Whether the admission of law enforcement testimony that goes to whether a defendant was a participant in a conspiracy based on information provided by informants who did not testify and which the defendant had no ability to cross examine violates the rule of Crawford

QUESTIONS PRESENTED This case presents an important issue concerning the proper application of this Court’s holding in Crawford v. United States, 541 U.S. 36 (2004) which held that a defendant has a Sixth Amendment right to confront witnesses whose testimony is used against him at a trial through cross-examination and that this right cannot be overcome by application of an evidentiary rule which otherwise permits the introduction of hearsay evidence. Keith Harris argued below that the Sixth Amendment and the holding of Crawford was violated when the government introduced the testimony of law enforcement officials that Harris was a participant and the subject of various calls that were intercepted during a wiretap investigation when this identification of Harris was based on information provided to law enforcement by informants that he had no ability to cross examine. Agreeing that Harris’ Sixth Amendment rights were violated by the introduction of this evidence, dissenting Judge Ambro of the United States Court of Appeals for the Third Circuit commented that a Sixth Amendment violation clearly occurred here as government agents at trial identified Keith Harris as a participant in the conspiracy and as a party and subject of intercepted telephone conversations based upon information provided “through informants and local law enforcement.” Addendum A, dissent at 11 (emphasis in Judge Ambro’s dissent). Ignoring the holding of Crawford, the majority of the Court of Appeals, concluded, however, that no Sixth Amendment violation occurred. This petition i thus addresses the specific question: whether the admission of law enforcement testimony that goes to whether a defendant was a participant in a conspiracy based on information provided by informants who did not testify and which the defendant had no ability to cross examine violates the rule of Crawford. In a related fashion, this case presents a question regarding the extent to which Rule 701 of the Federal Rules of Evidence permits law enforcement witnesses to offer opinion testimony as to the participation of a defendant in a crime, specifically: whether the government’s case agents may give lay opinion testimony as to the essential elements of the charged conspiracy and the defendant’s membership therein without providing any foundation beyond generally describing the scope of the investigation, i.e., their use of wiretaps, surveillance and witnesses consistent with Rule 701 of the Federal Rules of Evidence? Finally, this case presents an important issue concerning the trial court’s interference in the representation of the defendant during the course of a trial. During the trial, the trial court ordered trial counsel to refrain from discussing with his client, Keith Harris, when certain government witnesses were going to testify after the government requested that such an order issue, the government advising the court that the witnesses in question were the subject of harassment prior to the trial and insinuating that the Defendant and/or his codefendants were involved in that harassment. Over objection from Keith Harris’ counsel that this restriction violated his Sixth Amendment right to counsel, trial ii counsel complied with the trial court’s order and did not discuss with Harris when the witnesses in question would be testifying over a weekend recess of the trial. When the trial court reconvened, the government belatedly acknowledged that it had no evidence that either Keith Harris or his codefendants on trial were involved in any pre-trial harassment of the witnesses in question. Despite this Court’s explicit statement in Perry v. Leake, 488 U.S. 272 (1989) that a defendant has a right to unrestricted access to his lawyer for advice concerning the availability of witnesses during trial and explicit holding in United States v. Gonzalez-Lopez, 548 U.S. 140 (2006) that the denial of counsel during trial can ever be held harmless, the United States Court of Appeals failed t