United States v. Travis Ybarra

United States Court of Appeals
For the Eighth Circuit
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No. 16-3239
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United States of America
lllllllllllllllllllll Plaintiff - Appellee
v.
Travis Dane Ybarra, also known as HoodNutt
lllllllllllllllllllll Defendant - Appellant
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Appeal from United States District Court
for the Western District of Missouri - Kansas City
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Submitted: June 9, 2017
Filed: June 27, 2017
[Unpublished]
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Before LOKEN, MURPHY, and MELLOY, Circuit Judges.
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PER CURIAM.
Travis Ybarra was involved in the distribution of methamphetamine in the
Kansas City, Missouri area. He was charged along with sixteen codefendants with
conspiracy to distribute a controlled substance in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), 846, and conspiracy to commit money laundering in violation of 18 U.S.C.
§ 1956(a)(1)(A)(i), (h). A jury convicted him of both counts, and he was sentenced
to 360 months imprisonment. Ybarra appeals, arguing that the district court1 should
have declared a mistrial after a government witness offered unsolicited testimony that
Ybarra had killed someone and that his Sixth Amendment right to confront witnesses
was violated by the denial of his request to recall a government witness for
impeachment. We affirm.
I.
In July 2011 officers in the Kansas City, Missouri area began investigating a
methamphetamine distribution ring which they came to believe was led by Ybarra.
After months of investigation, Ybarra and sixteen codefendants were charged in a
twelve count superseding indictment. Ybarra was only charged with the first two
counts—conspiracy to distribute 500 grams or more of methamphetamine in violation
of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), 846, and conspiracy to commit money
laundering in violation of 18 U.S.C. § 1956(a)(1)(A)(i), (h).
Ybarra was tried before a jury. Officers involved in the investigation testified
for the government about controlled drug purchases they made from coconspirators
and their discovery of identical money counters in the homes of three codefendants,
including Ybarra. The government also introduced recordings of telephone calls
between Ybarra and other coconspirators in which he was apparently discussing the
distribution of drugs.
Five of Ybarra's codefendants who had pled guilty testified for the government
and implicated him in the conspiracy. One of these codefendants, Kevin Weiss,
testified that he had known Ybarra as "HoodNutt." The prosecutor asked Weiss how
he had learned that the name HoodNutt referred to Ybarra, and Weiss replied that
1
The Honorable David Gregory Kays, Chief Judge, United States District
Court for the Western District of Missouri.
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another codefendant had told him that "HoodNutt was the guy that killed his cousin."
The court interrupted the testimony immediately after this comment. At a bench
conference Ybarra's counsel moved for a mistrial, and the judge and prosecutor both
mistakenly stated that Weiss had said that "he" (not "HoodNutt") was the man who
killed the codefendant's cousin. The court denied the motion for a mistrial and issued
a curative instruction, telling the jury that "the last response from this witness is
hereby stricken" and "not to consider that in any way during your deliberations." A
short while later, the court held another bench conference with the lawyers and
acknowledged that Weiss had identified HoodNutt as the person who killed someone,
and then denied defense counsel's renewed motion for a mistrial.
Another codefendant, Samantha Edmunds, also testified for the government
about the drug conspiracy. On direct examination, she said that she had first met
Ybarra when her codefendant and boyfriend at the time, Damon Schultz, had
purchased a few ounces of methamphetamine from him. She also testified that Ybarra
was Schultz's only supplier of methamphetamine during the relevant time period.
Both of these statements were inconsistent with statements she had made during a
previous interview with law enforcement officers.
On cross examination, defense counsel impeached her with the inconsistencies,
and engaged in the following colloquy:
Q: You were asked a lot of the same questions [at the prior interview] you
were asked here today; is that correct?
A: Yes.
Q: The answers were quite a bit different back then; weren't they?
A: Yes.
Defense counsel then attempted to get Edmunds to admit that she had previously told
officers that Schultz had two methamphetamine suppliers, Taco and Beto, and that
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she had not previously identified Ybarra as Schultz's methamphetamine supplier.
Edmunds did not admit to making those statements, however, and instead maintained
that she had always said that Ybarra supplied Schultz with methamphetamine. At the
end of Edmunds' testimony, defense counsel reserved the right to recall her.
When the government rested, defense counsel asked to recall Edmunds to
impeach her further with the video recording of her prior interview with law
enforcement officers. The district court asked what counsel hoped to accomplish with
the witness, and counsel replied that he wanted the jury to know that Edmunds had
previously said that Schultz got his methamphetamine from Taco and Beto, not from
Ybarra. Counsel admitted that he had already impeached Edmunds to some degree,
but argued that the video would be the best evidence of impeachment. The district
court denied the request to recall Edmunds, reasoning that counsel had already had
the opportunity to impeach her with a summary of the prior interview. The defense
then rested without calling any witnesses.
The jury convicted Ybarra of both charged offenses. The district court
sentenced him to 360 months on the distribution count and 240 months on the money
laundering count, to be served concurrently. Ybarra appeals.
II.
Ybarra argues that the district court erred by denying his motion for a mistrial
after Weiss offered unsolicited testimony that another codefendant told him that
"HoodNutt was the guy that killed his cousin." We review the denial of a motion for
"a mistrial for an abuse of discretion." United States v. Coleman, 349 F.3d 1077,
1087 (8th Cir. 2003).
A jury's exposure "to improper testimony ordinarily is cured by measures less
drastic than a mistrial, such as an instruction to the jury to disregard the testimony."
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United States v. Sherman, 440 F.3d 982, 987 (8th Cir. 2006). A curative instruction
will be insufficient, however, if "the verdict was substantially swayed" by the
improper testimony. Coleman, 349 F.3d at 1087 (quoting United States v. Muza, 788
F.2d 1309, 1312 (8th Cir. 1986)). To determine whether improper testimony affected
the verdict, we compare the prejudice caused by the testimony with the strength of the
evidence of the defendant's guilt. Id. If "the evidence of guilt is substantial, we may
find that the allegedly improper testimony was harmless." United States v. Brandon,
521 F.3d 1019, 1026 (8th Cir. 2008).
We conclude that the district court's curative instruction sufficiently cured any
prejudice caused by Weiss' improper testimony. The improper comment "was fleeting
and immediately interrupted by the" court. See Sherman, 440 F.3d at 988. Although
the comment did cast Ybarra in a violent light when he was charged with a nonviolent
offense, that alone would not mandate a mistrial. We have concluded in other cases
with nonviolent drug charges that any prejudice caused by similar improper testimony
was adequately cured by a curative instruction. See, e.g., Brandon, 521 F.3d at
1026–27; Sherman, 440 F.3d at 987—88.
The court also "acted promptly to strike the allegedly improper testimony and
to instruct the jury to disregard it." See Sherman, 440 F.3d at 988. The court's
curative instruction told the jury to disregard the previous statement; it did not repeat
that statement or indicate to the jury that the judge was confused by whether Weiss
had used a personal pronoun or the name HoodNutt. Furthermore, any residual
prejudicial effect would have been harmless because there was substantial evidence
of Ybarra's guilt, including "recordings of [Ybarra] negotiating drug transactions with
co-conspirators on the telephone, and testimony of multiple co-conspirators
implicating [Ybarra] in the drug trafficking conspiracy." See id. Given the fleeting
nature of Weiss' improper statement, the curative measure taken by the court, and the
substantial evidence of Ybarra's guilt, we conclude that the district court did not
abuse its discretion by denying Ybarra's motion for a mistrial after Weiss provided
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improper testimony.
III.
Ybarra also argues that the district violated his right to confront witnesses
under the Sixth Amendment by denying his request to recall Edmunds to impeach her
with the video of her prior interview with officers. Although we ordinarily review
an evidentiary ruling which limits the scope of cross examination for abuse of
discretion, our review is de novo when the claim implicates the Sixth Amendment.
United States v. Williams, 796 F.3d 951, 960 (8th Cir. 2015).
The Confrontation Clause of the Sixth Amendment provides a defendant with
the right to "effective cross-examination of witnesses against him." United States v.
Warfield, 97 F.3d 1014, 1024 (8th Cir. 1996) (quoting United States v. Willis, 997
F.2d 407, 415 (8th Cir. 1993)). This "right to examine witnesses . . . is not without
limitation, however." Id. Under the Confrontation Clause, "[d]istrict courts 'retain
wide latitude . . . to impose reasonable limits on such cross-examination based on
concerns about, among other things . . . interrogation that is repetitive or only
marginally relevant.'" Id. (quoting United States v. Juvenile NB, 59 F.3d 771, 778
(8th Cir. 1995)). Confrontation Clause violations are reviewed for harmless error.
United States v. Jones, 728 F.3d 763, 766 (8th Cir. 2013); see also Chapman v.
California, 386 U.S. 18, 23–24 (1967) (setting forth harmless error standard for
reviewing constitutional errors).
We need not determine whether the district court violated Ybarra's Sixth
Amendment right to confront witnesses because we conclude that even if there were
such an error, it was harmless beyond a reasonable doubt. When "assessing the
harmlessness of an erroneous limitation on cross-examination, we consider the
importance of the witness's testimony to the entire case, whether the testimony was
cumulative, whether corroborating or contradicting evidence existed, the degree of
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cross examination actually permitted, and the overall strength of the government's
case." Harrington v. Iowa, 109 F.3d 1275, 1279 (8th Cir. 1997). Here, defense
counsel wanted further to impeach Edmunds' trial testimony that Ybarra had supplied
Schultz with methamphetamine. Edmunds' testimony on that point was cumulative,
however, because a different government witness, Ashley Ford, testified that he went
with Schultz to purchase methamphetamine from Ybarra on over thirty different
occasions. Moreover, even if Ybarra were correct that the video would have been the
best evidence of impeachment, Edmunds had already been impeached on cross
examination. See Jones, 728 F.3d at 767 (concluding that error was harmless because
additional evidence about the witness' credibility would have been cumulative). She
had testified about the sentence reduction she received for cooperating with the
government and admitted on cross examination that her trial testimony differed in
some respects from her prior statements to officers. We therefore conclude that the
district court did not commit a reversible constitutional error by denying Ybarra's
motion to recall Edmunds to impeach her further with a previously recorded
statement.
IV.
Accordingly, the judgment of the district court is affirmed.
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