U.S. v. Durham

• Decision Date: 05 December 2006
• Docket Number: No. 06-1021.,No. 06-1020.,06-1020.,06-1021.
• Citation: 470 F.3d 727
• Parties: UNITED STATES of America, Appellee, v. Wesley J. DURHAM, Appellant. United States of America, Appellee, v. Erica J. Duncan, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 727

470 F.3d 727

UNITED STATES of America, Appellee, v. Wesley J. DURHAM, Appellant.

United States of America, Appellee, v. Erica J. Duncan, Appellant.

No. 06-1020.

No. 06-1021.

United States Court of Appeals, Eighth Circuit.

Submitted: September 25, 2006.

Filed: December 5, 2006.

COPYRIGHT MATERIAL OMITTED

John R. Osgood, argued, Lee's Summit, MO, for appellant.

Lance D. Sandage, argued, Kansas City, MO, for appellant.

Philip M. Koppe, Asst. U.S. Atty., argued, Kansas City, MO, for appellee.

Before WOLLMAN, BRIGHT, and BOWMAN, Circuit Judges.

WOLLMAN, Circuit Judge.

Wesley Durham and Erica Duncan (hereinafter referred to by their last names or collectively as "the defendants") were convicted of attempting to manufacture five or more grams of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846, and possessing pseudophedrine with the intent to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(1). Duncan was additionally convicted of conspiring to manufacture and distribute five or more grams of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), and 846. The district court¹ sentenced Durham to 235 months of imprisonment and Duncan to 151 months of imprisonment. They appeal from their respective convictions and sentences. We affirm.

I.

On or about November 1, 2003, Durham and Duncan, along with their four-week-old son, Mason, moved in with Bruce Williamson. In the early morning of December 12, 2003, Duncan discovered that Mason had stopped breathing. Williamson drove Duncan, Durham, and Mason to a hospital, where Mason was pronounced dead shortly thereafter. Upon learning of Mason's death, Williamson left the hospital and returned home. The doctors examined Mason and found no signs of physical abuse.

Mason's death was immediately reported to the Lee's Summit police department, and officers were sent to the hospital to investigate. After conducting interviews with Durham, Duncan, and the hospital staff, the officers proceeded to the couple's residence to investigate further. The officers viewed the bedroom where Mason slept and then proceeded to secure the residence pending the application for a search warrant. During this process, they learned that Williamson had several outstanding arrest warrants and took him into custody. A search warrant was subsequently issued and the police searched the residence and garage. Items consistent with the manufacturing of methamphetamine were located throughout the residence, including the bedroom that Durham, Duncan, and Mason occupied. Several weeks later, the results of an autopsy determined the cause of Mason's death to be Sudden Infant Death Syndrome (SIDS).

Durham and Duncan were subsequently charged with conspiring to manufacture methamphetamine, attempting to manufacture methamphetamine, and possessing pseudophedrine with the intent to manufacture methamphetamine. They filed pre-trial motions to suppress evidence seized pursuant to the search warrant, arguing that the warrant was overbroad, that the affidavit failed to establish probable cause, and that the affidavit contained errors and omissions that rendered it defective. Following a suppression hearing, a magistrate judge² issued a report and recommendation that the motions be denied. The district court adopted the report and denied the motions.

Williamson, who had earlier pled guilty to a charge of conspiracy to manufacture and distribute methamphetamine, testified on behalf of the government pursuant to a plea agreement. He stated that he had observed Durham manufacture methamphetamine at his (Williamson's) apartment on at least eight to ten occasions during the period from early November 2003 to December 12, 2003. Williamson obtained the pills and other necessary ingredients for the manufacturing process. He testified that he had observed Duncan tear from the striker plates the matches that were used to create the red phosphorous needed during the manufacturing process. Williamson further testified that he had witnessed Durham sell methamphetamine on numerous occasions during the November-December period.

Continuing with its case, the government called Corey Hall as a witness. Hall had been to Williamson's residence and had stayed there on at least one occasion. During direct examination, the government asked Hall whether during an interview he had had with Detective Dan Wood he had made statements regarding the defendants' use and manufacture of methamphetamine at Williamson's residence. Hall denied making any such statements. On cross-examination, Hall was asked whether "the detective was spoon-feeding you what he would like you to say" and "telling you the answers he wanted to hear," to which Hall responded "[r]ight, he was asking me questions that I knew nothing about and knowledge he already had and, you know, pretty much telling me I knew about this when I didn't." Continuing, Hall further testified that he had never seen the defendants cook, sell, or buy methamphetamine. The government thereafter called Wood to impeach Hall's testimony. The district court overruled the defendants' objections to this line of questioning, but instructed the jury that it could consider Wood's testimony only in determining Hall's credibility and not as proof of the matters asserted. Wood then proceeded to testify that Hall had told him that he had seen Durham and Duncan use and manufacture methamphetamine at Williamson's residence.

The defendants attempted to call Karen Homes, Williamson's ex-wife, as a witness to impeach Williamson's testimony. Sustaining the government's objection and rejecting the defendants' offer of proof, the district court determined that Homes's proposed testimony would not impeach Williamson's in-court testimony and thus did not allow her to testify.

At sentencing, the district court gave both defendants a six-level enhancement under section 2D 1.1(b)(6)(C) of the sentencing guidelines for creating a substantial risk of harm to a minor.³ The district court denied Duncan's request for a minor-participant reduction under section 3B 1.2 of the guidelines.

II.

Durham and Duncan raise several issues on appeal, which we will consider in turn.

A.

We turn first to the contention that the district court erred when it allowed Wood to testify and rejected Homes's proposed testimony. "We review challenges to a district court's evidentiary rulings for abuse of discretion." United States v. Buffalo, 358 F.3d 519, 521 (8th Cir.2004).⁴

As recounted above, Wood's testimony was offered by the government to impeach Hall's testimony by showing that Hall had made prior statements to Wood that were inconsistent with his in-court testimony. Rules 607 and 613(b) of the Federal Rules of Evidence, when read together, allow a party to impeach its own witness with extrinsic evidence of prior inconsistent statements. See id. at 522; FED. R. EVID. 607, 613(b). Before such evidence is allowed, however, it must meet certain requirements. First, under Rule 613(b), the inconsistent statement must not concern a collateral matter and the witness must be confronted with the statement and afforded an opportunity to explain or deny it. Buffalo, 358 F.3d at 524. Second, the court must conduct a Rule 403 balancing test to determine whether the statement's "probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence." Id. at 524-25 (citing FED. R. EVID. 403). If the probative value of the evidence is found to outweigh its potential prejudice, the statement is admissible. This latter requirement serves to prevent a party from "call[ing] 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." Id. at 522-23.

We conclude that Hall's prior inconsistent statements, as offered through Wood's testimony, satisfy the foundational requirements of Rule 613(b). They involved matters that were material to the charges brought against the defendants, and Hall was squarely confronted with the statements during his direct examination. Our next consideration, therefore, is whether Wood's testimony was admissible under Rule 403, which is a closer question.

The defendants argue that Wood's testimony was highly prejudicial and had little probative value and thus should have been excluded under Rule 403. Wood's testimony did indeed carry a risk of prejudice to the defendants, recounting as it did a number of statements made by Hall that directly implicated both of the defendants in the crimes with which they were charged and which would otherwise not have been admitted into evidence. The defendants contend that Wood's testimony lacked probative value as impeachment evidence because Hall had merely denied making certain statements to Wood and did not affirmatively damage the prosecution's case during his direct testimony. Hall's testimony during cross-examination was not so innocuous, however, as it suggested that the police had made up the incriminating statements and attributed them to Hall in order to get a conviction. Moreover, his statements that he had never seen the defendants cook, sell, or buy methamphetamine essentially made him a witness for the defense. Thus, Wood's testimony was of probative value to the government, as it impeached Hall's damaging testimony.

Wood's testimony was thus both prejudicial to the defendants and probative to the prosecution. We do not minimize the dangers involved when a party attempts to impeach its own witness, and the use of this type of testimony is not to be encouraged. Nevertheless, we cannot say the district court abused its discretion by allowing Wood to testify. The fact that Hall's testimony...