                                                                             FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                                                      February 28, 2012
                                        PUBLISH                      Elisabeth A. Shumaker
                                                                         Clerk of Court
                      UNITED STATES COURT OF APPEALS

                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

        Plaintiff-Appellee,
 v.                                                           No. 11-2057
 JOHN GOULD,

        Defendant-Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF NEW MEXICO
                      (D.C. No. 1:03-CR-02274-JB-1)


Stephen D. Aarons of Aarons Law Firm PC, Santa Fe, New Mexico, for Defendant-
Appellant.

Lisa J. Stark, Attorney, (Thomas E. Perez, Assistant Attorney General; Jessica Dunsay
Silver, Principal Deputy Chief, with her on the brief), U. S. Department of Justice, Civil
Rights Division, Appellate Section, Washington, DC, for Plaintiff-Appellee.


Before BRISCOE, Chief Judge, BALDOCK and TYMKOVICH, Circuit Judges.


BRISCOE, Chief Judge.


       A New Mexico jury convicted John Gould, a former prison guard, of two counts of

depriving an inmate of his rights under color of law, in violation of 18 U.S.C. § 242, and

two counts of filing a false report, in violation of 18 U.S.C. § 1512(b)(3). These
convictions arose out of Gould’s use of excessive force against two inmates in two

different detention centers, and his subsequent filing of false reports to cover up the

incidents. Gould seeks reversal of his convictions and dismissal of all charges against

him, arguing 1) that the delay between his conviction and the entry of final judgment

violated his Sixth Amendment right to a speedy trial; and 2) that the district court erred in

excluding from evidence three memoranda he wrote. We have jurisdiction under 28

U.S.C. § 1291 and affirm.

                                               I

       In 2002, Gould was employed as a lieutenant and shift leader at the Doña Ana

County Detention Center in New Mexico. On October 16, 2002, Gould asked two

officers to move an inmate from one cell to another, and they radioed back that the inmate

was resisting. Gould told the officers to standby and wait for him, but they continued to

try to move the inmate. Two other officers began to assist them, and then the four

officers began assaulting the inmate. Another officer who saw the fight sent out an

“officer down” radio call to all the officers in the facility. This officer also joined the

assault. Gould responded and arrived to find four or five officers on top of the inmate,

with another forty-five officers looking on. Gould twice pepper sprayed the inmate in the

face and then assaulted him. The inmate was badly injured, suffering three fractured

ribs, a broken elbow, a fractured shoulder, bleeding in the eye, and myriad bruises and

abrasions. The following morning, Gould filed a false report about the incident.

       In August 2004, a grand jury returned an indictment charging Gould with

                                               2
deprivation of rights under color of law and filing a false report. Five other officers also

filed false reports and were charged, but they ultimately entered into plea agreements and

testified against Gould.

       The August 2004 indictment also contained two additional charges which arose

out of a separate incident that occurred at the Cibola County Detention Center. There,

Gould shot twelve rounds of nonlethal projectiles at a prisoner from close range, causing

deep bruising and an infected wound. As a result of the Cibola County incident, Gould

was convicted of deprivation of rights under color of law and filing a false report, but he

does not raise any evidentiary challenges regarding those convictions. But he does argue

with respect to all four convictions that the delay between his conviction and sentencing

and the final entry of judgment violated his Sixth Amendment right to a speedy trial.1

                                 A. District court proceedings

       We relate the tortured procedural history of this case, which is punctuated by long,

inexplicable periods of delay. After a nine-day jury trial, the jury convicted Gould on all

four counts on April 2, 2007. Eight days later, on April 10, 2007, Gould filed a motion



       1
           The Sixth Amendment to the United States Constitution provides:
               In all criminal prosecutions, the accused shall enjoy the right to
               a speedy and public trial, by an impartial jury of the State and
               district wherein the crime shall have been committed, which
               district shall have been previously ascertained by law, and to be
               informed of the nature and cause of the accusation; to be
               confronted with the witnesses against him; to have compulsory
               process for obtaining witnesses in his favor, and to have the
               Assistance of Counsel for his defense.

                                               3
for a new trial based on alleged Brady violations stemming from the government’s failure

to produce documents from 2003 regarding the Doña Ana County victim’s psychological

state. The district court denied the motion on January 2, 2008. Both parties filed several

motions to continue sentencing thereafter. On April 16, 2008, the government filed a

motion to continue and a motion to disclose to defense counsel a 2005 competency report

which again pertained to the same Doña Ana County victim. On March 25, 2009, the

court granted the motion to disclose the 2005 competency report. On May 6, 2009, more

than one year after his conviction, the district court sentenced Gould to ninety-seven

months on each count, with the sentences to run concurrently. On that same date, May 6,

2009, Gould filed a renewed motion for a new trial, which referred to the 2005

competency report. On November 18, 2010, Gould moved for reconsideration of his

sentence, based on the delay between his conviction and his sentencing and on the

continuing delay between his sentencing and the entry of final judgment. The district

court entered the final judgment on January 19, 2011, 623 days after his sentencing and

1388 days after his conviction. The district court denied Gould’s motion for

reconsideration on February 23, 2011 and his renewed motion for a new trial on March

16, 2011. Thereafter, Gould filed a timely notice of appeal.

       Throughout the period that elapsed from his conviction until entry of final

judgment, Gould was held in administrative segregation. He was placed in administrative

segregation for his own protection because of his past employment as a prison guard.

Gould was housed in a single cell for twenty-three hours each day, removed only for

                                             4
exercise or showers. Gould maintains that, had the final judgment been entered earlier,

he would have been transferred to a Bureau of Prisons facility where only inmates with

law enforcement backgrounds are held, and he would have been allowed to move from

administrative segregation to general population. Indeed, since entry of judgment, he has

been transferred to such a facility and placed into the general population. He has also

advanced to trustee status, a designation that offers an inmate some additional freedoms.

                                             II

       Gould raises two issues. First, he seeks “appropriate relief”2 on the grounds that

the trial court violated his Sixth Amendment right to a speedy trial by delaying imposition

of his sentence.3 Second, he seeks reversal of his convictions on the grounds that the


       2
         Gould does not specify the “appropriate relief” he seeks. Gould first raised his
speedy trial claim in a motion for reconsideration, and the district court correctly
concluded that it lacked the power to modify his sentence. See United States v. Mendoza,
118 F.3d 707, 709 (10th Cir. 1997) (“A district court does not have the inherent power to
modify a previously imposed sentence; it may do so only pursuant to statutory
authority.”); 18 U.S.C. 3582(c) (giving district courts authority to modify a sentence in
three circumstances: upon motion of the Director of the Bureau of Prisons, under Rule 35
or other Federal Rules of Criminal Procedure, or where the Sentencing Commission has
lowered the sentencing range). Courts may reduce a prisoner’s sentence for a Sixth
Amendment violation, but only when the prisoner seeks the reduction under a statute
granting the court such authority. For example, a prisoner may seek resentencing in a
habeas petition based on a Sixth Amendment violation. See, e.g., Burkett v. Fulcomer,
951 F.2d 1431 (3d Cir. 1991). In the present procedural setting, our power is limited; the
only relief we could possibly grant would be to dismiss the charges against him, and
given that the delay here is post-conviction, even that is questionable. United States v.
Seltzer, 595 F.3d 1170, 1181 (10th Cir. 2010) (affirming district court’s dismissal with
prejudice of charges against a defendant due to a two-year preconviction delay).
       3
        Gould includes the phrase “due process” in his statement of issues on appeal, but
then only cites the Sixth Amendment in support of his argument. The Sixth Amendment
                                                                            (continued...)
                                           5
district court erred in excluding as hearsay several memoranda Gould had written.

           A. The district court did not violate Gould’s Sixth Amendment right to a
                                          speedy trial.

                                    1. Standard of review

       We review Gould’s Sixth Amendment claim de novo, but accept the district

court’s factual determinations unless clear error is shown. United States v. Seltzer, 595

F.3d 1170, 1175 (10th Cir. 2010); United States v. Lampley, 127 F.3d 1231, 1239 (10th

Cir. 1997). A district court’s factual finding is clear error only if it “is simply not

plausible or permissible in light of the entire record on appeal.” United States v. Garcia,

635 F.3d 472, 478 (10th Cir. 2011).

                                   2. The Period of delay

       The parties disagree about how we should calculate the period of delay, and

whether all or part of the period from conviction to the entry of final judgment should be

considered. Gould argues that the delay totals 1,388 days, which includes the period from

his conviction on April 2, 2007, until the court entered judgment on January 19, 2011.

Aplt. Br. at 8. The government argues that the delay totals only 765 days, which includes

the period from Gould’s conviction until his sentencing on May 6, 2009. The government

suggests that we not consider the delay between sentencing and entry of the final


       3
        (...continued)
does not offer due process protection, and Gould does not make any the Fifth Amendment
due process arguments. Accordingly, we do not address any due process claims. See
Fed. R. App. P. 28(a)(9)(A) (“[T]he argument ... must contain ... appellant's contentions
and the reasons for them, with citations to the authorities and parts of the record on which
the appellant relies.”)
                                              6
judgment. Aplee. Supp. Br. at 42. In support of this view, the government relies on our

statement in United States v. Yehling that “[t]he Sixth Amendment guarantees all

criminal defendants the right to a speedy trial; we have applied this right from arrest

through sentencing” as the basis for its argument that the Sixth Amendment only requires

a speedy trial through sentencing. Id. at 31 (citing Yehling, 456 F.3d 1236, 1243 (10th

Cir. 2006)). However, Yehling went on to apply the Sixth Amendment to a period after

sentencing, which included consideration of a motion for a new trial. Moreover, Yehling

recognized the need to prevent “unreasonable delay from arrest through sentencing and

throughout the appellate process.” 456 F.3d at 1243. The defendant in Yehling also

asserted a Fifth Amendment due process claim, and the opinion could be read as relying

on the Fifth Amendment for the extension of the right to a speedy trial to any post-

sentencing period. Id. We have not explicitly addressed whether the right to a speedy

trial includes the right to a timely entry of judgment. As regards the present case, we will

assume without deciding that the right to a speedy trial extends to the entry of final

judgment. See Dickey v. Florida, 398 U.S. 30, 44 (1970) (Brennan, J., concurring) (“This

Court has assumed, arguendo, but has not decided, that the interval between judgment and

sentencing is governed by the [speedy trial] clause.”). Thus, in determining whether the

delay violated Gould’s Sixth Amendment right, we consider the entire 1,388 day period

that elapsed from Gould’s conviction until the entry of final judgment.4


       4
          As this court has noted, however, “the extension of Sixth Amendment speedy
trial safeguards past the transition from accused to convict will not be entirely free of
                                                                                (continued...)
                                              7
       In conducting our speedy trial analysis, we must first address whether we consider

the period as a whole, or as two periods: the period between Gould’s conviction and

sentencing, and the period from sentencing to entry of final judgment. The government

and the district court both break the delay into two periods. The district court first looked

at the delay from conviction to sentencing, and then separately considered the delay from

sentencing to the entry of final judgment. Gould does not explicitly contest the district

court’s approach, but his arguments address the period as a whole, and not as two

separate periods. Aplt. Br. at 14.

       We conclude that it is appropriate to consider the period of delay as a whole. The

right to a speedy trial is enumerated in the Sixth Amendment. The Sixth Amendment

guarantees a speedy trial, which requires the entire trial, start to finish, be speedy. As we

are assuming here that the right to a speedy trial extends to the entry of final judgment,

we will consider the entire period from conviction to entry of final judgment as a whole,

and not on a piecemeal basis.

                3. The delay did not violate Gould’s right to a speedy trial

       To determine whether a particular delay violates a defendant’s right to a speedy

trial, we apply the four-factor test set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972):

              (1) the length of delay; (2) the reason for the delay; (3) the
              defendant’s assertion of his right; and (4) prejudice to the
              defendant. None of the factors are necessary or sufficient;


       4
       (...continued)
doubt until the Court directly examines and resolves the question.” Perez v. Sullivan,
793 F.2d 249, 253 n.2 (10th Cir. 1986).
                                     8
              rather, the factors are related and should be considered together
              with other relevant circumstances.

Yehling, 456 F.3d at 1243 (citing Barker, 407 U.S. at 533) (internal citations omitted).

                                        a. Length of delay

       “The first factor, length of delay, functions as a ‘triggering mechanism.’” Id.

(citing Barker, 407 U.S. at 530). The remaining factors are examined only if the delay is

first determined to be long enough to be presumptively prejudicial. Id. Here, both parties

agree that the length of delay is sufficient to trigger the remaining Barker factors. Aplee.

Supp. Br. at 42; Aplt. Br. at 8, 14.

                                       b. Reason for delay

       We next assess the reason for the delay in this case. As a preliminary matter, we

must first determine what portion of the delay resulted from the defendant’s actions—a

“[d]elay[] attributable to the defendant do[es] not weigh against the government.” United

States v. Abdush-Shakur, 465 F.3d 458, 465 (10th Cir. 2006). “[T]he reason for the

delay[] ‘weighs against the government in proportion to the degree to which the

government caused the delay.’” Yehling, 456 F.3d at 1244 (quoting United States v.

Batie, 433 F.3d 1287, 1291 (10th Cir. 2006)).

       The district court determined that Gould bore responsibility for 481 of the 764

days of delay between conviction and sentencing because he had filed three motions for

continuance and also delayed his filing of a promised renewed motion for new trial for

eleven months. Although the district court noted that the government also filed three

unopposed motions for continuance, the district court noted the government’s April 16,
                                                9
2008, motion to continue, which resulted in 343 days of the 481 day delay, was sought to

provide Gould time to file the promised renewed motion for new trial. ROA, Vol. 1 at

781. Thus, the district court allotted this period of delay to Gould. Id. In its April 16

motion to continue, however, the government noted that Gould planned to file a renewed

motion for new trial upon receiving a mental health evaluation for the Doña Ana County

victim. Id. at 649. The government filed a motion to disclose that mental health

evaluation on April 16, 2008, concurrent with its motion to continue. Id. at 653. The

district court failed to rule on the motion to disclose the mental health evaluation until

March 25, 2009. Id. at 664. Therefore, attributing all of the 343 days that elapsed after

the government’s motion to continue to Gould was clear error, as it appears that the

district court’s delay in ordering disclosure of the 2005 report prevented Gould from

filing his renewed motion for new trial. Id. at 649, 658; Garcia, 635 F.3d at 478. In light

of the district court’s delay, we determine that the government bears responsibility for the

period of delay from April 16, 2008, to March 25, 2009. Gould then bears responsibility

for only 138 days of the 764 days of delay between conviction and sentencing.

       The district court also found that the remaining delay of 623 days, between

sentencing and the entry of the final judgment, was the result of the court’s clerical error

and thereby attributable to the government. ROA, Vol. 1 at 797. Thus, in total, Gould

bears responsibility for roughly ten percent of the delay, while the government bears

responsibility for the remaining ninety percent. Because the government is responsible

for the bulk of the delay, this factor weighs against the government.

                                             10
       However, in determining how heavily the delay weighs against the government,

we must also assess the cause of the delay. Purposeful delay or delay to gain advantage

weighs heavily against the government, while “[a] more neutral reason such as negligence

or overcrowded courts [is] weighted less heavily.” Barker, 407 U.S. at 531. Before the

district court, Gould expressly declined to allege that the government purposely delayed

the proceedings, stating that “this was not purposeful delay or purposeful delay to achieve

some sort of a benefit. This is just simple inadvertence and crowded calendars.” ROA,

Vol. 3 at 281–82; see also id., Vol. 1 at 794 (trial court noting that Gould “[d]oes not

assert intentional delay”). Immediately after Gould made this statement, however, the

prosecutor told the court that she made periodic telephone inquires about the status of the

final judgment, but did not file any motion seeking resolution of the matter, because, “as

far as filing anything on the record, frankly, Your Honor, my fear would be to induce

exactly what we’ve got here, to induce [Gould’s lawyer] to file a motion saying that there

had been some sort of delay that would necessitate further proceedings on this.” Id., Vol.

3 at 299. Now, on appeal, Gould points to this statement to argue that the prosecutor may

have been purposefully complicit in the delay.

       Given the arguments presented before the district court, Gould is now precluded

from arguing that the government’s delay was attributable to anything other than

negligence or inadvertence. After hearing the prosecutor’s statement, the district court

provided Gould an opportunity for further argument, but Gould did not avail himself of

that opportunity. “[F]ailure to raise an argument before the district court generally results

                                             11
in forfeiture on appeal.” United States v. Jarvis, 499 F.3d 1196, 1201 (10th Cir. 2007).

“Nevertheless, this court has recognized an exception where the argument involves a pure

matter of law and the proper resolution of the issue is certain.” Id. at 1202. The question

Gould now presents is a fact question regarding the government’s motivation in allowing

the delay and/or purposefully refraining from filing a motion seeking entry of the final

judgment, and therefore does not fall within the issue-of-law exception.

       While the government caused a majority of the delay in this case, we do not deem

the delay purposeful. This factor weighs in Gould’s favor, but not heavily.

                            c. Defendant’s assertion of his right

       The defendant’s assertion of his right is “[p]erhaps [the] most important” of the

four Barker factors. Batie, 433 F.3d at 1291. “[T]he defendant’s assertion of the speedy

trial right is entitled to strong evidentiary weight in determining whether the defendant is

being deprived of the right.” United States v. Dirden, 38 F.3d 1131, 1138 (10th Cir.

1994) (citations and quotations omitted). While a defendant who fails to demand a

speedy trial does not inherently waive that right, “[w]e emphasize that failure to assert the

right will make it difficult for a defendant to prove that he was denied a speedy trial.”

Barker, 407 U.S. at 532. And the defendant’s burden of showing he desired a speedy trial

“is not satisfied merely by moving to dismiss after the delay has already occurred.”

Batie, 433 F.3d at 1291. Thus, if the defendant fails to demand a speedy trial, moves for

many continuances, or otherwise indicates that he is not pursuing a swift resolution of his

case, this factor weighs heavily against the defendant.

                                             12
       In the present case, the district court found that this factor weighed against Gould

because Gould made no effort to contact the court for eighteen months after the

sentencing on May 6, 2009, until he filed a motion for reconsideration of his sentence on

November 18, 2010. ROA, Vol. 1 at 799. This eighteen-month period constitutes the

great majority of the twenty-month delay between sentencing and entry of judgment.

Moreover, the November 2010 motion, which was filed more than forty-three months

after his conviction, was the first time Gould asserted his right to a speedy trial. Id. at

783. Gould’s counsel admitted that Gould had not appropriately asserted his right: “I

understand that there’s some concern that the defendant didn’t [assert] his right as much

as he should have, and I think that’s a fair finding by the court.” Id. at 799. As a result of

Gould’s long delay in asserting his right, this factor weighs heavily against him.

                                d. Prejudice to the defendant

       “[A] showing of prejudice may not be absolutely necessary in order to find a Sixth

Amendment violation, [but] we have great reluctance to find a speedy trial deprivation

where there is no prejudice.” Perez v. Sullivan, 793 F.2d 249, 256 (10th Cir. 1986). “In

fact, it might be said that once a defendant has been convicted it would be the rarest of

circumstances in which the right to a speedy trial could be infringed without a showing of

prejudice.” Id.

       “Prejudice is assessed in light of the interests the speedy trial and due process

rights were designed to protect: preventing oppressive incarceration, minimizing anxiety

and concern of the defendant, and limiting the possibility that the defense will be

                                              13
impaired.” Yehling, 456 F.3d at 1244-1245 (quotations and citations omitted). But the

prejudice calculus changes once a defendant has been convicted: “once a defendant has

been convicted, the rights of society increase in proportion to the rights of the defendant.

Post-conviction prejudice therefore must be substantial and demonstrable.” Id.

(quotations and citations omitted).

       When addressing the potential for prejudice to the defendant, the possibility that

the defense will be impaired “is the most serious ‘because the inability of a defendant

adequately to prepare his case skews the fairness of the entire system.’” Dirden, 38 F.3d

at 1138 (citing Barker, 407 U.S. at 532). We have also given some weight to the anxiety

and concern of the defendant, but our cases suggest that we require the defendant to show

some “special harm suffered which distinguishes his case.” Id. Further, “the anxiety of

an accused is not to be equated for constitutional purposes with anxiety suffered by one

who is convicted, in jail, unquestionably going to serve a sentence, and only waiting to

learn how long that sentence will be.” Perez, 793 F.2d at 257.

       Finally, once a defendant had been convicted, we have not considered conditions

of incarceration when determining prejudice, where a defendant claims that the conditions

would have been different after sentencing:

              The benefits arguably available to defendant in [a different]
              penitentiary are entirely speculative not only concerning
              whether he would have qualified, but also concerning the extent
              to which he would have participated or benefited. . . . We
              decline to attach Sixth Amendment speedy trial dimensions to
              amenities and benefits a convicted felon might receive in one
              prison but not another.

                                              14
Id. (footnote and citations omitted). Thus, the prejudice prong of the Barker test presents

a high bar for a defendant who has been convicted, and, as previously stated, failure to

show prejudice is nearly fatal to a speedy trial claim. Id. at 256.

       In the present case, the district court found Gould failed to show that he was

prejudiced by the delay in his sentencing and the entry of judgment. Gould did not argue

that the delay impaired his defense, relying instead on allegations of psychological harm

resulting from his oppressive confinement and the oppressive confinement itself. ROA,

Vol. 1 at 784, 789, Vol. 3 at 289–90. This alleged prejudice is foreclosed by our decision

in Perez. In that case, as here, the defendant claimed prejudice due to the conditions he

encountered in one prison as opposed to the conditions he expected to encounter in

another, and we declined to extend speedy trial protection for such speculative claims.

Perez, 793 F.2d at 257. Moreover, an inmate has other avenues available to challenge

conditions of confinement, which counsels against our extending Sixth Amendment

protection to this type of claim. Thus, Gould does not show that he was prejudiced from

the delay, which weighs heavily against him.

                                e. Assessing the four factors

       On the whole, the four factors favor denial of Gould’s Sixth Amendment speedy

trial claim. While the length of the delay suffices to trigger a Barker analysis, and the

reason for the delay weighs lightly in Gould’s favor, his failure to adequately assert his

speedy trial rights and his inability to show prejudice weigh heavily against him. In

particular, because “we have great reluctance to find a speedy trial deprivation where

                                             15
there is no prejudice,” his failure to show prejudice alone is nearly fatal to his claim. Id.

at 256. Balancing these factors, we must conclude that Gould has not established a Sixth

Amendment speedy trial violation. While this result is troubling given the lengthy delay

from conviction to the entry of final judgment, a delay which certainly exceeded the norm

of timely criminal case processing, it does not rise to the level of a constitutional speedy

trial violation.

            B. Any district court error in excluding the memoranda was harmless.

       Gould argues the district court erred in excluding three memoranda he wrote and

sent to Major Barela, his supervising officer: (1) a memorandum expressing Gould’s

concern over pranks by other officers (the prank memorandum), (2) a memorandum

stating Gould’s belief that the officers who attempted to extract the prisoner may have

been lying to him about what happened before he arrived (the lying memorandum), and

(3) a memorandum asking for a state police investigation of the altercation with the

prisoner (the investigation memorandum). In response to objections raised by the

government, the district court held that all three documents were hearsay, offered for the

truth of the matter asserted in the documents, and excluded them. However, the district

court did allow Gould to testify as to his writing of the memoranda, as well as their

contents.

       Gould made no argument for admission of the first report over the government’s

objection, but did argue that the second and third documents should have been admitted

under Federal Rule of Evidence (FRE) 106: “[i]f a party introduces all or part of a writing

                                              16
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.” Gould sought to admit the documents to provide context

for reports offered by the government that contained Gould’s false statements about the

altercation. On appeal, Gould reasserts his FRE 106 argument, and also argues for the

first time that the memoranda should also have been admitted for non-hearsay purposes,

to show that Gould had accused other officers of misconduct and called for an

investigation. Although Gould also argues that the government objected to the

memoranda on relevance grounds, we need not address this argument as we note from the

trial transcript only hearsay objections were raised. ROA, Vol. 4, Trial Vol. 7 at 252–54,

287–89, 294–95.

       The prank memorandum describes Gould’s concern over a series of pranks in 2001

that involved Officers Tagert, Fraembs, and Gonzales, Sergeant Freeland, and Lieutenant

Schlender. As a result of the memorandum, Lieutenant Schlender ultimately resigned.

Officers Tagert, Fraembs, and Gonzales and Sergeant Freeland all testified against Gould

at trial, although Gould only questioned Sergeant Freeland about the prank memorandum.

She stated that she believed Gould was not an honest person, based largely on her belief

that his statements in the prank memorandum were dishonest. Sergeant Lopez, who also

testified against Gould, stated that she had heard about the memorandum and Lieutenant

Schlender’s subsequent resignation, and testified that she was intimidated by Gould.

During his own testimony, Gould sought to introduce the prank memorandum after

                                            17
testifying as to its contents. After the government’s hearsay objection, Gould did not

counter the objection but simply moved on. On appeal, Gould argues that the prank

memorandum should have been admitted to show that he had reported the officers’ prior

alleged misbehavior, which would suggest that they had a reason to dislike and testify

against him.

           The lying memorandum expresses Gould’s concern that the officers who were

already fighting with the inmate when Gould arrived may have lied to him about events

leading up to the altercation. Hoping to show his good intentions and to counter the false

report charges, Gould sought to admit the memorandum to show that he expressed his

misgivings about the incident almost immediately after it ended. When the government

objected on hearsay grounds, Gould argued first that the document went to his state of

mind and then that the document should be allowed in under FRE 106.

       The investigation memorandum apparently indicates that Gould wanted an outside

investigation of the altercation, and Gould sought to offer it to show that he wanted a

thorough investigation, not a coverup. Although we granted Gould’s motion to

supplement the record on appeal with the three excluded memoranda, only two of the

excluded memoranda have been provided. An unrelated memorandum on guard training

methods was submitted instead of the investigation memorandum.5 Supp. ROA at 2.


       5
        Gould refers to the guard training memorandum and discusses its content in his
brief. Aplt. Br. at 2. He then references the investigation memorandum, as if the
investigation memorandum were the memorandum he had just discussed. Id. The two
memoranda are clearly different, however, and the guard training memorandum does not
                                                                           (continued...)
                                            18
Although our review of the investigation memorandum’s exclusion would have been

facilitated by its inclusion in the record on appeal, the trial transcripts contain sufficient

information about the contents of the memorandum for us to consider the issue.

       Even if we were to assume that the exclusion of all three memoranda was error, the

error was harmless. “A non-constitutional error, such as the admission or exclusion of

impeachment evidence, is subject to harmless error analysis.” United States v. Clifton,

406 F.3d 1173, 1179 (10th Cir. 2005). “[A] non-constitutional 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.” Id. (quoting United States v. Griffin, 389 F.3d 1100, 1104 (10th Cir.

2004)). The court allowed Gould to testify in detail as to the contents of all three

memoranda. Further, the contents of the memoranda were not disputed; the government’s

witnesses ratified Gould’s testimony about the memoranda. For example, Sergeant Lopez

testified that Gould repeatedly stated his belief that the officers who had been instructed

to move the prisoner were not telling Gould the truth about their actions leading up to the

altercation, and officers involved in the beating testified that Gould instigated the

investigation against them. The exclusion of evidence is harmless when the substance of

the excluded evidence comes before the court through other means. United States v.

Bowling, 619 F.3d 1175, 1194 (10th Cir. 2010) (holding exclusion of evidence was



       5
        (...continued)
appear to have been an issue in the trial. The government pointed out Gould’s error, but
Gould failed to file any reply brief or otherwise respond in any way to this apparent
record mixup.
                                              19
harmless error when the evidence was at most cumulative).

                                          III

      The judgment of the district court is AFFIRMED.




                                          20
