## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 7 2004 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. TIMOTHY JOHN VAUGHN, also known as Booty Green, also known as Tone, also known as Terry White,

Defendant - Appellant. No. 02-5206

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D. Ct. No. 00-CR-126-C)

Richard D. White, Jr., Barber & Bartz, P.C., Tulsa, Oklahoma, appearing for Appellant. Kevin C. Danielson, Assistant United States Attorne y (David E. O’Meilia, United States Attorney, with him on the brief), Office of the United States Attorney, Tulsa, Oklahoma, appearing for Appellee.

Before TACHA , Chief Circuit Judge, EBEL and HARTZ , Circuit Judges.

TACHA , Chief Circuit Judge.

A jury found Defendant-Appellant Timothy John Vaug hn guilty of-2-

numerous counts of conspiring to possess and distri bute narcotics. On appeal, he contends that the District Court erred: (1) in limi ting his cross-examination of two government witnesses, (2) in limiting his introduct ion of evidence regarding a previous criminal investigation, and (3) in ruling the Speedy Trial Act, 18 U.S.C. § 3161 et seq. , inapplicable to the government’s filing of an inf ormation seeking to enhance Mr. Vaughn’s sentence due to prior convi ctions. Mr. Vaughn filed timely notice of appeal. We take jurisdiction unde r 28 U.S.C. § 1291 and
AFFIRM.
I. BACKGROUND This appeal represents the culmination of the gover nment’s investigation and prosecution of an extensive drug conspiracy. T he government presented evidence at trial showing that the central player i n the conspiracy was Darrell Bellamy of Phoenix, Arizona. From Phoenix, Mr. Bel lamy coordinated shipments of powder cocaine, crack cocaine, and marijuana to various cities, including Tulsa, Oklahoma; Wichita, Kansas; and Detroit, Mich igan. The government contends that Mr. Vaughn was a member of this consp iracy. On July 13, 2001, a federal grand jury indicted Mr. Vaughn for conspiring to possess and distribute cocaine, crack cocaine, a nd marijuana in violation of 18 U.S.C. § 846. After a twenty-three-day trial invol ving over fifty witnesses, many of whom testified to Mr. Vaughn’s involvement in th e conspiracy, a jury-3-

convicted Mr. Vaughn. On December 9, 2002, the Dis trict Court sentenced him to life in prison to be followed by ten years’ supe rvised release and imposed $5100 in fines and assessments. Mr. Vaughn raises three issues on appeal. He firstargues that the District Court erred in limiting his cross-examination of tw o government witnesses, Robert Robertson and Jennifer Natale. He next asse rts that the District Court erred in limiting the information the jury received regarding a traffic stop in West Memphis, Arkansas. Finally, he contends that the D istrict Court erred in concluding that the seventy-day time limit of the S peedy Trial Act does not apply to an information filed pursuant to 28 U.S.C. § 851 (a)(1). We address these arguments below.
II. STANDARD OF REVIEW We review Mr. Vaughn’s evidentiary claims for an ab use of discretion, and if we find an abuse of discretion, we must determin e whether the error was harmless. United States v. Begay , 144 F.3d 1336, 1339 (10th Cir. 1998). The government bears the burden to show that a nonconst itutional error is harmless by a preponderance of the evidence. United States v. Wittgenstein , 163 F.3d 1164, 1169 (10th Cir. 1998). An error “is harmless unles s it had a ‘substantial influence’ on the outcome or leaves one in ‘grave d oubt’ as to whether it had such effect.” United States v. Cestnik, 36 F.3d 904, 910 (10th Cir. 1994). Finally, we-4-

review the District Court’s interpretation of Speedy Trial Act statute de novo. United States v. Alahmad, 211 F.3d 538, 541 (10th Cir. 2000).
III. DISCUSSION A. Limitation of Cross-Examination
1. Cross-Examination of Robert Robertson Mr. Vaughn argues that the District Court improperl y limited his examination of Mr. Robertson, who is Mr. Bellamy’s uncle and a self-admitted courier for the alleged drug conspiracy. After fai ling to raise the issue on direct or cross-examination, a codefendant’s attorney aske d Mr. Robertson on re-cross examination if he had “entered [into] any kind of a greement with the Government.” Mr. Robertson answered “no.” Mr. Vaughn’s counsel then sought to ask whether Mr. Robertson “ha[d] an agreement, an understanding as to whether he will be charged.” The District Court de nied the request, finding the inquiry unnecessarily cumulative. Mr. Vaughn contends that this ruling is erroneous b ecause, even though “[Mr.] Robertson had already been asked about an ‘a greement’ with the Government, . . . . [a]n ‘agreement’ and an ‘unders tanding’ are not identical.” Thus, he urges that his proffered inquiry as to whe ther there was “understanding” was not cumulative. He further claims that the iss ue of whether there was an understanding “would bear on [Mr. Robertson’s] moti ve to testify against Mr.1 Webster’s defines “agreement” as “an arrangement (as between two or

more parties) as to a course of action; . . . [or a s] a contract duly executed and legally binding on the parties[.]” Webster’s Third International Dictionary Unabridged

43 (1981). It defines understanding as “an agreem ent of opinion or feeling; . . . [or] a mutual agreement not formally entered into but in some degree binding on each side.” Id . at 2490. -5- Vaughn.” We doubt that there is a meaningful distinction between the terms “agreement” and “understanding” as used in this context. 1 Indeed, by himself using the terms “agreement” and “understanding” int erchangeably, Mr. Vaughn’s counsel’s own statements indicate that the DistrictCourt could reasonably construe the requested question as cumulative. Mor e importantly, we have long held that “in the last analysis the trial court is the governor of the trial with the duty to assure its proper conduct and the limits of cross-examination necessarily lie within its discretion.” United States v. Hinkle , 37 F.3d 576, 579 (10th Cir. 1994) (quotations omitted); see also Delaware v. Van Ardsall , 475 U.S. 673, 679 (1986) (noting that district courts have “wide lati tude” in limiting cross examination). Given this wide latitude, even if th ere is a slight difference between the “agreement” question and the proffered “understanding” question, we cannot say the District Court abused its discretionby denying the questioning as cumulative.
2. Cross-Examination of Jennifer Natale-6-

Mr. Vaughn also argues that the District Court erre d in limiting his ability to impeach thoroughly the testimony of Ms. Natale—o ne of the conspiracy’s principle drug couriers turned government witness. At trial, Mr. Vaughn’s attorney sought to impeach Ms. Natale’s credibilityby showing that she did not mention Mr. Vaughn in her earliest statements to in vestigators and that only her final statements matched her trial testimony concer ning Mr. Vaughn’s involvement in the conspiracy. To this end, his attorney attempted to use reports drafted by FBI agents (the “FBI Reports”) following their interviews with Ms. Natale to show what he terms as her “ever-expanding recollection.” The District Court denied Mr. Vaughn’s attempts to use these reports because he found that (1) any alleged omissions in the FBI Reports were not “inconsistencies” and (2) Ms. Natale had not adopte d the reports as accurately reflecting her statements to FBI officers. In resp onse to this ruling, Mr. Vaughn requested that the District Court allow him to subp oena various law enforcement officers, including FBI Officer Melvin Cervantes, t o investigate further the alleged inconsistencies. After allowing Mr. Vaughnand the government to question Officer Cervantes telephonically to determ ine the content of his testimony, the District Court denied the subpoena r equest, finding again that Officer Cervantes would not testify to inconsistenc ies but only to understandable omissions on the part of Ms. Natale.2 Although we need not address Mr. Vaughn’s substanti ve claims, we note

that it is unclear whether the District Court concl uded that an omission could qualify as an inconsistent statement under Fed. R. Evid. 613. At times, the District Court seems to indicate that an omission c an never be an inconsistency, see R. at Vol. XX, p. 1078 (“No statement at all canno t be inconsistent. . . . If I have never told you anything and I make a statement , can I have an inconsistent statement from what I just told you?”), whereas at others the District Court seems to indicate only that the alleged inconsistencies w ere not truly inconsistent given the surrounding circumstances, see id. at 1076 (“Did it say over what period of time? . . . . Does [the agreement] say she’s got to have said everything in the second interview? . . . . You and I know that that means as much as she can remember at the time she’s talking to them.”). But see R. at Vol. XXVII, p. 1993 (“I’ll say this one more time. What somebody does not say is not an inconsistent statement with what they say. There are times when silence could be a statement. . . . But normally it is not.”). Regardless, we fi nd it clear that, in some circumstances, an omission may rise to the level of an inconsistency. See, e.g.,

(continued...) -7- On appeal, Mr. Vaughn attacks on three grounds the District Court’s decision to prohibit him from using the text of the FBI Reports to impeach Ms. Natale. First, he argues that, even if he could no t use the report as substantive evidence, “it was properly useable for impeachment. ” Second, he notes that “an omission may be an inconsistent statement” if the w itness would have naturally mentioned the omitted information. Third, as to th e denied subpoena, Mr. Vaughn argues that the District Court erred in find ing that Officer Cervantes’s testimony did not establish an inconsistency betwee n Ms. Natale’s statements at her interview and her testimony at trial. Here, we need not decide whether the District Courterred in limiting the examination of Ms. Natale or in refusing to issue t he Cervantes subpoena 22 (...continued)

Dennis v. United States , 346 F.2d 10, 17-18 (10th Cir. 1965) (“In determin ing variances or inconsistencies we should remember that flat contradictions are not the only test for inconsistency. Omissions of fact. . . may be relevant to the process of testing credibility of a witness’ trial testimony.”), rev’d on other grounds , 384 U.S. 855 (1966); see also United States v. Strother , 49 F.3d 869, 874 (2d Cir. 1995) (“Under certain circumstances, awitness’s prior silence regarding critical facts may constitute a prior inc onsistent statement where failure to mention those matters . . . conflict[s] with that which is later recalled.”) (internal quotations omitted) . -8- because, after fully reviewing the record, we concl ude that, even if the District Court committed error, these rulings did not substantially influence the outcome of the trial. See United States v. Magleby , 241 F.3d 1306, 1318 (10th Cir. 2001) (“Notwithstanding our doubts regarding the relevanc e of this testimony, we need not decide whether the district court abused its di scretion in admitting it because we find that it was harmless error.”). We reach this conclusion for two reasons. First, the District Court allowed Mr. Vaughn’s counsel to question Ms. Natale at leng th regarding her statements at various law-enforcement interviews. See, e.g. , R. at Vol. XX, p. 1074 (“Now, in this two days of interviews in Arizona in which yousaid you would tell them everything that you know, you did talk about going to Detroit, didn’t you?”); id. at 1082 (“Isn’t it true, ma’am, that in neither you r interview with the agents on October 31st or November 1st, did you ever tell the m that you traveled to Detroit with Timothy Vaughn?”); id. at 1083 (“Now in your interviews of October 31st,-9-

November 1st and November 28th, isn’t it true that at no time did you ever tell any of the agents or attorneys that you delivered a ny cocaine to Timothy Vaughn in Wichita”); id. at 1086 (“And did you tell [federal agents and the United States Attorney] that one of those persons was Timothy Vau ghn?”). He merely prevented Mr. Vaughn’s counsel from quoting directl y from the FBI Records. Id. at 1075 (“You can ask her what she said, but don’t refer to the report.”). After reviewing the record, we conclude that Mr. Vaughn w ould have received no distinct benefit from using the exact text of the r eport to impeach Ms. Natale. Second, even if Mr. Vaughn would have benefitted su bstantially from using the exact text of the reports, we find that the rul ing did not substantially affect the outcome of the trial because several other witnesse s testified to Mr. Vaughn’s involvement in the conspiracy. For example, Nicole Farnum testified that Mr. Vaughn was present while large quantities of mariju ana were being packed at Mr. Bellamy’s house. Alicia Hardwick testified that Mr . Vaughn accompanied her on multiple flights to smuggle cocaine to Detroit and often helped her transport money on their return trips. Richard Taylor testif ied that Mr. Bellamy told him that Mr. Vaughn made drug runs for him to Detroit, and Robert Robertson testified that Mr. Vaughn had made multiple drug ru ns to Detroit. In light of this evidence, we cannot find that any possible error in limiting the cross-examination of Ms. Natale substantially affected the outcome of Mr. Vaughn’s trial.-10-

B. West Memphis Traffic Stop Mr. Vaughn next argues that the District Court erre d in refusing to allow him to admit evidence relating to a traffic stop in West Memphis, Arkansas. At this stop, officers found 120 pounds of marijuana i n a car accompanying Mr. Vaughn. When the government attempted to introduce the testimony of a bail bondsman to show that Arkansas police officers had arrested Mr. Vaughn in connection with the stop, Mr. Vaughn’s attorney sou ght to introduce evidence to show that the officers dropped all charges against Mr. Vaughn relating to the stop. The District Court denied the request, altho ugh the exact basis of the denial is not clear from the record. As with Mr. Vaughn’s earlier claims, even if we fou nd that the District Court erred by refusing to allow the evidence, we c annot find that the error substantially affected the outcome of the trial. See Magleby , 241 F.3d at 1318. In light of the extensive evidence supporting a findin g of guilt in this case, see supra at 9-10, we cannot find that the ruling substantial ly affected the outcome of the trial. C. The Speedy Trial Act Mr. Vaughn next argues that the District Court erre d in concluding that the Speedy Trial Act does not apply to an information f iled pursuant to 21 U.S.C. §3 In relevant part 21U.S.C. § 851(a)(1) reads:

No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry o f a plea of guilty, the United States attorney files an information wit h the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon. 21 U.S.C. § 851(a)(1). -11- 851(a)(1). 3 On April 30, 2002, the government filed an inform ation pursuant to § 851(a)(1) notifying Mr. Vaughn of its intent to use his prior felony convictions to enhance any sentence resulting from the current pro secution. On July 23, 2002, Mr. Vaughn filed a motion to dismiss the § 851(a)(1 ) information, claiming that the Speedy Trial Act required the government to com mence trial against him on the § 851(a)(1) information within seventy days of its filing. The Speedy Trial Act, in relevant part, provides: In any case in which a plea of not guilty is entere d, the trial of a defendant charged in an information or indictmentwith the commission of an offense shall commence within seve nty days from the filing date (and making public) of the inf ormation or indictment, or from the date the defendant has appe ared before a judicial officer of the court in which such charg e is pending, whichever date last occurs. 18 U.S.C. § 3161(c)(1)

. If a defendant is not brought to trial within the t ime limit required by section 3161(c) as extended by section 3161(h), the information or indictment shall be dismissed on motion of the defe ndant. 18 U.S.C. § 3162(a)(2). In an order dated August 19, 2002, the District Cou rt denied his motion,-12-

finding that the “plain language” of the “Speedy Tr ial Act only applies to informations and indictments which charge ‘the comm ission of an offense.’” After concluding that informations filed pursuant t o § 851(a)(1) do not charge the commission of an offense but merely notify the defe ndant of the government’s intention to use a prior offense to enhance his sen tence, the District Court found that the Speedy Trial Act does not apply to such in formations. We fully agree with the District Court’s well reaso ned opinion on this score. As such, for substantially the same reasons given by the District Court, we hold that the seventy-day requirement of the SpeedyTrial Act does not apply to informations filed under 21 U.S.C. § 851(a)(1).
IV. CONCLUSION For the reasons stated above, we AFFIRM both the Di strict Court’s evidentiary rulings and its interpretation of the S peedy Trial Act.