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. 

Appeals from the United States District Court

for the District of Montana

Sam E. Haddon, District Judge, Presiding

Argued and Submitted En Banc

March 20, 2007—San Francisco, California

Filed August 1, 2007

Before: Mary M. Schroeder, Chief Circuit Judge,

Harry Pregerson, Stephen Reinhardt, Pamela Ann Rymer,

Michael Daly Hawkins, Susan P. Graber,

Kim McLane Wardlaw, Raymond C. Fisher,

Ronald M. Gould, Richard A. Paez, Richard C. Tallman,

Richard R. Clifton, Carlos T. Bea, Milan D. Smith, Jr., and

Sandra S. Ikuta, Circuit Judges.

9139
Opinion by Judge Paez;

Concurrence by Judge Graber;

Dissent by Judge Hawkins

9140 UNITED STATES v. LARSON
COUNSEL

David F. Ness, Assistant Federal Defender, Federal Defenders

of Montana, Great Falls, Montana, and James B. Obie,

Helena, Montana, for the defendants-appellants. 

UNITED STATES v. LARSON 9143
Joseph E. Thaggard, Assistant United States Attorney, United

States Attorney’s Office, Great Falls, Montana, for the

plaintiff-appellee. 

OPINION

PAEZ, Circuit Judge: 

These appeals present the question whether the Sixth

Amendment Confrontation Clause rights of Defendants Patricia Ann Larson and Leon Nels Laverdure were violated when

they were barred from cross-examining two witnesses about

the mandatory minimum prison sentences that they would

have faced but for their cooperation with the Government. A

three-judge panel of our court held that there was no constitutional violation and affirmed Defendants’ convictions. United

States v. Larson, 460 F.3d 1200 (9th Cir. 2006). We subsequently granted rehearing en banc. Before addressing the merits of Defendants’ constitutional arguments, we clarify the

standard of review that we apply to Confrontation Clause

challenges. Under the circumstances here, we review for

abuse of discretion, and we hold that Defendants’ Confrontation Clause rights were violated. The error was harmless,

however, and we therefore affirm their convictions.1

I.

Background

In 2003, the Great Falls Police Department began investigating a number of drug dealers in the Great Falls, Montana

area. In April 2003, the Department paid informant Connie

Riggs to make a controlled purchase of 1.8 grams of methamphetamine from Larson. The police unsuccessfully attempted

1Defendants do not challenge their sentences. 

9144 UNITED STATES v. LARSON
a second controlled buy from Larson through Riggs. In October 2003, informant Jason Gilstrap made two controlled purchases of methamphetamine from Laverdure, one in the

amount of 1.46 grams and the other in the amount of 1.79

grams. In December 2003, a third informant purchased 3.2

grams of methamphetamine from Joy Lynn Poitra and her

cousin, Rick Lee Lamere. Two weeks later, the same informant purchased another twenty-one grams of methamphetamine from Poitra. 

On July 23, 2004, a federal grand jury indicted Larson,

Laverdure, Poitra, and Lamere in a single indictment, charging each with one count of conspiracy to possess methamphetamine with intent to distribute.2

 The Government

informed Lamere that because he had at least two prior felony

drug convictions, he faced a statutory mandatory minimum

sentence of life imprisonment without the possibility of

release. See 21 U.S.C. § 841(b)(1)(A). 

Both Poitra and Lamere entered into plea agreements

whereby they agreed to cooperate and to testify against Larson and Laverdure. In return, the Government represented that

if Poitra and Lamere testified to its satisfaction, it would file

a motion for a reduced sentence, recommending to the court

the extent of departure warranted by the cooperation. See

U.S.S.G. § 5K1.1 (2004). Lamere pleaded guilty to the conspiracy charge and admitted to having distributed five kilograms of a substance containing methamphetamine. Only by

2The indictment alleged that between January 1, 1999, and February 29,

2004, the four (and others) conspired “to possess with the intent to distribute controlled substances, including but not limited to 500 grams or more

of a substance containing a detectable amount of methamphetamine,” in

violation of 21 U.S.C. §§ 841(a)(1) and 846. The indictment attributed

five to fifteen kilograms of a substance containing methamphetamine and

two to 3.5 kilograms of cocaine to Larson, five to fifteen kilograms of a

substance containing methamphetamine to Laverdure, and five to fifteen

kilograms of a substance containing methamphetamine to Lamere. (No

specific amount of methamphetamine was attributed to Poitra.) 

UNITED STATES v. LARSON 9145
the Government’s motion for substantial assistance could

Lamere receive a sentence below the statutory mandatory

minimum of life imprisonment. See 18 U.S.C. § 3553(3);

U.S.S.G. § 5K1.1 cmt. n.1 (2004). Poitra pleaded guilty under

a superseding indictment that charged her with conspiring to

possess with intent to distribute at least fifty grams of a substance containing a detectable amount of methamphetamine.

As a result of her plea, she faced a statutory minimum sentence of five years imprisonment in the absence of a § 5K1.1

motion by the Government, with a potential maximum sentence of forty years in prison. 21 U.S.C. § 841(b)(1)(B). 

In October 2004, Larson and Laverdure proceeded to trial

before a jury. Poitra and Lamere testified as witnesses for the

Government.3 Poitra testified that in 2003, Laverdure, her

third cousin, offered to help her purchase methamphetamine.

Poitra agreed and later accompanied Laverdure when he went

to purchase the methamphetamine. She waited in an alley

while Laverdure walked toward Larson’s house. Laverdure

returned with .25 ounces of methamphetamine, which Poitra

later sold. Poitra continued to purchase methamphetamine

regularly from Laverdure, totaling about 3.5 ounces. She testified that she overheard Laverdure calling “Patty” Larson to

obtain methamphetamine on one or two occasions. Poitra further testified that she obtained from Lamere both the 3.2 and

twenty-one grams of methamphetamine that she sold to the

confidential informant, and that Lamere obtained the latter

quantity for her from Larson. 

Poitra acknowledged before the jury that she had also been

charged with conspiring to possess methamphetamine with

intent to distribute and that she was cooperating with the

expectation that the Government would move to reduce her

sentence. She admitted that she was a drug addict and a

dealer. On cross-examination, Poitra also admitted that she

had engaged the police in a high-speed car chase and that,

3Neither Poitra nor Lamere had been sentenced at the time. 

9146 UNITED STATES v. LARSON
when caught, she had been found with methamphetamine,

marijuana, a digital scale to weigh drugs, and ammunition for

a 9mm handgun. She acknowledged that she had distributed

280 grams, roughly ten ounces, of methamphetamine. Larson’s counsel questioned Poitra about inconsistencies in her

testimony, including her previous statement to police that a

person other than Larson or Laverdure had been Lamere’s

only source of methamphetamine. 

Larson’s counsel asked Poitra whether she faced a mandatory minimum sentence of five-years imprisonment in the

absence of a motion by the Government to reduce her sentence; she answered that she did. The district judge interjected

that this line of questioning was improper and informed the

jury that “all matters related to sentencing are the decision of

the court and the court only.” The court, however, permitted

counsel to ask Poitra whether she understood that only the

Assistant United States Attorney could move to reduce her

sentence. Poitra acknowledged that she did, and further testified that she had a two-year-old child and did not want a

prison sentence. 

Lamere testified that he obtained about ten ounces of

methamphetamine from Laverdure. On four occasions,

Lamere was told by Laverdure that Larson was his methamphetamine source, identifying her as the source of 1.5 ounces

total. Lamere also testified that he purchased six ounces of

methamphetamine from a man named Fasto Komeotis.

Komeotis told Lamere that the drugs came from Larson.

Lamere testified that he would drop Komeotis off about a

block away from Larson’s house and that Komeotis would

return with the drugs. 

Lamere testified that he pleaded guilty to conspiring to distribute more than 500 grams of methamphetamine and that he

was cooperating with the Government in the hope that he

would receive a reduced sentence. He admitted that he was

both a drug addict and a drug dealer. He testified that he had

UNITED STATES v. LARSON 9147
sold at least ten pounds of methamphetamine and that he had

been averaging $3,600 a day in drug sales. He also admitted

that he had been convicted of seven felonies, including drugrelated felonies, and that he had served 2-1/2 years in prison.

On cross-examination, Lamere acknowledged that on direct

examination he testified that he made about fifty purchases

from Laverdure, but that at his change of plea hearing he had

testified that he only dealt with Laverdure three or four times.

Other witnesses also testified on behalf of the Government.

Informant Riggs testified regarding her controlled purchase of

approximately 1/16 ounce of methamphetamine from Larson.

Riggs admitted to having had a drug and alcohol problem for

twenty-eight years, and to improperly using the money the

Government gave her for making the controlled purchase to

buy drugs. Riggs acknowledged that drug users often help

each other buy drugs and that, when Larson obtained the

methamphetamine for her, Larson had originally asked for

some of the drug in exchange for her assistance. Riggs testified that she had attempted a second, unsuccessful controlled

buy from Larson. 

Informant Gilstrap testified that he made two controlled

purchases from Laverdure. He testified that he had bought

some methamphetamine from Laverdure “a few times”

before, in “very little” amounts of approximately 1/4 gram.

Gilstrap admitted that he was a drug addict who had been

arrested for drug possession and had gone to prison three

times for drug-related felonies. Gilstrap acknowledged that, as

a benefit of his involvement in the controlled purchases, he

was permitted to live with his family while still an inmate. 

After the Government rested its case, Larson and Laverdure

moved for the district court to reconsider its ruling preventing

them from inquiring into the statutory mandatory minimum

sentences that Poitra and Lamere faced. The court denied the

motion. The jury found Larson and Laverdure guilty. The

court later sentenced Larson to 97-months imprisonment, fol9148 UNITED STATES v. LARSON
lowed by four years of supervised release. The court sentenced Laverdure to 188-months imprisonment, followed by

four years of supervised release. 

On appeal, Larson and Laverdure argue, among other

things, that the district court violated their Confrontation

Clause rights when it refused to allow counsel to crossexamine Poitra and Lamere about the mandatory minimum

sentences that they faced in the absence of cooperation with

the Government. A three-judge panel of our court determined

that their Confrontation Clause rights were not violated

because Poitra’s five-year minimum sentence was of slight

probative value, examination regarding Lamere’s potential

life sentence created a significant risk of undue prejudice, and

“the jury otherwise received sufficient information from

which to evaluate the cooperating witness’s biases and motivations.” Larson, 460 F.3d at 1210. The three-judge panel

also rejected Defendants’ challenge to the district court’s evidentiary ruling allowing Lamere to testify that Laverdure and

Komeotis told him that Larson was the source of their

methamphetamine, and to the court’s denial of their request

to sit at the counsel table, rather than behind counsel. See id.

at 1210-17. 

In this en banc proceeding, we focus our inquiry on Defendants’ Confrontation Clause challenge. We hold that the district court did not abuse its discretion by limiting Defendants’

cross-examination of Poitra, but that Defendants’ Confrontation Clause rights were violated when the district court barred

Defendants from questioning Lamere about the mandatory

life sentence that he faced in the absence of a motion by the

Government to reduce his sentence. We conclude, however,

that the error was harmless, and we affirm Defendants’ convictions.4

4Because we agree with the three-judge panel’s disposition of the

remaining issues that Defendants raise on appeal, we adopt those portions

of the panel opinion with the exception of the final three paragraphs of

UNITED STATES v. LARSON 9149
II.

Standard of Review

[1] We begin by acknowledging an intra-circuit conflict

regarding the standard of review for Confrontation Clause

challenges to a trial court’s limitations on cross-examination.5

See United States v. Rodriguez-Rodriguez, 393 F.3d 849, 856

Section III.B. See Larson, 460 F.3d at 1210-17. These final paragraphs

addressed an issue that was unresolved at the time: whether the test articulated in Ohio v. Roberts, 448 U.S. 56 (1980), to determine the admissibility of out-of-court nontestimonial statements survived Crawford v.

Washington, 541 U.S. 36 (2004). See 460 F.3d at 1213. The Supreme

Court has since clarified, however, that Crawford “eliminat[es] Confrontation clause protection against the admission of unreliable out-of-court nontestimonial statements” and that “the Confrontation Clause has no

application to such statements and therefore permits their admission even

if they lack indicia of reliability.” Whorton v. Bockting, 127 S. Ct. 1173,

1183 (2007). Adopting the portions of the three-judge panel opinion that

concluded that the out-of-court statements by Komeotis and Laverdure

were made in furtherance of the conspiracy and were nontestimonial, 460

F.3d at 1212-13, we hold that under Crawford, Defendants’ Confrontation

Clause rights were not violated by the admission of these statements. 

5There is also disagreement among the circuits mirroring our intracircuit conflict. Compare United States v. Vitale, 459 F.3d 190, 195 (2d

Cir. 2006) (reviewing Confrontation Clause claims de novo) with United

States v. Orisnord, 483 F.3d 1169, 1178 (11th Cir. 2007) (publication

pending) (reviewing for abuse of discretion a Confrontation Clause claim

based on a limitation on cross-examination); United States v. Smith, 451

F.3d 209, 220 (4th Cir. 2006) (reviewing restrictions on cross-examination

claims for abuse of discretion); United States v. Tykarsky, 446 F.3d 458,

475 (3d Cir. 2006) (same) and United States v. Kenyon, 481 F.3d 1054,

1063 (8th Cir. 2007) (“We review evidentiary rulings regarding the scope

of a cross examination for abuse of discretion, but where the Confrontation Clause is implicated, we consider the matter de novo.”) (citations

omitted); United States v. Townley, 472 F.3d 1267, 1271 (10th Cir. 2007)

(“Although a district court’s evidentiary rulings are reviewed for abuse of

discretion, whether admission of such evidence violates the Confrontation

Clause is reviewed de novo.”), petition for cert. filed, ___ U.S.L.W. ___

(U.S. Mar. 12, 2007) (No. 06-10032). 

9150 UNITED STATES v. LARSON
(9th Cir.) (recognizing the conflict), cert. denied, 544 U.S.

1041 (2005). One line of Ninth Circuit cases has applied de

novo review. See, e.g., United States v. Holler, 411 F.3d

1061, 1066 (9th Cir.) (“We review de novo whether a limitation on cross examination violated the defendant’s right of

confrontation.”), cert. denied, 126 S. Ct. 597 (2005); United

States v. Wilmore, 381 F.3d 868, 871 (9th Cir. 2004)

(“Whether a limitation on cross-examination is so restrictive

that it constitutes a violation of a defendant’s Sixth Amendment right is reviewed de novo.”); United States v. Adamson,

291 F.3d 606, 612 (9th Cir. 2002) (“We review de novo

whether limitations on cross-examination are so severe as to

violate the Confrontation Clause.”); United States v. Ortega,

203 F.3d 675, 682 (9th Cir. 2000) (“Whether limitations on

cross-examination are so severe as to violate the Confrontation Clause is a question of law reviewed de novo.”). 

A second line of cases has applied an abuse of discretion

standard. See, e.g., United States v. Lo, 231 F.3d 471, 482 (9th

Cir. 2000) (“[W]e review a trial court’s decision to limit the

scope of cross-examination for abuse of discretion, and will

find a Confrontation Clause violation only if the trial court’s

ruling limits relevant testimony[,] . . . prejudices the defendant . . . and denies the jury sufficient information to appraise

the biases and motivations of the witness.”) (internal quotation marks omitted) (alterations in original); United States v.

Shabani, 48 F.3d 401, 403 (9th Cir. 1995) (reviewing limits

on cross-examination for abuse of discretion); Wood v.

Alaska, 957 F.2d 1544, 1550 (9th Cir. 1992) (“Because trial

judges have broad discretion both to determine relevance and

to determine whether prejudicial effect or other concerns outweigh the probative value of the evidence, we will find a

Sixth Amendment violation only if we conclude that the trial

court abused its discretion.”). 

A third line of cases combines these two approaches. See,

e.g., United States v. Shryock, 342 F.3d 948, 979-80 (9th Cir.

2003) (“Whether limitations on cross-examination are so

UNITED STATES v. LARSON 9151
severe as to violate the Confrontation Clause is a question of

law we review de novo . . . . We review for an abuse of discretion the district court’s limitation of cross-examination.”);

United States v. Bensimon, 172 F.3d 1121, 1128 (9th Cir.

1999) (“This court reviews de novo whether the limitation on

cross-examination violated [the defendant’s] right of confrontation. The district court, however, has considerable discretion

in restricting cross-examination, and this court will find error

only when that discretion has been abused.”) (citations omitted); United States v. James, 139 F.3d 709, 713 (9th Cir.

1998) (“The district court may impose reasonable limits on

cross-examination, which we will review for an abuse of discretion. Whether limitations on cross-examination are so

severe as to amount to a violation of the confrontation clause

is a question of law we review de novo.”) (citation and internal quotation marks omitted); United States v. Vargas, 933

F.2d 701, 704 (9th Cir. 1991) (“The trial judge has discretion

to impose reasonable limits on cross-examination, and this

court finds error only when that discretion has been abused.

. . . Whether limitations on cross-examination are so severe as

to amount to a violation of the confrontation clause is a question of law reviewed de novo.”). 

[2] We resolve this conflict by concluding that the third

approach is most appropriate. We hold that the following

approach should be used to review whether a trial court

improperly restricted a defendant from cross-examining a

prosecution witness: If the defendant raises a Confrontation

Clause challenge based on the exclusion of an area of inquiry,

we review de novo. In reviewing a limitation on the scope of

questioning within a given area, we recognize that “trial

judges retain wide latitude insofar as the Confrontation Clause

is concerned to impose reasonable limits on such crossexamination 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.” Delaware v. Van Arsdall, 475 U.S. 673, 679

(1986). A challenge to a trial court’s restrictions on the man9152 UNITED STATES v. LARSON
ner or scope of cross-examination on nonconstitutional

grounds is thus reviewed for abuse of discretion. 

This approach is in harmony with the Supreme Court’s

decision in Van Arsdall.

6

 In Van Arsdall, the Court recognized

that “trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits” on

cross-examination. Id. The Court held, however, that where

“the trial court prohibited all inquiry into the possibility” of

a witness’ bias, the defendant’s Confrontational Clause rights

were violated. Id. This standard also recognizes that whether

there has been a Confrontation Clause violation is ultimately

a question of law that must be reviewed de novo. See Shryock,

342 F.3d at 979; cf. Ornelas v. United States, 517 U.S. 690,

6

It also brings us in line with a number of our sister circuits. See, e.g.,

United States v. Holt, ___ F.3d ___, 2007 WL 1412543, *3 (7th Cir. 2007)

(publication pending) (“We review the district court’s decision to limit the

scope of cross-examination for an abuse of discretion. If the Sixth Amendment right to confrontation is directly implicated, however, our review is

de novo.”) (citations omitted); United States v. Kenyon, 481 F.3d

1054,1063 (8th Cir. 2007) (“We review evidentiary rulings regarding the

scope of a cross examination for abuse of discretion, but where the Confrontation Clause is implicated, we consider the matter de novo.”) (citations omitted); United States v. Martinez-Vives, 475 F.3d 48, 53 (1st Cir.

2007) (“On a challenge to a district court’s limitation of crossexamination, we first perform a de novo review to determine whether a

defendant was afforded a reasonable opportunity to impeach adverse witnesses consistent with the Confrontation Clause. Provided that threshold

is reached, we then review the particular limitations only for abuse of discretion.”) (citations and internal quotation marks omitted); United States

v. Hitt, 473 F.3d 146, 155-56 (5th Cir. 2006) (“A district court’s limitation

of cross-examination of a witness is reviewed for abuse of discretion.

Abuse-of-discretion review is only invoked if the limitation did not curtail

the defendant’s Sixth Amendment right to confront witnesses. Whether a

defendant’s Sixth Amendment rights were violated is reviewed de novo.”)

(citations omitted), cert. denied, 127 S. Ct. 2083 (2007); United States v.

Townley, 472 F.3d 1267, 1271 (10th Cir. 2007) (“Although a district

court’s evidentiary rulings are reviewed for abuse of discretion, whether

admission of such evidence violates the Confrontation Clause is reviewed

de novo.”). 

UNITED STATES v. LARSON 9153
697-99 (1996) (holding that courts of appeal are to review de

novo district court determinations regarding reasonable suspicion and probable cause, reasoning that de novo review prevents divergent interpretations of similar facts, enables

appellate courts to maintain control of legal rules, and unifies

precedent). At the same time, this standard allows the trial

court discretion to manage the presentation of evidence and

restrict examination based on relevant considerations. See Van

Arsdall, 475 U.S. at 679. 

[3] Applying this approach here, Defendants’ Confrontation Clause claims challenge the district court’s limitation on

the scope of cross-examination within an area of inquiry: the

biases and motivations to lie of the Government’s cooperating

witnesses, Poitra and Lamere. We therefore review Defendants’ claims for abuse of discretion. 

III.

Discussion

A. Constitutional Error 

[4] The Confrontation Clause of the Sixth Amendment,

which “guarantees the right of an accused in a criminal prosecution ‘to be confronted with the witnesses against him,’ ”

Van Arsdall, 475 U.S. at 678, includes “the right of effective

cross-examination,” Davis v. Alaska, 415 U.S. 308, 318

(1974). Effective cross-examination is critical to a fair trial

because “[c]ross-examination is the principal means by which

the believability of a witness and the truth of his testimony are

tested.” Davis, 415 U.S. at 316. We, like the Supreme Court,

have “emphasized the policy favoring expansive witness

cross-examination in criminal trials.” Lo, 231 F.3d at 482; see

also Van Arsdall, 475 U.S. at 678-79; Davis, 415 U.S. at 316.

[5] The Supreme Court has recognized that “the exposure

of a witness’ motivation in testifying is a proper and impor9154 UNITED STATES v. LARSON
tant function of the constitutionally protected right of crossexamination.” Davis, 415 U.S. at 316-17. Thus, “jurors [are]

entitled to have the benefit of the defense theory before them

so that they [can] make an informed judgment as to the

weight to place on [the Government witness’] testimony.” Id.

at 317. As we explained in United States v. Schoneberg:

The constitutional right to cross-examine is

“[s]ubject always to the broad discretion of a trial

judge to preclude repetitive and unduly harassing

interrogation,” but that limitation cannot preclude a

defendant from asking, not only “whether [the witness] was biased” but also “to make a record from

which to argue why [the witness] might have been

biased.” 

396 F.3d 1036, 1042 (9th Cir. 2005) (quoting Davis, 415 U.S.

at 318) (footnotes omitted) (alterations in original). 

[6] The issue here is whether the district court erred when

it prevented defense counsel from exploring the mandatory

minimum sentences that Poitra and Lamere faced in the

absence of a U.S.S.G. § 5K1.1 motion by the Government.

We have identified three factors courts should consider in

determining whether a defendant’s Confrontation Clause right

to cross-examination was violated:

(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. 

United States v. Beardslee, 197 F.3d 378, 383 (9th Cir. 1999)

(citing United States v. James, 139 F.3d 709, 713 (9th Cir.

1998)); see also Holler, 411 F.3d at 1065 (“A limitation on

cross examination does not violate the Confrontation Clause

UNITED STATES v. LARSON 9155
unless it limits relevant testimony and prejudices the defendant, and denies the jury sufficient information to appraise the

biases and motivations of the witness.”) (internal quotation

marks omitted). 

We review the limitation on the cross-examination of each

witness separately. Cf. Van Arsdall, 475 U.S. at 680 (stating

that the inquiry into the prejudice necessary to establish a

Confrontation Clause violation “must be on the particular witness”). At trial, Larson’s counsel attempted to cross-examine

Poitra about the minimum sentence she faced in the absence

of cooperation with the Government. However, he was interrupted by the district judge:

Q. In fact, you’re going to prison for a minimum

of five years, right? 

A. Yes. 

THE COURT: 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. 

[DEFENSE COUNSEL]: Can I ask her about the

penalty she’s facing? 

THE COURT: I don’t give advisory opinions. 

[DEFENSE COUNSEL to Poitra]: What’s your

understanding of the penalties that you’re facing? 

[GOVERNMENT]: Judge, I’m going to object to

this. 

9156 UNITED STATES v. LARSON
THE COURT: Sustained.

And ladies and gentleman, that is

because in this court, all matters related to

sentencing are the decision of the court and

the court only. And that’s the way the law

is set up and that’s the way it works in this

court. 

[7] We conclude that while the district court restricted

defense counsel’s cross-examination of Poitra, defense counsel was able to adequately explore Poitra’s motivation to lie

such that the court’s restriction was not an abuse of discretion

and did not violate Defendants’ Confrontation Clause rights.

Poitra testified that she had pleaded guilty and agreed to cooperate with the Government in exchange for a motion to reduce

her sentence. She acknowledged that only the Government

had the authority to make such a motion, and that she had a

young child and did not want to go to prison. Poitra was asked

about the mandatory minimum sentence she faced; she

acknowledged that she faced at least five years in prison.

Although the district court firmly ruled that no further examination would be permitted regarding the actual sentences the

cooperating witnesses faced, it did not strike Poitra’s response.7

Because the jury was sufficiently apprised of Poitra’s incentive to testify to the Government’s satisfaction — including

the mandatory minimum sentence that Poitra faced in the

absence of cooperation with the Government — there was no

Sixth Amendment error. 

7The dissent treats the district judge’s remarks as tantamount to striking

Poitra’s answer. The judge, however, never admonished the jury to disregard Poitra’s testimony, nor did any of his comments negate Poitra’s testimony that she faced a five-year minimum sentence in the absence of

cooperation. The court, in its final instructions, instructed the jury to consider all the evidence. The jury was therefore free to take into account that

Poitra faced a five-year minimum sentence in the absence of cooperation

and to give such testimony as much weight as it deemed appropriate. On

this record, we can only assume that the jury followed the court’s instructions. 

UNITED STATES v. LARSON 9157
With respect to Lamere, the district court’s prior ruling

made it abundantly clear that it would not permit defense

counsel to cross-examine Lamere regarding the mandatory

minimum life sentence that he faced in the absence of cooperation. Defense counsel heeded the court’s admonition and did

not affirmatively explore the issue with Lamere.8

[8] The fact that Lamere faced a mandatory minimum sentence of life imprisonment in the absence of cooperation with

the Government was clearly relevant to assessing his testi8Defense counsel for Larson examined Lamere regarding his incentive

to cooperate with the Government as follows: 

Q. And you pled guilty to conspiracy in this case; correct? 

A. Yes, I have. 

Q. And you are facing a prison sentence as a result of this conviction as well; right? 

A. Yes. 

Q. And by testifying here today, you hope to reduce any prison

sentence that you may be facing; correct? 

A. Yes. 

Q. And in fact, you signed a plea agreement. And the plea

agreement calls for the government’s assistance in the event

that it deems your cooperation substantial; right? 

A. Yep. 

Q. And you know as well as I do that there’s only one person

in this courtroom that can even make a motion to reduce

your sentence; correct? 

A. Yes, I do. 

Q. And that’s [the prosecutor] Mr. Thaggard; right? 

A. Yep. 

We note that, although defense counsel did not attempt to question

Lamere further on the issue of his mandatory life sentence, Defendants did

not forfeit their Confrontation Clause claims in light of the district court’s

clear ruling. Moreover, Defendants moved for the court to reconsider its

ruling at the close of the Government’s case, arguing that their Confrontation Clause rights were violated by the limitation. 

9158 UNITED STATES v. LARSON
mony, as it would reveal to the jury Lamere’s potential biases

and motivations for testifying against Defendants. 

[9] In evaluating whether other legitimate interests outweighed Defendants’ interest in presenting the evidence, “we

begin by considering the probative value of the evidence.”

James, 139 F.3d at 713. The probative value of a mandatory

life sentence is significant. A cooperating witness who faces

a statutorily mandated sentence of life in prison unless the

government moves for reduction of the sentence has a compelling incentive to testify to the government’s satisfaction.

Thus, the mandatory nature of the potential sentence, the

length of the sentence, and the witness’ obvious motivation to

avoid such a sentence cast considerable doubt on the believability of the witness’ testimony. 

The district judge’s stated reason for denying crossexamination of this area of inquiry was that “all matters

related to sentencing are the decision of the court and the

court only.” In the context of this case, that statement was

inaccurate. There was no dispute that, in the absence of a

motion by the Government, the court would be required to

sentence Poitra and Lamere to the statutory minimum sentences for the offenses to which they pled guilty. The Government had the discretion to control the potential sentences that

Poitra and Lamere could receive, and the district court’s rationale cannot form the basis for the exclusion of relevant evidence. 

[10] We recognize, however, the risk that a jury could infer

the potential sentence faced by a defendant from the admission of testimony regarding a witness’ mandatory minimum

sentence, and that such information could have some influence on the jury’s deliberative process. See United States v.

Frank, 956 F.2d 872, 879 (9th Cir. 1991) (“It has long been

the law that it is inappropriate for a jury to consider or be

informed of the consequences of their verdict.”). Here, there

was added risk because Lamere and Poitra were part of the

UNITED STATES v. LARSON 9159
same conspiracy to distribute methamphetamine as Defendants. Cf. United States v. Alvarez, 987 F.2d 77, 82 (1st Cir.

1993) (recognizing the concern that “such testimony might

mislead or confuse the jury; particularly where, as here, the

witness sought to testify to the same penalties faced by the

defendants”). However, while the Government has an interest

in preventing a jury from inferring a defendant’s potential

sentence, any such interest is outweighed by a defendant’s

right to explore the bias of a cooperating witness who is facing a mandatory life sentence.9

See United States v. Chandler,

326 F.3d 210, 223 (3d Cir. 2003) (“[W]hile the government

had a valid interest in keeping from the jury information from

which it might infer [the defendant’s] prospective sentence

were she to be convicted, that interest . . . had to yield to [the

defendant’s] constitutional right to probe the possible biases,

prejudices, or ulterior motives of the witnesses against her.”)

(internal quotation marks omitted). 

Finally, we consider whether the jury was provided with

sufficient information otherwise to assess Lamere’s credibility. The jury learned that Lamere was both a drug addict and

dealer, and that he had sold at least ten pounds of methamphetamine. Lamere admitted that he had been convicted of

seven felonies and that he had served 2-1/2 years in prison.

Lamere testified that he had pleaded guilty and was cooperating with the Government as a witness against Defendants in

the hope that his sentence would be reduced. He acknowledged that the prosecutor was the only person in the courtroom who could move to reduce his sentence. 

[11] We conclude that, although the above evidence did

cast doubt on Lamere’s credibility, it did not reveal the magnitude of his incentive to testify to the Government’s satisfac9To avoid potential confusion, the district court has discretion to provide the jury with an appropriate limiting instruction or to modify Ninth

Circuit Model Criminal Jury Instruction 7.4, regarding jury consideration

of punishment, as warranted. 

9160 UNITED STATES v. LARSON
tion. The permitted cross-examination was therefore

insufficient to allow the jury to assess Lamere’s credibility.

As we explained in Schoneberg:

Where a plea agreement allows for some benefit or

detriment to flow to a witness as a result of his testimony, the defendant must be permitted to cross

examine the witness sufficiently to make clear to the

jury what benefit or detriment will flow, 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. 

396 F.3d at 1042. Although the jury here learned that Lamere

stood to benefit by testifying to the Government’s satisfaction, which went a long way “toward satisfying the constitutional requirement,” id. at 1043, the jury did not learn the

extent to which he stood to benefit from testifying in a manner that satisfied the Government.10 Obviously, an individual

facing life in prison without the possibility of release has an

extremely strong incentive to testify to the Government’s satisfaction.11 Thus, the jury was deprived of evidence that would

have allowed it to determine just how strong Lamere’s motivation was to please the Government. As in Van Arsdall, “[a]

reasonable jury might have received a significantly different

impression of [the witness’] credibility had . . . counsel been

10We agree with the dissent that the jury’s exposure to information

regarding Poitra’s mandatory minimum sentence “may have actually compounded the court’s error in not allowing any cross-examination of

Lamere on this subject.” 

11The concurrence argues that a reasonable jury would have inferred

that Lamere faced “substantial prison time.” There is, however, a fundamental difference between a sentence involving “substantial prison time”

with a likelihood of release and life in prison without the possibility of

release, which ensures that no matter how long a person lives, he will live

out the remainder of his days behind bars. The fact that Lamere faced a

mandatory life term therefore cannot be dismissed as being “of slight marginal utility” even in light of the other information given to the jury. 

UNITED STATES v. LARSON 9161
permitted to pursue his proposed line of cross-examination.”

475 U.S. at 680. 

[12] We have previously held that it is not error for the district court to prohibit cross-examination regarding the potential maximum statutory sentence that the witness faces. See

United States v. Dadanian, 818 F.2d 1443, 1449 (9th Cir.

1987), rev’d on reh’g on other grounds, 856 F.2d 1391 (9th

Cir. 1988); cf. United States v. Mussare, 405 F.3d 161 (3d

Cir. 2005) (holding that the district court did not abuse its discretion in excluding testimony regarding the maximum penalties the government’s witness would have faced in the

absence of government cooperation). In Dadanian, we

referred to such evidence as “at best marginally relevant” to

a witness’ “potential bias and motive in testifying.” 818 F.2d

at 1449. 

[13] The potential maximum statutory sentence that a cooperating witness might receive, however, is fundamentally different from the mandatory minimum sentence that the witness

will receive in the absence of a motion by the Government.

The former lacks significant probative force because a defendant seldom receives the maximum penalty permissible under

the statute of conviction.12 In contrast, the fact that here a

12Other cases from outside our circuit are distinguishable on similar

grounds. Most involve the exclusion of testimony regarding the potential

sentence that the witness faced in the absence of cooperation with the government. See, e.g., United States v. Arocho, 305 F.3d 627, 636 (7th Cir.

2002), superseded by statute on other grounds as recognized in United

States v. Rodriguez-Cardenas, 362 F.3d 958, 959-60 (7th Cir. 2004)

(affirming exclusion of cross-examination of government witnesses

regarding specific sentences and sentencing guideline ranges they faced

before and after cooperation with the government, where the jury had

learned that in exchange for their testimony, the government had dismissed several charges against them); United States v. Cropp, 127 F.3d

354, 359 (4th Cir. 1997) (affirming exclusion of cross-examination regarding the potential sentences faced by cooperating witnesses); United States

v. Mulinelli-Navas, 111 F.3d 983, 988 (1st Cir. 1997) (same); United

States v. Alvarez, 987 F.2d 77, 82 (1st Cir. 1993) (affirming exclusion of

cross-examination regarding potential sentence faced by witness where he

“had not actually pleaded guilty and . . . might or might not be found

guilty at a later trial”). 

9162 UNITED STATES v. LARSON
cooperating witness faced a mandatory life sentence without

the possibility of release in the absence of a government

motion is highly relevant to the witness’ credibility. It is a

sentence that the witness knows with certainty that he will

receive unless he satisfies the government with substantial

and meaningful cooperation so that it will move to reduce his

sentence.13

[14] These circumstances are similar to those in Chandler,

an instructive case from the Third Circuit. In Chandler, one

government witness faced a minimum 97-month sentence

under the Sentencing Guidelines, but received only one month

of house arrest in exchange for his guilty plea and testimony.

326 F.3d at 222. The jury heard only that the first witness

pleaded guilty to an offense with a twelve- to eighteen-month

Guidelines sentence range, that he could have been charged

with a greater offense, and that he received one month of

house arrest and probation. See id. The other witness faced a

Guidelines minimum sentence of twelve years, and testified

that she expected the government to move for a reduced sentence in exchange for her cooperation. See id. The district

court sustained the government’s objections regarding the

penalties that the witnesses faced in the absence of cooperation. Chandler held that the district court violated the defendant’s Confrontation Clause rights because: 

The jury would have had little reason to infer from

that information that [the first witness’] cooperation

with the government might have meant the difference between more than eight years in prison, on the

one hand, and the modest sentence he in fact

13Furthermore, unlike a potential sentence range under the Sentencing

Guidelines, a mandatory minimum sentence is readily ascertainable and is

not difficult for a jury to understand. Cf. Arocho, 305 F.3d at 636-37

(affirming limitation on cross-examination of potential sentences and sentencing guideline ranges that cooperating witnesses faced, and recognizing

that such a “detailed inquiry could place in dispute many side issues, and

could also confuse the jury as to the real issue at hand”). 

UNITED STATES v. LARSON 9163
received, on the other. The limited nature of [the witness’] acknowledgment that he had benefitted from

his cooperation makes that acknowledgment insufficient for a jury to appreciate the strength of his

incentive to provide testimony that was satisfactory

to the prosecution. 

Id. Thus, as the court reasoned, although the jury was aware

of the witnesses’ incentives to lie, they were not aware of the

magnitude of those incentives, which would likely have

affected the jury’s assessment of their testimony. Applying

that reasoning here, any reduction from a mandatory life sentence is of such a significant magnitude that excluding this

information denied the jury important information necessary

to evaluate Lamere’s credibility.14

[15] Taking the above factors into account, we conclude

that the district court abused its discretion, violating Defendants’ Sixth Amendment constitutional right to effective

cross-examination when it prevented defense counsel from

exploring the mandatory life sentence that Lamere faced in

the absence of a motion by the Government. 

B. Harmless Error Analysis

Having determined that Defendants’ Confrontation Clause

rights were violated, we next determine whether the error was

harmless beyond a reasonable doubt. Van Arsdall, 475 U.S. at

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

14The fact that Lamere had not yet been sentenced is therefore of no

consequence to this determination. We further note that Lamere would

only be sentenced following the Government’s evaluation of the quality

and significance of his testimony at this trial and its subsequent recommendation to the sentencing court regarding a sentence reduction. Thus,

the more incriminating Lamere’s testimony against Larson and Laverdure,

the more he would stand to gain from the Government’s motion on his

behalf. 

9164 UNITED STATES v. LARSON
Whether such an error is harmless in a particular

case depends upon a host of factors, all readily

accessible to reviewing courts. These factors include

the importance of the 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, the extent of crossexamination otherwise permitted, and, of course, the

overall strength of the prosecution’s case. 

Id.; see also Schoneberg, 396 F.3d at 1044 (citing and applying Van Arsdall factors). 

[16] With respect to Laverdure, we conclude that the Confrontation Clause error was harmless beyond a reasonable

doubt. Even without Lamere’s testimony, the Government

offered significant evidence of Laverdure’s involvement in a

conspiracy to possess methamphetamine with intent to distribute. Poitra’s testimony alone was sufficient to establish his

involvement in the conspiracy. She testified that in 2003,

Laverdure — who knew that Poitra was both a methamphetamine user and seller — offered to obtain methamphetamine

for her. She testified that he sold her methamphetamine on a

number of occasions, totaling about 3.5 ounces. In addition,

Gilstrap and Sergeant Kohm testified that Laverdure had sold

methamphetamine to Gilstrap on two occasions. 

Furthermore, while it was constitutional error to prevent

defense counsel from cross-examining Lamere about the mandatory minimum life sentence that he faced in the absence of

Government cooperation, on cross-examination, defense

counsel did explore Lamere’s criminal past, history as a drug

user and seller, and desire to obtain a lesser sentence through

his testimony against his co-conspirators. We note, too, that

the court instructed the jury that it should view the testimony

of the cooperating witnesses with greater caution than that of

other witnesses. 

UNITED STATES v. LARSON 9165
[17] We also conclude that the Confrontation Clause error

was harmless with respect to Larson. The Government’s case

against Larson was strong even without Lamere’s testimony.

Poitra testified that Larson was the source of the methamphetamine that Laverdure obtained for her. Poitra overheard

Laverdure calling “Patty” Larson to obtain the drugs, and

Poitra accompanied Laverdure to an alley by Larson’s house

while he went to Larson’s home and returned with methamphetamine. In addition, Poitra testified that the twenty-one

grams of methamphetamine that she sold to the confidential

informant were indirectly obtained from Larson. Furthermore,

Riggs and Detective Gerhart testified as to Riggs’ controlled

purchase from Larson. As discussed above, the crossexamination of Lamere, and the court’s instruction, also gave

the jury reason to doubt Lamere’s credibility. 

[18] We therefore conclude that the constitutional error was

harmless beyond a reasonable doubt. Accordingly, we

AFFIRM the convictions of Larson (No. 05-30076) and

Laverdure (No. 05-30077). 

GRABER, Circuit Judge, with whom RYMER, TALLMAN,

CLIFTON, BEA, M. SMITH, and IKUTA, Circuit Judges,

join, concurring in part and specially concurring in part: 

I agree with the majority opinion except in one major

respect: Defendants Patricia Ann Larson and Leon Nels

Laverdure suffered no Confrontation Clause violation when

the court disallowed a defense question to cooperating coconspirator Rick Lee Lamere concerning the statutory minimum prison sentence that he would face in the absence of the

prosecutor’s help in exchange for his testimony. Accordingly,

the district court did not abuse its discretion. I would affirm

on that ground. 

The Supreme Court consistently has held that a Confrontation Clause violation occurs when a trial judge prohibits any

9166 UNITED STATES v. LARSON
inquiry into why a witness may be biased, Delaware v. Van

Arsdall, 475 U.S. 673, 679 (1986); Davis v. Alaska, 415 U.S.

308, 318 (1974), because “exposure of a witness’ motivation

in testifying is a proper and important function of the constitutionally protected right of cross-examination,” Davis, 415

U.S. at 316-17. The defense must be able to expose through

cross-examination a witness’ motive to lie, because “[a] reasonable jury might . . . receive[ ] a significantly different

impression of [the witness’] credibility” than it would if it had

no basis for understanding why a witness may be biased. Van

Arsdall, 475 U.S. at 680. At the same time, the Supreme

Court has taken care to caution that, although a defendant

must be permitted to explore a witness’ biases, “trial judges

retain wide latitude insofar as the Confrontation Clause is

concerned to impose reasonable limits on such crossexamination based on concerns about, among other things, . . .

prejudice, confusion of the issues, . . . or interrogation that is

. . . only marginally relevant.” Id. at 679; see also Davis, 415

U.S. at 316 (noting that the extent of cross-examination of a

witness is “[s]ubject always to the broad discretion of [the]

trial judge”). 

Applying those principles, we have found a violation of the

Confrontation Clause when a witness had a motive to lie but

the trial judge refused to allow cross-examination concerning

that motive, leaving the jury to infer that the witness had no

motive to lie. United States v. Schoneberg, 396 F.3d 1036,

1040-43 (9th Cir. 2005) (holding that the limitations placed

on the defendant’s cross-examination, coupled with the district court’s “emphatic admonitions,” “vitiated” the defendant’s attempt to establish that the witness had a motive to

lie); see also Fowler v. Sacramento County Sheriff’s Dep’t,

421 F.3d 1027, 1041 (9th Cir. 2005) (concluding that there

was a violation of the Confrontation Clause where all inquiry

into a witness’ bias was foreclosed by the trial judge). Once

a defendant has had an opportunity to question a witness

about bias, we have permitted “reasonable limits,” Van Arsdall, 475 U.S. at 679, on the scope of cross-examination. No

UNITED STATES v. LARSON 9167
Confrontation Clause violation occurs “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) (internal quotation marks omitted).

According to the majority, a defendant must be permitted

to reveal to the jury not only the fact that the witness has

made a deal with the government to testify in the hope of

receiving a lesser sentence, but also the precise length of the

statutory minimum sentence faced by the witness. “Obviously,” according to the majority, a lengthy statutory minimum

sentence creates “an extremely strong incentive to testify to

the Government’s satisfaction”; without such evidence, the

jury in this case was unable “to determine just how strong

Lamere’s motivation was to please the Government.” Maj. op.

at 9161. Despite its superficial appeal, the majority’s argument suffers from two serious flaws. 

First, the majority downplays the significant evidence

before the jury that suggested Lamere’s strong incentive to

lie. The jury knew the following facts to assist them in assessing Lamere’s credibility:

• Lamere was 31 years old and had five children;

• Lamere was a drug addict and a dealer who had

sold at least 10 pounds of methamphetamine;

• Lamere previously had been convicted of seven

felonies and had served 2-1/2 years in prison;

• Lamere had pleaded guilty to the drug conspiracy

in the present case;

• He faced another prison sentence as a result of

that guilty plea;

• By testifying against Defendants, Lamere hoped

to reduce his sentence in this case;

9168 UNITED STATES v. LARSON
• Lamere had entered into a plea agreement with

the government. Under his plea agreement, the

government would assist Lamere in receiving a

shorter prison term in exchange for his testimony

against Defendants, but only if the government

deemed his cooperation to be “substantial”;

• As defense counsel colorfully emphasized in

cross-examining Lamere, “you know as well as I

do that there’s only one person in this courtroom

that can even make a motion to reduce your

sentence”—the prosecutor; and

• The other cooperating witness, Joy Lynn Poitra,

who was merely a novice criminal by contrast to

Lamere, faced a five-year mandatory minimum

sentence. 

Knowing those facts, every reasonable juror already would

have inferred that Lamere faced substantial prison time and

that he was extremely eager to please the prosecutor. The

excluded additional fact of the mandatory life term in the

absence of a motion from the prosecutor would not have

given the jury “a significantly different impression of

[Lamere’s] credibility.” Van Arsdall, 475 U.S. at 680. The

jury knew Lamere’s age, 31, so any lengthy sentence (including the 38-year sentence he ultimately received, even with his

substantial assistance to the government) would have been

very bad for him. Depriving the jury of the slight marginal

utility of knowing about the mandatory life term (in the

absence of his cooperation) simply does not equate to a constitutional violation. 

Second, the majority’s reasoning suffers from a logical

flaw. The importance of cross-examination—as the majority

recognizes—is to reveal a witness’ state of mind and, more

particularly, the extent of the witness’ incentive to testify to

the government’s satisfaction. Maj. op. at 9159, 9160. In that

UNITED STATES v. LARSON 9169
regard, the most important piece of the puzzle is the anticipated benefit that Lamere expected to receive if his assistance

satisfied the prosecutor. Yet that information was both

unknown and unknowable. The information was unknown

because the district court had not yet sentenced Lamere. The

information was unknowable because defense counsel did not

ask Lamere what benefit he anticipated and, had he been

asked the question, “How much of a reduction in your sentence do you expect to get?,” the only honest answer could

have been, “I don’t know.” 

The statutory minimum sentence that a witness faces is relevant for Confrontation Clause purposes only insofar as it

pertains to the sentence that the witness has received or realistically anticipates receiving. So the majority’s focus on a statutory term of life in prison by itself is a red herring and,

worse, that information in isolation could mislead a jury. The

majority asserts that a long statutory minimum sentence necessarily means a proportionately significant psychological

imperative to assist the prosecutor. Maj. op. at 9160-61. That

assertion is incorrect. The important psychological factor—

the extent of the witness’ motive to lie—is not the statutory

minimum, however great or small, but instead is what the witness hoped to gain and, realistically, could expect to gain. 

This case provides a good example. Although the statutory

minimum sentence was life in prison, as it turned out, Lamere

was sentenced to a staggering 38 years in prison. Realistically, given his age, a 38-year prison term was nearly a life

sentence anyhow. Is that benefit—the reduction of Lamere’s

sentence from life to 38 years—as great as the benefit to a

witness facing a three-year statutory minimum on whom the

court imposes only probation? Not necessarily. Again, the key

to understanding a witness’ bias is knowing how great a benefit the witness received or reasonably expected to receive. 

The majority’s reliance on United States v. Chandler, 326

F.3d 210 (3d Cir. 2003), therefore, is misplaced. Chandler in

9170 UNITED STATES v. LARSON
fact supports the proposition that the extent of the benefit, not

the extent of the theoretical sentence, matters. In Chandler,

the Third Circuit correctly focused on the enormous benefit

that one witness actually had received (one month of house

arrest versus more than eight years in prison) and the corresponding benefit that the second witness reasonably could

anticipate based on the magnitude of the benefit that the first

witness had received. Id. at 222. The court did not find the

potential sentences, in isolation, significant, but instead rested

its decision on the significant benefits that the witnesses either

had received or reasonably could expect to receive. Id.; see

also United States v. Mussare, 405 F.3d 161, 170 (3d Cir.

2005) (reiterating that Chandler “requires an examination of

whether the magnitude of reduction [in the witness’ sentence]

would likely have changed the jury’s mind regarding [the witness’] motive for testifying” (emphasis added)), cert. denied,

546 U.S. 1225 (2006). As noted, the record here does not

answer that key question. Neither Poitra nor Lamere was

asked about the magnitude of an expected benefit, and neither

could have known what it was likely to be. And we now

know, in hindsight, that the benefit that Lamere ultimately

received was not substantial; his 38-year sentence effectively

was almost a life sentence, given his age at the time of sentencing. Cf. United States v. Klauer, 856 F.2d 1147, 1149-50

(8th Cir. 1988) (holding that no Confrontation Clause violation occurred by the exclusion of testimony about the “reduc-

[tion of] an otherwise five to seven year sentence to three

years” for a testifying co-conspirator). 

Once a testifying co-conspirator’s biases and motivations

have been exposed, the particular number of years faced (in

the absence of concrete information about the actual benefit

that a witness received or realistically can expect to receive)

is only marginally relevant and is outweighed by concerns of

jury confusion and jury prejudice. The circuit courts, including ours, agree on that proposition in a number of contexts,

including the context of statutory maxima. See, e.g., United

States v. Dadanian, 818 F.2d 1443, 1449 (9th Cir. 1987)

UNITED STATES v. LARSON 9171
(holding that knowledge of the specific maximum term of

imprisonment faced by a witness “is at best marginally relevant” in assessing the witness’ “potential bias and motive in

testifying”), modified on reh’g on other grounds, 856 F.2d

1391 (9th Cir. 1988); United States v. Arocho, 305 F.3d 627,

636-37 (7th Cir. 2002) (holding that testimony about the specific sentences the testifying co-conspirators faced was, “at

best, . . . marginally relevant” and outweighed by the potential

for jury prejudice), superseded by statute on other grounds as

recognized in United States v. Rodriguez-Cardenas, 362 F.3d

958, 960 (7th Cir. 2004); United States v. Cropp, 127 F.3d

354, 359 (4th Cir. 1997) (holding that “whatever slight additional margin of probative information gained by quantitative

questions” about the co-conspirators’ potential sentences of

10 and 20 years was outweighed by “the certain [jury] prejudice that would result” if the testimony had been allowed);

United States v. Luciano-Mosquera, 63 F.3d 1142, 1153 (1st

Cir. 1995) (“Any probative value of information about the

precise number of years [the testifying co-conspirator] would

have faced . . . was slight . . . [and] was outweighed by the

potential for [jury] prejudice . . . .”); see also United States v.

Durham, 139 F.3d 1325, 1334 (10th Cir. 1998) (holding that

additional testimony tending “to show how much prison time

[the testifying co-conspirator] was avoiding through his plea

agreement” was properly excluded by the district court in the

light of the extensive cross-examination that was permitted).

I see no reason to stray from this universal rule even in the

context of a statutory minimum. The key question is how

much benefit the witness hopes to gain with cooperation, not

how much sentencing discretion the district court retains if the

witness does not cooperate. Consequently, there is no principled distinction between a statutory maximum and a statutory

minimum faced by a cooperating witness. In either situation,

a witness could receive a huge benefit or a tiny benefit. In

either situation, a district court does not err by ruling that the

probative value of the extra information is substantially outweighed by the potential for jury confusion and prejudice. 

9172 UNITED STATES v. LARSON
In summary, I would hold that the jury received enough

information to appraise meaningfully Lamere’s biases and

motives to lie, including his plea agreement and the hoped-for

leniency in sentencing if he succeeded in pleasing the prosecutor. The exclusion of the statutory minimum sentence is not

a Confrontation Clause violation in the absence of any means,

other than pure speculation, to assess how much of a benefit

the witness would receive. The district court therefore did not

abuse its discretion when it excluded that portion of Lamere’s

testimony. 

It also bears noting that the majority’s rule is overbroad and

impractical. The rationale that animates its opinion could

apply to any statutory minimum term of years, not just to a

statutory term of life in prison. The strength of a witness’

incentive to assist the prosecutor may be just as great or

greater if she is a young mother facing a 5-year statutory

minimum term, or if he is terminally ill and subject to a 10-

year statutory minimum. Are 5-year and 10-year minima long

enough to require disclosure in cross-examination? The

majority’s opinion does not tell us the answer. 

One practical consequence of that kind of ambiguity is that

prudent trial judges will feel constrained to allow testimony

about cooperating witnesses’ expected statutory minimum

sentences. I question the wisdom of removing significant discretion from trial judges in the face of the Supreme Court’s

reminders that they are to retain “broad discretion,” Davis,

415 U.S. at 316, and “wide latitude,” Van Arsdall, 475 U.S.

at 679, in controlling cross-examination. I also question the

desirability of that outcome in view of the potential, which the

majority acknowledges, of such testimony to create jury confusion and jury prejudice. 

Additionally, the majority’s rule may have unintended, farreaching consequences. What will happen if the court or the

government miscalculates, or a witness misunderstands, the

applicable statutory minimum? If the jury is misinformed,

UNITED STATES v. LARSON 9173
will the defendant have grounds for reversal or collateral

attack if convicted? The majority has, I fear, written a recipe

for unnecessary secondary litigation. 

Finally, even if there were error, it was harmless beyond a

reasonable doubt. Maj. op. at 9165-66. In that respect, as well

as in all others except those discussed above, I agree with the

majority opinion. 

For the foregoing reasons, I concur in part and specially

concur in part. 

HAWKINS, Circuit Judge, with whom PREGERSON, REINHARDT, and WARDLAW, Circuit Judges, join, dissenting:

A conceded street user of drugs is made into a distributor

through the testimony of two witnesses, both facing mandatory prison terms. There is nothing particularly new about former colleagues “singing for their supper” — the problem here

is that the jury did not know of the full extent of the witnesses’ motivation and they were actively misled about what

they did know. The majority properly concludes that what

happened violated the defendants’ Sixth Amendment confrontation rights, but ultimately concludes that this constitutional

violation was harmless error. Thus, while I concur in the

majority opinion’s analysis of the standard of review (Section

II) and agree with its conclusion that there was a Confrontation Clause violation with respect to the restrictions on crossexamining Rick Lamere (Section III.A.), I respectfully dissent

from the majority’s conclusion that the restrictions on the

cross-examination of Joy Poitra did not violate the Confrontation Clause. 

The majority concludes that the jury was sufficiently

apprised of Poitra’s motivation to lie because defense counsel

asked her if she was going to prison for a minimum of five

9174 UNITED STATES v. LARSON
years and she responded “yes.” A review of the transcript

calls into question whether the jury actually even heard or

heeded Poitra’s affirmative answer, as the government conceded at oral argument, because of the court’s immediate intervention.1

 But even if the jury heard Poitra answer “yes,” it

was to the question of whether she faced a “minimum” of jail

time — not mandatory jail time — of five years, which only

the government, and not the judge, could cause to be reduced.

In any event, any supposed benefit from this admission was

immediately undercut by the court’s sua sponte interruption:

THE COURT: 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. 

When defense counsel tried to at least explore Poitra’s own

understanding of the penalty she was facing — clearly relevant to her motivation to lie, regardless of the sentence the

court actually imposed — the government objected and the

court sustained the objection. Moreover, the court further

(and, in light of the mandatory minimums involved in this

case, incorrectly) admonished the jury: 

THE COURT: And ladies and gentleman, that is

because in this court, all matters

related to sentencing are the decision of the court and the court

1The Assistant United States Attorney who also prosecuted Larson and

Laverdure at trial argued the appeal. At oral argument before the en banc

court, he stated that, “With respect to Ms. Poitra, I didn’t have a chance

to object before the district court actually did that sua sponte.” 

UNITED STATES v. LARSON 9175
only. And that’s the way the law is

set up and that’s the way it works

in this court. 

Because of the court’s statements, counsel was not effectively allowed to convey the fact that Poitra was facing a

mandatory minimum sentence absent a motion by the government. Although the jurors may have been aware of Poitra’s

general incentives to lie, they were not fully aware of the

magnitude of those incentives, which could have significantly

affected their assessment of her testimony. Indeed, the little

testimony about sentencing that was allowed — Poitra’s testimony about five years — may have actually compounded the

court’s error in not allowing any cross-examination of Lamere

on this subject, although Lamere was facing a mandatory

minimum sentence of life without parole. Having heard Poitra

mention five years, and being barred from learning anything

about Lamere’s exposure, a rational juror may well have

thought that Lamere only faced five years. 

Because of these concerns, I also cannot agree with the

majority’s conclusion regarding harmless error (Section

III.B.). In assessing the harmlessness of the Confrontation

Clause error, we must consider the trial as a whole, including

the importance of the improperly-restricted witnesses and the

strength of the other evidence presented by the government.

See Van Arsdall, 475 U.S. at 684. 

Connie Riggs testified that she had purchased a small

amount of methamphetamine from Larson in a controlled buy,

but that even in that sale Larson did not personally have the

drugs and had to go elsewhere to obtain 1/16th of an ounce

for Riggs. On a second attempted purchase by Riggs, Larson

did not have any drugs and said she could not obtain any for

Riggs. Jason Gilstrap testified that in two controlled buys he

had directly purchased a small amount of methamphetamine

(also about 1/16th of an ounce) from Laverdure. 

9176 UNITED STATES v. LARSON
These small sales, however, do not link Larson or Laverdure to a much larger conspiracy to distribute drugs with

Poitra and Lamere, which was the sole charge contained in

the indictment. Poitra and Lamere were critical witnesses to

establish the charged conspiracy, and the jury was not sufficiently apprised of their incentive to curry favor with the government. Thus, I cannot say that the Confrontation Clause

error with respect to these crucial witnesses was harmless

beyond a reasonable doubt. Id. at 684. I would therefore

reverse the convictions of Larson and Laverdure.

UNITED STATES v. LARSON 9177