## Facts

- Federal agents ran an undercover operation targeting Deosie Wilson’s planned marijuana and cocaine trafficking in early 1993.
- Wilson obtained a $100,000 cashier’s check and later carried $50,000 cash as partial payment for cocaine during a controlled buy in Florida.
- Surveillance observed Wilson and Nicholas Grant together at a restaurant and traveling in a Nissan Pathfinder shortly before Wilson returned alone to an undercover residence to complete the transaction.
- Wilson told the undercover agent that a partner was nearby but did not want to meet anyone; after Wilson took one kilogram of cocaine and was arrested, Grant quickly left the restaurant, drove past the arrest area, fled at high speed, and was arrested after a short chase.
- A search of the Pathfinder revealed two loaded firearms.
- At Grant’s trial, the government introduced Wilson’s out-of-court statements through the undercover agent as coconspirator statements under Federal Rule of Evidence 801(d)(2)(E), using them (with circumstantial evidence) to link Grant to the conspiracy.
- The defense obtained a later sworn affidavit from Wilson stating he acted alone, fabricated having a partner, and that Grant had nothing to do with the drug activity.
- Grant sought to admit the affidavit only to impeach Wilson’s hearsay statements under Federal Rule of Evidence 806; the district court excluded it as not “inconsistent.”
- Grant was convicted of (1) drug conspiracy, (2) using a firearm during and in relation to a drug trafficking crime, and (3) failure to appear.

## Issues

1. Whether Grant’s appeal of the conspiracy and § 924(c) convictions was timely.
2. Whether the evidence was sufficient to support (a) failure to appear and (b) conspiracy.
3. Whether Wilson’s later affidavit recanting any partner and exculpating Grant was an “inconsistent statement” admissible to impeach Wilson’s hearsay statements under Federal Rule of Evidence 806.

## Decision

- The court treated the appeal as timely.
- The court held the evidence was sufficient to support the failure-to-appear conviction, and sufficient (standing alone) to permit an inference that Grant joined the conspiracy.
- The court held Wilson’s affidavit was inconsistent with the substance and use of Wilson’s earlier hearsay statements and was admissible for impeachment under Rule 806.
- Excluding the affidavit was not harmless as to the conspiracy and § 924(c) counts because Wilson’s statements were an important link tying Grant to the drug crime.
- The court reversed and remanded for a new trial on the conspiracy and § 924(c) counts, and affirmed the failure-to-appear conviction.

## Legal Principles

- When hearsay is admitted, the declarant’s credibility may be attacked as if the declarant testified, including by introducing inconsistent statements. Fed. R. Evid. 806.
- “Inconsistency” for Rule 806 impeachment is assessed by substance rather than a hyper-technical comparison; a later recantation can be inconsistent with earlier hearsay that implied a partner’s involvement even if the earlier hearsay did not name the defendant.
- Erroneous exclusion of impeachment evidence requires reversal when it may have affected the verdict on counts materially dependent on the hearsay linkage; harmlessness is evaluated count by count.

## Conclusion

The Eleventh Circuit held that a non-testifying coconspirator’s later sworn recantation and exculpation of the defendant was admissible under Rule 806 to impeach the coconspirator hearsay introduced by the government, reversed the conspiracy and § 924(c) convictions for non-harmless evidentiary error, and affirmed the failure-to-appear conviction.


United States v. Grant, 256 F.3d 1146 (11th Cir. 2001)