326 F.

3d 210

UNITED STATES of America,

v.
Linda Lee CHANDLER, Appellant.
No. 01-2572.

United States Court of Appeals, Third Circuit.

Argued May 2, 2002.
Filed April 14, 2003.
1
COPYRIGHT
MATERIAL OMITTED Troy Rivetti (argued), Bonnie R. Schlueter,
Office of United States Attorney, Pittsburgh, PA, for the Appellee.
2

Warren A. Brown (argued), Baltimore, MD, Joseph K. Williams, III,

Pittsburgh, PA, for the Appellant.

Before ROTH and STAPLETON, Circuit Judges, and POLLAK,* District

Judge.

OPINION OF THE COURT

4

POLLAK, District Judge.

Linda Lee Chandler was convicted of participation in a drug-distribution

conspiracy. On appeal, she challenges several evidentiary rulings entered by the
District Court. Because we agree with Chandler that the constraints placed by
the District Court upon her cross-examination of two government witnesses
unduly restricted her ability to defend herself at trial, we reverse and remand
for a new trial.

* On September 13, 2000, Linda Lee Chandler ("Chandler") and three coconspirators Frederick White, Teodora Yearwood, and William Yearwood
were charged in a five-count indictment, the first count of which alleged
that, from 1995 to 1998, all four co-conspirators had conspired, in violation of
21 U.S.C. 846, to distribute and possess with intent to distribute more than
five kilograms of cocaine. The third count of the indictment also charged
Chandler with money laundering, in violation of 18 U.S.C. 1956(a)(1)(A)(i).
(The second, fourth, and fifth counts charged White, Teodora Yearwood, and

William Yearwood, respectively, with money laundering.) The government

alleged that, beginning in 1995, Chandler became part of a drug organization
headed by a man named William Baker, and assisted Baker's organization by
buying, transporting, storing, and selling cocaine.
7

Frederick White, Teodora Yearwood, and William Yearwood pled guilty, but
Chandler proceeded to trial. A number of the government's witnesses had been
members of the alleged conspiracy. They included William Baker, Sly
Sylvester (a drug dealer allegedly supplied by William Baker), and Kathleen
Yearwood (allegedly a supplier of cocaine to the group), together with two of
the persons named as co-conspirators in Chandler's indictment-Frederick White
(Chandler's boy-friend) and William Yearwood (Kathleen's father, and an
alleged drug courier).1 Another government witness, Annette Yearwood
(Kathleen's sister), observed but did not participate in illegal activities. Through
other witnesses, the government introduced testimony regarding surveillance of
Chandler, her financial history, and her contacts with other members of the
conspiracy. The jury convicted Chandler of the drug trafficking charge but
acquitted her of the money laundering charge. She was sentenced to 121
months of imprisonment.

II
8

Chandler presents three issues on appeal. The first concerns the District Court's
admission into evidence of testimony and documents relating to Chandler's
financial history, including her non-filing of tax returns. We review this ruling
for abuse of discretion. See United States v. Casoni, 950 F.2d 893, 902 (3d
Cir.1991). For reasons explained below, we do not find that the District Court
abused its discretion in admitting that evidence. The second issue concerns
limitations imposed by the District Court upon the scope of cross-examination
of government witnesses. We review the imposition of those limitations for
abuse of discretion. See United States v. Ellis, 156 F.3d 493, 498 (3d Cir.1998).
As explained below, we find that these limitations did constitute an abuse of
discretion, and that the error was not harmless. We therefore remand this case
for a new trial. In light of our resolution of this second issue, we do not find it
necessary to resolve the third issue Chandler has presented namely, whether
the District Court erred in refusing to grant a mistrial after a government
witness disclosed to the jury information asserted to be inadmissible as
evidence, and prejudicial to Chandler.

* Chandler contends that the District Court erred when it admitted her bank
records, her 1996 tax return, and testimony regarding her failure to file tax
returns for the years 1997 and 1998. When the government presented a witness

who was to testify to these matters, the following sidebar took place:
10

THE COURT: You want to ask him about tax returns?

11

MR. RIVETTI: Yes, we need a Court order to disclose them even to defense
counsel. They have not been turned over.

12

THE COURT: I know you want to show income, but are you going to be able
to show expenditures through this witness?

13

MR. RIVETTI: This witness, part of the investigation was the subpoenaing of
the Defendant's bank records, which show repeated cash deposits. There is a
number of cash deposits over $500.

14

THE COURT: Okay. Let's hear what your objection is.

15

MR. SCORATOW: First of all, the high prejudicial nature, we have a witness
who will come in and testify he gave her the money, it is perfectly legal, it is
loans. He also is an attorney and he does taxes, he looked over her taxes and he
would tell her when she earned enough and when she didn't earn enough to pay
income taxes. The highly prejudicial nature she doesn't have tax returns, they
can show her income coming in, they have her bank accounts to try to do that
and show this is the money she had from Mr. Baker. The mere fact that she
filed returns or not, if those were gifts or otherwise not properly filed, unless
they can come in and they're saying this is income tax fraud, which she's not
charged with, it is the nature of another crime, it proves nothing, it's
speculative, especially when they know we have Mr. Massung who is going to
testify to where she got the money.

16

MR. RIVETTI: Your Honor, the case law is clear that unexplained income is
probative as to whether or not the Defendant is involved in drug trafficking.

17

THE COURT: Right. What he is saying is why can't you show her bank
records?

18

MR. SCORATOW: That's right, they can't.

19

MR. RIVETTI: The defense has said in fact, during his opening statement
he said that she cut hair, that she had real income. I think that the tax returns
rebut that inference. First of all, no tax returns

20

THE COURT: I am going to allow them. I think it's relevant and I think the
case law I looked at supports it. I will sign it now. The objection of Defendant
is noted.

21

In support of Chandler's contention that the trial court committed reversible

error in admitting various items of financial information, Chandler relies on the
Sixth Circuit's decision in United States v. Carter, 969 F.2d 197 (6th Cir.1992).
In Carter, the court reviewed a district court's ruling admitting evidence, over
the defendant's objection, that the defendant had spent three thousand dollars
on home appliances over a two-year period in 1989 and 1990, and had not filed
tax returns for the years 1985 through 1990. The Sixth Circuit concluded that
the district court had "abused its discretion by allowing the government to use a
plethora of irrelevant financial information." Neither "the fact that Carter
purchased a few appliances over a two-year period," nor her failure to file tax
returns, the court found, was "probative on the issue of whether Carter engaged
in a cocaine transaction on December 1, 1989," the crime with which she was
charged. Id. at 200, 201.

22

Chandler contends that her tax information, as well as bank records showing
over $8,200 in cash deposits over a six-month period in 1996 and 1997,
likewise were "not probative of any issue in the case." Further, she argues that
the admission of the tax return evidence was "highly prejudicial," presumably
because a jury might have inferred from her failure to file returns in 1997 and
1998 that she had committed tax fraud.

23

There exists considerable appellate support for the admission in evidence, in

drug-trafficking cases, of financial information of the sort admitted in
Chandler's trial. "In a narcotics prosecution, it is well established that the
government may introduce evidence of cash purchases coupled with tax
evidence tending to show that a defendant had no legitimate source of cash."
United States v. Saint Prix, 672 F.2d 1077, 1084 (2nd Cir.1982). See also
United States v. Mitchell, 733 F.2d 327 (4th Cir.1984) (same); United States v.
Briscoe, 896 F.2d 1476, 1500 (7th Cir.1990) (holding that it is "well settled that
in narcotics prosecutions, a defendant's possession and expenditure of large
sums of money, as well as his or her failure to file tax returns, are relevant to
establish that the defendant lacked a legitimate source of income and that, in all
probability, the reason for the failure to report this income is due to the
defendant's participation in illegal activities").

24

Courts of appeals consistently have upheld the admissibility of such evidence

when it reasonably supports the government's assertion that the defendant
possessed substantial cash not obtained through legitimate means. In United

States v. Figueroa, 976 F.2d 1446, 1455 (1st Cir.1992), the Fifth Circuit
concluded that evidence that the defendant had not filed tax returns "tended to
make it less likely that the large bank deposits during these tax periods derived
from legitimate sources." In United States v. Trotter, 889 F.2d 153, 155 (8th
Cir.1989), the Eighth Circuit similarly found that the defendant's "failure to file
any tax returns was probative of net worth and therefore relevant to [the
defendant's] claim that the money [recovered from his car] was not the product
of drug distribution."
25

Nor does this general rule apply only when very large sums of otherwise
unexplained cash are involved. In Mitchell, the Fourth Circuit rejected the
defendant's argument that his failure to file tax returns was inadmissible when
"the government's only evidence of Bennett's sudden accession of wealth was
the purchase of a $4,000 motorcycle." Mitchell, 733 F.2d at 331. This
argument, the court explained, "misses the point of the evidence." Id. The
touchstone of the admissibility inquiry is not the amount of money in the
defendant's possession, but whether defendant's failure to account for its source
tends to support the government's claim that the money was obtained through
illegitimate means. In other words, to the extent that a defendant's failure to file
tax returns evidences a lack of legitimate income, that evidence, in combination
with evidence that the defendant possesses a significant sum of cash, generally
is admissible in support of the government's contention that the defendant
obtained the cash through the distribution of narcotics.

26

The Sixth Circuit's rejection of such tax evidence in Carter represents a

relatively narrowly drawn exception to this rule. Far from questioning the
general admissibility of tax evidence in narcotics prosecutions, the court held
only that the defendant's modest $3,000 expenditure over a period of two years
did not make it more likely that she had engaged in a single cocaine transaction
during the period for which she had not filed tax returns.2

27

In the case at bar, the government introduced Chandler's tax history

particularly her 1996 return and evidence that she did not file for 1997 and 1998
to demonstrate that her legitimate income was insufficient to explain the
more than $8,200 of cash deposits made to her account over a six-month period
from 1996 to 1997. In reviewing the district court's evidentiary ruling, we
inquire only whether it was within the court's discretion to find that Chandler's
tax information tended to make it more likely that Chandler derived some of
the money in her bank account from her involvement in the distribution of
narcotics. It is difficult to see how the fact that Chandler reported no earned
income during a period in which she made over $8,200 in cash deposits does
not tend to support the government's position. Nor did the court's admission of

such evidence preclude Chandler from introducing evidence to rebut the

government's inference that she obtained the money through her participation in
narcotics transactions. Moreover, even if we are to regard Chandler's non-filing
of tax returns, in combination with her relatively modest cash deposits, as only
marginally probative of whether Chandler was involved in a drug conspiracy,
we cannot say that the District Court abused its discretion in admitting the
evidence.
B
28

The second issue Chandler raises on appeal concerns limits placed by the
District Court upon Chandler's cross-examination of government witnesses. At
trial, Chandler's attorney, Martin Scoratow, attempted to cross-examine
Sylvester about the sentence reduction he had received, and to cross-examine
Kathleen Yearwood about the reduction she hoped to receive, in exchange for
their guilty pleas and cooperation. Mr. Scoratow sought to cast doubt on the
reliability of Sylvester's and Yearwood's testimony by demonstrating to the jury
that they had very compelling reasons to incriminate Chandler. Mr. Scoratow's
efforts in this regard, while not wholly cut off, were substantially restricted.
The question is whether the restrictions imposed by the District Court can fairly
be regarded as within the due exercise of that court's discretion.
Testimony of Sly Sylvester

29

During the course of his direct testimony, Sylvester who had been sentenced
prior to Chandler's trial acknowledged that he was testifying pursuant to a
cooperation agreement between himself and the government. Sylvester said that
he had agreed to plead guilty to charges of selling three ounces of cocaine, to
cooperate with law enforcement agents, and actively to work with them to
identify and apprehend William Baker, the alleged leader of the drug
distribution enterprise.3 In return, the government limited the charges against
him to those associated with the three-ounce cocaine sale, despite the fact that
he admitted to having dealt "about five kilos" of cocaine during the relevant
time period. The government also moved at sentencing to reduce Sylvester's
term of imprisonment for the three-ounce sale below the otherwise applicable
range. Sylvester explained to the jury that although "12- to 18-month[s] was the
statutory time parameters" for the offense to which he had pleaded guilty, he
had received only one month of house arrest and a term of probation. On crossexamination, Sylvester admitted that he could have been charged with
trafficking in much larger quantities of cocaine:

30

Q: Did anyone explain to you what the penalties for five kilos is under the

guidelines?
31

MR RIVETTI: Your Honor, I object to these questions regarding the penalties

for five kilos.

32

THE COURT: Okay. Penalties should not be discussed in the case, I would
agree.

33

MR. SCORATOW: All right.

34

Q: Did they ever well, was it explained to you that it was much more
serious, that the Government actually gave you a break by charging you this
small amount?

35

A: That's a great question because they only had me on three ounces. That's
what they said the terms of this would be 12 to 18. I am not so sure exactly of
your question. Would you want me to say to you that the bigger you sell, the
more you sell, the more penalty? Well, of course.

36

Q: Okay. At the time you sold that three ounces, you had been dealing for
awhile, hadn't you?

37

A: Yes, sir.

38

Later, Sylvester admitted that he had gone to a drug treatment program at the
government's request, even though he did not believe that he was addicted to
cocaine. When Mr. Scoratow asked if that meant Sylvester would "do
anything" to reduce his jail time, however, Sylvester insisted that he would not
lie. Mr. Scoratow also asked if Sylvester was only testifying against Chandler
to avoid reneging on his agreement with the government:

39

Q: Let's talk about that agreement. The final person who put in that you're
honest and truthful is sitting right here, Mr. Rivetti, isn't that correct?

40

A: I'm sorry?

41

Q: The person who put what we call that 5K motion in to Judge Ziegler was
Mr. Rivetti right here?
A: Yes.

42

A: Yes.

43

Q: So he's the arbitrator on if you're truthful or not, right?

44

A: Yes. I would believe so.

45

Q: So if you say what he wants, you're truthful?

46

A: Well

47

Mr. Scoratow: No other questions.

48

A: We are also in a court of law, sir, and you can't perjure yourself no matter
what sentence was put in front of you, no matter what you're supposed to say or
do. And to me that's the bottom line.
Testimony of Kathleen Yearwood

49

Unlike Sylvester, Kathleen Yearwood had not been sentenced before

Chandler's trial. On direct examination, Yearwood testified that she had pled
guilty shortly before Chandler's trial to trafficking in from "15 to 50 kilos" of
cocaine, and had agreed to assist the government in ongoing drug investigations
by, inter alia, wearing a wire during meetings with drug dealers. In return, she
hoped that the government would move for a reduced sentence against her. In
his cross-examination of Yearwood, Mr. Scoratow suggested that her testimony
was influenced by her agreements with the government. For example, after
intimating that co-conspirator Frederick White may have been more culpable
than Chandler, Mr. Scoratow asked Yearwood:

50

Q: But [White] is not on trial, you want to talk about Linda Chandler, is that
correct?

51

A: Right.

52

Q: Because you have an agreement, isn't that correct, and Mr. Rivetti is going
to, you hope, put in a motion to cut your time?

53

A: Yes.

54

...

55

Q: Now you want to help yourself and help because you are in serious
trouble. You were dealing in multikilos. Yes or no?

56

A: I'm 50. No more than 50.

57

Q: No more than 50 in this. But do you think you dealt more than 50?

58

A: No, I don't think so.

59

...

60

Q: How many lie detector tests did the Government put you on?

61

A: None, but they can put me on them.

62

Q: Isn't that in your plea agreement letter?

63

A: Yes, it is.

64

Q: But they haven't, and it's Mr. Rivetti who is going to write that letter to this
Judge to say that you're honest and forthright, so you are going to talk about
Linda Chandler, is that correct?

65

A: No.

66

Q: That's what you are here for today, to talk about Linda Chandler?

67

A: No. I'm here to tell the truth.

68

...

69

Q: And you know that you're here, you're facing a heavy sentence what did
your attorney, Mr. Riester, tell you you're facing?

70

MR. RIVETTI: Your honor, again I object to discussing the penalties here.

71

THE COURT: The objection is sustained. I think the point's been made that she
knows by testifying she might get a reduction.

72

MR. SCORATOW: Okay. No other questions.

73

Chandler contends that, by barring defense counsel from cross-examining

Sylvester and Kathleen Yearwood about the specific benefits they had received
or hoped to receive in exchange for their testimony, the District Court deprived
her of her Sixth Amendment right of confrontation. Principles enunciated by the
Supreme Court in Delaware v. Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89
L.Ed.2d 674 (1986) guide our inquiry:

74

The Confrontation Clause of the Sixth Amendment guarantees the right of an

accused in a criminal prosecution "to be confronted with the witnesses against
him." The right of confrontation, which is secured for defendants in state as
well as federal criminal proceedings, Pointer v. Texas, 380 U.S. 400, 85 S.Ct.
1065, 13 L.Ed.2d 923 (1965), "means more than being allowed to confront the
witness physically." Davis v. Alaska, 415 U.S., at 315, 94 S.Ct., at 1110.
Indeed, "`[t]he main and essential purpose of confrontation is to secure for the
opponent the opportunity of cross-examination.'" Id., at 315-316, 94 S.Ct., at
1110 (quoting 5 J. Wigmore, Evidence 1395, p. 123 (3d ed.1940)). Of
particular relevance here, "[w]e have recognized that the exposure of a witness'
motivation in testifying is a proper and important function of the
constitutionally protected right of cross-examination." Davis, supra, at 316-317,
94 S.Ct., at 1110 (citing Greene v. McElroy, 360 U.S. 474, 496 79 S.Ct. 1400,
1413, 3 L.Ed.2d 1377 (1959)). It does not follow, of course, that the
Confrontation Clause of the Sixth Amendment prevents a trial judge from
imposing any limits on defense counsel's inquiry into the potential bias of a
prosecution witness. On the contrary, trial judges retain wide latitude insofar as
the Confrontation Clause is concerned to impose reasonable limits on such
cross-examination based on concerns about, among other things, harassment,
prejudice, confusion of the issues, the witness' safety, or interrogation that is
repetitive or only marginally relevant.

75

Id. at 678-79, 106 S.Ct. 1431.

76

Governed by these principles, our review of the District Court's decision to

truncate Chandler's cross-examination of Sylvester and Kathleen Yearwood
proceeds in two stages: First, we must determine whether that ruling
significantly inhibited Chandler's effective exercise of her right to inquire into
either witness's "motivation in testifying"; and second, if the District Court's
ruling did significantly inhibit Chandler's exercise of that right, whether the
constraints it imposed on the scope of Chandler's cross-examination fell within
those "reasonable limits" which a trial court, in due exercise of its discretion,
has authority to establish.

77

* In Van Arsdall, the state trial court had barred defense counsel from crossexamining a prosecution witness about the state's agreement to dismiss the
witness's pending drunk-driving charge in exchange for his testimony against
the defendant. The Supreme Court held that by cutting off all inquiry into "an
event ... that a jury might reasonably have found furnished the witness a motive
for favoring the prosecution in his testimony," the trial court's ruling deprived
the defendant of his right to cross-examination secured by the Confrontation
Clause. Van Arsdall, 475 U.S. at 680, 106 S.Ct. 1431. Confrontation Clause
claims, the Court elaborated, should be considered in relation to the potential
effect of the foreclosed cross-examination on the jury's evaluation of a
particular witness. Under the circumstances presented in Van Arsdall, "a
reasonable jury might have received a significantly different impression of [the
witness's] credibility had [defense] counsel been permitted to pursue his
proposed line of inquiry." Id. at 680, 106 S.Ct. 1431.

78

Following Van Arsdall, circuit courts generally have agreed that "[w]hether a
trial court has abused its discretion in limiting the cross-examination of a
witness for bias depends on `whether the jury had sufficient other information
before it, without the excluded evidence, to make a discriminating appraisal of
the possible biases and motivation of the witnesses.'" Brown v. Powell, 975
F.2d 1, 4 (1st Cir.1992) (quoting United States v. Tracey, 675 F.2d 433, 437
(1st Cir.1982)). See also United States v. Luciano-Mosquera, 63 F.3d 1142,
1153 (1st Cir.1995) (adopting the "discriminating appraisal" formulation);
United States v. Graham, 83 F.3d 1466, 1475 (D.C.Cir.1996) (same); United
States v. Salameh, 152 F.3d 88, 131 (2nd Cir.1998) (same); United States v.
Ward, 211 F.3d 356, 363 (7th Cir.2000) (same); United States v. Turner, 198
F.3d 425, 429 (4th Cir.1999) (To prohibit the cross-examination of a
prosecution witness "on relevant evidence of bias and motive may violate the
Confrontation Clause, if the jury is precluded from hearing evidence from
which it could appropriately draw adverse inferences on the witness's
credibility.") With respect to the cross-examination of cooperating witnesses
who expect to obtain, or have obtained, a benefit from the government in
exchange for their testimony, the "critical question ... is whether the defendant
is allowed an opportunity to examine a witness [sic] `subjective understanding
of his bargain with the government,' `for it is this understanding which is of
probative value on the issue of bias.'" United States v. Ambers, 85 F.3d 173,
176 (4th Cir.1996) (quoting Hoover v. State of Maryland, 714 F.2d 301, 305,
306 (4th Cir.1983)).

79

Uncertainty remains, however, over whether the Confrontation Clause

guarantees to defendants the opportunity to cross-examine their alleged former
co-conspirators-turned-prosecution-witnesses about the specific penalty

reduction that they believed they would obtain, or that they did obtain, through
their cooperation. Some courts of appeals have suggested that a trial court can
secure to a defendant the "minimal constitutional threshold level of inquiry,"
Luciano-Mosquera, 63 F.3d at 1153, by permitting her to inquire whether a
prosecution witness has received some type of benefit from the government in
exchange for her testimony, even while precluding the jury from learning the
"actual number of years" a witness believes she would have faced absent her
cooperation. United States v. Cropp, 127 F.3d 354, 359 (4th Cir.1997). The
First Circuit's analysis in Brown v. Powell captures this position. In that case, a
prosecution witness who originally had been charged, as a co-conspirator with
the defendant, with first degree murder (carrying a maximum sentence of life
without parole) entered into an agreement with the government under which, in
exchange for his testimony against the defendant, he was allowed to plead
guilty to manslaughter (carrying a sentence of fifteen to thirty years). The trial
court prohibited the defense from asking the witness about his understanding of
the maximum penalty for first degree murder that is, the penalty he avoided
through his cooperation and permitted only testimony that the witness's
sentence of fifteen to thirty years reflected a reduction. 975 F.2d at 4.
Upholding the ruling of the trial court, the First Circuit wrote:
80

The issue here is whether the trial court abused its discretion and committed
constitutional error when it prevented the jury from hearing the potential
penalty Warner [the witness/co-conspirator] avoided by pleading out of a firstdegree murder charge.... The jury at petitioner's trial was clearly given
sufficient information from which it could conclude that ... the accomplice ...
had a substantial motivation to testify against petitioner and lie.... [T]he jury
could have inferred that by pleading guilty to manslaughter and receiving a
sentence of 15 to 30 years, Warner had avoided a significantly harsher penalty
than if he had been tried and convicted.... The jury had more than sufficient
information to conclude that Warner had a strong incentive to lie in order to
receive a lesser sentence.

81

Id. at 5.

82

In contrast, other appellate courts have held that the Confrontation Clause
guarantees to defendants the right to inform the jury not only that a witness/coconspirator received or might receive prosecutorial leniency in exchange for his
testimony, but also the "concrete details of the agreement [the witness] made
with the government." Hoover, 714 F.2d at 303. In Hoover, an accompliceturned-government-witness revealed during direct examination that he had
received a "grant of immunity from prosecution" for murder in exchange for his
testimony against a murder defendant. Id. When defense counsel repeatedly

sought to inquire on cross-examination whether, as a result of his agreement

with the government, the witness also expected the prosecutor to intervene on
his behalf in other, apparently unrelated, pending criminal matters, the trial
judge upheld the prosecutor's objections. The Fourth Circuit concluded that the
trial court's "sustained and effective refusal to permit inquiry into [the
witness's] subjective understanding of his bargain with the government stepped
beyond the constitutional bounds of the trial court's discretion, and abridged the
fundamental right to confront adverse witnesses secured to [the defendant] by
the fourteenth amendment." Id. at 306. The court explained:
83

The trial judge may limit such cross-examination only to preserve the witness'
constitutional immunity from self-incrimination, to prevent attempts to harass,
humiliate or annoy him, or where the information sought might endanger the
witness' personal safety. When such factors are not present, substantial
limitations on the attempts of a defendant to undermine as biased a witness'
testimony constitute constitutional error.

84

...

85

The trial judge's traditional discretion to control the limits of cross-examination

cannot be exercised until the constitutionally required threshold level of inquiry
has been afforded the defendant. Moreover, any exercise of discretion once that
threshold is reached must be informed by the utmost caution and solicitude for
the defendant's Sixth Amendment rights.

86

Id. For the Hoover court, in other words, even informing the jury that a witness
had received immunity from prosecution from murder in exchange for his
testimony fell short of satisfying the "constitutionally required threshold of
inquiry" sufficient for the jury to evaluate that witness's potential bias and
motive to lie. See also United States v. Tracey, 675 F.2d 433, 438 (1st
Cir.1982) ("Especially where the witness is an accomplice of the defendant or
may have some other substantial reason to cooperate with the government, the
defendant should be permitted wide latitude in the search for the witness'
bias."); Burr v. Sullivan, 618 F.2d 583, 587 (9th Cir.1980) (same).

87

The circumstances of the present case do not require us to resolve whether the
Confrontation Clause entitles a defendant categorically to inquire into the
"concrete terms" of a cooperating witness's agreement with the government,
including the specific sentence that witness may have avoided through his
cooperation. Rather, we need only decide whether, if the trial court had not
prohibited Chandler from cross-examining Sylvester and Kathleen Yearwood

with respect to the magnitude of the sentence reduction they believed they had
earned, or would earn, through their testimony, the jury might have "received a
significantly different impression of [their] credibility." Van Arsdall, 475 U.S.
at 680, 106 S.Ct. 1431.
88

Sly Sylvester testified on direct examination to having sold roughly five

kilograms of cocaine. Under 2D.1(c)(5) of the 2001 Sentencing Guidelines,
the base offense level of a defendant convicted of trafficking in "[a]t least 3.5
KG but less than 5 KG of Cocaine," is 30, which translates into a prison
sentence of between 97 and 121 months. Sylvester testified that, under his
agreement with the government, he was permitted to plead guilty to selling only
three ounces of cocaine, a base level offense of 16, for which he was subject to
21 to 27 months in prison under the Guidelines. (The range to which Sylvester
referred during cross-examination 12 to 18 months presumably reflected
a three-point reduction he had received for acceptance of responsibility and
timely notification of his intent to plead guilty.) On cross-examination,
Sylvester further acknowledged that, pursuant to his plea agreement, the
government had filed a 5K.1.1 motion urging a downward departure, the
eventual result of which was that Sylvester was sentenced to one month of
house arrest, plus probation.

89

Kathleen Yearwood testified that she had pled guilty to trafficking in from "15
to 50 kilos" of cocaine, an offense which, under 2D.1.1(c)(3) of the
Guidelines, yields a base offense level of 34. This means that Yearwood was
subject to a sentence of between 151 and 188 months. Before the trial judge
precluded defense counsel from inquiring into the specifics of her hoped-for
benefit, Yearwood testified that she expected the government to move for a
downward departure in exchange for her cooperation.

90

In light of these facts, we have little difficulty concluding that a reasonable jury
could have "reached a significantly different impression" of Sylvester's and
Yearwood's credibility had it been apprised of the enormous magnitude of their
stake in testifying against Chandler. With respect to Sylvester, the jury learned
only that he pled guilty to an offense carrying a sentence of between 12 and 18
months, that he could have been charged with a greater offense, and that he
received only one month of house arrest, plus probation. The jury would have
had little reason to infer from that information that Sylvester's cooperation with
the government might have meant the difference between more than eight years
in prison, on the one hand, and the modest sentence he in fact received, on the
other. The limited nature of Sylvester's acknowledgment that he had benefitted
from his cooperation made that acknowledgment insufficient for a jury to
appreciate the strength of his incentive to provide testimony that was

satisfactory to the prosecution. Similarly, if Yearwood, facing a sentence under

the Guidelines of upwards of twelve years, anticipated a benefit equal to even a
fraction of Sylvester's proportionate penalty reduction, her mere
acknowledgment that she hoped that the government would move for a lesser
sentence did not adequately enable a jury to evaluate her motive to cooperate.
91

A criminal defendant "states a violation of the Confrontation Clause by

showing that he was prohibited from engaging in otherwise appropriate crossexamination designed to show a prototypical form of bias on the part of the
witness, and thereby `to expose to the jury the facts from which jurors ... could
appropriately draw inferences relating to the reliability of the witness.'" Van
Arsdall, 475 U.S. at 680, 106 S.Ct. 1431 (citing Davis v. Alaska, 415 U.S. 308,
318, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974)). Chandler has made just such a
showing. In Van Arsdall, moreover, the Supreme Court found that the trial
court's foreclosure of inquiry into a relatively modest benefit dismissal of a
pending drunk-driving charge was sufficient to support the conclusion that
the court had withheld information necessary for the jury to make a
"discriminating appraisal" of the witness's "possible biases and motivation."
Sylvester received a benefit of far greater magnitude through his cooperation.
Yearwood presumably hoped for similar treatment. For these reasons, we
conclude that Chandler was barred from cross-examining Sylvester and
Yearwood about facts which would have borne directly on the jury's
consideration of the weight, if not the fact, of their motive to testify as they did
facts, that is, which would have underscored dramatically their interest in
satisfying the government's expectations of their testimony.

2
92

Having found that the District Court's curtailment of Chandler's inquiry into the
specifics of Sylvester's and Yearwood's agreements with the government
significantly curtailed Chandler's ability to inquire into two key government
witnesses' "motivation for testifying," we now turn to the question of whether
that ruling nevertheless fell within the District Court's discretion to impose
"reasonable limits" on a defendant's right of cross-examination. The
government contends that its asserted interest in restricting Chandler's inquiry
its desire to prevent the jury from inferring the sentence to which the
defendant could be exposed were she found guilty warranted the District
Court's ruling limiting cross-examination. While we appreciate the
government's interest in withholding information that potentially could induce a
jury to "nullify" the federal law that Chandler was alleged to have violated, we
find that such an interest is outweighed by Chandler's constitutional right to
confront Sylvester and Yearwood.

93

The Supreme Court's decision in Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105,
39 L.Ed.2d 347 (1974), governs our analysis. In Davis, the Court reviewed a
state trial judge's ruling prohibiting the defendant from cross-examining a key
prosecution witness about his status as a juvenile probationer. Defense counsel
sought to reveal that "at the same time that Green [the witness] was assisting
the police in identifying petitioner he was on probation for burglary," with the
intention of arguing that the witness was testifying both "out of fear or concern
of possible jeopardy to his probation," and because he was a potential suspect,
Davis, 415 U.S. at 311, 94 S.Ct. 1105. The trial court foreclosed the inquiry.
The prosecution maintained that the ruling was warranted because the state's
"important interest in protecting the anonymity of juvenile offenders ...
outweighs any competing interest this petitioner might have in cross-examining
[the witness] about his being on probation." Id. at 319, 94 S.Ct. 1105.

94

The Court, speaking through Chief Justice Burger, expressly rejected that
argument, announcing that "the right of confrontation is paramount to the
State's policy of protecting a juvenile offender." Id. Whatever harm is done to
the interests of the witness or the state, the Court explained, "is outweighed by
petitioner's right to probe into the influence of possible bias in the testimony of
a crucial identification witness," and for that reason "must fall before the right
of petitioner to seek out the truth in the process of defending himself." Id. The
state's asserted interest, the Court concluded, "cannot require yielding of so vital
a constitutional right as the effective cross-examination for bias of an adverse
witness." Id. at 320, 94 S.Ct. 1105.

95

We conclude that, while the government had a valid interest in keeping from
the jury information from which it might infer Chandler's prospective sentence
were she to be convicted, that interest did not trump Chandler's entitlement
under the Confrontation Clause. That interest, like the state's interest in
protecting the anonymity of juvenile offenders, had to yield to Chandler's
constitutional right to probe the "possible biases, prejudices, or ulterior motives
of the witnesses" against her. Id. at 316, 94 S.Ct. 1105. We therefore decline to
adopt the reasoning of the cases relied on by the government, see LucianoMosquera, 63 F.3d at 1153; Cropp, 127 F.3d at 359, insofar as they hold that
"information about the precise number of years" a witness believes the he
would have faced absent his cooperation with the government is commonly
"outweighed by the potential prejudice [of] having the jury learn what penalties
[a] defendant [is] facing." Luciano-Mosquera, 63 F.3d at 1153.

3
96

Having determined that Chandler was deprived of an adequate opportunity to

cross-examine Sylvester and Yearwood, we must next inquire whether the

District Court's error is one that requires reversal. We are again guided by Van
Arsdall. Citing its earlier decision in Chapman v. California, 386 U.S. 18, 87
S.Ct. 824, 17 L.Ed.2d 705 (1967), the Van Arsdall Court held that when it has
been established that a defendant's right to confront adverse witnesses was
infringed by excessive limits on cross-examination, the reviewing court must
then determine whether the error was harmless. See Van Arsdall, 475 U.S. at
684, 106 S.Ct. 1431. The Court explained:
97

The correct inquiry is whether, assuming that the damaging potential of the
cross-examination were fully realized, a reviewing court might nonetheless say
that the error was harmless beyond a reasonable doubt. Whether such an error is
harmless in a particular case depends upon a host of factors, all readily
accessible to reviewing courts. These factors include the importance of the
witness' testimony in the prosecution's case, whether the testimony was
cumulative, the presence or absence of evidence corroborating or contradicting
the testimony of the witness on material points, the extent of cross-examination
otherwise permitted, and, of course, the overall strength of the prosecution's
case. Cf. Harrington [v. California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23
L.Ed.2d 284 (1969)], Schneble v. Florida, [405 U.S. 427, 432, 92 S.Ct. 1056,
31 L.Ed.2d 340 (1972)].

98

Id.

99

After reviewing the record in this case, we cannot say that the District Court's
error was harmless beyond a reasonable doubt. Several facts lead us to this
conclusion. First, although Kathleen Yearwood and Sly Sylvester were not the
only witnesses who testified against Chandler, they were important to the
government's case. Of the government's nine witnesses,4 three were law
enforcement officers: Pennsylvania narcotics agent David Nale, Special Agent
Charles Dahlmann of the U.S. Treasury, and Moon Township police officer
Douglas Busch. Although their investigation had involved surveillance,
fingerprint evidence, garbage searches, undercover drug purchases, and the use
of informants who recorded conversations among the co-conspirators, none of
these three could supply any direct evidence of Chandler's involvement in drug
trafficking, the offense of which Chandler was found guilty. Nor did William
Yearwood and Annette Yearwood, both of whom could testify only that Linda
Chandler, along with others, was present in their house when drug transactions
took place, provide such evidence. The testimony of the remaining coconspirators Baker, White, Sylvester and Kathleen Yearwood therefore
was essential in showing that Chandler was criminally involved. All four
testified pursuant to plea agreements, and, as Mr. Scoratow attempted to show,

all had motives to implicate Chandler. Mr. Scoratow also showed the jury that
several of the co-conspirators had provided testimony inconsistent with their
prior representations. For example, although Baker testified at Chandler's trial
that he had never used cocaine, earlier he told probation officers that he had a
cocaine "problem." Because so much depended on the credibility of the
cooperating witnesses, additional information about their motives in testifying
might have proven decisive. In light of these facts, we lack "a sure conviction"
that the District Court's limitations on cross-examination "did not prejudice the
defendant"; nor can we say that it is "`highly probable' that the district court's
errors did not contribute to [the] jury's judgment of conviction." Casoni, 950
F.2d at 902 (citations omitted). Accordingly, we will reverse and remand for a
new trial.

Notes:
*

Honorable Louis H. Pollak, District Judge for the United States District Court
for the Eastern District of Pennsylvania, sitting by designation

Teodora Yearwood, who was the third co-conspirator indicted along with
Chandler, did not appear as a witness in Chandler's trial

Further, it should be noted that it does not appear from the Sixth Circuit's
opinion inCarter that the trial court in that case gave the jury any limiting
instruction directing the jury's attention to the limited pertinence of the tax
return evidence. In the case at bar, after Chandler testified on direct
examination about her tax history, the District Court instructed:
[T]his is not a tax case. The Defendant in this case, Ms. Chandler, is not
charged with any violation of the Internal Revenue Code. You are to consider
the evidence provided by this witness only in relation to the charges filed
against the Defendant, and that is a conspiracy to distribute cocaine and a
money laundering charge. This is not a tax case, she is not charged with any
violation of the Internal Revenue Code, and you should not consider the
evidence in light of that. You should only consider it as it relates to the charges
filed against her in this case.

Sylvester made phone calls to Baker that were recorded by the agents, wore a
microphone during personal meetings with Baker, and purchased six ounces of
cocaine from Baker at the direction of the agents

In order of their appearance, the government's nine witnesses were (1) Moon
Township police officer Douglas Busch, (2) Pennsylvania narcotics agent

David Nale, (3) Sly Sylvester, (4) William Baker, (5) Frederick White, (6)
William Yearwood, (7) Annette Yearwood, (8) Kathleen Yearwood, and (9)
Special Agent Charles Dahlmann of the U.S. Treasury
100 ROTH, Circuit Judge, dissenting.
101 The Majority's decision to remand this case for a new trial is based on only two
questions. The District Court excluded both questions when the government
objected to them. The first question, asked by defense counsel to Sly Sylvester,
was
102 Q. Did anyone explain to you what the penalties for five kilos is under the
guidelines?
103 MR. RIVETTI: Your Honor, I object to these questions regarding the penalties
for five kilos.
104 THE COURT: Okay. Penalties should not be discussed in the case, I would
agree.
105 The second question, asked by defense counsel to Kathleen Yearwood, was
106 Q. And you know that you're here, you're facing a heavy sentence what did
your attorney, Mr. Reister, tell you you're facing?
107 MR. RIVETTI: Your Honor, again I object to discussing the penalties here.
108 THE COURT: The objection is sustained. I think the point's been made that she
knows by testifying she might get a reduction.
109 Both questions are addressed to the specific penalty to be imposed for a
particular offense either the offense with which the witness was charged or
the offense with which the witness could have been charged if the government
had not charged him with a lesser offense in return for testifying against his coconspirators.
110 As established in Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431,
89 L.Ed.2d 674 (1986), cited by the Majority, the District Court, when it limits
cross-examination, should consider the potential effect of the foreclosed crossexamination on the jury's evaluation of the witness. Here, defense counsel had

cross-examined Sylvester and Yearwood about their cooperation agreements

with the government and the benefits each hoped to get as a result of testifying
against Chandler, including the benefit Sylvester received by being charged
with dealing only in 3 ounces of cocaine, rather than in five kilograms. I believe
that, as a consequence of the decision in this case, a district judge in the future
will have to conclude that, if a cooperating witness has been cross-examined
about the benefits of his or her bargain with the government and defense
counsel wants to go further to inquire about the specific penalty which could
have been imposed on that witness, the question must be permitted. I consider
such a limitation on the District Court's wide discretion in controlling crossexamination to be unwarranted.
111 First, it is well recognized that, when cross-examination has presented a
sufficient opportunity to expose witness bias, there is very little probative value
in a question about the precise sentence which the witness might face. See
United States v. Luciano-Mosquera, 63 F.3d 1142, 1153 (1st Cir.1995). In such
circumstances, the District Court may properly limit cross-examination to
preclude testimony about the penalty which might be imposed. Id.; see also
Brown v. Powell, 975 F.2d 1, 5 (1st Cir.1992);5 United States v. Ambers, 85
F.3d 173, 176 (4th Cir.1996); United States v. Cropp, 127 F.3d 354, 359 (4th
Cir.1997). My review of the record here convinces me that both Sylvester's and
Yearwood's motives, in testifying to obtain benefits from the government for
their cooperation, had been spelled out to the jury by cross-examination. At that
point, there comes into play the discretion which is accorded to the District
Judge to control the extent of cross-examination. See United States v. Casoni,
950 F.2d 893, 918-19 (3d Cir.1992). The Court of Appeals should not second
guess the decision, either to admit the question on exact penalty or to exclude it.
Indeed, I do not have to agree with the trial judge's decision to admit or exclude
in order to acknowledge that that decision is permitted within the allowed scope
of discretion.
112 Moreover, there are well-recognized reasons to exclude testimony on the exact
penalty a cooperating witness might face. When the defendant on trial has
committed offenses similar to those committed by a cooperating witness, the
impact of the extent of the potential penalty may deter the jury from making a
finding of guilt. See Cropp, 127 F.3d at 358-59. Furthermore, the difficulty
under the U.S. Sentencing Guidelines of estimating what the ultimate penalty
may be has discouraged trial courts from opening up the subject. See Ambers,
85 F.3d at 176-77.
113 In arriving at the decision that Chandler was deprived of an adequate
opportunity to cross-examine Sylvester and Kathleen Yearwood, the majority

concludes that Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347
(1974) governs its analysis. In Davis, the trial court had prohibited the
defendant from cross-examining a key prosecution witness about his status as a
juvenile probationer. The Supreme Court held that the defendant should not
have been precluded from probing the witness's possible bias in testifying. Id. at
319, 94 S.Ct. 1105. I find, however, that Davis is distinguishable from the
present case in that here the defendant was permitted to probe the existence of
bias in the expectation of both Sylvester and Kathleen Yearwood that their
testimony would result in a lesser punishment for them. The complaint here is
not that the probing of bias was prohibited entirely but that the extent of the
probing was limited. From my review of the record, I conclude that this
limitation was permissible under Van Arsdall and that Davis does not speak to
the crucial issue before us of the limitation, rather than the prohibition, of crossexamination which is aimed at probing bias.
114 Finally, even if cross-examination as to the exact penalty that might be imposed
on Sylvester and Kathleen Yearwood should have been permitted, I would
nevertheless affirm Chandler's conviction because, in light of the extensive
evidence against her, the error was harmless. For example, included in the
testimony given by government witnesses, but not mentioned by the Majority,
was the fact that Chandler made repeated deposits into a bank account of large
amounts of cash, totaling over $8,000, when she had no legitimate source for
these funds. In addition, Kathleen Yearwood's sister, Annette, testified that she
overheard Chandler and Kathleen discussing cocaine trafficking activities and
that "more than a few times" when Chandler and other co-conspirators were in
Annette's New York apartment, Annette saw "lots of money" on the kitchen
table and once or twice she saw packaged drugs. I believe that both of these
examples give direct evidence of Chandler's involvement in drug trafficking.
Therefore, unlike the Majority, I cannot conclude that the limitation of crossexamination contributed to the jury's judgment of conviction.
115 For the above reasons, I respectfully dissent from the Majority's conclusion that
Chandler's judgment of conviction should be reversed.

Notes:
5

Judge Pollak, the author of the Majority's decision here, dissented inBrown on
the ground that the defendant was not afforded "the constitutionally required
threshold level of inquiry" if the exact penalty he escaped by cooperating with
the government was not disclosed to the jury. Id. at 221.