United States v. Moreno , 271 F. App'x 767 ( 2008 )

FILED
United States Court of Appeals
Tenth Circuit
March 28, 2008
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 07-4128
v. (D.C. No. 2:06-CR-384-DAK)
(D. Utah)
RAOUL MORENO,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TACHA, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
KELLY, Circuit Judge.
Defendant-Appellant Raoul Moreno appeals from his conviction for
distributing five grams or more of methamphetamine, 21 U.S.C. § 841(a)(1), and
for carrying a firearm during and in relation to a drug trafficking crime, 18 U.S.C.
§ 924(c)(1)(A). Mr. Moreno was sentenced to 180 months’ imprisonment
followed by 60 months’ supervised release. On appeal, he argues that the district
court improperly instructed the jury that it could not consider a prior inconsistent
statement as substantive evidence unless the statement was made under oath. We
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we
affirm.
Background
On May 5, 2006, Detective Roger Niesporek, accompanied by a
cooperating state defendant, sought to purchase two ounces of methamphetamine
and a firearm from Amber Ward. The detective saw a suspect, who he identified
at trial as Mr. Moreno, walking on the sidewalk near Ms. Ward’s home who
motioned them to follow him. While driving by, the detective watched Mr.
Moreno cross a grassy area and pull out of his pocket what appeared to be a gun,
look at it, and then return it to his pocket. The cooperating state defendant and
the detective parked in front of a market where Mr. Moreno approached the car
and sat in the rear seat on the driver’s side. The detective was seated in the
passenger seat of the car. He testified he could see Mr. Moreno clearly and
described his appearance as “a male Hispanic, about average height, a little
stocky, bigger guy . . . wearing a black basketball jersey, a black-and-white jersey
with the Number 32, and he had shorts on,” III R. at 60–61.
Mr. Moreno then passed the detective a sandwich bag which was later
determined to contain methamphetamine, and the detective passed Mr. Moreno
$1,700 in cash. According to the detective, he saw what appeared to be the
outline of a semi-automatic handgun inside Mr. Moreno’s pocket. After the
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transaction, the detective testified that Mr. Moreno said, “if we wanted a 9
millimeter he could probably hook us up with one.” Id. at 70. The detective
further testified that he heard a metallic click that he believed to be the sound of a
firearm being de-cocked or the safety being engaged.
The detective prepared a police report including a physical description of
Mr. Moreno. However, the police report did not mention Mr. Moreno’s tattoos.
During cross-examination of the detective, defense counsel asked Mr. Moreno to
show his extensive tattoos on his arms, legs and the back of his head. The
detective acknowledged that this omission was an error in his report.
During the jury instruction conference, Mr. Moreno objected to jury
instruction 10 which provides:
The testimony of a witness may be discredited by showing that
the witness testified falsely concerning a material matter, or by
evidence that at some other time before trial the witness said or did
something, or failed to say something, which is inconsistent with the
testimony the witness gave at this trial.
If you find that a statement is inconsistent with the testimony
the witness gave at this trial, you may consider the earlier statement
in deciding the truthfulness and accuracy of the witness’ testimony in
this trial. You may not, however, use it as evidence of the truth of
the matter contained in that prior statement, unless that statement
was made under oath. If the prior statement was made under oath,
you may also consider it as evidence of the truth of the matter
contained in that prior statement.
I R. Doc. 152 at 11 (emphasis added). Mr. Moreno objected to the emphasized
sentence arguing that it was not applicable because the instruction went to the
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detective’s testimony regarding his police report. The district court overruled the
objection on the grounds that the inconsistent statements could be used for
impeachment, but not substantive evidence—“you can’t get positive evidence out
of a prior statement that isn’t under oath [but] . . . [y]ou can impeach, you can
beat them to death with it.” IV R. at 13. During deliberation, the jury requested a
transcript of the detective’s testimony and the police report. II R. Doc. 151 at 1.
The court declined the request with the following instruction:
No testimony of any witness is available during trial. It takes
an enormous amount of time to prepare transcripts. You must rely on
your memories.
Police reports are not usually admitted into evidence and were
not in this case. You have all the exhibits that were admitted. You
must rely on your notes and collective memory.
Id. at 2.
Discussion
District courts must instruct the jury correctly on the law. Because Mr.
Moreno objected to the jury instruction concerning inconsistent statements, we
review the instruction de novo. United States v. Jameson, 478 F.3d 1204, 1211
(10th Cir. 2007). We review jury instructions as a whole and will reverse the
conviction only if we have “substantial doubt that the jury was fairly guided.”
United States v. LaVallee, 439 F.3d 670, 684 (10th Cir. 2006) (quotations
omitted).
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Mr. Moreno argues that the jury was incorrectly instructed that a witness’s
prior statement could not be used as substantive evidence because the witness was
not under oath when he made the statement. Mr. Moreno contends that the
instruction precluded the jury from considering the detective’s omission of the
suspect’s tattoos from the police report as evidence of the suspect’s true identity
because police reports are not made under oath.
Federal Rule of Evidence 801(d)(1) provides that certain statements are not
hearsay and therefore admissible as substantive evidence where “[t]he declarant
testifies at the trial or hearing and is subject to cross-examination concerning the
statement, and the statement is (A) inconsistent with the declarant’s testimony,
and was given under oath subject to the penalty of perjury at a trial, hearing, or
other proceeding, or in a deposition.” If a witness’s prior statements are not made
under oath, the statements “are admissible only to impeach or discredit the
witness and are not competent substantive evidence of the facts to which the
former statements relate.” United States v. Carter, 973 F.2d 1509, 1512 (10th Cir.
1992) (quotations omitted). In such a circumstance where the prior statement
does not comply with Rule 801(d)(1)(A), the jury must be instructed that the
statement is available for contradiction purposes only and not for the truth of the
statement. See id. at 1514; accord 1A Kevin F. O’Malley, Jay E. Grenig &
William C. Lee, Federal Jury Practice & Instructions—Criminal, § 15.06 (5th ed.
2000) (instruction that “[t]he earlier inconsistent or contradictory statements are
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admissible only to discredit or impeach the credibility of the witness and not to
establish the truth of these earlier statements” should be included in the charge
unless a Rule 801(d)(1)(A) statement is involved).
Even assuming that the police report was a prior statement inconsistent
with the detective’s trial testimony, it was not a statement “given under oath . . .
at a trial, hearing, or other proceeding.” See Fed. R. Evid. 801(d)(1)(A).
Consequently, Mr. Moreno could only use the police report to contradict the
detective’s evidence and not as substantive evidence. The jury instruction
correctly and clearly stated the applicable law.
Mr. Moreno’s argues that if a jury cannot rely on a witness’s prior
statement as substantive evidence of what occurred, a jury is simply left with the
witness’s statements at trial. He argues that the police report ought to be
considered evidence of what truly happened. In this case, the police report was
not admitted into evidence, and Mr. Moreno did not even proffer the police report
to the district court. See United States v. Angelos, 433 F.3d 738, 749–50 (10th
Cir. 2006) (district court did not abuse its discretion in refusing to admit police
reports as they would have been cumulative of the officer’s admission that he did
not include certain information in those reports). In any event, Mr. Moreno was
given broad latitude to emphasize the omission in the police report and did so
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during cross-examination and closing argument. The trial judge handled the
situation correctly.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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