The Honorable Carol E. Jackson, United States District Judge for the Eastern 1 District of Missouri. United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 96-3954

_____________ United States of America, * * Appellee, * Appeal from the United * States District Court for the v. * Eastern District of Missouri. * Argentra Cody, * * Appellant. *

_____________ Submitted: April 16, 1997 Filed: June 3, 1997

_____________ Before BOWMAN, WOLLMAN, and HANSEN, Circuit Judges.

_____________ BOWMAN, Circuit Judge.

Argentra Cody was co nvicted by a jury of two counts of possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1) (1994). The Distric t Cou rt sentenced Cody to concurrent terms of 188 months’ imprisonment on eac h

1 count. Cody appeals her convictions, arguing that the Distr ict Court erred by admitting-2-

into evid ence her taped confession and by limiting her cross-examination of tw o government witnesses. We affirm.

I.
On February 16, 1996, after receiving in formation from a confidential informant that Co dy was distributing cocaine base from her mother's home, St. Louis polic e officers b egan surveillance on the residence. The officers observed activity at th e residence consistent with drug dealing. When Cody and a young man left the house in a vehicle, one team of officers followed them to a nearby gas station. Cody parked at the gas station, exited her vehicle a nd, when she noticed two officers approaching her, screamed and discarded five small plastic bags she had been holding in her hand. Later testing confirmed that the ba gs contained a total of twenty-one grams of cocaine base. The police handcuffed Cody and notified the investigation's lead officer, who was still conducting surveillance at t he residence, that Cody had been detained. Officer Hines, the lead officer, arrived within minutes, read Cody her constitutional rights, an d transported her to the police station. Officer Hines testified that Cody was no t questioned at the time of her arrest, nor did she volunteer a statement.

Wh ile Cody was in custody at the police station, Officer Burle continue d surveillance at the residence and observed a young girl, later identified as Cody's niece, leave the house and gingerly deposit one object into a trash dumpster a nd another under the dumpster. These two items, a cardboard box containing a total of 148 grams o f cocai ne base packaged in plastic bags and an electronic scale, and a .380 calibe r automatic handgun, were later recovered by police and taken to the station. WhenThe H onorable Lawrence O. Davis, United States Magistrate Judge for th e 2 Eastern District of Missouri, to whom pretrial matters were referred for rul ings pursuant to 28 U.S.C. § 636(b) (1994). -3- Officers Hines and Burle confronted Cody with this physical evidence and informed her that police had observed a young girl place these items in and under the dumpster , Cody identified the girl as her niece and began making incriminating statements

. Offi cer Hines immediately stopped Cody and again advised her of her constitutiona l right s. Cody did not execute a written waiver form, but subsequently made a tape d conf ession in which she admitted possessing with intent to distribute the twenty-on e grams of cocaine base seized at the gas station and the 148 grams of cocaine bas e seized from the dumpster.

II.
Cody first argues that the District Court erred by admitting her taped confession into evidence. After being arrested and advised of her constitutional rights unde r Miranda v. Arizona , 384 U.S. 436 (1966), Cody alle ges that she expressly invoked her right to remain silent. She also claims that the police questioned her in violation of her rightto remain silent and that her later confession was not the result of a voluntar y waiver of that right. The District Court, based on the report and recommendation of

a magistr ate judge, found that Cody never asserted her right to remain silent. Th e 2

cou rt further found that, even if Cody did assert this right, when officers confronte d Cody at the police station with the drugs and gun seized from the trash dumpste r outsid e her mother's residence and commented that these items were placed in th e du mpster by a young girl, they did not re-initiate custodial questioning in violation of-4-

Cody's right to remain silent, nor did the officers coerce either Cody's waiver of he r rig ht to remain silent or her voluntary statement. Consequently, the District Court denied Cody's motion to suppress her confession.
We review a district court's finding that a defendant did not assert he r constitutional right to remain silent for clear error. See United States v . Winn , 969 F.2d 642, 643 (8th Cir. 1992) (standard of review). The District Court, based on th e testimony of Officers Hines and Burle, found that Cody did not invoke her right t o remain silent either immediately af ter her arrest or later when she was confronted with evidence at the police station. We cannot conclude that this finding is clearl y
erroneous.

Furth ermore, even if we were to accept Cody's assertion that she explicitl y invoked h er right to remain silent when she was arrested, we would reach the sam e result. An invocation of the right to remain silent does not mean that questioning can never be resumed, see Michigan v. Mosley , 423 U.S. 96 (1975), nor does it mean that a defe ndant cannot later waive this right, see North Carolina v. Butler , 441 U.S. 369, 374-75 (1979). Once a person in custody has invoked h er right to remain silent, admissibility of any of her subsequent statements depends on whether her "'right to cut off questioning'
was 'scrupulously honored.'" Mosley at 423 U.S. at 104 (quoting Miranda , 384 U.S. at 474, 479). Once the right is invoked, the police must immediatelycease questioning, allow a "significant amount of time" to pass before questioning begins again, re-advise the detainee of her Miranda rights, and limit the ensuing interrogation to questions-5-

regardin g a separate crime not the subject of the first questioning session. Unite d States v. House , 939 F.2d 659, 662 (8th Cir. 1991).

Here, Cod y was not questioned after she was arrested at the gas station, wa s advised of her Miranda

rights, and allegedly invoked her right to remain silent. No r was she questioned immediately upon her arrival at the p olice station. Rather, a period of more than three hours elapsed between the moment Cody allegedly invoked her right to rem ain silent and the moment Officers Burle and Hines confronted Cody with th e evi dence retrieved from the dumpster. After being confronted with this evidence o f additi onal drug crimes, Cody spontaneously made incriminating statements. Office r Hines immediately interrupted Cody's confession to re-advise her of her Miranda rights. Even if Cody invoked her right to remain silent, it was not violated when police later confro ntedher with additional evidence, see Mosley 423 U.S. at 106, and he r subsequent confession was admissible.

Likewise, an invocation of the right to remain silent can be waived b y subsequently maki ng a voluntary confession to the police. See, e.g. , Butler , 441 U.S. at 374-75 (noting that waiver may be inferred from particular facts and circumstances surrounding a case), cited in House , 939 F.2d at 662. We review the ultimate question of the vo luntariness of a defendant's confession de novo, but we review the distric t court's factual findings surrounding the confession for clear error. See United States

v. Mag ness , 69 F.3d 872, 874 (8th Cir. 1995). The test for determining th e voluntar iness of a confession "is whether, in light of the totality of the circumstances, pre ssures exerted upon the suspect have overborne his will." United States v

. Jorgensen , 871 F.2d 725, 729 (8th Cir. 1989).-6-

Cody claims that when the officers informed her at the police station that a n unidentified

girl had placed the seized drugs and gun in the dumpster, she fel t compelled to admit her ownership o f the contraband. We are not convinced. There is

no e vidence that the officers engaged in activity that served to overbear Cody's will , causing her to confess involuntarily. A thorough review o f the record before us reveals that Cody voluntarily made her statement to police.
Assuming that Cody did invoke her right to remain silent w hen she was arrested, we conclude that the police did not improperly initiate custodial questi oning in violation of this right and that

Cody waived her right to remain silent by voluntarily confessing. The District Court's admission of Cody's taped confession was not in error.

III.
Cody next argues that the District Court improperly restricted her cross

examination of two police officers involved in the investi gation. We review the district court's decision to limit cross-examination for an abuse of disc retion, see United States v. Caldwell , 88 F.3d 522, 524 (8th Cir.), cert. denied , 117 S. Ct. 625 (1996), reversing only if "there has been a clear abuse of discretion and a showing of prejudice to th e defenda nt," United States v. Barrett , 937 F.2d 1346, 1349 (8th Cir.) (quoting United States v. Rub in , 836 F.2d 1096, 1099 (8th Cir. 1988)), cert. denied , 502 U.S. 91 6 (1991). The District Court's limitation on Cody's right to cross-examination was not an abuse of discretion.-7-

On the morning of trial, defense counsel presented the government with a n unof ficial transcript of the suppression hearing prepared by a transcription service at defen se counsel's request from a tape recording of the proceedings. Defense counsel intended to use this unofficial transcript to impeach government witnesses at trial with pri or inconsistent testimony given during the suppression hearing. The governmen t objected to the use of this transcript and, although the precise grounds on which th e District Court based its decision are unclear from the record, the court refused to allow defense coun sel to use the unofficial transcript for impeachment purposes. However, the Dis trict Court did not rule out the possibility that defense counsel could play th e tape recording of the suppression hea ring to demonstrate inconsistencies in a witness's testimony.

Withrespect to Officer Hines's testimony, Cody claims that the District Cour t erred in concluding that his testimony at trial was not inconsistent with his testimony atthe suppression hearing. Under Federal Rule of Evidence 613, before a party may impeach a witness with a prior inconsistent statement, the party must first establish that the wit ness's statement is actually inconsistent with, although not necessaril y "diametr ically opposed" to, the prior statement. United States v. McCrady , 774 F.2d 868, 873 (8th Cir. 1985) (quoting United State s v. Dennis , 625 F.2d 782, 795 (8th Cir. 1980)).
Cody argues that Offic er Hines's testimony at the suppression hearing indicates that he did not question Cody regarding the young girl's identity prior to re-advisin g Cody of her Miranda

right s. At trial, Hines initially testified that he did ask Cody this question and then testified that he did not. Defense counsel attempted to impeachCody also challenges the District Court's ruling, based on the same concern s 3 discussed below, to deny defense counsel's request to refresh Officer Burle' s recollection with the unoffic ial transcript. We conclude that the District Court did not abuse it s discretion in refusing to allow the unofficial transcript to be used in thi s -8- Hines' s trial testimony by playing the tape recording of Hines's suppression hearin g testimony . After first listening to the tape in chambers, the District Court determined on the seco nd day of trial that the testimony on the tape was not inconsistent with the testi mony at trial noting, "Quite frankly, I don't see the inconsistency between th e te stimony that he gave at the suppression hearing and his testimony here [yesterday]. . . . [T]here is no inconsistent statement or contradictory statement." Tr ial Tr. (Aug. 22, 1996) at 5-6. The District Court concluded tha t, considering Officer Hines's testimony from both proceedings as a whole, his testimony was essentially the same--that he did not question Cody at the police station; he merely confronted her with the additional evidence. As a result, defense counsel was prevented from attempting to impeac h Officer Hines with the tape recording of his earlier testimony.
"The trial judge has considerable dis cretion in determining whether testimony is 'inconsistent' with prior statements . . . ." Dennis , 625 F.2d at 795. The District Court

con sidered the tape recording of Officer Hines's prior testimony, compared it to hi s testimony at trial, and determined that the two were not inconsistent. We cannot hold, based on the record before us, that the District Court abused its discretion in reaching this conclusion.
Cody al so attacks the District Court's refusal to permit defense counsel t o impeac h Officer Burle's trial testimony with the unofficial transcript or with the tap e recording of the suppression hearing. Again, we find no abuse of discretion. 3manner.

The District Court noted, "This is a con cern that the Court has as well, because 4 if the ju ry is going to have the impression that testimony that is reflected in th e transcript ion is accurate or it has some indicia of reliability by the addition of it being an official transcript , then there needs to be an official transcript." Trial Tr. (Aug. 22, 1996) at 61. -9- During cr oss-examination of Officer Burle on the second day of trial, a n
ex tended sidebar conference occurred wherein the District Court warned defens e counsel tha t, pursuant to the court's earlier ruling, counsel would not be allowed t o impeach Officer Burle's testimony with the unofficial transcript. SeeT rial Tr. (Aug. 22, 1996) at 52-62. The court expressed concern that the unofficial transcript could contain inaccurate or incomplete information and that the witness's refusal to acknowledge the

ac curacy of statements read from that transcript would mislead the jury. The cour t 4 informed defense couns el that he would be allowed to impeach Officer Burle with the aud io recording of his earlier testimony at the suppression hearing provided that th e tape was cue d to the proper spot and no undue delay or waste of time occurred

. Defensecounsel suggested that he would need a five minute recess to cue the tape to the relevant testimony after every response Officer Burle gave that was allegedl y inconsistent with his prior testimo ny. The District Court refused this request based on the certain disruption of the trial that would ensue. SeeTri al Tr. (Aug. 22, 1996) at 54. Under Federal Rule of Evidence 403, the District Court may exclude relevan t evidence "i f its probative value is substantially outweighed by the danger of unfai r prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay [or] waste of time." Fed. R. Evid. 403; see, e.g. , United States v. Bear Stops , 997 F.2d 451, 455 (8th Cir. 1993). "In determining whether evidence should have-10-

been excluded under Rule 403, a reviewi ng court must give great deference to the trial judge who saw and heard the evidence." Dennis , 625 F.2d at 796.

Here, the District Court expressed concern that use of the unofficial transcript to impeach Officer Burle's testimony would potentially confuse and mislead the jury if the witness refused to une quivocally accept the transcript as a true representation of hi s prior testimony. We agree with the District Court that the potential for confusion outwei ghedthe probative value associated with the use of this transcript for defens e counsel's stated purposes. We conclude, therefore, that the District Court did no t abuse its discretio n in refusing to allow defense counsel to use an unofficial transcript of the suppression hearing to impeach Officer Burle's testimony.

Likewise, the District Court did not abuse its discretion in refusing defens e counsel's request to take a

five minute recess to cue the suppression hearing tape after each allegedly inconsistent statement made by Officer Burle during his trial testimony. The district court is allowed wide discretion in determining whether the introductio n of evidence causes un due delay and waste of time. See United States v. Carr , 67 F.3d 171, 175 (8th Cir. 1995), cert. d enied , 116 S. Ct. 1285 (1996). The District Court did not abuse its discretion in refusing defense coun sel's request to present evidence in this

manner. IV.
Finally, Cody argues that the District Court's limitation of her cross-examination of Officers Hines and Burle vio lated her Sixth Amendment right to confrontation. We disagree. "Absen t a clear abuse of discretion and a showing of prejudice, we will not-11-

reverse a district court's ruling limiting cross- examination of a witness on the basis that it impermis sibly infringed on the defendant's right of confrontation." United States v. Brown , 110 F.3d 605, 611 (8th Cir. 1997). Cody was allowed to cross-examine each officer extensively regarding both the investigation that led to her arrest and th e circumstances surrounding her ultimate confession. Had defense counsel obtained an off icial transcript of the suppression hearing, the District Court likely would hav e pe rmitteddefense counsel to utilize that document to impeach the officers with an y prio r testimony that was inconsistent. The District Court specifically expressed it s willingness to allow defense counsel to impeach both officers with the tape recording of the supp ression hearing provided the tape was cued to the relevant testimony. I n th ese circumstances, we cannot conclude that the District Court abused its discretion in limit ing Cody's cross-examination, nor can we conclude that Cody's Sixth Amendment right to confrontation was violated.

V.
The judgment of the District Court is affirmed.
A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.