                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 08a0193n.06
                             Filed: April 10, 2008

                                           No. 06-4018


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA,

       Plaintiff-Appellee,

v.                                                    ON APPEAL FROM THE UNITED
                                                      STATES DISTRICT COURT FOR THE
DAVID D. LETNER,                                      SOUTHERN DISTRICT OF OHIO

       Defendant-Appellant.

                                               /



BEFORE:        CLAY and McKEAGUE, Circuit Judges; and BOYKO, District Judge.*

       CLAY, Circuit Judge. Defendant David D. Letner challenges his conviction on two counts

of bank robbery, under 18 U.S.C. § 2113(a) & (d), and two counts of use of a firearm in a crime of

violence, under § 924(c)(2)(A)(ii). He argues that the district court erred by admitting a government

witness’ prior statements which were inconsistent with the witness’ testimony. Specifically,

Defendant challenges the district court’s admission of two prior statements by his brother and co-

defendant: an unsworn statement which was admitted as impeachment evidence, and a plea

agreement implicating Defendant which his brother adopted under oath at his plea hearing. For the




       *
        The Honorable Christopher A. Boyko, United States District Judge for the Northern District
of Ohio, sitting by designation.
reasons which follow, we hold that the district court did not abuse its discretion in admitting either

statement, and AFFIRM Defendant’s conviction.

                                    STATEMENT OF FACTS

       On January 18, 2005 and again on January 26, 2005 two men robbed the National City Bank

in Dayton, Ohio. Both robberies followed the same pattern. Two white men entered the bank

together, disguised by a t-shirt or bandana wrapped around their head, and carrying a gun in their

gloved hands. Although clothes, gloves and masks covered most of their features, enough of the

robbers’ eyes were exposed to allow witnesses to notice their red eyebrows and eyelashes.

       Sometime after the second robbery, Defendant’s sister-in-law Eva Letner contacted police

to report a domestic dispute. Eva described Defendant David D. Letner and his brother to police,

and the police subsequently obtained photos of the two men which showed that they had red

eyebrows and eyelashes. Although both Letner brothers then became suspects in the National City

Bank robbery investigation, no further progress was made in this investigation until March 12, 2005.

On that date, Defendant’s brother Gregg Letner was arrested while fleeing from an armed robbery

and shootout at a Kroger grocery store. During a subsequent interrogation, Gregg admitted to four

bank robberies, including the two at National City Bank, and named Defendant as his accomplice

in the National City Bank robberies.

       On May 26, 2005, Gregg Letner pled guilty to multiple counts, including three counts of bank

robbery. During the plea colloquy, the judge read to Gregg a lengthy statement of the facts

underlying his guilty plea, and a copy of this statement was provided for Gregg and his attorney to

review. Included in this statement was an acknowledgement that “[o]n the afternoon of on or about

January 26th, 2005, the Defendant Gregg T. Letner and his brother entered the same National City


                                                  2
Bank they had robbed on the January 18th of 2005,” which they robbed again. (J.A. 193) Gregg

testified under oath that he understood this statement of facts and that he had no questions regarding

the statement. The district judge then asked Gregg if the statement represented “the facts

underlying—allegedly underlying each of these counts that you wish to enter your pleas of guilty to.”

Gregg responded “Yes, sir.” (J.A. 196)

       Defendant’s trial for his role in the bank robberies began on January 30, 2006. In preparation

for the trial, the prosecution met with Gregg Letner and his attorney to discuss Gregg’s testimony

in his brother’s trial. Although Gregg initially informed the prosecution that he would not be willing

to testify against his brother, he eventually told the prosecution that he would testify at the trial.

During his testimony at his brother’s trial, Gregg described, in great detail, his own involvement in

the bank robberies. He described how he disguised himself during the robberies. He described his

own actions and those of his accomplice during the robberies, and he described how he and his

accomplice would flee the bank in a stolen vehicle, only to abandon the vehicle a short distance

away. When asked about the identity of his accomplice, however, Gregg testified that he had “no

idea.” (J.A. 845)

       After asking several questions to lay the foundation for impeachment, the prosecutor then

asked the following question:

       “[D]o you recall telling agents in response to questions about the first National Bank
       robbery on January 18th, 2005, that your brother, David Letner, entered the National
       City Bank located at 4789 West Third Street with you for the purpose of robbing—”

(J.A. 855) At this point, Defendant’s attorney objected to this line of questioning, and his objection

was eventually overruled.




                                                  3
       In response to the ensuing line of questioning, Gregg continued his refusal to identify his

brother as his accomplice.     Despite many questions from the prosecutor seeking such an

identification, Gregg eventually declared “I’m not going to say who was with me on the bank

robberies. Period. No matter how many times you ask the question, I’m not going to tell you.” (J.A.

889)

       After Gregg’s testimony, the judge instructed the jury that it could only consider Gregg’s

unsworn statements for impeachment purposes. Later in the proceeding, the judge allowed the

prosecution to introduce the statement of facts accompanying Gregg’s plea agreement as substantive

evidence. In admitting this evidence, the judge again instructed the jury, this time informing them

that, unlike Gregg’s prior unsworn statements to law enforcement agents, the sworn statement could

be considered as proof of Defendant’s guilt.

       The district court also heard testimony from Layshia Stewart and Kyra Redford, two sisters

who were romantically involved with the Letner brothers during the time relevant to this case. The

sisters’ testimony corroborated much of Gregg Letner’s testimony regarding the details of the

robberies. Among other things, their testimony revealed that around the time of the bank robberies,

the Letner brothers would treat both sisters to lavish, cash-funded shopping sprees and drug binges,

even though neither brother was working at the time. The sisters also testified about overhearing

conversations where Defendant and Gregg discussed covering their faces with t-shirts to hide their

identities, and Kyra added that the clothes both brothers wore during the robberies were the same

as those they “always wore” around the house. (J.A. 1180)

                                          DISCUSSION

                                       Standard of Review


                                                 4
         A district court’s decision regarding the admission of evidence is generally reviewed under

an abuse of discretion standard. Gibson v. United States, 271 F.3d 247, 254 (6th Cir. 2001) (rev’d

on other grounds). However, Defendant also raises constitutional challenges to the district court’s

admission of Gregg Letner’s prior unsworn statements. “To the extent that Defendant's claims sound

in due process, we review them de novo.” United States v. Moncivais, 492 F.3d 652, 658 (6th Cir.

2007).

                                               Analysis

         A witness’ prior inconsistent statement may be admitted as substantive evidence if “[t]he

declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement,

and the statement . . . was given under oath subject to the penalty of perjury at a trial, hearing, or

other proceeding, or in a deposition . . . .” Fed. R. Evid. 801(d)(1). Defendant argues, however, that

the district court abused its discretion in admitting the statement of facts accompanying Gregg

Letner’s plea agreement. According to Defendant, because the district judge only asked Gregg if the

statement of facts represented the circumstances “allegedly” underlying the facts which he was

pleading guilty to, Gregg never adopted that statement under oath.

         While it is true that the district judge asked Gregg if the statement represented “the facts

underlying—allegedly underlying each of these counts that you wish to enter your pleas of guilty to,”

(J.A. 196), Defendant places too much weight on the judge’s use of the word “allegedly” in this

context. During Gregg’s plea hearing, he stated that he understood the plea agreement and that he

was in accord with it in its entirety. Gregg then agreed that it was “the agreement and provisions that

[he wished] to execute and enter [his] pleas of guilty upon.” (J.A. 220) Furthermore, while Gregg

was a witness at Defendant’s trial, the prosecutor expressly asked Gregg if he remembered agreeing


                                                   5
to the statement of facts under oath, and Gregg testified that he did. Given these facts, we cannot

conclude that the district court abused its discretion by finding that Gregg had previously affirmed

the entirety of his plea agreement under oath. Accordingly, we hold that any prior inconsistent

statements contained in that agreement were properly admitted as substantive evidence.

       We reach a similar conclusion with respect to the admission of Gregg’s unsworn statements

made while he was being interrogated by police. Defendant argues that under the common law, the

Federal Rules of Evidence and the Due Process Clause, Gregg’s unsworn statements implicating

Defendant were not admissible even as impeachment evidence. For the reasons that follow, these

arguments lack merit.

A.     Defendant’s Common Law Claim

       Defendant first argues that, under the Second Circuit’s decision in United States v.

Cunningham, 446 F.2d 194 (2d Cir. 1971), “where the witness gives no testimony injurious to the

party calling him, but only fails to render the assistance which was expected by professing to be

without knowledge on the subject, there is no reason or basis for impeachment.” Id. at 197. This

holding, however, is taken from an almost 40 year old opinion, and is nothing more than a statement

of the old rule that a party may not impeach their own witness unless they are surprised by the

witness’ testimony. See id. (“the maximum legitimate effect of the impeaching testimony can never

be more than the cancellation of the adverse answer by which the party is surprised . . . .”) While

Cunningham represented an accurate statement of the law at the time it was decided, the Federal

Rules of Evidence have removed Cunningham’s common law limitation on a party impeaching its

own witness. See Fed. R. Evid. 607 (“The credibility of a witness may be attacked by any party,

including the party calling the witness.”); see also Cunningham, 446 F.2d at 198 (acknowledging


                                                 6
that the impeachment evidence at issue in that case would be admissible under the then-proposed

Federal Rules of Evidence). Because Defendant’s common law claims rely on an outdated rule, they

lack merit.

B.      Defendant’s Federal Rules of Evidence Claim

        Just as the district court did not violate any common law doctrine in admitting Gregg’s

unsworn statement, it also did not abuse its discretion under the Federal Rules of Evidence. Rule

607 provides that “[t]he credibility of a witness may be attacked by any party, including the party

calling him,” and Rule 613(b) permits a witness’ prior inconsistent statement to be admitted as

impeachment evidence, so long as “the witness is afforded an opportunity to explain or deny [the

statement] and the opposite party is afforded an opportunity to interrogate the witness . . . .”

Evidence of unsworn prior inconsistent statements by a witness may only be admitted for

impeachment purposes against a criminal defendant, not as evidence supporting that defendant’s

conviction. See Rush v. Illinois Cent. R. Co., 399 F.3d 705, 722 (6th Cir. 2005). However, when

the district court instructs a jury to consider impeachment evidence only for its proper, limited

purpose, “[w]e will presume that the jury followed this instruction.” United States v. Newsom, 452

F.3d 593, 604 (6th Cir. 2006). “The presumption is overcome only where evidence has been

admitted that is so prejudicial that, even with a limiting instruction, the defendant's right to a fair trial

is compromised.” United States v. Burns, 298 F.3d 523, 543 (6th Cir.2002).

        We have held, however, that a prosecutor “may not employ impeachment by prior

inconsistent statement ‘as a mere subterfuge to get before the jury evidence not otherwise

admissible.’” Apanovitch v. Houk, 466 F.3d 460, 485 (6th Cir. 2006). As Judge Posner has




                                                     7
explained, this Rule prevents prosecutors from bringing in through the back door hearsay evidence

that could not enter through the front:

       [I]t would be an abuse of the rule, in a criminal case, for the prosecution to call a
       witness that it knew would not give it useful evidence, just so it could introduce
       hearsay evidence against the defendant in the hope that the jury would miss the subtle
       distinction between impeachment and substantive evidence-or, if it didn't miss it,
       would ignore it. The purpose would not be to impeach the witness but to put in
       hearsay as substantive evidence against the defendant, which Rule 607 does not
       contemplate or authorize.

United States v. Webster, 734 F.2d 1191, 1192 (7th Cir. 1984).

       Under the Seventh Circuit’s formulation of this rule, whether impeachment evidence may

be admitted hinges upon whether the prosecutor “knew” that a witness would not provide helpful

testimony. Id. Similarly, the Fifth Circuit holds that “[t]he prosecution . . . may not call a witness

it knows to be hostile for the primary purpose of eliciting otherwise inadmissible impeachment

testimony, for such a scheme merely serves as a subterfuge to avoid the hearsay rule.” United States

v. Hogan, 763 F.2d 697, 702 (5th Cir. 1985) (rev’d on other grounds). The Fourth Circuit, however,

has criticized this subjective standard as requiring a judge “to crawl inside the prosecutor's head to

divine his or her true motivation.” See United States v. Ince, 21 F.3d 576, 580 (4th Cir. 1994).

Accordingly, that circuit applies a familiar objective standard to determine whether or not the

prosecution may present impeachment evidence to the jury:

       [I]n determining whether a Government witness' testimony offered as impeachment
       is admissible, or on the contrary is a “mere subterfuge” to get before the jury
       substantive evidence which is otherwise inadmissible as hearsay, a trial court must
       apply Federal Rule of Evidence 403 and weigh the testimony's impeachment value
       against its tendency to prejudice the defendant unfairly or to confuse the jury.

Id.




                                                  8
        We do not need to determine, however, which of these standards to apply to the instant case,

as Gregg’s unsworn statements are admissible under either test. Under the Fifth and Seventh

Circuit’s subjective test, we must ask whether the prosecution knew that Gregg Letner would not

provide “useful evidence” in his testimony, Webster, 734 F.2d at 1192. Despite his unwillingness

to name Defendant as his accomplice, however, Gregg’s testimony provided the prosecution with

a wealth of valuable evidence. Gregg provided a very detailed description of the bank robberies

Defendant was charged with, including the clothes he and his accomplice wore, the manner in which

they disguised themselves and the means by which they escaped. Much of this testimony confirmed

statements by the Letner brothers’ girlfriends, who testified about incriminating statements made by

both brothers, and about the clothes they routinely wore. Because this Court affords wide deference

a district judge’s evidentiary ruling, Gibson, 271 F.3d at 254, under a subjective standard, the district

court did not abuse its discretion by permitting Gregg to testify given the usefulness of the

uncontroversial portions of his testimony to the prosecution. See Webster, 734 F.2d at 1192.

        The impeachment evidence against Defendant was also admissible under the objective, Rule

403 balancing test. Under that test, evidence shall only be excluded when “its probative value is

substantially outweighed by the danger of unfair prejudice.” Fed.R.Evid. 403 (emphasis added).

“Because appellate courts work with a record which cannot fully convey a trial's nuances, dynamics

and atmosphere, they have a limited capacity to review the balance struck by the trial court.

Consequently, we will not reject a trial court's balancing unless the ‘substantial prejudice’ clearly

outweighs the ‘probative value.’ ” United States v. Chambers, 441 F.3d 438, 456 (6th Cir. 2006)

(quoting United States v. Swift, 809 F.2d 320, 323 (6th Cir.1987)). Moreover, as “the prejudice to

be weighed is the unfair prejudice caused by admission of the evidence. Evidence that is prejudicial


                                                   9
only in the sense that it paints the defendant in a bad light is not unfairly prejudicial pursuant to Rule

403.” Id. (quoting United States v. Sanders, 95 F.3d 449, 453 (6th Cir.1996) (emphasis in original)).

        Admittedly,    Gregg     Letner’s    unsworn     statements    were    highly prejudicial      to

Defendant—Gregg specifically named Defendant as his accomplice in the bank robberies.

Nevertheless, when a jury is given a limiting instruction regarding its consideration of impeachment

evidence, we have held that such an instruction limits the likelihood of unfair prejudice to the

Defendant. See United States v. Foster, 376 F.3d 577, 592 (6th Cir. 2004). On the other side of the

scale, Gregg Letner testified in great detail, and with remarkable candor, regarding his role in the

bank robberies. It was only after hours of such testimony that he suddenly claimed that he did not

know the answer to a question. Given the credibility which Gregg had established during his prior

testimony, the jury might have been confused by the sudden uncertainty of an otherwise credible

witness. Accordingly, the impeachment evidence offered by the prosecution is probative insofar as

it communicated to the jury that they should not view Gregg’s testimony regarding his accomplice

as credible.

        In light of the impeachment evidence’s probative value, and the limiting instruction’s effect

in reducing its prejudicial value, we conclude that the district court did not clearly err in admitting

the prosecution’s impeachment evidence. Regardless of how we may have decided this question in

the first instance, on appeal, “‘we must look at the evidence in the light most favorable to its

proponent, maximizing its probative value and minimizing its prejudicial effect.’” Newsom, 452

F.3d at 603 (quoting United States v. Bonds, 12 F.3d 540, 567 (6th Cir. 1993)). Evaluating the

evidence in such a light, we hold that the district court did not abuse its discretion under the Federal

Rules of Evidence by admitting Gregg’s prior unsworn statement.


                                                   10
C.        Defendant’s Due Process Claim

          Finally, relying on this Court’s decision in United States v. Shoupe, 548 F.2d 636 (6th Cir.

1977), Defendant argues that admitting Gregg Letner’s prior unsworn statement would violate the

Due Process Clause. In Shoupe, we held that a criminal defendant was denied a fair trial when the

prosecutor, via a series of eighteen questions ostensibly asked to impeach a witness, recited the

“entire substance” of the witness’ prior unsworn statement to police. Id. at 640–41. According to

Shoupe, “the recitation by the prosecutor of the entire substance of a witness's disavowed, unsworn

prior statements, which, if credited by the jury, would be sufficient to sustain a conviction, abridged

defendants' right to a fair trial in violation of the Due Process Clause of the 5th Amendment.” Id.

at 644.

          We do not deny that Shoupe is superficially similar to the instant case. Both involve prior

unsworn statements which, if believed by a jury, would be sufficient to sustain a conviction. Shoupe,

however, distinguished its facts from those in United States v. Harris, 523 F.2d 172 (6th Cir. 1975),

where we permitted impeachment evidence to be admitted in light of a jury instruction properly

limiting the use of this impeachment evidence. Id. at 175. Shoupe did not hold, and we do not hold

today, that a limiting instruction will save evidence which is “so prejudicial that, even with a limiting

instruction, the defendant's right to a fair trial is compromised.” Burns, 298 F.3d at 543.

Nevertheless, the distinction between a jury which is properly instructed, and one which is not, was

significant in Shoupe, 548 F.2d at 643, and it is significant in the instant case as well.

          Indeed, the prior unsworn statement in this case is substantially similar to those which we

found admissible in Harris. There, we upheld the admission of two witness’ prior unsworn

statements that the Harris defendant had been their accomplice during a bank robbery. Id. at


                                                   11
174–75. After those witnesses repudiated their prior unsworn statements at trial, we permitted those

repudiations to be impeached by the witness’ unsworn statements, noting that the district judge

properly instructed the jury. Id. at 175. The rule we announced in Harris is no less applicable to

Gregg Letner. Gregg made prior unsworn statements identifying his accomplice in two bank

robberies; he repudiated those statements, and was impeached by them. Subsequent to this

impeachment, the jury was properly instructed as to the purpose for which they could use the

impeachment evidence. Accordingly, we hold that the district court did not violate due process by

admitting Gregg Letner’s unsworn statements.

                                         CONCLUSION

       Both Gregg Letner’s prior sworn statement and his prior unsworn statement were properly

admitted. Accordingly, we AFFIRM Defendant’s conviction.




                                                12
