FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

May 9, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-13713

Non-Argument Calendar

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D. C. Docket No. 07-00025-CR-T-27MAP

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

TYDEARAIN SMITH, 

Defendant-Appellant. 

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Appeal from the United States District Court

for the Middle District of Florida

_________________________

(May 9, 2008)

Before TJOFLAT, HULL and PRYOR, Circuit Judges.

PER CURIAM:

A Middle District of Florida jury convicted Tydearain Smith on both counts
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of a two-count indictment: Count One, possession with intent to distribute five or

more grams of a mixture containing cocain base (“crack cocaine”), in violation of

21 U.S.C. § 841(a)(1); Count Two, using and carrying a firearm in relation to the

Count One offense, in violation of 18 U.S.C. § 924(c)(1)(A)(ii). The district court

thereafter sentenced Smith to concurrent prison terms: 210 months on Count One

and 84 months on Count Two. He now appeals his convictions and his sentence on

Count One. 

Smith’s appeal of his convictions seeks two forms of relief, a judgment of

acquittal on the ground that the evidence was insufficient to convict, and,

alternatively, a new trial on the grounds that the district court abused its discretion

in barring under Federal Rule of Evidence 608(b) statements Officer Kenneth

Goebel previously made, which purportedly shed light on his truthfulness, and in

limiting Smith’s cross-examination of Goebel. For convenience, we address these

new trial grounds first. 

Federal Rule of Evidence 608(b) states in relevant part: “Specific instances

of the conduct of a witness, for the purpose of attacking or supporting the witness'

character for truthfulness, other than conviction of crime as provided in rule 609,

may not be proved by extrinsic evidence.” Fed. R. Evid. 608(b). “[E]xtrinsic

evidence of a witness' prior misconduct should be excluded where that evidence is
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probative only of the witness' general propensity for truthfulness; such evidence

should be admitted, however, where it is introduced to disprove a specific fact

material to the defendant's case.” United States v. Calle, 822 F.2d 1016, 1021

(11th Cir. 1987). In other words, the rule “prohibits a party from introducing

extrinsic evidence of prior misconduct merely to impeach the general credibility of

a witness.” Id.

Goebel was reprimanded in 2002 for comments he made about inappropriate

police practices. During the investigation that led to the reprimand, Smith stated

that some of his comments were made in jest. According to Smith, the comments

constituted false statements and, thus, evidence that Goebel was untruthful as to

anything he might say – including the testimony he was giving in the instant case.

Under Rule 608(b), out-of-court witness statements such as Goebel’s – even if they

show untruthfulness – are excludable. See e.g., United States v. Pope, 132 F.3d

684, 688 (11th Cir. 1998); United States v. Castro, 89 F.ed 1443, 1458 (11th Cir.

1996). In short, the district court committed no abuse of discretion in excluding

the proffered statements.

Smith argues that the court abused its discretion in limiting his crossexamination of Goebel about the reprimand, saying that there exists a “substantial

likelihood” the limitation influenced the jury’s verdicts because Goebel’s
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testimony was the only evidence tying him to the crack cocaine.

“Subject to the Sixth Amendment, the district court has the discretionary

authority to limit cross-examination.” United States v. Beale, 921 F.2d 1412, 1424

(11th Cir. 1991). Additionally, specific instances of conduct, “if probative of

truthfulness or untruthfulness, be inquired into on cross-examination of the witness

. . . concerning the witness' character for truthfulness or untruthfulness... .” Fed. R.

Evid. 608(b). We have recognized the importance of the right to full crossexamination when applied to the government’s star witness or a witness who

provides an essential link in the government’s case. United States v. Lankford, 955

F.2d 1545, 1548 (11th Cir. 1992). Nevertheless, the right is not without limitation,

as the Sixth Amendment only protects cross-examination that is relevant. United

States v. Lyons, 403 F.3d 1248, 1255 (11th Cir. 2005). One purpose of crossexamination is, of course, “to impeach the credibility of opposing witnesses.” 

United States v. Lindstrom, 698 F.2d 1154, 1160 (11th Cir. 1983). Such crossexamination includes the “general character for truthfulness” of the witness. 

Lyons, 403 F.3d at 1256. Even relevant evidence, however, “may be excluded if

its probative value is 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.
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Evid. 403. In Calle, we found no abuse of discretion in limiting cross-examination

on collateral matters. 822 F.2d at 1020 (holding district court properly limited

cross-examination about questions concerning compliance with plea agreement and

tax returns, as they were collateral to core issue).

Evidentiary decisions do not constitute reversible error “unless a substantial

right of the party is affected.” Fed. R. Evid. 103(a). Furthermore, errors that do

not “affect substantial rights must be disregarded.” Fed. R. Crim. P. 52(a). A

defendant’s substantial rights are prejudiced when there exists “a reasonable

probability that ... the outcome of the trial would have been different.” United

States v. Newsome, 475 F.3d 1221, 1227 (11th Cir.) cert. denied, 128 S.Ct. 218

(2007). 

The district court did not abuse its discretion in the court’s limitation of

Smith’s cross-examination of Goebel. The only indication of falsehood regarding

the reprimand is that Goebel stated comments he made were made in jest. The

statements were remote in time and were collateral to the main issues. The use of

the comments during cross-examination would likely have confused the jury as the

jury would need to understand that Goebel’s reprimand was not for making false

statements.
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Smith argues had the court not excluded the statements Goebel made during

the reprimand investigation, the evidence of guilt would have been insufficient to

convict him on Count One, and on Count Two as well, since conviction on the

Count Two offense depended on his commission of the Count One offense. Since

we uphold the court’s exclusion of the statements at issue, his sufficiency-of-theevidence argument depends on the sufficiency of the other evidence in the case. In

our view, the evidence of guilt was more than necessary to convict. In addition to

Goebel, Smith was confronted with the testimony of two other officers – Goebel’s

partner, Steve Heaven, and Ronald Robinson. Heaven, like Goebel, saw Smith

with a gun in his hand; Robinson found the pill bottle and crack cocaine that

Goebel described. We turn now to Smith’s Count One sentence.

Smith asks that we remand his Count One sentence for reconsideration. 

“Under 18 U.S.C. § 3582(c)(2), a district court has discretion to reduce the term of

imprisonment of an already incarcerated defendant when that defendant was

sentenced based on a sentencing range that was subsequently lowered by the

Sentencing Commission.” United States v. Bravo, 203 F.3d 778, 780 (11th Cir.

2000). “Although a defendant must ordinarily petition the district court for

modification of his sentence, [we have held where the defendant] raised the

sentencing issue on appeal . . . it is unnecessary to require him to take this
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additional step.” United States v. Vazquez, 53 F.3d 1216, 1228 (11th Cir. 1995)

(vacating the sentence and remanding the case to the district court to determine

whether to adjust sentence under an amended guideline).

The November 1, 2007, Sentencing Guidelines list a base offense level of 26

for possessing greater than 20 but less than 35 grams of cocaine base. U.S.S.G.

§ 2D1.1(c)(7) (2007). Smith was sentenced under the November 1, 2006,

Guidelines, which listed a higher base offense level of 28 for possession of the

same amounts. U.S.S.G. § 2D1.1(c)(6) (2006). The amendment reducing the base

offense level by two is listed in the category of covered amendments for which 18

U.S.C. § 3582(c)(2) applies retroactively. U.S.S.G. § 1B1.10(c)(amend. 706)

(March 3, 2008); U.S.S.G. (amend. 713) (March 3, 2008). Therefore, the district

court may reduce the term of imprisonment upon motion of the defendant. 18

U.S.C. § 3582(c)(2). The two-level reduction authorized by the amendment could 

reduce Smith’s sentence on the crack cocaine conviction to as low as 168 months’

imprisonment. See U.S.S.G. at Sentencing Table. Whether Smith’s Count One

sentence should be reversed is a matter for the district court to consider. We

therefore vacate his Count One sentence and remand the sentence on that count for

reconsideration. Smith’s convictions, however, are affirmed.

SO ORDERED.