                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                              MAY 16 2003
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,
                                                           No. 02-1304
 v.                                                         (D. Colo.)
                                                    (D.C. No. 00-CR-358-WM)
 RODNEY B. WHITE,

              Defendant-Appellant.


                            ORDER AND JUDGMENT              *




Before O’BRIEN and HOLLOWAY , Circuit Judges, and               LUNGSTRUM ,
District Judge ** .


      Defendant-Appellant Rodney B. White, then a prisoner in the United States

Penitentiary at Florence, Colorado, was charged in a one-count superceding

indictment with attempting to obtain contraband in prison in violation of 18

U.S.C. §§ 1791(a)(2) and (d)(1)(C). At trial, defendant White represented

himself, assisted by advisory counsel. The jury convicted him, and he was later


      *
          This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      **
        The Honorable John W. Lungstrum, United States District Judge for the District
of Kansas, sitting by designation.
sentenced to 41 months in prison, to be served consecutively with the sentence he

was already serving from the Northern District of Texas. He now appeals the

conviction, contending that the trial court erred in permitting the government to

use a witness’ hearsay statements as substantive evidence. Exercising jurisdiction

pursuant to 28 U.S.C. § 1291, we affirm.



                                 BACKGROUND

      During routine monitoring of telephone calls by inmates in the United

States Penitentiary in Florence, Colorado, prison officials learned that Gloria

Scott, the sister of defendant Rodney B. White, an inmate in the penitentiary, was

expected to visit her brother and attempt to introduce contraband into the prison

on March 27, 1998. Prison officials notified the FBI of this possibility, and FBI

Special Agent George Veltman conducted an investigation. Based on the

monitored telephone calls, he obtained a warrant to search Ms. Scott when she

arrived at the prison.

      Ms. Scott arrived at the prison, as expected, on March 27, 1998. After

checking-in, she was led to an isolated room where a female Bureau of Prisons

officer searched her pursuant to the warrant. During the search, Ms. Scott

produced two cellophane bags of M&M peanut candies that were later found to

contain small balloons of tar heroin. After the search, Agent Veltman advised


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Ms. Scott of her rights, she made a statement to Agent Veltman concerning her

attempt to introduce contraband into the prison, and she was arrested.

      Nearly two years after the incident, on March 8, 2000, Agent Martin

Daniell conducted an interview of defendant White concerning the incident at the

penitentiary. During the interview, defendant White made the following

inculpatory admissions: he owed a $300 gambling debt to another inmate named

Sorapuru, inmate Sorapuru told him that the debt would be forgiven if “certain

items” were to come into the prison, he contacted his sister (Gloria Scott) by

telephone and asked her to bring drugs into the prison, she agreed to do so, he

provided his sister with Lisa Sorapuru’s (inmate Sorapuru’s sister) phone number

because Ms. Sorapuru was to supply the narcotics to be brought into the prison,

and Ms. Sorapuru gave Ms. Scott the narcotics to be smuggled into the prison.

      Ms. Scott entered into a plea agreement with the government on July 19,

2001, to plead guilty to the introduction of contraband into the penitentiary on

March 27, 1998. Several days later she pled guilty to the charge in Lubbock,

Texas. The plea agreement, which bore the signatures of Ms. Scott and her

attorney in Texas, contained the necessary factual basis to support Ms. Scott’s

plea of guilty. It specified that she was at the penitentiary in Florence, Colorado,

to visit her brother on March 27, 1998; she had contraband in her possession

when she entered the prison; and she was bringing the contraband (i.e., heroin)


                                         -3-
into the prison at the behest of her brother, Rodney White, to whom she was to

deliver the contraband during the visit. The court in Texas accepted Ms. Scott’s

plea agreement and sentenced her to a term of imprisonment.

       Defendant White’s jury trial commenced on April 29, 2002, with defendant

White representing himself, assisted by advisory counsel.     1
                                                                  The next day, the trial

concluded and the jury found defendant White guilty as charged in the

superceding indictment. After the trial court sentenced defendant White, he filed

this appeal.



                                    DISCUSSION

       Defendant White contends that the court erred by allowing the government

to use the hearsay statement of his sister, Gloria White, to FBI Agent Veltman at

the time of her arrest as substantive evidence of defendant White’s guilty

knowledge of the offense. More specifically, defendant White contends that the

trial court erred by not instructing the jury that Ms. Scott’s statement was being

used only for impeachment purposes and by permitting the government to use Ms.

Scott’s statement as substantive evidence during closing argument.



       1
         The district court appointed Richard N. Stuckey to act as advisory or stand-by
counsel for defendant White during the trial; under the Criminal Justice Act, 18 U.S.C. §
3006A, this court thereafter appointed Mr. Stuckey to represent defendant White on
appeal.

                                           -4-
       The central issue at trial was whether defendant White instructed his sister

to bring drugs into the prison or whether she undertook the endeavor without her

brother’s knowledge. The government called Ms. Scott to the stand, in part, to

establish her brother’s knowledge of the drug transaction. On direct examination,

Ms. Scott testified that she went to the prison to visit her brother, but repeatedly

denied or stated that she honestly did not remember whether her brother made

telephone calls to her instigating the transaction. ROA, Vol. 3 at 31. When asked

whether she told Agent Veltman at the time of her arrest that her brother told her

on the telephone that he needed her help to bring drugs into the prison, she

testified that she could not recall making such statements because the incident

occurred five years earlier.   Id. at 39. When the government then asked her what

she did remember, she stated that she met a woman by the name of Lisa in

Florence, Colorado, Lisa told her that her brother owed a gambling debt that she

could help him pay off by bringing drugs into the prison, Lisa gave her some

balloons which she put into a candy package, and Lisa asked her to take the

heroin-filled balloons to the prison where Lisa’s brother (another inmate whose

name was unknown to Ms. Scott) would be waiting in the visiting room to receive

them. Id. at 38-43, 56-58. Ms. Scott also testified that her brother, defendant

White, never mentioned Lisa Sorapuru to her and that he had no knowledge of

what she was doing. Id. at 53, 56-58.


                                          -5-
       The government, knowing that Ms. Scott’s testimony conflicted with her

prior statement to Agent Veltman and with her plea agreement, then called Agent

Veltman to the stand. He testified that he interviewed Ms. Scott at the time of her

arrest. When the government asked Agent Veltman what Ms. Scott said during

that interview, defendant White objected to the question on hearsay grounds.              Id.

at 70. The government responded that the question was for impeachment

purposes and reworded the question as: “Did Gloria Scott tell you that she was

coming into the prison to give the drugs to somebody other than her brother?”              Id.

Defendant White did not object to the question as rephrased, and the witness

answered: “No, she did not. I asked her specifically who she was coming to

visit, and she signed in to visit her brother.”      Id. The government then asked a

second question: “Ms. Scott testified that someone else had made arrangements

for her to bring the drugs in during her testimony in chief. Did she tell you

something different on March 27, 1998?”           Id. at 71. Defendant White objected to

this question on hearsay grounds as well.         Id. The court initially sustained the

objection at the end of the first day of trial but the next morning the government

explained that it intended to use Agent Veltman’s testimony for impeachment

purposes only pursuant to Federal Rule of Evidence 613(b).           Id. at 71, Vol. 4 at

88. The court then reviewed Ms. Scott’s testimony at trial, determined it was

inconsistent with Agent Veltman’s proposed testimony of the events, reversed its


                                              -6-
ruling, and permitted Agent Veltman to testify regarding Ms. Scott’s prior

statements but only to impeach Ms. Scott’s testimony at trial pursuant to Rule

613(b). ROA, Vol. 4 at 146-47. The following discourse then occurred:

      Q.     (by prosecutor): Mr. Veltman, yesterday you testified with
             respect to a statement given to you by Gloria Scott on March
             27, 1998.
      A.     I remember, yes.
      Q.     And Ms. Scott testified yesterday that she couldn’t remember
             or had no memory of her telling you that she was bringing
             drugs into the prison for Rodney White. What is your memory
             of the statement that she gave you on March 27, 1998, with
             respect to that statement?
      A.     She told me, if I remember correctly, that she was going to
             come the previous week to deliver the drugs to her brother,
             Rodney White. It got postponed until the week that I met her
             when she was coming in to deliver them to him.
      Q.     And who was she to deliver the drugs to?
      A.     To Rodney White, her brother.
      Q.     She also had no memory with respect to communicating with
             Gloria Scott [sic]. Do you have a memory of that?
      A.     She advised me that she had communicated with her brother to
             – that he wanted her to bring them in. She also had been in
             touch with Lisa – she didn’t know her last name – to make
             arrangements to get the narcotics to her and also gave her
             instructions on how to put them in the M&M packs before she
             brought them into the prison.

Id. at 147-48.

      Under the circumstances, we conclude that the initial introduction of Ms.

Scott’s prior inconsistent hearsay statement for impeachment purposes was

proper. Under Rule 613(b), extrinsic evidence of a prior inconsistent statement

may be introduced to impeach a prior witness’ testimony, but may not be used as


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substantive evidence.   United States v. Mitchell , 113 F.3d 1528, 1532 (10th Cir.),

cert. denied , 522 U.S. 1063 (1997);   United States v. Denetclaw , 96 F.3d 454, 457

(10th Cir. 1996). Such evidence, however, is not admissible “unless the witness

is afforded an opportunity to explain or deny the same.” Fed. R. Evid. 613(b);

Anderson v. Charles, 447 U.S. 404, 408, 100 S. Ct. 2180, 65 L. Ed. 2d 222

(1980); United States v. Canterbury,    985 F.2d 483, 486 (10th Cir. 1993).

      In this action, when Ms. Scott was asked on direct examination whether she

recalled stating to Agent Veltman that her brother told her on the telephone that

he needed her help to bring drugs into the prison, she testified that she could not

remember if she made such statements because the incident occurred five years

earlier. She later testified that her brother did not know that she was attempting

to bring drugs into the prison. This testimony is directly inconsistent with the

statement that Ms. Scott allegedly made to Agent Veltman when she was arrested.

She was given an opportunity to explain or deny making the prior statement in

accordance with Rule 613(b). She testified that she could not remember making

the statement but confirmed that she remembered the events leading up to her

arrest. Thus, the trial court was correct in permitting the prosecution to use Ms.

Scott’s prior inconsistent statement to Agent Veltman in an attempt to impeach

Ms. Scott. See Mitchell , 113 F.3d at 1532 (holding that prior inconsistent

statement should have been admitted under similar circumstances).


                                          -8-
       Defendant White further argues on appeal that the trial court erred in not

providing the jury with a limiting instruction to the effect that the prior

inconsistent statement was to be considered only for impeachment purposes and

by permitting the prosecution to use Ms. Scott’s hearsay statements during its

closing argument as substantive evidence of defendant White’s knowledge of the

offense. 2 Defendant White, however, did not request a limiting instruction at the


       2
           During closing arguments, the prosecutor made several statements regarding
Ms. Scott’s statements to Agent Veltman. The prosecutor argued: “You heard Gloria
Scott testify and what she testified to wasn’t exactly what the statement was that she made
on March 27.” ROA, Vol. 4 at 165. The prosecutor then referenced Ms. Scott’s denial
that “Rodney White was the one she was going to visit” and stated to the jury:

       At any rate, George Veltman did take a statement from her, and you heard
       him on rebuttal tell you that Gloria Scott was coming into the prison to visit
       Rodney White and to give him the contraband. And she also told him that
       she received some money through the Western Union wire in which she
       received a couple hundred dollars to facilitate this effort.

Id. at 166.

Later, the prosecutor said:

       I would submit to you that the substantial step [for attempt] was the
       instructions to his sister to bring in the prohibited drug. You heard the
       statement of George Veltman to that effect, and you can read yourselves
       from the Government’s Exhibit 12 that that’s what happened in this case.
       And the – once that was set in motion, Gloria Scott was on her way to
       deliver these drugs to Rodney White, and there is no disputing the fact that
       the only one that Gloria Scott was going to visit was Rodney White.

Id. at 172.

       Finally, the prosecutor argued in rebuttal: “Gloria Scott said on two separate

                                            -9-
time the trial court decided to admit the evidence or at any other time and did not

object to the prosecution’s use of the evidence during its closing argument. As a

result, we may review these claims only for plain error.          United States v. Roberts ,

185 F.3d 1125, 1143 (10th Cir. 1999).

       Plain error review is appropriate even though defendant White proceeded at

trial pro se. The record indicates that the trial court thoroughly informed

defendant White of the nature of the charges, the complexity of the trial, and the

issues involved. The court also informed defendant White of the risks he was

assuming by proceeding pro se and attempted to persuade him that he should not

run the risk of doing so. Despite full knowledge of the potential risks, defendant

White opted to represent himself at trial with the help of advisory or stand-by

counsel. Thus, he “intelligently and voluntarily waived his Sixth Amendment

right of active participation and assistance of trial counsel.”       United States v.

Pinkey , 548 F.2d 305, 311 (10th Cir. 1977). By doing so, “he acquiesced in and

subjected himself to the established rules of practice and procedure in federal




occasions she brought the drugs in for Rodney White. I will leave it to you. Thank you.”
Id. at 176.

      For purposes of this order, we will presume that these comments establish that the
government used Ms. Scott’s hearsay statements as substantive evidence in its closing
argument to prove the offense.

                                            - 10 -
criminal trials.”   Id. As we have previously stated, a pro se criminal defendant is

entitled to no greater rights than a defendant represented by counsel:

       The hazards which beset a layman when he seeks to represent himself
       are obvious. He who proceeds pro se with full knowledge and
       understanding of the risks does so with no greater rights than a
       litigant represented by a lawyer, and the trial court is under no
       obligation to become an “advocate” for or to assist and guide the pro
       se layman through the trial thicket.

Id. (citations omitted).

       Under the plain error standard of review, there must be “(1) an ‘error,’ (2)

that is ‘plain,’ which means ‘clear’ or ‘obvious’ under current law, and (3) that

‘affect[s] substantial rights.’”   United States v. Fabiano , 169 F.3d 1299, 1303

(10th Cir. 1999)(quoting     Johnson v. United States , 520 U.S. 461, 467 (1997)).

For an error to impact substantial rights, typically “[i]t must have affected the

outcome of the district court proceedings.”     Olano , 507 U.S. at 734. Significantly,

the defendant bears the burden of proving that the error had such an effect.        Id. If

all three conditions are met, an appellate court may then exercise its discretion to

correct the forfeited error if it “seriously affects the fairness, integrity, or public

reputation of judicial proceedings.’”     Johnson , 520 U.S. at 467 (quoting    Olano ,

507 U.S. at 732).

       In this action, we are far from convinced that defendant White has satisfied

the first two prongs of the plain error analysis and established that the trial court

erred in not providing a limiting instruction       sua sponte or in not stopping the

                                           - 11 -
prosecution from referencing Ms. Scott’s prior inconsistent statements for

substantive purposes during its closing. The defendant may well have made a

tactical decision not to request a limiting instruction or object during closing

argument because to do so would have drawn undue attention to the evidence in

question. The trial court, therefore, would have undercut the defendant’s strategy

by inserting a limiting instruction on its own accord or stopping the prosecution

during closing argument.

      However, we need not address those prongs because it is clear that

defendant White has not met his burden of establishing that the alleged errors

impacted his “substantive rights.” That is, he has not established that the alleged

errors affected the outcome of the district court proceeding. The evidence at trial

establishing that defendant White knew his sister was bringing drugs to him in

prison was not limited to Ms. Scott’s statement to Agent Veltman at the time of

her arrest. FBI Agent Martin Daniell testified that defendant White confessed to

knowing about Ms. Scott’s actions. Specifically, Agent Daniell testified that

during an interview with defendant White nearly two years after the incident,

defendant White told him that he contacted his sister, Gloria Scott, by telephone

and asked her to bring drugs into the prison. Agent Daniell also testified that

defendant White told him that he provided his sister with Lisa Sorapuru’s phone

number, that Lisa and his sister had “hooked up,” and that his sister had been


                                        - 12 -
given the narcotics. In light of this other evidence properly admitted at trial, we

conclude that the arguably improper use of Ms. Scott’s testimony during closing

argument did not affect defendant White’s substantial rights or call into doubt the

underlying fairness of the entire trial.

       Moreover, in a case involving similar circumstances,     United States v.

Jamieson , 806 F.2d 949 (10th Cir. 1986), we declined to exercise our discretion

to correct alleged errors because the errors did not seriously affect “the fairness,

integrity, or public reputation of the judicial proceeding.”   Id. at 952. We reach a

similar conclusion here. In    Jamieson , the defendant was convicted of distributing

controlled substances.    Id. at 950. On appeal, one of his two grounds for reversal

concerned the government’s use of certain of his medical records.      Id. at 951.

Although the medical records were properly admitted to impeach a witness on

cross-examination, the defendant argued that the district court erred by permitting

the prosecution to later use the medical records during closing arguments as

substantive evidence to prove essential elements of the crimes charged and by not

instructing the jury that the medical records were being used only for

impeachment purposes.      Id. at 952-53. We disagreed. We first noted that our

review was limited to a plain error analysis because the defendant made no

specific objection at trial to the use of the medical records in the government’s

closing argument and did not ask for a limiting instruction. Under that analysis,


                                            - 13 -
we concluded that the medical records were properly admitted as evidence for

impeachment purposes and “any error resulting from their possible substantive

use was not so egregious as to require reversal.”   Id. at 952.

       In this action, Ms. Scott’s prior inconsistent statements were initially

admitted to impeach her. At trial, Ms. Scott testified that her brother had no

knowledge that she was attempting to bring drugs into the prison. This testimony

contradicted her prior statement to Agent Veltman at the time of her arrest at the

prison. Thus, the district court properly permitted Agent Veltman to testify as to

the prior inconsistent statements for the limited purpose of attempting to impeach

Ms. Scott. As in Jamieson , impeaching Ms. Scott’s testimony on the central issue

in the case would necessarily have suggested that the opposite of her testimony

was in fact the truth. Thus, any substantive use of Ms. Scott’s prior inconsistent

statements was not so egregious as to require reversal.

       We also conclude that the district court did not commit plain error in

failing to instruct the jury that it should consider Ms. Scott’s prior inconsistent

statements only for impeachment purposes. The district court provided the jury

with a general instruction regarding bias and impeachment. Also, the district

court instructed the jury that statements, arguments, and questions by counsel are

not evidence. Considering the circumstances, the district court did not commit

plain error in failing to provide a separate limiting instruction regarding Ms.


                                           - 14 -
Scott’s hearsay statement. As we stated in   Jamieson , failure to give a limiting

instruction is generally held not to be plain error. 806 F.2d at 953 (quoting

United States v. Bermudez , 526 F.2d 89 (2d Cir. 1975)(citation omitted)).



                                   CONCLUSION

      In sum, we find no plain error in not providing a limiting instruction

regarding Ms. Scott’s hearsay statement or in the prosecutor’s reference to Ms.

Scott’s prior inconsistent statements in his closing argument. The judgment of

the district court is therefore AFFIRMED.



                                                     Entered for the Court


                                                     John W. Lungstrum
                                                     District Judge




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