United States v. Shaver

89 F. App'x 529
CourtCourt of Appeals for the Sixth Circuit
DecidedFebruary 27, 2004
DocketNo. 02-2259
StatusPublished
Cited by11 cases

This text of 89 F. App'x 529 (United States v. Shaver) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Shaver, 89 F. App'x 529 (6th Cir. 2004).

Opinion

PER CURIAM.

Defendant-Appellant Robert Shaver appeals from his conviction by a federal jury, on the grounds that the trial judge violated his Fifth Amendment right against self-incrimination and his Sixth Amendment right to confront his accusers by restricting him from eliciting exculpatory portions of his own confession on cross-examination [531]*531of a prosecution witness. In the alternative, he appeals his sentence as based on clearly erroneous findings of fact. We affirm the jury verdict and the sentence of the district court.

I

Shaver was convicted of mail fraud, in violation of 18 U.S.C. § 1341. His defense was that he had merely followed the financial instructions of his late mother. Beverly Shaver, in blissful ignorance of her fraudulent scheme.

Beverly Shaver had managed medical transcription services at Bronson Methodist Hospital (“Bronson”) in Kalamazoo. Michigan, selecting and managing contractors who transcribed Bronson’s medical records. In this capacity, she had Bronson pay out over $291,000 to an entity called Outsource Providers, an entity that provided no services and existed only to collect the funds. This fraud was discovered only after Beverly Shaver’s death from cancer.

Shaver himself was the owner of record of Outsource Providers. He endorsed most of the Bronson checks, depositing them in bank accounts that he also owned, he used those funds to pay for a house and vehicles for himself and his mother. He owned the postal box to which the checks were sent, and he paid for an answering service to take telephone calls for Outsource Providers.

On August 2, 2000, Shaver admitted most of these facts to United States Postal Inspector Keith Fixel when Fixel executed a search warrant for Shaver’s home. At the same interview, Shaver told Fixel that he had no idea that Outsource Providers was spurious, and that he had innocently followed his mother’s instructions.

At trial, Fixel testified to Shaver’s admissions. Shaver attempted on cross-examination of Fixel to elicit his own exculpatory statements. The district court, however, refused to allow this, because Shaver had not independently introduced his exculpatory story. Only after Shaver himself testified to his ignorance of the fraudulent scheme did the court allow him to recall Fixel and question him on direct about the exculpatory statements.

Shaver was found guilty and was sentenced to 27 months in prison and three years of supervised release. This sentence reflected the addition of offense levels for obstructing justice and for more-than-minimal planning. Shaver appeals, claiming that the court’s restriction of his cross-examination of Fixel violated the Constitution, and in the alternative challenging his sentence.

II

The district court allowed Fixel to testify to Shaver’s admissions under the hearsay exception for admissions against interest, set forth in Fed.R.Evid. 801(d)(2), but there is no hearsay exception that would allow Fixel to testify to Shaver’s hearsay exculpatory statements made in the same interview. We review evidentiary decisions such as exclusion of hearsay for abuse of discretion. United States v. Wright, 343 F.3d 849, 865 (6th Cir.2003); see General Elec. Co. v. Joiner, 522 U.S. 136, 142, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997). An abuse of discretion occurs “when we are left with the definite and firm conviction that the [district] court committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors or where it improperly applies the law or uses an erroneous legal standard.” United States v. Haywood, 280 F.3d 715, 720 (6th Cir.2002) (quotation omitted). Even if there was an abuse of discretion, the jury verdict will not be overturned if we can say with assurance [532]*532that the verdict was not “substantially swayed” by the error. Id. at 724 (quoting Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)).

A. Self-Incrimination and the Doctrine of Completeness

Shaver argues that the district court ignored the doctrine of completeness, which in Shaver’s view required the court to allow Shaver to introduce the exculpatory material on cross-examination, Because the district court erred. Shaver argues, he had no alternative but to take the stand himself to introduce the material, despite his right to refuse to testify. Shaver misconstrues the scope of the doctrine of completeness, and the nature of his Fifth Amendment right against self-incrimination.

The doctrine of completeness allows a party who is prejudiced by his adversary’s introduction of part of a “document, or a correspondence, or a conversation,” to enter so much of the remainder as is necessary to explain or rebut a misleading impression caused by the “incomplete character” of that evidence. United States v. Costner, 684 F.2d 370, 373 (6th Cir.1982) (quoting United States v. Littwin, 338 F.2d 141, 145 (6th Cir.1964)). This doctrine was partially codified as Federal Rule of Evidence 106:

When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that 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. Federal Rule of Evidence 611(a) states that “[t]he court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth.” This rule is the “equivalent” of Rule 106 for oral statements. J. Weinstein and M. Berger, Evidence, II 106[01] (1986). As codified, Rules 106 and 611(a) merely affect the order of the trial. Costner, 684 F.2d at 373. To forestall any “misleading impression created by taking a statement out of context,” the proponent’s adversary may present the context along with the statement rather than later in the trial, Ibid. Rules 106 and Rule 611(a) do not help Shaver because they do not make inadmissible evidence admissible. Ibid.; accord United States v. Collicott, 92 F.3d 973 (9th Cir.1996).

Costner might be taken to imply that nothing survives of the common-law doctrine of completeness save that which was codified in Rule 106, but the Supreme Court subsequently held that Rule 106 only “partially codified” the doctrine. Beech Aircraft Corp. v. Rainey, 488 U.S. 153

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Bluebook (online)
89 F. App'x 529, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-shaver-ca6-2004.