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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 18-11917 Non-Argument Calendar ________________________
D.C. Docket No. 2:17-cr-00189-KD-B-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
GERALD BARBER,
Defendant - Appellant.
________________________
Appeal from the United States District Court for the Southern District of Alabama ________________________
(April 17, 2019)
Before MARTIN, NEWSOM and BLACK, Circuit Judges.
PER CURIAM: Case: 18-11917 Date Filed: 04/17/2019 Page: 2 of 14
Gerald Barber appeals his two convictions for possessing with intent to
manufacture and distribute 80.8 grams of cocaine base, 21 U.S.C. § 841(a)(1),
(b)(1)(B), and possessing with intent to distribute 3.4 grams of cocaine base,
21 U.S.C. § 841(a)(1). Barber contends the district court violated his rights under
Federal Rules of Evidence 806 and the Sixth Amendment by preventing him from
introducing a perjury conviction regarding a non-testifying person, and by
prohibiting him from cross-examining a witness to impeach the non-testifying
person. After review, we affirm Barber’s convictions.
I. BACKGROUND
The relevant facts are as follows. Prior to Barber’s January 2018 trial, the
Government filed an ex parte motion for a pretrial ruling on evidence under seal
arguing that evidence not be subject to disclosure. Specifically, the Government
argued that an October 21, 2003 incident involving a police sergeant who assisted
in Barber’s arrest should not be discoverable at Barber’s trial because it was not
material, as the Government did not intend to call the sergeant at trial. The
Government argued that the sergeant, Nash Gipson, was “not critical to the
Government’s case in chief” and was not needed to establish a chain of custody for
the contraband at issue in Barber’s case. The district court granted the motion as to
whether the information was discoverable and ordered the Government to disclose
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information regarding Gipson as possible Brady1 material. The district court
denied the Government’s motion for pretrial ruling as to the admissibility of the
evidence, as Barber had not yet had an opportunity to respond to the motion.
The Government then filed a motion in limine requesting the court prohibit
Barber from referencing Gipson’s 2003 conduct at trial because it should be
inadmissible. Barber responded to the motion, arguing that a prohibition on
referring to Gipson’s conviction would violate his Fifth and Sixth Amendment
rights because Gipson’s credibility was a “central issue[] in the trial of this case.”
Barber also filed evidence of Gipson’s 2006 guilty plea 2 for, and convictions of,
bribing a witness and perjury in his warrant affidavit by falsely stating that his
criminal informant had witnessed a cocaine base sale.
At the start of trial, the court asked for a proffer from Barber regarding
Gipson’s conviction. Barber stated that he would wait to make a proffer depending
on what happened in the Government’s case. The court ordered Barber to refrain
from mentioning Gipson’s conviction in his opening statement.
During trial, Chief of Police Willie Walton testified to the following. On
April 12, 2017, Walton was patrolling when he saw Mark Jones, a man Walton
1 Brady v. Maryland, 373 U.S. 83 (1963). 2 While the incident took place in 2003, Gipson pled guilty to bribing a witness and perjury in 2006. 3 Case: 18-11917 Date Filed: 04/17/2019 Page: 4 of 14
knew to have several controlled substance offenses for cocaine use. Jones was
standing next to a white SUV with expired tags, speaking to the person in the
driver’s seat. Jones noticed and recognized Walton and ran away. Walton
activated his lights and siren, the white SUV sped away, and Walton gave chase.
While Walton was pursuing the SUV, he noticed the driver make a “throwing
motion” and saw something exit the vehicle on Washington Street. Walton
continued his chase and saw the driver make a second “throwing motion” and
something exit the vehicle toward a brick house on Lucian Street. Walton called
for backup, and other officers, including Gipson, blocked off the road ahead of
Walton and corralled the white SUV toward the road block, ending the car chase.
Walton took the driver out of the vehicle, at which point a “little white rock”
fell from the driver’s lap and Walton noticed “a bunch of white residue around [the
driver’s] mouth . . . and []foaming at the mouth.” The driver did not have a
driver’s license, but told Walton his name, Gerald Barber. There was also a
passenger in the car, Robert Hosea, who cooperated with the police. Walton drove
to the Washington Street site where he first observed the “throwing motion,” but
was unable to find the item thrown out of the window. Gipson took Hosea to the
site of the second “throwing motion” on Lucian Street. Walton went to Lucian
Street to meet Gipson, at which point he “saw a black bag in front of [the house]
and [he] took some pictures of it while it was on the ground.” Inside the bag,
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Walton saw 16 clear plastic bags with “an off-white substance inside” each.
Walton also searched the white SUV and found measuring jars, a mixer, and digital
scales, all with off-white residue.
On cross examination, Walton testified that Gipson searched Hosea and,
because Hosea was cooperating, he was not arrested. Walton also confirmed that
Gipson and Hosea had arrived on Lucian Street first, and when asked if “they were
pointing to you about where they saw some[thing,] correct?” Walton responded
that “[Gipson] was [and] Hosea was still in the car.” Walton responded
affirmatively when asked, “you wrote your report collectively with what Gipson
told you?” Walton then testified that Hosea did not leave the car while at Lucian
Street. When asked, “you relied on Gipson’s statements to you that ‘we found this
right here,’ correct?” Walton replied, “[y]eah, Mr. Hosea pointed out.”
Barber stated “[a]nd you know that’s a problem with Gipson; correct?” The
Government objected, and the district court sustained the objection. Barber then
made a motion to be able to cross-examine Walton “about the fact that Gipson has
been convicted of perjury in the past,” because Barber argued that he had formed
the foundation that Walton “relied on statements given by Gipson.” The district
court denied the motion, and Walton was dismissed after redirect.
Next, Hosea testified. On the date of the incident, Hosea was walking when
Barber stopped and offered him a ride. Hosea got into the passenger side and they
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drove off. After some time, a man that Hosea knew to be a cocaine user flagged
them down and Barber and the man began having a conversation. Hosea saw
Barber with a black bag on his lap that he was preparing to give to the man, but
then Walton arrived and turned on his lights. Barber fled the scene over Hosea’s
protests and Barber stated, “I can’t stop, man. I can’t stop. I’m going to prison for
a long time. I can’t stop.” Hosea observed Barber throw the black bag out of the
window while passing a house on Lucian Street and saw Barber put a white
substance from the bag into his mouth. When the chase ended, Hosea agreed to
cooperate and show the officers where he saw Barber throw the bag. Hosea
returned to Lucian Street with Gipson where he saw the black bag. On cross-
examination, Hosea testified that, when he went with Gipson to Lucian Street, he
exited the car with him to look for the black bag. Hosea stated that Walton arrived
just a minute and a half after he and Gipson arrived. Hosea denied owning the
black bag or the drug paraphernalia and denied putting the drugs in the yard.
At the start of the next day of trial, Barber proffered that he should be
allowed to present Gipson’s perjury conviction to the jury under Federal Rule of
Evidence 607 because it was “critical to this case, given Chief Walton’s testimony
that he relied on Gipson’s account as to who found the drugs and where the drugs
were.” The court, confused, questioned, “[w]ait. So you are not making a proffer
to put Mr. Gipson on; you are making a proffer that you should be able to impeach
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Mr. Gipson by calling Mr. Walton again?” Barber confirmed that he would “[n]ot
necessarily impeach Gipson” with this evidence, but that he wanted to show that
Walton knew about the conviction and the possible credibility issue. The court
stated that Barber would have the right to call Gipson in light of the inconsistent
testimony between Hosea and Walton regarding whether Hosea had left the car at
Lucian Street and because Walton testified that “he relied on [Gipson’s] version
for his determination of things.” Otherwise, the court stated that Barber could not
impeach Gipson through Walton. Barber argued that he wanted to question
Walton’s credibility because he relied on Gipson, who was an unreliable source.
The court requested case law to support Barber’s argument, and Barber admitted
that, “in looking at the research that I was able to do, I don’t have any case law. I
don’t have any case law on point, exactly on point, with this case.” The court
asked if Barber was going to call Gipson, and Barber stated that he had yet to
decide.
After the Government rested, the defense did not call Gipson or any
witnesses. The jury found Barber guilty of both Counts 1 and 2 and the district
court sentenced him to 120 months’ imprisonment.
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II. DISCUSSION
A. Rule 806
Barber argues the district court denied him “the opportunity to expose
Gipson’s perjury as bearing on his credibility.” Barber argues that Gipson’s
credibility entered the case through Walton’s testimony that Gipson directed him to
where the black drug bag was located such that it became “critical to the defense
that the jury learn of his perjury.” Barber argues this reliance amounted to hearsay
on Gipson’s part such that Gipson’s character was subject to attack under Federal
Rule of Evidence 806. Specifically, Barber argues that “[w]hen Walton testified
that Gipson directed him to the drug bag, Walton was relat[ing] Gipson’s out-of-
court assertion which was offered for the truth that ‘we found this [drug bag] right
here.’” Barber contends this was a hearsay statement that subjected Gipson to
attack under Rule 806 because Gipson was effectively a witness and, had Gipson
testified at trial, his perjury conviction would have been admissible pursuant to
Rule 608(b) and 609(a)(2) as a “powerful impeachment” attack on his credibility.
As an initial matter, while Barber argued in his response to the
Government’s motion in limine that a prohibition on referring to Gipson’s
conviction would violate his Fifth and Sixth Amendment rights because Gipson’s
credibility was a “central issue[] in the trial of this case,” and he argued during the
trial that he should be allowed to examine Walton regarding Gipson’s credibility
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pursuant to Federal Rule of Evidence 607, he never made the argument that
Gipson’s credibility could be attacked through Walton’s testimony pursuant to
Rule 806. In fact, when the district court asked for law to support Barber’s
impeachment of Gipson through the testimony of Walton, Barber responded that
“in looking at the research that I was able to do, I don’t have any case law. I don’t
have any case law on point, exactly on point, with this case.”
“While we normally review evidentiary rulings for abuse of discretion,
arguments raised for the first time on appeal are reviewed for plain error.” United
States v. Carthen, 906 F.3d 1315, 1320 (11th Cir. 2018). Under plain error review,
we may not correct an error not raised at trial unless there is “(1) error, (2) that is
plain and (3) that affects substantial rights.” United States v. Turner, 474 F.3d
1265, 1276 (11th Cir. 2007). Even if all three conditions are met, we may exercise
our discretion only if “the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.” Id.
Rule 806 states that, “[w]hen a hearsay statement . . . has been admitted in
evidence, the declarant’s credibility may be attacked, and then supported, by any
evidence that would be admissible for those purposes if the declarant had testified
as a witness.” Fed. R. Evid. 806. Hearsay is an out-of-court statement offered into
evidence to prove the truth of the matter asserted. Fed. R. Evid. 801(c). A
“statement” is (1) an oral or written assertion or (2) nonverbal conduct of a person,
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if it is intended by the person as an assertion. Fed. R. Evid. 801(a). The test for
Rule 806 “is whether the out-of-court statements would have been admissible for
impeachment purposes had the [declarant’s] statements been delivered from the
witness stand by the [declarant] . . . as contemporaneous in-court statements.”
United States v. Grant, 256 F.3d 1146, 1154 (11th Cir. 2001).
Even assuming, without deciding, that Barber were able to show error that is
plain in failing to allow cross-examination of Walton regarding Gipson’s
credibility using Rule 806, Barber cannot show that his substantial rights were
affected. Importantly, Barber refused to call Gipson as a witness when the district
court gave him the opportunity. The district court even suggested a reason to call
Gipson as a witness, and Barber declined to do so. There is no record evidence of
Gipson being unavailable, and Barber need not have made this argument on appeal
had he brought Gipson as a witness and put his conviction into evidence under
Federal Rules of Evidence 607 and 609. Thus, any argument his substantial rights
were affected is undermined by his trial decision to avoid calling Gipson.
Likewise, Barber’s failure to call Gipson as a witness makes him unable to show
any potential error affected the fairness, integrity, or public reputation of judicial
proceedings. Barber has not met the requirements of plain error, and we affirm as
to this argument.
B. Confrontation Clause
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Barber also contends the Government “sought to shield Gipson’s credibility
from scrutiny” by not calling him as a witness, even in the face of conflicting
testimony between Walton and Hosea regarding whether Hosea had left the patrol
car to look for the bag with Gipson. Barber argues that resolving this discrepancy
was “critical to the defense” because his theory was that the drugs and drug
paraphernalia belonged to Hosea. He asserts the court violated his Sixth
Amendment right to recall Walton and cross-examine him regarding his reliance
on Gipson’s hearsay. He contends that, for the jury to have adequately assessed
Walton’s credibility, they “needed to know if Walton was aware of Gipson’s
perjury conviction.”
The Court reviews de novo whether a defendant’s Sixth Amendment rights
were violated. United States v. Ignasiak, 667 F.3d 1217, 1227 (11th Cir. 2012).
“The denial of a defendant’s Confrontation Clause right to cross-examination is
examined for harmless error.” United States v. Ndiaye, 434 F.3d 1270, 1286 (11th
Cir. 2006).
The Confrontation Clause provides that “[i]n all criminal prosecutions, the
accused shall enjoy the right … to be confronted with the witnesses against him.”
U.S. Const. Amend. VI. It guarantees criminal defendants an opportunity to
impeach, through cross-examination, the testimony of witnesses for the
prosecution. United States v. Baptista-Rodriguez, 17 F.3d 1354, 1366 (11th Cir.
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1994). However, the accused is “entitled only to an opportunity for effective
cross-examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.” Id. (quotations omitted). District court
judges “retain wide latitude insofar as the Confrontation Clause is concerned to
impose reasonable limits on cross-examination based on concerns about,” among
other things, confusion of the issues or interrogation that is “only marginally
relevant.” Id. (quotations omitted). “Once there is sufficient cross-examination to
satisfy the Sixth Amendment’s Confrontation Clause, further questioning is within
the district court’s discretion.” United States v. Garcia, 13 F.3d 1464, 1468 (11th
Cir. 1994). We look to “whether a reasonable jury would have received a
significantly different impression of the witness’ credibility had counsel pursued
the proposed line of cross-examination.” Id. at 1469.
To the extent Barber argues the Government “sought to shield Gipson’s
credibility from scrutiny” by not calling him as a witness, even in the face of
conflicting testimony, that argument fails. The district court specifically asked
Barber if he wanted to call Gipson as a witness because it believed that he “would
have a right to call [Gipson] because you have had inconsistent testimony . . . and
also, the fact that now [Walton] has said he relied on [Gipson’s] version for his
determination of things.” Barber had the opportunity to call Gipson, but chose not
to. A strategic choice is grounds to affirm a district court’s prohibition on bringing
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certain evidence regarding a non-witness. See United States v. Maxwell, 579 F.3d
1282, 1298 (11th Cir. 2009) (holding constitutional a court’s prohibition on cross-
examining a witness on an issue the defendant himself could have presented as
“evidence in his own case” by calling a separate witness, but instead, the defendant
made “the tactical decision not to call [the non-witness] as his own witness”).
As to Barber’s argument the court violated his Sixth Amendment right to
recall Walton to cross-examine him, Barber’s right to cross-examine Walton was
not unlimited, and he was “entitled only to an opportunity for effective cross-
examination, not cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish.” Baptista-Rodriguez, 17 F.3d at 1366
(quotations omitted). The district court had “wide latitude” to impose a reasonable
restriction on cross-examining Walton to prevent the “confusion of the issues” or
interrogation that was “only marginally relevant.” Id. The presentation of a 12-
year old prior conviction of a non-testifying witness could confuse the issue for the
jury. Id. Indeed, the district court itself appeared confused by such a request from
Barber, stating, “[w]ait. So you are not making a proffer to put Mr. Gipson on;
you are making a proffer that you should be able to impeach Mr. Gipson by calling
Mr. Walton again?” Further, unlike in Baptista-Rodriguez, Gipson’s conviction
did not touch upon a “central factual issue of the case” such that, by presenting the
evidence, Barber had a “persuasive argument” in his favor. Id. at 1366-67.
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Barber’s argument that Gipson’s conviction was “critical to the defense” because
his theory was that the drugs and drug paraphernalia belonged to Hosea is
unavailing. There was sufficient evidence from Barber’s cross-examination of
both Walton and Hosea to support Barber’s strongest defense—that the drugs had
belonged to Hosea—yet, the jury nevertheless found against him. The
Government presented Hosea’s testimony that he observed Barber throw the black
bag from the truck and admit that, “I can’t stop. I’m going to prison for a long
time. I can’t stop.” Also, Walton testified that he personally saw the black bag in
the same location where he saw Barber throw an item from his truck during the
chase.
Thus, the introduction of the conviction could have confused the jury and
there was other convincing evidence in the record supporting Walton’s testimony
such that the conviction was not an “especially important area[] of inquiry” for
Barber’s defense. Baptista-Rodriguez, 17 F.3d at 1366. Barber chose not to call
Gipson, he had his opportunity to cross-examine Walton and Hosea regarding the
key component of his defense, and the district court had discretion to limit that
cross-examination. Garcia, 13 F.3d at 1468.
Thus, we also affirm the district court as to this argument. Barber’s
convictions are AFFIRMED.