1

The Honorable Richard G. Kopf, United States District Judge for the District

of Nebraska.

 United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-3124

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United States of America, *

*

Plaintiff - Appellee, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska.

Jeffrey E. Hoover, *

*

Defendant - Appellant. *

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Submitted: March 26, 2008

Filed: September 19, 2008

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Before RILEY, JOHN R. GIBSON, and MELLOY, Circuit Judges.

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JOHN R. GIBSON, Circuit Judge.

Jeffrey Hoover appeals from his jury conviction on two counts of using a

firearm in connection with a drug trafficking offense in violation of 18 U.S.C. §

924(c)(1), resulting in the deaths of Harold Fowler and Duane Johnson. He

challenges the sufficiency of the evidence, alleges that the district court1

 erred in two

evidentiary rulings, and asserts that a verdict should have been entered on only one

count because the counts were redundant. We affirm.
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On June 14, 1997, Lincoln police were called to Harold Fowler’s apartment in

response to the building owner’s concern about reports of a foul odor and flies coming

from the apartment. The decomposing bodies of Harold Fowler and Duane Johnson

were found there, both of whom died from multiple gunshot wounds attributable to

homicide. The government introduced forensic evidence at trial that the murders had

occurred approximately five days before the bodies were found. Although Lincoln

police actively investigated the murders, they had no break for eight years that would

lead them to consistently focus on any particular person. On July 5, 2005, Sergeant

Koziol received a kite, or a message from an inmate, that the inmate wanted to talk to

a detective. An investigator first interviewed the inmate, Jeff Hauser, on July 8 and

again on September 13. As a result of these conversations, police interviewed

Benjamin Waldbaum, B.J. Kempton, and Jeffrey Hoover in connection with the

murders of Fowler and Johnson.

Waldbaum was fifteen years old and Kempton was seventeen at the time Fowler

and Johnson were killed. Hoover was in his twenties. Kempton lived with his sister

and Hoover, who was his sister’s boyfriend. Waldbaum, who bought alcohol and

marijuana from Fowler, lived two doors away. During their initial investigation,

police contacted Waldbaum about two months after the murders and Kempton three

and a half months after that. Neither was a suspect, but they were contacted because

they knew Fowler. At the time, neither revealed that they had any personal

knowledge of the facts surrounding the deaths, and police did not have any further

contact with Waldbaum or Kempton until 2005. Police also contacted Hoover within

three months of the murders because he had reported some of his checks had been

stolen and police found the checks in Fowler’s apartment building while they were

investigating the murders. Although Hoover did not know it at the time, Waldbaum

had stolen the checks and given them to Fowler because Fowler had offered to give

Waldbaum alcohol, marijuana, or cigarettes in exchange for any checks he might run

across. None of that information came to light in 1997.
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When police received the kite in July 2005, they learned that Waldbaum had

been talking about witnessing a homicide. From that point, the investigation became

quite active and police were able to ascertain the details of Waldbaum’s and

Kempton’s involvement. In the spring of 1997, Waldbaum was at Kempton’s house

and Hoover was also there. Hoover was complaining that checks totaling $1500 had

been forged on his account, and he was looking to buy a pound of marijuana that he

could resell to recoup his loss. Waldbaum told Hoover he could get a pound for $900,

and he offered to arrange the deal in the hopes that he could be paid a fee in money

or marijuana. Waldbaum negotiated the sale with Fowler and told him not to rip off

Hoover because the checks Waldbaum had stolen for Fowler belonged to Hoover.

On the morning of June 9, 1997, Waldbaum rode his bike to Fowler’s apartment

to check on the deal. Fowler and Johnson were there. Although the marijuana was

not yet at the apartment, Waldbaum called Kempton and Hoover to come over, and

when Hoover arrived Fowler explained that he didn’t have the marijuana but would

be getting it. Hoover was upset by this news and reluctantly gave Fowler $850 on the

promise that Fowler would deliver. Fowler and Johnson left, but Waldbaum,

Kempton, and Hoover remained in the apartment. As time passed without Fowler

returning, Hoover got increasingly upset. He had Waldbaum page Fowler to see why

he was taking so long, and Fowler said he would be back in half an hour. He was not.

Hoover placed a phone call to borrow a gun, and he sent Kempton in his car to

retrieve it. While Kempton was gone, Hoover began wiping down surfaces he might

have touched to remove fingerprints.

Kempton returned to the apartment, and Hoover left briefly to get the gun from

the car. He carried a .22 rifle wrapped in a towel into the apartment and placed it

beside the couch with a pillow hiding it. After dark, Hoover told Kempton to go move

Hoover’s car so that it would appear that he had left. Fowler and Johnson arrived

around 9:00 or 9:30 p.m. without the marijuana or Hoover’s money. Hoover was

extremely angry and began to argue with Fowler. Hoover grabbed the gun and
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confronted Fowler and Johnson with it in the kitchen area. They continued to argue,

and Hoover jabbed the barrel of the gun into Fowler’s chest. Waldbaum saw Fowler

stumble backward and saw blood trickle from his chest. Hoover told the boys to

leave, and they both grabbed their bikes and ran. They threw their bikes over the

fence and went to Hoover’s car where they waited about five minutes for Hoover to

arrive. He was carrying the gun, covered by the towel. Hoover told Waldbaum to get

out of the car and to meet him back at Hoover’s house. When Waldbaum inquired

what had happened, Hoover said the two were dead. After meeting up at Hoover’s

house, Waldbaum and Kempton went back to Fowler’s apartment to lock the door.

While there, they retrieved $65 from Fowler’s pockets and took Johnson’s fanny pack.

The evidence was presented in a nine-day trial during which the government

produced thirty witnesses and the defense presented five. The jury returned a verdict

of guilty on both counts, and the district court imposed concurrent life sentences on

each count. Hoover filed a timely notice of appeal.

I.

Hoover first argues that the evidence was insufficient to support his conviction

under 18 U.S.C. § 924(c)(1). His argument is a narrow one. He asserts that an

essential element of the crime is using a weapon in relation to a drug trafficking

offense, and he contends that the evidence was insufficient to establish that he was

trafficking. Hoover points out that he did not possess or deliver any drugs and he

contends that evidence of his intended marijuana purchase was too remote in time to

the killings to be probative of his intent to distribute. Furthermore, he asserts that a

pound of marijuana is not a quantity that creates a permissible inference of an intent

to distribute. In determining sufficiency, we view the evidence in the light most

favorable to the verdict and we will reverse only where no reasonable jury could have

found the defendant guilty beyond a reasonable doubt. United States v.Velazquez,

410 F.3d 1011, 1015 (8th Cir. 2005).
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Hoover’s argument fails. As the district court instructed the jury, each count

contained five essential elements: 1) Hoover knowingly and intentionally attempted

to possess with intent to distribute a mixture or substance containing a detectable

amount of marijuana; 2) he knowingly used a firearm during and in relation to the

crime; 3) he used the firearm to unlawfully kill Fowler and Johnson; 4) he acted with

malice aforethought; and 5) the killing was premeditated. The government did not

have to prove that Hoover actually possessed or delivered drugs, nor did it have to

meet a threshold quantity of the marijuana that he attempted to possess. The evidence

showed that Hoover told Waldbaum that he wanted to purchase marijuana so that he

could recoup the expense of the forged checks, and the negotiations with Fowler

continued through the day he was killed. Hoover gave Fowler $850 for Fowler to buy

marijuana for Hoover and he waited at Fowler’s apartment for the delivery that never

came. Clearly, Hoover’s actions were a substantial step toward attempting to possess

with intent to distribute marijuana. See United States v. Gaines, 969 F.2d 692, 698-99

(8th Cir. 1992). The jury heard sufficient evidence of Hoover’s intent to support his

conviction.

II.

 Hoover asserts that the district court erred in admitting prior consistent

statements of Waldbaum and Kempton through other witnesses because the statements

were unfairly prejudicial and the court’s limiting instruction was insufficient to

prevent the jury from considering the statements as substantive evidence of Hoover’s

guilt. We review the district court’s evidentiary rulings for abuse of discretion.

United States v. Kenyon, 397 F.3d 1071, 1081 (8th Cir. 2005).

Steven McCaul testified at trial. He had been friends with Hoover for a few

years before the shootings. Hoover called him in early June 1997 and asked to borrow

his rifle, as he had done before. Kempton came to McCaul’s apartment to pick it up.

McCaul never saw the rifle again, but he did see Hoover that same night. Hoover told
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him he had used McCaul’s gun to shoot and kill two men to whom he had given

money to buy marijuana because he did not get the marijuana or his money back.

They spoke again about six months later when Hoover told McCaul that he was

nervous about the murders because his checkbook had been found in the apartment

building where the men were killed.

The government also elicited testimony from McCaul about his conversation

with Kempton about a week after the murders in which Kempton told McCaul that he

had been present when Hoover killed the two guys. Outside the jury’s presence, the

government had offered this testimony as substantive non-hearsay evidence under

Federal Rule of Evidence 801(d)(1)(B). The district court had denied the offer and

instead announced its intention to admit the testimony with an instruction that limited

its use to assessing Kempton’s credibility. The court read its proposed limiting

instruction, and Hoover’s counsel agreed to it. When the government asked McCaul

during his testimony what Kempton said to him, Hoover’s counsel objected to the

evidence as hearsay and as unduly prejudicial, and the district court allowed McCaul

to answer before giving the following instruction.

Ladies and gentlemen, I’m going to give you a limiting instruction now

about what Mr. McCaul has testified that Mr. Kempton said to him,

allegedly said to him in the summer of 1997. You may use the testimony

of Steven McCaul about what Brian Kempton said to him in the summer

of 1997 for a limited purpose. You may only use what McCaul said that

Kempton said in the summer of 1997 to evaluate the credibility of Brian

Kempton. In other words, Kempton’s statement to McCaul in the

summer of 1997 cannot be used by you to prove that the defendant is

guilty of the crime charged. That is, it can be used only to evaluate

Kempton’s credibility.

The court then inquired of Hoover’s counsel if the instruction was sufficient, and

counsel replied that it was. The government elicited similar testimony from Jennifer

Wilson, Kempton’s former girlfriend, and the district court gave the same sort of
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limiting instruction before she testified about what Kempton had told her. Finally,

Sergeant Koziol testified that Waldbaum told him in an October 2005 conversation

that he had been involved in a drug rip-off killing that he and Kempton witnessed and

the shooter was Jeff Hoover. Koziol also recounted Waldbaum’s similar statements

to Jeff Hauser’s girlfriend in September 2005 that were secretly recorded via a wire

that she wore. The district court instructed the jury that they could use Koziol’s

testimony only for the purpose of assessing Waldbaum’s credibility.

Hoover complains that the statements should have been excluded because they

were not offered to rebut an implied or express charge of recent fabrication. He

asserts that Kempton’s and Waldbaum’s admitted presence in Fowler’s apartment

gave each an immediate motive to lie, and thus their statements were not admissible

under Rule 801(d)(1)(B) because they were not made before the motive arose.

Hoover correctly states the law to the effect that an earlier consistent statement must

have been made prior to the opportunity for fabrication in order to be admissible as

non-hearsay. Tome v. United States, 513 U.S. 150, 167 (1995). The government

contends that the testimony was admissible because Kempton had testified at trial and

was subject to cross-examination, the statements were consistent with that testimony,

and the statements were offered to rebut a charge that Kempton later had a motive to

lie about Hoover’s involvement.

The district court made no determination about when a motive to lie arose for

Waldbaum or Kempton. It denied the government’s effort to admit the statements

under Rule 801 and informed counsel that it intended to allow the testimony with a

limiting instruction. Hoover’s counsel agreed to the instruction the court proposed.

When McCaul and Wilson testified, Hoover’s counsel objected on the basis of hearsay

and each time the district court gave the instruction. With respect to the statements

that came from Koziol, they were elicited during the government’s cross-examination

in an effort to rehabilitate Waldbaum’s testimony with prior consistent statements.

Hoover’s counsel objected to the questioning as being beyond the scope of Koziol’s
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We are aware of the Supreme Court’s determination that the rationale of Rule

801(d)(1)(B) is that testimony admitted under the rule is substantive evidence of

rebutting an alleged motive. It is not to be used to bolster the veracity of the witness’s

story as told on direct examination. A prior consistent statement is not to be admitted

simply to bolster a discredited witness or to counter all forms of impeachment, but is

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direct testimony, but the district court allowed the government to ask about

Waldbaum’s prior statements to fill in the time-line that Hoover had established

through Koziol’s direct testimony.

We need not determine whether Waldbaum’s and Kempton’s statements that

are the subject of Hoover’s challenge were made before either man had a motive to

fabricate. Koziol’s testimony contained prior consistent statements that were

introduced for the purpose of rehabilitating Waldbaum’s testimony. Waldbaum spoke

with Hauser’s girlfriend in September 2005 and told her that he had witnessed a

homicide when he was fourteen years old over a drug deal gone bad involving nine

hundred dollars. He and a friend had been there with their bicycles, they were

surprised when the shot was fired, and they had returned to the apartment after the

killings. The shooter was in his twenties, and the bodies sat in the apartment for about

five days before police found them. Koziol then recounted his interview with

Waldbaum in October 2005 during which Waldbaum said the killing was a drug ripoff and the shooter was Jeff Hoover. The district court instructed the jury after each

series of questions that the statements could be used for the sole purpose of evaluating

Waldbaum’s credibility.

Waldbaum’s statements, as introduced through Koziol, had the purpose of

demonstrating that there was no real inconsistency between Waldbaum’s earlier story

and his trial testimony. In this circumstance, prior consistent statements may be

admitted for rehabilitative purposes even if they are not admissible as substantive

evidence under Rule 801(d)(1)(B). United States v. Kenyon, 397 F.3d 1071, 1081

(8th Cir. 2005).2

 The district court did not err in allowing the testimony.
limited to the purposes cited by the rule. Tome, 513 U.S. at 157-58. In Tome, there

was a “rather weak” allegation of fabrication that was countered with a barrage of

sympathetic and credible witnesses who did no more than recount the witness’s prior

statements. The testimony was probative of the alleged conduct but shed minimal

light on the fabrication motive. In its closing argument, the government spoke of the

statements as substantive testimony and not to rebut the alleged motive. Id. at 165.

In contrast, the statements in this case were limited to a series of a handful of

questions to each witness, occupying a few pages of transcript out of eleven volumes.

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The same holds true for McCaul’s and Wilson’s testimony. Kempton’s

statements that they recounted demonstrated the consistency of Kempton’s testimony.

The district court gave an appropriate limiting instruction and did not err in admitting

the statements.

III.

Hoover argues that the district court erred in giving the jury a cautionary

instruction following the introduction of a statement from a deceased declarant.

Hoover asserts that the testimony was important to his defense and that the district

court gave no authority or reason to single out the evidence for special treatment. We

review the district court’s instructions to the jury for abuse of discretion. United

States v. Milk, 281 F.3d 762, 768 (8th Cir. 2002).

Hoover sought to introduce a statement from James Davis, an individual who

called the Lincoln Police Department on June 15, 1997, to say that he was a friend of

Harold Fowler. Davis said he had spoken to Fowler on June 9. On June 10, Davis

called Fowler to try to buy some marijuana from him. A male in his twenties, whom

Davis believed to be African American, answered Fowler’s telephone and said that

Fowler wasn’t there.
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Hoover urged the district court to admit Davis’s statement under the residual

exception to the hearsay rule. The district court expressed concern about the

statement’s reliability as Davis was not sworn and thus was not subject to the penalties

of perjury, nor was he subject to cross-examination or available for the jury to use its

normal measures of credibility. The district court gave Hoover’s counsel the option

of admitting the evidence with a cautionary instruction or denying its admission.

Counsel chose the former, and the district court gave the instruction. The court told

the jury that Davis had given Koziol his address, telephone number, date of birth, and

had identified his race as black; that Hoover had established that a black man with a

similar name and date of birth was dead; and that a black man with a similar name and

date of birth had a record of alcohol-related misdemeanors. The court continued:

“While you may consider this evidence and give such weight to the statement as you

think it deserves, please do so with caution.” The court then listed the three reliability

concerns mentioned above.

Hoover’s only complaint about the cautionary instruction is that the district

court offered no authority or reason for it. In fact, the court provided three sound

reasons why the jury should cautiously consider the evidence which, as it pointed out,

would be admitted without limits for any purpose and could be given the weight the

jury thought it deserved. The district court did not abuse its discretion.
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IV.

Finally, Hoover contends that the district court erred in entering a verdict on

both counts of the superceding indictment because it alleged only one unit of

prosecution and the two counts were redundant. In other words, Hoover is arguing

that the indictment is multiplicitous because it charges a single offense in separate

counts, a violation of the double jeopardy clause of the Fifth Amendment. See United

States v. Platter, 514 F.3d 782, 785 (8th Cir. 2008). We review such a claim de novo.

Id.

Hoover’s claim is without merit. We have previously held that each separate

use of a firearm in relation to a drug trafficking crime is punishable under 18 U.S.C.

§ 924(c) regardless of whether another charge under the same statute is related to the

same predicate offense. United States v. Lucas, 932 F.2d 1210, 1223 (8th Cir. 1991).

Moreover, under the test set forth in Blockburger v. United States, 284 U.S. 299, 304

(1932), Hoover is not subject to double jeopardy because each count requires proof

of an element not required by the other. In Count I, the government had to prove that

Hoover killed Harold Fowler. In Count II, the government had to prove that Hoover

killed Duane Johnson. The district court did not err.

V.

For the foregoing reasons, the judgment is AFFIRMED.

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