United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 04-1202

___________

United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* District of South Dakota.

Bernard J. Drapeau, Jr., *

*

Appellant. *

___________

Submitted: October 19, 2004 

Filed: July 12, 2005

___________

Before COLLOTON, LAY, and GRUENDER, Circuit Judges.

___________

COLLOTON, Circuit Judge.

Bernard J. Drapeau, Jr., appeals his conviction for distributing a controlled

substance and possessing a controlled substance with the intent to distribute, and his

sentence of 324 months’ imprisonment and three years’ supervised release. We

affirm Drapeau’s conviction, but vacate his sentence and remand for resentencing in

light of United States v. Booker, 125 S. Ct. 738 (2005).
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I.

Drapeau was convicted based on information the Northern Plains Safe Trail

Drug Enforcement Task Force (“Task Force”) gathered from a controlled drug

transaction in Fort Thompson, South Dakota. The transaction was carried out on

April 20, 2002, by a confidential informant, Kristy Big Eagle, working with three

Task Force agents. Big Eagle made a recording of the transaction with a hidden

audio microphone provided by the agents. 

On November 13, 2002, Drapeau was indicted on two drug counts: distribution

of a controlled substance and possession of a controlled substance with intent to

distribute, in violation of 21 U.S.C. § 841(a)(1). Task Force agents arrested Drapeau

in Fort Thompson on November 15, and promptly advised him of his Miranda rights.

Drapeau at first stated that he did not want to talk to the agents. The agents then

transported Drapeau to Hughes County Jail in Pierre, about sixty miles away. During

the trip from Fort Thompson to Pierre, Drapeau admitted using and distributing

methamphetamine. The following day, November 16, Drapeau gave agents a more

detailed history of his involvement in drug trafficking, naming other persons from

whom he had purchased drugs and specifying the quantities purchased. He also

admitted selling methamphetamine to Big Eagle on six occasions.

At Drapeau’s trial on April 1 and 2, 2003, Big Eagle and three Task Force

agents gave testimony. Big Eagle testified that she purchased methamphetamine from

Drapeau during the controlled transaction, and the jury heard the audio tape of the

episode. One of the agents recounted Drapeau’s admission on November 16 that he

had sold drugs to Big Eagle on six occasions. The jury found Drapeau guilty on both

counts.

Drapeau was sentenced on January 12, 2004. Although the jury was required

to find only that Drapeau distributed and possessed with intent to distribute a
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“detectable amount” of drugs, the court determined that Drapeau was responsible for

1.721 kilograms of methamphetamine and that his base offense level was 34. (S. Tr.

34). The court applied a two-level adjustment for possession of a dangerous weapon,

USSG § 2D1.1(b), (id. at 35), which resulted in a total offense level of 36. After

finding that Drapeau’s criminal history category was VI, the court sentenced Drapeau

at the low end of the applicable sentence range of 324 to 405 months’ imprisonment.

A.

Drapeau advances four arguments why his conviction should be reversed.

First, he contends that the district court erred in denying his motion to suppress

statements he made to Task Force agents following his arrest. The district court

denied Drapeau’s motion to suppress his statements, adopting the report and

recommendation of the magistrate judge who conducted a hearing on the motion. We

review the district court’s findings of fact for clear error and the legal conclusions de

novo. United States v. Thorn, 375 F.3d 679, 683 (8th Cir. 2004). 

Drapeau argues that his statements were obtained in violation of his rights

under Miranda v. Arizona, 384 U.S. 436 (1966), because they were a product of the

arresting agents’ failure to honor scrupulously his “right to cut off questioning.” See

Michigan v. Mosley, 423 U.S. 96, 104 (1975); United States v. Thompson, 866 F.2d

268, 271 (8th Cir. 1989). In Mosley, the Supreme Court clarified that “the

admissibility of statements obtained after the person in custody has decided to remain

silent depends under Miranda on whether his ‘right to cut off questioning’ was

‘scrupulously honored.’” Mosley, 423 U.S. at 100 (quoting Miranda, 384 U.S. at

473-74). The Mosley analysis applies once a suspect in custody has “effectively

asserted his right to remain silent.” Thompson, 866 F.2d at 270. 

We believe this case is comparable to Thompson, where the suspect initially

told interrogating agents that he would “sleep on it” and would talk “tomorrow,” but
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later volunteered that he wanted to “wait a little while before I’m interviewed.”

Thompson then signed a waiver of rights form and answered questions. We held that

even assuming Thompson’s initial statement was a request to defer questioning until

“tomorrow,” his initial decision to remain silent was reversed by his later volunteered

statements. Therefore, Thompson had not “effectively asserted” his right to remain

silent, and Mosley did not apply.

In this case, the district court found that after agents advised Drapeau of his

Miranda rights, Drapeau responded by saying he “did not want to talk to agents at

that time.” (Tr. of Bench Dec. at 6). Shortly thereafter, however, Drapeau “initiated

a conversation with agents” during the car ride to Pierre. (Id.) The conversation

began as a general one, touching on hunting, fishing, children, and Fort Thompson.

Drapeau then “brought up the facts that his parents were ill,” and “that he did not

want to go to prison” and “expressed a willingness to cooperate and help law

enforcement out.” (Id. at 7.) The district court found that Drapeau’s testimony, to the

extent it conflicted with these findings, was not credible (id. at 8), and this credibility

finding is not clearly erroneous.

Drapeau’s unprompted offer of cooperation was “an effective reversal” of his

previously expressed desire not to talk to agents “at that time.” See Thompson, 866

F.2d at 271. His actions do not represent a “clear, consistent expression of a desire

to remain silent.” Id. at 272. We therefore hold that Drapeau did not effectively

assert his right to remain silent, and we need not address whether his right to remain

silent was “scrupulously honored” under Mosley. 

B.

Drapeau’s second argument is that the district court impermissibly allowed the

jury to hear testimony from Big Eagle that she previously purchased drugs from

Drapeau. Federal Rule of Evidence 404(b) makes inadmissible “[e]vidence of other
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crimes, wrongs, or acts . . . to prove the character of a person in order to show action

in conformity therewith,” but permits the introduction of such evidence to prove

motive, opportunity, intent, preparation, plan, knowledge, or identity, or to show

absence of mistake or accident. We review a district court’s admission of evidence

under Rule 404(b) for abuse of discretion. United States v. Crenshaw, 359 F.3d 977,

998 (8th Cir. 2004). 

Drapeau argues that Big Eagle’s testimony was inadmissible under Rule

404(b), because it was offered only to show Drapeau’s propensity to distribute drugs.

Our circuit requires that evidence meet four criteria for admissibility under Rule

404(b). United States v. Williams, 308 F.3d 833, 837 (8th Cir. 2002). First, the

evidence must be relevant to a material issue. Id. Second, it must be similar in kind

and “not overly remote in time to the charged crime.” Id. Third, the evidence must

be “supported by substantial evidence.” Id. Last, its probative value must outweigh

any unfair prejudice. Fed. R. Evid. 403; Williams, 308 F.3d at 837. 

Applying these criteria, we conclude that the district court did not abuse its

discretion in permitting Big Eagle’s testimony regarding Drapeau’s prior distribution

of drugs. Evidence of a defendant’s prior drug sales is probative of his intent to

distribute, United States v. Harris, 352 F.3d 362, 365 (8th Cir. 2003), and intent to

distribute was an element of one of the charged offenses. Prior drug distributions also

may, in appropriate circumstances, be relevant to proving a defendant’s motive,

United States v. Coleman, 284 F.3d 892, 894 (8th Cir. 2002), opportunity, cf. United

States v. Templeman, 965 F.2d 617, 619 (8th Cir. 1992), preparation, Coleman, 284

F.3d at 894, plan, United States v. Haynes, 881 F.2d 586, 590 (8th Cir. 1989),

knowledge, United States v. Adams, 401 F.3d 886, 894 (8th Cir. 2005), and absence

of mistake or accident, United States v. Shoffner, 71 F.3d 1429, 1432 (8th Cir. 1995).

The prior acts to which Big Eagle testified were similar in kind to those for which

Drapeau was charged and not overly remote in time: the prior acts were drug

distributions that had occurred within the previous three years. (T. Tr. 43, 55). Big
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Eagle’s testimony was well supported by other evidence; a Task Force agent testified

to Drapeau’s admission that he sold drugs to Big Eagle. The jury was instructed that

the evidence could be considered only for limited purposes under Rule 404(b), and

although Drapeau objected to the admission of the evidence, he did not complain

about the specific limiting instruction given to the jury. (Dkt. # 68, Instruction 12;

T. Tr. 112-13). We are thus not persuaded that any unfair prejudice outweighed the

probative value of the evidence. We discern no abuse of discretion.

C.

Drapeau argues next that the district court erred in excluding evidence of Big

Eagle’s kinship to law enforcement personnel. Drapeau maintains that he should

have been allowed to impeach Big Eagle’s credibility by introducing evidence that

her sister was an employee of the United States Attorney for the District of South

Dakota and married to one of the FBI agents working on the Task Force that arrested

Drapeau. The district court excluded this evidence, reasoning that it was wasteful of

time, confusing to the jury, and irrelevant under Federal Rules of Evidence 402 and

403.

We review the district court’s decision to exclude evidence for abuse of

discretion. United States v. Martin, 369 F.3d 1046, 1058 (8th Cir. 2004). The

Confrontation Clause of the Sixth Amendment guarantees a defendant’s right to

cross-examine witnesses and, through cross examination, to expose the motivation

of witnesses in testifying. Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986).

The right to cross-examine witnesses, however, is not without limitation, even where

the subject matter is bias. Id. at 679. Trial judges retain “wide latitude” to impose

“reasonable limits on such cross examination based on concerns about, among other

things, harassment, prejudice, confusion of the issues, the witness’ safety, or

interrogation that is repetitive or only marginally relevant.” Id. The ability of the

defendant to achieve through other means the effect that the excluded examination
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allegedly would have produced is a factor indicating that his right to confrontation

was not violated. See United States v. Warfield, 97 F.3d 1014, 1024 (8th Cir. 1996);

United States v. Crump, 934 F.2d 947, 952-53 (8th Cir. 1991). Limitations on a

defendant’s opportunity to impeach a witness for bias, moreover, are subject to

harmless error analysis. Van Arsdall, 475 U.S. at 684.

We conclude that the trial court’s decision to disallow Drapeau’s crossexamination of Big Eagle on her family connections to law enforcement, while

debatable, was not an abuse of discretion. The court reasoned that Big Eagle’s sister

was not in a decision-making position in the U.S. Attorney’s Office, and therefore

was powerless to influence any decision regarding Big Eagle’s prosecution. The

court also excluded evidence that Big Eagle’s sister was married to an FBI agent

involved in Drapeau’s arrest on the basis that the FBI lacked authority to decide

whether Big Eagle would have been prosecuted, and that evidence of an FBI

connection would thus be minimally probative of Big Eagle’s bias. The court further

believed that discussion of Big Eagle’s brother-in-law would inject into the trial

irrelevant issues about Drapeau’s desire to cooperate with the FBI agent rather than

police officers assigned to the Task Force. These are judgment calls, and we deem

them to be within the range permitted by an abuse of discretion standard of review.

Our conclusion is strengthened by the fact that limitation on Drapeau’s crossexamination of Big Eagle did not preclude Drapeau from challenging her credibility.

Drapeau was permitted to cross-examine Big Eagle regarding sources of potential

bias and impeachment, including that she was not prosecuted after a seizure of

methamphetamine from her car in 2001, that she hoped her cooperation would lead

the prosecutor’s office to withhold charges based on that seizure and her admissions

of drug activity, and that she continued to use drugs after beginning to cooperate with

law enforcement. She also was cross-examined regarding her knowledge of a reward

offered by the Crow Creek Sioux Tribe, of which her father was chairman, for

information leading to the arrest of drug dealers on the reservation. Drapeau’s
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opportunity to cross-examine Big Eagle distinguishes his case from Van Arsdall,

where the trial court did not permit the defendant any inquiry into the possibility of

bias, 475 U.S. at 679, and demonstrates that Drapeau was able to achieve much of his

desired impeachment through other means. See Warfield, 97 F.3d at 1024.

Even if the district court’s decision to exclude this evidence was an abuse of

discretion, we conclude that any error was harmless beyond a reasonable doubt. See

Van Arsdall, 475 U.S. at 684. Whether such an error is harmless depends on “a host

of factors,” including “the importance of the witness’ testimony in the prosecution's

case, whether the testimony was cumulative, the presence or absence of evidence

corroborating or contradicting the testimony of the witness on material points, and,

of course, the overall strength of the prosecution’s case.” Id. While Big Eagle was

an important witness, this case involved evidence of a controlled drug transaction,

which was recorded on audiotape, and an admission by the defendant that he sold

drugs to the informant. Drapeau made use of other avenues to impeach Big Eagle’s

testimony. The evidence of guilt was very strong – the district court characterized it

as “overwhelming,” (S. Tr. 33-34) – and any incremental impeachment value of the

proffered testimony was modest. We are confident that any error was harmless.

D.

Drapeau’s fourth argument is that there was insufficient evidence to support

his convictions. When evaluating a challenge to the sufficiency of evidence used by

a jury to convict a defendant, we view the evidence “in the light most favorable to the

verdict.” United States v. Leisure, 377 F.3d 910, 913 (8th Cir. 2004). We draw all

reasonable inferences that support the jury’s verdict, and we will overturn the verdict

“only if no reasonable jury could have found the defendant guilty beyond a

reasonable doubt.” Id.
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Drapeau maintains that the evidence in his case was insufficient because Big

Eagle, the prosecution’s “sole substantive witness,” was so thoroughly impeached

that no reasonable jury could have believed her testimony. Drapeau alleges that Big

Eagle’s testimony was incredible because she was cooperating with police in the hope

of avoiding prosecution for her own drug offenses. Big Eagle’s incentives to

cooperate, however, are not sufficient to establish that no reasonable jury could have

found her credible. The test for rejecting a jury’s credibility determinations is

“extraordinarily stringent.” Crenshaw, 359 F.3d at 988. “Testimony does not

become legally unsubstantial because the witness stands to gain by lying; the

defendant is entitled to cross-examine such witnesses to expose their motivations, and

it is up to the jury to decide whether the witness is telling the truth despite incentives

to lie.” Id.

At Drapeau’s trial, Big Eagle’s motivations were explored on crossexamination, and the jury was free to evaluate her credibility in light of information

regarding bias and drug use. Her testimony concerning the April 2002 transaction did

not “assert[] facts that are physically impossible,” Crenshaw, 359 F.3d at 988, and in

fact was corroborated by an audio recording and Drapeau’s confession in November

that he had sold drugs to Big Eagle on six prior occasions. We therefore hold that the

testimony presented to the jury in this case “falls well within the zone of evidentiary

sufficiency.” Id. at 991.

E.

After the case was submitted, Drapeau filed a pro se document captioned

“Supplement Motion to Amend,” in which he argues that the district court lacked

jurisdiction over this case, because the statutory jurisdiction provisions of 18 U.S.C.

§ 1152 do not comply with the “jurisdictional prerequisites of the 1868 Fort Laramie

Treaty.” Because this argument potentially implicates our subject matter jurisdiction,

we grant the motion and consider Drapeau’s argument.
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Title 18, United States Code, Section 1152 states as follows:

We have held that this statute and its exceptions “do not extend or restrict the

application of general federal criminal statutes to Indian reservations.” United States

v. Blue, 722 F.2d 383, 384 (8th Cir. 1983); see also Stone v. United States, 506 F.2d

561, 563 (8th Cir. 1974); United States v. White, 508 F.2d 453, 454-55 (8th Cir.

1974). Thus, as in Blue, the statute establishes no barrier to the prosecution of a tribal

member in federal court for a violation of the federal drug trafficking laws. 722 F.2d

at 385.

Drapeau argues that the “jurisdiction of the federal courts under 18 U.S.C.

§ 1152 and 1153 is valid only if, in a given case, that statutory jurisdiction complies

with the jurisdictional prerequisites of the 1868 Fort Laramie Treaty.” That treaty,

between the United States and different bands of the Sioux Nation of Indians,

included an article concerning the trial and punishment of tribal members who

commit offenses against the United States. See Treaty with the Sioux, Apr. 29, 1868,

U.S.-Sioux, art. I, 15 Stat. 635. Drapeau draws our attention to the following

provision:
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If bad men among the Indians shall commit a wrong or depredation upon

the persons or property of any one, white, black, or Indian, subject to the

authority of the United States, and at peace therewith, the Indians herein

named solemnly agree that they will, upon proof made to their agent and

notice by him, deliver up the wrong-doer to the United States, to be tried

and punished according to its laws. 

Id. Drapeau asserts that the issue in this case under the 1868 Treaty is whether

federal agents “gave proper and sufficient notice to [the] tribe compelling the tribe

under the provisions of the Treaty to ‘deliver up [Appellant] to the United States, to

be tried and punished according to its law . . . .,’ a prerequisite to the implementation

of the statutory jurisdictional provisions of sections 1152 and 1153.”

We are not persuaded that the 1868 Treaty deprives the federal courts of

jurisdiction over this criminal case. First, the district court’s jurisdiction was not

premised on 18 U.S.C. § 1152; as noted, that statute has no effect on the application

of general federal criminal statutes, such as the federal drug trafficking statutes. Blue,

722 F.2d at 384. Nor is § 1153 involved in this case; that statute concerns jurisdiction

to prosecute certain enumerated “major crimes” other than drug trafficking.

The plain language of the

treaty, moreover, does not create the sort of “notice” requirement that Drapeau

envisions. The treaty does not say that the United States must give notice to an

Indian tribe before the government may arrest and prosecute a tribal member who has

violated the federal drug trafficking laws. Rather, the treaty imposes an obligation

on the tribe to “deliver up the wrong-doer to the United States,” upon proof and

notice to the tribe. 

Finally, to the extent the treaty could be construed to impose a notice and

request obligation on the United States, we have twice approved the opinion in

United States v. Consolidated Wounded Knee Cases, 389 F. Supp. 235 (D. Neb.

1975), which held that Congress’ grant of citizenship to the Indians, 8 U.S.C.
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§ 1401(a)(2) (now § 1401(b), see Pub. L. No. 95-432, § 3, 92 Stat. 1046 (1978)),

makes them “subject to all restrictions to which any other American citizen is subject,

in any state,” and that the “legislative history and the language of the statute itself are

sufficient expression of a clear Congressional intent to abrogate or modify any treaty

provisions to the contrary.” Id. at 243 (internal quotation omitted). See United States

v. Kane, 537 F.2d 310, 311 (8th Cir. 1976) (per curiam); United States v. Dodge, 538

F.2d 770, 774-76 (8th Cir. 1976) (rejecting argument that treaty requires the United

States “to request ‘delivery’” from the Tribe of a suspect prosecuted pursuant to

§ 1153). Drapeau is subject to arrest for violation of the federal drug laws just as is

any other American citizen. For these reasons, we reject Drapeau’s pro se challenge

to the district court’s jurisdiction. 

III.

While this appeal was pending, Drapeau moved for leave to file a supplemental

brief on the applicability of Blakely v. Washington, 124 S. Ct. 2531 (2004). We

denied the motion in anticipation of the Supreme Court’s decision on the

constitutionality of the United States Sentencing Guidelines in United States v.

Booker, 125 S. Ct. 738 (2005). In Booker, the Court held that the mandatory

guidelines were subject to the Sixth Amendment’s requirement that “[a]ny fact (other

than a prior conviction) which is necessary to support a sentence exceeding the

maximum authorized by the facts established by a plea of guilty or a jury verdict must

be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Id. at

756. As a remedy, the Court declared the guidelines effectively advisory in all cases.

Id. at 764-65. 

At Drapeau’s sentencing, the district court applied the guidelines as mandatory.

The court found that Drapeau’s relevant conduct included 1.721 kilograms of drugs,

a quantity not found by the jury, and the court applied a two-level adjustment for

possession of a dangerous weapon over Drapeau’s objection to the finding of fact.
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Drapeau objected to his sentence based on Apprendi v. New Jersey, 530 U.S. 466

(2000), arguing that the court’s consideration of drug quantities beyond those found

by the jury and possession of a weapon “constitute[d] an Apprendi violation.” (S. Tr.

at 28). Drapeau thus preserved a Sixth Amendment objection, see United States v.

Pirani, 406 F.3d 543, 549 (8th Cir. 2005) (en banc), and the district court’s

application of the mandatory guidelines based on judicial findings concerning drug

quantity and possession of a dangerous weapon violated the Sixth Amendment as

applied in Booker. We therefore vacate Drapeau’s sentence and remand for

resentencing. See United States v. Adams, 401 F.3d 886, 900 (8th Cir. 2005).

Drapeau’s motion for leave to file a supplemental brief in light of Booker is denied

as moot.

LAY, Circuit Judge, concurring in the judgment of the court.

I write separately because I believe Drapeau’s Sixth Amendment rights were

violated when he was not permitted to expose Kristy Big Eagle’s bias in the form of

her familial relationships on cross-examination. However, I concur in the judgment

of the court because this violation was harmless error. 

The Sixth Amendment guarantees a criminal defendant the right to confront

and cross-examine the government’s witnesses. See Davis v. Alaska, 415 U.S. 308,

315-16 (1974). In attacking a witness’ credibility, the criminal defendant may

challenge the witness’ recollection of events or expose “possible biases, prejudices,

or ulterior motives of the witness as they may relate directly to issues or personalities

in the case at hand.” Id. at 316. “Proof of bias is almost always relevant because the

jury, as finder of fact and weigher of credibility, has historically been entitled to

assess all evidence which might bear on the accuracy and truth of a witness’

testimony.” United States v. Abel, 469 U.S. 45, 52 (1984) (emphasis added).

Accordingly, the criminal defendant’s Sixth Amendment right to confront and crossexamine his accuser includes the right to attack the credibility of a government
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witness by exposing to the jury facts that may establish bias. See Davis, 415 U.S. at

318. 

While the trial judge retains wide latitude to regulate cross-examination, all

limitations placed on a criminal defendant’s Sixth Amendment right to confront

government witnesses must pass constitutional muster. The Supreme Court defined

the controlling test for constitutional error as follows: 

[A] criminal defendant states a violation of the Confrontation Clause by

showing that he was prohibited from engaging in otherwise appropriate

cross-examination designed to show a prototypical form of bias on the

part of the witness, and thereby “to expose to the jury the facts from

which jurors . . . could appropriately draw inferences relating to the

reliability of the witness.”

Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986) (quoting Davis, 415 U.S. at 318).

A “key factor” in determining whether the limitation on cross-examination violated

the defendant’s right of confrontation is whether the defendant was allowed other

means to obtain the effect that the excluded examination would have achieved.

United States v. Warfield, 97 F.3d 1014, 1024 (8th Cir. 1996). “If a reasonable jury

might have received a significantly different impression of a witness’ credibility had

counsel been permitted to pursue the proposed line of cross-examination, defendant

has stated a Confrontation Clause violation.” United States v. Beckman, 222 F.3d

512, 524 (8th Cir. 2000).

During Drapeau’s cross-examination of the government’s key witness he was

prohibited from exposing that Big Eagle’s sister worked as a victim’s advocate in the

same U.S. Attorney’s Office that was prosecuting Drapeau, and that this same sister’s

husband (Big Eagle’s brother-in-law) was one of the FBI agents that arrested

Drapeau. The government resisted Drapeau’s offer of proof based on relevancy,
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arguing that Drapeau had already shown Big Eagle’s bias in the form of favorable

treatment. 

It’s not relevant to the matters in front of the Court to place in front of

this jury for trial who the witnesses’ [sic] family members are . . . . This

issue would only serve to confuse and mislead the jury into a collateral

issue that’s not in front of the Court or isn’t at trial. 

T. Tr. at 95. After concluding that neither Big Eagle’s sister nor brother-in-law had

any authority at the U.S. Attorney’s Office to influence Big Eagle’s prosecution, the

district court rejected Drapeau’s offer of proof. 

[I]t’s not relevant and the offer of proof is rejected. It’s also wasting

time under 403 and trying to confuse the jury. The issue is what

happened out there that particular day. The motives of Kristy Big Eagle,

to me, don’t mean anything anyway. Because, in fact, if that’s Mr.

Drapeau’s voice on the tape, that’s all there is to it. 

Id. at 96. 

It was an error of law and therefore an abuse of discretion for the district court

to conclude that the bias and motives of the government’s key witness did not mean

anything. To the contrary, “the exposure of a witness’ motivation in testifying is a

proper and important function of the constitutionally protected right of crossexamination.” Davis, 415 U.S. at 316-317. Contrary to the district court’s

conclusion, evidence of bias is not irrelevant, see id. at 317, and contrary to the

government’s position, “[p]otential bias is not a collateral issue.” Wealot v.

Armontrout, 948 F.2d 497, 500 (8th Cir. 1991); see also Johnson v. Brewer, 521 F.2d

556, 562 n.13 (8th Cir. 1975) (“In courtroom parlance, facts showing bias are not

collateral.”) (internal quotation marks and citation omitted). Big Eagle’s familial

relationships meant she was potentially biased and it was for the jury “as finder of
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fact and weigher of credibility” to consider evidence of this bias as it pondered Big

Eagle’s testimony. Abel, 469 U.S. at 52. Family bias was hardly a confusing concept

for the jury to understand. Furthermore, allowing perhaps a few hours to expose and

address this evidence would not have been a waste of time considering Drapeau faced

several years in prison, and was in fact sentenced to serve twenty-seven years.

Additionally, exposure of Big Eagle’s family relationship to an FBI agent who

arrested Drapeau would have bolstered Drapeau’s entrapment defense by showing

that Big Eagle had motives to participate in the sting operation beyond the favorable

treatment she received. It would have provided evidence that law enforcement had

unique access to Big Eagle and significant influence over her. In an entrapment

defense, the motivations of the government’s only cooperating witness can mean very

much indeed. It was up to the jury to accept or reject this evidence.

It is admittedly rare that we reverse the district court for a Confrontation Clause

violation. But when a criminal defendant is “prohibited from engaging in otherwise

appropriate cross-examination designed to show a prototypical form of bias” to

impeach the credibility of a critical government witness, constitutional error results.

Van Arsdall, 475 U.S. at 680; see also Beckman, 222 F.3d at 525 (finding violation

of Confrontation Clause because limitation on cross-examination prevented defendant

from establishing witness’ rebuffed sexual advances towards defendant’s wife gave

witness a motivation to lie and established a distinct form of bias in addition to bias

in the form of favorable treatment). The defendant’s opportunity to establish other

forms of bias does not divest him of his constitutional right to expose relevant and

non-cumulative witness bias. See id.

Our post-Van Arsdall cases affirming the district court’s limitation of crossexamination, which are many, generally do so on the basis that the excluded

information was cumulative evidence of the same form of bias or that it was irrelevant

or collateral. This stands in contrast to the evidence Drapeau sought to expose about
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Big Eagle’s family relationships. The issue of Big Eagle’s family bias was relevant

to Drapeau’s entrapment defense and it was the only evidence of this particular form

of bias. Had the district court merely limited the depth of cross-examination on this

point after allowing Drapeau to establish the basic facts of these relationships, I

would have no problem deferring to the district court’s discretion in the matter. But

a total exclusion of all evidence of this family bias leads me to conclude that “a

reasonable jury might have received a significantly different impression” of Big

Eagle’s credibility and her motivation to testify had they known her sister worked in

the U.S. Attorney’s Office prosecuting Drapeau, and that her brother-in-law was one

of the officers who had arrested Drapeau. Beckman, 222 F.3d at 524. If I were a

juror, I would want to know about this.

While I take issue with the majority’s holding that there was no Sixth

Amendment violation, I agree the violation was harmless error. See Van Arsdall, 475

U.S. at 684 (holding Confrontation Clause violations subject to harmless error

analysis). Even without Big Eagle’s testimony, there was overwhelming evidence to

support Drapeau’s conviction. Drapeau made incriminating statements regarding

selling drugs to Big Eagle, there was an audio recording of the controlled drug buy,

and Big Eagle delivered the purchased methamphetamine to the agents who watched

her enter and leave Drapeau’s house. Accordingly, I concur that the error was

harmless in this case.

______________________________