U.S. v. Cass, 96-2110

• Decision Date: 15 October 1997
• Docket Number: No. 96-2110,96-2110
• Citation: 127 F.3d 1218
• Parties: 47 Fed. R. Evid. Serv. 1352, 97 CJ C.A.R. 2349 UNITED STATES of America, Plaintiff-Appellee, v. Sonya U. CASS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1218

127 F.3d 1218

47 Fed. R. Evid. Serv. 1352, 97 CJ C.A.R. 2349

UNITED STATES of America, Plaintiff-Appellee, v. Sonya U. CASS, Defendant-Appellant.

No. 96-2110.

United States Court of Appeals, Tenth Circuit.

Oct. 15, 1997.

James T. Martin, U.S. Attorney Office, District of New Mexico, Albuquerque, NM, for Plaintiff-Appellee.

Judith A. Rosenstein, Office of the Federal Public Defender, Albuquerque, NM, for Defendant-Appellant.

Before PORFILIO, LOGAN and EBEL, Circuit Judges.

EBEL, Circuit Judge.

Sonya Cass was convicted of making a false statement to a federal agent in violation of 18 U.S.C. § 1001. Cass reported that she had been kidnapped and sexually assaulted, leading the F.B.I. to begin a kidnapping investigation. In the course of the investigation, the F.B.I. uncovered information causing them to believe that Cass had been with a boyfriend during the time she claimed she was kidnapped.

Cass appeals her conviction, arguing that the district court erred in allowing the government to introduce, over objection, the hearsay statements of Cass' husband, her employer, and F.B.I. agents. She also alleges error in the admission of hearsay statements that she was involved in extramarital affairs. We agree with Cass that the complained-of statements are hearsay and that the court erred in admitting them. However, we conclude that the error was harmless because the government introduced abundant admissible evidence of Cass' guilt. Therefore, we affirm the defendant's conviction.

Background

Sonya Cass disappeared from her home on July 22, 1994. The same day, her husband, Kevin Cass, filed a missing persons report. On July 25, Mr. Cass called 911 to report that his wife had been kidnapped, which caused the F.B.I. to begin a kidnapping investigation. On July 28, 1994, in a three-way taped phone conversation, Sonya Cass told Kevin Cass and F.B.I. Agent John Andrews that she had been kidnapped from a convenience store in Clovis, New Mexico, and had been transported to Waco, Texas. Sonya Cass said that a man grabbed her and forced her to take her car to a mall, where it was left. The kidnapper then covered her face and drove her to Waco, Texas. Cass said she escaped with another kidnap victim by throwing hot grease in the kidnapper's face.

Agent Andrews began investigating the case as a kidnapping, but soon began to suspect that Cass had left New Mexico voluntarily to join her boyfriend Michael Lawrence in Arlington, Texas. After interviewing Cass in Texas, F.B.I. agents there informed her that they did not believe her story. The agents threatened to prosecute her for making a false statement unless she recanted. Cass maintained that she had been kidnapped.

The prosecution's first witness was Agent Andrews. While testifying, he repeated, over hearsay objections, ¹ out-of-court statements of Kevin Cass, Sonya Cass' employer, Dallas F.B.I. agents, bank officials, a taxi driver, and the driver of an airport shuttle. The objections were overruled on the grounds that the out-of-court statements were not admitted for the truth of the statements. The government successfully argued that the statements were introduced to show the effect they had on the investigation and to show inconsistencies between the account Cass gave to Texas F.B.I. agents of her whereabouts and the information New Mexico agents had gathered in their investigation. The government argued that the defense opened the door to such statements by asserting in its opening statement that the F.B.I. failed to conduct a proper kidnapping investigation, and instead conducted an investigation aimed at showing that the allegations of kidnapping were false. Agent Andrews also testified, over hearsay and relevance objections, that prior to her disappearance, Cass was rumored to be involved in extramarital affairs.

Hearsay Evidence

Statements by Kevin Cass

Kevin Cass exercised his spousal privilege not to testify. Nevertheless, on the stand, Andrews repeated statements made to him by Mr. Cass, including the statement that shortly after Sonya left the house on July 22 she returned to get her birth and nursing assistant certificates, telling Kevin that she needed the documents for work.

During Andrews' testimony, the government introduced an answering machine tape given to Andrews by Kevin Cass. On the tape, a voice says, "the car is at the mall." Andrews testified that Kevin said the voice on the answering machine was Sonya's, and that after Kevin heard the message he picked up the car at the mall where Sonya normally parked it. Kevin said that he found Sonya's nursing uniform and shoes in the car.

The prosecutor showed Andrews photos taken at an A.T.M. on the morning that Sonya disappeared. Andrews testified that the photos were of a black female who was

making a withdrawal of $100 from Sonya and Kevin's account using Sonya Cass' personal identification number at 9:00 a.m. on the morning that Sonya disappeared. Andrews said that Kevin identified Sonya as the woman in the photos, and said that she was not wearing the clothing she had been wearing when she left the house. The photos and the bank records were introduced into evidence later in the trial.

Statements by Sonya Cass' Employer

No one from Sonya's New Mexico employer was called as a witness. Yet Andrews testified that the employer verified that Sonya did not need her nursing or birth certificate at work, as they were already on file.

Statements by Dallas F.B.I. Agents

Dallas F.B.I. agents interviewed Sonya immediately after she claimed to have escaped from her abductor. These agents were never called to testify. However, Andrews testified that Sonya told the agents that the kidnapper made her shop for and change into new clothes and that he threw her nurse's uniform out of the window of the car. Andrews testified that Sonya told the agents that she had withdrawn money from an A.T.M. machine at the mall, a different machine than the one indicated by bank records. She also said that after escaping from her kidnapper she accepted a ride from a stranger to the bus station. Andrews also testified that Sonya never told Dallas agents that she tried to withdraw money from the Lubbock Airport A.T.M., although bank records showed that someone had tried to access her account using her personal identification number at around 1 p.m. on July 22.

Extramarital Affairs Testimony

On cross-examination, Andrews testified that numerous people interviewed by the FBI said that Sonya was having an affair with one man and was seeing other men as well. He testified further that Sonya's mother had said that Sonya may have been seeing two men, including one in Arlington, Texas, and that Sonya had bragged to friends, associates and relatives that she could see other men without getting caught. The court interrupted the testimony, and after a lunch recess, instructed the jury to disregard "the last answer by Agent Andrews," which was the answer that disclosed the information about Sonya's reputation for affairs. The court found that the testimony was not hearsay but that it should have been excluded under Fed.R.Evid. 403 because it was prejudicial.

Admissible Evidence

The government introduced abundant admissible evidence that tended to prove that Sonya's statement to the F.B.I. that she had been kidnapped was false, including the taxi driver's testimony that on July 22, about 9:00 a.m., she drove Sonya from a mall in Clovis, New Mexico, to a shuttle bus that would take her to the Lubbock Airport. The driver had contacted the police after recognizing Sonya in a missing person's flier circulated by Sonya's family. She testified that she remembered Sonya Cass because Sonya did not have any luggage, which was unusual for someone who was going out of town.

An airport shuttle driver testified that on July 22 he drove two passengers, a black woman without luggage and a woman from Minnesota, from the Holiday Inn in Clovis to the airport in Lubbock. He testified that the shuttle arrived at the Lubbock Airport about 1:20 p.m. Central Time. The driver could not identify Sonya as the woman on the shuttle that morning, but said that he had seen Sonya somewhere before.

Testimony of Michael Lawrence

Michael Lawrence testified that Sonya had been staying with him in Texas from July 22 to July 27. He described first meeting Sonya in a nightclub in Dallas in 1994 and said that they spent the night together. After they met, when Sonya returned to New Mexico, Lawrence testified that they spoke to each other daily over the phone. Lawrence's phone records were introduced; they showed that he had called Sonya as often as four times a day. They also showed collect calls from Sonya to Lawrence. Lawrence testified that Sonya was unhappy in her marriage, and that they had planned for her to leave her husband and move in with him. He testified that he expected Sonya to arrive on July 4, but she had disappointed him.

When she still hadn't arrived on July 20, he told her that he was "tired of waiting" for her and to make up her mind about whether she was coming. She finally arrived on July 22. Lawrence said that he picked her up at the airport and noticed that she did not have any luggage, so that weekend he bought her clothes and toiletries. He also told her how to transfer her nursing license from New Mexico to Texas.

On Monday, July 25, Lawrence went to work at about 6:00 a.m. He returned from work late that evening. He testified that Sonya was the only person in his home that day. Phone records showed a call made from Lawrence's house to the Cass' house at 6:45 a.m. that morning. Police records showed that Kevin Cass had called 911 at 6:50 a.m. that morning to report that his wife had been kidnapped.

Lawrence testified that he was not at home on July 28 at 6:53 a.m. Phone records showed a call from Lawrence's home to the Cass' home on July 28 at 6:53 a.m., the same morning that Sonya called Kevin and told him, in a tape recorded...