United States of America v. William Barksdale

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-2284
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UNITED STATES OF AMERICA,
v.
WILLIAM BARKSDALE,
Appellant
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 1:11-cr-00841-001)
District Judge: Honorable Robert B. Kugler
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Argued: January 18, 2024
Before: JORDAN, BIBAS, and AMBRO, Circuit Judges
(Filed: April 4, 2024)
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Kimberly R. Brunson [ARGUED]
FEDERAL PUBLIC DEFENDER’S OFFICE
1001 Liberty Avenue
Pittsburgh, PA 15222
Counsel for Appellant

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Mark E. Coyne
John F. Romano [ARGUED]
U.S. ATTORNEY’S OFFICE
970 Broad Street, Room 700
Newark, NJ 07102
Counsel for Appellee
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OPINION OF THE COURT
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BIBAS, Circuit Judge.
Criminal defendants have a right to testify in their own
defense. At a hearing to revoke his supervised release, William
Barksdale repeatedly tried to exercise that right. But he never
got to do so. And because the government did not prove this
constitutional error harmless beyond a reasonable doubt, we
will remand to let the judge fix it.
I. A REVOCATION HEARING GONE WRONG
A dozen years ago, William Barksdale pleaded guilty to
conspiring to commit wire fraud. The judge sentenced him to
twenty months in prison plus five years’ supervised release.
Near the end of his supervised release, his probation officer
alerted the District Court to ten potential violations of his
release terms.
The revocation hearing spanned three days. The govern-
ment put on extensive evidence of Barksdale’s violations, and
Barksdale’s lawyer cross-examined the government’s witness.

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The court let his lawyer use unauthenticated documents but
would not admit them into evidence.
At the end of the first day, Barksdale’s lawyer flagged that
he might testify in his own defense. But after the government
rested, his lawyer said that he would not. The judge then asked
Barksdale directly if that was right. He responded: “No, sir. I
prefer to testify.” App. 273.
After Barksdale explained at length how “[he] would like
… to refute” the government’s witness, the judge explained
that testifying would trigger cross-examination. App. 274–75.
Barksdale said he understood. Yet the judge said: “You made
your choice. You don’t want to testify. That’s fine. I respect
that.” App. 275. The judge then gave Barksdale five minutes
to try to strike a last-minute deal with the government.
After failing to do so, Barksdale again asked to testify. And
again, the judge refused. Barksdale objected immediately. He
argued that he had said only that he would waive that right if
he could make a deal. But the judge insisted that Barksdale
had said “[he] didn’t want to testify.” App. 280. After a brief
exchange, the judge told Barksdale that he would not “reopen”
evidence to let him testify. App. 285. He then found Barksdale
guilty of nine release violations (later dismissing the tenth).
At sentencing the next day, the government sought the stat-
utory maximum: three years. Barksdale’s lawyer asked for a
sentence within the Guidelines range: six months. Barksdale
himself then spoke at length, insisting again that he wanted to
testify. The judge responded that it was “convenient” for
Barksdale to say he would testify now after saying he would
not do so earlier. App. 351. He protested again that he had

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wanted to testify all along, even though his lawyer had advised
him against it. Yet the judge repeated that he had declined to
testify.
The judge then walked through the sentencing factors,
stressing Barksdale’s criminal history and the number of vio-
lations. He saw no reason to believe that Barksdale had
changed or would change. But he did not mention the various
mitigating factors that Barksdale and his lawyer had raised.
And only once did he directly consider Barksdale’s own words,
refusing to credit his denial about writing an email. Ultimately,
the judge sentenced Barksdale to thirty months in prison,
longer than his initial twenty-month sentence and close to the
thirty-six-month maximum that the Government sought.
Barksdale appeals, arguing that the District Court denied
him his right to testify in his own defense. He preserved that
issue by objecting promptly. Holguin-Hernandez v. United
States, 140 S. Ct. 762, 766–67 (2020). We review the court’s
findings of fact (including waiver) for clear error, its legal rul-
ings de novo, and its ultimate decision to revoke supervised
release for abuse of discretion. United States v. Maloney, 513
F.3d 350, 354 (3d Cir. 2008); United States v. Scarfo, 41 F.4th
136, 220 n.101 (3d Cir. 2022).
II. THE JUDGE DID NOT LET BARKSDALE TESTIFY
A. On the record before us, the judge erred
Criminal defendants have the right to tell their side of the
story on the witness stand. Rock v. Arkansas, 483 U.S. 44, 49–
53 (1987). And although revocation hearings are not part of a
criminal proceeding, they can cost a defendant his liberty.

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Gagnon v. Scarpelli, 411 U.S. 778, 781–82 (1973). To safe-
guard that liberty, due process guarantees him the right to a
hearing, to confront his accusers (as limited to protect wit-
nesses’ safety), and to put on evidence in his own defense. Id.;
Morrissey v. Brewer, 408 U.S. 471, 480, 489 (1972); Fed. R.
Crim. P. 32.1(b)(2)(C). A key part of putting on evidence is the
right to “appear and speak in [one’s] own behalf.” Morrissey,
408 U.S. at 487.
The judge denied Barksdale his right to testify on his own
behalf. Nowhere did Barksdale himself waive that right. Yet
the judge repeatedly said he had. To be sure, a few times the
judge and Barksdale may refer to past conversations that are
not on the record. And perhaps an off-the-record conversation
influenced the judge’s on-the-record comments. But we cannot
rely on speculation. We can rule only on the record before us.
On that record, Barksdale was denied his right to testify.
B. Under Chapman, we ask if the error was harmless
beyond a reasonable doubt
Since denying this constitutional right does not “affect[ ]
the framework” of the hearing, it is not a structural error. See
Weaver v. Massachusetts, 582 U.S. 286, 295 (2017). But the
defendant preserved this constitutional error by objecting
promptly. So, on direct appeal, the government must prove that
this error was harmless beyond a reasonable doubt. Chapman
v. California, 386 U.S. 18, 24 (1967); Neder v. United States,
527 U.S. 1, 8 (1999) (describing the strong presumption that
most constitutional errors are subject to harmless-error review).
The government argues for a lower burden here. Unlike at
a criminal trial, the government must prove supervised-release

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violations by only a preponderance of evidence, not beyond a
reasonable doubt. 18 U.S.C. § 3583(e)(3). The government
argues that it likewise bears a lower burden on appeal. So, it
reasons, it need show only that any error did not substantially
affect the outcome. Appellee’s Br. 21–22 (quoting Brecht v.
Abrahamson, 507 U.S. 619, 631 (1993)).
But the government goes astray. Our harmless-error test
does not depend on the government’s burden at trial. Rather, it
depends on the source of the right and the procedural posture.
For a non-constitutional error, we need not reverse unless it
had a “substantial and injurious effect” on the outcome.
Kotteakos v. United States, 328 U.S. 750, 776 (1946). We also
apply that less demanding standard to constitutional errors on
habeas review to respect finality and federalism. Brecht, 507
U.S. at 623, 635.
The government cites cases that apply a lower standard to
revocation hearings. Smith v. U.S. Parole Comm’n, 875 F.2d
1361, 1368 (9th Cir. 1988) (denial of appointed counsel, vio-
lating a regulation); Sutherland v. McCall, 709 F.2d 730, 732–
33 (D.C. Cir. 1983) (delay in scheduling hearing); Standlee v.
Rhay, 557 F.2d 1303, 1305, 1307–08 (9th Cir. 1977) (habeas).
But all these cases involve federal habeas review and most deal
with non-constitutional errors.
Here, by contrast, we are reviewing a constitutional error
on direct appeal. In that posture, we ask if the error was harm-
less beyond a reasonable doubt. United States v. Cross, 308
F.3d 308, 326 (3d Cir. 2002). We thus join the Eighth and
Ninth Circuits in applying Chapman’s harmless-error standard
to direct appeals of constitutional issues from revocation

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hearings. United States v. Busey, 11 F.4th 664, 667 (8th Cir. 2021);
United States v. Comito, 177 F.3d 1166, 1170 (9th Cir. 1999).
C. The government did not prove the error harmless
The government offers three ways to find the error harm-
less. First, the judge commented several times that there was
“no question” that Barksdale committed several violations.
App. 308–10. But Barksdale would have been the only witness
to challenge the government’s version of events; perhaps he
could have raised a question. Even if not, the government’s
theory shows at most that Barksdale would have been found
guilty, not that he would also have gotten the same sentence.
Second, the government points to Barksdale’s extensive
cross-examination of the government’s witness. Yet that is a
separate right. It let Barksdale try to poke holes in the govern-
ment’s story but was no substitute for giving his own account.
Finally, the government stresses that Barksdale still got to
make a lengthy allocution after the judge found supervised-
release violations. But allocutions are not testimony. Testi-
mony is affirmative evidence, not just damage control. And
testimony happens early enough to shape the narrative.
True, the judge viewed Barksdale negatively, denouncing
him as “a con man,” “a scammer,” and “a danger to the com-
munity” who is unlikely to change. App. 353. But a judge’s
mistrust of a defendant is not enough to show harmlessness.
We cannot be certain that Barksdale’s testimony would have
made no difference. Even if his testimony could have reduced
his sentence only slightly, that is enough to make the error
harmful. See Glover v. United States, 531 U.S. 198, 203 (2001).

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III. THE SAME JUDGE CAN HEAR THE REMAND
WITHOUT APPEARANCE OF BIAS
Barksdale also asks us to remand the case to a new judge.
Yet we reassign a case to a different judge only when there is
some concern about bias or appearance of bias or when a
defendant reasonably fears retribution. See United States v.
Cruz, 95 F.4th 106, 113 (3d Cir. 2024); Gov’t of the V.I. v.
Walker, 261 F.3d 370, 376 (3d Cir. 2001). None of these con-
cerns is present here.
True, on this record, the judge seemed frustrated with
Barksdale. But any such frustration is understandable after a
long and trying hearing. Barksdale was chatty, interrupted often,
and played fast and loose with the evidence. His behavior could
well have tried anyone’s patience. Yet the judge limited his
critical comments about Barksdale to the specific statements
that rang false. We see nothing to suggest that the judge resents
or is biased against Barksdale.
* * * * *
On the record before us, the District Court should have
heeded Barksdale’s pleas to testify. And the government did
not prove that this mistake was harmless beyond a reasonable
doubt. But neither was it grave enough to require a new judge
on remand. So we will remand to the same judge for a new
revocation hearing to fix this mistake.

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