U.S. v. Buffalo, 358 F.3d 519 (Fed. 8th Cir. 2/10/2004)

• Decision Date: 10 February 2004
• Docket Number: No. 03-1516.,03-1516.
• Citation: 358 F.3d 519
• Parties: UNITED STATES of America, Plaintiff-Appellee v. Karsten BUFFALO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

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358 F.3d 519

UNITED STATES of America, Plaintiff-Appellee v. Karsten BUFFALO, Defendant-Appellant.

No. 03-1516.

United States Court of Appeals, Eighth Circuit.

Submitted: October 21, 2003.

Filed: February 10, 2004.

Rehearing Denied April 8, 2004.

The petiiton for rehearing by the panel filed by appellee USA is denied.

Sosaeoleisah C. Bluespruce, argued, Lantry, SD, for appellant.

Thomas J. Wright, argued, Assist. U.S. Attorney, Sioux Falls, SD, for appellee.

Before BYE, JOHN R. GIBSON, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

Karsten Buffalo appeals his jury conviction of one count of assault with a dangerous weapon in violation of 18 U.S.C. § 1153 and 113(a)(3) and one count of assault resulting in serious bodily injury in violation of 18 U.S.C. § 1153 and 113(a)(6). Buffalo claims, among other points of contention, that the district court erred by refusing to allow testimony that someone else confessed to the crime and that the district court should have allowed him to question the victim about prior fights. For the reasons stated below, we affirm in part, reverse in part, and remand for a new trial.

I. FACTUAL BACKGROUND

On the night of November 2, 2001, Jules Uses Many shot the defendant, Karsten Buffalo, with a BB gun after an argument. The following night, when Uses Many was walking home alone from a bar on the Cherry Creek Indian Reservation, he was assaulted with a baseball bat by four or five people and suffered serious injuries. He identified Buffalo as his assailant, and the government charged Buffalo with the assault, proceeding to trial on the theory that the attack was motivated by Buffalo's desire to exact revenge on Uses Many for the previous night's BB gun shooting.

Buffalo, however, denied any involvement in the attack and, at trial, attempted to prove an alibi defense. To bolster this defense, he sought to show that someone else was responsible for the beating — namely, Rodney "Rocky" Hayes. Like Buffalo, Hayes had been involved in past altercations with Uses Many. According to Buffalo, while he was detained awaiting trial on the charges in this case, two of his cell mates (Chastyn Waloke and Justin Romero) independently told him that Hayes had confessed to them that he attacked Uses Many on the night in question. Buffalo sought to introduce this testimony, but the government objected to its admission on the ground that it was inadmissible hearsay. Moreover, because several people were involved in the assault on Uses Many, the government took the position that, even if Hayes had confessed, his participation in the assault did nothing to exonerate Buffalo.

Buffalo urged the district court to admit Waloke's and Romero's testimony regarding Hayes's alleged confession on the theory that the confession constituted a statement against Hayes's penal interest pursuant to Federal Rule of Evidence 804(b)(3). This exception to the hearsay rule requires the unavailability of the out-of-court declarant; here, Hayes. At the time the defendant made his offer of proof regarding Waloke's and Romero's testimony, Hayes had not been successfully subpoenaed and was not expected to testify. The court held a hearing outside the presence of the jury on the issue of the admissibility of Waloke's and Romero's testimony. At this hearing, the main dispute between the parties was whether Hayes was "unavailable" within the meaning of Rule 804. At the close of the hearing, the court reserved ruling and urged the parties to attempt to locate Hayes.

By the following morning, Hayes had been located, and Buffalo called him to testify in spite of the court's peremptory ruling that, if Buffalo called Hayes, he would not be permitted to call Waloke and Romero as impeachment witnesses. In the court's view, Buffalo would only have been permitted to call Waloke and Romero to testify about Hayes's alleged confession if the government, and not Buffalo, had called Hayes. The court commented that permitting Buffalo to call Hayes only to impeach him with Waloke's and Romero's testimony would be nothing more than an attempt to set up a strawman to circumvent the rule against hearsay under the guise of impeachment.

On the stand, Hayes admitted that he told Waloke and Romero that he wished he had been the one to assault Uses Many, but he denied having said that he had anything to do with the assault. Uses Many also took the stand and testified that he was certain Buffalo attacked him, despite defense counsel's attempt to highlight the physical similarities between Buffalo and Hayes. Neither Waloke nor Romero testified, and the jury returned a verdict of guilty on two counts.¹ The district court sentenced him to two concurrent terms of seventy months imprisonment. This appeal followed.

II. DISCUSSION

A. Standard of Review

We review challenges to a district court's evidentiary rulings for abuse of discretion. See United States v. Oseby, 148 F.3d 1016, 1025 (8th Cir. 1998). Moreover, the district court's evidentiary rulings are subject to harmless error analysis under Federal Rule of Criminal Procedure 52(a). United States v. Blake, 107 F.3d 651, 653 (8th Cir. 1997).

B. Admissibility of Hayes's Confession for Impeachment Purposes

If offered merely "to prove the truth of the matter asserted," Fed.R.Evid. 801(c), Waloke's and Romero's testimony that Hayes confessed to them would have constituted excludable hearsay under the Federal Rules of Evidence. The district court's exclusion of the testimony, therefore, was correct insofar as the court ruled that Buffalo could not introduce Waloke's and Romero's testimony to prove that Hayes indeed confessed. However, testimony oftentimes serves more than one purpose, and while it may be inadmissible for one purpose, it may be admissible for another. Such is the case here. The testimony that Hayes confessed should have been admitted to impeach Hayes's testimony as a prior inconsistent statement under Federal Rule of Evidence 613(b).

The trial court ruled that it would not permit Buffalo to call Hayes and then to impeach him with Waloke's and Romero's testimony about the confession because to do so would simply be a pretext to get before the jury otherwise inadmissible hearsay testimony. The trial court's ruling appears, in part, to have arisen out of the traditional rule against impeaching one's own witness. This rule, however, was abandoned with the adoption of Federal Rule of Evidence 607, which provides: "The credibility of a witness may be attacked by any party, including the party calling the witness." Fed.R.Evid. 607.

This case requires us to consider the interplay between the ability of parties to impeach their own witnesses, embodied in Rule 607, and Rule 613(b), which allows the admission of prior inconsistent statements of a witness under limited circumstances. Specifically, Rule 613(b) provides:

Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require.

Fed.R.Evid. 613(b).

1. The Danger of Admitting Prior Inconsistent Statements

When a party is allowed to impeach its own witness with a prior inconsistent statement, the underlying problems associated with the introduction of out-of-court statements surface. This is so because "the power to impeach one's own witness can be abused." See 27 Charles Alan Wright & Victor James Gold, Federal Practice and Procedure: Evidence § 6093 (1990). Calling a witness only to impeach him or her with a prior inconsistent statement can have the effect of undermining the rule against hearsay. Id.

Many courts, including our own, have recognized this potential for abuse in impeaching one's own witness with prior inconsistent statements. See United States v. Fay, 668 F.2d 375, 379 (8th Cir. 1981) (holding trial court did not abuse discretion in excluding testimony where defendant sought to call witness knowing she would deny hearsay within hearsay statement and intending to call another witness to impeach that testimony where exception to hearsay rule did not excuse second layer of hearsay). The danger, which the district court recognized in Buffalo's case, is that a party will call a witness, knowing him or her to be adverse, merely to make an end-run around the rule against hearsay by impeaching the witness with a prior inconsistent statement that the jury would not otherwise have been allowed to hear. See, e.g., United States v. Peterman, 841 F.2d 1474, 1479 (10th Cir. 1988); United States v. Frappier, 807 F.2d 257, 259 (1st Cir. 1986); United States v. Johnson, 802 F.2d 1459, 1466 (D.C. Cir. 1986); United States v. Sebetich, 776 F.2d 412, 429 (3d Cir. 1985); United States v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984); United States v. Crouch, 731 F.2d 621, 624 (9th Cir. 1984); United States v. Fay, 668 F.2d 375, 379 (8th Cir. 1981); United States v. Miller, 664 F.2d 94, 97 (5th Cir. 1981); United States v. DeLillo, 620 F.2d 939, 946 (2d Cir. 1980); Whitehurst v. Wright, 592 F.2d 834, 839 (5th Cir. 1979). We are concerned under these circumstances that, despite any limiting instruction, the jury will misuse the inconsistent statement as substantive evidence, rather than consider it only on the issue of a witness's credibility.

2. Managing the Prejudicial Effect of Prior Inconsistent Statements

To address this concern, some circuits have adopted a "primary purpose" test, which has its genesis in a 1975 Fourth Circuit case, United States v. Morlang, 531 F.2d 183, 190 (4th Cir. 1975). The court in Morlang held that a party may not intentionally set up the introduction of a prior inconsistent statement by calling a witness who the party knows will offer adverse testimony. Id. at 190. In Morlang, the government called a prisoner in a bribery prosecution, knowing that the prisoner would deny that...