United States of America v. Vernard L. Green, Jr.

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-1513
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
VERNARD L. GREEN, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:98 CR 74--Rudy Lozano, Judge.
Argued December 4, 2000--Decided July 25, 2001
Before Flaum, Chief Judge, and Diane P.
Wood and Williams, Circuit Judges.
Williams, Circuit Judge. A jury
convicted Vernard L. Green, Jr., of
distributing crack cocaine, conspiracy to
distribute crack cocaine, and using a
communication device in connection with
the conspiracy and distribution.
Greenappeals, raising multiple alleged
evidentiary and sentencing errors by the
district court and asserting that the
evidence was insufficient to support his
conviction. We affirm.
I
Vernard Green’s problems began when the
Gary Response Investigative Team (GRIT),
a task force of federal and state law
enforcement officers, targeted for
investigation one of Green’s customers,
Armondo Guzman, whom they suspected of
trafficking in drugs in Gary, Indiana.
GRIT enlisted the help of Danny Cox, an
informant who had cooperated in other
GRIT investigations after GRIT caught him
selling cocaine to undercover agents.
GRIT asked Cox to attempt to make a
controlled purchase from Guzman, and on
April 10, 1998, Cox went to Guzman’s home
and asked for an ounce of crack cocaine.
Guzman said he would have to contact his
source, and placed a telephone call. A

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short time later, an individual arrived
and gave the cocaine to Guzman, who then
sold it to Cox. The GRIT officers
conducting surveillance were too far away
to see who delivered the cocaine to
Guzman.
Several days later, Lieutenant Huttle
and two other GRIT officers arrested and
questioned Guzman. According to Huttle’s
written report of that interview, Guzman
identified a man known as "Butter" as his
source of cocaine. Guzman told the agents
that he purchased cocaine from "Butter"
about 100 times, usually in quantities of
either an eighth of an ounce or an ounce.
Vernard Green was then questioned by
three GRIT officers, including Indiana
State Trooper John Jefferson, about the
events on April 10. According to
Jefferson’s report of that interview,
Green admitted that in response to
Guzman’s page, he delivered crack cocaine
to Guzman’s house. Green identified his
source as John Vinson, and agreed to try
to make a controlled purchase of crack
from him. Although he placed a call to
Vinson and identified himself as
"Butter," he refused to give any further
cooperation. He was arrested and indicted
on charges of distributing crack cocaine,
conspiracy to distribute crack cocaine,
and using a communication device in
connection with the conspiracy and
distribution.
At trial, Cox and Guzman identified
Green as the one who made the April 10
delivery to Guzman. Another witness,
Clifton Rock, testified that Green was
his source for cocaine, and testified
that he also saw Green sell drugs to
Herman Hicks, Ann Kelly, and Vincent
Hill. Three GRIT agents testified that
Green had admitted to them that in April
1998 he delivered an ounce of cocaine to
Guzman’s house in response to Guzman’s
page, and that Vinson was Green’s source.
When Green took the stand, he stated that
he went to Guzman’s house in April in
response to Guzman’s page, but he denied
delivering crack cocaine, making
incriminating statements to the GRIT
officers, and any involvement with
Vinson. A jury convicted Green on all
three charges.
At sentencing, the trial judge found
Green responsible for more than 500 grams

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of crack cocaine, based in large part on
Guzman’s statement about his history of
purchases from Green. The court increased
Green’s offense level based on its
determination that Green had committed
perjury during the trial, and denied
Green’s request for a downward departure
based on his employment and family
circumstances. The court sentenced Green
to concurrent sentences of 235 months’
imprisonment on the first two counts
(conspiracy and distribution) and 48
months on the third (using a
communication device to facilitate the
conspiracy and distribution).
II
A
Green argues that his conviction should
be reversed for four reasons. First,
Green contends that the district court
erred in admitting, as past recollection
recorded, law enforcement officers’
written summaries of their interviews
with Green and Guzman. He challenges the
admission of the reports and the
statements attributable to Green and
Guzman within those reports. Second, he
claims that the government improperly
bolstered Cox’s credibility by eliciting
testimony about Cox’s cooperation in
other prosecutions. Third, he argues that
testimony concerning his prior drug
transactions was inadmissible under
Federal Rule of Evidence 404(b). Finally,
Green claims that the evidence was
insufficient to support his convictions.
We examine each of these contentions in
turn.
1. The officers’ written summaries.
The district court allowed Trooper
Jefferson to read to the jury the written
summary he prepared of his interview of
Green, and allowed Lieutenant Huttle to
read to the jury his summary of the
interview of Guzman. Both written
summaries are the officers’ out-of-court
declarations, offered to prove the matter
asserted in them, so are hearsay. See
Fed. R. Evid. 801(c). The district court
admitted those summaries under Federal
Rule of Evidence 803(5), the hearsay
exception for past recollection recorded,
which allows memoranda or records meeting
the criteria of the Rule to be read to

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the jury, but not received as an exhibit.
Green made a timely objection to the
admission of the reports, so our review
is for abuse of discretion. United States
v. Lewis, 954 F.2d 1386, 1390 (7th Cir.
1992)./1
Green first contends that Jefferson’s
interview summary does not meet the
criteria of Rule 803(5) because Jefferson
did not prepare the summary until 11 days
after his interview with Green. Rule
803(5) requires that the memorandum be
made by the witness "when the matter was
fresh in the witness’ memory," but we
have declined to adopt any bright-line
rule to measure whether a particular
delay is too long. Lewis, 954 F.2d at
1394. Instead, we have held that the
trial court may consider the lapse of
time along with other circumstances that
may be relevant in determining the
likelihood that the witness had an
accurate memory of the event at the time
the record was prepared. Id. (citing
United States v. Senak, 527 F.2d 129,
141-42 (7th Cir. 1975)). Green has not
identified any relevant circumstances
bearing on the likelihood that
Jefferson’s memory was inaccurate, other
than the delay between the interview and
the written report, and we do not believe
that an 11-day delay--in and of itself--
makes the interview so remote that
Jefferson could not have accurately
recalled it. See Senak, 527 F.2d at 141
(three-year delay between the events and
the creation of the memorandum not
excessive under the circumstances);
United States v. Smith, 197 F.3d 225, 231
(6th Cir. 1999) (15-month delay); United
States v. Patterson, 678 F.2d 774, 779
(9th Cir. 1982) (10-month delay). Hence,
the district court did not err in
determining that the report prepared 11
days after the interview qualified as
Jefferson’s past recollection recorded.
Green next contends that the assertions
attributed to Guzman and Green within the
reports should be excluded because he and
Guzman did not adopt the reports. We have
held that when a witness’s statement is
recorded by another, both the witness and
the one transcribing the statement must
testify as to the accuracy of the report
to establish that the statement is the
witness’s past recollection recorded
under Rule 803(5). United States v.
Schoenborn, 4 F.3d 1424, 1427-28 (7th

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Cir. 1993) (citing United States v.
Williams, 951 F.2d 853, 858 (7th Cir.
1992)). So, if Green and Guzman had
testified and affirmed the report’s
accuracy, the assertions attributed to
them would have been admissible under
Rule 803(5). See Schoenborn, 4 F.3d at
1428.
However, adoption of the assertions by
Green and Guzman is not required if there
is another basis for admitting them. This
is because statements such as these that
comprise multiple levels of potential
hearsay are admissible if each part is
admissible. See Fed. R. Evid. 805; United
States v. Severson, 49 F.3d 268, 271-72
(7th Cir. 1995). The government contends
that the assertions attributed to Green
and Guzman (the "internal" hearsay) fall
within the categories of out-of-court
statements defined as non-hearsay by Rule
801(d), even though offered to prove the
truth of the matter asserted. We agree
that the assertions attributable to Green
in Jefferson’s report are classic
admissions and not hearsay under Rule
801(d)(2)(A). The court did not err in
allowing Jefferson’s report to be read to
the jury.
As to the assertions attributed to
Guzman in Huttle’s report, the government
offered those as Guzman’s prior
consistent statements. A statement is not
hearsay, and admissible as a prior
consistent statement under Rule 801(d)
(1)(B), if it meets the following four
requirements:
1) the declarant testifies at trial
and is subject to cross-examination;
2) the prior statement is consistent
with the declarant’s trial
testimony; 3) the statement is
offered to rebut an express or
implied charge of recent fabrication
or improper motive; and, 4) the
statement was made before
the declarant had a motive to
fabricate.
United States v. Stoecker, 215 F.3d 788,
791 (7th Cir. 2000) (quoting United
States v. Fulford, 980 F.2d 1110, 1114
(7th Cir. 1992))./2
Putting aside the first requirement for
a moment, we conclude that the district
court was within its discretion in
determining that Guzman’s statements to

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Huttle were admissible under Rule
801(d)(1). The statements were consistent
with Guzman’s trial testimony, and were
offered to rebut Green’s counsel’s
attempt in cross-examination to show
that, because of his plea agreement,
Guzman had a motive to fabricate. See
Stoecker, 215 F.3d at 790. Green argues
on appeal that the fourth requirement of
Rule 801(d) (1)(B) was not met because
Guzman’s statement to Huttle was made
after he was arrested, and therefore
Guzman had a motive to fabricate at the
time the prior statement was made.
Because this argument was not raised
until his reply brief, it is waived.
Wright v. United States, 139 F.3d 551,
553 (7th Cir. 1998); United States v.
Feinberg, 89 F.3d 333, 340-41 (7th Cir.
1996)./3
Returning to the requirement that the
declarant be available for cross-
examination, Green contends that it was
error to admit Guzman’s prior statement
after the conclusion of Green’s cross-
examination of Guzman and during the tes
timony of Lieutenant Huttle. In United
States v. West, 670 F.2d 675, 687 (7th
Cir. 1982), we interpreted Rule 801(d)
(1)(B)’s requirement of cross-examination
to mean that the out-of-court statement
must be elicited through the declarant,
and not through a third party to whom the
declaration was made. The government asks
us to reconsider West, observing that no
other circuit requires that prior consis
tent statements be admitted through the
declarant.
At the time West was decided, we
acknowledged that our interpretation of
Rule 801(d)(1)(B) differed from the
interpretation of six other circuits that
permit a third party to testify about
another witness’s prior consistent
statement, so long as the witness who
made the out-of-court statement is
available for cross-examination at some
time during the trial. Id. at 686 (citing
United States v. Provenzano, 620 F.2d
985, 1000-02 (3d Cir. 1980); United
States v. Dominguez, 604 F.2d 304, 311
(4th Cir. 1979); United States v. Allen,
579 F.2d 531, 532 (9th Cir. 1978); United
States v. Lanier, 578 F.2d 1246, 1255-56
(8th Cir. 1978); United States v.
Zuniga-Lara, 570 F.2d 1286, 1287 (5th
Cir. 1978); United States v. McGrath, 558
F.2d 1102, 1107 (2d Cir. 1977)). In the

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nineteen years since West was decided,
our interpretation has not garnered
support. None of the remaining circuits
has followed West, leaving us a "minority
of one." United States v. Montague, 958
F.2d 1094, 1099 (D.C. Cir. 1992); see
United States v. Hebeka, 25 F.3d 287, 291
(6th Cir. 1994); United States v. Piva,
870 F.2d 753, 758 (1st Cir. 1989); United
States v. Griggs, 735 F.2d 1318, 1325-26
(11th Cir. 1984); United States v.
Sutton, 732 F.2d 1483, 1493-94 (10th Cir.
1984); see also 30B Michael H. Graham,
Federal Practice and Procedure, sec.7012 at
135 (2000) ("Where admissible, the prior
consistent statement may be testified to
by either the witness himself or any
other person with personal knowledge of
the statement.").
The justification we provided in West
was that Rule 801(d)(1)(B) requires not
only that the declarant generally be
available for cross-examination, but that
he be available for cross-examination
about the statement. West, 670 F.2d at
686 (citing United States v. Guevara, 598
F.2d 1094, 1100 (7th Cir. 1979); United
States v. Fearns, 501 F.2d 486, 489 (7th
Cir. 1974)). But, as other courts have
observed, this justification does not
compel the limitation we imposed in West.
See Montague, 958 F.2d at 1099; Hebeka,
25 F.3d at 292. Cross-examination about
the statement can be accomplished whether
or not the statement is introduced by the
declarant; if the statement is elicited
from a third party, the declarant may be
recalled for further examination. Id.
West thus goes beyond its justification
and imposes a precondition for
admissibility relating to the order and
manner that evidence is presented, a
precondition not contained in Rule
801(d)(1)(B). And although this
limitation avoids having to recall the
declarant and therefore may serve some
benefit in terms of trial management, we
think this consideration is better left
to the discretion of the trial court. See
Fed. R. Evid. 611(a).
That the requirement articulated in West
is not contained in nor apparent from the
Rule itself may explain why West has not
been mentioned in later decisions of this
court approving the admission of prior
consistent statements that were elicited
not from the declarant but from the
person to whom the statement was made.

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See United States v. Ruiz, 249 F.3d 643,
647-48 (7th Cir. 2001); Fulford, 980 F.2d
at 1113-14; United States v. Monzon, 869
F.2d 338, 342-43 (7th Cir. 1989); United
States v. Harris, 761 F.2d 394, 399 (7th
Cir. 1985); cf. Christmas v. Sanders, 759
F.2d 1284, 1288-89 (7th Cir. 1985)
(affirming, on other grounds and without
reference to West, district court’s
rejection of prior consistent statement
offered through a third party). These
later decisions suggest to us that the
limitation articulated in West is not
well known and, lacking good
justification, serves unnecessarily to
trap the unwary.
We therefore believe that it is time to
join our sister circuits and hold that
Rule 801(d)(1)(B) does not bar the
introduction of a prior consistent
statement through the testimony of
someone other than the declarant, so long
as the declarant is available for cross-
examination about the statement at some
time during trial./4 There is no
indication that Green was prevented from
recalling Guzman for cross-examination
about the assertions attributed to Guzman
in Huttle’s report, and because those
assertions meet the other requirements
for admission under Rule 801(d)(1)(B),
the district court did not abuse its
discretion in allowing Huttle’s report to
be read to the jury.
2. Evidence regarding Cox’s prior
cooperation.
Green also contends that the district
court erred in permitting testimony about
Cox’s cooperation with the government’s
investigation and prosecution of two
individuals unrelated to Green’s case. He
claims that this testimony was improper
bolstering of Cox’s credibility and
barred by Federal Rule of Evidence
608(b).
We begin with a few general comments.
First, "bolstering" is the practice of
building up a witness’s credibility
before impeachment has been attempted.
United States v. Lindemann, 85 F.3d 1232,
1242 (7th Cir. 1996); United States v.
LeFevour, 798 F.2d 977, 983 (7th Cir.
1986). All of the testimony elicited by
the government regarding Cox’s
cooperation in other investigations was
in response to Green’s earlier questions

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of Agent Bookwalter, which were intended
to suggest that Cox was "setting up" a
number of people, including Green, in
order to avoid prosecution for his own
crimes. As a consequence, the government
did not engage in improper bolstering
when it introduced further evidence of
Cox’s cooperation to rebut Green’s
allegation of bias. See Lindemann, 85
F.3d at 1243; United States v. Penny, 60
F.3d 1257, 1264 (7th Cir. 1995); United
States v. McKinney, 954 F.2d 471, 478
(7th Cir. 1992); see also United States
v. Lochmondy, 890 F.2d 817, 821-22 (6th
Cir. 1989).
Second, Federal Rule of Evidence 608(b)
bars 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."
Fed. R. Evid. 608(b). However, we have
held that if evidence of the witness’s
cooperation in other investigations is
directed at rebutting allegations of the
witness’s bias, and not at his character
for truthfulness in general, the
limitations of Rule 608(b) do not apply.
Lindemann, 85 F.3d at 1243; see also
United States v. Smith, 232 F.3d 236,
242-43 (D.C. Cir. 2000); United States v.
Fusco, 748 F.2d 996, 998 (5th Cir. 1984).
Instead, the evidence is governed by the
relevance standard of Rule 402.
Lindemann, 85 F.3d at 1243; United States
v. Curry, 187 F.3d 762, 767 (7th Cir.
1999). The question, then, is whether the
testimony of Cox’s prior cooperation was
relevant to the issue of Cox’s bias, and
if so, whether its probative value was
substantially outweighed by the danger of
unfair prejudice. See Lindemann, 85 F.3d
at 1243; Curry, 187 F.3d at 767.
Turning to the specific testimony in
this case, we note that Green made no
objection at trial to the testimony that
he now complains was improper (with one
exception, which we will address in a
moment), and our review is therefore for
plain error. Penny, 60 F.3d at 1264.
Agent Bookwalter (a member of the GRIT
team who had worked with Cox) testified
that the information provided by Cox in
other investigations was "credible and
reliable and consistent with" what the
GRIT team observed. This testimony tends
to make Green’s theory of bias less
probable and was therefore relevant. See
Smith, 232 F.3d at 241 (stating that the

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fact that the witness "has informed and
testified truthfully in the past under
his plea agreement certainly bears on his
response to similar pressures and
temptations in the present"). And
although Green does not argue that the
evidence was unduly prejudicial, we note
that the jury had already heard almost
identical testimony elicited during
Green’s cross-examination of Bookwalter.
Given this context, we would be hard
pressed to conclude that the testimony
elicited by the government, even if
unduly prejudicial if standing alone, had
any affect on the outcome. See United
States v. Napue, 834 F.2d 1311, 1324 (7th
Cir. 1987); United States v. Mazzone, 782
F.2d 757, 763 (7th Cir. 1986). Therefore
reversal is not warranted under plain
error review. See Penny, 60 F.3d at
1265./5
Green did make a timely objection to
Bookwalter’s statement that the other
trial in which Cox testified resulted in
conviction, and so we review the district
court’s decision to admit that statement
for abuse of discretion. Curry, 187 F.3d
at 767. Green contends that the jury may
not hear that the witness’s cooperation
resulted in convictions, relying on our
decision in United States v. Napue, 834
F.2d 1311, 1324 (7th Cir. 1987), and the
government concedes this point. However,
in Napue, we did not hold that such
testimony is never admissible. Instead,
we considered whether a mistrial was
warranted when a prosecutor made
reference in closing argument to
convictions that resulted from a
witness’s testimony in another case,
despite the trial judge’s earlier ruling
barring the evidence on relevancy
grounds. Id. The question there was
whether the prosecutor’s violation of the
earlier ruling required reversal, and not
whether the earlier ruling was correct or
incorrect./6
But given the government’s concession,
we decline to explore the question of
whether the district court abused its
discretion in this case by admitting
evidence of the convictions that resulted
from Cox’s testimony. Instead, we agree
with the government that the error, if
any, was harmless because of the
overwhelming evidence of Green’s guilt.
See Fed. R. Crim. P. 52(a). The most
significant evidence provided by Cox was

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his identification of Green as the person
who arrived at Guzman’s home immediately
before Guzman delivered the cocaine to
Cox on April 10. But this identification
was confirmed not only by Guzman’s
testimony, but by three GRIT agents who
testified that Green confessed to that
incident--testimony that Green does not
challenge on appeal. Given this
testimony, and other corroborating
evidence, we find that even if it was
error to admit testimony that Cox’s
cooperation in other cases resulted in
convictions, the error was harmless. See
Curry, 187 F.3d at 767; cf. Smith, 232
F.2d at 243.
3. Evidence of Green’s prior drug
transactions.
Green next contends that the district
court improperly admitted Clifton Rock’s
testimony that he purchased from Green an
average of about 1 ounces of cocaine per
week, and that he saw Green sell cocaine
to other individuals, during a period
ending more than a year before the
conspiracy charged in this case. Evidence
of other wrongs is admissible under
Federal Rule of Evidence 404(b) if the
evidence: (i) is directed toward
establishing a matter in issue other than
the defendant’s propensity to commit the
crime charged; (ii) shows that the other
act is similar enough and close enough in
time to be relevant; (iii) is sufficient
to support a finding that the defendant
committed the other act; and (iv) has
probative value not outweighed by the
danger of unfair prejudice. United States
v. Williams, 238 F.3d 871, 874 (7th Cir.
2001); United States v. Moore, 115 F.3d
1348, 1354 (7th Cir. 1997). Green
contends that Rock’s testimony fails all
four prongs of this test.
As to the first prong of the test, we
have held on numerous occasions that when
a defendant is charged with a specific
intent crime (here, conspiracy to
distribute cocaine), evidence of the
defendant’s prior drug transactions may
be relevant to show knowledge and intent-
-purposes distinct from simply showing
the defendant’s propensity for drug
dealing. United States v. Jones, 248 F.3d
671, 675-76 (7th Cir. 2001); Williams,
238 F.3d at 875 n.1 and cases cited
therein; United States v. Monzon, 869
F.2d 338, 344 (7th Cir. 1989). Green

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argues that his theory was not that he
lacked intent, but rather that he was not
the person who delivered the drugs to
Guzman. This distinction is irrelevant
because the government must prove all
elements of the crime, and therefore
evidence probative of intent is relevant
whether or not the defendant makes intent
an issue. See Jones, 248 F.3d at 675;
United States v. Kellum, 42 F.3d 1087,
1093 (7th Cir. 1994); Monzon, 869 F.2d at
344.
Whether the evidence meets the second
prong of the test, similarity and
proximity, is evaluated in relation to
the purpose for which the evidence is
offered. United States v. Ruiz, 178 F.3d
877, 880 (7th Cir. 1999); United States
v. Torres, 977 F.2d 321, 326 (7th Cir.
1992). Where, as here, the evidence
relates to prior drug sales of the same
or similar type of drug, transactions
ending 14 months before the charged crime
are not too remote to be relevant to the
defendant’s knowledge and intent. See
Ruiz, 178 F.3d at 880 (two years between
offenses); United States v. Kreiser, 15
F.3d 635, 640 (7th Cir. 1994) (seven
years).
Rock’s testimony that he sold drugs to
Green and saw Green sell drugs to others
is sufficient to support a jury’s finding
that Green did in fact engage in that
conduct, and therefore the third prong of
the test is satisfied, notwithstanding
Green’s assertions about Rock’s
credibility. See United States v. Smith,
995 F.2d 662, 672 (7th Cir. 1993)
(holding that uncorroborated direct
testimony of an accomplice is sufficient
for purposes of Rule 404(b) unless it is
"incredible on its face or otherwise
insubstantial").
Finally, as to the fourth prong, we find
no error in the district court’s
determination that the evidence was not
unfairly prejudicial when weighed against
its probative value, particularly in
light of the district court’s instruction
limiting the jury’s consideration of the
evidence to the narrow purpose for which
it was offered. See United States v. Den
berg, 212 F.3d 987, 994 (7th Cir. 2000);
United States v. Brooks, 125 F.3d 484,
500 (7th Cir. 1997) (stating that
"limiting instructions are sufficient to
cure any potential prejudice resulting

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from the admission of 404(b) evidence").
Thus, we find no abuse of discretion in
the district court’s decision to admit
this evidence./7
4. Sufficiency of the evidence.
Green’s final challenge to his
conviction is that the trial evidence was
insufficient to support his conviction,
specifically, that there was insufficient
evidence that it was Green who
participated in the transactions with
Guzman in April 1998. Challenges based on
the sufficiency of the evidence are
rarely successful. See United States v.
Sanchez, 251 F.3d 598, 601 (7th Cir.
2001); United States v. Thornton, 197
F.3d 241, 253 (7th Cir. 1999). Our review
is highly deferential to the jury and we
will reverse "only when the record
contains no evidence, regardless of how
it is weighed, from which the jury could
find guilt beyond a reasonable doubt."
Penny, 60 F.3d at 1262 (citing United
States v. Rosalez-Cortez, 19 F.3d 1210,
1215 (7th Cir. 1994)). Here, Green’s
admission of his participation to three
law enforcement officers, as well as
Cox’s and Guzman’s testimony, was more
than sufficient to support the jury’s
verdict.
B
We turn now to Green’s three challenges
to his sentence, specifically, the
district court’s calculation of drug
quantity, its enhancement of the sentence
for obstruction of justice, and its
refusal to grant a downward departure for
family circumstances and employment. We
have examined each of these challenges
and find them to be without merit. First,
there was no clear error in the district
court’s calculation of drug quantity,
which was supported by sufficiently
reliable evidence, including Guzman’s
testimony and statements about his
history of purchases from Green. See
United States v. Durham, 211 F.3d 437,
444 (7th Cir. 2000); United States v.
Clay, 37 F.3d 338, 344 (7th Cir. 1994).
Second, the court was entitled to
disbelieve Green’s trial testimony, which
was contrary to admissions he made to law
enforcement officers and to the testimony
of other witnesses. Therefore, we find no
error in the court’s finding that Green
committed perjury, or its decision to

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apply a sentencing enhancement for
obstruction of justice. See United States
v. Jones, 983 F.2d 1425, 1430-31 (7th
Cir. 1993). Third, the district court
declined to exercise its discretion in
favor of Green, but recognized that it
had discretion to depart downward based
on family relationships and employment
even though those factors are "not
ordinarily relevant." See U.S.S.G. sec.
5H1.6. Accordingly, that decision is
unreviewable on appeal. United States v.
Jaderany, 221 F.3d 989, 997 (7th Cir.
2000); United States v. Guy, 174 F.3d
859, 861 (7th Cir. 1999); United States
v. Prevatte, 66 F.3d 840, 843 (7th Cir.
1995).
III
For the foregoing reasons, the judgment
of the district court is Affirmed.
FOOTNOTES
/1 The government contends that Green made no objec-
tion at trial to the admission of Huttle’s report
as past recollection recorded, and therefore that
our review is for plain error. We conclude,
however, that Green’s objections--while not a
model of clarity--were adequate to preserve the
issues that he is advancing on appeal regarding
whether the assertions attributable to Guzman in
Huttle’s report are admissible as a prior consis-
tent statement.
/2 Federal Rule of Evidence 801(d)(1) defines prior
consistent statements as not hearsay if "[t]he
declarant testifies at the trial or hearing and
is subject to cross-examination concerning the
statement, and the statement is . . . (B) consis-
tent with the declarant’s testimony and is of-
fered to rebut an express or implied charge
against the declarant of recent fabrication or
improper influence or motive. . . ."
/3 In any event, at the time Guzman made the state-
ment, Guzman had not yet entered into a coopera-
tion agreement with the government, and a reason-
able person could have concluded that the motive
to fabricate did not arise until the cooperation
agreement. Therefore, Green cannot show that the
court abused its discretion in determining that
this requirement of Rule 801(d)(1)(B) was met.
See Fulford, 980 F.2d at 1114; cf. United States
v. Williams, 128 F.3d 1128, 1133 (7th Cir. 1997).
/4 Because this holding overrules part of our deci-
sion in West, this opinion has been circulated to
all judges in regular active service in accor-

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dance with Circuit Rule 40(e). No judge voted to
hear the case en banc.
/5 The same is true for the testimony that the
government later elicited from Cox, which simply
confirmed the information already elicited by
Green concerning Cox’s cooperation in the earlier
investigation.
/6 Green also relies on United States v. Taylor, 900
F.2d 779, 781 (4th Cir. 1990), which held that
evidence of convictions in other cases in which
the witness had testified was inadmissible under
Federal Rule of Evidence 608(b). However, Taylor
is distinguishable from this case because in
Taylor, no impeachment based on bias was attempt-
ed, and therefore evidence of the witness’s prior
successful cooperation in other trials was irrel-
evant and improper bolstering. See United States
v. Lindemann, supra, 85 F.3d at 1243.
/7 Green also complains that the government did not
disclose, until the day before Rock testified,
that he would say that he saw Green sell cocaine
to Hicks, Kelly, and Hill. No objection was made
to the timeliness or adequacy of the government’s
pretrial notice describing Rock’s testimony, so
our review of this point is for plain error. See
United States v. Robinson, 110 F.3d 1320, 1325
(8th Cir. 1997). Green has not articulated how
the allegedly inadequate or untimely notice
affected his trial preparation or strategy nor
has he demonstrated any prejudice from the single
brief reference to Green’s sales to Hicks, Kelly,
and Hill. Consequently, he has not met his burden
of demonstrating that the alleged error affected
his substantial rights (i.e., affected the out-
come) or affected "the fairness, integrity, or
public reputation" of the trial, and we therefore
cannot conclude that the alleged error warrants
reversal. See United States v. Olano, 507 U.S.
725, 734 (1993); United States v. Mietus, 237
F.3d 866, 875 (7th Cir. 2001).

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