U.S. v. Bridgeforth, 04-50183.

• Decision Date: 29 March 2006
• Docket Number: No. 04-50183.,04-50183.
• Citation: 441 F.3d 864
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ozine BRIDGEFORTH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

441 F.3d 864

UNITED STATES of America, Plaintiff-Appellee, v. Ozine BRIDGEFORTH, Defendant-Appellant.

No. 04-50183.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 6, 2006.

Filed March 29, 2006.

Michael Tanaka, Suzanne M. Lachelier, Monica Knox, Deputy Federal Public Defenders, Los Angeles, CA, for the defendant-appellant.

Nancy Kardon, Assistant United States Attorney, Los Angeles, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; Stephen V. Wilson, District Judge, Presiding. D.C. No. CR-00-01220-SVW-02.

Before ALEX KOZINSKI, STEPHEN S. TROTT, and CARLOS T. BEA, Circuit Judges.

TROTT, Circuit Judge.

Ozine Bridgeforth was convicted of two counts of distribution of a controlled substance, in violation of 21 U.S.C. § 841(a)(1), and one count of conspiracy to distribute a controlled substance, in violation of 21 U.S.C. § 846. On appeal, Bridgeforth argues that his right to confrontation was violated when the district court limited cross-examination of a paid informant and admitted two out-of-court statements as admissions of a co-conspirator. He argues also that his sentence violates the Sixth Amendment and that the court erred in sentencing him as a career offender. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm his convictions. However, because Bridgeforth was improperly sentenced as a career offender, we vacate his sentence and remand for resentencing.

BACKGROUND

This case arises out of two drug transactions observed and recorded by agents of the Federal Bureau of Investigation (FBI). On August 20, 1999, Deshonda Aldridge, a paid informant for the FBI, drove to the 1800 block of East Pine Street in Compton, California, to purchase an ounce of crack cocaine. Aldridge was looking for a man named Steven Rhodes, with whom she had conducted narcotics transactions in the past. While Aldridge was unable to find Rhodes, she did happen upon Ronald Daniels, who offered to sell her the crack. Daniels, an apparent middleman, did not have the drugs that Aldridge requested. Daniels paged his supplier and, when Bridgeforth showed up on his motorcycle, Daniels told Aldridge, "There he go right here." Bridgeforth rode his motorcycle to the driver's side of Aldridge's car while Daniels was leaning on the passenger-side door. Aldridge gave Daniels $540 for the crack. After Aldridge paid for the drugs, she claimed that Daniels handed the money to Bridgeforth. Daniels and Bridgeforth then left Aldridge for a time. A surveillance agent saw Bridgeforth lead Daniels toward the back of Daniels's house, from where Daniels returned and gave Aldridge the crack she had purchased.

The second transaction took place on September 16, 1999. Aldridge again drove to East Pine Street to purchase drugs from Daniels. FBI Agent Todd Holliday testified that, about three minutes before Aldridge's arrival, Bridgeforth had left the neighborhood on his motorcycle. When Aldridge arrived at the scene and initiated the drug transaction, he told her, "My boy just left." Daniels asked Aldridge to accompany him to his supplier to get the drugs, but, when she refused, he left the area. Bridgeforth then returned and went into Daniels's house. Glenn Owens, who identified himself as Daniels's uncle, came out of the same house and sold Aldridge four ounces of crack for $2,100. The jury heard tape recordings and saw photographs of both drug transactions, although they never saw Bridgeforth actually touch either the drugs or the cash, nor did they hear Bridgeforth incriminate himself on the tape.

When Aldridge had first approached the FBI about becoming a paid informant, she told the FBI agent interviewing her that she had past experience as a drug courier in Michigan. Although the agent inferred that Aldridge had worked for a small-time street hustler, in reality Aldridge had made substantial amounts of money working for a large-scale heroin ring. Aldridge also told the FBI that she had ceased her drug courier activity upon the birth of her daughter; in reality, however, Aldridge continued to participate in the heroin ring for another two years.

Bridgeforth wanted to impeach Aldridge with her alleged misstatements, arguing that the statements bore on her credibility as a witness. After hearing testimony from the FBI agent who had interviewed Aldridge, however, the district court ruled that Bridgeforth could not cross-examine Aldridge about her statements to the FBI. The court concluded that, because the FBI agent had never asked Aldridge the details of her drug courier activity, Aldridge had not lied.

Bridgeforth also requested permission to impeach Aldridge with evidence of bias stemming from a car crash she had suffered in Nevada prior to Bridgeforth's trial. Shortly after the accident, Nevada police had found alcohol, marijuana, and methamphetamine in Aldridge's blood, as well as marijuana and methamphetamine in her purse. At the time of Aldridge's testimony, she had not been charged in connection with the Nevada incident. Bridgeforth asserted that Aldridge might give biased testimony in order to curry favor with the government and avoid prosecution.

The district court initially ruled that, although defense counsel could ask questions regarding the drugs that Nevada police had found in Aldridge's purse and blood after her car crash, counsel could not inquire about the alcohol or introduce extrinsic evidence of the drugs. However, the court later indicated that it would admit a stipulation into evidence if Aldridge denied using drugs on the day of the crash. The court held also that extrinsic evidence of bias was inadmissible, reasoning that Bridgeforth had failed to make an adequate showing of potential bias because an FBI agent had told Aldridge that the FBI could not help with her problems in Nevada.

On the witness stand, Aldridge denied that she had ever used any drug other than marijuana and stated that she had not used any drugs the day of her car crash. The court then allowed defense counsel to read to the jury a stipulation that Nevada police had found both marijuana and methamphetamine in Aldridge's purse, as well as in her blood.

The jury found Bridgeforth guilty of two counts of distributing a controlled substance and one count of conspiracy to distribute a controlled substance. Bridgeforth moved for a new trial; the district court denied this motion.

During sentencing, the court explored Bridgeforth's criminal history. In 1989, Bridgeforth was convicted under California Health and Safety Code section 11351.5 of possessing cocaine base for sale. In 1995, he was convicted of assault with a deadly weapon under California Penal Code section 245(a). Section 245(a)(1), assault with a deadly weapon other than a firearm, is punishable either with a term of two, three, or four years in state prison, or with a maximum sentence of one year in county jail. Cal.Penal Code § 245(a)(1). On September 27, 1995, the state court suspended imposition of sentence and placed Bridgeforth on probation. On December 15, 1995, the court terminated probation and imposed a sentence of 365 days in the county jail. After Bridgeforth was convicted in the instant case, he attempted to avoid being sentenced as a career offender by applying to the state court to have his 1995 conviction declared a misdemeanor. On April 16, 2003, the state court declared Bridgeforth's section 245(a) offense a misdemeanor.

Although the Probation Office initially recommended that Bridgeforth be sentenced as a career offender, it later amended the Presentence Report and found that, because the state court had treated Bridgeforth's 1995 conviction as a misdemeanor, the offense did not qualify as a felony crime of violence under the career offender enhancement. Nevertheless, relying on the language of the United States Sentencing Guidelines (Guidelines), the district court concluded that Bridgeforth's 1995 conviction was punishable by a term of imprisonment exceeding one year. The district court thus found that Bridgeforth had been convicted of the requisite two qualifying felonies and sentenced him as a career offender under section 4B1.1 of the Guidelines. Because the court sentenced Bridgeforth before the Supreme Court issued United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), it treated the Guidelines as mandatory. The court sentenced Bridgeforth to 360 months.

DISCUSSION

I The District Court's Limitations on the Impeachment of Informant Aldridge Did Not Violate the Confrontation Clause.

"In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. However, a defendant is not entitled to limitless cross-examination. "A limitation on cross examination `does not violate the Confrontation Clause unless it limits relevant testimony and prejudices the defendant, and denies the jury sufficient information to appraise the biases and motivations of the witness.'" United States v. Holler, 411 F.3d 1061, 1066 (9th Cir.2005) (quoting United States v. Bensimon, 172 F.3d 1121, 1128 (9th Cir.1999)). Bridgeforth argues that the district court violated his Confrontation Clause rights when it (1) did not allow him to cross-examine Aldridge on her alleged misstatements to the FBI, and (2) excluded extrinsic evidence of Aldridge's potential bias stemming from her car crash in Nevada. Claims of Confrontation Clause violations are reviewed de novo and are subject to harmless error analysis. United States v. Shryock, 342 F.3d 948, 979 (9th Cir.2003).

That Aldridge may have misrepresented or downplayed to the FBI the extent and length of her prior drug activity is relevant because it reflects upon her veracity. Her car crash in Nevada is also relevant because she might have thought the FBI could help her avoid prosecution in Nevada, even though she had been told otherwise.

However,...