Limitations on Cross-Examination of Cooperating Co-Conspirators as Sixth Amendment Violation? (11/19/16)

In United States v. Williams, 2016 U.S. App. LEXIS 20215 (11th Cir. 2016) (unpublished), here. the defendant was convicted for "conspiracy to defraud the United States, wire fraud, aggravated identity theft, and wrongful disclosure of identifiable health information"

Briefly stated, Williams's convictions stem from her involvement in a conspiracy to file fraudulent tax returns. Through her employment as a receptionist at a doctor's office, Williams had regular access to patients' personal identifiable information. In furtherance of the conspiracy, Williams stole patient information to be used in [*2]  preparing fraudulent income tax returns and directed the tax refund checks to be mailed to Williams's current and former addresses.

The defendant raised several arguments on appeal.  I focus here on the first argument, that the trial court's limitations upon her attorney's ability to cross-examine cooperating co-conspirators violated her Sixth Amendment confrontation rights.  I do this principally to call readers' attention to a significant split in the Circuits on that issue and that failure to properly preserve the issue at trial can permit the appellate court to review under the plain error standard to avoid deciding the issue, as it did in this case.  I quote the entire section of the opinion on this issue:

On appeal, Williams first contends that the district court violated her Sixth Amendment confrontation rights by limiting her ability to cross-examine cooperating co-conspirators -- those who had agreed to testify for the government - - about the specific sentences they avoided or hoped to avoid by testifying against Williams. 

Because Williams raised no objection to the district court's ruling at trial and, instead, raises this argument for the first time on appeal, we review only for plain error. See United States v. Sosa, 777 F.3d 1279, 1294 (11th Cir. 2015). To demonstrate plain error, Williams "must show that there is (1) error, (2) that is plain, (3) that affects substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings." See id. (quotation omitted). 

A criminal defendant has a right, under the Sixth Amendment, to confront witnesses against him. U.S. Const. amend. VI. "The main and essential purpose of confrontation is to secure for the defendant the opportunity of cross-examination." United States v. Baptista-Rodriguez, 17 F.3d 1354, 1366 (11th Cir. 1994) (alteration omitted). Still, a "defendant's right to cross-examine witnesses is not without limitation." Id. "Trial   judges retain wide latitude to impose reasonable limits on cross-examination based on concerns about, among other things, confusion of the issues or interrogation that is repetitive or only marginally relevant." Id. at 1370-71. 

The district court committed no plain error in limiting Williams's cross-examination of the government's cooperating witnesses. Williams concedes on appeal that the circuit courts are split on this issue. n1 Given the disagreement among the circuits on this issue and the absence of controlling precedent from the Supreme Court or from this Court, Williams can demonstrate no plain error. See United States v. Chau, 426 F.3d 1318, 1322 (11th Cir. 2005) (because an error is "plain" only if the error is "clear under current law," it follows that "there can be no plain error where there is no precedent from the Supreme Court or this Court directly resolving it.").
   n1 The First, Second, Fourth, Seventh, and Eighth Circuits have held that a district court's limitation on a defendant's ability to cross-examine cooperating co-conspirators constitutes no violation of the Confrontation Clause. Meanwhile, the Third, Fifth, and Ninth Circuits have made the opposite conclusion. For background, see United States v. Dimora, 843 F. Supp. 2d 799, 842-44 (N.D. Ohio 2012) (collecting cases).