             Case: 13-11736    Date Filed: 03/04/2014   Page: 1 of 10


                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-11736
                            Non-Argument Calendar
                          ________________________

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



UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

ALLEN KYODE PACQUETTE,

                                                             Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                 (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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