United States v. Wilson

355 F.3d 358, 63 Fed. R. Serv. 40, 2003 U.S. App. LEXIS 26095, 2003 WL 22995120
Court of Appeals for the Fifth Circuit·Decided December 22, 2003·No. 02-30739·Published·Cited by 18 cases

Opinion

EMILIO M. GARZA, Circuit Judge:

Calvin Odom, a/k/a Butch Wilson (“Odom”), was convicted of conspiracy to possess with intent to distribute 50 grams or more of cocaine base and five kilograms or more of cocaine hydrochloride in violation of 21 U.S.C. §§ 841(a)(1) and 846, and conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(a)(1)(A). He timely appealed his conviction, challenging three evidentiary rulings and the jury selection procedure. We AFFIRM Odom’s conviction, finding the evidentiary rulings were not an abuse of the district court’s discretion, and the jury selection procedure was not reversible error.

I

The facts established at trial are as follows. Odom was the head of an organization that distributed cocaine from Los An-geles, California, where he resided, to Shreveport, Louisiana. Packages of cocaine were sent from Los Angeles to Shreveport by car or in Federal Express packages. In Shreveport, Odom’s half-brother, James McDade (“McDade”), either sold the cocaine or used other dealers to sell the cocaine. Wayne Kelly (“Kelly”) and Andre Osborne (“Osborne”), who both pleaded guilty prior to testifying at trial, were sent to Shreveport by Odom to assist in distributing the cocaine and laundering the profits generated. Odom occasionally traveled to Shreveport to monitor the business.

The money was usually sent back to California through Western Union in the name of fictitious senders. The cash was retrieved by five women in California at thirty different locations. The money was sent from approximately twelve different Western Union locations in the Shreveport area. The women who picked up the money were all involved in romantic relationships with Odom. They testified at trial they retrieved the money at his request and gave it to him. They also testified they were abused by Odom.

At trial, most of the testimony was by Odom’s co-conspirators. However, the evidence regarding the wire transfers included a witness who identified and analyzed the Western Union payment records, the records themselves, and expert testimony. Additionally, the arresting officers testified that Odom tried to escape arrest by driving backwards out of the parking lot until his car was rammed by the arresting agents.

II

Odom first challenges three evidentiary rulings by the district court: the admission of testimony about Odom’s physical abuse of his female co-conspirators, of a letter written by Osborne, and of expert witness testimony by an Internal Revenue Service (“IRS”) special agent. We review a district court’s evidentiary rulings for abuse of discretion. United States v. Griffin, 324 F.3d 330, 347 (5th Cir.2003).

Odom asserts the admission of testimony regarding his physical abuse of his female co-conspirators was erroneous under Fed.R.Evid. 403 because the probative value of the evidence was substantially outweighed by the danger of undue preju *361 dice. 1 Under Rule 403, relevant evidence can be excluded only if the danger of unfair prejudice substantially outweighs its probative value. United States v. Pace, 10 F.3d 1106, 1115-16 (5th Cir.1993). Here, although the physical abuse testimony introduced the risk that a juror could have convicted Odom based on his behavior toward the women, it also suggested the women were motivated by fear of Odom. Thus, the testimony made a central issue, whether the women acted at Odom’s behest when they picked up the money, more likely. The district court has broad discretion to weigh the relevance, probative value and prejudicial effect of the evidence. United States v. Bermea, 30 F.3d 1539, 1562 (5th Cir.1994). This evidence substantiated a central issue in the ease and accordingly the district court did not abuse that discretion when it held the probative value of the testimony was not substantially outweighed by its danger of unfair prejudice.

Odom also challenges the district court’s admission of a letter written by Osborne as a prior consistent statement under Fed. R. Evid. 801(d)(1)(B). Osborne testified at trial that Odom sent him to Shreveport to assist McDade and Kelly in distributing cocaine. He also testified that he sold crack for Odom. On cross-examination, the defense focused on the benefits Osborne derived from his plea agreement with the government, implying these benefits were a motivation to fabricate testimony. On re-direct, the government introduced a letter Osborne wrote to McDade while in prison three years prior to the government’s plea bargain. In the letter, Osborne referred to cocaine that McDade handled for Odom and threatened to tell Odom that McDade had been cheating him if McDade did not provide Osborne with money to pay for an attorney.

Under Rule 801, a prior statement of a declarant subject to cross-examination that is consistent with the declarant’s testimony at trial is admissible if offered to “rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive.” Fed. R. Evid. 801(d)(1)(B). Osborne’s letter was consistent with his testimony at trial implicating Odom as the head of the cocaine distribution organization and, as such, it rebutted the implication that Osborne was lying to attain the benefits of his plea bargain. Rule 801 also contains a temporal requirement that the prior consistent statement must have been made “before the charged recent fabrication or improper influence or motive.” See Tome v. United States, 513 U.S. 150, 167, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995). Even though Osborne may have also had a motive to fabricate when he wrote the letter, considering Osborne wrote his letter three years earlier, while in prison on an unrelated charge, to a person who could not directly help Osborne avoid prison time, the district court did not abuse its discretion in concluding that the motive to write the letter was different than the motive to fabricate arising from his plea bargains charged at trial. A prior consistent statement need not rebut all motives to fabricate, but only the specific motive alleged at trial. See United States v. Allison, 49 M.J. 54, 57 (C.A.A.F.1998) (interpreting Mil. R. Evid. 801(d)(1)(B), the armed forces verbatim counterpart to Rule 801(d)(1)(b)); Dowthitt v. Texas, 931 S.W.2d 244, 264 (Tex. Crim.App.1996) (interpreting TexR.CRIm. *362 Evm.

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United States v. Wilson, 355 F.3d 358, 63 Fed. R. Serv. 40, 2003 U.S. App. LEXIS 26095, 2003 WL 22995120 (5th Cir. 2003).

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