United States v. Willie Henry WIlliams , 181 F. App'x 805 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
May 17, 2006
No. 05-15140 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00014-CR-4-RH
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIE HENRY WILLIAMS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(May 17, 2006)
Before DUBINA, HULL and WILSON, Circuit Judges.
PER CURIAM:
Willie Henry Williams appeals his convictions and 168-month sentences for
distribution and possession with intent to distribute crack cocaine, in violation of
21 U.S.C. §§ 841(a), (b)(1)(B)(iii), (b)(1)(C), and 851. Williams’s conviction was
based on four sales of crack cocaine to a confidential informant (“CI”), and on
crack cocaine seized at his house during the execution of a search warrant. On
appeal, Williams argues that the district court abused its discretion in sustaining
objections to several cross-examination questions put by Williams’s counsel to an
investigating officer regarding the CI’s drug use. Williams also contends that the
district court erred in overruling his objection to the U.S. Sentencing Guidelines
Manual (“Guidelines”) calculation, because the government engaged in sentence
manipulation when it did not arrest him after his second drug transaction. We
affirm Williams’s convictions and sentences.
I.
“In all criminal prosecutions, the accused shall enjoy the right . . . to be
confronted with the witnesses against him . . . .” U.S. Const. amend. VI. The
primary purpose of the Confrontation Clause “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 in original). “The Confrontation Clause is
satisfied when the defense is given a full and fair opportunity to probe and expose .
. . infirmities through cross-examination, thereby calling to the attention of the
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factfinder the reasons for giving scant weight to the witness’ testimony.” Dorsey v.
Chapman, 262 F.3d 1181, 1188 (11th Cir. 2001) (internal quotes omitted)
(omission in original). Indeed, we have emphasized that the Confrontation Clause
“only guarantees an opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to whatever extent, the
defense might wish.” Id. (internal quotes omitted). Trial judges have discretion to
impose reasonable limits on cross-examination due to “‘concerns about, among
other things, harassment, prejudice, confusion of the issues, the witness’ safety, or
interrogation that is repetitive or only marginally relevant.’” Baptista-Rodriguez,
17 F.3d at 1366 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct.
1431, 1435, 89 L. Ed. 2d 674 (1986)). Ultimately, a defendant establishes a
Confrontation Clause violation “by showing that he was prohibited from engaging
in otherwise appropriate cross-examination 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. at 1436 (internal quotes
omitted). We review restrictions on cross-examination for abuse of discretion.
Baptista-Rodriguez, 17 F.3d at 1370-71.
Williams contends that his confrontation rights were violated when, during
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his trial, the district court sustained government objections to five of his counsel’s
cross-examination questions as “argumentative.” According to Williams, the
district court’s actions essentially prevented his counsel from impeaching the
credibility of the CI, and thereby “irreparably damaged” Williams’s entrapment
defense. We disagree. First of all, a review of the record indicates that the
questions at issue were argumentative, i.e., “interpos[ing] a viewpoint under the
guise of asking a question.” Black’s Law Dictionary 114 (8th ed. 2004).1 Several
of our sister circuits have found no abuse of discretion where a court limited cross-
examination in similar situations. See United States v. Tansley, 986 F.2d 880, 886
(5th Cir. 1993) (no confrontation violation where limitations on cross-examination
“were made after the questioning became redundant and argumentative and most
times only peripherally relevant”); United States v. Carter, 973 F.2d 1509, 1516-17
(10th Cir. 1992) (no abuse of discretion where cross-examination question
“bordered upon being both argumentative and a comment on the evidence”);
United States v. Osorio, 929 F.2d 753, 760 (1st Cir. 1991) (no confrontation
violation where the “questions put by defense counsel as to which objections were
1
For example, Williams’s counsel asked the government’s lead investigator, Tonja Bryant-
Smith, for the number of times that the Florida Department of Law Enforcement (“FDLE”) drug-
tested the CI during its investigation of Williams. Bryant-Smith responded: “We don’t drug-test
any of our informants. It’s just not something we do. I’ve been there three years, and we’ve never
drug-tested any informants.” Williams’s counsel replied: “You don’t want to test them?” At this
point the government objected to counsel’s question as argumentative, and the district court
sustained the objection.
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sustained were largely argumentative, and essentially called upon [the witness] to
give his own opinion concerning the truthfulness of another witness’s testimony”);
cf. United States v. Rubin, 733 F.2d 837, 841 (11th Cir. 1984) (“The district court
also acted correctly in sustaining defense counsel’s argumentative, redundant and
sometimes speculative questions.”). Second, the district court’s actions in
sustaining five objections did not deprive Williams of a full and fair opportunity,
through cross-examination, “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. at 1436. The record shows that Williams’s
counsel had the opportunity–and was in fact able–to elicit plenty of factual
testimony from which the jury could draw inferences (and counsel could argue)
against the CI’s credibility and the propriety of the government’s investigation.2
Accordingly, we find no abuse of discretion.3
II.
Williams also asserts that he was a victim of “sentencing entrapment,”
2
In closing arguments, for example, Williams’s counsel suggested that FDLE’s decision not
to test the CI for drug use was a “don’t ask, don’t tell” approach intended to avoid eliciting any
information that might tend to undermine the CI’s credibility at trial. Counsel also pointed to the
CI’s status as a paid informant to suggest a financial motive on the CI’s part for participating in
entrapment.
3
We likewise reject Williams’s assertion, based on the same arguments, that the district’s
court’s decision to sustain the government’s five objections essentially deprived Williams of
effective assistance of counsel.
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because the government could have arrested him after the second drug transaction
underlying his convictions, but instead continued to conduct several additional
controlled buys, thereby increasing the Guidelines range applicable to Williams.
In the wake of United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L.
Ed. 2d 621 (2005), we review sentences for reasonableness, with the Guidelines
considered to be advisory. United States v. Talley, 431 F.3d 784, 785 (11th Cir.
2005) (per curiam). Booker did not, however, alter our review as to the application
of the Guidelines. See id. at 786 (explaining that district court must still calculate
the Guidelines range correctly and consider the factors set forth in 18 U.S.C.
§ 3553(a)). Thus, we review a district court’s application of the Guidelines de
novo and its findings of fact for clear error. United States v. Baker, 432 F.3d 1189,
1253 (11th Cir. 2005), cert. denied, 74 U.S.L.W. 3586 (U.S. Apr. 17, 2006) (No.
05-9687).
Although Williams claims the government engaged in “sentencing
entrapment,” that term denotes “[a] claim that a defendant, although predisposed to
commit a minor or lesser offense, is entrapped into committing a greater offense
subject to greater punishment.” United States v. Sanchez, 138 F.3d 1410, 1414
(11th Cir. 1998) (internal quotes omitted). Given that Williams’s argument
focuses not on his predisposition, but rather on the government’s conduct in
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continuing to pursue controlled buys, Williams’s claim is better described as one of
“sentencing factor manipulation” (or “sentencing manipulation”). See id. (“While
sentencing entrapment focuses on the defendant’s predisposition, sentencing factor
manipulation focuses on the government’s conduct.”). A claim of sentencing
manipulation “requires us to consider whether the manipulation inherent in a sting
operation, even if insufficiently oppressive to support an entrapment defense, . . .
or due process claim, . . . must sometimes be filtered out of the sentencing
calculus.” Id. (internal quotes omitted). Even before Booker, however, we had not
decided whether sentencing manipulation was a valid defense or basis for
downward departure. See id.; United States v. Govan, 293 F.3d 1248, 1251 (11th
Cir. 2002) (per curiam).
Assuming that Williams can invoke a sentencing manipulation defense, he
has nevertheless failed to show that it is applicable here. Williams argues that,
because the government vouched for the credibility of the CI, the only reason
additional controlled buys were conducted was to enhance Williams’s liability
under the Guidelines. At sentencing, however, the district court noted that multiple
controlled buys strengthened the prosecution’s case, and stated:
The reason that there were several transactions here is not that the
government was trying to increase the sentence. The reason there
were several transactions here is that Mr. Williams was willing to
engage in those transactions. The amount of drugs he’s held
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accountable for in this presentence report doesn’t overstate the
seriousness of the offense. If anything, it’s the other way around.
This is only a portion of the drugs that Mr. Williams was engaged in
dealing on an ongoing basis.
Furthermore, we rejected a similar claim of sentencing manipulation in Govan.
See 293 F.3d at 1251 (“Making four purchases instead of just one in this case is no
more manipulative than the government in Sanchez setting in motion a fictitious
sting operation involving a large quantity of drugs instead of a small one.”). As we
stated in Govan, “there is nothing wrong with the government attempting to
strengthen its case for conviction.” Id.III.
Upon our review of the parties’ briefs and the record, we find that the district
court did not abuse its discretion in sustaining objections to certain cross-
examination questions posed by Williams’s counsel, and that the district court did
not err in rejecting Williams’s claim of sentencing manipulation. Accordingly, we
affirm Williams’s convictions and sentences.
AFFIRMED.
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