U.S. v. Vaughn, No. 02-5206.

• Decision Date: 07 June 2004
• Docket Number: No. 02-5206.
• Citation: 370 F.3d 1049
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Timothy John VAUGHN, also known as Booty Green, also known as Tone, also known as Terry White, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

370 F.3d 1049

UNITED STATES of America, Plaintiff-Appellee, v. Timothy John VAUGHN, also known as Booty Green, also known as Tone, also known as Terry White, Defendant-Appellant.

No. 02-5206.

United States Court of Appeals, Tenth Circuit.

June 7, 2004.

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Richard D. White, Jr., Barber & Bartz, P.C., Tulsa, OK, appearing for Appellant.

Kevin C. Danielson, Assistant United States Attorney (David E. O'Meilia, United States Attorney, with him on the brief), Office of the United States Attorney, Tulsa, OK, appearing for Appellee.

Before TACHA, Chief Circuit Judge, EBEL and HARTZ, Circuit Judges.

TACHA, Chief Circuit Judge.

A jury found Defendant-Appellant Timothy John Vaughn guilty of numerous counts of conspiring to possess and distribute narcotics. On appeal, he contends that the District Court erred: (1) in limiting his cross-examination of two government witnesses, (2) in limiting his introduction of evidence regarding a previous criminal investigation, and (3) in ruling the Speedy Trial Act, 18 U.S.C. § 3161 et seq., inapplicable to the government's filing of an information seeking to enhance Mr. Vaughn's sentence due to prior convictions. Mr. Vaughn filed timely notice of appeal. We take jurisdiction under 28 U.S.C. § 1291 and AFFIRM.

I. BACKGROUND

This appeal represents the culmination of the government's investigation and prosecution of an extensive drug conspiracy. The government presented evidence at trial showing that the central player in the conspiracy was Darrell Bellamy of Phoenix, Arizona. From Phoenix, Mr. Bellamy coordinated shipments of powder cocaine, crack cocaine, and marijuana to various cities, including Tulsa, Oklahoma; Wichita, Kansas; and Detroit, Michigan. The government contends that Mr. Vaughn was a member of this conspiracy.

On July 13, 2001, a federal grand jury indicted Mr. Vaughn for conspiring to possess and distribute cocaine, crack cocaine, and marijuana in violation of 21 U.S.C. § 846. After a twenty-three-day trial involving over fifty witnesses, many of whom testified to Mr. Vaughn's involvement in the conspiracy, a jury convicted Mr. Vaughn. On December 9, 2002, the District Court sentenced him to life in prison to be followed by ten years' supervised release and imposed $5100 in fines and assessments.

Mr. Vaughn raises three issues on appeal. He first argues that the District Court erred in limiting his cross-examination of two government witnesses, Robert Robertson and Jennifer Natale. He next asserts that the District Court erred in limiting the information the jury received regarding a traffic stop in West Memphis, Arkansas. Finally, he contends that the District Court erred in concluding that the seventy-day time limit of the Speedy Trial Act does not apply to an information filed pursuant to 21 U.S.C. § 851(a)(1). We address these arguments below.

II. STANDARD OF REVIEW

We review Mr. Vaughn's evidentiary claims for an abuse of discretion, and if we find an abuse of discretion, we must determine whether the error was harmless. United States v. Begay, 144 F.3d 1336, 1339 (10th Cir.1998). The government bears the burden to show that a nonconstitutional error is harmless by a preponderance of the evidence. United States v. Wittgenstein, 163 F.3d 1164, 1169 (10th Cir.1998). An error "is harmless unless it had a `substantial influence' on the outcome or leaves one in `grave doubt' as to whether it had such effect." United States v. Cestnik, 36 F.3d 904, 910 (10th Cir.1994). Finally, we review the District Court's interpretation of Speedy Trial Act statute de novo. United States v. Alahmad, 211 F.3d 538, 541 (10th Cir.2000).

III. DISCUSSION

A. Limitation of Cross-Examination

1. Cross-Examination of Robert Robertson

Mr. Vaughn argues that the District Court improperly limited his examination of Mr. Robertson, who is Mr. Bellamy's uncle and a self-admitted courier for the alleged drug conspiracy. After failing to raise the issue on direct or cross-examination, a codefendant's attorney asked Mr. Robertson on re-cross examination if he had "entered [into] any kind of agreement with the Government." Mr. Robertson answered "no." Mr. Vaughn's counsel then sought to ask whether Mr. Robertson "ha[d] an agreement, an understanding as to whether he will be charged." The District Court denied the request, finding the inquiry unnecessarily cumulative.

Mr. Vaughn contends that this ruling is erroneous because, even though "[Mr.] Robertson had already been asked about an `agreement' with the Government, .... [a]n `agreement' and an `understanding' are not identical." Thus, he urges that his proffered inquiry as to whether there was "understanding" was not cumulative. He further claims that the issue of whether there was an understanding "would bear on [Mr. Robertson's] motive to testify against Mr. Vaughn."

We doubt that there is a meaningful distinction between the terms "agreement" and "understanding" as used in this context.¹ Indeed, by himself using the terms "agreement" and "understanding" interchangeably, Mr. Vaughn's counsel's own statements indicate that the District Court could reasonably construe the requested question as cumulative. More importantly, we have long held that "in the last analysis the trial court is the governor of the trial with the duty to assure its proper conduct and the limits of cross-examination necessarily lie within its discretion." United States v. Hinkle, 37 F.3d 576, 579 (10th Cir.1994) (quotations omitted); see also Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (noting that district courts have "wide latitude" in limiting cross examination). Given this wide latitude, even if there is a slight difference between the "agreement" question and the proffered "understanding" question, we cannot say the District Court abused its discretion by denying the questioning as cumulative.

2. Cross-Examination of Jennifer Natale

Mr. Vaughn also argues that the District Court erred in limiting his ability to impeach thoroughly the testimony of Ms. Natale — one of the conspiracy's principle drug couriers turned government witness. At trial, Mr. Vaughn's attorney sought to impeach Ms. Natale's credibility by showing that she did not mention Mr. Vaughn in her earliest statements to investigators and that only her final statements matched her trial testimony concerning Mr. Vaughn's involvement in the conspiracy. To this end, his attorney attempted to use reports drafted by FBI agents (the "FBI Reports") following their interviews with Ms. Natale to show what he terms as her "ever-expanding recollection."

The District Court denied Mr. Vaughn's attempts to use these reports because he found that (1) any alleged omissions in the FBI Reports were not "inconsistencies" and (2) Ms. Natale had not adopted the reports as accurately reflecting her statements to FBI officers. In response to this ruling, Mr. Vaughn requested that the District Court allow him to subpoena various law enforcement officers, including FBI Officer Melvin Cervantes, to investigate further the alleged inconsistencies. After allowing Mr. Vaughn and the government to question Officer Cervantes telephonically to determine the content of his testimony, the District Court denied the subpoena request, finding again that Officer Cervantes would not testify to inconsistencies but only to understandable omissions on the part of Ms. Natale.

On appeal, Mr. Vaughn attacks on three grounds the District Court's decision to prohibit him from using the text of the FBI Reports to impeach Ms. Natale. First, he argues that, even if he could not use the report as substantive evidence, "it was properly useable for impeachment." Second, he notes that "an omission may be an inconsistent statement" if the witness would have naturally mentioned the omitted information. Third, as to the denied subpoena, Mr. Vaughn argues that the District Court erred in finding that Officer Cervantes's testimony did not establish an inconsistency between Ms. Natale's statements at her interview and her testimony at trial.

Here, we need not decide whether the District Court erred in limiting the examination of Ms. Natale or in refusing to issue the Cervantes subpoena² because, after fully reviewing the record, we conclude that, even if the District Court committed error, these rulings did not substantially influence the outcome of the trial. See United States v. Magleby, 241 F.3d 1306, 1318 (10th Cir.2001) ("Notwithstanding our doubts regarding the relevance of this testimony, we need not decide whether the district court abused its discretion in admitting it because we find that it was harmless error.").

We reach this conclusion for two reasons. First, the District Court allowed Mr. Vaughn's counsel to question Ms. Natale at length regarding her statements at various law-enforcement interviews. See, e.g., R. at Vol. XX, p. 1074 ("Now, in this two days of interviews in Arizona in which you said you would tell them everything that you know, you did talk about going to Detroit, didn't you?"); id. at 1082 ("Isn't it true, ma'am, that in neither your interview with the agents on October 31st or November 1st, did you ever tell them that you traveled to Detroit with Timothy Vaughn?"); id. at 1083 ("Now in your interviews of October 31st, November 1st and November 28th, isn't it true that at no time did you ever tell any of the agents or attorneys that you delivered any cocaine to Timothy Vaughn in Wichita"); id. at 1086 ("And did you tell [federal agents and the United States Attorney] that one of those persons was Timothy Vaughn?"). He merely prevented Mr. Vaughn's counsel from quoting directly from the FBI Records. Id. at 1075 ("You can ask her what she said, but don't refer to the report."). After reviewing the record, we conclude that Mr. Vaughn would have received no distinct benefit from using the exact text of the report to impeach Ms. Natale.

Second, even if Mr....