                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                   No. 06-1381
                                   ___________

United States of America,             *
                                      *
           Plaintiff - Appellee,      *
                                      *     Appeal from the United States
       v.                             *     District Court for the Eastern
                                      *     District of Missouri.
Tyrese D. Hyles, also known as        *
Little Ty,                            *
                                      *
           Defendant - Appellant.     *
                                 ___________

                            Submitted: October 19, 2006
                                Filed: March 21, 2007
                                   ___________

Before MELLOY, BENTON, and SHEPHERD, Circuit Judges.
                           ___________

MELLOY, Circuit Judge.

       Tyrese Hyles was indicted on murder-for-hire charges pursuant to 18 U.S.C.
§ 1958(a) and conspiracy to commit murder-for-hire charges pursuant to 18 U.S.C.
§ 2. The government sought the death penalty. After hearing the evidence at trial,
a jury convicted Hyles of both charges. At sentencing, the jury declined to sentence
Hyles to death, instead sentencing him to life in prison without the possibility of
parole. Hyles appeals his conviction, challenging the district court’s1 denial of his
motion to suppress a videotaped statement and several other evidentiary rulings by
the court. We affirm.

I.    Background

      The facts of this case are set forth in our panel’s opinion in United States v.
Cannon, 475 F.3d 1013 (8th Cir. 2007). We repeat the facts here only as relevant to
Hyles’s claims on appeal.

       In the early morning hours of August 21, 2000, police found Coy Smith shot
to death in his bed. Smith was a private citizen who had been working with law
enforcement in the area to make controlled drug purchases from local drug dealers.
On August 10, 2000, Smith had testified against Hyles at a preliminary hearing in a
state drug case. At the time of Smith’s murder, Hyles was being held in Pemiscot
County Jail in Caruthersville, Missouri pending trial in the state drug prosecution.
Co-defendant Amesheo Cannon, a close friend of Hyles, lived in Memphis,
Tennessee, where he was under parole supervision. Tonya Johnson Hyles (“Tonya”),
Hyles’s wife, lived in Caruthersville, Missouri.

       Following Smith’s testimony, David Carter, Hyles’s cellmate in the Pemiscot
County Jail, agreed to murder Smith in exchange for having Tonya bail him out of
jail. Tonya bailed Carter out that same day, using a Pontiac Parisienne she and Hyles
owned as collateral. Carter never killed Smith; instead, Hyles and Cannon agreed that
Cannon would drive from Memphis, Tennessee to Caruthersville, Missouri for the
purpose of killing Smith. In exchange for Smith’s murder, Cannon received the
Pontiac Parisienne.


      1
       The Honorable Henry Edward Autrey, United States District Judge for the
Eastern District of Missouri.

                                        -2-
      A.     Charges

       On June 5, 2001, Hyles was charged in a federal complaint with the murder-
for-hire of Coy Smith. Tonya was also charged in the complaint. Hyles was arrested
on June 11, 2001, and detained in Jackson, Missouri on federal charges. An attorney
made an appearance in federal court on Hyles’s behalf. Shortly thereafter, the
Pemiscot County prosecutor in Caruthersville, Missouri issued state charges against
Hyles for the murder of Smith. On June 15, 2001, the federal complaint was
dismissed without prejudice in favor of the state charges, and Hyles was brought into
state custody in Caruthersville. While en route to Caruthersville, Hyles indicated that
he was interested in talking to the transporting officers, and he ultimately made a
videotaped statement.

       On October 18, 2001, a federal grand jury returned an indictment against Hyles
and co-defendant Cannon for murder-for-hire and conspiracy to commit murder-for-
hire, in violation of 18 U.S.C. §§ 1958(a) and 2. Hyles remained in state custody in
Caruthersville. On December 13, 2001, the government filed a superseding
indictment, which restated and refined the same charges against Hyles and Cannon.
Hyles was brought into federal custody on December 17, 2001. The government filed
a second superseding indictment against Hyles and Cannon on November 21, 2002,
adding grand jury findings of aggravated circumstances. The government sought the
death penalty against both defendants. On June 27, 2003, the court severed the
parties for trial. Hyles’s state charges remained pending until June 2003.

      B.     Motion to Suppress Statements

      On February 11, 2002, Hyles filed a Motion to Suppress Statements. In his
motion, Hyles argued that “any alleged statements the Government intend[ed] to use”
against him were involuntary, were obtained in violation of the Fifth Amendment of
the United States Constitution, and were the result of an unlawful arrest. The court

                                         -3-
held a suppression hearing on June 27, 2002, and heard testimony regarding the
videotaped statement Hyles gave during his transportation from federal to state
custody on June 15, 2001, and the events leading up to the statement. Hyles did not
present any testimony in support of his motion at the suppression hearing.

       During the hearing, Caruthersville Police Sergeant Robert Lockett and Officer
Tina Cruz, an agent with the Bootheel Drug Task Force, testified to the following.
On June 15, 2001, Lockett and Cruz transported Hyles from federal custody in
Jackson, Missouri to the custody of the Pemiscot County Sheriff in Caruthersville,
Missouri. En route to Caruthersville on Interstate 55, Hyles indicated that he wanted
to talk to Lockett in an attempt to help his wife, Tonya, who was also facing federal
charges in the case. Lockett told Hyles that he could not talk to him and attempted
to contact the Assistant United States Attorney and the Pemiscot County prosecutor
familiar with the case for legal advice. Because Hyles continued to ask to talk to him,
Lockett pulled his vehicle to the shoulder of the highway and read Hyles his Miranda
rights, including his right to talk to a lawyer. Hyles stated he understood his rights
and persisted in his desire to talk to Lockett. However, no questions regarding
Smith’s murder were asked of Hyles at this time. Hyles did not request an attorney
or invoke any other rights.

        After talking to an officer of the Missouri State Highway Patrol, Lockett
decided that Hyles could make a videotaped statement at the Highway Patrol office
in Sikeston, Missouri. At the Highway Patrol office, Cruz obtained a Missouri State
Highway Patrol notification and waiver of rights form. Cruz advised Hyles of his
Miranda rights a second time, and Hyles executed the form, waiving his rights. While
executing the waiver form, Hyles did not request an attorney or otherwise invoke his
rights.

      Lockett did not interview Hyles until he contacted the Pemiscot County
prosecutor and allowed Hyles to talk to the Pemiscot County prosecutor. The

                                         -4-
Pemiscot County prosecutor indicated to Hyles that giving a statement would help
Tonya. Hyles then gave a videotaped oral statement to Lockett, Cruz, and the state
patrol officer. During the time spent at the Highway Patrol office, Hyles was
provided with lunch, was permitted to use the restroom, and was allowed to smoke
outside.

       On the videotaped statement, Lockett and Hyles reviewed the events leading
up to the statement, including the fact that Lockett had advised Hyles of his Miranda
rights on Interstate 55 and that Cruz had advised Hyles of his Miranda rights a second
time with a Highway Patrol form. Lockett then advised Hyles of his Miranda rights
a third time on videotape. Hyles said that he understood his rights, and agreed to
waive his rights and to willingly make a statement. Hyles stated that he was talking
to the officers “of his own free will.”

        Hyles then admitted that he spoke with Cannon, who he called his “partner,”
after he learned that Coy Smith was a witness in Hyles’s state drug case. Hyles said
that Cannon told him not to worry because Cannon did not think Smith would testify.
If Smith did testify against Hyles, Cannon told Hyles, Cannon would “handle that”
for Hyles. Hyles stated that he understood that Cannon would kill Smith if he
testified.

       Hyles then said that after Smith testified at Hyles’s preliminary hearing, Hyles
talked to Cannon on the telephone. Cannon repeated that he would “handle that” for
Hyles, which Hyles understood to mean killing Smith. Hyles stated that Cannon’s
reason for driving to Caruthersville, Missouri from Memphis, Tennessee was to kill
Smith for him.

       According to Hyles, his cellmate at the Pemiscot County Jail, David Carter,
also talked about killing Smith for Hyles. Hyles agreed to bail Carter out of jail the



                                         -5-
same day, but denied that he did so to facilitate the murder of Smith or that he offered
Carter anything in return for killing Smith.

      Hyles stated that after Smith’s death, Cannon told Hyles that he had killed
Smith. Cannon told Hyles that he made a mask out of a scarf, went to Smith’s house,
cut the telephone wires, entered through the front door, and shot Smith. Hyles
admitted that Cannon killed Smith on behalf of Hyles, but denied that he promised
Cannon anything in return. Hyles did not indicate at any time during the interview
that he wanted to have a lawyer present. After the statement, Lockett and Cruz
delivered Hyles to Caruthersville. Lockett and Cruz were the only witnesses at the
suppression hearing.

        Following the suppression hearing, a magistrate judge filed a report and
recommendation recommending that Hyles’s motion be denied. Hyles objected to
several of the magistrate judge’s findings of fact, asserting for the first time that the
government intentionally created a gap in legal representation between Hyles’s
federal and state charges in order to obtain a statement from him, thus, violating his
Sixth Amendment right to counsel. Despite these objections, the district court
adopted the report and recommendation. The court found that it was Hyles who
initiated the conversation with Lockett while Hyles was being transported, that Hyles
was advised of his Miranda rights three times, that Hyles was asked if he understood
those rights, and that Hyles said he did. The court found that at no time prior to or
during the videotaped conversation did Hyles express a desire to remain silent or to
have an attorney present. He was allowed to smoke and was given lunch during the
interview, and his demeanor during the interview was calm. Further, the court found
that it was Hyles who set forth the conditions of his giving a statement. This fact, the
court stated, “indicates that [Hyles] felt neither threatened nor coerced.” A transcript
of the videotape, but not the video itself, was introduced at trial.




                                          -6-
      C.     Motion to Exclude Recorded Jail Telephone Calls or Alternatively for
             a Continuance

       The government obtained via subpoena recorded telephone conversations from
the jails in which Hyles and Cannon were being held. The recorded conversations
were preserved on CDs and were being monitored by the government primarily to
protect the safety of its witnesses. Hyles had received a number of these CDs from
the government, but objected to the final six CDs he had received from the
government on April 29, 2005, ten days before trial was scheduled to begin.
According to Hyles, these six CDs totaled over seventy-eight hours of Hyles’s
recorded telephone conversations. The government had obtained these CDs between
three and nine weeks before it turned them over to Hyles. Before trial, Hyles moved
to exclude from evidence the most recent recorded jail telephone conversations for
failure of the government to disclose them in a timely manner under Federal Rule of
Criminal Procedure 16(a)(1)(B)(i). In the alternative, he moved to continue the trial
for six to eight weeks in order to have sufficient time to review the conversations.

       During a hearing on the motion, Hyles acknowledged that the government had
given him a list of twenty-five recorded conversations it might use at trial. He argued
that regardless of the list provided by the government, he would still need to sift
through all of the conversations in order to avoid missing any mitigating or
exculpatory evidence. This task, he argued, was impossible for him to accomplish
while preparing for trial. The government explained that Hyles continued to talk on
the telephone while it was trying Cannon’s nearly month-long trial, which delayed
review of the recorded conversations. According to the government, as soon as it was
able to review the tapes and determine their contents, it produced them. In some
cases, delay was caused because of concerns about the safety of witnesses and
possible attempts to influence them. Further, the government argued that the issue
was moot because it had already narrowed down the number of conversations it
would potentially use at trial. The district court held the motion in abeyance at

                                         -7-
Hyles’s request until Hyles could determine what was on the list the government
provided.

        Hyles renewed his motion on the first day of voir dire. He stated that he had
been given eleven additional hours of recorded conversations during the week before
trial, and that he found it impossible to do an appropriate review. According to
Hyles, his counsel could not “be a reasonably competent attorney in this case under
the circumstances.” The government confirmed that it intended to introduce “very
few if any tapes” in its case in chief during the guilt phase, and that it would provide
Hyles advance notice if it did intend to use any of the calls. The government also
reiterated that these recorded conversations were “equally available to the defense.”
The district court denied the lengthy continuance Hyles requested, but offered to
consider a shorter continuance if the issue presented itself at trial. None of the calls
were offered at trial.

      D.     Trial

       Included in the government’s evidence was a photograph depicting the Pontiac
Parisienne automobile that was payment for the murder-for-hire and two photographs
of Hyles and Cannon posing together. The three photographs were found in
Cannon’s jail property and have writing on the back associating Hyles and Cannon.
On the back of the picture of the Pontiac was written “Da-Pony G’ ‘Ride.’” The two
pictures of Hyles and Cannon had “‘2’ of Da Most Wanted” and “‘Bo$$’ Playa’s 2-
Da-Casket 9” written on the back, respectively. The government offered the
photographs and the writing on the back as evidence of the importance of the Pontiac
to Cannon, and to show Hyles’s association with Cannon in the conspiracy case. The
district court allowed the writings on the back of the photographs into evidence over
foundation and hearsay objections from Hyles.




                                          -8-
        The government also introduced the testimony of Omar Wiley and Captain
Tony Jones of the Caruthersville Police Department regarding statements made by
Cannon. Wiley testified that Cannon was at Wiley’s house on the afternoon before
Smith’s murder. While the two were sitting on the porch, Coy Smith drove by. Wiley
testified that when Cannon saw Smith, he told Wiley, “I’m gonna kill that nigger . .
. Nigger got my boy.” Wiley also testified that after Smith’s murder he observed
Cannon and Tonya arguing over the Pontiac. Jones testified that he pulled Cannon
over on August 29, 2000, and issued Cannon a traffic summons. Cannon was driving
the Pontiac. Jones testified that he told Cannon to stop threatening Tonya about the
vehicle and informed Cannon that the vehicle was marital property. Cannon
responded that “Tyrese had told him he could have the vehicle.” The government
offered the statements as co-conspirator statements made in furtherance of the
murder-for-hire conspiracy and as statements against interest. The district court
admitted these statements over Hyles’s hearsay objections.

        April Leatherwood, Cannon’s ex-girlfriend, testified at trial during the
government’s case-in-chief. Several days later, and after Leatherwood had returned
to her home in Caruthersville, Hyles sought to introduce excerpts of recorded jail
telephone conversations between her and Cannon. The recorded conversations were
offered to impeach statements Leatherwood had made during her testimony. The
court ruled that there had not been sufficient compliance with the requirements of
Federal Rule of Evidence 613(b) and that the evidence was cumulative, and excluded
the conversations.

      Hyles also called witnesses, including his former attorney who had represented
him in the underlying state drug case in which Smith was a witness. During his
examination of his former attorney, Hyles asked about discussions the former attorney
had with Hyles. The district court allowed the government to cross-examine Hyles’s
former attorney. The government agreed to limit its questions to facts the former
attorney knew “from any source.”

                                        -9-
       The jury convicted Hyles on both counts. After a separate penalty phase, the
jury recommended sentences of life imprisonment without the possibility of parole.
Hyles appeals, arguing that the district court erred by: (1) denying his motion to
suppress his videotaped statement; (2) denying his motion to exclude his recorded jail
telephone conversations, or, in the alternative, by denying his motion for a
continuance to review the CDs; (3) admitting the writings on the back of
photographs; (4) excluding recorded telephone conversations between Cannon and
Leatherwood; (5) admitting Cannon’s statements through the testimony of Wiley and
Jones; and (6) allowing limited cross-examination of Hyles’s former attorney. We
discuss each in turn.

II.   Analysis

       A.     Motion to Suppress Hyles’s Videotaped Statement

       Hyles argues that the district court erred in denying the motion to suppress his
videotaped statement. Hyles contends that his Sixth Amendment right to counsel was
violated and that his statement was involuntary. When reviewing a district court’s
denial of a motion to suppress, we review the court’s factual findings for clear error
and its legal conclusions de novo. United States v. Judon, 472 F.3d 575, 581 (8th Cir.
2007). “We will affirm the denial of a motion to suppress unless the decision is
unsupported by substantial evidence, is based on an erroneous view of the applicable
law, or in light of the entire record, we are left with a firm and definite conviction that
a mistake has been made.” Id. (internal marks omitted).

      Hyles first argues that his statement should be suppressed because it was
obtained in violation of his Sixth Amendment right to counsel. Specifically, Hyles
contends that the federal and state authorities worked together to create a gap in legal
representation, and then exploited that gap for the purpose of obtaining a statement
from him by placing him in a car with one of the officers involved in his case. The

                                           -10-
government argues that Hyles has waived his Sixth Amendment claim because he did
not raise it in his pretrial motion to suppress, and that even if not waived, his Sixth
Amendment claim has no merit.

       We need not address the question of waiver because Hyles’s Sixth Amendment
claim fails on the merits. The parties agree that Hyles’s right to counsel had attached
before he was transported by Lockett and Cruz. Hyles’s waiver of his Miranda rights
is enough to establish a knowing and intelligent waiver of counsel as long as that
waiver was valid and as long as Hyles had not invoked his right to counsel before he
waived his rights. See Patterson v. Illinois, 487 U.S. 285, 296 (1988) (holding that
an accused who has been advised of his Miranda rights “has been sufficiently
apprised of the nature of his Sixth Amendment rights, and of the consequences of
abandoning those rights, so that his waiver on this basis will be considered a knowing
and intelligent one”); Michigan v. Harvey, 494 U.S. 344, 349 (1990). Further, even
if Hyles had asserted his right to counsel, the court found that he, rather than the
officers, initiated the interrogation. See id. at 352 (“[N]othing in the Sixth
Amendment prevents a suspect charged with a crime and represented by counsel from
voluntarily choosing, on his own, to speak with police in the absence of an
attorney.”); Owens v. Bowersox, 290 F.3d 960, 962-63 (8th Cir. 2002) (stating that
a defendant initiates interrogation if he “evinces a willingness and a desire for a
generalized discussion about the investigation”) (internal marks omitted). We agree
with the district court’s conclusion that Hyles’s Sixth Amendment rights were not
violated.

       Hyles also contends that his statement should be suppressed because it was
obtained in violation of his Fifth Amendment privilege against self-incrimination.
The district court found that Hyles knowingly and intelligently waived his
Miranda rights three times, and after reviewing the record, we agree. There was no
violation of Hyles’s Fifth Amendment right against self-incrimination.



                                         -11-
      Hyles further alleges that his statement was coerced in violation of his Due
Process rights. “‘A statement is involuntary when it was extracted by threats,
violence, or express or implied promises sufficient to overbear the defendant’s will
and critically impair his capacity for self-determination.’” Judon, 472 F.3d at 581
(quoting United States v. LeBrun, 363 F.3d 715, 724 (8th Cir. 2004) (en banc)).
When determining the voluntariness of a confession, we examine the totality of the
circumstances. Id.

       As the district court found, Hyles was allowed to smoke before the videotaping
began. He was given lunch, and was allowed to use the bathroom if needed. The
statement was given in a question and answer method, and Hyles appeared to be calm
and comfortable. Hyles and the officers were at the Highway Patrol office no more
than five or six hours. We agree that the length of the event “was in no way excessive
or burdensome.” Hyles argues that he was implicitly coerced into giving the
statement because of the Pemiscot County prosecutor’s promise to Hyles that if he
gave a statement, it would help his wife, Tonya. However, there is no evidence in the
record indicating that Hyles’s will was overborne. Hyles himself asked the Pemiscot
County prosecutor about the possibility of helping his wife. After the Pemiscot
County prosecutor advised him that it would help Tonya, Hyles asked about himself.
Hyles was told that the Pemiscot County prosecutor could not tell him anything about
what would happen to him. Based on the totality of the circumstances, we agree with
the district court’s decision that Hyles’s statement was voluntary.

      B.     Motion to Exclude Audiotapes of Hyles’s Jail Phone Calls

      Hyles argued pre-trial that the seventy-eight hours of recorded conversations
should be excluded so he would not have to waste valuable pre-trial preparation time
reviewing them. Hyles now argues the government violated Federal Rule of Criminal
Procedure 16 by not producing the calls in a timely manner. Alternatively, Hyles
argues that the district court abused its discretion by denying his motion for a six to

                                         -12-
eight week continuance to listen to the conversations and prepare for trial. We affirm
the district court’s decision on both issues.



        Rule 16(a)(1)(B)(i) requires that, upon the defendant’s request, the government
disclose “any relevant written or recorded statement by the defendant if: the statement
is within the government’s possession, custody, or control; and the attorney for the
government knows–or through due diligence could know–that the statement exists[.]”
“The district court has broad discretion in fashioning sanctions for violations of Rule
16 . . . .” United States v. Flores-Mireles, 112 F.3d 337, 340 (8th Cir. 1997). Thus,
even if we were to find a violation of Rule 16 in this case, exclusion of the CDs
would not necessarily be required. See id. at 340-41 (holding that, despite a Rule 16
violation, the district court did not abuse its discretion by rejecting defendant’s
request to exclude recorded statements made by the defendant). The district court
determined that if issues regarding the CDs arose at trial, Hyles would receive a short
continuance to review the CDs. This decision was within the court’s discretion and
we find no error.

        Hyles next argues that the district court erred in denying his motion for a
continuance. District courts have broad discretion to deny requests for continuances.
United States v. Urben-Potratz, 470 F.3d 740, 743 (8th Cir. 2006). As a general
matter, continuances are not favored and should be granted only when the requesting
party has shown a compelling reason. Id. “We will reverse a district court’s decision
to deny a motion for continuance only if the court abused its discretion and the
moving party was prejudiced by the denial.” United States v. Thurmon, 368 F.3d
848, 851 (8th Cir. 2004) (internal marks omitted).

      Hyles argues that he was prejudiced by the district court’s denial of a
continuance because his counsel’s trial preparation time was sacrificed in order to
review the recordings. He argues that counsel could have missed exculpatory

                                         -13-
evidence that was buried somewhere in the conversations.2 Hyles also argues that the
rush to review even the limited number of conversations designated by the
government disrupted the preparation that is required in the weeks before a capital
trial. The district court denied the lengthy continuance Hyles had requested, but it
stated that a short recess could be granted during trial if the government decided to
use any of the recordings. Ultimately, none of the recorded conversations were used
as evidence during trial.

        The government argues that our decision in United States v. Hernandez, 299
F.3d 984 (8th Cir. 2002), is “[p]articularly instructive,” and we agree. In Hernandez,
the government notified defense counsel four days before trial that it would be calling
a particular expert witness. At trial, however, the government never called the
witness. The government did not notify the defense about this decision until “late
into the trial.” Id. at 991. Like Hyles, Hernandez argued that despite the fact that the
witness never testified, “he was prejudiced by having to sacrifice defense counsel’s
valuable trial preparation time to prepare for that witness.” Id. at 991-92. Our court
disagreed, holding that Hernandez failed to show actual prejudice; thus, the denial of
his motion to continue did not amount to an abuse of discretion. Hernandez was not
prejudiced because he did not show “what would have been done but for the false
start, nor how such omission would have led to a different result.” Id. at 992.

         Likewise, Hyles does not point to anything specific that would have been
done if not for the late arrival of the recorded conversations, nor does he argue that,
if the continuance had been granted, the result of the trial would have been different.




      2
        To the extent Hyles intended to present an argument under Brady v. Maryland,
373 U.S. 83 (1963), such an argument fails. He had access to the CDs and has
identified no exculpatory content.

                                         -14-
Hyles has failed to show actual prejudice; therefore, we affirm the district court’s
decision to deny Hyles’s motion for a continuance.3

             C.     Admission of Writings on the Photographs

       Hyles next argues that the district court abused its discretion when it admitted
writings on the back of photographs of the Pontiac and Hyles and Cannon into
evidence over Hyles’s foundational and hearsay objections. Hyles argues that there
was no foundation for the admission of the writings because the government did not
offer evidence as to when the writings took place, who wrote them, and whether
Cannon and Hyles knew about the writings. Alternatively, Hyles argues that the
writings are inadmissible hearsay. We review the district court’s evidentiary ruling
for clear abuse of discretion, United States v. Chase, 451 F.3d 474, 479 (8th Cir.
2006), and will not reverse if the error was harmless. United States v. Jara, 474 F.3d
1018, 1022 (8th Cir. 2007).

        Regarding Hyles’s argument as to foundation, Federal Rule of Evidence 901
requires authentication or identification before evidence can be admitted. This rule
is satisfied by providing “evidence sufficient to support a finding that the matter in
question is what its proponent claims.” Fed. R. Evid. 901(a). We have said that
under this standard, the party “need only demonstrate a rational basis for its claim that
the evidence is what the proponent asserts it to be.” United States v. Coohey, 11 F.3d
97, 99 (8th Cir. 1993).


      3
        Hyles also argues that the district court’s denial of his motion to continue
violated his Due Process rights. Because the denial of the motion was not arbitrary
within the circumstances of this case, his argument has no merit. See United States
v. Bernhardt, 642 F.2d 251, 252 (8th Cir. 1981) (per curiam) (“The determination of
whether a denial of a continuance is arbitrary enough to violate due process depends
on the circumstances present in every case, particularly in the reasons presented to the
trial judge at the time the request is denied.”) (internal marks omitted).

                                          -15-
       The government offered the picture of the Pontiac Parisienne and the writing
on the back of that picture to demonstrate the importance of the car to Cannon.
According to the government, the car was important enough to Cannon that he kept
a picture of it with him in jail. The pictures of Cannon and Hyles together with
writing on the back were offered to prove their close relationship. As the government
stated at trial, “this is a conspiracy case and [the pictures and writings] establish[] a[n]
association between” the two. The government expressly stated at trial that it did not
matter who put the writing on the back of the pictures.

       Keeping in mind the limited purpose the government had for offering the
photographs and writings, there was sufficient foundation. The deputy who seized
the photographs from Cannon’s property at the jail testified that he saw the writing
on the back when he seized them. Other officers identified Hyles and Cannon as the
people pictured in the photographs, and the car as the same car they had seen Cannon
and Tonya driving. The government demonstrated a rational basis for its claim that
the pictures were of Cannon and Hyles, that the car was the Pontiac Parisienne, and
that the writings shed light on the relationship between the co-conspirators. The
district court did not abuse its discretion when it admitted the pictures and writings
over Hyles’s objection as to foundation.

        Regarding Hyles’s hearsay argument, we agree with the government that the
writings on the pictures are not hearsay. Federal Rule of Evidence 801 defines
hearsay as “a statement, other than one made by the declarant while testifying at the
trial or hearing, offered in evidence to prove the truth of the matter asserted.” Hyles
did not object to the pictures themselves; he objected only to what was written on the
reverse. On the back of the picture of the Pontiac was written “Da-Pony G’ ‘Ride.’”
The two pictures of Hyles and Cannon had “‘2’ of Da Most Wanted” and “‘Bo$$’
playa’s, 2-Da-Casket 9” written on the back, respectively. The government offered
the writings on the back of the photographs as evidence of the importance of the

                                           -16-
Pontiac to Cannon, and to show Hyles’s association with Cannon in the conspiracy
case. The writings were not offered to prove that Hyles was a “Boss Playa” or one
of the “Most Wanted.” There is no suggestion that the jury was told what these
phrases mean. Indeed, it is the fact that there is writing on the back of these pictures
and that Hyles and Cannon found the pictures important enough to write on that
makes them important; what exactly was written on them does not matter. See United
States v. Wilson, 532 F.2d 641, 646 (8th Cir. 1976) (“It is the fact that the statements
were written, and not the truth of the statements, which was relevant.”) Therefore,
they are not hearsay, and were properly admitted into evidence.

       Even if the writings were offered for their truth, we would not reverse because
any error is harmless. The government presented ample evidence at trial that
demonstrated the close relationship between Hyles and Cannon, including admissions
by Hyles in his videotaped statement that he had talked to Cannon several times on
the telephone before Smith was murdered, that Cannon was Hyles’s “partner,” and
that Hyles and Cannon were “cool” and had been “friends for a long time.” Any error
here would not be reversible error.

      D.     Exclusion of Recorded Phone Conversations Between Amesheo Cannon
             and April Leatherwood

       Hyles argues that the district court erred when it excluded prior inconsistent
statements offered by Hyles to impeach April Leatherwood. Federal Rule of
Evidence 613(b) “provides that extrinsic evidence of a prior inconsistent statement
by a witness is not admissible unless: (1) the witness is afforded an opportunity to
explain or deny the statement and the opposing party is afforded an opportunity to
interrogate the witness about the statement or (2) the interests of justice otherwise
require.” United States v. Schnapp, 322 F.3d 564, 571 (8th Cir. 2003). The district
court excluded the recorded conversations between Leatherwood and Cannon because
Leatherwood was not given the opportunity to explain or deny the conversations as

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required by Rule 613(b). Although Leatherwood had testified, she was no longer in
the courtroom when Hyles sought to introduce her prior statements. Further, while
Leatherwood was still under subpoena, the district court stated that it would deny
defendant’s request to bring her back because the evidence would be cumulative
under Federal Rule of Evidence 403.

       The district court’s Rule 403 concerns were warranted. Rule 403 allows the
court to exclude relevant evidence “if its probative value is substantially outweighed
by . . . needless presentation of cumulative evidence.” Leatherwood had already
proven herself untrustworthy. She admitted on cross-examination that everything she
told Cannon’s investigators was false. The district court was well within its
discretion to determine that admission of Leatherwood’s prior inconsistent statements
would be cumulative, see Fed. R. Evid. 403; United States v. Sutton, 41 F.3d 1257,
1260 (8th Cir. 1994) (holding that recalling a witness to allow her to explain or deny
a prior inconsistent statement “is not mandatory, but is optional at the trial judge’s
discretion”), and that “the interests of justice” did not “otherwise require” the
admission of the statements.

      Hyles also argues that his Sixth Amendment right to present witnesses on his
behalf was violated by the exclusion of Leatherwood’s prior statements. Hyles’s
Sixth Amendment rights were not violated. In the context of evidentiary exclusions,
a defendant’s Sixth Amendment rights are only violated “where the trial court
excludes relevant evidence without sufficient justification.” Bernhardt, 642 F.2d at
253. The district court’s determination that admission of the recorded conversations
would be cumulative is sufficient justification.

      E.     Admission of Amesheo Cannon’s Statements

      Hyles next argues that the district court erred in admitting several statements
made by his co-conspirator, Cannon. The district court’s discretion to admit evidence

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over a hearsay objection is “particularly broad in a conspiracy trial.” United States
v. McKay, 431 F.3d 1085, 1093 (8th Cir. 2005) (internal quotation omitted). We will
reverse only if the district court’s ruling was a “clear and prejudicial abuse of
discretion.” United States v. Haskell, 468 F.3d 1064, 1072 (8th Cir. 2006).

             i.     Testimony of Omar Wiley

       At trial, Omar Wiley testified that: (1) Cannon told him before the murder that
he intended to kill Coy Smith, and that (2) after the murder he observed Cannon and
Tonya arguing about the Pontiac. Hyles argues that these statements are inadmissible
hearsay and should have been excluded. We disagree. Cannon’s statement that he
planned or intended to kill Smith is admissible as his “then existing state of mind . .
. (such as intent, plan, motive, design . . .)” pursuant to Federal Rule of Evidence
803(3). Such statements “are not excluded by the hearsay rule.” Fed. R. Evid. 803.
Wiley’s testimony that Cannon wanted the car and that Wiley had witnessed an
argument regarding the ownership of the car is not hearsay because it is not an
assertion by either Cannon or Tonya. See Fed. R. Evid. 801(a). The district court did
not error when it admitted these statements.

             ii.    Testimony of Captain Tony Jones

      Caruthersville Police Department Captain Tony Jones testified regarding a
conversation he had with Cannon one week after the murder of Smith. After pulling
Cannon over for running a stop sign, Jones asked Cannon “to stop threatening Tonya
Hyles over Tyrese Hyles’s vehicle,” and told Cannon “that the vehicle was marital
property and she did not have to give him the vehicle.” Cannon told Jones that
“Tyrese had told him he could have the vehicle.” Hyles argues that Cannon’s
statement is inadmissible hearsay. The government argues the statement was properly
admitted as a co-conspirator statement in furtherance of the conspiracy. While we
have serious concerns as to whether Cannon’s statement actually was in furtherance

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of the conspiracy to murder Smith in exchange for the Pontiac, we need not address
this issue.

        Even if it was error to allow the statement into evidence, we find that any error
is not prejudicial. The government presented additional evidence linking Cannon and
the Pontiac to the conspiracy, including the fact that Cannon was seen by several
witnesses driving the car, the fact that Tonya had used the Pontiac as collateral when
bailing David Carter out of jail, Wiley’s observation of a fight between Tonya and
Cannon over the car, Jones’s recollection of his own statements, and the picture of the
Pontiac in Cannon’s jail cell. Hyles has not convinced us that the outcome of his trial
would have been different if not for the admission of Cannon’s statement.

      F.     Cross Examination of Hyles’s Former Attorney

       Finally, Hyles argues that the district court erred by allowing the government
to ask Hyles’s former attorney questions during cross examination. Hyles contends
that this violated his attorney-client privilege. This argument has no merit. By
calling his former attorney from his underlying state drug case as a witness and
asking the attorney about discussions with Hyles, Hyles waived his privilege. See
United States v. Workman, 138 F.3d 1261, 1263 (8th Cir. 1998) (“Voluntary
disclosure of attorney client communications expressly waives the privilege.”).
Further, the government agreed to limit its inquiry on cross-examination to facts
known to the attorney “from any source.” See Upjohn Co. v. United States, 449 U.S.
383, 395-96 (“The protection of the privilege extends only to communications and not
to facts. A fact is one thing and a communication concerning that fact is an entirely
different thing.”) (internal marks omitted). The district court did not abuse its
discretion.




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III.   Conclusion

       For the foregoing reasons, we affirm the judgment of the district court.
                       ______________________________




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