FILED

United States Court of Appeals

Tenth Circuit

July 7, 2009

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 08-8033

KENNETH TODD BURKE,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING

(D.C. NO. 2:07-CR-141-02-WFD)

Patrick J. LeBrun, Casper, Wyoming, for Defendant-Appellant.

David A. Kubichek, Assistant United States Attorney, Casper, Wyoming (Kelly

H. Rankin, United States Attorney for the District of Wyoming with him on the

brief) for Plaintiff-Appellee.

Before TACHA, O’BRIEN and McCONNELL, Circuit Judges.

McCONNELL, Circuit Judge.

This case involves the belated disclosure of exculpatory or impeachment

evidence required by Brady v. Maryland, 373 U.S. 83 (1963). Although we

conclude that the tardy disclosure of exculpatory or impeachment evidence can
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sometimes give rise to a Brady violation and are greatly concerned by the

government’s conduct in this case, we conclude that the defendant’s objection to

the government’s belated disclosure failed to articulate any basis for finding that

he was prejudiced by the delay. As a result, we affirm the judgment of the

district court.

I. Background

Kenneth Todd Burke was convicted by a jury of conspiring with James

Johnston to possess with intent to distribute, and to distribute, methamphetamine. 

He was also convicted of maintaining a drug house. 

A. Events Leading to Mr. Burke’s Indictment

In October 2006, agents from the Wyoming Division of Criminal

Investigation (“WDCI”) conducted an undercover purchase of methamphetamine

from Teddy Corbett. After agreeing to cooperate with the WDCI agents, Mr.

Corbett advised them that his primary source of methamphetamine was James

Johnston, who resided in Casper, Wyoming at a home owned by Kenneth Burke’s

mother. Mr. Burke and Michael Jacobs, Mr. Burke’s former brother-in-law, also

lived at the house along with Mr. Johnston. 

In December 2006, the police fitted Mr. Corbett with a wire, and sent him

to purchase methamphetamine from Mr. Johnston. Perhaps sensing a trap, Mr.

Johnston refused to sell Mr. Corbett drugs. The police, undeterred, obtained a

warrant for the Casper home and executed a search in February 2007, after Mr.
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Burke was already in jail on unrelated charges. The police uncovered

methamphetamine, digital scales, and other paraphernalia in and around the couch

in the living room on which Mr. Johnston slept. They also discovered drug

paraphernalia and a small amount of drugs in Mr. Jacobs’ bedroom. No drugs or

drug-related items were found in Mr. Burke’s bedroom. 

As the police continued their investigation into Mr. Johnston’s drug

trafficking business, they quickly decided to speak to Mr. Burke. Mr. Burke

admitted to the police that Mr. Johnston both used and sold methamphetamine out

of their shared residence. Mr. Burke denied any involvement in Mr. Johnston’s

enterprise, however, and told investigators that he no longer even used

methamphetamine. Instead, he claimed that he had unsuccessfully tried to get Mr.

Johnston to leave the house and was glad that the police were getting the

methamphetamine out of his home. His protestations of innocence

notwithstanding, Mr. Burke was eventually charged with maintaining a drugrelated premises and conspiracy to possess with intent to distribute, and to

distribute, methamphetamine. Although Mr. Johnston separately pled guilty

pursuant to a plea agreement, Mr. Burke chose to proceed to trial. 

At trial, Mr. Johnston presented a very different account of Mr. Burke’s

involvement. According to Mr. Johnston, both he and Mr. Burke sold

methamphetamine out of the shared residence. While Mr. Johnston indicated that

he and Mr. Burke sold mostly to their own customers, he noted that if either was
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running short on inventory, he might acquire drugs from the other. Mr. Johnston

also testified that he used methamphetamine around forty times with Mr. Burke.

Finally, Mr. Johnston testified that Mr. Burke had helped him deal with Mr.

Corbett after the latter attempted the controlled buy. According to Mr. Johnston,

Mr. Burke took Mr. Corbett to a carwash and threatened him about wearing a wire

against Johnston. Mr. Corbett later corroborated Johnston’s account of his

confrontation with Mr. Burke. Mr. Corbett also testified that Mr. Burke had

physically assaulted him when both were incarcerated, presumably in response to

Corbett’s involvement in the police investigation into dealings at his home.

Other witnesses at trial testified that they had purchased methamphetamine

from either Mr. Johnston or Mr. Burke at the shared residence. April Spong

testified that she generally purchased methamphetamine from Mr. Burke, but

would purchase drugs from Mr. Johnston when Mr. Burke was unavailable. Kim

Meiwes, Wendell Bray, and Joe Wilson testified that they routinely bought

methamphetamine from Mr. Johnston at the Casper home. Ms. Meiwes and Mr.

Wilson both also testified that they had seen Mr. Burke at the house during visits

to purchase drugs from Mr. Johnston. 

The jury found Mr. Burke guilty of both charges. 

B. The Factual Basis of Mr. Burke’s Appeal

Before trial, Mr. Burke filed a motion seeking the disclosure of any

immunity agreements between the Government and any informants that it planned
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to call to the stand. The district court ordered the release of this information, and

the government acknowledged its responsibility to comply. The government

failed to disclose, however, that Teddy Corbett was testifying pursuant to an

“informal” plea agreement reached before trial. Under the accommodation

reached between the government and Mr. Corbett, the government agreed not to

charge Mr. Corbett with any federal crimes in exchange for his cooperation. See

Aplt. Br. 17. The government’s failure to divulge the immunity agreement was

compounded by the fact that the prosecutor, Kenneth Marken, even initially

affirmatively elicited testimony at trial that there was no such agreement. Mr.

Marken asked Corbett: “Are you here pursuant to any kind of plea agreement?” 

Mr. Corbett responded: “No.” R. V 410. The prosecutor made no attempt to

correct this misstatement, even though he was the one who had negotiated the

agreement with Mr. Corbett.

Later during Mr. Corbett’s direct testimony, however, the existence of his

plea agreement was brought to light.

MR. MARKEN: Okay. Now, you gave an interview as part of your plea

agreement –

MR. CORBETT: Uh-huh.

R. V 421–22. Defense counsel immediately objected and moved that the witness

be excluded and his testimony disregarded by the jury on the basis that the

defense had not been informed that the witness had a plea agreement. R. V 423. 
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When the government acknowledged that there was, in fact, an informal

understanding that Mr. Corbett would receive federal immunity for his

cooperation, defense counsel responded only by arguing that the existence of the

immunity agreement suggested Mr. Corbett’s “strong bias.” Id. The judge

refused to strike the witness on this basis and instead directed Mr. Burke to “deal

with this issue on cross-examination.” Id. 

Mr. Burke’s second claim of error follows from the court’s suppression of

his line of questioning against Joe Wilson. Mr. Wilson testified that Mr. Burke

was present at the residence on occasions when he purchased methamphetamine

from Mr. Johnston. Mr. Burke attempted to impeach Mr. Wilson’s testimony on

cross-examination by revealing that Mr. Wilson was presently under federal

indictment. See Aplt. Br. 26. In particular, he attempted to show that the same

prosecutor now questioning him in Mr. Burke’s case had previously prosecuted

Mr. Wilson in a previous state matter and bore responsibility for his current

federal indictment. Id. The government raised an objection under Fed. R. Evid.

609, claiming that the questioning constituted “[i]mproper impeachment.” R. V

444. The court sustained the objection. Mr. Burke now argues that this violated

his Sixth Amendment right to confront witnesses against him.

II. The Government’s Belated Disclosure of Brady Material

In Brady v. Maryland, the Supreme Court held that “the suppression by the

prosecution of evidence favorable to an accused upon request violates due process
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where the evidence is material either to guilt or to punishment, irrespective of the

good faith or bad faith of the prosecution.” 373 U.S. at 87. Evidence is

“material” within the meaning of Brady “only if there is a reasonable probability

that, had the evidence been disclosed to the defense, the result of the proceeding

would have been different.” United States v. Young, 45 F.3d 1405, 1408 (10th

Cir. 1995) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). 

“Impeachment evidence as well as exculpatory evidence falls within the Brady

rule.” Young, 45 F.3d at 1408 (citing Giglio v. United States, 405 U.S. 150, 154

(1972)). 

In a typical case involving an alleged Brady violation, where the purported

Brady material is not disclosed until after trial, a defendant can establish a

violation of due process by showing “1) that the prosecution suppressed evidence;

2) that the evidence was favorable to the accused; and 3) that the evidence was

material.” Smith v. Sec’y of N.M. Dep’t of Corr., 50 F.3d 801, 824 (10th Cir.

1995). Here, however, the impeachment evidence was disclosed during trial, in

time for Mr. Burke to use the information during cross-examination. 

We have never explicitly decided whether, and under what circumstances,

such a belated disclosure of Brady material would violate due process. In Young,

we stated that “[t]o the extent Brady applies where an allegation is made that the

government’s belated disclosure of material during the trial resulted in prejudice

to the defense, the materiality inquiry focuses on whether earlier disclosure would
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have created a reasonable doubt of guilt.” 45 F.3d at 1408, citing United States v.

Rogers, 960 F.2d 1501, 1511 (10th Cir. 1992); United States v. Beale, 921 F.2d

1412 (11th Cir. 1991). See also United States v. Warhop, 732 F.2d 775, 777 (10th

Cir. 1984) (due process is satisfied if Brady material is disclosed before it is too

late for the defendant to make use of the benefits of it). 

Some limitation on disclosure delay is necessary to protect the principles

articulated in Brady v. Maryland. The government’s duty to disclose material

evidence favorable to the accused is rooted in the premise that the sovereign’s

ultimate interest in criminal prosecution is not to maximize convictions for their

own sake, but to ensure that “justice shall be done.” United States v. Agurs, 427

U.S. 97, 111 (1976). This goal entails a commitment to the principle that every

defendant shall receive a fair trial. When exculpatory or impeachment evidence

might make the difference between conviction and acquittal, the failure to

disclose that evidence to the defense “deprive[s] the defendant of a fair trial.” 

United States v. Bagley, 473 U.S. 667, 675 (1985). 

It would eviscerate the purpose of the Brady rule and encourage

gamesmanship were we to allow the government to postpone disclosures to the

last minute, during trial. As the Second Circuit noted in Leka v. Portuondo, 257

F.3d 89, 101 (2d Cir. 2001), the belated disclosure of Brady material “tend[s] to

throw existing strategies and [trial] preparation into disarray.” It becomes

“difficult [to] assimilate new information, however favorable, when a trial already
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has been prepared on the basis of the best opportunities and choices then

available.” Id. See also United States v. Devin, 918 F.2d 280, 290 (1st Cir. 1990)

(explaining that a Brady violation would occur if delayed disclosure altered

defense strategy and timely disclosure would likely have resulted in a more

effective strategy). If a defendant could never make out a Brady violation on the

basis of the effect of delay on his trial preparation and strategy, this would create

dangerous incentives for prosecutors to withhold impeachment or exculpatory

information until after the defense has committed itself to a particular strategy

during opening statements or until it is too late for the defense to effectively use

the disclosed information. It is not hard to imagine the many circumstances in

which the belated revelation of Brady material might meaningfully alter a

defendant’s choices before and during trial: how to apportion time and resources

to various theories when investigating the case, whether the defendant should

testify, whether to focus the jury’s attention on this or that defense, and so on. To

force the defendant to bear these costs without recourse would offend the notion

of fair trial that underlies the Brady principle.

At a minimum, therefore, we adopt as a holding this court’s statement in

Young that the belated disclosure of impeachment or exculpatory information

favorable to the accused violates due process when an “earlier disclosure would

have created a reasonable doubt of guilt.” 45 F.3d at 1408. See also United

States v. Fallon, 348 F.3d 248, 252 (7th Cir. 2003) (key inquiry is “whether
1 The Appellant has not argued that the burden should shift to the

government to show the lack of prejudice where the government’s delay lacks any

legitimate justification, and we therefore do not consider that argument. 

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earlier disclosure would have created a reasonable doubt of guilt”).1 Where the

district court concludes that the government was dilatory in its compliance with

Brady, to the prejudice of the defendant, the district court has discretion to

determine an appropriate remedy, whether it be exclusion of the witness,

limitations on the scope of permitted testimony, instructions to the jury, or even

mistrial. The choice of remedy is in the sound discretion of the district court. 

Fed. R. Crim. P. 16(d)(2) authorizes the district court in cases of non-compliance

with discovery obligations to “permit the discovery or inspection,” “grant a

continuance,” “prohibit the party from introducing the evidence not disclosed,” or

“enter any other order that is just under the circumstances.” See also United

States v. Johnston, 127 F.3d 380, 391 (5th Cir. 1997) (district court has “real

latitude” to fashion appropriate remedy for alleged Brady errors following from

delayed disclosure); United States v. Joselyn, 99 F.3d 1182, 1196 (1st Cir. 1996)

(“The district court has broad discretion to redress discovery violations in light of

their seriousness and any prejudice occasioned the defendant.”).

It is true that several older cases from this circuit contain broad language

suggesting that delays in disclosure cannot violate due process so long as they

were made during trial. See, e.g., United States v. Bishop, 890 F.2d 212, 218

(10th Cir. 1989) (“Brady is not violated when the Brady material is available to
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defendants during trial”), quoting United States v. Behrens, 689 F.2d 154, 158

(10th Cir. 1982), and citing United States v. George, 778 F.2d 556, 561 (10th Cir.

1985); United States v. Alberico, 604 F.2d 1315, 1319 (10th Cir. 1979). This

court explained those earlier decisions in Young: 

We have stated on several occasions that Brady is not violated when the

material requested is made available during the trial. [citing cases] Despite

our seemingly unequivocal statements on this question, we have generally

proceeded to examine whether the circumstances of disclosure during a trial

were such as to prejudice the defense. See e.g., Rogers, 960 F.2d at 1511. 

In this case, we need not decide whether there are some circumstances

where the disclosure of impeaching evidence during trial would constitute a

violation of Brady because we find that the evidence disclosed here was not

material and the delay resulted in no prejudice to the defendant.

Young, 45 F.3d at 1408 n.2. A close analysis of the decisions cited by the

government confirms this explanation. In Bishop, the government failed to

disclose until trial that the teller in a bank robbery case had identified someone

other than the defendant in a photographic line-up. Although the defense made a

“tactical decision” not to recall the teller herself, the court noted that the defense

elicited the exculpatory information from another witness, making “[t]he jury []

fully aware of the teller’s failure to identify the defendant as the robber.” 890

F.2d at 218–19. The court concluded: “to the extent that a materiality inquiry

under Agurs is feasible in a situation where defendant was in receipt of Brady

materials during trial, we do not believe that earlier disclosure of the information

would have given rise to a reasonable doubt that did not otherwise exist. 

Therefore, we affirm the district court’s denial of defendant’s motion for a new
2 We also note that each of these cases arose in the context of an argument

on appeal that the delay in disclosure necessitated reversal and retrial—not, as in

this case, a claim that the trial court erroneously held that there had been no

prejudice from the delay and thus abused its discretion in its choice of remedy.

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trial.” Id. We interpret this as at least leaving open the question of whether the

defendant is entitled to relief for belated Brady disclosures where prejudice is

established. To similar effect, see Behrens, 689 F.2d at 158 (rejecting claim that

belated Brady disclosure violated due process on the ground that “defendants

have not demonstrated that the delayed disclosure of evidence deprived them of a

fair trial”); George, 778 F.2d at 561 (rejecting claim that belated Brady disclosure

violated due process where “[t]he defendant-appellant had the information in

sufficient time to cross-examine each government witness, use it in the

presentation of his own case, introduce expert testimony concerning the purpose

and use of the nunchaku and effectively weave this evidence into his closing

statement in support of reasonable doubt.”); Rogers, 960 F.2d at 1511 (“The fact

that the documents were received on the last day of the trial does not, in itself,

indicate that he did not receive a fair trial.”).2

 

The majority of our sister circuits have held that while the untimely

disclosure of Brady material does not constitute a constitutional violation in

itself, it may violate due process if the defendant can show he was prejudiced by

the delay. See Powell v. Quarterman, 536 F.3d 325, 335 (5th Cir. 2008) (“when

the claim is untimely disclosure of Brady material, we have looked ‘to whether
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the defendant was prejudiced by the tardy disclosure’”) (quoting United States v.

Williams, 132 F.3d 1055, 1060 (5th Cir. 1998)); United States v. Patrick, 965

F.2d 1390, 1400 (6th Cir. 1992) (“Delay [in disclosure] only violates Brady when

the delay itself causes prejudice.”); United States v. Fallon, 348 F.3d 248, 252

(7th Cir. 2003); Leka v. Portuondo, 257 F.3d 89, 101–04 (2d Cir. 2001); United

States v. Devin, 918 F.2d 280, 290 (1st Cir. 1990). See also United States v.

Tyndall, 521 F.3d 877, 882 (8th Cir. 2008) (“A mid-trial disclosure violates Brady

only if it comes too late for the defense to make use of it.”); United States v.

Woodley, 9 F.3d 774, 777 (9th Cir. 1993) (disclosure of Brady material “must be

made when it is still of substantial value to the accused”); United States v. Higgs,

713 F.2d 39, 44 (3d Cir. 1983) (“No denial of due process occurs if Brady

material is disclosed to appellees in time for its effective use at trial.”).

As these decisions recognize, not every delay in disclosure of Brady

material is necessarily prejudicial to the defense. See United States v. Warren,

454 F.3d 752, 760 (7th Cir. 2006) (“Late disclosure does not itself constitute a

Brady violation.”). As the Eleventh Circuit said in United States v. Kubiak, 704

F.2d 1545, 1550 (11th Cir. 1983), the focus of due process violation is “not upon

the fact of nondisclosure, but upon the impact of nondisclosure on the jury's

verdict.” To justify imposition of a remedy, the defense must articulate to the

district court the reasons why the delay should be regarded as materially

prejudicial. That was the problem here. Although Mr. Burke alleged a Brady
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violation, he failed to present the trial court with any credible reason why the

delayed disclosure of Mr. Corbett’s plea agreement had resulted in prejudice

requiring the remedy he sought—the exclusion of all testimony by the witness

about whom impeachment evidence was withheld. When making his motion, Mr.

Burke argued only that the plea agreement suggested that Mr. Corbett’s testimony

was the product of “strong bias.” R. V 423. But the district court reasonably

concluded that the issue of bias could be dealt with on cross-examination. See

id.; cf. United States v. Kuehne, 547 F.3d 667, 698 (6th Cir. 2008) (no Brady

violation where disclosure of impeachment evidence occurred in time to impeach

witness on the stand). And indeed, on cross-examination, Mr. Burke questioned

Mr. Corbett in detail about his plea agreement, exposing to the jury that Mr.

Corbett was promised that “there would be no federal charges filed against [him]

as long as [he] cooperated fully . . . .” R. V 430–31. As a result, Mr. Burke was

able to apprise the jury of his theory that Mr. Corbett’s testimony was biased by

his self-interest in cooperating with the government. The district court, therefore,

did not err in concluding that the opportunity to cross-examine Mr. Corbett would

allow Mr. Burke to fully develop his theory of bias.

On appeal, however, Mr. Burke argues that the delayed disclosure of Mr.

Corbett’s immunity agreement caused a different kind of prejudice—disrupting

and altering his trial strategy. Mr. Burke now suggests that had he been aware in

advance “that Mr. Corbett was subject to extremely persuasive bias cross-
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examination,” Aplt. Br. 22–23 his strategy during opening statements would have

been different. Instead of conceding that Mr. Burke had met with Mr. Corbett

after the controlled buy and had physically assaulted him at the jail, while

offering a more innocuous explanation for both events, Mr. Burke argues that he

would have “held the Government to its burden on this issue and insisted that the

Government rely upon its impeachable witness Mr. Corbett.” Aplt. Br. 23.

We have no need to determine whether this claim of prejudice is sufficient. 

As with other legal issues that arise in the midst of trial, it is the obligation of the

parties to present their arguments to the district court, to enable the court to

fashion a remedy if the circumstances warrant it. In this case, Mr. Burke’s

motion before the district court did not encompass any claim that the

government’s delayed disclosure had altered his trial strategy. He relied solely on

the fact that the belatedly-received information revealed a source of bias on the

part of the witness, which the district court correctly ruled could be dealt with by

cross-examination. As we explained in United States v. Zubia-Torres, 550 F.3d

1202, 1206 (10th Cir. 2008), when a defendant pursues a particular theory or

objection, but fails to raise another closely related argument, he has forfeited the

argument and we review only for plain error. See also United States v. Blandin,

784 F.2d 1048, 1051 (10th Cir. 1986) (reviewing delayed disclosure of exhibits

for plain error after failure to timely object). Because the district court was never

apprised of the claim of prejudice now raised, Mr. Burke forfeited this basis for
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arguing that the government’s delayed disclosure of Mr. Corbett’s immunity

materially prejudiced his defense. 

Although the argument was not timely raised before the district court, we

nonetheless review for plain error. When reviewing an issue for plain error, we

will reverse the judgment below only if there is (1) error, (2) that is plain, which

(3) affects substantial rights, and which (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings. Duffield v. Jackson, 545

F.3d 1234, 1238 (10th Cir. 2008). It is hardly plain from the record that had Mr.

Burke executed his alternative strategy—disavowing Mr. Corbett’s claims that

Mr. Burke physically assaulted him at the jail and warned him about informing

against Mr. Johnston—this would have materially affected the outcome of trial. 

Perhaps so, but both Mr. Corbett and Mr. Johnson offered similar testimony that

the alleged events had occurred, enhancing their individual credibility. Moreover,

the prosecution likely had physical records that could have been introduced to

confirm Mr. Corbett and Mr. Burke’s confrontation at the jail. Finally, the force

of additional testimony from Mr. Johnson and Ms. Spong incriminating Mr. Burke

would have been unaffected by any change in strategy. Mr. Burke’s argument is

plausible, but falls short of plainly correct. 

III. The Suppression of Mr. Burke’s Impeachment of Mr. Wilson

We next review Mr. Burke’s claim that he was unconstitutionally deprived

of his Sixth Amendment right to confront those witnesses testifying against him. 
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We conclude that even assuming that the court improperly curtailed Mr. Burke’s

right to confront Joe Wilson, any error was harmless beyond a reasonable doubt.

The reversal of a conviction is not warranted merely because a litigant can

show the existence of a Confrontation Clause error. If the error is harmless

beyond a reasonable doubt, Mr. Burke’s conviction need not be overturned. See

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). When determining whether a

Confrontation Clause error is harmless, we have looked to (1) the importance of

the witness’s testimony in the prosecution’s case; (2) whether the testimony was

cumulative; (3) the presence or absence of evidence corroborating or

contradicting the testimony of the witness on material points; (4) the extent of the

actual cross-examination; and (5) the overall strength of the State’s case. Jones v.

Gibson, 206 F.3d 946, 957 (10th Cir. 2000).

In this case, we are confident that any improper suppression of Mr. Burke’s

cross-examination of Mr. Wilson was harmless. Most importantly, in the scheme

of the government’s overall case against Mr. Burke, Mr. Wilson’s testimony was

of relatively minimal importance, and mostly cumulative. Mr. Wilson did not

testify that Mr. Burke sold drugs to him—only that Mr. Burke was present at the

shared residence while Mr. Johnston was selling drugs. Numerous witnesses

testified to the same or similar facts. Kim Meiwes, for instance, testified that she

saw Mr. Burke at the house when she purchased drugs from Mr. Johnston. Aple.

Br. 14. Similarly, April Sprong testified that she separately purchased drugs from
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both Johnston and Burke at the shared residence. Finally, Mr. Johnston—Mr.

Burke’s alleged conspirator—also testified in accord with the state’s general

theory. 

The extent of the cross-examination actually conducted also somewhat

diminishes the risk of prejudice from any premature suppression of Mr. Burke’s

line of questioning. For instance, Mr. Burke was able to elicit explicit testimony

that Mr. Wilson had never purchased drugs from him. R. V 444–45. Mr. Burke

also impeached Mr. Wilson by presenting evidence of his extensive criminal

history, including that he had previously been convicted of providing false

information to a court. R. V 442; see Jones, 206 F.3d at 958 (finding relevant to

the harmlessness inquiry whether the witness in question was impeached through

other means).

Finally, the state’s case was not so weak that further cross-examination of

Mr. Wilson reasonably could have been expected to affect the jury’s

deliberations. Multiple witnesses had testified that drugs were sold at Mr.

Burke’s home and that Mr. Burke himself engaged in the sale of drugs. In

addition, Mr. Johnston testified that he and Mr. Burke obtained drugs from each

other on occasion to serve their customers. R. V 342. In the context of this

evidence, even the total absence of Mr. Wilson’s testimony would have done little

to diminish the government’s case. We therefore conclude that any alleged

Confrontation Clause error was harmless beyond a reasonable doubt.
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IV. Conclusion

For the foregoing reasons, we AFFIRM the judgment of the district court.