## United S tates Cou rt of Appe als FOR THE EIGH TH C IRC UIT

___________ No. 06-13 81

___________ United Stat es of America, * * Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the East ern * District

of Missour

i. Tyr ese D. Hyle s, also know n as * Litt le Ty, * * Defenda nt - Appel lant. *

___________ Submi tted: October 19, 20 06 File d: March 21, 2007

___________ Before M ELLO Y, BE

NTON , and SH EPHE RD, Cir cuit Judges.

___________ MELLOY, C ircuit Judge.
Tyr ese Hyles was indicted on m urder-for-hire charges pursuant to 18 U.S.C. § 1958(a) a

ndconspirac y to com

mit m urder-f or-hire c harges pur suant to 18 U.S.C. § 2. The g overnm ent sought the death penalty. Afte r heari ng the evide nce at tr ial,
a jury convicted Hyle s of both

charges. At sente ncing, the jury declined t o sentence Hyles to death, instead se ntencing him to lif e in priso n without the

possibility

of1 The H onorable Henry Edwar d Autrey , United

States D istrict Jud

ge for the Eastern Dist rict of Miss ouri. -2- parole. Hyle s appe als his conv ictio n, cha llen ging the di stric t cou rt’s 1 denial of h is moti on to suppress a

videotaped

statem ent and several other evidentia ry ru lings by the court. We affi rm.
I. Backgroun d

The facts of this case are set forth in our panel’s opin ion in United St ates v. Cannon , 475 F.3d 101 3 (8th Cir. 2007). W e repeat the facts here only as relevant to Hyles’s claims on appea l.

In the ear ly morning hours of August 21, 2000, police found Coy Smit h shot to death in h is bed. Smith wa s a private ci tizen who had been working with law enforce ment i

n the area to m

ake controlled drug pu

rchases f rom l ocal drug de alers. On August 10, 2000, Sm

ith hadtestifie d against H yles a t a prelim inary hearing in

a state drug case. At the time of Smith’s m urder, Hyles wa s being held in Pem iscot County Jai l in Caruther sville, M issouri pend ing trial in the state

drug prosecution. Co-defe ndant

Ame sheo Cannon, a close f riend of H

yles, lived in Me mphi s , Tennessee, where he was und er pa rol e su per vis ion . Ton yaJohnson Hyles (“T onya”), Hyles’s wife, lived i n Caruthers ville, Mis souri. Following

Smith’s testimony, D avid Carter, Hyle s’s cel lmate in the Pem

iscot County Jail, ag reed to mur de r Sm ith in excha nge for ha

ving Tonya bail him

out of jail. Tonya bailed

Carter out that same day , using a Pontiac Parisienne she and Hyles ownedas collater al. Carter never kill ed Smith; instea d, Hyles and Ca nnon agreed that Cannon would driv e from

Memp his , Te nnessee to Caruther sville, M issouri for the purpose of k il li ng Smit h. I n ex cha ng e fo r Smi th’s murder, Canno n receive d the Pontiac Pari sienne.-3-

A. Charges

On June 5, 2001 , Hy les was charged in a federal complaint with the murderfor-hire of Coy

Smit h. Tony a was al so charged in the complaint. Hy les was arrested
on June 11, 2001, and detained in Jackson, Missouri on federal charges. An attorney made an appear

ance in fe deral c ourt on Hyle s’s behalf. Shor tly the reafter , the Pemi scot County prosecutor

in Caruthersville, Missouri is sued statecharges a gainst Hyles for the murder of Smith

. On June 15, 2001, the federal complaint was dismissed without prejudice

in favor of

the state cha

rges, an d Hyle s was brought into state custody in Car uthersvi lle. While en route to Caruthersville, Hyles indicated that he was inter

ested in talking to the tra nsporting officers, and he ultimately m ade a videotaped

statem ent.
On October 18, 2 001, a federal grand jury re turned an indictment against Hyles and co-defendant

Cannon for murder-for-hireand conspiracy to commit murder-forhire, in violation of 18 U.S .C. §§ 19 58(a) and 2. Hyles rem

ained in sta

te custody

in Caruthersville. On December 1 3, 20 01, the governme nt filed a supersedin g indictm ent, which re stated and refined the sam e charge s against H yles a nd Cannon. Hyles was broug

ht into federal

custody on December 17, 2001. The government filed
a second supe rseding indi ctme nt against Hyle s and Cannon

on Novem

ber 21, 2002, adding grand

jury findings of

aggravat ed circum stances. The gover nment sought the de ath penalty

against bot

h defendan

ts. On Jun e 27, 2003, the court s evered th e parties fo r trial. Hyles’s stat e charges remained pending until Ju ne 2003.

B. Motion to Suppress Sta teme nts
On February 11, 2002, Hy les filed a Motion to Suppress St atements. In his motion, Hyles argued

that “ any al leged stat emen ts the Governme ntintend[ed] to use” against him were involuntary, wer

e obtained in violation of

the Fifth Ame ndment

of the United St ates Constitution, a ndwere th e result of

an unlawf

ul arrest. The court-4-

held a suppress ion hearing

on June 27, 2002, and he ard testim ony regard ing the videotaped statem ent Hyles gave dur ing his tran sportation from fede ral to sta

te custody on June 15, 2001, and the events leading up to the statement. Hyles did not present an y testimony in suppo rt of his motio n at the su ppressio n hearing

. Duringthe heari

ng, Caruthersville Police Sergeant Robert Lockett and Officer Tina Cruz, a n agent wi th the Boothe el Drug T ask Force , testif ied to the f

ollowing. On June 15, 200 1, Lo cke tt a nd C ruz tran spo rted Hyles from f ede ral c ust ody i n Jackson, Missouri to the custody of the Pe misco t Coun ty Sher iff in Caruthersville, Missouri. En route to Caruthersville on Interstate 55, Hyles indicated that he wanted to talk to Lo ckett in an

attem pt to help his wife, Tonya, who was also facing federal charges in the case. L ockett told Hyles that he could not talk to him and attem pted to contact th e Assistant United States Attorney and the Pe misco t County prosecutor familiar with the cas e for legal ad vice. Because Hyle s continued t o ask

to tal k t o h im, Lockett pulled his ve hicle to the

shoulder of

the highwa

y and read Hyles his Miranda rights, including

his right to talk to a la

wyer . Hy les stated

he underst ood his rights and persisted in his desire to talk to Locket t. Ho wever, no questions r egarding Smith’s m

urder were asked of Hyles at this tim e. Hyles did not request an attorney or invoke an

y other rights.

After talking to an officer of the Missouri State Highway Patrol, L ockett decided tha

t Hyl es could m

ake a videotap ed statem

ent at the Highway

Patroloffice in Sikeston, Missouri. At the H ighway Patrol of fice, C ruz obtaine d a Missouri State Highway Patrol notification and waiver of rights form. Cr uz advised Hyle s of his Miranda rights a se cond

time , an d Hyl es e xec ut ed t he f orm, waiving hi s rights. While executing the waiver form , Hy les did not reques t an attorney or ot herwise invoke his rights.

Lockett did n ot interview Hy les until he contacte d the Pem

iscot County prosecutor

and allow ed Hy les to talk to the Pem iscot County

prosecutor . The-5-

Pemi scot County

prosecutor

indicated to Hy les that gi ving a

statem ent would he lp Tonya . Hy les then ga

ve a videot aped oral

statem ent to Loc kett, Cruz, a

ndthe state patrol office r. D uring the time spent at the Highway Patrol office, Hyles was provided with lunch , was permitted to u se the restr oom, and wa s allowed t o smoke outside

. On the vide otaped stat emen t, Locke tt and

Hyle s review ed the eve nts leading up to the statement, including the fact that Lockett had adv ised Hyles of his Miranda rights on Interstate 55 and that Cruz hadadvised Hyles of his Miranda rights a se cond ti me with a Highway Patro l form. Lockett t hen advised

Hyle s of his Miranda

rights
a thi rd t ime on vid eot ape . Hyl es said that he understood h is rights, and agree d to waive his rights and to willingly make a statement. Hyles stated tha t he was t alking to the officers “of his own free will.” Hyle s then adm

itted that h e spoke wi th Cannon, who he ca lled his “partner,” after he learned

that Coy Smit h was a w itness in H

yles’ s state drug case. Hyle s said that Cannon told h im not to worry because C annon did not t hink Smith would

tes tif y. If Smit h did testif

y against Hy les, Can

non told Hy

les, Can non would “

handle that” for Hyle s. Hyles s ta ted that he understood t

hat Cannon w ould kill Sm ith if he testified

. Hyles then said that after S mith testified at Hyles’s prelim inary hearing, Hy

les talked to Cannon on

the teleph one. Can

non repeat ed that hewould “ handle that” for Hyle s, which Hy

les understood to m ean kill ing Sm ith . Hyles st ated t hat Ca nnon ’s
reason for driving to Caruthersville, Missouri from Mem phis, Tennessee was to kil l Smith for him.

A ccording to Hyles, his cellm ate at the Pemiscot County Jail, David Carter, also talkedabout killing

Smit h for Hyle s. Hyles agree d to bail Ca rter out of

jail the-6-

same day, but denied t

hat he did so to facilitate the murder of Sm ith or that he offered Carter anythin g in return for killin g Smith. Hyles stated tha

t afte r Smith’s death, Cannon told Hyles that he had killed Smit h. Cannon told Hyles that he made a mask out of a scarf, w ent to Smith’s house, cut the telephone wires, entere d throug h the front door, and shot Smith. Hyles admitted that Canno n killed Sm

ith on behalf

of Hy les, but denied th at he pro mised Cannon anything in retur

n. Hyles did not in dicate at any ti me dur

ing the interview that he wante d to have a l awyer present . Afte r the stat emen t, Locke ttand Cr uz delivered Hyles to Caruthersville. Lockett and Cruz w ere the on ly witnesse s at the suppression hearing. Following

the suppression hearing, a magistrate j udg e filed a report a nd
recom menda tionrecom

mending that Hy

les’s m otion be deni ed. Hy

les o bj ected to several of the m agistrate

judge’ s findings of

fact, asserting

for the f irst time that the governm ent

intentional ly created a ga p in legal repr esentati on be tween Hyles’s federal and state c harges in o rder to obt ain a state ment f rom him, thus, viola

ting his Sixth Ame ndment

right to cou

n sel. Despite these objections, the district court adopted the report a

nd recom menda tion. The

court foun d that it w as Hy les wh o initiated the conver sation wit h Lockett while Hyles was being transported, that Hyles
was advised of his Miranda rights three times, that Hy les was asked

if he under stood those r ights, and that Hy

les said he

did. The court foun d that at no t

ime pr ior to o r during the videotaped

conversa tion did Hy

les expre ss a

desire to rema

in silent or

to have an attorney present. He w as allowed to smoke and was given lunchduring the interview, and his deme anor during the interview

was calm. F urther, the court f ound that it was Hyles who set f orth the co nditions of his giving a statem ent. Th is fact, the court stated, “indicates that [Hy les] felt neither

threatened

nor coerc ed.” A

transcri pt of the vid eotape, bu t not the v ideo its elf, was intro duced at tr ial.-7-

C. Motion

to Exclude

Recorde d Jail Te lephone Calls or Alt ernative ly for a Continuance

The governm ent obtaine d via subpoena recorde d telephone convers ations fro m th e jails in which Hyles and Cannon were being held. The recorded conver sation s were pre served on CDs and were be ing moni tored by the governm

ent primarily

to protect th e safety

of its wit nesses. H

yles had receive d anumbe r of these CD s from the governm ent, but obj ected to th e final si x CDs he ha d receive d fr om the governm ent

on April 29 , 2005, ten days b efore tr ial was sc heduled to be gin. Acco rding to Hy les, thes e six CDs totaled ove r seventy -eight hour s of Hyles’ s recorded telephone conversat

ions. The government ha d obtain ed these CDs between three and nine wee ks beforeit turned t hem ov er to Hy

les. Before trial, Hyles moved to ex clude from evidence the most recent recorded jail telephone conversations fo r failure of the gove rnme nt to disclose th em in a tim ely m anner unde r Federal Rule of Criminal Procedur

e 16(a)( 1)(B)(i ). In the

alternat ive, he moved

to continue the trial for six to eight weeks in order to have suffi cient time to rev iew the conv ersations

. Duringa hearing

on the motion, Hyles acknowledged that the government had given him a

list of tw enty- five rec orded conve rsations it might use at trial. He ar gued that regardle ss of the li st provided b y the go vernm ent, he w ould still ne ed to sif t through all of th e convers ations in or der to avoi d missing any m itigating or exculpatory

evidence. This task, he arg ued, was im possible for

him to accom

plish while preparin g for trial. The government explained that Hyle s continued t o talk on the telephone while it w as try ing Cannon’ s nearly month- lo ng trial , which delayed review of the re corded con versations . Acco rding to thegovernm ent, as soon as it was able to review the tapes and determine their contents, it produced them . Inso me cases, delay

was caus ed because

of concer

ns about the safety

of witnes ses and possible attem

pts to influence th em. Fur ther, the governm ent argue d that the is sue was moot because it ha d already narrowe d down the nu

mber of conver sations it would potentiall

y use a t trial. The district court held the motion in abeyance at-8-

Hyles’s request until Hyles could determine w hat was on the list th e governm ent provided

. Hyles renewe d his mo tion on the f irst 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 appropriat e revi ew. A ccording to Hyle s, his counsel could not “ be a rea sonably

compe tent

attorney in this case under the circumstances.” T

he government confirme d that it intended to introduce “ver y few if any tapes” in i ts case in chief dur ing the guilt phase, a

nd that it w ould provide Hyles advance no tice if it did in tend to use a

ny of t he calls. The gover

nment also reiterated that these

recorde d conversa

tions were “ equally

available to the defense.” The district court denied the l engthy continuanc e Hy les reque sted, but o ffered to considera shorter c ontinuanceif the issu e present ed itself at trial. None of t

he calls were offered at t rial.

D. Trial

Included in th e gov ernment ’s evidencewas a photograph depicting the Pontiac Parisien ne automobile that was paym ent for the murder-for-hire and two photographs of Hyles and Cannon posing toget her. The three photo graphs we re found in Canno n’s jail property

and have w

riting on the

back assoc iating Hy

les and Cannon. On the back of

the picture of

the Ponti ac was written “Da-Pon y G’ ‘Ride.’” The two pictures of Hy les and

Canno n had “‘2’ of Da Mo st Want ed” an d “‘Bo$$’ P laya’s 2- Da-Ca sket 9 ” written on the back, respectively. T he government offere d th e photographs and the writing on the back as evidence of the im portance of the Pontiac to Cannon, a

ndto sh ow Hyles ’s associati on with Ca nnon in the co nspiracy

case. T he district court allo wed the w ritings on the back of the photographs into evidence over foundation a

nd hearsa y obj ections fr

om Hy les.-9-

The government also introduced the testimony of O mar Wil ey and Captain Tony Jones of the

Caruther sville Poli ce Depa rtme nt regard

i ng statem ents m ade by Cannon. Wiley

testified that Cannon was at Wiley’ s house on the afternoon before Smith’s murder. While the two were sit tin g on the por ch, C oy Smit h dr ove by. Wiley testifiedthat when

Cannon saw

Smit h, he told Wiley, “ I’m gonna kill that nigger

. .

. Nig ger go t my b oy.” Wil ey al so tes ti fie d t hat aft er S mi th’s m urder he observed Cannon and Tonya arguing over the Pontiac. Jones testifie d that he pulled Can non over on August 29, 2000, and is sued Cannon a trafficsumm ons. Canno n was driv ing the Pontiac. Jones testifie d that he tol d Cannon to st op threaten ing Tony a about the vehicle and inform

ed Cannon th at the v ehicle w as ma rital prop erty. Cannon responded th at “T yrese had told him he could ha

ve the vehi cle.” T

he governm

ent
o ffered the statem

ents as co- conspirato r statem ents m ade in fur

theranc e of th e m urder-for-hire conspirac y and a s statements agains t interest . The di strict cou r t admitted thes e statements ov er Hyles’s hearsay objecti ons. Apri l Leather

wood, Ca

nnon’s ex -girlfr

iend, tes tified at

trial dur

ing the gove rnment’s case-in-chief. Several day s later, and after Leatherwood had returned to her h ome in Caru the rsv ill e, Hyl es s ought to intro duce exce rpts of re corded j ail telephoneconversations between her and Cannon. The recorded conversations were offered to impe ach state ments Leather wood had m

ade during h er testim

ony. T he court ruled that there had not been sufficient complian ce wi th the requirem ents of Federal Rule of Evidence 613(b) and that the evidence was cumulative, and excluded the conve rsations

. Hyles also calle d witnesse s, including his former attorney who had represented him in the under

lying st ate drug c ase in whi ch Smith w as a witne ss. Dur ing his
exam ination

of his for mer attorney , Hy les asked a bout discus sions the former atto rney had with Hyles. T

he district court allowed

the governm

ent to cross -examin e Hyles’s former attorney . The gov ernm e nt agreed to limit its questions to facts the former attorney knew “ from any

source.”-10-

The jury convicted Hyles on both c ounts. After a separate penalty phase, th e jury recomm ended sentences of life imprisonment w ithout the possibility of parole. Hyles appea ls, argu ing that thedistrict c ourt erre d by: ( 1) deny ing his m otion to suppress his videota

ped statem

ent; (2) denying his motion to excludehis recorded

jail telephoneconvers ations, or, in the alternative, by deny ing his motion for a cont inuance to review

the CDs; (3) adm

itting the w

ritings on the

back of photographs; (4) excl

uding recor

ded telepho ne convers ations between Cannon and Leather wood; (5) adm

itting Canno n’s stat emen

ts through thetestim ony of W iley a nd Jone s; and (6) al lowin g limit ed cro ss-ex aminati on of Hyles’s fo rmer atto rney. We discuss each in turn

.
II. Analy sis

A. Motion to Suppress Hy les’s V ideotaped S tatem ent Hyles argues that the district court erred in denyin g the m otion to suppress his videotaped statem ent. Hyles contends that his Sixth Amendm ent right to counsel was violated and that his statem ent was in voluntary . Whe n review ing a distr ict co urt’s denial of a m otion to suppress, we review the court’ s factual findings fo r clear

error and its legal c onclusions de novo. United St ates v. Ju don , 472 F.3 d 575, 581 (8th Cir. 2007). “We

will affirm the den ial of a m otion to suppress unless t he decision

is unsupported by

substantial

evidence , is based on an erroneous view of t he applica

ble law, or in light of

the entire recor d, we are left with a firm and definite conviction that a mistake has been m ade.” Id. (internal marks omitted). Hyles first argues that his statemen t should be suppressed because it was obtained in violation of his Sixth Am endme nt right to counsel. Specifically, H yles contends that the feder

al and state authorities worked together to create a gap in legal represe ntation, a

ndthen exploited that gap fo r the purpo se of obtaining a state ment from him by placing him

in a car with one of the o fficer s involved in h is case. The-11-

governm ent

argues that Hy

les has wa ived his Six

th Am endme nt claim

because h e did
n ot ra ise it in his pretria l moti on to suppres s, and tha t even if no t waived, his Sixth Amendment claim has no merit.

We neednot

address th e question of

waiver because H

yles’ s Sixth Am

endme nt claim fails on the

mer its. The parties agree that Hy les’s right to counsel hadattached before he was transp orted by Locket t and Cruz. Hyle s’s waiver of his Miranda

rights is enough to est ablish a knowing and intel lige nt wai ver 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 Patterso n v. Illinois , 487 U.S. 285, 296 (1988) (holding that
an accused w

ho has been advised of his Miranda rights “ has been sufficie ntly apprised of the natu

re of his S ixth Am endme nt rights, and of the c onse quences of abandoning

those rights, so that his w aiver on th is basis wi ll be consider ed a knowing and intelligen

t one”); Michigan v. Harvey , 494 U. S. 344, 349 (1990). Further, even if Hyle s had asser ted his righ t to counsel , the cour

t found that

he, rat her than th e off icers, ini tiated th e interrog ation. See id. at 352 (“ [N]ot hing in the S ixth Ame ndment

prevents a suspect charged with a crim e and repr esented by

counsel fr

om voluntarily

choo s ing, on his own, to speak with police in the absence of an attorney.”); Owens v. Bowerso x , 290 F.3 d 960, 962-6 3 (8th Cir. 2002) (stating that
a defendant

initiates interroga

tion if he “ evinces a

willingne ss and a des ir e for a generalized

discussion about the investigation”) (internal marks omit ted). We agree with the distric t court’ s conclusion tha t H yles’ s Sixth Am

endme nt rights w ere not violated

. Hyles also contend s that his statement should be suppressed because it was obtained i n violation of

his Fifth A

mendm ent privile ge against self-inc rimination. The district c ourt found th at Hy les knowing ly and i ntelli gently

waived hi s Miranda rights thre e tim es, and

after reviewing the recor d, we a gree. T

here wa s no violati on of Hyles’s Fifth Amendment right agai nst self-i ncrimination

.-12-

Hyles further all eges th at his statement w as coerc ed in violation of his D ue Process rights. “ ‘A sta

teme nt is involunta

ry w hen it was extracted by thr eats, violence, or expres s or im plied prom

ises suffi cient to ove rbear the defendant ’s will
an d critically im

pair his capacity for self-determ ination.’” Judon , 472 F.3d at 58 1 (quoting United St ates v. L eBrun , 363 F.3d 715, 724 (8th Cir. 2004) (en banc)). When de termining the volu ntariness of

a confession , we ex amine the totalit

y of th e circumstances. Id.

As the distric t court fou

nd, Hyles was allowed to s moke b efore the videotaping bega n. He wa s given lunch , and wa s allowed to use the ba

throom if needed . The statem ent was given

in a question a

nd answer

metho d, and

Hyle s appeare d to be calm and comfortable. Hy

les and the officers were at the Highway Patrol office no more than five or si x hours. W e agree that the le ngth of the e vent “wa s in no way

excessive
or burdensom

e.” Hy les argue s that h e was im plicitly coerced into giving the statem ent because o f the Pem

iscot County

prosecutor ’s prom

ise to Hy les that if

he gave a statem

ent, it would he lp his wife , Tony a. How ever, th ere is no e vidence in the record indicating

that Hyles’s will w as overborne . Hy les him self aske d the Pem iscot County prosecutor

about the pos sibility

of helping h is w ife. A fte r the Pem iscot County prosecutor

advised him

that it wo uld help Tonya, Hy les asked about himself. Hyles was told thatthe Pem iscot County

prosecutor

could not tell him

anything about what wou ld hap pen to hi m. Based on the totality of the circum stances, we agree with the dist rict court ’s decision that Hyles’s state ment was volun tary.

B. Motion to Ex clude Audi otapes of H yles’ s Jail Phone

Calls Hyle s argued pre-trial

that the seventy -eight hour s of recor ded conver sations should be e xcl ud ed s o h e wo ul d n ot hav e to was te v alu abl e pr e-t ria l p rep ara ti on time reviewing them. Hyle s now argu es the gover nment violated F ederal R

ule of Criminal Procedure 16 by not

pr oducin g the calls in a timely m anner. Alternatively, H

yles argues that the district court abused its discretion by denying his motion for a six to-13-

eight week continuanc e to listen to the conve rsations and prepare for trial. We affirm the distric t court’ s decision on both issues.

Rule 16(a)(1)(B)(i ) requires that , upon the de fendant’ s request, the governm ent disclose “any

relevant written or recorded statement by

the defendant if: the statem ent is within the

governm ent’s pos session, c ustody, or control ; and the at torney for the governm ent

knows–or th

rough due dil igence co ul d know–that the statem ent exi sts[ .]” “The district court has b road discr etion in fa shioning sanc tions for violations of

Rule 16 . . . .” United States v. Flores-Mireles , 112 F.3 d 337, 340 (8th Cir. 1997). Thus,
even if we w ere to fin d a violation of Ru le 16 in th is case, excl usion o f the CDs would not necess arily be require d. See id. at 340-41 (holdingthat, despite a Rule 16 violation, the distric t court did n ot abu se its di scret ion b y rejecti ng de fenda nt’s reques t 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 dec ision was within the co urt’s di scretion a nd we find no err or. Hyles next argues that the district court erred in den yin g h is mo tion for a continuance. Distric t courts ha ve broad dis cretion to deny requests for continuanc es. UnitedStates v. Urben-P otratz , 470 F.3d 740, 743 (8th Cir. 2006). As a general matter, continuances are not favored and should be

granted onl

y when the r

equesting party has shown a compell ing reaso n. Id. “W e willreverse a distric t court’ s decision to deny a m otion for continuance only if t he co urt abused its discre tion and the moving party was prejudiced by the denial .” United States v. Thurmon , 368 F.3 d 848, 851 (8th Cir. 20 04) (inter nal marks omitted). Hyles argues tha

t he was pr

ejudic ed b y t he district court’s denial of a continuance because h is counsel’ s tria l preparat ion tim e was sa crifice d in order t o review the recor

dings. He

argues tha

t couns el could

have missed exculpatory2 To the extent Hyles intended to present an argument under Brady v. Mary land , 373 U.S. 83 (1963), such an ar gument f ails. He had access to the CDs and has identifi ed no excu lpatory cont ent. -14- evidence that was buried somewherein the conve rsations. 2 Hyles also argue s that the rushto review

even the li mited

numbe r of conve rsations de signated by the governm ent

disrupted the preparation that is required in the weeks before a capi tal trial. The distr

ict court d enied the lengthy continuanc e Hy les had re quested, b ut it stated tha t a short recess cou ldbe grante d during tri al if the g overnm ent decide d to
use any o f th e rec ord ing s. Ul timat ely, none of the recorded conversations were used as eviden ce 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 governm ent notifie d defensecounsel four days before trial that it would be

calling
a particular expert witness. At trial, however, the government never called th e witness. The g ove rnmen t di d no t no tif y t he defense a bout this dec ision until “ late into the trial.” Id. at 991. L ike Hyles, He rnandez a rgued that despite the fact that the witness never testi fied, “he was pr ejudi ced by h avin g to s acrifi ce defe nse co unse l’s valuable trial pre

paration timeto prepare for that witness.” Id. at 991-92. Our court disagree d, holding that Her nandez failed to show

actual prejudice ; thus, the denial of his motion

to continue did not amount to an abu se of discr etion. H ernandez

was not prejudiced

because h e did not show “wh at w ould have been done bu t for the f alse start, nor how such omission would have led to a different result.” Id. at 992.
Likewi se, Hy

les does n ot point to a

nything specific that would have been done if not for the late arrival of the recorded conversations, nor does he argue t hat, if the continua

nce had been granted, the result of the trial would have been differe nt.3 Hyles also argue s that the di strict cou rt’s d enial of hi s motio n to continue violated his Due P rocess 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. Bernhar

dt , 642 F.2d 251, 252 (8th Cir. 1981) (per cur iam) (“T

he determ ination of whether a denial of

a continua

nce is ar bitrary enough to viol ate due pr

ocess depe nds on the circ umsta

nces pres ent in ever

y case , partic ularly

in the reasons presente d to the trial judge at the time the req uest is de nied.”) (in ternal marks omitted ). -15- Hyles has failed to show actual prejudice; theref or e, we aff

irm the d istri ct cou rt’s decision to deny Hyles’ s motion for a continuance. 3

C. Admi ssion of W

ritings on the

Photograph s Hyles next argue s that the district c ourt abused its discre tion when i t admitted writings on the back

of photogra

phs of the P ontiac and Hyle s a nd Cannon int o evidence over Hyles’s foundational and hearsay objections. Hyles argues that there
was no foundatio n for the a dmissi on of the w ritings bec ause the gov ernm ent did not offer evidence as to when

the writ ings t ook pla ce, who wrote them , and whether Cannon and Hyles k new about the writings. Alt ernative ly, H yles a rgues that

the writings are in admiss ible hears ay. We review the distric t court’ s evidentia ry ru ling for clear abuse of d iscretion , United St ates v. C hase , 451 F.3 d 474, 479 (8 th Cir

. 2006), and will no t reverse if t he error was har mless. United States v. Jara , 474 F.3 d 1018, 10 22 (8th Ci r. 2007). Regarding

Hyles’s argum ent as to f oundation, Federal

Rule of E

vidence 901 requires authentic ation or identificati on before e vidence c an be adm itted. This rule is satisfie d by pro viding “ evidence s ufficien t to support a

finding tha

t the m atter in question is what it s p roponent clai ms.” Fed. R . Evid. 901(a). We have said that underthis standa

rd, the pa rty “ need only demon strate a

rational b asis for

its claim that the evidenceis what th e proponent a sserts it to be.” United States v. Coohey , 11 F.3d 97, 99 (8t h Cir. 1993 ).-16-

The governm ent offer

ed the pict

ure of the Pontiac P arisienne

and the wr

iting
on the back of

that pictur

e to demonstrate t

he imp ortance o f the car to Can non. According to the governm ent, the c ar was i mport ant enough to Cannon tha

t he kept
a picture of

it with him

in jail. The pict

ures of Ca

nnon and Hy

les togethe r with writing on the back wer

e offer ed to prove their

close re lationship. As the governme nt statedat trial, “this is a conspir acy c ase and [t

he picture s and

writings] establish[ ] a[n] associati on between” th e two. The gover nment expressly stated at trial tha

t it did not matter who put th e writin g on the bac k of the pic tures. Keeping in mind the limited purpose t he governm ent had for

offering the photographs and writings, there wa s sufficient foundation. The deputy who seized the photographs from

Cannon’ s property

at the j ail testifie d that he sa w the wr iting
on the back whe n he seized them. Other of ficers i dentified Hyle s and Cannon as the people pictured in the photographs, and the car as the same car they hadseen Cann on and Tonya driving. T

he governm

ent demonstrated a rational basis for its claim that the pictures were of Cannon and Hyles, that the car wa s the Pontiac Parisienne, and that the writ

ings shed ligh

t on th e relations hip betwe en the co- conspirato rs. The district c ourt did not a

buse its disc retion

when it admitted

the pictures and wr

itings over Hyles’s objecti on as to fo undatio n. Regarding

H yles’ s hearsay

argum ent, we

agree w ith the gover

nment that the writings on the pictures are not hearsay. Feder al Rule of Evidence 801 defines hearsay as “a statem ent, othe r than one made by the declara

nt while testify

ing at the trial or hearing, offe red in evid ence to prove the t ruth of th e matter asserted.” Hyles did not objec t to the pictures t hemse lves; he obj ected only to what w as writt en on the
reverse. On the back of the picture of the Pontiac was wri tten “Da-Pony G’ ‘Ri de.’” Th e two pictur

es of Hy les and Ca

nnon had “ ‘2’ o f Da Most Wante d” and “ ‘Bo$ $ ’ playa ’s, 2-Da-C asket 9 ” written on the bac k, respectively. The government offered the writings on the back of the ph otographs a s evidence of the im

portance of the-17-

Pontiac to Cannon, a

nd to show Hyles’s association with Cannon in the conspiracy
case
. The wr

itings wer

e not offe red to prov e that Hy les was a “Boss Play a” or one of the “Most Wanted.” The re is no su ggestio n that the jury was told wh at these phrases mea

n. Indee d, it

is the fact that there is writing on the back of these pictures and that Hyles and Cannon found the picture s important enough to write on that makes them im

portant; what exactly was written on them does not matter. See United States v. Wil son , 532 F.2 d 641, 646 (8 th Cir. 19 76) (“ It is the fact tha t the statem ents
were written , and not th e truth of the statem ents, wh ich was relevant. ”) Ther efore, they are not hea rsay, and were prop erly admitted into evidence.

Even if the wr

itings were of

fered f or their t ruth, we would

not rever se becaus e any error is harmless

. The gover nment pr esented ample evidence at trial that demonstrated the close rel ationship be tween H yles a nd Cannon, including ad

missio n s by Hyles in his videotaped statement that

he had talked to Cannon several times on the telephone before Smith was m urdered, that Cannon was Hyles’ s “par tner ,” and that Hyle s and

Cannon we re “ cool” and had been “ friends for a long time. ” Any error here would n ot be revers ible error.

D. Exclusion

of Recorded Phone Convers ations Between Amesheo Can non and April Leather wood Hyle s argues th at the distr ict court erred when it exclude d prior inc onsistent statem ents offere d by Hy les to im peach April Leather

wood. Fe deral Rul e of Evidence 613(b) “

provides tha

t extrinsicevidence of a prior inconsisten

t statement by a witness is not adm

issible unle ss : (1) th e witness is affor ded an oppor

tunity t o explain or deny th e statem ent and theopposing par ty is a fforded a

n opportunity

to interroga te the witness about the statement or (2) the inter ests of justiceotherwis e require.” United St ates v. S chnapp , 322 F.3d 56 4, 571 (8t h Cir. 2003 ). The district court excluded t

h e recorded conversat

ions between Leather

wood and Cannon bec ause Leather wood was not given the

opportunity to explain or deny the conversations as-18-

required by Rule 613(b). A lthough Lea

therwood h ad testifi ed, she was no long er in the courtr oom w hen Hy les sought

to introduce her

prior stat emen

ts. Furt her, wh ile Leather wood was s till under s ubpoena, t he distric t court sta

ted that it would deny defen dant ’s request to bring her back because t he evidenc e would becumul ative under Feder al Rule of Evi dence 403

. The district c ourt’s R

ule 403 conc erns wer

e warranted. R

ule 403 allow s the court to excluderelevant

evidence“if

its probative value is substantially outweighed by

. . . needle ss present ation of cu mulat ive evidenc e.” Le atherwo od had alre ady proven hers elf u ntr ust wort hy. Sh e ad mitt ed o n cro ss- exa minat ion tha t ev eryt hing sh e told Cannon’s investigators was false. The district co urt was w ell within its discretio n to determine that adm ission of Lea therw ood’s prior incon sistent sta teme nts would be cumulative, see Fed. R. Evid. 403; United States v. S utton , 41 F.3d 1257, 1260 (8th Cir. 1994) (holding that rec alling a witness to allow her to explain or deny
a pri o r inco nsis tent state ment “is no t mandat ory, but is op tion al at t he tri al jud ge’s discretion”), and that “

the intere sts of jus tice” did n ot “oth erwis e r equire” t he admission of

the statements

. Hyles also argues that his Si xth Am endme nt right to present

witnesse s on his beh alf was violated by the exclusion of Leatherwood’s prior statem ents. Hyles ’ s Sixth Ame ndment

rights we re not viola

ted. In t he context of evidenti ary e xclusions,
a defendant ’s Sixth

Ame ndment

rights are

only vio la ted “where the trial court excludes relevant

evidence without sufficient justification.” Bernhar dt , 642 F.2d at 253. The district court’s determ ination that admis sionof the re corded con versations would be cu mulative is su fficient jus tificatio n.
E. Admi ssion of Am

esheo Cann on’s Sta

teme nts Hyles next argues that

the district court erred in admit ting several statem

ents made by his c o-conspira

tor, Can non. The district

court’s discretion to admit evidence-19-

over a hearsay objection is “

particularly broad in a conspiracy trial.” United States
v. McKay , 431 F.3 d 1085, 1093 (8th Cir. 2005) (inte rnal quotat ion omitt ed). W e will
reverse only if the distric t court’ s ruling wa s a “c lear and p rejudic ial abuse o f discretion.” United St ates v. H askell , 468 F.3d 10 64, 1072 (8th Cir. 20 06).

i. Testimony of Omar W iley

At trial, O mar Wiley

testifie d that: (1) Cannon told h im before the murder that he intended to kill Coy Sm ith, and that (2) after th e mur der he obse rved Canno n and Ton yaarguing about the Pontiac. Hyles argues that these stat emen

ts are ina dmissi

ble hearsay and should ha

ve been exc luded. W e disagre e. Canno n ’s state ment t hat he planned or intende d to kill Sm ith is admissible as his “then exis ting sta te of mind . .

. (such as intent, plan, motive, design . . . )” pursuant to Federal Rule of Evidence 803(3). Such statements “ are not exclude d by the hears ay rul e.” Fe d. R. E vid. 803. Wiley’s testim ony tha

t Cannon w anted the c ar and tha t W iley ha d w itnessed an arg ument regarding the ownership of the car is not hearsay because it is not an assertion by either Canno n or Tonya. See Fed. R. Evid. 801 (a). T he district court did not error whe n it admitted t hese state ments.

ii. Testimony of Captain Tony Jones
Caruthers vi lle Police D epartment Captain Tony Jones testi fied rega

rding a conversat ion he had wit

h Cannon on e week after the murder of Smith. After p ulling Cannon over for running a stop sign, Jon es as ked Can non “to st op t hre aten ing Ton ya Hyles over Ty

rese Hy les’s vehicle,”

and told Ca

nnon “t hat the veh ic le w as ma rital property and she did not have to give him the vehicle. ” Cann on told Jones that “Ty rese had told him he could have the vehicle.” Hyles argues that Canno n’s statem ent is inadmissible hearsay. The govern ment argues the sta teme nt was pro perly admitted as a co-conspirator statem ent i n furtheran ce of the con spiracy. While we have serious concerns as to whether Cannon’s statement actually was in furtherance-20-

of the conspiracy to murder Smit h in exchang e for the P ontiac, w e need not a ddress this issue.

Even if it was err or to allow

the statem ent into evi dence, w e find that any e rror is not prej udicial. The gover nment presente d additional

evid enc e linking Ca

nnon and the Pontiac to the conspiracy, including the fact that Cannon was seen by sever al witnesses driving the car, the fact that Tonya had used the Pontiac as collateral when bailing David Ca

rter out of

jail, Wiley ’s obse rvation of a fight bet ween To nya an d Cannon over the car, Jones’s recollec tion of his own state ments , and the p icture of the Pontiac in Cannon’ s jail c ell. Hy les has not c onvinced us t

hat the outc ome of

his trial would hav e been differ ent if not for the admissi on of Cann on’s statement.

F. Cross Examination of Hyles’s Former Attorney

Fin all y, Hyles argues that the district court erred by allowing t

he governm

ent to ask Hyles’s form er attor

ney que stions during

cross exa minat ion. Hy les contend s that this violate d his atto rney-c lient privilege. This argument has no m erit. By calling his former attor

ney fr om his u nderly ing state dr

u g case as a

witness a

nd asking the attorn ey abo ut discussion s wit h Hy les, Hyles waived h is privil ege. See UnitedStates v. Workman , 138 F. 3d 1261, 1263 (8th Cir. 1998) (“Voluntary disclosure of attorney clie nt com munic ations expressly w aives the p r ivilege .”). Further, the governm

ent agree d to limit its inquir y on cr oss-exam ination to f

acts known to the attorney “ from any source.” See Upjohn Co. v. United States , 449 U.S. 383, 395-96 (“ The prote ction of th e privi lege exte nds only to communic ations and not to facts. A fact is one thing and a c omm unication c oncerning t

hat fact is an entirely differe ntthing.”) (internal mar ks omit ted). T he distric t court did n ot abuse its discretio n.-21-

III. Conclusion For the foreg oing reas ons, we affirm the jud gment of the di strict cou rt.

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