United States v. Alford , 116 F. App'x 706 ( 2004 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 04a0132n.06
Filed: November 29, 2004
No. 03-3014
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Brian K. Alford, )
)
Defendant-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR
) THE SOUTHERN DISTRICT OF
United States of America, ) OHIO
)
Plaintiff-Appellee. )
Before: SILER, BATCHELDER, and ROGERS, Circuit Judges
PER CURIAM. Defendant, Brian K. Alford, appeals his convictions for bank robbery and
use of a firearm in the commission of a felony. Alford argues that the prosecutor improperly
impeached a government witness with the witness’s unsworn prior inconsistent statement. He
asserts the district court should have declared a mistrial after the improper impeachment was
stricken from the record. Because any error was cured by the district court’s instructions to the jury,
we AFFIRM.
BACKGROUND
In 2000, a masked gunman robbed a BankOne branch in Dayton, Ohio. Witnesses described
the robber as being a black male, approximately 25-35 years in age, between five feet nine inches
and six feet two inches in height, and 155-190 pounds in weight. He was wearing a surgical mask
and a hat, and carrying a dark bag and a silver automatic handgun. A teller inserted a dye pack into
No. 03-3014
United States v. Alford
the bag along with money. After leaving the bank, the robber was later observed sitting in a parked
car “picking at a bag that was smoking.” The car was described as a 1989 or 1990 Oldsmobile,
reddish in color, with a license plate number of “ANN 1778.” The bag, containing a blue surgical
mask, cash, and BankOne money wrappers, was subsequently recovered and returned to the bank
by a pedestrian.
The license plate belonged to a 1993 Oldsmobile registered to Alford’s sister. The vehicle
was found near the home of another sister. A wallet belonging to Alford was recovered from the
vehicle. The car smelled strongly of air freshener; however, no dye stains were discovered. In a
trash can behind the house, police recovered dye-stained clothing approximate to that worn by the
bank robber. Police then interviewed Alford’s girlfriend, Kim Jones. Jones wrote out a signed, but
unsworn, statement at the police station. In it she described conversations with Alford on the day
of the robbery. Based on this statement, the police retrieved a shirt stained with red dye and a silver
automatic pistol. All items of evidence recovered were analyzed further by the crime laboratory.
No DNA evidence was discovered; however, the red dye was consistent with the marking dye used
by BankOne.
Jones was called by the prosecution during trial, and, although she acknowledged the prior
statement she made to the police, she was uncooperative. The next day the court held a conference
to discuss the admissibility of Jones’s testimony, and examined her on voir dire. The court found
the prosecution no longer had a reasonable belief that Jones would cooperate. It further ruled that
impeachment would be improper because the prejudice to Alford outweighed any probative value.
The court then ordered Jones’s testimony from the previous day to be stricken from the record in its
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United States v. Alford
entirety. The jury was instructed to disregard the testimony and was examined by voir dire
individually to ensure each juror could comply with the trial court’s instructions. While the
prosecution disagreed with the court’s solution, Alford explicitly concurred in the ruling. He did
not move for a mistrial.
STANDARD OF REVIEW
“Under Rule 52(b), for a plain error to affect substantial rights, ‘the error must have been
prejudicial: It must have affected the outcome of the District Court proceedings.’” United States v.
Thomas, 1994 U.S. App. LEXIS 2625, *14-15 (6th Cir. 1994) (citing United States v. Olano, 507
U.S. 725, 734 (1993)). This rule “normally requires the same kind of inquiry [as harmless error
under Rule 52(a)], with one important difference: It is the defendant rather than the Government
who bears the burden of persuasion with respect to prejudice. In most cases, the Court of Appeals
cannot correct the forfeited error unless the defendant shows the error was prejudicial.” Id. (internal
citations omitted). Even if testimony were “erroneously admitted, the striking of the [testimony]
with instructions to the jury to disregard it will ordinarily cure the error.” United States v. Ursery,
109 F.3d 1129, 1133 (6th Cir. 1997).
DISCUSSION
Alford alleges the prosecution knew Jones would not support her prior written statement, and
that she was called solely to introduce it into evidence under the guise of “impeachment.” The
district court determined that the government acted in good faith when originally calling Jones, but
that it could no longer believe she would testify in conformity with the prior statement. Thus, if the
impeachment continued, the jury would be left with no substantive testimony from her.
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Although the impeachment of Jones was improper, this error was correctable and was, in
fact, corrected. “The general rule is that the subsequent striking of erroneously admitted evidence
accompanied by a clear and positive instruction to disregard it cures the error unless the evidence
is of such an exceptionally prejudicial character” that the jury cannot ignore it. Barbara v. Johnson,
449 F.2d 1235, 1237 (6th Cir. 1971) (emphasis added). “Thus, unless there is a reasonable
possibility that the improperly admitted evidence contributed to the conviction, reversal is not
required.” Schneble v. Florida, 405 U.S. 427, 432 (1972). Here, all of the evidence, with the
possible exception of the recovery of the robber’s bag, could be tied to Alford even without the help
of Jones’s prior statement.
Once the district court reviewed the matter and heard arguments in conference from both
parties on the admissibility of Jones’s testimony, it examined Jones regarding her prior statement.
After instructing the jury to disregard the previous testimony, the court took the extraordinary action
of individually questioning jurors to determine if each could disregard what he or she had heard.
“Notwithstanding the undoubtably prejudicial nature of the erroneously admitted information, this
Court must assume that the jury in this case followed the instruction given to it by the court.”
Shanklin v. Norfolk Southern Railway Co., 369 F.3d 978, 991 (6th Cir. 2004). This assumption is
supported by the affirmative answer of each juror that he or she could understand and follow the
curative instruction, leading to the conclusion that the improperly admitted evidence did not
contribute to the conviction.
A mistrial should be declared only if the “evidence were so prejudicial that the jury could
not be trusted to disregard it.” Ursery, 109 F.3d at 1133-34. Here, “even if the challenged testimony
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United States v. Alford
could be deemed prejudicial, its effects were cured by the cautionary instructions of the court.
[Alford] has failed to establish that he was deprived of his constitutional right to a fair trial.”
Barbara, 449 F.2d at 1237-38. Alford acquiesced in the cure by not requesting a mistrial.
AFFIRMED.
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