United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 8, 2005 Decided January 31, 2006

No. 04-3078

UNITED STATES OF AMERICA,

APPELLEE

v.

CRICTINO FONSECA,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 03cr00106-01)

Sandra G. Roland, Assistant Federal Public Defender,

argued the cause for appellant. With her on the briefs was A. J.

Kramer, Federal Public Defender. Mary M. Petras and Neil H.

Jaffee, Assistant Federal Public Defenders, entered appearances.

John P. Mannarino, Assistant U.S. Attorney, argued the

cause for appellee. With him on the brief were Kenneth L.

Wainstein, U.S. Attorney, John R. Fisher, Assistant U.S.

Attorney at the time the brief was filed, and Elizabeth Trosman,

Assistant U.S. Attorney. Roy W. McLeese, III, Assistant U.S.

Attorney, entered an appearance.

Before: TATEL, GARLAND, and GRIFFITH, Circuit Judges.
2

1

Fonseca also argues, and the government agrees, that -- in the

course of imposing a sentence on Fonseca prior to the Supreme

Court’s decision in United States v. Booker -- the district court erred

by treating the United States Sentencing Guidelines as mandatory. See

United States v. Booker, 543 U.S. 220 (2005). Further agreeing that

the record is insufficient to “determine with confidence whether the

defendant suffered prejudice from the Booker error,” United States v.

Coles, 403 F.3d 764, 765 (D.C. Cir. 2005), both parties suggest that

we remand the record to the District Court “so that it may determine

whether it would have imposed a different sentence, materially more

favorable to the defendant, if sentencing had taken place under the

post-Booker sentencing regime.” Id.; see Appellant’s Br. at 26-27;

Appellee’s Br. at 39-42. We accept the parties’ suggestion and

remand the record for this limited purpose.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: A jury found defendant Crictino

Fonseca guilty of unlawful possession of a firearm and

ammunition by a convicted felon. Fonseca raises two issues that

are in contention on this appeal. First, he argues that the district

court violated the Speedy Trial Act by not beginning the trial

that resulted in his conviction until after the statutory deadline.

Second, he asserts that the court abused its discretion by limiting

his cross-examination of a government witness. Concluding that

the district court neither violated the Speedy Trial Act nor

abused its discretion in circumscribing cross-examination, we

affirm the judgment of conviction.1

I

On March 11, 2003, Fonseca was indicted on a charge of

possession of a firearm and ammunition by a convicted felon, in

violation of 18 U.S.C. § 922(g)(1). Fonseca’s first trial

stemming from this indictment began on August 18, 2003. Due

to the jury’s inability to reach a unanimous verdict, the district
3

court declared a mistrial on August 26, 2003. On February 6,

2004, five months after the mistrial, Fonseca filed a motion to

dismiss the indictment, alleging that the court had failed to begin

his retrial within the time required by the Speedy Trial Act, § 18

U.S.C. 3161(e). The district court denied Fonseca’s motion to

dismiss, and a retrial was commenced on February 25, 2004. 

At the retrial, Liz’a Williams testified that she lived in an

apartment at 601 Park Road in northwest Washington, D.C.

Fonseca was the resident manager of the apartment building.

On the evening of February 15, 2003, Williams went to a

neighbor’s house at 613 Park Road, where she and her friends

played cards, ate pizza, and drank piña coladas. Sometime

during the night, a heavy snow began to fall. At 7:00 a.m. the

next morning, Williams, along with her friend Wanda Johnson

and Fonseca’s girlfriend Kee-Kee, walked back toward 601 Park

Road, arguing loudly with one another. As the women stood

outside the apartment building quarreling, Fonseca leaned out of

the window of his second-floor apartment, which overlooked the

front of the building. Fonseca, who was holding a handgun, first

cursed at the women and then fired three shots at them. The

women ducked behind a parked car.

Metropolitan Police Department Officer Michael Rackey

testified that, at approximately 7:00 a.m. on February 16, he and

Officer Jeffrey Byrd drove to 601 Park Road in response to a

police radio report. They arrived at the scene within minutes

and were approached by Williams and Johnson, who said that

three shots had been fired at them from a second-floor window.

The women gave the officers a physical description of the

shooter and said that he was the building manager of 601 Park

Road. 

Rackey testified that, after speaking with the women, the

officers entered the building, proceeded to the second-floor
4

apartment identified by Williams, and knocked on the door. As

they stood there knocking, the officers noticed defendant

Fonseca ascending the stairs from the basement. Because he

matched the description of the shooter provided by Williams and

Johnson, the officers arrested Fonseca on the spot. They then

entered Fonseca’s apartment and found that the window from

which the women said the shots had been fired was open.

Officer Rackey testified that he next went to the building’s

basement to search the area from which he had heard Fonseca

emerge. After opening the basement’s exterior door, Rackey

saw a single set of footprints in the freshly fallen snow. The

footprints led to a garbage bag, topped by an automobile tire.

Rackey lifted the tire and discovered a plastic bag containing a

revolver. The gun’s six chambers held three live rounds and

three expended shell casings.

In his defense, Fonseca called two witnesses. The first was

a forensic toxicologist from District of Columbia Pretrial

Services, who testified that Liz’a Williams had tested positive

for cocaine on January 13, 2003, following her arrest on an

unrelated charge of possessing drug paraphernalia. The district

court admitted the testimony to impeach Williams’ statement,

made during cross-examination, that she had not used drugs

since 2002. The defense also called Officer Byrd, who testified

that he thought the window that Williams and Johnson had

indicated as the location of the shooter was on the side of the

building, rather than the front. Fonseca did not testify.

 On March 4, 2004, the jury found Fonseca guilty as

charged. On June 14, the district court sentenced him to a term

of 104 months’ imprisonment. We consider the two challenges

to Fonseca’s conviction below.
5

II

Fonseca’s first contention is that his retrial violated the

Speedy Trial Act because it did not commence until February

25, 2004, six months after his first trial ended in a mistrial. We

review this challenge, which concerns the meaning of the Act’s

statutory language, de novo. See Zhu v. Gonzales, 411 F.3d 292,

294 (D.C. Cir. 2005). 

Under the Speedy Trial Act, the trial of a defendant charged

in an indictment must begin “within seventy days from the filing

date” of the indictment or from the date the defendant appears

before a judicial officer, whichever date occurs later. 18 U.S.C.

§ 3161(c)(1). “If the defendant is to be tried again following a

declaration by the trial judge of a mistrial,” as was the case here,

“the trial shall commence within seventy days from the date the

action occasioning the retrial becomes final.” 18 U.S.C. §

3161(e). The parties agree that “the date the action occasioning

the retrial” became final in this case was August 26, 2003, the

date the district court declared a mistrial. They further agree

that “seventy days from the date” of that action was November

4, 2003 -- seventy days after August 26, not counting August 26

itself. See United States v. Westbrook, 119 F.3d 1176, 1186 (5th

Cir. 1997); Gov’t of Virgin Islands v. Duberry, 923 F.2d 317,

320 n.8 (3d Cir. 1991); Speedy Trial Plan of the United States

District Court for the District of Columbia, at 10 (Oct. 30,

2002). Accordingly, unless another statutory provision is

applicable, both parties agree that the deadline for

commencement of the retrial was November 4, 2003.

There is another applicable provision. The Speedy Trial

Act provides that certain “periods of delay shall be excluded in

computing” the seventy-day period. 18 U.S.C. § 3161(h). The

exclusion at issue here is that described in § 3161(h)(1)(F),

which covers “delay resulting from any pretrial motion, from the
6

filing of the motion through the conclusion of the hearing on, or

other prompt disposition of, such motion.” 18 U.S.C. §

3161(h)(1)(F). The government filed such a pretrial motion on

the morning of November 4, 2003, the seventieth day after the

mistrial. The court did not resolve that motion until the day the

retrial began, February 25, 2004.

Fonseca contends that the government filed its pretrial

motion one day too late. According to the defendant, the period

of exclusion -- “from the filing of the motion through the . . .

disposition of [] such motion” -- does not begin until the day

after the motion is filed. Under that view, the period of

exclusion did not begin until November 5, 2003, too late to save

a retrial that had to begin no later than November 4.

We disagree. In our view, the most natural reading of the

phrase “from the filing of the motion” is that the period of

exclusion begins immediately “from the filing.” Fonseca’s

position, that the period begins from “the day after” the filing,

would require the insertion of language not in the statute.

Although we have never had occasion to reach a holding on this

issue, we have previously suggested that the period of exclusion

begins on the day a pretrial motion is filed. See United States v.

Wilson, 835 F.2d 1440, 1441 n.2 (D.C. Cir. 1987). This was

also the view of the Committee on the Administration of the

Criminal Law of the Judicial Conference of the United States.

See Guidelines to the Administration of the Speedy Trial Act of

1974, as Amended (Dec. 1979 rev., with amendments through

Oct. 1984), 106 F.R.D. 271, 288 (1984). And it is the reading of

all but one of the circuits that have considered the question. See

United States v. Daychild, 357 F.3d 1082, 1092-93 (9th Cir.

2004); United States v. Westbrook, 119 F.3d 1176, 1186 (5th

Cir. 1997); United States v. Parker, 30 F.3d 542, 546-47 (4th

Cir. 1994); United States v. Jodoin, 672 F.2d 232, 237 n.7 (1st

Cir. 1982) (Breyer, J.). Only the Sixth Circuit computes the
7

2

The precedent cited, United States v. Bowers, 834 F.2d 607 (6th

Cir. 1987), also offers no explanation.

starting date for this exclusion from the day after the motion is

filed, and it has offered no explanation for that view other than

circuit precedent. See United States v. Thomas, 49 F.3d 253 (6th

Cir. 1995).2

Fonseca argues that there is no justification for beginning

the date of the exclusionary period on the date of the filing of a

pretrial motion for purposes of § 3161(h)(1)(F), while not

starting the seventy-day clock until the day after the filing date

of an indictment or the day after the action occasioning the

retrial becomes final for purposes of § 3161(c)(1) and (e). But

there is a justification: the statutory language governing the

starting of the Speedy Trial Act clock is different from the

language governing its tolling. The former requires the trial to

commence “within seventy days from the filing date” or “within

seventy days from the date” of the action requiring retrial. 18

U.S.C. § 3161(c)(1) & (e) (emphasis added). The latter tolls the

clock “from the filing of the motion.”

Accordingly, we conclude that the period of delay resulting

from the filing of the government’s motion in this case began on

November 4, 2003, in time to save Fonseca’s retrial from

violating the Speedy Trial Act.

III

Fonseca’s second contention is that the district court erred

in barring his counsel from cross-examining Liz’a Williams

about a crack pipe found in her purse when she was arrested in

January 2003. We review a district court’s evidentiary rulings,

including those involving the scope of cross-examination, for

abuse of discretion. United States v. Coumaris, 399 F.3d 343,
8

347 (D.C. Cir. 2005); see United States v. Abel, 469 U.S. 45, 54-

55 (1984). Before examining the legal considerations, we first

describe the trial proceedings that led to defense counsel’s failed

attempt to cross-examine Williams regarding the pipe.

A

During her cross-examination of Williams, Fonseca’s

counsel asked Williams whether she was not just drinking piña

coladas on the night in question, but was “also getting high that

night.” 3/1/04 Tr. at 207. After Williams responded, “I don’t

use drugs,” the district court called the attorneys to the bench

and asked Fonseca’s counsel what her “good-faith basis [was]

for believing there were drugs.” Id. Counsel responded that

Fonseca’s girlfriend, Kee-Kee, had told her that the women

“were getting high that night.” Id. Defense counsel further

noted that Williams had answered the cross-examination

question by stating that she did not use drugs, and counsel said

that she now expected Williams would repeat her statement

from the first trial that she had not used drugs since she suffered

a heart attack in June 2002. Counsel told the court that she had

evidence that this statement was false: Williams had been

arrested on an unrelated charge in January 2003, the month

before the shooting incident, and had tested positive for cocaine

at that time. “I ought to be able to get into that to impeach her

credibility,” she argued. Id. at 208.

Over the government’s objection, the district court

permitted Fonseca’s counsel to pursue this line of questioning,

within limits. The court ruled that the inquiry about whether

Williams was using drugs on the night before the shooting was

directly relevant “to her ability to remember and also [to] her

perception of what was occurring at the time.” Id. at 209. KeeKee’s statement to defense counsel, the court said, was

sufficient to establish a good-faith basis for that inquiry. The
9

court further ruled, however, that any questioning about

Williams’ drug test in January 2003 would require “more of a

predicate.” Id. The court said that if Williams testified (as

counsel expected) not just that “I don’t get high,” but that she

“wasn’t getting high at that time, and . . . wasn’t getting high

anytime around that time,” that would “open the door” to an

inquiry about the test results because it would “go to her

credibility.” Id. at 209-10.

Having obtained this favorable ruling, defense counsel

made an additional request. She advised the court that the police

report of Williams’ January 2003 arrest stated that “a crack pipe

was recovered from her purse.” Id. at 210. The court, however,

deemed that line of questioning inappropriate. 

Fonseca’s counsel then resumed the cross-examination,

which proceeded as she anticipated it would at the bench

conference. Williams testified, “I don’t get high.” Id. at 211.

Counsel asked whether Williams meant that she did not smoke

crack on the night of the shooting, or that she never smoked

crack. Williams responded that she had not “gotten high” since

her June 2002 heart attack. Id. at 212. Counsel then asked

whether Williams recalled testing positive for crack cocaine on

January 13, 2003. When Williams said she did not, counsel

requested the court’s permission to use a police report of

Williams’ January 11 arrest to refresh her recollection “about

having an occasion to test” for drugs two days later. Id. at 215.

The court granted permission, again over the government’s

objection. Confronted by the report, which recounted the arrest

but did not mention a drug test, Williams said that she recalled

the day in question but that she “did not test positive for crack

cocaine that day.” Id.

Williams’ response did not end there. Sua sponte, she told

defense counsel that “[y]ou cannot discredit me with that arrest
10

because that was a ‘no paper’ arrest, and I was out the next day

because they found nothing on me.” Id. at 216. This statement

prompted counsel to attempt to cross-examine Williams about

the crack pipe with a leading question: “[Y]ou didn’t have

anything on you this day that you are talking about, this arrest,

correct?” Id. at 216. When the government objected, the court

sustained the objection, stating that the issue was “collateral.”

Id. There was no further discussion at trial or at the bench

regarding the crack pipe. During the defendant’s case, however,

the court admitted into evidence a record of Williams’ January

13, 2003 drug test, and it permitted a Pretrial Services

toxicologist to testify that Williams tested positive for cocaine

on that date.

B

Fonseca insists that the court improperly truncated his

counsel’s cross-examination by barring questions about

Williams’ possession of a crack pipe on January 11, 2003, a

month prior to the events at issue in this case. Fonseca does not

contend that Williams’ possession of the crack pipe was itself

directly relevant to the shooting. Indeed, he states that the “fact

that police officers recovered a crack pipe from Liz’a Williams

on January 11, 2003, would not ordinarily have been relevant at

appellant’s trial.” Appellant’s Br. at 21. Rather, Fonseca argues

that possession of the pipe was made relevant by Williams’

statements on cross-examination that she had not smoked crack

since 2002 and that “they found nothing on me” when she was

arrested in January 2003. Evidence that Williams possessed the

pipe was intended to rebut those statements and thus to

challenge Williams’ credibility. As the district court correctly

observed, however, the question of whether Williams possessed

a crack pipe in January 2003 was a “collateral” matter, 3/1/04
11

3

See United States v. Mitchell, 49 F.3d 769, 780 (D.C. Cir. 1995)

(stating that the subject of proposed cross-examination of a

government witness -- a challenge to the witness’ direct testimony that

he did not know that a particular airplane shipment contained cocaine

-- “was collateral to the issues at trial” because the defendant “was not

charged with th[at] cocaine shipment”); United States v. Innamorati,

996 F.2d 456, 479 (1st Cir. 1993) (stating that the “proposed

contradiction” of a government witness’ testimony that he did not

possess cocaine on a certain occasion was “collateral to the main

issues in this trial,” because the incident “did not in any way involve

any of the defendants or the charges against them”).

Tr. at 216, because that incident did not involve the charges

against Fonseca.3

That evidence concerns a collateral matter does not, of

course, necessarily render it inadmissible. To the contrary, such

evidence is admissible provided that it is “relevant” and not

otherwise prescribed by law or rule. See FED. R. EVID. 402.

Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be

without the evidence.” FED. R. EVID. 401. And evidence that

would contradict Williams’ trial testimony, even on a collateral

subject, would have such a tendency because it would

undermine her credibility as a witness regarding facts of

consequence. The technique that defense counsel wished to

employ, known as “impeachment by contradiction,” is a wellrecognized tool for exposing a witness’ lack of credibility. See

WEINSTEIN’S FEDERAL EVIDENCE §§ 607.06[1], 608.20[3][a]

(2d ed. 2005) (hereinafter WEINSTEIN’S). And as we have

previously noted, “[p]articularly where a party is seeking to

impeach a witness whose credibility could have an important

influence on the outcome of the trial, the district court should be

cautious in limiting cross-examination.” Harbor Ins. Co. v.

Schnabel Foundation Co., 946 F.2d 930, 935 (D.C. Cir. 1991).
12

Nonetheless, under Federal Rule of Evidence 403, evidence

-- including evidence employed to impeach by contradiction --

“may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury, or by considerations of undue

delay, waste of time, or needless presentation of cumulative

evidence.” FED. R. EVID. 403; cf. FED. R. EVID. 608 advisory

committee’s notes to 2003 amendments (noting that the

amendments “leave[] the admissibility of extrinsic evidence

offered for other grounds of impeachment[,] such as

contradiction, . . . to rules 402 and 403”); WEINSTEIN’S §§

607.06[2], 608.20[3][a]. Rule 403 “call[s] for balancing the

probative value of and need for the evidence against” the

problems identified in the rule. FED. R. EVID. 403 advisory

committee’s notes to 1972 proposed rules; see Abel, 469 U.S. at

54-55; WEINSTEIN’S §§ 607.06[2], 608.20[3][a]. Because

evidence regarding collateral matters is more likely to implicate

those problems, while being of lesser probative value, trial

courts are afforded considerable leeway in deciding whether to

admit such evidence. See United States v. Mitchell, 49 F.3d 769,

780 (D.C. Cir. 1995); United States v. Innamorati, 996 F.2d 456,

479 (1st Cir. 1993); see generally WEINSTEIN’S § 403.06[2].

There is no doubt that Williams was a key witness against

Fonseca. But the district court did not prevent Fonseca’s

counsel from challenging her credibility. As we have recounted

above, the court permitted defense counsel to ask Williams

whether she used drugs shortly before the shooting incident,

based solely on a representation of what “Kee-Kee” had told

counsel. The court then permitted counsel to expand this

inquiry into questions about Williams’ drug use a month earlier,

because Williams “opened the door” with the statement that she

had not used drugs since 2002. Finally, the court permitted

counsel to complete the impeachment by admitting the test

results and toxicologist’s testimony into evidence. See
13

4

See Mitchell, 49 F.3d at 779-80 (affirming the district court’s

decision to deny, as cumulative, the use of a witness’ videotaped

statements to impeach his testimony on a collateral matter because the

court had permitted the defendant to use other material to impeach the

witness regarding the same matter).

WEINSTEIN’S § 608.20[3][a]; FED. R. EVID. 608 advisory

committee’s notes to 2003 amendments. In short, the district

court provided Fonseca’s counsel ample opportunity to cast

doubt on Williams’ credibility.

This is not to say that a line of cross-examination regarding

Williams’ possession of a crack pipe would not also have been

relevant; it would have been, as it would have further

contradicted her claim not to have used drugs since 2002. But

in this respect it would only have been cumulative, and weakly

so at that. As the court noted, even if Williams had a crack pipe,

“the fact that she had it doesn’t necessarily mean that she was

using it.” 3/1/04 Tr. at 210. Although an inference to that effect

would certainly have been permissible, it was substantially

weaker than the direct evidence that the court permitted Fonseca

to introduce: test results showing cocaine in Williams’ system

in January 2003.4

Fonseca’s appellate counsel protests that cross-examination

regarding the crack pipe was relevant, not merely to contradict

Williams’ statement that she did not use drugs, but also to

contradict her claim that “they found nothing on me” at the time

of the January arrest. Although Fonseca’s trial counsel did not

make this more refined argument at the bench conference

(which took place before Williams made the “they found

nothing on me” remark), perhaps it could have been inferred

from the leading question she attempted to direct at Williams.

In any event, while establishing two contradictions may be more

persuasive than establishing one, when the contradictions relate
14

5

The case of United States v. Innamorati, 996 F.2d at 479-80,

presents a fact situation similar to that presented here. In Innamorati,

a cooperating government witness testified that he did not have

cocaine in his possession during an incident in which he was arrested

by local police -- an incident that occurred during the period of his

cooperation with the DEA. The defendants wanted to call the

arresting officers to testify that the witness did in fact possess cocaine

on that occasion. Such testimony would have shown that the witness

continued to use cocaine after he began cooperating with the DEA,

to collateral matters, the second still remains cumulative as to

the fundamental purpose of the exercise: sowing doubt

regarding the general credibility of the witness.

Moreover, completing the impeachment regarding the “they

found nothing on me” statement posed problems of confusion

and delay that were absent from counsel’s successful effort to

contradict Williams’ statement that she had not used drugs at all

since 2002. The latter testimony was unambiguous, and it was

readily, directly, and powerfully contradicted by the drug test

results. The former testimony, by contrast, was ambiguous: in

context, the “nothing” Williams referred to could have been

drugs rather than drug paraphernalia. Moreover, impeachment

would have required more than the police report: the report did

not explain how the officer knew the purse belonged to Williams

(it was found in an apartment in which she and others were

present), nor why he concluded that the pipe deserved the

appellation “crack” (the report did not state that drug residue had

been found). Although appellate counsel suggested that the

police officer who authored the report could have been called to

testify, there was no proffer that he was available or that counsel

knew what he would say. Going down this road, then, would

have led to both delay and a “mini-trial” on a collateral matter,

two of the problems that Rule 403 seeks to avoid. See United

States v. Baylor, 97 F.3d 542, 545 (D.C. Cir. 1996).5
15

rebutting his testimony to the contrary. It also would have directly

contradicted the witness’ specific assertion that he did not have

cocaine in his possession at the time of the arrest. Nonetheless, the

First Circuit affirmed the trial court’s exclusion of the evidence. As

Judge Boudin explained: “[T]he district court was justified in

preventing a major detour” into the incident because the evidence was

“collateral,” and the witness “admitted on cross-examination that he

had used cocaine long after he began cooperating,” thus rendering the

incident “at best cumulative evidence.” Id.

In support of his contention that the district court abused its

discretion by disallowing the proffered cross-examination,

Fonseca cites this court’s decision in United States v. Bell, 506

F.2d 207 (D.C. Cir. 1974). In Bell, a defendant charged with

narcotics offenses claimed during cross-examination that he had

never seen narcotics except on television. To contradict that

statement, the district court permitted a police officer to testify

that he had watched the defendant conduct a drug transaction a

few days before his arrest in the case at bar. We affirmed the

defendant’s conviction, holding that the district court had not

abused its discretion by permitting the testimony. See id. at 212-

15.

There is no inconsistency between our ruling in this case

and our ruling in Bell. In the latter, we held that it was

permissible for the district court to admit the requested

impeachment; we did not suggest that it would have been error

for the court to exclude it. Here, too, it would have been

permissible for the district court to allow defense counsel to

impeach the witness regarding the crack pipe. We hold only that

the court did not abuse its discretion by barring the

impeachment. The different outcomes reflect nothing more than

the nature of an “abuse of discretion” standard of review.

Where, as here, two different evidentiary rulings would be
16

6

This case is therefore unlike United States v. Whitmore, in which

we reversed a conviction because “the court deprived [the defendant]

of any realistic opportunity to challenge the credibility of the only

witness who testified that [he] committed the firearm offense.” 359

F.3d 609, 612 (D.C. Cir. 2004).

reasonable, the standard leaves the choice to the discretion of the

trial judge. 

In sum, we reject Fonseca’s contention that his counsel

“was hamstrung” by limitations on cross-examination that

prevented counsel from “challeng[ing] the honesty and

credibility that Ms. Williams so doggedly asserted.” Appellant’s

Br. at 24. To the contrary, the court permitted counsel to

forcefully challenge Williams’ credibility on cross-examination

and then to introduce extrinsic evidence to complete the

impeachment.6 Because it is reasonable to conclude that the

probative value of the additional cross-examination sought by

the defense was marginal and substantially outweighed by the

factors identified in Rule 403, the district court’s ruling did not

constitute an abuse of discretion.

IV

For the foregoing reasons, we affirm both the district

court’s denial of Fonseca’s Speedy Trial Act motion and its

evidentiary ruling regarding the scope of cross-examination. As

discussed in footnote 1 above, we accept both parties’

suggestion that we remand the record to the district court for the

limited purpose of “determin[ing] whether it would have

imposed a different sentence, materially more favorable to the

defendant, if sentencing had taken place under the post-Booker

sentencing regime.” United States v. Coles, 403 F.3d 764, 765

(D.C. Cir. 2005) (referencing United States v. Booker, 543 U.S.
17

220 (2005)); see United States v. Gomez, 431 F.3d 818, 822-23

(D.C. Cir. 2005).

So ordered.