United States of America, Appellee, v. Jose Ramos-Caraballo, Appellant.
No. 03-2274
United States Court of Appeals FOR THE EIGHTH CIRCUIT
July 26, 2004
[PUBLISHED] Submitted: February 9, 2004
HANSEN, Circuit Judge.
Jose Ramos-Caraballo was convicted of possession with intent to distribute cocaine in violation of
At approximately 12:50 a.m. on March 16, 2002, Officer Aaron Hanson of the Omaha Police Department stopped an east-bound vehicle on I-80 in Omaha after he observed “some type of a large item hanging from the rearview mirror” in violation of Nebraska law. (Trial Tr. at 27-28.) There were two occupants in the vehicle: Ramos-Caraballo, the driver, and Frank Alvarez-Gayan, the passenger. Officer Hanson said they appeared nervous as he approached the vehicle. Hanson also noticed a strong smell of air freshener. On learning that the occupants primarily spoke Spanish, Officer Hanson attempted to converse with them in Spanish as best he could, informing them of the basis for the stop.
The item hanging from the rearview mirror turned out to be a seven-and-three-quarters-inch long air freshener shaped like a tree and still partially enclosed in its original packaging. Ramos-Caraballo immediately removed it on learning that it was the basis for the stop. Another air freshener was hanging on the steering column, and when Ramos-Caraballo retrieved the proof of insurance from the glove compartment, Officer Hanson noticed a can of deodorizer air spray in the compartment. Officer Hanson became suspicious because in his experience, strong perfume or deodorizers are often used to mask the transportation of illegal narcotics.
Ramos-Caraballo accompanied Officer Hanson to the police cruiser while the officer verified the registration and license. Through conversation, Hanson learned that the two men were traveling from California to Connecticut to visit Ramos-Caraballo‘s sick grandmother. Later, Ramos-Caraballo indicated that they were traveling to Massachusetts to visit his sick grandmother. The registration and license were valid, but Officer Hanson noticed that the car had been registered and insured in California only three days before this stop. He issued only a warning citation for the view obstruction violation, explaining as best he could in Spanish that no fine or
As Ramos-Caraballo began to exit the cruiser, however, Hanson asked if they had any weapons, bombs, or narcotics in the vehicle. Ramos-Caraballo said no, but Hanson noticed that he looked away when he answered the question about the narcotics. He and the passenger both consented to Officer Hanson‘s request to search the vehicle after reading a Spanish language consent form. In the trunk of the car, Officer Hanson noticed that the spare tire‘s metal rim looked worn. He retrieved a density meter from his patrol vehicle and determined that one half of the spare tire was more dense than the other. Ultimately, Hanson uncovered 955.8 grams of cocaine hidden in the spare tire. Officer Mark Langan testified at trial that this amount of cocaine is not associated with personal use but with distribution. Officer Hanson testified that when he arrested Ramos-Caraballo, he appeared deflated and did not show much emotion.
Prior to trial, Ramos-Caraballo filed a motion to suppress the evidence seized as a result of the traffic stop and search, arguing that Officer Hanson stopped his vehicle without reasonable suspicion. The district court denied the motion, and the case proceeded to trial.
During trial, defense counsel attempted to impeach Officer Hanson with claimed inconsistent statements in his police report as well as statements in his sworn testimony before the grand jury and at the suppression hearing. Most of these statements concerned the defendant‘s demeanor and mannerisms, and they exposed at best slight deviations from Officer Hanson‘s trial testimony.
On redirect examination, the government offered as exhibits Officer Hanson‘s police report, a transcript of his grand jury testimony, and a transcript of his testimony from the suppression hearing, asserting that these entire documents were necessary
II.
A. Motion to Suppress
Ramos-Caraballo challenges the district court‘s denial of his motion to suppress, arguing that, contrary to the Fourth Amendment, the officer did not have a reasonable articulable basis for the stop of his vehicle. “When reviewing the district court‘s ruling on a motion to suppress, we review its fact-finding for clear error and its ultimate application of the law to the facts de novo.” United States v. Scroggins, 361 F.3d 1075, 1079 (8th Cir. 2004). “We must affirm an order denying a motion to suppress unless the decision is unsupported by substantial evidence, is based on an erroneous view of the applicable law, or in light of the entire record, we are left with a firm and definite conviction that a mistake has been made.” United States v. Rodriguez-Hernandez, 353 F.3d 632, 635 (8th Cir. 2003).
An automobile stop is subject to the Fourth Amendment imperative that the stop must be reasonable. Whren v. United States, 517 U.S. 806, 810 (1996). A vehicle stop is reasonable if it is supported by either probable cause to believe that a traffic violation has occurred, id., or an articulable and reasonable suspicion that criminal activity is afoot, Delaware v. Prouse, 440 U.S. 648, 663 (1979). “It is well established that a traffic violation—however minor—creates probable cause to stop the driver of a vehicle.” United States v. Hamby, 59 F.3d 99, 101 (8th Cir. 1995) (internal quotation marks omitted).
We respectfully disagree with this reading of the statute. The plain language of the statute unambiguously provides that “any object” that obstructs a clear and full view through the windshield violates Nebraska law.
Ramos-Caraballo also argues that Officer Hanson‘s observations were not reasonably trustworthy because the vehicle was traveling sixty miles an hour, it was dark outside, and Hanson observed the alleged violation for only a short time as the
We affirm the district court‘s denial of Ramos-Caraballo‘s motion to suppress.
B. Evidentiary Rulings
During trial, Ramos-Caraballo attempted to impeach Officer Hanson on cross-examination with what he characterizes as prior inconsistent statements made in the officer‘s grand jury testimony, suppression hearing testimony, and police report. The defense attorney impeached Hanson on some particulars, demonstrating among other things that, while Hanson‘s trial testimony was that Ramos-Caraballo had thrown down the air freshener when advised of the violation, his police report simply said Ramos-Caraballo placed it on the console between the seats. The defense counsel brought up Hanson‘s failure to mention in his police report that a handwritten note with the grandmother‘s name and address was found in Ramos-Caraballo‘s wallet. The defense also demonstrated particular variances between Hanson‘s trial testimony and his prior sworn testimony about the demeanor of Ramos-Caraballo and his passenger during the stop. Hanson testified at trial that they appeared “overly nervous,” “wide-eyed nervous,” and more nervous “than 95% of the people,” while his prior sworn testimony at the grand jury proceedings and the suppression hearing
On redirect examination, the government offered three exhibits: Exhibit 7, the complete grand jury testimony of Officer Aaron Hanson; Exhibit 8, the complete transcript of Officer Hanson‘s testimony at the suppression hearing; and Exhibit 103, Officer Hanson‘s police report from March 16, 2002. Defense counsel objected to the admission of these exhibits in their entirety. The government countered that because defense counsel referenced parts of these documents, it was entitled to admit each document in its entirety pursuant to
In considering claims of evidentiary error in applying Rule 106, we give substantial deference to the district court‘s decisions on admissibility and will find error only if there has been a clear abuse of discretion. United States v. Bolden, 92 F.3d 686, 687 (8th Cir. 1996); see United States v. King, 351 F.3d 859, 866 (8th Cir. 2003) (reviewing Rule 106 admissibility decision for an abuse of discretion), cert. denied, 2004 WL 1300613, 72 USLW 3749 (June 14, 2004); see also United States v. Blue Bird, No. 03-2544, 2004 WL 1398827 (8th Cir. June 23, 2004) (noting that we properly accord deference to the trial judge regarding the application of evidentiary rules that “require a balancing of how particular evidence might affect the jury“). Rule 106 provides that “[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that
This case does not involve a situation where “a misunderstanding or distortion created by the other party can only be averted by the introduction of the full text of the out-of-court statement.” Id. The defense took what inconsistencies it could find in Officer Hanson‘s prior testimony and police report and made the most of them, but revealing these inconsistencies did not warrant a submission of the officer‘s entire prior grand jury testimony, the entirety of his suppression hearing testimony, and his police report. The government made no attempt to specify which portions of these documents were relevant to the issues raised on cross-examination. In our view, this looks more like a government attempt to improperly bolster its witness by admitting the officer‘s entire testimony again and again through these exhibits. The rule of completeness permits nothing more than setting the context and clarifying the
Where the prior statements merely bolstered a witness‘s credibility by repeating testimony already in evidence, however, the error in admitting the prior statements, standing alone, may be harmless. See Simonelli, 237 F.3d at 29. Where the evidence is at most “an extra helping of what the jury had heard before,” the evidence is merely cumulative and its admission does not result in reversible error. Id.; see United States v. White, 11 F.3d 1446, 1451 (8th Cir. 1993) (“Erroneously admitting evidence at trial may be said to be harmless if other evidence to the same effect was properly before the jury.“) (internal marks omitted). Especially where there is strong evidence of guilt, “some improper repetition of testimony through what a witness said to a grand jury, in a generalized effort to bolster the witness, matter[s] little.” Simonelli, 237 F.3d at 29. There could be circumstances, however, where that “extra helping” of evidence “can be so prejudicial as to warrant a new trial.” Id. Our review has convinced us that this is not such a case.
We have carefully reviewed the transcripts and exhibits admitted because we are troubled by the error of admitting these exhibits wholesale without requiring the
Ramos-Caraballo also asserts that prejudice arose from the fact that the grand jury testimony and the police report were not subject to cross-examination. We disagree. In this case, the officer appeared at trial and was subjected to extensive cross-examination concerning alleged inconsistencies between his trial testimony, his prior testimony, and his report. While the entire transcript was not relevant to counter the prior inconsistencies alleged by Ramos-Caraballo, he cannot claim prejudice from the lack of cross-examination in the prior proceedings where the witness testified at trial. There is also no confrontation problem at trial where the declarant testifies as a witness and is “subject to full and effective cross-examination.” United States v. Russell, 712 F.2d 1256, 1258 (8th Cir. 1983) (citing California v. Green, 399 U.S. 149, 158 (1970)).
Accordingly, we affirm the judgment of the district court.