                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                      March 28, 2008
                      UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                        Clerk of Court
                                   TENTH CIRCUIT


 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                         No. 07-4128
 v.                                              (D.C. No. 2:06-CR-384-DAK)
                                                           (D. Utah)
 RAOUL MORENO,

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before TACHA, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
KELLY, Circuit Judge.


      Defendant-Appellant Raoul Moreno appeals from his conviction for

distributing five grams or more of methamphetamine, 21 U.S.C. § 841(a)(1), and

for carrying a firearm during and in relation to a drug trafficking crime, 18 U.S.C.

§ 924(c)(1)(A). Mr. Moreno was sentenced to 180 months’ imprisonment

followed by 60 months’ supervised release. On appeal, he argues that the district

court improperly instructed the jury that it could not consider a prior inconsistent

statement as substantive evidence unless the statement was made under oath. We


      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we

affirm.



                                    Background

      On May 5, 2006, Detective Roger Niesporek, accompanied by a

cooperating state defendant, sought to purchase two ounces of methamphetamine

and a firearm from Amber Ward. The detective saw a suspect, who he identified

at trial as Mr. Moreno, walking on the sidewalk near Ms. Ward’s home who

motioned them to follow him. While driving by, the detective watched Mr.

Moreno cross a grassy area and pull out of his pocket what appeared to be a gun,

look at it, and then return it to his pocket. The cooperating state defendant and

the detective parked in front of a market where Mr. Moreno approached the car

and sat in the rear seat on the driver’s side. The detective was seated in the

passenger seat of the car. He testified he could see Mr. Moreno clearly and

described his appearance as “a male Hispanic, about average height, a little

stocky, bigger guy . . . wearing a black basketball jersey, a black-and-white jersey

with the Number 32, and he had shorts on,” III R. at 60–61.

      Mr. Moreno then passed the detective a sandwich bag which was later

determined to contain methamphetamine, and the detective passed Mr. Moreno

$1,700 in cash. According to the detective, he saw what appeared to be the

outline of a semi-automatic handgun inside Mr. Moreno’s pocket. After the

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transaction, the detective testified that Mr. Moreno said, “if we wanted a 9

millimeter he could probably hook us up with one.” Id. at 70. The detective

further testified that he heard a metallic click that he believed to be the sound of a

firearm being de-cocked or the safety being engaged.

      The detective prepared a police report including a physical description of

Mr. Moreno. However, the police report did not mention Mr. Moreno’s tattoos.

During cross-examination of the detective, defense counsel asked Mr. Moreno to

show his extensive tattoos on his arms, legs and the back of his head. The

detective acknowledged that this omission was an error in his report.

      During the jury instruction conference, Mr. Moreno objected to jury

instruction 10 which provides:

            The testimony of a witness may be discredited by showing that
      the witness testified falsely concerning a material matter, or by
      evidence that at some other time before trial the witness said or did
      something, or failed to say something, which is inconsistent with the
      testimony the witness gave at this trial.

              If you find that a statement is inconsistent with the testimony
      the witness gave at this trial, you may consider the earlier statement
      in deciding the truthfulness and accuracy of the witness’ testimony in
      this trial. You may not, however, use it as evidence of the truth of
      the matter contained in that prior statement, unless that statement
      was made under oath. If the prior statement was made under oath,
      you may also consider it as evidence of the truth of the matter
      contained in that prior statement.

I R. Doc. 152 at 11 (emphasis added). Mr. Moreno objected to the emphasized

sentence arguing that it was not applicable because the instruction went to the


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detective’s testimony regarding his police report. The district court overruled the

objection on the grounds that the inconsistent statements could be used for

impeachment, but not substantive evidence—“you can’t get positive evidence out

of a prior statement that isn’t under oath [but] . . . [y]ou can impeach, you can

beat them to death with it.” IV R. at 13. During deliberation, the jury requested a

transcript of the detective’s testimony and the police report. II R. Doc. 151 at 1.

The court declined the request with the following instruction:

             No testimony of any witness is available during trial. It takes
       an enormous amount of time to prepare transcripts. You must rely on
       your memories.

              Police reports are not usually admitted into evidence and were
       not in this case. You have all the exhibits that were admitted. You
       must rely on your notes and collective memory.

Id. at 2.


                                     Discussion

       District courts must instruct the jury correctly on the law. Because Mr.

Moreno objected to the jury instruction concerning inconsistent statements, we

review the instruction de novo. United States v. Jameson, 478 F.3d 1204, 1211

(10th Cir. 2007). We review jury instructions as a whole and will reverse the

conviction only if we have “substantial doubt that the jury was fairly guided.”

United States v. LaVallee, 439 F.3d 670, 684 (10th Cir. 2006) (quotations

omitted).


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      Mr. Moreno argues that the jury was incorrectly instructed that a witness’s

prior statement could not be used as substantive evidence because the witness was

not under oath when he made the statement. Mr. Moreno contends that the

instruction precluded the jury from considering the detective’s omission of the

suspect’s tattoos from the police report as evidence of the suspect’s true identity

because police reports are not made under oath.

      Federal Rule of Evidence 801(d)(1) provides that certain statements are not

hearsay and therefore admissible as substantive evidence where “[t]he declarant

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

statement, and the statement is (A) inconsistent with the declarant’s testimony,

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

other proceeding, or in a deposition.” If a witness’s prior statements are not made

under oath, the statements “are admissible only to impeach or discredit the

witness and are not competent substantive evidence of the facts to which the

former statements relate.” United States v. Carter, 973 F.2d 1509, 1512 (10th Cir.

1992) (quotations omitted). In such a circumstance where the prior statement

does not comply with Rule 801(d)(1)(A), the jury must be instructed that the

statement is available for contradiction purposes only and not for the truth of the

statement. See id. at 1514; accord 1A Kevin F. O’Malley, Jay E. Grenig &

William C. Lee, Federal Jury Practice & Instructions—Criminal, § 15.06 (5th ed.

2000) (instruction that “[t]he earlier inconsistent or contradictory statements are

                                         -5-
admissible only to discredit or impeach the credibility of the witness and not to

establish the truth of these earlier statements” should be included in the charge

unless a Rule 801(d)(1)(A) statement is involved).

      Even assuming that the police report was a prior statement inconsistent

with the detective’s trial testimony, it was not a statement “given under oath . . .

at a trial, hearing, or other proceeding.” See Fed. R. Evid. 801(d)(1)(A).

Consequently, Mr. Moreno could only use the police report to contradict the

detective’s evidence and not as substantive evidence. The jury instruction

correctly and clearly stated the applicable law.

      Mr. Moreno’s argues that if a jury cannot rely on a witness’s prior

statement as substantive evidence of what occurred, a jury is simply left with the

witness’s statements at trial. He argues that the police report ought to be

considered evidence of what truly happened. In this case, the police report was

not admitted into evidence, and Mr. Moreno did not even proffer the police report

to the district court. See United States v. Angelos, 433 F.3d 738, 749–50 (10th

Cir. 2006) (district court did not abuse its discretion in refusing to admit police

reports as they would have been cumulative of the officer’s admission that he did

not include certain information in those reports). In any event, Mr. Moreno was

given broad latitude to emphasize the omission in the police report and did so




                                         -6-
during cross-examination and closing argument. The trial judge handled the

situation correctly.

                                     Entered for the Court


                                     Paul J. Kelly, Jr.
                                     Circuit Judge




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