                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 07-1045
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of North Dakota.
Chance Lee Wade Eagle,                   *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: June 12, 2007
                                 Filed: August 21, 2007 (corrected 8/29/07)
                                  ___________

Before LOKEN, Chief Judge, COLLOTON and ARNOLD, Circuit Judges.
                              ___________

ARNOLD, Circuit Judge.

       After Chance Eagle was convicted of involuntary manslaughter in Indian
country, see 18 U.S.C. §§ 1112, 1153, he appealed, raising a plethora of evidentiary
issues. We affirm.

                                             I.
      Mr. Eagle and three teenage women were in his vehicle when it collided with
another vehicle, killing its driver. At trial, the government maintained that Mr. Eagle
was driving his vehicle while intoxicated when the accident occurred; Mr. Eagle


                                          1
sought to prove that one of the teenagers was driving. Mr. Eagle contends that the
district court should have allowed him to impeach two government witnesses with
extrinsic evidence of their out-of-court statements that one of the teenagers was
driving.

      At trial, Don Grey Day (an employee at the Prairie Knights Casino Quik Mart
where Mr. Eagle and the teenagers stopped at least twice before the accident) testified
that Mr. Eagle was driving the vehicle shortly before the collision. Katrina Donahue,
one of the teenagers in Mr. Eagle's vehicle, testified that Mr. Eagle was driving when
the accident occurred. Mr. Eagle sought to show that both of these statements were
inconsistent with out-of-court statements that the witnesses had made.

      Mr. Eagle maintains that on the day of the accident Mr. Grey Day told Linda
Eagle (Mr. Grey Day's co-worker and Mr. Eagle's aunt) that he saw one of the
teenagers driving Mr. Eagle's vehicle. Mr. Eagle also asserts that Jay Soft overheard
Ms. Donahue tell her mother that one of the other teenagers was driving. Upon
questioning from Mr. Eagle's counsel, both Mr. Grey Day and Ms. Donahue denied
making the prior inconsistent statements. Mr. Eagle then sought to impeach these
witnesses by having Ms. Eagle and Ms. Soft testify that the witnesses had, in fact,
made the inconsistent statements. The trial court ruled, however, that the evidence
was inadmissible hearsay.

       The Federal Rules of Evidence define hearsay as an out-of-court statement
offered to prove the truth of the matter asserted. Fed. R. Evid. 801(c). Since
Mr. Eagle offered the testimony of Ms. Eagle and Ms. Soft to impeach the government
witnesses by showing that they had made statements contrary to their trial testimony,
not to establish the truth of those prior inconsistent statements, the excluded evidence
was not hearsay. And although Federal Rule of Evidence 613(b) permits the
admission of extrinsic evidence of prior inconsistent statements only where the
witness is "afforded an opportunity to explain or deny" the statement and "the

                                           2
opposite party is afforded an opportunity to interrogate the witness," these
preconditions were satisfied here. We do not see, moreover, any basis for concluding
that the probative value of the evidence was outweighed by the danger of unfair
prejudice or the other considerations that are set out in Federal Rule of Evidence 403.

       The government argues that the court properly excluded the evidence because
it was admissible only for impeachment purposes and Mr. Eagle was really seeking
to introduce it as substantive evidence on the question of who was driving the vehicle.
But this argument is based on pure conjecture. Furthermore, the government does not
direct us to any case that holds that a party's subjective motive for introducing this
kind of evidence is relevant to the question of its admissibility, and we do not see how
it can be. The trial court therefore erred in excluding the extrinsic evidence.

       A mere showing of error does not, of course, entitle Mr. Eagle to a new trial;
he must also establish that the error harmed him. An error is harmless if we conclude
that "no substantial rights of the defendant were affected and that the error did not
influence or had only a very slight influence on the verdict." United States v. Wilcox,
50 F.3d 600, 603 (8th Cir. 1995).

       Had the evidence been admitted, the government would have been entitled to
an instruction that the jury could use the evidence only in judging the witnesses'
credibility and not as substantive evidence of who was driving the vehicle. In
addition, the value of Ms. Eagle's impeachment testimony would itself have been
diminished by evidence that brought her own credibility into question. Ms. Eagle
would have testified that Mr. Grey Day made his statement to her during a third visit
that the defendant and the teenagers made to the Quik Mart. But none of the other
witnesses testified that there was a third visit and the surveillance video from Quik
Mart, which the government played for the jury, does not reveal any such visit.




                                           3
       Even if the evidence would have affected the jury's view of the credibility of
Mr. Grey Day and Ms. Donahue, neither of these witnesses was essential to the
government's case. Mr. Grey Day did not address the key issue before the jury,
namely whether Mr. Eagle was driving at the time of the collision; he testified that he
saw Mr. Eagle driving the car at the Quik Mart fifteen miles from the crash site. And
the two other teenagers in Mr. Eagle's car corroborated Ms. Donahue's testimony that
the defendant was driving at the time of the accident. In addition, the government
offered testimony from another witness, Margaret Gates, from which the jury could
infer that Mr. Eagle was the driver immediately prior to the collision. We therefore
conclude that excluding the evidence was harmless.

       Mr. Eagle also argues that we should reverse the district court's judgment
because the court's errors violated his constitutional right under the fifth and sixth
amendments to present witnesses in his defense. See United States v. Turning Bear,
357 F.3d 730, 741 (8th Cir. 2004). Assuming without deciding that a constitutional
violation did occur, we are satisfied that the errors were "harmless beyond a
reasonable doubt." See Chapman v. California, 386 U.S. 18, 24 (1967). Because, as
we have already said, the evidence of Mr. Eagle's guilt was strong and the probative
weight of the excluded evidence was relatively weak, we are confident that the
"error[s] complained of did not contribute to the verdict obtained." See id.

                                           II.
       Mr. Eagle maintains that the trial court erred in excluding evidence that his
brother was acquitted of a criminal offense in a prior trial. He contends that his sixth
amendment right to confront witnesses was violated when he was prevented from
using this evidence to cross-examine the two teenagers who, along with Ms. Donahue,
were riding in Mr. Eagle's vehicle and testified that he was driving. He also argues
that the court's ruling violated Rule 613, which allows defendants to impeach adverse
witnesses based on their bias. See United States v. Abel, 469 U.S. 45, 51 (1984).



                                           4
        The confrontation clause guarantees defendants an opportunity to show the bias
of the witnesses against them, see Abel, 469 U.S. at 50, and Mr. Eagle contends that
he was prevented from showing that the two teenagers had a motive to implicate him
in a crime. One of the teenagers had previously accused Mr. Eagle's brother, Shiloh,
of sexual assault, and both of them had testified against Shiloh at the trial in which he
was acquitted of the charge. Mr. Eagle argues that he should have been permitted to
cross-examine the two teenagers about the acquittal to support an inference that they
were angry about Shiloh being acquitted and therefore wanted to punish him by
falsely testifying against his brother. Mr. Eagle also argues that Shiloh's acquittal
could have created a wholly different inference, i.e., that the teenagers had falsely
testified against Shiloh, who was innocent, and that they might therefore be likely to
do so against his brother, Mr. Eagle, because they might have a bias against the whole
family.

        The court permitted Mr. Eagle to question the teenagers about any grudge that
they harbored because of the alleged sexual assault. He was also able to elicit facts
on cross-examination to support his theory that the teenagers testified falsely in his
trial to exact revenge against his brother. On cross-examination, Mr. Eagle brought
out the nature of the supposed offense, the fact that one of the teenagers was the
accuser, and the fact that the other teenager had testified against Shiloh at trial. As
Mr. Eagle notes in his brief, one of the teenagers also "acknowledged" during cross-
examination that she and the other teenager had "discussed the complaint against
Shiloh" the night before.

       In excluding the acquittal, the district court stated that counsel had "gone far
enough if your purpose is to show a potential for bias." Mr. Eagle argues that
evidence of the acquittal would have provided additional support for his argument that
the teenagers had a motive to testify against him. But the teenagers had a motive to
do so from the supposed crime itself regardless of the outcome of Shiloh's trial: Even
if Shiloh had been convicted, the teenagers could still have been upset about the crime

                                           5
or about Shiloh's punishment. Evidence of Shiloh's acquittal would have added very
little of substance to Mr. Eagle's attempt to show that his accusers wanted to punish
him.

      As to any inference that the teenagers committed perjury at Shiloh's trial,
Mr. Eagle himself admits on appeal that that is hardly the only inference that the
acquittal would support. The jury might have been in a merciful mood or the verdict
might have reflected the instructions given to the jury. The truth is that there is
simply no way to know why the jury acquitted Shiloh. See United States v. Beal,
430 F.3d 950, 955-56 (8th Cir. 2005). We therefore think that the excluded evidence
would have made virtually no contribution to determining whether the witnesses
perjured themselves at Shiloh's trial.

       We agree with Mr. Eagle that the confrontation clause guarantees defendants
the right to expose the possible bias of the witnesses against them, but we reject his
constitutional claim because we believe that he had an ample opportunity to discredit
the witnesses' testimony by cross-examining them regarding the sexual assault charge.
See Delaware v. Fensterer, 474 U.S. 15, 20-22 (1985) ( per curiam); United States v.
Hall, 171 F.3d 1133, 1146 (8th Cir. 1999). By allowing Mr. Eagle to explore the topic
of Shiloh's crime, the court provided him with "other ways to obtain the effect that the
excluded examination would have allegedly established." United States v. Brown, 110
F.3d 605, 611 (8th Cir.1997).

       We also reject Mr. Eagle's contention that he was entitled to a new trial because
the court's ruling violated evidentiary rules: For the reasons given above, we believe
that Shiloh's acquittal had little probative value and thus any evidentiary error in the
exclusion of this evidence was harmless.




                                           6
                                            III.
        Mr. Eagle asserts that the district court erred by permitting the government to
introduce hearsay statements from two witnesses. Because Mr. Eagle did not object
to this evidence in the district court, we review only for plain error. See United States
v. Thompson, 403 F.3d 533, 537 (8th Cir. 2005).

                                         A.
      Mr. Eagle maintains that the district court erred in admitting hearsay evidence
during the government's cross-examination of Joseph Cheauma.

        After the collision, the teenagers walked to Mr. Cheauma's home and asked for
a ride. At trial, Mr. Eagle called Mr. Cheauma as a witness, and he testified that as he
was giving the teenagers a ride they told him that Mr. Eagle had been involved in a
car wreck. Mr. Cheauma said that he then searched for Mr. Eagle and found him lying
in a ditch. On cross-examination, Mr. Cheauma stated that the teenagers had told him
that Mr. Eagle was driving when the accident occurred.

       The government contends that the court properly admitted Mr. Cheauma's
hearsay testimony that the teenagers said Mr. Eagle was the driver because
Mr. Cheauma's testimony that the teenagers said that Mr. Eagle was involved in a car
wreck opened the door to the government's inquiry about exactly what the teenagers
had said. Of course, if defense counsel had asked Mr. Cheauma about who the
teenagers said was driving, then the government certainly could have further inquired
into this issue on cross-examination. But counsel made no such inquiry here. The
government correctly points out that under our case law the trial court may admit
otherwise inadmissible evidence to clarify an issue brought up in direct examination.
See United States v. Beason, 220 F.3d 964, 968 (8th Cir. 2000). We are highly
skeptical, however, about whether Mr. Cheauma's testimony opened the door to the
government's inquiry because Mr. Cheauma's statement about what the teenagers said
was not offered to prove their views on the car wreck or even that there had been a

                                           7
collision, but rather to explain Mr. Cheauma's actions leading up to him finding
Mr. Eagle.

       But even if we were to conclude that the court had plainly erred in admitting the
testimony, any error in its admission was harmless. Mr. Eagle cannot establish
prejudice here because of the limited value of Mr. Cheauma's statements about what
the teenagers told him and the significant amount of evidence tending to show that Mr.
Eagle was the driver. Mr. Cheauma's statements provided some small support to the
government's contention that Mr. Eagle was the driver, but the government already
had considerable evidence that that was so.

                                            B.
       Mr. Eagle contends as well that the court erred in allowing the government to
introduce inadmissible hearsay testimony during its direct examination of Officer
DeLong. The government questioned the officer about his conversations with the
three teenagers at the Fort Yates hospital. Upon being asked whether the teenagers
identified the driver and occupants of the vehicle in that conversation, Officer DeLong
responded that they did. The government then asked whether the teenagers' stories
were consistent and he responded that they were.

       We agree with Mr. Eagle that Officer DeLong's testimony carried with it the
inference that the teenagers had said that Mr. Eagle was driving his vehicle when the
accident occurred. The testimony was therefore hearsay and it was not admissible as
a prior consistent statement of the teenagers under Rule 801(d)(1)(B) because there
was no claim that the teenagers had recently fabricated their testimony. But we are
totally disinclined to give relief on this basis because we don't think that the error was
"clear" or "obvious" and because it is not the kind of error that "seriously affect[s] the
fairness, integrity, or public reputation of judicial proceedings." United States v.
Olano, 507 U.S. 725, 734, 737 (1993) (quoting United States v. Atkinson, 297 U.S.
157, 160 (1936)). We detect no plain error here.

                                            8
                                           IV.
        Mr. Eagle maintains that the district court committed plain error by admitting
evidence of his blood-alcohol concentration, which, he asserts, resulted from an
unconstitutional warrantless search. The government argues that Mr. Eagle waived
review of this issue because he did not move to suppress this evidence before or
during trial. We have not yet decided whether the failure to raise a suppression matter
in a timely pretrial motion precludes plain error review. See United States v. Frazier,
280 F.3d 835, 845 (8th Cir. 2002), cert. denied, 535 U.S. 1107, 536 U.S. 931, 537
U.S. 911 (2002); see also Thompson, 403 F.3d at 537 n.4. Assuming without
deciding, however, that plain error review is available, we find no merit in Mr. Eagle's
claim of error.

       As we have said, a plain error must be one that is clear and obvious. But it is
far from clear or obvious that there was a constitutional violation in the collection of
Mr. Eagle's blood sample. To the contrary, the record contains a great deal of
evidence that the search was proper.

       Police may conduct a warrantless search by requiring an individual to submit
to a blood test where they have probable cause to do so and exigent circumstances
exist. Schmerber v. California, 384 U.S. 757, 769-71 (1966). Probable cause exists
"where the known facts and circumstances are sufficient to warrant a man of
reasonable prudence in the belief that contraband or evidence of a crime will be
found." Ornelas v. United States, 517 U.S. 690, 696 (1996). Exigent circumstances
exist when there is a risk of destruction of evidence, including a risk that a defendant's
blood-alcohol content will dissipate because "the body functions to eliminate [alcohol]
from the system." Schmerber, 384 U.S. at 770-71.

       The record in this case would clearly support a finding of probable cause.
Mr. Grey Day testified that he contacted Prairie Knights Casino security officers to
report that Mr. Eagle was driving while intoxicated and that he later advised a police

                                            9
officer at the scene of the accident that he had seen Mr. Eagle intoxicated earlier.
Furthermore, marks on the roadway suggested that the two vehicles had collided in
one lane of travel, which is consistent with an accident caused by drunk driving.

       The record also contains substantial evidence of exigent circumstances. Nearly
two and a half hours passed between the accident and the time when the blood was
drawn. Requiring the officer to get a warrant for the evidence would have resulted in
a greater delay, allowing for the further dissipation of alcohol in Mr. Eagle's blood and
creating a risk that Mr. Eagle would be unavailable for having his blood drawn upon
the officer's return.

       Since there is a great deal in this record that would support a finding that the
warrantless search was valid, we can hardly conclude that it was plain error to admit
the evidence that the search turned up.

                                            V.
      Finally, Mr. Eagle argues that the district court erred in admitting testimony
from Ms. Gates about seeing a vehicle that the government contended belonged to Mr.
Eagle. Ms. Gates testified that she observed a vehicle with dealer plates carrying three
persons traveling at a high rate of speed toward the place where the collision occurred.
Mr. Eagle contends that the district court should have excluded this testimony under
Rule 403, which allows the court to exclude evidence that is more unfairly prejudicial
than probative. Mr. Eagle maintains that the testimony was speculative because Ms.
Gates could not provide a full description of the car and because she saw only three
occupants, while Mr. Eagle’s vehicle had four people in it.

      We conclude that the district court did not abuse its discretion in admitting the
evidence, because it was not improperly speculative. See United States v. Claxton,
276 F.3d 420, 422-23 (8th Cir. 2002). The jury could conclude from Ms. Gates’s
testimony that the vehicle that she observed was Mr. Eagle's vehicle. Both the vehicle

                                           10
Ms. Gates saw and Mr. Eagle’s vehicle had dealer plates. Ms. Gates’s observation of
three persons in the vehicle coincided with the testimony of one of the teenagers that
she was sleeping in the back seat of the car (and therefore was not visible to
onlookers). Ms. Gates’s observation, moreover, was consistent with the timing of the
collision: She testified that shortly after seeing the vehicle, she heard a loud noise
and, a few minutes later, she observed an ambulance traveling in the direction from
which the noise had come. The evidence was clearly admissible and it was up to the
jurors to give it whatever weight they thought it deserved.

                                         VI.
      For the reasons stated, we affirm the district court's judgment.
                       ______________________________




                                         11
