motivated to testify in favor of a party in this case the government through cross examination must be accorded so that the criminal defendant can establish not only what benefit the witnesses seeking to obtain through his or her testimony but also what will trigger that benefit now in this case the two witnesses we're looking at when the mandatory terms in mr mears case he was looking at a sentence of life without possibility of parole and there was no way he could get out of that send short of a motion by the government that went not only to the benefit that he was seeking to attain that in our cross examination were not only to the benefit that he was seeking to obtain that is a chance to get outside of prison before he died but it also went to the strength of his motive to testify on behalf of the government  my question was and you were looking at a minimum mandatory five years in prison is that right at that point he answered yes i don't recall she didn't suit us and there was no motion to strike and you never review as the panel decision indicated or the paint the panel decision indicated there was some confusion on that what i would submit is that the standard of review is you know although it is a constitutional issue constitutional issues aren't are determine whether or not the defendant was accorded his or her rights confrontation whether or not the questions that were just were asked on cross examination were enough to satisfy where the court permitted you to elicit the plea agreement the fact that the witness was facing prison and the fact that the witness expected to face this substantial reduction in whatever the imprisonment was and you and your co counsel argued extensively to the jury both in opening and closing that those factors should be considered by the jury and winning the credibility of the witnesses coupled with the jury instruction that tells the jury they must view the testimony of that type of a witness with great caution how was there a constitutional deprivation sufficient to violate the six the mend because cross examination needs to be sufficient and in this case the cross examination was not sufficient because we were not allowed to expose the actual benefits that these witnesses were seeking to obtain do you think there's a constitutional significance between the jury being told that there is a substantial reduction in sentence that the witness hopes to achieve through testimony and telling the jury what that actual reduction would be is that what your argument is i think in this case yes in this case insofar as mr larson was concerned the only evidence linking her to this conspiracy were these two witnesses biased their motivation needed to be sufficiently explored so that the jury could properly weigh their testimony but i guess my question to you are times i'm struggling with with the quantitative for qualitative difference between knowing that a witness is testifying pursuant to a hope for benefit a reduction in their own prison sentence and your argument that the jury has to be told  that reduction might be when nobody in the courtroom at that point knows since there has not been a full sentence easy as to what a realistic sentence might be with or without cooperation both of these witnesses your honor had injured in plea agreements those plea agreements directly inform these two witnesses what their minimum and maximum sentences were the important thing is what's in the witnesses mind the important thing for the jury to assess quantification involved is there this is not a matter of math or guessing the fact is will merit facing life in prison unless the prosecution of the safety filed motions so it's not quantitative at the that the prosecutor alone could help them reduce that time in prison and that they didn't want to go to prison so that seems to me to be the motivation firm which you because because i think certainly of someone in general this looking at life without possibility of parole that would be something that the jury should take into account to determine exactly what this witnesses motivation might be what the cut a deal with a prosecutor who could help them but not the strength of the motivation and jury may very well view a witness who's looking at no minimum mandatory term or a year minimum mandatory term different than someone who's looking at a the witnesses was looking at five years and that may not be as dramatic as is it wife you think there is make it makes any difference to the jury if we were only looking at a five depended entirely on the prosecutor to get him off the hook by the safety valve motion does it does it make any quote any difference to our analysis in other words this case turned really on the fact of district court never went through that analysis it never went through this you might call it a hybrid world three and it's this number one but number two indeed any potential for prejudice i think could be ameliorated simply by by a cautionary instruction even at the time that the question is asked and the supreme court stated in this person is not allowed last that in that case the state had a legitimate interest in protecting in the beardsley case we have a three prong test to determine whether or not the defendant's constitutional right to confront the witness had been violated the second of those test has to do with whether there are other legitimate interests other than in form of the consequences of their verdict isn't what you're asking here a violation of that very case wouldn't you be if you were able to ask the questions that you would like to ask would that not specifically inform the jury in this case of the consequences to the defendant's that they were trying if they were in the same factual situation where they're not actually actually neither one of these defendants we're looking at a minimum mandatory convict mr larson she's going to get a minimum in twenty five years i think that a court could ameliorate that concern by telling the jury this information has been alyssa they've slowly for you to evaluate the credibility of this witness and weigh his or her testimony think there's any concern at all on the appropriate concern on the part of the government about what the jurors might have inferred had you been able to ask the questions that you want i don't think with a proper limited instruction know that there's a e piece of information for the jury to know out of fear both that they will compromise their verdict because they know what the potential punishment might be and second that they may not offer their duty as jurors to apply the lot you were not looking i'm not asking for a bright line rule aren't you asking that in every case where a witness has a mandatory minimum sentence that the court is compelled to you were you were asking them isn't there only one person in this room you have to please and that is the prosecutor sitting over here and the answer is yes he's the one you have to satisfy and it seems to me that that i guess i don't understand allowed to properly exposed the motive and bias of these witnesses whether or not i was able to through other questioning engage in sufficient cross examination that is where have questioned because there's no profit but we just don't know that and i think when when i asked the court for permission to recall them i i told the court i asked the court that i wanted to recall them so that they could testify about the minimum mandatory terms for that we could expose that to the jury that that is what i  leave it was three four hundred twenty months but it's my understanding that's been cut again and he's down to three hundred twenty or whatever it is with the unknown quantity i'm sorry if there were a trial whatever  have seven families that's correct your honor and but that he had only spent what two and a half years in prison that's correct term so that by not moving the strike by not even objecting to the question you left the jury with the able to find any recorded federal court of appeals case anywhere in the country that deals with mob allowing a defendant cross examined a cooperating witness about in that mandatory minimum sentence your honor know the closest one i believe is ground versus powell which is the case from the first circuit which is cited by the three member panel and it's not quite on point but it's it's pretty cause any case that involves of course that was facing so that the issue here really is and whether this question is about you know the life sentence whether that question should be as good or not has nothing to do with the question of what whether the jury would be misled or informed improperly you didn't take the position that well we do take deposition and i certainly didn't argue it at have trial your honor because really of the sort of unique way this developed procedur is the panel is aware of the question was never really asked of mr lemaire just been asked every member asked that question mr o'connor asked that question a later during the during the portion where they were making their rule twenty nine motion they asked for permission to recall these witnesses and ask them about the mandatory minimums so we weren't really given an opportunity to make a record on that but that's certainly one of our concerns is that the jury might very well have you weren't concerned that they were told about the five year the only way they were going to get a reduced sentence was with a motion from the governor i think it was very clear from both of those witnesses that that was what the deal was and i don't think it could have been any more clear that in fact they were there and they were dependent essentially upon that the government concluding that they had have assisted the government and given substantial assistance and so first of all i would point out that with respect to portrush i would point out the fact that they also brought out the fact that she had this young child that she did not want to be separated from this child and that you know going to prison of course would cause such a separation there were additional credibility issues sort of general credibility issues which they got into with her about the fact that she had made some prior inconsistent statements she was a drug addict she was a drug dealer with respect to linear they were able to get it brought out the fact that this guy was not a one time loser a two time loser three time loser b what that means and when the defendant excuse me the witness both of the technologies that yes they're hoping for a reduction in their sons as a juror i don't know what these thinking ific and some of it is in the criminal that somebody is facing a five year mandatory minimum at least that tells me ok they're working on five years and i can start to speak to leave perhaps if the defense counsel wasn't allowed to probe further and find out just how far down below the five year minimum the prosecutor might recommend the judge go maybe that's a proper area of cross examination but you know if it's one year off a five  year the woman still going to lose custody of her child for four years so i think maybe that's not such a big deal but if i think that she's going to get zero time that i could think well maybe that really is something but i move over to the guy that's looking at a life in prison and if i'm told that if the prosecutor likes his testimony that he can get out in a matter of you know four years or five years or whatever it is instead of serving the rest of his life in prison i've got to believe as the jirga that that might have more of an impact on the son kind of notion that he's looking for a substantial benefit i do you do you react to that well the way i react to it is is i really think that the th ree judge panel had this right when and when they noted that what is really critical is the reaction and the amount of the reduction and in this particular case under these particular we didn't know what the amount of the reduction was going to be because you hadn't received it the government hadn't even filed a rule five k at that point and so it wasn't by any means clear what he was going to get and well well if somebody a five k that was reduced later to i believe twenty seven years on a rule thirty five for some stuff that he did extraneous to this case but without being able to capture that reduction simply  but it was also again made very clear and this was later after the judge had initially sustained his own objections to the question of which where a truck it was after that that mr nance question about what the operative deal was with the government and it was certainly after that question and let me hear about what the operative deal was and i certainly don't think that i've heard any suggestion that that was misstated by either one of those witnesse he key witness because i think that point was also of particular significance because she indicated that she had actually obtained some drugs from average or that he would make calls to somebody in paddy and if they were go over to what she knew or since home so i think that her her testimony was also very very significant but now this is something that the answer to the question of whether you should be may now you say this make tip off the jury as to what the sentence would be and he didn't want them to think it was the wrong thing but they were already told that one of them had a five year sentence so what is it think justifies the potential sentence and secondly i think it confuses the issue because what happens is if you if you get into asking these witnesses what do you think you are really looking at what are you really going to come down from there and the jury is is hearing essentially this defendant who doesn't know anything about the federal sentencing guidelines who got in a knot at that point you know exactly how much weight is going to be you by the fact the witness is wrong doesn't change the potential motivation well that's correct but i still think it goes to the confusion because what returning to that or what we suggest is the most important thing is is  really stand here today and say that the argument would not have been stronger at the defense attorney in this case been able to say this man is facing life in prison for the rest of his natural life without the possibility of parole unless that prosecutor files a motion no judge no discretion low for admission most of traction no motion life without parole and well this is what he did tell really asking them to think about the guidelines and spend a lot of time and all the rest of what's wrong with telling the jurors what the truth is well for them for th truth will make you free so what's wrong with telling the jurors what the truth because we don't always capture what the truth actually yes but we always the truth is here i don't think that we did at that point we didn't  again we have to look at what the total crosswise and what they were permitted to learn about these people what they were committed to learn about the deal and and again i think each case comes i think under scrutiny in this particular area on its own particular facts and these people were were certainly portrayed as people were not upstanding they were criminals and i think that's not that's not the question that there goes to the collateral i'd like to come back to the relevance because i still retains discretion so that's either choice is permissible and i don't understand why it wouldn't have been at least permissible even if not required by the constitution which is the argument here to have said ok i'll i don't need to win that argument and again it's because of the the amount of cross examination that was allowed and what the jury was informed about and what they didn't let me ask you this because it seemed to me  that would that that was not allowed to be asked as to what the jury didn't know that isn't that right well they knew that these people were criminals they knew that they'd cut a deal with the government could look at these two people and say they might be willing to lie to save their own skin in this instance and and they not only got that information through the trial process they also got an instruction from the court from the district court that said that people have this sort of an arrangement with the government that you can view their their testimony with caution and i think that that could certainly be left briefly returned to her briefly turn to the issue of harmless error in the event that there's some sort of a finding by the panel that in fact there was a sufficient cross the test for harmless error well but i think what it does is in that point at that point let me years testimony is essentially humility of what point you offered and that is something that's considered you know harmless error assessment as well as harmless beyond a reasonable doubt and you take on meir's testimony out of the equation i would not agree that under chapman that the court could validly find that his error was harmless beyond a reasonable do