No. 95-2852

United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Western District of Missouri. Darrell B. Caldwell, * * Appellant. *

Submitted: February 14, 1996 Filed: July 8, 1996
Before WOLLMAN, HEANEY, and BRIGHT, Circuit Judges.

HEANEY, Circuit Judge.

On Jun e 16, 1994, Darrell Caldwell was charged in a four-coun t indictment with consp iracy to manufacture and distribute marijuana (Count I), manufacturing mar ijuana (Count II), and possessing marijuana with the intent to distribute (Count III); the indictment also included one count of criminal forfeiture (Count IV). On September 6, 1994, Caldwell entered into a plea agreement with the government. In exchange for pleading guilt y to Count III and agreeing to pay $5,000 cash in lieu of forfeiting the rea l propertynamed in Count IV, the government dismissed the remaining tw o counts against Caldwell and promised to substantially reduce the charges against his wife, who was also named in the indictment.

On Sept ember 26, 1994, Caldwell moved the court to withdraw hi s guilt y plea. While that motion was pending before the district court , Caldwell remitted $5,000 to the United States Marshal

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Services in satisfact ion of the forfeiture portion of the plea agreement. The government accepted the payment. On December 9, 1994, the distric t court granted Caldwell's motion to withdraw his plea. The government trie d Caldwell on Counts I, II, and III but did not charge criminal forfeiture. On February 16, 1995, a jury convicted Caldwell on all counts. On July 6, 1995, the court sente nced him to 360 months imprisonment, a $10,000 fine, and five years of supervised release.

Caldwell appeals his conviction and sentence. He alleges multipl e errors, including: (1 ) the court improperly limited his cross-examination of government witnesses, (2) evidence should have been suppressed due to the insufficiency of a search warrant, (3) his convictions violate th e prohibition against double jeopardy because they follow a prior forfeiture , and (4 ) the court miscalculated his sentence under the sentencin g guidelines. We affirm Caldwell's conviction and remand the case to th e district court for resentencing.

I.

Caldwell contends that the district court improperly limited hi s
cross- examination of two government witnesses. We review the distric t court' s decision to limit cross-examination for an abuse of discretion

. United States v. Balfany , 965 F.2d 575, 583 (8th Cir. 1992). If the recor d establishes a violati on of the rights secured by the Confrontation Clause of the Sixth Amendment, we must determine whether the error was harmless in the context of the trial as a whole. Delawar e v. Van Arsdall , 475 U.S. 673, 678-79 (1986).
A. Cross-Examination of Trooper Loring

Tro oper Loring, an investigator with the Missouri State Highwa y Patrol, was one of the officers involved in the execution

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of a searc h warrant at Caldwell's home and surrounding property. Th e search warrant came at the culmination of an investigation launched i n response to the disco very of large numbers of marijuana plants growing on property adjoining Caldwell's. As part of his duties, Loring filed a report on the execution of the search warrant.

In his trial testimony, Loring offered several significant detail s about the search warrant execution that he had n ot included in his report. At least twice during cross-examination, Caldwell's lawyer attempted t o question Loring about his failure to note those details in his report. Th e court sustained the government's objections to t he questions accepting the gove rnment's position that none of the statements in the report wer e inconsistent with Loring's trial testimony, that he had been under no duty to recor d every detail in the report, and that the line of inquiry wa s argumentative.

We find no abuse of discretion in the trial court's rulings

. Caldwell's cross-examination of Loring was long and thorough. The court reasonably determinedthat there was no objective basis for the defense's implicit argument that the damaging details, if true, would have been in Lori ng's report. Having so determined, it was equally reasonable t o curtail the cross-examination with respect to the omission of those detail s from the report.

B. Cross-Examination of Co-Defendant Jones

GaryJones, Caldwell's first cousin, was indicted with Caldwell i n Count I. Jones made a deal with the government whereby he pleaded guilty to a re duced misdemeanor charge in exchange for his testimony agains t Caldwell.

On cross- examination, Jones acknowledged that he had used marijuana daily over a period of approximately fifteen years. He

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also admitted his inv olvement in the conspiracy to manufacture over 1,000 mariju ana plants. Caldwell's lawyer attempted to establish that Jone s would have faced a mi nimum ten-year sentence had he not been permitted to plead to the lesser offense in exchange for his testimony. The court , however, disallowed a ny such inquiry beyond establishing that the penalty cap for a misdemeanor offense is one year and that a felony charge could call for "time in the penitentiary." The court's rationale for limiting the ev idence was that Jones' potential sentence before becoming a
coo perating witness was a collateral matter and could not be determine d with precision.

The distr ict court's limitation constitutes an abuse of discretion. Because the bias of a witness is always relevant, the penalty to whic h Jones would have been subject had he not testifi ed against Caldwell cannot be characterized as collateral. Moreover, the m inimum sentence that Jones originally faced was clear: the conspiracy charge against Jones carried
a statutory minimum sentence of ten-years imprisonment regardless of the applic ation of any sentencing guideline provision. See 21 U.S.C

. § 841(b)(1)(A)(vii) (1993). A district court is given wide latitude t o limit cross-examinati on to avoid witness harassment, prejudice, confusion of the issues, or unnecessary repetition. Van Arsdall , 475 U.S. at 679. No such concerns, however, warranted the court's ruling in this case. The evidence Caldwell sought on cross-examination was relevant and accurate. Therefore, we hold that the district court's exclusion of the evidenc e violated Caldwell's right to confront the prosecution witness.

We must next decide "whether, assuming that the damaging potentia l of the cross-examination were fully realized, [we can] nonetheless say tha t the error was harmles s beyond a reasonable doubt." Van Arsdall , 475 U.S. at 684. We consider multiple factors, including the importance of Jones' testimony to the overall case against Caldwell; whether it was cumulative, the

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presence of corrobora ting or contradicting evidence, the extent of crossexamin ation otherwise permitted, and the overall strength of th e government's case. Id. Although the jury did n ot learn the extent of the break Jones received for cooperating, Jones test ified that his sole reason for testifying was to obtain the reduced misdeme anor charge. In addition,
even i f we entirely disregard Jones' testimony, the government's cas e against Caldwell--which included the defendant's own inculpator y statements--was strong. After reviewing the record in light of all th e foregoing factors, we conclude that the district court's error was harmles s beyond a reasonable doubt.

II.

Caldwell' s next claim of error is that the warrant authorizing the search of his property lacked probable cause. Prior to trial, Caldwel l moved to suppress the evidence obtained during the search. Afte r conduc ting a suppression hearing, a magistrate judge upheld the searc h warrant and found that the affidavit establishedprobable cause to believe that marijuana and other drug paraphernalia would be found on Caldwell's property. The district court adopted the magistrate's finding. On appeal , Caldwell renews his a ssertions that the sheriff who led the investigation and who was the sole affiant for the search warrant application mad e numerous misrepresentations and omissions of fact.
Looking at the totality of circumsta nces, see Illinois v. Gates , 462 U.S. 213, 238 (1983), we affirm the district cou rt. The facts reported in the search warrant affidavit supported the issua nce of the search warrant. Mo reover, we find no fundamental inconsistencies between those fact s alle ged and the sheriff's testimony at the suppression hearing. Th e district court properly denied Caldwell's motion to suppress evidence.

### At oral argument, the government explained that it ha d 1 

### believed that the forfeiture c ould exist in some form of suspended animation until a jury conviction on the substantive counts revived the underlying basis for forfeiture. This concept, though novel, utterlylacks legal support. For his part, Caldwell not onl y acqu iesced to the forfeiture settlement, he insisted on it s val idity. In his response to the probation office's preliminar y presentence investigation report Caldwell asserted:
The report alleges that Count Four of th e Indictment remains pending. The record wil l clea rly show that the judge specifically did no t set aside Count Four. The $5,000 fine has bee n paid to the United States. Count Four has bee n disposed of and is, therefore, moot. (Letter Objections to Presentence Investigation Report from Brown dated 4/25/95 at 1.) The government's mistake, however, is in no way lessened by the fact that Caldwell joined in it. 6 III.

Caldw ell also challenges his conviction under the Double Jeopard y Clause of the Fifth Amendment. The issue arises in an unusual factua l context. In Caldwell's original agreement with the government, he pleaded guilty to the Count III possession charge and the Count IV crimina l forfeitur e charge. As part of the agreement, the parties reached a forfeiture settlement whereby Caldwell would pay the government $5,000 and he and his wife would retain the real property named in the forfeitur e count. While his subsequent motion to withdraw the plea was pending befor e the district court, Caldwell nonetheless remitted the $5,000. The court later permitted Caldwell to withdraw his plea and the matter was set for trial o n Counts I, II, and III. The government did not pursue crimina l forfeiture at trial. Apparently, all parties assumed that the forfeiture settlement remained effective after Caldwell withdrew his plea. 1

In his mo tion for a new trial following sentencing, Caldwell raised his double jeopardy claim for the first time in two sentences: "[T]h e resolution of Count Four of the Indictment is

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double jeopardy to any or all of the three counts in the Indictment

. Defendant should be discharged as to such counts." (District Ct. R. a t 310.) The court denied the motion. With respect to the double jeopardy claim, t he court concluded that the claim lacked merit because th e govern ment had yet to enter a final order of forfeiture in the case

. (District Ct. R. at 333.) Caldwell appeals that decision.

We agree with the district court's conclusion but reject it s reasoning. Double jeopardy does not even potent ially come into play until a defendant has first been put in jeopardy. Crist v. Bretz , 437 U.S. 28, 32-33 (1978). Despite the complicated course of negotiations, plea, and withdrawal, the resol ution of this issue is quite simple. The forfeiture settl ement was part of the plea agreement. When Caldwell withdrew hi s ple a, the entire agreement--including the forfeiture settlement--becam e void. The slate, therefore, had been wiped clean.
Thus, at the time of trial, no agreement existed between Caldwe ll and the government. The mere fact that Caldwell remitted $5,000 and th e government accepted t he funds does not create an implicit plea agreement. The government was entitled to try Caldwell on all counts in the indictmen t including those it had dismissed under the plea agreement. See Ehl v

. Estelle , 656 F.2d 166, 172 (5th Cir. 1981), cert. denied , 455 U.S. 95 3 (19 82); United States v. Wells , 430 F.2d 225, 229 (9th Cir. 1970)

. Moreover, the government was no longer bound by its promise in the ple a agreement not to file any additional criminal charges arising out of the facts in the case. Caldwell was tried and convicted only once. His doubl e jeopardy claim is misplaced.

Caldwell raises several other claims for reversal. Each lacks merit and none warrants discussion in this opinion.

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Caldwel l also appeals his sentence. On July 6, 1995, the distric t court sentenced him t o concurrent sentences of 360 months on Count I, 360 months on Count II, and 240 months on Count III. Caldwell challenges both the court's offense level calculation and the imposition of a two-poin t sentencing enhancement for obstruction of justice.

A. Offense Level Calculation

The district court determined that Caldwell's offense level was 3 8 based on the quantity of marijuana involved in t he case. On two separate
occ asions, authorities seized a total of 157 pounds (71.2 kilograms) o f processed marijuana and 6,037 marijuana plants. At the time of Caldwell's sentencing, the guidelines provided that one marijuana plant was equivalen t to one kilogram of processed marijuana. U.S.S.G. § 2D1.1(c) (1994). Thus , the court found that the total quantity of marij uana seized was equivalent to 6,108.2 kilograms. In calculating the total amount of drugs, the court credited co-conspirator Jones' testimony that he had purchased marijuana from Caldwell over a period of fifteen years, but limited its calculation to th e five-year period that could have been charged in the indictmen t under the statute of limitations. In other words, using the 6,108.2 figur e as an annual base, the court multiplied that amo unt by five for a total of 30,541 kilograms. The corresponding offense level of 38 was the highest possib le under the applicable guideline. U.S.S.G. § 2D1.1(c)(1) (1994 ) (Drug Quantity Table).

We agr ee with Caldwell that the district court's extrapolatio n amounted to clear error. See United States v. Bieri , 21 F.3d 811, 817 (8t h Cir.) (applying clear ly erroneous standard of review to district court's determi nation of drug quantity), cert. denied , 115 S. Ct. 208 (1994)

. There is simply no basis in the record for the

### Section 1B1.10 provides in relevant part: 2


### Whe re a defendant is serving a term o f imprisonment, and the guidelin e range applicable to th at defendant has subsequently been lowered as a result of an amendment to the Guidelines Manua l listed in subsection (c) below, a reduction in the defendant's term of imprisonment is authorized under 18 U.S.C. § 3582(c)(2).
U.S.S.G. § 1B1.10(a), p.s. Subsection (c) specifically list s Amendment 516. The policy statement further instructs: 9 court's conclusion that because a certain quantity of drugs was seized fro m Caldwell in 1993, the same quantity of drugs could be attributed to him fo r each of the preceding four years.

At trial Jones testified that he had purchased marijuana fro m Caldwell over a fifteen-year period. When pressed on the frequency an d quantity of the purchases, Jones responded that approximately once a month he purchased anywhere from one ounce to three po unds. (Trial Tr. at 397.) Even if the court used the largest figure in Jones' testimony fo r sentencing purposes, that would still amount to only three pounds, twelve times a year, for five years, or 180 pounds (81.65 kilograms).

When the court calculates the amount of drugs involved in this case at resente ncing, it may include the amount of marijuana seized by th e government (674.9 kilograms), the amount of marijuana Jones testified to purchasing from Caldwell (anywhere from a minimum of 1.7 kilograms to a maximumof 81.65 kilograms), and any other amounts linked to Caldwell by something more than pure speculation. In addit ion, the government concedes that Caldwell's case must b e remanded to the distr ict court for resentencing in light of Amendment 516 to the sentencing gui delines. Amendment 516, effective November 1, 1995, reduces the equivalency figure for a marijuana p lant by tenfold: When the actual weight of the usable marijuana is unknown, each plant is now treate d
as th e equivalent of 100 grams or marijuana, rather than one kilogram

. U.S.S.G. § 2D1.1(c) (1995). The guidelines specifically permit retroactiv e application of Amendment 516. U.S.S.G. § 1B1.10, p.s. (1995). 2

### In de termining whether, and to what extent a

reduction in sentence is warranted for a defendant eligible for consideration under 18 U.S.C. § 3582(c)(2), the court should consider the sentence that it would have imposed hadthe amendment(s) to the gu idelines listed in subsection (c) been i n effect at the time the defendant was sentenced.
U.S.S.G. § 1B1.10(b), p.s. We have noted that although th e guidelines permit retroactive application of certain amendments , resentencing is within the discretion of the district courts

. United States v. Coohey , 11 F.3d 97, 101 (8th Cir. 1993). 10 Thus, under the amend ed guideline provision, the weight of the plants the government seized from Caldwell would equal 603.7 kilograms. When combine d with the 71.2 kilogra ms of processed marijuana seized, the total would be 674.9 kilograms. Tha t amount alone--without the improper extrapolation-- would reduce the offense level to 28.

B. Obstruction of Justice

Pursuant to guideline section 3C1.1, the court added two levels t o Caldwell's base offense for obstruction of justice because it found that Caldwell attempted to intimidate a witness. We review the court's finding of facts under the clearly erroneous standard. United States v. Adipietro , 983 F.2d 1468, 1479 (8th Cir. 1993). We find no error in the court' s application of the enhancement and reject Caldwe ll's argument as specious.

CONCLUSION
In sum, we affirm Caldwell's convict ion. We vacate his sentence and remand to the district court for resentencing in accordance with thi s opinion.

### 11 A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.