Tenth Circuit Finds Harmless Error in Trial Court’s Refusal to Give Limiting Instruction Regarding 1+ Hour Recording in Which Brother Said Defendant Was Guilty

Prior inconsistent statements made subject to the penalty of perjury are nonhearsay and admissible both to impeach and prove the truth of the matter asserted under Federal Rule of Evidence 801(d)(1)(A). Imagine that Erica testifies at a preliminary hearing that she saw Dana shoot Victoria and later testifies at trial that it was Carla who shot Victoria. Erica’s preliminary hearing testimony would be admissible to attack Erica’s credibility (because of the change in testimony) and to prove that Dana shot Victoria.

On the other hand, prior inconsistent statements not made subject to the penalty of perjury are hearsay and are only admissible to impeach under Federal Rule of Evidence 613. So, imagine that Erica texts her friend Felicia that she saw Dana shoot Victoria and later testifies that it was Carla who shot Victoria. Erica’s text message would be admissible to attack Erica’s credibility (because of the shift in her statements), but it would not be admissible to prove that Dana shot Victoria. 

It’s tough to compartmentalize like this, which is why the judge must give a limiting instruction upon request under Federal Rule of Evidence 105. In this latter situation, the instruction would tell jurors that they can only use the text message as it bears upon Erica’s credibility as a witness and not as it bears upon the identity of the shooter. Do limiting instructions work? Who knows? Does the judge have to give one upon request? Absolutely.

So, what happens when the judge does not?

In United States v. Butler, 2025 WL 1748822 (10th Cir. 2025), following a jury trial, G’Ante Butler was convicted of forcible assault of a federal officer and use of a firearm in furtherance of a crime of violence. At trial. G’Ante’s brother Zarion testified that G’Ante was not involved in the crimes. Thereafter, “the government offered as rebuttal evidence a recording of Zarion’s post-Miranda interview with law enforcement wherein he stated that G’Ante participated in the shooting….The recording was over an hour long.” The defense then requested a limiting instruction, but the court refused to give it.

After Butler was convicted, he appealed, claiming this was reversible error. In denying the appeal, the Tenth Circuit ruled that

The district court’s failure to give a limiting instruction regarding the proper use of Zarion’s prior unsworn statements was harmless error. The jury heard unequivocal testimony, which was corroborated by substantial circumstantial evidence, and convicted G’Ante on both counts….Considering the extensive evidence produced during this nine-day trial, we are not left in “ ‘grave doubt’” about whether the error had “ ‘substantial influence,’” on the verdict.

So, this is a pretty standard harmless error analysis that focuses upon the overall evidence against the defendant. But I don’t know. This was a 1+ hour recording in which the defendant’s brother admitted that the defendant took part in the shooting. That seems pretty prejudicial, especially in the absence of the limiting instruction the defense requested.

-CM