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United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-1045

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* District of North Dakota.

Chance Lee Wade Eagle, *

*

Appellant. *

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Submitted: June 12, 2007

Filed: August 21, 2007 (corrected 8/29/07)

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Before LOKEN, Chief Judge, COLLOTON and ARNOLD, Circuit Judges.

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ARNOLD, Circuit Judge.

After Chance Eagle was convicted of involuntary manslaughter in Indian

country, see 18 U.S.C. §§ 1112, 1153, he appealed, raising a plethora of evidentiary

issues. We affirm.

I.

Mr. Eagle and three teenage women were in his vehicle when it collided with

another vehicle, killing its driver. At trial, the government maintained that Mr. Eagle

was driving his vehicle while intoxicated when the accident occurred; Mr. Eagle
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sought to prove that one of the teenagers was driving. Mr. Eagle contends that the

district court should have allowed him to impeach two government witnesses with

extrinsic evidence of their out-of-court statements that one of the teenagers was

driving. 

At trial, Don Grey Day (an employee at the Prairie Knights Casino Quik Mart

where Mr. Eagle and the teenagers stopped at least twice before the accident) testified

that Mr. Eagle was driving the vehicle shortly before the collision. Katrina Donahue,

one of the teenagers in Mr. Eagle's vehicle, testified that Mr. Eagle was driving when

the accident occurred. Mr. Eagle sought to show that both of these statements were

inconsistent with out-of-court statements that the witnesses had made. 

Mr. Eagle maintains that on the day of the accident Mr. Grey Day told Linda

Eagle (Mr. Grey Day's co-worker and Mr. Eagle's aunt) that he saw one of the

teenagers driving Mr. Eagle's vehicle. Mr. Eagle also asserts that Jay Soft overheard

Ms. Donahue tell her mother that one of the other teenagers was driving. Upon

questioning from Mr. Eagle's counsel, both Mr. Grey Day and Ms. Donahue denied

making the prior inconsistent statements. Mr. Eagle then sought to impeach these

witnesses by having Ms. Eagle and Ms. Soft testify that the witnesses had, in fact,

made the inconsistent statements. The trial court ruled, however, that the evidence

was inadmissible hearsay.

The Federal Rules of Evidence define hearsay as an out-of-court statement

offered to prove the truth of the matter asserted. Fed. R. Evid. 801(c). Since

Mr. Eagle offered the testimony of Ms. Eagle and Ms. Soft to impeach the government

witnesses by showing that they had made statements contrary to their trial testimony,

not to establish the truth of those prior inconsistent statements, the excluded evidence

was not hearsay. And although Federal Rule of Evidence 613(b) permits the

admission of extrinsic evidence of prior inconsistent statements only where the

witness is "afforded an opportunity to explain or deny" the statement and "the
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opposite party is afforded an opportunity to interrogate the witness," these

preconditions were satisfied here. We do not see, moreover, any basis for concluding

that the probative value of the evidence was outweighed by the danger of unfair

prejudice or the other considerations that are set out in Federal Rule of Evidence 403.

The government argues that the court properly excluded the evidence because

it was admissible only for impeachment purposes and Mr. Eagle was really seeking

to introduce it as substantive evidence on the question of who was driving the vehicle.

But this argument is based on pure conjecture. Furthermore, the government does not

direct us to any case that holds that a party's subjective motive for introducing this

kind of evidence is relevant to the question of its admissibility, and we do not see how

it can be. The trial court therefore erred in excluding the extrinsic evidence.

A mere showing of error does not, of course, entitle Mr. Eagle to a new trial;

he must also establish that the error harmed him. An error is harmless if we conclude

that "no substantial rights of the defendant were affected and that the error did not

influence or had only a very slight influence on the verdict." United States v. Wilcox,

50 F.3d 600, 603 (8th Cir. 1995). 

Had the evidence been admitted, the government would have been entitled to

an instruction that the jury could use the evidence only in judging the witnesses'

credibility and not as substantive evidence of who was driving the vehicle. In

addition, the value of Ms. Eagle's impeachment testimony would itself have been

diminished by evidence that brought her own credibility into question. Ms. Eagle

would have testified that Mr. Grey Day made his statement to her during a third visit

that the defendant and the teenagers made to the Quik Mart. But none of the other

witnesses testified that there was a third visit and the surveillance video from Quik

Mart, which the government played for the jury, does not reveal any such visit.
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Even if the evidence would have affected the jury's view of the credibility of

Mr. Grey Day and Ms. Donahue, neither of these witnesses was essential to the

government's case. Mr. Grey Day did not address the key issue before the jury,

namely whether Mr. Eagle was driving at the time of the collision; he testified that he

saw Mr. Eagle driving the car at the Quik Mart fifteen miles from the crash site. And

the two other teenagers in Mr. Eagle's car corroborated Ms. Donahue's testimony that

the defendant was driving at the time of the accident. In addition, the government

offered testimony from another witness, Margaret Gates, from which the jury could

infer that Mr. Eagle was the driver immediately prior to the collision. We therefore

conclude that excluding the evidence was harmless.

Mr. Eagle also argues that we should reverse the district court's judgment

because the court's errors violated his constitutional right under the fifth and sixth

amendments to present witnesses in his defense. See United States v. Turning Bear,

357 F.3d 730, 741 (8th Cir. 2004). Assuming without deciding that a constitutional

violation did occur, we are satisfied that the errors were "harmless beyond a

reasonable doubt." See Chapman v. California, 386 U.S. 18, 24 (1967). Because, as

we have already said, the evidence of Mr. Eagle's guilt was strong and the probative

weight of the excluded evidence was relatively weak, we are confident that the

"error[s] complained of did not contribute to the verdict obtained." See id.

II.

Mr. Eagle maintains that the trial court erred in excluding evidence that his

brother was acquitted of a criminal offense in a prior trial. He contends that his sixth

amendment right to confront witnesses was violated when he was prevented from

using this evidence to cross-examine the two teenagers who, along with Ms. Donahue,

were riding in Mr. Eagle's vehicle and testified that he was driving. He also argues

that the court's ruling violated Rule 613, which allows defendants to impeach adverse

witnesses based on their bias. See United States v. Abel, 469 U.S. 45, 51 (1984).
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The confrontation clause guarantees defendants an opportunity to show the bias

of the witnesses against them, see Abel, 469 U.S. at 50, and Mr. Eagle contends that

he was prevented from showing that the two teenagers had a motive to implicate him

in a crime. One of the teenagers had previously accused Mr. Eagle's brother, Shiloh,

of sexual assault, and both of them had testified against Shiloh at the trial in which he

was acquitted of the charge. Mr. Eagle argues that he should have been permitted to

cross-examine the two teenagers about the acquittal to support an inference that they

were angry about Shiloh being acquitted and therefore wanted to punish him by

falsely testifying against his brother. Mr. Eagle also argues that Shiloh's acquittal

could have created a wholly different inference, i.e., that the teenagers had falsely

testified against Shiloh, who was innocent, and that they might therefore be likely to

do so against his brother, Mr. Eagle, because they might have a bias against the whole

family.

The court permitted Mr. Eagle to question the teenagers about any grudge that

they harbored because of the alleged sexual assault. He was also able to elicit facts

on cross-examination to support his theory that the teenagers testified falsely in his

trial to exact revenge against his brother. On cross-examination, Mr. Eagle brought

out the nature of the supposed offense, the fact that one of the teenagers was the

accuser, and the fact that the other teenager had testified against Shiloh at trial. As

Mr. Eagle notes in his brief, one of the teenagers also "acknowledged" during crossexamination that she and the other teenager had "discussed the complaint against

Shiloh" the night before. 

In excluding the acquittal, the district court stated that counsel had "gone far

enough if your purpose is to show a potential for bias." Mr. Eagle argues that

evidence of the acquittal would have provided additional support for his argument that

the teenagers had a motive to testify against him. But the teenagers had a motive to

do so from the supposed crime itself regardless of the outcome of Shiloh's trial: Even

if Shiloh had been convicted, the teenagers could still have been upset about the crime
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or about Shiloh's punishment. Evidence of Shiloh's acquittal would have added very

little of substance to Mr. Eagle's attempt to show that his accusers wanted to punish

him.

As to any inference that the teenagers committed perjury at Shiloh's trial,

Mr. Eagle himself admits on appeal that that is hardly the only inference that the

acquittal would support. The jury might have been in a merciful mood or the verdict

might have reflected the instructions given to the jury. The truth is that there is

simply no way to know why the jury acquitted Shiloh. See United States v. Beal,

430 F.3d 950, 955-56 (8th Cir. 2005). We therefore think that the excluded evidence

would have made virtually no contribution to determining whether the witnesses

perjured themselves at Shiloh's trial. 

We agree with Mr. Eagle that the confrontation clause guarantees defendants

the right to expose the possible bias of the witnesses against them, but we reject his

constitutional claim because we believe that he had an ample opportunity to discredit

the witnesses' testimony by cross-examining them regarding the sexual assault charge.

See Delaware v. Fensterer, 474 U.S. 15, 20-22 (1985) ( per curiam); United States v.

Hall, 171 F.3d 1133, 1146 (8th Cir. 1999). By allowing Mr. Eagle to explore the topic

of Shiloh's crime, the court provided him with "other ways to obtain the effect that the

excluded examination would have allegedly established." United States v. Brown, 110

F.3d 605, 611 (8th Cir.1997). 

We also reject Mr. Eagle's contention that he was entitled to a new trial because

the court's ruling violated evidentiary rules: For the reasons given above, we believe

that Shiloh's acquittal had little probative value and thus any evidentiary error in the

exclusion of this evidence was harmless. 
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III.

Mr. Eagle asserts that the district court erred by permitting the government to

introduce hearsay statements from two witnesses. Because Mr. Eagle did not object

to this evidence in the district court, we review only for plain error. See United States

v. Thompson, 403 F.3d 533, 537 (8th Cir. 2005).

A.

Mr. Eagle maintains that the district court erred in admitting hearsay evidence

during the government's cross-examination of Joseph Cheauma. 

After the collision, the teenagers walked to Mr. Cheauma's home and asked for

a ride. At trial, Mr. Eagle called Mr. Cheauma as a witness, and he testified that as he

was giving the teenagers a ride they told him that Mr. Eagle had been involved in a

car wreck. Mr. Cheauma said that he then searched for Mr. Eagle and found him lying

in a ditch. On cross-examination, Mr. Cheauma stated that the teenagers had told him

that Mr. Eagle was driving when the accident occurred. 

The government contends that the court properly admitted Mr. Cheauma's

hearsay testimony that the teenagers said Mr. Eagle was the driver because

Mr. Cheauma's testimony that the teenagers said that Mr. Eagle was involved in a car

wreck opened the door to the government's inquiry about exactly what the teenagers

had said. Of course, if defense counsel had asked Mr. Cheauma about who the

teenagers said was driving, then the government certainly could have further inquired

into this issue on cross-examination. But counsel made no such inquiry here. The

government correctly points out that under our case law the trial court may admit

otherwise inadmissible evidence to clarify an issue brought up in direct examination.

See United States v. Beason, 220 F.3d 964, 968 (8th Cir. 2000). We are highly

skeptical, however, about whether Mr. Cheauma's testimony opened the door to the

government's inquiry because Mr. Cheauma's statement about what the teenagers said

was not offered to prove their views on the car wreck or even that there had been a
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collision, but rather to explain Mr. Cheauma's actions leading up to him finding

Mr. Eagle. 

But even if we were to conclude that the court had plainly erred in admitting the

testimony, any error in its admission was harmless. Mr. Eagle cannot establish

prejudice here because of the limited value of Mr. Cheauma's statements about what

the teenagers told him and the significant amount of evidence tending to show that Mr.

Eagle was the driver. Mr. Cheauma's statements provided some small support to the

government's contention that Mr. Eagle was the driver, but the government already

had considerable evidence that that was so. 

B.

Mr. Eagle contends as well that the court erred in allowing the government to

introduce inadmissible hearsay testimony during its direct examination of Officer

DeLong. The government questioned the officer about his conversations with the

three teenagers at the Fort Yates hospital. Upon being asked whether the teenagers

identified the driver and occupants of the vehicle in that conversation, Officer DeLong

responded that they did. The government then asked whether the teenagers' stories

were consistent and he responded that they were. 

We agree with Mr. Eagle that Officer DeLong's testimony carried with it the

inference that the teenagers had said that Mr. Eagle was driving his vehicle when the

accident occurred. The testimony was therefore hearsay and it was not admissible as

a prior consistent statement of the teenagers under Rule 801(d)(1)(B) because there

was no claim that the teenagers had recently fabricated their testimony. But we are

totally disinclined to give relief on this basis because we don't think that the error was

"clear" or "obvious" and because it is not the kind of error that "seriously affect[s] the

fairness, integrity, or public reputation of judicial proceedings." United States v.

Olano, 507 U.S. 725, 734, 737 (1993) (quoting United States v. Atkinson, 297 U.S.

157, 160 (1936)). We detect no plain error here.
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IV.

Mr. Eagle maintains that the district court committed plain error by admitting

evidence of his blood-alcohol concentration, which, he asserts, resulted from an

unconstitutional warrantless search. The government argues that Mr. Eagle waived

review of this issue because he did not move to suppress this evidence before or

during trial. We have not yet decided whether the failure to raise a suppression matter

in a timely pretrial motion precludes plain error review. See United States v. Frazier,

280 F.3d 835, 845 (8th Cir. 2002), cert. denied, 535 U.S. 1107, 536 U.S. 931, 537

U.S. 911 (2002); see also Thompson, 403 F.3d at 537 n.4. Assuming without

deciding, however, that plain error review is available, we find no merit in Mr. Eagle's

claim of error.

As we have said, a plain error must be one that is clear and obvious. But it is

far from clear or obvious that there was a constitutional violation in the collection of

Mr. Eagle's blood sample. To the contrary, the record contains a great deal of

evidence that the search was proper.

Police may conduct a warrantless search by requiring an individual to submit

to a blood test where they have probable cause to do so and exigent circumstances

exist. Schmerber v. California, 384 U.S. 757, 769-71 (1966). Probable cause exists

"where the known facts and circumstances are sufficient to warrant a man of

reasonable prudence in the belief that contraband or evidence of a crime will be

found." Ornelas v. United States, 517 U.S. 690, 696 (1996). Exigent circumstances

exist when there is a risk of destruction of evidence, including a risk that a defendant's

blood-alcohol content will dissipate because "the body functions to eliminate [alcohol]

from the system." Schmerber, 384 U.S. at 770-71.

The record in this case would clearly support a finding of probable cause.

Mr. Grey Day testified that he contacted Prairie Knights Casino security officers to

report that Mr. Eagle was driving while intoxicated and that he later advised a police
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officer at the scene of the accident that he had seen Mr. Eagle intoxicated earlier.

Furthermore, marks on the roadway suggested that the two vehicles had collided in

one lane of travel, which is consistent with an accident caused by drunk driving.

The record also contains substantial evidence of exigent circumstances. Nearly

two and a half hours passed between the accident and the time when the blood was

drawn. Requiring the officer to get a warrant for the evidence would have resulted in

a greater delay, allowing for the further dissipation of alcohol in Mr. Eagle's blood and

creating a risk that Mr. Eagle would be unavailable for having his blood drawn upon

the officer's return.

Since there is a great deal in this record that would support a finding that the

warrantless search was valid, we can hardly conclude that it was plain error to admit

the evidence that the search turned up.

V.

Finally, Mr. Eagle argues that the district court erred in admitting testimony

from Ms. Gates about seeing a vehicle that the government contended belonged to Mr.

Eagle. Ms. Gates testified that she observed a vehicle with dealer plates carrying three

persons traveling at a high rate of speed toward the place where the collision occurred.

Mr. Eagle contends that the district court should have excluded this testimony under

Rule 403, which allows the court to exclude evidence that is more unfairly prejudicial

than probative. Mr. Eagle maintains that the testimony was speculative because Ms.

Gates could not provide a full description of the car and because she saw only three

occupants, while Mr. Eagle’s vehicle had four people in it.

We conclude that the district court did not abuse its discretion in admitting the

evidence, because it was not improperly speculative. See United States v. Claxton,

276 F.3d 420, 422-23 (8th Cir. 2002). The jury could conclude from Ms. Gates’s

testimony that the vehicle that she observed was Mr. Eagle's vehicle. Both the vehicle
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Ms. Gates saw and Mr. Eagle’s vehicle had dealer plates. Ms. Gates’s observation of

three persons in the vehicle coincided with the testimony of one of the teenagers that

she was sleeping in the back seat of the car (and therefore was not visible to

onlookers). Ms. Gates’s observation, moreover, was consistent with the timing of the

collision: She testified that shortly after seeing the vehicle, she heard a loud noise

and, a few minutes later, she observed an ambulance traveling in the direction from

which the noise had come. The evidence was clearly admissible and it was up to the

jurors to give it whatever weight they thought it deserved.

VI.

For the reasons stated, we affirm the district court's judgment.

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