United States v. Amesheo D. Cannon ( 2007 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 05-3019
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United States of America, *
*
Plaintiff - Appellee, *
* Appeal from the United States
v. * District Court for the Eastern
* District of Missouri.
Amesheo D. Cannon, *
*
Defendant - Appellant. *
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Submitted: October 19, 2006
Filed: January 31, 2007
___________
Before MELLOY, BENTON, and SHEPHERD, Circuit Judges.
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MELLOY, Circuit Judge.
Amesheo D. Cannon was indicted on murder for hire and conspiracy to commit
murder for hire charges pursuant to 18 U.S.C. §§ 1958 and 2. The government sought
the death penalty. After hearing the evidence at trial, the jury convicted Cannon of
the conspiracy charge, but acquitted him of murder for hire, and sentenced him to life
in prison without the possibility of parole. Cannon appeals the trial court’s1 denial of
his motion for a judgment of acquittal based on the insufficiency of the evidence. He
1
The Honorable Henry E. Autrey, United States District Judge for the Eastern
District of Missouri.
also appeals the court’s decisions to remove a juror who claimed to have emotional
problems, to deny Cannon’s motion to adjourn trial to take a Rule 15(a) deposition,
and to exclude from evidence the government’s file on a co-conspirator. We affirm.
I. Background
Because Cannon challenges, among other things, the sufficiency of the
evidence, we present the facts in the light most favorable to the verdict. United States
v. Shepard, 462 F.3d 847, 853 (8th Cir. 2006).2
In the early morning hours of August 21, 2000, police found Coy Smith shot
to death in his bed. Smith was a private citizen who had been working with law
enforcement in the area to make controlled drug purchases from local drug dealers.
On August 10, 2000, Smith had testified against Cannon’s friend, Tyrese Hyles
(“Tyrese”), at a preliminary hearing in a state drug case. At the time of Smith’s
murder, Tyrese was being held in Pemiscot County Jail in Caruthersville, Missouri
pending trial in the state drug prosecution. Cannon lived in Memphis, Tennessee,
where he was under parole supervision. Tonya Johnson Hyles (“Tonya”), Tyrese’s
wife, lived in Caruthersville, Missouri.
2
Cannon challenges the credibility of several trial witnesses, many of whom
were cooperating witnesses and received substantial benefits from the government in
exchange for their testimony. This fact was made clear to the jury, however, during
direct and cross examination, and our charge on appeal is not to assess the credibility
of witnesses. See United States v. Tabor, 439 F.3d 826, 829 (8th Cir. 2006) (“We
have repeatedly upheld jury verdicts based solely on the testimony of co-conspirators
and cooperating witnesses, noting that it is within the province of the jury to make
credibility assessments and resolve conflicting testimony.”).
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A. Criminal Conduct
After Smith testified against Tyrese at an August 10, 2000 preliminary hearing,
Tyrese approached David Carter, Tyrese’s cellmate in the Pemiscot County Jail, and
asked him if he would kill Smith. Tyrese offered to bail Carter out of jail and said he
would give Carter a Pontiac Parisienne in return for killing Smith. Carter agreed.
Tyrese then contacted his wife, Tonya, to make the necessary arrangements to bail
Carter out of jail.
That same day, Tonya paid a bondsman to bail Carter out of jail. The collateral
put up to secure the bond was the Pontiac Parisienne that Tyrese had promised Carter
for the murder. The bail papers showed Carter as the owner of the car. After Carter
was out of jail, Tonya drove him home in the Pontiac Parisienne.
Not long after he arrived home, Carter received a three-way call from Tyrese.
Tyrese had called Tonya and she patched him through to Carter. Tyrese told Carter
to go over to Tonya’s house. Once he was there, Carter received another call from
Tyrese, telling Carter that the murder weapon was on its way. Shortly thereafter,
Samuel Anderson delivered a stainless steel, nine millimeter, semi-automatic handgun
with a black handle to Tonya’s house. Tonya had previously contacted Anderson,
telling him that they were going to “take care of Coy’s ass” and that Tyrese had sent
her to get the gun. After Anderson left, Tonya turned the gun over to Carter.
Phone records showed several phone calls made to Tonya’s residence on the
evening of August 10, 2000. Two calls originated from Tyrese’s cell in the Pemiscot
County Jail. The calls were made at 7:50 p.m. and 8:34 p.m. and were consistent with
the time frame when Tyrese was calling Carter to set up the transfer of the gun. Four
calls came from Cannon’s mother’s house, where Cannon lived, in Memphis. These
calls were at 8:11 p.m., 8:23 p.m., 8:39 p.m., and 8:43 p.m. The final call was fifty-
one minutes long and overlapped with the second call from Tyrese’s jail cell.
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Several days later, April Leatherwood, Cannon’s one-time girlfriend, received
a call from Cannon. Cannon told her Tonya was driving him to Caruthersville from
Memphis.
Anderson subsequently took the gun back from Carter and gave it to Cannon
after Cannon arrived in Caruthersville. Cannon had asked Anderson for the gun and
said he was going “to handle that for Little Tyrese.”
On August 20, the afternoon before Smith’s murder, Cannon was at the home
of Omar Wiley. Wiley lived across the street and four houses down from Smith.
Wiley saw a silver gun with a black handle in the Pontiac Parisenne, which Cannon
was already driving. While Cannon was at Wiley’s house, Smith drove by. When
Cannon saw Smith, Cannon told Wiley, “I’m going to kill that nigger. He got my
boy.”
Later that evening, Cannon went to Leatherwood’s house. Leatherwood lived
around the corner from Smith’s house. Before Leatherwood went to bed, she saw
Cannon cutting eye holes out of a black scarf. At approximately 2:30 a.m. on August
21, Cannon woke Leatherwood and told her to take the Pontiac Parisenne to Tonya
so Tonya could use it for work. Leatherwood returned to her apartment at about 2:45
a.m. and Cannon was not there. Cannon returned at about 3:00 a.m. with a juvenile.
Cannon and the juvenile then left Leatherwood’s house.
About twenty minutes later, Cannon returned to Leatherwood’s apartment,
where he soaked his pants in the bathtub and listened to a police scanner. When he
heard a homicide report, Cannon called Wiley and told him to look out his window.
Emergency vehicles were already at Smith’s house.
An autopsy revealed that Smith had been shot three times with a nine
millimeter, semi-automatic weapon. The fatal shot was behind the right ear, at close
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range. Smith had been shot two additional times in the back. The investigation also
found that the phone wires had been cut in Smith’s house and the front light bulb had
been unscrewed.
Several days after the murder, Anderson asked Cannon what he did with the
gun. Cannon told him not to worry, he had taken care of it. Cannon then told
Anderson about the murder. He said he went to Smith’s house and unscrewed the
front light bulb, disconnected the door knob, and entered the house. He said he went
to the bedroom and shot Smith behind the ear. He said Mrs. Smith jumped out of the
bed and hid in the closet. He said he then shot Smith again.
About a week after Smith was killed, Wiley overheard Cannon and Tonya
arguing over the Pontiac. Cannon told Tonya that Tyrese had told Cannon he could
have the car.
On August 29, 2000, Cannon was pulled over and issued a traffic summons by
Captain Tony Jones of the Caruthersville Police Department. Cannon was driving the
Pontiac Parisienne he had received from Tyrese. During discussions with Captain
Jones about the car, Cannon told Captain Jones that Tyrese had given him the car.
B. Pretrial Events
On October 18, 2001, the government indicted Cannon and Tyrese Hyles on
murder for hire and conspiracy to commit murder for hire charges in violation of 18
U.S.C. §§ 1958 and 2. Tonya Hyles had been indicted on June 14, 2001, on murder
for hire charges only. Her indictment was dismissed on October 24, 2001.3 The
government filed a superseding indictment against Cannon and Tyrese on December
13, 2001, charging the same crimes.
3
The government indicted Tonya again on May 5, 2005.
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While Cannon was being held in the Cape Girardeau County Jail, another
prisoner, Marques Terry, overheard Cannon talking to Myron Woods, who was also
a prisoner. Cannon told Woods he came to Caruthersville from Memphis “to shoot
some dude” and that he had gotten the gun from Tonya.
On November 21, 2002, the government filed a second superseding indictment,
adding grand jury findings on aggravating circumstances. The government filed a
Notice of Intent to Seek the Death Penalty on December 6, 2002, and filed an
Amended Notice of Intent to Seek the Death Penalty on March 4, 2003. Cannon
moved for, and was granted, a motion to sever the parties for trial on June 27, 2003.
C. Trial
Voir dire for Cannon’s trial began on February 28, 2005. A death-qualified jury
was empaneled on March 3, 2005. One day after the jury was empaneled and three
days before trial was to begin, Juror Moenster submitted a letter from her doctor to the
trial court stating that she was “emotionally wrought over being on the jury.” The
court brought the issue to the parties’ attention the morning trial was to begin.
The court expressed skepticism, and felt the need to “talk to [Ms. Moenster] and
ferret her out.” While being questioned at the bench, Ms. Moenster stated, “ I am not
able to sit here for that length of time and listen to everything. Listening to people
talk is really hard for me, and I’m just not comfortable. I get shaky, and I’m just
totally overwhelmed by it.” When asked why she had not expressed her emotional
issues previously, Ms. Moenster replied, “I thought someone was going to talk to me
before I was picked, and I was going to say something. No one brought up emotional
problems.” She stated that she did not respond to the voir dire questions regarding
medical issues because she did not consider her emotional problem to be a medical
problem and “[i]t is just hard to talk about this in front of a whole group of people.”
Under further questioning by defense counsel, Ms. Moenster said, “I don’t take stress,
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and this is just stressful for me.” The government observed that Ms. Moenster’s
“voice is shaking . . . [and] [s]he is ready to go into tears now.” She was “getting
ready to hyperventilate.” Defense counsel did not dispute the government’s
observations.
After hearing arguments from both parties, the trial court held:
[T]o allow her to stay on the jury would jeopardize the ability of both
sides to get a fair trial because of what she has articulated here in relation
to her emotional status or incapacity thereon or instability therein and
what she has indicated in her letter that she brought from her doctor,
statements that she made to a doctor about her emotional status, and
especially her emotion about, quote, a case she doesn’t even care about,
I think it behooves the Court and it is therefore, incumbent upon me to
release Ms. Moenster for the benefit of all parties concerned, especially
for the benefit of the defendant, and I think that the defendant especially
is the last person who needs to have a loose cannon sitting on a jury,
which could explode.
Despite being “a little dismayed” with Ms. Moenster’s late reporting of her problem,
the court released her and replaced her with the first alternate, Mr. Kassebaum.
In the middle of the presentation of his case, Cannon moved to adjourn trial in
order to depose Shemikia4 Williams to preserve her testimony. Williams was nine
months pregnant, fully dilated, and had been in and out of the hospital for the past
several weeks. Cannon stated that he would offer Williams’s testimony to attack the
credibility of April Leatherwood. Specifically, Williams would testify that
Leatherwood told her she was threatened by Officer Lockett. Williams would also
testify that when she confronted Leatherwood about whether Cannon was involved
in Smith’s murder, Leatherwood told her that Cannon had been with her all night. The
4
Ms. Williams’s name is spelled several different ways in the record.
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government argued that this testimony was cumulative, and the trial court agreed. The
court denied Cannon’s motions.
Cannon also sought to introduce the government’s criminal file on Tonya
Hyles, which included her indictment and the dismissal of her indictment, into
evidence to challenge the credibility of Samuel Anderson and David Carter. Both
Anderson and Carter had testified that Tonya was instrumental in obtaining the
murder weapon and setting up the homicide. The government referred to Tonya
several times during the trial, stating that she was a part of the conspiracy to murder
Coy Smith.
The government objected to the introduction of the file, arguing that it was
immaterial and irrelevant whether Tonya’s case was dismissed because she was not
a witness in the case. The government also argued that the evidence would be
misleading. The court excluded the file from evidence, stating that it did not see the
link between the dismissal of Tonya’s indictment and Anderson’s or the government’s
credibility.
At the close of the government’s case and again after closing arguments,
Cannon moved for a judgment of acquittal, based on the insufficiency of the evidence.
His motion was denied. The jury found Cannon guilty of conspiracy, but acquitted
him on the murder-for-hire charge. In the sentencing phase, the jury declined to
sentence Cannon to death, instead sentencing Cannon to life in prison without the
possibility of parole.
Cannon now appeals, arguing that: 1) there was insufficient evidence to support
his conviction of conspiracy to commit murder for hire; 2) the trial court erred when
it denied his motion to adjourn trial to allow him to take a Rule 15(a) deposition; 3)
the trial court erred in releasing Juror Moenster for emotional reasons; and 4) trial
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court erred in excluding Tonya’s file. We address each of Cannon’s arguments in
turn.
II. Analysis
A. Sufficiency of the Evidence
Cannon first argues that the district court erred in denying Cannon’s motion for
acquittal based on the sufficiency of the evidence. Specifically, Cannon argues that
no jury could reasonably find that he was a member of the conspiracy to kill Coy
Smith or that his actions met the interstate commerce requirement of 18 U.S.C. §
1958. We review de novo a district court’s denial of a motion for judgment of
acquittal. United States v. Washington, 318 F.3d 845, 852 (8th Cir. 2003). We view
the evidence in the light most favorable to the government, resolving evidentiary
conflicts in favor of the government, and accepting all reasonable inferences drawn
from the evidence that support the jury’s verdict. Id.Cannon does not contest the fact that a conspiracy to commit the murder for
hire of Smith existed. Cannon argues that the government did not present sufficient
evidence to prove beyond a reasonable doubt that Cannon joined the murder-for-hire
conspiracy. To convict Cannon of conspiracy, the government had to prove that
“there was an agreement to [to kill Smith], that [Cannon] knew of this agreement, and
that [Cannon] intentionally joined this agreement.” Id. at 853.
If a conspiracy has been established, as in this case, “the government must offer
enough evidence to prove a defendant’s connection to a conspiracy beyond a
reasonable doubt before a conspiracy conviction can be upheld.” United States v
Lopez, 443 F.3d 1026, 1028 (8th Cir. 2006) (en banc). “Slight evidence” connecting
the defendant to a conspiracy is not enough to support a conviction. See id. at 1029-
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30. However, “[p]roof of a defendant’s involvement in a conspiracy may of course
be demonstrated by direct or circumstantial evidence.” Id. at 1030.
Viewing the evidence in the light most favorable to the government, it was
reasonable for the jury to conclude that Cannon was a part of the conspiracy.5 The
evidence supporting the verdict includes numerous phone calls from Cannon’s
mother’s house to Tonya Hyles’s home, the exchange of the murder weapon, and
Cannon’s statements demonstrating knowledge of how the murder was committed.
Witnesses testified to direct statements from Cannon stating that he was going to kill
or had killed Coy Smith. He was seen the day before the murder carrying the murder
weapon and driving the Pontiac Parisienne, which the evidence showed was the
consideration for the murder for hire.
Cannon’s actions in the early morning hours on the date of the murder also
support the jury’s verdict. Leatherwood observed Cannon cutting eye holes in a black
scarf. Around 3:00 a.m., Cannon left Leatherwood’s house and then returned twenty
minutes later. Leatherwood’s house was close in proximity to Carter’s house.
Cannon then soaked his pants in the bathtub, listened to the police scanner, and called
Wiley once he heard the report about Smith’s murder. Cannon told Wiley to look
outside at the emergency vehicles at Smith’s house. The evidence is sufficient to
show that Cannon joined the conspiracy.
Cannon also argues the government’s evidence is insufficient because it does
not prove the requisite connection between interstate commerce and the murder-for-
5
Cannon urges us to look at the verdict of acquittal for the murder for hire
charge when we draw all inferences from the evidence that support the jury’s verdict.
This is a misstatement of the law. The review of Cannon’s conviction of conspiracy
to commit murder-for-hire “should be independent of the jury’s determination that
evidence on another count was insufficient.” United States v. Powell, 469 U.S. 57,
67 (1984); see also Washington, 318 F.3d at 853 n.5.
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hire plot. The government had to prove that Cannon, or some other member of the
conspiracy, conspired to “travel[] in . . . interstate or foreign commerce, or use[] . . .
the mail or any facility of interstate or foreign commerce, with intent that a murder be
committed . . . as consideration for the receipt of, or as consideration for a promise or
agreement to pay, anything of pecuniary value . . . .” 18 U.S.C. § 1958(a).
“‘[F]acility of interstate or foreign commerce’ includes means of transportation and
communication.” 18 U.S.C. § 1958(b)(2).
There was ample evidence offered by the government at trial to prove the
interstate connection. There were four calls made from Cannon’s mother’s house in
Memphis to Tonya’s house, one of which overlapped with one of Tyrese’s calls from
jail. These calls were made in the context of Tonya’s efforts to obtain a gun from
Samuel Anderson so David Carter could kill Smith in exchange for the Pontiac
Parisenne. Days later, Cannon called April Leatherwood and told her that Tonya was
driving him to Caruthersville from Memphis. Once Cannon arrived in Caruthersville,
Anderson gave him the same gun he had since received back from Carter. Cannon
asked Anderson for the gun so that Cannon could “handle that for Little Tyrese.”
After the murder, Cannon told Myron Woods, his cellmate, that he came up from
Memphis to Caruthersville “to shoot some dude.”
Cannon argues that the government did not offer any evidence showing who the
parties to the phone conversations were or that the topic of those conversation was the
murder of Smith. Cannon asserts that the phone records offered at trial showed no
difference in either the number or pattern of calls from Cannon’s mother’s house in
Memphis and Tonya Hyles’s house in Caruthersville once he allegedly became
involved in the conspiracy. Cannon also argues that there is no evidence showing that
he drove from Memphis to Caruthersville with the purpose of killing Smith.6
6
There was some evidence at trial supporting Cannon’s position. Hendrietta
Nichols, Cannon’s former girlfriend, testified that she lived with Tonya during the late
summer of 2000, which is the time period in question. She testified that Cannon
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Cannon relies primarily on United States v. Sullivan, 809 F. Supp. 934 (N.D.
Ga. 1992). This case can be distinguished. In Sullivan, the only evidence offered to
prove the connection between use of facilities of interstate commerce and the murder-
for-hire plot was four phone calls between the defendant’s home and a number of
unknown people. Neither the “trigger man,” nor any of his accomplices had been
apprehended or identified at the time of the defendant’s trial. In this context, the court
granted defendant’s motion for judgment of acquittal because the government did not
prove “that the telephone calls related to the murder–that is, that they were in fact used
in the commission of the offense.” Id. at 937 (internal marks omitted).
In this case, the government offered more than just four phone calls with
unknown parties. The government included evidence linking Cannon to several co-
conspirators and a conspiracy that Cannon does not dispute exists. “[T]he jury may
draw all reasonable inferences from [circumstantial] evidence.” United States v.
Davidson, 122 F.3d 531, 535 (8th Cir. 1997); see also United States v. Basile, 109
F.3d 1304, 1310 (8th Cir. 1997) (“We may affirm even if the evidence is entirely
circumstantial.”). When taken together with the other evidence at trial, such as Carter
and Anderson’s testimony and the timing of Cannon’s calls and visit to Caruthersville,
the phone calls between Memphis and Caruthersville provide, at the very least,
sufficient circumstantial evidence to prove an interstate nexus. The district court did
not err in denying Cannon’s motion for acquittal.
sometimes called the house more than once a day during this time to talk to her about
their relationship. Also, there was evidence showing that Cannon often came to
Caruthersville from Memphis to visit. He grew up in Caruthersville and still had
many friends there. However, when viewed in the light most favorable to the verdict,
a reasonable jury could have concluded that Cannon spoke with Tonya and Tyrese
over the phone, that Tyrese promised Cannon the Pontiac Parisienne in exchange for
murdering Smith, and that Cannon drove from Memphis, Tennessee to Caruthersville,
Missouri with the intent to murder Smith. See United States v. One Star, 465 F.3d
828, 833 (8th Cir. 2006) (“Assessing the credibility of witnesses is a matter properly
left to the jury.”) (internal marks omitted).
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B. Rule 15(a) Deposition
Cannon next argues that the district court erred when it denied his motion to
adjourn trial in order to take a Rule 15(a) deposition to preserve the testimony of
Shemikia Williams. We review the denial of this motion for abuse of discretion.
United States v. Adcock , 558 F.2d 397, 406 (8th Cir. 1977) (“Discovery matters are
committed to the sound discretion of the trial court.”).
Federal Rule of Criminal Procedure 15(a) allows a party to “move that a
prospective witness be deposed in order to preserve testimony for trial. The court may
grant the motion because of exceptional circumstances and in the interest of justice.”
Fed. R. Crim. P. 15(a)(1). To establish exceptional circumstances under Rule 15(a),
“the moving party must show the witness’s unavailability and the materiality of the
witness’s testimony.” United States v. Liner, 435 F.3d 920, 924 (8th Cir. 2006).
There is no dispute that Williams was unavailable to testify at trial. Her
testimony, however, was not material. Williams’s testimony was cumulative. See
Fed. R. Evid. 403. Cannon’s counsel himself said “she would testify that April told
her essentially what the other witnesses have said.” Dyvonne Miller, for example,
testified that Leatherwood told her that Officer Lockett threatened Leatherwood into
lying. While Williams’s testimony would contradict some of what Leatherwood said
in court, Leatherwood’s credibility had already been undermined by direct and cross
examination and by the testimony of other witnesses. It was not error to deny
Cannon’s motion because Williams’s testimony was cumulative.
Cannon also argues that his Sixth Amendment and Due Process rights were
violated because the trial court infringed upon his right to call witnesses on his own
behalf. The Due Process Clause gives defendants the “right to offer the testimony of
witnesses, and to compel their attendance.” Washington v. Texas, 388 U.S. 14, 19
(1967). The Sixth Amendment Compulsory Process Clause has been given broad
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interpretation, which “necessarily encompasses the right to present witness
testimony.” Anderson v. Groose, 106 F.3d 242, 246 (8th Cir. 1997) (holding that the
preclusion of a defendant’s alibi witness’s testimony as a sanction for violating a
discovery rule was unconstitutional).
As Cannon recognizes, however, a defendant cannot establish a violation of his
right to offer testimony merely by showing that a court deprived him of that
testimony; rather, the defendant must “‘at least make some plausible showing of how
[the] testimony would have been both material and favorable to his defense.’” United
States v. Turning Bear, 357 F.3d 730, 733 (8th Cir. 2004) (quoting United States v.
Valenzuela-Bernal, 458 U.S. 858, 867 (1982)). Further, a denial of the right can
constitute harmless error. Anderson, 106 F.3d at 246. As discussed above, the district
court ruled that Williams’s testimony would have been cumulative, and denied
Cannon’s motion to adjourn trial and take her deposition for this reason. This ruling
was not arbitrary, see Turning Bear, 357 F.3d at 733, and at the very least constitutes
harmless error.
C. Dismissal of Juror Moenster
Cannon also argues the district court erred in dismissing Juror Moenster. “A
district court’s decision to remove or not remove a juror is reviewed for an abuse of
discretion.” United States v. Running Horse, 175 F.3d 635, 638 (8th Cir. 1999). We
will uphold the district court’s decision to remove a juror “if the record reflects a
legitimate basis for it.” United States v. Evans, 455 F.3d 823, 824 (8th Cir. 2006)
(discussing the standard of review for excusing a potential juror for cause); see also
United States v. Green, 428 F.3d 1131, 1135 (8th Cir. 2005) (applying the same
standard to the district court’s decision to retain a juror alleged to have been sleeping
during trial).
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We have never discussed a district court’s decision to dismiss a juror because
of emotional problems; however, several other circuits have held that the trial court’s
dismissal of a juror during trial for emotional issues is proper. See e.g., United States
v. Beard, 161 F.3d 1190, 1193-95 (9th Cir. 1998) (stating that “just cause”
encompasses “all kinds of problems–temporary as well as those of long duration–that
may befall a juror,” and holding that dismissal of a juror because of her distraught
emotional state was proper) (internal marks omitted); United States v. Huntress, 956
F.2d 1309, 1312-13 (5th Cir. 1992) (upholding the dismissal of a juror during
deliberations because of mental illness). We have held that illness of a juror is a
legitimate reason for dismissal, United States v. McMasters, 90 F.3d 1394, 1402 (8th
Cir. 1996), and Ms. Moenster’s condition is arguably an illness. The court here
properly assessed Ms. Moenster’s credibility and demeanor, and ultimately
determined that justice would be better served if she was not on the jury. Because
emotional issues are a legitimate basis for dismissal, the dismissal was not in error.
D. Tonya Hyles’s Indictment
Lastly, Cannon argues that the district court erred by excluding evidence
showing that the government had dismissed Tonya Hyles’s indictment. “We review
for clear abuse of discretion a district court’s evidentiary rulings.” United States v.
Chase, 451 F.3d 474, 479 (8th Cir. 2006). We will reverse a conviction “only when
an improper evidentiary ruling has affected substantial rights or had more than a slight
effect on the verdict.” United States v. Naiden, 424 F.3d 718, 722 (8th Cir. 2005).
Cannon argues that the evidence in the government’s criminal file on Tonya
is relevant to demonstrate the “inconsistency of proceeding under the same evidence
against Mr. Cannon, where such evidence could not sustain an indictment against
Tonya.” This ignores the fact, however, that the indictment against Tonya was
dismissed without prejudice because she was expected to be a cooperating witness in
Cannon’s trial. Her name was on the witness list the government filed, and during
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discovery Cannon received statements made by Tonya, as well as her proffer letter.
The government dropped her from its witness list, however, because she was no
longer willing to cooperate. After Cannon’s trial, the government again indicted her.
Thus, as the government argues, evidence of the dismissal of her indictment would
have been misleading and was properly excluded. See Fed. R. Evid. 403.
Cannon’s constitutional arguments are also without merit. Contrary to
Cannon’s argument, sharing information with the jury about a co-conspirator’s
charges or lack thereof creates the potential denial of a fair trial, not the contrary. Cf.
United States v. Barrientos, 758 F.2d 1152, 1155 (7th Cir. 1985) (“Information
regarding the reason for a co-defendant’s absence is irrelevant to [the jury’s] task. It
only adds grist to the mills of speculation for the jurors to know that one defendant has
admitted to guilt or that another has been found not guilty.”).
III. Conclusion
For the foregoing reasons, we affirm the district court’s rulings and uphold
Cannon’s verdict.
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