[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 13-11736

Non-Argument Calendar

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D.C. Docket No. 1:12-cr-20832-FAM-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

versus

ALLEN KYODE PACQUETTE, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(March 4, 2014)

Before TJOFLAT, JORDAN, and FAY, Circuit Judges.

PER CURIAM:

Allen Kyode Pacquette appeals his conviction for importing 500 grams or 

more of cocaine, in violation of 21 U.S.C. §§ 952(a) and 960(b)(2)(B), and 

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possessing with intent to distribute 500 grams or more of cocaine, in violation of 

21 U.S.C. § 841(a)(1) and (b)(1)(B)(ii). He argues the district judge erred in 

excluding his exculpatory statement, when it was admissible under the rule of 

completeness. We vacate Pacquette’s conviction and remand for a new trial.

I. BACKGROUND

On information from a confidential informant, United States Customs and 

Border Protection (“CBP”) officers stopped Pacquette at Miami International 

Airport, after his arrival from St. Thomas, U.S. Virgin Islands. A search revealed 

the bag he was carrying contained approximately one kilogram of cocaine, as well 

as clothing and several personal items. He was arrested and subsequently indicted.

After stipulation by the parties, the primary issue at trial was whether 

Pacquette had known his bag contained cocaine. Pacquette generally denied 

knowing of the cocaine and contended it was planted. The government’s case 

included testimony from two CBP officers. The officers testified differently 

regarding whether Pacquette claimed he had known his bag contained cocaine.

On direct examination, the government asked CBP Officer Robert Rivera 

about his initial encounter with Pacquette, while he was disembarking from the 

airplane. Officer Rivera described his exchange with Pacquette:

My questions to [Pacquette] were, if this is your bag, which he 

answered yes. Did you pack your bags? He stated yes. I also asked 

him, did anybody give you anything to bring back to the United 

States? He said no. Does everything in here belong to you? Yes.

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R at 287. The government further questioned Officer Rivera:

Q. And just to be clear, the defendant claim[ed] that everything in the 

bag belonged to him?

A. That’s correct.

R at 287. CBP Officer Raul Ramirez gave this account of his later discussion with 

Pacquette, which occurred after Officer Rivera had discovered the cocaine.

Q. And did the defendant claim responsibility for everything in the 

bag?

A. At that moment he said no and I stopped him, and I said, what do 

you mean by no? He said well—[h]e pointed at my supervisor. He 

said, he found something in the bag.

R at 310.

On cross-examination of both witnesses, defense counsel attempted to elicit 

the fact that, in the inspection area, Pacquette had disclaimed the cocaine found in 

his bag. The district judge forbade defense counsel from asking about Pacquette’s 

denial and concluded it was hearsay and an exculpatory statement, admissible only 

if Pacquette testified.

In her closing argument, defense counsel stated twice that Pacquette had 

denied the cocaine belonged to him. The judge raised the possibility of a mistrial

because of defense counsel’s continued reference to the denial, but instead 

instructed jurors:

[Y]ou can only consider evidence that has been admitted. And in this 

particular case, there is no evidence that I have admitted that the 

defendant denied . . . knowing the contents of the bag. Therefore, I 

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instruct you to disregard any mention by any lawyer, including Ms. 

Batoff, the defense lawyer, about the denial of the contents of the bag 

because that’s not evidence in this particular case. 

R at 462. The jury convicted Pacquette on both indictment counts.

II. DISCUSSION

On appeal, Pacquette argues the district judge erred by excluding his 

statement disclaiming knowledge of the cocaine found in his bag. Pacquette

argues the judge applied an incorrect legal standard, when he concluded the rule of 

completeness does not apply to exculpatory statements. Pacquette further contends 

he should have been allowed to introduce the parts of his pre-arrest oral statement 

necessary to clarify and explain the portions that had been admitted at trial.

We review a district judge’s evidentiary rulings for abuse of discretion. 

United States v. Gibson, 708 F.3d 1256, 1275 (11th Cir.), cert. denied, No. 13-

5826, 2013 WL 4402308 (U.S. Oct. 7, 2013). Discretion is abused by applying an 

incorrect legal standard, or by making findings of fact that are clearly erroneous. 

See id.

A. The Rule of Completeness in Oral Statements

Under the common-law “rule of completeness,” the party “against whom a 

part of an utterance has been put in, may in his turn complement it by putting in the 

remainder, in order to secure for the tribunal a complete understanding of the total 

tenor and effect of the utterance.” Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 

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171, 109 S. Ct. 439, 451 (1988) (citation internal quotation marks and alteration

omitted). The rule of completeness is partially codified in Federal Rule of 

Evidence 106. Id. at 171-72, 109 S. Ct. at 451. It provides: “If a party introduces 

all or part of a writing or recorded statement, an adverse party may require the 

introduction, at that time, of any other part—or any other writing or recorded 

statement—that in fairness ought to be considered at the same time.” Fed. R. Evid. 

106.

Rule 106 does not apply to oral statements. See Fed. R. Evid. 106 advisory 

committee’s notes (“[T]he rule is limited to writings and recorded statements and 

does not apply to conversations.”). However, we have extended the fairness 

standard in Rule 106 to oral statements “in light of Rule 611(a)’s requirement that 

the district court exercise ‘reasonable control’ over witness interrogation and the 

presentation of evidence to make them effective vehicles ‘for the ascertainment of 

truth.’” United States v. Baker, 432 F.3d 1189, 1223 (11th Cir. 2005) (quoting 

Fed. R. Evid. 611(a)) (citing United States v. Range, 94 F.3d 614, 620-21 (11th 

Cir. 1996)). Accordingly, the rule of completeness applies to written statements 

via Rule 106, and to oral statements through Rule 611(a).

The government does not cite, discuss, or otherwise acknowledge Baker. 

Rather, the government argues that our 1996 decision in Range, where we 

discussed the rule of completeness and first announced the application of the Rule 

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106 fairness standard to oral statements, is dicta. The government contends the 

rule of completeness does not apply when a party has not introduced a written or 

recorded statement and cites our 1999 decision in United States v. Ramirez-Perez, 

166 F.3d 1106 (11th Cir. 1999).

We disagree. First, our discussion of the rule of completeness in Range was 

not dicta; we applied facts to the rule before determining the district judge’s ruling

was correct. See Range, 94 F.3d at 620-21. Second, the government misconstrues

Ramirez-Perez. In that case, the defendant raised only Rule 106 on appeal and 

argued it required the introduction of a hearsay written statement when the witness 

testified only to the oral statement. See Ramirez-Perez, 166 F.3d at 1111-13. In 

this case, witnesses testified to part of Pacquette’s oral statement, and he sought 

admission of the remainder of that oral statement; he did not seek to admit any 

written statement.1

 Third, even if our rulings in Range and Ramirez-Perez were in 

conflict, which we do not find, we are bound by the earlier ruling in Range. See

United States v. Hogan, 986 F.2d 1364, 1369 (11th Cir. 1993) (“[I]t is the firmly 

established rule of this Circuit that each succeeding panel is bound by the holding 

of the first panel to address an issue of law, unless and until that holding is 

overruled en banc, or by the Supreme Court.”). In our circuit, the rule of 

 1 A written statement could still be used for other purposes, including impeachment. See 

Ramirez-Perez, 166 F.3d at 1113 n.9.

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completeness applies to oral statements through Rule 611(a). See Baker, 432 F.3d 

at 1223; Range, 94 F.3d 620-21; Fed. R. Evid. 611(a).

B. Application of the Rule of Completeness

As we have explained, we evaluate whether the remainder of an oral 

statement should be admitted under the rule of completeness by using the Rule 106 

fairness standard. “Under the Rule 106 fairness standard, the exculpatory portion 

of the defendant’s statement should have been admitted if it was relevant to an 

issue in the case and necessary to clarify or explain the portion received.” Range, 

94 F.3d at 621. Pacquette’s excluded statement that the cocaine did not belong to 

him was relevant to the primary issue in the case, his knowledge, and was relevant 

to the admitted portions of his statement. Determining whether the remainder of 

his statement was necessary to clarify or explain the admitted portion requires 

analysis of the admitted testimony.

Officer Rivera’s testimony regarding Pacquette’s admission was technically 

accurate, but incomplete. While Pacquette initially had claimed everything in his 

bag, that statement was made prior to the discovery of the cocaine. Pacquette was 

entitled to cross-examine Officer Rivera to provide the jury with a complete 

description of the facts and the effect of his admission. That is, upon Officer 

Rivera’s discovery of the cocaine, Pacquette disclaimed knowledge of it. Because 

the district judge disallowed cross-examination on this subject, the government 

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was able to characterize Pacquette’s initial statement as admitting the cocaine 

found in his bag belonged to him.

Officer Ramirez’s later testimony of Pacquette’s denial was muddled and 

confusing. Further, his testimony “[a]t that moment [Pacquette] said no” was in 

evidence. R at 310. To clarify the meaning and significance of that testimony,

defense counsel was entitled to reference the denial and present other necessary 

portions of the statement. The district judge, by prohibiting cross-examination and 

excluding Pacquette’s statement merely because it was exculpatory, applied an 

incorrect legal standard and reached an erroneous result. Therefore, the judge 

abused his discretion.

C. Harmless Error

“Even if an evidentiary ruling is erroneous, that ruling will result in reversal 

only if the error was not harmless.” United States v. Khanani, 502 F.3d 1281, 

1292 (11th Cir. 2007) (citations and internal quotation marks omitted). An error is 

harmful if, in light of the entire record, there is a reasonable likelihood it affected 

the defendant’s substantial rights. See id.

The government emphasized the “fact” that Pacquette did not protest when 

confronted with the cocaine. In closing argument, the prosecutor stated:

The number one reason we know [the cocaine] couldn’t have 

been planted is the defendant’s own behavior. . . . [I]f it were planted, 

he would have been shocked. He would have protested. The three 

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officers testified that they all interacted with him and he didn’t say 

anything. He didn’t contest it. He didn’t protest.

R at 479-80. The prosecutor continued:

If you got stuck with that much cocaine and you had no idea it was 

there you would maintain that it wasn’t yours. You would persist in 

telling people, I got planted. I got duped.

R at 480. Although the jury was led to believe otherwise, that is exactly what 

Pacquette had done.

The district judge magnified the error by instructing the jury that “there is no 

evidence . . . [Pacquette] denied . . . knowing the contents of the bag.” R at 462. 

Not only was the instruction inaccurate—Officer Ramirez had testified to that 

fact—but it also reinforced the government’s erroneous assertions that Pacquette 

had not denied knowing about the cocaine.

Following our review of the entire record, we cannot say, in a trial primarily 

about whether Pacquette knew his bag contained cocaine, that the district judge’s 

improper exclusion of his denial was harmless.

2

 Especially in a case where the 

government characterized Pacquette’s failure to disclaim the cocaine as the 

“number one reason” undermining the defense, the jury should have been given the 

 2 Because we have vacated Pacquette’s conviction for harmful error, we need not address 

his argument the error violated his constitutional rights.

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opportunity to weigh the credibility of Pacquette’s denial against the remaining 

evidence.

3

 R at 479.

Pacquette’s conviction is VACATED, and we REMAND for a new trial 

consistent with this opinion.

 3 We also note the remaining evidence establishing Pacquette’s knowledge was not 

overwhelming. His nervous behavior, small amount of cash, limited luggage, one-way ticket, 

and confusing recall of travel plans are not sufficiently compelling to outweigh the potential 

harm from the evidentiary error.

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