United States v. Smalls

FILED
United States Court of Appeals
Tenth Circuit
April 28, 2014
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 12-2145
PAUL OTHELLO SMALLS,
Defendant-Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. 2:06-CR-02403-RB-1)
Amy Sirignano, Albuquerque, New Mexico, for Appellant.*
Richard C. Williams, Assistant United States Attorney (Kenneth J. Gonzales,
United States Attorney, with him on the brief), Las Cruces, New Mexico, for
Appellee.
Before TYMKOVICH, BALDOCK, and PHILLIPS, Circuit Judges.
TYMKOVICH, Circuit Judge.
______________
* The Court28 U.S.C. § 1291, we AFFIRM. We conclude
the district court did not abuse its discretion or plainly err in admitting the
challenged pieces of evidence; the government did not commit prosecutorial
misconduct by introducing co-conspirator testimony or vouching for the
witnesses; the court did not abuse its discretion denying Smalls’s proposed jury
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instructions because the instructions adequately conveyed the law and Smalls’s
theory of the case; and there was sufficient evidence to sustain the convictions.
Because the district court did not commit error, a cumulative error analysis is
unwarranted.
I. Background
At the time of Gantz’s murder, Smalls was being held in pre-trial custody at
the Doña Ana County Detention Center in New Mexico, where he was formerly a
corrections officer. He was awaiting trial on state charges for an August 2004
assault on his then-wife.
Smalls shared a medical unit cell with three other prisoners. One cellmate,
Gantz, had been arrested in May 2003 as part of an investigation into
methamphetamine trafficking in Roswell, New Mexico. After being charged in
federal court, he decided to cooperate with law enforcement. His plea agreement
stipulated that he would testify as a witness for the government in the future.
Based in part on the information Gantz provided, law enforcement approached,
and eventually indicted, an alleged drug trafficker. Another cellmate was Glenn
Dell Cook, who had been placed in the cell after fighting with his former
cellmate. Cook was in pre-trial custody on charges of methamphetamine
trafficking. The fourth cellmate was Walter Melgar-Diaz (Melgar), who was in
pre-trial custody for illegal reentry into the United States and had moved into the
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cell only a week before the murder. Although Melgar spoke only Spanish, he was
nevertheless able to communicate to some extent with his cellmates.
Before Smalls’s murder trial, Cook and Melgar made agreements with
federal prosecutors and testified against Smalls. According to them, Smalls was
the ringleader of the plot to kill Gantz. Melgar testified that Smalls had told him
that Gantz was a “rat” and had to be killed. He also described how Smalls
pressured him into committing the murder by explaining that Gantz had helped
capture four “Michoacanos,” who Smalls referred to as Melgar’s “people.” R.,
Vol. V at 648. Melgar further testified that Smalls said that no one would
suspect anything because Gantz had asthma, and the death would look like a
result of natural causes.
Cook testified that Smalls told him about Gantz’s cooperation with
authorities, that certain people wanted Gantz dead, and there was a hit on Gantz.
Cook did not like Gantz because he was a “snitch” and bragged about getting a
reduced sentence. Cook also testified that he did not know they were going to kill
Gantz—he thought they were just going to hurt him and that Melgar and Smalls
planned the murder.
According to Melgar, at 1:30 a.m. on December 30, 2004, Smalls woke up
Melgar, and Cook handed Melgar a plastic bag. Then, Smalls instructed Melgar
to put the bag over Gantz’s face, which he did using closed fists. Smalls held
down Gantz’s legs and Cook restrained Gantz’s chest and arms. After the murder,
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according to Melgar, Smalls instructed the other two not to talk about the murder
because “they” would think Gantz suffocated because of the asthma. Cook’s
description of the murder was almost identical, and he explained that the murder
took about twenty seconds and there were only eight seconds of silent struggle.
Smalls testified that he slept through the murder.
The next morning, Gantz’s body was found, but there were no apparent
signs of foul play. On December 31, an autopsy revealed a hemorrhage in three
layers of the neck, indicating that Gantz had died by carotid strangulation, not by
suffocation. There were also no defensive wounds found on the body, which was
consistent with being restrained. According to expert testimony offered by the
government at trial, the assailant could have caused the strangulation by holding a
plastic bag with two fists and wrapping it around the bottom of the jaw.
The sheriff’s office initially investigated the murder, and federal
investigators joined in April 2005. That summer, Cook told a fellow inmate about
the murder. Unbeknownst to Cook, the inmate was cooperating with investigators
and wearing a wire. Meanwhile, Melgar suffered severe mental turmoil after the
murder. He claimed to have seen Gantz’s ghost and began to cut himself. He was
transferred to a treatment facility in Missouri and, upon his return, received
medication and was declared competent by the court. In February 2006, Melgar
met with his attorney after the government informed her it was interested in
talking to Melgar about Gantz’s murder. In a conversation with his attorney, he
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confessed to killing Gantz along with Smalls and Cook and gave a videotaped
statement to the FBI on February 24, 2006.
After a trial in which Melgar and Cook testified against Smalls, Smalls was
found guilty of five federal offenses:
• Conspiracy to retaliate against a witness, victim, or informant in
violation of 18 U.S.C. § 1513(f);
• Retaliating against a witness, victim or informant in violation of 18
U.S.C. § 1513(a)(1)(B);
• Conspiracy to tamper with a witness, victim, or informant in
violation of 18 U.S.C. § 1512(k);
• Tampering with a witness, victim, or informant in violation of 18
U.S.C. § 1512(a)(1)(A) and (C);
• K illing a person aiding in a federal investigation in violation of 18
U.S.C. § 1121(a)(2).
On appeal, Smalls argues that the district court’s numerous errors constitute
cumulative error and warrant a new trial.
II. Analysis
Smalls asserts four classes of errors relating to (1) evidence that was
admitted at trial; (2) prosecutorial misconduct; (3) the jury instructions; and (4)
sufficiency of the evidence. As we explain, none of these contentions amounts to
reversible error, nor is there any basis for finding cumulative error.
A. Evidentiary Issues
Smalls asserts the district court erroneously admitted a number of pieces of
evidence relating to his conduct and the conduct of the other persons involved in
the murder: (1) Smalls’s statement to his wife during her asthma attack admitted
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as “signature quality” evidence pursuant to Rule 404(b) of the Federal Rules of
Evidence; (2) his prior felony convictions admitted as impeachment evidence
pursuant to Rule 609(a)(1); (3) statements by Cook and Melgar admitted as
statements by co-conspirators pursuant to Rule 801(d)(2)(E); (4) statements by
Cook and Melgar admitted as prior consistent statements pursuant to Rule
801(d)(1)(B); and (5) video surveillance, still photos, and accompanying
testimony related to Smalls’s conversations with a fellow inmate. 1
As long as there was an objection to the admission of evidence, “[w]e
review for abuse of discretion the district court’s evidentiary rulings, considering
the record as a whole.” United States v. Becker, 230 F.3d 1224, 1228 (10th Cir.
2000). We will not reverse a district court’s decision if it “falls within the bounds
of permissible choice in the circumstances.” United States v. Cardinas Garcia,
596 F.3d 788, 797 (10th Cir. 2010). Nor will we reverse that decision “absent a
distinct showing it was based on a clearly erroneous finding of fact or an
erroneous conclusion of law or manifests a clear error of judgment.” United
States v. Stiger, 413 F.3d 1185, 1194 (10th Cir. 2005).
If there was no objection, we review for plain error. “We find plain error
only when there is (1) error, (2) that is plain, (3) which affects substantial rights,
and (4) which seriously affects the fairness, integrity, or public reputation of
1
At oral argument, Smalls abandoned his claim that the district court
improperly admitted evidence under the forfeiture by wrongdoing exception to the
rule against hearsay. Fed. R. Evid. 804(b)(6).
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judicial proceedings.” United States v. Romero, 491 F.3d 1173, 1178 (10th Cir.
2007). “The plain error standard presents a heavy burden for an appellant” and
“is to be used sparingly.” Id. at 1178–79.
We evaluate the evidentiary claims under these standards.
1. Signature Quality Evidence Under Rule 404(b)
Smalls had a tumultuous relationship with his ex-wife, which included a
domestic assault that took place in 2004. The district court allowed evidence of
the assault to be admitted at trial, and, in particular, testimony that elements of
the attack on his ex-wife bore a strong resemblance to the plan to kill Gantz.
Under Rule 404(b) of the Federal Rules of Evidence, “[e]vidence of other
crimes, wrongs, or acts is not admissible to prove a person’s character in order to
show action in conformity therewith. It may, however, be admissible for another
purpose, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident. . . .” 2 This rule “is one of
inclusion, rather than exclusion, unless the evidence is introduced for the
impermissible purpose or is unduly prejudicial.” United States v. Segien, 114
F.3d 1014, 1022 (10th Cir. 1997), overruled on other grounds as recognized in
United States v. Hathaway, 318 F.3d 1001, 1006 (10th Cir. 2003).
2
Smalls was tried under the version of the Federal Rules of Evidence in
place in November 2011, which has subsequently been amended for style only.
All citations to the Rules of Evidence will be to the version in place at the time of
Smalls’s trial.
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We consider a four-part test when determining whether evidence is
admissible under Rule 404(b):
(1) the evidence must be offered for a proper purpose;
(2) the evidence must be relevant; (3) the trial court
must make a Rule 403 determination of whether the
probative value of the similar acts is substantially
outweighed by its potential for unfair prejudice; and (4)
pursuant to Fed. R. Evid. 105, the trial court shall, upon
request, instruct the jury that evidence of similar acts is
to be considered only for the proper purpose for which it
was admitted.
United States v. Davis, 636 F.3d 1281, 1297 (10th Cir. 2011) (citation omitted);
see also Huddleston v. United States, 485 U.S. 681, 691–92 (1988) (discussing
the four sources of “protection against . . . unfair prejudice” when admitting
evidence under Rule 404(b)).
The district court admitted evidence that Smalls pleaded guilty to a
domestic assault against his ex-wife, 3 which took place about five months before
Gantz’s murder, and allowed his ex-wife to testify about a statement Smalls made
during the altercation underlying the assault conviction. The objected-to
testimony goes like this. When his wife began having an asthma attack during the
altercation, Smalls prevented her from accessing her inhaler and said to her: “Go
ahead and just die. And that way, I won’t have to—it will just be natural causes
3
He was convicted of Aggravated Battery Against a Household Member
with a Deadly Weapon and Criminal Sexual Penetration. For Rule 404(b)
purposes, only evidence of the battery conviction was admitted. The district court
allowed admission of the Criminal Sexual Penetration conviction for
impeachment purposes under Rule 609(a)(1). See infra at 14.
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and I’ll be done with you.” R., Vol. V at 607. Smalls eventually gave her the
inhaler. The district court held that the evidence was admissible for the proper
purposes of showing common identity and plan under Rule 404(b). The court
reasoned that Smalls’s verbalized intent to use the victim’s asthma as a means to
cover up the victim’s anticipated death in both the assault on his wife and in the
alleged murder of Gantz was “signature quality” evidence that showed common
identity of the assailant.
Smalls argues that “an offhand comment during a lengthy domestic
violence incident, not followed through on by Smalls” does not prove “that he is
the same person who planned a cold-blooded murder by a different means for the
benefit of a drug-trafficking organization” to which he had no ties. Reply Br. at
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11. 4 He points to cases in which there were more pervasive similarities among
the crimes at issue.
Our cases interpreting Rule 404(b) allow evidence that tends to show the
defendant’s identity as the perpetrator of the charged offense because the
defendant proceeded by a unique modus operandi evident in prior crimes. For
example, in United States v. Gutierrez, we held that “[i]f the crimes share
elements that possess ‘signature quality,’ evidence of the ‘other crime’ may be
admitted.” 696 F.2d 753, 755 (10th Cir. 1982). We concluded that the
defendant’s driving the getaway car and using her children as cover during the
getaway in two robberies constituted signature quality evidence. Id. “Elements
relevant to a ‘signature quality’ determination include the following: geographic
location; the unusual quality of the crime; the skill necessary to commit the acts;
4
Smalls also argues that the evidence was unduly prejudicial under Rule
403. At the time of trial, Rule 403 provided that relevant evidence “may be
excluded if its probative value 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.”
Exclusion of otherwise admissible evidence under Rule 403 “is an extraordinary
remedy and should be used sparingly.” United States v. Tan, 254 F.3d 1204, 1211
(10th Cir. 2001).
The district court did not abuse its discretion in concluding that the risk of
undue prejudice did not substantially outweigh the evidence’s probative value.
Smalls’s statement does not show how Smalls actually behaved throughout the
domestic dispute; it concerned only his plans to cover up the death and thus
helped establish his identity as a conspirator in Gantz’s murder, where he used a
similar excuse. And the crimes were sufficiently dissimilar to reduce the
likelihood that the jury would convict Smalls on the basis of conformity evidence.
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or use of a distinctive device.” United States v. Shumway, 112 F.3d 1413, 1420
(10th Cir. 1997) (citations omitted). This list is not exhaustive, but it does
underscore the requirement that the characteristics of the crimes “be so unusual
and distinctive as to be like a signature.” United States v. Connelly, 874 F.2d
412, 417 (7th Cir. 1989) (emphasis omitted).
A court’s assessment of the number and pervasiveness of similarities
between the crimes may help determine whether they possess signature qualities,
but the distinctiveness of common characteristics is also relevant to the inquiry.
In Shumway, we stated,
the weight to be given to any one element and the
number of elements necessary to constitute a “signature”
are highly dependent on the elements’ uniqueness in the
context of a particular case. In other words, a few
highly unique factors may constitute a “signature,”
while a number of lesser unique factors “although
insufficient to generate a strong inference of identity if
considered separately, may be of significant probative
value when considered together.”
112 F.3d at 1420 (quoting United States v. Myers, 550 F.2d 1036, 1045 (5th Cir.
1977)). Where only one common characteristic of two crimes is particularly
distinctive, that similarity may be sufficient on its own to show signature quality.
Compare United States v. Howe, 538 F.3d 842, 849 (8th Cir. 2008) (stripping
victim naked at gunpoint during robberies was so “unusual and distinctive enough
as to be like a signature”), abrogated on other grounds by United States v.
Villareal-Amarillas, 562 F.3d 892 (8th Cir. 2009), with United States v. Thomas,
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321 F.3d 627, 635 (7th Cir. 2003) (pattern of dropping contraband and fleeing
police was too “garden variety” to constitute signature quality evidence). See
also United States v. Andrini, 685 F.2d 1094, 1096–97 (9th Cir. 1982) (testimony
about defendant’s description during a camping trip of a distinctive fire-starting
device later used in an arson was admissible to prove the identity of the arsonist).
The district court’s finding of identity is based on Smalls’s verbalized
intent to use asthma as an explanation for a victim’s anticipated death on two
separate occasions within a five-month span. Although the circumstances,
outcomes, and motivations of Smalls’s two crimes were different, they contained
a certain distinctive and shared signature quality—Smalls’s professed willingness
to use the victim’s asthma to explain a death for which he was (or would have
been) responsible. A plan to use asthma as an excuse to cover up a victim’s true
cause of death is sufficiently “unusual and distinctive” to constitute a signature
quality.
Smalls also argues that even if the intended use of asthma as a cover-up can
by itself constitute signature quality evidence, the fact that Gantz was ultimately
strangled, and not suffocated, means Smalls’s statement to his wife was unrelated
to the murder. But this fact does not render the evidence improper under Rule
404(b). Evidence introduced at trial showed that Smalls, Cook, and Melgar
planned to suffocate Gantz and use the victim’s asthma as a way to cover up their
crime. Smalls expressed precisely the same idea during the altercation with his
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wife, which tends to show similar plans of action. That Gantz’s murder did not
go according to plan does not render the evidence improper for Rule 404(b)
purposes.
Smalls’s prior conviction and his wife’s testimony were admitted for a
proper purpose under Rule 404(b) and the district court limited the admissible
information to avoid unfair prejudice. 5 The court did not abuse its discretion in
admitting this evidence.
2. Prior Felony Convictions Under Rule 609(a)(1)
In a pre-trial order, the district court allowed the admission of Smalls’s
2005 felony convictions as impeachment evidence if Smalls testified at trial. He
was convicted pursuant to two guilty pleas related to the altercation with his
wife. 6 The court determined that the evidence was admissible because the
convictions occurred within the previous ten years, the prior convictions and
current charges were sufficiently dissimilar to limit the risk of the jury using the
prior convictions as evidence of Smalls’s propensity to commit the charged
5
Smalls is correct that this evidence does not constitute evidence of a
common plan under Rule 404(b). Plan evidence is offered to show that the crime
for which the defendant is accused is actually part of a pre-arranged plan or
scheme. See, e.g., United States v. Roberts, 88 F.3d 872, 880–81 (10th Cir.
1996). The domestic violence episode and Gantz’s murder were not related to a
common scheme. Smalls’s plan to invoke the same cover-up in each crime is
more accurately characterized as identity evidence rather than plan evidence.
6
As stated previously, Smalls was convicted of Aggravated Battery
Against a Household Member with a Deadly Weapon and Criminal Sexual
Penetration in connection with the altercation with his wife.
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crimes, and Smalls’s credibility would be a central issue for the jury in the event
Smalls testifies. The district court also acknowledged the inflammatory nature of
the prior crimes but nevertheless concluded that the names and nature of the
crimes could come in without additional detail.
When the defendant is a witness in his own trial, the prosecution may
introduce evidence of the defendant’s past felony conviction to attack his
character for truthfulness “if the court determines that the probative value of
admitting this evidence outweighs its prejudicial effect to the accused.” Fed. R.
Evid. 609(a)(1). This “special balancing test” is used because “the defendant
faces a unique risk of prejudice—i.e., the danger that convictions that would be
excluded under [Rule 404] will be misused by a jury as propensity evidence
despite their introduction solely for impeachment purposes.” Fed. R. Evid. 609,
advisory committee’s notes (1990 Amendments).
In the context of Rule 609(a)(1), courts have identified the following five
factors for consideration: (1) the impeachment value of the defendant’s prior
crimes; (2) the dates of the convictions and the defendant’s subsequent history;
(3) the similarity between the past crime and charged crime; (4) the importance of
the defendant’s testimony; and (5) the centrality of the defendant’s credibility at
trial. See 4 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal
Evidence, § 609.05[3][a] (Joseph M. McLaughlin, ed., Matthew Bender, 2d ed.
2013).
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Smalls does not contest the admission of the fact that he had two prior
felony convictions. He argues only that the district court abused its discretion in
admitting the names and nature of the prior convictions without a special finding
that the probative value of the names of the convictions outweighed their
obviously prejudicial nature. Smalls cites United States v. Yazzie, 188 F.3d 1178(10th Cir. 1999), for the proposition that a court may limit Rule 609 evidence
under Rule 403 to the mere fact of a felony conviction when the prejudice of the
other information is too great.
Yazzie does not help Smalls because the case did not involve a witness at
trial. The defendant in Yazzie sought to introduce evidence of the murdered
victim’s past felonies to impeach the credibility of the victim’s out-of-court
statement introduced through a witness at trial. We held that the district court did
not err in refusing to introduce this evidence on Rule 403 grounds. But because
the source of the out-of-court statements was not a witness at trial, “[t]here was
no testimony . . . subject to impeachment” that would implicate Rule 609. Yazzie,
188 F.3d at 1191.
The well-settled rule in this circuit is that the permissible scope of
cross-examination under Rule 609 extends to the essential facts of convictions,
the nature of the crimes, and the punishment. See United States v. Commanche,
577 F.3d 1261, 1270–71 (10th Cir. 2009) (quoting United States v. Wolf, 561 F.2d
1376, 1381 (10th Cir. 1977)). Indeed, the failure to include the names and nature
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of prior offenses may prejudice the defendant because the jury is left to speculate
as to the essential facts of prior convictions. See United States v. Burston, 159
F.3d 1328, 1335 (11th Cir. 1998) (“The implicit assumption of Rule 609 is that
prior felony convictions have probative value. Their probative value, however,
necessarily varies with their nature and number.”). The district court admitted
only presumptively admissible information about Smalls’s prior convictions and
properly determined that they were dissimilar enough from the murder charge
such that a jury would not convict Smalls on the basis of propensity reasoning.
We find no abuse of discretion in the district court’s decision.
3. Co-Conspirator Statements Under Rule 801(d)(2)(E)
Smalls next argues the district court erred in admitting out-of-court
statements made by Melgar because the district court wrongly concluded that
Smalls was a member of the conspiracy to kill Gantz. But the pre-trial ruling on
the co-conspirator issue addressed only whether Smalls and Cook were co-
conspirators.
A statement made by a co-conspirator “during the course and in furtherance
of the conspiracy” is not hearsay. Fed. R. Evid. 801(d)(2)(E). To admit a
co-conspirator’s statements, the district court must find: “(1) by a preponderance
of the evidence, a conspiracy existed, (2) the declarant and the defendant were
both members of the conspiracy, and (3) the statements were made in the course
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of and in furtherance of the conspiracy.” United States v. Patterson, 713 F.3d
1237, 1245 (10th Cir. 2013).
At the time of the James 7 hearing on this issue and the district court’s
order, Melgar had reached a plea agreement with the government, but Cook had
not. The government intended to offer co-conspirator statements against Smalls
and Cook through Melgar’s testimony. Consequently, there was never an
objection or a ruling on whether Melgar’s out-of-court statements were admissible
under the co-conspirator rule. The only example of an introduction of Melgar’s
out-of-court statements that we can find in the record is Melgar’s videotaped
testimony to the FBI. 8 Smalls did not object to the admission of the video at trial;
in fact, he introduced it as impeachment evidence against Melgar immediately
after Melgar testified. Although Smalls may have an argument that the video
should not have been introduced under the co-conspirator rule, he cannot attack
evidence that he brought in to impeach Melgar.
Smalls also suggests that the court erred in permitting Melgar to testify as
to out-of-court statements made by Smalls under the co-conspirator rule. But
such statements are not hearsay because they are statements of a party opponent
and do not implicate the co-conspirator rule. Fed. R. Evid. 801(d)(2)(A).
7
United States v. James, 590 F.2d 575 (5th Cir. 1979).
8
Melgar’s attorney also testified to out-of-court statements made by
Melgar, but these statements were admitted as prior consistent statements under
Rule 801(d)(1)(B).
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4. Prior Consistent Statements Under Rule 801(d)(1)(B)
Smalls argues against the admission of certain out-of-court statements made
by Cook and Melgar under the prior-consistent-statement rule.
A statement is not hearsay if the declarant testifies and is subject to
cross-examination about a prior statement when the statement “is consistent with
the declarant’s testimony and is offered to rebut an express or implied charge
against the declarant of recent fabrication or improper influence or motive.” Fed.
R. Evid. 801(d)(1)(B); see also Tome v. United States, 513 U.S. 150, 167 (1995)
(“The Rule permits the introduction of a declarant’s consistent out-of-court
statements to rebut a charge of recent fabrication or improper influence or motive
only when those statements were made before the charged recent fabrication or
improper influence or motive.”). These statements are admitted as substantive
evidence, not just to rebut an attack on the witness’s credibility. Id. at 157.
Under our precedent, a declarant has a motive to lie as soon as he is
arrested. United States v. Moreno, 94 F.3d 1453, 1455 (10th Cir. 1996); see also
United States v. Powell, 220 F. App’x 805, 812 (10th Cir. 2007) (unpublished)
(“Gabriel Davis’s prior consistent statements followed his arrest, however,
meaning that, according to the logic of our precedent, the statements came after
Mr. Davis had acquired a motive to lie.”) (emphasis omitted). But we have also
found that an improper motive may arise even before the declarant’s arrest. For
example, in United States v. Albers, we held that the pre-motive requirement was
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not met when a declarant made the prior statement to an investigator only after he
had become afraid that his co-conspirators would testify against him. 93 F.3d
1469, 1482–83 (10th Cir. 1996).
The district court admitted Cook’s recorded statement to fellow inmate,
Larry Green, in which Cook described the three defendants’ roles in Gantz’s
murder. Cook made this statement to Green following news that federal
authorities were investigating Gantz’s death as a homicide. The court found that
Cook had no motive to lie because he was not charged for another year and his
plea bargain was not made for another five years. Smalls argues that the motive
to lie had arisen by the time Cook made the statement because Gantz’s death was
being investigated as a homicide and Cook needed a story to minimize his role
and have someone against whom to cooperate. Although the latter assertion is
pure speculation, the fact is that Cook was unaware that he was in the presence of
a government agent. Cook could not have been motivated to curry favor with the
government because Cook was unaware that the government was recording him.
The district court did not abuse its discretion in admitting the recorded
statements.
Smalls also argues that for a prior consistent statement to be admissible
under the Confrontation Clause, it must meet pre-Crawford 9 standards of
reliability. But the “Confrontation Clause has no application to [nontestimonial]
9
Crawford v. Washington, 541 U.S. 36 (2004).
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statements and therefore permits their admission even if they lack indicia of
reliability.” Whorton v. Bockting, 549 U.S. 406, 420 (2007); see also United
States v. Smalls, 605 F.3d 765, 780 (10th Cir. 2010) (“[T]he only question
pertinent to the admissibility of a nontestimonial statement is whether it meets the
requirements of the Federal Rules of Evidence.”). We previously held that
Cook’s statement was nontestimonial, see id. at 778, and thus the Confrontation
Clause does not apply.
The district court admitted a statement made by Melgar to his attorney that
implicated the three cellmates in Gantz’s murder. The statement was made while
Melgar was being held for illegal reentry into the United States and after his
attorney informed Melgar that the United States was interested in debriefing about
Gantz’s murder. The district court held that the statement was made before any
motive to fabricate arose because it was made in the context of the attorney-client
relationship in an unrelated case, prior to debriefing with the FBI, and well before
Melgar was charged with Gantz’s murder. In opposition, Smalls argues that the
motive to fabricate arose before Melgar made the statement to his attorney.
Melgar made the statement only after being told of the government’s interest in
debriefing. Smalls argues that Melgar’s attorney had informed Melgar that the
government was seeking his cooperation and was advised of the potential benefits
to him. Melgar was thus motivated to tell a “good story” and his attorney was the
“test audience.” Aplt. Br. at 21.
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The Second Circuit has allowed prior consistent statements made to a
declarant’s attorney after the attorney informed him of a co-conspirator’s
probable cooperation with the government. In United States v. Caracappa, 614
F.3d 30 (2d Cir. 2010), the defendant argued that the declarant’s motive to lie
arose immediately upon an accomplice’s arrest and thus a statement the declarant
subsequently made to his attorney was inadmissible as a prior consistent
statement. The district court had reasoned in Caracappa that for the defendant’s
theory to hold, the declarant “must have believed in 1994 that he would
eventually cooperate with the government, hoping that his testimony against the
defendants would be called into question and knowing that if he told [his
attorney] of his involvement, his account would have increased merit.” Id. at 40.
This, the court held, was far-fetched.
Smalls essentially makes the same argument. According to Smalls’s
theory, Melgar would have had to make an on-the-spot decision to fabricate a
story to his attorney so that his version of events would have increased merit in
future proceedings. We also find this argument speculative and far-fetched.
The district court did not abuse its discretion in admitting Melgar’s prior
statement.
5. Video Surveillance, Still Photos, and Accompanying Testimony
Investigators discovered video footage from December 25, 2004 that
showed Smalls walking through the medical unit and stopping to speak with an
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inmate outside his cell. Cook testified that the same inmate had previously told
him Gantz was a government informant. The footage showed Smalls making
several gestures, including clenching his fists and pointing to his neck. Smalls
also slid a bag under the door. Three days later, he spent ten minutes with the
same inmate in the recreation yard.
Video surveillance, still photos, and testimony regarding Smalls’s
interactions with the inmate outside the inmate’s cell were admitted without
objection, so their admission is reviewed for plain error. The district court
originally denied the government’s motion to admit the video footage of Smalls
interacting with the inmate because the videos were not available for viewing at
that time, but the denial of the motion was subject to reconsideration in the event
of an additional hearing. During trial, still photos of Smalls at the inmate’s cell
were introduced without objection. Upon the district court’s sua sponte raising of
the Best Evidence Rule, Fed. R. Evid. 1002, Smalls withdrew his objection to
playing the video surveillance footage, which was shown to the jury.
On appeal, Smalls advances several arguments against the admission of this
evidence. First, he argues he was prejudiced by the misleading presentation of
the evidence. The still photos amounted to “editorialized” evidence, where the
witness, a government agent, described what she believed the still photos showed.
Aplt. Br. at 38. And the video format, which displayed images that were captured
in six-second intervals and in fast-forward speed, prejudiced Smalls because his
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movements appeared violent and jerky. Smalls also argues that the evidence was
irrelevant and the government’s descriptions of it speculative. In its closing
argument, the government had asserted that Smalls’s movements were
descriptions to the inmate of how the conspirators would murder Gantz.
As to his first argument, the admission of “editorialized” still photos was
not plain error because it did not prejudice Smalls. During her testimony, the
government agent described Smalls in one still photo as pressing his clenched
fists downward and, in another photo, gesturing toward his neck. Smalls points to
a district court case in which the court prohibited admission of selected portions
of a chat room conversation because the “cut-and-paste” document did “not
accurately represent the entire conversations that took place between the
defendant and [the victim].” United States v. Jackson, 488 F. Supp. 2d 866, 871
(D. Neb. 2007). But the district court here cured any prejudice that could have
occurred through the admission of still photos derived from video surveillance
and the agent’s commentary. The court raised the Best Evidence Rule, and
Smalls removed his objection to showing the video surveillance footage. Thus,
the jury was able to see the video free from editing and commentary.
The admission of the video surveillance footage was likewise not plainly
erroneous. Smalls makes no argument besides speculating that the video’s
format, which made Smalls’s movements appear violent and jerky, prejudiced the
jury. This unsupported assertion is not sufficient to establish error, let alone plain
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error. And any prejudice to Smalls was minimized when a witness explained how
the prison’s video surveillance system captures and displays images in such a way
as to present Smalls’s movements in six-second intervals.
Smalls also alleges that the evidence pertaining to his interaction with the
inmate was irrelevant. The government argues that because Smalls asserted in his
opening statement that the inmate told Cook about Gantz being an informant,
Smalls made these interactions relevant to combat the defense’s theory that only
Cook had a motive to kill Gantz. Smalls responds that it was the government that
expressed before trial its intent to make the inmate an issue in the case.
Regardless of whether the evidence was introduced to attack the
defendant’s theory of the case or simply as evidence of Smalls’s involvement in
the planning of the murder, it is clearly relevant. Cook testified that the inmate
had told him about the hit on Gantz. Smalls’s conversation with the source of this
information is relevant to establishing that Smalls was aware of the hit and thus
may have had a motive to participate.
Smalls also argues the government, in its closing arguments, improperly
speculated that Smalls’s actions at the inmate’s cell indicated that he was
describing the murder to the inmate. Whether a statement constitutes improper
speculation, however, is a narrower inquiry than Smalls suggests. See Thornburg
v. Mullin, 422 F.3d 1113, 1134 (10th Cir. 2005) (“A prosecutor is allowed to
comment on the evidence and draw inferences therefrom, but he may not
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speculate or refer to evidence never presented to the jury.”). The government
never speculated or referred to evidence not presented to the jury. The
government properly presented evidence of Smalls talking with the inmate in the
days leading up to the murder and offered reasonable inferences as to the meaning
of his gestures.
In sum, the district court did not err in admitting the evidence.
B. Prosecutorial Misconduct
Smalls next argues that the government knowingly solicited false testimony
from Melgar and Cook. He alleges that Cook and Melgar’s testimony that they
used a bag to suffocate Gantz contradicted the uncontroverted medical evidence
that Gantz was strangled. The government was aware of this information, yet
allowed the two witnesses to testify without correction and a government agent to
corroborate their testimony. Smalls also argues that the government improperly
vouched for Melgar in its opening and closing statements by arguing that his
testimony was reliable because Cook had corroborated it.
“A conviction obtained by the introduction of perjured testimony violates
due process if (1) the prosecution knowingly solicited the perjured testimony or
(2) the prosecution failed to correct testimony it knew was perjured.” United
States v. Vaziri, 164 F.3d 556, 563 (10th Cir. 1999). The appellant bears the
burden of establishing the presentation of false evidence. Smith v. Gibson, 197
F.3d 454, 458 (10th Cir. 1999).
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The government did not elicit false testimony. The government, of course,
recognized that Gantz died as a result of strangulation. But the purpose of Melgar
and Cook’s testimony was to support their theory that the conspirators intended to
suffocate Gantz and ended up strangling him instead. There was expert testimony
that the results of the autopsy were consistent with Melgar and Cook’s testimony
—that Melgar placed the plastic bag over Gantz’s head and then pushed down
with his clenched fists. That Melgar continued to believe he did not touch
Gantz’s neck does not render the testimony false. He may not recollect whether
he touched Gantz’s neck or may be convinced he did not. Regardless, this is an
issue of credibility for the jury and is not definitively false testimony. And the
government agent’s testimony simply confirms that Cook and Melgar believed
that they suffocated Gantz before they were arrested and charged.
The government did not engage in impermissible vouching. The
prosecution engages in impermissible vouching “only if the jury could reasonably
believe that the prosecutor is indicating a personal belief in the witness’
credibility, either through explicit personal assurances of the witness’ veracity or
by implicitly indicating that information not presented to the jury supports the
witness’ testimony.” United States v. Bowie, 892 F.2d 1494, 1498 (10th Cir.
1990). In this case, the prosecutor asked the jury to credit Melgar’s testimony on
the basis of Cook’s corroborating testimony, which was before the jury to
consider. The prosecutor did not make personal assurances of the veracity of
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either witness or suggest that he had information not before the jury to support
the testimony.
C. Jury Instructions
Smalls challenges the district court’s decisions regarding four jury
instructions. He argues the district court abused its discretion in declining to
adopt instructions that (1) Smalls’s mere presence in the cell was not evidence of
guilt, (2) the truthfulness provisions in Cook and Melgar’s plea agreements did
not verify the truth of their testimony, and (3) testimony by co-conspirators
should be weighed with greater care than other testimony. He also argues the
court plainly erred in failing to give a curative instruction for the government’s
vouching of Cook and Melgar’s testimony.
We review the decision to give or refuse a particular jury instruction for
abuse of discretion. United States v. Bedford, 536 F.3d 1148, 1152 (10th Cir.
2008). But where a party does not object to the inclusion or exclusion of a
particular instruction, we review for plain error. United States v. Romero, 491
F.3d 1173, 1178 (10th Cir. 2007).
1. Presence in Cell
The court declined to instruct the jury that Smalls’s mere presence in the
cell was not evidence of guilt. It denied the instruction because the court gave
the instruction that mere knowledge is not enough for a conspiracy and that mere
presence is not enough for aiding and abetting liability, which were contained in
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the instructions for three separate counts. Smalls argues that a stand-alone mere
presence instruction was necessary because instructing the jury on mere
knowledge and mere presence in connection with only three counts implied that it
may consider mere presence in connection with the other two counts.
The district court did not abuse its discretion in declining to adopt a mere
presence instruction. “It is not error to refuse to give a requested instruction if
the same subject matter is adequately covered” elsewhere. United States v.
Miller, 460 F.2d 582, 588 (10th Cir. 1972). In each of the counts, the jury was
instructed that conviction required agreement or knowing conduct or both. No
stand-alone mere presence instruction was necessary as the jury was explicitly
instructed of the requirement that Smalls have some active involvement in the
conspiracy or the act. That the mere presence instruction was given in other
counts does not alter this conclusion. A mere presence instruction simply
emphasizes the active involvement requirement to the jury. Failure to give the
instruction on some counts does not transform the express meaning of
“agreement” or “knowing conduct” and thus would not confuse the ordinary juror.
2. Truthfulness
The district court also declined to instruct the jury that the government had
no greater ability to verify Cook and Melgar’s truthfulness than the jury. Smalls
argues this curative instruction was necessary because the truthfulness provisions
in Cook and Melgar’s plea agreements—which conditioned the receipt of certain
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government benefits on a finding that they testified truthfully— were entered into
evidence and thus had the effect of vouching for the witnesses’ truthfulness. He
cites to United States v. Harlow, 444 F.3d 1255, 1265 (10th Cir. 2006), in which
we held that to the extent that any impermissible vouching occurred by the
admission of plea agreements with truthfulness provisions, the district court’s
credibility instructions cured any error.
Harlow is distinguishable. We held in Harlow that submission of the
witnesses’ plea agreements, which also contained provisions conditioning
government benefits on a finding of truthful testimony, was erroneous because
they were submitted “in conjunction with the evidence that the prosecutor moved
for the benefits thereunder and the judge issued his approval.” Id. at 1262. It was
the additional evidence of the government’s finding that the testimony was
truthful, not the truthfulness provisions on their own, that had the effect of
improper government vouching. Here, by contrast, the government introduced
only the plea agreements, which does not constitute improper vouching. See
United States v. Claycomb, 372 F. App’x 832, 840 (10th Cir. 2010) (“[I]t is
permissible for a prosecutor to introduce a witness’s plea agreement including a
truthfulness provision and to discuss that provision to make sure the witness is
aware of the consequences of failing to tell the truth and for the purpose of
heading off any claim the witness’s testimony is suspect because of the plea
agreement.”).
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The district court did not abuse its discretion in declining to issue a
credibility instruction.
3. Weighing Testimony
Smalls also argues the district court abused its discretion in declining to
give an instruction on the care required to weigh the testimony of Melgar and
Cook. Smalls had asked the district court to instruct the jury that Melgar and
Cook’s testimony should be weighed with greater care than the testimony of a
witness who did not commit a crime. Contrary to Smalls’s assertions, the district
court did give an instruction that the jury should “receive this type of testimony
with caution and weigh it with great care,” as well as other instructions
emphasizing this notion. Supp. R., Vol. IV at 323. The district court did not
abuse its discretion in declining to use the precise language from Smalls’s
proposed instruction.
4. Curative Instruction for Vouching
Finally, Smalls argues the district court plainly erred in failing to give a
curative instruction for the government’s alleged improper vouching of Cook and
Melgar’s testimony. Smalls acknowledges that improper vouching can be cured
by an appropriate instruction. See Harlow, 444 F.3d at 1265. But the government
did not improperly vouch for any testimony because it did not make “personal
assurances of the witness’ veracity” or “implicitly indicat[e] that information not
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presented to the jury supports the witness’ testimony.” Bowie, 892 F.2d at 1498.
Thus, a curative instruction was not necessary.
D. Sufficiency of the Evidence
Whether there is sufficient evidence to support a conviction is a legal
question that is reviewed de novo. United States v. Hasan, 609 F.3d 1121, 1132
(10th Cir. 2010). We view the evidence in the light most favorable to the
government and must draw all reasonable inferences in favor of the government.
United States v. King, 632 F.3d 646, 650 (10th Cir. 2011). It is not our job to
“weigh conflicting evidence or consider witness credibility, as that duty is
delegated exclusively to the jury.” United States v. Hien Van Tieu, 279 F.3d 917,
921 (10th Cir. 2002).
Smalls was convicted of five federal offenses: retaliation against a
government witness or informant, conspiracy to retaliate, tampering with a
government witness or informant, conspiracy to tamper, and killing an assistant in
a federal investigation. Smalls argues that the government presented insufficient
evidence to sustain his convictions. Specifically, he contends there was
insufficient evidence of his participation in Gantz’s murder and of the specific
intent required by the statutes. He also argues that the government did not
establish it was reasonably likely that, had Gantz communicated with a law
enforcement officer, it would have been a federal officer. Because the
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government presented sufficient evidence to sustain the convictions, we affirm the
judgment of the district court.
1. Participation in the Murder
Smalls first argues that the jury had insufficient evidence to establish he
participated in Gantz’s murder. According to Smalls, no reasonable juror could
find that the murder happened as Melgar described because Melgar’s testimony
that he suffocated Gantz contradicted the medical evidence that Gantz died by
strangulation. Further, Cook was unable to articulate his precise role in the
murder and it remained unanswered how Smalls restrained Gantz’s feet.
Each of these points concerns how the jury resolved conflicting testimony,
which is not within the scope of our review and is exclusively a jury function.
The government presented sufficient evidence that Smalls participated in the
murder: his cellmates testified that all three individuals participated in the
murder and an expert opined that the lack of defensive wounds on Gantz’s body
was consistent with being restrained.
2. Intent to Retaliate
A defendant is guilty of retaliating against a witness if he knowingly kills a
person with intent to retaliate against that person for being a witness at an official
proceeding or “for providing to a law enforcement officer any information
relating to the commission or possible commission of a Federal offense.” 18
U.S.C. § 1513(a)(1)(A), (B). A defendant who conspires to commit the offense of
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retaliation is subject to the same penalties. § 1513(f). “[T]he government need
not adduce direct evidence of Appellant’s knowledge of a witness’s informant
status in order for the jury to infer his intent to retaliate.” United States v.
Ashley, 606 F.3d 135, 140 (4th Cir. 2010) (internal quotation marks omitted).
Smalls argues that there was insufficient evidence presented to sustain his
convictions for retaliation and conspiracy to retaliate because the government did
not introduce evidence of intent to retaliate. No witness testified as to Smalls’s
intent to retaliate against Gantz for his cooperation as a federal informant. To
reach this conclusion, Smalls maintains, the jury had to infer that Smalls was
connected to drug traffickers or had a particular dislike of informants, which the
evidence did not establish. While a jury may have inferred that Smalls acted in
expectation of a reward payment for a hit on Gantz, there was no evidence that he
acted out of a hatred of informants or to satisfy drug traffickers. To make such a
finding, says Smalls, the jury would have had to impermissibly pile “inference
upon inference.” United States v. Summers, 414 F.3d 1287, 1294 (10th Cir.
2005).
The government points to three pieces of evidence as support for the
verdict: (1) Melgar testified that Smalls told him Gantz was a “rat” and had
provided information about others in a federal case, R., Vol. V at 619; (2) Melgar
testified that Smalls had told him that a letter about Gantz had been passed around
prison and said Gantz was to be killed because he’s a rat, id. at 643–44, 647–48;
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and (3) Cook testified that Smalls told him Gantz was cooperating with the
government, others wanted him dead, and there was a hit on him, id. at 1094–95,
1098. Melgar also testified that Smalls encouraged him to participate based on
Gantz’s past cooperation that resulted in the capture of four “Michoacanos,” who
Smalls described as Melgar’s “people.” Id. at 648.
The evidence allows for a reasonable inference that Smalls killed Gantz in
retaliation for Gantz’s previous cooperation with the government. The fact that
Smalls discussed Gantz’s cooperation with the government in the murder’s
planning stages is enough to infer that Gantz’s cooperation was a substantial
motive in the murder. Based on Smalls’s knowledge and discussion of Gantz’s
cooperation, his pressure on Melgar to participate based on Gantz’s previous
cooperating activities, and his knowledge of the hit on Gantz, a reasonable juror
could infer an intent to retaliate. Smalls’s theory that it was more likely that he
committed the murder for his own monetary benefit is not inconsistent with being
motivated by an intent to retaliate. In Ashley, the court upheld a defendant’s
conviction under § 1513 where the defendant was paid for his attempt to have an
informant killed in retaliation for giving information to law enforcement about a
fellow inmate. Ashley, 606 F.3d at 139–40. Smalls’s ultimate purpose may have
been to collect a reward for killing Gantz, but the purpose of the bounty was to
encourage a retaliatory attack.
3. Intent to Tamper
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A defendant is guilty of tampering with a witness if he knowingly kills
another person with intent to “prevent the attendance or testimony of any person
in an official proceeding” or “prevent the communication by any person to a law
enforcement officer or judge of the United States of information relating to the
commission or possible commission of a Federal offense.” 18 U.S.C.
§ 1512(a)(1)(A), (C). A defendant who conspires to commit the offense of
tampering is subject to the same penalties. § 1512(k). “To sustain a conviction
under [§ 1512] the government does not need to prove the defendant knew of the
existence of an ongoing official proceeding.” United States v. Ahrensfield, 698
F.3d 1310, 1324 (10th Cir. 2012) (citing § 1512(c)(2)). Rather, “a conviction is
proper under the statute if interference with the official proceeding is the ‘natural
and probable effect’ of the defendant’s conduct.” United States v. Phillips, 583
F.3d 1261, 1264 (10th Cir. 2009) (quoting United States v. Aguilar, 515 U.S. 593,
601 (1995)). 10
10
In Aguilar, the Supreme Court addressed the intent element under 18
U.S.C. § 1503(a), which criminalizes “corruptly endeavor[ing] to influence,
obstruct, or impede” the due administration of justice. The Court announced the
“natural and probable effect” test (or the “nexus” requirement) as the correct
approach to determining whether a defendant acts with the requisite intent under
the statute. Aguilar, 515 U.S. at 601. In Arthur Andersen LLP v. United States,
544 U.S. 696, 708 (2005), the Court applied this test to the intent element under
18 U.S.C. § 1512(b), which prohibits knowingly and corruptly persuading another
person to withhold documents in an official proceeding. Based on the similar
language of §§ 1503(a) and 1512(c)(2), and the Supreme Court’s application of
the Aguilar test to another section of § 1512, we held the “natural and probable
effect” test applies to § 1512(c)(2). Phillips, 583 F.3d at 1264. For substantially
(continued...)
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Smalls argues that there was insufficient evidence to establish the requisite
specific intent. The only evidence that Gantz was still assisting federal
investigators was that he was a potential witness in the government’s case against
a reneging cooperator. And Gantz had last provided information to the
government nearly a year before the murder; thus, an inference of intent to hinder
attendance or communication cannot be reasonably derived from these
circumstances.
But the government introduced sufficient evidence for a jury to infer that
interference was the “natural and probable effect” of Smalls’s conduct. Smalls
was aware that Gantz had cooperated with federal authorities in the past and
manifested a belief that Gantz was still cooperating. 11 Gantz also was, at the time
of the murder, a potential witness in the upcoming trial of the reneging
government cooperator. Even if Smalls was not specifically aware of this
information, preventing a witness’s testimony in a federal proceeding is a natural
and probable effect of killing a known government informant. See Ashley, 606
F.3d at 140 (“We are mindful that retaliation against informants and witness
tampering are distinct offenses. While the difference between them should not be
10
(...continued)
the same reasons we described in Phillips, the Aguilar test is the correct approach
to determining whether the defendant acted with the requisite intent under
§ 1512(a)(1)(A) and (C).
11
Cook testified that Smalls said, “Gantz was cooperating with the federal
authorities or whatever.” R., Vol. V at 1098.
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blurred, the two offenses are often related. Providing information and serving as
a witness often go hand-in-hand, and the proof used to support a conviction on
one offense will frequently underlie a conviction on another, notwithstanding the
differences between the two statutes.”).
Viewed in a light most favorable to the government, a reasonable juror
could infer from this evidence that Smalls killed Gantz to prevent him from
testifying in a federal proceeding. 12
4. Communication with Federal Law Enforcement Authorities
Finally, Smalls contends that there was insufficient evidence to show that
Gantz would have had a future relevant communication with federal law
enforcement. He points to a recent Supreme Court case, Fowler v. United States,
131 S. Ct. 2045 (2011), to support his claim that there was insufficient evidence
to sustain his conviction under the federal witness tampering statute. The Court
in that case held the government must show a “reasonable likelihood” that had the
victim communicated with a law enforcement official, at least one relevant
communication would have been made to a federal official. Id. at 2052. The
Court stressed that the government “need not show that such a communication,
had it occurred, would have been federal beyond a reasonable doubt, nor even that
12
Smalls offers the same intent argument to challenge his conviction of
killing Gantz for aiding a federal investigation in violation of 18 U.S.C.
§ 1121(a)(2). But, as with the retaliation and tampering counts, the government
introduced sufficient evidence that Smalls was motivated by Gantz’s assistance in
a federal investigation, which was ongoing at the time of Gantz’s murder.
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it is more likely than not.” Id. But it “must show that the likelihood of
communication to a federal officer was more than remote, outlandish, or simply
hypothetical.” Id.The government submitted enough evidence from which a jury could infer
that it was reasonably likely that had Gantz communicated with a law
enforcement officer, he would have communicated with a federal officer. Gantz
was cooperating with the FBI, had debriefed twice with the FBI regarding drug
trafficking in Roswell, pleaded guilty to a plea agreement with cooperation
language, and was a potential witness in a future trial of a reneging cooperator in
a federal investigation. Melgar also testified that Gantz was giving out
information about other people in a federal case.
Because there was sufficient evidence that Smalls killed Gantz to prevent
his communication with a law enforcement officer, and it was reasonably likely
that this communication would have been to a federal officer, there is sufficient
evidence to sustain his conviction under § 1512.
E. Cumulative Error
A cumulative error analysis evaluates “only the effect of matters
determined to be error, not the cumulative effect of non-errors.” United States v.
Rivera, 900 F.2d 1462, 1471 (10th Cir. 1990) (en banc). Because the district
court did not commit error, there is no need to conduct a cumulative error
analysis.
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III. Conclusion
For the foregoing reasons, we AFFIRM the judgment of the district court.
The appellee’s motion to supplement the record is GRANTED.
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