, Circuit Judge, dissenting:
   The Majority’s decision to remand this case for a new
trial is based on only two questions. The District Court
excluded both questions when the government objected to
them. The first question, asked by defense counsel to Sly
Sylvester, was
    Q.   Did anyone explain to you what the penalties for
         five kilos is under the guidelines?
    MR. RIVETTI: Your Honor, I object to these questions
    regarding the penalties for five kilos.
    THE COURT: Okay. Penalties should not be discussed
    in the case, I would agree.
  The second question, asked by defense counsel to
Kathleen Yearwood, was
    Q. And you know that you’re here, you’re facing a
    heavy sentence — what did your attorney, Mr. Reister,
    tell you you’re facing?
    MR. RIVETTI: Your Honor, again I object to discussing
    the penalties here.
    THE COURT: The objection is sustained. I think the
    point’s been made that she knows by testifying she
    might get a reduction.
  Both questions are addressed to the specific penalty to be
imposed for a particular offense — either the offense with
which the witness was charged or the offense with which
the witness could have been charged if the government had
not charged him with a lesser offense in return for
testifying against his co-conspirators.
   As established in Delaware v. Van Arsdall, 475 U.S. 673,
680 (1986), cited by the Majority, the District Court, when
it limits cross-examination, should consider the potential
effect of the foreclosed cross-examination on the jury’s
evaluation of the witness. Here, defense counsel had cross-
examined Sylvester and Yearwood about their cooperation
agreements with the government and the benefits each
hoped to get as a result of testifying against Chandler,
including the benefit Sylvester received by being charged
                                   26


with dealing only in 3 ounces of cocaine, rather than in five
kilograms. I believe that, as a consequence of the decision
in this case, a district judge in the future will have to
conclude that, if a cooperating witness has been cross-
examined about the benefits of his or her bargain with the
government and defense counsel wants to go further to
inquire about the specific penalty which could have been
imposed on that witness, the question must be permitted.
I consider such a limitation on the District Court’s wide
discretion   in   controlling   cross-examination    to    be
unwarranted.
   First, it is well recognized that, when cross-examination
has presented a sufficient opportunity to expose witness
bias, there is very little probative value in a question about
the precise sentence which the witness might face. See
United States v. Luciano-Mosquera, 63 F.3d 1142, 1153 (1st
Cir. 1995). In such circumstances, the District Court may
properly limit cross-examination to preclude testimony
about the penalty which might be imposed. Id.; see also
Brown v. Powell, 975 F.2d 1, 5 (1st Cir. 1992);5 United
States v. Ambers, 85 F.3d 173, 176 (4th Cir. 1996); United
States v. Cropp, 127 F.3d 354, 359 (4th Cir. 1997). My
review of the record here convinces me that both Sylvester’s
and Yearwood’s motives, in testifying to obtain benefits
from the government for their cooperation, had been spelled
out to the jury by cross-examination. At that point, there
comes into play the discretion which is accorded to the
District Judge to control the extent of cross-examination.
See United States v. Casoni, 950 F.2d 893, 918-19 (3d Cir.
1992). The Court of Appeals should not second guess the
decision, either to admit the question on exact penalty or to
exclude it. Indeed, I do not have to agree with the trial
judge’s decision to admit or exclude in order to
acknowledge that that decision is permitted within the
allowed scope of discretion.

5. Judge Pollak, the author of the Majority’s decision here, dissented in
Brown on the ground that the defendant was not afforded “the
constitutionally required threshold level of inquiry” if the exact penalty
he escaped by cooperating with the government was not disclosed to the
jury. Id. at 6.
                            27


  Moreover, there are well-recognized reasons to exclude
testimony on the exact penalty a cooperating witness might
face. When the defendant on trial has committed offenses
similar to those committed by a cooperating witness, the
impact of the extent of the potential penalty may deter the
jury from making a finding of guilt. See Cropp, 127 F.3d at
358-59. Furthermore, the difficulty under the U.S.
Sentencing Guidelines of estimating what the ultimate
penalty may be has discouraged trial courts from opening
up the subject. See Ambers, 85 F.3d at 176-77.
   In arriving at the decision that Chandler was deprived of
an adequate opportunity to cross-examine Sylvester and
Kathleen Yearwood, the majority concludes that Davis v.
Alaska, 415 U.S. 308 (1974) governs its analysis. In Davis,
the trial court had prohibited the defendant from cross-
examining a key prosecution witness about his status as a
juvenile probationer. The Supreme Court held that the
defendant should not have been precluded from probing the
witness’s possible bias in testifying. Id. at 319. I find,
however, that Davis is distinguishable from the present
case in that here the defendant was permitted to probe the
existence of bias in the expectation of both Sylvester and
Kathleen Yearwood that their testimony would result in a
lesser punishment for them. The complaint here is not that
the probing of bias was prohibited entirely but that the
extent of the probing was limited. From my review of the
record, I conclude that this limitation was permissible
under Van Arsdall and that Davis does not speak to the
crucial issue before us of the limitation, rather than the
prohibition, of cross-examination which is aimed at probing
bias.
  Finally, even if cross-examination as to the exact penalty
that might be imposed on Sylvester and Kathleen Yearwood
should have been permitted, I would nevertheless affirm
Chandler’s conviction because, in light of the extensive
evidence against her, the error was harmless. For example,
included in the testimony given by government witnesses,
but not mentioned by the Majority, was the fact that
Chandler made repeated deposits into a bank account of
large amounts of cash, totaling over $8,000, when she had
no legitimate source for these funds. In addition, Kathleen
                              28


Yearwood’s sister, Annette, testified that she overheard
Chandler and Kathleen discussing cocaine trafficking
activities and that “more than a few times” when Chandler
and other co-conspirators were in Annette’s New York
apartment, Annette saw “lots of money” on the kitchen
table and once or twice she saw packaged drugs. I believe
that both of these examples give direct evidence of
Chandler’s involvement in drug trafficking. Therefore,
unlike the Majority, I cannot conclude that the limitation of
cross-examination contributed to the jury’s judgment of
conviction.
  For the above reasons, I respectfully dissent from the
Majority’s conclusion that Chandler’s judgment of
conviction should be reversed.

A True Copy:
        Teste:

                   Clerk of the United States Court of Appeals
                               for the Third Circuit
