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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 18, 2002 Decided July 8, 2003

No. 01-3118

UNITED STATES OF AMERICA,

APPELLEE

v.

JERMAINE POWELL,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 00cr00192–01)

Gregory L. Poe, Assistant Federal Public Defender, argued

the cause for appellant. With him on the briefs was A.J.

Kramer, Federal Public Defender.

Barbara J. Valliere, Assistant U.S. Attorney, argued the

cause for appellee. With her on the brief were Roscoe C.

Howard, Jr., U.S. Attorney, John R. Fisher, Roy W. McLeese

III, and Roderick L. Thomas, Assistant U.S. Attorneys.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

Before: GINSBURG, Chief Judge, and EDWARDS and GARLAND,

Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: A federal jury in the District of

Columbia convicted the appellant, Jermaine Powell, of unlawful possession of a firearm and ammunition by a convicted

felon in violation of 18 U.S.C. § 922(g)(1). Powell’s sole

contention on appeal is that the trial judge erred by admitting

into evidence a prior consistent statement by the prosecution’s chief witness, the officer who arrested the appellant.

We conclude that any error in the admission of the statement

was harmless, and we therefore affirm Powell’s conviction.

I

On the night of April 9, 2000, in response to a radio call

reporting a stolen bicycle, Officer Oscar Mouton of the Metropolitan Police Department drove to 210 Rhode Island Avenue

in Northwest Washington, D.C. to interview the eight-yearold owner of the bike and his mother. According to the

officer’s trial testimony, the boy reported that his black

bicycle, which was missing a seat, had been stolen. Two

other neighborhood children reported that the thief was

‘‘down the street’’ on the bike at First and T Streets, N.W.

Trial Tr. at 51. Officer Mouton drove to that intersection in

his patrol car and, not seeing anyone with a bike there,

continued west on T Street, where he soon encountered

appellant Powell. Powell was on a black bicycle without a

seat, and, according to Mouton’s testimony, was wearing a

canvas coat and baseball cap. Officer Mouton parked his car,

walked up to Powell, and asked him where he had gotten the

bike. Powell responded that ‘‘the guy down the street’’ had

given it to him. Id. at 54.

Holding onto the bicycle, Officer Mouton asked Powell to

step over to the squad car. Instead, Powell ran. Mouton

pursued Powell down a fairly well lit alley. The officer

testified that, as Powell ran, he tossed off his jacket and cap.

Mouton said that he heard a ‘‘thud’’ when the jacket hit the

brick alley, and that when he reached the jacket he saw a gun
3

handle protruding from its pocket. Id. at 59. He then

stopped chasing Powell and stayed with the weapon in order

to prevent anyone else from taking it. Mouton radioed for

assistance from a crime scene search officer and issued a

‘‘flash lookout’’ with Powell’s description. Id. at 63. Another

officer arrived within minutes, saw the jacket and gun, and

agreed to stay with them while Mouton took off after Powell.

Mouton soon found Powell, now wearing only a T-shirt, hiding

under a piece of plywood leaning against a house at the end of

the alley.

At this point, two more officers arrived to assist in the

arrest. As he was being arrested, Powell looked at Mouton

and said: ‘‘Man, that guy gave me the bike.’’ Id. at 66.

After the arrest, Mouton took the bicycle to the boy’s apartment. But the boy told him that it was the wrong bike, and

that the actual thief had been a thirteen-year-old boy with a

handgun.

Powell did not testify at his trial. His mother and cousin

testified that they had never seen the jacket or cap before,

and a neighbor of the boy who lost the bicycle testified that

the officer had been told when he first visited the boy’s

apartment that the thief was another boy with a gun. In

closing argument, Powell’s counsel contended that neither the

jacket nor the gun belonged to Powell. The defense’s theory

was that Powell ran from the officer because he was afraid he

had unwittingly been given a stolen bike, and that Mouton—

seeking to be a ‘‘hero to a little kid,’’ id. at 283—planted the

jacket, cap, and gun.

The issue on appeal relates to Officer Mouton’s testimony

that he heard a ‘‘thud’’ when the jacket hit the ground. On

cross-examination, defense counsel introduced two police reports filed by Officer Mouton at or near the time of the April

9, 2000 arrest, as well as the transcript of the officer’s

testimony at Powell’s April 19, 2000 preliminary hearing.

The cross-examination established that, although on each of

those occasions Mouton had reported seeing a gun, he had

not mentioned hearing a thud.
4

On redirect, the government sought to point out that

Mouton had in fact mentioned a thud in his testimony before

the grand jury on June 1, 2000. Defense counsel objected to

the government’s attempt to introduce the grand jury testimony. He argued that the testimony was hearsay and did

not fall within the category of admissible prior consistent

statements defined by Federal Rule of Evidence 801(d)(1)(B),

as interpreted in Tome v. United States, 513 U.S. 150 (1995).

The district court disagreed and permitted the government to

introduce the testimony. Powell’s counsel used re-crossexamination to make clear that the police reports and preliminary hearing preceded Mouton’s testimony in the grand jury,

and that neither the defendant nor his counsel was present at

the grand jury proceeding. On further redirect, Mouton

testified that he had not described the thud in his police

reports because ‘‘[w]hen you try to document the word thud,

it doesn’t sound very professional.’’ Trial Tr. at 159.

The jury convicted Powell of one count of unlawful possession of a firearm and ammunition by a convicted felon, in

violation of 18 U.S.C. § 922(g)(1). Powell now appeals, challenging his conviction on the ground that the admission of

Officer Mouton’s prior consistent statement was reversible

error.

II

Federal Rule of Evidence 802 bars the admission of hearsay except as otherwise permitted by the rules or by statute.

Rule 801(c) defines hearsay as ‘‘a statement, other than one

made by the declarant while testifying at the trial or hearing,

offered in evidence to prove the truth of the matter asserted.’’

FED. R. EVID. 801(c). Rule 801(d), however, classifies certain

statements as ‘‘not hearsay.’’ As relevant here, the rule

states:

(d) Statements which are not hearsay. A statement is

not hearsay if—

(1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to crossexamination concerning the statement, and the state-
5

ment is TTT (B) consistent with the declarant’s testimony and is offered to rebut an express or implied charge

against the declarant of recent fabrication or improper

influence or motiveTTTT

FED. R. EVID. 801(d). In Tome v. United States, 513 U.S. 150

(1995), the Supreme Court held that Rule 801(d)(1)(B) ‘‘permits the introduction of a declarant’s consistent out-of-court

statements to rebut a charge of recent fabrication or improper influence or motive only when those statements were made

before the charged recent fabrication or improper influence

or motive.’’ Tome, 513 U.S. at 167.

There is no question but that Officer Mouton’s grand jury

testimony satisfies the first part of Rule 801(d): it is a prior

statement by a witness who testified at trial and was subject

to cross-examination concerning the statement. There is also

no dispute that it was consistent with Mouton’s trial testimony: on both occasions, he testified that he heard a thud when

Powell’s jacket hit the ground.

The controversy is whether the statement satisfies the premotive requirement elucidated in Tome. The government

argues that the implication of the defense counsel’s crossexamination of Officer Mouton, which the prior statement was

offered to rebut, was that Mouton’s motive to fabricate arose

at the trial. It further contends that, regardless of when the

motive to fabricate arose, Tome does not bar the use of postmotive prior consistent statements for the limited purpose of

rehabilitating a witness rather than proving the truth of the

matter asserted. Powell responds that his charge was that

Mouton’s motive to fabricate arose sometime before the date

of the grand jury testimony—no later than the date of the

preliminary hearing and as early as the time of the arrest—

and that admission of the testimony therefore transgressed

the rule enunciated in Tome. He further argues that Tome

leaves no room for a ‘‘rehabilitation’’ exception and that, in

any event, the trial judge’s jury instructions could easily have

led the jury to believe that the statement was being admitted

for its truth.
6

We need not resolve these questions. Even if the district

court erred in admitting the grand jury transcript, the ‘‘harmless error’’ rule of Federal Rule of Criminal Procedure 52(a)

provides that any error that ‘‘does not affect substantial

rights’’ shall be disregarded. See United States v. Olano, 507

U.S. 725, 734 (1993).1

 The Supreme Court has articulated

two versions of this rule, one for nonconstitutional errors and

one for errors of constitutional dimension. A constitutional

error is harmless if it appears ‘‘beyond a reasonable doubt

that the error complained of did not contribute to the verdict

obtained.’’ Chapman v. California, 386 U.S. 18, 24 (1967);

see Neder v. United States, 527 U.S. 1, 7 (1999). By contrast,

the standard for nonconstitutional error, as set forth in

Kotteakos v. United States, provides that such an error is

harmless if it did not have a ‘‘substantial and injurious effect

or influence in determining the jury’s verdict.’’ 328 U.S. 750,

776 (1946); see Brecht v. Abrahamson, 507 U.S. 619, 637

(1993); United States v. Johnson, 216 F.3d 1162, 1166 n.4

(D.C. Cir. 2000). In both circumstances, Rule 52(a)—which

applies where, as here, the defendant timely objected in the

district court—places the ‘‘burden of showing the absence of

prejudice’’ on the government. Olano, 507 U.S. at 741; see

id. at 734.

Powell contends that the admission of Mouton’s prior statement violated the Confrontation Clause of the Sixth Amendment. That contention is plainly wrong. As the Supreme

Court held in California v. Green, ‘‘the Confrontation Clause

is not violated by admitting a declarant’s out-of-court statements, as long as the declarant is testifying as a witness and

subject to full and effective cross-examination.’’ 399 U.S. 149,

158 (1970). Here, the declarant (Mouton) testified as a

witness and was subject to full cross-examination about both

his present testimony and his prior statement, an opportunity

that defense counsel used effectively. Accordingly, the alleged error was at most a misapplication of the Federal Rules

1 See also FED. R. EVID. 103(a) (‘‘Error may not be predicated

upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.’’).
7

of Evidence, and the Kotteakos standard therefore applies.

See United States v. Lampkin, 159 F.3d 607, 615 (D.C. Cir.

1998) (applying Kotteakos to assess whether the admission of

a prior consistent statement by a testifying witness was

harmless error); see also United States v. Clarke, 24 F.3d

257, 267 (D.C. Cir. 1994) (applying the Kotteakos standard to

admission of hearsay testimony).2

Applying that standard, we conclude that even if there

were error in the admission of Mouton’s prior consistent

statement, that statement did not have ‘‘a substantial and

injurious effect or influence’’ on the outcome of Powell’s trial.

First, the evidence against Powell was strong, although not

overwhelming. Officer Mouton testified that Powell ran

when Mouton tried to question him, an action readily attributable to his fear of conviction if caught with a firearm. Mouton further testified that Powell tossed off his jacket as he

ran, and that Mouton saw the gun protruding from the

jacket’s pocket after it landed on the ground. A second

officer testified that, when he arrived minutes later, he saw

both the gun and the jacket on the ground and waited with

them while Mouton pursued the defendant. Officers testified

that, when caught, Powell was wearing only a T-shirt, that

the night was cold, and that the T-shirt was insufficient

clothing for the weather3

—all supporting Mouton’s testimony

that the jacket with the gun belonged to Powell.

2 Powell cites our decisions in United States v. Mitchell and

United States v. Jordan for the proposition that, ‘‘because admission of hearsay implicates the Sixth Amendment’s Confrontation

Clause, errors must be harmless beyond a reasonable doubt.’’

Mitchell, 49 F.3d 769, 778 (D.C. Cir. 1995) (quoting Jordan, 810

F.2d 262, 264 (D.C. Cir. 1987)). Neither case, however, involved the

admission of a prior statement that had been made by a testifying

witness, and in Jordan, we expressly stated that it was ‘‘[t]he

government’s inability to produce [the witness] at trial’’ that gave

rise to the Confrontation Clause challenge. Jordan, 810 F.2d at

264.

3 By contrast, Officer Mouton himself was wearing a T-shirt,

uniform shirt, sweater, and body armor.
8

Second, the theory of Powell’s defense was implausible.

The theory—that Mouton planted the gun, jacket, and cap in

the alley—required the jury to believe that Mouton was

carrying an extra jacket and gun around with him, waiting for

the appearance of a coatless suspect upon whom they might

be foisted. Defense counsel presented no direct evidence to

contradict Mouton’s testimony as to what took place in the

alley, and the only evidence in support of the theory was the

testimony of Powell’s mother and sister that they had never

seen him wear the jacket or cap—although both conceded

that they did not know what he had been wearing on the

night of the arrest. Lacking much in the way of evidence,

Powell’s counsel argued that Mouton had a motive to plant

the weapon: he wanted to ‘‘be a hero’’ to the little boy whose

bike was taken. Id. at 283. What was missing, however, was

a connection between the asserted motive and the planting of

the gun. There was, after all, no dispute that Mouton

thought that he had found, and that he would be able to

return, the boy’s stolen bike—certainly sufficient to make him

a hero in the boy’s eyes.

Third, Powell did not suffer perceptible prejudice as a

consequence of the admission of the prior consistent statement. This was not, for example, a case in which the

introduction of one witness’ prior statement was used as an

excuse to put more credible witnesses on the stand to present

it. See Tome, 513 U.S. at 165 (noting concern that the

government had ‘‘present[ed] a parade of sympathetic and

credible witnesses who did no more than recount [the witness’] detailed out-of-court statements to them’’). Rather,

Officer Mouton simply read aloud the transcript of his own

grand jury testimony. Moreover, the prior statement was

wholly cumulative: it did nothing more than repeat what

Mouton had already said in his direct examination. This

‘‘extra helping of what the jury had heard beforeTTTT mattered little.’’ United States v. Simonelli, 237 F.3d 19, 29 (1st

Cir. 2001); see Lampkin, 159 F.3d at 615 (finding that the

admission of a witness’ prior consistent grand jury testimony

was harmless because it ‘‘was merely cumulative of other

evidence adduced at trial’’); Clarke, 24 F.3d at 267 (holding
9

that hearsay that repeated direct testimony was ‘‘harmlessly

cumulative’’); United States v. Albers, 93 F.3d 1469, 1484

(10th Cir. 1996) (holding that because a prior consistent

statement ‘‘merely repeated’’ testimony to the same effect, it

could not have had a substantial influence on the verdict).

Powell insists that he did suffer significant prejudice. He

notes that his principal defense was to attack Mouton’s

credibility by exposing discrepancies in his trial testimony.

He asserts that Mouton’s testimony about the thud was the

most powerful of those discrepancies, and that admission of

the prior statement ‘‘drove a stake into the heart of the

defense.’’ Appellant’s Br. at 26. We agree that the other

discrepancies were less powerful; indeed, they are too immaterial to require discussion. But we do not agree that

Powell’s attack on the thud had much persuasive value, or

that the trial court disabled that attack by admitting the prior

statement.

First, the attack on the thud had limited utility because the

thud itself added little to the government’s case. Mouton had

already testified that he saw the handle of a gun sticking out

of the jacket as it fell. Although Powell claims that the

evidence of sound bolstered the evidence of sight, no such

bolstering was required. The theory of the defense was not

that it was difficult to see in the alley (there was no claim that

‘‘it was a dark and stormy night’’), but that Mouton was lying

about what he saw there. If the jurors thought Mouton was

lying about what he saw, there would have been no reason to

believe he was telling the truth about what he heard. Conversely, if they believed Mouton’s testimony about what he

saw, the added testimony about what he heard could not have

made the difference between a not-guilty and a guilty verdict.

And because the ‘‘thud’’ was an insignificant part of the

government’s case, there was little impeachment value in

demonstrating that Mouton had left that minor detail out of

his original reports and testimony.

Second, the introduction of Mouton’s prior statement did

not significantly impair the ability of Powell’s counsel to

impeach Mouton for his failure to mention the thud from the
10

start. Powell’s counsel cross-examined Mouton about that

initial failure, and the court permitted him to re-cross the

officer after the prior consistent statement was admitted.

Counsel thus had a fair opportunity, which he used effectively, to make clear that the police reports and preliminary

hearing preceded Mouton’s grand jury testimony and that the

latter was the first time Mouton mentioned the thud. This, in

turn, gave the jurors the opportunity to draw whatever

inference they thought appropriate from the fact that Mouton

did not mention the sound until two months after the arrest.

See Albers, 93 F.3d at 1484 (holding that vigorous crossexamination regarding an improperly admitted prior consistent statement rendered its admission harmless error); United States v. Hernandez, 227 F.3d 686, 696 (6th Cir. 2000)

(noting that cross-examination gave the jury the opportunity

to consider the witness’ ‘‘motive to testify falsely at the time’’

of the prior consistent statements, which, together with the

cumulative nature of the statements, rendered their admission harmless).

There was, of course, one line of attack on Mouton’s

credibility that the admission of the prior statement did

foreclose. Once the jury was informed that the officer had

mentioned the thud before the grand jury in June 2000,

Powell could not argue that the May 2001 trial was the first

time Mouton had ever mentioned it. But there was no

cognizable prejudice in disabling that line of attack, because it

had never been available to Powell in the first place. It

would have been improper for Powell to make such an

argument because it was untrue. And, as counsel conceded

at oral argument, had Powell nonetheless made the argument,

he would (at a minimum) have opened the door to rebuttal

with the prior consistent statement to prevent the jury from

being misled.

In sum, in light of the relative strengths of the parties’

cases and the absence of material prejudice to Powell from

admission of the prior statement, we conclude that any error

in admitting that statement did not have a ‘‘substantial and

injurious effect or influence in determining the jury’s verdict.’’

Kotteakos, 328 U.S. at 776.
11

III

For the foregoing reasons, the judgment of the district

court is

Affirmed.