U.S. v. Klauer, 87-1846

• Decision Date: 14 September 1988
• Docket Number: No. 87-1846,87-1846
• Parties: 26 Fed. R. Evid. Serv. 1135 UNITED STATES of America, Appellee, v. Peter J. KLAUER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1147

856 F.2d 1147

26 Fed. R. Evid. Serv. 1135

UNITED STATES of America, Appellee, v. Peter J. KLAUER, Appellant.

No. 87-1846.

United States Court of Appeals,

Eighth Circuit.

Submitted May 9, 1988.

Decided Sept. 14, 1988.

Kermit L. Dunahoo, Des Moines, Iowa, for appellant.

Richard L. Murphy, Asst. U.S. Atty., Cedar Rapids, Iowa, for appellee.

Before HEANEY, Circuit Judge, ROSS, Senior Circuit Judge, and McMILLIAN, Circuit Judge.

ROSS, Senior Circuit Judge.

Appellant Peter J. Klauer was convicted by a jury of obstruction of justice, 18 U.S.C. Secs. 2 and 1503, intimidation of a federal witness, 18 U.S.C. Secs. 2 and 1512(a)(1), and conspiracy to threaten or intimidate a federal witness, 18 U.S.C. Sec. 371. Klauer was sentenced to four years confinement on the intimidation of a federal witness charge and three years confinement on each of the other two counts, with all of the terms to be served concurrently.

Michael Bradley was the key witness for the prosecution at appellant's trial. Bradley had been arrested on several counts of drug-related offenses involving distribution of cocaine in Dubuque, Iowa. As part of a plea bargain Bradley agreed to plead guilty to one count of conspiracy to possess and distribute cocaine while the remaining three counts against him were dismissed. In addition, Bradley agreed to cooperate with investigators of the Dubuque drug investigation. During the debriefing following his guilty plea, Bradley disclosed evidence that appellant had assisted in the intimidation of a witness who was to testify for the government at Bradley's criminal trial. It was this evidence which led to appellant's indictment in the instant case.

At appellant's trial, Bradley detailed the circumstances of his plea agreement, including the reduction of charges against him with a concomitant maximum sentence reduction from eighty to fifteen years. Additionally, Bradley testified that as part of his plea agreement he was required to continue to cooperate fully and truthfully with the authorities or the three dismissed counts would be reinstated.

On cross-examination, defense counsel sought to introduce evidence of specific sentencing concessions which Bradley received as a result of his cooperation with the government. In order to do so, defense counsel offered into evidence the transcript of the judge's remarks at the sentencing hearing which provided:

Were it not for your postarrest conduct in this case, your willingness to cooperate with the Government, and the apparent conversion that you have had with respect to your use of this drug, the Court believes that a sentence to confinement of five or six or seven years would be well within the Court's discretion. But the Court must weigh and give credit to your postarrest conduct.

The government objected to the admission of the transcript on relevancy and hearsay grounds.

After careful consideration, the trial court ¹ ruled that the proffered transcript made by the sentencing court was irrelevant to the issue of Bradley's motive for cooperating with the government. However, the trial court did allow the defense to use the sentencing transcript to refresh Bradley's recollection concerning his earlier testimony that he was unaware that he had received any concessions in his sentence as a result of his cooperation with the government. Indeed, after given an opportunity to review the sentencing transcript, Bradley admitted that his prior testimony was in error and that he had received sentencing considerations as a result of his post-arrest cooperation.

On appeal, appellant argues that the district court erred in refusing to admit the sentencing transcript. According to appellant, the transcript was relevant to show Bradley's bias and motive for continued fabrication since he had in fact received a se tencing concession due in large part to his post-plea cooperation with the government. Appellant asserts that the restriction on his cross-examination of Bradley deprived him of his constitutional right to confront witnesses.

It is well established that the sixth amendment to the United States Constitution guarantees a defendant's right to fully and adequately cross-examine the witnesses against him. United States v. Wilson, 787 F.2d 375, 386-87 (8th Cir.), cert. denied, 479 U.S. 857, 107 S.Ct. 197, 93 L.Ed.2d 129 (1986), (citing Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1109-10, 39 L.Ed.2d 347 (1974)). The Supreme Court has recognized that the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Delaware v. Van Arsdall, 475 U.S. 673, 678-79, 106 S.Ct. 1431, 1435-36, 89 L.Ed.2d 674 (1986). The limitation of cross-examination results in constitutional error where "[a] reasonable jury might have received a significantly different impression of [the witness'] credibility had respondent's counsel been permitted to pursue his proposed line of cross-examination." Id. at 680, 106 S.Ct. at 1436; United States v. Dempewolf, 817 F.2d 1318, 1321 (8th Cir.), cert. denied, --- U.S. ----, 108 S.Ct. 245, 98 L.Ed.2d 203 (1987). The availability of other opportunities to elicit the same information on cross-examination is significant in...