FILED

United States Court of Appeals

Tenth Circuit

October 12, 2007

UNITED STATES CO URT O F APPEALS

Elisabeth A. Shumaker
TENTH CIRCUIT
Clerk of Court

U N ITED STA TES O F A M ER ICA,

Plaintiff - Appellee,
No. 06-2100
(D.C. No. CR-04-1345-M CA)
(D .N.M .)

v.
HENRY PETER W OODY, JR.,
Defendant - Appellant.

U N ITED STA TES O F A M ER ICA,

Plaintiff - Appellee,
No. 06-2104
(D.C. No. CR-04-1345-M CA)
(D .N.M .)

v.
LARRY W OODY,
Defendant - Appellant.

OR D ER AND JUDGM ENT *

Before KELLY, Circuit Judge, M cW ILLIAM S, Senior Circuit Judge, and

OBRIEN, Circuit Judge.

PE R C U RIU M

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.

In these consolidated appeals, Defendants-Appellants Henry Peter W oody,

Jr., and Larry W oody (collectively Defendants, individually Henry and
Larry) appeal from their convictions for second-degree murder in violation of
18 U.S.C. 1111(a), 1153(a) and 2. On October 21, 2005, following a fourday jury trial, Defendants, who are brothers, w ere found guilty in connection with
the stabbing death of Kenneth Tutt on the Navajo Indian Reservation in Shiprock,
New M exico. The district court sentenced Henry to 262 months imprisonment
and 5 years supervised release and Larry to 235 months imprisonment and 5 years
supervised release.
Defendants challenge their convictions on four grounds: (1) Larry argues
there was insufficient evidence adduced at trial to support his conviction; (2) both
Henry and Larry argue evidence was admitted at trial in violation of Fed. R. Evid.
401 and 403; (3) Larry challenges several of the prosecutors remarks made
during closing arguments; and (4) Henry argues the district court erroneously
imposed a special condition on his supervised release without giving prior notice
pursuant to Fed. R. Crim. P. 32(h). Exercising jurisdiction pursuant to 28 U.S.C.
1291 and 18 U.S.C. 3742(a), we reverse both convictions -- Larrys due to
insufficient evidence and Henrys due to the erroneous admission of evidence
substantially prejudicial to his defense.

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I. Background
In the early morning hours of April 26, 2004, Kenneth Tutts body was
discovered under a tree behind the City M arket in Shiprock, New M exico. The
area in which Tutts body was discovered is known to be frequented by transients.
It was later determined that the cause of Tutts death was a stab wound to the left
side of his neck.
On February 25, 2005, a federal grand jury returned a second superseding
indictment charging Defendants with the second-degree murder of Tutt. After the
district court denied the governments motion to sever, trial commenced on
October 17, 2005, and ended on October 20, 2005. The jury returned guilty
verdicts against Defendants the following day. In sentencing Defendants, the
district court imposed, without notice, a condition of supervised release that both
Defendants submit to suspicionless searches of their property and persons
whenever requested by law enforcement.
Because we must review the record for sufficiency of the evidence in
Larrys appeal and for the admission of unfairly prejudicial evidence in H enrys
appeal, w e recount in some detail the pertinent portions of the trial testimony.
Prosecution witness, Officer Brenda Harrison with the Navajo Nation Department
of Law Enforcement, was the first officer to arrive on scene after Tutts body was
discovered on April 26. She observed a pair of broken sunglasses and a baseball
cap near the body. She also observed blood splatters on the tree branches near
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Tutts head. She and another officer did not locate any other evidence in the area
surrounding the crime scene. Harrison also testified she was familiar with
D efendants prior to Tutts death and both of them usually carried backpacks. A t
some point during the investigation of the crime scene, the authorities received
information from Nelvis Dawes, a man w ho resided between 100 and 200 yards
from where Tutts body was found, that led them to focus their attention on
Defendants. The information gleaned from Dawes also led police to the property
of Barbara Litson for the purpose of searching a shack occupied by Paul Hayes,
Jr. A t around 11:00 a.m., the authorities received permission from Litson to
search the shack, and, based on something they found during the search, the shack
was secured until a search warrant could be obtained.
George Joe, the individual who called law enforcement to report the
discovery of Tutts body, testified next. He explained a friend had informed him
there w as a body behind the C ity M arket. Joe also testified that he had known
Defendants for three or four years and had seen them in the vicinity of the City
M arket in the early afternoon on April 25. He described how Larry typically
wore blue jeans, tennis shoes, sunglasses that fold over the eyes, and a cap.
Henry typically wore square sunglasses, a light blue jacket, blue jeans, and tennis
shoes. Later, during cross-examination, Joe confirmed Henry was wearing a light
blue windbreaker on April 25, the day before the body was discovered.
Phillip Joe, the second law enforcement officer to arrive on scene after
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Tutts body was discovered, testified to observing broken wrap-around style

sunglasses near the victim and described the general area around the body as
somewhat trashy. (R. Vol. IX at 59.) He explained the Hayes shack was
located right next to the street and was pretty simply put together with numerous
rough material, lumber, bark wood, plywood, and the front of the shed was or the
entrance was unsecured. (Id. at 67.) Hayes was not in the shack at the time of
the search. Next, Officer Joe detailed how he searched the shack and discovered
what appeared to be a bloody steak knife within a cupboard. On redirect
examination, Officer Joe testified that, at the time of the search, he also noticed a
portion of a blue jacket with reflective tape on it stuck behind a mattress. Later
in the trial, Officer Joe claimed a jacket seized from Henry follow ing his arrest
was similar to the blue jacket he had seen in the shack on April 26.
Shirley Hayes, Paul Hayess aunt, who also lives on the property with
Litson, testified as follows: Hayes was indeed living in the shack on April 25;
Defendants were staying at the shack on the afternoon of April 25; and food from
a birthday party was sent out to them at around 4:00 p.m. She opined that Henry
always w ore a light or dark blue windbreaker, Larry always w ore a blue and white
jacket, and both of them always carried backpacks.
Litson was called next and testified that when she returned home from Las
Vegas, Nevada, on the evening of April 25, nobody was at the shack. She
confirmed, however, that sometime before 10:00 a.m. on the morning of April 26
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she saw Defendants walking near the shack and both were holding bags.
Dawes was next. He said Defendants had been in the Shiprock area in the
month and a half preceding Tutts death. He observed the following on the
evening of April 25:
And I seen a bunch of people w alking as a group, and there was this
one individual that they w ere kicking, and he kept falling down. He
would get up, and they would kick him again. And then the taller one
would eventually help him up, and it seems like he was getting his hits
in at the same time, too. And he would get up again, and he would
kick him down again. And finally, they just kept on doing that, and
they just kept on walking.
(R. Vol. X at 165.) Dawes recalled a total of six individuals in the group the
victim of the beatings, the two individuals inflicting blow s, and three observers
who were just following. He thought nothing of the incident because fights
happen all the time in that area of Shiprock; he turned away to return to his work.
W hen he looked outside again a half an hour later, he saw nothing. Dawes
identified Henry as the individual kicking the victim and Larry as the individual
hitting the victim, but did not testify he ever observed a weapon in the hands of
either. W hen the prosecution showed Dawes the shirt Tutt was found wearing
when his body was discovered on April 26, Dawes confirmed the victim of the
beatings he observed was wearing the same shirt. On cross-examination, Dawes
admitted the only way he even recognized Larry was by his height, and claimed
that Larry was hitting the victim with only his right hand.
Next, the government called four expert witnesses to discuss the scientific
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evidence (or lack thereof). First, Sandra Koch, a forensic examiner in the trace
evidence (hairs and fibers) unit of the FBI, testified she could not match any hairs
from Tutt to those found on the items seized from Henrys backpack. Lora J.
Gioeni, a forensic examiner in the mitochondrial DNA unit at the FBI, testified
that, based on DNA testing, Tutt could be excluded as a possible source of a hair
found on Henrys backpack. Julie Ann Kidd, a DNA and serology (the study of
bodily fluids) examiner with the FBI, testified she performed DNA testing on
H enrys boots, a jacket, a pair of pants, a t-shirt, and a backpack. Tutts DNA
was not found on any of these items. Nor was either Defendants DNA found
under Tutts fingernails. DNA extracted from blood found on the handle and
blade of the knife located in Hayess shack matched Tutts D NA to a reasonable
degree of scientific certainty but no latent fingerprints from Defendants or
anyone else were found on the knife.
The governments final scientific expert was D r. Jeffrey Nine, the forensic
pathologist who performed an autopsy on Tutt. According to D r. Nine, Tutts
blood-alcohol level was .142 at the time of his death. Dr. Nine testified the cause
of death was a stab wound on the left side of the neck just above like the
collarbone area, and that penetrated about two and a half inches into the neck
tissues both perforating and penetrating a couple of major blood vessels, the
cephalic artery and carotid artery, resulting in a lot of blood loss . . . . (Id. at
265-66.) Tutt also exhibited a number of other injuries (mostly scrapes and
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bruises), including a superficial knife wound to the neck. In Dr. Nines opinion,
both of the stab wounds to Tutts neck were consistent with having been inflicted
by a knife like the one found in H ayess shack. He admitted during crossexamination, however, an inability to determine whether the wound was inflicted
by a right-handed or left-handed assailant. He also estimated Tutt would have
lost two and a half quarts of blood before he died.
The next witness for the government was Paul Hayes who was not an eager
witness. The government secured his presence by arrest for failing to comply
with a subpoena. W hen he was called as a witness, prior to any questioning, the
trial court addressed Hayes as follows: Now, you have been given the oath, and
you have promised to tell the truth. Do you understand that? (R. Vol. XI at
329.) N o other w itness was addressed in this manner.
Hayes began his testimony by explaining that on April 25, 2004, he was
living in the shack on Litsons property, but did not see Defendants that
afternoon. He went on to testify: (1) he spent the night in the shack on April 25th
but did not remember seeing either Henry or Larry; (2) his father and a female
friend also spent the night at the shack on April 25, but they left the next morning
around 7:00 or 8:00 a.m.; and (3) he did not see D efendants in the morning either.
He then offered this description of the shack:
I can tell you this. Over at my dads house, we have no door. W e use
a curtain for a door. And on the other side is a car hood, and we chain
it up, and then we leave. Sometimes w e come back, and the doors
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already opened again.

(Id. at 340.)
Hayes was interviewed by FBI Agent W illiam Hall on April 29, three days
after Tutts body was discovered. W hen Hayes testified he could not remember
what he said to Agent Hall, the court allowed him to silently read Halls report to
refresh his memory. Due to a concern Hayes may have difficulty reading the
report in English, the court called a translator to read the report to Hayes in
Navajo. 1 After Hayes stated he understood the substance of the report, the
government renew ed its questioning as follow s:
Q:

And this is a statement that you gave to M r. Hall and M r. Deale at

the BIA office, do you recollect that?

A:

Yes.

....
Q:

Okay. Now . . . Im going to ask you about the statement at the

bottom . . . of Page 1, the last sentence. Do you remember making
that statement?

A.

No.

Q.

Do you remember the agent asking you about Henry W oody?

A.

No.

Q.

Okay. Do you remember telling the agent that Henry W oody stutters

The record is not clear whether the translator read the report to Hayes
within the hearing of the jury, but unless the jurors understood the Navajo
language, it would not matter.
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when he gets scared?

A:

No.

....
Q:

D o you remember telling the agent that you saw Henry W oody two
days after M r. Tutts death, on the 28th?

A:

No.

Q:

And do you remember telling him that Henry W oody told you not to
say anything?

A:

No.

Q:

You dont remember that?

A:

No.

Q:

Do you remember telling me this morning that when Henry W oody

gets nervous, that he stutters?

A:

No.

Q:

Do you remember talking to me downstairs this morning about 7:30

a.m. . . . ?

A:

Yes.

Q:

But you dont remember telling me that?

A:

No.

(R. Vol. XI at 347-48.) The court then intervened (with the jury present) 2 :

In jury cases, proceedings shall be conducted, to the extent practicable,

so as to prevent inadmissible evidence from being suggested to the jury by any
means, such as making statements or offers of proof or asking questions in the
hearing of the jury. Rule 103(c). Federal Rules of Evidence. A judges
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The Court: M r. Hayes, do you understand the questions that the law yer is
asking you?
The W itness:

No.

The Court: Look at me when I talk to you. You took an oath this morning
to tell the truth. Do you understand that?
....
The Court: You sw ore to tell the truth, you promised to tell the truth
as to all questions that . . . would be asked.
The W itness:

Yes.

The Court: I have concerns that you are not honoring . . . that oath. M r.
Hayes, what is it about the questions that you do not
understand? Tell me.
The W itness:

I understand everything. Theres some things thats

written there. I dont think I said those things.

(Id. at 349.) W hen further questioning received the same type of response, the
jury was sent on break. The court again admonished Hayes regarding his
evasiveness and warned he was treading close to contempt.
Still outside the presence of the jury, the government suggested Hayes was
afraid of the Defendants and his fear was the source of his contrived lack of
memory. The court questioned Hayes regarding this suggestion, but Hayes denied
being afraid or receiving any threats from the Defendants. Henry objected to the
form of the governments questioning. The court responded to the prosecutor, I

suggestion that a witness is not being truthful would seem to be best made outside
of the jurys presence.
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do have concern w ith the amount of detail here that you are noting, [counsel],
with respect to the substance of the statements that you have. (Id.) The
prosecution replied, Your Honor, just so the Court is aware, the reason Im doing
or going into detail because my intention is to call Agent Hall and get these
[statements in] under the Rules of Evidence . . . prior inconsistent [statements] . .
. . (Id.) There was no further discussion and the jury returned to the courtroom.
The questioning resumed in the same form. After several minutes, the
court spoke to the jury, stating:
[L]et me just remind the jurors. Some of the earlier instructions that
I have given, which I will give from time to time again throughout
the course of this trial, you are to determine the facts solely from the
evidence admitted in this case. The evidence consists of the
testimony of witnesses and the exhibits that are received in evidence.
Questions asked by the lawyers are not evidence, for the evidence
consists of the witnesses answers to the questions, not the questions
themselves. Let us continue.
(Id. at 360-361.) Eventually, the government reached the point where it tried to
elicit Hayess reported statement to A gent Hall describing the Defendants
conduct when they drink or get angry. It inartfully asked, A nd what, in fact, did
you tell the agent about Larry W oody when they [sic] get mad? (Id. at 363.)
Henry objected alleging the statement was irrelevant and unduly prejudicial under
Rule 403. The court did not address Rule 403 but, rather, told the prosecutor to
lay a better foundation and ruled it would permit the question. These questions
followed:

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Now, so when you made this statement about how they act
when they get mad, what made you tell the agent that?

W ell, like I said, what Larry does is when he gets mad and then when
we try to joke around, he just gets mad and hits me or some other
people there. Then he hits them, too.

Q.

And then did you tell the agent that he talked about killing people
when he gets mad?

A.

That, I dont remember.

(Id. at 366.) 3
Agent Hall was the governments final witness. Assigned to investigate
Tutts murder, Hall responded to the crime scene early on April 26 and at
approximately 11:00 a.m. he was informed of the search of Hayess shack and the
discovery of the bloody knife. In response, he prepared a search warrant and
affidavit, and after obtaining a search warrant, seized the knife. He next
described how he interviewed Henry in Cortez, Colorado, a couple of weeks after
the murder. During that interview , Henry claimed he had heard about Tutts
death on the radio and then spontaneously volunteered, Im innocent. I dont
even know that guy. (Id. at 88 (quotations omitted)). Henry later referred to Tutt
as Ken, leading Agent Hall to believe Henry had indeed known Tutt.
Henry eventually admitted to Agent Hall during the interview that on April

Perhaps realizing he had focused solely on Larry, the prosecutor later

attempted to re-ask the question by stating, [The report] says, W hen Larry and
Henry get together and drink, they threaten, but the court sustained an objection
on the basis the question had been asked and answered. (R. Vol. X I at 367.)
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25 he had been drinking with Tutt behind the City M arket. W ith regard to the
moment when Tutt was stabbed, Henry advised Hall, he got up and bent over,
and it happened really fast. (Id. at 390.) Henry claimed that after the stabbing
he went back to Hayess shack and fell asleep. Henry described the murder
weapon as a fixed blade hunting style knife with a four-inch blade [and] a black
handle. (Id. at 391.)
Agent Hall detailed two interviews he conducted with Larry, during which
Larry also admitted to being with Tutt on the day he was slain. Larry claimed
that on April 25 he encountered Tutt, who requested that Larry go into the City
M arket and purchase some ocean 4 for them to consume. After Larry purchased
mouthwash and gave Tutt his change, the two drank ocean. Larry claimed he
then went back to Hayess shack and spent the night. W hen confronted
specifically about Tutts death, Larry blurted out, I didnt stab him or I w ould
have blood all over my jeans. (Id. at 395 (quotations omitted).)
The government then moved to Hayess statements to Hall regarding
Defendants propensity for violence when drinking. Because Hayes denied
making the statements, the government was allowed to elicit impeachment
testimony from Agent Hall. Hall testified Hayes told him, [W hen Henry and

Ocean is a substitute for alcoholic beverages which are unavailable on

the Navajo Reservation. It is created by diluting either mouthwash or hairspray
with water. The mixture is then consumed and, apparently, can be the equivalent
of consuming 80 proof liquor.
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Larry] get mad, they talk about killing people and [Hayes] went on to say, W hen
they get together and drink, they also threaten people. (Id. at 402.) W hen the
jury returned from lunch, the court properly instructed the jury that such evidence
was admissible only to impeach the credibility of the witness and not to establish
the truth of H ayess statements.
On cross-examination, Hall testified that, at the time of his first interview
with Larry on April 28, Larrys right hand was extremely swollen (his fingers
were twice the normal diameter) and he had sutures on one of his fingers. Larry
told Hall he had surgery on his right hand in early April, a fact Hall
independently corroborated through medical records. Hall admitted he had
previously testified before a grand jury saying: Its my belief, based on what I
saw of Larry W oodys hand, that he could not have stabbed someone. (Id. at 422
(quotations omitted).) After evaluating the crime scene, Hall believed the
assailant was right-handed and Larry would not have been able to make a fist
without injuring the surgery wound. Hall further testified that, during a prior
investigative interview, Dawes had said four of the five men he saw on April 25
were kicking Tutt, but that one individual who was wearing a blue jacket, black
pants, and black plastic wrap-around sunglasses did most of the pushing and
kicking.
At the conclusion of Halls testimony, the government rested and
Defendants moved for judgments of acquittal. The judge denied the motions,
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finding sufficient evidence as to each element of the charged offenses. The

Defendants chose not to put on any evidence. Following jury instructions and
closing arguments, the case was submitted to the jury.
Larry now argues the government presented insufficient evidence from
which a reasonable jury could find he caused Tutts death. Larry also takes issue
with several of the prosecutors statements made during closing argument,
including one suggesting he might have enjoyed killing the victim in a primitive
and human recreational kind of way thinking that he would never be in front of
you guys [the jury]. (R. Vol. XII at 486.) Both Larry and Henry contend the
district court committed reversible error when it allowed the prosecutor to
question Hayes and Agent Hall regarding Hayess prior statements that the
Defendants get violent and threaten to kill people when drinking and angry.
Finally, Henry argues the court erred in attaching the suspicionless search
condition upon his supervised release without first giving notice pursuant to Fed.
R. Crim. P. 32(h).
II. Discussion
A.

Introduction
Since Henry and Larry were co-defendants much of the evidence was

overlapping. W e take care to delineate the scope of our review with regard to
each of the brothers because Larry briefed and argued insufficiency of the
evidence, but Henry did not. Henry has waived any such argument as a result of
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his failure to raise and brief the issue. See State Farm Fire & Cas. Co. v. M hoon,
31 F.3d 979, 984 n.7 (10th Cir. 1994) (failure to raise an issue in the appellate
brief waives that issue).
B.

Larry W oody
W e begin and end our discussion of Larrys appeal by addressing the

sufficiency of the evidence. The requirement for the government to prove each
essential element of a crime beyond a reasonable doubt is of immense importance
in our criminal justice system. See In re W inship, 397 U.S. 358, 363-64 (1970)
(a society that values the good name and freedom of every individual should not
condemn a man for commission of a crime when there is reasonable doubt about
his guilt). A ccordingly, we review the sufficiency of the evidence de novo.
U nited States v. V oss, 82 F.3d 1521, 1524-25 (10th Cir. 1996). In so doing, we
must view[] the evidence in the light most favorable to the government and ask
whether any rational trier of fact could have found the defendant guilty of the
crime beyond a reasonable doubt. United States v. Vallo, 238 F.3d 1242, 1247
(10th Cir. 2001); accord Jackson v. Virginia, 443 U.S. 307, 319 (1979). The
discretion to resolve conflicting testimony, weigh the evidence, and draw
inferences from basic facts to ultimate facts lies with the jury. United States v.
Nieto, 60 F.3d 1464, 1469 (10th Cir. 1995). On the other hand, the evidence
relied upon to support a conviction must be substantial and raise more than a mere
suspicion of guilt . United States v. Jameson, 478 F.3d 1204, 1208 (10th Cir.),
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cert. denied, ___ S.Ct. ___, 2007 W L 300493 (2007) . Inferences may be
properly drawn from the evidence but, to be reasonable, an inference must be
based on more than mere conjecture and speculation, United States v. Atencio,
435 F.3d 1222, 1232 (10th Cir.), cert. denied, 126 S.Ct. 2310 (2006), and the jury
is not permitted to arrive at a guilty verdict by piling inference upon inference,
Jameson, 478 F.3d at 1208.
To convict of second-degree murder under 18 U.S.C. 1111(a) and
1153(a), the government must show the defendant (1) is American Indian (2) who
killed the victim (3) unlawfully (4) with malice and (5) committed the crime
within Indian Country. See United States v. Visinaiz, 428 F.3d 1300, 1306 (10th
Cir. 2005), cert. denied, 546 U.S. 1123 (2006). All parties concede Defendants
are Indians and Tutt, also an Indian, was killed in Indian Country. Indeed, the
only element with which Larry takes issue, and we think correctly, is whether the
evidence was sufficient to convict him. See United States v. Sw allow, 109 F.3d
656, 659 (10th Cir. 1997) (Proximate cause of death is an essential component of
both first-and second-degree murder.).
Both Henry and Larry denied involvement; neither self defense nor any
other type of justification was at issue. Thus, the primary question is whether the
evidence submitted to the jury was sufficient to prove beyond a reasonable doubt
Larry killed Tutt or whether he aided and abetted the murder.
Upon close examination of the testimony and evidence adduced against
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Larry, we conclude no rational trier of fact could have found him guilty of
second-degree murder beyond a reasonable doubt. While there was certainly
evidence indicating he was involved (along with others) in an assault of Tutt, the
cause of death was not the assault, but rather a stabbing. Even viewed in the light
most favorable to the government, the evidence simply does not sufficiently link
Larry with the stabbing. The jury could have concluded the Defendants stayed at
Hayess shack the night before the murder weapon was found there. But the
evidence also demonstrates the murder weapon was not discovered for over
twelve hours after the stabbing allegedly occurred, at least three other
individuals Paul Hayes, Jr., his father and his fathers girlfriend stayed at the
shack on the night of April 25, and the shack was freely accessible to all who
wished to enter.
The lack of forensic evidence connecting Larry to the killing is also
noteworthy. The forensic pathologist stated Tutt lost large amounts of blood,
probably two to two and a half quarts, and significant bleeding would have
occurred given the nature of the injuries. Indeed, the testimony revealed that
blood had covered surrounding tree branches, and yet authorities did not find any
of Tutts blood on Larrys clothing or the backpack he constantly carried. Neither
could the government establish the time of death. The FBI also did not find any
trace evidence from Tutt (i.e. hairs or fibers) on Larrys possessions and did not
find any of Larrys DNA on Tutt. Lastly, the FBI found no fingerprints on the
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steak knife.
The most damning bit of evidence against Larry is, of course, Daw ess
testimony -- he observed Henry (described as the shorter [man]) and Larry
(described as the taller [man]) kicking and punching a man matching Tutts
description around dusk on April 25. (R. Vol. X at 166.) Despite the great
distance from which Dawes made these observations and the inconsistencies in
his statements regarding the number of individuals participating in the assault, w e
must assume his testimony is true and he did indeed see the Defendants hitting
and kicking Tutt that evening. But while that fact incontrovertibly establishes
battery of Tutt by the Defendants, it does not, without more, provide sufficient
evidence to convict Larry of second-degree murder. Notably, Dawes never
testified he saw a weapon of any sort, let alone a steak knife. M oreover, the
exculpatory evidence regarding the physical state of Larrys right hand only two
days after the killing must function into the equation and Larry only confessed to
buying and drinking ocean with Tutt, hardly an admission to second-degree
murder.
Larrys spontaneous statement to Agent Hall is insufficient to lift the
governments case over the threshold of reasonable doubt. He told Hall, I didnt
stab him or I would have blood all over my jeans. (R. Vol. XI at 395 (quotations
omitted).) W e are somewhat baffled by the governments argument that this
exculpatory statement is overt evidence of guilt. Even false exculpatory
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statements (which the government did not prove this was) cannot be considered
by the jury as direct evidence of guilt. See United States v. Davis, 437 F.3d 989,
996 (10th Cir.), cert. denied, 547 U .S. 1122 (2006). Viewed in the light most
favorable to the government, Larrys statement is not sufficiently inculpatory,
even when combined with drinking ocean and participation in the assault on
Tutt, to establish guilt beyond a reasonable doubt. 5
M oreover, Agent Hall admitted he did not believe Larry could have stabbed
Tutt given the physical condition of his right hand at the time of the April 28
interview. He described the hand as extremely swollen, sutured, and bandaged
and independently confirmed that Larry underwent hand surgery on April 10. Not
only does this evidence cast some doubt on Dawess testimony he claimed he
saw Larry hitting Tutt with his right hand but it further erodes the already thin
evidence in this record suggesting Larry might have killed Tutt.
Although the government is not required to present evidence which

Even if, viewing the evidence in the light most favorable to the
government, the jury could find that portions of Larrys exculpatory statements
were false, we agree with the Second Circuit that:
falsehoods told by a defendant in the hope of extricating himself from
suspicious circumstances are insufficient proof on which to convict
where other evidence of guilt is weak and the evidence before the
court is as hospitable to an interpretation consistent with the
defendants innocence as it is to the Governments theory of guilt.
United States v. Johnson, 513 F.2d 819, 824 (2d Cir. 1975).
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eliminates all possible hypotheses of innocence, readily available inferences of

innocence must be factored into our determination of w hether a reasonable jury
could find a particular defendant guilty of the crime charged beyond a reasonable
doubt. M aldonado v. Scully, 86 F.3d 32, 37 (2d Cir. 1996) (Oakes, J.,
dissenting). Suffice it to say that the evidence brought forth at trial, even when
view ed in toto and in the light most favorable to the government, is insufficient to
establish Larrys guilt beyond a reasonable doubt.
A comparison of the evidence against Larry with that presented in United
States v. Vallo, is instructive. 238 F.3d 1242 (10th Cir. 2001). In that case, we
held the evidence was sufficient to support the defendants (a mother for aiding
and abetting and her boyfriend as a principal) second-degree murder convictions
for the death of an infant. Id. at 1247-49. Although the type and quantity of
evidence adduced in Vallo is by no means the minimum required to convict for
second-degree murder, it is nonetheless illustrative. The evidence indicated the
defendants had repeatedly assaulted the child on the date of his death and in the
past (the defendants, in fact, admitted to doing so), and the expert medical
testimony established the infant died from a recent combination of shaking and
blunt force trauma. The evidence presented in Vallo clear admissions of
assaulting an infant (something which is, in and of itself, sufficient to cause
death) coupled with scientific evidence and consistent past behavior was vastly
stronger than the evidence the jury took under consideration in the instant case.
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Unfortunately, there are few other reported federal decisions addressing the
sufficiency of the evidence presented in second-degree murder trials. W e have
located, however, a factually analogous state court decision. In State v. W hite,
235 S.E.2d 55 (N.C. 1977), the N orth Carolina Supreme Court concluded there
was insufficient evidence to support the defendants second-degree murder
conviction. Id. at 59. The jury heard evidence in the case that the victim had
lived in a mobile home adjacent to a motel where the defendant resided, the
defendant frequently visited the victim, the defendant was a black male and a
black male was seen running away from the mobile home on the evening of the
killing, there was blood found on the carpet of the defendants motel room, and a
knife similar to the murder weapon was found in the defendants motel room. See
id. at 56-58. In reversing the trial courts refusal to grant the defendants motion
for non-suit, the North Carolina Supreme Court reasoned:
[t]he State has shown that the defendant was in the general vicinity of
the deceaseds home at the time of the murder and that he made
several arguably contradictory statements during the course of the
police investigation. It may even reasonably be inferred that the
defendant was at the home of the deceased when the deceased came to
her death, or shortly thereafter. Thus, the State has established that the
defendant had an opportunity to commit the crime charged. Beyond
that we must sail in a sea of conjecture and surmise. This we are not
permitted to do.
Id. at 59 (internal citations and quotation marks omitted). This reasoning applies
equally here.
The government, however, also relies upon an aiding and abetting theory.
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Pursuant to 18 U .S.C. 2(a), [w ]hoever . . . aids, abets, counsels, commands,

induces or procures [the] commission [of a crime] is punishable as a principal.
The federal aiding and abetting statute does not establish a separate crime but
merely eliminates the common law distinction between principal and accessory.
United States v. Langston, 970 F.2d 692, 705-06 (10th Cir. 1992). Regardless,
one cannot aid and abet a completed crime. United States v. Ledezma, 26 F.3d
636, 642 (6th Cir. 1994). A conviction based upon an aiding and abetting theory,
therefore, requires the government to prove:
(1) that the defendant associated [himself] with a criminal venture; (2)
that the defendant participated in the venture as something [he] wished
to bring about; (3) that [he] sought by [his] actions to make it succeed;
and, lastly, (4) that the proof establishes the commission of the offense
by someone and the aiding and abetting by the defendant so charged.
United States v. Lee, 54 F.3d 1534, 1540 (10th Cir. 1995). Although knowledge
a crime is being committed is relevant, some showing of intent to further the
criminal venture must be introduced at trial. United States v. Delgado-Uribe,
363 F.3d 1077, 1084 (10th Cir. 2004); see also United States v. Hanson, 41 F.3d
580, 582 (10th Cir. 1994) (A defendant may not stumble into aiding and abetting
liability by inadvertently helping another in a criminal scheme unknown to the
defendant.).
The governments case is not salvaged by its aiding and abetting theory.
Aiding and abetting requires a defendant to willfully associate himself with the
criminal venture and seek to make the venture succeed through some action of his
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own. United States v. Leos-Quijada, 107 F.3d 786, 794 (10th Cir. 1997); see
also United States v. Sarracino, 131 F.3d 943, 946 (10th Cir. 1997) (discussing
the required elements of a conviction under an aiding and abetting theory). In
other words, [t]he aider must have the mens rea to bring about the result
comm itted by the other principals. United States v. Cooley, 1 F.3d 985, 997
(10th Cir. 1993); see also United States v. Hatatley, 130 F.3d 1399, 1406 (10th
Cir. 1997) (discussing aiding and abetting liability and differentiating it from
principal liability). That being said, the government was required to prove Larry
participated in the assault and battery of Tutt intending (or reasonably expecting)
it would bring about his death. An unpredictable stabbing during the assault (and
certainly not later) would not satisfy that requirement. No evidence was
presented from which a rational jury could find Larry participated with the
knowledge or reasonable expectation the assault would be fatal. Because aiding
and abetting requires specific intent, United States v. Lambert, 995 F.2d 1006,
1008 (10th Cir. 1993), the act of assaulting Tutt, standing alone, is insufficient.
At the very least, the government was required to show Larry knew or should
have known a dangerous w eapon would be employed such that the jury could
infer he appreciated the risk of mortal injury and participated in the assault
nonetheless. But no such evidence, circumstantial or direct, was adduced.
Consequently, there was insufficient evidence from which the jury could find
Larry aided and abetted Tutts murder.
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C.

Henry W oody
Henry claims Hayess statements to A gent Hall regarding D efendants

propensity tow ard violence and talking about killing people when drinking were
erroneously admitted. He argues Hayess statements were not relevant (Fed. R.
Evid. 401), were unduly prejudicial (Fed. R. Evid. 403), and for the first time,
almost as an afterthought, argues the statement is inadmissible as evidence of
Henrys character (Fed. R. Evid. 404(a)). Because the statements w ere originally
intended to be introduced as substantive evidence, but actually came in as
impeachment evidence, we separately address each context.
1.

Statements as Substantive Evidence

W hen the government attempted to introduce Hayess statements to Agent

Hall as substantive evidence during Hayess direct examination, Henry objected
on the basis of Rules 401 and 403. A district court has broad discretion . . . and
will be reversed only on a showing . . . . it [made] a clear error of judgment,
exceed[ed] the bounds of permissible choice, or when its decision is arbitrary,
capricious or whimsical, or results in a manifestly unreasonable judgment.
United States v. Nickl, 427 F.3d 1286, 1300 (10th Cir. 2005) (quotations and
citation omitted).
Rule 401 of the Federal Rules of Evidence defines relevant evidence as that
which 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
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without the evidence. Henry claims Hayess statements were irrelevant because
(1) there was no foundation for Hayess knowledge of Henrys conduct while
drinking or angry, (2) there was no evidence the Defendants were angry the night
of the murder, and (3) general threats directed at no one in particular are not
probative of intent to kill a particular person. W e easily reject the Rule 401
arguments.
As to a lack of foundation, Hayes testified he knew Larry better than
Henry, but that does not negate personal knowledge of Henrys behavior. Hayes
admitted he was interviewed by Agent Hall and clearly stated his acquaintance
with both Defendants as w ell as his personal knowledge of Larrys tendency to hit
people w hen angry. Similarly, the lack of direct evidence that the Defendants
were angry the night of the murder is not fatal. The jury could reasonably infer
anger from their assault on M r. Tutt.
The government concedes a defendants generic threats to people other than
the victim are generally inadmissible to show the defendant was predisposed to
murder the victim. See People v. W illiams, 407 N.E.2d 608, 613 (Ill. App. Ct.
1980); see also Sikes v. State, 252 So.2d 258, 260-61 (Fla. Dist. App. Ct. 1971);
State v. Faust, 118 S.E.2d 769, 772 (N.C. 1961). However, it argues the
statements at issue were relevant because they prove motive for the
unpremeditated murder of Tutt, stating: In this case, the United States offered
the evidence to show that the W oody brothers become violent and angry while
-27-

drinking. The evidence made it more probable that the W oody brothers attacked
Tutt while drunk and angry, without any premeditation or any cognizable
motive. (Appellees Br. at 15.) Apparently, the government maintains if the
jury believed Hayess statements to Hall about the Defendants violent behavior
and threats of murder, it could infer the assault escalated into murder. Given this
explanation, the court could reasonably conclude the evidence was relevant, a
relatively low hurdle.
Henrys counsel also objected to the admission of the evidence with a very
general objection under Rule 403. Relevant evidence is excluded under Rule 403
if its probative value is 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. Unfair prejudice in the Rule 403 context means an undue
tendency to suggest decision on an improper basis, commonly, though not
necessarily, an emotional one. See United States v. Tan, 254 F.3d 1204, 1211
(10th Cir. 2001) (quoting Fed. R. Evid. 403 advisory committees note.)
W e find the Seventh Circuits discussion of motive in the context of Rule
404(b) instructive. In United States v. Cunningham, the court noted inadmissible
character evidence (i.e., propensity) and evidence of motive can overlap. 103
F.3d 553, 556 (7th Cir. 1996). They . . . overlap when the crime is motivated by
a taste for engaging in that crime or a compulsion to engage in it (an addiction),
-28-

rather than by a desire for pecuniary gain or for some other advantage to which
the crime is instrumental . . . . Id. The more overlap there is in a given case,
the greater the danger a jury will misuse the evidence, even when given a limiting
instruction. In Henrys case, the overlap is complete.
In opening argument, the government explained its theory of the case as
follow s:
This case is almost without a motive. Its a fight. Kenneth Tutt got
beaten. You say what was the motive? The motive you may infer
from the evidence and the facts that you get, that M r. Tutt had
recently got paid, he had money, and he having money would be able
to supply, with that money, the alcohol that these two defendants and
Kenneth were drinking. He was a source for the procurement of
alcohol. And when he didnt continue to procure it, he got beaten,
punished, stabbed and killed.
(R. Vol. VIII at 128.) Hayess statements regarding the Defendant propensity
toward violence when drinking was the only evidence supporting this theory.
There was testimony Tutt gave Larry some money to buy ocean, but no
evidence Tutt had just been paid, no evidence Tutt and either Defendant argued
over money, no evidence linking the murder to robbery, and no money found on
Henry or Larry. Consequently, only the Defendants violent and threatening
characters lend credence to the governments theory of Tutts murder. As a
result, the motive evidence is nothing more than evidence of Henrys general
propensity toward violence when drinking and angry. Showing that a man is
generally bad has never been under our system allow able. The defendant has a

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right to be tried on the truth of the specific charge contained in the indictment.
United States v. Gilliland, 586 F.2d 1384, 1389 (10th Cir. 1978). W e conclude
the district court erred in allow ing evidence of H enrys violent character.
The government argues that if there was error, it was harmless because no
actual character evidence was adduced through Hayess continued denial he
made the statement. The statements were presented to the jury solely through the
governments questions, which are not evidence, as the court so instructed. If this
were the only introduction of Hayess statements, we might agree. However, the
statements were reintroduced and affirmed by Hall only a short time later.
2.

Statements as Impeachment Evidence

Henry argues the district court improperly allowed the government to

introduce inadmissible substantive evidence under the guise of impeachment.
Although Henry did object to the use of the statement as improper impeachment,
he did so only because he claimed Hayess testimony at trial was not inconsistent,
an objection correctly overruled by the court. 6

Henrys counsel objected to the admission of impeachment evidence

under Rule 613 arguing that because Hayes testified he could not remember
making the statements, the report was not inconsistent w ith Hayess testimony.
The court overruled the objection stating:
His testimony was quite mixed with I dont remember or very
affirmative nos when he was very specifically asked, Did you say
this, did you do this? . . . . And I think that there was a great deal or
potential great deal of inconsistency in the statements as the w itness
is going to relate them.
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Rule 613(b) of the Federal Rules of Evidence provides:

(b) Extrinsic evidence of prior inconsistent statement of w itness.
Extrinsic evidence of a prior inconsistent statement by a witness is
not admissible unless the witness is afforded an opportunity to
explain or deny the same and the opposite party is afforded an
opportunity to interrogate the witness thereon, or the interests of
justice otherwise require. This provision does not apply to
admissions of a party-opponent as defined in rule 801(d)(2).
Rule 607 states: The credibility of a witness may be attacked by any party,
including the party calling the witness. Read together, Rules 607 and 613(b)
allow a party to impeach its own witness with extrinsic evidence of prior
inconsistent statements. See United States v. Carter, 973 F.2d 1509, 1512 (10th
Cir. 1992). Before such evidence is allowed, however, it must meet certain
requirements. First, under Rule 613(b), the witness must be confronted with the
statement and afforded an opportunity to explain or deny it. The record clearly
demonstrates this requirement was met.
There are further restrictions, however, to impeachment evidence. W hile
not specifically incorporated in Rule 607 or Rule 613(b), when the contradiction

(R. Vol. XI at 400.) Henry wisely does not raise this argument on appeal. See
United States v. Rogers, 549 F.2d 490, 496 (8th Cir. 1976) (A statements
inconsistency may be determined from the circumstances and is not limited to
cases in w hich diametrically opposite assertions have been made. Thus,
inconsistencies may be found in changes in position; they may be implied through
silence; and they may also be found in denial of recollection.); United States v.
Insana, 423 F.2d 1165, 1169-70 (2d Cir. 1970) (The conclusion that prior
testimony inconsistent with a present lack of memory may be admissible as a
contradiction is not a novel one.).

-31-

relates to a collateral matter, impeachment may be received only through the

testimony of the witness to be impeached. United States v. Durham, 470 F.3d
727, 732 (8th Cir. 2006). Evidence extrinsic to that witnesss testimony is
inadmissible to prove a witnesss trial testimony is contradicted by a previous
statement. The application of the collateral matter rule is an extension of Rule
403, which also remains controlling in admitting impeachment evidence. Id.; see
also United States v. Buffalo, 358 F.3d 519, 524-25 (8th Cir. 2004).
In addition, upon admission of prior inconsistent statements, [i]t is well
settled that contradictory statements introduced for the purpose of impeachment
are not admissible as substantive evidence. United States v. Neal, 452 F.2d
1085, 1086 (10th Cir. 1971); see also Carter, 973 F.2d at 1512 (A witness prior
statements are admissible only to impeach or discredit the witness and are not
competent substantive evidence of the facts to which the former statements
relate.) (quotations omitted). 7 Henry maintains Hayess

Henry also argues, although the evidence was not admissible for
substantive purposes, the governments primary purpose was to place the
evidence before the jury for just that purpose. Every circuit has said evidence
that is inadmissible for substantive purposes may not be purposely introduced
under the pretense of impeachment. United States v. Peterman, 841 F.2d 1474,
1479 n.3 (10th Cir. 1988) (listing cases); see also Carter, 973 F.2d at 1512 (The
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.) (quotations omitted). A party may
not call a witness knowing the witness will not provide substantive testimony but
only to impeach the witness with damaging prior statements that would,
otherwise, be inadmissible. However, the determination to admit or exclude
-32-

statements about the D efendants conduct when drinking fail each of these tests:

impeachment evidence pivots on the intentions of counsel. See Peterman, 841

F.2d at 1480 (factual findings by the trial court supported its conclusion the
prosecutor did not call witness with the primary purpose of introducing evidence
of his prior conviction.). In United States v. Clifton, the defendant challenged the
admission of impeachment testimony that would have been inadmissible hearsay.
406 F.3d 1173 (10th Cir. 2005). In his concurrence, Judge Hartz observed:
The Peterman rule strikes me as passing strange. W hy should the
admissibility of evidence depend on the state of mind of the attorney
proffering the evidence? To be sure, the prosecutors motive plays a
limited role in some legal issues . . . But it is hard to find support in
the Federal Rules of Evidence for considering attorney intent as a
factor in determining admissibility. Instead, as one would expect, we
look at factors relating to the probative and unfairly prejudicial
impact of the evidence. Of course, the more such prejudicial impact
exceeds the probative value, the greater the likelihood that the
prosecutors motive in proffering the evidence was impure. But
w hen the unfairly prejudicial impact substantially predominates, we
should not admit the evidence just because the prosecutor's thoughts
are pure, nor should we exclude evidence on the ground of
prosecutorial obliquity when the probative value is not substantially
outweighed by the danger of unfair prejudice. There is significant
authority for my view. See United States v. Ince, 21 F.3d 576, 580
(4th Cir. 1994) (Federal evidence law does not ask the judge . . . to
crawl inside the prosecutors head to divine his or her true
motivation.); United States v. Buffalo, 358 F.3d 519 (8th Cir. 2004);
4 Jack B. W einstein & M argaret A. Berger, Weinsteins Federal
Evidence 607.02[2][b] (2d ed.2004); 27 Charles A lan W right &
Victor James Gold, Federal Practice and Procedure: Evidence
6093 (1990) (recommending Rule 403 approach to propriety of
admitting impeachment evidence, although suggesting that it may be
useful to incorporate R ule 403 explicitly in Rule 607). I trust that we
will have occasion to revisit this issue.
Id., at 1185-86 (Hartz, J., concurring). W e agree, but need not reach the issue in
this case because we can resolve the issue under a Rule 403 analysis.

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(1) Hayess statement concerned an irrelevant, collateral issue; (2) the evidence
was highly prejudicial and its probative value regarding Hayess credibility was
negligible; and (3) the statements were used as substantive evidence.
a.

Collateral M atter

The collateral matter rule is a subset of a courts authority to exclude

impeachment evidence under Rule 403. W alker, 930 F.2d at 791. A matter has
been held to be collateral if it could not have been introduced in evidence for any
purpose independent of the impeachment. Id.; see also United States v. Rosario
Fuentes, 231 F.3d 700, 707 (10th Cir. 2000) (Because the truth-seeking function
of the court would be impaired, and because the questions [the witness] refused to
answer were germane to issues in the indictment, the testimony was not
collateral.); Fryar v. Curtis, 485 F.3d 179, 184 (1st Cir. 2007) (A matter is
considered collateral if the matter itself is not relevant in the litigation to
establish a fact of consequence, i.e., not relevant for a purpose other than mere
contradiction of the in-court testimony of the witness. Stated another way,
extrinsic evidence to disprove a fact testified to by a witness is admissible w hen it
satisfies the Rule 403 balancing test and is not barred by any other rule of
evidence.). The danger of allowing impeachment via a collateral matter is that
when the fact to be impeached is not material, the trier of fact may become
confused by the attention directed at an unimportant fact. As a result, the trier of
fact may attach undue importance to extraneous matters. 27 C HARLES A LAN
-34-

W RIGHT & V ICTOR J AMES G OLD , F EDERAL P RACTICE AND P ROCEDURE 6096.
In W alker, the defendant was charged with two counts of illegal possession
of a firearm. One of the counts stemmed from an incident in which W alker drove
to Hyles house, a man he suspected was dating his ex-wife. Hyle testified
W alker shot at him and he returned fire. To impeach this testimony, W alker
attempted to introduce evidence of the investigating officers testimony in a prior
hearing that Hyle told the officer W alker did not shoot first. The trial court
allowed W alker to put the officer on the stand. However, when the officer did not
testify he was told Hyle shot first, the court precluded further questioning of the
witness. W e upheld the trial courts decision, reasoning:
There is no dispute that the issue of w hether at some prior time M r.
Hyle stated he had fired first was relevant only for impeachment
purposes. The indictment charged only the status offense of
possession of a weapon and did not include assault charges. W ho
fired first was irrelevant to the issue of guilt. The defense effort to
impeach M r. Hyle on the issue of who fired first was therefore a
collateral issue . . . . [I]mpeachment on a collateral matter [is]
properly excluded in the discretion of the trial court.
930 F.2d at 791-92 (quotation omitted).
That evidence concerns a collateral matter does not, of course, necessarily
render it inadmissible. To the contrary, such evidence is admissible provided that
it is relevant and not otherwise prescribed by law or rule. United States v.
Fonseca, 435 F.3d 369, 374-75 (D.C. Cir. 2006). Under Rule 401, evidence that
contradicts a witnesss trial testimony, even on a collateral subject, may be

-35-

relevant because it would undermine [his] credibility as a witness regarding facts

of consequence. Id. at 375; see also United States v. M arino, 277 F.3d 11, 24
(1st Cir. 2002) (Nevertheless, extrinsic evidence to disprove a fact testified to by
a witness may be admissible if the trial judge deems that it satisfies the Rule 403
balancing test and it is not excluded by another rule.). Therefore, we proceed to
review the admission of Hayess statements under a Rule 403 analysis.
b.

Rule 403

Rule 403 requires the court to balance the relative probative and prejudicial
value of evidence. This serves to prevent a party from calling a witness,
knowing him or her to be adverse, merely to make an end-run around the rule
against hearsay by impeaching the witness with a prior inconsistent statement that
the jury would not otherwise have been allowed to hear. Durham, 470 F.3d at
732 (quotations omitted). The applicable inquiry is whether, under Rule 403,
[t]he prior statements are inculpatory to [the defendant] if considered to be true.
United States v. Logan, 121 F.3d 1172, 1175 (8th Cir. 1997). If so, to be
admissible, their value for impeachment purposes -- or portraying or exposing
[the witness] as a person who is unworthy of belief -- has to outweigh the danger
of unfair prejudice and jury confusion that those prior statements may create if
admitted. Id. The value of impeachment, then, is determined after an
examination of the entire testimony of the witness to be impeached.
Hayess testimony established his age, 34; the location and lack of security
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of his residence; his acquaintance with the Defendants; a birthday party on

August 25, 2004; the presence of his father and his fathers companion on the
25th in the shack; he did not see the Defendants on the 25th or 26th; he was
interview ed by Agent Hall and another officer; Henry stutters when he gets
nervous; 8 and Hayes did not remember or did not think he made certain
statements to Agent Hall. In other words, he did not testify to much of anything
demonstrating Henrys guilt. Instead, any impeachment was most probative of
what Hayes denied or could not remember at trial. Thus, the probative value of
the impeachment, challenging his credibility to undermine the subject matter of
his testimony, was negligible. M oreover, Hayess credibility was already
attacked by the court when it admonished him during his direct examination.
On the other hand, the admission of Henrys alleged behavior when
drinking or angry was highly prejudicial. No other w itness testified to H enrys
propensity for violence when drinking or his tendency to make death threats when
angry. W e recognize exclusion of evidence under Rule 403 that is otherwise
admissible under the other rules is an extraordinary remedy and should be used
sparingly. Tan, 254 F.3d at 1211 (quoting United States v. Rodriguez, 192 F.3d
946, 949 (10th Cir. 1999)). However, the danger of confusion which arises from

Originally, Hayes stated he did not remember telling Hall that Henry
stutters w hen Henry gets nervous. However, when asked directly if H enry
W ood, when he gets nervous, does he stutter? Hayes answ ered Yes. (R. Vol.
XI at 380.)
-37-

the introduction of testimony under circumstances such as are presented here is so

great as to upset the balance and to warrant continuation of the rule of exclusion.
United States v. Ince, 21 F.3d 576, 580 (4th Cir. 1994) (quotations omitted).
Thus, the unfair prejudice of Hayess out-of-court statement substantially
outweighed the probative value and were inadmissible to impeach Hayes under
Rule 403.
c.

Substantive Use of Impeachment

Because Hayess descriptions of the Defendants behavior was not admitted

for its truth, the jury could not properly consider them evidence of H enrys
motivation to kill or of his guilt. United States v. M agleby, 241 F.3d 1306, 1313
n.4 (10th Cir. 2001). Henry maintains, despite the courts limiting instruction to
the jury, this is exactly how the government urged the jury to use the information
in reaching a verdict. W e must agree.
In closing, the government stated, In the course of the impeachment [of
Hayes], later through Agent Hall, it was developed impeachment style on Hayes
that he told Agent Hall when these two defendants get mad, they talk about
killing people and [when] they drink, they threaten people. This is for you to
decide because youre the best people to do this. (R. Vol. XII at 480.) In other
words, the government invited the jury to use the impeachment testimony not to
judge Hayess credibility, but to believe his statements to Hall and determine
Defendants guilt from an inference they are violent characters who will murder
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when drinking and angry.

Indeed, the government continues to use the impeachment evidence for
substantive purposes on appeal. In its harmless error argument, the government
posits the evidence against Henry was sufficient, in part, because the evidence
showed Henry W oody told Paul Hayes not to say anything to the police about the
murder. (Appellees B r. at 26.) However, that fact w as introduced solely
through the impeachment testimony of Agent Hall, and therefore cannot be
considered as evidence of Henrys guilt.
W e sympathize with the district court given the lack of assistance from
counsel for all parties in appropriately defining the evidentiary issues. However,
despite our deferential review of the courts evidentiary decisions, we conclude
the admission of Hayess statement was error. The probative value was far
outweighed by the danger of unfair prejudice and jury confusion. Given the facts
before us, the admission of Hayess statements regarding Henrys propensity
toward violence placed the underlying fairness of the entire trial in doubt. See
Rosario Fuentes, 231 F.3d at 708.
As discussed in Larrys appeal, the evidence supporting Henry and Larrys
guilt overlapped and, as a whole, w as w eak at best. In addition, the possibility
the jury used these statements as substantive evidence cannot be ignored.
The introduction of such testimony, even where limited to
impeachment, necessarily increases the possibility that a defendant
may be convicted on the basis of unsw orn evidence, for despite
-39-

proper instructions to the jury, it is often difficult for jurors to

distinguish between impeachment and substantive evidence . . . .
W hen the prosecution attempts to introduce a prior inconsistent
statement to impeach its own witness, the statements likely
prejudicial impact often substantially outweighs its probative value
for impeachment purposes because the jury may ignore the judges
limiting instructions and consider the "impeachment" testimony for
substantive purposes.
Ince, 21 F.3d at 580-81 (quotations omitted); see also United States v. Beno, 324
F.2d 582, 587 (2d Cir. 1963) (By attempting to show [the defendant] was the sort
of man likely to be the perpetrator of crime, the prosecution denied him a fair
opportunity to defend against the particular crime charged, for this sort of
evidence weighs too heavily with the jury and makes impossible the dispassionate
approach necessary if justice is to be achieved.). Given the paucity of the
governments evidence (including the lack of forensic evidence against Henry),
the small probative value of impeaching Hayes, the governments suggestion in
closing that the jury use the statements for substantive purposes (coupled with an
unsupported comment that Hayes was afraid of the D efendants), we must
conclude the admission of Henrys propensity toward violence requires reversal

-40-

and a new trial. Therefore, the remainder of Henrys claims are moot.
Conclusion
Because the government failed to present sufficient evidence to find Larry

-41-

W oody guilty beyond a reasonable doubt, his conviction is REVERSED. 9 The

district courts erroneous admission of evidence showing Henry W oodys general
propensity tow ard violent behavior placed the underlying fairness of the entire
trial in doubt. His conviction is REVERSED and his case REM ANDED for
further proceedings consistent with this order.
In 06-2100, United States v. Henry Peter Woody Jr., Judge M cW illiams
dissents.

By Order dated A ugust 3, 2007, we reversed the conviction of Larry

W oody and remanded to the district court to enter a judgment of acquittal.
-42-