                        United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 96-1479
                                   ___________

United States of America,               *
                                        *
      Appellee,                         *
                                        * Appeal from the United States
      v.                                * District Court for the Eastern
                                        * District of Missouri.
Paul David Logan, Also Known            *
as Bear,                                *
                                        *
      Appellant.                        *
                                   ___________

                             Submitted: November 21, 1996

                                 Filed: August 4, 1997
                                  ___________

Before McMILLIAN and MORRIS SHEPPARD ARNOLD, Circuit Judges, and
      BOGUE,1 District Judge.
                              ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

      Paul Logan and nine others were indicted for conspiracy to distribute, and to
possess with the intent to distribute, more than one kilogram each of heroin and
methamphetamine. See 21 U.S.C. § 841(a)(1), § 846. The conspiracy was alleged to
have existed between December, 1992, and June, 1995. After a seven-day trial, a jury


      1
       The Honorable Andrew W. Bogue, United States District Judge for the District
of South Dakota, sitting by designation.
convicted Mr. Logan and four co-defendants whose cases we do not address in this
opinion (a fifth co-defendant whose case we do not address in this opinion was
convicted after a separate two-day trial). See also United States v. Rodriguez,
112 F.3d 374 (8th Cir. 1997), and United States v. Bryson, 110 F.3d 575 (8th Cir.
1997).

      The trial court sentenced Mr. Logan to 210 months in prison and a $1,700 fine.
Mr. Logan appeals both his conviction and his sentence. We affirm Mr. Logan's
conviction but remand his case for resentencing.

                                            I.
        One of the government's witnesses against Mr. Logan was Cindy Carlen, whose
sister was formerly married to Mr. Logan. During her testimony, Ms. Carlen testified
about an interview that she had with a state police officer in 1993 while she was in a
county jail in Illinois. She acknowledged that in return for that interview, she was
supposed to be released from jail 22 days early. Ms. Carlen testified, however, that she
did not remember anything that she said to the officer. She added that she had "been
under a lot of medication lately" and "forg[o]t a lot of things," that she was a regular
user of methamphetamine at the time of the interview, and that she was on medication
at the time of the interview. Ms. Carlen also said that after she was released from jail,
she contacted the police to say that she "wanted to retract any statements" that she had
made while in jail. She did so, she conceded, "probably" because she was afraid that
in her "attempt to get out of jail," she "had stated something during those interviews
that [was not] true."

       The government then called as a witness the state police officer who interviewed
Ms. Carlen in 1993. He testified that in the course of his three-hour interview with
Ms. Carlen, she made various statements to him that were incriminating to Mr. Logan.
At the government's prompting, the officer repeated those statements (there was no
written document with Ms. Carlen's statements as acknowledged by her; the only

                                          -2-
document available was the officer's own notes about his interview with Ms. Carlen).
Mr. Logan challenges the introduction of the officer's testimony about the content of
Ms. Carlen's oral statements. Mr. Logan argues that because Ms. Carlen said that she
could not remember what she said in the interview, the introduction of the officer's
testimony about Ms. Carlen's alleged statements violated Mr. Logan's rights under the
confrontation clause of the sixth amendment. See, e.g., United States v. Owens, 484
U.S. 554, 557-58 (1988).

       Initially, we note that although Mr. Logan makes a confrontation clause
argument on appeal, his objection during trial was based only on the rules of evidence
dealing with hearsay. See Fed. R. Ev. 801(c). We therefore decline to consider the
constitutional argument that Mr. Logan makes. We do, however, consider under the
plain error rule, see Fed. R. Crim. P. 52(b), the hearsay difficulties inherent in the state
police officer's testimony, because "[i]t is fundamental to our system of justice 'that
[defendants] should not be allowed to be convicted on the basis of unsworn
testimony.' " United States v. Love, 592 F.2d 1022, 1026 n.9 (8th Cir. 1979), quoting
United States v. Morlang, 531 F.2d 183, 190 (4th Cir. 1975).

                                           II.
      The government contended at trial that the testimony of the state police officer
about Ms. Carlen's statements to him was admissible not as substantive evidence under
some exception to the hearsay rules, see Fed. R. Ev. 801(d)(1), 803(24), 804(b)(5), see
also Fed. R. Ev. 804(a)(3), but instead to impeach Ms. Carlen's credibility as a witness,
see Fed. R. Ev. 607. In other words, the government asserted, the testimony about the
content of Ms. Carlen's statements was offered not "to prove the truth" of those
statements, see Fed. R. Ev. 801(c), but, rather, to show that Ms. Carlen had earlier
made statements that were inconsistent with her testimony at trial, see Fed. R. Ev.
613(b), and therefore that she was not a believable witness.




                                            -3-
       A serious difficulty with the government's position and with the introduction in
general by the government of prior inconsistent statements for the purpose of
impeaching a government witness is "the fact that the power to impeach one's own
witness can be abused." See 27 C. Wright and V. Gold, Federal Practice and
Procedure: Evidence § 6093 at 496 (1990). When the government calls the witness to
be impeached in a criminal case "simply for the purpose of eliciting testimony
inconsistent with a prior statement," the government's actual intent may be not "to
attack credibility ... [but] to expose the jury to the prior inconsistent statement and ...
improperly induce the jury to consider the statement for the truth of the matters asserted
therein." See 28 C. Wright and V. Gold, Federal Practice and Procedure: Evidence
§ 6203 at 535 (1993). "Courts must be watchful that impeachment is not used as a
subterfuge to place otherwise inadmissible hearsay before the jury." United States v.
Rogers, 549 F.2d 490, 497 (8th Cir. 1976), cert. denied, 431 U.S. 918 (1977).

       We believe, however, that the government's motive in eliciting testimony is
irrelevant. Although some courts focus on determining the "true" purpose of the
government in introducing testimony, we think that the relevant question is simply
whether the evidence is admissible under Fed. R. Ev. 403. See, e.g., United States v.
Ince, 21 F.3d 576, 580 (4th Cir. 1994); United States v. Webster, 734 F.2d 1191, 1193
(7th Cir. 1984); and United States v. DeLillo, 620 F.2d 939, 944, 946-47 (2d Cir.
1980), cert. denied, 449 U.S. 835 (1980). See also 27 Wright and Gold, Federal
Practice § 6093 at 507-08, and 28 Wright and Gold, Federal Practice § 6206 at 535.
In other words, we hold that the proper inquiry is whether, as an objective matter and
irrespective of the government's motive, the probative value of a statement for
impeaching the credibility of a witness is "substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation of cumulative evidence," see
Fed. R. Ev. 403. With this construct in mind, we turn to the relevant specifics of
Ms. Carlen's testimony and the state police officer's recounting of Ms. Carlen's earlier,
different statements to him.

                                           -4-
       In her testimony, Ms. Carlen denied ever receiving methamphetamine directly
from Mr. Logan. In contrast, the state police officer testified that Ms. Carlen told him
that she bought methamphetamine in one- or two-ounce quantities from Mr. Logan "for
around two years." Ms. Carlen also denied that she had ever seen Mr. Logan "counting
a large sum of money" -- approximately $20,000. The officer testified, however, that
Ms. Carlen told him that she once saw Mr. Logan counting "what she would have
guessed" to be $20,000 to $30,000 in cash and saying that he was sending the money
to California. Ms. Carlen denied that she had ever met anyone named "Ronnie."
According to the officer, however, Ms. Carlen told him that in 1992 or 1993 she met
a man named "Ronnie" from California who was Mr. Logan's methamphetamine
supplier and who came to Mr. Logan's house in Illinois, evidently to bring
methamphetamine to Mr. Logan. Finally, Ms. Carlen denied that she told the officer
that Mr. Logan told her about losing $25,000 because of a drug shipment that was
intercepted by the police. The officer testified, in contrast, that Ms. Carlen told him
that Mr. Logan once related that a drug shipment that was intercepted by the police
would cost him $25,000.

       Because the statements are inconsistent, their only value lies in their ability to
"raise doubts regarding the truthfulness of both statements" (emphasis in original),
Firemen's Fund Insurance Co. v. Thien, 8 F.3d 1307, 1311 (8th Cir. 1993), in other
words, to suggest that Ms. Carlen is not a credible person. See, e.g., 28 Wright and
Gold, Federal Practice § 6206 at 534. The prior statements are inculpatory to
Mr. Logan if considered to be true, however, so in order to be admissible, their value
for impeachment purposes -- for portraying or exposing Ms. Carlen as a person who
is unworthy of belief -- has to outweigh the danger of unfair prejudice and jury
confusion that those prior statements may create if admitted. See Fed. R. Ev. 403. To
determine the value of impeaching Ms. Carlen, then, we must examine her testimony
as a whole. See, e.g., United States v. Ince, 21 F.3d at 581-82; United States v.




                                          -5-
Johnson, 802 F.2d 1459, 1466 n.17 (D.C. Cir. 1986); and United States v. Crouch,
731 F.2d 621, 624 (9th Cir. 1984), cert. denied, 469 U.S. 1105 (1985).

       Ms. Carlen testified that around 1991 or 1992, she "became aware" that
Mr. Logan "was going [by car] to California to get methamphetamine" and that he
made a "[c]ouple" of such trips. Ms. Carlen said that in 1991 or 1992 she and her sister
(Mr. Logan's wife at that time) went on one of those trips. Ms. Carlen also stated that
she later "heard ... from people" that Mr. Logan was receiving methamphetamine "in
the mail, by Federal Express or UPS" (Mr. Logan made no objection to this hearsay).
Around that time, Ms. Carlen said, she began to buy methamphetamine "from friends,
other people," "but not from Mr. Logan." Ms. Carlen further stated that she sometimes
sold up to half a gram of methamphetamine to support her own purchases of the drug.
She denied telling the state police officer that Mr. Logan had "fronted" to her, for
resale, one or two ounces of methamphetamine at a time at $1,700 per ounce (the
officer did not testify about a statement to this effect). As noted above, Ms. Carlen also
denied seeing Mr. Logan "counting a large sum of money," denied meeting anyone
named "Ronnie," and denied hearing from Mr. Logan that he lost $25,000 because of
a drug shipment that was intercepted by the police.

       Quite frankly, we see more damage than assistance to Mr. Logan in Ms. Carlen's
testimony. At best, the prior statements could cast doubt on the truthfulness of
Ms. Carlen's denial that Mr. Logan ever sold or "fronted" methamphetamine to her.
Most of the remainder of Ms. Carlen's testimony was neither exculpatory nor
inculpatory. The testimony about Mr. Logan's trips to California seems to be more
incriminating, moreover, than any effect that could be attributed to establishing that
Mr. Logan sold methamphetamine specifically to Ms. Carlen (contrary to her denial).
Testimony about an intercepted drug shipment, furthermore, also came from other
witnesses so that Ms. Carlen's denial of a conversation about such a shipment was
relatively unimportant.


                                           -6-
        It appears to us, therefore, that the value of impeaching Ms. Carlen as a witness
was relatively low, whereas the danger of unfair prejudice and jury confusion --
specifically, the danger of the jury's using Ms. Carlen's prior statements as substantive
evidence -- was very high. It is true that the trial court properly instructed the jury on
impeachment and prior inconsistent statements. That instruction was given, however,
not at the time of the state police officer's testimony but at the end of the trial, and the
commentators have remarked on "the inefficacy of a limiting instruction," see
28 Wright and Gold, Federal Practice § 6206 at 535, in any event, in these
circumstances.

       Our assessment of the prior statements as creating a danger of unfair prejudice
and jury confusion is reinforced by the fact that the government elicited, through the
state police officer's testimony, additional inculpatory statements that Ms. Carlen
allegedly made to the officer. That testimony was to the effect that Mr. Logan received
methamphetamine shipments in the mail or through Federal Express or UPS every two
to four weeks and that Mr. Logan began with approximately four to six ounces of
methamphetamine in each shipment and later received approximately one to three
pounds at a time. None of that testimony was admissible as impeachment evidence,
because Ms. Carlen did not deny having made such statements (the government never
examined her with respect to these matters). See, e.g., United States v. Dennis,
625 F.2d 782, 796 (8th Cir. 1980); see also United States v. Devine, 934 F.2d 1325,
1344 (5th Cir. 1991), cert. denied, 502 U.S. 929 (1991), 502 U.S. 1047, 1064, 1065,
1092, 1104, 503 U.S. 999 (1992). The only possible relevance that that testimony
could have had was as substantive evidence, yet it was clearly hearsay for those
purposes. See Fed. R. Ev. 801(c). It was therefore manifestly inadmissible.

      In short, although the state police officer's testimony had some impeachment
value, that value was far outweighed by the danger of unfair prejudice and jury
confusion that also accompanied the officer's testimony. The trial court therefore


                                            -7-
committed "error" that was "plain," within the meaning of Fed. R. Crim. P. 52(b), in
admitting the officer's testimony. See, e.g., United States v. Olano, 507 U.S. 725,
732-34 (1993). See also Johnson v. United States, 117 S. Ct. 1544, 1549 (1997);
United States v. Hill, 91 F.3d 1064, 1072 (8th Cir. 1996); and United States v.
Webster, 84 F.3d 1056, 1066 (8th Cir. 1996). Our next inquiry is whether the trial
court's action was prejudicial to Mr. Logan, i.e., whether it affected the outcome of his
trial. See, e.g., United States v. Olano, 507 U.S. at 734; see also Johnson v. United
States, 117 S. Ct. at 1549, and United States v. Webster, 84 F.3d at 1066.

                                             III.
        Other witnesses testified that the police intercepted a package in early 1993 that
was intended to be sent through UPS from California to "Don Howard" at the address
in Illinois where Mr. Logan lived at that time with his girlfriend; the package contained
almost a pound of methamphetamine. A different girlfriend testified that Mr. Logan
sometimes received telephone calls from "Ronnie" at an address in Illinois where
Mr. Logan lived later in 1993 and in 1994. In addition, between late 1992 and mid-
1993, Ronnie and Henrietta Furnish (co-defendants whose cases we do not address
here) received at least $9,000 in five wire transfers to California from "Dave Hogan"
(or "Hagan") and "Dan Long" in Illinois. Two handwriting samples from those wire
transfers were identified by a document examiner as probably being written by
Mr. Logan, "based on [a] reasonable degree of scientific certainty in the field of
handwriting analysis." Another witness testified that during 1992 and 1993, he bought
methamphetamine from Mr. Logan in one-ounce quantities roughly "[e]very two or
three days," sometimes on credit. The witness testified further that he sold part of that
methamphetamine to pay Mr. Logan and used the rest. Finally, Ms. Carlen never
recanted or disclaimed her testimony that Mr. Logan was obtaining methamphetamine
from California in 1991 or 1992.

       It appears to us that nearly all of Ms. Carlen's alleged statements to the state
police officer were cumulative to the other evidence against Mr. Logan, and therefore

                                           -8-
probably negligible in additional effect. We believe, moreover, that from all of that
evidence (and excluding the officer's testimony about Ms. Carlen's statements to him),
the jury would have concluded, beyond a reasonable doubt, that, using an alias,
Mr. Logan ordered methamphetamine from California, at least once during the period
of the conspiracy, in a quantity large enough to support an inference of intent to
distribute on his part; that, using an alias, Mr. Logan wired money to the Furnishes (co-
defendants) in California to pay for shipments of drugs; and that he sold
methamphetamine to at least one other person on a somewhat regular basis in amounts
large enough to suggest an intent for or knowledge of, on the part of Mr. Logan, further
distribution by that person.

       We conclude, therefore, that even though the trial court should not have admitted
the state police officer's testimony about Ms. Carlen's statements, that error did not
"affect[] [Mr. Logan's] substantial rights." See Fed. R. Crim. P. 52(b); see also United
States v. Patterson, 23 F.3d 1239, 1246 n.7 (7th Cir. 1994), cert. denied, 513 U.S. 1007
(1994). In other words, the error was not legally significant within the meaning of
Fed. R. Crim. P. 52(b). We need not consider, then, whether the fairness, integrity, or
public reputation of judicial proceedings was seriously affected by the admission of the
officer's testimony. See, e.g., United States v. Olano, 507 U.S. at 736. See also
Johnson v. United States, 117 S. Ct. at 1549-50; United States v. Robinson, 110 F.3d
1320, 1324 (8th Cir. 1997); and United States v. Miner, 108 F.3d 967, 969 (8th Cir.
1997).

                                            IV.
       During trial, the court admitted evidence that in 1990, Mr. Logan was stopped
in Texas for a traffic violation and subsequently arrested for possession of a little more
than a fourth of a gram of methamphetamine. The arresting officer characterized the
amount of methamphetamine found as "a personal amount" that would be "almost
impossible" "to break ... up and distribute and sell." The officer further testified that
he also found a razor blade and a short straw (which, the officer agreed, were "used
primarily for ... methamphetamine") in the glove compartment of Mr. Logan's car.


                                           -9-
Finally, the officer testified that Mr. Logan stated at the time of the arrest that "the ...
'dope' was his" (rather than his wife's, presumably).

       Mr. Logan challenges the admission of all of that evidence, contending that it
was not relevant to the crime charged, since it involved an amount consistent with
personal use only, rather than distribution, and, even if relevant, that its unfair
prejudicial effect far outweighed any probative value that it had. See Fed. R. Ev. 403.
We disagree.

       Evidence of "other crimes, wrongs, or acts" by a defendant, see Fed. R. Ev.
404(b), is inadmissible only if it is relevant solely on the question of a defendant's
"character or ... propensity to commit the crime charged." United States v. Jones, 990
F.2d 1047, 1050 (8th Cir. 1993), cert. denied, 510 U.S. 1048 (1994). Such evidence
is admissible if it is "(1) relevant to a material issue; (2) proved by a preponderance of
the evidence; (3) higher in probative value than in prejudicial effect; and (4) similar in
kind and close in time to the crime charged." United States v. Campbell, 937 F.2d 404,
406 (8th Cir. 1991).

       Our court has held that evidence of prior possession of drugs, even in an amount
consistent only with personal use, is admissible to show such things as knowledge and
intent of a defendant charged with a crime in which intent to distribute drugs is an
element. See, e.g., United States v. Powell, 39 F.3d 894, 896 (8th Cir. 1994), and
United States v. Brown, 956 F.2d 782, 786-87 (8th Cir. 1992); see also United States
v. Templeman, 965 F.2d 617, 619 (8th Cir. 1992), cert. denied, 506 U.S. 980 (1992).
This is so even if the defendant has not raised a defense based on lack of knowledge
or lack of intent. See, e.g., United States v. Escobar, 50 F.3d 1414, 1422 (8th Cir.
1995), and United States v. Aranda, 963 F.2d 211, 215 (8th Cir. 1992). We therefore
see no error in the trial court's admission of the evidence about Mr. Logan's prior arrest
for possession of methamphetamine, especially since the trial court also instructed the
jurors that they could not use the evidence "to decide whether [Mr. Logan] carried out
the acts involved in the crime charged" but that if they were convinced, beyond a


                                           -10-
reasonable doubt, by other evidence that Mr. Logan had indeed carried out the acts
involved in the crime charged, they could "use this evidence concerning previous acts
to decide intent, knowledge, or common scheme or plan." See Fed. R. Ev. 404(b).

                                         V.
      At sentencing, the trial court attributed from three to ten kilograms of
methamphetamine and/or heroin to Mr. Logan. That attribution meant that his base
offense was set at level 34 under the federal sentencing guidelines. See U.S.S.G.
§ 2D1.1(a)(3), § 2D1.1(c)(3). Mr. Logan challenges that attribution, arguing that the
evidence did not support a finding of such a large amount.

       There was testimony at trial (no additional evidence was presented at sentencing)
that during the period of the conspiracy, a package containing approximately 450 grams
of methamphetamine was sent from California to the address where Mr. Logan lived;
although that package was intercepted by the police, at sentencing even Mr. Logan
conceded that the amount of drugs in it could be attributed to him for sentencing
purposes. In addition, one witness testified that between fall, 1992, and spring, 1993,
he bought one ounce of methamphetamine every two or three days from Mr. Logan.
Even assuming purchases of one ounce every two days from that testimony for the
period from December, 1992 (when the conspiracy allegedly began), through April,
1993, though, those purchases would total approximately 2,137 grams at most. Finally,
several witnesses testified that methamphetamine cost about $1,000 per ounce.
Assuming that the $9,000 that can fairly be associated with Mr. Logan in wire transfers
to Ronnie and Henrietta Furnish (co-defendants whose cases we do not address here)
was for the purchase of nine ounces of methamphetamine, that amount would be
approximately 255 grams. All three of those quantities, however, total only 2,842
grams, less than the three kilograms required to sustain the base offense level given to
Mr. Logan.

     At sentencing, the trial court made no findings with respect to other conspirators
whose drug amounts should be attributed to Mr. Logan. Instead, the court merely


                                         -11-
"overrule[d]" Mr. Logan's objection to the amounts attributed to him. We cannot tell,
therefore, what other drug amounts, if any, ought to have been included in determining
his base offense level. We thus remand Mr. Logan's case for resentencing in light of
these concerns. See e.g., United States v. Randolph, 101 F.3d 607, 609 (8th Cir.
1996), and United States v. Alexander, 982 F.2d 262, 267-68 (8th Cir. 1992).

                                         VI.
       The trial court imposed a three-level increase in Mr. Logan's offense level,
finding that Mr. Logan was a manager or supervisor in a criminal activity that involved
five or more participants or was otherwise extensive. See U.S.S.G. § 3B1.1(b).
Mr. Logan challenges the conclusion that he was a manager or supervisor (although the
question is not completely free from doubt, it appears that he does not contest the size
or scope of the conspiracy).

        "To qualify for an adjustment under [U.S.S.G. § 3B1.1(b)], the defendant must
have been the ... manager, or supervisor of one or more other participants." See
U.S.S.G. § 3B1.1, application note 2. The only evidence at trial with respect to
anything that might be construed as a managerial or supervisory role for Mr. Logan was
the testimony of one witness who stated that he bought methamphetamine in one-ounce
quantities from Mr. Logan "[e]very two or three days" -- whenever he would "run out"
-- for "a short while."

        The witness acknowledged that whenever he obtained some methamphetamine
from Mr. Logan, he would "use some of [it] and then distribute some of [it], sell some
of [it]." The witness also stated, however, that he had no "agreement with [Mr. Logan]
to distribute the profits from those drugs," although Mr. Logan did sometimes "front"
the methamphetamine to him. When that happened, the witness said, he would "sell
it, make some money, and then pay [Mr. Logan]." The terms of those transactions,
though, were that the witness would subsequently pay Mr. Logan only a fixed amount;
"there was ... no splitting of the profits." We note as well that the witness stated that



                                          -12-
he stopped buying from Mr. Logan when the "[p]roduct started being bad" -- when it
"was cut" (diluted with some other substance).

        We do not believe that that evidence is enough to sustain a finding that
Mr. Logan was a manager or supervisor of the witness. In its brief, moreover, the
government cites no other candidate as a potential participant managed or supervised
by Mr. Logan. The amounts of money (at least $1,500 at a time) that Mr. Logan can
fairly be charged with sending to Ronnie and Henrietta Furnish (co-defendants whose
cases we do not address here) do allow the inference that Mr. Logan was buying
methamphetamine in quantities appropriate for distribution. Status as a distributor,
however, by itself is not sufficient to justify a finding that a defendant is a manager or
supervisor. See, e.g., United States v. Bryson, 110 F.3d at 584. We therefore reverse
the trial court's finding that Mr. Logan was a manager or supervisor.

                                          VII.
       For the reasons stated, we affirm Mr. Logan's conviction but remand his case for
resentencing.

      A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                          -13-
