US v. Logan

• Citation: 121 F.3d 1172
• Decision Date: 04 August 1997
• Docket Number: No. 96-1479.,96-1479.
• Parties: UNITED STATES of America, Appellee, v. Paul David LOGAN, Also Known as Bear, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

121 F.3d 1172

UNITED STATES of America, Appellee, v. Paul David LOGAN, Also Known as Bear, Appellant.

No. 96-1479.

United States Court of Appeals, Eighth Circuit.

Submitted November 21, 1996.

Decided August 4, 1997.

Rehearing and Suggestion for Rehearing Denied October 6, 1997.

Christopher S. Swiecicki, St. Louis, MO, for Appellant.

John James Ware, St. Louis, MO, for Appellee.

Before McMILLIAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and BOGUE,¹ District Judge.

Rehearing and Suggestion for Rehearing En Banc Denied October 6, 1997.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Paul Logan and nine others were indicted for conspiracy to distribute, and to possess with the intent to distribute, more than one kilogram each of heroin and methamphetamine. See 21 U.S.C. § 841(a)(1), § 846. The conspiracy was alleged to have existed between December, 1992, and June, 1995. After a seven-day trial, a jury convicted Mr. Logan and four co-defendants whose cases we do not address in this opinion (a fifth codefendant whose case we do not address in this opinion was convicted after a separate two-day trial). See also United States v. Rodriguez, 112 F.3d 374 (8th Cir.1997), and United States v. Bryson, 110 F.3d 575 (8th Cir.1997).

The trial court sentenced Mr. Logan to 210 months in prison and a $1,700 fine. Mr. Logan appeals both his conviction and his sentence. We affirm Mr. Logan's conviction but remand his case for resentencing.

I.

One of the government's witnesses against Mr. Logan was Cindy Carlen, whose sister was formerly married to Mr. Logan. During her testimony, Ms. Carlen testified about an interview that she had with a state police officer in 1993 while she was in a county jail in Illinois. She acknowledged that in return for that interview, she was supposed to be released from jail 22 days early. Ms. Carlen testified, however, that she did not remember anything that she said to the officer. She added that she had "been under a lot of medication lately" and "forgot a lot of things," that she was a regular user of methamphetamine at the time of the interview, and that she was on medication at the time of the interview. Ms. Carlen also said that after she was released from jail, she contacted the police to say that she "wanted to retract any statements" that she had made while in jail. She did so, she conceded, "probably" because she was afraid that in her "attempt to get out of jail," she "had stated something during those interviews that was not true."

The government then called as a witness the state police officer who interviewed Ms. Carlen in 1993. He testified that in the course of his three-hour interview with Ms. Carlen, she made various statements to him that were incriminating to Mr. Logan. At the government's prompting, the officer repeated those statements (there was no written document with Ms. Carlen's statements as acknowledged by her; the only document available was the officer's own notes about his interview with Ms. Carlen). Mr. Logan challenges the introduction of the officer's testimony about the content of Ms. Carlen's oral statements. Mr. Logan argues that because Ms. Carlen said that she could not remember what she said in the interview, the introduction of the officer's testimony about Ms. Carlen's alleged statements violated Mr. Logan's rights under the confrontation clause of the sixth amendment. See, e.g., United States v. Owens, 484 U.S. 554, 557-58, 108 S.Ct. 838, 841-42, 98 L.Ed.2d 951 (1988).

Initially, we note that although Mr. Logan makes a confrontation clause argument on appeal, his objection during trial was based only on the rules of evidence dealing with hearsay. See Fed. R. Ev. 801(c). We therefore decline to consider the constitutional argument that Mr. Logan makes. We do, however, consider under the plain error rule, see Fed.R.Crim.P. 52(b), the hearsay difficulties inherent in the state police officer's testimony, because "it is fundamental to our system of justice `that defendants should not be allowed to be convicted on the basis of unsworn testimony.'" United States v. Love, 592 F.2d 1022, 1026 n. 9 (8th Cir.1979), quoting United States v. Morlang, 531 F.2d 183, 190 (4th Cir.1975).

II.

The government contended at trial that the testimony of the state police officer about Ms. Carlen's statements to him was admissible not as substantive evidence under some exception to the hearsay rules, see Fed. R. Ev. 801(d)(1), 803(24), 804(b)(5), see also Fed. R. Ev. 804(a)(3), but instead to impeach Ms. Carlen's credibility as a witness, see Fed. R. Ev. 607. In other words, the government asserted, the testimony about the content of Ms. Carlen's statements was offered not "to prove the truth" of those statements, see Fed. R. Ev. 801(c), but, rather, to show that Ms. Carlen had earlier made statements that were inconsistent with her testimony at trial, see Fed. R. Ev. 613(b), and therefore that she was not a believable witness.

A serious difficulty with the government's position and with the introduction in general by the government of prior inconsistent statements for the purpose of impeaching a government witness is "the fact that the power to impeach one's own witness can be abused." See 27 C. Wright and V. Gold, Federal Practice and Procedure: Evidence § 6093 at 496 (1990). When the government calls the witness to be impeached in a criminal case "simply for the purpose of eliciting testimony inconsistent with a prior statement," the government's actual intent may be not "to attack credibility ... but to expose the jury to the prior inconsistent statement and ... improperly induce the jury to consider the statement for the truth of the matters asserted therein." See 28 C. Wright and V. Gold, Federal Practice and Procedure: Evidence § 6203 at 535 (1993). "Courts must be watchful that impeachment is not used as a subterfuge to place otherwise inadmissible hearsay before the jury." United States v. Rogers, 549 F.2d 490, 497 (8th Cir.1976), cert. denied, 431 U.S. 918, 97 S.Ct. 2182, 53 L.Ed.2d 229 (1977).

We believe, however, that the government's motive in eliciting testimony is irrelevant. Although some courts focus on determining the "true" purpose of the government in introducing testimony, we think that the relevant question is simply whether the evidence is admissible under Fed. R. Ev. 403. See, e.g., United States v. Ince, 21 F.3d 576, 580 (4th Cir.1994); United States v. Webster, 734 F.2d 1191, 1193 (7th Cir.1984); and United States v. DeLillo, 620 F.2d 939, 944, 946-47 (2d Cir.1980), cert. denied, 449 U.S. 835, 101 S.Ct. 107, 66 L.Ed.2d 41 (1980). See also 27 Wright and Gold, Federal Practice § 6093 at 507-08, and 28 Wright and Gold, Federal Practice § 6206 at 535. In other words, we hold that the proper inquiry is whether, as an objective matter and irrespective of the government's motive, the probative value of a statement for impeaching the credibility of a witness is "substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence," see Fed. R. Ev. 403. With this construct in mind, we turn to the relevant specifics of Ms. Carlen's testimony and the state police officer's recounting of Ms. Carlen's earlier, different statements to him.

In her testimony, Ms. Carlen denied ever receiving methamphetamine directly from Mr. Logan. In contrast, the state police officer testified that Ms. Carlen told him that she bought methamphetamine in one- or two-ounce quantities from Mr. Logan "for around two years." Ms. Carlen also denied that she had ever seen Mr. Logan "counting a large sum of money" — approximately $20,000. The officer testified, however, that Ms. Carlen told him that she once saw Mr. Logan counting "what she would have guessed" to be $20,000 to $30,000 in cash and saying that he was sending the money to California. Ms. Carlen denied that she had ever met anyone named "Ronnie." According to the officer, however, Ms. Carlen told him that in 1992 or 1993 she met a man named "Ronnie" from California who was Mr. Logan's methamphetamine supplier and who came to Mr. Logan's house in Illinois, evidently to bring methamphetamine to Mr. Logan. Finally, Ms. Carlen denied that she told the officer that Mr. Logan told her about losing $25,000 because of a drug shipment that was intercepted by the police. The officer testified, in contrast, that Ms. Carlen told him that Mr. Logan once related that a drug shipment that was intercepted by the police would cost him $25,000.

Because the statements are inconsistent, their only value lies in their ability to "raise doubts regarding the truthfulness of both statements" (emphasis in original), Firemen's Fund Insurance Co. v. Thien, 8 F.3d 1307, 1311 (8th Cir.1993), in other words, to suggest that Ms. Carlen is not a credible person. See, e.g., 28 Wright and Gold, Federal Practice § 6206 at 534. The prior statements are inculpatory to Mr. Logan if considered to be true, however, so in order to be admissible, their value for impeachment purposes — for portraying or exposing Ms. Carlen as a person who is unworthy of belief — has to outweigh the danger of unfair prejudice and jury confusion that those prior statements may create if admitted. See Fed. R. Ev. 403. To determine the value of impeaching Ms. Carlen, then, we must examine her testimony as a whole. See, e.g., United States v. Ince, 21 F.3d at 581-82; United States v. Johnson, 802 F.2d 1459, 1466 n. 17 (D.C.Cir.1986); and United States v. Crouch, 731 F.2d 621, 624 (9th Cir.1984), cert. denied, 469 U.S. 1105, 105 S.Ct. 778, 83 L.Ed.2d 773 (1985).

Ms. Carlen testified that around 1991 or 1992, she "became aware" that Mr. Logan "was going by car to California to get methamphetamine" and that he made a "couple" of such trips. Ms. Carlen said that in 1991 or 1992 she and her sister (Mr. Logan's wife at that time) went on one of...