United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 06-1381

___________

United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the Eastern 

* District of Missouri.

Tyrese D. Hyles, also known as *

Little Ty, *

*

Defendant - Appellant. *

___________

Submitted: October 19, 2006

 Filed: March 21, 2007 

___________

Before MELLOY, BENTON, and SHEPHERD, Circuit Judges.

___________

MELLOY, Circuit Judge.

Tyrese Hyles was indicted on murder-for-hire charges pursuant to 18 U.S.C.

§ 1958(a) and conspiracy to commit murder-for-hire charges pursuant to 18 U.S.C.

§ 2. The government sought the death penalty. After hearing the evidence at trial,

a jury convicted Hyles of both charges. At sentencing, the jury declined to sentence

Hyles to death, instead sentencing him to life in prison without the possibility of
1The Honorable Henry Edward Autrey, United States District Judge for the

Eastern District of Missouri. 

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parole. Hyles appeals his conviction, challenging the district court’s1

 denial of his

motion to suppress a videotaped statement and several other evidentiary rulings by

the court. We affirm. 

I. Background

The facts of this case are set forth in our panel’s opinion in United States v.

Cannon, 475 F.3d 1013 (8th Cir. 2007). We repeat the facts here only as relevant to

Hyles’s claims on appeal. 

In the early morning hours of August 21, 2000, police found Coy Smith shot

to death in his bed. Smith was a private citizen who had been working with law

enforcement in the area to make controlled drug purchases from local drug dealers.

On August 10, 2000, Smith had testified against Hyles at a preliminary hearing in a

state drug case. At the time of Smith’s murder, Hyles was being held in Pemiscot

County Jail in Caruthersville, Missouri pending trial in the state drug prosecution.

Co-defendant Amesheo Cannon, a close friend of Hyles, lived in Memphis,

Tennessee, where he was under parole supervision. Tonya Johnson Hyles (“Tonya”),

Hyles’s wife, lived in Caruthersville, Missouri. 

Following Smith’s testimony, David Carter, Hyles’s cellmate in the Pemiscot

County Jail, agreed to murder Smith in exchange for having Tonya bail him out of

jail. Tonya bailed Carter out that same day, using a Pontiac Parisienne she and Hyles

owned as collateral. Carter never killed Smith; instead, Hyles and Cannon agreed that

Cannon would drive from Memphis, Tennessee to Caruthersville, Missouri for the

purpose of killing Smith. In exchange for Smith’s murder, Cannon received the

Pontiac Parisienne. 
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A. Charges

On June 5, 2001, Hyles was charged in a federal complaint with the murderfor-hire of Coy Smith. Tonya was also charged in the complaint. Hyles was arrested

on June 11, 2001, and detained in Jackson, Missouri on federal charges. An attorney

made an appearance in federal court on Hyles’s behalf. Shortly thereafter, the

Pemiscot County prosecutor in Caruthersville, Missouri issued state charges against

Hyles for the murder of Smith. On June 15, 2001, the federal complaint was

dismissed without prejudice in favor of the state charges, and Hyles was brought into

state custody in Caruthersville. While en route to Caruthersville, Hyles indicated that

he was interested in talking to the transporting officers, and he ultimately made a

videotaped statement.

On October 18, 2001, a federal grand jury returned an indictment against Hyles

and co-defendant Cannon for murder-for-hire and conspiracy to commit murder-forhire, in violation of 18 U.S.C. §§ 1958(a) and 2. Hyles remained in state custody in

Caruthersville. On December 13, 2001, the government filed a superseding

indictment, which restated and refined the same charges against Hyles and Cannon.

Hyles was brought into federal custody on December 17, 2001. The government filed

a second superseding indictment against Hyles and Cannon on November 21, 2002,

adding grand jury findings of aggravated circumstances. The government sought the

death penalty against both defendants. On June 27, 2003, the court severed the

parties for trial. Hyles’s state charges remained pending until June 2003. 

B. Motion to Suppress Statements

On February 11, 2002, Hyles filed a Motion to Suppress Statements. In his

motion, Hyles argued that “any alleged statements the Government intend[ed] to use”

against him were involuntary, were obtained in violation of the Fifth Amendment of

the United States Constitution, and were the result of an unlawful arrest. The court
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held a suppression hearing on June 27, 2002, and heard testimony regarding the

videotaped statement Hyles gave during his transportation from federal to state

custody on June 15, 2001, and the events leading up to the statement. Hyles did not

present any testimony in support of his motion at the suppression hearing. 

During the hearing, Caruthersville Police Sergeant Robert Lockett and Officer

Tina Cruz, an agent with the Bootheel Drug Task Force, testified to the following.

On June 15, 2001, Lockett and Cruz transported Hyles from federal custody in

Jackson, Missouri to the custody of the Pemiscot County Sheriff in Caruthersville,

Missouri. En route to Caruthersville on Interstate 55, Hyles indicated that he wanted

to talk to Lockett in an attempt to help his wife, Tonya, who was also facing federal

charges in the case. Lockett told Hyles that he could not talk to him and attempted

to contact the Assistant United States Attorney and the Pemiscot County prosecutor

familiar with the case for legal advice. Because Hyles continued to ask to talk to him,

Lockett pulled his vehicle to the shoulder of the highway and read Hyles his Miranda

rights, including his right to talk to a lawyer. Hyles stated he understood his rights

and persisted in his desire to talk to Lockett. However, no questions regarding

Smith’s murder were asked of Hyles at this time. Hyles did not request an attorney

or invoke any other rights.

After talking to an officer of the Missouri State Highway Patrol, Lockett

decided that Hyles could make a videotaped statement at the Highway Patrol office

in Sikeston, Missouri. At the Highway Patrol office, Cruz obtained a Missouri State

Highway Patrol notification and waiver of rights form. Cruz advised Hyles of his

Miranda rights a second time, and Hyles executed the form, waiving his rights. While

executing the waiver form, Hyles did not request an attorney or otherwise invoke his

rights. 

Lockett did not interview Hyles until he contacted the Pemiscot County

prosecutor and allowed Hyles to talk to the Pemiscot County prosecutor. The
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Pemiscot County prosecutor indicated to Hyles that giving a statement would help

Tonya. Hyles then gave a videotaped oral statement to Lockett, Cruz, and the state

patrol officer. During the time spent at the Highway Patrol office, Hyles was

provided with lunch, was permitted to use the restroom, and was allowed to smoke

outside. 

On the videotaped statement, Lockett and Hyles reviewed the events leading

up to the statement, including the fact that Lockett had advised Hyles of his Miranda

rights on Interstate 55 and that Cruz had advised Hyles of his Miranda rights a second

time with a Highway Patrol form. Lockett then advised Hyles of his Miranda rights

a third time on videotape. Hyles said that he understood his rights, and agreed to

waive his rights and to willingly make a statement. Hyles stated that he was talking

to the officers “of his own free will.” 

Hyles then admitted that he spoke with Cannon, who he called his “partner,”

after he learned that Coy Smith was a witness in Hyles’s state drug case. Hyles said

that Cannon told him not to worry because Cannon did not think Smith would testify.

If Smith did testify against Hyles, Cannon told Hyles, Cannon would “handle that”

for Hyles. Hyles stated that he understood that Cannon would kill Smith if he

testified. 

Hyles then said that after Smith testified at Hyles’s preliminary hearing, Hyles

talked to Cannon on the telephone. Cannon repeated that he would “handle that” for

Hyles, which Hyles understood to mean killing Smith. Hyles stated that Cannon’s

reason for driving to Caruthersville, Missouri from Memphis, Tennessee was to kill

Smith for him. 

According to Hyles, his cellmate at the Pemiscot County Jail, David Carter,

also talked about killing Smith for Hyles. Hyles agreed to bail Carter out of jail the
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same day, but denied that he did so to facilitate the murder of Smith or that he offered

Carter anything in return for killing Smith. 

Hyles stated that after Smith’s death, Cannon told Hyles that he had killed

Smith. Cannon told Hyles that he made a mask out of a scarf, went to Smith’s house,

cut the telephone wires, entered through the front door, and shot Smith. Hyles

admitted that Cannon killed Smith on behalf of Hyles, but denied that he promised

Cannon anything in return. Hyles did not indicate at any time during the interview

that he wanted to have a lawyer present. After the statement, Lockett and Cruz

delivered Hyles to Caruthersville. Lockett and Cruz were the only witnesses at the

suppression hearing.

Following the suppression hearing, a magistrate judge filed a report and

recommendation recommending that Hyles’s motion be denied. Hyles objected to

several of the magistrate judge’s findings of fact, asserting for the first time that the

government intentionally created a gap in legal representation between Hyles’s

federal and state charges in order to obtain a statement from him, thus, violating his

Sixth Amendment right to counsel. Despite these objections, the district court

adopted the report and recommendation. The court found that it was Hyles who

initiated the conversation with Lockett while Hyles was being transported, that Hyles

was advised of his Miranda rights three times, that Hyles was asked if he understood

those rights, and that Hyles said he did. The court found that at no time prior to or

during the videotaped conversation did Hyles express a desire to remain silent or to

have an attorney present. He was allowed to smoke and was given lunch during the

interview, and his demeanor during the interview was calm. Further, the court found

that it was Hyles who set forth the conditions of his giving a statement. This fact, the

court stated, “indicates that [Hyles] felt neither threatened nor coerced.” A transcript

of the videotape, but not the video itself, was introduced at trial. 
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C. Motion to Exclude Recorded Jail Telephone Calls or Alternatively for

a Continuance

The government obtained via subpoena recorded telephone conversations from

the jails in which Hyles and Cannon were being held. The recorded conversations

were preserved on CDs and were being monitored by the government primarily to

protect the safety of its witnesses. Hyles had received a number of these CDs from

the government, but objected to the final six CDs he had received from the

government on April 29, 2005, ten days before trial was scheduled to begin.

According to Hyles, these six CDs totaled over seventy-eight hours of Hyles’s

recorded telephone conversations. The government had obtained these CDs between

three and nine weeks before it turned them over to Hyles. Before trial, Hyles moved

to exclude from evidence the most recent recorded jail telephone conversations for

failure of the government to disclose them in a timely manner under Federal Rule of

Criminal Procedure 16(a)(1)(B)(i). In the alternative, he moved to continue the trial

for six to eight weeks in order to have sufficient time to review the conversations. 

During a hearing on the motion, Hyles acknowledged that the government had

given him a list of twenty-five recorded conversations it might use at trial. He argued

that regardless of the list provided by the government, he would still need to sift

through all of the conversations in order to avoid missing any mitigating or

exculpatory evidence. This task, he argued, was impossible for him to accomplish

while preparing for trial. The government explained that Hyles continued to talk on

the telephone while it was trying Cannon’s nearly month-long trial, which delayed

review of the recorded conversations. According to the government, as soon as it was

able to review the tapes and determine their contents, it produced them. In some

cases, delay was caused because of concerns about the safety of witnesses and

possible attempts to influence them. Further, the government argued that the issue

was moot because it had already narrowed down the number of conversations it

would potentially use at trial. The district court held the motion in abeyance at
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Hyles’s request until Hyles could determine what was on the list the government

provided. 

Hyles renewed his motion on the first day of voir dire. He stated that he had

been given eleven additional hours of recorded conversations during the week before

trial, and that he found it impossible to do an appropriate review. According to

Hyles, his counsel could not “be a reasonably competent attorney in this case under

the circumstances.” The government confirmed that it intended to introduce “very

few if any tapes” in its case in chief during the guilt phase, and that it would provide

Hyles advance notice if it did intend to use any of the calls. The government also

reiterated that these recorded conversations were “equally available to the defense.”

The district court denied the lengthy continuance Hyles requested, but offered to

consider a shorter continuance if the issue presented itself at trial. None of the calls

were offered at trial. 

D. Trial

Included in the government’s evidence was a photograph depicting the Pontiac

Parisienne automobile that was payment for the murder-for-hire and two photographs

of Hyles and Cannon posing together. The three photographs were found in

Cannon’s jail property and have writing on the back associating Hyles and Cannon.

On the back of the picture of the Pontiac was written “Da-Pony G’ ‘Ride.’” The two

pictures of Hyles and Cannon had “‘2’ of Da Most Wanted” and “‘Bo$$’ Playa’s 2-

Da-Casket 9” written on the back, respectively. The government offered the

photographs and the writing on the back as evidence of the importance of the Pontiac

to Cannon, and to show Hyles’s association with Cannon in the conspiracy case. The

district court allowed the writings on the back of the photographs into evidence over

foundation and hearsay objections from Hyles.
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The government also introduced the testimony of Omar Wiley and Captain

Tony Jones of the Caruthersville Police Department regarding statements made by

Cannon. Wiley testified that Cannon was at Wiley’s house on the afternoon before

Smith’s murder. While the two were sitting on the porch, Coy Smith drove by. Wiley

testified that when Cannon saw Smith, he told Wiley, “I’m gonna kill that nigger . .

. Nigger got my boy.” Wiley also testified that after Smith’s murder he observed

Cannon and Tonya arguing over the Pontiac. Jones testified that he pulled Cannon

over on August 29, 2000, and issued Cannon a traffic summons. Cannon was driving

the Pontiac. Jones testified that he told Cannon to stop threatening Tonya about the

vehicle and informed Cannon that the vehicle was marital property. Cannon

responded that “Tyrese had told him he could have the vehicle.” The government

offered the statements as co-conspirator statements made in furtherance of the

murder-for-hire conspiracy and as statements against interest. The district court

admitted these statements over Hyles’s hearsay objections. 

 April Leatherwood, Cannon’s ex-girlfriend, testified at trial during the

government’s case-in-chief. Several days later, and after Leatherwood had returned

to her home in Caruthersville, Hyles sought to introduce excerpts of recorded jail

telephone conversations between her and Cannon. The recorded conversations were

offered to impeach statements Leatherwood had made during her testimony. The

court ruled that there had not been sufficient compliance with the requirements of

Federal Rule of Evidence 613(b) and that the evidence was cumulative, and excluded

the conversations. 

Hyles also called witnesses, including his former attorney who had represented

him in the underlying state drug case in which Smith was a witness. During his

examination of his former attorney, Hyles asked about discussionsthe former attorney

had with Hyles. The district court allowed the government to cross-examine Hyles’s

former attorney. The government agreed to limit its questions to facts the former

attorney knew “from any source.” 
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The jury convicted Hyles on both counts. After a separate penalty phase, the

jury recommended sentences of life imprisonment without the possibility of parole.

Hyles appeals, arguing that the district court erred by: (1) denying his motion to

suppress his videotaped statement; (2) denying his motion to exclude his recorded jail

telephone conversations, or, in the alternative, by denying his motion for a

continuance to review the CDs; (3) admitting the writings on the back of

photographs; (4) excluding recorded telephone conversations between Cannon and

Leatherwood; (5) admitting Cannon’s statements through the testimony of Wiley and

Jones; and (6) allowing limited cross-examination of Hyles’s former attorney. We

discuss each in turn. 

II. Analysis 

A. Motion to Suppress Hyles’s Videotaped Statement

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

videotaped statement. Hyles contends that his Sixth Amendment right to counsel was

violated and that his statement was involuntary. When reviewing a district court’s

denial of a motion to suppress, we review the court’s factual findings for clear error

and its legal conclusions de novo. United States v. Judon, 472 F.3d 575, 581 (8th Cir.

2007). “We will affirm the denial of a motion to suppress unless the decision is

unsupported by substantial evidence, is based on an erroneous view of the applicable

law, or in light of the entire record, we are left with a firm and definite conviction that

a mistake has been made.” Id. (internal marks omitted). 

Hyles first argues that his statement should be suppressed because it was

obtained in violation of his Sixth Amendment right to counsel. Specifically, Hyles

contends that the federal and state authorities worked together to create a gap in legal

representation, and then exploited that gap for the purpose of obtaining a statement

from him by placing him in a car with one of the officers involved in his case. The
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government argues that Hyles has waived his Sixth Amendment claim because he did

not raise it in his pretrial motion to suppress, and that even if not waived, his Sixth

Amendment claim has no merit. 

We need not address the question of waiver because Hyles’s Sixth Amendment

claim fails on the merits. The parties agree that Hyles’s right to counsel had attached

before he was transported by Lockett and Cruz. Hyles’s waiver of his Miranda rights

is enough to establish a knowing and intelligent waiver of counsel as long as that

waiver was valid and as long as Hyles had not invoked his right to counsel before he

waived his rights. See Patterson v. Illinois, 487 U.S. 285, 296 (1988) (holding that

an accused who has been advised of his Miranda rights “has been sufficiently

apprised of the nature of his Sixth Amendment rights, and of the consequences of

abandoning those rights, so that his waiver on this basis will be considered a knowing

and intelligent one”); Michigan v. Harvey, 494 U.S. 344, 349 (1990). Further, even

if Hyles had asserted his right to counsel, the court found that he, rather than the

officers, initiated the interrogation. See id. at 352 (“[N]othing in the Sixth

Amendment prevents a suspect charged with a crime and represented by counsel from

voluntarily choosing, on his own, to speak with police in the absence of an

attorney.”); Owens v. Bowersox, 290 F.3d 960, 962-63 (8th Cir. 2002) (stating that

a defendant initiates interrogation if he “evinces a willingness and a desire for a

generalized discussion about the investigation”) (internal marks omitted). We agree

with the district court’s conclusion that Hyles’s Sixth Amendment rights were not

violated. 

Hyles also contends that his statement should be suppressed because it was

obtained in violation of his Fifth Amendment privilege against self-incrimination.

The district court found that Hyles knowingly and intelligently waived his

Miranda rights three times, and after reviewing the record, we agree. There was no

violation of Hyles’s Fifth Amendment right against self-incrimination. 
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Hyles further alleges that his statement was coerced in violation of his Due

Process rights. “‘A statement is involuntary when it was extracted by threats,

violence, or express or implied promises sufficient to overbear the defendant’s will

and critically impair his capacity for self-determination.’” Judon, 472 F.3d at 581

(quoting United States v. LeBrun, 363 F.3d 715, 724 (8th Cir. 2004) (en banc)).

When determining the voluntariness of a confession, we examine the totality of the

circumstances. Id. 

As the district court found, Hyles was allowed to smoke before the videotaping

began. He was given lunch, and was allowed to use the bathroom if needed. The

statement was given in a question and answer method, and Hyles appeared to be calm

and comfortable. Hyles and the officers were at the Highway Patrol office no more

than five or six hours. We agree that the length of the event “was in no way excessive

or burdensome.” Hyles argues that he was implicitly coerced into giving the

statement because of the Pemiscot County prosecutor’s promise to Hyles that if he

gave a statement, it would help his wife, Tonya. However, there is no evidence in the

record indicating that Hyles’s will was overborne. Hyles himself asked the Pemiscot

County prosecutor about the possibility of helping his wife. After the Pemiscot

County prosecutor advised him that it would help Tonya, Hyles asked about himself.

Hyles was told that the Pemiscot County prosecutor could not tell him anything about

what would happen to him. Based on the totality of the circumstances, we agree with

the district court’s decision that Hyles’s statement was voluntary. 

B. Motion to Exclude Audiotapes of Hyles’s Jail Phone Calls

Hyles argued pre-trial that the seventy-eight hours of recorded conversations

should be excluded so he would not have to waste valuable pre-trial preparation time

reviewing them. Hyles now argues the government violated Federal Rule of Criminal

Procedure 16 by not producing the calls in a timely manner. Alternatively, Hyles

argues that the district court abused its discretion by denying his motion for a six to
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eight week continuance to listen to the conversations and prepare for trial. We affirm

the district court’s decision on both issues.

Rule 16(a)(1)(B)(i)requiresthat, upon the defendant’s request, the government

disclose “any relevant written or recorded statement by the defendant if: the statement

is within the government’s possession, custody, or control; and the attorney for the

government knows–or through due diligence could know–that the statement exists[.]”

“The district court has broad discretion in fashioning sanctions for violations of Rule

16 . . . .” United States v. Flores-Mireles, 112 F.3d 337, 340 (8th Cir. 1997). Thus,

even if we were to find a violation of Rule 16 in this case, exclusion of the CDs

would not necessarily be required. See id. at 340-41 (holding that, despite a Rule 16

violation, the district court did not abuse its discretion by rejecting defendant’s

request to exclude recorded statements made by the defendant). The district court

determined that if issues regarding the CDs arose at trial, Hyles would receive a short

continuance to review the CDs. This decision was within the court’s discretion and

we find no error. 

 Hyles next argues that the district court erred in denying his motion for a

continuance. District courts have broad discretion to deny requests for continuances.

United States v. Urben-Potratz, 470 F.3d 740, 743 (8th Cir. 2006). As a general

matter, continuances are not favored and should be granted only when the requesting

party has shown a compelling reason. Id. “We will reverse a district court’s decision

to deny a motion for continuance only if the court abused its discretion and the

moving party was prejudiced by the denial.” United States v. Thurmon, 368 F.3d

848, 851 (8th Cir. 2004) (internal marks omitted). 

Hyles argues that he was prejudiced by the district court’s denial of a

continuance because his counsel’s trial preparation time was sacrificed in order to

review the recordings. He argues that counsel could have missed exculpatory
2To the extent Hyles intended to present an argument under Brady v. Maryland,

373 U.S. 83 (1963), such an argument fails. He had access to the CDs and has

identified no exculpatory content. 

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evidence that was buried somewhere in the conversations.2

 Hyles also argues that the

rush to review even the limited number of conversations designated by the

government disrupted the preparation that is required in the weeks before a capital

trial. The district court denied the lengthy continuance Hyles had requested, but it

stated that a short recess could be granted during trial if the government decided to

use any of the recordings. Ultimately, none of the recorded conversations were used

as evidence during trial. 

The government argues that our decision in United States v. Hernandez, 299

F.3d 984 (8th Cir. 2002), is “[p]articularly instructive,” and we agree. In Hernandez,

the government notified defense counsel four days before trial that it would be calling

a particular expert witness. At trial, however, the government never called the

witness. The government did not notify the defense about this decision until “late

into the trial.” Id. at 991. Like Hyles, Hernandez argued that despite the fact that the

witness never testified, “he was prejudiced by having to sacrifice defense counsel’s

valuable trial preparation time to prepare for that witness.” Id. at 991-92. Our court

disagreed, holding that Hernandez failed to show actual prejudice; thus, the denial of

his motion to continue did not amount to an abuse of discretion. Hernandez was not

prejudiced because he did not show “what would have been done but for the false

start, nor how such omission would have led to a different result.” Id. at 992. 

 Likewise, Hyles does not point to anything specific that would have been

done if not for the late arrival of the recorded conversations, nor does he argue that,

if the continuance had been granted, the result of the trial would have been different.
3Hyles also argues that the district court’s denial of his motion to continue

violated his Due Process rights. Because the denial of the motion was not arbitrary

within the circumstances of this case, his argument has no merit. See United States

v. Bernhardt, 642 F.2d 251, 252 (8th Cir. 1981) (per curiam) (“The determination of

whether a denial of a continuance is arbitrary enough to violate due process depends

on the circumstances present in every case, particularly in the reasons presented to the

trial judge at the time the request is denied.”) (internal marks omitted). 

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Hyles has failed to show actual prejudice; therefore, we affirm the district court’s

decision to deny Hyles’s motion for a continuance.3 

C. Admission of Writings on the Photographs

Hyles next argues that the district court abused its discretion when it admitted

writings on the back of photographs of the Pontiac and Hyles and Cannon into

evidence over Hyles’s foundational and hearsay objections. Hyles argues that there

was no foundation for the admission of the writings because the government did not

offer evidence as to when the writings took place, who wrote them, and whether

Cannon and Hyles knew about the writings. Alternatively, Hyles argues that the

writings are inadmissible hearsay. We review the district court’s evidentiary ruling

for clear abuse of discretion, United States v. Chase, 451 F.3d 474, 479 (8th Cir.

2006), and will not reverse if the error was harmless. United States v. Jara, 474 F.3d

1018, 1022 (8th Cir. 2007). 

Regarding Hyles’s argument as to foundation, Federal Rule of Evidence 901

requires authentication or identification before evidence can be admitted. This rule

is satisfied by providing “evidence sufficient to support a finding that the matter in

question is what its proponent claims.” Fed. R. Evid. 901(a). We have said that

under this standard, the party “need only demonstrate a rational basis for its claim that

the evidence is what the proponent asserts it to be.” United States v. Coohey, 11 F.3d

97, 99 (8th Cir. 1993). 
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The government offered the picture of the Pontiac Parisienne and the writing

on the back of that picture to demonstrate the importance of the car to Cannon.

According to the government, the car was important enough to Cannon that he kept

a picture of it with him in jail. The pictures of Cannon and Hyles together with

writing on the back were offered to prove their close relationship. As the government

stated at trial, “this is a conspiracy case and [the pictures and writings] establish[] a[n]

association between” the two. The government expressly stated at trial that it did not

matter who put the writing on the back of the pictures.

Keeping in mind the limited purpose the government had for offering the

photographs and writings, there was sufficient foundation. The deputy who seized

the photographs from Cannon’s property at the jail testified that he saw the writing

on the back when he seized them. Other officers identified Hyles and Cannon as the

people pictured in the photographs, and the car as the same car they had seen Cannon

and Tonya driving. The government demonstrated a rational basis for its claim that

the pictures were of Cannon and Hyles, that the car was the Pontiac Parisienne, and

that the writings shed light on the relationship between the co-conspirators. The

district court did not abuse its discretion when it admitted the pictures and writings

over Hyles’s objection as to foundation. 

Regarding Hyles’s hearsay argument, we agree with the government that the

writings on the pictures are not hearsay. Federal Rule of Evidence 801 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.” Hyles

did not object to the pictures themselves; he objected only to what was written on the

reverse. On the back of the picture of the Pontiac was written “Da-Pony G’ ‘Ride.’”

The two pictures of Hyles and Cannon had “‘2’ of Da Most Wanted” and “‘Bo$$’

playa’s, 2-Da-Casket 9” written on the back, respectively. The government offered

the writings on the back of the photographs as evidence of the importance of the
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Pontiac to Cannon, and to show Hyles’s association with Cannon in the conspiracy

case. The writings were not offered to prove that Hyles was a “Boss Playa” or one

of the “Most Wanted.” There is no suggestion that the jury was told what these

phrases mean. Indeed, it is the fact that there is writing on the back of these pictures

and that Hyles and Cannon found the pictures important enough to write on that

makes them important; what exactly was written on them does not matter. See United

States v. Wilson, 532 F.2d 641, 646 (8th Cir. 1976) (“It is the fact that the statements

were written, and not the truth of the statements, which was relevant.”) Therefore,

they are not hearsay, and were properly admitted into evidence. 

Even if the writings were offered for their truth, we would not reverse because

any error is harmless. The government presented ample evidence at trial that

demonstrated the close relationship between Hyles and Cannon, including admissions

by Hyles in his videotaped statement that he had talked to Cannon several times on

the telephone before Smith was murdered, that Cannon was Hyles’s “partner,” and

that Hyles and Cannon were “cool” and had been “friends for a long time.” Any error

here would not be reversible error. 

D. Exclusion of Recorded Phone ConversationsBetweenAmesheoCannon

and April Leatherwood 

Hyles argues that the district court erred when it excluded prior inconsistent 

statements offered by Hyles to impeach April Leatherwood. Federal Rule of

Evidence 613(b) “provides that extrinsic evidence of a prior inconsistent statement

by a witness is not admissible unless: (1) the witness is afforded an opportunity to

explain or deny the statement and the opposing party is afforded an opportunity to

interrogate the witness about the statement or (2) the interests of justice otherwise

require.” United States v. Schnapp, 322 F.3d 564, 571 (8th Cir. 2003). The district

court excluded the recorded conversations betweenLeatherwood and Cannon because

Leatherwood was not given the opportunity to explain or deny the conversations as
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required by Rule 613(b). Although Leatherwood had testified, she was no longer in

the courtroom when Hyles sought to introduce her prior statements. Further, while

Leatherwood was still under subpoena, the district court stated that it would deny

defendant’s request to bring her back because the evidence would be cumulative

under Federal Rule of Evidence 403. 

The district court’s Rule 403 concerns were warranted. Rule 403 allows the

court to exclude relevant evidence “if its probative value is substantially outweighed

by . . . needless presentation of cumulative evidence.” Leatherwood had already

proven herself untrustworthy. She admitted on cross-examination that everything she

told Cannon’s investigators was false. The district court was well within its

discretion to determine that admission of Leatherwood’s priorinconsistent statements

would be cumulative, see Fed. R. Evid. 403; United States v. Sutton, 41 F.3d 1257,

1260 (8th Cir. 1994) (holding that recalling a witness to allow her to explain or deny

a prior inconsistent statement “is not mandatory, but is optional at the trial judge’s

discretion”), and that “the interests of justice” did not “otherwise require” the

admission of the statements. 

Hyles also argues that his Sixth Amendment right to present witnesses on his

behalf was violated by the exclusion of Leatherwood’s prior statements. Hyles’s

Sixth Amendment rights were not violated. In the context of evidentiary exclusions,

a defendant’s Sixth Amendment rights are only violated “where the trial court

excludes relevant evidence without sufficient justification.” Bernhardt, 642 F.2d at

253. The district court’s determination that admission of the recorded conversations

would be cumulative is sufficient justification. 

E. Admission of Amesheo Cannon’s Statements

Hyles next argues that the district court erred in admitting several statements

made by his co-conspirator, Cannon. The district court’s discretion to admit evidence
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over a hearsay objection is “particularly broad in a conspiracy trial.” United States

v. McKay, 431 F.3d 1085, 1093 (8th Cir. 2005) (internal quotation omitted). We will

reverse only if the district court’s ruling was a “clear and prejudicial abuse of

discretion.” United States v. Haskell, 468 F.3d 1064, 1072 (8th Cir. 2006). 

i. Testimony of Omar Wiley

At trial, Omar Wiley testified that: (1) Cannon told him before the murder that

he intended to kill Coy Smith, and that (2) after the murder he observed Cannon and

Tonya arguing about the Pontiac. Hyles argues that these statements are inadmissible

hearsay and should have been excluded. We disagree. Cannon’s statement that he

planned or intended to kill Smith is admissible as his “then existing state of mind . .

. (such as intent, plan, motive, design . . .)” pursuant to Federal Rule of Evidence

803(3). Such statements “are not excluded by the hearsay rule.” Fed. R. Evid. 803.

Wiley’s testimony that Cannon wanted the car and that Wiley had witnessed an

argument regarding the ownership of the car is not hearsay because it is not an

assertion by either Cannon or Tonya. See Fed. R. Evid. 801(a). The district court did

not error when it admitted these statements. 

ii. Testimony of Captain Tony Jones

Caruthersville Police Department Captain Tony Jones testified regarding a

conversation he had with Cannon one week after the murder of Smith. After pulling

Cannon over for running a stop sign, Jones asked Cannon “to stop threatening Tonya

Hyles over Tyrese Hyles’s vehicle,” and told Cannon “that the vehicle was marital

property and she did not have to give him the vehicle.” Cannon told Jones that

“Tyrese had told him he could have the vehicle.” Hyles argues that Cannon’s

statement is inadmissible hearsay. The government arguesthe statement was properly

admitted as a co-conspirator statement in furtherance of the conspiracy. While we

have serious concerns as to whether Cannon’s statement actually was in furtherance
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of the conspiracy to murder Smith in exchange for the Pontiac, we need not address

this issue.

Even if it was error to allow the statement into evidence, we find that any error

is not prejudicial. The government presented additional evidence linking Cannon and

the Pontiac to the conspiracy, including the fact that Cannon was seen by several

witnesses driving the car, the fact that Tonya had used the Pontiac as collateral when

bailing David Carter out of jail, Wiley’s observation of a fight between Tonya and

Cannon over the car, Jones’s recollection of his own statements, and the picture of the

Pontiac in Cannon’s jail cell. Hyles has not convinced us that the outcome of his trial

would have been different if not for the admission of Cannon’s statement. 

F. Cross Examination of Hyles’s Former Attorney

Finally, Hyles argues that the district court erred by allowing the government

to ask Hyles’s former attorney questions during cross examination. Hyles contends

that this violated his attorney-client privilege. This argument has no merit. By

calling his former attorney from his underlying state drug case as a witness and

asking the attorney about discussions with Hyles, Hyles waived his privilege. See

United States v. Workman, 138 F.3d 1261, 1263 (8th Cir. 1998) (“Voluntary

disclosure of attorney client communications expressly waives the privilege.”).

Further, the government agreed to limit its inquiry on cross-examination to facts

known to the attorney “from any source.” See Upjohn Co. v. United States, 449 U.S.

383, 395-96 (“The protection of the privilege extends only to communications and not

to facts. A fact is one thing and a communication concerning that fact is an entirely

different thing.”) (internal marks omitted). The district court did not abuse its

discretion. 
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III. Conclusion

For the foregoing reasons, we affirm the judgment of the district court. 

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