United States v. Devion Cumbie

United States Court of Appeals
For the Eighth Circuit
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No. 21-1186
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Devion Marquette Cumbie
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Central
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Submitted: December 17, 2021
Filed: March 17, 2022
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Before LOKEN, SHEPHERD, and STRAS, Circuit Judges.
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LOKEN, Circuit Judge.
A jury found Devion Marquette Cumbie guilty of production and attempted
production of child pornography and extortion. Cumbie appeals, arguing the district
court1 erred in (1) prohibiting the defense from cross examining a government witness
1
The Honorable James M. Moody, Jr., United States District Judge for the
Eastern District of Arkansas.
with extrinsic evidence of a text message in which he allegedly confessed to the
charged crimes; (2) denying challenges to the government’s peremptory strikes under
Batson v. Kentucky, 476 U.S. 79 (1986); and (3) not striking a juror who expressed
safety concerns prior to deliberations. We affirm.
I. The Evidentiary Issue
A six-count indictment issued in July 2019 charged Cumbie with production
of child pornography in violation of 18 U.S.C. § 2251(a) and extortion in violation
of 18 U.S.C. § 875(d). The trial ended in a mistrial when the jury failed to reach a
unanimous verdict. A seven-count superseding indictment issued in June 2020
charged Cumbie with three counts of attempted production and production of child
pornography committed against three minor female victims, and four counts of
extortion committed against two of those victims and two adult female victims. After
a second trial, the jury found Cumbie guilty of all seven counts.
At both trials, the government introduced evidence that Cumbie created a fake
Facebook account in September 2018 impersonating Chink Capone, an internet
celebrity and comedian. Cumbie allegedly used the account to solicit nude
photographs and videos from the female victims, and then threatened the victims that
he would post their photos on the internet if they did not cooperate by sending more
explicit content. At both trials, Cumbie’s defense was that Eric Primeaux -- who
lived with Cumbie in the fall of 2018 -- had access to his cell phone and password
and sent the illegal messages.
Prior to the first trial, defense counsel advised government counsel that Sasi
Cervantes-Cumbie, Cumbie’s girlfriend in the fall of 2018 and now his wife
(hereafter referred to as “Sasi” for convenience), had provided counsel with
screenshots of more than one hundred text messages exchanged between Sasi and
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Primeaux’s cell phone from November 7, 2019, to January 29, 2020. They included
this December 7 text message purporting to be from Primeaux to Sasi:
I wanna be honest with you and no secrets between us I’m the reason
devion got charged with child porn I was using his phone and a fake
account to get pictures and sell them but since he’s getting charged we
can be together and work on us
On February 10, 2020, the government filed a motion in limine to preclude Sasi from
offering this testimony because it is inadmissible hearsay. The government argued:
On January 31, 2020, [FBI Special Agent Aaron] Hurst
interviewed Mr. Primeaux [who] vehemently denied sending the text
message. Mr. Primeaux stated that [Sasi] asked to use his cellular
telephone and must have sent the message to herself from his phone in
an attempt to frame him. . . . Any testimony from [Sasi] is hearsay and
there are no exceptions to its admission.
Cumbie’s Response argued that the hearsay statement contains sufficient
circumstantial guarantees of trustworthiness to be admissible under Chambers v.
Mississippi, 410 U.S. 284 (1973), which recognized a due process right to provide
“a meaningful opportunity to present a complete defense.” Holmes v. South Carolina,
547 U.S. 319, 324 (2006) (quotation omitted). At a pretrial conference, defense
counsel stated that his Response did not allege that Primeaux is unavailable or cite
the statement-against-interest hearsay exception in Rule 804(b)(3) of the Federal
Rules of Evidence or the residual exception in Rule 807. But counsel argued the
circumstances that “make this trustworthy . . . would allow it under the residual
hearsay exception [and under] Chambers and Holmes.” On the eve of trial, the
government further requested that the court prohibit Cumbie from impeaching
Primeaux, who was listed as a defense witness, with the text message either by
questioning or with extrinsic evidence.
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After hearing argument from both sides, the district court preliminarily ruled
that the text message was unreliable hearsay that could not be admitted under the
complete-defense hearsay exception of Chambers but invited a contrary defense
proffer. At the close of the government’s case in chief, the defense made a proffer
regarding the text message before calling Primeaux as its first witness. Sasi and
Primeaux testified at length regarding their exchange of text messages. The court
then ruled:
[The text message confession] is hearsay. There isn’t any
exception. I know that there’s this what I’ll call the Chambers
exception, but we don’t have the sufficient guaranties of trustworthiness
that they had there. . . . [E]veryone admits that [Sasi] had possession of
Mr. Primeaux’s phone on the very night that it is alleged that this text
was sent, coupled with the fact that she’s married to Mr. Cumbie and
coupled with the fact that in past cases, she’s been willing to do
whatever she can to help him out. And so it’s for those reasons that I’m
going to . . . find that the confession itself is unreliable and improper
hearsay and that the Chambers exception doesn’t apply in this case [and]
that Mr. Cumbie’s [ ] due-process rights are met because he can still put
on his defense, just not use this piece of hearsay to do so . . . .
The court then turned to whether the defense could call Primeaux as a witness and
impeach him with the text message confession:
I just don’t know of . . . any case that says that you could take a
situation like this where I’ve ruled that the evidence, whether it’s a
confession or otherwise, is unreliable, ask somebody about that, and use
that . . . to essentially sidestep . . . the evidentiary ruling.
And so I think you can impeach Mr. Primeaux if he gets up there
and makes an inconsistent statement, but I’m not going to allow you to
interject either through Mr. Primeaux or through [Sasi] the issue of the
confession in the text message. . . . [T]hat [Sasi] said it happened
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doesn’t necessarily give you a good-faith reason to ask the question,
especially in light of my ruling.
At the start of the second trial, the district court incorporated the record from
the first trial, including this evidentiary ruling. At trial, just before the government
called Primeaux as a witness, defense counsel reprofferred its profferred testimony
from the first trial and renewed Cumbie’s request to question Primeaux about the text
message confession. The district court observed that nothing had changed:
[Defense Counsel]: The only thing that is now changed . . . is that
this witness is going to be called as a government witness[.] . . . I should
be able to impeach him and ask him if he sent that message, and he can
deny it if he chooses. . . .
THE COURT: My ruling was [on] a motion in limine, and if I
think they have opened the door or you do, fine, but just because they
are calling him instead of you calling him doesn’t change that posture.
Primeaux then testified at length concerning, in particular, his access to and use
of Cumbie’s cell phone when the two lived together in the fall of 2018. He was not
questioned about his exchange of text messages with Sasi in late 2019, which
included the text message confession that Sasi claimed she received from Primeaux’s
cell phone. Primeaux denied knowing the password to access Cumbie’s phone, which
was used to commit the pornography production and extortion offenses, and denied
using Cumbie’s phone illegally. After the government rested, Cumbie testified that
Primeaux had unlimited access to Cumbie’s phone, he gave Primeaux the password,
they both used the phone, and Cumbie never used it to extort or to solicit nude
pictures of female minors.
On appeal, Cumbie argues the district court erred in precluding him from
putting the text message confession before the jury at trial. Our abbreviated summary
hopefully makes clear that, over the course of two trials, this issue presented a
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moving target for the district court. The government’s initial position was
straightforward -- the text message is inadmissible hearsay. Cumbie responded with
three contrary propositions. First, he contended it is admissible into evidence under
the due process right to present a complete defense recognized in Chambers. Second,
he suggested it is admissible into evidence under the hearsay exception in Rule
804(b)(3) for statements against the penal interest of an unavailable declarant and the
residual hearsay exception in Rule 807. Third, he argued the text message is extrinsic
evidence of a prior inconsistent statement that may be used to impeach Primeaux
under Rule 613(b), whether he is a witness for the defense, as in the first trial, or for
the prosecution, as in the second trial. Only the third theory is argued on appeal. But
all three theories are relevant to our conclusion that the district court did not abuse
its discretion by limiting Cumbie’s cross examination of government witness
Primeaux in the second trial.
In granting the government’s motion in limine at the first trial, the district court
initially focused on the Chambers due process argument that was Cumbie’s response
to the government’s motion. Chambers permits the introduction of otherwise-
inadmissible hearsay if it has “persuasive assurances of trustworthiness.” 410 U.S. at
302. Based on the profferred direct and cross examination testimony of Sasi and
Primeaux, the district court concluded that Cumbie had not met his burden on this
issue. Sasi, now married to Cumbie, initiated contact with Primeaux a year after the
illegal messages to female victims from Cumbie’s phone at issue in the criminal case.
After a series of text messages full of sexual innuendos between them, Sasi came to
Primeaux’s residence and requested to use his phone on the night the text message
confession was sent. The message was different in style from others Primeaux sent
to Cervantes. It referred to Cumbie as “devion,” when Primeaux only knew him by
his initials, “DMC.” No other message discussed or acknowledged the confession; the
next conversation between Sasi and Primeaux came six weeks later and concerned
going to the gym. The government’s cross exam of Sasi brought out that she had
helped a witness write an exonerating affidavit on behalf of Cumbie in a prior criminal
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case, and had helped another roommate of Cumbie and Primeaux write an affidavit
stating he had seen Primeaux use Cumbie’s phone. Based on this testimony, the
district court concluded the Chambers hearsay exception did not apply due to the
overwhelming unreliability of the confession. The proffered evidence demonstrated
that Sasi sent the text message to herself to support Cumbie’s trial defense. Cumbie
renewed this argument at the second trial but does not press it on appeal.
The second theory Cumbie does not press on appeal, the hearsay exceptions in
Rules 804(b)(3) and 807, are likewise defeated by this conclusion. It is not surprising
that Cumbie did not press the Rule 804 theory because this hearsay exception only
applies when the declarant is “unavailable.” Fed. R. Evid. 804(a). There are prior
Rule 804 decisions suggesting that Primeaux might arguably have been unavailable
at the first trial even though listed as a defense witness. However, Rule 804(b)(3)(B)
expressly provides that the statement against interest must be “supported by
corroborating circumstances that clearly indicate its trustworthiness, if it is offered in
a criminal case as one that tends to expose the declarant to criminal liability.”
Likewise, to be admissible under the residual hearsay exception in Rule 807, a
statement must be “supported by sufficient guarantees of trustworthiness.” The
district court’s conclusion that the text message confession was overwhelmingly
unreliable defeats these claims. See United States v. Halk, 634 F.3d 482, 489 (8th Cir.
2011); United States v. Bobo, 994 F.2d 524, 528 (8th Cir. 1993).
Cumbie’s third theory is that he should have been allowed to impeach Primeaux
with the text message confession under Rule 613(b), which provides in relevant part,
“Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the
witness is given an opportunity to explain or deny the statement.” During the second
trial, Cumbie argued that Primeaux would be called as a government witness and “I
should be able to impeach him and ask him if he sent that message, and he can deny
it if he chooses.” The district court did not foreclose that: “[I]f I think they have
opened the door or you do, fine.” The government on direct examination did not ask
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Primeaux whether he had used Cumbie’s phone to send illegal messages to the
victims. So Cumbie is left to complain that the court barred him from asking
Primeaux that question on cross examination and then impeaching him with the text
message confession received by Sasi one year later. Cumbie argues that, in making
this ruling, the district court abused its discretion by failing to conduct a Rule 403
analysis that weighs “the probative value of a Rule 613(b) prior inconsistent statement
. . . against the prejudicial effect of its admission.” United States v. Buffalo, 358 F.3d
519, 527 (8th Cir. 2004), citing United States v. Logan, 121 F.3d 1172, 1175 (8th Cir.
1997).
“Although extrinsic evidence may be used for impeachment by prior
inconsistent statement, such extrinsic evidence must still be authenticated.” United
States v. Craig, 953 F.3d 898, 904 (6th Cir. 2020). That was not at issue in Buffalo,
358 F.3d at 524. In this case, the district court concluded that the text message
confession “is unreliable and improper hearsay.” Cumbie argues he established
adequate foundation in the profferred testimony of Sasi and Primeaux establishing that
Primeaux admitted sending many messages to Sasi from his cell phone, denying only
the text message confession that was sent from Primeaux’s phone and received by
Sasi. But Cumbie admitted he had no evidence corroborating that Primeaux sent the
text message confession, and the profferred testimony as a whole persuaded the district
court that Cumbie had no good faith basis to question Primeaux about its text. As the
district court put it, “that [Sasi] said it happened doesn’t necessarily give you a good-
faith reason to ask the question.” Therefore, this extrinsic evidence lacked “probative
value” and was therefore not “relevant” under Rule 401. As Rule 403 applies only to
the exclusion of “relevant evidence,” explicit Rule 403 balancing was not needed.
There is a second reason why Cumbie’s Rule 613(b) theory fails to establish an
abuse of the district court’s discretion “to impose . . . reasonable limits on cross
examination.” United States v. Williams, 796 F.3d 951, 961 (8th Cir. 2015). Cumbie
wanted the text message confession admitted as substantive evidence supporting his
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defense that Primeaux, not Cumbie, sent illegal communications to the victims from
Cumbie’s phone. This is reflected in his response to the government’s motion in
limine, which raised the Chambers theory and alluded to the Rules 804(b)(3) and 807
theory. Both of those theories would have made the text message admissible as
substantive evidence supporting Cumbie’s “he did it” defense.
Not so the later-asserted Rule 613(b) theory. “Ordinarily a prior inconsistent
statement is admissible [under Rule 613(b)] only for the purpose of impeachment and
not as substantive evidence.” United States v. Feliciano, 761 F.3d 1202, 1210 (11th
Cir. 2014). When offered for this purpose, rather than for the truth of the matter
asserted, “it is not hearsay.” United States v. Watkins, 591 F.3d 780, 787 (5th Cir.
2009). If Primeaux testified during Cumbie’s cross examination that he did not send
the text message confession to Sasi from Primeaux’s phone, and Cumbie then
impeached him with this extrinsic evidence, the jury would be instructed that the text
message was not being admitted to prove the truth of the matter asserted. See United
States v. Eagle, 498 F.3d 885, 888-89 (8th Cir. 2007). Being thus limited to the issue
of Primeaux’s credibility, admission of the text message confession would add almost
nothing of probative value to Cumbie’s “he did it” defense, especially in light of the
other evidence of Cumbie’s guilt, and it would likely trigger a distracting, confusing
mini-trial between Primeaux and Sasi regarding who authored a text message
confession written long after the illegal communications at issue.
The Confrontation Clause protects a criminal defendant’s constitutional right
to confront the witnesses against him. However, “trial judges retain wide latitude
insofar as the Confrontation Clause is concerned to impose reasonable limits on such
cross examination based on concerns about, among other things, harassment,
prejudice, confusion of the issues . . . or interrogation that is . . . only marginally
relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). That includes the
discretion to require a party to lay a proper foundation before presenting extrinsic
impeachment evidence under Rule 613(b). See United States v. Chavez, 979 F.2d
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1350, 1355-56 (9th Cir. 1992). For the reasons stated, the district court did not abuse
its discretion in limiting Cumbie’s use of Rule 613(b) in a manner that did not prevent
his assertion of the defense “that someone else committed the crime.” Holmes, 547
U.S. at 327.
II. The Batson Issue
“The government violates the equal protection clause if it uses a peremptory
strike to remove a potential juror solely because of his or her race.” United States v.
Lewis, 593 F.3d 765, 770 (8th Cir. 2010), citing Batson, 476 U.S. at 89. During voir
dire, the government used three of its six peremptories to strike black potential jurors.
Cumbie, who is black, objected to the strikes under Batson. After hearing the
government’s reasons for each strike, the district court denied Cumbie’s objections,
finding the reasons were race-neutral and not pretextual. The trial jury included one
black juror. On appeal, Cumbie argues the district court erred in denying his
objections because the government’s “pattern of strikes against black jurors, the
disparate questioning of black jurors, and the side-by-side comparisons of black
prospective jurors who were struck and white prospective jurors who were not,
establishes that the Government was motivated in substantial part by discriminatory
intent targeting black jurors based solely on race.” Our standard of review on this
issue is “highly deferential. On appeal, a trial court’s ruling on the issue of
discriminatory intent must be sustained unless it is clearly erroneous.” Flowers v.
Mississippi, 139 S. Ct. 2228, 2244 (2019) (cleaned up).
Batson provides a three-step process for determining when a strike is
discriminatory:
First, a defendant must make a prima facie showing that a peremptory
challenge has been exercised on the basis of race; second, if that showing
has been made, the prosecution must offer a race-neutral basis for
striking the juror in question; and third, in light of the parties’
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submissions, the trial court must determine whether the defendant has
shown purposeful discrimination.
Foster v. Chatman, 136 S. Ct. 1737, 1747 (2016) (quotation omitted). The standard
the government must meet to justify its use of peremptory strikes is “extremely low.”
Moran v. Clarke, 443 F.3d 646, 652 (8th Cir. 2006) (citation omitted). “[W]e have
upheld the use of very fine distinctions between jurors.” United States v. Morrison,
594 F.3d 626, 633 (8th Cir. 2010).
Cumbie’s first objection challenged the peremptory strike of Prospective Juror
(PJ) 2, a black male. The government stated that it struck PJ 2 because he had been
arrested and charged with battery a year before the trial and because his childhood
friend had been convicted for an offense also prosecuted by the United States Attorney
for the Eastern District of Arkansas. Cumbie argues that other prospective jurors who
had encounters with law enforcement or had close friends or family members
convicted of crimes were not struck. But PJ 2 was the only prospective juror charged
with a crime, and it happened only a year prior to the trial. The district court did not
clearly err in finding that the government’s race-neutral reason was not pretextual.
Cumbie’s second Batson objection challenged the government’s strike of PJ 5,
a black female. The government initially moved to strike PJ 5 for cause because she
was equivocal when asked whether she would consider the upbringing and maturity
of the victim in deciding the child pornography counts. The district court declined to
strike PJ 5 for cause. When the government then used a peremptory to strike PJ 5, the
court accepted this as a non-pretextual race-neutral reason. Cumbie argues other
prospective jurors were similarly equivocal regarding their ability to follow the law
as to a victim’s age or maturity but were not struck by the government. But he cites
statements from the court’s initial questioning whether anyone was uncomfortable
with the law. When the court then asked if anyone could not follow the law as stated,
the government struck three white jurors who raised their hands for cause. The court
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then asked who could follow the law. PJ 5 was the only prospective juror who did not
raise her hand. Although the court denied the government a strike for cause, a
peremptory “need not rise to the level justifying exercise of a challenge for cause.”
Batson, 476 U.S. at 97. The district court did not clearly err in finding that PJ 5’s
equivocation and indecisiveness regarding whether she could follow the law was a
nondiscriminatory race-neutral reason for the strike.
Cumbie’s final Batson objection challenged the government’s strike of PJ 14,
a black female. The government stated that it struck PJ 14 because her son and the
father of her children were both incarcerated, she became emotional when discussing
the impact of the father’s conviction on her family, and the jury would learn that
Cumbie, too, was a father. The court denied Cumbie’s Batson challenge, finding this
reason was not pretextual. Cumbie argues the government did not strike other
members of the jury pool whose close relatives had been arrested and convicted. But
PJ 14 was the only prospective juror whose close relative was in a family situation
similar to Cumbie’s, and was the only one who became noticeably emotional when
discussing the topic. “There is no Batson violation when a juror is dismissed because
the juror’s relatives have been prosecuted or convicted of a crime.” United States v.
Crawford, 413 F.3d 873, 875 (8th Cir. 2005). A juror’s “demeanor and body language
may serve as legitimate, race-neutral reasons” to distinguish and strike a juror. United
States v. Hampton, 887 F.3d 339, 342 (8th Cir. 2018) (cleaned up). The district court
did not clearly err in finding these were nondiscriminatory race-neutral reasons to
strike PJ 14.
III. The Biased-Juror Issue
After the close of argument but before deliberations, a juror emailed the district
court expressing concern about her safety “between today’s decision and sentencing,”
because she had heard a threatening comment Cumbie directed to Primeaux in open
court. Cumbie moved to strike the juror for bias, arguing the email showed the juror
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had decided the case prior to deliberations. The court denied the motion but then
questioned the juror in an in camera hearing. After the court answered the questions
posed by the juror in her email, the juror stated that she could fairly and impartially
deliberate the case with her fellow jurors. Cumbie then renewed his motion to strike
the juror, arguing that the juror is
extremely fearful of my client and what can happen in her words between
today’s decision and sentencing. I don’t know how that could not affect
her in her deliberations and make her less likely to reasonably consider
a not guilty verdict while deliberating.
Noting that any fear the juror had would “have her leaning toward . . . a not guilty
verdict as opposed to [guilty],” the court denied the motion. On appeal, Cumbie
argues the court abused its discretion in denying his motion to replace this juror with
an alternate. “If the record shows a legitimate basis for the district court’s decision to
retain the juror, there is no abuse of discretion. . . . [A] district court does not abuse
its discretion by refusing to excuse a challenged juror after the juror affirmed [her]
impartiality and the judge favorably evaluated [her] demeanor.” United States v. Dale,
614 F.3d 942, 959 (8th Cir. 2010) (citations omitted).
To protect a defendant’s right to a fair trial, “a jury must refrain from premature
deliberations in a criminal case.” United States v. Gianakos, 415 F.3d 912, 921 (8th
Cir. 2005). But here there is no evidence of premature deliberations among the jurors.
Nor is there evidence the concerned juror held any prior bias against Cumbie or
acquired extrinsic evidence outside the courtroom. Id. at 923. Her email to the district
court came after the final day of trial, when all evidence had been presented. Even if
the email raised an inference that the juror had formed a preliminary opinion before
going into deliberations, “there is nothing wrong with a juror being influenced by prior
testimony.” Id., citing United States v. Evans, 272 F.3d 1069, 1079-80 (8th Cir.
2001). Having observed the juror’s demeanor during the in camera hearing, the
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district court credited her assurance she could fairly and impartially deliberate with her
fellow jurors. The court not abuse its discretion in denying Cumbie’s motion to strike.
IV. Conclusion
For the foregoing reasons, the judgment of the district court is affirmed.
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