United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 27, 2005
_______________________ Charles R. Fulbruge III
Clerk
No. 04-50455
_______________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TIMOTHY MICHAEL WALKER,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Texas
Before JONES, WIENER, and CLEMENT, Circuit Judges.
EDITH H. JONES:
Appellant Timothy Michael Walker was convicted of one
count of conspiring to possess with intent to distribute over fifty
grams of crack cocaine and one count of possessing with intent to
distribute over fifty grams of crack cocaine. Due to his two prior
felony drug convictions, the Government sought and received an
enhanced sentence of a mandatory term of life imprisonment. On
appeal, Walker raises three issues: the court’s exclusion,
pursuant to FED. R. EVID. 807, of a videotaped police interview of
a witness; the admission in evidence of two prior drug convictions;
and the court’s failure strictly to follow 21 U.S.C. § 851(b)
enhancement procedure. Of these, only the first issue is
problematic.
BACKGROUND
On November 5, 2003, Police Officer Margarita Venegas was
called to the West Wind Hotel in Midland, Texas, to respond to a
disturbance in the parking lot. When she arrived, she saw Walker
walking away, toward the hotel. Ignoring her order to stop, he
started running toward Room 21. He opened the door, threw some
items into the room and then was detained by Officer Venegas.
Officer Caleb Edwards searched Walker and found some cash and empty
plastic bags. Walker was arrested for evading detention.
Meanwhile, in Room 21, Venegas found three women. Denise
Asbury, Walker’s sister, was in the bathroom, flushing the toilet
several times. Police officers searched the room with Asbury’s
consent and found a small amount of what appeared to be crack
cocaine in the bathroom. Asbury, the room renter, was arrested for
possession of cocaine. The other two women were also arrested:
Cookie Maxwell on an outstanding warrant for theft by check, and
Ramona Gregory for giving a false name.
At the jail, Asbury was observed dropping a plastic bag
of what appeared to be crack cocaine into a garbage can. Testing
later confirmed that the bag contained 108 grams of crack cocaine.
About this time, Walker was observed with a plastic bag inside his
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mouth. It was removed, and the white residue it contained tested
positive for cocaine.
While at the jail, Gregory agreed to give a video
statement in which she said that the items thrown into the room by
Walker were a phone charger, a piece of paper, and a large plastic
bag that contained crack cocaine. According to Gregory, Asbury
then took this bag and went into the bathroom. Gregory said that
Walker had been in possession of the same bag earlier in the
evening in Room 21, and that it was this bag that Asbury put in the
trash can at the jail.
Maxwell also gave a video statement at the jail. Maxwell
said that Walker threw a cell phone and a piece of paper into the
room. She denied, however, that either Walker or Asbury had been
in possession of any drugs. She said that the first time she had
seen any drugs was when Asbury put them in the garbage can in the
jail.
Walker pled not guilty and went to trial. Asbury
testified against Walker as part of a plea bargain. She admitted
that they had both been selling crack from Room 21 for two weeks
and that Walker was her supplier. Asbury said that Walker threw a
bag of crack cocaine into Room 21 when he opened the door. Gregory
also testified at trial that she had been in the room smoking crack
cocaine and that Walker had thrown a bag of crack cocaine into the
room when he opened the door.
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Maxwell could not be found at the time of the trial.
Walker sought to enter into evidence her video statement that she
had never seen any cocaine until Asbury threw it into the garbage
can at the jail. On the Government’s objection, the judge refused
to allow it into evidence.
The Government presented two prior drug convictions of
Walker for the purpose of showing his intent. The convictions also
were used to enhance his sentence under 21 U.S.C. § 841(b)(1)(A).
Walker was convicted and sentenced to life in prison.
Analysis
Walker first argues that the district judge should have
admitted the videotape of the interview with Maxwell under the
residual hearsay exception of Rule 807 of the Federal Rules of
Evidence. The exception provides:
A statement not specifically covered by Rule 803 or 804
but having equivalent circumstantial guarantees of
trustworthiness, is not excluded by the hearsay rule, if
the court determines that (A) the statement is offered as
evidence of a material fact; (B) the statement is more
probative on the point for which it is offered than any
other evidence which the proponent can procure through
reasonable efforts; and (C) the general purposes of these
rules and the interests of justice will best be served by
admission of the statement into evidence. . . .
FED. R. EVID. 807.1
1
Congress created Rule 807 because the Advisory Committee believed it
“presumptuous to assume that all possible desirable exceptions to the hearsay
rule have been catalogued and to pass the hearsay rule to oncoming generations
as a closed system.” The subject matter of Rule 807 was initially embodied in
two separate sections, Rule 803(24) and Rule 804(b)(5). No change in meaning was
intended by the transfer. FED. R. EVID. 803 Advisory Committee’s Note.
4
This court reviews decisions to admit or exclude evidence
for abuse of discretion. United States v. Phillips, 219 F.3d 404,
409 (5th Cir. 2000). The residual hearsay exception “is to be
‘used only rarely, in truly exceptional cases.’” Id. at 419 n.23
(quoting United States v. Thevis, 665 F.2d 616, 629 (5th Cir.
1982)). We “will not disturb the district court's application of
the exception absent a definite and firm conviction that the court
made a clear error of judgment in the conclusion it reached based
upon a weighing of the relevant factors.” Phillips, 219 F.3d at
419 n.23 (internal citations and quotations omitted).2
Walker points to the Ninth Circuit’s decision in United
States v. Sanchez-Lima, 161 F.3d 545 (9th Cir. 1998), to argue that
the residual hearsay exception should apply in the instant case.
In Sanchez-Lima, the Ninth Circuit reversed the lower court’s
refusal to admit testimonial videotapes of interviews. Sanchez-
Lima, charged with the assault of two border patrol agents, offered
several videotapes from a defense investigator containing
interviews with other members of his group who were attempting to
cross the border illegally. The interviews tended to show that the
border patrol agents did not identify themselves and that Sanchez-
2
Even if we were to find an abuse of discretion in the court’s refusal
to admit Maxwell’s interview, the conviction could be reversed only if that error
affected Walker’s substantial rights. The jury learned, however, that all three
women in Room 21 initially denied to the police that Walker had thrown a bag of
narcotics in the door. We assume, nevertheless, that Walker could establish the
requisite level of harm.
5
Lima appeared to be acting in self-defense. The interviewees were
deported before the trial and were unavailable to testify.
Reversing the district court, the Ninth Circuit held that
all three elements of the Rule 807 exception had been satisfied.
The court noted further that the testimony was trustworthy because
the interviewees:
(1) were under oath and subject to the penalty of
perjury; (2) made the statements voluntarily; (3) based
the statements on facts within their own personal
knowledge; (4) did not contradict any of their previous
statements to government agents and defense
investigators; and (5) had their testimony preserved on
videotape which would allow the jurors an opportunity to
view their demeanor.
Id. at 547. The case was remanded for retrial with consideration
of the videotape evidence.
This court has distinguished Sanchez-Lima and upheld the
exclusion of interview transcripts, see United States v. Perez, 217
F.3d 323 (5th Cir. 2000), based on the deference owed to the trial
court and testimony at trial by an INS Agent who estimated that
ninety percent of undocumented immigrants lie when questioned by
the INS. Id. at 330. Further, the Perez interviewees were not
under oath, whereas the interviews in Sanchez-Lima “were made under
oath and the aliens were subject to the penalties of perjury, the
testimony was preserved on videotape, and the witnesses were
subject to cross-examination.” Id. at 330 n.30.
Walker contends that Maxwell’s interview more closely
resembles those of Sanchez-Lima than Perez. Although not under
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oath, Maxwell was making a formal statement to police, and “faced
serious consequences for any false statement to the officers.”
And, unlike the other women, who recanted at the police station and
admitted to the presence of drugs in the room, Maxwell steadfastly
denied in her video statement that she saw any drugs in Room 21.
Walker also notes that although the unavailability of cross
examination is a key reason to exclude hearsay, Maxwell’s
videotaped interview was actually conducted by police, giving it
greater indicia of trustworthiness than the interviews in Sanchez-
Lima, which were conducted by a defense investigator. Finally,
Walker argues that as Maxwell’s interview was videotaped, the jury
could make their own assessments of Maxwell’s trustworthiness.
This is a closer case than Perez, but we nonetheless find
Walker’s arguments unavailing. The lodestar of the residual
hearsay exception analysis is whether there exist “equivalent
circumstantial guarantees of trustworthiness.” FED. R. EVID. 807;
MCCORMICK ON EVIDENCE 345 (John W. Strong ed., 1999). The fact is, as
the Government notes in its brief, “Maxwell was in a room with a
lot of cocaine.” Cocaine had been found in the bathroom and one of
the other women was hiding cocaine on her person. This situation
differs dramatically from Sanchez-Lima because the videotape
interviewees in that case were already subject to deportation and
had no incentive to lie about whether or not it appeared that the
border patrol agents were attacking Sanchez-Lima. Sanchez-Lima,
161 F.3d at 547. Maxwell, on the other hand, was not under oath,
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was being interviewed by police at a police station, and was facing
the threat of criminal charges. She had every incentive to lie.
Her disappearance before trial confirms her lack of
trustworthiness.
Walker also asserts that the district court’s failure to
admit the videotape evidence violated the compulsory process clause
of the Sixth Amendment, an error that must be reviewed de novo.
Perez, 217 F.3d at 326. He claims that he was prevented from
presenting a defense because he was unable to introduce into
evidence the videotaped interview. An accused does not, however,
have “an unfettered right to offer testimony that is incompetent,
privileged or otherwise inadmissible under standard rules of
evidence.” Taylor v. Illinois, 484 U.S. 400, 410-11 (1988).
Walker also argues that because the Government found the Maxwell
videotape adequate when seeking an indictment of Asbury before a
grand jury, it is disingenuous to object to its use in Walker’s
defense. Grand jury proceedings, as Walker’s counsel know, are not
bound by the same rules of evidence as judicial proceedings. FED.
R. EVID. 1101(d)(2).
The next issue concerns the district court’s admission
into evidence of two 1987 convictions of Walker for delivery of
cocaine by actual transfer. Walker’s trial counsel objected,
arguing that the convictions would be more prejudicial than
probative and that they were too remote to be probative for the
issues presented by the Government.
8
Admissibility of the prior convictions under FED. RULE
EVID. 404(b) is governed in this Court by the familiar Beechum test,
United States v. Beechum, 582 F.2d 898 (5th Cir. 1978) (en banc),
and is subject to review for abuse of discretion. Here, we find no
abuse. Walker put his intent at issue by pleading not guilty.
Because Walker was not charged with simple possession, but rather
with intent to distribute and conspiracy to distribute, his state
of mind with regard to the cocaine was a critical element of both
crimes. Further, while the convictions were old, this court has
sanctioned consideration of “old” evidence on other occasions, see,
e.g., United States v. Hernandez-Guevara, 162 F.3d 863, 872-73 (5th
Cir. 1998) (eighteen years); United States v. Chavez, 119 F.3d 342,
346-47 (5th Cir. 1997) (fifteen years), and has noted that “the age
of the prior conviction does not bar its use under Rule 404.”
United States v. Broussard, 80 F.3d 1025, 1040 (5th Cir. 1996) (ten
years). Finally, the court adequately cautioned the jury as to the
limited use of the convictions.
Walker’s last complaint is that the judge failed to allow
him to affirm or deny his enhancement convictions in open court, a
procedural device provided in 21 U.S.C. § 851(b)3 in connection
3
21 U.S.C. § 851(b) provides, in pertinent part:
Affirmation or denial of previous conviction. If the United States
attorney files an information under this section, the court shall
after conviction but before pronouncement of sentence inquire of the
person with respect to whom the information was filed whether he
affirms or denies that he has been previously convicted as alleged
in the information, and shall inform him that any challenge to a
prior conviction which is not made before sentence is imposed may
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with enhanced life sentences. 21 U.S.C. § 841(b)(1)(A). As he did
not bring this deficiency to the court’s attention, his claim is
reviewed for plain error. United States v. Thomas, 348 F.3d 78, 86
(5th Cir. 2003). Plain error review is satisfied if there is
(1) an error, (2) that is clear, and (3) affects defendant’s
substantial rights. United States v. Olano, 507 U.S. 725, 732
(1993). If all three of these factors are satisfied, this court
should address the error only if it “seriously affects the
fairness, integrity, or public reputation of judicial proceedings.”
Id. at 736 (quoting United States v. Atkinson, 297 U.S. 157, 160
(1936)).
Perhaps there was plain error here, but it did not harm
Walker’s substantial rights. This court has refused to remand in
the face of preserved error where, as here, there is some fulfill-
ment of § 851(b) requirements. See United States v. Majors, 328
F.3d 791, 796 (5th Cir. 2003). In Majors, the Court excused strict
compliance where the defendant failed to explain how he would
challenge the offenses that led to the enhancement. Walker’s only
substantive challenge to the prior convictions has been rejected by
this court. United States v. Barr, 130 F.3d 711, 712 (5th Cir.
1997) (offenses treated separately when they occurred between
not thereafter be raised to attack the sentence.
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identical parties on sequential days). There was no reversible
error.4
CONCLUSION
For these reasons, the judgment of conviction and
sentence are AFFIRMED.
4
Walker’s assertion that his mandatory life sentences are unconsti-
tutional based on Apprendi v. New Jersey, 530 U.S. 466 (2000), is foreclosed by
circuit precedent. United States v. Moreno, 289 F.3d 371, 372-373 (5th Cir.
2002).
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