U.S. v. Larson, No. 05-30076.

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: Paez
• Citation: 495 F.3d 1094
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Patricia Ann LARSON, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Leon Nels Laverdure, Defendant-Appellant.
• Docket Number: No. 05-30077.,No. 05-30076.
• Decision Date: 01 August 2007

495 F.3d 1094 UNITED STATES of America, Plaintiff-Appellee,
v.
Patricia Ann LARSON, Defendant-Appellant.
United States of America, Plaintiff-Appellee,
v.
Leon Nels Laverdure, Defendant-Appellant. No. 05-30076. No. 05-30077. United States Court of Appeals, Ninth Circuit. Argued and Submitted En Banc March 20, 2007. Filed August 1, 2007.

[495 F.3d 1096]

David F. Ness, Assistant Federal Defender, Federal Defenders of Montana, Great Falls, MT, and James B. Obie, Helena, MT, for the defendants-appellants.

Joseph E. Thaggard, Assistant United States Attorney, United States Attorney's Office, Great Falls, MT, for the plaintiff-appellee.

Appeals from the United States District Court for the District of Montana; Sam E. Haddon, District Judge, Presiding. D.C. No. CR-04-00110-SEH.

Before: MARY M. SCHROEDER, Chief Circuit Judge, HARRY PREGERSON, STEPHEN REINHARDT, PAMELA ANN RYMER, 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.

Opinion by Judge PAEZ; Concurrence by Judge GRABER; Dissent by Judge HAWKINS.

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

495 F.3d 1097

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 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 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

495 F.3d 1098

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, 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 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 drug-related felonies, and that he had served 2-½ 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

495 F.3d 1099

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 ¼ 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, followed by four years of supervised release. The court sentenced Laverdure to 188-months imprisonment, followed by four years of supervised release.

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