                         NOT RECOMMENDED FOR PUBLICATION
                                File Name: 15a0635n.06

                                           No. 14-5278
                                                                                       FILED
                                                                                 Sep 11, 2015
                         UNITED STATES COURTS OF APPEALS                     DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA                                 )
                                                         )
       Plaintiff-Appellee,                               )
                                                         )
v.                                                       )       ON APPEAL FROM THE
                                                         )       UNITED STATES DISTRICT
TYLER SCHAEFFER                                          )       COURT FOR THE EASTERN
                                                         )       DISTRICT OF TENNESSEE
       Defendant-Appellant.                              )
                                                         )
                                                         )



BEFORE:        BATCHELDER, ROGERS, and KETHLEDGE, Circuit Judges.

       ROGERS, Circuit Judge.         Tyler Schaeffer, along with a varying number of co-

conspirators, committed a string of robberies between July 26, 2010 and September 14, 2012.

Two co-conspirators who were charged together with Schaeffer entered plea agreements

acknowledging that Schaeffer had used a firearm in some of the robberies. Schaeffer admitted

participating in the robberies but denied using a real firearm in any of them, and went to trial on

the counts based on his use of firearms under 28 U.S.C. § 924(c). At trial, the district court

permitted the government to introduce testimony from a witness who claimed that several years

prior to the robberies Schaeffer showed him a firearm that looked similar to a gun used in one of

the robberies. In his defense, Schaeffer sought to present statements in a letter written to

Schaeffer by Rodney Ruffin, one of Schaeffer’s co-conspirators who had entered a plea

agreement and refused to testify in Schaeffer’s trial. The letter stated that Schaeffer had not used
No. 14-5278
United States v. Tyler Schaeffer

a real gun in another one of the robberies but that Ruffin would not so testify for fear of violating

the terms of his plea agreement. The district court excluded this evidence as not being against

Ruffin’s interest and lacking corroboration. Schaeffer was convicted on all firearm counts, and

he appeals, attacking the district court’s evidentiary rulings. The testimony that Schaeffer had

previously possessed a firearm was properly admitted as directly relevant to whether Schaeffer

used a firearm during the robbery in question. As to Ruffin’s letter, even if it should have been

admitted as a statement against interest, the error was harmless.

       In March 2013, a federal grand jury issued an indictment charging Tyler Schaeffer with

14 counts arising from a string of seven robberies committed between July 26, 2010 and

September 14, 2012. The charges consisted of seven counts of Hobbs Act robbery, one count of

Hobbs Act conspiracy, four counts of using a firearm in a crime of violence in violation of

18 U.S.C. § 924(c), one drug conspiracy count, and one count of possessing a firearm in

furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). The drug-related

counts arose from the last robbery, which targeted drug dealers. Two alleged co-conspirators,

Rodney Ruffin and Jerel Johnson, were also charged with participating in some of the robberies.

Johnson pled guilty to two of the robbery counts, one of the firearm counts, and the drug

conspiracy count as part of a plea agreement in exchange for other charges being dropped against

him. Ruffin pled guilty to the robbery and gun counts arising from the September 14, 2012

robbery of the drug dealers as part of a plea agreement in exchange for other charges being

dropped. Notwithstanding Johnson’s and Ruffin’s pleas, which suggested that firearms had been

used in two of the robberies, Schaeffer pled guilty to all counts except for the firearm counts, and

proceeded to trial for a jury determination of whether he had used firearms in committing the

robberies. Upon discovering that one of the guns used in one of the robberies (in which only


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No. 14-5278
United States v. Tyler Schaeffer

Schaeffer had been charged) had not in fact been a real firearm, the government dismissed one of

the firearm counts.1 At trial, Schaeffer was found guilty on the remaining firearm counts.

        Schaeffer’s appeal challenges two evidentiary rulings by the district court. First, the

district court permitted Anthony Lashley, an acquaintance of Schaeffer’s, to testify that “a few

years before” the last robbery on September 24, 2012, Schaeffer had brought a firearm to

Lashley’s residence and they shot at targets with it together. Further, Lashley testified that the

firearm Schaeffer showed him looked similar to the gun Schaeffer could be seen holding in a

surveillance photograph showing a robbery of a Subway on August 11, 2012. (The actual gun

used in that robbery was never produced at trial.) Relying on United States v. Price, 329 F.3d

903 (6th Cir. 2003), the district court reasoned that because Lashley’s testimony was directly

probative of Schaeffer’s use of a gun in the robbery it was not subject to Rule 404(b). Although

the district court permitted Lashley to testify as to his specific experience with this firearm, the

court barred testimony as to Schaeffer’s “general proclivity to possess and/or sell firearms.” The

court also instructed the jury to consider evidence of Schaeffer’s prior possession of a firearm

only to the extent that it was relevant to opportunity.

        Second, the district court barred Schaeffer’s attempt to introduce a letter that Ruffin sent

to Schaeffer stating that Schaeffer had not used a real gun during the robbery of the drug dealers

on September 14, 2012. Schaeffer had first called Ruffin to testify, but Ruffin’s attorney

indicated that he had instructed Ruffin not to do so. The district court excused the jury and

conducted a hearing to determine what testimony Ruffin would be able to provide. Schaeffer

asked Ruffin to confirm that Schaeffer had not used a real gun on September 14, 2012. Ruffin


1
  The government acknowledged that “there is some indication that at least one of the robbers used a BB
gun,” but stated that it sought dismissal only for strategic reasons and did not concede that Schaeffer was
innocent on that count.
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No. 14-5278
United States v. Tyler Schaeffer

refused to testify as to that issue, invoking the Fifth Amendment. (At that point Ruffin had

already pled guilty to the charges arising from the September 14 robbery of the drug dealers, and

had affirmed under oath the government’s allegation that Schaeffer had used a real gun on

September 14.) Schaeffer then sought to admit a letter that Ruffin had written to Schaeffer while

both were in jail, either as a statement against interest under Fed. R. Evid. 804(b)(3) or under the

residual hearsay exception, Rule 807. Seeking to show that the letter should not be admitted, the

government presented recordings of calls Ruffin had made from jail that allegedly showed

Ruffin discussing with his father a plan for Ruffin and Schaeffer to coordinate their version of

events. Other clips allegedly demonstrated that Ruffin asked his father to ask Ruffin’s friends to

convince witnesses not to testify.

        Ruffin signed his plea agreement on April 30, 2013 and pled guilty the next day. The

phone calls suggesting cooperation between Ruffin and Schaeffer all predated the plea

agreement. The most directly relevant recordings are set forth here. On April 5, 2013, Ruffin

stated in a call:

        He come back from court, wrote me a note, and said it’s going to be our word
        against his charge-partner’s word, but that if I said that it was a BB gun that was
        used, that they’d drop all the brandishing charges on all his indictments, but in
        order to do that I’d have to take it to trial. So I don’t know—if they offer me a
        good deal, I don’t know whether I should plead out or whether I should take it to
        trial and try to save him from, you know, life. I don’t know what to do.

On April 21, Ruffin had the following exchange with his father:

        Father: You need to distance yourself from [Tyler Schaeffer],2 son. I hate to say
        it, but you don’t need no contact with him. Ain’t going to do you no good—
        everything that’s been said has been said.
        Ruffin: What do you mean?
        Father: Anything more—you talking to him makes it look bad on you.

2
 Ruffin’s father says “him,” but Ruffin had previously been saying that a birthday card he had written for
“Tyler” had been confiscated.
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No. 14-5278
United States v. Tyler Schaeffer

        Ruffin: So I’m just going to quit talking to a friend over something that—you
        know what I mean—I think—I don’t forget people, dad, you know what I mean?
        Father: I know, but right now you need to.
        Ruffin: We’re on this case together, man. Anything his lawyer says, he lets me
        know, you know what I mean?
        Father: OK.
        Ruffin: We have to work together because this other guy is telling, you know
        what I mean? So any deal that—
        Father: He’s already said everything, there ain’t no more to say.
        Ruffin: I haven’t said nothing.
        Ruffin’s letter to Schaeffer is not itself a part of the record, but its contents were read into

the record during Ruffin’s sentencing hearing:

        Look Tyler I know it was a fake gun. We didn’t want to [fucking] 3 hurt anyone.
        But with my record I didn’t think I could beat the Feds in trial. I was told they
        could career me out and give me 20 years. So in my best interest I ple[]d4 out so I
        could get acceptance of responsibility so I could get the lowest time possible. I
        just want to do this time so I can get home to my dad. I’m sorry I can’t help
        more. I should be Osila on the next run. Write dad and keep him posted on your
        trial. I love you man but I love my family more and just want to get home. Write
        me back. I’m sorry man you know if I say it was a fake I won’t get acceptance of
        responsibility. And I’ll get more time. I’m not going to lie and say it was real
        because I’d be under oath so I’m pleading the Fifth and not saying anything. I’m
        sorry [we’re] in this mess. Like I said I love ya. Sorry I can’t help I feel like
        [word not read]. RUFFIN Keep your head to the sky.

The record does not indicate the date of this letter but Ruffin’s apparent references to having

“pled out” and being sent to a detention facility in Ocilla, Georgia suggest that he wrote the letter

shortly after having pled guilty on May 1, 2013.

        Finding that Ruffin’s invocation of the privilege may have been proper, the district court

stated that Ruffin “may have been said to have been unavailable.” However, the court ruled that

the statements in Ruffin’s letter were not likely enough to expose Ruffin to liability to constitute

3
  The trial transcript uses “f’ing,” outside of quotation marks, to indicate that the person reading the
transcript paraphrased the word used.
4
  The trial transcript has “plead,” but in context it is extremely likely that Ruffin intended to use the past
tense.
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No. 14-5278
United States v. Tyler Schaeffer

statements against interest, and the statements were not supported by corroborating

circumstances. Therefore, the court did not permit Schaeffer to present the letter as evidence.

       The court did not err in admitting Lashley’s testimony that Schaeffer had, several years

earlier, owned a firearm that looked similar to the object used in the August 11, 2012 robbery.

This evidence suggests that the object that Schaeffer used in the robbery was in fact a firearm,

namely, the firearm Lashley testified that Schaeffer had previously possessed. This is not the

strongest possible evidence, but it is relevant nonetheless and in no way involves improper

inferences based on Schaeffer’s character or propensities.         Further, this evidence is more

probative than prejudicial, because Lashley’s testimony does not in itself cast Schaeffer in a bad

light or invite the jury to make unfair inferences.

       Admitting Lashley’s testimony did not violate Rule 404(b) of the Federal Rules of

Evidence because Lashley’s testimony was not “other acts” evidence to which Rule 404(b)

applies.   Evidence of such “other acts” does not include evidence that is “inextricably

intertwined with the evidence regarding the charged offense.” United States v. Weeks, 716 F.2d

830, 832 (11th Cir. 1983); see Price, 329 F.3d at 906. Lashley’s testimony was so intertwined

with Schaeffer’s use of a firearm in the robbery. In Price, an appeal arising from a felon-in-

possession conviction, we upheld the admission of the defendant’s certificate of completion in a

firearms safety course. 329 F.3d at 905. We reasoned that the certificate was not “other acts”

evidence subject to Rule 404(b) because the certificate was “itself . . . probative of the crime

charged, without regard to whether any ‘other act’ occurred.” Id. at 906. This was because, at

the very least, “the certificate show[ed] that Price was taking steps to possess a firearm” at a time

prior to when he allegedly possessed a firearm. Id. By the same logic, Lashley’s testimony that

the object Schaeffer had used in the August 11, 2012 robbery resembled a firearm Schaeffer had


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No. 14-5278
United States v. Tyler Schaeffer

previously possessed was directly probative of the crime charged—Schaeffer’s use of a firearm

in that robbery. The crucial question in Schaeffer’s trial was essentially whether he was in

possession of a firearm during the robberies. Lashley’s testimony that the object used in the

August 11, 2012 robbery resembled a firearm Schaeffer had possessed earlier was more directly

probative than evidence about Schaeffer’s preparation to obtain a firearm would have been.

        Further, any prejudice caused by Lashley’s testimony did not outweigh its probative

value, so it was admissible under Fed. R. Evid. 403. To be sure, the several years that passed

between Schaeffer’s possession of the firearm and the robbery in question weaken the

testimony’s probative value.5       Schaeffer may have lost possession of the firearm in the

intervening time, and the years may have eroded the accuracy of Lashley’s recollection.

Nonetheless, any prejudice was minimal because there was very little in Lashley’s testimony that

cast Schaeffer in an unfair light. Unfair prejudice, under Rule 403, refers to the danger that the

evidence in question “tends to suggest a decision on an improper basis.” Paschal v. Flagstar

Bank, 295 F.3d 565, 579 (6th Cir. 2002). Here, Lashley’s testimony did not cast Schaeffer as

having criminal or other negative tendencies; while shooting Schaeffer’s firearm in Lashley’s

yard might have been illegal, neither the trial transcript nor the parties on appeal place any

emphasis on this possibility. Target shooting is not in itself a morally dubious activity. At most,

one could infer from Lashley’s testimony that Schaeffer had a general propensity to possess

firearms.   But the district court instructed the jury not to draw inferences related to this

propensity,6 and the specificity of Lashley’s testimony—the similarity between the gun Schaeffer

showed Lashley and the object Schaeffer used in the robbery—likely drew the jury away from

5
  Lashley’s testimony is vague about exactly when Schaeffer showed him the firearm, but it was clearly at
least three years before the crimes in question and quite possibly more, as Lashley had lost touch with
Schaeffer for about three years and got back in touch shortly after the August 11, 2012 robbery.
6
  Schaeffer does not challenge the adequacy of the instruction, only the admission of Lashley’s testimony.
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No. 14-5278
United States v. Tyler Schaeffer

propensity-based inferences. Therefore, the prejudicial effect of Lashley’s testimony did not

outweigh its probative value, and it was properly admitted by the district court.

       We need not decide whether the district court erred in excluding Ruffin’s letter, because

any error was harmless. A district court’s evidentiary error is harmless unless “it was more

probable than not that the error materially affected the verdict.” United States v. Trujillo,

376 F.3d 593, 611 (6th Cir. 2004). Here, even assuming that Ruffin’s letter was admissible as a

statement against interest under Fed. R. Evid. 804(b)(3) or under the residual hearsay exception,

Fed. R. Evid. 807, the evidence against Schaeffer on the count to which Ruffin’s letter related

was overwhelming and the letter offered only weak support to Schaeffer’s case.

       The evidence that Schaeffer had used a firearm on September 14, 2012 was voluminous

and, taken together, highly persuasive. The firearm allegedly used on September 14, 2012, was

recovered and admitted into evidence. Schaeffer committed two robberies that day (with Ruffin

charged in only one of them), and the victims of both robberies, as well as Johnson, Schaeffer’s

co-conspirator and partner in both robberies, identified the firearm admitted into evidence as the

firearm Schaeffer had used. The government also presented testimony from Johnson and one of

Johnson’s associates as to how Schaeffer had obtained and then disposed of the weapon.

Lashley also testified that Schaeffer visited him on September 14, 2012, and had in his

possession the gun that the government had recovered. Schaeffer testified that he used a fake

gun, but he presented no corroborating evidence and admitted having limited memories of the

events of September 14. Schaeffer’s theory appears to have been that the gun recovered by the

government was in fact Johnson’s gun, which Johnson possessed but did not display during the

September 14, 2012 robberies. But this still does not account for Lashley’s testimony that he

saw Schaeffer with the gun on September 14, or the robbery victims’ identification of the gun as


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No. 14-5278
United States v. Tyler Schaeffer

the object Lashley was holding. While no single gun-identification would be conclusive, the

unanimous agreement of witnesses that Schaeffer had possessed a particular firearm that all

witnesses were able to identify is close-to-overwhelming evidence that Schaeffer did indeed

possess that firearm.

       Ruffin’s letter would have ended this unanimity, of course, but it was such weak evidence

that it is highly unlikely that it would have swayed the jury. Had Ruffin’s letter been admitted,

the government would undoubtedly have sought to impeach it. See Fed. R. Evid. 806. Ruffin’s

statement was unreliable for two reasons. First, the letter directly contradicted Ruffin’s sworn

affirmation of his plea agreement, which specifically stated that Schaeffer had used a gun in the

September 14, 2012 robbery. Second, the government could have used Ruffin’s recorded phone

calls and the sentiments Ruffin expressed in the letter itself to suggest that Ruffin, as Schaeffer’s

friend, wrote the letter in an attempt to help Schaeffer avoid significant jail time. In the context

of those recordings, the letter could easily be seen as the last gasp of Ruffin’s attempt to

coordinate testimony with Schaeffer. Even taken at face value, Ruffin’s letter does not provide

any supporting details or explain how he knew that a gun that he never possessed was fake. In

light of the strength of the government’s case against Schaeffer and the singular weakness of

Ruffin’s letter, it is not sufficiently likely that admitting Ruffin’s letter would have materially

affected the verdict.

       For the foregoing reasons, we affirm Schaeffer’s convictions.




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