*

The Honorable John R. Adams, United States District Judge for the Northern District of Ohio, sitting by

designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 07a0326p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

TALMADGE CODY,

Defendant-Appellant.

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No. 06-6003

Appeal from the United States District Court

for the Eastern District of Tennessee at Greeneville.

No. 04-00014—J. Ronnie Greer, District Judge.

Argued: July 26, 2007

Decided and Filed: August 16, 2007 

Before: DAUGHTREY and GILMAN, Circuit Judges; ADAMS, District Judge.*

_________________

COUNSEL

ARGUED: David M. Eldridge, ELDRIDGE & BLAKNEY, Knoxville, Tennessee, for Appellant.

Robert M. Reeves, ASSISTANT UNITED STATES ATTORNEY, Greeneville, Tennessee, for

Appellee. ON BRIEF: David M. Eldridge, ELDRIDGE & BLAKNEY, Knoxville, Tennessee, for

Appellant. Robert M. Reeves, ASSISTANT UNITED STATES ATTORNEY, Greeneville,

Tennessee, for Appellee.

_________________

OPINION _________________

RONALD LEE GILMAN, Circuit Judge. A federal jury convicted Talmadge Cody on four

counts of a six-count indictment relating to his role in two robberies committed in Greene County,

Tennessee in February of 2004. Prior to his trial, Cody had moved to sever two “prejudicially

joined” counts of the indictment that charged him with escaping from the custody of the Greene

County Sheriff’s Department following his arrest. He had also moved to dismiss two other counts

relating to one of the robberies on the ground that the government had lost or destroyed relevant,

potentially exculpatory evidence. Finally, he had filed a motion to suppress the in-custody

statements that he had made to the investigating officers on the ground that his expressed suicidal

ideations at the time rendered those statements involuntary.

1
No. 06-6003 United States v. Cody Page 2

The district court denied all three of Cody’s pretrial motions. Cody challenges each of these

denials on appeal, as well as three additional adverse evidentiary rulings made by the district court

during the course of the trial. For the reasons set forth below, we AFFIRM the judgment of the

district court.

I. BACKGROUND

A. Factual background

This case concerns two armed robberies that occurred in Greene County, Tennessee over the

course of a three-day period in mid-February of 2004. The first, a relatively small-scale, multihundred-dollar heist at the Hurdy Gurdy Video Store on February 15, was followed by a larger,

multi-thousand-dollar robbery at the Greene County Bank on February 18. Approximately one week

later, officers from the Greene County Sheriff’s Department arrested Cody as a suspect. They would

later arrest both his wife, Linda, and his then-20-year-old son, Marshall. 

Following his arrest, Cody made several statements while in the custody of the Sheriff’s

Department concerning his role in the crimes. He was transferred to a local hospital after

complaining of chest pains in mid-March of 2004. But he escaped two days after the transfer,

assaulting and seriously injuring several hospital employees and a corrections officer in the process.

Cody was arrested approximately 15 hours after he had escaped. Officers found him hiding

in the back seat of his son’s sport-utility vehicle, where they also discovered the semiautomatic

pistol that he had taken from the corrections officer during his escape. Marshall, who was also

arrested at the time, subsequently gave a statement to an agent of the Federal Bureau of Investigation

regarding his role in his father’s escape from the hospital. 

B. Procedural background

The government charged Cody in a six-count indictment with (1) robbery of the Greene

County Bank, (2) carrying, using, and brandishing an assault rifle during the commission of that

robbery, (3) aiding and abetting his wife in the commission of the Hurdy Gurdy Video robbery,

(4) aiding and abetting his wife in carrying and using a firearm during the commission of that

robbery, (5) escape from custody, and (6) carrying and using a firearm during the escape. (His wife

and his son, who were separately indicted, have since pled guilty, with Linda being sentenced to 215

months in prison and Marshall to 48 months of probation.)

Cody’s first trial lasted a single day in February of 2005 and, following less than an hour of

jury deliberations, ended in convictions on all counts. With the aid of new counsel, Cody

subsequently filed a timely motion for a new trial. He presented numerous grounds in support of

his motion, most notably the admission at trial of an unredacted order of detention relating to his

escape that included prejudicial findings by the assigned federal magistrate judge. Following a

hearing, the district court granted Cody’s motion on this ground. 

Cody filed three motions prior to his new trial. He first moved to sever the escape-related

counts of the indictment on the ground that they had been improperly and prejudicially joined with

the robbery counts in violation of Rules 8 and 14 of the Federal Rules of Criminal Procedure. Cody

next moved to dismiss the first two counts of the indictment on the ground of lost or destroyed

relevant, potentially exculpatory evidence—specifically, videotapes from a convenience store that

the government had ultimately deemed irrelevant after a promising lead had proven false. Finally,

Cody moved to suppress what he claimed to have been involuntary statements that he made while

in the custody of the Greene County Sheriff’s Department. The district court denied all three of

these motions. 
No. 06-6003 United States v. Cody Page 3

At trial, Cody opted not to present any witnesses, instead moving for a judgment of acquittal

on all counts following the government’s case. The district court granted Cody’s motion as to the

fourth count only (aiding and abetting his wife in carrying and using a firearm during the

commission of the Hurdy Gurdy Video robbery). Subsequently, the jury found Cody guilty on

counts one, two, five, and six of the indictment, but not guilty on count three (aiding and abetting

his wife in the commission of the Hurdy Gurdy Video robbery). He was sentenced to 490 months

in prison. Cody timely appeals his convictions; he does not challenge his sentence.

II. ANALYSIS

A. Standard of review

We review a district court’s denial of a motion to sever under the abuse-of-discretion

standard. United States v. Smith, 197 F.3d 225, 230 (6th Cir. 1999). Regarding the denial of Cody’s

motion to suppress, we will not set aside the district court’s factual findings unless we find them to

be clearly erroneous, and we review its legal conclusions de novo. See United States v. Graham, 483 F.3d 431, 435 (6th Cir. 2007). In doing so, we view the evidence in the light most favorable to

the district court’s conclusion. Id. We also review de novo a district court’s denial of a motion to

dismiss an indictment on the ground of lost or destroyed exculpatory evidence. United States v.

Wright, 260 F.3d 568, 570 (6th Cir. 2001). Finally, we review a district court’s evidentiary rulings

under the abuse-of-discretion standard. United States v. Jones, 403 F.3d 817, 820 (6th Cir. 2005).

B. Motion to sever

Cody first argues that the district court abused its discretion in denying his motion to sever

what he characterizes as the “prejudicially joined” escape-related counts of the indictment. Rules

8 and 14 of the Federal Rules of Criminal Procedure govern the joinder and severance of the counts

of an indictment, respectively. Rule 8 provides in pertinent part that the joinder of offenses is

permissible where they are “of the same or similar character, or are based on the same act or

transaction, or are connected with or constitute parts of a common scheme or plan.” Fed. R. Crim.

P. 8(a). “Although this court has held that Rule 8 should be construed in favor of joinder, it is also

true that failure to meet the requirements of this rule constitutes misjoinder as a matter of law.”

United States v. Chavis, 296 F.3d 450, 456 (6th Cir. 2002) (quotation marks omitted). 

If the requirements of Rule 8 are not met, “the district court has no discretion on the question

of severance.” Id. (quotation marks omitted). And even if joinder in a given case does comply with

Rule 8, Rule 14 provides that “[i]f the joinder of offenses or defendants in an indictment . . . appears

to prejudice a defendant or the government, the court may order separate trials of counts, sever the

defendants’ trials, or provide any other relief that justice requires.” Fed. R. Crim. P. 14(a). 

Cody’s claim of misjoinder is premised on his allegation that “[t]he only relationship

between the 4 robbery related counts and the escape counts is that Mr. Cody was in custody for the

robbery counts at the time of the escape.” In support of this allegation, he emphasizes the

differences in (1) the number of people involved in the robbery counts as opposed to the escape

counts (Cody and his wife versus Cody alone), and (2) the time gap between the events that formed

the basis for each set of counts (four-and-a-half weeks). He also claims that the district court

necessarily accepted his misjoinder argument, at least in part, by ordering a new trial. 

Cody emphasizes that the district court based its new-trial ruling on “the introduction at trial

of the entire order of detention entered pre-trial by the United States Magistrate Judge.” In the

court’s opinion, certain statements made by the magistrate judge in the order “would [have] be[en]

highly suggestive to any reasonable jury that the defendant was not only guilty of committing crimes

of violence but that he would also not hesitate to assault a police officer in an effort to escape from

lawful custody.” Specifically, the court mentioned the magistrate judge’s comment that “defendants
No. 06-6003 United States v. Cody Page 4

had fatalistic attitudes and would have welcomed a shoot-out with police.” Nowhere in the district

court’s opinion, however, is there any indication that the court believed that the joinder of the

charges itself had been prejudicial to Cody.

Although Cody’s arguments on the merits of the misjoinder issue are reasonably debatable,

we need not address them. This court has adhered to Supreme Court precedent in holding that a

determination of misjoinder is subject to harmless-error review under Rule 52(a) of the Federal

Rules of Criminal Procedure, which permits reversal only for trial errors that “affect substantial

rights.” See Chavis, 296 F.3d at 461 (citing United States v. Lane, 474 U.S. 438, 449 (1986)). Error

based on misjoinder is almost always harmless where, as here, the trial court issues a careful limiting

instruction to the jury on the issue of possible prejudice resulting from the joinder. See Chavis, 296

F.3d at 461 (resting its harmless-error-based affirmance principally on the fact that “[t]he Supreme

Court has instructed . . . that the danger of prejudice resulting from improper propensity inferences

can be reduced significantly by proper curative instructions” (citing Lane, 474 U.S. at 450 n.13)).

Prejudicial joinder is particularly unlikely “where it would not have been difficult for the jury

to compartmentalize and distinguish the evidence concerning the different offenses charged.”

Chavis, 296 F.3d at 462 (quotation marks omitted); see also United States v. Frost, 125 F.3d 346,

391 (6th Cir. 1997) (“The District Court further minimized any prejudice by instructing the jury to

consider only the evidence against each defendant on each charge . . . without regard to the other

charges or defendants.”). We will therefore assume without deciding that the joinder in this case

was improper, and move directly to the issue of harmlessness. See, e.g., United States v. Demjanjuk, 367 F.3d 623, 632 (6th Cir. 2004) (noting that “we need not decide whether the district court’s ruling

was erroneous or whether this is a reviewable issue because if any error occurred it was harmless”)

(brackets omitted). 

In the present case, the district court issued the following limiting instruction to the jury at

the close of the evidence:

The defendant has been charged with multiple crimes. The number of charges is no

evidence of guilt and this should not influence your decision in any way. It is your

duty to separately consider the evidence that relates to each charge and to return a

separate verdict for each one. For each charge you must decide whether the

government has presented proof beyond a reasonable doubt that the defendant is

guilty of that particular charge. Your decision on one charge, whether it is guilty or

not guilty, should not influence your decision on any of the other charges.

This instruction is virtually identical to the one that this court deemed sufficient to overcome the

prejudicial effect of the improper joinder in Chavis. 296 F.3d at 462. In addition, “Lane instructs

that we should presume that the jury followed this instruction and did not make an improper

propensity inference.” Id. 

The jury’s acquittal of Cody on count three of the indictment (aiding and abetting his wife

in the commission of the Hurdy Gurdy Video robbery), moreover, is proof that the jury was, in fact,

able “to compartmentalize and distinguish the evidence concerning the different offenses charged.”

See id. (quotation marks omitted); see also id. (citing the defendant’s acquittal on a possession-withintent charge as “support for the conclusion that [the jury] did not label [the defendant] as a ‘drug

dealer’ based upon his involvement in [a separate firearm offense]”); United States v. Hubbard, 61

F.3d 1261, 1272 (7th Cir. 1995) (“[T]he fact that the jury convicted Hubbard on the weapons offense

but could not reach a verdict on the two narcotics charges suggests, if anything, that the jury was

quite able to separate the firearms count from the narcotics counts and deliberate each with the

appropriate evidence and legal criteria in mind.”); United States v. Bibby, 752 F.2d 1116, 1122 (6th

Cir. 1985) (citing acquittal on misjoined charges as evidence that the defendant was not prejudiced
No. 06-6003 United States v. Cody Page 5

by the joinder). We therefore conclude that the joinder of the escape-related counts with the

robbery-related counts of the indictment against Cody, even if improper, was harmless. 

C. Motion to suppress

Cody next argues that the district court erred in denying his motion to suppress the

statements that he had made while in the custody of the Greene County Sheriff’s Department

following his arrest. But his argument—namely, that his statements were not “voluntary” in light

of the suicidal tendencies that he was experiencing, and that he voiced, at the time—is squarely

foreclosed by Supreme Court precedent. The Court considered a similar argument in Colorado v.

Connelly, 479 U.S. 157, 164 (1986), where it explicitly declined to hold that “a defendant’s mental

condition, by itself and apart from its relation to official coercion, should ever dispose of the inquiry

into constitutional ‘voluntariness.’” Instead, “coercive police activity is a necessary predicate to the

finding that a confession is not ‘voluntary’ within the meaning of the Due Process Clause.” Id. at

167. Cody, however, does not allege that the officers who interviewed him coerced him in any way.

We therefore affirm the district court’s judgment denying Cody’s motion to suppress his custodial

statements.

D. Motion to dismiss

Cody also argues that the district court erred in denying his motion to dismiss counts one and

two of the indictment on the ground of lost or destroyed exculpatory evidence. In support of this

motion, Cody pointed out that the Greene County officers had collected two videotapes from a

convenience store’s surveillance cameras with the hope that they would help to reveal the identity

of the Greene County Bank robbers. But, Cody complains, “[t]hese video tapes were not logged into

evidence and at the time of trial could not be located.” The officers who testified at the hearing on

Cody’s motion did not dispute his factual allegations, but explained the absence of the tapes on the

ground that they “were not considered to be of any evidentiary value.” Specifically, the sole impetus

for obtaining the tapes in the first place was that the convenience store had deposited some dyestained money at another bank shortly after the Greene County Bank robbery. But, as Captain

Huffine testified, the evidentiary value of the deposited money “diminished as . . . soon as we found

out it wasn’t associated with the [dye-stained] bait money [used by the Greene County Bank].” 

Cody concedes that the exculpatory value of the tapes is unknown—that is, only “potentially

useful” at best. He must therefore show that the officers acted in bad faith in failing to preserve

them. See Arizona v. Youngblood, 488 U.S. 51, 57 (1988) (holding that, “unless a criminal

defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence

does not constitute a denial of due process of law”). The Court in Youngblood contrasted this

standard with the comparatively lighter burden of proof on the accused in cases where the

undisclosed evidence at issue is “material” and “exculpatory,” and “the good or bad faith of the State

[is] irrelevant” to the analysis. Id.

Cody’s attempt to show bad faith consists entirely of his assertion that “[l]aw enforcement

made a conscious choice to disregard evidence that they once presumed valuable without an

examination of that evidence.” Although Cody’s contention is factually accurate, he fails to mention

that the reason why the officers disregarded the evidence was their good-faith belief that it had no

relevance or value whatsoever to their investigation of the robberies. At the very least, the district

court’s acceptance of this rationale was not clearly erroneous. See United States v. Smith, No. 94-

6071, 1995 WL 399060, at *1 (6th Cir. July 6, 1995) (“A district court’s conclusion that the

government did not destroy potentially useful evidence in bad faith is a finding of fact that is subject

to reversal only for clear error.”); United States v. Ellis, — F.3d —, —, 2007 WL 2239196, at *4

(6th Cir. Aug. 7, 2007) (“On appeal, we review the district court’s findings of fact for clear error
No. 06-6003 United States v. Cody Page 6

. . . .”). We therefore affirm the judgment of the district court denying Cody’s motion to dismiss

counts one and two of the indictment.

E. Evidentiary objections

Finally, Cody argues that the district court made erroneous evidentiary rulings on three

separate occasions, each of which we will address in turn. His first such contention is that the court

abused its discretion in granting the government’s request to have Cody stand up in open court for

identification purposes. The government responds that the identification, which occurred during its

redirect examination of bank teller Amy Luttrell, had been invited by defense counsel when he

“opened the door” while cross-examining Luttrell about Cody’s physical build. 

In United States v. Young, 470 U.S. 1, 11-13 (1985), the Supreme Court outlined the contours

of what has become known as the “invited response” or “invited reply” doctrine. The doctrine takes

its name from “an all too common occurrence in criminal trials—the defense counsel argues

improperly, provoking the prosecutor to respond in kind, and the trial judge takes no corrective

action.” Id. at 11. We recognize that the doctrine is therefore technically inapplicable in the present

case, where there is no allegation that defense counsel’s questioning of Luttrell, as an initial matter,

was improper. Cf. United States v. Campbell, Nos. 98-1782/2174, 2000 WL 1597858 (6th Cir. Oct.

19, 2000) (Clay, J., concurring in part and dissenting in part) (insisting that the doctrine “only comes

into play if a defense counsel improperly attacks the prosecutor’s integrity”). 

The government, presumably for this reason, does not explicitly invoke the doctrine in its

brief. But the doctrine is instructive in that, as the Supreme Court clarified in Young, the inquiry

does not end upon a determination that a particular response was or was not invited, but additionally

demands that the response’s effect “be examined within the context of the trial.” 470 U.S. at 12; see

also id. (“[T]he issue is not the prosecutor’s license to make otherwise improper arguments, but

whether the prosecutor’s ‘invited response,’ taken in context, unfairly prejudiced the defendant.”).

In the present case, defense counsel cross-examined Luttrell, a Greene County Bank teller

at the time of the second robbery, solely to evoke her initial description of the male robber as having

had “a medium build.” Defense counsel asked whether the police officer to whom Luttrell gave her

description had “wanted you to describe the man’s weight and . . . his build,” and whether she had

“wanted to be as accurate as you could in answering his questions.” She answered both questions

“yes.” The actual in-court identification subsequently took place on redirect examination as follows:

Cody stood up, Luttrell looked at him, and she stated that “I wouldn’t describe him as large, and I

wouldn’t describe him as small, so I guess medium.” 

Cody argues that this identification was both irrelevant and unduly prejudicial because it

“implies that after more than two years in jail that not only does Mr. Cody have the same build he

had two years prior, but also that his build was consistent with that of the perpetrator of the Greene

County robbery.” But, as the government points out in its brief, the jurors saw the surveillance

video and related still-frame pictures of the bank robbery and therefore were able to decide for

themselves whether Cody’s build had changed over the course of two years. 

Although Cody correctly notes that “[t]he perpetrators of the robbery were disguised in

motorcycle helmets and jackets so that no distinguishing features were visible,” a person’s physical

“build” is a feature that can be ascertained despite the presence of disguises, especially when it is

described at so high a level of generality as “small,” “medium,” or “large.” We therefore conclude

that the district court did not abuse its discretion in allowing Luttrell to identify a standing-up Cody

in open court, especially in light of the weight of the other evidence against him. See Young, 470

U.S. at 11-12 (emphasizing that the invited-response doctrine is “no more than an application of
No. 06-6003 United States v. Cody Page 7

settled law” in that a reviewing court must still examine the response “within the context of the trial

to determine whether the prosecutor’s behavior amounted to prejudicial error”).

Cody’s next evidentiary argument is that the district court abused its discretion in admitting

the testimony of his wife and his son regarding the family’s drug use and, specifically, Cody’s drug

dealer and close friend “Trey.” Linda testified that, among other things, the motive for the bank

robbery was to acquire money to help her and Cody purchase more drugs, especially crack cocaine,

and to pay off debts that they owed to Trey. Motive, of course, is one of the purposes for which

evidence of other wrongs is generally admissible, see Fed. R. Evid. 404(b), and Cody does not

dispute the truth of Linda’s testimony. Nor can the prejudicial effect of her testimony, if any, be said

to “substantially outweigh” its probative value, given that Cody’s drug habits were “inextricably

intertwined with the bank robbery,” as the government aptly argues, and thus extremely probative

of motive. See Fed. R. Evid. 403 (“Although relevant, evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice . . . .”). We therefore find no

error in the admission of Linda’s testimony.

Regarding Marshall’s testimony about Trey, Cody objected to its admission solely on the

basis of relevance. But Marshall testified that Cody had gone to Trey’s house immediately

following his escape to get a change of clothes, which raises an inference that Trey had been

involved in planning the escape. Marshall’s testimony was therefore relevant in that it had at least

some “tendency to make the existence of [Cody’s escape] more probable . . . than it would [have]

be[en] without the [testimony].” See Fed. R. Evid. 401 (defining the term “relevant evidence”). The

district court accordingly did not abuse its discretion in overruling Cody’s objection to this specific

portion of Marshall’s testimony.

Cody’s final assignment of evidentiary error concerns the district court’s admission of the

portion of his audiotaped interview with the Greene County Sheriff’s Department in which he

expresses a desire to commit suicide. The court justified its decision by characterizing Cody’s

suicide-related statements as an admission of guilt. Specifically, the court noted that “he says here

[on the tape] that he couldn’t live in prison, so he was going to kill himself, which is itself an

admission.” The government elaborates in its brief that, “[i]n the context of defendant’s interview

with the officers, defendant’s thoughts of suicide were in response to his admission of guilt and his

consideration of the potential ramifications for committing the robberies.” Apart from invoking

basic evidentiary concepts such as relevance and Rule 403 probativeness-versus-prejudice

balancing, Cody fails to seriously dispute this admission-of-guilt rationale.

This court has never addressed the specific question of whether suicidal ideations and/or

attempts are admissible as evidence of consciousness of guilt. But this court has repeatedly

addressed the same general question in the roughly analogous context of a defendant’s flight from

the scene of a crime, employing the following four-step analysis to determine its probative value:

[T]he probative value of flight evidence depends upon the degree of confidence with

which four inferences can be drawn: (1) from the defendant’s behavior to flight;

(2) from flight to consciousness of guilt; (3) from consciousness of guilt to

consciousness of guilt concerning the crime charged; and (4) from consciousness of

guilt concerning the crime charged to actual guilt of the crime charged.

United States v. Atchley, 474 F.3d 840, 853 (6th Cir. 2007) (quotation marks omitted). Applying

this analysis to Cody’s in-custody statements about suicide is a logical extension of long-accepted

rules of evidence that treat suicide as a form of flight. See Tug Raven v. Trexler, 419 F.2d 536, 543

(4th Cir. 1969) (“Under generally accepted rules of evidence flight after the commission of a

criminal act constitutes circumstantial evidence of consciousness of guilt and suicide is a form of
No. 06-6003 United States v. Cody Page 8

flight.” (citing 2 Wigmore, Evidence § 276 (3d ed. 1940), and McCormick, Law of Evidence § 248

(1954))). 

We therefore hold that suicidal ideations and/or attempts may be admissible as relevant

evidence of consciousness of guilt, but only after being screened through typical Rule 403 balancing

in accordance with this court’s jurisprudence on the admissibility of flight evidence. See 2 Kenneth

S. Brown et al., McCormick on Evidence § 263 (6th ed. 2006) (“Critical scrutiny of the balance

between the often weak probative value of this type of evidence [of flight] and its prejudicial impact

is appropriate in each case.”).

In the present case, Cody made his statements about suicide while in the custody of the

Greene County Sheriff’s Department. He had been brought directly from his jail cell to the criminalinvestigation office, where three officers interviewed him. Exactly what Cody said is unclear

because the trial transcript omits the contents of the audiotape that the government played for the

jury, instead simply indicating “(CD PLAYING).” The government fills this gap by noting in its

brief that, “[d]uring the interview, defendant states that he has considered suicide as an alternative

to going to prison for what he has done.” Assuming that this is an accurate representation—and

given Cody’s failure to file a reply brief, we will treat it as such—then the “probative value” of the

statement ranks fairly high under the four-factor standard from Atchley quoted above. The words

“for what he has done,” after all, could reasonably be interpreted to satisfy the fourth inference:

“from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.” 

Atchley, 474 F.3d at 853.

 Nor was the admission of Cody’s suicide-related statements unduly prejudicial in

comparison to its probative value. See Fed. R. Evid. 403. In fact, Cody gives no indication

whatsoever in his brief as to why the statements had “a prejudicial impact on the jury,” as he

conclusorily argues. The only such indication appears in the trial transcript, where Cody’s attorney

objected to the admission of the statements because of “the potential for the jury to draw some

inference that he is psychologically impaired, or some other speculation that is simply not relevant.”

But even if the jury had inferred from Cody’s words that he was psychologically impaired, we fail

to understand how that inference necessarily would have prejudiced the jury against him. It might

equally have made him appear to be a more sympathetic character. 

 In any event, that lone inference does not “substantially outweigh” the statements’ probative

value as discussed above. To be sure, psychological impairment could have made the second

probativeness inference—namely, from suicidal ideations to consciousness of guilt—more difficult

to establish. But the government’s assertion that “defendant states [during the interview] that he has

considered suicide as an alternative to going to prison for what he has done,” an assertion that we

have already assumed to be accurate, contradicts a finding that Cody was in fact psychologically

impaired. We therefore conclude that the district court did not abuse its discretion in overruling

Cody’s objection and allowing the government to play the audiotape of his interview with the

Greene County Sheriff’s Department to the jury. 

III. CONCLUSION

For all of the reasons set forth above, we AFFIRM the judgment of the district court.