United States v. White , 68 F. App'x 870 ( 2003 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
MAY 16 2003
TENTH CIRCUIT
PATRICK FISHER
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
No. 02-1304
v. (D. Colo.)
(D.C. No. 00-CR-358-WM)
RODNEY B. WHITE,
Defendant-Appellant.
ORDER AND JUDGMENT *
Before O’BRIEN and HOLLOWAY , Circuit Judges, and LUNGSTRUM ,
District Judge ** .
Defendant-Appellant Rodney B. White, then a prisoner in the United States
Penitentiary at Florence, Colorado, was charged in a one-count superceding
indictment with attempting to obtain contraband in prison in violation of 18
U.S.C. §§ 1791(a)(2) and (d)(1)(C). At trial, defendant White represented
himself, assisted by advisory counsel. The jury convicted him, and he was later
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
**
The Honorable John W. Lungstrum, United States District Judge for the District
of Kansas, sitting by designation.
sentenced to 41 months in prison, to be served consecutively with the sentence he
was already serving from the Northern District of Texas. He now appeals the
conviction, contending that the trial court erred in permitting the government to
use a witness’ hearsay statements as substantive evidence. Exercising jurisdiction
pursuant to 28 U.S.C. § 1291, we affirm.
BACKGROUND
During routine monitoring of telephone calls by inmates in the United
States Penitentiary in Florence, Colorado, prison officials learned that Gloria
Scott, the sister of defendant Rodney B. White, an inmate in the penitentiary, was
expected to visit her brother and attempt to introduce contraband into the prison
on March 27, 1998. Prison officials notified the FBI of this possibility, and FBI
Special Agent George Veltman conducted an investigation. Based on the
monitored telephone calls, he obtained a warrant to search Ms. Scott when she
arrived at the prison.
Ms. Scott arrived at the prison, as expected, on March 27, 1998. After
checking-in, she was led to an isolated room where a female Bureau of Prisons
officer searched her pursuant to the warrant. During the search, Ms. Scott
produced two cellophane bags of M&M peanut candies that were later found to
contain small balloons of tar heroin. After the search, Agent Veltman advised
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Ms. Scott of her rights, she made a statement to Agent Veltman concerning her
attempt to introduce contraband into the prison, and she was arrested.
Nearly two years after the incident, on March 8, 2000, Agent Martin
Daniell conducted an interview of defendant White concerning the incident at the
penitentiary. During the interview, defendant White made the following
inculpatory admissions: he owed a $300 gambling debt to another inmate named
Sorapuru, inmate Sorapuru told him that the debt would be forgiven if “certain
items” were to come into the prison, he contacted his sister (Gloria Scott) by
telephone and asked her to bring drugs into the prison, she agreed to do so, he
provided his sister with Lisa Sorapuru’s (inmate Sorapuru’s sister) phone number
because Ms. Sorapuru was to supply the narcotics to be brought into the prison,
and Ms. Sorapuru gave Ms. Scott the narcotics to be smuggled into the prison.
Ms. Scott entered into a plea agreement with the government on July 19,
2001, to plead guilty to the introduction of contraband into the penitentiary on
March 27, 1998. Several days later she pled guilty to the charge in Lubbock,
Texas. The plea agreement, which bore the signatures of Ms. Scott and her
attorney in Texas, contained the necessary factual basis to support Ms. Scott’s
plea of guilty. It specified that she was at the penitentiary in Florence, Colorado,
to visit her brother on March 27, 1998; she had contraband in her possession
when she entered the prison; and she was bringing the contraband (i.e., heroin)
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into the prison at the behest of her brother, Rodney White, to whom she was to
deliver the contraband during the visit. The court in Texas accepted Ms. Scott’s
plea agreement and sentenced her to a term of imprisonment.
Defendant White’s jury trial commenced on April 29, 2002, with defendant
White representing himself, assisted by advisory counsel. 1
The next day, the trial
concluded and the jury found defendant White guilty as charged in the
superceding indictment. After the trial court sentenced defendant White, he filed
this appeal.
DISCUSSION
Defendant White contends that the court erred by allowing the government
to use the hearsay statement of his sister, Gloria White, to FBI Agent Veltman at
the time of her arrest as substantive evidence of defendant White’s guilty
knowledge of the offense. More specifically, defendant White contends that the
trial court erred by not instructing the jury that Ms. Scott’s statement was being
used only for impeachment purposes and by permitting the government to use Ms.
Scott’s statement as substantive evidence during closing argument.
1
The district court appointed Richard N. Stuckey to act as advisory or stand-by
counsel for defendant White during the trial; under the Criminal Justice Act, 18 U.S.C. §
3006A, this court thereafter appointed Mr. Stuckey to represent defendant White on
appeal.
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The central issue at trial was whether defendant White instructed his sister
to bring drugs into the prison or whether she undertook the endeavor without her
brother’s knowledge. The government called Ms. Scott to the stand, in part, to
establish her brother’s knowledge of the drug transaction. On direct examination,
Ms. Scott testified that she went to the prison to visit her brother, but repeatedly
denied or stated that she honestly did not remember whether her brother made
telephone calls to her instigating the transaction. ROA, Vol. 3 at 31. When asked
whether she told Agent Veltman at the time of her arrest that her brother told her
on the telephone that he needed her help to bring drugs into the prison, she
testified that she could not recall making such statements because the incident
occurred five years earlier. Id. at 39. When the government then asked her what
she did remember, she stated that she met a woman by the name of Lisa in
Florence, Colorado, Lisa told her that her brother owed a gambling debt that she
could help him pay off by bringing drugs into the prison, Lisa gave her some
balloons which she put into a candy package, and Lisa asked her to take the
heroin-filled balloons to the prison where Lisa’s brother (another inmate whose
name was unknown to Ms. Scott) would be waiting in the visiting room to receive
them. Id. at 38-43, 56-58. Ms. Scott also testified that her brother, defendant
White, never mentioned Lisa Sorapuru to her and that he had no knowledge of
what she was doing. Id. at 53, 56-58.
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The government, knowing that Ms. Scott’s testimony conflicted with her
prior statement to Agent Veltman and with her plea agreement, then called Agent
Veltman to the stand. He testified that he interviewed Ms. Scott at the time of her
arrest. When the government asked Agent Veltman what Ms. Scott said during
that interview, defendant White objected to the question on hearsay grounds. Id.
at 70. The government responded that the question was for impeachment
purposes and reworded the question as: “Did Gloria Scott tell you that she was
coming into the prison to give the drugs to somebody other than her brother?” Id.
Defendant White did not object to the question as rephrased, and the witness
answered: “No, she did not. I asked her specifically who she was coming to
visit, and she signed in to visit her brother.” Id. The government then asked a
second question: “Ms. Scott testified that someone else had made arrangements
for her to bring the drugs in during her testimony in chief. Did she tell you
something different on March 27, 1998?” Id. at 71. Defendant White objected to
this question on hearsay grounds as well. Id. The court initially sustained the
objection at the end of the first day of trial but the next morning the government
explained that it intended to use Agent Veltman’s testimony for impeachment
purposes only pursuant to Federal Rule of Evidence 613(b). Id. at 71, Vol. 4 at
88. The court then reviewed Ms. Scott’s testimony at trial, determined it was
inconsistent with Agent Veltman’s proposed testimony of the events, reversed its
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ruling, and permitted Agent Veltman to testify regarding Ms. Scott’s prior
statements but only to impeach Ms. Scott’s testimony at trial pursuant to Rule
613(b). ROA, Vol. 4 at 146-47. The following discourse then occurred:
Q. (by prosecutor): Mr. Veltman, yesterday you testified with
respect to a statement given to you by Gloria Scott on March
27, 1998.
A. I remember, yes.
Q. And Ms. Scott testified yesterday that she couldn’t remember
or had no memory of her telling you that she was bringing
drugs into the prison for Rodney White. What is your memory
of the statement that she gave you on March 27, 1998, with
respect to that statement?
A. She told me, if I remember correctly, that she was going to
come the previous week to deliver the drugs to her brother,
Rodney White. It got postponed until the week that I met her
when she was coming in to deliver them to him.
Q. And who was she to deliver the drugs to?
A. To Rodney White, her brother.
Q. She also had no memory with respect to communicating with
Gloria Scott [sic]. Do you have a memory of that?
A. She advised me that she had communicated with her brother to
– that he wanted her to bring them in. She also had been in
touch with Lisa – she didn’t know her last name – to make
arrangements to get the narcotics to her and also gave her
instructions on how to put them in the M&M packs before she
brought them into the prison.
Id. at 147-48.
Under the circumstances, we conclude that the initial introduction of Ms.
Scott’s prior inconsistent hearsay statement for impeachment purposes was
proper. Under Rule 613(b), extrinsic evidence of a prior inconsistent statement
may be introduced to impeach a prior witness’ testimony, but may not be used as
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substantive evidence. United States v. Mitchell , 113 F.3d 1528, 1532 (10th Cir.),
cert. denied , 522 U.S. 1063 (1997); United States v. Denetclaw , 96 F.3d 454, 457
(10th Cir. 1996). Such evidence, however, is not admissible “unless the witness
is afforded an opportunity to explain or deny the same.” Fed. R. Evid. 613(b);
Anderson v. Charles, 447 U.S. 404, 408, 100 S. Ct. 2180, 65 L. Ed. 2d 222(1980); United States v. Canterbury, 985 F.2d 483, 486 (10th Cir. 1993).
In this action, when Ms. Scott was asked on direct examination whether she
recalled stating to Agent Veltman that her brother told her on the telephone that
he needed her help to bring drugs into the prison, she testified that she could not
remember if she made such statements because the incident occurred five years
earlier. She later testified that her brother did not know that she was attempting
to bring drugs into the prison. This testimony is directly inconsistent with the
statement that Ms. Scott allegedly made to Agent Veltman when she was arrested.
She was given an opportunity to explain or deny making the prior statement in
accordance with Rule 613(b). She testified that she could not remember making
the statement but confirmed that she remembered the events leading up to her
arrest. Thus, the trial court was correct in permitting the prosecution to use Ms.
Scott’s prior inconsistent statement to Agent Veltman in an attempt to impeach
Ms. Scott. See Mitchell , 113 F.3d at 1532 (holding that prior inconsistent
statement should have been admitted under similar circumstances).
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Defendant White further argues on appeal that the trial court erred in not
providing the jury with a limiting instruction to the effect that the prior
inconsistent statement was to be considered only for impeachment purposes and
by permitting the prosecution to use Ms. Scott’s hearsay statements during its
closing argument as substantive evidence of defendant White’s knowledge of the
offense. 2 Defendant White, however, did not request a limiting instruction at the
2
During closing arguments, the prosecutor made several statements regarding
Ms. Scott’s statements to Agent Veltman. The prosecutor argued: “You heard Gloria
Scott testify and what she testified to wasn’t exactly what the statement was that she made
on March 27.” ROA, Vol. 4 at 165. The prosecutor then referenced Ms. Scott’s denial
that “Rodney White was the one she was going to visit” and stated to the jury:
At any rate, George Veltman did take a statement from her, and you heard
him on rebuttal tell you that Gloria Scott was coming into the prison to visit
Rodney White and to give him the contraband. And she also told him that
she received some money through the Western Union wire in which she
received a couple hundred dollars to facilitate this effort.
Id. at 166.
Later, the prosecutor said:
I would submit to you that the substantial step [for attempt] was the
instructions to his sister to bring in the prohibited drug. You heard the
statement of George Veltman to that effect, and you can read yourselves
from the Government’s Exhibit 12 that that’s what happened in this case.
And the – once that was set in motion, Gloria Scott was on her way to
deliver these drugs to Rodney White, and there is no disputing the fact that
the only one that Gloria Scott was going to visit was Rodney White.
Id. at 172.
Finally, the prosecutor argued in rebuttal: “Gloria Scott said on two separate
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time the trial court decided to admit the evidence or at any other time and did not
object to the prosecution’s use of the evidence during its closing argument. As a
result, we may review these claims only for plain error. United States v. Roberts ,
185 F.3d 1125, 1143 (10th Cir. 1999).
Plain error review is appropriate even though defendant White proceeded at
trial pro se. The record indicates that the trial court thoroughly informed
defendant White of the nature of the charges, the complexity of the trial, and the
issues involved. The court also informed defendant White of the risks he was
assuming by proceeding pro se and attempted to persuade him that he should not
run the risk of doing so. Despite full knowledge of the potential risks, defendant
White opted to represent himself at trial with the help of advisory or stand-by
counsel. Thus, he “intelligently and voluntarily waived his Sixth Amendment
right of active participation and assistance of trial counsel.” United States v.
Pinkey , 548 F.2d 305, 311 (10th Cir. 1977). By doing so, “he acquiesced in and
subjected himself to the established rules of practice and procedure in federal
occasions she brought the drugs in for Rodney White. I will leave it to you. Thank you.”
Id. at 176.
For purposes of this order, we will presume that these comments establish that the
government used Ms. Scott’s hearsay statements as substantive evidence in its closing
argument to prove the offense.
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criminal trials.” Id. As we have previously stated, a pro se criminal defendant is
entitled to no greater rights than a defendant represented by counsel:
The hazards which beset a layman when he seeks to represent himself
are obvious. He who proceeds pro se with full knowledge and
understanding of the risks does so with no greater rights than a
litigant represented by a lawyer, and the trial court is under no
obligation to become an “advocate” for or to assist and guide the pro
se layman through the trial thicket.
Id. (citations omitted).
Under the plain error standard of review, there must be “(1) an ‘error,’ (2)
that is ‘plain,’ which means ‘clear’ or ‘obvious’ under current law, and (3) that
‘affect[s] substantial rights.’” United States v. Fabiano , 169 F.3d 1299, 1303
(10th Cir. 1999)(quoting Johnson v. United States , 520 U.S. 461, 467 (1997)).
For an error to impact substantial rights, typically “[i]t must have affected the
outcome of the district court proceedings.” Olano , 507 U.S. at 734. Significantly,
the defendant bears the burden of proving that the error had such an effect. Id. If
all three conditions are met, an appellate court may then exercise its discretion to
correct the forfeited error if it “seriously affects the fairness, integrity, or public
reputation of judicial proceedings.’” Johnson , 520 U.S. at 467 (quoting Olano ,
507 U.S. at 732).
In this action, we are far from convinced that defendant White has satisfied
the first two prongs of the plain error analysis and established that the trial court
erred in not providing a limiting instruction sua sponte or in not stopping the
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prosecution from referencing Ms. Scott’s prior inconsistent statements for
substantive purposes during its closing. The defendant may well have made a
tactical decision not to request a limiting instruction or object during closing
argument because to do so would have drawn undue attention to the evidence in
question. The trial court, therefore, would have undercut the defendant’s strategy
by inserting a limiting instruction on its own accord or stopping the prosecution
during closing argument.
However, we need not address those prongs because it is clear that
defendant White has not met his burden of establishing that the alleged errors
impacted his “substantive rights.” That is, he has not established that the alleged
errors affected the outcome of the district court proceeding. The evidence at trial
establishing that defendant White knew his sister was bringing drugs to him in
prison was not limited to Ms. Scott’s statement to Agent Veltman at the time of
her arrest. FBI Agent Martin Daniell testified that defendant White confessed to
knowing about Ms. Scott’s actions. Specifically, Agent Daniell testified that
during an interview with defendant White nearly two years after the incident,
defendant White told him that he contacted his sister, Gloria Scott, by telephone
and asked her to bring drugs into the prison. Agent Daniell also testified that
defendant White told him that he provided his sister with Lisa Sorapuru’s phone
number, that Lisa and his sister had “hooked up,” and that his sister had been
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given the narcotics. In light of this other evidence properly admitted at trial, we
conclude that the arguably improper use of Ms. Scott’s testimony during closing
argument did not affect defendant White’s substantial rights or call into doubt the
underlying fairness of the entire trial.
Moreover, in a case involving similar circumstances, United States v.
Jamieson , 806 F.2d 949 (10th Cir. 1986), we declined to exercise our discretion
to correct alleged errors because the errors did not seriously affect “the fairness,
integrity, or public reputation of the judicial proceeding.” Id. at 952. We reach a
similar conclusion here. In Jamieson , the defendant was convicted of distributing
controlled substances. Id. at 950. On appeal, one of his two grounds for reversal
concerned the government’s use of certain of his medical records. Id. at 951.
Although the medical records were properly admitted to impeach a witness on
cross-examination, the defendant argued that the district court erred by permitting
the prosecution to later use the medical records during closing arguments as
substantive evidence to prove essential elements of the crimes charged and by not
instructing the jury that the medical records were being used only for
impeachment purposes. Id. at 952-53. We disagreed. We first noted that our
review was limited to a plain error analysis because the defendant made no
specific objection at trial to the use of the medical records in the government’s
closing argument and did not ask for a limiting instruction. Under that analysis,
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we concluded that the medical records were properly admitted as evidence for
impeachment purposes and “any error resulting from their possible substantive
use was not so egregious as to require reversal.” Id. at 952.
In this action, Ms. Scott’s prior inconsistent statements were initially
admitted to impeach her. At trial, Ms. Scott testified that her brother had no
knowledge that she was attempting to bring drugs into the prison. This testimony
contradicted her prior statement to Agent Veltman at the time of her arrest at the
prison. Thus, the district court properly permitted Agent Veltman to testify as to
the prior inconsistent statements for the limited purpose of attempting to impeach
Ms. Scott. As in Jamieson , impeaching Ms. Scott’s testimony on the central issue
in the case would necessarily have suggested that the opposite of her testimony
was in fact the truth. Thus, any substantive use of Ms. Scott’s prior inconsistent
statements was not so egregious as to require reversal.
We also conclude that the district court did not commit plain error in
failing to instruct the jury that it should consider Ms. Scott’s prior inconsistent
statements only for impeachment purposes. The district court provided the jury
with a general instruction regarding bias and impeachment. Also, the district
court instructed the jury that statements, arguments, and questions by counsel are
not evidence. Considering the circumstances, the district court did not commit
plain error in failing to provide a separate limiting instruction regarding Ms.
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Scott’s hearsay statement. As we stated in Jamieson , failure to give a limiting
instruction is generally held not to be plain error. 806 F.2d at 953 (quoting
United States v. Bermudez , 526 F.2d 89 (2d Cir. 1975)(citation omitted)).
CONCLUSION
In sum, we find no plain error in not providing a limiting instruction
regarding Ms. Scott’s hearsay statement or in the prosecutor’s reference to Ms.
Scott’s prior inconsistent statements in his closing argument. The judgment of
the district court is therefore AFFIRMED.
Entered for the Court
John W. Lungstrum
District Judge
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