PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-4439
PATRICK ALBERT BYERS, JR.,
Defendant-Appellant.
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 09-4677
FRANK KEITH GOODMAN,
Defendant-Appellant.
Appeals from the United States District Court
for the District of Maryland, at Baltimore.
Richard D. Bennett, District Judge.
(1:08-cr-00056-RDB-1; 1:08-cr-00056-RDB-2)
Argued: January 28, 2011
Decided: May 6, 2011
Before TRAXLER, Chief Judge, and
MOTZ and KEENAN, Circuit Judges.
Affirmed by published opinion. Chief Judge Traxler wrote the
opinion, in which Judge Motz and Judge Keenan joined.
2 UNITED STATES v. BYERS
COUNSEL
ARGUED: Marc Gregory Hall, HALL & CHO, PC, Rock-
ville, Maryland; Mary Elizabeth Davis, DAVIS & DAVIS,
Washington, D.C., for Appellants. John Francis Purcell, Jr.,
OFFICE OF THE UNITED STATES ATTORNEY, Balti-
more, Maryland, for Appellee. ON BRIEF: Rod J. Rosen-
stein, United States Attorney, Baltimore, Maryland, for
Appellee.
OPINION
TRAXLER, Chief Judge:
Patrick Albert Byers, Jr., and Frank Keith Goodman were
convicted on charges stemming from a 2007 conspiracy and
murder of a witness to prevent him from testifying against
Byers in an upcoming state murder trial. Byers and Goodman
appeal, challenging several evidentiary rulings by the district
court. Goodman also appeals the denial of his motion to sup-
press. For the reasons that follow, we affirm.
I.
A.
The government presented strong evidence tying Byers and
Goodman to the killing of Carl Lackl and offered a motive for
the killing: Lackl was the prosecution’s primary witness in the
upcoming murder trial of Byers for the March 2006 murder
of Larry Haynes, and Lackl was expected to be the only wit-
ness to place Byers at the scene of that murder. Byers
attempted to refute the purported motive by attacking the
strength of the state’s case against him for the 2006 Haynes
murder and the reliability of Lackl as an eyewitness. Thus, the
identity of Byers as the person at the scene of the Haynes
UNITED STATES v. BYERS 3
murder became a critical part of the Lackl case. In response
to Byers’s strategy, the government sought to bolster Lackl’s
credibility and value as a witness by introducing evidence to
prove identity, and hence motive, that Byers had previously
shot another person in a drug dispute in the same block on
North Montford Street where Haynes was killed.
B.
The evidence at trial showed the following chronology. On
May 24, 2004, Carlile Coleman was staying at a house located
at 506 North Montford Street in Baltimore. The homeowner
gave Coleman permission to set up a temporary car wash
stand in front of the house. Business was brisk, and Coleman
enlisted the help of two assistants. At some point, a person
named "Pierre," who Coleman believed was a drug dealer,
confronted Coleman and accused him or one of his assistants
of taking drugs out of Pierre’s car, presumably when they
were washing it. Pierre demanded payment for the drugs, but
Coleman denied having taken the drugs. A scuffle ensued,
and Pierre broke a broom across Coleman’s back. Coleman,
however, did not give Pierre any money for the purportedly
missing drugs.
Following the altercation, Pierre left and Coleman went
inside the house. Pierre, however, returned with Byers, who
was concealing a gun under his shirt, and they forced their
way into the house. Coleman attempted to flee, but Byers shot
him in the buttocks. Coleman testified that Byers stood over
him as he lay on the floor and said, "I’m going to kill you."
J.A. 1076. Byers then pressed the gun against Coleman’s
stomach, shot him and left. Coleman sustained substantial
injuries that required an extended hospital stay. When he had
recovered enough to talk to the police, investigators came to
the hospital and presented a photo array to Coleman. Coleman
identified Byers as his assailant.
About two years later, Byers was implicated in another
shooting in the North Montford Street area. On March 4,
4 UNITED STATES v. BYERS
2006, Larry Haynes was shot and killed within a block of
where Coleman was shot. Around 3:30 p.m., Baltimore Police
Detective Thomas Martin was sent to the scene and recovered
.40 caliber shell casings and a .40 caliber bullet nearby. Also
during the investigation of the murder scene, police recovered
a .40 caliber semiautomatic handgun in an adjacent alley on
the 500 block of North Montford Street.
While he was still at the scene, Detective Martin was
informed that Carl Lackl had contacted police and claimed to
have witnessed the shooting. Detective Martin interviewed
Lackl later that afternoon. Lackl explained that he and Connie
Mays were driving along North Montford Street and stopped
on the 500 block for Lackl to urinate. He stepped into an
alley. Lackl then heard several gunshots, stepped out of the
alley and observed a man he did not know running in Lackl’s
direction along North Montford Street. Lackl saw the man
throw a gun onto the roof of a garage right next to an alley
across the street from the alley Lackl was in. This gun was
later recovered by law enforcement.1 The man continued run-
ning in a northbound direction and made eye contact with
Lackl as he passed him. Lackl then saw Haynes, who had
been shot eight times, lying on the ground about one-half
block away. Lackl approached Haynes to see if he could help
but left him there at the insistence of Mays.2 When Lackl
returned home, he recounted what he had witnessed to his gir-
lfriend Malinda Humes and told her he wanted to call the
police and report the shooting. Although Humes, fearing
potential retribution from the suspect, advised him not to "get
involved," Lackl contacted police headquarters and met with
Detective Martin. According to Detective Martin, Lackl’s
1
Because police found the gun lying on the ground in the alley rather
than on the roof of the garage, Detective Martin surmised that the gun sim-
ply "bounced off and landed in the alley." J.A. 993.
2
Mays testified that she and Lackl drove to North Montford Street to
purchase crack cocaine. Mays wanted to leave the scene of the shooting
to avoid getting caught with the drugs she had just bought.
UNITED STATES v. BYERS 5
description of where the suspect discarded the firearm "pre-
cisely" matched the actual location where police had recov-
ered the firearm earlier.
Fortuitously, Baltimore City Police that same day arrested
Joseph Parham on unrelated drug possession charges. Accord-
ing to Detective Martin, Parham volunteered information
about the Haynes murder, explaining that he also had been on
North Montford Street earlier that day and had observed a
person he knew only as "Pat" arguing with Haynes. Parham
was standing close by when he heard gunshots and then saw
Pat shoot Haynes. Parham, who lived on North Montford
Street, knew both Pat and Haynes from his neighborhood and
knew Haynes dealt drugs in that area. Moreover, Parham told
Detective Martin that this was not the first North Montford
Street shooting in which Pat had been involved. Parham did
not know Pat’s full name, but he knew that Pat previously had
"shot a car wash guy in the 500 block of Montford" about "a
half block from where . . . Haynes was murdered." J.A. 950.
Detective Martin then consulted police records to find out
who "Pat" was and found the file on the 2004 shooting of
Coleman on the 500 block of North Montford Street. Detec-
tive Martin learned that, as Parham had suggested, a suspect
named "Pat"—Patrick Byers—had been arrested for shooting
Coleman. Police records contained a photograph of Byers,
which Detective Martin then used in compiling a photo array
of "suspects" in the Haynes shooting, containing photographs
of Byers and six other individuals. Parham identified Byers
from this array as the person who shot Haynes.
Having obtained Byers’s name and photograph from the
Coleman file, Detective Martin took a similar photo array to
Lackl’s home. Lackl identified Byers as the man he saw run-
ning from the area where Haynes was shot. According to
Detective Martin, Lackl’s identification "seemed very cer-
tain." J.A. 1006. Lackl then wrote, "I Carl Lackl believe that
. . . the person I picked out is the person that threw the gun
6 UNITED STATES v. BYERS
onto the roof of the garage," and signed his name. J.A. 1007
(internal quotation marks omitted).
Based on the identifications by Parham and Lackl, Detec-
tive Martin arrested Pat Byers for shooting Haynes and
charged him with first degree murder. Byers admitted that he
and his associates were involved in the sale of heroin in the
North Montford Street area. Byers further admitted having
been in the North Montford Street area around the time of the
shooting to check on his drug sales for the day. Byers also
conceded that he knew Haynes and that he believed Haynes
had recently shot and killed Byers’s cousins. Nevertheless,
Byers claimed that there were no problems between him and
Haynes. Detective Martin did not reveal that police had
already recovered the gun, but Byers volunteered that he had
hidden a gun near a garage on North Montford Street and that
he had intended to turn it over to an "Officer Kevin" in
exchange for having drug charges against him dropped.
As Byers’s trial for the Haynes murder approached, Parham
began to express reluctance to testify. In April 2007, with trial
scheduled for July 10, 2007, Parham recanted his identifica-
tion of Byers and claimed that he fabricated the entire story.
Thus, Lackl became the sole eyewitness in the Haynes murder
case.
On July 2, 2007, with trial scheduled to begin in one week,
Lackl was shot to death in front of his home on Philadelphia
Road. Lackl had been trying to sell his used Cadillac and had
received a call that evening from someone claiming to be
interested in buying the car. The caller indicated he was in the
area, so Lackl went outside and waited with his young daugh-
ters in front of his house. When a car subsequently stopped in
front of his house, Lackl approached. Before he reached the
car, however, an occupant sitting in the front passenger seat
shot Lackl three times and killed him.
Baltimore County police officers were dispatched to
Lackl’s home to investigate the shooting and learned that
UNITED STATES v. BYERS 7
Lackl had been expected to testify the following week in a
state murder trial at which Byers would be facing a first
degree murder charge. Byers was in state custody when Lackl
was killed.
Investigating officers traced phone calls coming into
Lackl’s residence on the day of the murder (including calls
just minutes before the murder) to a cell phone owned by
Marcus Pearson. Ultimately, Pearson cooperated and admitted
his role in Lackl’s murder. According to Pearson, in June
2007, Goodman offered Pearson $2500 to kill Lackl for
Byers, explaining that Byers was facing trial on murder
charges and needed to eliminate Lackl as a witness. Pearson
agreed to "take care of it" and called Byers, who had a contra-
band cell phone with him in jail, to verify the $2500 offer for
Lackl’s murder. J.A. 733; 736-37. The government introduced
evidence seized from Byers’s jail cell shortly after the murder,
including documents containing Lackl’s home address. Pear-
son testified that Goodman gave him this same address as
well as Lackl’s phone number. Goodman also informed Pear-
son that Lackl was selling a used Cadillac, information Pear-
son used to lure Lackl out of his house.
Rather than commit the murder himself, Pearson, a member
of the "Bloods" street gang, recruited Jonathan Cornish, a
young gang member known as a "baby gangsta," to do the
actual shooting. As a "baby gangsta," Cornish was obligated
to perform the murder for free.
On the day of the murder, Pearson supplied Cornish with
a handgun and directed Cornish and Michael Randle, also a
member of the Bloods, to follow Pearson and Tammy Gra-
ham, Pearson’s girlfriend, to Lackl’s house. Graham knew
nothing about the murder-for-hire scheme; Pearson simply
told her to drive down Philadelphia Road so that he could
look at a car that was for sale. On the way, Pearson intended
to use a "burner" phone that he had acquired solely for the
purpose of making an untraceable call to Lackl before the
8 UNITED STATES v. BYERS
murder. Pearson told Lackl on the phone that he was inter-
ested in the Cadillac, that he was nearby, and that Lackl
should wait for him outside. As they drove by Lackl’s house
without stopping, Pearson and Graham saw Lackl standing by
his car in the front yard. Cornish and Randall also passed by
initially but then returned. As Cornish and Randall came to a
stop, Lackl approached the front passenger window where
Cornish was sitting. Cornish shot Lackl twice while he was
standing and a third time after he fell to the ground. Moments
after killing Lackl, Cornish called Pearson and reported that
he had finished the job. In turn, Pearson immediately called
Byers and reported that Lackl was dead; Byers then indicated
that other prisoners wanted to have witnesses eliminated as
well. Pearson disposed of the burner phone on the way home;
however, he had mistakenly used his personal cell phone to
make the call to Lackl, and that phone call eventually led
police to him.
Within 15 minutes of the shooting, Pearson called Good-
man’s cell phone to set up a time and place for him to collect
payment for killing Lackl. Graham drove Pearson to meet
Goodman on the way home, although she was unaware of the
purpose of the meeting. Pearson met with Goodman in Good-
man’s black Thunderbird, and Goodman paid $2200, $300
less than promised. Pearson paid Cornish and Randle $100
each and later took Graham for a night at the Baltimore Inner
Harbor Marriott hotel. Graham also testified at trial, corrobo-
rating much of Pearson’s story. Specifically, she testified that
on the day of the murder, Graham agreed to drive Pearson to
Philadelphia Road to look at a car for sale. She confirmed that
Cornish and another individual followed her and Pearson to
Philadelphia Road; that Pearson made a phone call in transit
asking for Lackl to come outside; that she did not stop and the
car following them made a U-turn back to Lackl’s house; and
that they stopped shortly after driving down Philadelphia
Road and Pearson got into Goodman’s car.
UNITED STATES v. BYERS 9
Cornish also cooperated with the government and testified
at trial, confirming basic details about the murder presented
through Pearson’s testimony. Cornish further admitted that he
was the triggerman who shot Lackl.3
The government introduced numerous summaries of calling
records obtained by investigators for cell phones recovered
from Pearson, Goodman, and Cornish, and for the phone
number linked to Byers’s contraband cell phone. Although
Byers’s phone was not recovered, Pearson identified its num-
ber, and records established frequent calls from that number
to members of Byers’s family and to Byers’s girlfriends.
Phone records reflected calls between all of these phones on
the day of the murder. The heaviest contact occurred between
the Goodman and Byers cell phones, which made 12 "direct
connect" contacts on the day of the murder; the evidence also
established numerous contacts in the month before the mur-
der. Likewise, phone records showed several July 2 calls
between Pearson’s phone and Byers’s phone, as well as calls
between Pearson and Goodman mere moments before and
after Lackl was shot.
Goodman was arrested on September 5, 2007, and officers
recovered the cell phone that he had used to communicate
with Byers before and after the murder. Goodman was ques-
tioned at Baltimore County Police headquarters for more than
6 hours about his involvement in the Lackl murder, but Good-
man maintained his innocence.
Byers and Goodman were charged with multiple counts
stemming from Lackl’s murder, including conspiracy to use
interstate communication facilities in the commission of a
murder for hire, see 18 U.S.C. § 1958(a), and conspiracy to
murder a witness resulting in death, see 18 U.S.C.
3
Cornish, only 15 at the time of the murder, entered a plea agreement
under which state murder charges were dismissed. Cornish received a 40-
year sentence.
10 UNITED STATES v. BYERS
§ 1512(a)(1)(C). Byers alone was also charged with two
counts stemming from the 2006 shooting of Haynes: possess-
ing a firearm as a felon, and possessing a firearm in further-
ance of a drug trafficking crime. The case proceeded to trial.
As noted previously, the government presented evidence
that Byers arranged for Lackl’s murder because of Lackl’s
expected trial testimony identifying Byers as the individual
Lackl saw running with a gun from the scene of the murder
of Haynes. Byers countered the government’s motive evi-
dence by eliciting testimony that undermined the strength and
reliability of Lackl’s photographic identification. The defen-
dants highlighted Lackl’s habitual drug use during the time
that he witnessed the shooting of Haynes; established through
cross-examination of Detective Martin that DNA linked to
Quinten Hogan, a gang member who lived near the location
of the Haynes murder, was found inside the gun that Lackl
saw Byers discard; and questioned Detective Martin about the
failure of investigators to submit a photographic lineup to wit-
nesses who were in a store on the corner where Haynes was
shot.
In response, the government moved to introduce under Fed-
eral Rule of Evidence 404(b) evidence about the 2004 shoot-
ing of Carlile Coleman on North Montford Street within a
block of where Haynes was killed. Over the objections of
defense counsel, the district court permitted the government
to present evidence that Coleman survived the shooting and
later identified Byers from a photographic lineup as the per-
son who shot him over the drug dispute. The government also
presented evidence suggesting that Byers was an established
drug dealer in the North Montford Street/Jefferson Street area
and that Byers shot Coleman and killed Haynes—himself a
drug dealer—to protect Byers’s "turf."
Baltimore City Police Detective Wayne Jenkins testified
that he was assigned to the narcotics unit in 2006 and worked
the North Montford/Jefferson Street area on a daily basis.
UNITED STATES v. BYERS 11
Detective Jenkins knew Byers as an informant and daily saw
Byers near the garage on North Montford Street where Lackl
indicated the handgun had been thrown after the Haynes mur-
der. Moreover, Detective Jenkins noted that there was signifi-
cant drug traffic at the corner of North Montford and
Jefferson where Haynes was killed, and, based on his training,
information gleaned from numerous prior narcotics investiga-
tions in that area, and personal observation, Jenkins believed
"that was [Byers’s] intersection, that was his corner . . . [h]is
street shop." Trial Transcript, Nov. 16, 2009, at 116. Although
Detective Jenkins had never personally witnessed Byers mak-
ing a sale, he saw Byers routinely standing at his corner con-
versing with drug dealers "all day long." Id. at 118.
Finally, Detective Jenkins testified that drug dealers rou-
tinely engaged in territorial disputes and fought over street
corners that served as distribution points. Detective Jenkins
concluded that Byers was giving him information in an
attempt to eliminate the competition from rival deal-
ers—Byers supplied Detective Jenkins with tips about drugs
being sold in the general area but never gave him information
about drug sales at the corner of North Montford and Jeffer-
son.
Byers and Goodman were convicted on seven of the nine
charges against them in the indictment, including a conviction
of Byers for violation of the felon-in-possession law during
the 2006 Haynes shooting.4 Byers and Goodman both
received life sentences. On appeal, Byers and Goodman chal-
lenge several evidentiary rulings by the district court. We
address each of their contentions below.
4
The jury, however, acquitted Byers on the charge that he possessed a
firearm in furtherance of a drug trafficking crime during the 2006 Haynes
shooting. This verdict is obviously not determinative of the evidentiary
issues.
12 UNITED STATES v. BYERS
II.
Byers argues that the district court abused its discretion in
admitting testimony under Rule 404(b) that in 2004 Byers
shot Carlile Coleman on the same North Montford Street
block where Haynes was killed. We disagree.
Rule 404(b) prohibits evidence of "‘other crimes, wrongs,
or acts’" solely to prove a defendant’s bad character, but
"[s]uch evidence . . . may ‘be admissible for other purposes,
such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.’"
United States v. Basham, 561 F.3d 302, 326 (4th Cir. 2009)
(quoting Fed. R. Evid. 404(b)). Rule 404(b) is a rule of inclu-
sion, "admitting all evidence of other crimes or acts except
that which tends to prove only criminal disposition." United
States v. Young, 248 F.3d 260, 271-72 (4th Cir. 2001) (inter-
nal quotation marks omitted).
For prior bad acts to be admissible under Rule 404(b), the
proffered evidence (1) "must be . . . relevant to an issue other
than character," such as identity or motive, United States v.
Siegel, 536 F.3d 306, 317-18 (4th Cir. 2008) (internal quota-
tion marks omitted); (ii) "must be necessary to prove an ele-
ment of the crime charged," United States v. Queen, 132 F.3d
991, 995 (4th Cir. 1997), or to prove context, see id. at 998;
and (iii) "must be reliable." Id. at 995. In addition, "the proba-
tive value of the evidence must not be substantially out-
weighed by its prejudicial effect," which "involves a Rule 403
determination," United States v. Lighty, 616 F.3d 321, 352
(4th Cir. 2010). We review the district court’s decision to
admit evidence under Rule 404(b) for abuse of discretion. See
Basham, 561 F.3d at 325. And, we will not find a district
court "to have abused its discretion unless its decision to
admit evidence under Rule 404(b) was arbitrary and irratio-
nal." United States v. Weaver, 282 F.2d 302, 313 (4th Cir. 2003).5
5
Though we review the admissibility of the Coleman evidence under
Rule 404(b), we are cognizant of its relevance to explain how Pat Byers
came to be identified by the police and ultimately by Lackl.
UNITED STATES v. BYERS 13
The district court concluded that the 2004 Coleman shoot-
ing was important to several critical issues at trial, particularly
Byers’s identity at the Haynes murder scene. The court noted
that Byers’s defense to the Lackl murder charges was largely
focused on eroding Byers’s purported motive to shoot Lackl
by showing that "Lackl had mistakenly identified him as the
person fleeing from the [Haynes] murder scene in possession
of a firearm" and posed little threat to Byers as a witness. J.A.
360. The district court reasoned the Coleman evidence was
relevant to establish identity in light of the similarities
between the Coleman shooting and the Haynes murder:
There are significant similarities between the
Coleman shooting and the Haynes murder, and such
similarities are especially significant to the relevance
inquiry under Rule 404(b). In both situations, Byers
asserted control over his drug turf through the close
range use of a semi-automatic handgun in broad day-
light. Moreover, both incidents are closely linked by
their geographical proximity. The Coleman shooting
occurred at 506 N. Montford Ave., which is less than
a block away from where Haynes was shot and
directly across the street from the alley where Lackl
saw Byers discard his gun.
These similarities reinforce the relevance of the
Coleman shooting to the government’s claim that
Byers possessed a firearm while fleeing from the
scene of the Haynes murder on March 4, 2006. In
addition, the Coleman shooting is probative of
whether Byers was at the scene of the Haynes mur-
der and whether he was correctly identified by
Lackl—an issue that Byers intends to challenge. Evi-
dence that Byers committed the Coleman shooting in
assertion of his drug turf makes it more probable that
he was correctly identified as asserting control over
the same location during the Haynes murder. . . .
14 UNITED STATES v. BYERS
J.A. 360-61 (citations omitted).
The district court also found that the Coleman evidence
was "necessary" within the meaning of Rule 404(b) to counter
Byers’s strategy of negating motive by attacking Lackl’s iden-
tification. The court explained that
[t]he challenged evidence does not address collateral
issues, but instead supports the government’s theory
that Byers was an established drug dealer in the
vicinity of 506 [North] Montford Avenue and that he
used firearms to control his domain. More specifi-
cally, . . . the evidence is necessary to reinforce the
government’s claim . . . that Byers was correctly
identified as discarding a gun near the scene of the
Haynes murder.
J.A. 362 (citation omitted).
A.
1. Relevance under Rule 404(b)
The question of whether Byers had a motive to kill Lackl
was intertwined at trial with the question of whether Lackl
was accurate in his identification of Byers in the Haynes mur-
der. Byers takes umbrage with the district court’s conclusion
that the Coleman evidence was relevant to whether Lackl cor-
rectly identified Byers as the fleeing suspect in the Haynes
murder. Byers argues that, except for geographical proximity,
the Coleman shooting and the Haynes murder are dissimilar.
Byers points out that the two incidents lacked temporal prox-
imity, and he contends that the evidence reflected very differ-
ent motives in each case. According to Byers, the alleged
motive for the murder of Haynes would have been revenge
since there was evidence that Haynes had shot and killed two
of his cousins. By contrast, the alleged motive for the Cole-
man shooting was drug-related, i.e., Byers was protecting his
UNITED STATES v. BYERS 15
business in the North Montford Street area. Thus, Byers
argues, the connection between the Coleman shooting and the
Haynes murder was too attenuated to be probative as to
whether Lackl’s identification was mistaken, which, in turn,
had bearing upon Byers’s alleged motive to kill Lackl. We
disagree.
First, the evidence presented at trial was sufficient to permit
the jury to reasonably conclude that Byers shot Haynes to
retain dominion over his drug turf. Detective Jenkins testified
that Byers sold heroin in the North Montford and Jefferson
Avenue area and that he was sufficiently engaged in the drug
trade to have established his own "street shop" at the corner
of North Montford and Jefferson Streets around the time
Haynes was murdered there. Detective Martin testified that
Byers admitted to him that on the day of the Haynes shooting,
he had been on North Montford Street checking on his drug
sales and he also volunteered that he had hidden a firearm in
the area. And, there was testimony from Parham, a neighbor-
hood resident, that Haynes was himself a drug dealer. Thus,
both direct and circumstantial evidence supported the theory
that Byers shot Coleman and Haynes because of conflicts
over drugs within a half-block of each other and on a section
of North Montford Street considered to be Byers’s street shop.
On this evidence, the jury could have easily rejected Byers’s
alleged motive of wanting to avenge the murder of his cousins
and believed that Byers shot Haynes, like Coleman, to protect
his position as a drug dealer on that block.
Because the evidence plausibly suggested a common theme
to the shooting of Coleman and the murder of Haynes, we
conclude that the Coleman shooting was relevant to the
charges against Byers for the murder of Lackl. Clearly, Byers
premised his defense on showing that the prosecution’s case
against him for murdering Haynes was so weak that he had
nothing to fear from Lackl’s identification and therefore did
not have a strong motive to prevent Lackl from testifying. In
light of Byers’s defense, his motive for killing Lackl was con-
16 UNITED STATES v. BYERS
nected to the strength of Lackl’s identification of Byers in the
Haynes murder. The introduction of the Coleman evidence
makes it much less likely that Lackl was simply mistaken
when he picked Byers out of the lineup. In both incidents, the
evidence tied Byers to the general area on North Montford
Street where Haynes was shot and suggested Byers was there
not by coincidence, but to oversee drug sales in that vicinity.
The Coleman evidence strengthened Byers’s connection to
the place where Haynes was shot, and made Lackl’s identifi-
cation of Byers as the killer of Haynes much more certain. See
United States v. Sanchez, 118 F.3d 192, 196 (4th Cir. 1997)
(noting that prior bad acts occurring in the same "geographic
area" as the charged act is a factor that increases the relevance
Rule 404(b) evidence).
Second, Byers’s argument on appeal gives short shrift to
the district court’s conclusion that the Coleman shooting was
relevant "to the government’s claim that Byers possessed a
firearm while fleeing the scene of the Haynes murder on
March 4, 2006." J.A 360. Unlike other counts in the supersed-
ing indictment, counts eight and nine did not arise from the
scheme to murder Lackl. Rather, counts eight and nine
charged Byers with the commission of two firearms offenses
on March 4, 2006, the date of the Haynes murder: illegal pos-
session of a firearm in violation of 18 U.S.C. § 922(g)(1)
(count 8), and possession of a firearm in relation to a drug
trafficking crime in violation of 18 U.S.C. § 924(c)(1)(a)(1)
(count 9).
The Coleman evidence was clearly relevant to counts eight
and nine. Indeed, evidence, to be relevant, "need only to have
any tendency to make the existence of any fact that is of con-
sequence to the determination of the action more probable or
less probable than it would be without the evidence." United
States v. Aramony, 88 F.3d 1369, 1377 (4th Cir. 1996) (inter-
nal quotation marks omitted). The evidence recounted previ-
ously reasonably suggested that Byers was illegally in
possession of a firearm on March 4, 2006, see 18 U.S.C.
UNITED STATES v. BYERS 17
§ 922(g), and that he was engaged to some extent in drug traf-
ficking activities that same day as well, see 18 U.S.C.
§ 924(c)(1)(a)(1). Coleman’s testimony underscored the gov-
ernment’s theme that Byers was a drug dealer who used a gun
to exert control over the spot where Haynes was shot and the
nearby surrounding area. See United States v. Jernigan, 341
F.3d 1273, 1281-82 (11th Cir. 2003) ("Put simply, the fact
that [the defendant] knowingly possessed a firearm in a car on
a previous occasion makes it more likely that he knowingly
did so this time as well, and not because of accident or mis-
take.")
2. Necessity under Rule 404(b)
We also reject Byers’s argument that the Coleman evidence
was not "necessary" as required by Rule 404(b). See Queen,
132 F.3d at 995. At trial, Byers created an issue over the iden-
tity of Haynes’s assailant and made it central to the case. Pri-
marily through cross-examination, Byers attacked Lackl’s
credibility as an effective witness and the reliability of his
identification placing Byers at the scene of the Haynes murder
by highlighting many problems with the Haynes murder pros-
ecution. Byers elicited evidence showing that there were
problems for state prosecutors to overcome in the Haynes
case and casting doubt on whether Byers had shot Haynes and
was, in fact, the person Lackl had seen fleeing and discarding
a gun: DNA recovered from the gun was linked to a gang
member who resided nearby; two witnesses in a nearby store
heard shots and saw someone running away, but were never
presented a photographic lineup; Lackl, as a habitual drug
user, could well have been mistaken; and Parham, the only
other witness, had recanted his identification of Byers.
Evidence is necessary "where it is an essential part of the
crimes on trial, or where it furnishes part of the context of the
crime." United States v. Mark, 943 F.2d 444, 448 (4th Cir.
1991) (internal quotation marks and citation omitted); see
United States v. Smith, 441 F.3d 254, 262 (4th Cir. 2006)
18 UNITED STATES v. BYERS
("Evidence is necessary, even if it does not relate to an ele-
ment of a charged offense, when it furnishes part of the con-
text of the crime." (internal quotation marks omitted)).
Significantly, courts must determine whether prior bad acts
evidence is "necessary" under Rule 404(b) in "light of other
evidence available to the government." Queen, 132 F.3d at
998 (internal quotation marks omitted). Thus, "as the quantum
of other non-Rule 404(b) evidence available to prove an issue
unrelated to character increases, the need for the Rule 404(b)
evidence decreases." Lighty, 616 F.3d at 354; see id. ("[I]f the
Rule 404(b) evidence is entirely cumulative to other non-Rule
404(b) evidence available to the government, the Rule 404(b)
evidence may not meet the necessity prong." (emphasis
added)).
Of course, the inverse is true as well, such that Rule 404(b)
evidence is more likely to become necessary where the evi-
dence intrinsic to the crime at issue is sparse or weak. See
United States v. Wilson, 624 F.3d 640, 654 (4th Cir. 2010);
United States v. DiZenzo, 500 F.2d 263, 266 (4th Cir. 1974).
Logically, then, when the evidence presented to the jury
"generate[s] uncertainty" about motive or identity, "resort to
. . . other crimes evidence [may be] appropriate." United
States v. Hadaway, 681 F.2d 214, 218 (4th Cir. 1982); cf.
United States v. Lamarr, 75 F.3d 964, 970-71 (4th Cir. 1996)
(evidence necessary to prove lack of credibility is an issue
separate from character and satisfies Rule 404(b)).
Byers’s cross-examination of the government witnesses
created a significant credibility issue, thereby "generat[ing]
uncertainty" about whether Byers was the person who shot
Haynes. Hadaway, 681 F.2d at 218. Because Detective Mar-
tin’s testimony about Lackl’s statements was the govern-
ment’s only evidence placing the gun in Byers’s hand at the
Haynes murder scene, Coleman’s testimony was necessary to
make more certain the identification made by Lackl and rebut
Byers’s attack on Lackl as a reliable witness. See United
States v. Gettel, 474 F.3d 1081 (8th Cir. 2007) (explaining
UNITED STATES v. BYERS 19
that the government may refute defendant’s attacks on witness
testimony with Rule 404(b) evidence); United States v. Hersh,
297 F.3d 1233, 1254 n.31 (11th Cir. 2002) (same). Accord-
ingly, we conclude that the government’s evidence was also
"necessary" for purposes of Rule 404(b).6
B.
Byers next contends that the probative value of the Cole-
man evidence was outweighed by its prejudicial effect. Evi-
dence sought to be admitted under Rule 404(b) must satisfy
Rule 403’s requirement that the probative value of the evi-
dence must not be "substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence." Fed. R. Evid.
403. "[G]eneral prejudice, however, is not enough to warrant
exclusion of otherwise relevant, admissible evidence. Evi-
dence may be excluded under Rule 403 only if the evidence
is unfairly prejudicial and, even then, only if the unfair preju-
dice substantially outweighs the probative value of the evi-
dence." Siegel, 536 F.3d at 319. In turn, unfair prejudice
exists "when there is a genuine risk that the emotions of a jury
will be excited to irrational behavior, and this risk is dispro-
portionate to the probative value of the offered evidence." Id.
Generally speaking, "bad acts" evidence, admissible under
Rule 404, is not barred by Rule 403 where such evidence "did
not involve conduct any more sensational or disturbing than
the crimes with which [the defendant] was charged." United
States v. Boyd, 53 F.3d 631, 637 (4th Cir. 1995).
Here, the Coleman shooting evidence is actually less sensa-
tional than the murder of Haynes, which was clearly admissi-
ble, or the murder of Lackl, which was carefully planned and
6
On appeal, Byers does not challenge the reliability of the Coleman evi-
dence. Accordingly, we need not address that requirement under Rule
404(b).
20 UNITED STATES v. BYERS
carried out in front of Lackl’s daughters for the purpose of
precluding Lackl’s testimony and evading punishment for the
murder of Haynes. With regard to the Coleman shooting, the
evidence suggests that the incident was spontaneous and not
the result of an elaborate plan. And, of course, the shooting
did not result in Coleman’s death.
Furthermore, the possibility of unfair prejudice from the
Coleman testimony was abated by the two limiting instruc-
tions offered by the district court—one immediately before
the Coleman evidence was presented to the jury and one
immediately before jury deliberation. In the charge to the
jury, the district court instructed "you may not consider the
evidence of this alleged [Coleman incident] as a substitute for
proof that the defendant committed a crime charged in the
indictment. Nor may you consider this evidence as proof that
the Defendant Byers is a criminal personality or bad charac-
ter." J.A. 1589. See United States v. White, 405 F.3d 208, 213
(4th Cir. 2005) ("[A]ny risk of such prejudice was mitigated
by a limiting instruction from the district court clarifying the
issues for which the jury could properly consider [the] evi-
dence."). Accordingly, we reject this argument as well.
In sum, we conclude that the district court did not abuse its
discretion in admitting the Coleman evidence. The district
court admitted the evidence in question for permissible pur-
poses under Rule 404(b) and not merely to show general
criminal disposition.
C.
Finally, even if the district court abused its discretion in
admitting evidence of the Coleman shooting, we conclude
that the error was harmless. See Fed. R. Crim. P. 52(a) ("Any
error, defect, irregularity, or variance that does not affect sub-
stantial rights must be disregarded."); Lighty, 616 F.3d at 355-
56 (erroneous admission of prior bad acts evidence under
Rule 404(b) subject to harmless-error analysis). Under the
UNITED STATES v. BYERS 21
harmless-error standard, we will not reverse if we can "say,
with fair assurance, after pondering all that happened without
stripping the erroneous action from the whole, that the judg-
ment was not substantially swayed by the error." Kotteakos v.
United States, 328 U.S. 750, 765 (1946); United States v.
Brooks, 111 F.3d 365, 371 (4th Cir. 1997). The government
introduced overwhelming evidence of Byers’s guilt in plan-
ning and executing the murder of Lackl. In addition to direct
testimony from Pearson that Byers ordered and paid for the
hit on Lackl and the confession of the actual killer, the gov-
ernment presented substantial evidence establishing tele-
phonic communication between Cornish the triggerman,
Pearson, Goodman, and Byers on the day of the murder. The
evidence also established an obvious motive for Byers to kill
Lackl—the elimination of the sole remaining witness against
him on state murder charges. In view of the strong evidence
suggesting that Byers planned the murder-for-hire against
Lackl, we can say with "fair assurance" that the evidence of
Coleman’s non-fatal shooting was harmless.
III.
Byers next argues that the district court abused its discre-
tion in permitting and failing to give a curative instruction
regarding Malinda Humes’s testimony that she warned Lackl
his involvement as a witness would get him killed. We find
no error.
Humes, Lackl’s live-in girlfriend at the time of the Haynes
murder, was at home when Lackl and Connie Mays returned
from their trip to buy drugs on North Montford Street. Prior
to trial, the district court granted the government’s motion in
limine to admit Lackl’s statements to Humes under Rule
804(b)(6) of the Federal Rules of Evidence. See Fed. R. Evid.
804(b)(6) (providing exception to hearsay rule for "[a] state-
ment offered against a party that has engaged or acquiesced
in wrongdoing that was intended to, and did, procure the
22 UNITED STATES v. BYERS
unavailability of the declarant as a witness"). Accordingly,
Humes recounted what Lackl told her about the incident:
He was real hyper and he said – he just kept pac-
ing back and forth saying you won’t believe what I
just seen.
I said what happened? And [he] said he went into
the alley to urinate, and he seen a man shoot another
man, and the man ran past him and looked at him
and laughed. And as he was laughing, he threw the
gun up on the roof.
And he kept saying he wanted to call the police.
And I told him don’t get involved in it, that they
would wind up killing him. He said he couldn’t just
sit back and let – I’m getting ahead of myself. I
asked –
J.A. 483.
Byers did not object to this testimony or request a curative
instruction with respect to Humes’s statement that the sus-
pects "would wind up killing him." The district court, how-
ever, called the lawyers to the bench sua sponte to clarify the
limits on the court’s pre-trial ruling that Lackl’s statements
could come in through Humes:
THE COURT: I have overruled [Byers’s] objec-
tion for reasons previously stated on the record, and
[Humes] can testify as to Mr. Lackl’s description of
events and his description of the assailant, but we’re
not going to have this witness offer statements such
as he couldn’t stand by, et cetera.
It seems like that the witness was going to say
[Lackl] didn’t feel like he could stand by and not say
anything. I don’t think that’s the ambit of my ruling.
UNITED STATES v. BYERS 23
So you know what your witness is going to say,
Mr. Purcell? I don’t. I don’t want her to get into
describing what she saw.
...
Everything that Carl Lackl said . . . is not automat-
ically subject to the wrongdoer exception admission.
...
[A.U.S.A.] PURCELL: The only thing I think
she’s going to say based on my understanding is . . .
that [Lackl] said he was going to call the police . . . .
THE COURT: That’s . . . fine. I thought she was
going to say some self-serving comments, what
[Lackl] thought he should do as a citizen.
J.A. 484-85. Neither the court nor defense counsel addressed
Humes’s testimony that she believed Lackl’s involvement
would result in his murder.
When testimony resumed, Humes affirmed that Lackl
indeed called the police about ten minutes after returning
home. Byers successfully objected to a number of questions
asking Humes to explain her response to Lackl’s decision to
report the shooting even though Byers had not objected to
Humes’s earlier testimony.
On appeal, Byers does not challenge the trial court’s ruling
that Lackl’s statements to Humes were admissible. Rather,
Byers contends that the district court erroneously allowed
Humes to testify regarding her response to Lackl’s decision to
report the shooting to the police: "I told him don’t get
involved in it, that they would wind up killing him." J.A. 483.
Byers apparently believes that Humes’s statement was specu-
lative and irrelevant because she was offering an opinion as
24 UNITED STATES v. BYERS
to the ultimate issue before the jury.7 Because the testimony
was unexpected and Byers interposed no objection after
Humes blurted out her statement to Lackl, Byers is now
essentially challenging the district court’s failure to give a
curative instruction sua sponte to the jury to disregard
Humes’s testimony that she was concerned Lackl’s involve-
ment would expose him to violent reprisal from Byers.
We review a district court’s evidentiary rulings for abuse of
discretion, provided the defendant preserves his objection at
trial. See Basham, 561 F.3d at 325 & n.11. However, when an
evidentiary issue is raised for the first time on appeal, our
consideration is limited to plain error review. See Fed. R.
Crim. P. 52(b). This court will notice the error only if the
defendant can show: (1) error; (2) that is "clear or obvious,
rather than subject to reasonable dispute"; (3) that affected
substantial rights, "which in the ordinary case means . . . that
it affected the outcome of the district court proceedings"; and
(4) that "seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings." Puckett v. United States,
129 S. Ct. 1423, 1429 (2009) (internal quotation marks omit-
ted). Plain error review is "strictly circumscribed" and
"[m]eeting all four prongs is difficult, as it should be." Id. at
1428, 1429 (internal quotation marks omitted).
Even if we assume that Humes’s statement was improper
and inadmissible, a district court does not commit plain error
7
It is not clear precisely why Byers believes the statement was inadmis-
sible. In his opening brief, Byers argued that Humes’s testimony she told
Lackl that he would be killed if he went to the police violated an earlier
order of the district court. This argument proved to be factually inaccurate.
The district court’s only prior ruling regarding Humes’s probable testi-
mony was encompassed in an order granting the government’s motion in
limine to admit Lackl’s statements to Humes. The ruling did not address
anything Humes said to Lackl. In his Reply Brief, Byers conceded that
there was no prior ruling addressing Humes’s statements to Lackl and
recast the argument solely as an objection to opinion testimony on "the
ultimate issue for the trier of fact." Reply Brief at 12.
UNITED STATES v. BYERS 25
merely because it fails to give curative instructions sua sponte
any time improper evidence comes out during trial. The unso-
licited comment by Humes was brief and, as other courts have
observed in similar circumstances, "a curative instruction
could easily have done more harm than good by focusing the
jurors on [testimony] that they otherwise might have missed
or construed as innocuous." United States v. Deandrade, 600
F.3d 115, 119 (2d Cir. 2010); see id. (finding district court’s
failure to issue curative instruction sua sponte was not plain
error in light of the additional fact that "[t]he government
never relied upon the challenged testimony"). Presumably
Byers did not immediately object to Humes’s comment
because the defense wished to downplay this testimony; a
curative instruction could have undercut that very strategy.
See United States v. Copeland, 51 F.3d 611, 616 (6th Cir.
1995) ("The defense claims that it did not raise an objection
to these comments because ‘[t]o directly object each and
every time would have only emphasized the prejudicial mat-
ter.’ Arguably, a curative instruction would have emphasized
this testimony, and, therefore, would have deprived the
defense of its chosen trial strategy. Not issuing the instruc-
tions sua sponte under these circumstances was not reversible
error.").
Furthermore, even assuming for the purposes of this appeal
that the court’s failure to act constituted plain error, we find
that this error did not affect Byers’s substantial rights given
the volume of evidence supporting his convictions.
IV.
Goodman argues that the district court abused its discretion
in permitting the government to call Michelle Fisher as a
rebuttal witness. "Rebuttal evidence is defined as evidence
given to explain, repel, counteract, or disprove facts given in
evidence by the opposing party" or "[t]hat which tends to
explain or contradict or disprove evidence offered by the
adverse party." United States v. Stitt, 250 F.3d 878, 897 (4th
26 UNITED STATES v. BYERS
Cir. 2001) (internal quotation marks omitted). Evidence
offered in rebuttal "may be introduced only to counter new
facts presented in the defendant’s case in chief." Allen v.
Prince George’s County, Md., 737 F.2d 1299, 1305 (4th Cir.
1984). The decision of a trial court to allow rebuttal evidence
is reviewed under an abuse of discretion standard. See Hospi-
tal Bldg. Co. v. Trustees of The Rex Hosp., 791 F.2d 288, 294
(4th Cir. 1986).
The government introduced evidence that Goodman sup-
plied Pearson with Lackl’s home address, where the murder
was subsequently committed. At trial, Pearson testified that
Goodman had a Blackberry-style phone that he used to dis-
play Lackl’s name, address and phone number. During the
defendants’ case, Goodman called his mother, Michelle
Fisher, to testify that she purchased a T-Mobile Dash phone
with a Blackberry-style keyboard for him in August
2007—after the murder was committed. Fisher’s testimony,
therefore, suggested that Pearson was mistaken or was being
untruthful when he testified that Goodman gave him Lackl’s
address on a Blackberry-type phone. On cross-examination,
Fisher admitted that the account had been opened in February
2007, but she testified that the Dash was a replacement phone
that she obtained for Goodman in August 2007.
The government subsequently called Fisher as a rebuttal
witness. The prosecutor asked Fisher a number of questions
about whether she had received calls in April 2009, just prior
to her testimony, from Goodman using a cell phone while he
was incarcerated. Goodman objected to the government’s line
of questioning on the basis that it failed to counter any new
evidence presented in Goodman’s case-in-chief. The district
court disagreed and concluded that the rebuttal testimony
sought from Fisher "goes to the matter of . . . her credibility
in terms of the use of the cell phone." J.A. 1193.
On appeal, Goodman renews his argument that the testi-
mony the government sought to elicit from Fisher was not
UNITED STATES v. BYERS 27
proper rebuttal evidence. Because Fisher’s testimony during
Goodman’s case-in-chief related to the Dash phone and T-
Mobile account used by Goodman in 2007, Goodman con-
tends that the questions posed by the government on rebuttal
about phone calls at or near the time of trial had no connec-
tion to Fisher’s earlier testimony.
Assuming without deciding that the district court abused its
discretion in permitting the government to call Fisher as a
rebuttal witness, we nevertheless conclude that any error was
harmless and does not warrant reversal. The government
failed to elicit anything incriminating from Fisher during her
rebuttal testimony. In fact, counsel for Goodman during clos-
ing arguments commented on Fisher’s re-taking the stand as
a rebuttal witness and argued that none of the government’s
questions changed the evidence showing that Goodman did
not have the Dash phone until after the murder and that, if
anything, "it actually made Mr. Goodman look good because
at least he called his mom on Easter." J.A. 1522. Considering
the overwhelming evidence of Goodman’s direct involvement
in the plot to murder Lackl, we conclude that Fisher’s testi-
mony played no role in the outcome.
V.
Finally, Goodman challenges the district court’s denial of
his motion to suppress his post-arrest statements on involun-
tariness grounds. Goodman’s primary contention is that
Detective Ruby falsely promised that Goodman would not be
charged in connection with the murder of Lackl, which
ensured that Goodman "could not possibly have had the requi-
site level of comprehension of the nature of the right being
abandoned and consequences of abandoning the right." Brief
of Appellant at 32. When this court reviews the denial of a
motion to suppress, we accept the district court’s factual find-
ings unless they are clearly erroneous, but we review de novo
the district court’s determination that Goodman’s statements
28 UNITED STATES v. BYERS
were voluntary. See United States v. Mashburn, 406 F.3d 303,
306 (4th Cir. 2005).
"A statement is involuntary under the Fifth Amendment
only if it is ‘involuntary’ within the meaning of the Due Pro-
cess Clause." United States v. Braxton, 112 F.3d 777, 780 (4th
Cir. 1997) (en banc). In considering the voluntariness of a
statement under the Due Process Clause, we must determine
"whether the confession was extracted by any sort of threats
or violence, [or] obtained by any direct or implied promises,
however slight, [or] by the exertion of any improper influ-
ence." Hutto v. Ross, 429 U.S. 28, 30 (1976) (per curiam)
(internal quotation marks omitted); see United States v. Mont-
gomery, 555 F.3d 623, 629 (7th Cir. 2009) ("Given the right
circumstances, a false promise of leniency may be sufficient
to overcome a person’s ability to make a rational decision
about the courses open to him."). Of course, "[t]he mere exis-
tence of threats, violence, implied promises, improper influ-
ence, or other coercive police activity . . . does not
automatically render a confession involuntary. The proper
inquiry is whether the defendant’s will has been overborne or
his capacity for self-determination critically impaired." Brax-
ton, 112 F.3d at 780 (internal quotation marks omitted).
Courts must conduct this voluntariness inquiry in light of "the
totality of the circumstances, including the characteristics of
the defendant, the setting of the interview, and the details of
the interrogation." Id. at 781 (internal quotation marks omit-
ted).
Baltimore County detectives arrested Goodman, a 21-year-
old high school graduate, at approximately 11:00 a.m. on Sep-
tember 5, 2007, and took him to the Baltimore County Police
headquarters. Around noon, Goodman was placed in an inter-
view room where he would ultimately remain for more than
14 hours. Goodman, however, does not question the condi-
tions of his detention—the entirety of which was captured on
videotape by Baltimore County Police Department—other
UNITED STATES v. BYERS 29
than its length. Goodman was permitted to use the restroom
and he was provided food and drink.
Around 1:00 p.m., Detective Ruby gathered some personal
data from Goodman. He told Goodman that they had "a lot to
discuss" but explained that officers first wanted to go to
Goodman’s house and speak with his mother. While he
waited for Detective Ruby to return, Goodman remained
seated and cuffed to the wall. Detective Ruby returned to the
interview room at about 6:30 p.m., after having executed a
search warrant on the house where Goodman and his mother
lived. He immediately advised Goodman of his rights under
Miranda v. Arizona, 384 U.S. 436 (1966), after which Good-
man signed an acknowledgment and waiver of his rights.8
Initially, Goodman denied that he associated with Pearson
and indicated that he last saw Pearson in mid-June. When
Detective Ruby showed Goodman a picture of Byers, Good-
man stated he might have seen Byers in jail but claimed that
he did not know his name and denied that he ever talked to
Byers. However, after Detective Ruby presented a visitor’s
log showing that Goodman had visited Byers in jail, Good-
man admitted he knew Byers and his family. Goodman said
he lied because he knew that Byers was suspected of murder
and he did not want to be implicated in the wrongdoing.
Goodman further conceded that he had actually spoken with
Byers about the murder, but Goodman vigorously denied any
involvement in the murder.
As the interview proceeded and Detective Ruby made it
increasingly clear that the police suspected Goodman’s
involvement, Goodman began asking whether he would be
charged in connection with the murder. On appeal, Goodman
argues that Detective Ruby’s responses amounted to a false
promise that Goodman would not be charged.
8
Goodman does not claim that Detective Ruby’s issuance of Miranda
warnings was deficient or unclear.
30 UNITED STATES v. BYERS
The first of these alleged promises occurred at 11:22 p.m.,
when Detective Ruby responded to Goodman’s question
about whether he would be charged:
No, I didn’t say right now. We’re just sitting here
talking about this. But we need to get down to the
bottom of this, but when somebody asks me if they
are getting charged . . . I can’t tell that you are get-
ting charged and I can’t tell you that you’re not get-
ting charged, but . . . we haven’t scratched the
surface of what the truth is here and we’re just start-
ing to get to the truth.
Detective Ruby further explained that he knew Goodman
was not the triggerman but that he also believed that Good-
man had information about the murder that he had not yet dis-
closed. In a similar exchange at 12:20 a.m., after Goodman
stated that he "didn’t want to be involved in this at all,"
Detective Ruby responded, "well, you are [involved]." Good-
man then asked, "So basically I’m being charged with being
involved in [the] murder?" Detective Ruby answered, "You
are being interviewed about being involved in a murder, about
knowing what was going on." Detective Ruby then explained
that the police had evidence pointing to Goodman’s involve-
ment in the murder, and he told Goodman that the interview
would not stop until "we get to the bottom of this" and that
there were "no time limits." Ultimately, however, the inter-
view concluded at 2:20 a.m. At that point, Detective Ruby
told Goodman unequivocally that he was being charged with
first-degree murder and conspiracy. Goodman maintained his
innocence in the murder scheme throughout the entire inter-
view.
In denying the motion to suppress, the district court found
that up until 11:22 p.m., when the first alleged "false promise"
was made, there was "absolutely no indication of any kind of
deception." J.A. 478. The district court likewise found that
"[w]ith respect to statements after 11:22" there was no "will-
UNITED STATES v. BYERS 31
ful deception." J.A. 478. Accordingly, the district court con-
cluded that there was no coercive conduct by Detective Ruby
that would have "overborne" Goodman’s will and rendered
his statements involuntary.
Applying the totality of the circumstances standard, we
agree that Goodman’s statements were not unconstitutionally
coerced. Having thoroughly reviewed the record, including
the videotapes of Goodman’s detention, we find no promises,
implicit or otherwise, from Detective Ruby to Goodman. If
Detective Ruby’s statements about whether Goodman would
be charged in the Lackl murder are viewed in context, it is
clear that he never told Goodman he would not be charged.
At worst, the detective’s statements were somewhat equivo-
cal; however, because Detective Ruby told Goodman that the
police knew what happened and had evidence suggesting that
Goodman was involved in the murder, Goodman could not
have reasonably concluded that he would not face charges.
Moreover, there is no indication that Detective Ruby’s
statements "critically impaired" Goodman’s "capacity for self-
determination," Braxton, 112 F.3d at 780, or that Goodman’s
will "was overborne in such a way as to render his confession
the product of coercion," Arizona v. Fulminante, 499 U.S.
279, 288 (1991). Goodman’s position remained constant
throughout the interview. Both before and after the purported
"promises" from Detective Ruby, Goodman denied any actual
involvement in the murder and admitted gaining knowledge
only after the fact. Likewise, we perceive no coercion either
from the length of time Goodman was detained before being
formally notified of the specific charges or from the other cir-
cumstances surrounding Detective Ruby’s interview of Good-
man.
Accordingly, we affirm the district court’s denial of Good-
man’s motion to suppress.
32 UNITED STATES v. BYERS
VI.
For the foregoing reasons, we affirm the defendants’ con-
victions.
AFFIRMED