United States v. Caraway

FILED
United States Court of Appeals
Tenth Circuit

July 28, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 07-3229
THOMAS GUY CARAWAY,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 06-CR-40138-RDR)

Ronald E. Wurtz, Assistant Federal Public Defender, (David J. Phillips, Federal
Public Defender, with him on the briefs), Topeka, Kansas, for Defendant -
Appellant.

James A. Brown, Assistant United States Attorney, (Eric F. Melgren, United
States Attorney, with him on the brief), Topeka, Kansas, for Plaintiff - Appellee.

Before HARTZ, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
HOLMES, Circuit Judge.

HARTZ, Circuit Judge.

Thomas Guy Caraway was convicted by a jury in the United States District

Court for the District of Kansas of causing an explosive device to be delivered by
U.S. Mail and of possession of an explosive device during and in relation to a

crime of violence. He challenges his convictions on the grounds of insufficient

evidence to support the verdict and improper admission of evidence—namely, (1)

testimony about a witness’s prior statement, (2) a written copy of the prior

statement, and (3) testimony that a bomb-construction manual had been found on

his property. Exercising jurisdiction under 28 U.S.C. § 1291, we hold that there

was no reversible error and affirm his conviction.

I. BACKGROUND

On January 29, 2004, a rural mail carrier delivered a package to the home

of Daniel “Spud” Owens in Washington, Kansas. Because the package was too

large for the mailbox, the carrier left it in Owens’s pickup truck. The next day,

Owens’s son, Daniel, found the package in the truck and brought it into the living

room. Although the package was addressed to his father, Daniel, who had turned

13 two days before, thought that it could be a birthday present for him. He and

his father opened the cardboard packaging and removed what appeared to be a

toolbox. They set the toolbox on the couch and opened its latches. The box

exploded, propelling shotgun pellets in all directions. Daniel was hit in the

shoulder, and Owens was hit with 14 or 15 pellets in his left hand.

Inspection later revealed that the device had the following components:

First were two improvised shotgun barrels, each holding a 12-gauge shotgun

shell, welded onto a metal plate on the bottom of the device. The rear of each

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barrel was covered by a threaded-on end cap with a hole large enough to

accommodate the passage of a firing pin. The firing pin was cocked and held in

place by a spring. When the spring was released, the firing pin would strike the

shell and fire it. One of the firing pins was equipped with a washer, so that when

the pin was released, the washer would hit a toggle switch, flipping the switch to

complete an electrical circuit connected to four batteries. The batteries lit a

model-rocket ignitor inside a bag of gun powder within a PVC pipe, which would

explode upon ignition. As a final touch, a bottle of gasoline in the device was

apparently intended to cause a fire after the explosion. Luckily, only one

shotgun shell fired when the box was opened, and explosives experts safely

dismantled the rest of the device.

From the postal sticker on the package in which the device was shipped,

investigators determined that it had been mailed the day before from Wamego,

Kansas. The postal clerk in Wamego who had accepted the package recalled that

it had been wrapped in paper and tied with string and that the string had to be

removed before it could be mailed. He also remembered that the “to” and “from”

addresses had been reversed and had to be corrected. He described the sender as

a man of average build in his early twenties with light brown hair. A computer

record of the transaction showed that the postage had been paid with a $20 bill.

Mr. Caraway became a suspect in the investigation when investigators

learned that his ex-wife Denise, who had left him about seven months before, had

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become involved in a relationship with Owens, Mr. Caraway’s former best friend.

On February 6, 2004, investigators conducted a search of Mr. Caraway’s property

in Delia, Kansas. They discovered about a dozen items that resembled items

recovered from the explosive device.

The day after the search, postal inspectors interviewed Mr. Caraway’s son,

Shawn Caraway, who had been living with Mr. Caraway in Delia. Shawn, about

22 years old at the time, told the inspectors that he had seen the device sitting on

the coffee table in their living room. He gave them a description of the device

and also drew a diagram of it, but he denied having mailed it, a position he

maintained for nearly the next three years. On October 26, 2006, however, Shawn

told investigators that his father had given him a package and a $20 bill and asked

him to mail the package at the Wamego post office. He said that his sister,

Jessica Caraway, had given him a ride to the post office. Jessica had previously

denied knowing who mailed the bomb, but a week after Shawn told the inspectors

that he had mailed the package, she gave a written statement to postal inspectors

that she had driven Shawn to the Wamego post office.

On November 8, 2006, Mr. Caraway was charged in a three-count

indictment with causing an explosive device to be delivered by the U.S. Postal

Service, with intent to kill or injure another, see 18 U.S.C. § 1716(a) and (j)(2);

conspiracy to mail an explosive device, see id. §§ 371, 1716(a) and (j)(2); and

possession of an explosive device during and in relation to a crime of violence,

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see id. § 924(c)(1)(A) and (B)(ii). The conspiracy charge was dismissed before

trial. A jury found Mr. Caraway guilty of both remaining counts, and he was

sentenced to 30 years in prison.

II. DISCUSSION

A. Sufficiency of the Evidence

Mr. Caraway argues that his conviction must be reversed because the

evidence at trial was insufficient to support the jury’s verdict. We review

sufficiency-of-the-evidence challenges de novo, viewing all evidence in the light

most favorable to the government. United States v. Lamy, 521 F.3d 1257, 1267

(10th Cir. 2008). We will affirm the jury’s verdict “unless no reasonable jury,

when presented with the evidence introduced at trial together with the reasonable

inferences therefrom, could find the defendant guilty beyond a reasonable doubt.”

Id. (internal quotation marks omitted). “While the evidence supporting the

conviction must be substantial and do more than raise a mere suspicion of guilt, it

need not conclusively exclude every other reasonable hypothesis and it need not

negate all possibilities except guilt.” United States v. Burkley, 513 F.3d 1183,

1188–89 (10th Cir. 2008) (brackets and internal quotation marks omitted).

Several witnesses testified that Mr. Caraway had a difficult time with his

wife’s departure. His daughter Jessica testified that he was “mad” when Denise

left and that he called her a “bitch.” R. Vol. 5 at 415. Shawn said that his father

was initially hurt and surprised and then was “very obsessed” for several months.

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Id. Supp. Vol. 2 at 112. Mark Hight, a friend of Mr. Caraway’s, described him as

“depressed” and “possibly suicidal” after Denise left. Id. Vol. 6 at 514. Denise

testified that her ex-husband called her “all the time” after she left him and that

he was “very insistent” in urging her to return. Id. Vol. 5 at 469.

Abundant evidence was presented that Mr. Caraway had made threats

against Owens and Denise. Shawn testified that his father had said that Denise

“should get what’s coming to her,” that she “should die for what she did,” and

that he was going to “take her out.” Id. Supp. Vol. 2 at 16. Shawn also said that

his father, referring to both Denise and Owens, had said that he was going to

“blow them up.” Id. at 19. Jessica testified that her father had made threats

against Denise, such as that he would “put a cap in [her] ass,” id. Vol. 5 at 417,

and made “joking” threats against Owens, saying that he would “stomp a mud

hole in his head” or “take Spud down,”id. at 418. She said that the threats against

her mother had continued until the time of the explosion. Denise testified that

Mr. Caraway had once told her that “I ought to just put a cap in your ass,” id. at

474, and once told one of their children that he could blow up her car. And

Owens testified that two or three months before the device exploded at his house,

Mr. Caraway had called him, quizzed him about Denise, and said something like

“[you] better not do this.” Id. at 401–02.

The prosecution also offered evidence that Mr. Caraway had the technical

ability and experience to build the device. Several witnesses testified that

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Mr. Caraway was a very good mechanic, a “jack-of-all-trades,” Id. Supp. Vol. 2 at

25, who knew how to weld and who was capable of fixing nearly anything on a

vehicle. Shawn testified that his father had made firecrackers; Denise said that he

had made pop-bottle bombs and once blew up a washer or a dryer. Both Shawn

and Jessica recounted hearing loud bangs or explosions at the Delia property in

2003 and the beginning of 2004. Hight testified that he had found a book in

Mr. Caraway’s workshop that explained how to construct an explosive device

using barrels for single-shot 12- and 20-gauge shotguns.

In addition, there was substantial physical evidence suggesting a

connection between the explosive device and Mr. Caraway. When investigators

searched the Caraway property, they found a number of items that resembled

those found in the device, including duct tape, red tape, white PVC pipe of 1-inch

diameter, shotgun pellets, shotgun shell casings, blue and black wires, springs,

Triple Seven-brand gun powder, and toggle switches. Investigators also

recovered next to an empty paper dispenser a scrap of greenish paper that was of

about the same color and thickness as the greenish paper used to wrap the

package. Shawn testified that he and his father had used the paper when they

painted cars and that rolls of the paper had been present before the property was

searched. He did not know why none had been found when the search took place,

although he did testify that his father had warned him a day or two before the

search that he should “get stuff cleaned up” because the police might be searching

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the property. Id. at 78. Welding equipment and shotgun-shell reloading tools

were also found on the property.

Finally, Shawn’s testimony provided a direct link between the explosive

device and his father. Shawn testified as follows: Sometime before reading about

the explosion in the paper, he entered the house and saw the device on the coffee

table. His father was in the room and asked Shawn to get him a shotgun shell.

His father then explained to him how the device worked. At the time, Shawn

thought his father was just “goofing around.” Id. at 47. On January 28 his father

asked him to mail a package at the post office in Wamego, even though Delia had

its own post office. He gave Shawn the return and destination addresses and a

$20 bill for postage. Shawn asked Jessica to give him a ride to Wamego, which

she did. At the post office Shawn gave the package to the clerk, paying with the

$20 bill. When Shawn read about the explosion in the paper, he realized that the

package he had mailed had contained the device he had seen on the table.

Along with Shawn’s testimony, the government introduced the diagram of

the device that Shawn had drawn for investigators on February 7, 2004, the day

after the Delia property was searched. Mr. Caraway concedes that this diagram is

sufficiently detailed to establish that Shawn had seen the device before it

detonated, so we need not attach to this opinion a copy of Shawn’s drawing and a

photograph of the device after it detonated.

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 Despite evidence that he possessed the materials to assemble the device, the

technical knowledge and skill to construct it, and a motive to send it, and despite

testimony directly tying him to the device, Mr. Caraway argues that the evidence

presented at trial is insufficient to support his conviction. The essence of his

argument is that the government’s case depended on Shawn’s unbelievable

testimony. He points to several reasons to disbelieve Shawn: Shawn was

testifying under an agreement with the government, he had previously given

inconsistent statements about his role in mailing the device, he had been a heavy

methamphetamine user around the time the bomb was mailed, and his relationship

with his father admittedly had been rocky at times. Although these matters could

convince a jury to give less weight to Shawn’s testimony, the determination of

credibility is exclusively for the jury. See United States v. Bowen, 527 F.3d 1065,

1076 (10th Cir. 2008). In general, we “simply determine whether the evidence, if

believed, would establish each element of the crime.” United States v. Hanrahan,

508 F.3d 962, 968 (10th Cir. 2007). It clearly would. Mr. Caraway is not entitled

to a reversal of his conviction for insufficient evidence.

B. Evidence of Jessica’s Prior Statement

To begin our discussion of Mr. Caraway’s first two evidentiary challenges,

we provide a brief overview of some legal principles regarding use at trial of a

witness’s prior statements. Ordinarily a prior statement by a testifying witness

cannot be used at trial. If offered for the truth of the matter asserted, it is

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inadmissible hearsay unless, roughly speaking, the statement was sworn testimony

inconsistent with the witness’s trial testimony or, if consistent with the witness’s

trial testimony, is offered to rebut a charge that the witness’s trial testimony is a

recent fabrication or the result of an improper influence or motive. See Fed. R.

Evid. 801(d)(1). Evidence of a prior inconsistent statement can be used to

impeach the witness, see United States v. Bao, 189 F.3d 860, 866 (9th Cir. 1999),

but under the law of this circuit, a written statement offered for impeachment

cannot itself be introduced as evidence if the witness admits making that

statement, see United States v. Soundingsides, 820 F.2d 1232 (10th Cir. 1987).

Also, counsel may use a prior statement to refresh the recollection of a witness

who cannot remember a past event, see 4 Jack B. Weinstein & Margaret A.

Berger, Weinstein’s Federal Evidence, § 612.03 (2d ed. 2008), but doing so does

not render the document thereby admissible—the best practice being for the trial

court to have the witness silently read the material. See N.M. Sav. & Loan Ass’n

v. U.S. Fid. & Guar. Co., 454 F.2d 328, 337 (10th Cir. 1972); see also Fed. R.

Evid. 612 (use by opposing party of document used to refresh witness’s

recollection). Finally, in recognition of the difficulty jurors can have in

considering a prior inconsistent statement for impeachment purposes without also

improperly using the statement as substantive evidence of what it asserts, the

Carter doctrine in this circuit sets limits on prosecutorial use of prior inconsistent

statements. See United States v. Carter, 973 F.2d 1509 (10th Cir. 1992). Under

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Carter a prosecutor cannot ask a witness about a prior inconsistent statement by

the witness if the primary purpose of calling the witness is to have the jury hear

the prior statement and use it as substantive evidence of guilt, 1 even though it is

ostensibly offered only for impeachment.

We now turn to the specifics of this case. On direct examination by the

government, Jessica testified that in November 2006 she had given postal

investigators a written statement that she had driven Shawn to the post office on

January 28, 2004; in response to a later question, she asserted that she had not

taken Shawn to the post office and that the written statement had been a lie. A

copy of her written statement was admitted into evidence. (Although the record

does not reveal whether it was ever given to the jury, we will assume that it was).

In closing argument the prosecutor said that Jessica’s written statement

corroborated Shawn’s testimony, although the district court later instructed the

jury that the statement was to be considered only for impeachment. Mr. Caraway

argues (1) that it was error to admit the oral testimony regarding her prior

statement and for the prosecutor to use it as substantive evidence, and (2) that it

was error to admit the written statement into evidence.

1
The test stated in Carter can be read as focusing on the primary purpose in
introducing the evidence, id. at 1512, or as focusing on the primary purpose in
calling the witness, id. at 1512–13. We need not decide here which version
controls.

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 1. Presentation of Evidence at Trial

Leading up to the testimony in question, the prosecutor had asked Jessica

about her father’s reaction to her mother’s leaving, his threats to harm Owens and

her mother, whether she had heard explosions at her house in 2003, the type of

mechanical work her father did, and whether he had experimented with

explosives. On several occasions, when Jessica’s answer was inconsistent with

her grand-jury testimony, the prosecutor reminded her of that testimony, and she

sometimes modified her answer. The following exchange then took place:

Q. Okay. And then also at the grand jury you deny knowing who
mailed the bomb; is that correct?

A. Yes.

Q. Okay. And then later on, you gave a statement stating that you
had mailed the bomb or not—excuse me, I’m sorry, I misspoke. You
gave a statement that you drove Shawn Caraway to the post office
and he mailed the bomb at the post office. Do you remember that?

A. Yes, I made that statement.

R. Vol. 5 at 422. Jessica explained that she had felt pressured by her mother and

Owens to make the statement and that she had wanted investigators to leave her

alone because she was seven-months pregnant. The prosecutor then gave her the

written statement to review. He asked her to familiarize herself with it, to

confirm that it was written in her own hand, and to confirm that it was prefaced

with language stating that she had made the statement “of [her] own free will and

accord, without coercion, threat, or promise of reward.” Id. at 424 (internal

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quotation marks omitted). At that point, defense counsel objected that the

prosecutor’s questions were leading. The court overruled the objection. The

prosecutor then asked, “Did you drive Shawn Caraway to the Wamego post

office?” and Jessica answered, “No, I did not.” Id. at 425. The prosecutor again

asked if the statement said that it was made without coercion and if it was written

in her own hand. Jessica again offered an explanation for giving the statement

and said that she had lied in giving it. The prosecutor read the statement line by

line, asking Jessica to confirm or refute each sentence in it. She said that it was

all a lie.

After an interlude in which the prosecutor pursued an unrelated line of

questioning, the prosecutor moved to admit Government Exhibit 12, Jessica’s

written statement to the postal inspectors on November 2, 2006. Defense counsel

objected:

The statement, of course, is technically and clearly hearsay. She has
admitted every line in it. To admit it and give it to a jury — to the
jury would be prejudicial. She’s explained it, she’s talked about it.
And I think under Rule 403 it’s far more prejudicial than it is
probative, especially since she’s gone through every line and
explained every one already and the jury has heard it. To have this
go into the jury room serves no purpose, other than to bring contrary
testimony into the jury.

Id. at 432. The prosecutor responded, “As far as prejudice goes, any damage is

already done because it’s been read in open court.” Id. at 433. He added, “And

to feel better, we can give a limiting instruction stating that it can be offered for

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impeachment.” Id. To this, defense counsel objected that it was not

impeachment. The court then admitted the written statement.

After Jessica’s testimony, the government called Postal Inspector Paul

Mezzanotte, who had taken Jessica’s statement. He testified that he had

administered an oath to Jessica before taking her statement and that she had not

appeared to be under the influence of any coercion, threat, or promise. He said

that she had been a little upset but polite and that she had not hesitated in making

the statement that she drove Shawn to the post office. Mezzanotte testified that

after giving the statement, Jessica had met her mother and Owens outside and had

given them both hugs.

In closing argument the prosecutor addressed the credibility of Shawn’s

testimony. He asked them to consider whether Shawn appeared to be lying on the

stand and to take into account that Shawn’s motive for initially lying about

mailing the bomb was to protect himself and his sister. The prosecutor suggested

that Shawn’s story had always been consistent on its most important detail—that

he had seen the device at his house. He also urged the jury to consider whether

Shawn’s story was corroborated, and he said that it was in several respects:

Shawn’s description and diagram of the bomb matched the actual bomb, the types

of materials found in the house supported Shawn’s assertion that the bomb was

made in the house, and Jessica’s testimony about the threats and hearing

explosions matched Shawn’s. He continued: “Also, before she denied it on the

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stand, Jessica Caraway corroborated his statement to the postal inspectors that he

mailed it because, remember, Jessica Caraway had made a statement saying that

she drove Shawn to the Wamego post office before she denied it on the stand.”

Id. Vol. 8 at 659–60. This was a substantive use of Jessica’s prior inconsistent

statement; it was not being used just to impugn her veracity when testifying that

she did not drive Shawn to the post office.

At the close of trial the court gave the jury the following instruction:

You have heard evidence that before this trial certain witnesses made
statements that may be different from his or her testimony in court.
This is known as impeachment with a prior inconsistent statement.
These earlier statements were brought to your attention only to help
you decide how believable the testimony in this trial was. You
cannot use the earlier statements as proof of anything else. You can
only use them as one way of evaluating the testimony here in court.
Exhibit 12 and Exhibit C-4 are examples of earlier statements
introduced as prior inconsistent statements.

Id. Vol. 1, Doc 59, Instr. No. 33. Exhibit 12 was Jessica’s written statement.

2. Admissibility of Oral Testimony of Prior Statement

Mr. Caraway argues that it was error to admit Jessica’s oral testimony

about the prior statement and error for the prosecutor to use it as substantive

evidence. Because Mr. Caraway made no objection to the admission of the oral

testimony about the prior statement, we apply plain-error review. See United

States v. Lamy, 521 F.3d 1257, 1265 (10th Cir. 2008); Fed. R. Evid. 103(d).

“Plain error occurs when there is (1) error, (2) that is plain, which (3) affects

substantial rights, and which (4) seriously affects the fairness, integrity, or public

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reputation of judicial proceedings.” United States v. Gonzalez-Huerta, 403 F.3d

727, 732 (10th Cir. 2005) (en banc) (internal quotation marks omitted).

Mr. Caraway argues that the introduction of the testimony was a violation

of the Carter rule. See Carter, 973 F.2d at 1512–14. Carter, however, does not

apply to this fact situation. In Carter a witness for the government gave

testimony unfavorable to the government. Id. at 1511. The prosecutor then

impeached the witness with his prior statements to the contrary. Id. The

defendant argued on appeal that the court erred in allowing the impeachment

because the prosecutor knew how the witness was going to testify and called him

for the purpose of placing into evidence the impeachment testimony. Id. at 1512.

We disagreed with the defendant’s assessment of the prosecutor’s purpose but

acknowledged that “[t]he government may not introduce evidence of prior

statements under the guise of impeachment for the primary purpose of placing

before the jury substantive evidence which is not otherwise admissible.” Id.

(emphasis and internal quotation marks omitted). Carter, because of the risk that

the jury will misuse impeachment evidence, would exclude otherwise admissible

evidence when the record “clearly and unequivocally” establishes that the party’s

primary purpose in calling the witness or in asking the question was to utilize a

prior hearsay statement as substantive evidence. Id. at 1513. Because of the

proof required, reversible Carter error is rare (there is no example in our circuit).

Cf. United States v. Clifton, 406 F.3d 1173, 1185–86 (10th Cir. 2005) (Hartz, J.,

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concurring and dissenting in part) (discussing difficulties with the purpose

inquiry).

The reason that the oral testimony concerning Jessica’s prior statement

does not raise a Carter question is that it was not offered for impeachment. When

it was offered, she had yet to testify whether she had driven Shawn to the post

office. The prosecutor asked Jessica about her prior statement before he asked for

her current position. Although a different sequence of events could have

presented facts suited to a Carter analysis, Carter does not provide the

appropriate test here.

Nevertheless, it was improper for the government to elicit Jessica’s prior

statement before she gave inconsistent testimony and then to use that statement as

substantive evidence in closing argument. As just noted, Jessica’s statement to

investigators was not impeachment evidence because she had yet not testified to

the contrary. And it could not be used substantively because for that purpose it

would be inadmissible hearsay: an out-of-court statement offered to prove the

truth of the matter asserted, falling into no exception. See Fed. R. Evid. 801–804.

Had the prior statement first been introduced at the proper time—that is, after she

testified that she had not driven Shawn—it would still have been error for the

government to use it as substantive evidence in its closing argument. See

Regan-Touhy v. Walgreen Co., 526 F.3d 641, 651 (10th Cir. 2008).

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 In any event, even if we assume that there was Carter error, so that the

prior statement was not admissible for any purpose, the error does not rise to

plain error. We will not reverse a conviction for plain error unless all four prongs

of the plain-error test are satisfied. Here, the third prong—prejudice—has not

been satisfied.

Under the third prong, a defendant “must demonstrate a reasonable

probability that, but for the error claimed, the result of the proceeding would have

been different.” United States v. Fields, 516 F.3d 923, 944 (10th Cir. 2008)

(internal quotation marks omitted). In other words, Mr. Caraway must

demonstrate a reasonable probability that he would not have been found guilty if

Jessica’s prior statement had not been presented to the jury. Mr. Caraway argues

that without Jessica’s statement about giving her brother a ride to the post office,

Shawn’s testimony was “wholly uncorroborated” and was “significantly weaker.”

Aplt. Br. at 21. We disagree.

Shawn’s claim that his sister drove him to the post office is a relatively

minor detail, one that does not directly implicate Mr. Caraway. Contrary to

Mr. Caraway’s assertion, the core of Shawn’s testimony was substantially

corroborated, most critically by the diagram of the device he drew for

investigators, which Mr. Caraway concedes is proof that Shawn had seen the

device. In addition, both his sister and his mother corroborated his testimony

about the threats his father made, his sister corroborated his testimony that there

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were explosions on the Delia property in 2003, and the postal clerk corroborated

his testimony that he paid for postage with a $20 bill. Moreover, Shawn’s

testimony was merely one part of a strong case against Mr. Caraway. We cannot

say that it was reasonably probable that Jessica’s prior statement was a critical

factor for the jury.

3. Admissibility of Written Statement

Mr. Caraway argues that it was error for the district court to admit into

evidence the written copy of Jessica’s statement to postal inspectors. We

understand him to be making three arguments on appeal regarding the admission

of this statement: (1) that it was hearsay, (2) that it violated the Carter rule, and

(3) that it was improper to admit it because Jessica did not deny having made the

statement. We address each in turn.

Mr. Caraway timely raised at trial a hearsay objection to the written

statement. We have already explained why the content of the statement, if used

substantively, would be inadmissible hearsay. If admitted for impeachment

purposes, however, it is not hearsay. The district court gave a jury instruction

that stated that prior inconsistent statements are admitted “only to help you decide

how believable the testimony in this trial was,” R. Vol. 1, Doc. 59, Instr. No. 33,

and told the jury that it could not “use the earlier statements as proof of anything

else,” id. This instruction explicitly referred to Exhibit 12. Mr. Caraway has not

argued that the instruction was inadequate in informing the jury that the statement

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was admissible only for impeachment. Thus, the prior statement was admitted

only for the proper purpose of impeachment, and the jury was given a limiting

instruction not to use it substantively. The court did not improperly admit

hearsay.

As for the Carter issue, we have already observed that Mr. Caraway made

no Carter objection at trial, and our review is therefore for plain error. Even if he

could establish a Carter error here, Mr. Caraway cannot demonstrate plain error

for the same reason discussed above: given the relative unimportance of the

statement and the strong evidence of his guilt, he cannot show the required

prejudice.

Mr. Caraway’s last allegation of error regarding Jessica’s written statement

is that it was admitted “[n]otwithstanding her admissions on the stand.” Aplt. Br.

at 17. When the government moved to introduce the written statement, she had,

as defense counsel protested, already “admitted every line in it.” R. Vol. 5 at

432. In Soundingsides, 820 F.2d 1232, we held that the district court had erred in

allowing the government to present extrinsic evidence of prior inconsistent

statements by two witnesses, both of whom admitted making the statements. We

explained: “Where the witness does not deny making a prior inconsistent

statement, there is clearly no rationale for the introduction of a prior inconsistent

statement.” Id. at 1240 (internal quotation marks omitted). We did not address in

Soundingsides whether those particular errors would in themselves require

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reversal; we held only that in light of the weak, circumstantial murder case

against the defendant, the admission of the prior statements together with the

improper admission of evidence of the defendant’s beatings of a former girlfriend

was not harmless error. Id. at 1243.

We hold that the improper admission of Jessica’s written statement was

harmless error. As previously stated, the evidence was hardly central to the trial.

Moreover, the jury had already heard the entire statement, broken down line by

line, and any additional emphasis on it that resulted from the admission of the

written statement was minimal. “[A] non-constitutional error is harmless unless it

had a substantial influence on the outcome or leaves one in grave doubt as to

whether it had such effect.” United States v. Griffin, 389 F.3d 1100, 1104 (10th

Cir. 2004) (internal quotation marks omitted). We do not believe that the

admission of the statement had such an influence on the outcome of the case.

C. Evidence of Bomb Book

Mr. Caraway’s friend Mark Hight testified at trial that he used to

manufacture methamphetamine in the Caraways’ garage—a large, multiroom

outbuilding also referred to as the “shop” or the “shed.” Hight recalled that

approximately six months to a year before the search of the property, he found a

paperback book, an “ATF book” (although no connection was shown to the

Bureau of Alcohol, Tobacco, and Firearms). It was in the middle of the shop,

near some dressers and “some stuff somebody was storing there.” R. Vol. 6 at

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520. The book, Hight said, contained instructions and illustrations for making

explosive devices, including how to make “bombs in barrels for single-shot 20-

and 12- gauge shotguns.” Id. at 522. Hight said that he took the book home with

him and then loaned it to a friend, who did not return it. He never saw

Mr. Caraway with the book, or any other book. On cross-examination, he said

that the “stuff” near where the book was found belonged to a Calvin Mounkes.

Mr. Caraway argues that the district court erred in admitting Hight’s

testimony about the bomb book because (1) it was irrelevant, and (2) its minimal

probative value was substantially outweighed by the danger of unfair prejudice.

He raised this objection in a motion in limine and renewed it at trial. “We review

challenges to admissibility of evidence solely for abuse of discretion.” United

States v. Chisum, 502 F.3d 1237, 1241 (10th Cir. 2007) (internal quotation marks

omitted).

Under Federal Rule of Evidence 401, evidence is relevant if it has “any

tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be

without the evidence.” Irrelevant evidence is inadmissible. Fed. R. Evid. 402. A

matter of consequence in this case was whether Mr. Caraway had the knowledge

to construct the explosive device. Evidence that there was at one time a book in

Mr. Caraway’s workshop that explained how to make an explosive device similar

to the one sent to Owens makes his possession of that knowledge more probable.

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 Mr. Caraway argues, however, (1) that the evidence was too remote in time

from the alleged construction of the device to be relevant, in that the book “had

been removed from his place before the motive for revenge even arose,” Aplt. Br.

at 26, and (2) that the book was not adequately connected to Mr. Caraway (after

all, it was found near someone else’s belongings). We are not persuaded. First,

we do not agree with this characterization of the timing. Denise testified that she

left her husband in June 2003, which is approximately seven months before the

device was mailed. Hight, although uncertain of the exact time frame, estimated

that he saw the book 6 to 12 months before the mailing. Second, even if the book

was removed from the shop before Denise left, and even though it may not have

been among Mr. Caraway’s belongings, his access to the book (it was on his

property) sometime that year still supports an inference that he read the book

before its removal and used the information he took from it when constructing the

device. The striking similarity between the bomb and the portion of the book

described by Hight could persuade a rational fact finder that the book’s presence

on the Caraway’s property was no mere coincidence. The district court could

properly determine that the evidence was relevant under Rule 401.

To be sure, relevant evidence is not necessarily admissible. Under Federal

Rule of Evidence 403, relevant evidence “may be excluded if its probative value

is substantially outweighed by the danger of unfair prejudice,” which

Mr. Caraway argues is the case here. Mr. Caraway characterizes the bomb-book

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testimony as “strong evidence,” Aplt. Br. at 25, and aligns it with the evidence of

his threats to Owens and his wife, his mechanical skills, his prior construction of

bombs, and the items found on his property that matched bomb components. But

probative evidence, even very probative evidence, is not to be confused with

prejudicial evidence. “Evidence is not unfairly prejudicial simply because it is

damaging to an opponent’s case.” United States v. Curtis, 344 F.3d 1057, 1067

(10th Cir. 2003) (internal quotation marks omitted). To be unfairly prejudicial,

the evidence must have “an undue tendency to suggest decision on an improper

basis, commonly, though not necessarily, an emotional one.” Fed. R. Evid. 403

advisory committee’s note. Mr. Caraway points to no such tendency. If the jury

inferred that Mr. Caraway had read the book, that inference was properly

inculpatory. If the jury did not believe that he had read it, the jury was highly

unlikely to hold against him that such a book was found on his property. Because

Mr. Caraway has shown no danger of unfair prejudice, such danger could not

have “substantially outweighed” the evidence’s probative value, and the district

court did not abuse its discretion in admitting it.

D. Cumulative Error

Mr. Caraway argues that the cumulative effect of any errors requires a new

trial. We have identified both unpreserved errors (reviewed for plain error) and a

preserved error (reviewed for harmless error). The unpreserved errors were the

premature admission of evidence of Jessica’s prior inconsistent statement and the

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prosecutor’s improper substantive use of Jessica’s prior statement in closing

argument; we also assumed a Carter error, which was unpreserved. The

preserved error was the admission of the written statement itself, as opposed to

the oral testimony of its contents.

As this court has previously noted, there are inherent problems in

cumulating unpreserved error (reviewed for plain error) with preserved error

(reviewed for harmless error). See United States v. Fields, 516 F.3d 923, 951

(10th Cir. 2008). For one, reversal on harmless-error review is mandatory when

the error is sufficiently prejudicial; in contrast, reversal for unpreserved error on

plain-error review is discretionary. See id. at n.15. “Injecting issues rejected on

plain-error grounds into cumulative harmless-error review would allow a party to

argue for mandatory reversal based on matters that, having been forfeited at trial,

should be left to the discretion of the appellate court guided by the four-part

[plain-error] test.” Id. For another, “the party who carries the burden also

differs according to the review invoked,” with the defendant bearing the burden

of proving prejudice on plain-error review and the government bearing the burden

of proving harmlessness on harmless-error review. Id. If we reviewed the

cumulation of preserved and unpreserved error for harmless error, we would

undermine plain-error review. For example, under that procedure if there was one

trivial preserved error that could not possibly have influenced the jury, the

government would need to prove the cumulative harmlessness of the unpreserved

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errors; whereas without the trivial preserved error, the defendant would have to

prove prejudice (as well as the fourth prong of the plain-error test). As a result, a

defendant who had identified unpreserved error but could not overcome the third

and fourth prongs of the plain-error test need only find an inconsequential

preserved error to reverse the burden of persuasion on the third prong (that is,

require the government to show no prejudice) and eliminate the fourth prong

altogether.

Therefore, when there are both preserved and unpreserved errors,

cumulative-error analysis should proceed as follows: First, the preserved errors

should be considered as a group under harmless-error review. If, cumulatively,

they are not harmless, reversal is required. If, however, they are cumulatively

harmless, the court should consider whether those preserved errors, when

considered in conjunction with the unpreserved errors, are sufficient to overcome

the hurdles necessary to establish plain error. In other words, the prejudice from

the unpreserved error is examined in light of any preserved error that may have

occurred. For example, the defendant may not be able to establish prejudice from

the cumulation of all the unpreserved errors, but factoring in the preserved errors

may be enough for the defendant to satisfy his burden of showing prejudice. If

so, the fourth prong of plain-error review must then be examined.

Applying this approach, we first note that there is only one preserved error,

so there is no cause for a cumulative harmless-error analysis. We thus ask

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whether Mr. Caraway, grouping the preserved error and the unpreserved errors

together, can establish prejudice. We conclude that he cannot. The question

whether the introduction of testimony regarding Jessica’s prior statement affected

Mr. Caraway’s substantial rights was not a close one. Any additional harm

resulting from the preserved error—the admission of the written statement (as

opposed to the oral testimony describing the statement)— was far too slight to

push the prejudice over the line. Mr. Caraway has not met his burden of showing

that absent the errors that we have identified or (with respect to the Carter error)

assumed, the outcome of the trial would have been different.

III. CONCLUSION

We AFFIRM Mr. Caraway’s conviction.

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