PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 09-4439

PATRICK ALBERT BYERS, JR.,

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 09-4677

FRANK KEITH GOODMAN,

Defendant-Appellant. 

Appeals from the United States District Court

for the District of Maryland, at Baltimore.

Richard D. Bennett, District Judge.

(1:08-cr-00056-RDB-1; 1:08-cr-00056-RDB-2)

Argued: January 28, 2011

Decided: May 6, 2011

Before TRAXLER, Chief Judge, and

MOTZ and KEENAN, Circuit Judges.

Affirmed by published opinion. Chief Judge Traxler wrote the

opinion, in which Judge Motz and Judge Keenan joined.
COUNSEL

ARGUED: Marc Gregory Hall, HALL & CHO, PC, Rockville, Maryland; Mary Elizabeth Davis, DAVIS & DAVIS,

Washington, D.C., for Appellants. John Francis Purcell, Jr.,

OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for

Appellee.

OPINION

TRAXLER, Chief Judge:

Patrick Albert Byers, Jr., and Frank Keith Goodman were

convicted on charges stemming from a 2007 conspiracy and

murder of a witness to prevent him from testifying against

Byers in an upcoming state murder trial. Byers and Goodman

appeal, challenging several evidentiary rulings by the district

court. Goodman also appeals the denial of his motion to suppress. For the reasons that follow, we affirm.

I.

A.

The government presented strong evidence tying Byers and

Goodman to the killing of Carl Lackl and offered a motive for

the killing: Lackl was the prosecution’s primary witness in the

upcoming murder trial of Byers for the March 2006 murder

of Larry Haynes, and Lackl was expected to be the only witness to place Byers at the scene of that murder. Byers

attempted to refute the purported motive by attacking the

strength of the state’s case against him for the 2006 Haynes

murder and the reliability of Lackl as an eyewitness. Thus, the

identity of Byers as the person at the scene of the Haynes

2 UNITED STATES v. BYERS
murder became a critical part of the Lackl case. In response

to Byers’s strategy, the government sought to bolster Lackl’s

credibility and value as a witness by introducing evidence to

prove identity, and hence motive, that Byers had previously

shot another person in a drug dispute in the same block on

North Montford Street where Haynes was killed. 

B.

The evidence at trial showed the following chronology. On

May 24, 2004, Carlile Coleman was staying at a house located

at 506 North Montford Street in Baltimore. The homeowner

gave Coleman permission to set up a temporary car wash

stand in front of the house. Business was brisk, and Coleman

enlisted the help of two assistants. At some point, a person

named "Pierre," who Coleman believed was a drug dealer,

confronted Coleman and accused him or one of his assistants

of taking drugs out of Pierre’s car, presumably when they

were washing it. Pierre demanded payment for the drugs, but

Coleman denied having taken the drugs. A scuffle ensued,

and Pierre broke a broom across Coleman’s back. Coleman,

however, did not give Pierre any money for the purportedly

missing drugs. 

Following the altercation, Pierre left and Coleman went

inside the house. Pierre, however, returned with Byers, who

was concealing a gun under his shirt, and they forced their

way into the house. Coleman attempted to flee, but Byers shot

him in the buttocks. Coleman testified that Byers stood over

him as he lay on the floor and said, "I’m going to kill you."

J.A. 1076. Byers then pressed the gun against Coleman’s

stomach, shot him and left. Coleman sustained substantial

injuries that required an extended hospital stay. When he had

recovered enough to talk to the police, investigators came to

the hospital and presented a photo array to Coleman. Coleman

identified Byers as his assailant.

About two years later, Byers was implicated in another

shooting in the North Montford Street area. On March 4,

UNITED STATES v. BYERS 3
2006, Larry Haynes was shot and killed within a block of

where Coleman was shot. Around 3:30 p.m., Baltimore Police

Detective Thomas Martin was sent to the scene and recovered

.40 caliber shell casings and a .40 caliber bullet nearby. Also

during the investigation of the murder scene, police recovered

a .40 caliber semiautomatic handgun in an adjacent alley on

the 500 block of North Montford Street.

While he was still at the scene, Detective Martin was

informed that Carl Lackl had contacted police and claimed to

have witnessed the shooting. Detective Martin interviewed

Lackl later that afternoon. Lackl explained that he and Connie

Mays were driving along North Montford Street and stopped

on the 500 block for Lackl to urinate. He stepped into an

alley. Lackl then heard several gunshots, stepped out of the

alley and observed a man he did not know running in Lackl’s

direction along North Montford Street. Lackl saw the man

throw a gun onto the roof of a garage right next to an alley

across the street from the alley Lackl was in. This gun was

later recovered by law enforcement.1 The man continued running in a northbound direction and made eye contact with

Lackl as he passed him. Lackl then saw Haynes, who had

been shot eight times, lying on the ground about one-half

block away. Lackl approached Haynes to see if he could help

but left him there at the insistence of Mays.2 When Lackl

returned home, he recounted what he had witnessed to his girlfriend Malinda Humes and told her he wanted to call the

police and report the shooting. Although Humes, fearing

potential retribution from the suspect, advised him not to "get

involved," Lackl contacted police headquarters and met with

Detective Martin. According to Detective Martin, Lackl’s

1Because police found the gun lying on the ground in the alley rather

than on the roof of the garage, Detective Martin surmised that the gun simply "bounced off and landed in the alley." J.A. 993. 

2Mays testified that she and Lackl drove to North Montford Street to

purchase crack cocaine. Mays wanted to leave the scene of the shooting

to avoid getting caught with the drugs she had just bought. 

4 UNITED STATES v. BYERS
description of where the suspect discarded the firearm "precisely" matched the actual location where police had recovered the firearm earlier. 

Fortuitously, Baltimore City Police that same day arrested

Joseph Parham on unrelated drug possession charges. According to Detective Martin, Parham volunteered information

about the Haynes murder, explaining that he also had been on

North Montford Street earlier that day and had observed a

person he knew only as "Pat" arguing with Haynes. Parham

was standing close by when he heard gunshots and then saw

Pat shoot Haynes. Parham, who lived on North Montford

Street, knew both Pat and Haynes from his neighborhood and

knew Haynes dealt drugs in that area. Moreover, Parham told

Detective Martin that this was not the first North Montford

Street shooting in which Pat had been involved. Parham did

not know Pat’s full name, but he knew that Pat previously had

"shot a car wash guy in the 500 block of Montford" about "a

half block from where . . . Haynes was murdered." J.A. 950.

Detective Martin then consulted police records to find out

who "Pat" was and found the file on the 2004 shooting of

Coleman on the 500 block of North Montford Street. Detective Martin learned that, as Parham had suggested, a suspect

named "Pat"—Patrick Byers—had been arrested for shooting

Coleman. Police records contained a photograph of Byers,

which Detective Martin then used in compiling a photo array

of "suspects" in the Haynes shooting, containing photographs

of Byers and six other individuals. Parham identified Byers

from this array as the person who shot Haynes.

Having obtained Byers’s name and photograph from the

Coleman file, Detective Martin took a similar photo array to

Lackl’s home. Lackl identified Byers as the man he saw running from the area where Haynes was shot. According to

Detective Martin, Lackl’s identification "seemed very certain." J.A. 1006. Lackl then wrote, "I Carl Lackl believe that

. . . the person I picked out is the person that threw the gun

UNITED STATES v. BYERS 5
onto the roof of the garage," and signed his name. J.A. 1007

(internal quotation marks omitted). 

Based on the identifications by Parham and Lackl, Detective Martin arrested Pat Byers for shooting Haynes and

charged him with first degree murder. Byers admitted that he

and his associates were involved in the sale of heroin in the

North Montford Street area. Byers further admitted having

been in the North Montford Street area around the time of the

shooting to check on his drug sales for the day. Byers also

conceded that he knew Haynes and that he believed Haynes

had recently shot and killed Byers’s cousins. Nevertheless,

Byers claimed that there were no problems between him and

Haynes. Detective Martin did not reveal that police had

already recovered the gun, but Byers volunteered that he had

hidden a gun near a garage on North Montford Street and that

he had intended to turn it over to an "Officer Kevin" in

exchange for having drug charges against him dropped. 

As Byers’s trial for the Haynes murder approached, Parham

began to express reluctance to testify. In April 2007, with trial

scheduled for July 10, 2007, Parham recanted his identification of Byers and claimed that he fabricated the entire story.

Thus, Lackl became the sole eyewitness in the Haynes murder

case.

On July 2, 2007, with trial scheduled to begin in one week,

Lackl was shot to death in front of his home on Philadelphia

Road. Lackl had been trying to sell his used Cadillac and had

received a call that evening from someone claiming to be

interested in buying the car. The caller indicated he was in the

area, so Lackl went outside and waited with his young daughters in front of his house. When a car subsequently stopped in

front of his house, Lackl approached. Before he reached the

car, however, an occupant sitting in the front passenger seat

shot Lackl three times and killed him. 

Baltimore County police officers were dispatched to

Lackl’s home to investigate the shooting and learned that

6 UNITED STATES v. BYERS
Lackl had been expected to testify the following week in a

state murder trial at which Byers would be facing a first

degree murder charge. Byers was in state custody when Lackl

was killed.

Investigating officers traced phone calls coming into

Lackl’s residence on the day of the murder (including calls

just minutes before the murder) to a cell phone owned by

Marcus Pearson. Ultimately, Pearson cooperated and admitted

his role in Lackl’s murder. According to Pearson, in June

2007, Goodman offered Pearson $2500 to kill Lackl for

Byers, explaining that Byers was facing trial on murder

charges and needed to eliminate Lackl as a witness. Pearson

agreed to "take care of it" and called Byers, who had a contraband cell phone with him in jail, to verify the $2500 offer for

Lackl’s murder. J.A. 733; 736-37. The government introduced

evidence seized from Byers’s jail cell shortly after the murder,

including documents containing Lackl’s home address. Pearson testified that Goodman gave him this same address as

well as Lackl’s phone number. Goodman also informed Pearson that Lackl was selling a used Cadillac, information Pearson used to lure Lackl out of his house. 

Rather than commit the murder himself, Pearson, a member

of the "Bloods" street gang, recruited Jonathan Cornish, a

young gang member known as a "baby gangsta," to do the

actual shooting. As a "baby gangsta," Cornish was obligated

to perform the murder for free.

On the day of the murder, Pearson supplied Cornish with

a handgun and directed Cornish and Michael Randle, also a

member of the Bloods, to follow Pearson and Tammy Graham, Pearson’s girlfriend, to Lackl’s house. Graham knew

nothing about the murder-for-hire scheme; Pearson simply

told her to drive down Philadelphia Road so that he could

look at a car that was for sale. On the way, Pearson intended

to use a "burner" phone that he had acquired solely for the

purpose of making an untraceable call to Lackl before the

UNITED STATES v. BYERS 7
murder. Pearson told Lackl on the phone that he was interested in the Cadillac, that he was nearby, and that Lackl

should wait for him outside. As they drove by Lackl’s house

without stopping, Pearson and Graham saw Lackl standing by

his car in the front yard. Cornish and Randall also passed by

initially but then returned. As Cornish and Randall came to a

stop, Lackl approached the front passenger window where

Cornish was sitting. Cornish shot Lackl twice while he was

standing and a third time after he fell to the ground. Moments

after killing Lackl, Cornish called Pearson and reported that

he had finished the job. In turn, Pearson immediately called

Byers and reported that Lackl was dead; Byers then indicated

that other prisoners wanted to have witnesses eliminated as

well. Pearson disposed of the burner phone on the way home;

however, he had mistakenly used his personal cell phone to

make the call to Lackl, and that phone call eventually led

police to him.

Within 15 minutes of the shooting, Pearson called Goodman’s cell phone to set up a time and place for him to collect

payment for killing Lackl. Graham drove Pearson to meet

Goodman on the way home, although she was unaware of the

purpose of the meeting. Pearson met with Goodman in Goodman’s black Thunderbird, and Goodman paid $2200, $300

less than promised. Pearson paid Cornish and Randle $100

each and later took Graham for a night at the Baltimore Inner

Harbor Marriott hotel. Graham also testified at trial, corroborating much of Pearson’s story. Specifically, she testified that

on the day of the murder, Graham agreed to drive Pearson to

Philadelphia Road to look at a car for sale. She confirmed that

Cornish and another individual followed her and Pearson to

Philadelphia Road; that Pearson made a phone call in transit

asking for Lackl to come outside; that she did not stop and the

car following them made a U-turn back to Lackl’s house; and

that they stopped shortly after driving down Philadelphia

Road and Pearson got into Goodman’s car.

8 UNITED STATES v. BYERS
Cornish also cooperated with the government and testified

at trial, confirming basic details about the murder presented

through Pearson’s testimony. Cornish further admitted that he

was the triggerman who shot Lackl.3

The government introduced numerous summaries of calling

records obtained by investigators for cell phones recovered

from Pearson, Goodman, and Cornish, and for the phone

number linked to Byers’s contraband cell phone. Although

Byers’s phone was not recovered, Pearson identified its number, and records established frequent calls from that number

to members of Byers’s family and to Byers’s girlfriends.

Phone records reflected calls between all of these phones on

the day of the murder. The heaviest contact occurred between

the Goodman and Byers cell phones, which made 12 "direct

connect" contacts on the day of the murder; the evidence also

established numerous contacts in the month before the murder. Likewise, phone records showed several July 2 calls

between Pearson’s phone and Byers’s phone, as well as calls

between Pearson and Goodman mere moments before and

after Lackl was shot. 

Goodman was arrested on September 5, 2007, and officers

recovered the cell phone that he had used to communicate

with Byers before and after the murder. Goodman was questioned at Baltimore County Police headquarters for more than

6 hours about his involvement in the Lackl murder, but Goodman maintained his innocence. 

Byers and Goodman were charged with multiple counts

stemming from Lackl’s murder, including conspiracy to use

interstate communication facilities in the commission of a

murder for hire, see 18 U.S.C. § 1958(a), and conspiracy to

murder a witness resulting in death, see 18 U.S.C.

3Cornish, only 15 at the time of the murder, entered a plea agreement

under which state murder charges were dismissed. Cornish received a 40-

year sentence. 

UNITED STATES v. BYERS 9
§ 1512(a)(1)(C). Byers alone was also charged with two

counts stemming from the 2006 shooting of Haynes: possessing a firearm as a felon, and possessing a firearm in furtherance of a drug trafficking crime. The case proceeded to trial.

As noted previously, the government presented evidence

that Byers arranged for Lackl’s murder because of Lackl’s

expected trial testimony identifying Byers as the individual

Lackl saw running with a gun from the scene of the murder

of Haynes. Byers countered the government’s motive evidence by eliciting testimony that undermined the strength and

reliability of Lackl’s photographic identification. The defendants highlighted Lackl’s habitual drug use during the time

that he witnessed the shooting of Haynes; established through

cross-examination of Detective Martin that DNA linked to

Quinten Hogan, a gang member who lived near the location

of the Haynes murder, was found inside the gun that Lackl

saw Byers discard; and questioned Detective Martin about the

failure of investigators to submit a photographic lineup to witnesses who were in a store on the corner where Haynes was

shot.

In response, the government moved to introduce under Federal Rule of Evidence 404(b) evidence about the 2004 shooting of Carlile Coleman on North Montford Street within a

block of where Haynes was killed. Over the objections of

defense counsel, the district court permitted the government

to present evidence that Coleman survived the shooting and

later identified Byers from a photographic lineup as the person who shot him over the drug dispute. The government also

presented evidence suggesting that Byers was an established

drug dealer in the North Montford Street/Jefferson Street area

and that Byers shot Coleman and killed Haynes—himself a

drug dealer—to protect Byers’s "turf." 

Baltimore City Police Detective Wayne Jenkins testified

that he was assigned to the narcotics unit in 2006 and worked

the North Montford/Jefferson Street area on a daily basis.

10 UNITED STATES v. BYERS
Detective Jenkins knew Byers as an informant and daily saw

Byers near the garage on North Montford Street where Lackl

indicated the handgun had been thrown after the Haynes murder. Moreover, Detective Jenkins noted that there was significant drug traffic at the corner of North Montford and

Jefferson where Haynes was killed, and, based on his training,

information gleaned from numerous prior narcotics investigations in that area, and personal observation, Jenkins believed

"that was [Byers’s] intersection, that was his corner . . . [h]is

street shop." Trial Transcript, Nov. 16, 2009, at 116. Although

Detective Jenkins had never personally witnessed Byers making a sale, he saw Byers routinely standing at his corner conversing with drug dealers "all day long." Id. at 118. 

Finally, Detective Jenkins testified that drug dealers routinely engaged in territorial disputes and fought over street

corners that served as distribution points. Detective Jenkins

concluded that Byers was giving him information in an

attempt to eliminate the competition from rival dealers—Byers supplied Detective Jenkins with tips about drugs

being sold in the general area but never gave him information

about drug sales at the corner of North Montford and Jefferson. 

Byers and Goodman were convicted on seven of the nine

charges against them in the indictment, including a conviction

of Byers for violation of the felon-in-possession law during

the 2006 Haynes shooting.4 Byers and Goodman both

received life sentences. On appeal, Byers and Goodman challenge several evidentiary rulings by the district court. We

address each of their contentions below. 

4The jury, however, acquitted Byers on the charge that he possessed a

firearm in furtherance of a drug trafficking crime during the 2006 Haynes

shooting. This verdict is obviously not determinative of the evidentiary

issues. 

UNITED STATES v. BYERS 11
II.

Byers argues that the district court abused its discretion in

admitting testimony under Rule 404(b) that in 2004 Byers

shot Carlile Coleman on the same North Montford Street

block where Haynes was killed. We disagree.

Rule 404(b) prohibits evidence of "‘other crimes, wrongs,

or acts’" solely to prove a defendant’s bad character, but

"[s]uch evidence . . . may ‘be admissible for other purposes,

such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.’"

United States v. Basham, 561 F.3d 302, 326 (4th Cir. 2009)

(quoting Fed. R. Evid. 404(b)). Rule 404(b) is a rule of inclusion, "admitting all evidence of other crimes or acts except

that which tends to prove only criminal disposition." United

States v. Young, 248 F.3d 260, 271-72 (4th Cir. 2001) (internal quotation marks omitted). 

For prior bad acts to be admissible under Rule 404(b), the

proffered evidence (1) "must be . . . relevant to an issue other

than character," such as identity or motive, United States v.

Siegel, 536 F.3d 306, 317-18 (4th Cir. 2008) (internal quotation marks omitted); (ii) "must be necessary to prove an element of the crime charged," United States v. Queen, 132 F.3d

991, 995 (4th Cir. 1997), or to prove context, see id. at 998;

and (iii) "must be reliable." Id. at 995. In addition, "the probative value of the evidence must not be substantially outweighed by its prejudicial effect," which "involves a Rule 403

determination," United States v. Lighty, 616 F.3d 321, 352

(4th Cir. 2010). We review the district court’s decision to

admit evidence under Rule 404(b) for abuse of discretion. See

Basham, 561 F.3d at 325. And, we will not find a district

court "to have abused its discretion unless its decision to

admit evidence under Rule 404(b) was arbitrary and irrational." United States v. Weaver, 282 F.2d 302, 313 (4th Cir. 2003).5

5Though we review the admissibility of the Coleman evidence under

Rule 404(b), we are cognizant of its relevance to explain how Pat Byers

came to be identified by the police and ultimately by Lackl. 

12 UNITED STATES v. BYERS
The district court concluded that the 2004 Coleman shooting was important to several critical issues at trial, particularly

Byers’s identity at the Haynes murder scene. The court noted

that Byers’s defense to the Lackl murder charges was largely

focused on eroding Byers’s purported motive to shoot Lackl

by showing that "Lackl had mistakenly identified him as the

person fleeing from the [Haynes] murder scene in possession

of a firearm" and posed little threat to Byers as a witness. J.A.

360. The district court reasoned the Coleman evidence was

relevant to establish identity in light of the similarities

between the Coleman shooting and the Haynes murder:

There are significant similarities between the

Coleman shooting and the Haynes murder, and such

similarities are especially significant to the relevance

inquiry under Rule 404(b). In both situations, Byers

asserted control over his drug turf through the close

range use of a semi-automatic handgun in broad daylight. Moreover, both incidents are closely linked by

their geographical proximity. The Coleman shooting

occurred at 506 N. Montford Ave., which is less than

a block away from where Haynes was shot and

directly across the street from the alley where Lackl

saw Byers discard his gun.

These similarities reinforce the relevance of the

Coleman shooting to the government’s claim that

Byers possessed a firearm while fleeing from the

scene of the Haynes murder on March 4, 2006. In

addition, the Coleman shooting is probative of

whether Byers was at the scene of the Haynes murder and whether he was correctly identified by

Lackl—an issue that Byers intends to challenge. Evidence that Byers committed the Coleman shooting in

assertion of his drug turf makes it more probable that

he was correctly identified as asserting control over

the same location during the Haynes murder. . . . 

UNITED STATES v. BYERS 13
J.A. 360-61 (citations omitted). 

The district court also found that the Coleman evidence

was "necessary" within the meaning of Rule 404(b) to counter

Byers’s strategy of negating motive by attacking Lackl’s identification. The court explained that 

[t]he challenged evidence does not address collateral

issues, but instead supports the government’s theory

that Byers was an established drug dealer in the

vicinity of 506 [North] Montford Avenue and that he

used firearms to control his domain. More specifically, . . . the evidence is necessary to reinforce the

government’s claim . . . that Byers was correctly

identified as discarding a gun near the scene of the

Haynes murder. 

J.A. 362 (citation omitted).

A.

1. Relevance under Rule 404(b)

The question of whether Byers had a motive to kill Lackl

was intertwined at trial with the question of whether Lackl

was accurate in his identification of Byers in the Haynes murder. Byers takes umbrage with the district court’s conclusion

that the Coleman evidence was relevant to whether Lackl correctly identified Byers as the fleeing suspect in the Haynes

murder. Byers argues that, except for geographical proximity,

the Coleman shooting and the Haynes murder are dissimilar.

Byers points out that the two incidents lacked temporal proximity, and he contends that the evidence reflected very different motives in each case. According to Byers, the alleged

motive for the murder of Haynes would have been revenge

since there was evidence that Haynes had shot and killed two

of his cousins. By contrast, the alleged motive for the Coleman shooting was drug-related, i.e., Byers was protecting his

14 UNITED STATES v. BYERS
business in the North Montford Street area. Thus, Byers

argues, the connection between the Coleman shooting and the

Haynes murder was too attenuated to be probative as to

whether Lackl’s identification was mistaken, which, in turn,

had bearing upon Byers’s alleged motive to kill Lackl. We

disagree.

First, the evidence presented at trial was sufficient to permit

the jury to reasonably conclude that Byers shot Haynes to

retain dominion over his drug turf. Detective Jenkins testified

that Byers sold heroin in the North Montford and Jefferson

Avenue area and that he was sufficiently engaged in the drug

trade to have established his own "street shop" at the corner

of North Montford and Jefferson Streets around the time

Haynes was murdered there. Detective Martin testified that

Byers admitted to him that on the day of the Haynes shooting,

he had been on North Montford Street checking on his drug

sales and he also volunteered that he had hidden a firearm in

the area. And, there was testimony from Parham, a neighborhood resident, that Haynes was himself a drug dealer. Thus,

both direct and circumstantial evidence supported the theory

that Byers shot Coleman and Haynes because of conflicts

over drugs within a half-block of each other and on a section

of North Montford Street considered to be Byers’s street shop.

On this evidence, the jury could have easily rejected Byers’s

alleged motive of wanting to avenge the murder of his cousins

and believed that Byers shot Haynes, like Coleman, to protect

his position as a drug dealer on that block. 

Because the evidence plausibly suggested a common theme

to the shooting of Coleman and the murder of Haynes, we

conclude that the Coleman shooting was relevant to the

charges against Byers for the murder of Lackl. Clearly, Byers

premised his defense on showing that the prosecution’s case

against him for murdering Haynes was so weak that he had

nothing to fear from Lackl’s identification and therefore did

not have a strong motive to prevent Lackl from testifying. In

light of Byers’s defense, his motive for killing Lackl was conUNITED STATES v. BYERS 15
nected to the strength of Lackl’s identification of Byers in the

Haynes murder. The introduction of the Coleman evidence

makes it much less likely that Lackl was simply mistaken

when he picked Byers out of the lineup. In both incidents, the

evidence tied Byers to the general area on North Montford

Street where Haynes was shot and suggested Byers was there

not by coincidence, but to oversee drug sales in that vicinity.

The Coleman evidence strengthened Byers’s connection to

the place where Haynes was shot, and made Lackl’s identification of Byers as the killer of Haynes much more certain. See

United States v. Sanchez, 118 F.3d 192, 196 (4th Cir. 1997)

(noting that prior bad acts occurring in the same "geographic

area" as the charged act is a factor that increases the relevance

Rule 404(b) evidence). 

Second, Byers’s argument on appeal gives short shrift to

the district court’s conclusion that the Coleman shooting was

relevant "to the government’s claim that Byers possessed a

firearm while fleeing the scene of the Haynes murder on

March 4, 2006." J.A 360. Unlike other counts in the superseding indictment, counts eight and nine did not arise from the

scheme to murder Lackl. Rather, counts eight and nine

charged Byers with the commission of two firearms offenses

on March 4, 2006, the date of the Haynes murder: illegal possession of a firearm in violation of 18 U.S.C. § 922(g)(1)

(count 8), and possession of a firearm in relation to a drug

trafficking crime in violation of 18 U.S.C. § 924(c)(1)(a)(1)

(count 9). 

The Coleman evidence was clearly relevant to counts eight

and nine. Indeed, evidence, to be relevant, "need only to have

any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence." United

States v. Aramony, 88 F.3d 1369, 1377 (4th Cir. 1996) (internal quotation marks omitted). The evidence recounted previously reasonably suggested that Byers was illegally in

possession of a firearm on March 4, 2006, see 18 U.S.C.

16 UNITED STATES v. BYERS
§ 922(g), and that he was engaged to some extent in drug trafficking activities that same day as well, see 18 U.S.C.

§ 924(c)(1)(a)(1). Coleman’s testimony underscored the government’s theme that Byers was a drug dealer who used a gun

to exert control over the spot where Haynes was shot and the

nearby surrounding area. See United States v. Jernigan, 341

F.3d 1273, 1281-82 (11th Cir. 2003) ("Put simply, the fact

that [the defendant] knowingly possessed a firearm in a car on

a previous occasion makes it more likely that he knowingly

did so this time as well, and not because of accident or mistake.")

2. Necessity under Rule 404(b)

We also reject Byers’s argument that the Coleman evidence

was not "necessary" as required by Rule 404(b). See Queen,

132 F.3d at 995. At trial, Byers created an issue over the identity of Haynes’s assailant and made it central to the case. Primarily through cross-examination, Byers attacked Lackl’s

credibility as an effective witness and the reliability of his

identification placing Byers at the scene of the Haynes murder

by highlighting many problems with the Haynes murder prosecution. Byers elicited evidence showing that there were

problems for state prosecutors to overcome in the Haynes

case and casting doubt on whether Byers had shot Haynes and

was, in fact, the person Lackl had seen fleeing and discarding

a gun: DNA recovered from the gun was linked to a gang

member who resided nearby; two witnesses in a nearby store

heard shots and saw someone running away, but were never

presented a photographic lineup; Lackl, as a habitual drug

user, could well have been mistaken; and Parham, the only

other witness, had recanted his identification of Byers. 

Evidence is necessary "where it is an essential part of the

crimes on trial, or where it furnishes part of the context of the

crime." United States v. Mark, 943 F.2d 444, 448 (4th Cir.

1991) (internal quotation marks and citation omitted); see

United States v. Smith, 441 F.3d 254, 262 (4th Cir. 2006)

UNITED STATES v. BYERS 17
("Evidence is necessary, even if it does not relate to an element of a charged offense, when it furnishes part of the context of the crime." (internal quotation marks omitted)).

Significantly, courts must determine whether prior bad acts

evidence is "necessary" under Rule 404(b) in "light of other

evidence available to the government." Queen, 132 F.3d at

998 (internal quotation marks omitted). Thus, "as the quantum

of other non-Rule 404(b) evidence available to prove an issue

unrelated to character increases, the need for the Rule 404(b)

evidence decreases." Lighty, 616 F.3d at 354; see id. ("[I]f the

Rule 404(b) evidence is entirely cumulative to other non-Rule

404(b) evidence available to the government, the Rule 404(b)

evidence may not meet the necessity prong." (emphasis

added)). 

Of course, the inverse is true as well, such that Rule 404(b)

evidence is more likely to become necessary where the evidence intrinsic to the crime at issue is sparse or weak. See

United States v. Wilson, 624 F.3d 640, 654 (4th Cir. 2010);

United States v. DiZenzo, 500 F.2d 263, 266 (4th Cir. 1974).

Logically, then, when the evidence presented to the jury

"generate[s] uncertainty" about motive or identity, "resort to

. . . other crimes evidence [may be] appropriate." United

States v. Hadaway, 681 F.2d 214, 218 (4th Cir. 1982); cf.

United States v. Lamarr, 75 F.3d 964, 970-71 (4th Cir. 1996)

(evidence necessary to prove lack of credibility is an issue

separate from character and satisfies Rule 404(b)).

Byers’s cross-examination of the government witnesses

created a significant credibility issue, thereby "generat[ing]

uncertainty" about whether Byers was the person who shot

Haynes. Hadaway, 681 F.2d at 218. Because Detective Martin’s testimony about Lackl’s statements was the government’s only evidence placing the gun in Byers’s hand at the

Haynes murder scene, Coleman’s testimony was necessary to

make more certain the identification made by Lackl and rebut

Byers’s attack on Lackl as a reliable witness. See United

States v. Gettel, 474 F.3d 1081 (8th Cir. 2007) (explaining

18 UNITED STATES v. BYERS
that the government may refute defendant’s attacks on witness

testimony with Rule 404(b) evidence); United States v. Hersh,

297 F.3d 1233, 1254 n.31 (11th Cir. 2002) (same). Accordingly, we conclude that the government’s evidence was also

"necessary" for purposes of Rule 404(b).6

B.

Byers next contends that the probative value of the Coleman evidence was outweighed by its prejudicial effect. Evidence sought to be admitted under Rule 404(b) must satisfy

Rule 403’s requirement that the probative value of the evidence must not be "substantially outweighed by the danger of

unfair prejudice, confusion of the issues, or misleading the

jury, or by considerations of undue delay, waste of time, or

needless presentation of cumulative evidence." Fed. R. Evid.

403. "[G]eneral prejudice, however, is not enough to warrant

exclusion of otherwise relevant, admissible evidence. Evidence may be excluded under Rule 403 only if the evidence

is unfairly prejudicial and, even then, only if the unfair prejudice substantially outweighs the probative value of the evidence." Siegel, 536 F.3d at 319. In turn, unfair prejudice

exists "when there is a genuine risk that the emotions of a jury

will be excited to irrational behavior, and this risk is disproportionate to the probative value of the offered evidence." Id.

Generally speaking, "bad acts" evidence, admissible under

Rule 404, is not barred by Rule 403 where such evidence "did

not involve conduct any more sensational or disturbing than

the crimes with which [the defendant] was charged." United

States v. Boyd, 53 F.3d 631, 637 (4th Cir. 1995).

Here, the Coleman shooting evidence is actually less sensational than the murder of Haynes, which was clearly admissible, or the murder of Lackl, which was carefully planned and

6On appeal, Byers does not challenge the reliability of the Coleman evidence. Accordingly, we need not address that requirement under Rule

404(b). 

UNITED STATES v. BYERS 19
carried out in front of Lackl’s daughters for the purpose of

precluding Lackl’s testimony and evading punishment for the

murder of Haynes. With regard to the Coleman shooting, the

evidence suggests that the incident was spontaneous and not

the result of an elaborate plan. And, of course, the shooting

did not result in Coleman’s death. 

Furthermore, the possibility of unfair prejudice from the

Coleman testimony was abated by the two limiting instructions offered by the district court—one immediately before

the Coleman evidence was presented to the jury and one

immediately before jury deliberation. In the charge to the

jury, the district court instructed "you may not consider the

evidence of this alleged [Coleman incident] as a substitute for

proof that the defendant committed a crime charged in the

indictment. Nor may you consider this evidence as proof that

the Defendant Byers is a criminal personality or bad character." J.A. 1589. See United States v. White, 405 F.3d 208, 213

(4th Cir. 2005) ("[A]ny risk of such prejudice was mitigated

by a limiting instruction from the district court clarifying the

issues for which the jury could properly consider [the] evidence."). Accordingly, we reject this argument as well.

In sum, we conclude that the district court did not abuse its

discretion in admitting the Coleman evidence. The district

court admitted the evidence in question for permissible purposes under Rule 404(b) and not merely to show general

criminal disposition.

C.

Finally, even if the district court abused its discretion in

admitting evidence of the Coleman shooting, we conclude

that the error was harmless. See Fed. R. Crim. P. 52(a) ("Any

error, defect, irregularity, or variance that does not affect substantial rights must be disregarded."); Lighty, 616 F.3d at 355-

56 (erroneous admission of prior bad acts evidence under

Rule 404(b) subject to harmless-error analysis). Under the

20 UNITED STATES v. BYERS
harmless-error standard, we will not reverse if we can "say,

with fair assurance, after pondering all that happened without

stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error." Kotteakos v.

United States, 328 U.S. 750, 765 (1946); United States v.

Brooks, 111 F.3d 365, 371 (4th Cir. 1997). The government

introduced overwhelming evidence of Byers’s guilt in planning and executing the murder of Lackl. In addition to direct

testimony from Pearson that Byers ordered and paid for the

hit on Lackl and the confession of the actual killer, the government presented substantial evidence establishing telephonic communication between Cornish the triggerman,

Pearson, Goodman, and Byers on the day of the murder. The

evidence also established an obvious motive for Byers to kill

Lackl—the elimination of the sole remaining witness against

him on state murder charges. In view of the strong evidence

suggesting that Byers planned the murder-for-hire against

Lackl, we can say with "fair assurance" that the evidence of

Coleman’s non-fatal shooting was harmless. 

III.

Byers next argues that the district court abused its discretion in permitting and failing to give a curative instruction

regarding Malinda Humes’s testimony that she warned Lackl

his involvement as a witness would get him killed. We find

no error. 

Humes, Lackl’s live-in girlfriend at the time of the Haynes

murder, was at home when Lackl and Connie Mays returned

from their trip to buy drugs on North Montford Street. Prior

to trial, the district court granted the government’s motion in

limine to admit Lackl’s statements to Humes under Rule

804(b)(6) of the Federal Rules of Evidence. See Fed. R. Evid.

804(b)(6) (providing exception to hearsay rule for "[a] statement offered against a party that has engaged or acquiesced

in wrongdoing that was intended to, and did, procure the

UNITED STATES v. BYERS 21
unavailability of the declarant as a witness"). Accordingly,

Humes recounted what Lackl told her about the incident: 

He was real hyper and he said – he just kept pacing back and forth saying you won’t believe what I

just seen.

I said what happened? And [he] said he went into

the alley to urinate, and he seen a man shoot another

man, and the man ran past him and looked at him

and laughed. And as he was laughing, he threw the

gun up on the roof.

And he kept saying he wanted to call the police.

And I told him don’t get involved in it, that they

would wind up killing him. He said he couldn’t just

sit back and let – I’m getting ahead of myself. I

asked – 

J.A. 483. 

Byers did not object to this testimony or request a curative

instruction with respect to Humes’s statement that the suspects "would wind up killing him." The district court, however, called the lawyers to the bench sua sponte to clarify the

limits on the court’s pre-trial ruling that Lackl’s statements

could come in through Humes: 

THE COURT: I have overruled [Byers’s] objection for reasons previously stated on the record, and

[Humes] can testify as to Mr. Lackl’s description of

events and his description of the assailant, but we’re

not going to have this witness offer statements such

as he couldn’t stand by, et cetera.

It seems like that the witness was going to say

[Lackl] didn’t feel like he could stand by and not say

anything. I don’t think that’s the ambit of my ruling.

22 UNITED STATES v. BYERS
So you know what your witness is going to say,

Mr. Purcell? I don’t. I don’t want her to get into

describing what she saw.

. . .

Everything that Carl Lackl said . . . is not automatically subject to the wrongdoer exception admission.

. . . 

[A.U.S.A.] PURCELL: The only thing I think

she’s going to say based on my understanding is . . .

that [Lackl] said he was going to call the police . . . .

THE COURT: That’s . . . fine. I thought she was

going to say some self-serving comments, what

[Lackl] thought he should do as a citizen.

J.A. 484-85. Neither the court nor defense counsel addressed

Humes’s testimony that she believed Lackl’s involvement

would result in his murder. 

When testimony resumed, Humes affirmed that Lackl

indeed called the police about ten minutes after returning

home. Byers successfully objected to a number of questions

asking Humes to explain her response to Lackl’s decision to

report the shooting even though Byers had not objected to

Humes’s earlier testimony. 

On appeal, Byers does not challenge the trial court’s ruling

that Lackl’s statements to Humes were admissible. Rather,

Byers contends that the district court erroneously allowed

Humes to testify regarding her response to Lackl’s decision to

report the shooting to the police: "I told him don’t get

involved in it, that they would wind up killing him." J.A. 483.

Byers apparently believes that Humes’s statement was speculative and irrelevant because she was offering an opinion as

UNITED STATES v. BYERS 23
to the ultimate issue before the jury.7

 Because the testimony

was unexpected and Byers interposed no objection after

Humes blurted out her statement to Lackl, Byers is now

essentially challenging the district court’s failure to give a

curative instruction sua sponte to the jury to disregard

Humes’s testimony that she was concerned Lackl’s involvement would expose him to violent reprisal from Byers. 

We review a district court’s evidentiary rulings for abuse of

discretion, provided the defendant preserves his objection at

trial. See Basham, 561 F.3d at 325 & n.11. However, when an

evidentiary issue is raised for the first time on appeal, our

consideration is limited to plain error review. See Fed. R.

Crim. P. 52(b). This court will notice the error only if the

defendant can show: (1) error; (2) that is "clear or obvious,

rather than subject to reasonable dispute"; (3) that affected

substantial rights, "which in the ordinary case means . . . that

it affected the outcome of the district court proceedings"; and

(4) that "seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings." Puckett v. United States,

129 S. Ct. 1423, 1429 (2009) (internal quotation marks omitted). Plain error review is "strictly circumscribed" and

"[m]eeting all four prongs is difficult, as it should be." Id. at

1428, 1429 (internal quotation marks omitted).

Even if we assume that Humes’s statement was improper

and inadmissible, a district court does not commit plain error

7

It is not clear precisely why Byers believes the statement was inadmissible. In his opening brief, Byers argued that Humes’s testimony she told

Lackl that he would be killed if he went to the police violated an earlier

order of the district court. This argument proved to be factually inaccurate.

The district court’s only prior ruling regarding Humes’s probable testimony was encompassed in an order granting the government’s motion in

limine to admit Lackl’s statements to Humes. The ruling did not address

anything Humes said to Lackl. In his Reply Brief, Byers conceded that

there was no prior ruling addressing Humes’s statements to Lackl and

recast the argument solely as an objection to opinion testimony on "the

ultimate issue for the trier of fact." Reply Brief at 12. 

24 UNITED STATES v. BYERS
merely because it fails to give curative instructions sua sponte

any time improper evidence comes out during trial. The unsolicited comment by Humes was brief and, as other courts have

observed in similar circumstances, "a curative instruction

could easily have done more harm than good by focusing the

jurors on [testimony] that they otherwise might have missed

or construed as innocuous." United States v. Deandrade, 600

F.3d 115, 119 (2d Cir. 2010); see id. (finding district court’s

failure to issue curative instruction sua sponte was not plain

error in light of the additional fact that "[t]he government

never relied upon the challenged testimony"). Presumably

Byers did not immediately object to Humes’s comment

because the defense wished to downplay this testimony; a

curative instruction could have undercut that very strategy.

See United States v. Copeland, 51 F.3d 611, 616 (6th Cir.

1995) ("The defense claims that it did not raise an objection

to these comments because ‘[t]o directly object each and

every time would have only emphasized the prejudicial matter.’ Arguably, a curative instruction would have emphasized

this testimony, and, therefore, would have deprived the

defense of its chosen trial strategy. Not issuing the instructions sua sponte under these circumstances was not reversible

error.").

Furthermore, even assuming for the purposes of this appeal

that the court’s failure to act constituted plain error, we find

that this error did not affect Byers’s substantial rights given

the volume of evidence supporting his convictions.

IV.

Goodman argues that the district court abused its discretion

in permitting the government to call Michelle Fisher as a

rebuttal witness. "Rebuttal evidence is defined as evidence

given to explain, repel, counteract, or disprove facts given in

evidence by the opposing party" or "[t]hat which tends to

explain or contradict or disprove evidence offered by the

adverse party." United States v. Stitt, 250 F.3d 878, 897 (4th

UNITED STATES v. BYERS 25
Cir. 2001) (internal quotation marks omitted). Evidence

offered in rebuttal "may be introduced only to counter new

facts presented in the defendant’s case in chief." Allen v.

Prince George’s County, Md., 737 F.2d 1299, 1305 (4th Cir.

1984). The decision of a trial court to allow rebuttal evidence

is reviewed under an abuse of discretion standard. See Hospital Bldg. Co. v. Trustees of The Rex Hosp., 791 F.2d 288, 294

(4th Cir. 1986).

The government introduced evidence that Goodman supplied Pearson with Lackl’s home address, where the murder

was subsequently committed. At trial, Pearson testified that

Goodman had a Blackberry-style phone that he used to display Lackl’s name, address and phone number. During the

defendants’ case, Goodman called his mother, Michelle

Fisher, to testify that she purchased a T-Mobile Dash phone

with a Blackberry-style keyboard for him in August

2007—after the murder was committed. Fisher’s testimony,

therefore, suggested that Pearson was mistaken or was being

untruthful when he testified that Goodman gave him Lackl’s

address on a Blackberry-type phone. On cross-examination,

Fisher admitted that the account had been opened in February

2007, but she testified that the Dash was a replacement phone

that she obtained for Goodman in August 2007. 

The government subsequently called Fisher as a rebuttal

witness. The prosecutor asked Fisher a number of questions

about whether she had received calls in April 2009, just prior

to her testimony, from Goodman using a cell phone while he

was incarcerated. Goodman objected to the government’s line

of questioning on the basis that it failed to counter any new

evidence presented in Goodman’s case-in-chief. The district

court disagreed and concluded that the rebuttal testimony

sought from Fisher "goes to the matter of . . . her credibility

in terms of the use of the cell phone." J.A. 1193.

On appeal, Goodman renews his argument that the testimony the government sought to elicit from Fisher was not

26 UNITED STATES v. BYERS
proper rebuttal evidence. Because Fisher’s testimony during

Goodman’s case-in-chief related to the Dash phone and TMobile account used by Goodman in 2007, Goodman contends that the questions posed by the government on rebuttal

about phone calls at or near the time of trial had no connection to Fisher’s earlier testimony.

Assuming without deciding that the district court abused its

discretion in permitting the government to call Fisher as a

rebuttal witness, we nevertheless conclude that any error was

harmless and does not warrant reversal. The government

failed to elicit anything incriminating from Fisher during her

rebuttal testimony. In fact, counsel for Goodman during closing arguments commented on Fisher’s re-taking the stand as

a rebuttal witness and argued that none of the government’s

questions changed the evidence showing that Goodman did

not have the Dash phone until after the murder and that, if

anything, "it actually made Mr. Goodman look good because

at least he called his mom on Easter." J.A. 1522. Considering

the overwhelming evidence of Goodman’s direct involvement

in the plot to murder Lackl, we conclude that Fisher’s testimony played no role in the outcome. 

V.

Finally, Goodman challenges the district court’s denial of

his motion to suppress his post-arrest statements on involuntariness grounds. Goodman’s primary contention is that

Detective Ruby falsely promised that Goodman would not be

charged in connection with the murder of Lackl, which

ensured that Goodman "could not possibly have had the requisite level of comprehension of the nature of the right being

abandoned and consequences of abandoning the right." Brief

of Appellant at 32. When this court reviews the denial of a

motion to suppress, we accept the district court’s factual findings unless they are clearly erroneous, but we review de novo

the district court’s determination that Goodman’s statements

UNITED STATES v. BYERS 27
were voluntary. See United States v. Mashburn, 406 F.3d 303,

306 (4th Cir. 2005). 

"A statement is involuntary under the Fifth Amendment

only if it is ‘involuntary’ within the meaning of the Due Process Clause." United States v. Braxton, 112 F.3d 777, 780 (4th

Cir. 1997) (en banc). In considering the voluntariness of a

statement under the Due Process Clause, we must determine

"whether the confession was extracted by any sort of threats

or violence, [or] obtained by any direct or implied promises,

however slight, [or] by the exertion of any improper influence." Hutto v. Ross, 429 U.S. 28, 30 (1976) (per curiam)

(internal quotation marks omitted); see United States v. Montgomery, 555 F.3d 623, 629 (7th Cir. 2009) ("Given the right

circumstances, a false promise of leniency may be sufficient

to overcome a person’s ability to make a rational decision

about the courses open to him."). Of course, "[t]he mere existence of threats, violence, implied promises, improper influence, or other coercive police activity . . . does not

automatically render a confession involuntary. The proper

inquiry is whether the defendant’s will has been overborne or

his capacity for self-determination critically impaired." Braxton, 112 F.3d at 780 (internal quotation marks omitted).

Courts must conduct this voluntariness inquiry in light of "the

totality of the circumstances, including the characteristics of

the defendant, the setting of the interview, and the details of

the interrogation." Id. at 781 (internal quotation marks omitted). 

Baltimore County detectives arrested Goodman, a 21-yearold high school graduate, at approximately 11:00 a.m. on September 5, 2007, and took him to the Baltimore County Police

headquarters. Around noon, Goodman was placed in an interview room where he would ultimately remain for more than

14 hours. Goodman, however, does not question the conditions of his detention—the entirety of which was captured on

videotape by Baltimore County Police Department—other

28 UNITED STATES v. BYERS
than its length. Goodman was permitted to use the restroom

and he was provided food and drink. 

Around 1:00 p.m., Detective Ruby gathered some personal

data from Goodman. He told Goodman that they had "a lot to

discuss" but explained that officers first wanted to go to

Goodman’s house and speak with his mother. While he

waited for Detective Ruby to return, Goodman remained

seated and cuffed to the wall. Detective Ruby returned to the

interview room at about 6:30 p.m., after having executed a

search warrant on the house where Goodman and his mother

lived. He immediately advised Goodman of his rights under

Miranda v. Arizona, 384 U.S. 436 (1966), after which Goodman signed an acknowledgment and waiver of his rights.8

Initially, Goodman denied that he associated with Pearson

and indicated that he last saw Pearson in mid-June. When

Detective Ruby showed Goodman a picture of Byers, Goodman stated he might have seen Byers in jail but claimed that

he did not know his name and denied that he ever talked to

Byers. However, after Detective Ruby presented a visitor’s

log showing that Goodman had visited Byers in jail, Goodman admitted he knew Byers and his family. Goodman said

he lied because he knew that Byers was suspected of murder

and he did not want to be implicated in the wrongdoing.

Goodman further conceded that he had actually spoken with

Byers about the murder, but Goodman vigorously denied any

involvement in the murder.

As the interview proceeded and Detective Ruby made it

increasingly clear that the police suspected Goodman’s

involvement, Goodman began asking whether he would be

charged in connection with the murder. On appeal, Goodman

argues that Detective Ruby’s responses amounted to a false

promise that Goodman would not be charged. 

8Goodman does not claim that Detective Ruby’s issuance of Miranda

warnings was deficient or unclear. 

UNITED STATES v. BYERS 29
The first of these alleged promises occurred at 11:22 p.m.,

when Detective Ruby responded to Goodman’s question

about whether he would be charged: 

No, I didn’t say right now. We’re just sitting here

talking about this. But we need to get down to the

bottom of this, but when somebody asks me if they

are getting charged . . . I can’t tell that you are getting charged and I can’t tell you that you’re not getting charged, but . . . we haven’t scratched the

surface of what the truth is here and we’re just starting to get to the truth.

Detective Ruby further explained that he knew Goodman

was not the triggerman but that he also believed that Goodman had information about the murder that he had not yet disclosed. In a similar exchange at 12:20 a.m., after Goodman

stated that he "didn’t want to be involved in this at all,"

Detective Ruby responded, "well, you are [involved]." Goodman then asked, "So basically I’m being charged with being

involved in [the] murder?" Detective Ruby answered, "You

are being interviewed about being involved in a murder, about

knowing what was going on." Detective Ruby then explained

that the police had evidence pointing to Goodman’s involvement in the murder, and he told Goodman that the interview

would not stop until "we get to the bottom of this" and that

there were "no time limits." Ultimately, however, the interview concluded at 2:20 a.m. At that point, Detective Ruby

told Goodman unequivocally that he was being charged with

first-degree murder and conspiracy. Goodman maintained his

innocence in the murder scheme throughout the entire interview. 

In denying the motion to suppress, the district court found

that up until 11:22 p.m., when the first alleged "false promise"

was made, there was "absolutely no indication of any kind of

deception." J.A. 478. The district court likewise found that

"[w]ith respect to statements after 11:22" there was no "will30 UNITED STATES v. BYERS
ful deception." J.A. 478. Accordingly, the district court concluded that there was no coercive conduct by Detective Ruby

that would have "overborne" Goodman’s will and rendered

his statements involuntary. 

Applying the totality of the circumstances standard, we

agree that Goodman’s statements were not unconstitutionally

coerced. Having thoroughly reviewed the record, including

the videotapes of Goodman’s detention, we find no promises,

implicit or otherwise, from Detective Ruby to Goodman. If

Detective Ruby’s statements about whether Goodman would

be charged in the Lackl murder are viewed in context, it is

clear that he never told Goodman he would not be charged.

At worst, the detective’s statements were somewhat equivocal; however, because Detective Ruby told Goodman that the

police knew what happened and had evidence suggesting that

Goodman was involved in the murder, Goodman could not

have reasonably concluded that he would not face charges. 

Moreover, there is no indication that Detective Ruby’s

statements "critically impaired" Goodman’s "capacity for selfdetermination," Braxton, 112 F.3d at 780, or that Goodman’s

will "was overborne in such a way as to render his confession

the product of coercion," Arizona v. Fulminante, 499 U.S.

279, 288 (1991). Goodman’s position remained constant

throughout the interview. Both before and after the purported

"promises" from Detective Ruby, Goodman denied any actual

involvement in the murder and admitted gaining knowledge

only after the fact. Likewise, we perceive no coercion either

from the length of time Goodman was detained before being

formally notified of the specific charges or from the other circumstances surrounding Detective Ruby’s interview of Goodman. 

Accordingly, we affirm the district court’s denial of Goodman’s motion to suppress. 

UNITED STATES v. BYERS 31
VI.

For the foregoing reasons, we affirm the defendants’ convictions.

AFFIRMED

32 UNITED STATES v. BYERS