            Case: 15-13557    Date Filed: 05/25/2016   Page: 1 of 10


                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                               No. 15-13557
                           Non-Argument Calendar
                         ________________________

                    D.C. Docket No. 5:14-cr-00035-MW-1

UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                     versus

SAMMIE LEE UNDERWOOD, III,

                                                           Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Northern District of Florida
                        ________________________

                                (May 25, 2016)

Before MARCUS, WILLIAM PRYOR and FAY, Circuit Judges.

PER CURIAM:

     Sammie Lee Underwood, III, appeals his conviction for possessing a firearm

and ammunition as a felon, in violation of 18 U.S.C. § 922(g)(1). The offense

conduct arose out of a high-speed chase, which began when officers in a marked
             Case: 15-13557     Date Filed: 05/25/2016   Page: 2 of 10


patrol car turned on the car’s emergency lights to pull over a Chevrolet Tahoe for a

traffic violation. In response, the Tahoe accelerated and fled for several blocks,

ultimately crashing into a house, while the driver and passenger fled on foot.

Officers found a loaded hand gun and narcotics in the car, along with a wallet

containing the identification of Rashida Davenport. Through DNA analysis and

Davenport’s statements, Underwood was later identified as the driver of the car.

On appeal, Underwood argues that the district court abused its discretion by: (1)

excluding testimony about hearsay statements against interest allegedly made by

the passenger in the car Underwood was driving; (2) excluding a line of

questioning on cross-examination of the government’s case agent about potential

federal criminal charges that could have been brought against another witness; and

(3) admitting evidence of drugs found near the firearm because the evidence was

not inextricably intertwined with the charged offense, and its probative value was

outweighed by the risk of undue prejudice. After thorough review, we affirm.

      We review the district court’s rulings on admission of evidence for abuse of

discretion. United States v. Gibson, 708 F.3d 1256, 1275 (11th Cir. 2013). A

district court has abused its discretion if it applied an incorrect legal standard or

made a finding of fact that was clearly erroneous. Id. Under the Federal Rules of

Criminal Procedure, “[a]ny error, defect, irregularity, or variance that does not

affect substantial rights must be disregarded.” Fed. R. Crim. P. 52(a). Therefore,


                                         2
              Case: 15-13557     Date Filed: 05/25/2016    Page: 3 of 10


even where an abuse of discretion is shown, we need not reverse a conviction

based on an evidentiary error if the error “had no substantial influence on the

outcome and sufficient evidence uninfected by error supports the verdict.” United

States v. Fortenberry, 971 F.2d 717, 722 (11th Cir. 1982). Moreover, we allow

district courts broad discretion to determine what is permissible for cross-

examination and will not reverse except for clear abuse of discretion. United

States v. Jones, 913 F.2d 1552, 1564 (11th Cir. 1990).

      However, if a defendant fails to preserve an evidentiary ruling by

contemporaneously objecting, we review only for plain error. United States v.

Turner, 474 F.3d 1265, 1275 (11th Cir. 2007). To show plain error, the defendant

must show (1) an error, (2) that is plain, and (3) that affected his substantial rights.

Id. at 1276. If the defendant satisfies the three conditions, we may exercise our

discretion to recognize the error if it “seriously affects the fairness, integrity, or

public reputation of judicial proceedings.” Id. In order to preserve an objection

for appeal, the defendant must “raise that point in such clear and simple language

that the trial court may not misunderstand it.” United States v. Ramirez-Flores,

743 F.3d 816, 821 (11th Cir. 2014) (quotation omitted).

      First, we are unpersuaded by Underwood’s claim that the district court

abused its discretion by excluding hearsay testimony. To be admissible under

Federal Rule of Evidence 804(b)(3), a hearsay statement must satisfy three


                                           3
               Case: 15-13557       Date Filed: 05/25/2016      Page: 4 of 10


elements: (1) the declarant is unavailable; (2) the statement so far tends to subject

the declarant to criminal liability that a reasonable person in his position would not

have made the statement unless he believed it to be true; and (3) the statement is

corroborated by circumstances clearly indicating its trustworthiness. United States

v. Westry, 524 F.3d 1198, 1214 (11th Cir. 2008). Under a former version of Rule

804(b)(3), we held that the district court should determine trustworthiness

“primarily by analysis of two elements: the probable veracity of the in-court

witness, and the reliability of the out-of-court declarant.” United States v. Alvarez,

584 F.2d 694, 701 (5th Cir. 1978).1 Thus, in United States v. Jernigan, the district

court was entitled to consider the fact that the testifying witness was a prison

inmate with a lengthy criminal history, including forgery convictions, in

determining trustworthiness. 341 F.3d 1273, 1288 (11th Cir. 2003). We similarly

held in United States v. Hendrieth that the district court did not clearly err when it

did not admit a hearsay statement because the witness was “completely unworthy

of belief.” 922 F.2d 748, 750 (11th Cir. 1991).

       In 2010, however, the Advisory Committee Notes that accompanied an

amended Rule 804(b)(3) stated:

       In assessing whether corroborating circumstances exist, some courts
       have focused on the credibility of the witness who relates the hearsay
       statement in court. But the credibility of the witness who relates the

1
 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), we adopted as
binding precedent all Fifth Circuit decisions issued before October 1, 1981.
                                               4
             Case: 15-13557     Date Filed: 05/25/2016   Page: 5 of 10


      statement is not a proper factor for the court to consider in assessing
      corroborating circumstances. To base admission or exclusion of a
      hearsay statement on the witness’s credibility would usurp the jury’s
      role of determining the credibility of testifying witnesses.

Fed. R. Evid. 804(b)(3) advisory committee’s note to 2010 amendment. Advisory

Committee Notes are “well-considered” and “a useful guide in ascertaining the

meaning of the Rules.”      Tome v. United States, 513 U.S. 150, 160 (1995).

“Although not binding, the interpretations in the Advisory Committee Notes are

nearly universally accorded great weight in interpreting federal rules.” Horenkamp

v. Van Winkle & Co., 402 F.3d 1129, 1132 (11th Cir. 2005) (quotation omitted).

      The hearsay statements that Underwood sought to admit in his case involved

testimony from a potential witness, Quinn Battles, that the passenger in the Tahoe,

Chris Coleman, had told Battles that everything in the car belonged to Coleman.

However, we need not decide whether the exclusion of these hearsay statements

would now be an abuse of discretion -- under the new Advisory Committee Note --

because the record makes clear that their exclusion amounts to harmless error. As

the record reveals, the evidence connecting Underwood to the firearm found in the

car he had been driving was overwhelming. First, DNA evidence linked the

firearm to Underwood, and the firearm was found under the driver’s seat of the car

that he was driving and had just recently asked to borrow.               Furthermore,

Underwood’s extreme attempts to flee a routine traffic stop and his statement to the

vehicle owner that he had to jump out of the car indicated that he knew the drugs
                                         5
              Case: 15-13557    Date Filed: 05/25/2016    Page: 6 of 10


and gun were in the car. Finally, the hearsay statements that Underwood sought to

admit -- testimony from Battles that Coleman had said that everything in the car

belonged to him -- would not preclude a guilty verdict against Underwood.

Indeed, Coleman’s ownership of the gun would not preclude Underwood from

constructively possessing the firearm, especially since Underwood’s conduct

suggested he knew about the presence of the drugs and gun in the car.

      Next, we reject Underwood’s claim that the district court plainly erred by

excluding questions during the cross-examination of a government witness. Under

the Federal Rules of Evidence, “[c]ross-examination should not go beyond the

subject matter of the direct examination and matters affecting the witness’s

credibility. The court may allow inquiry into additional matters as if on direct

examination.” Fed. R. Evid. 611(b). This discretion is subject to a defendant’s

right of cross-examination found in the Sixth Amendment’s Confrontation Clause.

United States v. Lankford, 955 F.2d 1545, 1548 (11th Cir. 1992). “[T]he exposure

of a witness’ motivation in testifying has been labelled by the Supreme Court as an

important function of the Sixth Amendment right to cross-examination.” Id.

      Here, Underwood argues that he should have been allowed to cross-examine

a federal agent regarding whether Rashida Davenport, the witness whose car

Underwood had borrowed and crashed, could have been charged with making a

false police report to a federal officer for reporting the Tahoe stolen. For starters,


                                          6
             Case: 15-13557     Date Filed: 05/25/2016   Page: 7 of 10


we review this claim for plain error, because Underwood did not raise an objection

when the district court barred him from questioning the federal agent about

potential federal charges against Davenport; rather, the record reveals that

Underwood only objected to not being allowed to cross-examine the federal agent

about potential state charges against Davenport, a decision the federal agent was

not involved in making. On the record here, we cannot find any plain error.

Indeed, if the defense had attempted to cross-examine the federal agent about

potential federal charges, and the government had objected, the district court would

have been entitled to exclude the evidence as exceeding the scope of direct

examination. Because, during direct, the federal agent only testified to the original

purchase of the firearm, any cross-examination questions about whether the federal

government could pursue charges against another witness would have been outside

the scope of the direct examination. While exposing a witness’s motivation for

testifying is an important function of cross-examination, Underwood was

incorrectly trying to expose the motivation of Davenport, another witness, not the

federal agent who was currently testifying.

      Moreover, any error, if one occurred, did not affect Underwood’s substantial

rights. Davenport admitted during her testimony that she changed her story and

decided to cooperate with law enforcement because she did not want to get in

trouble. Additionally, as we’ve mentioned, there was strong evidence against


                                         7
              Case: 15-13557     Date Filed: 05/25/2016      Page: 8 of 10


Underwood from other sources, including the DNA evidence and the fact that he

fled from a routine traffic stop and the gun was under his seat. Furthermore, the

district court was willing to allow Underwood to call the federal agent during his

case-in-chief -- when he presumably could have questioned the federal agent about

why he did not bring federal charges against Davenport -- but he declined to do so.

Thus, we affirm the district court’s exclusion of this line of questioning.

      Finally, we find no merit to Underwood’s argument that the district court

abused its discretion by admitting evidence of drugs found near the firearm.

Evidence of criminal activity is intrinsic, and thus, outside the scope of Rule

404(b), “when it is (1) an uncharged offense which arose out of the same

transaction or series of transactions as the charged offense, (2) necessary to

complete the story of the crime, or (3) inextricably intertwined with the evidence

regarding the charged offense.” United States v. Edouard, 485 F.3d 1324, 1344

(11th Cir. 2007) (quotations omitted). Evidence that is not part of the charged

crime but pertains to “context, motive, and set-up of the crime” may be properly

admitted if it is “linked in time and circumstances with the charged crime, or forms

an integral and natural part of account of the crime, or is necessary to complete the

story of the crime for the jury.” Id. (quotation omitted).

      Regardless of whether the evidence of criminal activity other than the

charged offense is intrinsic or extrinsic, it must pass Federal Rule of Evidence 403


                                          8
             Case: 15-13557     Date Filed: 05/25/2016   Page: 9 of 10


in order to be admissible. Edouard, 485 F.3d at 1344. This rule permits a court to

“exclude relevant evidence if its probative value is substantially outweighed by a

danger of one or more of the following: unfair prejudice, confusing the issues,

misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.” Fed. R. Evid. 403. In reviewing the third prong of Rule

404(b) admissibility under Rule 403, we “look at the evidence in a light most

favorable to its admission, maximizing its probative value and minimizing its

undue prejudicial impact.”     Edouard, 485 F.3d at 1344 n.8 (11th Cir. 2007)

(quotation omitted). We’ve held that jury instructions regarding the proper use of

Rule 404(b) evidence can minimize the evidence’s prejudicial impact. United

States v. Brown, 665 F.3d 1239, 1247 (11th Cir. 2011).

      Here, the district court did not abuse its discretion by admitting the evidence

of illegal substances found in the vehicle. First, the drug evidence was intrinsic

evidence, since it formed a natural and integral part of the account of the crime and

was sufficiently “linked in time and circumstances” to help provide context for the

firearm. The drugs and firearm were found at the same time and in the same place.

The drugs provided context for why two people would flee a routine traffic stop

and bail out of a still-moving vehicle in order to avoid the police. They also

provided context for why the firearm might have been in the vehicle. Therefore,

the drug evidence was necessary to complete the story of the crime for the jury.


                                         9
             Case: 15-13557    Date Filed: 05/25/2016   Page: 10 of 10


      Second, the admission of drug evidence did not violate Rule 403. The drugs

were of probative value because they provided context for why the firearm was

present and why Underwood would flee from police, and later, the vehicle. While

the drug evidence may have risked being unfairly prejudicial because the jury

might equate the presence of drugs as an overall showing of guilt, the district court

gave the jury a limiting instruction about how it was to use the drug evidence. This

instruction served to limit the prejudicial impact of the drug evidence, and as a

result, the district court did not abuse its discretion by finding that the probative

value of the drug evidence was not substantially outweighed by unfair prejudice.

      In any event, even if the drug evidence was admitted in error, that error was

harmless. As we’ve already detailed, the government’s other evidence -- including

the DNA evidence, the location of the firearm, and Underwood’s behavior -- was

strong. Therefore, the drug evidence did not have a substantial effect on the jury’s

verdict.

      AFFIRMED.




                                         10
