Fabricant

MEMORANDUM *

For cross-examination to be effective, a defendant must be allowed to adequately explore the witness’s motives and biases. When dealing with an informant, a defendant is entitled to let the jury know how much the witness has to gain by testifying for the government. United States v. Larson, 495 F.3d 1094, 1105-06 (9th Cir.2007) (en banc). Here, defendant claims, and the government does not dispute, that Kramer faced a life sentence or the death penalty, and that his penalty was reduced to mere probation because of his cooperation. The jury was not informed of this, nor was defendant allowed to question Kramer about the details of his crime which, by their horrific nature, would have alerted the jury that the witness would suffer extremely serious consequences if he did not testify for the government. This is the same error identified in Larson , and it was an abuse of discretion here as it was there. Id. at 1107 .

Kramer’s testimony that defendant sold methamphetamine rather than marijuana was largely uncorroborated. The error was therefore not harmless beyond a reasonable doubt. See id. at 1107-08 .

REVERSED and REMANDED.

This disposition is not appropriate for…

dissenting:

We recently clarified our standard of review in cases involving alleged Confrontation Clause violations. We held that where the district court bars cross-examination as to an entire area of inquiry, we apply de novo review; however, if the limitation is within an area of inquiry, the abuse of discretion standard applies. Larson, 495 F.3d at 1101. The situation in this case mirrors that in Larson, where we applied the abuse of discretion standard. Because the district court did not abuse its discretion when it limited cross-examination of the government’s key witness, I respectfully dissent. The jury heard ample testimony implicating informant Kramer’s credibility and bias in favor of the government, and I would affirm Fabricant’s drug conviction, as required by our highly deferential standard of review.

“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. Bridgeforth, 441 F.3d 864, 868 (9th Cir.2006) (internal quotation marks omitted). The Sixth Amendment does not…