PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 09-4049

RANDOLPH WILLIAMS, a/k/a Red,

Defendant-Appellant. 

Appeal from the United States District Court

for the District of South Carolina, at Spartanburg.

Henry M. Herlong, Jr., District Judge.

(7:08-cr-00025-HMH-1)

Argued: September 21, 2010

Decided: January 21, 2011

Before GREGORY and KEENAN, Circuit Judges, and

James C. DEVER III, United States District Judge for the

Eastern District of North Carolina, sitting by designation.

Vacated and remanded by published opinion. Judge Gregory

wrote the majority opinion, in which Judge Keenan joined.

Judge Dever wrote a separate opinion concurring in part and

dissenting in part.

COUNSEL

ARGUED: Andrew Mackenzie, BARRETT & MACKENZIE, LLC, Greenville, South Carolina, for Appellant. Robert
Frank Daley, Jr., OFFICE OF THE UNITED STATES

ATTORNEY, Columbia, South Carolina, for Appellee. ON

BRIEF: W. Walter Wilkins, United States Attorney, Columbia, South Carolina, for Appellee.

OPINION

GREGORY, Circuit Judge:

A jury convicted Randolph Williams of conspiracy to possess with intent to distribute heroin in contravention of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(C), 846. Williams appeals his

conviction because of a stipulation which was published to

the jury over his objection. He argues that this error impinged

on his Sixth Amendment right "to be confronted with the witnesses against him." U.S. Const. VI. We agree and therefore

vacate his conviction.

I.

On January 8, 2008, Williams was indicted by a grand jury

for conspiracy to possess with intent to distribute heroin from

September 25, 2007, to October 10, 2007 in violation of 21

U.S.C. §§ 841(a)(1), 841(b)(1)(C), 846. Two co-defendants,

Sabrina Hutchinson and Victor Jackson, were also indicted as

members of the conspiracy. Subsequent to the indictment,

Williams pled not guilty, charges were dropped against

Sabrina Hutchinson, and Victor Jackson pled guilty.

On September 3, 2008, the district court held a hearing to

discuss pretrial matters for Williams’ trial. The Assistant

United States Attorney informed the court that she wished to

enter a stipulation regarding the testing of the drugs at issue.

She advised the court that the "defendant refuses to sign the

stipulation." J.A. 11. Williams’ defense attorney then asked

the court if it "had[ ] any problem with [her] signing the stipu2 UNITED STATES v. WILLIAMS
lation over the objection of the defendant?" J.A. 11. The court

allowed the defense attorney to sign the stipulation and it was

read to the jury.

During the trial, the government presented its theory of the

crime. According to the government, the package of heroin

was shipped from drug producers in Panama to the Louisville

International Airport in Kentucky where it was intercepted by

law enforcement. From there, if it had not been intercepted,

the package would have been shipped to Sabrina Hutchinson’s house in Spartanburg, South Carolina where Victor

Jackson would retrieve it, and then deliver the package to

Williams. Williams, according to the government, planned to

distribute the heroin thereafter.

In support of its theory the government introduced several

pieces of evidence. First, the United States introduced the testimony of Officer Eric Murphy from the Customs and Border

Protection Agency, who explained how the alleged heroin

arrived from Panama and caught his attention. Officer Murphy subsequently conducted a field test which was positive

for heroin.

Second, Victor Jackson, who was Williams’ indicted codefendant, testified that he was asked by Williams to retrieve

the package in exchange for $500. During cross examination

it was revealed that Jackson initially lied to police about his

identity and would likely have his sentence reduced based on

his testimony.

Following this testimony, the government published the

stipulation by reading it to the jury1:

United States of America vs. Randolph Williams also

known as Red, Criminal No 7:08-25, the Govern1The written and signed copy of the stipulation has been lost and so we

rely on the transcript for language of the stipulation. 

UNITED STATES v. WILLIAMS 3
ment and counsel for the defendant, Randolph Williams, that counsel being Lora Collins stipulate the

following: that on October the 11th of the 2007 [sic]

lieutenant Beth Rampey Vaughn a certified forensic

chemist with the Spartanburg County Sheriff’s

Office forensic laboratory located in Spartanburg,

South Carolina, examined and analyzed the contents

of the package addressed to Sabrina Hutchinson, 142

Westover Drive No. 5, Spartanburg, South Carolina,

29306 and seized by Eric Murphy of Customs and

Border protection Louisville Kentucky, that the

package was seized on October the 3rd of 2007 from

the UPS sorting facility and submitted to forensic

chemist Rampey Vaughn under ICE file No.

GV13HE08GV0C1[ ], that forensic chemist Rampey

Vaughn who has been qualified as an expert in the

analysis of controlled substances in both state and

federal courts within the District of South Carolina

determined that this – that the package contained a

total weight of 98.61–grams of heroin, a schedule I

controlled substance. We do so stipulate, signed by

Lora Collins, attorney for the defendant, and Assistant United States Attorney Regan A. Pendleton in

Greenville, South Carolina.

J.A. 40-41. The government then introduced testimony by

Officer Brian Duncan. He testified that he dressed as a UPS

delivery man and delivered the package to Ms. Hutchinson’s

house in order to ensure that Victor Jackson retrieve the package. Next Special Agent Paul Criswell testified as to the content of an alleged confession by Williams in which he detailed

the plan to retrieve and distribute the heroin. In crossexamination, the defense pointed out that despite the custodial

nature of Williams’ interrogation, no written statement was

ever taken. Furthermore, the defense raised questions about

whether Williams was under the influence of medication at

the time of the interrogation. The government also called

4 UNITED STATES v. WILLIAMS
Investigator Matt Hutchins who verified much of Special

Agent Criswell’s testimony.

The defense called Williams to testify on his own behalf.

Among other things, he testified that he was under the influence of the pain killer Percocet at the time of his interrogation

by Investigator Hutchins and Special Agent Criswell. He also

contradicted earlier statements regarding any admissions he

allegedly made to law enforcement. Finally, the government

called Sabrina Hutchinson who indicated that she did not

know and had never spoken with Williams.

In its charge to the jury, the court indicated that "[w]hen the

attorneys on both sides stipulate or agree to the existence of

a fact . . . you must, unless otherwise instructed, accept the

stipulation as evidence and regard that fact as proved." J.A.

97. The court listed the required elements as (1) "an agreement existed between two or more persons to possess with the

intent to distribute heroin"; (2) "defendant knew of the conspiracy"; and (3) "defendant knowingly and voluntarily

became a part of the conspiracy." J.A. 102.

During their deliberation, the jury returned several questions to the court including: "What amount of drugs does it

take to qualify for distribution as opposed to self-use?" J.A.

109. The court replied by indicating that the jury should use

common sense but that the more drugs there are, the more

likely it is that there is an intent to distribute. The court then

retrieved the stipulation, marked it as the court’s exhibit no.

1, and sent it back with the jury. Later, the court gave the jury

the so-called Allen charge to encourage them to reach a verdict and allowed them to go home for the night. The next

morning, the jury returned a guilty verdict. The jury also

found that Williams had intended to possess 98.61 grams of

heroin.

Williams’ sentencing guidelines were prepared relying on

a determination that he intended to possess 98.61 grams of

UNITED STATES v. WILLIAMS 5
heroin. After disposing of some other objections, the court

imposed a sentence of 78 months which was at the top of the

guideline range. Williams timely filed a notice of appeal.

II.

This Court reviews evidentiary rulings implicating constitutional claims de novo. United States v. Abu Ali, 528 F.3d 210,

253 (4th Cir. 2008), cert. denied, 129 S. Ct. 1312, (2009) (citing United States v. Rivera, 412 F.3d 562, 566 (4th Cir.

2005).

If we conclude that there is a constitutional violation, then

evidentiary rulings of this kind are subject to harmless error

review. Erroneously admitted evidence is harmless if a

reviewing court is able to determine that "the constitutional

error was harmless beyond a reasonable doubt." United States

v. Abu Ali, 528 F.3d 210, 256 (4th Cir. 2008) (citing Chapman

v. California, 386 U.S. 18, 24 (1967)).

III.

A.

Both parties agree that the district court abused its discretion by admitting the stipulation into evidence over Williams’

objection because it violated his right to confront witnesses

under the Sixth Amendment:

Admitting statements deemed reliable by a judge is

fundamentally at odds with the right of confrontation. To be sure, the Clause’s ultimate goal is to

ensure reliability of evidence, but it is a procedural

rather than a substantive guarantee. It commands,

not that evidence be reliable, but that reliability be

assessed in a particular manner: by testing in the crucible of cross-examination.

6 UNITED STATES v. WILLIAMS
Crawford v. Washington, 541 U.S. 36, 61 (2004). Though neither party cites to a case from the Fourth Circuit, both parties

cite relevant cases from outside of this Circuit which have

held that where a defendant objects to the introduction of a

stipulation that is nonetheless introduced at trial, a district

court abuses its discretion. See e.g. Hawkins v. Hannigan, 185

F.3d 1146, 1155 (10th Cir. 1999).

A majority of our sister circuits have held that "a defendant’s attorney can waive his client’s Sixth Amendment right

so long as the defendant does not dissent from his attorney’s

decision, and so long as it can be said that the attorney’s decision was a legitimate trial tactic or part of a prudent trial strategy." United States v. Cooper, 243 F.3d 411, 418 (7th Cir.

2001) (citation omitted); see also Janosky v. St. Amand, 594

F.3d 39, 48 (1st Cir. 2010) (same); United States v. Gamba,

541 F.3d 895, 900 (9th Cir. 2008) ("defense counsel may

waive an accused’s constitutional rights as a part of trial strategy"); United States v. Plitman, 194 F.3d 59, 63 (2d Cir.

1999) (same); United States v. Reveles, 190 F.3d 678, 683 n.6

(5th Cir. 1999) (same); Hawkins, 185 F. 3d at 1155 (same).

However, other circuits have found that a defendant’s

waiver is required for an attorney to waive a Sixth Amendment right. See Clemmons v. Delo, 124 F.3d 944, 956 (8th

Cir. 1997) ("the law seems to be clear that the right of confrontation is personal and fundamental and cannot be waived

by counsel"), cert. denied, 118 S. Ct. 1548 (1998); Carter v.

Sowders, 5 F.3d 975, 981 (6th Cir. 1993) ("there must be evidence in the record to support" a defendant’s waiver of a

Sixth Amendment right to confrontation for it to be valid).

While this Court is inclined to require that defendants make

a clear waiver of their Sixth Amendment right, the Court need

not reach this question here since both counsel and the district

court were aware that Williams objected to the introduction of

the stipulation. We can find no reasoning or case law that

UNITED STATES v. WILLIAMS 7
would uphold a waiver of a Sixth Amendment right by

defense counsel over a defendant’s objection.

Therefore, we find that the district court erred when it

accepted the stipulation over Williams’ objection and violated

his Sixth Amendment right.2

B.

Next we must determine whether Williams is entitled to a

new trial as a matter of law. To make this determination, this

Court must consider whether the constitutional violation was

harmless. An error will be deemed harmless if "the beneficiary of . . . [the] constitutional error [can] prove beyond a

reasonable doubt that the error complained of did not contribute to the verdict obtained." Chapman v. California, 386 U.S.

18, 24 (1967).

Williams argues that the introduction of the stipulation was

not harmless. First, he argues that several pieces of evidence

presented at trial would not have been admissible but for the

stipulation. He also argues that the court’s use of the stipulation to answer the jury’s question about defining intent to distribute was highly prejudicial. The government argues that the

error was harmless because the overwhelming uncontested

evidence was sufficient to prove guilt.

We find that the harm from the stipulation extended far

2A stipulation may also be grounds for a violation of a defendant’s right

to a jury. A defendant has a right under the Fifth and Sixth Amendments

to have a jury determine guilt beyond a reasonable doubt on every element

of a charged offense. United States v. Gaudin, 515 U.S. 506, 509-10

(1995) (United States Constitution "requires criminal convictions to rest

upon a jury determination that the defendant is guilty of every element of

the crime with which he is charged, beyond a reasonable doubt.") However, this Court need not reach whether or not Williams’ right to jury trial

was violated since we find as a matter of law that Defendant’s Sixth

Amendment right was violated. 

8 UNITED STATES v. WILLIAMS
beyond identifying the substance in the package. The harm

from the stipulation falls into two broad categories. First,

while styled as a stipulation, it essentially established an element of the crime. The government, having already secured

a conviction against Jackson, established the chain of custody,

and verified the identity and weight of the substance in the

package, had very little left to prove.

Second, prejudice also derives from the jury using the stipulation to determine whether Williams had an intent to distribute heroin. The jury’s question during deliberation "What

amount of drugs does it take to qualify for distribution as

opposed to self-use?" indicates that the jury was unresolved

as to whether the government had met its burden of proof on

the first element of the crime. In an effort to clarify the standard, the district court told the jury that "the larger the quantity of drugs increases the inference that drugs were possessed

with the intent to distribute as opposed to personal use," and

then gave the jury a copy of the stipulation. J.A. 112. The

stipulation was the only evidence of the amount of heroin. 

Here, it is not difficult to identify the harm caused by the

stipulation. The district court handed the stipulation to the

jury and thereby indicated that it was important in determining whether Williams had an intent to distribute heroin. Moreover, the stipulation was marked as the court’s exhibit, giving

it an air of reliability higher than other evidence presented to

the jury. When an "answer to [a] jury’s question [is] supplied

by the trial judge" it is "thus stamped with the imprimatur of

the court." United States v. Ofray-Campos, 534 F.3d 1, 25 (1st

Cir. 2008) (finding that a judge’s indication that codefendants are incarcerated unduly prejudiced a jury verdict).

Therefore the stipulation was essential to the jury’s finding

that Williams was guilty of intent to distribute.

We find that this prejudice alone is enough to require that

the conviction be vacated. As a result of the clear prejudice

stemming from the stipulation, this Court concludes that it

UNITED STATES v. WILLIAMS 9
created pervasive prejudice and that the government cannot

come close to proving that it was "harmless beyond a reasonable doubt." Arizona v. Fulminante, 499 U.S. 279, 307-08

(1991). Therefore, the Court finds that the conviction is

vacated and this matter is remanded to the district court for

further proceedings.

For the reasons explained above, we

VACATE AND REMAND

DEVER, District Judge, concurring in part and dissenting in

part:

I agree with the majority that the district court violated the

Confrontation Clause of the Sixth Amendment at trial in

accepting the stipulation that the package seized at the Louisville airport contained 98.61 grams of heroin. I respectfully

dissent, however, from the majority’s conclusion that the error

requires a new trial. Notably, the stipulation did not connect

Williams to the seized package or inculpate Williams in the

charged conspiracy in any way. Having reviewed the record

in light of Neder v. United States, 527 U.S. 1 (1999), Delaware v. Van Arsdall, 475 U.S. 673 (1986), and the substantive

law of conspiracy, I would affirm the conviction. I describe

the evidence and the events at trial at somewhat greater length

than the majority in order to explain why it is "clear beyond

a reasonable doubt that a rational jury would have found the

defendant guilty absent the error." Neder, 527 U.S. at 18.

Moreover, because the Confrontation Clause does not apply

to the calculation of drug weight at sentencing, I also would

affirm the sentence.

I.

The one-count indictment in this case states:

That beginning at a time unknown to the Grand Jury,

but beginning at least on or about September 25,

10 UNITED STATES v. WILLIAMS
2007, and continuing through October 10, 2007, in

the District of South Carolina and elsewhere, the

Defendants, RANDOLPH WILLIAMS, a/k/a "Red";

TIMOTHY RAY BYRD, a/k/a Victor Oneill Jackson; and SABRINA T. HUTCHINSON, knowingly

and intentionally did combine, conspire and agree

together and have tacit understanding with each

other and various other persons, both known and

unknown to the grand jury, to knowingly, intentionally, and unlawfully possess with intent to distribute

a quantity of heroin, a Schedule I controlled substance, in violation of Title 21, United States Code,

Sections 841(a)(1) and 841(b)(1)(C);

All in violation of Title 21, United States Code, Section 846.

J.A. 7.

Williams decided to go to trial and to make the United

States prove the three elements of the charged conspiracy

beyond a reasonable doubt:

(1) an agreement to possess heroin with the intent to

distribute existed between two or more persons; (2)

[Williams] knew of the conspiracy; and (3) [Williams] knowingly and voluntarily become part of the

conspiracy.

See United States v. Reid, 523 F.3d 310, 315 (4th Cir. 2008).

Williams’s theory of the case was simple: he did not know of

the alleged conspiracy or knowingly and voluntarily become

part of the alleged conspiracy.

At a pre-trial hearing on the morning of the first day of

trial, counsel for the United States and counsel for Williams

stipulated that the testimony of the government’s forensic

chemist would show that the package seized at the Louisville

UNITED STATES v. WILLIAMS 11
airport on October 3, 2007, contained 98.61 grams of heroin.

J.A. 11, 40–41. Defense counsel agreed to stipulate that the

seized package contained 98.61 grams of heroin as a trial

strategy because Williams’s theory of the case was that he did

not know about the alleged conspiracy and was not part of the

alleged conspiracy; therefore, the weight of the heroin "really

doesn’t matter." Id. at 11. Over Williams’s objection, the district court accepted the stipulation. Id. at 11, 40–41.

On September 3, 2008, Williams’s trial commenced. Id. at

17. Agent Eric Murphy, of U.S. Customs and Border Protection, testified first. Id. at 19–26. Murphy explained that he

examined packages arriving into the United States from outside the United States and was assigned to the Louisville

International Airport in Louisville, Kentucky. See id. at

19–20. On October 3, 2007, Murphy was alerted to a package

shipped via United Parcel Service ("UPS") from Panama,

which U.S. Customs views as a high risk country for drug

smuggling. Id. at 21–22, 25. The package listed a return

address in Windex, Panama and was addressed to Sabrina

Hutchinson, 142 Westover Drive, Spartanburg, South Carolina. Id. at 22–23.

Murphy identified the package, and it was received into

evidence. Id. at 22; Govt. Ex. No. 1. Murphy testified that on

October 3, 2007, he opened the package and found an envelope inside. J.A. 22. Inside the envelope, he discovered a bag

containing a substance that field tested positive as heroin. Id.

at 23–25. Murphy also testified that drug smugglers commonly used the manner in which the substance was packaged

to conceal controlled substances. See id. at 24. The package

of heroin itself was admitted as an exhibit, and Murphy

showed the package of heroin to the jury. See id.; Govt. Ex.

No. 2.

After Murphy seized the heroin, he gave the package

(including the package of heroin) to U.S. Immigration and

Customs Enforcement ("ICE") agents in Louisville. J.A.

12 UNITED STATES v. WILLIAMS
25–26. The ICE agents in Louisville, in turn, provided the

seized package to ICE agents in South Carolina. Id.

Next, Victor Jackson testified. Id. at 27–39. Jackson testified that he had known Williams since he (Jackson) was 13

or 14 years old and that Jackson was now 43. Id. at 28. Jackson and Williams were friends and Jackson would sometimes

drive Williams places and do errands for him. Id. Jackson had

not been employed for about four or five years, lived with his

girlfriend Sabrina Hutchinson at her residence in Spartanburg,

and was addicted to crack cocaine. Id. at 29. Jackson also

admitted that he had been convicted of distributing crack

cocaine. Id.

Jackson admitted that he pleaded guilty to the conspiracy

to possess with the intent to distribute a quantity of heroin

charged in the indictment. Id. at 29–30. Jackson also admitted

that he hoped that the prosecutor would make a motion to

reduce his sentence due to his cooperation. Id. at 30.

Jackson then testified about the conspiracy. Jackson

explained that Williams and he reached an agreement in the

fall of 2007. Id. at 30. Specifically, Williams asked Jackson

to receive a package addressed to Sabrina Hutchinson at

Hutchinson’s house. Id. Jackson knew that the package contained drugs. Id. at 31-32. Once Jackson received the package,

Jackson agreed to call Williams to pick up the package. Id. at

31. In exchange for receiving the package, Williams agreed to

pay Jackson $500. Id. Jackson told Hutchinson (who Jackson

said was "a little slow") to be on the lookout for a package

and to let Jackson know when it arrived. Id. at 32.

In early October 2007, Williams called Jackson and said

that the package had been "intercepted" in Kentucky. Id.

About three or four days after that phone call, a UPS van

arrived at Hutchinson’s residence. Id. at 33. Jackson was

inside, peered out the window, and saw the UPS van. Id. Jackson immediately called Williams and told him what was hapUNITED STATES v. WILLIAMS 13
pening. Id. Williams told Jackson to speak to the UPS driver,

but not to sign for anything. Id.

While on the phone with Williams, Jackson opened the

door. Id. The UPS driver (who really was Lieutenant Brian

Duncan of the Spartanburg County Sheriff’s Department)

asked if Sabrina Hutchinson lived there, and Jackson said yes.

Id. at 34–35. The UPS driver then handed the package to

Jackson. Id. at 34. During his direct examination, Jackson

identified Government Exhibit No. 1 as the package he

received. Id.

After Jackson accepted the package, other officers exited

the UPS van and arrested Jackson. Id. Jackson agreed to cooperate and called Williams. Id. at 35-36. Williams, however,

did not answer his phone. Id.

On cross examination, Jackson admitted that he was a crack

cocaine addict and had sold bootleg copies of CDs and DVDs

to Williams. Id. at 37–38.

The prosecutor then read the stipulation to the jury. Id. at

40–41. Before the prosecutor read the stipulation, the court

instructed the jury that "a stipulation . . . is an agreement

between the attorneys for each side which you can accept as

having been proven." Id. at 40. The stipulation stated that the

prosecutor and defense counsel stipulate that a qualified,

expert forensic chemist had examined the package seized

from the UPS sorting facility on October 3, 2007, and the

package contained 98.61 grams of heroin, a schedule I controlled substance. Id. at 40-41.

Next, Lieutenant Brian Duncan testified. Id. at 42-46. On

October 9, 2007, Special Agent Paul Criswell and ICE notified Duncan that "a package had been found in Kentucky that

contained heroin." Id. at 43. Criswell and ICE asked Duncan

to dress up to resemble a UPS driver and to make a controlled

delivery to 142 Westover Drive in Spartanburg. Id. Duncan

14 UNITED STATES v. WILLIAMS
agreed. Thus, on October 10, 2007, Duncan posed as a UPS

driver and delivered the package to Jackson. Id. at 42-43.

Duncan testified that when Jackson answered the door,

Jackson was talking on the phone. Id. at 44. Duncan handed

the package to Jackson. Id. at 43. Criswell and Investigator

Matt Hutchins of the Spartanburg County Sheriff’s Office

then exited the van in which they had been hiding, and

arrested Jackson. See id. at 44. Duncan, Hutchins, and Criswell then asked Jackson if he would cooperate. Id. Jackson

agreed and tried to call Williams. Id. at 44-45. Williams, however, did not answer. Id. at 45.

Duncan then identified Government Exhibit No. 1 as the

package that he delivered to Jackson on October 10, 2007. Id.

Duncan also identified Government Exhibit No. 2 as the package of heroin contained inside Government Exhibit No. 1. Id.

On cross examination, Duncan admitted that Williams was

not at the residence when Duncan delivered the package containing heroin to Jackson. Id. at 46.

Agent Paul Criswell then testified. Id. at 46-62. Criswell

explained that he was an ICE agent assigned to Greenville,

South Carolina. Id. at 47. On October 8, 2007, an ICE agent

in Louisville, Kentucky contacted him and told him that ICE

had intercepted a package of heroin in Louisville destined for

Sabrina Hutchinson, 142 Westover Drive, Spartanburg, South

Carolina. Id. at 47-48. Criswell then contacted the Spartanburg County Sheriff’s Office and Spartanburg City Police

Department to assist with a controlled delivery of the package. Id.

Criswell identified Government Exhibit No. 1 as the package that he received from the Louisville ICE office. Id. at 48-

49. Criswell also identified Government Exhibit No. 2 as "the

heroin that was contained within the package that [he]

received from [the] Louisville office." Id. at 49.

UNITED STATES v. WILLIAMS 15
Criswell then explained the role that he played in the controlled delivery, in Jackson’s arrest, and in Hutchins’s interview of Hutchinson and Jackson. Id. Criswell also explained

that he presented information from the investigation to the

U.S. Attorney’s Office, and a federal grand jury indicted Williams, Jackson, and Hutchinson on January 8, 2008. Id. at 49-

50. After the indictment, federal arrest warrants were issued.

Id. at 50. On January 9, 2008, Criswell, Hutchins, Duncan,

and an ATF agent went to arrest Williams at Williams’s residence. Id.; id. at 2.

Criswell identified Government Exhibit No. 4 as a statement of rights and waiver of rights form ("waiver form"). Id.

at 50-51; Govt. Ex. No. 4. Criswell explained that he read the

waiver form to Williams on January 9, 2008. J.A. 51-52. Williams appeared to understand his rights, did not appear intoxicated, agreed to waive his rights, and signed the waiver form.

Id. at 52-53; Govt. Ex. No. 4. Criswell and Hutchins also

signed the waiver form as witnesses. Id.

Criswell did not promise Williams anything or threaten

him. J.A. 53. Rather, Williams freely and voluntarily gave the

agents a statement regarding his involvement in the heroin

shipped from Panama to Hutchinson’s residence. Id. at 53-54.

According to Criswell, Williams said that he contacted

Jackson about bringing heroin into the United States. Id. at

54. Williams explained that he had been in contact with a man

nicknamed "Cool" in Panama and that Cool sent the package

containing the heroin. Id. (Criswell then identified Cool as

James Alexander Smith III and explained that authorities had

issued a federal arrest warrant in the Eastern District of New

York against Smith III. Id. at 55.) Williams also told Criswell

that he knew another man nicknamed "Coochie" a/k/a James

Alexander Smith, Jr., that Coochie had been found guilty of

conspiracy to distribute heroin, and that Williams had previously obtained heroin from Coochie. Id.

16 UNITED STATES v. WILLIAMS
Williams then told Criswell that Jackson was supposed to

receive a package addressed to Sabrina Hutchinson and delivered to her residence. Id. at 55-56. When the package arrived,

Jackson was to call Williams. Id. In exchange, Williams

agreed to pay Jackson approximately $500. Id. at 56. Williams also told Criswell that while the package was in transit

from Panama, Cool called Williams and said that the package

had been held up in Kentucky. Id.

As for Williams’s intent, Williams told Criswell that once

he received the package from Jackson, he intended to sell the

heroin contained in the package. Id. at 56-57. Williams also

explained that Cool had "fronted" him the heroin, which

meant that Williams obtained the heroin on credit and would

use some of the proceeds of his heroin sales to pay Cool. Id.

at 57.

On cross examination, Criswell admitted that Williams had

gathered bottles of medication at his residence upon his arrest.

Id. at 60. Criswell also admitted that Coochie is incarcerated

within the Bureau of Prisons and that Williams had told Criswell that Cool was in prison in Panama. Id. at 61. Criswell

also admitted that he had not interviewed either Coochie or

Cool. Id.

Next, Investigator Matt Hutchins testified. Id. at 62-67.

Hutchins identified Government Exhibit No. 4 as the waiver

form that was given to Williams. Id. at 63. Hutchins testified

that Criswell read the waiver form to Williams and that

Hutchins signed the waiver form as a witness. Id. Hutchins

explained that Williams appeared to understand his rights,

that neither Hutchins nor Criswell threatened him, that Williams signed the waiver form, and that neither Hutchins nor

Criswell promised him anything. Id. at 64. Hutchins also testified that Williams was "very well aware of what was going

on" during the interview, that his information was "detailed

and coherent," and Williams said that he approached Jackson

UNITED STATES v. WILLIAMS 17
about receiving a package that would contain heroin. Id. at

64-65.

On cross examination, Hutchins testified that he was present when Williams was arrested and that, before leaving his

residence, Williams gathered bottles of medication to take to

jail. Id. at 65. On redirect examination, Hutchins testified that

the officers did not allow Williams to ingest any medication.

Id. at 66. Rather, Williams gathered the bottles of medication,

placed them in a bag, and gave the bag to the officers. Id. at

66-67. The officers, in turn, gave the bag of medication to

intake at the jail and told Williams that, if he needed medication, the jail nurse would have to administer the medication.

Id. at 65-67.

Next, Sabrina Hutchinson testified. Id. at 86–91. Hutchinson explained that in October 2007, she was living with her

boyfriend Victor Jackson at 142 Westover Drive in Spartanburg. Id. at 86-87. Jackson asked Hutchinson if she would let

Jackson know if a package arrived. She agreed to do so. Id.

at 87-88. Hutchinson testified that she did not know she was

part of receiving heroin and did not know what Jackson was

asking her to do. Id. at 89.

Hutchinson testified that she only completed the seventh

grade. Id. at 88. Hutchinson also testified that after being

indicted in this case, her lawyer got her to "take some tests

and get some records." Id. at 88–89. Later, Hutchinson said

that the prosecutor dismissed the conspiracy charge against

her. Id. at 89.

On cross examination, Hutchinson admitted that she never

talked with Williams about receiving a package. Id. at 90.

Rather, Jackson spoke to her about a package and she agreed

to tell Jackson when the package arrived. Id. Finally, she testified that she did not know that Jackson used drugs and had

never met Williams or spoken to Williams on the phone. Id.

at 90-91. She only knew Williams was a friend of Jackson. Id.

18 UNITED STATES v. WILLIAMS
The defense presented one witness: the defendant. Id. at 67-

83. Williams admitted that he had multiple drug arrests and

convictions, including for using heroin. Id. at 68. Williams

also admitted knowing Jackson since approximately 1981 and

admitted that Jackson sometimes drove him places because

Williams did not have a driver’s license. Id. at 68-69. As for

his more recent relationship with Jackson, Williams testified

that Jackson would sell him bootleg copies of CDs and

DVDs. Id. at 69.

Williams then testified about his medical condition. Id. at

70. He explained that in October or November 2007, he had

a portion of his colon removed. Id. In early January 2008, he

was at home in bed, when officers arrived with an arrest warrant naming Williams, Jackson, and Hutchinson in the

charged conspiracy. Id. at 70-72. Before the officers took him

to jail, Williams testified that he ingested prescription medicine in front of the officers. Id. at 70-71. Williams also testified that the medicine makes him sleepy. Id. at 72.

Williams then testified about his memory of the events at

the jail. Id. at 73. Williams admitted that the officers advised

him of his rights and that he signed the waiver form. Id. After

signing the waiver form, officers then took him from the jail

to the sheriff’s department for an interview. Id. at 73-74.

During his interview, Williams told the officers that he

knew a man nicknamed "Cool" and that Cool’s real name was

Smith. Id. at 75-77. Williams then identified Cool in a photographic line-up. Id. Williams then explained that when he told

officers about agreeing to receive a package from Cool, he

was talking about a package that he received from Cool ten

years earlier. Id. at 77. As for his conversations with Jackson

about accepting a package, Williams testified that he only

spoke with Jackson about bootleg CDs and DVDs. Id. Finally,

Williams testified that he had not used heroin for about ten

years, that he had been married for ten years, and that he had

been going to church every Sunday. Id. at 78.

UNITED STATES v. WILLIAMS 19
On cross examination, Williams testified that he had been

addicted to heroin in 2000, but had been clean since 2000 or

2001. Id. at 79–80. As for his January 2008 interview with

officers, Williams testified that he confessed to being part of

the conspiracy due to threats from the officers. Id. at 80. Williams admitted, however, that he had seen phone records indicating 44 phone calls between Jackson’s phone and his phone

during the time period of October 1, 2007, to October 10,

2007. Id. at 81-82. Williams also admitted that he was on the

phone with Jackson when the officers made the controlled

delivery to Jackson. Id. at 82.

The lawyers then delivered their closing arguments. United

States v. Williams, No. 7:08-cr-00025-HMH-1, [D.E. 171], at

3 (D.S.C. Sept. 3, 2008). Each argument was very succinct.

The prosecutor argued that the United States had proven

beyond a reasonable doubt that Williams and Jackson had

conspired to possess with intent to distribute a quantity of heroin. Id. In support, the prosecutor cited the package from Panama containing heroin and cited Williams’s confession and

his admission that he was on the phone with Jackson during

the controlled delivery of the package of heroin. Id. at 3–4.

The prosecutor conceded that Williams was in poor health

and a former heroin addict, but urged the jury to not use sympathy to excuse Williams’s behavior. Id. at 4. The prosecutor

noted that Williams and Jackson did not mind using Hutchinson to facilitate the conspiracy and also cited the 44 phone

calls between Williams and Jackson during the time period of

October 1, and October 10, 2007. Id. at 5. The prosecutor then

stressed the need to use common sense in evaluating the evidence. Id. The prosecutor rejected Williams’s claim that officers twisted his words during his post-arrest interview, but

somehow came up with the names Coochie and Cool. Id.

Finally, the prosecutor mentioned the package of heroin, the

stipulation that the package contained 98.61 grams of heroin,

Jackson’s testimony about how the conspiracy came into

being, and Williams’s confession concerning the conspiracy

to possess with the intent to distribute a quantity of heroin. Id.

20 UNITED STATES v. WILLIAMS
at 5–6. The prosecutor then asked the jury to convict Williams. Id. at 6.

In response, defense counsel returned to the defense theme:

Williams had no knowledge of the alleged conspiracy and

never joined it. In support, defense counsel stated: "The

defense has stipulated there’s heroin in that package because

it was not heroin that Mr. Williams knew about." Id. at 6.

Defense counsel then reminded the jury that the package was

addressed to Sabrina Hutchinson and that Hutchinson testified

that she never talked to Williams about accepting a package

for him. Id. Rather, Hutchinson said that Jackson asked her to

accept a package and that Jackson told Hutchinson that the

package belonged to Williams. Id. at 6–7. Defense counsel

then questioned Jackson’s credibility in light of his guilty plea

to the charged conspiracy and his hope for a sentence reduction. Id. Defense counsel also noted that Jackson and Williams had known each other a long time, but the relationship

involved Jackson selling bootleg CDs and DVDs to Williams.

Id.

Defense counsel then noted that the government failed to

verify who sent the package of heroin from Panama and failed

to interview either Coochie or Cool. Id. at 7–8. As for Williams’s confession, defense counsel explained that he felt

pressured to tell the officers what they wanted to hear and that

his alleged confession actually concerned events of many

years before October 2007. Id. Defense counsel then asked

the jury to find Williams not guilty. Id. at 8. The jury was then

dismissed for the day.

On September 4, 2008, the jury returned and the district

court instructed the jury that, to prove that Williams is guilty,

"the Government [was required to] prove the following elements beyond a reasonable doubt": (1) "that an agreement

existed between two or more persons to possess with the

intent to distribute heroin"; (2) "that the defendant knew of

the conspiracy"; and (3) "that the defendant knowingly and

UNITED STATES v. WILLIAMS 21
voluntarily became a part of the conspiracy." J.A. 102. The

district court gave a variety of other standard instructions on

the burden of proof, how to consider the evidence, and the

law of conspiracy. See id. at 94-107.

After beginning deliberations, the jury sent a note to the

court and asked three questions. First, the jury asked, "What

amount of drugs does it take to qualify for distribution as

opposed to self-use?" Id. at 109. The court then repeated a

portion of its original charge:

[W]hile you should consider only the evidence in the

case, you are permitted to draw such reasonable

inferences from the testimony and exhibits as you

feel are justified in light of common experience. In

other words, you may make deductions and reach

conclusions which reason and common sense lead

you to draw from the facts that have been established

by the testimony and evidence in the case.

Id. at 112. It also stated:

Basically, what you are determining is whether the

drugs were for personal use of for the purpose of distribution. The possession of a large quantity of narcotics does not necessarily mean that the defendant

intended to distribute them. On the other hand, a

defendant may have intended to distribute narcotics

even if he did not possess large amounts of them.

Having said that, the larger the quantity of drugs

increases the inference that drugs were possessed

with the intent to distribute as opposed to personal

use.

Id. at 112-13.

Second, the jury asked, "What is the street value of the

drugs?" The court responded: "There was no testimony or evi22 UNITED STATES v. WILLIAMS
dence to that effect. And we don’t add to the record once you

go to the jury room." Id. at 113.

Finally, the jury asked, "Why were phone records not submitted as evidence and can we see them?" Id. The court

instructed the jury that "[t]he records actually were not admitted in evidence and we cannot add to the record. I can tell you

that the only record is that the question was asked about the

phone records and the defendant agreed." Id. The court also

stated: "I marked as a Court’s Exhibit[.] It should have gone

to you anyway[;] you are being sent the stipulation which is

part of the record." Id. The jury then resumed deliberating. Id.

After lunch, the jury sent a note stating: "We need to hear

the judge’s charge to the jury again." Id. at 115. The court

then sent a copy of its charge to the jury. Id.

Later, the jury asked: "Can we get a copy of Williams’ testimony? We also would like a copy of [Jackson’s] testimony."

Id. The court instructed the jury at 3:30 p.m. that it could get

the testimony transcribed, but "[i]t’s going to take a while.

You may go back to your jury room." Id. at 116. The jury

continued deliberating. Id. Later, the jury sent another note

stating: "We have 11 guilty and one not guilty. We cannot

reach [consensus]." Id. at 117.

At approximately 5:00 p.m., the court gave an Allen charge.

See id. at 118-20. The jury resumed deliberations. Id. at 120-

21. At 5:30 p.m. the jury asked: "We need to get clarification

on considering evidence based on a reasonable doubt and

common sense." Id. at 121. The court then instructed the jury

on reasonable doubt and common sense. See id. at 121-22.

The jury later sent another note: "Tomorrow can we review

the other officers’ testimony?" Id. at 123. The court instructed

the jury that "I will get the court reporter tonight to prepare

all of that testimony for you so you can have it to read tomorrow." Id. at 124.

UNITED STATES v. WILLIAMS 23
On September 5, 2008, the jury resumed deliberating at

9:00 a.m. Id. at 126. Shortly after 1:00 p.m., the jury reached

a verdict and found defendant guilty. Id. at 126-28.

II.

I agree with the majority that the Fourth Circuit has not

decided whether and under what circumstances defense counsel may waive a defendant’s Sixth Amendment right to confrontation. I also agree with the majority that the First,

Second, Fifth, Seventh, Ninth, and Tenth Circuits have held

in published opinions that defense counsel "may waive his client’s Sixth Amendment right of confrontation by stipulating

to the admission of evidence, so long as the defendant does

not dissent from his attorney’s decision, and so long as it can

be said that the attorney’s decision was a legitimate trial tactic." United States v. Plitman, 194 F.3d 59, 63–64 (2d Cir.

1999) (quotation omitted).1 The rationale for this waiver rule

is that a "well developed body of case law protects defendants

from constitutionally defective actions of their attorneys," Id.

at 64; see Strickland v. Washington, 466 U.S. 668, 687

(1984), and that courts "must accord proper weight to the role

of defense counsel in fashioning an overall trial strategy,

including one involving waiver of the right to confrontation,

for the defendant’s best advantage." Plitman, 194 F.3d at 64.

I also agree that the Sixth Circuit has held that the confrontation right is personal and that defendant must waive it. See

Carter v. Sowders, 5 F.3d 975, 981 (6th Cir. 1993).2

1

See Janosky v. St. Amand, 594 F.3d 39, 47–48 (1st Cir. 2010); United

States v. Cooper, 243 F.3d 411, 418 (7th Cir. 2001); Hawkins v. Hannigan, 185 F.3d 1146, 1154-56 (10th Cir. 1999); United States v. Stephens,

609 F.2d 230, 232–33 (5th Cir. 1980); United States v. Goldstein, 532

F.2d 1305, 1314–15 (9th Cir. 1976); accord United States v. Gonzales,

342 F. App’x 446, 447-48 (11th Cir. 2009) (per curiam) (unpublished). 

2

In dicta, the Eighth Circuit has stated that "the right of confrontation

is personal and fundamental and cannot be waived by counsel." Clemmons

v. Delo, 124 F.3d 944, 956 (8th Cir. 1997). 

24 UNITED STATES v. WILLIAMS
Here, Williams objected to defense counsel’s tactical decision to stipulate to the forensic chemist’s testimony. J.A. 11,

40–41. Nonetheless, the district court accepted the stipulation,

thereby allowing defense counsel to waive Williams’s right to

confront the forensic chemist. Thus, under the standard of the

overwhelming majority of circuits or under the Sixth Circuit

standard, the district court violated Williams’s Sixth Amendment right to confront the forensic chemist at trial about her

testimony. See, e.g., Melendez-Diaz v. Massachusetts, 129 S.

Ct. 2527, 2531–42 (2009); Plitman, 194 F.3d at 63–64.

III.

Of course, a defendant is entitled to a fair trial, not a perfect

trial. See, e.g., Van Arsdall, 475 U.S. at 681; United States v.

Hasting, 461 U.S. 499, 508–09 (1983). Moreover, the

harmless-error doctrine applies to the Confrontation Clause

error that occurred during the trial. See, e.g., Melendez-Diaz,

129 S. Ct. at 2542 n.14; Van Arsdall, 475 U.S. at 681; United

States v. Banks, 482 F.3d 733, 741–42 (4th Cir. 2007); United

States v. Kahn, 461 F.3d 477, 496 (4th Cir. 2006); United

States v. Iskander, 407 F.3d 232, 240 (4th Cir. 2005). The

harmless-error doctrine preserves the "principle that the central purpose of a criminal trial is to decide the factual question

of the defendant’s guilt or innocence, and promotes public

respect for the criminal process by focusing on the underlying

fairness of the trial rather than on the virtually inevitable presence of immaterial error." Arizona v. Fulminante, 499 U.S.

279, 308 (1991) (quotation omitted). "When reviewing the

erroneous admission of [evidence], the appellate court . . .

simply reviews the remainder of the evidence against the

defendant to determine whether the admission of the [evidence] was harmless beyond a reasonable doubt." Id.; Sherman v. Smith, 89 F.3d 1134, 1137 (4th Cir. 1996) (en banc);

see Fed. R. Crim. P. 52(a). In conducting this review, the

reviewing court must examine the "whole record." Neder, 527

U.S. at 16. The court then must ask: "is it clear beyond a reaUNITED STATES v. WILLIAMS 25
sonable doubt that a rational jury would have found the defendant guilty absent the error?" Id. at 18.

In applying the harmless-error doctrine in this case, the

Supreme Court’s Van Arsdall decision is instructive. In Van

Arsdall, the Court analyzed a Confrontation Clause error and

stated:

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 [erroneously admitted evidence] in the prosecution’s case, whether the [erroneously admitted evidence] was cumulative, the

presence or absence of evidence corroborating or

contradicting the [erroneously admitted evidence] on

material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength

of the prosecution’s case.

Van Arsdall, 475 U.S. at 684.

Here, the erroneously admitted evidence was the stipulation

which identified the substance in the package seized at the

Louisville airport as heroin and stated that it weighed 98.61

grams. The stipulation did not connect Williams to the seized

package or inculpate Williams in the charged conspiracy in

any way. Unlike the majority, I do not believe that the stipulation (alone or in combination with the court’s jury instructions) established the first element of the offense. Moreover,

I believe an examination of each Van Arsdall factor demonstrates that "a rational jury would have found [Williams]

guilty absent the [erroneous admission of the stipulation]."

Neder, 527 U.S. at 18.

First, in determining whether the error was important in the

prosecution’s case, one must focus on the elements of the

charged crime. See Van Arsdall, 475 U.S. at 684. In order to

26 UNITED STATES v. WILLIAMS
prove Williams guilty of conspiracy to possess with intent to

distribute a quantity of heroin in violation of 21 U.S.C.

§§ 841(a), 841(b)(1)(C), and 846, the government had to

prove "that (1) an agreement to possess [heroin] with intent

to distribute existed between two or more persons; (2) [Williams] knew of the conspiracy; and (3) [Williams] knowingly

and voluntarily became a part of this conspiracy." Reid, 523

F.3d at 315. The jury did not have to decide upon a specific

quantity of heroin. See id.3

The stipulation could have impacted only the jury’s finding

as to the first element: whether "an agreement to possess [heroin] with the intent to distribute existed between two or more

persons." Id. To prove this element, the government need not

prove the actual procurement or even the existence of heroin.

See United States v. Yearwood, 518 F.3d 220, 225–26 (4th

Cir. 2008) ("[T]he gravamen of the crime [of conspiracy] is

an agreement to effectuate a criminal act." (quotation omitted)). If Jackson had agreed with Williams to receive a quantity of heroin for distribution, and Williams had requested

heroin from Cool, the actual contents of any shipment from

Cool would be irrelevant to the existence of the conspiracy.

If Cool had actually shipped baking soda instead of heroin,

the agreement between Williams and Jackson would be unaffected.4

 Thus, the stipulation was not important or essential to

prove the existence of an agreement to possess a quantity of

3The district court had the jury make a finding as to a specific drug

weight. See J.A. 105-06. In light of the offense charged in the indictment

and Reid, there was no need to submit the issue of drug weight to the jury.

See, e.g., Reid, 523 F.3d at 310, 314–17; United States v. Cannady, 283

F.3d 641, 647–49 (4th Cir. 2002); 21 U.S.C. § 841(b)(1)(C). 

4Because the stipulation is not essential to establish the first element and

did not increase the penalty for the crime beyond the prescribed statutory

maximum, the defendant’s right to a trial by jury was not violated. See,

e.g., Apprendi v. New Jersey, 530 U.S. 466, 490 (2000); Reid, 523 F.3d

at 314–17; United States v. Johnson, 71 F.3d 139, 142 (4th Cir. 1995); see

also United States v. Fuller, 162 F.3d 256, 259–61 (4th Cir. 1998). The

majority does not reach this question. See Majority Op. at 8 n.2. 

UNITED STATES v. WILLIAMS 27
heroin with the intent to distribute. See Van Arsdall, 475 U.S.

at 684; Banks, 482 F.3d at 742 (erroneous admission of

unnecessary evidence that violated Confrontation Clause

found harmless).

Second, even if the stipulation was important to the prosecutor’s case, the stipulation was cumulative as to the first element of the offense. Van Arsdall, 475 U.S. at 684.

Independent of the stipulation, the jury had before it: (1) Jackson’s testimony concerning his role in the conspiracy; (2)

Criswell’s testimony concerning Williams’s confession to

participating in the conspiracy; (3) Hutchins’s testimony concerning Williams’s confession to participating in the conspiracy; (4) Williams’s testimony that there were 44 phone calls

between his phone and Jackson’s phone from October 1 to

October 10, 2007; and, (5) Williams’s corroboration of Jackson’s testimony that he was on the phone with Jackson when

the package was delivered. Notably, Williams’s confession

included a statement of his intent to distribute and that he had

procured the drugs on credit. See United States v. Henley, 360

F.3d 509, 514 (6th Cir. 2004) (purchase of drugs by credit

arrangement suggests conspiracy with intent to distribute).

The promise of $500 to Jackson for the simple act of receiving a package of heroin at Hutchinson’s residence and calling

Williams indicates a conspiracy with the intent to distribute.

See United States v. Dolan, 544 F.2d 1219, 1221 (4th Cir.

1976). The 44 phone calls between Jackson and Williams in

a ten-day period (i.e., October 1 to October 10, 2007) indicate

a conspiracy. See Yearwood, 518 F.3d at 226. Furthermore,

Williams testified that he no longer used heroin, and there

was no evidence of personal use by anyone. Thus, independent of the stipulation, there was overwhelming proof of an

agreement to possess heroin with an intent to distribute. Simply put, the stipulation was cumulative as to the first element.

Third, the stipulation’s statement that the seized package

contained heroin was corroborated by overwhelming and

uncontroverted independent evidence. Van Arsdall, 475 U.S.

28 UNITED STATES v. WILLIAMS
at 684. Specifically, Murphy testified that the substance was

heroin based on a field test. J.A. 23–25. Such "field test" testimony is competent to demonstrate that the substance seized

was heroin. See, e.g., Sherman v. Scott, 62 F.3d 136, 142 n.5

(5th Cir. 1995); United States v. Paiva, 892 F.2d 148, 160 (1st

Cir. 1989); see also Gonzalez, 342 F. App’x at 447-48; United

States v. Blotcher, 92 F.3d 1182, 1996 WL 442882, at *5-7

(4th Cir. 1996) (per curiam) (unpublished table decision). In

addition, Murphy testified that, based on his training and

experience, the packaging of the substance in the seized package was consistent with how smugglers packaged illegal narcotics. J.A. 24. Murphy’s testimony and the package of heroin

were received into evidence without objection, and Murphy

then showed the package of heroin to the jury. See id. at 21-

25; see also id. at 45, 92; Govt. Ex. No. 2. Duncan also testified that the package of heroin contained in Government

Exhibit No. 2 was contained inside Government Exhibit No.

1, explained the controlled delivery to Jackson, and again

showed the package of heroin to the jury. Id. at 44-45. Furthermore, Criswell explained his role in the investigation,

described Williams’s confession, and again showed the package of heroin to the jury. Id. at 47-49; Govt. Ex. No. 2. Thus,

three witnesses showed the package of heroin to the jury and

identified the package of heroin as being in the package sent

from Panama addressed to Sabrina Hutchinson, seized in Louisville, and delivered to Jackson. Therefore, independent of

the stipulation, the evidence overwhelmingly establishes that

the substance in the package was heroin.

As for the stipulation’s reference to the heroin weighing

98.61 grams, I agree that there was no other evidence that the

heroin weighed precisely 98.61 grams. Cf. Van Arsdall, 475

U.S. at 684. However, the stipulation was not "the only evidence of the amount of heroin." Majority Op. at 9. While I

acknowledge the difference between "weight" and "amount,"

we should focus on whether that precise weight figure would

be material to a rational jury. Neder, 527 U.S. at 18-19; Van

Arsdall, 475 U.S. at 684. In my view, the precise weight figUNITED STATES v. WILLIAMS 29
ure would not be material to a rational jury. Rather, the more

probative piece of evidence to a rational jury would be the

amount of the substance that three witnesses identified as heroin and showed to the jury. After all, jurors do not just hear

testimony during a trial. They also see the physical evidence

that is introduced, such as the package of heroin introduced

as Government Exhibit No. 2 in this case. Here, the package

of heroin that the jury repeatedly saw was evidence — independent of the stipulation — both of the amount of heroin and

that the amount was intended for distribution. See, e.g.,

United States v. Triana, 477 F.3d 1189, 1195 (10th Cir.

2007); United States v. Wright, 131 F.3d 1111, 1112-16 (4th

Cir. 1997); United States v. Richards, 638 F.2d 765, 769 (5th

Cir. 1981); Dolan, 544 F.2d at 1221-22. Moreover, the court

instructed the jurors that the amount of heroin was not dispositive to the determination of whether the drugs were intended

for distribution. J.A. 112-13. The court also instructed the

jurors that they should use their reason and common sense to

evaluate the evidence and testimony they had heard. Id. In

addition, a rational jury determining intent would focus on the

credibility dispute among Jackson (who testified to his role in

the conspiracy), the agents (who testified about Williams’s

confession), and Williams (who testified that the agents

threatened him and misunderstood him during his interview,

but who also made key admissions during his trial testimony).

A rational jury’s analysis of the credibility dispute would not

be impacted by the stipulation because the stipulation did not

inculpate Williams and was unrelated to the credibility dispute. See, e.g., Neder, 527 U.S. at 18-19; Van Arsdall, 475

U.S. at 684.

Fourth, the record lacks any evidence contradicting the

stipulation. See Van Arsdall, 475 U.S. at 684. Williams’s

entire theory of the case was that he did not know about the

conspiracy alleged in the indictment among Jackson, Hutchinson, and others "known and unknown to the grand jury," and

that he did not join the conspiracy alleged in the indictment.

Therefore, Williams never contended that the package did not

30 UNITED STATES v. WILLIAMS
contain heroin or "raised evidence sufficient to support a contrary finding." Neder, 527 U.S. at 19; Van Arsdall, 475 U.S.

at 684; Schneble v. Florida, 405 U.S. 427, 432 (1972); United

States v. Abu Ali, 528 F.3d 210, 256–57 (4th Cir. 2008). Further, Williams never contended that the heroin was intended

for personal use, as opposed to distribution and therefore

"never raised evidence sufficient to support a contrary finding." Neder, 527 U.S. at 19. Indeed, Williams testified that he

had not used heroin since 2000 or 2001. Williams also did not

contend that Jackson or Hutchinson obtained the package of

heroin for personal use in that there was no evidence that

either Jackson (a crack cocaine addict) or Hutchinson ever

used heroin. The only two elements that Williams will contest

at his new trial are the same two elements that he contested

at his first trial and which had nothing to do with the stipulation: whether he knew of the conspiracy alleged in the indictment and whether he knowingly and voluntarily became a

part of the conspiracy. Cf. Neder, 527 U.S. at 19-20 (finding

error harmless where defendant did not dispute omitted element); United States v. Lovern, 293 F.3d 695, 700–01 (4th

Cir. 2002) (same).

Fifth, Williams had ample opportunity to cross examine

Murphy, Duncan, and Criswell on the facts contained in the

stipulation, specifically the identity of the substance in the

package and its weight. He never did so. For example, Williams’s attorney chose to forgo cross examination of Murphy,

without objection from Williams, despite Murphy’s testimony

that the substance field tested positive for heroin and was

packaged consistent with drug smuggling. Moreover, the

record reflects that had the stipulation been rejected, and had

the forensic chemist testified, the cross examination of the

chemist would have been identical to that of Murphy — nonexistent.

Finally, the overall strength of the prosecution’s case dictates a finding of harmlessness. See Van Arsdall, 475 U.S. at

684. "[T]he government presented a substantial amount of

UNITED STATES v. WILLIAMS 31
evidence tending to inculpate [Williams]." Banks, 482 F.3d at

742. The stipulation was, at most, "duplicative of a wealth of

other evidence" presented by the prosecution. Khan, 461 F.3d

at 496; United States v. Smith, 451 F.3d 209, 222 (4th Cir.

2006); United States v. Mackey, 114 F.3d 470, 474–75 (4th

Cir. 1997); United States v. Blevins, 960 F.2d 1252, 1262–63

(4th Cir. 1992). Further, the two elements that Williams contested — whether he knew of the conspiracy alleged in the

indictment and whether he knowingly and voluntarily became

a part of the conspiracy — had nothing to do with the stipulation. A rational jury would not have considered the stipulation

in determining whether the government proved those elements beyond a reasonable doubt.

Each Van Arsdall factor strongly indicates that the error

was harmless beyond a reasonable doubt. Having reviewed

the whole record under the governing standard, I am convinced that the district court’s error concerning the stipulation

was harmless beyond a reasonable doubt. Neder, 527 U.S. at

18-20; see Lovern, 293 F.3d at 700-01; United States v. Perry,

46 F.3d 1128, 1995 WL 45521, at *4 (4th Cir. 1995) (per

curiam) (unpublished table decision) (Defendant "failed to

present any evidence to cast doubt on the stipulation’s validity

. . . . The stipulation at issue in this case was not an admission

of guilt. [Defendant] never questioned that the bank was

robbed or whether its deposits were federally insured. The

sole issue challenged by the defense was one of identity.").

Thus, I respectfully dissent and would affirm the conviction.

IV.

As for Williams’s sentencing, the statutory maximum term

of imprisonment for conspiracy to possess with intent to distribute a quantity of heroin in violation of 21 U.S.C.

§§ 841(a)(1) and 846 is 240 months. See 21 U.S.C.

§ 841(b)(1)(C). At Williams’s sentencing hearing, Williams

did not object to the drug weight of 98.61 grams or present

any evidence to show that such an amount was not properly

32 UNITED STATES v. WILLIAMS
attributed to him. See J.A. 134–47, 160, 171–73; cf. U.S.S.G.

§ 2D1.1(c)(8) (2008). In light of Williams’s accountability for

98.61 grams of heroin and U.S.S.G. § 2D1.1(c)(8), the presentence report ("PSR") provided for a base offense level of 24.

See J.A. 165; U.S.S.G. § 2D1.1(c)(8) (2008). Thus, the district

court calculated Williams’s advisory guideline range as 63

months to 78 months. After considering the 18 U.S.C.

§ 3553(a) factors, the district court sentenced Williams to 78

months’ imprisonment. J.A. 148–49.

Williams argues that the district court violated the Confrontation Clause in relying on the stipulated weight of the heroin

at sentencing and the error was not harmless. Williams’s argument, however, fails because the Confrontation Clause did not

bar the sentencing court from considering the stipulated

weight of the heroin. Cf. Fry v. Pliler, 551 U.S. 112, 121

(2007) ("[I]t would not matter which harmless error standard

is employed if there were no underlying constitutional

error."). As the Fourth Circuit has explained repeatedly, "because the Sixth Amendment does not apply to the process of

calculating an advisory sentence under the [U.S. Sentencing]

Guidelines, [any] Sixth Amendment-based evidentiary restrictions do not apply to that process either." United States v.

Dean, 604 F.3d 169, 174 (4th Cir. 2010).5 Thus, the district

court did not violate the Confrontation Clause and properly

relied on the stipulated drug weight of 98.61 grams in the

5The principle is so well established that it appears in countless unpublished decisions. See, e.g., United States v. Martinez, 274 F. App’x 291,

293 (4th Cir. 2008) (per curiam) (unpublished); United States v. Debreus,

255 F. App’x 725, 727 (4th Cir. 2007) (per curiam) (unpublished); United

States v. Sullivan, 238 F. App’x 955, 956 (4th Cir. 2007) (per curiam)

(unpublished); United States v. Levesque, 232 F. App’x 364, 366 (4th Cir.

2007) (per curiam) (unpublished); United States v. LaChance, 223 F.

App’x 237, 238 (4th Cir. 2007) (per curiam) (unpublished); United States

v. Newbold, 215 F. App’x 289, 299 (4th Cir. 2007) (per curiam) (unpublished); United States v. Statts, 189 F. App’x 237, 238 (4th Cir. 2006) (per

curiam) (unpublished); United States v. Cole, 180 F. App’x 435, 438 (4th

Cir. 2006) (per curiam) (unpublished). 

UNITED STATES v. WILLIAMS 33
PSR. See Fed. R. Crim. P. 32(i)(3). Accordingly, there was no

error at sentencing, and I also would affirm the sentence.

34 UNITED STATES v. WILLIAMS