Filed: Jul. 10, 2001
Latest Update: Feb. 21, 2020
Summary: [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ELEVENTH CIRCUIT _ JULY 10, 2001 THOMAS K. KAHN CLERK Nos. 99-12052 and 99-13303 _ D.C. Docket Nos. 98-00198-CR-T-26C & 93-00083-CR-T-26B UNITED STATES OF AMERICA, Plaintiff-Appellee, versus NICHOLAS GRANT, Defendant-Appellant. _ Appeals from the United States District Court for the Middle District of Florida _ (July 10, 2001) Before CARNES and RONEY, Circuit Judges, and ALAIMO*, District Judge.
Summary: [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FILED FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS ELEVENTH CIRCUIT _ JULY 10, 2001 THOMAS K. KAHN CLERK Nos. 99-12052 and 99-13303 _ D.C. Docket Nos. 98-00198-CR-T-26C & 93-00083-CR-T-26B UNITED STATES OF AMERICA, Plaintiff-Appellee, versus NICHOLAS GRANT, Defendant-Appellant. _ Appeals from the United States District Court for the Middle District of Florida _ (July 10, 2001) Before CARNES and RONEY, Circuit Judges, and ALAIMO*, District Judge. *..
More
[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ JULY 10, 2001
THOMAS K. KAHN
CLERK
Nos. 99-12052 and 99-13303
_______________________
D.C. Docket Nos. 98-00198-CR-T-26C & 93-00083-CR-T-26B
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NICHOLAS GRANT,
Defendant-Appellant.
__________________________
Appeals from the United States District Court
for the Middle District of Florida
_________________________
(July 10, 2001)
Before CARNES and RONEY, Circuit Judges, and ALAIMO*, District Judge.
*
Honorable Anthony A. Alaimo, U.S. District Judge for the Southern District of Georgia,
sitting by designation.
CARNES, Circuit Judge:
Nicholas Grant appeals his convictions for conspiracy to possess with intent
to distribute cocaine and marijuana, in violation of 21 U.S.C.§ 846, use of a
firearm during a drug-trafficking crime, in violation of 18 U.S.C. § 924(c), and
failure to appear, in violation of 18 U.S.C. § 3146(a)(1). These questions are
presented: whether Grant’s appeal on the conspiracy and firearms charges was
timely; whether there was sufficient evidence to convict him on the failure to
appear and the conspiracy charges; and whether statements of an alleged co-
conspirator exculpating Grant were inconsistent statements admissible for purposes
of impeachment pursuant to Federal Rule of Evidence 806. We answer all three
questions “yes.” The affirmative answer to the third one requires that we reverse
Grant’s conviction on the conspiracy and use of a firearm charges.
I. BACKGROUND
A. FACTS
In early 1993, United States Customs Service Special Agent Louis Mozas
met with Deosie Wilson and discussed Wilson’s plan to have Mozas smuggle 2000
pounds of marijuana from Jamaica into the United States, which Wilson would
then sell. Jamaican police seized the marijuana which was to be smuggled in,
however, so the transaction was not consummated.
2
Mozas next advised Wilson that Mozas would be smuggling one hundred
kilograms of cocaine from Columbia, for which he would be paid 18,000 pounds
of marijuana. Wilson agreed to market that marijuana for Mozas. Upon
inspection, Wilson deemed the marijuana to be of poor quality, but set out to
market it anyway. Mozas also advised Wilson that he had 15 kilograms of cocaine,
and Wilson agreed to assist in selling it.
Wilson departed for Jamaica on March 12, 1993, and returned to Tampa on
March 18, 1993. Mozas picked up Wilson at the Tampa airport and took him to an
undercover residence in Homosassa, Florida. In connection with his planned
purchase of the cocaine from Mozas, Wilson advised Mozas that $100,000 had
been transferred into Wilson’s bank account and that the funds would be available
the next day. On March 19, 1993, Mozas accompanied Wilson to a bank in
Homosassa, Florida and was present when Wilson obtained a cashier’s check for
$100,000. Mozas and Wilson then returned to the undercover residence.
Later that same afternoon, Mozas dropped Wilson off at the same bank.
Wilson remained inside the bank for between one to five minutes before leaving
with the occupants of a waiting Nissan Pathfinder. Undercover agents followed
the Pathfinder, which drove by the undercover residence and then to a restaurant.
A short while later, Wilson and Grant were observed leaving the restaurant and
3
entering the Pathfinder. The agents followed the Pathfinder as it returned to the
undercover residence, where Wilson was dropped off. The agents then followed
the Pathfinder as it returned to the restaurant.
Wilson arrived at the undercover residence carrying a bundle underneath his
shirt. The agreement between Mozas and Wilson provided that Wilson would
purchase 10 kilograms of cocaine from Wilson at $15,000 per kilogram, or
$150,000 total. Wilson went into a bedroom at the residence and, upon his return,
produced a vinyl pouch containing $50,000 in United States currency.
Mozas then instructed Detective Michael Joyner to bring the cocaine to the
residence. Joyner brought the cocaine and Wilson showed him the $100,000
cashier’s check and $50,000 cash. Wilson told Mozas that Grant was in
Homosassa Springs, but that Grant did not want to meet anyone. Wilson then put
down $15,000, left with one kilogram of cocaine, and was arrested immediately
thereafter. Wilson was talking on a cell phone at the time of his arrest and the
person to whom he was speaking was exclaiming “police, police, police.”
Within one minute of being informed that Wilson had been arrested, the
undercover agents observing the Pathfinder saw Grant and his brother quickly run
from the restaurant and depart in the Pathfinder. Grant drove slowly by the
location where Wilson was being arrested and then fled the area at approximately
4
80 miles per hour. After a brief chase, Grant was arrested and a search of the
Pathfinder revealed two loaded semi-automatic pistols, one in the glove
compartment and another in a duffle bag on the floor in front of the back seat, and
an open briefcase containing $11,208.
After his arrest, Grant told Customs Special Agent Phillip Aston that while
he was in Jamaica Wilson had contacted him about participating in a marijuana
transaction. Grant did not, however, mention anything about a cocaine transaction.
Grant also told Aston that on March 18, 1993, he had traveled from Jamaica to
Miami with approximately $16,000 in cash. Grant had a passport bearing his
photograph and name which documented that he had left Jamaica on March 18,
1993. Grant admitted to Aston that he had been speaking to Wilson on the
telephone before Grant had run from the restaurant, but claimed that he and his
brother had decided that they did not want to participate in Wilson’s transaction
anymore and had decided to leave.
Grant was released on bond on March 26, 1993. Four days later, he was
indicted on one count of conspiracy to possess with intent to distribute cocaine in
violation of 21 U.S.C. § 846. Grant pleaded not guilty at his arraignment. The
United States requested a show cause hearing for revocation of Grant’s bond on the
grounds that he had failed to comply with the conditions of his release. The
5
magistrate judge scheduled a show cause hearing for May 17, 1993. On May 4,
1993, the clerk’s office sent notice of that scheduled hearing to Grant. After Grant
failed to appear for the show cause hearing, a warrant was issued for his arrest.
On February 16, 1998, a detective assigned to a Customs task force arrested
Grant at the Miami International Airport. At the time of his arrest, Grant possessed
two Jamaican driver’s licenses - both bearing his photograph, but one in his name
and one in the name of Rory Roberts. Grant was advised of his rights and agreed
to be interviewed. During that interview, Grant stated that there was a fugitive
warrant issued for his arrest and that he needed to use a different name to avoid
arrest and prosecution in the United States. He explained to the detective that the
fugitive warrant was the result of an arrest that had occurred in Tampa on a charge
of attempting to purchase cocaine from undercover Customs agents and that he
failed to appear in court and had fled to Jamaica in order to avoid prosecution on
that charge.
B. PROCEDURAL HISTORY
A superseding indictment was returned on March 19, 1998 charging Grant
with one count of conspiracy to possess with intent to distribute cocaine and
marijuana, in violation of 21 U.S.C. § 846, and one count of use of a firearm
6
during a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Grant was
convicted by a jury on both counts on May 19, 1998.
On May 14, 1998 Grant was indicted for failing to appear at the May 17,
1993 show cause hearing, in violation of 18 U.S.C. § 3146(a)(1). After a bench
trial, Grant was convicted of that charge on October 7, 1998.
At a consolidated sentencing hearing on June 18, 1999, Grant was sentenced
to imprisonment for 145 months for the conspiracy conviction, 60 months for the
firearms conviction, and 6 months for the failure to appear conviction, all sentences
to run consecutively. Grant filed a motion for a new trial and a renewed motion for
judgment of acquittal, both of which were denied. Grant appeals his convictions
on several grounds. Among other things, he argues that there was insufficient
evidence to sustain his convictions on the failure to appear and the conspiracy
charges. Grant also argues that evidence which would have impeached testimony
elicited from Wilson at trial was improperly excluded, in violation of Federal Rule
of Evidence 806.1
II. DISCUSSION
1
Because of our holding on this issue, we need not decide the other issues Grant raises in
his appeal, including Brady violations and an Apprendi challenge to his sentencing.
7
A. THE JURISDICTIONAL QUESTION
As a threshold matter, we must decide whether Grant’s appeal of the
conspiracy and firearms charges is timely. After Grant’s consolidated sentencing
hearing, the district court entered one judgment as to both cases. The judgment
bore the district court case numbers for the conspiracy and firearms charges (93-
83-CR-T-26B) and for the failure to appear charges (98-198-CR-T-26C). The
judgment was entered on June 24, 1999 as to case number 98-198-CR-T-26C, and
on June 28, 1999 as to case number 93-83-CR-T-26B.
On June 28, 1999, Grant filed a notice of appeal which stated that he was
appealing “the Judgment and Committment [sic] entered in this action on June 18,
1999.”2 The notice of appeal, however, bore only one case number, 98-198-CR-T-
26C (the failure to appear case).
On August 31, 1999, Grant filed a second notice of appeal bearing case
number 93-83-CR-T-26B (the 1993 drug case), along with a “motion to submit an
out-of-time appeal,” which indicated that case number 93-83-CR-T-26B had been
2
Although the district court judge signed the judgment on June 22, 1999, the judgment
states that the date of imposition of sentence is June 18, 1999, which was the date that the
sentence was orally pronounced. Cf. United States v. Morrison, 204 F.3d 1091, 1093-94 (11th
Cir. 2000) (“imposition of sentence” in Federal Rule of Criminal Procedure 35(c) means the oral
pronouncement of it, not the time the written judgment is entered).
8
inadvertently omitted from the first notice of appeal due to a clerical error. On
October 1, 1999, the district court granted the motion to file out of time.
“The timely filing of a notice of appeal is a mandatory prerequisite to the
exercise of appellate jurisdiction.” United States v. Ward, 696 F.2d 1315, 1317
(11th Cir. 1983) (citations omitted). Pursuant to Federal Rule of Appellate
Procedure 4(b)(1)(A), a defendant in a criminal case must file a notice of appeal
within 10 days after the entry of the judgment. Grant’s second notice of appeal,
regarding the 1993 drug case, was not filed within this 10 day window.
Rule 4(b) authorizes a 30 day extension upon a finding by the district court
that the failure to file within the original period resulted from “excusable neglect.”
Fed. R. App. P. 4(b)(4). Grant’s second notice of appeal, however, was filed on
August 31, 1999, more than 30 days late, and therefore does not fall within the
Rule 4(b)(4) window, either.
Nonetheless, Federal Rule of Appellate Procedure 3(c)(4) provides that “[a]n
appeal must not be dismissed for informality of form or title of the notice of
appeal.” The advisory committee notes to that Rule state that “so long as the
function of notice is met by the filing of a paper indicating an intention to appeal,
the substance of the rule has been complied with.” Fed. R. App. P. 3 advisory
committee note. Further, “the [R]ule makes it clear that dismissal of an appeal
9
should not occur when it is otherwise clear from the notice that the party intended
to appeal.” Id.; see also Smith v. Barry, 502 U.S. 244, 248-49,
112 S. Ct. 678, 682
(1992) (“If a document filed within the time specified by Rule 4 gives the notice
required by Rule 3, it is effective as a notice of appeal.”).
Although Grant’s first notice of appeal only references case number 98-198-
CR-T-26C, it also states that he appeals “from the Judgment and Committment
[sic] entered in this action on June 18, 1999.” As we have mentioned, a
consolidated sentencing hearing on both cases was held in the district court, and
there was only one judgment and commitment order entered for both cases. That
leads us to conclude that a timely notice of appeal was filed from the single
judgment and commitment order, even though that notice of appeal mentioned only
one of the two case numbers. We hold that Grant’s first notice of appeal indicates
an intent to appeal both cases and that we do have jurisdiction. See Cobb v. Lewis,
488 F.2d 41, 44 (5th Cir. 1974) (“Courts of appeals have discretion, when the
interests of substantive justice require it, to disregard irregularities in the form or
procedure for filing a notice of appeal.”), abrogated on other grounds, Kotam
Elects., Inc. v. JBL Consumer Prods., Inc.,
93 F.3d 724 (11th Cir. 1996).
B. SUFFICIENCY OF EVIDENCE TO CONVICT ON THE FAILURE TO
APPEAR CHARGE
10
Grant argues that there was insufficient evidence to support his conviction
for failure to appear in violation of 18 U.S.C. § 3146(a)(1), because there was no
direct evidence that he received notice of the May 17, 1993 hearing on the order to
show cause. He suggests that we conduct a de novo review of the evidence.
We cannot try the case de novo but instead must sustain the verdict if there
is substantial evidence to support it. Glasser v. United States, 315 U.S. 60, 80,
62
S. Ct. 457, 469 (1942). In deciding whether there was, we view the evidence in the
light most favorable to the government and give the government the benefit of all
reasonable inferences and credibility choices. Id.; United States v. Middleton,
690
F.2d 820, 827 (11th Cir. 1982).
The evidence shows without dispute that the clerk’s office sent Grant notice
of a hearing on an order to show cause concerning modification or revocation of
his bond, which was scheduled for May 17, 1993, and that Grant did not appear at
that hearing. He was arrested almost five years later, and at the time of his arrest
he was using an alias. He also told the arresting detective that he had skipped bond
and fled the country in order to avoid prosecution. He admitted to the detective
that he knew there was a warrant issued for his arrest and said that he had been
using a false name to avoid arrest. He specifically said that he had failed to appear
in court. That is more than sufficient evidence to support the conviction.
11
C. SUFFICIENCY OF THE EVIDENCE TO CONVICT
ON THE CONSPIRACY CHARGE
Next, Grant contends that there was insufficient evidence to establish that he
knowingly agreed to join or participate in a conspiracy with Wilson to possess and
distribute cocaine and marijuana.3 He argues that his presence and association with
Wilson, coupled with evidence of flight, is insufficient to sustain his conspiracy
conviction.
In order to establish the existence of a drug conspiracy between Grant and
Wilson, the government must prove that there was an agreement between the two
of them to violate the narcotics laws. See United States v. Farris, 77 F.3d 391, 394
(11th Cir. 1996); United States v. Blasco,
702 F.2d 1315, 1330 (11th Cir. 1983).
The existence of a conspiracy can be established by either direct evidence or
circumstantial evidence, such as inferences drawn from conduct.
Farris, 77 F.3d at
394; Blasco,
702 F.2d 1330.
The evidence supporting Grant’s involvement in the conspiracy, viewed in
the light most favorable to the conviction, is as follows. Grant traveled from
Jamaica to Florida on March 18, 1993, the same day that Wilson traveled from
Jamaica to Florida to conduct the cocaine transaction and one day before the
3
Grant does not challenge the sufficiency of the evidence to support his conviction on the
firearms charge.
12
transaction occurred. Grant then met Wilson at a bank, they left the bank together,
and they drove by the residence where the cocaine transaction was to occur. Grant
and Wilson then went to a restaurant, and after a short while Grant drove Wilson,
who now possessed $50,000 in currency, to the residence of the undercover agent.
At that residence, Wilson took delivery of one kilogram of cocaine and left after
telling the agent that he was going to deliver the cocaine to the buyer. At the time
of Wilson’s arrest, almost immediately after his departure from the residence, he
was on the telephone with Grant. Following his arrest, Grant admitted to the agent
that while he was in Jamaica he had been contacted by Wilson to come to the
United States to participate in a marijuana transaction. Grant was arrested after a
high-speed flight from the area following Wilson’s arrest, and there were loaded
weapons and a large amount of cash in the vehicle. Grant later fled the country in
order to avoid prosecution.
Based on this evidence, a reasonable jury could find beyond a reasonable
doubt, as the jury in this case did, that Grant was guilty of conspiracy to possess
with intent to distribute cocaine and marijuana. See Farris, 77 F.3d at 394-95.
D. THE RULE 806 ISSUE
13
At trial, the government used as evidence against Grant statements that had
been made by co-conspirator Wilson during the course of the conspiracy. Those
statements were admitted under Federal Rule of Evidence 801(d)(2)(E), which
allows co-conspirator statements to be admitted as substantive evidence against a
defendant. Agent Mozas testified extensively regarding statements Wilson had
made to him during the course of the conspiracy while Mozas was acting
undercover. Those statements involved: (1) Wilson’s plans to import marijuana
into the United States; (2) Wilson’s claims that he had a partner in Jamaica who
was his neighbor; (3) Wilson’s comments that he had buyers who would assist him
in distributing marijuana and cocaine; and (4)Wilson’s intent, after purchasing one
kilogram of cocaine from the undercover agent, to take the cocaine to his partner
for testing and evaluation.
The statements of Wilson that Mozas testified about on direct examination
did not directly mention Grant, but on cross-examination when asked whether
Grant was ever present during any of the transactions between the undercover
agents and Wilson, Mozas testified that Wilson had told him Grant was in
Homosassa Springs and did not want to meet with anyone.
Grant attempted to impeach the Wilson conspiracy statements that had been
put into evidence through Mozas’ testimony by introducing an affidavit which an
14
attorney for Grant had obtained from Wilson in Jamaica. The affidavit was
executed after the conspiracy ended and following Wilson’s deportation to that
country. The affidavit contained Wilson’s sworn statements: that Grant had no
knowledge of Wilson’s actions in consummating the drug deal with the agents; that
Wilson had falsely told the undercover agents he had a partner because Wilson did
not want them to think he was acting alone; that Wilson had asked Grant to meet
him in Tampa to loan him money; that none of the $50,000 in cash Wilson
possessed came from Grant; and that Wilson had lied to the undercover agents
about Grant not wanting to meet with anyone because Wilson was carrying a large
amount of cash and wanted the undercover agents (whom he believed to be
criminals) to think he had a partner. The district court refused to admit any of
Wilson’s affidavit statements, however, finding that they were not inconsistent, as
required by Rule 806, with the statements of Wilson admitted through Mozas’
testimony.
Federal Rule of Evidence 806 provides, in relevant part:
When a hearsay statement, or a statement defined in Rule
801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility
of the declarant may be attacked, and if attacked may be supported, by
any evidence which would be admissible for those purposes if
declarant had testified as a witness. Evidence of a statement or
conduct by the declarant at any time, inconsistent with the declarant’s
hearsay statement, is not subject to any requirement that the declarant
may have been afforded an opportunity to deny or explain.
15
Fed. R. Evid. 806.
The government’s principal argument mirrors the district court’s reasoning
that none of the statements in Wilson’s affidavit are inconsistent with or
contradictory to Wilson’s conspiracy statements which were admitted through
Mozas’ testimony. The government points out that none of Wilson’s conspiracy
statements which were admitted at trial specifically identify Grant as Wilson’s
partner or as the source of any money used in the transaction. The only testimony
that specifically identifies Grant, which was that Wilson had told the agents Grant
was in Homosassa Springs and did not want to meet anyone, was elicited by Grant
on cross-examination of Wilson and was not, the government contends,
contradicted by anything in Wilson’s affidavit.
The government’s conception of inconsistency is too narrow. Although
Grant was specifically identified by Mozas only during cross-examination, his
testimony in its entirety did circumstantially link Grant to the conspiracy. At the
very least, it indicated that Wilson had a co-conspirator. The government attempted
to avoid Rule 806 by carefully ensuring that Mozas, in testifying about Wilson’s
statements during the conspiracy, never specifically identified Grant as Wilson’s
co-conspirator, at least on direct examination, and then presenting other evidence
16
indicating that Grant was Wilson’s co-conspirator.4 Wilson’s statements in the
proffered affidavit, however, indicate that he had no co-conspirator and, further,
that Grant had no involvement in Wilson’s drug transactions.
The Rule 806 test is not whether the inconsistent statements relate to the
identity of co-conspirators; that’s not what the Rule says. Instead, it says that
“any” evidence is admissible “which would be admissible . . . if [the] declarant had
testified as a witness” from the stand. Fed. R. Evid. 806. If Wilson had been called
as a witness and testified, for example, that he was taking the cocaine he was
buying to his partner to test and evaluate it, his affidavit statements indicating that
he had lied to the agents when he told them he had a partner would surely be
admissible. Likewise, if Wilson had testified and during cross-examination had
said that Grant did not want to meet with anyone, his affidavit statement that he had
lied about that would be admissible to impeach him. The test is whether the out-of-
court statements would have been admissible for impeachment purposes had the co-
4
That other evidence included the fact that Grant traveled from Jamaica to Florida on the
same day that Wilson did, met Wilson at a bank and left with him, and they drove by the
undercover residence together. Grant and Wilson also went to a restaurant together, before
Grant drove Wilson, who possessed $50,000 in cash, to the undercover residence. At the time of
his arrest, Wilson was on the telephone with Grant, and Grant admitted that while he was in
Jamaica Wilson had contacted him to come to the United States to participate in a marijuana
transaction. Grant was also arrested after a high-speed flight shortly after Wilson’s arrest in a
vehicle containing two firearms and a large amount of cash. Grant later fled the country to avoid
prosecution.
17
conspirator statements been delivered from the witness stand by the co-conspirator
himself, not as hearsay about what he said during the conspiracy but as
contemporaneous in-court statements.
The government’s position in this case echos its unsuccessful argument in
United States v. Wali, 860 F.2d 588 (3d Cir. 1988), which involved a remarkably
similar Rule 806 issue. That case involved Abdul Wali’s conviction on charges of
conspiracy to import Schedule I controlled substances in violation of 21 U.S.C. §§
846 & 963.
Wali, 860 F.2d at 589. An undercover DEA agent testified at Wali’s
trial as to statements made during the conspiracy by a drug kingpin, Stanley Karl
Esser, which implicated a person named “Hadji” as the source of narcotics.
Id. The
district court, however, denied Wali’s attempt to impeach Esser’s credibility by
admitting inconsistent statements Esser had made to the undercover DEA Agent
and to Dutch authorities which exonerated Wali.
Id. at 589-90.
On appeal, the government argued that Esser’s exculpatory statements were
not inconsistent and therefore not admissible pursuant to Rule 806, because in his
inculpatory co-conspirator statements “Esser never stated that Abdul Wali was
either the source of his narcotics or the ‘Hadji’ who supplied him.” Id. at 591. The
government claimed that Wali’s identity as the “Hadji” who supplied the narcotics
was established only circumstantially through evidence other than the co-
18
conspirator statements. Id. The Third Circuit rejected that argument, holding that
although Esser’s co-conspirator statements never specifically identified Wali as the
“Hadji” who was the source of his narcotics, the government had used those
statements to prove the existence of a conspiracy to import drugs, thereby
inculpating Wali.
Id.
The Third Circuit’s analysis in Wali is sound and fits snugly onto our facts.
The government used Wilson’s co-conspirator statements to help establish the
existence of a conspiracy to distribute cocaine and marijuana, which is one of the
elements of the crime charged against Grant. The statements in Wilson’s affidavit
were inconsistent with the existence of any conspiracy at all, and for that reason
were inconsistent with his co-conspirator statements.
The government’s first fallback argument is that even if the co-conspirator
statements of Wilson admitted at trial were inconsistent with the affidavit
statements, the affidavit is inadmissible under Federal Rule of Evidence 4035
because its probative value is outweighed by its prejudicial effect. That is not the
ground upon which the district court excluded the evidence. Nonetheless, the
5
Federal Rule of Evidence 403 provides, in relevant part:
Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice . . .
Fed. R. Evid. 403.
19
government maintains that the affidavit evidence would be unfairly prejudicial
because the statements, if believed, would provide Grant with a complete defense,
rather than merely impeaching Wilson’s co-conspirator statements admitted through
Mozas.
Rule 403 is an "extraordinary remedy," United States v. Utter, 97 F.3d 509,
514-15 (11th Cir. 1996) (citation omitted), whose "major function . . . is limited to
excluding matter of scant or cumulative probative force, dragged in by the heels for
the sake of its prejudicial effect," United States v. Cross,
928 F.2d 1030, 1048 (11th
Cir. 1991) (internal quotation omitted). The Rule carries a "strong presumption in
favor of admissibility." United States v. Church,
955 F.2d 688, 703 (11th Cir.
1992). Wilson’s inculpatory co-conspirator statements were important pieces of
evidence in the government’s case. The impeaching statements in the affidavit
would serve to cast doubt on Wilson’s credibility and would have significant
probative value for that purpose. Whatever prejudice to the government that might
occur from admitting the affidavit statements could not substantially outweigh their
probative value, anymore than it could if those affidavit statements had been
admitted for impeachment following live testimony of Wilson to the same effect as
his co-conspirator statements. The evidence of the affidavit statements could do no
more than impeach and could not provide “a complete defense” if the government
20
requested the limiting instruction to which it would have been entitled. See Weeks
v. Angelone, 528 U.S. 225, 234,
120 S. Ct. 727, 733 (2000) (“A jury is presumed to
follow its instructions.”).
The government’s second fallback argument is that Wilson’s affidavit
statements were properly excluded from evidence because they were particularly
unreliable, even though that was not the basis of the district court’s ruling. The
government points out that Wilson continued to inculpate Grant in the conspiracy
after his arrest and before a federal grand jury, and only gave statements
exculpating Grant after he had been deported to Jamaica and was no longer subject
to prosecution for perjury.6 The government maintains that because the statements
in the affidavit were so unreliable, admitting them would not have affected the
outcome of the trial – sort of a harmless error argument.
The government’s argument on this point is more than a little inconsistent
with its Rule 403 argument that the affidavit statements were terribly prejudicial to
6
Federal Rule of Evidence 806 provides that if the credibility of the declarant is attacked,
it may be supported by any evidence which would be admissible for those purposes if he testified
as a witness. We have no occasion to express a view upon whether the other out-of-court
statements of Wilson, such as his grand jury testimony, will be admissible once his affidavit
statements come into evidence.
Likewise, we do not have occasion to decide at this time whether, by giving affidavit
statements as Wilson did in this case, a co-conspirator waives his privilege against self-
incrimination. Nor do we express any view on whether, if the government attempts to depose
the co-conspirator affiant or call him to the stand, and he refuses to answer questions on the
subject matter addressed in his affidavit statements, those statements must be stricken.
21
its case. Putting that inconsistency aside, however, Rule 806 made the statements
admissible for impeachment purposes, and the point of admitting inconsistent
statements to impeach is not to show that they are true, but to aid the jury in
deciding whether the witness is credible; the usual argument of the party doing the
impeaching is that the inconsistent statements show the witness is too unreliable to
be believed on important matters. See United States v. Graham, 858 F.2d 986, 990
n.5 (5th Cir. 1988) (“[T]he hallmark of an inconsistent statement offered to impeach
a witness’s testimony is that the statement is not hearsay within the meaning of the
term, i.e., it is not offered for the truth of the matter asserted, see Fed. R. Evid.
801(c); rather, it is offered only to establish that the witness has said both ‘x’ and
‘not x’ and is therefore unreliable.”). Given all the circumstances of this case, that
strategy might well have worked to undermine the probative effect of Wilson’s co-
conspirator statements to such an extent that the verdict on the conspiracy charge
would have been different. For that reason, we reverse Grant’s conviction on that
charge.
As to Grant’s conviction for using a firearm during a drug trafficking crime,
in violation of 18 U.S.C. § 924(c), the conspiracy was the only drug trafficking
crime that the indictment alleged as that essential element of the firearms charge.
22
Accordingly, the exclusion of the affidavit statements also requires reversal of
Grant’s conviction on the firearms charge.
III. CONCLUSION
There was sufficient evidence to support Grant’s conviction for failure to
appear and we AFFIRM his conviction on that charge. We do have jurisdiction
over Grant’s appeal of the conspiracy and firearms charges, and there was sufficient
evidence to support Grant’s conviction on those charges. However, the district
court erroneously excluded Wilson’s statements contained in his affidavit and,
accordingly, we REVERSE the judgment of conviction and sentence for both the
conspiracy and firearms charges, and REMAND for further proceedings consistent
with this opinion.
23
