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 Attorney (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 Vaughn guilty of
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numerous counts of conspiring to possess and distribute narcotics. On appeal, he

contends that the District Court erred: (1) in limiting his cross-examination of two

government witnesses, (2) in limiting his introduction 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 information seeking

to enhance Mr. Vaughn’s sentence due to prior convictions. Mr. Vaughn filed

timely notice of appeal. We take jurisdiction under 28 U.S.C. § 1291 and

AFFIRM.

I. BACKGROUND

This appeal represents the culmination of the government’s investigation

and prosecution of an extensive drug conspiracy. The government presented

evidence at trial showing that the central player in the conspiracy was Darrell

Bellamy of Phoenix, Arizona. From Phoenix, Mr. Bellamy coordinated shipments

of powder cocaine, crack cocaine, and marijuana to various cities, including

Tulsa, Oklahoma; Wichita, Kansas; and Detroit, Michigan. The government

contends that Mr. Vaughn was a member of this conspiracy.

On July 13, 2001, a federal grand jury indicted Mr. Vaughn for conspiring

to possess and distribute cocaine, crack cocaine, and marijuana in violation of 18

U.S.C. § 846. After a twenty-three-day trial involving over fifty witnesses, many

of whom testified to Mr. Vaughn’s involvement in the conspiracy, a jury
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convicted Mr. Vaughn. On December 9, 2002, the District Court sentenced him

to life in prison to be followed by ten years’ supervised release and imposed

$5100 in fines and assessments.

Mr. Vaughn raises three issues on appeal. He first argues that the District

Court erred in limiting his cross-examination of two government witnesses,

Robert Robertson and Jennifer Natale. He next asserts 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 District Court erred in

concluding that the seventy-day time limit of the Speedy 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 abuse of discretion, and

if we find an abuse of discretion, we must determine 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 nonconstitutional 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 unless it had a ‘substantial

influence’ on the outcome or leaves one in ‘grave doubt’ as to whether it had such

effect.” United States v. Cestnik, 36 F.3d 904, 910 (10th Cir. 1994). Finally, we
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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 improperly limited his

examination of Mr. Robertson, who is Mr. Bellamy’s uncle and a self-admitted

courier for the alleged drug conspiracy. After failing to raise the issue on direct

or cross-examination, a codefendant’s attorney asked Mr. Robertson on re-cross

examination if he had “entered [into] any kind of agreement 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 denied the request, finding the

inquiry unnecessarily cumulative.

Mr. Vaughn contends that this ruling is erroneous because, even though

“[Mr.] Robertson had already been asked about an ‘agreement’ with the

Government, . . . . [a]n ‘agreement’ and an ‘understanding’ are not identical.” 

Thus, he urges that his proffered inquiry as to whether there was “understanding”

was not cumulative. He further claims that the issue of whether there was an

understanding “would bear on [Mr. Robertson’s] motive to testify against Mr.
1Webster’s defines “agreement” as “an arrangement (as between two or

more parties) as to a course of action; . . . [or as] a contract duly executed and

legally binding on the parties[.]” Webster’s Third International Dictionary

Unabridged 43 (1981). It defines understanding as “an agreement of opinion or

feeling; . . . [or] a mutual agreement not formally entered into but in some degree

binding on each side.” Id. at 2490. 

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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” interchangeably, Mr. Vaughn’s

counsel’s own statements indicate that the District Court could reasonably

construe the requested question as cumulative. More 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 latitude” in limiting cross

examination). Given this wide latitude, even if there is a slight difference

between the “agreement” question and the proffered “understanding” question, we

cannot say the District Court abused its discretion by denying the questioning as

cumulative.

2. Cross-Examination of Jennifer Natale
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Mr. Vaughn also argues that the District Court erred in limiting his ability

to impeach thoroughly the testimony of Ms. Natale—one of the conspiracy’s

principle drug couriers turned government witness. At trial, Mr. Vaughn’s

attorney sought to impeach Ms. Natale’s credibility by showing that she did not

mention Mr. Vaughn in her earliest statements to investigators and that only her

final statements matched her trial testimony concerning 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 adopted the reports as accurately

reflecting her statements to FBI officers. In response to this ruling, Mr. Vaughn

requested that the District Court allow him to subpoena various law enforcement

officers, including FBI Officer Melvin Cervantes, to investigate further the

alleged inconsistencies. After allowing Mr. Vaughn and the government to

question Officer Cervantes telephonically to determine the content of his

testimony, the District Court denied the subpoena request, finding again that

Officer Cervantes would not testify to inconsistencies but only to understandable

omissions on the part of Ms. Natale.
2Although we need not address Mr. Vaughn’s substantive claims, we note

that it is unclear whether the District Court concluded 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 can never be an inconsistency,

see R. at Vol. XX, p. 1078 (“No statement at all cannot 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 were 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 find it clear that, in some

circumstances, an omission may rise to the level of an inconsistency. See, e.g.,

(continued...)

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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 not 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 witness would have naturally

mentioned the omitted information. Third, as to the denied subpoena, Mr.

Vaughn argues that the District Court erred in finding that Officer Cervantes’s

testimony did not establish an inconsistency between Ms. Natale’s statements at

her interview and her testimony at trial.

Here, we need not decide whether the District Court erred in limiting the

examination of Ms. Natale or in refusing to issue the Cervantes subpoena2
2

(...continued)

Dennis v. United States, 346 F.2d 10, 17-18 (10th Cir. 1965) (“In determining

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, a witness’s prior silence

regarding critical facts may constitute a prior inconsistent statement where failure

to mention those matters . . . conflict[s] with that which is later recalled.”)

(internal quotations omitted) .

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because, after fully reviewing the record, we conclude 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 relevance of this testimony, we need

not decide whether the district court abused its discretion 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 length 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 you said 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 your interview with the agents on

October 31st or November 1st, did you ever tell them that you traveled to Detroit

with Timothy Vaughn?”); id. at 1083 (“Now in your interviews of October 31st,
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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 any 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 Vaughn?”). He merely

prevented Mr. Vaughn’s counsel from quoting directly 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 would have received no

distinct benefit from using the exact text of the report to impeach Ms. Natale. 

Second, even if Mr. Vaughn would have benefitted substantially from using

the exact text of the reports, we find that the ruling did not substantially affect the

outcome of the trial because several other witnesses testified to Mr. Vaughn’s

involvement in the conspiracy. For example, Nicole Farnum testified that Mr.

Vaughn was present while large quantities of marijuana 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 testified 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 runs 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.
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B. West Memphis Traffic Stop

Mr. Vaughn next argues that the District Court erred 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 in 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 sought to introduce evidence to

show that the officers dropped all charges against Mr. Vaughn relating to the

stop. The District Court denied the request, although the exact basis of the denial

is not clear from the record.

As with Mr. Vaughn’s earlier claims, even if we found that the District

Court erred by refusing to allow the evidence, we cannot 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 finding of guilt in this case, see supra

at 9-10, we cannot find that the ruling substantially affected the outcome of the

trial. 

C. The Speedy Trial Act

Mr. Vaughn next argues that the District Court erred in concluding that the

Speedy Trial Act does not apply to an information filed 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 of a plea of guilty,

the United States attorney files an information with 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).

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851(a)(1).3 On April 30, 2002, the government filed an information 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 prosecution. 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 commence 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 entered, the trial of

a defendant charged in an information or indictment with the

commission of an offense shall commence within seventy days

from the filing date (and making public) of the information or

indictment, or from the date the defendant has appeared before

a judicial officer of the court in which such charge is pending,

whichever date last occurs. 18 U.S.C. § 3161(c)(1).

If a defendant is not brought to trial within the time limit required by

section 3161(c) as extended by section 3161(h), the information or

indictment shall be dismissed on motion of the defendant. 18 U.S.C.

§ 3162(a)(2).

In an order dated August 19, 2002, the District Court denied his motion,
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finding that the “plain language” of the “Speedy Trial Act only applies to

informations and indictments which charge ‘the commission of an offense.’” 

After concluding that informations filed pursuant to § 851(a)(1) do not charge the

commission of an offense but merely notify the defendant of the government’s

intention to use a prior offense to enhance his sentence, the District Court found

that the Speedy Trial Act does not apply to such informations. 

We fully agree with the District Court’s well reasoned 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 Speedy Trial 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 District Court’s

evidentiary rulings and its interpretation of the Speedy Trial Act.