            NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                       File Name: 06a0414n.06
                         Filed: June 19, 2006

                                        No. 05-5199

                       UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,
                                                              ON APPEAL FROM THE
       Plaintiff-Appellee,                                    UNITED STATES DISTRICT
                                                              COURT FOR THE
v.                                                            EASTERN DISTRICT OF
                                                              KENTUCKY
GREGORY W. GOINS,
                                                                      OPINION
       Defendant-Appellant.




BEFORE: SILER and ROGERS, Circuit Judges; JORDAN, District Judge.*


       LEON JORDAN, District Judge. A jury convicted appellant Gregory Goins of eight

counts of engaging in a sexual act with a federal inmate in violation of 18 U.S.C. § 2243(b);

one count of causing an inmate to engage in a sexual act by threatening or placing in fear in

violation of 18 U.S.C. § 2242(1); and one count of making a fraudulent or materially false

statement in violation of 18 U.S.C. § 1001(a)(2). Challenging the government’s use of

allegedly inadmissible testimony, and citing the denial of his right of allocution, Goins

appeals both his conviction and his sentence.


       *
        The Honorable R. Leon Jordan, United States District Judge for the Eastern District of
Tennessee, sitting by designation.
United States v. Goins, 05-5199

                 We are not persuaded that the district court committed plain error requiring

reversal of the conviction. However, the denial of the right of allocution necessitates a

remand for resentencing.

                                                   I.

                 Goins formerly worked as a correctional officer at the Atwood Prison Camp

at the Federal Medical Center in Fayette County, Kentucky. His criminal charges pertained

to alleged ongoing sexual relationships with Atwood inmates Tina McCurdy and Jaki Cain.

                 At trial, appellant denied engaging in any inappropriate conduct with any

prisoner. He characterized himself as a devoted family man in “a strong, committed

relationship[.]” Trial witnesses included Goins’s accusers, other inmates, and Sarita Havens,

a prison nurse with whom he had an affair.

                 Appellant argues that the fairness of his trial was significantly affected by

excessive hearsay and otherwise prejudicial testimony.1 In addition to the questioning of Ms.

Havens, appellant cites approximately twenty instances of alleged hearsay, none of which

was objected to by his trial counsel and none of which was addressed by the district court.

                                                  II.

                 Because he did not object to any of the testimony of which he now complains,

we review for plain error. United States v. Cowart, 90 F.3d 154, 157 (6th Cir. 1996). “The

plain error doctrine mandates reversal only in exceptional circumstances and only where the

       1
           Neither party argues that Crawford v. Washington, 541 U.S. 36 (2004), applies to this case.

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United States v. Goins, 05-5199

error is so plain that the trial judge and prosecutor were derelict in countenancing it.” United

States v. Slone, 833 F.2d 595, 598 (6th Cir. 1987) (citations and quotations omitted). Plain

error analysis requires: (a) an error in the district court that was; (b) clear or obvious, which

both; (c) impacted the defendant’s substantial rights by affecting the outcome below; and (d)

seriously affected the integrity, fairness, or public reputation of the proceedings. United

States v. Thomas, 11 F.3d 620, 629-30 (6th Cir. 1993).

               As for the testimony of rebuttal witness Havens, appellant argues that her

acknowledgment of their affair was admitted in violation of Federal Rules of Evidence 403

and 404(b). Goins contends that the testimony was inadmissible evidence of prior bad acts

offered to show action in conformity therewith. See Fed. R. Evid. 404(b). He further argues

that, even if relevant, Ms. Havens’s testimony was inadmissible because the probative value

was substantially outweighed by the danger of unfair prejudice. See Fed. R. Evid. 403.

               At trial, appellant characterized “the female inmates . . .[as] bank robbers and

crack dealers” and himself as a “good officer . . . with an otherwise good reputation among

his neighbors [and] his family[.]” He initially testified that Havens was merely “a friend of

mine at work” but then equivocally acknowledged on cross-examination that he had “met

[her] on occasions outside the institution[.]” Given the ambiguous character of this

statement, the testimony of rebuttal witness Havens (that they did in fact have an affair) was

only partially cumulative of appellant’s testimony.




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United States v. Goins, 05-5199

               Relevant, probative evidence of other bad acts can be admissible for

impeachment purposes. See United States v. DeClue, 899 F.2d 1465, 1472 (6th Cir. 1990).

The government was entitled to disprove appellant’s primary defense - his sweeping claims

of marital commitment and family devotion. See United States v. Markarian, 967 F.2d 1098,

1103 (6th Cir. 1992) (where defendant broadly denied ever selling drugs, rebuttal testimony

regarding prior cocaine deal was “not collateral to” the instant heroin prosecution).

               Evidence of the Havens affair was relevant to dispelling appellant’s claim that

he would never have an affair with anyone. Through both his defense and his equivocal

testimony, appellant “invited precisely the sort of impeachment that the district court allowed

in this case. ‘We have repeatedly insisted that when defendants testify, they must testify

truthfully or suffer the consequences.’” Id. (quoting United States v. Havens, 446 U.S. 620,

626 (1980)). Further, the district court immediately cut off the government’s questioning of

Havens on that issue. In view of “the broad scope of allowable impeachment evidence” and

“the significant discretion left to the trial court in this area,” Markarian, 967 F.2d at 1103,

the district court did not commit plain error. See United States v. Cooper, 577 F.2d 1079,

1089 (6th Cir. 1978) (district court’s failure to sua sponte give a cautionary instruction

regarding other acts evidence is not plain error unless the evidence is extremely prejudicial

and of limited relevance).

               Next, as noted, appellant questions the admission of approximately twenty

alleged hearsay statements appearing in the more than six hundred pages of trial testimony

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United States v. Goins, 05-5199

transcript. Two of these statements were elicited by Goins’s own trial attorney. We will not

allow appellant to now criticize the district court for hearsay generated by his own counsel.

               As for the other challenged testimony, we agree that at least most of these

statements contain one or more layers of hearsay.2 However, none of this evidence standing

alone would appear to rise to the level of plain error.

               Each statement was cumulative of Cain and McCurdy’s live testimony. See

United States v. Trujillo, 376 F.3d 593, 612 (6th Cir. 2004) (finding admission of hearsay to

be harmless error in part because it was merely cumulative of “other significant admissible

evidence[.]”). Further, declarants Cain and McCurdy were subject to cross examination by

appellant’s trial counsel, and appellant himself testified. He thus had a fair opportunity to

challenge the evidence at trial. We are therefore not convinced that the district court’s failure

to exclude the multiple hearsay statements seriously affected the integrity, fairness, or public

reputation of the proceedings, or that this error affected the outcome below.



       2
          We reject the government’s argument that much of this testimony was not hearsay, under
Rule 801(d)(1)(B) of the Federal Rules of Evidence, because it was offered to rebut a charge of
recent fabrication by McCurdy and Cain. “In order to secure admissibility under Rule 801(d)(1)(B),
the declarant must have made the prior consistent statements before the motive to fabricate or
improper influence or motive arose.” United States v. Toney, 161 F.3d 404, 408 (6th Cir. 1998).
The district court made no factual finding as to when the accusers allegedly formed a motive to lie,
and the government’s briefing on that point is not persuasive. It is error for a district court to allow
801(d)(1)(B) testimony without rendering a factual finding as to when the declarants formed their
motive to lie. See United States v. Trujillo, 376 F.3d 593, 610-11 (6th Cir. 2004); see also United
States v. Brika, 416 F.3d 514, 529 (6th Cir. 2005) (“the proponent of evidence has the burden of
proof and must lay appropriate foundation”).


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United States v. Goins, 05-5199

                                             III.

               Even so, under the cumulative error doctrine, the combined effect of

individually harmless errors may be so prejudicial as to render a trial fundamentally unfair.

See Trujillo, 376 F.3d at 614. “This is so because errors that might not be so prejudicial as

to amount to a deprivation of due process when considered alone ... may cumulatively

produce a trial setting that is fundamentally unfair.” Id. (citations and quotations omitted).

               We have reviewed the admissible evidence in this case, including appellant’s

phone records and those portions of the trial transcript contained in the joint appendix. We

conclude that the limited, unobjected-to hearsay did not, when viewed in the context of more

than six hundred pages of trial testimony, cause the proceeding to be fundamentally unfair.

Goins’s conviction will therefore be affirmed.

                                             IV.

               Lastly, Rule 32 of the Federal Rules of Criminal Procedure requires that

“[b]efore imposing sentence, the court must . . . address the defendant personally in order to

permit the defendant to speak or present any information to mitigate the sentence[.]” Fed.

R. Crim. P. 32(i)(4)(A)(ii). Denial of this right of allocution is reversible error. United

States v. Carter, 355 F.3d 920, 926 (6th Cir. 2004).

               Although appellant did not raise an objection to the denial of allocution at

sentencing, claims of complete denial of allocution are reviewed de novo. Id. at 926 n.3. As

the government correctly concedes, the district court did not comply with Rule

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United States v. Goins, 05-5199

32(i)(4)(A)(ii). Appellant’s sentence must accordingly be vacated and his case remanded for

resentencing to allow him the right of allocution.

                                            V.

               For the reasons provided, we AFFIRM appellant’s conviction. His sentence

is, however, VACATED and this matter is REMANDED for resentencing.




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