FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 05-30076

v.  D.C. No.

PATRICIA ANN LARSON, CR-04-00110-SEH

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

No. 05-30077 Plaintiff-Appellee,

D.C. No.

v.  CR-04-00110-SEH

LEON NELS LAVERDURE,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Montana

Sam E. Haddon, District Judge, Presiding

Argued and Submitted

January 13, 2006—Portland, Oregon

Filed August 28, 2006

Before: Diarmuid F. O’Scannlain, Susan P. Graber, and

Carlos T. Bea, Circuit Judges.

Opinion by Judge O’Scannlain

10263
COUNSEL

David F. Ness, Assistant Federal Defender, Federal Defenders

of Montana, Great Falls, Montana, argued the cause for

defendant-appellant Larson; Anthony R. Gallagher, Federal

Defender, District of Montana, was on the briefs. James B.

Obie, Helena, Montana, argued the cause for defendantappellant Laverdure and filed a brief. 

Joseph E. Thaggard, Assistant United States Attorney, Great

Falls, Montana, argued the cause for the plaintiff-appellee;

William W. Mercer, United States Attorney, was on the brief.

OPINION

O’SCANNLAIN, Circuit Judge: 

In these methamphetamine conspiracy conviction appeals,

we must consider whether defense counsel was improperly

prevented from cross-examining coconspirators about the

prison sentences they would have received but for their cooperation with the government, and whether other trial rulings

were proper. 

UNITED STATES v. LARSON 10267
I

A

Beginning in April 2003, police officers in Great Falls,

Montana, investigated the possibility that Patricia Ann Larson

and Leon Nels Laverdure were involved in a conspiracy to

purchase and distribute methamphetamine. 

The police first orchestrated a controlled purchase of

methamphetamine from Larson by a paid informant, one Connie Riggs, who had met Larson “through some sort of party

or some kind of drug interaction” and had known her for “a

couple years.” Riggs drove Larson to a house where Larson

purchased approximately one sixteenth of an ounce of the

drug (1.80 grams), which she then sold to Riggs. 

The police later arranged for two controlled purchases of

drugs from Laverdure by Jason Gilstrap, another confidential

informant. One purchase involved 1.46 grams of methamphetamine, and the other involved 1.79 grams. The police also

arranged for a confidential informant to purchase about 3.5

grams of methamphetamine from Joy Lynn Poitra and her

cousin, Rick Lee Lamere. Lamere would later acknowledge

receiving some of his methamphetamine from Laverdure. A

second controlled purchase followed shortly after, at which

time Poitra sold approximately 21 grams of methamphetamine to the informant. 

B

On July 23, 2004, a federal grand jury filed indictments

against Larson, Laverdure, Lamere, and Poitra, charging each

with a single count: conspiracy to possess and distribute controlled substances, “including but not limited to 500 grams or

more of a substance containing a detectable amount of

10268 UNITED STATES v. LARSON
methamphetamine,” in violation of 21 U.S.C. §§ 841(a)(1)

and 846, between January 1, 1999, and February 29, 2004.1

Prior to trial, Poitra pleaded guilty under a superseding

indictment charging her with conspiring to possess a controlled substance with intent to distribute at least 50 grams of

a substance containing a detectable amount of methamphetamine. Conviction for the originally charged offense would

have subjected Poitra to a term of imprisonment ranging from

five to 40 years. 

With respect to Lamere, the government had notified him

of its intention to seek an enhanced sentence under 21 U.S.C.

§ 851 and, accordingly, Lamere allegedly would have faced a

mandatory minimum penalty of life imprisonment. Lamere

avoided the possibility of such enhancement by pleading

guilty to the conspiracy charge and admitting to having distributed five kilograms of a substance containing methamphetamine. 

Both Poitra and Lamere agreed to testify against Larson

and Laverdure in exchange for the reduced charges. 

C

The jury trial took place in Great Falls, Montana, before

District Judge Sam E. Haddon, on October 26 and 27, 2004.

Before any testimony was heard, Larson’s attorney requested

that the defendants be allowed to “sit at counsel table with us

so that we can consult with them.” The court denied the

request. 

1The indictment further alleged “the drug quantity attributable to Defendant Larson to be five kilograms to fifteen kilograms of a substance containing a detectable amount of methamphetamine and two to 3.5 kilograms

of cocaine”; and “the drug quantity attributable to Defendant Laverdure to

be five to fifteen kilograms of a substance containing a detectable amount

of methamphetamine.” 

UNITED STATES v. LARSON 10269
1

On the second day of trial proceedings, the prosecution

elicited testimony from Poitra and Lamere. On the witness

stand, both Poitra and Lamere admitted to cooperating with

the government with the expectation of receiving a reduced

sentence. 

On direct examination, Poitra testified that she had

obtained methamphetamine from Laverdure and that, on one

or two occasions, she had overheard phone calls during which

Laverdure would ask for “Patty” (i.e., Larson). Poitra said that

Laverdure would then travel to Larson’s house to obtain the

drugs. As to the controlled purchase which resulted in her

arrest, Poitra testified that she had obtained the methamphetamine from Larson through Laverdure. 

On cross-examination, counsel for Larson attempted to

inquire about the likely prison term Poitra was facing absent

her cooperation with the government. Judge Haddon sustained

an objection by the prosecution and instructed the jury that the

term of imprisonment was a decision for the court alone.

Counsel was permitted to ask Poitra about the possibility of

imprisonment, but not about her understanding of the particular term she was likely to receive. Counsel was also able to

cross-examine Poitra as to inconsistencies among the statements given to police in the course of three prior interviews.

Poitra admitted to extensive drug use and to drug dealing.

Finally, defense counsel cross-examined Poitra as to whether

the plea agreement included a promise of a reduced sentence

contingent upon her testimony at trial; Poitra acknowledged

her understanding that the only person who could move to

reduce her sentence was the Assistant United States Attorney.

On direct examination of Lamere, the prosecution elicited

testimony that Lamere had obtained methamphetamine from

Larson through Laverdure. Lamere knew this to have been the

case because, he said, Laverdure had told him it came from

10270 UNITED STATES v. LARSON
Larson. Lamere also testified that one “Fatso” Komeotis

claimed to have obtained six ounces of methamphetamine

from Larson, which he had then passed on to Lamere. The

district court overruled two hearsay objections by defense

counsel. 

On cross-examination, defense counsel, as it did when

examining Poitra, elicited testimony from Lamere that he was

testifying pursuant to a plea bargain under which he expected

the government to move for a reduced sentence. 

2

The jury rendered guilty verdicts against Larson and Laverdure.2

 On February 14, 2005, the district court sentenced Larson to a 97-month term of imprisonment to be followed by a

four-year term of supervised release. On the same day, the

court sentenced Laverdure to a 188-month term of imprisonment to be followed by a four-year term of supervised release.

II

Larson and Laverdure’s first contention on appeal is that

the district court violated their Confrontation Clause rights

when it prevented counsel from cross-examining the government’s cooperating witnesses as to the minimum terms of

imprisonment they would likely have faced if not for their

agreement to testify against the appellants.3

2The jury also rendered “special verdicts” finding the “amount of drugs

attributable to . . . Larson, to be 309 grams of a substance containing a

detectable amount of methamphetamine,” and the “amount of drugs attributable to . . . Laverdure to be 364 grams of a substance containing a

detectable amount of methamphetamine.” 

3With respect to our standard of review, there is a certain lack of clarity

in our prior Sixth Amendment jurisprudence. In some cases we have

reviewed de novo whether limitations on cross-examination are so severe

as to violate the Confrontation Clause. See United States v. Adamson, 291

UNITED STATES v. LARSON 10271
More specifically, Larson and Laverdure argue that the

government’s case against them “was based almost entirely

on the testimony of Poitra and LaMere [sic] . . . . Their credibility was, therefore, critical to the case.” Citing Delaware v.

Van Arsdall, 475 U.S. 673 (1986), they further contend that

but for the trial court’s limitation on cross-examination, the

jury likely would have received a “significantly different

impression” of the witness’s credibility. 

The government’s position is that the extent of crossexamination permitted was sufficient to pass constitutional

muster and, if not, any error was harmless beyond reasonable

doubt. 

A

[1] The right to confrontation enshrined in the Sixth

Amendment includes the right to cross-examine adverse witnesses. Davis v. Alaska, 415 U.S. 308, 315-17 (1974). This

right, in turn, ensures a defendant’s opportunity to demonstrate any possible bias in the adverse witness as well as his

F.3d 606, 612 (9th Cir. 2002); United States v. Ortega, 203 F.3d 675, 682

(9th Cir. 2000); United States v. Beardslee, 197 F.3d 378, 383 (9th Cir.

1999). Yet in another line of cases, we have applied an abuse of discretion

standard. See Wood v. Alaska, 957 F.2d 1544, 1550 (9th Cir. 1992);

United States v. Lo, 231 F.3d 471, 482 (9th Cir. 2000); United States v.

Feldman, 788 F.2d 544, 554 (9th Cir. 1986). This is not the first occasion

on which we have noted the discrepancy. See United States v. RodriguezRodriguez, 393 F.3d 849, 856 (9th Cir. 2005). 

However, as was the case in Rodriguez-Rodriguez, we need not render

a definitive holding as to the proper standard of review of this sort of Confrontation Clause claim if reversal is unwarranted under any standard. See

id. Moreover, the substantive Confrontation Clause standard, as we discuss further below, itself prescribes deference to the trial court’s decisions.

See, e.g., United States v. Jenkins, 884 F.2d 433, 435 (9th Cir. 1989). 

We also note that we may affirm the decision below on any ground supported by the record, even if it differs from the reasoning of the district

court. Padilla v. Terhune, 309 F.3d 614, 618 (9th Cir. 2002). 

10272 UNITED STATES v. LARSON
motivation for testifying. Id. at 316-17 (“The partiality of a

witness is . . . ‘always relevant as discrediting the witness and

affecting the weight of his testimony.’ ” (quoting 3A J. Wigmore, Evidence § 940, at 775 (Chadbourne rev. 1970))). 

[2] A Confrontation Clause violation occurs where the

defendant is prevented from investigating “a prototypical

form of bias” if the jury “might reasonably have found [that

it] furnished the witness a motive for favoring the prosecution

in his testimony.” Van Arsdall, 475 U.S. at 679-80. Accordingly, the cross-examination need not be certain to affect the

jury’s assessment of the testimony. Fowler v. Sacramento

County Sheriff’s Dep’t, 421 F.3d 1027, 1036 (9th Cir. 2005).

Additionally, limitations on cross-examination “cannot preclude a defendant from . . . [making] ‘a record from which to

argue why [the witness] might have been biased.’ ” United

States v. Schoneberg, 396 F.3d 1036, 1042 (9th Cir. 2005)

(quoting Davis, 415 U.S. at 318 (first alteration added)). 

But the right to cross-examine a witness for possible bias

or incredibility is not absolute or unlimited. In Van Arsdall,

the Supreme Court insisted that a trial court retains “wide latitude” to exclude cross-examination that is, among other

things, harassing, prejudicial, confusing of the issues, threatening to the witness’s safety, repetitive, or only marginally

relevant. 475 U.S. at 679. “ ‘[T]he Confrontation Clause guarantees an opportunity for effective cross-examination, not

cross-examination that is effective in whatever way, and to

whatever extent, the defense might wish.’ ” Id. (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam)). 

Moreover, in prior cases we have explained that, although

the trial court cannot foreclose all inquiry into an otherwise

proper area of cross-examination, it may impose limitations

on cross-examination that are “reasonable” and not “arbitrary

or disproportionate to the purposes they are designed to

serve.” See, e.g., Fowler, 421 F.3d at 1037 (quoting Van ArsUNITED STATES v. LARSON 10273
dall, 475 U.S. at 679; and Michigan v. Lucas, 500 U.S. 145,

151 (1991) (internal quotation marks omitted)). 

More specifically, the trial court does not err “ ‘as long as

the jury receives sufficient information to appraise the biases

and motivations of the witness.’ ” United States v. Shabani,

48 F.3d 401, 403 (9th Cir. 1995) (quoting United States v.

Feldman, 788 F.2d 544, 554 (9th Cir. 1986)). On this point,

the First Circuit’s formulation is apt: a trial court need allow

only a “minimal constitutional threshold level of inquiry,” and

it does not err provided that “there is sufficient evidence

before the jury (absent the excluded evidence) from which the

jury could make a discriminating appraisal of the possible

biases and motivations of the witnesses.” United States v.

Luciano-Mosquera, 63 F.3d 1142, 1153 (1st Cir. 1995) (internal quotation marks omitted); accord Wood, 957 F.2d at 1550

(holding that the jury need have only “ ‘sufficient information’ upon which to assess the credibility of witnesses”). 

B

[3] Accordingly, in this Circuit, we have distilled from the

foregoing cases three criteria under which we will evaluate a

claim that the trial court has violated the Confrontation Clause

by excluding evidence: (1) whether the excluded evidence

was relevant; (2) whether there were other legitimate interests

outweighing the defendant’s interest in presenting the evidence; and (3) whether the exclusion of evidence left the jury

with sufficient information to assess the credibility of the witness. See Beardslee, 197 F.3d at 383 (citing United States v.

James, 139 F.3d 709, 713 (9th Cir. 1998)). We apply these

criteria to the present case.

1

[4] The parties do not specifically contest the potential relevance of the excluded cross-examination. All else being

equal, we consider it more probable that a cooperating witness

10274 UNITED STATES v. LARSON
otherwise facing a lengthy prison sentence will give testimony

biased in the government’s favor. Cf. James, 139 F.3d at 713

(citing Fed. R. Evid. 401). 

2

As for the second criterion, “we begin by considering the

probative value of the evidence.” Id. As noted above, the

defense sought to elicit testimony that, but for their cooperation, Poitra and Lamere were facing mandatory minimum sentences of five years and life, respectively. 

[5] The five-year mandatory minimum faced by Poitra was

of slight probative value. For an offense involving the sale of

narcotics, a five-year sentence is not particularly lengthy; the

jury likely assumed that Poitra’s sentencing exposure was at

least that extensive without being specifically told so.

Lamere’s exposure to a statutory life sentence has greater probative value. We note, however, that the potential for biased

or false testimony depends not only on the likely sentence the

witness would otherwise face, but also—and more directly—

on the reduction in sentencing he or she expects to receive. A

cooperating witness’s motivation to give biased or false testimony is therefore not necessarily captured by the length of the

potential sentence—the witness knows that his sentencing

remains subject to the court’s discretion notwithstanding the

government’s motion. Lamere’s sentencing had not yet taken

place at the time he testified against Larson and Laverdure. 

[6] We must also consider whether the excluded crossexamination may have been prejudicial. See United States v.

Easter, 66 F.3d 1018, 1022 (9th Cir. 1995). Larson and

Laverdure sought to elicit testimony on cross-examination of

Poitra and Lamere that “would [have] place[d] before the jury

information from which it could infer the potential sentences

the appellants faced and that could sway the jury.” United

States v. Arocho, 305 F.3d 627, 636 (7th Cir. 2002), superseded by statute on other grounds as stated in United States

UNITED STATES v. LARSON 10275
v. Rodriguez-Cardenas, 362 F.3d 958, 960 (7th Cir. 2004);

accord United States v. Mulinelli-Navas, 111 F.3d 983, 988

(1st Cir. 1997); Luciano-Mosquera, 63 F.3d at 1153. Where,

as here, the defendants and cooperating witnesses were

charged as members of a single conspiracy, we consider that

danger especially troublesome. Moreover, we note that the

severity of the potential prejudice is likely commensurate with

the length of the prison term the cooperating witness may

have received. The inference (stemming from Lamere’s

potential sentence) that Larson and Laverdure could be sentenced to life in prison may have strongly biased the jury

against conviction.

3

Lastly, we consider whether the jury was left with sufficient other information to assess the credibility of Poitra and

Lamere. 

[7] In this case, it is clear that the district court did not foreclose “all inquiry” into the motivation for the cooperating

witnesses’ testimony. Van Arsdall, 475 U.S. at 679. On crossexamination of Poitra, Larson’s attorney inquired about the

plea agreement Poitra had reached with the government. He

asked whether Poitra “was going to prison because of” the

admissions in the plea agreement, to which Poitra responded

affirmatively. Counsel then asked, “In fact, you’re going to

prison for a minimum of five years; right?” Judge Haddon

then interjected, “Well, just a minute counsel. You know that

the sentencing of defendants in this court is the responsibility

of the court. And I will make the decision about the appropriate sentence at the appropriate time. That’s not a proper subject of cross-examination.” Counsel again attempted to ask

Poitra about her “understanding of the penalty [she was] facing.” Judge Haddon sustained the government’s second objection. 

However, Larson’s trial counsel persisted, next asking,

“Your understanding is, short of your cooperation, you’re

10276 UNITED STATES v. LARSON
likely to go to prison; correct?” Poitra answered affirmatively,

and the following exchange ensued:

Q. And you have a new baby, right? 

A. He’s two years old. 

Q. And obviously, you don’t want to go to prison

and leave your baby; do you? 

A. No. 

Q. And you also know that there’s only one person

in this courtroom that can even make a motion

to try to reduce your sentence; correct? 

A. Yes. 

Q. And that’s Mr. Thaggard [the Assistant U.S.

Attorney]; correct? 

A. Yes. 

. . . .

Q. And so in a very real sense, your sentence is

directly affected by your testimony here? 

A. Yes. 

Defense counsel was able to question Lamere along similar

lines. Lamere testified that by his testimony against Larson

and Laverdure he hoped for the government’s motion to

reduce his prison sentence. He further acknowledged that the

government prosecutor was the only person who could make

the motion for the reduced sentence.4

4The jury heard this testimony after the court’s admonition to defense

counsel that sentencing “is the responsibility of the court.” We are satisfied that the jury understood that the Assistant U.S. Attorney’s motion was

required to reduce Poitra and Lamere’s sentences. 

UNITED STATES v. LARSON 10277
[8] In United States v. Dadanian, 818 F.2d 1443 (9th Cir.

1987), modified on other grounds, 856 F.2d 1391 (9th Cir.

1988), we rejected a claim that the district court violated the

Sixth Amendment when it “fail[ed] to allow cross examination of [a cooperating witness] about his maximum jail time

exposure.” 818 F.2d at 1449. The court explained that Van

Arsdall was not violated because the witness “was subject to

extensive cross examination about the terms of his agreement

with the government,” including questioning about an agreement to dismiss nine mail fraud counts and illegal gambling

and racketeering charges in exchange for his testimony. Id.

This constituted “more than an adequate opportunity to

expose [the witness’s] potential bias and motive in testifying,”

and thus the prison time the witness faced was “at best marginally relevant.” Id. 

The cross-examination permitted in this case was quite similar to that which we deemed sufficient in Dadanian. Larson

and Laverdue, however, would have us distinguish that case.

They contend that in Dadanian the defense sought to inquire

into the penalties that a defendant “might” have faced (the

statutory maximum sentence), whereas in this case counsel

attempted to cross-examine Poitra and Lamere as to the sentences they “would” otherwise face (the statutory minimum

sentences). They think the latter is more nearly relevant to a

showing of potential bias. 

[9] However, we do not read Dadanian as suggesting that

our inquiry should turn on the length or certainty of the sentence about which defense counsel sought to inquire. Rather,

in Dadanian we considered whether the trial court foreclosed

“all inquiry” into a prototypical form of bias or merely

imposed limitations that are reasonable and not arbitrary or

disproportionate to the purposes served. Where the court

allows extensive examination as to the existence of an agreement by which a witness has traded adverse testimony for the

government’s motion for a reduced sentence, the defense has

provided the jury with sufficient information upon which to

10278 UNITED STATES v. LARSON
judge the witness’s motivation for testifying and his or her

corresponding credibility. The length of the sentence the

cooperating witness would otherwise face—even where certain because of an applicable statutory minimum—is marginally relevant in light of testimony about the existence of an

agreement generally. Such evidence may be excluded at least

where, as here, the jury may have improperly inferred that the

defendants faced sentences of similar duration. 

Our holding is consistent with the opinions of several other

circuits, which considered and rejected similar Sixth Amendment challenges. See Arocho, 305 F.3d at 636 (holding that

where the jury heard about the witnesses’ plea agreements,

that multiple counts were dismissed in exchange for testimony, and that the witnesses expected to receive a substantial

benefit, the trial court did not violate the Confrontation Clause

by excluding cross-examination as to the “specific sentences

and the sentencing guideline ranges they faced both before

and after their cooperation with the government”); MulinelliNavas, 111 F.3d at 987-88 (holding that the district court did

not violate the Confrontation Clause where it excluded crossexamination as to the possible sentence faced by the cooperating witness because the defense was able to elicit testimony

as to the government’s agreement to drop charges against him

and that the U.S. Attorney would make a recommendation for

reduction in his sentence; district court had reasoned that

“matters of sentencing were in the sound discretion of the district court judge”); Luciano-Mosquera, 63 F.3d at 1153 (holding that the district court did not violate the Confrontation

Clause when it cut off cross-examination into the 35-year

penalty a government witness would have faced on counts

that were dropped in exchange for his testimony; the defendant had “sufficient opportunity to expose potential biases”

and “[a]ny probative value of information about the precise

number of years [the witness] would have faced . . . was

slight”); United States v. Nelson, 39 F.3d 705, 707-09 (7th

Cir. 1994) (holding that the court reasonably limited crossexamination where it “prevented defense counsel from asking

UNITED STATES v. LARSON 10279
[the witnesses] what penalties they might have faced without

plea-bargains” where the jury heard about the plea bargains

and about “what the witnesses were to receive from the bargains”; “once this core function is satisfied by allowing crossexamination to expose a motive to lie, it is of peripheral concern to the Sixth Amendment how much opportunity defense

counsel gets to hammer that point home to the jury”); Brown

v. Powell, 975 F.2d 1, 3-6 (1st Cir. 1992) (holding that the

trial court did not violate the defendant’s Sixth Amendment

rights when it excluded testimony that a cooperating witness

had avoided the possibility of a life sentence without parole

in exchange for his testimony; the jury had sufficient other

information before it to apprise possible biases and motivations).5

In sum, Poitra and Lamere were “subject to extensive cross

examination, which established a variety of potential flaws in

[their] testimony.” James, 139 F.3d at 714; accord Easter, 66

F.3d at 1022. We are satisfied, in light of the district court’s

“wide latitude” on such matters, that the jury received adequate information with which to appraise the biases and motivations of the cooperating coconspirators. 

C

[10] Having considered the foregoing factors, we reject

Larson and Laverdure’s claim that the district court’s limita5Decisions of this circuit in which the court found a Confrontation

Clause violation are distinguishable from the present case. For example,

Schoneberg involved circumstances in which defense counsel “was not

permitted to cross examine [the witness] about whether his testimony was

affected by the government’s promise to move for a sentence reduction if

his testimony satisfied the government.” 396 F.3d at 1040-41. Here, Larson and Laverdure clearly had the opportunity “to make clear to the jury

what benefit or detriment will flow [from Poitra and Lamere’s testimony],

and what will trigger the benefit or detriment, to show why the witness

might testify falsely in order to gain the benefit or avoid the detriment.”

Id. at 1042. 

10280 UNITED STATES v. LARSON
tion on cross-examination of adverse witnesses violated their

Confrontation Clause rights. Poitra’s five-year minimum was

of slight probative value. With respect to Lamere’s potential

life sentence in particular, there was a significant danger of

undue prejudice from counsel’s intended line of crossexamination. And as to each in equal measure, the jury otherwise received sufficient information from which to evaluate

the cooperating witness’s biases and motivations.

III

Next, Larson and Laverdure contend that the district court

erred when it admitted, over counsel’s objection, Lamere’s

testimony that Laverdure and “Fatso” Komeotis told him that

Larson was the source of their methamphetamine. Larson and

Laverdure frame this objection as violating the Federal Rules

of Evidence, as well as the Sixth Amendment.6

A

Larson and Laverdure first contend that Lamere’s testimony was hearsay. They argue that, although the

coconspirator-statement rule may encompass statements that

aid in the initiation of the conspiracy or those that “help plan

future strategy,” see FED. R. EVID. 801(d)(2)(E), the rule does

not permit the introduction of the statements at issue, which

they consider merely “chit chat, bragging, or descriptive comments,” and, in any event, that there was inadequate foundation here to support admission under Rule 801(d)(2)(E). 

6We review de novo the district court’s application of the hearsay rule.

United States v. Alvarez, 358 F.3d 1194, 1214 (9th Cir. 2004). However,

we apply a clearly erroneous standard in reviewing whether challenged

statements were made in the course and furtherance of a conspiracy.

United States v. Pena-Espinoza, 47 F.3d 356, 360-61 (9th Cir. 1995);

United States v. Shryock, 342 F.3d 948, 981 (9th Cir. 2003). 

We review de novo whether the admission of an out-of-course statement violated the Confrontation Clause. United States v. Bowman, 215

F.3d 951, 960 (9th Cir. 2000). 

UNITED STATES v. LARSON 10281
The government’s position is that Laverdure and Komeotis’s statements were made during the course and in furtherance of a conspiracy. 

1

[11] A coconspirator’s statement may be admitted against

a defendant where the prosecution shows by preponderance of

the evidence that (1) the conspiracy existed when the statement was made; (2) the defendant had knowledge of, and participated in, the conspiracy; and (3) the statement was made

“in furtherance of” the conspiracy. Bowman, 215 F.3d at 960-

61 (citing Bourjaily v. United States, 483 U.S. 171, 175 (1987)).7

In general, it is true that “[m]ere conversations between

coconspirators, or merely narrative declarations among them,

are not made ‘in furtherance’ of a conspiracy. Rather, to be

‘in furtherance’ the statements must further the common

objectives of the conspiracy or set in motion transactions that

are an integral part of the conspiracy.” United States v.

arbrough, 852 F.2d 1522, 1535 (9th Cir. 1988) (citations

omitted). 

[12] In prior cases we have considered a coconspirator’s

identification of the defendant as the source of illegal drugs

as having been made “in furtherance of” the conspiracy. See

Williams, 989 F.2d at 1068-69; United States v. Paris, 827

F.2d 395, 400 (9th Cir. 1987). The broad context or circumstances in which the statement was made can serve as foundation adequate to establish the purpose of such identification.

Moreover, the foundation need be sufficient only to infer the

statement’s purpose; it need not be laid bare on the pages of

the trial transcript. See United States v. Layton, 720 F.2d 548,

557 (9th Cir. 1983) (“The context of [the coconspirator’s]

statements supports an inference that they were made in furtherance of the conspiracy.”). 

7Komeotis need not have been indicted to be considered a coconspirator

for the purposes of Rule 801(d)(2)(E). United States v. Williams, 989 F.2d

1061, 1067 (9th Cir. 1993). 

10282 UNITED STATES v. LARSON
In Yarbrough, we considered the admission of testimony

that the declarant-coconspirator had conveyed details of past

criminal acts committed by members of an alleged conspiracy. See 852 F.2d at 1535 (involving, for example, reports of

certain murders committed by conspiracy members). With no

specific discussion as to “foundation,” the court treated the

statements as clearly having been made “with the intent to

keep [the] coconspirators abreast of what the [group] had

done, was doing, or would do in the future.” Id. at 1536;

accord United States v. Eaglin, 571 F.2d 1069, 1083 (9th Cir.

1977). The coconspirator was relaying facts as to what steps

had been taken in furtherance of the conspiracy’s ultimate

goal. 

Similarly, in Williams, we considered out-of-court statements identifying the defendant as the source of drugs and

held that the statements could be admitted under Rule

801(d)(2)(E). 989 F.2d at 1067-69. Larson and Laverdure

read Williams as involving statements that “were made to ‘set

in motion a transaction that is an integral part of the conspiracy.’ ” We disagree. In Williams we held simply that the statements concerning drug source—as opposed to other

statements which involved a coconspirator’s request to buy

drugs—were “clearly designed to keep [the coconspirator]

informed as to the conspiracy’s activities.” Id. at 1068; see

also id. at 1069 (holding that four other statements also

“served to keep [a coconspirator] informed as to the group’s

drug supply”). 

We also find helpful our holding in Pena-Espinoza. In that

case, a special agent testified that, while attempting to make

a controlled purchase of narcotics, he asked a coconspirator

“where the stuff came from, referring to the cocaine that [he]

bought yesterday.” 47 F.3d at 361. The court admitted testimony as to the coconspirator’s answer that the defendant was

the source of the drugs. The testimony as to the coconspirator’s statement was not connected to any explicit foundational

evidence as to why the declarant made the statement. See id.

UNITED STATES v. LARSON 10283
Instead, we relied on “other evidence in the record,” such as

“a drug courier’s several visits to [the defendant’s] house just

prior to making deliveries, and the defendant’s presence during one of [the special agent’s] drug purchases.” Id. Thus, the

defendant’s status as a coconspirator was sufficient to establish the statements’ relevance to him and the manner in which

it furthered the conspiracy’s purpose.

2

[13] In light of the foregoing cases, and given the context

in which Laverdure and Komeotis made the statements at

issue in this case, we easily infer several ways in which they

furthered the objectives of the conspiracy. Most clearly, the

statements by Laverdure and Komeotis kept Lamere abreast

of the activities of the conspiracy. As in Yarbrough, the statements informed Lamere of certain steps taken in the process

of reaching the ultimate goal of distribution of the methamphetamine. As in Williams, the statements served to keep

Lamere informed as to the group’s drug supply. And as in

Pena-Espinoza, Lamere’s status as a member of the conspiracy and the specific factual context in which the statements

were made—during purchases of illegal narcotics—provide

adequate foundation to infer the purpose of those statements.8

As the government suggests, the statements likely provided

assurance to Lamere “that he would receive methamphetamine from a source of supply known to him.” Given the danger of the endeavor, Lamere may also have been interested to

know precisely with whom he was dealing.9

8As the prosecution pointed out at trial, “We’re looking at a business

here. And basically [Komeotis] and Laverdure were identifying their supplier. And I think that that is highly relevant and it does pertain to the conspiracy and tends to advance it.” 

9To be sure, a supplier’s informing a potential buyer as to the ultimate

source of the illegal narcotics offered for the latter’s purchase is not a

“mere conversation between conspirators” nor simply a “narrative declaration.” United States v. Fielding, 645 F.2d 719, 726 (9th Cir. 1981) (per

10284 UNITED STATES v. LARSON
[14] For all of the foregoing reasons, the district court did

not commit clear error in admitting under Rule 801(d)(2)(E)

the out-of-court statements of Komeotis and Laverdure. As

such, the evidence was validly admitted against both Larson

and Laverdure. See United States v. Eubanks, 591 F.2d 513,

519 (9th Cir. 1979) (per curiam). 

B

We next consider Larson and Laverdure’s claim that admission of the out-of-court statements violated the Confrontation

Clause.10

[15] The Supreme Court’s recent decision in Crawford v.

Washington, 541 U.S. 36 (2004), directs us to consider

whether the admitted out-of-court statements were “testimonial.” As other circuits have done, we recognize that “Crawford

at least suggests that the determinative factor in determining

whether a declarant bears testimony is the declarant’s awareness or expectation that his or her statements may later be

used at a trial.”

11 United States v. Saget, 377 F.3d 223, 228

curiam). It is not a “casual admission of culpability to someone he had

individually decided to trust.” United States v. Moore, 522 F.2d 1068,

1077 (9th Cir. 1975) (involving a statement by a coconspirator to a person

unrelated to the conspiracy). And this is not a case in which the coconspirator had “limited responsibilities” in the enterprise such that the

declarant’s statement was “immaterial to him.” United States v. Bibbero,

749 F.2d 581, 584 (9th Cir. 1984). 

10The government argues that the court could affirm the admission of

Laverdure’s out-of-court statement against Laverdure as an admission by

a party opponent. But if the statement were not the statement by a coconspirator, most likely Bruton v. United States, 391 U.S. 123 (1968), and its

progeny bar its use in the joint-trial setting. 

11See also White v. Illinois, 502 U.S. 346, 365 (1992) (Thomas, J., concurring in part) (“[T]he Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial

materials, such as affidavits, depositions, prior testimony, or confessions.”), quoted in Crawford, 541 U.S. at 51-52. 

UNITED STATES v. LARSON 10285
(2d Cir. 2004); accord United States v. Hinton, 423 F.3d 355,

359 (3d Cir. 2005). The Crawford Court itself assumed that

statements made in furtherance of a conspiracy “by their

nature [are] not testimonial.” 541 U.S. at 56; accord United

States v. Sanchez-Berrios, 424 F.3d 65, 75 (1st Cir. 2005);

United States v. Lee, 374 F.3d 637, 644 (8th Cir. 2004). 

[16] Given our holding above, the out-of-court statements

were clearly not testimonial in nature. It is unclear whether

we are still required to apply the test articulated in Ohio v.

Roberts, 448 U.S. 56 (1980), to determine the admissibility of

such non-testimonial statements. See United States v. Weiland, 420 F.3d 1062, 1076 (9th Cir. 2005) (stating that there

is “uncertainty” as to whether the Ohio v. Roberts test survives Crawford), cert. denied, 126 S. Ct. 1911 (2006); see

also Jensen v. Pliler, 439 F.3d 1086, 1090 (9th Cir. 2006)

(refusing to decide the issue), petition for cert. filed, ___

U.S.L.W. ___ (U.S. July 18, 2006) (No. 06-5449). 

In Roberts, the Supreme Court held that the admission of

an out-of-court declaration in a criminal trial requires adequate “indicia of reliability.” 448 U.S. at 66. The Court cited

two circumstances under which such indicia are established:

(1) where admitted under a “firmly rooted hearsay exception”;

or (2) where accompanied by “particularized guarantees of

trustworthiness.” Id. Later, in Bourjaily v. United States, the

Court held that “the co-conspirator exception to the hearsay

rule is firmly enough rooted in our jurisprudence that . . . a

court need not independently inquire into the reliability of

such statements.” 483 U.S. at 183-84. Thus, the Bourjaily

Court rendered the Sixth Amendment requirements for admitting coconspirator statements “identical” to those of Rule

801(d)(2)(E). Id. at 182-84. 

[17] The admission of the out-of-court statements was

proper under Rule 801(d)(2)(E). As such, even if Roberts survives Crawford, we hold that the Constitution was not violated. See United States v. Hagege, 437 F.3d 943, 958 (9th

10286 UNITED STATES v. LARSON
Cir. 2006) (applying similar analysis), petition for cert. filed,

74 U.S.L.W. 3687 (U.S. May 23, 2006) (No. 05-1534).12

IV

Larson and Laverdure also contend that the district court

violated their constitutional rights to a fair trial and due process when it denied a request that the court seat them at the

counsel table, instead seating them directly behind their attorneys. They argue that the arrangement “adversely affect[ed]

counsel’s ability to communicate with his client during the

trial,” and that it “served to undermine the presumption of

innocence” by injecting unnecessary and undue prejudice in

the trial proceedings.13

A

[18] The criminal process presumes that the defendant is

innocent until proved guilty. Deck v. Missouri, 544 U.S. 622,

630 (2005); see also Estelle v. Williams, 425 U.S. 501, 503

(1976) (explaining that the presumption is a basic component

of the right to a fair trial). Accordingly, the Constitution prohibits any courtroom arrangement or procedure that “undermines the presumption of innocence and the related fairness

of the factfinding process.” Deck, 544 U.S. at 630 (citing Williams, 425 U.S. at 503). The presumption is so undermined

12Admission under the coconspirator exception similarly alleviates any

difficulty under Bruton and its progeny. See 391 U.S. at 128 & n.3; accord

Sanchez-Berrios, 424 F.3d at 76; Eaglin, 571 F.2d at 1078. 

13At oral argument, counsel for Laverdure argued that the constitutional

error stemmed from the combined effect of the seating arrangement and

the proximity of federal marshals. The complaint about the marshals’ presence, however, was raised for the first time at oral argument. It was not

argued in the briefs, nor was there even any mention of it in the trial

record. We consider it waived. See Arpin v. Santa Clara Valley Transp.

Agency, 261 F.3d 912, 919 (9th Cir. 2001) (“[I]ssues which are not specifically and distinctly argued and raised in a party’s opening brief are

waived.”). 

UNITED STATES v. LARSON 10287
when the practice creates “an unacceptable risk . . . of impermissible factors coming into play.” Williams, 425 U.S. at 505.

1

The courts have invalidated various courtroom arrangements and procedures as violating the right to a fair trial. See

Deck, 544 U.S. at 632-35 (invalidating the routine practice of

compelling defendants during the punishment phase of capital

cases to wear visible shackles); Williams, 425 U.S. at 503-05

(invalidating the trial court’s requirement that a defendant

appear in prison garb); Musladin v. LaMarque, 427 F.3d 653,

656-60 (9th Cir. 2005) (reversing a murder conviction

because spectators wore buttons depicting the alleged victim’s

photograph), cert. granted sub nom. Carey v. Musladin, 126

S. Ct. 1769 (2006); United States v. Olvera, 30 F.3d 1195,

1198 (9th Cir. 1994) (reversing a conviction because the

defendant was compelled to speak the words of the bank robber in front of the jury); Norris v. Risley, 918 F.2d 828, 831-

34 (9th Cir. 1990) (reversing a rape conviction because spectators wore anti-rape buttons). 

In contrast, the Supreme Court has upheld an arrangement

by which four uniformed security personnel sat in the first

row of the courtroom’s spectator section. See Holbrook v.

Flynn, 475 U.S. 560 (1986). The Court explained that the

deployment of security personnel is not “the sort of inherently

prejudicial practice that, like shackling, should be permitted

only where justified by an essential state interest specific to

each trial.” Id. at 568-69. Similarly, in Morgan v. Aispuro,

946 F.2d 1462 (9th Cir. 1991), we held that the use of a courtroom with special security features “did not ‘brand [the defendant] in [the jury’s] eyes with an unmistakable mark of

guilt.’ ” Id. at 1465 (quoting Flynn, 475 U.S. at 571). And in

Williams v. Woodford, 384 F.3d 567 (9th Cir. 2004), we held

that the “noticeable deployment” of four deputy marshals—

“one near Williams, one near the jury, and one on each side

of the gate from the spectator section”—was not inherently

10288 UNITED STATES v. LARSON
prejudicial, and we declined to remand to the district court for

an evidentiary hearing on the issue. Id. at 587-89. 

The foregoing cases demonstrate that our core concern in

this area is to avoid any procedure that undermines the presumption of innocence by conveying a message to the jury

that the defendant is guilty. See Flynn, 475 U.S. at 567

(explaining that guilt is not to be determined on “grounds of

official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial” (internal quotation

marks omitted)); Williams, 425 U.S. at 503 (“[C]ourts must

carefully guard against dilution of the principle that guilt is to

be established by probative evidence and beyond a reasonable

doubt.”); Rhoden v. Rowland, 172 F.3d 633, 636 (9th Cir.

1999) (barring practices “creating an inherent danger that the

jury may form the impression that the defendant is dangerous

or untrustworthy . . . so as not to mark him as an obviously

bad man or to suggest that the fact of his guilt is a foregone

conclusion” (internal quotation marks omitted)); Olvera, 30

F.3d at 1197 (explaining that a trial practice cannot “isolate[ ]

the defendant from all others in a courtroom [nor] inevitably

associate[ ] him or her with the charged conduct” (emphasis

added)); Norris, 918 F.2d at 831 (holding that the invalidated

practice “constituted a continuing reminder that various spectators believed [the defendant’s] guilt before it was proven”).

2

While shackling and prison garb subtly suggest that the

defendant should be imprisoned, and while buttons worn by

spectators directly advocate for that result, the courtroom procedure employed in this case is different. As with the uniformed security guards in Flynn, the jury may not have even

thought it remarkable that the two defendants were seated

immediately behind their attorneys. The jury most likely

“drew no impermissible inference” from the arrangement.

Musladin, 427 F.3d at 657 (citing Flynn, 475 U.S. at 569). 

UNITED STATES v. LARSON 10289
[19] Given that the trial involved two defendants and the

participation of two attorneys, the jury may have just as easily

inferred that the arrangement simply ameliorated overcrowding at the counsel table, or that it facilitated a more orderly

and decorous courtroom. We are confident that the seating

arrangement was simply “taken for granted,” and it surely carried a “wider range of inferences that a juror might reasonably

draw.” Flynn, 475 U.S. at 569. In short, the arrangement in no

way conveyed a message of Larson and Laverdure’s guilt and

it therefore cannot be considered either “inherently prejudicial” or prejudicial in this particular case. See id.

We note the agreement of the First Circuit, which, in

United States v. Balsam, 203 F.3d 72 (1st Cir. 2000), concluded that a similar seating arrangement did not cause prejudice by suggesting the defendant’s guilt. The court approved

a district court’s decision, based on “the small courtroom and

the attendant security concerns,” to seat the defendants in the

front row of the spectator section. Id. at 81-82. The First Circuit court noted that courtroom seating arrangements depend

on “such a variety of factors” that it would afford substantial

deference to the trial court’s decision. It concluded that “[t]he

front row in the spectator section is not an inherently prejudicial location for seating criminal defendants.” Id.14

[20] Given that the seating arrangement in this case was not

“inherently prejudicial,” the district court need not have “justified [the arrangement] by an essential state interest specific

to [Larson and Laverdure’s] trial.” Flynn, 475 U.S. at 568-69;

Morgan, 946 F.2d at 1465 (holding that where a procedure is

not inherently prejudicial “the state does not have to justify its

decision” to employ that procedure). But see United States v.

Sorrentino, 726 F.2d 876, 887 (1st Cir. 1984) (holding that

14The factual difference between Balsam and this case is not significant.

Though Balsam involved five defendants, deference is nonetheless due the

trial court’s opting for alternative seating arrangements, based on similar

concerns for courtroom security, for the two defendants at issue here. 

10290 UNITED STATES v. LARSON
the district court must articulate reasons of security or practicality).15

B

Larson and Laverdure also suggest that the seating arrangement violated another constitutional value: a defendant’s right

15Even if such a requirement were present, we think that the district

court complied with it. We observe that in Deck, the Supreme Court took

pains to assure the public that it did not “underestimate . . . the need to

give trial courts latitude in making individualized security determinations.” 544 U.S. at 632. The trial transcript indicates that an “individualized security determination” is precisely what took place in this case: 

[LARSON’S COUNSEL]: I just wanted to ask permission if

our clients could sit at counsel table with us so that we can consult with them. 

THE COURT: Well, that is a matter that I’m going to leave

to the discretion of the marshals for security purposes, and that

will be their decision. And I have given them authorization to

have these people placed where they think necessary for those

reasons . . . . You need only turn around to talk to your client. 

[LARSON’S COUNSEL]: They told me I had to ask you.

They told me it was your order. 

THE COURT: Well, if they have no objection, I don’t. That’s

up to — 

DEPUTY MARSHAL: I would prefer they stayed where

they’re at. 

THE COURT: Marshal indicated he prefers the defendants

stay where they are presently seated. That’s where they will stay.

The judge relied on the informed, professional judgment of his deputy

marshal and thereby clearly indicated that the only relevant concern

involved in selecting this particular seating arrangement was courtroom

security. Cf. Norris v. Risley, 878 F.2d 1178, 1182 (9th Cir. 1989)

(explaining that a procedure is acceptable if it will be viewed only as a

sign of a normal concern for safety and order). This constitutes a permissible exercise of discretion, notwithstanding Larson and Laverdure’s

attempt to malign the decision as “a rubber stamping of a request by law

enforcement officers.” 

UNITED STATES v. LARSON 10291
to a meaningful defense and competent counsel. See Deck,

544 U.S. at 631. 

But there is no showing in the record that the seating

arrangement interfered with the appellants’ ability to communicate with their attorneys. Quite the contrary, the court

explicitly informed the attorneys that they “need only turn

around to talk to your client.” Counsel for Laverdure

acknowledged at argument that the appellants were seated

directly behind the attorneys and that counsel and client had

ready access to each other. See United States v. Jones, 766

F.2d 994, 1004 (6th Cir. 1985) (finding no violation of the

right to consult with counsel because the defendants could

pass notes to the attorneys and the attorneys could get up from

counsel table to speak with their clients). Moreover, there is

no suggestion that, like the practice of shackling, the court

imposed any physical burden, pain, or restraint that confused

or embarrassed Larson and Laverdure. Deck, 544 U.S. at 630-

31. 

[21] We are persuaded that the challenged seating arrangement was not inherently prejudicial, and Larson and Laverdure have not shown that they were actually prejudiced at

trial. We therefore reject these constitutional claims.

V

Larson and Laverdure’s final contention is that their trial

suffered from cumulative error. See, e.g., United States v.

Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996)). Having discovered no error in Larson and Laverdure’s trial, we reject

this argument as well. 

AFFIRMED. 

10292 UNITED STATES v. LARSON