United States v. Hedgepeth

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 04-4553
GWENDOLYN CHEEK HEDGEPETH,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Henry E. Hudson, District Judge.
(CR-03-297)
Argued: March 18, 2005
Decided: August 12, 2005
Before NIEMEYER, LUTTIG, and KING, Circuit Judges.
Affirmed by published opinion. Judge King wrote the opinion, in
which Judge Niemeyer and Judge Luttig joined.
COUNSEL
ARGUED: William Todd Watson, HARGETT & WATSON, P.L.C.,
Richmond, Virginia, for Appellant. Stephen Wiley Miller, Assistant
United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Richmond, Virginia, for Appellee. ON BRIEF: David
B. Hargett, HARGETT & WATSON, P.L.C., Richmond, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, Michael J. Els-
ton, Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
2 UNITED STATES v. HEDGEPETH
OPINION
KING, Circuit Judge:
Gwendolyn Cheek Hedgepeth, a former member of the Richmond
City Council, appeals her convictions and sentence in the Eastern Dis-
trict of Virginia on multiple offenses arising from a bribery and extor-
tion scheme. The activities underlying that scheme occurred in 2002
and 2003, and related to the City Council’s selection of a Mayor and
interim Council members. An FBI undercover investigation gave rise
to the grand jury’s indictment of Hedgepeth and to her resulting con-
victions. Hedgepeth was first indicted on August 20, 2003, and the
grand jury returned a second superseding indictment on January 6,
2004. The second superseding indictment, on which she was tried,
charged Hedgepeth in five counts with violations of the Hobbs Act
and related offenses.1 More specifically, she was charged with con-
spiracy to commit extortion, in contravention of 18 U.S.C. § 1951
(Count One); attempting to commit extortion, in violation of 18
U.S.C. §§ 1951-1952 (Count Two); making false statements to federal
officers, in contravention of 18 U.S.C. § 1001 (Count Three); extor-
tion and attempting to commit extortion, in violation of 18 U.S.C.
§ 1951 (Count Four); and conspiracy to commit mail fraud, in contra-
vention of 18 U.S.C. §§ 371 and 1349 (Count Five).
Hedgepeth’s jury trial began in Richmond on March 30, 2004, and
concluded on April 2, 2004. She was convicted of Counts One
through Four and acquitted on Count Five. Hedgepeth was sentenced
1
Section 1951 of Title 18 of the United States Code, commonly
referred to as the Hobbs Act, was enacted in 1948. It provides, in perti-
nent part, that "[w]hoever in any way or degree obstructs, delays, or
affects commerce or the movement of any article or commodity in com-
merce, by . . . extortion or attempts or conspires to do so . . . shall be
fined . . . or imprisoned . . . or both." 18 U.S.C. § 1951(a). The Hobbs
Act defines "extortion" as "the obtaining of property from another, with
his consent, induced by wrongful use of actual or threatened force, vio-
lence, or fear, or under color of official right." § 1951(b)(2); see also
McCormick v. United States, 500 U.S. 257, 272-73 (1991) (discussing
elements of Hobbs Act extortion, particularly in context of property
obtained "under color of official right").
UNITED STATES v. HEDGEPETH 3
on July 2, 2004, to forty-four months of imprisonment, and she has
filed a timely appeal. Hedgepeth raises three issues on appeal, two
concerning the trial court’s evidentiary rulings and the third arising
from the court’s refusal to delay her sentencing hearing. As explained
below, we find no reversible error and affirm.
I.
A.
Hedgepeth represented Richmond’s Ninth District on the City
Council from 1992 through 1994, and again from 1998 through the
events underlying this prosecution. In 2002, Hedgepeth became the
subject of an FBI investigation when she accepted money in connec-
tion with her involvement in certain City Council business. The inves-
tigation’s initial target had been H. Louis Salomonsky, a wealthy
architect and real estate developer in Richmond, and a friend of sev-
eral Council members, who had sought to secure the election of
Councilman William Pantele as Mayor.2 Salomonsky was interested
in the Council’s activities because it was the ultimate zoning authority
for Richmond.
Robert Davis, Salomonsky’s acquaintance of twenty-five years,
cooperated with the FBI’s investigation of Salomonksy, and later, of
Hedgepeth. Davis, a convicted felon, had been charged in October
2002 with illegal possession of a firearm, and he agreed to assist the
investigation in an effort to mitigate his own problems. Davis met
with Salomonsky on December 10, 2002, and, at the direction of the
FBI, wore a wire transmitter. During the meeting, Salomonsky
expressed his interest in having Pantele elected as Mayor, and Davis
asked Salomonsky if he needed assistance securing Hedgepeth’s vote.
Salomonsky responded that he thought that "Gwen Hedgepeth might
be in the kickback business,"3 and expressed an interest in Davis’s
2
At the time of these events, the Mayor was elected by the nine-
member City Council.
3
At trial, both the prosecution and the defense presented and utilized,
before the jury, several excerpts from video and audio recordings.
Despite a discussion between the court and counsel about the manner in
4 UNITED STATES v. HEDGEPETH
assistance. When Salomonsky asked Davis, "What do you think it’s
going to cost?" Davis replied, "probably a thousand dollars."4
At the direction of the FBI, Davis then contacted Hedgepeth, who
he had known from various dealings with City Council and from
other activities in the community. Davis met Hedgepeth on December
19, 2002, at the Henderson Middle School, where she taught. Davis
was again wired by the FBI. At this meeting, Hedgepeth agreed to
support Pantele for Mayor. After pledging her support, she mentioned
her campaign debt of $2158: "You asked me about helping . . . with
this Mr. Pantele thing . . . so I can help with that . . . now when can
you help me with my debt?" According to Davis, it was his "under-
standing" that if Hedgepeth’s campaign debt was paid off, she "would
back Mr. Pantele." Davis subsequently reported to Salomonsky that
it was going to cost $2158 to get Hedgepeth to vote for Pantele.
Davis talked to Hedgepeth again on December 23 and 31, 2002. By
then, Pantele’s chances of being elected Mayor had become slim.
When Davis asked Hedgepeth whether she could support Pantele for
Vice-Mayor, she advised that she was backing another Council mem-
ber for that post. During their December 31 meeting, Hedgepeth, in
referring to the money Davis had promised, asked if Davis’s friends
were "supportive . . . depending on how I vote, or are they supportive
from a standpoint of I have, you know, tried to make this thing work."
The next day, Davis spoke with Hedgepeth again, and they mutually
agreed that Pantele "didn’t have a chance." The Council meeting to
select the Mayor and Vice-Mayor was held on January 2, 2003, and
Mr. Pantele was not elected to any office.
which the tapes would be transcribed into the record, the contents of
those evidentiary recordings are not in the trial transcript, which simply
notes, on multiple occasions, "tape being played." As a result, the quota-
tions used herein are from the witnesses’ testimony or from portions of
the recording transcripts read into the record during questioning by the
lawyers. In these circumstances, we give the benefit of the doubt to
Hedgepeth where the quotations conflict, though such conflicts are typi-
cally trivial and ultimately inconsequential.
4
Davis also testified that the $1000 figure he gave Salomonsky was
pulled "out of the air." He speculated on that sum because he "knew
[Hedgepeth] needed money."
UNITED STATES v. HEDGEPETH 5
Davis met with Hedgepeth again on January 22, 2003, wired by the
FBI. Davis gave Hedgepeth $500 in cash, according to Davis, to "sort
of thank her for the attempt to help Pantele be mayor or vice mayor,"
and as a "retainer or whatever . . . to help us in the future because she
still needed the money." Hedgepeth accepted the cash and advised
Davis that she would enter it as a contribution "by more than one,"
so that she would not have to itemize who had contributed the money.
Over four months later, on May 8, 2003, two FBI agents inter-
viewed Hedgepeth at her residence. When they asked whether Pantele
or anyone had offered to pay for her vote in the mayoral election, she
answered no. She denied that anyone had sought to gain influence
with her by making "disguised" payments, by paying down her cam-
paign debt, or by making her a loan with favorable terms. Because the
agents considered certain of Hedgepeth’s responses to be false, they
continued to investigate her.
In the summer of 2003, two unexpected vacancies arose on the City
Council.5 These vacancies were to be filled by interim members
appointed by the Council on July 28, 2003, and then by members to
be elected by the voters in November 2003. Davis, again wired by the
FBI, contacted Hedgepeth on July 15 and 16 to discuss the vacancies
and two possible candidates, Ellen Robinson and Lawrence Williams,
for the Sixth District seat. Hedgepeth expressed an inclination to sup-
port Robinson, but Davis asked Hedgepeth to "change horses" and
"back" Williams. Davis stated, "If you could do that, heck, I will meet
you tomorrow and give you the money to clean up your campaign
debt." Hedgepeth replied, "Well, let me, let me keep these things sep-
arate, man, because I can’t, I can’t be in a position where I am, let
me say, compromising."
Davis and Hedgepeth met again on July 21, 2003, seven days
before the Council meeting at which the interim members were to be
appointed. On this occasion, they went to a McDonald’s restaurant
and then returned to Davis’s vehicle, which was equipped with FBI
audio and video equipment. Hedgepeth stated that she had "settled it
in her heart" to support Williams. She and Davis also discussed Wil-
5
The two vacancies arose because Councilman Joe Brooks died in June
2003, and Councilman Sa’ad El-Amin resigned on July 1, 2003.
6 UNITED STATES v. HEDGEPETH
liams’s need to obtain posters and a voter list, and to request funds
from potential supporters for the upcoming election.6 Davis then
handed Hedgepeth $2000 in $100 bills, saying to her, "Well, honey,
listen here is two grand, count it, make sure it’s right." He told her
that it was for her help backing Williams. When Hedgepeth hesitated,
Davis assured her, "I have counted it one time." Hedgepeth again hes-
itated, stuttering, "This. This." Davis testified that she held the money
"for a period of time," and he did not "understand why this hesi-
tancy." Davis urged her, "You can do whatever you want to with it."
Hedgepeth responded, "This is what I need you to do," and asked
Davis, "Can you get four people to give me $500 in contributions?"
Davis responded that he did not want to ask other people to do any-
thing, and told her to "spend [it] how you want to. It’s cash. Buy
things that you need." Hedgepeth replied, "So I’m hearing you say
this is not a campaign contribution." Davis then offered suggestions
as to how she could use the money: "You can help little kids with it
if you want to," and, "You can give it to the church if you want to,
I don’t care." Hedgepeth then stated that she would use the money
"for the kids’ computer [project]," one of Hedgepeth’s priority Coun-
cil initiatives.7
On July 24, 2003, FBI agents arrested Hedgepeth, and interviewed
her at the Richmond FBI office. They also recovered the $2000 in
cash, though one of the $100 bills had been replaced with five $20
bills.
B.
At trial, Salomonsky and Davis testified for the prosecution regard-
ing their dealings with each other and with Hedgepeth. As part of the
6
In her trial testimony, Hedgepeth contended that the audio tapes
showed that her support for Williams referred to his candidacy in the
November election, rather than for an interim appointment by the Coun-
cil; thus, she maintained, she was not accepting money from Davis in
exchange for her vote on Council.
7
On July 21, 2003, not long after receiving the $2000 in cash from
Davis, Hedgepeth engaged a computer technician for the school com-
puter project, for the sum of $2000. She instructed him to apply to the
City Council for employment and for payment.
UNITED STATES v. HEDGEPETH 7
prosecution’s case-in-chief, Salomonsky testified, over objection, that
during his December 10, 2002 meeting with Davis, he had asserted
that he thought "Gwen Hedgepeth might be in the kickback business."
The court admitted this statement (the "Kickback Statement") into
evidence, and gave the jury a cautionary instruction that Salomonsky
had testified why he chose to approach Hedgepeth, that the evidence
was not being offered for its truth, and that the jury was not to con-
sider it in determining whether Hedgepeth had committed a criminal
offense.8
Hedgepeth testified in her own defense, denying any criminal
intent in connection with the events, and asserting that she had not
accepted money in exchange for her actions as a member of the City
Council. Instead, she insisted, relying on FBI transcripts of her meet-
ings with Davis, that she had been offering her "support" rather than
her "vote," and that the two were distinct concepts. She testified that
she favored Williams for appointment to Council of her own accord,
because he was an architect and had met with her about a community
center she supported. She maintained that her July conversations with
Davis regarding support of Williams contemplated the November
2003 election, rather than an interim Council appointment.
8
The court’s cautionary instruction concerning Salomonsky’s testi-
mony about the Kickback Statement was as follows:
Ladies and gentlemen, I want to give you one cautionary
instruction that will govern your use of portions of Mr. Salomon-
sky’s testimony.
Mr. Salomonsky has just testified as to why he chose Ms.
Hedgepeth as opposed to any other council member to be
approached.
This information and testimony is offered for the sole purpose
of your understanding Mr. Salomonsky’s reasoning. It is not
offered for the truth, and it is not to be considered by you for any
reason in determining whether Ms. Hedgepeth committed the
offenses for which she is charged; in other words, it merely dem-
onstrates Mr. Salomonsky’s mental process and why he took a
given course of action. It’s not being offered for the truth of the
matter, but only what his logic and reason was.
8 UNITED STATES v. HEDGEPETH
On cross-examination, the prosecution impeached Hedgepeth’s tes-
timony with certain oral statements she had allegedly made to the FBI
agents following her arrest. These statements, recorded and summa-
rized by the agents in their "302" reports, included admissions that
she "should not have discussed both [her] campaign debt and voting
for Pantele for mayor during the same conversation," and that she
realized that "what [she] had done was wrong." The prosecution also
suggested, based on the 302 summaries, that Hedgepeth had admitted
to the agents that her dealings with regard to Williams involved the
interim appointments.
In response, Hedgepeth’s lawyer sought to present, as substantive
evidence, a separate written statement she had given to the FBI agents
during the interview where the oral statements were made. The writ-
ten statement, signed by Hedgepeth and witnessed by an FBI agent,
did not reference either the interim election or certain facts recited in
the 302 reports. By this evidence, Hedgepeth sought to rebut the pros-
ecution’s characterization of her oral statements to the agents, and to
show that her trial testimony was actually consistent with her state-
ments in the post-arrest interview. The trial court declined to admit
her written statement, deeming it to be inadmissible exculpatory hear-
say; however, it permitted Hedgepeth’s lawyer, in examining her, to
refer to the written statement and elicit certain of its contents, includ-
ing the fact that it did not mention the interim Council appointments.
C.
After the four-day trial, the jury returned a guilty verdict on four
of the charges against Hedgepeth, acquitting her only on Count Five,
the mail fraud conspiracy charge. On July 1, 2004, the day before her
sentencing hearing, Hedgepeth’s lawyer, Mr. Baugh, sought to with-
draw from his representation, on the ground that the attorney-client
relationship had broken down. On the day of sentencing, Hedgepeth
requested that the hearing be continued, based on newly-developed
evidence of diminished capacity, in the form of a psychiatrist’s report
delivered to her lawyer late on the previous day. Her lawyer con-
tended that the report suggested that Hedgepeth might have a viable
basis for a diminished capacity downward departure, but that the issue
required further investigation.
UNITED STATES v. HEDGEPETH 9
The court ruled that the report did not support any further investi-
gation of a diminished capacity downward departure because it did
not "begin to satisfy the elements. . . . I looked at the videotapes. . . .
This was a lady who thought about [accepting the money], contem-
plated, discussed it, before she accepted it." The court then denied
Hedgepeth’s motion to continue the sentencing hearing. On counsel’s
motion to withdraw, the court advised Hedgepeth, "[w]e are going
forward today," and "you can represent yourself, or Mr. Baugh can
represent you." Hedgepeth stated that she did not wish to represent
herself, and then agreed that Mr. Baugh could continue to represent
her "in protest."
During the sentencing hearing, the court permitted the psychiatrist
who had authored the report, Dr. Shepard, to testify regarding Hedge-
peth’s use of Paxil and its potential adverse neurological impact. The
court also heard testimony from another psychiatrist, Dr. Israel, con-
cerning Hedgepeth’s mental state, particularly the multiple personal
and family problems she had experienced in the previous ten years.
The court also admitted the evidence of two character witnesses and
heard a distressed allocution from Hedgepeth herself. Finally, the
court sentenced Hedgepeth to forty-four months of imprisonment,
relying on the calculations and conclusions of the presentence report.9
Hedgepeth has filed a timely notice of appeal, and she raises three
contentions of error. First, she challenges the admission of the Kick-
back Statement; second, she maintains that the court erred in failing
to admit her post-arrest written statement; and, third, she contends
that the court’s refusal to continue her sentencing hearing was preju-
dicially erroneous. We possess jurisdiction pursuant to 28 U.S.C.
§ 1291.
9
In sentencing Hedgepeth, and in keeping with our suggestion in
United States v. Hammoud, 381 F.3d 316, 353 (4th Cir. 2004), the court
announced an alternative sentence, in the event that the Sentencing
Guidelines were later deemed unconstitutional. The court observed that
a non-Guideline sentence of forty-four months would be appropriate.
Since then, the Supreme Court has determined that the Guidelines, as
previously utilized, were unconstitutional. See United States v. Booker,
125 S. Ct. 738 (2005). Hedgepeth has not challenged her sentence on
Booker ground.
10 UNITED STATES v. HEDGEPETH
II.
A trial court possesses broad discretion in ruling on the admissibil-
ity of evidence, and we will not overturn an evidentiary ruling absent
an abuse of discretion. United States v. Aramony, 88 F.3d 1369, 1377
(4th Cir. 1996). An abuse of discretion occurs only when a trial court
has acted "arbitrarily" or "irrationally" in admitting evidence, United
States v. Simpson, 910 F.2d 154, 157 (4th Cir. 1990) (internal quota-
tion marks omitted), when a court has failed to consider "judicially
recognized factors constraining its exercise" of discretion, or when it
has relied on "erroneous factual or legal premises," James v. Jacob-
son, 6 F.3d 233, 239 (4th Cir. 1993). If an evidentiary ruling is found
to be erroneous, we then review the error for harmlessness. United
States v. Francisco, 35 F.3d 116, 118 (4th Cir. 1994). Where, as here,
the error was preserved, the burden for proving harmlessness is on the
Government. See, e.g., United States v. Curbelo, 343 F.3d 273, 286
(4th Cir. 2003). Finally, a trial court’s denial of a continuance is also
reviewed for abuse of discretion; even if such an abuse is found, the
defendant must show that the error specifically prejudiced her case in
order to prevail. See United States v. Stewart, 256 F.3d 231, 244 (4th
Cir. 2001) (reviewing claim that trial court’s denial of continuance
resulted in ineffective assistance of counsel).
III.
A.
Hedgepeth’s first contention on appeal is that the trial court erred
in admitting the Kickback Statement — Salomonsky’s testimony that,
at his initial meeting with Davis, he advised Davis that he thought that
Hedgepeth was involved in the "kickback business." The trial court
deemed the Kickback Statement admissible for the limited purpose of
showing "to the jury why Mr. Salomonsky adopted the course of
action that he did here" — in other words, why he chose to approach
Hedgepeth and offer her a bribe. As explained below, even if this rul-
ing was erroneous, it was, in these circumstances, harmless.
The Government maintains on appeal that the Kickback Statement
was properly admitted for two reasons. First, it contends that the
statement shows why Salomonsky decided to approach Hedgepeth
UNITED STATES v. HEDGEPETH 11
with the bribe offer, specifically demonstrating that the Government
had not targeted her. Second, it maintains that the Kickback Statement
was admissible to support the conspiracy charge, showing that Salo-
monsky had a conspiratorial mindset and that a conspiracy existed
(rather than merely constituting an isolated substantive offense com-
mitted by Hedgepeth). Finally, if an evidentiary error was made, the
Government asserts that it was harmless.
It is elementary that, for evidence to be admissible, it must be rele-
vant to an issue being tried. See Fed. R. Evid. 402. Relevant evidence
is evidence that has "any tendency to make the existence of any fact
that is of consequence to the determination of the action more proba-
ble or less probable than it would be without the evidence." Fed. R.
Evid. 401. Relevancy must thus be determined in relation to the
charges and claims being tried, rather than in the context of defenses
which might have been raised but were not. See United States v.
Prince-Oyibo, 320 F.3d 494, 501-02 (4th Cir. 2003) (concluding that
defendant’s evidence of religious persecution was properly excluded
where it was irrelevant to only theory charged, and where alternative
defenses or theories of culpability to which evidence might have been
relevant were not raised).
Put simply, whether the prosecution targeted Hedgepeth in its
investigation is hardly probative of any "fact that is of consequence
to the determination of the action." Fed. R. Evid. 401. The FBI’s
motive in investigating Hedgepeth has not been shown to be probative
of any element of the offenses for which she was being tried. While
the motive of the FBI might have been relevant if Hedgepeth had
interposed an entrapment defense, she specifically disclaimed such a
defense when the admissibility of the Kickback Statement was ques-
tioned. As a result, the Kickback Statement was not admissible to
counter an entrapment contention. See Prince-Oyibo, 320 F.3d at 501-
02. And we are unable to perceive how the FBI’s motivation was oth-
erwise relevant to any issue being tried.
As a fall-back position, the Government contends that the Kick-
back Statement was relevant to prove the conspiracy offense, because
it demonstrated Salomonsky’s membership therein. As a general
proposition, the elements of a conspiracy offense are: "an agreement
among the defendants to do something which the law prohibits;
12 UNITED STATES v. HEDGEPETH
knowing and willing participation by the defendants in the agreement;
and an overt act by the defendants in furtherance of the purpose of the
agreement." United States v. Meredith, 824 F.2d 1418, 1428 (4th Cir.
1987). According to the prosecution, Salomonsky’s reason for
approaching Hedgepeth is probative of his own intent to engage in a
quid pro quo exchange, and is thus relevant to the first element of a
conspiracy offense — the existence of an unlawful agreement. Hedge-
peth contends, in response, that this point is a baseless afterthought,
and that, in any event, the evidence was unduly prejudicial and yet
inadmissible under the test enunciated by Federal Rule of Evidence
403(b). Pursuant to Rule 403(b), "[a]lthough 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 . . . needless presentation of cumulative evidence."
Salomonsky was a cooperating witness for the prosecution at trial,
and he testified that he intended to pay Hedgepeth for her vote on
Council business. He testified that, after his initial meeting with
Davis, he intended for Davis "to meet with Gwen Hedgepeth to find
out . . . whether or not she would be interested in a contribution of
some sort in consideration for voting for [Pantele]"; that after hearing
from Davis that Hedgepeth had asked for money for her campaign
debt, he asked Davis, "Does that mean that she will [vote for Pantele]
for $2100?"; and that he joked, "So the mayor of Richmond can be
gotten for $2000." Significantly, Salomonsky had already pleaded
guilty to a conspiracy offense, "attempting to bribe, [and] conspiracy
to bribe Gwen Hedgepeth to vote for Mr. Pantele being mayor." Thus,
Salomonsky’s participation in an unlawful agreement was established
without specific evidence that he thought that Hedgepeth "might be
in the kickback business." Any probative value of the Kickback State-
ment was therefore marginal, at best.
On the other hand, the potential prejudicial impact of the Kickback
Statement was substantial. The issue at trial was, in substance,
whether Hedgepeth was "in the kickback business," or, more specifi-
cally, whether she had intended to engage in quid pro quo transac-
tions during the incidents charged in the indictment. As a result, the
probative value (if any) of Salomonsky’s motivation in approaching
Hedgepeth is minimal when compared to the Kickback Statement’s
potential prejudice to Hedgepeth, and it probably should have been
UNITED STATES v. HEDGEPETH 13
excluded. See United States v. Grossman, 400 F.3d 212, 218-19 (4th
Cir. 2005) (concluding that trial court correctly excluded evidence
where its probative value as to defendant’s associate was minimal
compared to its prejudicial effect on defendant).
Assuming the Kickback Statement to have been improperly admit-
ted, however, we must assess whether such an error was nonetheless
harmless — i.e., whether it "is probable that the error could have
affected the verdict reached by the particular jury in the particular cir-
cumstances of the trial." See United States v. Simpson, 910 F.2d 154,
158 (4th Cir. 1990) (quoting United States v. Morison, 844 F.2d 1057,
1078 (4th Cir. 1988)). And, in the circumstances here, it is improba-
ble "that the error affected" the jury’s verdict. Simpson, 910 F.2d at
158. First, the trial court promptly gave its cautionary instruction to
the jury that the Kickback Statement was not to be considered as evi-
dence of Hedgepeth’s guilt or innocence. We have consistently
observed that such "cautionary or limiting instructions generally obvi-
ate prejudice." United States v. Powers, 59 F.3d 1460, 1467-68 (4th
Cir. 1995) (quoting United States v. Masters, 622 F.2d 83, 87 (4th
Cir. 1980)). Second, even on the factual issue that the defense pressed
— whether Hedgepeth understood or intended to participate in quid
pro quo transactions — there was ample evidence, viewed in the light
most favorable to the Government, for the jury to find the necessary
mens rea.10 For example, in the key conversations between Davis and
Hedgepeth about Pantele’s and Williams’s candidacies, Hedgepeth
indicated her intention to exchange her vote for Davis’s monetary
support. In particular, on December 19, 2002, after Davis asked for
Hedgepeth’s support for Pantele, she immediately requested money,
asking, "so I can help with [Pantele’s election], all right, now when
can you help me with my debt."11 Similarly, Davis was explicit about
10
The defense pressed the quid pro quo point because the Supreme
Court has held that one commits the Hobbs Act crime of extortion under
color of official right — as opposed to by use of force, violence, or fear
— only if "the payments are made in return for an explicit promise or
undertaking by the official to perform or not to perform an official act"
where "the official asserts that his official conduct will be controlled by
the terms of the promise or undertaking." See McCormick v. United
States, 500 U.S. 257, 272-73 (1991).
11
Importantly, under the evidence, Davis had only once previously
given Hedgepeth a campaign contribution.
14 UNITED STATES v. HEDGEPETH
the motive for the payment of $2100 in cash; during their July 8, 2003
telephone conversation, he advised Hedgepeth that he wanted her to
"change horses and vote for Larry Williams," and that he would "pay
her campaign debt if she would do that." At their July 21, 2003, meet-
ing, when Davis gave Hedgepeth the cash, he told her, "[t]his is for
your help backing Larry," and emphasized that it was "not a campaign
contribution" and to "spend [it] how you want to." Hedgepeth
responded, "So I’m hearing you say that this is not a campaign contri-
bution," and seemed hesitant and uncomfortable. These interactions
with Davis were captured on video and audiotape, and they were
attested to by multiple witnesses. As a result, it is not probable that
an erroneous admission of the Kickback Statement affected the ver-
dict, and any error in its admission was, in these circumstances, harm-
less.
B.
In her second contention on appeal, Hedgepeth maintains that the
trial court erred in refusing to admit the written statement she pro-
vided to the FBI agents after her arrest. The statement was offered to
rebut the prosecution’s impeachment of her trial testimony on the
basis of her prior inconsistent verbal statements to the agents. As
explained below, the trial court’s ruling on this issue was well within
its discretion.
On direct examination, Hedgepeth testified that she had not partici-
pated in quid pro quo transactions with Davis. Specifically, she main-
tained that the "support" she offered for Williams was merely support
in the November election, not for an interim Council appointment.
The prosecution then impeached Hedgepeth’s credibility with her
statements to the FBI agents at her post-arrest interview, as recorded
in their 302 reports, to the effect that her support had contemplated
the interim appointments by Council. Hedgepeth testified that she did
not recall making the statements. She then sought to admit into evi-
dence her separate written statement to the agents, given at the same
time as the oral interview, which made no mention of the interim
appointments by Council. Hedgepeth maintained that this statement
showed that, contrary to what the FBI agents had recorded in their
302s, she had not mentioned the interim appointments in her oral
statements to them.
UNITED STATES v. HEDGEPETH 15
The court declined to admit her written statement into evidence,
deeming it inadmissible as substantive evidence because it constituted
exculpatory hearsay. However, the court permitted Hedgepeth’s law-
yer to examine her on the inconsistency asserted by the prosecution
in her oral statements: whether, in speaking to the FBI, she had admit-
ted that her "support" for Williams related to an interim Council
appointment, rather than campaign support in the November general
election.
The prior consistent statements of a witness are, as a general propo-
sition, inadmissible as substantive evidence. See, e.g., United States
v. Weil, 561 F.2d 1109, 1111 (4th Cir. 1977) (explaining that corrobo-
rative testimony consisting of prior consistent statements is ordinarily
inadmissible hearsay unless testimony sought to be bolstered has first
been impeached). However, a prior consistent statement may be
admissible under two scenarios. First, under Rule 801(d)(1)(B) of the
Federal Rules of Evidence, a prior consistent statement of a person
who has testified and been subject to cross-examination is not hearsay
and is admissible when the statement is offered to "rebut an express
or implied charge against him of recent fabrication, improper influ-
ence or motive." See United States v. Dominguez, 604 F.2d 304, 311
(4th Cir. 1979) (affirming admission of witness’s prior consistent
statements where impeachment "was rife with implications that his
testimony was improperly motivated" and "fabricated recently"). Sec-
ond, such a statement may be admitted for rehabilitation purposes,
without regard to the provisions of Rule 801(d)(1)(B), if it is consis-
tent with the witness’s trial testimony, and other portions of the same
statement have been used to impeach the witness, such that "misun-
derstanding or distortion can be averted only through presentation of
another portion" of the statement. In such a situation, the "material
required for completion" is admissible, under what has been called the
"doctrine of completeness." See United States v. Mohr, 318 F.3d 613,
626 (4th Cir. 2003) (explaining and applying doctrine of complete-
ness); United States v. Ellis, 121 F.3d 908, 918-20 (4th Cir. 1997)
(recognizing that Rule 801(d)(1)(B) is not "only possible avenue" for
admitting prior consistent statement).
Although Hedgepeth contends that her written statement should
have been admitted in its entirety under the doctrine of completeness,
the court’s ruling on this point was nevertheless well within its discre-
16 UNITED STATES v. HEDGEPETH
tion. First, the doctrine of completeness generally applies to a single
statement or document; here Hedgepeth sought to admit her separate
written statement to clarify the contents of oral statements she made
during the FBI interview. See Mohr, 318 F.3d at 626 (explaining that
doctrine of completeness allows admission of portion of document
when separate portion of same document has been previously used for
impeachment purposes). Second, Hedgepeth’s written statement and
her alleged oral statements to the agents, as recorded in their 302s, are
not contradictory; rather, the 302s merely include statements not con-
tained in the written statement. As a result, even if Hedgepeth’s post-
arrest statements to the FBI, both oral and written, were considered
as one statement, admitting her non-contradictory written statement
would not have corrected any distortion of the contents of the oral
interview.
Despite this lack of contradiction, the court permitted Hedgepeth’s
lawyer ample leeway to rehabilitate her testimony by eliciting on redi-
rect examination that she had provided a written statement to the FBI
agents, and that the interim Council appointments were not mentioned
in that writing. This procedure addressed the concern raised by
Hedgepeth, that the Government’s impeachment of her had distorted
her previous statements, without allowing Hedgepeth to use the prior
consistent statement merely to bolster her trial testimony — the very
use precluded by the evidence rules. See Weil, 561 F.2d at 1111; see
also, e.g., United States v. Morlang, 531 F.2d 183, 190 (4th Cir.
1975) (recognizing general principle that witness’s prior unsworn
statements are hearsay, and thus typically inadmissible as affirmative
proof). As a result, the court’s ruling on the evidentiary issue sur-
rounding Hedgepeth’s written statement was neither arbitrary nor irra-
tional, and it does not constitute an abuse of its discretion.
C.
Finally, Hedgepeth contends that the district court denied her the
effective assistance of counsel when it refused her request for a con-
tinuance of her sentencing hearing. Hedgepeth had requested a contin-
uance based on a psychiatrist report delivered to her lawyer late in the
day preceding the sentencing hearing. She maintained that the report
suggested the availability of a diminished capacity departure under
the U.S. Sentencing Guidelines § 5K2.13 (2003), but that the issue
UNITED STATES v. HEDGEPETH 17
12
required further investigation. As explained below, the court did not
err in denying her continuance request.
The denial of a continuance contravenes a defendant’s Sixth
Amendment right to counsel only when there has been "an unreason-
ing and arbitrary insistence upon expeditiousness in the face of a jus-
tifiable request for delay." Morris v. Slappy, 461 U.S. 1, 11-12 (1983)
(internal quotation marks omitted); see also United States v. Stewart,
256 F.3d 231, 244 (4th Cir. 2001) (quoting Morris, 461 U.S. at 11-
12). In order to prevail on this point, Hedgepeth is obliged to show,
first, that the district court abused its discretion in denying the contin-
uance motion, and second, that the ruling "specifically prejudiced" her
case. Stewart, 256 F.3d at 244; see also United States v. Speed, 53
F.3d 643, 644-45 (1995) (defendant must show that denial of sentenc-
ing continuance was arbitrary and substantially impacted her ability
to receive fair sentence).
Assessed under the foregoing deferential standard, the trial court
did not err in concluding that it was unnecessary to grant a continu-
ance of the sentencing hearing to permit Hedgepeth to investigate the
availability of a diminished capacity departure. First, Hedgepeth’s
July 2, 2004 sentencing hearing had been scheduled by the court three
months earlier, in April. This three-month period gave Hedgepeth
ample opportunity to investigate and present potential arguments and
documentation in her sentencing proceedings. Second, the medical
report received the day before sentencing did not demonstrate that
further investigation would have revealed a basis for a downward
departure. Instead, the report merely indicated that Hedgepeth had
been taking Paxil, which her lawyer hypothesized might have affected
her mental state, and that she was suffering from depression as a
result of several recent and difficult personal problems. The court
concluded that the report did not "begin to satisfy the elements" of the
demanding diminished capacity Guideline, which authorizes a depar-
12
Hedgepeth’s attorney also filed a motion to withdraw as counsel on
July 1, 2004, the day before sentencing, which the court denied. Though
Hedgepeth argues that a conflict had developed between her and her
counsel, further impairing his ability to effectively represent her in the
sentencing proceedings, she does not rely on her request for a new attor-
ney as a separate ground for the sentencing continuance error.
18 UNITED STATES v. HEDGEPETH
ture only when the defendant suffers from a "significantly reduced
mental capacity" that "contributed substantially to the commission of
the offense." USSG § 5K2.13. Nonetheless, the court at sentencing
admitted the testimony of Dr. Shepard regarding Hedgepeth’s use of
Paxil and its potential adverse neurological effects on her, as well as
the evidence of Dr. Israel concerning her mental state, particularly the
impact of the personal and family-related stress she had suffered over
the previous ten years. As a result, the court’s denial of Hedgepeth’s
request for a sentencing continuance was within its "latitude" and
"broad discretion," Morris, 461 U.S. at 11, and its ruling did not con-
stitute "an unreasoning and arbitrary insistence upon expeditiousness
in the face of a justifiable request for delay," id. at 11-12, implicating
Hedgepeth’s Sixth Amendment right to counsel.
IV.
Pursuant to the foregoing, we affirm Hedgepeth’s convictions and
sentence.
AFFIRMED