United States v. Travis Ybarra , 700 F. App'x 543 ( 2017 )


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  •                   United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 16-3239
    ___________________________
    United States of America
    lllllllllllllllllllll Plaintiff - Appellee
    v.
    Travis Dane Ybarra, also known as HoodNutt
    lllllllllllllllllllll Defendant - Appellant
    ____________
    Appeal from United States District Court
    for the Western District of Missouri - Kansas City
    ____________
    Submitted: June 9, 2017
    Filed: June 27, 2017
    [Unpublished]
    ____________
    Before LOKEN, MURPHY, and MELLOY, Circuit Judges.
    ____________
    PER CURIAM.
    Travis Ybarra was involved in the distribution of methamphetamine in the
    Kansas City, Missouri area. He was charged along with sixteen codefendants with
    conspiracy to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1),
    (b)(1)(A), 846, and conspiracy to commit money laundering in violation of 18 U.S.C.
    § 1956(a)(1)(A)(i), (h). A jury convicted him of both counts, and he was sentenced
    to 360 months imprisonment. Ybarra appeals, arguing that the district court1 should
    have declared a mistrial after a government witness offered unsolicited testimony that
    Ybarra had killed someone and that his Sixth Amendment right to confront witnesses
    was violated by the denial of his request to recall a government witness for
    impeachment. We affirm.
    I.
    In July 2011 officers in the Kansas City, Missouri area began investigating a
    methamphetamine distribution ring which they came to believe was led by Ybarra.
    After months of investigation, Ybarra and sixteen codefendants were charged in a
    twelve count superseding indictment. Ybarra was only charged with the first two
    counts—conspiracy to distribute 500 grams or more of methamphetamine in violation
    of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846, and conspiracy to commit money
    laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i), (h).
    Ybarra was tried before a jury. Officers involved in the investigation testified
    for the government about controlled drug purchases they made from coconspirators
    and their discovery of identical money counters in the homes of three codefendants,
    including Ybarra. The government also introduced recordings of telephone calls
    between Ybarra and other coconspirators in which he was apparently discussing the
    distribution of drugs.
    Five of Ybarra's codefendants who had pled guilty testified for the government
    and implicated him in the conspiracy. One of these codefendants, Kevin Weiss,
    testified that he had known Ybarra as "HoodNutt." The prosecutor asked Weiss how
    he had learned that the name HoodNutt referred to Ybarra, and Weiss replied that
    1
    The Honorable David Gregory Kays, Chief Judge, United States District
    Court for the Western District of Missouri.
    -2-
    another codefendant had told him that "HoodNutt was the guy that killed his cousin."
    The court interrupted the testimony immediately after this comment. At a bench
    conference Ybarra's counsel moved for a mistrial, and the judge and prosecutor both
    mistakenly stated that Weiss had said that "he" (not "HoodNutt") was the man who
    killed the codefendant's cousin. The court denied the motion for a mistrial and issued
    a curative instruction, telling the jury that "the last response from this witness is
    hereby stricken" and "not to consider that in any way during your deliberations." A
    short while later, the court held another bench conference with the lawyers and
    acknowledged that Weiss had identified HoodNutt as the person who killed someone,
    and then denied defense counsel's renewed motion for a mistrial.
    Another codefendant, Samantha Edmunds, also testified for the government
    about the drug conspiracy. On direct examination, she said that she had first met
    Ybarra when her codefendant and boyfriend at the time, Damon Schultz, had
    purchased a few ounces of methamphetamine from him. She also testified that Ybarra
    was Schultz's only supplier of methamphetamine during the relevant time period.
    Both of these statements were inconsistent with statements she had made during a
    previous interview with law enforcement officers.
    On cross examination, defense counsel impeached her with the inconsistencies,
    and engaged in the following colloquy:
    Q:     You were asked a lot of the same questions [at the prior interview] you
    were asked here today; is that correct?
    A:     Yes.
    Q:     The answers were quite a bit different back then; weren't they?
    A:     Yes.
    Defense counsel then attempted to get Edmunds to admit that she had previously told
    officers that Schultz had two methamphetamine suppliers, Taco and Beto, and that
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    she had not previously identified Ybarra as Schultz's methamphetamine supplier.
    Edmunds did not admit to making those statements, however, and instead maintained
    that she had always said that Ybarra supplied Schultz with methamphetamine. At the
    end of Edmunds' testimony, defense counsel reserved the right to recall her.
    When the government rested, defense counsel asked to recall Edmunds to
    impeach her further with the video recording of her prior interview with law
    enforcement officers. The district court asked what counsel hoped to accomplish with
    the witness, and counsel replied that he wanted the jury to know that Edmunds had
    previously said that Schultz got his methamphetamine from Taco and Beto, not from
    Ybarra. Counsel admitted that he had already impeached Edmunds to some degree,
    but argued that the video would be the best evidence of impeachment. The district
    court denied the request to recall Edmunds, reasoning that counsel had already had
    the opportunity to impeach her with a summary of the prior interview. The defense
    then rested without calling any witnesses.
    The jury convicted Ybarra of both charged offenses. The district court
    sentenced him to 360 months on the distribution count and 240 months on the money
    laundering count, to be served concurrently. Ybarra appeals.
    II.
    Ybarra argues that the district court erred by denying his motion for a mistrial
    after Weiss offered unsolicited testimony that another codefendant told him that
    "HoodNutt was the guy that killed his cousin." We review the denial of a motion for
    "a mistrial for an abuse of discretion." United States v. Coleman, 
    349 F.3d 1077
    ,
    1087 (8th Cir. 2003).
    A jury's exposure "to improper testimony ordinarily is cured by measures less
    drastic than a mistrial, such as an instruction to the jury to disregard the testimony."
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    United States v. Sherman, 
    440 F.3d 982
    , 987 (8th Cir. 2006). A curative instruction
    will be insufficient, however, if "the verdict was substantially swayed" by the
    improper testimony. 
    Coleman, 349 F.3d at 1087
    (quoting United States v. Muza, 
    788 F.2d 1309
    , 1312 (8th Cir. 1986)). To determine whether improper testimony affected
    the verdict, we compare the prejudice caused by the testimony with the strength of the
    evidence of the defendant's guilt. 
    Id. If "the
    evidence of guilt is substantial, we may
    find that the allegedly improper testimony was harmless." United States v. Brandon,
    
    521 F.3d 1019
    , 1026 (8th Cir. 2008).
    We conclude that the district court's curative instruction sufficiently cured any
    prejudice caused by Weiss' improper testimony. The improper comment "was fleeting
    and immediately interrupted by the" court. See 
    Sherman, 440 F.3d at 988
    . Although
    the comment did cast Ybarra in a violent light when he was charged with a nonviolent
    offense, that alone would not mandate a mistrial. We have concluded in other cases
    with nonviolent drug charges that any prejudice caused by similar improper testimony
    was adequately cured by a curative instruction. See, e.g., 
    Brandon, 521 F.3d at 1026
    –27; 
    Sherman, 440 F.3d at 987
    —88.
    The court also "acted promptly to strike the allegedly improper testimony and
    to instruct the jury to disregard it." See 
    Sherman, 440 F.3d at 988
    . The court's
    curative instruction told the jury to disregard the previous statement; it did not repeat
    that statement or indicate to the jury that the judge was confused by whether Weiss
    had used a personal pronoun or the name HoodNutt. Furthermore, any residual
    prejudicial effect would have been harmless because there was substantial evidence
    of Ybarra's guilt, including "recordings of [Ybarra] negotiating drug transactions with
    co-conspirators on the telephone, and testimony of multiple co-conspirators
    implicating [Ybarra] in the drug trafficking conspiracy." See 
    id. Given the
    fleeting
    nature of Weiss' improper statement, the curative measure taken by the court, and the
    substantial evidence of Ybarra's guilt, we conclude that the district court did not
    abuse its discretion by denying Ybarra's motion for a mistrial after Weiss provided
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    improper testimony.
    III.
    Ybarra also argues that the district violated his right to confront witnesses
    under the Sixth Amendment by denying his request to recall Edmunds to impeach her
    with the video of her prior interview with officers. Although we ordinarily review
    an evidentiary ruling which limits the scope of cross examination for abuse of
    discretion, our review is de novo when the claim implicates the Sixth Amendment.
    United States v. Williams, 
    796 F.3d 951
    , 960 (8th Cir. 2015).
    The Confrontation Clause of the Sixth Amendment provides a defendant with
    the right to "effective cross-examination of witnesses against him." United States v.
    Warfield, 
    97 F.3d 1014
    , 1024 (8th Cir. 1996) (quoting United States v. Willis, 
    997 F.2d 407
    , 415 (8th Cir. 1993)). This "right to examine witnesses . . . is not without
    limitation, however." 
    Id. Under the
    Confrontation Clause, "[d]istrict courts 'retain
    wide latitude . . . to impose reasonable limits on such cross-examination based on
    concerns about, among other things . . . interrogation that is repetitive or only
    marginally relevant.'" 
    Id. (quoting United
    States v. Juvenile NB, 
    59 F.3d 771
    , 778
    (8th Cir. 1995)). Confrontation Clause violations are reviewed for harmless error.
    United States v. Jones, 
    728 F.3d 763
    , 766 (8th Cir. 2013); see also Chapman v.
    California, 
    386 U.S. 18
    , 23–24 (1967) (setting forth harmless error standard for
    reviewing constitutional errors).
    We need not determine whether the district court violated Ybarra's Sixth
    Amendment right to confront witnesses because we conclude that even if there were
    such an error, it was harmless beyond a reasonable doubt. When "assessing the
    harmlessness of an erroneous limitation on cross-examination, we consider the
    importance of the witness's testimony to the entire case, whether the testimony was
    cumulative, whether corroborating or contradicting evidence existed, the degree of
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    cross examination actually permitted, and the overall strength of the government's
    case." Harrington v. Iowa, 
    109 F.3d 1275
    , 1279 (8th Cir. 1997). Here, defense
    counsel wanted further to impeach Edmunds' trial testimony that Ybarra had supplied
    Schultz with methamphetamine. Edmunds' testimony on that point was cumulative,
    however, because a different government witness, Ashley Ford, testified that he went
    with Schultz to purchase methamphetamine from Ybarra on over thirty different
    occasions. Moreover, even if Ybarra were correct that the video would have been the
    best evidence of impeachment, Edmunds had already been impeached on cross
    examination. See 
    Jones, 728 F.3d at 767
    (concluding that error was harmless because
    additional evidence about the witness' credibility would have been cumulative). She
    had testified about the sentence reduction she received for cooperating with the
    government and admitted on cross examination that her trial testimony differed in
    some respects from her prior statements to officers. We therefore conclude that the
    district court did not commit a reversible constitutional error by denying Ybarra's
    motion to recall Edmunds to impeach her further with a previously recorded
    statement.
    IV.
    Accordingly, the judgment of the district court is affirmed.
    ____________________
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