United States v. Jose Ramos-Caraballo

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
________________
No. 03-2274
________________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Nebraska.
Jose Ramos-Caraballo, *
* [PUBLISHED]
Appellant. *
________________
Submitted: February 9, 2004
Filed: July 26, 2004
________________
Before MORRIS SHEPPARD ARNOLD, HANSEN, and SMITH, Circuit Judges.
________________
HANSEN, Circuit Judge.
Jose Ramos-Caraballo was convicted of possession with intent to distribute
cocaine in violation of 21 U.S.C. § 841, resulting from a traffic stop along Interstate
Highway 80 in Omaha, Nebraska. He argues on appeal that the stop was
unreasonable and that the district court erroneously denied his motion to suppress.
He also asserts that evidentiary errors unfairly prejudiced his defense. We affirm.
I.
At approximately 12:50 a.m. on March 16, 2002, Officer Aaron Hanson of the
Omaha Police Department stopped an east-bound vehicle on I-80 in Omaha after he
observed "some type of a large item hanging from the rearview mirror" in violation
of Nebraska law. (Trial Tr. at 27-28.) There were two occupants in the vehicle:
Ramos-Caraballo, the driver, and Frank Alvarez-Gayan, the passenger. Officer
Hanson said they appeared nervous as he approached the vehicle. Hanson also
noticed a strong smell of air freshener. On learning that the occupants primarily
spoke Spanish, Officer Hanson attempted to converse with them in Spanish as best
he could, informing them of the basis for the stop.
The item hanging from the rearview mirror turned out to be a seven-and-three-
quarters-inch long air freshener shaped like a tree and still partially enclosed in its
original packaging. Ramos-Caraballo immediately removed it on learning that it was
the basis for the stop. Another air freshener was hanging on the steering column, and
when Ramos-Caraballo retrieved the proof of insurance from the glove compartment,
Officer Hanson noticed a can of deodorizer air spray in the compartment. Officer
Hanson became suspicious because in his experience, strong perfume or deodorizers
are often used to mask the transportation of illegal narcotics.
Ramos-Caraballo accompanied Officer Hanson to the police cruiser while the
officer verified the registration and license. Through conversation, Hanson learned
that the two men were traveling from California to Connecticut to visit Ramos-
Caraballo's sick grandmother. Later, Ramos-Caraballo indicated that they were
traveling to Massachusetts to visit his sick grandmother. The registration and license
were valid, but Officer Hanson noticed that the car had been registered and insured
in California only three days before this stop. He issued only a warning citation for
the view obstruction violation, explaining as best he could in Spanish that no fine or
2
penalty was imposed. Officer Hanson told Ramos-Caraballo to drive carefully and
shook his hand.
As Ramos-Caraballo began to exit the cruiser, however, Hanson asked if they
had any weapons, bombs, or narcotics in the vehicle. Ramos-Caraballo said no, but
Hanson noticed that he looked away when he answered the question about the
narcotics. He and the passenger both consented to Officer Hanson's request to search
the vehicle after reading a Spanish language consent form. In the trunk of the car,
Officer Hanson noticed that the spare tire's metal rim looked worn. He retrieved a
density meter from his patrol vehicle and determined that one half of the spare tire
was more dense than the other. Ultimately, Hanson uncovered 955.8 grams of
cocaine hidden in the spare tire. Officer Mark Langan testified at trial that this
amount of cocaine is not associated with personal use but with distribution. Officer
Hanson testified that when he arrested Ramos-Caraballo, he appeared deflated and
did not show much emotion.
Prior to trial, Ramos-Caraballo filed a motion to suppress the evidence seized
as a result of the traffic stop and search, arguing that Officer Hanson stopped his
vehicle without reasonable suspicion. The district court denied the motion, and the
case proceeded to trial.
During trial, defense counsel attempted to impeach Officer Hanson with
claimed inconsistent statements in his police report as well as statements in his sworn
testimony before the grand jury and at the suppression hearing. Most of these
statements concerned the defendant's demeanor and mannerisms, and they exposed
at best slight deviations from Officer Hanson's trial testimony.
On redirect examination, the government offered as exhibits Officer Hanson's
police report, a transcript of his grand jury testimony, and a transcript of his testimony
from the suppression hearing, asserting that these entire documents were necessary
3
to place all of his statements in context, citing Federal Rule of Evidence 106. The
defense counsel requested a showing of what portions of these exhibits were
necessary to place the impeaching statements in context, but the government asserted
it was entitled to submit them in their entirety. Over defense counsel's objection, the
district court admitted the exhibits in their entirety, subject to only a few agreed-upon
redactions. The jury convicted Ramos-Caraballo of possession with intent to
distribute cocaine, and he now appeals.
II.
A. Motion to Suppress
Ramos-Caraballo challenges the district court's denial of his motion to
suppress, arguing that, contrary to the Fourth Amendment, the officer did not have
a reasonable articulable basis for the stop of his vehicle. "When reviewing the district
court's ruling on a motion to suppress, we review its fact-finding for clear error and
its ultimate application of the law to the facts de novo." United States v. Scroggins,
361 F.3d 1075, 1079 (8th Cir. 2004). "We must affirm an order denying a motion to
suppress unless the decision is unsupported by substantial evidence, is based on an
erroneous view of the applicable law, or in light of the entire record, we are left with
a firm and definite conviction that a mistake has been made." United States v.
Rodriguez-Hernandez, 353 F.3d 632, 635 (8th Cir. 2003).
An automobile stop is subject to the Fourth Amendment imperative that the
stop must be reasonable. Whren v. United States, 517 U.S. 806, 810 (1996). A
vehicle stop is reasonable if it is supported by either probable cause to believe that
a traffic violation has occurred, id., or an articulable and reasonable suspicion that
criminal activity is afoot, Delaware v Prouse, 440 U.S. 648, 663 (1979). "It is well
established that a traffic violation–however minor–creates probable cause to stop the
driver of a vehicle." United States v. Hamby, 59 F.3d 99, 101 (8th Cir. 1995)
(internal quotation marks omitted).
4
Nebraska motor vehicle law provides that it is "unlawful for any person to
operate a motor vehicle with any object placed or hung in or upon such vehicle,
except required or permitted equipment of the vehicle, in such a manner as to obstruct
or interfere with the view of the operator through the windshield or to prevent the
operator from having a clear and full view of the road and condition of traffic behind
such vehicle." Neb. Rev. Stat. § 60-6,256 (Reissue 1998). Officer Hanson testified
that he observed a violation of this provision when Ramos-Caraballo's car passed him
on the interstate with an air-freshener hanging from the rearview mirror. Ramos-
Caraballo asserts that the statute is ambiguous and should be construed to permit
objects to hang from the mirror if they do not significantly obstruct or interfere with
the driver's view through the windshield so as to create a safety hazard. Under this
reading of the statute, he argues that Officer Hanson did not have probable cause to
stop his vehicle because the air freshener did not amount to a significant view
obstruction.
We respectfully disagree with this reading of the statute. The plain language
of the statute unambiguously provides that "any object" that obstructs a clear and full
view through the windshield violates Nebraska law. Neb. Rev. Stat. § 60-6,256. The
wording of the statute plainly indicates that the Nebraska legislature has already
concluded as a matter of policy that any obstruction (not only a significant
obstruction) of a clear and full view of the road is a safety hazard subject to regulation
through this statute. See id. Officer Hanson testified at the suppression hearing that
he observed "an item hanging from the rear view mirror" in violation of Nebraska's
state traffic laws. (Suppression Hr’g Tr. at 14.) His observation provided probable
cause for him to stop the vehicle, i.e., he had probable cause to believe he had
observed a violation of Nebraska’s traffic laws.
Ramos-Caraballo also argues that Officer Hanson's observations were not
reasonably trustworthy because the vehicle was traveling sixty miles an hour, it was
dark outside, and Hanson observed the alleged violation for only a short time as the
5
car passed him and Hanson began to follow him–approximately three seconds.
Hanson testified that he could continue to see the obstruction through Ramos-
Caraballo's rear window as he followed them, "I guess just as far as the human eye
would allow to see an object like that," and he signaled for them to pull over. The
officer was not mistaken as the object proved to be a large Christmas tree air
freshener still partially in its packaging hanging close to the windshield. The district
court did not clearly err in crediting his testimony as trustworthy, and his articulated
objective and reasonable belief that a violation of law had occurred amounted to
probable cause. See United States v. Thomas, 93 F.3d 479, 485 (8th Cir. 1996)
("Probable cause exists where an officer objectively has a reasonable basis for
believing that the driver has breached a traffic law.").
We affirm the district court's denial of Ramos-Caraballo's motion to suppress.
B. Evidentiary Rulings
During trial, Ramos-Caraballo attempted to impeach Officer Hanson on cross-
examination with what he characterizes as prior inconsistent statements made in the
officer's grand jury testimony, suppression hearing testimony, and police report. The
defense attorney impeached Hanson on some particulars, demonstrating among other
things that, while Hanson's trial testimony was that Ramos-Caraballo had thrown
down the air freshener when advised of the violation, his police report simply said
Ramos-Caraballo placed it on the console between the seats. The defense counsel
brought up Hanson's failure to mention in his police report that a handwritten note
with the grandmother's name and address was found in Ramos-Caraballo's wallet.
The defense also demonstrated particular variances between Hanson's trial testimony
and his prior sworn testimony about the demeanor of Ramos-Caraballo and his
passenger during the stop. Hanson testified at trial that they appeared "overly
nervous," "wide-eyed nervous," and more nervous "than 95% of the people," while
his prior sworn testimony at the grand jury proceedings and the suppression hearing
6
stated only that they appeared nervous. The defense attacked Hanson's trial testimony
describing the perfumed odor as he approached the car as "overwhelming," whereas
his prior testimony simply indicated that the odor was "strong." Also, the defense
contrasted Hanson's trial description of Ramos-Caraballo's demeanor when he
received the consent to search form as "overly nervous" with his suppression hearing
testimony that the defendant was not extremely nervous when asked to consent to a
search.
On redirect examination, the government offered three exhibits: Exhibit 7, the
complete grand jury testimony of Officer Aaron Hanson; Exhibit 8, the complete
transcript of Officer Hanson's testimony at the suppression hearing; and Exhibit 103,
Officer Hanson's police report from March 16, 2002. Defense counsel objected to the
admission of these exhibits in their entirety. The government countered that because
defense counsel referenced parts of these documents, it was entitled to admit each
document in its entirety pursuant to Federal Rule of Evidence 106 to prevent the jury
from hearing statements taken out of context. The district court admitted the exhibits,
redacted to some degree by agreement of the parties, over Ramos-Caraballo's
objection.
In considering claims of evidentiary error in applying Rule 106, we give
substantial deference to the district court's decisions on admissibility and will find
error only if there has been a clear abuse of discretion. United States v. Bolden, 92
F.3d 686, 687 (8th Cir. 1996); see United States v. King, 351 F.3d 859, 866 (8th Cir.
2003) (reviewing Rule 106 admissibility decision for an abuse of discretion), cert.
denied, 2004 WL 1300613, 72 USLW 3749 (June 14, 2004); see also United States
v. Blue Bird, No. 03-2544, 2004 WL 1398827 (8th Cir. June 23, 2004) (noting that
we properly accord deference to the trial judge regarding the application of
evidentiary rules that “require a balancing of how particular evidence might affect
the jury”). Rule 106 provides that "[w]hen a writing or recorded statement or part
thereof is introduced by a party, an adverse party may require the introduction at that
7
time of any other part or any other writing or recorded statement which ought in
fairness to be considered contemporaneously with it." Fed. R. Evid. 106 (2004). The
Advisory Committee Notes to the rule indicate that this is a rule of completeness
designed in part to avoid misleading impressions created by taking matters out of
context. However, "'the party urging admission of an excluded conversation must
specify the portion of the testimony that is relevant to the issue at trial and that
qualifies or explains portions already admitted.'" King, 351 F.3d at 866 (quoting
United States v. Webber, 255 F.3d 523, 526 (8th Cir. 2001)) (other internal
quotations omitted). We have held that "Rule 106, the rule of completeness, which
is limited to writings," does not "empower[] a court to admit unrelated hearsay in the
interest of fairness and completeness when that hearsay does not come within a
defined hearsay exception." United States v. Woolbright, 831 F.2d 1390, 1395 (8th
Cir. 1987). Furthermore, the rule does not come into play when "a few
inconsistencies between out-of-court and in-court statements are revealed through
cross-examination; rather, it operates to ensure fairness where a misunderstanding or
distortion created by the other party can only be averted by the introduction of the full
text of the out-of-court statement." United States v. Awon, 135 F.3d 96, 101 (1st Cir.
1998).
This case does not involve a situation where "a misunderstanding or distortion
created by the other party can only be averted by the introduction of the full text of
the out-of-court statement." Id. The defense took what inconsistencies it could find
in Officer Hanson's prior testimony and police report and made the most of them, but
revealing these inconsistencies did not warrant a submission of the officer's entire
prior grand jury testimony, the entirety of his suppression hearing testimony, and his
police report. The government made no attempt to specify which portions of these
documents were relevant to the issues raised on cross-examination. In our view, this
looks more like a government attempt to improperly bolster its witness by admitting
the officer's entire testimony again and again through these exhibits. The rule of
completeness permits nothing more than setting the context and clarifying the
8
answers given on cross-examination; it is not proper to admit "all prior consistent
statements simply to bolster the credibility of a witness who has been impeached by
particulars." United States v. Simonelli, 237 F.3d 19, 28 (1st Cir.) ("The government
was just presenting again the testimony it presented on direct, this time through the
testimony about statements to the grand jury."), cert. denied, 534 U.S. 821 (2001); see
Tome v. United States, 513 U.S. 150, 157 (1995) (noting in the context of Fed. R.
Evid. 801(d)(1)(B) that prior consistent statements, admissible to rebut a recent
charge of fabrication, are not admissible "to counter all forms of impeachment or to
bolster the witness merely because she has been discredited"). We conclude that,
while portions of exhibits 7, 8, and 103 might have been admissible had the
government demonstrated the specific excerpts necessary to place the inconsistencies
in context, the district court abused its discretion in admitting the transcripts and the
police report in their entirety. The government pushed the envelope too far.
Where the prior statements merely bolstered a witness's credibility by repeating
testimony already in evidence, however, the error in admitting the prior statements,
standing alone, may be harmless. See Simonelli, 237 F.3d at 29. Where the evidence
is at most "an extra helping of what the jury had heard before," the evidence is merely
cumulative and its admission does not result in reversible error. Id.; see United States
v. White, 11 F.3d 1446, 1451 (8th Cir. 1993) ("Erroneously admitting evidence at
trial may be said to be harmless if other evidence to the same effect was properly
before the jury.") (internal marks omitted). Especially where there is strong evidence
of guilt, "some improper repetition of testimony through what a witness said to a
grand jury, in a generalized effort to bolster the witness, matter[s] little." Simonelli,
237 F.3d at 29. There could be circumstances, however, where that "extra helping"
of evidence "can be so prejudicial as to warrant a new trial." Id. Our review has
convinced us that this is not such a case.
We have carefully reviewed the transcripts and exhibits admitted because we
are troubled by the error of admitting these exhibits wholesale without requiring the
9
government to specify the portions that were relevant to the issues allegedly taken out
of context on cross-examination. It is significant that Officer Hanson was one of only
two witnesses against Ramos-Caraballo, and Officer Hanson was the only witness
who testified to the details of this particular stop.1 It is troubling that the jury was
given the opportunity to read and reread his grand jury testimony, suppression
hearing testimony, and police report during its deliberations. After reviewing all of
the evidence, however, we are satisfied that this error was not so prejudicial as to
warrant a new trial. The additional evidence was mostly cumulative of evidence
already testified to at trial. Ramos-Caraballo claims prejudice because the admission
of the full transcripts inserted into this trial extra issues from the suppression hearing,
such as the officer's ability to speak Spanish and his radio communications. We note
that Officer Hanson's ability to speak limited Spanish was already in the record (see
Trial Tr. at 32), and in any event, we cannot say that these issues were central to or
even marginally impacted on the jury's finding of guilt.
Ramos-Caraballo also asserts that prejudice arose from the fact that the grand
jury testimony and the police report were not subject to cross-examination. We
disagree. In this case, the officer appeared at trial and was subjected to extensive
cross-examination concerning alleged inconsistencies between his trial testimony, his
prior testimony, and his report. While the entire transcript was not relevant to counter
the prior inconsistencies alleged by Ramos-Caraballo, he cannot claim prejudice from
the lack of cross-examination in the prior proceedings where the witness testified at
trial. There is also no confrontation problem at trial where the declarant testifies as
a witness and is "subject to full and effective cross-examination." United States v.
Russell, 712 F.2d 1256, 1258 (8th Cir. 1983) (citing California v. Green, 399 U.S.
149, 158 (1970)).
1
The other witness, Sergeant Mark Langan of the Omaha Police Department,
testified concerning the amount of cocaine present and its street value.
10
The evidence, without the contested exhibits, was quite sufficient to
demonstrate guilt beyond a reasonable doubt, and the disputed exhibits added nothing
of substance to the government's case. Officer Hanson found the cocaine hidden in
the car that was registered to, and driven by, Ramos-Caraballo, who was traveling
from California across the country. The amount of cocaine found in the car was a
quantity that would be sold to high-level dealers and not a quantity that would be
associated with personal use. The district court’s evidentiary error in this case is not
prejudicial because the additional, cumulative testimony "added nothing of substance
to the government's evidence, which established the guilt of [the] defendant[] beyond
a reasonable doubt." United States v. Beasley, 102 F.3d 1440, 1450 (8th Cir. 1996),
cert. denied, 520 U.S. 1246 (1997).
Accordingly, we affirm the judgment of the district court.
_____________________________
11