UNITED STATES of America, Plaintiff-Appellee v. Torrance L. COTTON, Defendant-Appellant.
No. 14-3141.
United States Court of Appeals, Eighth Circuit.
May 19, 2016.
Rehearing and Rehearing En Banc Denied July 13, 2016.
823 F.3d 430
Submitted: Sept. 23, 2015.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
Sirena Miller Wissler, AUSA, argued, Saint Louis, MO, for Plaintiff-Appellee.
Before WOLLMAN, COLLOTON, and KELLY, Circuit Judges.
KELLY, Circuit Judge.
Torrance Cotton appeals his convictions for conspiracy to distribute and pоssession with intent to distribute cocaine. After careful review of the issues raised, we find no reversible error and affirm the judgment of the district court.1
I. Background
In 2012, the Drug Enforcement Administration (DEA) began an investigation into the suspected drug trafficking activities of Jeremy Poe. After Poe was arrested in January 2013 in possession of a kilogram of cocaine, he agreed to cooperate with the DEA and assist them in their investiga-
As a result of this investigation, Torrance Cotton was indicted on May 1, 2013, and charged with one сount of conspiracy to distribute cocaine and one count of possession with intent to distribute cocaine. Cotton was convicted of both counts following a jury trial on April 3, 2014. On appeal, Cotton contests the admission of evidence of his prior convictions, admission of a statement made by David Frazier after his arrest, and denial of his motion for a new trial based on a Brady violation.
II. Discussion
A. Admission of Evidence of Prior Convictions
Cotton asserts that the district court improperly allowed the government to introduce evidence of his prior convictions for possession of cocаine with intent to distribute and attempted drug trafficking. Because Cotton did not make a contemporaneous objection to the introduction of this evidence, our review is for plain error unless the district court made a final and definitive pretrial ruling on the admissibility of this evidence. United States v. Young, 753 F.3d 757, 775 (8th Cir.2014). The admissibility of the evidence was addressed at two pretrial conferences, on November 26, 2013, and January 23, 2014. At both pretrial conferences, the district court made a provisional, non-definitive ruling that the evidence was admissible, specifically anticipating a contemporаneous objection at trial. However, before voir dire began on March 31, 2014, the district court again addressed the admissibility of the evidence of Cotton‘s prior convictions, stating “I do think that there is still a basis to introduce this 404(b) evidence.... So the objection will be overruled. I will, as I say, before that evidence is sought to be introduced, want to see a limiting instruction.” This March 31 ruling was, by its terms, final, definitive, and non-provisional. Cf. id. (“when the district court reserves its ruling or otherwise indicates that the ruling is provisional, then the proponent should reintroduce the court to the issue at the appropriate time“) (emphasis added). The court stated that the objection “will be overruled,” and referred to an anticipated limiting instruction with regard to the evidence that would be admitted. At this point, the court‘s ruling on the admissibility of the evidence was clear, and counsel would no longer have had any reason to doubt whether that ruling was definitive. See id.;
Evidence of a defendant‘s prior convictions is categorically inadmissible to prove the defendant‘s criminal propensity.
Here, there is reason to be concerned that the evidence was not properly admitted under
Nevertheless, under the particular circumstances of this case, any error in admitting the еvidence of Cotton‘s prior convictions was harmless. An evidentiary error is harmless if it did not substantially influence the jury‘s verdict. United States v. Aldridge, 664 F.3d 705, 714 (8th Cir.2011). Error may be harmless where “the government introduced ample competent evidence from which the jury could conclude beyond a reasonable doubt that the defendant was guilty even without the evidence that should have been excluded.” Id. (quoting United States v. Falls, 117 F.3d 1075, 1077 (8th Cir.1997)). Here, the evidence against Cotton included: the testimony of Jeremy Poe, including David Frazier‘s statements to Poe that Cotton was his cocaine supplier; recorded conversations from Januаry 17, 2013, in which Frazier referred to “T” and “Torrance“; testimony from the DEA agents that Cotton arrived at Chilimacks on January 18, 2013, with a package under his arm; and Cotton‘s fingerprints on the outside wrapping of the cocaine found in Frazier‘s safe. This evidence, if given credence by the jury, is “sufficiently strong for us to conclude that the conviction[s], even if improperly admitted, did not have ‘a substantial influence on the jury‘s verdict.‘” United States v. Donnell, 596 F.3d 913, 921 (8th Cir.2010) (quoting United States v. Lupino, 301 F.3d 642, 645 (8th Cir.2002)). Furthermore, the district court gave an appropriate limiting instruction stating that the evidence of Cotton‘s prior convictions “[was] not evidence that he cоmmitted such acts in this case,” and could only be used “to help [] decide knowledge, intent, and absence of mistake or accident.” The presence of a limiting instruction “diminishes the danger of any unfair prejudice arising from the admission of other acts.” Aldridge, 664 F.3d at 715 (quoting United States v. Strong, 415 F.3d 902, 906 (8th Cir.2005)).
We do not underestimate the impact evidence of a prior conviction can have on a jury‘s assessment of a criminal case. The Federal Rules of Evidence limit the use of evidence of prior convictions for good reason.
B. Introduction of David Frazier‘s Post-Arrest Statement
At Cotton‘s trial, co-conspirator David Frazier did not testify but Jeremy Poe did. The government presented Frazier‘s co-conspirator statements through Poe‘s testimony. Cotton sought to impeach Frazier by introducing a portion of an affidavit written and attested by Frazier in July 2013, months after Frazier‘s arrest. The impeachment evidence was initially limited to the following statement in Frazier‘s affidavit: “I never had any drug involvement with Mr. Cotton at all....” The government then attempted to rehabilitate Frazier by calling the police officer who interviewed Frazier after he was arrested on January 18, 2013. The officer testified to Frazier‘s statement following his arrest, which—consistent with Frazier‘s co-conspirator statements introduced through
Cotton first argues that admission of Frazier‘s post-arrest statement violated his rights under the Confrontation Clause. Because the statement was offered for impeachment and not to prove the truth of the matter asserted, there was no Confrontation Clause violation in this case. See United States v. Rodriguez, 484 F.3d 1006, 1013-14 (8th Cir.2007); United States v. Kehoe, 310 F.3d 579, 591 (8th Cir.2002).
Cotton next argues that Frazier‘s statement was inadmissible under the Rules of Evidence. We begin by analyzing the admissibility of each piece of evidence offered in the relevant series. First, David Frazier‘s co-conspirator statements were undisputedly admissible as non-hearsay co-conspirator statements pursuant to Rules
What is at issue is whether Frazier‘s post-arrest statement was admissible as rehabilitation evidence. Cotton argues that the only Rule of Evidence that could support admission of Frazier‘s post-arrest statement is
mony is not hearsay if the statement is
Instead, the district court admitted the рost-arrest statements “under
Use of a prior consistent statement to rehabilitate the credibility of a witness who has been impeached by a prior inconsistent statement is appropriate when the statement contextualizes, clarifies, or amplifies thе meaning of the witness‘s testimony or inconsistent statement. See Hoover, 543 F.3d at 453; United States v. Kenyon, 397 F.3d 1071, 1081 (8th Cir.2005). For example, a prior consistent statement may be admissible to explain to the jury why a seemingly inconsistent prior statement elicited on cross-examination was not in fact inconsistent at all. See Hoover, 543 F.3d at 454. However, “it is not proper to admit ‘all prior consistent statements simply to bolster the credibility of a witness who has been impeached by particulars.‘” United States v. Ramos-Caraballo, 375 F.3d 797, 803 (8th Cir.2004) (quoting United States v. Simonelli, 237 F.3d 19, 28 (1st Cir.2001)). In other words, prior consistent statements are not admissible as rehabilitative evidence to the extent that they are merely cumulative оf the testimony already presented; but they may be admissible to the extent that they explain either the testimony or the impeaching inconsistent statement, and therefore allow the jury to better assess the substantive evidence presented.
Whether a witness may be properly rehabilitated by the introduction of a prior consistent statement is a fact-based inquiry, and the decision to admit or exclude such evidence is left to the sound discretion of the district court. Kenyon, 397 F.3d at 1081.
We also note that Cotton was permitted to introduce all the evidence he sought to introduce on this issue. Only because the post-arrest statement was admitted was Cotton allowed to introduce Frazier‘s full affidavit, which ostensibly exculpated Cotton of any drug-related involvement with Frazier. Furthermore, Fraziеr‘s post-arrest statement was not substantively different or significantly more harmful than the statements originally admitted through Poe‘s testimony as co-conspirator statements, making it unlikely that the statement had any prejudicial effect. Cf. Kenyon, 397 F.3d at 1082. Under these somewhat complex and unusual circumstances, the district court did not abuse its discretion in allowing the post-arrest statement to be admitted.
C. Brady Evidence
After Jeremy Poe was arrested on January 14, 2013, he identified Cotton in a photograph shown to him by DEA agents. At trial, the government introduced a photograph of Cotton into evidence as Government‘s Exhibit 1. Several government witnesses, including Poe, were shown Exhibit 1 and identified it as the photograph that had been shown to Poe in order to identify Cotton in January 2013. However, the photograph shown at trial (Exhibit 1) had been taken on November 1, 2013. Cotton asserts that the government suppressed the earlier photograph—the one actually shown to Poe in January 2013—in violation of his Brady rights.
A Brady violation occurs when the government suppresses evidence that is favorable to a defendant and is material as
the evidence was not material. Poe‘s identification of Defendant Cotton was not central to the evidence in this case.... Moreover, the case agents and Poe were fully cross-examined and impeached at trial on the issue of Government Exhibit 1. At most, this evidence would be cumulative impeachment evidence.
We agree with the district court. There is no reasonable probability that the result of the proceeding wоuld have been different had the earlier photograph been disclosed to Cotton. Accordingly, there was no Brady violation associated with the government‘s failure to disclose the photograph, and the district court did not abuse its discretion in denying Cotton‘s motion for a new trial.
III. Conclusion
For the foregoing reasons, we affirm the judgment of the district court.
COLLOTON, Circuit Judge, concurring in part and concurring in the judgment.
I concur in all but Parts II.A and III of the court‘s opinion. In my view, the district court did not abuse its discretion in admitting evidence of Torrance Cotton‘s prior convictions, and I do not join the court‘s dicta concerning the application of
In this case, Cotton was charged with conspiracy to distribute cocaine and possession with intent to distribute cocaine. The conspiracy charge required proof that Cotton voluntаrily and intentionally joined an agreement, and that he knew the purpose of the agreement. On the substantive count, the government was required to prove that Cotton knew that what he possessed was cocaine, as opposed to some other substance, and that he intended to distribute the cocaine, rather than use it, store it, or otherwise dispose of it. Cotton‘s prior convictions were relevant on the issues of knowledge or intent. It was more probable with the evidence of prior convictions than without it, for example, that Cotton knew thе substance he possessed was cocaine and that he intended to distribute it. See United States v. Crowder, 141 F.3d 1202, 1209 (D.C.Cir.1998) (en banc). The evidence of prior convictions likewise made it more probable that Cotton knew that he joined a conspiracy to distribute cocaine and did not participate
In a drug trafficking prosecution, evidence of a prior drug conviction is nearly always relevant to show a defendant‘s knowledge or intent in committing the charged offense. See, e.g., United States v. Armstrong, 782 F.3d 1028, 1034 (8th Cir.2015); United States v. Horton, 753 F.3d 569, 579-80 (8th Cir.2014); United States v. Gipson, 446 F.3d 828, 831 (8th Cir.2006); United States v. Frazier, 280 F.3d 835, 847 (8th Cir.2002); United States v. Williams, 895 F.2d 1202, 1205 (8th Cir.1990). Admission of prior convictions to prove absence of mistake in a drug case is perhaps less common, but it is also supported by circuit precedent. United States v. Ellis, 817 F.3d 570, 579 (8th Cir.2016) (“Ellis‘s prior conviction was for delivering heroin—the very drug he was charged with distributing in this case, which made the prior conviction particularly relevant to knowledge, intent, and absence of mistake.“); United States v. McGilberry, 620 F.3d 880, 886-87 (8th Cir.2010); United States v. Shoffner, 71 F.3d 1429, 1432 (8th Cir.1995) (“Shoffner‘s prior involvement in marijuana dealing also tends to prove motive, knowledge, and absence of mistake to rebut Shoffner‘s claim that he was merely present and unaware of the conspiracy.“). The district court here gave a cautionary instruction to the jury, explaining the limited purposеs for which the evidence of prior convictions was received. This instruction “diminishe[d] the danger of any unfair prejudice arising from the admission of other acts.” United States v. Franklin, 250 F.3d 653, 659 (8th Cir.2001). The district court did not abuse its discretion in concluding that the probative value was not substantially outweighed by a danger of unfair prejudice. See
The court does not conclude that there was error, but sees a “reason to be concerned,” because “Rule 404(b), by its own terms, requires more” explanation for admissibility than what the government and the district court provided. Ante, at 434-35. Not so. The terms of the rule speak only to the purposes for which evidence is admissible; they do not address what the prosecution or the district court must specify on the record. Our decisions encourage the government and the district court to articulate a theory of admissibility to facilitate appellate review, but even where the government simply reads a list of issues for which prior bad acts can be admitted under Rule 404(b), that “is not in itself a basis for reversal.” United States v. Mothershed, 859 F.2d 585, 589 (8th Cir.1988). The reviewing court must examine the material issues from the trial and determine whether the evidence of prior convictions was rеlevant for the purposes specified. Id.
The evidence at issue here was clearly relevant to the limited issues on which it was admitted—knowledge, intent, and absence of mistake. We have said before in the context of Rule 404(b) that “[j]udges need not explain the obvious, even briefly.” United States v. Burk, 912 F.2d 225, 229 (8th Cir.1990) (internal quotation marks omitted). As in Burk, “the prosecution made clear enough the purpose for which it wished to elicit the evidence,” and “further explanation from the court was unnecessary.” Id. Likewise, “the factors upon which the probative value/prejudice evaluation were made are readily apparent from the record, and there is no substantial uncertainty about the correctness of the district court‘s ruling.” Id. (internal quotation marks omitted).
For these reasons, I concur in the judgment.