UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                              No. 96-4832

DANIEL LUTZ,
Defendant-Appellant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, Chief District Judge;
Peter J. Messitte, District Judge;
Herbert N. Maletz, Senior Judge,
sitting by designation.
(CR-95-293-PJM)

Argued: April 10, 1998

Decided: August 7, 1998

Before WILKINS and NIEMEYER, Circuit Judges, and
CHAMBERS, United States District Judge for the
Southern District of West Virginia,
sitting by designation.

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Affirmed by unpublished opinion per curiam opinion.

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COUNSEL

ARGUED: Denise Charlotte Barrett, Assistant Federal Public
Defender, Baltimore, Maryland, for Appellant. Maury S. Epner,
Assistant United States Attorney, Greenbelt, Maryland, for Appellee.
ON BRIEF: James K. Bredar, Federal Public Defender, Baltimore,
Maryland, for Appellant. Lynne A. Battaglia, United States Attorney,
Greenbelt, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Daniel Lutz (hereinafter Appellant) appeals from the final order of
the United States District Court for the District of Maryland, entered
on October 25, 1996, sentencing him, inter alia, to serve three concur-
rent 168 month sentences for three convictions of armed bank robbery
in violation of 18 U.S.C. § 2113(d). On appeal, Appellant makes two
assignments of error. First, Appellant asserts the trial court erred by
allowing the prosecution to introduce extrinsic evidence to show that
Appellant admitted lying under oath in an unrelated proceeding. Sec-
ond, Appellant argues the trial court erred by permitting the prosecu-
tion to introduce selected portions of Appellant's testimony from his
first trial while refusing to admit additional portions of his prior testi-
mony which he claims explains the testimony introduced by the pros-
ecution. Upon review of these alleged errors and the record in this
case, Appellant's convictions are affirmed.

I. FACTUAL AND PROCEDURAL HISTORY

Appellant was convicted of robbing three banks in Maryland of
approximately $130,000 between December 1991 and February 1993.
On each occasion, Appellant dressed as a woman, possessed what
appeared to be a handgun, and confronted bank employees as they
entered work in the morning. After taking money from the vaults,
Appellant would steal one of the bank employee's vehicles and drive
it to a location where Appellant presumably had another vehicle wait-
ing.

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Appellant was apprehended for these crimes after his friend, Tim
Clinton, told the FBI that Appellant admitted to him that Appellant
committed the robberies. Mr. Clinton related to the FBI accurate, but
not publically disclosed, facts about the crimes. To build its case
against Appellant, the FBI wired Mr. Clinton to record his conversa-
tions with Appellant. Although Appellant did not admit to the bank
robberies in any of the recorded conversations, Appellant told Mr.
Clinton that he previously "beat" a drunk boating charge by lying
under oath to the judge.

As the FBI further investigated Appellant, it learned, inter alia:
Appellant lived near each of the three geographically diverse banks
on the date each was robbed; Appellant had a regular pattern of rela-
tively large, even-dollar cash deposits in the months following the
second and third robberies; and, immediately after the third robbery,
Appellant deposited several thousand dollars in money orders in the
name of Richard Fox into a bank account. In addition, Appellant was
positively identified as the robber by five different witnesses, and the
FBI found tire tracks near where the bank employee's vehicle from
the third robbery was abandoned which closely resembled the tire
treads on Appellant's truck.

On July 17, 1995, Appellant was indicted on three counts of armed
bank robbery in violation of 18 U.S.C. § 2213(d), three counts of
bank robbery by intimidation in violation of 18 U.S.C. § 2213(a), and
three counts of the use of a firearm during and in relation to a crime
of violence in violation of 18 U.S.C. § 924(c). The case was presented
to a jury on January 22, 1996, which resulted in a mistrial due to the
inability of the jury to reach a verdict. Following the mistrial, the
prosecution dismissed all the counts under 18 U.S.C.§§ 924(c) and
2213(a). Thereafter, Appellant was tried and convicted on the remain-
ing three counts under 18 U.S.C. § 2213(d). Appellant now appeals
those convictions.

II. DISCUSSION

A. Standard of Review

The issues raised by Appellant involve evidentiary rulings made by
the district court. On appeal, the Court gives substantial deference to

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such evidentiary rulings and will not disturb those rulings absent a
clear abuse of discretion, subject to harmless error analysis. United
States v. Jackson, 124 F.3d 607, 618 (4th Cir. 1997), cert. denied, 118
S. Ct. 733 (1998) (citation omitted); United States v. Brooks, 111 F.3d
365, 371 (4th Cir. 1997). "[I]n order to find a district court's error
harmless, we need only be able to say `with fair assurance, after pon-
dering all that happened without stripping the erroneous action from
the whole, that the judgment was not substantially swayed by the
error.'" United States v. Heater, 63 F.3d 311, 325 (4th Cir. 1995)
(quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946); other
citations omitted). Finding no abuse of discretion in the present case,
we affirm.

B. Introduction of Extrinsic Evidence

At both his first and second trials, Appellant took the stand in his
own behalf. During cross-examination at his second trial, the prosecu-
tor questioned Appellant about lying under oath in an unrelated state
court proceeding in order to avoid being convicted on a boating under
the influence charge. Appellant denied lying.1 Over Appellant's
_________________________________________________________________
1 At trial, the following conversation occurred between the prosecutor
and Appellant:

          Q Now . . ., it's also the case sir, that you lied under oath . . .;
          isn't that right?

          A That is not correct. I told the absolute truth.

          Q Well, it is the case Mr. Lutz, that you in your words, "beat
          the charge"; isn't that right?

          A I don't believe I ever said that, sir.

          ....

          Q And in fact you did beat it, didn't you?

          A I was not guilty. I did win on those grounds, yes, sir.

          Q And the reason why you won on those grounds is because
          you told the Judge under oath that you had been drinking
          near beer; is that right?

          A Yes, sir.

                     4
objection, the trial court then permitted the prosecutor to play a
recorded conversation Appellant had with Mr. Clinton in which
Appellant admits he told a state court judge he was drinking one-
percent beer to "beat" conviction.2 On appeal, Appellant contends the
district court erred by allowing the tape to be played to the jury
because it was inadmissible under Rule 608(b) of the Federal Rules
of Evidence.

Rule 608(b) prohibits the use of extrinsic evidence of "[s]pecific
instances of the conduct of a witness, for the purpose of attacking or
supporting the witness' credibility, other than conviction of crime as
provided in rule 609 . . . ." Fed. R. Evid. 608(b), in part.3 Appellant
_________________________________________________________________

          ....

          Q It's a lie . . ., because you described yourself that night, or
          as you acknowledged that you were that night, you were
          quote "drunk as shit"? Excuse the expletive.

          A That was Mr. Clinton's phrase. I merely just said yeah.
2 The relevant portion of the tape contained the following conversation:

          Clinton: Hey, whatever . . . whatever happened on the one you
          got drunk boating man? . . . .

          Lutz: I beat it.

          Clinton: How you'd beat it?

          Lutz: I told him I was drinking "Near Beer", one percent.

          Clinton: You was drunk as shit that night.

          Lutz: Yeah. That's right. I was.

          ....

          Lutz: See alls he kept saying was I was . . . I smelled like
          beer. So I said yeah I smell like beer.

          Clinton: Yeah.

         Lutz: "Near Beer". I told him I don't drink (unintelligible)
         (chuckles).
3 Rule 608(b) further provides that specific instances of conduct

          may, however, in the discretion of the court, if probative of truth-
          fulness or untruthfulness, be inquired into on cross-examination

                     5
asserts the tape recording was relevant only as evidence of a specific
instance of misconduct for impeachment purposes and had no rele-
vance to the bank robbery charges. Therefore, Appellant argues the
evidence should have been excluded under Rule 608(b) and the
Fourth Circuit's decision in United States v. Ling, 581 F.2d 1118 (4th
Cir. 1978). The Court finds no merit to Appellant's arguments.

In Ling, the Court stated it is well-established law "that a defendant
who voluntarily offers himself as a witness and testifies in his own
behalf subjects himself to legitimate and pertinent cross-examination
to test his veracity and credibility." 581 F.2d at 1120. However, the
Court also held that

          when a defendant is cross-examined for the purpose of
          impeaching his credibility by proof of specific acts of past
          misconduct not the subject of a conviction, the examiner
          must be content with the witness' answer. The examiner
          may not, over objection, produce independent proof to show
          the falsity of such answer. This court has summarized the no
          extrinsic evidence rule by stating "the interrogator is bound
          by [the witness'] answers and may not contradict him."
          Although the cross-examiner may continue to press the
          defendant for an admission, he cannot call other witnesses
          to prove the misconduct after defendant's denial.

Id. at 1120-21 (emphasis added; citation omitted). Thus, under Ling
and Rule 608(b), the prosecution could not offer extrinsic evidence of
prior conduct to prove the falsity of an answer given. To the contrary,
however, the present case is distinguishable from Ling because the
tape-recorded evidence admitted in the instant action was Appellant's
own prior statement, not prior conduct. As a prior statement, the tape
recording was admissible as an admission by a party-opponent under
Rule 801(d)(2)(A) and as a prior inconsistent statement under Rule
613(b) of the Federal Rules of Evidence.
_________________________________________________________________
          of the witness (1) concerning the witness' character for truthful-
          ness or untruthfulness, or (2) concerning the character for truth-
          fulness or untruthfulness of another witness as to which
          character the witness being cross-examined has testified.

Fed. R. Evid. 608(b).

                    6
When Appellant chose to testify on his own behalf, he put his cred-
ibility at issue. See Ling, 581 F.2d at 1120. To show his lack of truth-
fulness, Appellant was asked on cross-examination whether he
previously told Mr. Clinton that he lied under oath in a state court
proceeding to "beat" a drunk boating charge. Upon Appellant's denial
of this accusation, the prosecution introduced Appellant's recorded
statements in which Appellant admitted to being drunk and beating
the charge by lying to the judge.

Pursuant to Rule 801(d)(2)(A) "[a] statement is not hearsay if . . .
[t]he statement is offered against a party and is . . . the party's own
statement, in either an individual or a representative capacity . . . ."
Fed. R. Evid. 801(d)(2)(A). Obviously, the purpose of introducing the
recording was to impeach Appellant's credibility with his own
statement admitting to lying under oath. The prosecution did not
attempt to impeach Appellant by his prior conduct, as prohibited
under Rule 608(b). To be clear, impeachment by past conduct would
entail, for example, the prosecution calling a witness to testify that
Appellant was drinking real beer while in the boat. This type of testi-
mony would be barred under Rule 608(b) and Ling because it is
impeachment by extrinsic evidence of a specific act by Appellant to
contradict his denial. Here, on the other hand, the evidence introduced
was Appellant's own admission that he lied under oath, which was
admissible as substantive evidence under Rule 801(d)(2)(A) and rele-
vant to Appellant's truthfulness.4 Moreover, the introduction of
Appellant's prior statement was independently admissible as a prior
inconsistent statement pursuant to Rule 613(b). See United States v.
Kenny, 645 F.2d 1323, 1339-40 (9th Cir. 1981) (holding a tape
recording of defendant's statements was admissible under Rule
801(d)(2)(A) and independently under Rule 613). When Appellant
denied lying under oath in the boating trial, his taped statement was
used properly for impeachment as a prior inconsistent statement.

Pursuant to Rule 613(b), extrinsic evidence of a prior inconsistent
statement of a witness is admissible so long as"the witness is
afforded an opportunity to explain or deny the same and the opposite
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4 See Heater, 63 F.3d at 324 (upholding the admission of statements
under Rule 801(d)(2)(A) where a defendant told a friend that she was
part owner of a marijuana field).

                    7
party is afforded an opportunity to interrogate the witness thereon, or
the interests of justice otherwise require." Fed. R. Evid. 613(b), in part.5
The record in the instant case demonstrates that Appellant was given
the opportunity during cross-examination and questioning by his own
counsel to explain his prior statement and why it was inconsistent
with his testimony. Thus, the prosecution met the requisite founda-
tional requirements of Rule 613(b), and the statement was admissible.6
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5 Rule 613(b) provides in full:

          (b) Extrinsic evidence of prior inconsistent statement of
          witness. Extrinsic evidence of a prior inconsistent statement by
          a witness is not admissible unless the witness is afforded an
          opportunity to explain or deny the same and the opposite party
          is afforded an opportunity to interrogate the witness thereon, or
          the interests of justice otherwise require. This provision does not
          apply to admissions of a party-opponent as defined in rule
          801(d)(2).

Fed. R. Evid. 613(b).

6 Appellant argues United States v. Lashmett, 965 F.2d 179 (7th Cir.
1992), and Lewis v. Baker, 526 F.2d 470 (2d Cir. 1975), support his posi-
tion that the testimony was inadmissible extrinsic evidence. We disagree.
Both Lewis and Lashmett are distinguishable from the present case.

In Lewis, the court only considered the impact of Rule 608(b) and did
not discuss whether a prior inconsistent statement is admissible under
Rule 801(d)(2)(A) or 613(b). Thus, as an initial matter, Lewis is of lim-
ited relevance to the present case. Moreover, in Lewis, the Second Circuit
actually upheld the propriety of a lower court's jury charge that testi-
mony regarding a plaintiff-employee's false statements on a job applica-
tion might be considered on the issue of the plaintiff-employee's
credibility. 526 F.2d at 475-76.

In Lashmett, a witness testified that, except for routine family quarrels,
he and another individual got along well. 965 F.2d at 184. The defendant
in Lashmett sought to impeach this testimony by questioning the witness
regarding an occasion when the other individual accused the witness of
forging a check. Id. The lower court sustained an objection to the ques-
tion because the inquiry was too broad and, "as formulated, it was
directed at a family quarrel and an accusation of forgery, rather than an
actual act of dishonesty." Id. The defendant did not attempt to reformu-
late the question and, therefore, under the circumstances, the Seventh
Circuit determined the lower court did not abuse its discretion by sustain-

                    8
Lastly, Appellant argues that even if the evidence is admissible, it
should have been excluded under Rule 403 of the Federal Rules of
Evidence because its prejudicial impact substantially outweighed its
probative value.7 However, as previously stated, Appellant put his
credibility at issue when he took the stand in his own behalf, and,
although Appellant's prior inconsistent statement and admission to
lying under oath clearly were prejudicial to him, its prejudicial char-
acter did not outweigh its probative value as to credibility. Accord-
ingly, the Court finds that use of Appellant's admission, which also
was a prior inconsistent statement, was not unfairly prejudicial to him
and the district court did not abuse its discretion by allowing this evi-
dence to be introduced.

C. Admission of Prior Testimony

In his second assignment of error, Appellant argues the district
court erred by allowing the prosecution to introduce a selected portion
of Appellant's testimony from his first trial without permitting Appel-
lant to introduce additional portions of that testimony.8 Appellant
maintains the additional testimony should have been admitted pursu-
ant to Rule 106 of the Federal Rules of Evidence because it explains
the context of the testimony offered by the prosecution.9 In the testi-
_________________________________________________________________
ing the objection. Id. The difference between Lashmett and the present
case is that the matter sought to be introduced in Lashmett was purely
conduct and, therefore, Rule 608(b) was the only controlling rule. How-
ever, Rules 613(b) and 801(d)(2)(A) apply in the present case because
Appellant's prior statement was an admission and it was inconsistent
with his trial testimony.
7 Rule 403 provides: "Although relevant, evidence may be excluded if
its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by consider-
ations of undue delay, waste of time, or needless presentation of cumula-
tive evidence." Fed. R. Evid. 403.
8 Before Appellant testified at his second trial, his counsel stated on the
record it was the defense's position that the district court's ruling was
effectively forcing Appellant to testify at his second trial to explain the
context of the prior statements.
9 Rule 106 provides: "When a writing or recorded statement or part
thereof is introduced by a party, an adverse party may require the intro-
duction at that time of any other part or any other writing or recorded
statement which ought in fairness to be considered contemporaneously
with it." Fed. R. Evid. 106.

                     9
mony read to the jury, Appellant confessed that he directed his wife
to sign the name "Richard Fox" to several money orders which were
deposited in Appellant's bank account. The district court admitted a
portion of Appellant's designated testimony to explain that the use of
the fictional name on the money orders was prompted by Appellant's
fear of the Internal Revenue Service (hereinafter IRS).10 In order to
further elaborate his fear, Appellant also sought to introduce extensive
testimony from the prior trial concerning his many jobs and business
dealings before and after the money orders were deposited. Upon
reviewing the testimony read to the jury and the additional testimony
designated by Appellant, the Court finds the district court did not
abuse its discretion by limiting the admission of the testimony pro-
posed by Appellant.

Rule 106 is a rule of completeness and is designed"to ensure that
`when one party has made use of a portion of a document, such that
misunderstanding or distortion can be averted only through pre-
sentation of another portion, the material required for completion is
ipso facto relevant and therefore admissible. . . .'" United States v.
Ellis, 121 F.3d 908, 921 (4th Cir. 1997), cert. denied, 118 S. Ct. 738
(1998) (quoting Beech Aircraft Corp. v. Rainey , 488 U.S. 153, 172
(1988)). In other words, the purpose of Rule 106 is to prevent the jury
from being misled "by allowing into the record relevant portions of
the excluded testimony which clarify or explain the part already
received." United States v. Wilkerson, 84 F.3d 692, 696 (4th Cir.
1996), cert. denied, 118 S. Ct. 341 (1997) (citations omitted). By
allowing a portion of Appellant's testimony to show his fear of the
IRS, the trial court avoided the danger which the rule is designed to
prevent. The jury was neither misled nor provided a distorted version
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10 Specifically, the district court admitted the following portion of the
testimony designated by Appellant:

          Q. Why did you have those money orders made out in the
          name of Richard Fox?

          A. Because I still feared the IRS. I didn't want to put it in as
          cash. I didn't want the IRS to know I even had cash.

          Q. Is there a Richard Fox?

          A. There may be. I am not even sure where the name comes
          from.

                    10
of Appellant's prior testimony concerning the money orders. The
court reasonably determined that the remainder of Appellant's desig-
nation was not required for completeness. We agree and find the dis-
trict court's ruling was sufficient to satisfy the requirement of Rule
106.

Under Rule 106, relevancy, alone, does not require the court to
admit prior testimony for completeness. In fact, the Court finds the
additional testimony Appellant sought to introduce in the present case
is replete with a number of self-serving and irrelevant statements
which go beyond clarifying or explaining the testimony offered by the
prosecution. Accordingly, the Court holds the district court did not
abuse its discretion by denying Appellant's request to introduce the
additional testimony.

III. CONCLUSION

For the foregoing reasons, the final order of the district court is
affirmed.

AFFIRMED

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