NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 18a0072n.06
No. 16-6592
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
MATTHEW B. CORDER,
Defendant-Appellant.
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Feb 12, 2018
DEBORAH S. HUNT, Clerk

On Appeal from the United States
District Court for the Western District
of Kentucky

BEFORE: GUY, GIBBONS, and COOK, Circuit Judges.
RALPH B. GUY, JR., Circuit Judge. Defendant Corder, a police officer, was indicted
and convicted after a jury trial of willfully depriving Derek Baize of his constitutional right to be
free from unreasonable seizure and malicious prosecution.

18 U.S.C. § 242.

On appeal,

defendant raises a number of alleged errors. After careful consideration of the issues raised we
find there was no error requiring reversal, and we affirm.
I. FACTS1
Late at night on October 22, 2014, Deric Baize arrived at his mobile home to discover
that defendant Matthew Corder, a deputy with the Bullitt County Sheriff’s Office, had parked his

1

Although there are several issues in this appeal, the events of October 22, 2014 are primarily
relevant to defendant’s sufficiency claim. Accordingly, we state them in a light most favorable
to the government. United States v. Cunningham, 679 F.3d 355, 370 (6th Cir. 2012).

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police cruiser in front of Baize’s home in Baize’s parking spot. (PageID # 657, 814, 818). Baize
asked defendant what was going on, to which defendant told Baize to mind his own business.
(PageID # 658.) Baize asked defendant to move his car, but defendant told Baize that he would
move his car when he was ready. (PageID # 658.) Baize admitted that he told defendant to
“fuck off” and began walking back into his house; defendant asked Baize to repeat himself, and
Baize stated “I did not stutter. I said ‘fuck off.’” (PageID # 658.) At trial, the parties disputed
whether Baize was shouting during this exchange. Baize conceded that he “raised his voice,”
because defendant asked him to repeat himself. (PageID # 687.) Baize’s stepsister, who lived in
the same trailer as Baize with her boyfriend, testified that Baize’s voice was “[a] little bit above
average, not too much, but not yelling.” (PageID # 712.) No neighbor called the police or came
out of their home to complain. (PageID # 705.)
Baize then walked into his home and closed the front door. (PageID # 658-59, 824-825,
357). Defendant and Baize’s roommate both testified that defendant ordered Baize to stop;
Baize testified that he did not hear that command. (PageID # 376-79, 712, 688-689.)
After Baize went inside, defendant activated his body camera and knocked on Baize’s
screen door. Baize opened his front door but left his screen door closed. Defendant opened
Baize’s screen door and told Baize to come outside “or there are going to be issues.” Baize
repeatedly refused, saying that defendant needed a warrant, but defendant responded that he did
not “need no warrant.” Defendant told Baize that “right now you’re out here hollering at me and
you ran in there, which means there’s exigent circumstances.” Baize again refused to come
outside. Defendant reached inside Baize’s home to grab Baize, who braced himself against his
doorjamb and said “you are not allowed in my house.” Defendant then entered Baize’s home,
grabbed Baize by the back of the neck, and began to arrest him. Defendant’s fellow deputy,

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Billy Allen, arrived and assisted with the arrest. Defendant tased Baize into submission and
completed the arrest.
Defendant prepared a post-arrest complaint charging Baize with three misdemeanors:
disorderly conduct in the second degree, Ky. Rev. Stat. § 525.060; fleeing or evading in the
second degree, Ky. Rev. Stat. § 520.100; and resisting arrest, Ky. Rev. Stat. § 520.090. The
post-arrest complaint operated as the charging document. (PageID # 515, 739.) In support of the
first two charges, defendant alleged in the complaint that the “[i]ncident caused alarm to
neighbors & occupants of trailer” and that Baize “to evade ran inside [his] trailer.”
After reviewing defendant’s charges and supporting allegations, the magistrate judge
detained Baize on a $1500 cash bond. The judge stated that she rejected the default unsecured
bond because the complaint charged Baize with evading police and resisting arrest. (PageID
# 794-95.) Baize could not afford the cash bond and spent two weeks in jail.
On December 8, 2014, the prosecutor and Baize’s public defender, without Baize’s
knowledge, agreed on an order of dismissal, which included the following: “The Court notes
that [Baize] stipulates that there was probable cause with respect to the charges herein.” (PageID
# 250.) It is undisputed that Baize never personally agreed to that stipulation. Baize found out
that his case had been dismissed when he arrived for his pretrial hearing several weeks later.
(PageID # 669.)
II. PROCEDURAL HISTORY
A grand jury returned a two-count indictment charging defendant with violating
18 U.S.C. § 242 by depriving Baize of his constitutional rights under color of law. Count 1
charged that defendant violated Baize’s right to be free from unreasonable seizures by seizing
Baize without probable cause to believe a crime had been committed, and by unlawfully entering

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Baize’s home to effect the seizure. Count 2 charged that defendant violated Baize’s right to be
free from unreasonable seizures, i.e., the right to be free from malicious prosecution, by charging
Baize with “disorderly conduct” and “fleeing and evading” without probable cause to believe
that Baize committed those crimes, and by knowingly including “false and misleading
information in the charging document,” which caused Baize to be detained in jail. (PageID # 12). After a four-day trial, a jury convicted defendant of both counts. (PageID # 310.) The court
sentenced defendant to concurrent terms of 27 months of imprisonment on Count 1 and 12
months of imprisonment on Count 2. (PageID # 1068.)
III. ANALYSIS
Defendant first argues that the jury did not hear sufficient evidence to convict on either
count under 18 U.S.C. § 242, because in his view the evidence only permits a conclusion that
Baize was, in fact, disturbing the peace and fleeing and evading, which justified an arrest and
prosecution. Defendant also takes issue with two of the jury instructions, asserting that one of
them misstated § 242’s mental-state requirement and the other misstated the physical boundary
at which police must recognize the Fourth Amendment’s protection of the home. In his fourth
and fifth assignments of error, defendant challenges the district judge’s evidentiary rulings, i.e.,
the decision to redact the stipulation in the state-court order dismissing the charges against Baize,
and the decision to permit the government to question him about prior lies he told to police
investigators in the 1990s. Finally, defendant objects to the inclusion of an enhancement for
physically restraining the victim in the calculation of his Guidelines range. We consider his
arguments in turn.
A. Sufficiency of the Evidence
We review de novo a district court’s denial of a motion for
acquittal based on the insufficiency of the evidence, United States

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v. Mabry, 518 F.3d 442, 447 (6th Cir. 2008), and must affirm the
district court's decision if, “after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). Because
we may not independently weigh the evidence or “substitute our
judgment for that of the jury,” Johnson v. Mitchell, 585 F.3d 923,
931 (6th Cir. 2009), a defendant making an insufficiency-of-theevidence argument “bears a very heavy burden.” United States v.
Daniel, 329 F.3d 480, 485 (6th Cir. 2003).
United States v. Cunningham, 679 F.3d 355, 370 (6th Cir. 2012).
Count 1 of defendant’s indictment, brought under 18 U.S.C. § 242, required the jury to
find that defendant deprived Baize of his right “to be free from an unreasonable seizure[ ], which
includes the right not to be arrested without probable cause, and the right to be free from
warrantless arrests in one’s home absent consent or exigent circumstances.” (PageID # 1, 282).
Count 2, brought under the same statute, required the jury to find that defendant deprived Baize
of his right to be free from unreasonable seizures, which includes the right to be free from
malicious prosecution.

(PageID # 1-2, 284, 286-87.)

Malicious prosecution occurred if

defendant issued the arrest citation “without probable cause to believe that [Baize] actually
committed the charged crime[s].”
“To determine whether an officer had probable cause to arrest an individual, we examine
the events leading up to the arrest, and then decide ‘whether these historical facts, viewed from
the standpoint of an objectively reasonable police officer, amount to’ probable cause.” Maryland
v. Pringle, 540 U.S. 366, 371 (2003) (quoting Ornelas v. United States, 517 U.S. 690, 696
(1996)).
Defendant’s arrest citation charged Baize with disorderly conduct in the second degree,
Ky. Rev. Stat. Ann. § 525.060(1)(b), which occurs when a person “[m]akes unreasonable noise.”
(PageID # 288.) Jury Instruction 13, which defendant does not challenge, establishes this as a

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fact question: “When considering whether a noise is unreasonable under subpart (b), [the jury]
may consider the time, place, and manner of the noise.” (PageID # 288.)
Defendant’s sufficiency argument asks us to second-guess the jury’s factual finding as to
whether Baize generated noise that was unreasonable. There was evidence that Baize did not
generate noise that was unreasonable, including his testimony, the testimony of one of the
trailer’s other occupants, and the fact that no one in the neighborhood complained. There was
evidence to the contrary, as well, but the jury was entitled to find Baize credible and defendant
not credible, and we may not independently weigh the evidence or substitute our judgment for
that of the jury. Cunningham, 679 F.3d at 370. Defendant has not carried his “very heavy
burden” to show that no rational trier of fact could have found that he lacked probable cause to
arrest Baize for disorderly conduct. See id.
Defendant also cited Baize for fleeing or evading in the second degree, Ky. Rev. Stat.
Ann. § 520.100(1)(a). To effectuate an arrest under that statute, a police officer must have
probable cause to believe that the suspect,
[1] with intent to elude or flee, . . . [2] knowingly or wantonly
disobeys a direction to stop, [3] given by a person recognized to be
a peace officer [4] who has an articulable reasonable suspicion that
a crime has been committed by the person fleeing, and [5] in
fleeing or eluding the person is the cause of, or creates a
substantial risk of, physical injury to any person.
(PageID # 289.) We cannot say that no reasonable trier of fact could have found that defendant
lacked probable cause to arrest Baize for fleeing or evading in the second degree.

Most

important, the jury was entitled to find that defendant lacked even “an articulable reasonable
suspicion that a crime [had] been committed by the person fleeing,” i.e., disorderly conduct,
based upon the evidence offered at trial.

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Furthermore, we reject defendant’s theory that the fifth element — “in fleeing or eluding
the person is the cause of, or creates a substantial risk of, physical injury to any person” — was
satisfied when Baize resisted arrest after returning to answer the door. For defendant to have had
probable cause to arrest Baize for fleeing and evading, he must have had probable cause to
believe that all of the elements of the crime were satisfied at the moment he sought the arrest.
Wesley v. Campbell, 779 F.3d 421, 429 (6th Cir. 2015). By defendant’s own account, however,
the fifth element — Baize’s creation of the risk — was not satisfied until after defendant initiated
the arrest and Baize physically resisted. See Trial Tr. vol. II at 160:11-161:5 (defendant admits
that he did not make the decision to arrest until “we were trying to bring [Baize] out [and] he
resisted”) (PageID # 832-33); Def. Br. at 18 (“The substantial risk of injury occurred when Baize
resisted arrest . . . .”). It is therefore impossible, under defendant’s theory, that defendant had
probable cause to believe Baize had met all of the elements of fleeing and evading when
defendant made the decision to arrest.
B. Jury Instruction (“Public Place”)
Count 1 permitted the jury to find defendant guilty if it concluded that he unreasonably
seized Baize by arresting Baize in his home absent exigent circumstances or consent. (PageID
# 282, 286.)

The district court did not commit reversible error with respect to the jury

instructions concerning the warrantless entry.
Defendant argues that Jury Instruction 12 was prejudicial because it denied the jury the
opportunity to make the factual determination whether Baize was standing in his threshold —
allegedly a “public place” not subject to the Fourth Amendment’s protection of the home —
when defendant initiated the arrest. He further argues that the jury instructions should have

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reflected that any arrest initiated in the arrestee’s threshold may be completed after the arrestee
retreats within his home.
“When a party claims a jury instruction improperly or inaccurately stated the law, we
review that claim de novo.” United States v. Roth, 628 F.3d 827, 833 (6th Cir. 2011) (citing
United States v. Blanchard, 618 F.3d 562, 571 (6th Cir.2010); H.C. Smith Invs., L.L.C. v.
Outboard Marine Co., 377 F.3d 645, 650 (6th Cir.2004)). “On the other hand, ‘[a] district
court’s refusal to give a jury instruction is reviewed for abuse of discretion.’” Id. (quoting H.C.
Smith Invs., L.L.C., 377 F.3d at 650). “A refusal to give requested instructions is reversible error
only if (1) the instructions are correct statements of the law; (2) the instructions are not
substantially covered by other delivered charges; and (3) the failure to give the instruction
impairs the defendant’s theory of the case.” United States v. Newcomb, 6 F.3d 1129, 1132 (6th
Cir. 1993) (citing United States v. Williams, 952 F.2d 1504, 1512 (6th Cir. 1991)). We “will not
reverse a decision on the basis of an erroneous jury instruction where the error is harmless.”
United States v. Adams, 583 F.3d 457, 469 (6th Cir. 2009) (quoting Barnes v. Owens–Corning
Fiberglas Corp., 201 F.3d 815, 822 (6th Cir. 2000)).
Defendant proposed an instruction that provided in part:
[T]he doorway of one’s home is considered a “public place” where
one has no reasonable expectation of privacy and is thus subject to
a warrantless arrest. Even if the arrest occurs as a result of an
officer reaching farther than the doorway area, the act of retreating
into a home does not thwart an otherwise legal arrest pursuant to
probable cause. If this is the case, the above restrictions relating to
a police officer entering a home to make an arrest do not apply.
(PageID # 266.) The district court rejected this proposed instruction. Citing defendant’s body
camera footage, the judge stated, “really, I don’t think a reasonable jury here can interpret . . .
Mr. Baize as being in the doorway versus in the house.” (PageID # 930.) The judge also relied

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on the Supreme Court’s holding that “the Fourth Amendment has drawn a firm line at the
entrance to the house. Absent exigent circumstances, that threshold may not reasonably be
crossed without a warrant.”

Payton v. New York, 445 U.S. 573, 590 (1980).

The judge

ultimately instructed the jury, in part, as follows:
Arrests that occur in someone’s home are presumed unreasonable
unless one of three things are true: (1) the officer gets an arrest
warrant authorized by a judge; (2) the person gives the officer
consent to enter his or her home; or (3) there is an emergency
situation — often referred to as exigent circumstances. Emergency
situations may include a serious threat to someone’s health or
safety, the imminent destruction of evidence, or the hot pursuit of a
fleeing suspect. If you find that the defendant arrested Deric Baize
in his home without a warrant, consent, and in the absence of an
emergency situation, then you may find that the arrest at issue was
unreasonable.
(PageID # 286-87.)
Defendant argues that United States v. Santana, 427 U.S. 38 (1976), compels a holding
that defendant could effectuate a warrantless arrest inside the home so long as it was lawfully
initiated while Baize was at his doorway, but that case is distinguishable. In Santana, the police
approached the defendant’s home already having probable cause to believe that the defendant
had committed a felony. The defendant was found standing in the threshold of her home: “one
step forward would have put her outside, [and] one step backward would have put her in the
vestibule of her residence.” Id. at 40 n.1. The police announced themselves, causing the
defendant to retreat into the vestibule. The police followed her inside to complete the arrest.
Santana contained two separate holdings.

It first held that the threshold to the

defendant’s home was “public,” insofar as the defendant was “exposed to public view, speech,
hearing, and touch as if she had been standing completely outside her house.” Id. at 42. At that
point in time, it was proper to initiate a warrantless arrest. In the second holding, the majority

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held that the defendant was unable to thwart that arrest by retreating into her home; but this was
only true under the circumstances because there was “a realistic expectation that any delay would
result in destruction of the evidence.” Id. at 43; see also Kentucky v. King, 563 U.S. 452, 462
(2011) (“[W]arrentless entry to prevent the destruction of evidence is reasonable and thus
allowed.”). Neither of these holdings are applicable to the instant case, and the district court did
not abuse its discretion in declining to apply Santana and use defendant’s requested jury
instruction.
First, it was a proper exercise of discretion to conclude that no reasonable juror could
agree with defendant’s factual contention that Baize was standing in his threshold. A defendant
is entitled to “some mention” of his theory in the jury instructions only when that theory “finds
some support in the evidence and in the law . . . .” United States v. Garner, 529 F.2d 962, 970
(6th Cir. 1976) (emphasis added) (citing United States v. Swallow, 511 F.2d 514 (10th Cir.
1975)). Defendant’s body camera shows Baize open his inner door, leaving the screen door shut.
Defendant was unable to cross the threshold and touch Baize without opening the screen door
himself (which he did), and all the while Baize remained several feet removed from his
threshold, inside of his home. Baize was not exposed to the same degree of public view, speech,
hearing, and touch as though he was on his porch. And we have presumed that a person who is
near, but interior to, his doorway is entitled to the benefit of Payton’s “threshold” rule. Smith v.
Stoneburner, 716 F.3d 926, 930 (6th Cir. 2013) (“Stoneburner admits that, by reaching across the
doorway to grab Charles, he entered the house . . . .”).
Defendant’s proposed jury instruction is also legally flawed, as it incorrectly suggests
that the hot-pursuit exception to the warrant requirement applies any time a suspect retreats into
his home, no matter the circumstances. “Before agents of the government may invade the

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sanctity of the home, the burden is on the government to demonstrate exigent circumstances that
overcome the presumption of unreasonableness that attaches to all warrantless home entries.”
Welsh v. Wisconsin, 466 U.S. 740, 750 (1984) (citing Payton, 445 U.S. at 586). “When the
government’s interest is only to arrest for a minor offense, that presumption of unreasonableness
is difficult to rebut . . . .” Id. “[I]f the presumption against warrantless entries stemming from
minor crimes is to have any meaning, the exigency must be a serious one . . . .” Stoneburner,
716 F.3d at 931.
Even if defendant’s proposed instruction contained a properly limited definition of the
hot-pursuit exception, defendant fails to explain how the exception applied to his decision to
enter Baize’s home. In Kentucky, second-degree disorderly conduct is a misdemeanor, Ky. Rev.
Stat. § 525.060(2), and there was no physical evidence of disorderly conduct that Baize could
have destroyed. See also Welsh, 466 U.S. at 751 (“[T]he lower courts have looked to the nature
of the underlying offense as an important factor to be considered in the exigent-circumstances
calculus . . . . For example, courts have permitted warrantless home arrests for major felonies if
identifiable exigencies, independent of the gravity of the offense, existed at the time of the
arrest.”). In Stoneburner — which involved a police officer who “held the door open, told [the
retreating suspect] to stop and crossed the threshold of the doorway to grab [the suspect] by the
wrist” — we rejected the officer’s hot-pursuit argument, observing:
Nor at any rate was the pursuit “hot” in any meaningful way. No
emergency necessitated immediate police action. [The suspect]
was not armed, a fact [the officer] knew because [the suspect] had
just volunteered to let the officer pat him down . . . . He was not
violent. There was no ongoing public nuisance. There was no sign
that anyone inside the house was injured or needed emergency aid.
And [the suspect] had committed no other, more serious, crimes.
716 F.3d at 929, 931-32.

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Defendant’s preferred jury instruction was overbroad, and the district court did not err by
refusing to give an instruction containing a misstatement of the law. Even if the instruction was
properly limited, defendant fails to establish that he was in hot pursuit, given that Baize’s alleged
disorderly conduct was a non-ongoing, non-violent misdemeanor that lacked any destructible
physical evidence. Finally, as noted above, defendant admitted at trial that he did not decide to
arrest Baize until after he reached across Baize’s threshold and Baize resisted — an admission
that contradicts his claim that he entered the home with intent to arrest. See Trial Tr. vol. II at
160:11-161:5. (PageID # 832-33.)
C. Jury Instruction (“Willfulness”)
To be convicted under either count brought pursuant to 18 U.S.C. § 242, defendant must
have acted “willfully.” (PageID # 282, 284.) Defense counsel tendered the following instruction
defining willfulness:
The word ‘willfully’ as that term is used in the indictment or in
these instructions, means that the act was committed voluntarily
and purposely, with the specific intent to do something the law
forbids; that is with bad purpose either to disobey or disregard the
law.
(PageID # 193.) At the charge conference, defense counsel stated that, “if the court is not
inclined to give my instruction on willfulness, I would object to any instruction on willfulness
and ask the court to follow the recommendations in the Sixth Circuit and not give a general
instruction on willfulness.” (PageID # 923.) The district court ultimately instructed the jury as
follows:
The third element the government must prove with respect to each
count is that the defendant acted willfully. A person acts willfully
if he acts voluntarily and intentionally, with the specific intent to
do something the law forbids. You may find that the defendant
acted willfully if you find that he acted in open defiance or reckless

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disregard of Deric Baize’s right to be free from unreasonable
seizure. In other words, the defendant acted willfully if he seized
Deric Baize knowing or recklessly disregarding the possibility that
the seizure was constitutionally unreasonable.
(emphasis added.) (PageID # 290.) Defendant argues that the emphasized language defines
willfulness too broadly. The government disagrees, and it also argues that defendant’s objection
at the charge conference was not sufficiently specific to preserve this issue. (Gov’t Resp. at 4648.)
“When a party claims a jury instruction improperly or inaccurately stated the law, we
review that claim de novo.” Roth, 628 F.3d at 833 (citing Blanchard, 618 F.3d at 571; H.C.
Smith Invs., L.L.C., 377 F.3d at 650). This includes a defendant’s claim that the court instructed
the jury on the incorrect definition of a crime’s required mental state. Id. “[W]e may reverse the
trial court based on a faulty charge ‘only if the instructions, viewed as a whole, were confusing,
misleading, or prejudicial.’” United States v. Blood, 435 F.3d 612, 623 (6th Cir. 2006) (quoting
United States v. Pensyl, 387 F.3d 456, 458 (6th Cir. 2004)).
“If no objection is made, or the objection is not sufficiently specific, we review the
claimed defect in the instruction only for plain error.” Id. (citing Fed. R. Crim. P. 52(b)). “In the
context of challenges to jury instructions, ‘[p]lain error requires a finding that, taken as a whole,
the jury instructions were so clearly erroneous as to likely produce a grave miscarriage of
justice.’” United States v. Newsom, 452 F.3d 593, 605 (6th Cir. 2006) (quoting United States v.
Combs, 33 F.3d 667, 669 (6th Cir. 1994)). “No single provision of the instructions can be
reviewed in isolation; we must consider the charge as a whole.” Pensyl, 387 F.3d at 458 (citing
United States v. Lee, 991 F.2d 343, 350 (6th Cir. 1993); United States v. Prince, 214 F.3d 740,
760-61 (6th Cir. 2000)).

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We agree with the government that defendant’s objection was not preserved. A party
“must inform the court of the specific objection and the grounds for the objection before the jury
retires to deliberate.” Fed. R. Crim. P. 30(d). On appeal, defendant objects to the instruction’s
mention of “recklessness,” as well as the implication that a mere “possibility” of
unconstitutionality suffices to satisfy the willfulness requirement. (Def. Br. at 45.) At the charge
conference, however, defense counsel made a blanket, general objection to any instruction on
willfulness that did not mirror the one he proposed. (PageID # 923.) See United States v.
Semrau, 693 F.3d 510, 527 (6th Cir. 2012) (“Merely proposing a jury instruction is insufficient
to preserve an objection.”) (citing United States v. Carmichael, 232 F.3d 510, 523 (6th Cir.
2000)). And defendant does not indicate that he made any objection after the charge conference,
once he knew the contents of the instruction the jury would hear. (See Def. Reply at 15-16.)
Accordingly, plain-error review applies. See Fed. R. Crim. P. 52(b).2
Defendant’s objection to the inclusion of the concept of “recklessness” in the instruction
does not survive plain-error review.

Defendant himself acknowledges that “‘[w]illfull’ is

synonymous with ‘reckless,’” (Def. Br. at 44) and the Supreme Court has held that one acts
willfully when acting “in reckless disregard of a constitutional requirement . . . .” Screws v.

2

At the charge conference, defendant argued that “willfulness” should not be defined at all.
(PageID # 923-24.) He claimed that “the Sixth Circuit does not recommend defining willfully.”
(PageID # 923.) To the extent that this argument comprised a timely, specific objection to
Instruction 15, it does not relate to the instant arguments concerning the phrase “recklessly
disregarding the possibility.” Furthermore, it is a misstatement of the law. The Sixth Circuit
does not recommend that the jury receive no instruction on willfulness. Rather, it eschews a
generally applicable definition in favor of a case-specific one. See Pattern Crim. Jury Instr. 6th
Cir. 2.05 (2017 ed.) (willfully) (“The Committee instead recommends that the district court
define the precise mental state required for the particular offense charged as part of the court’s
instructions defining the elements of the offense.”).

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United States, 325 U.S. 91, 105 (1945). The inclusion of a synonym for willfulness in a jury
instruction is not likely to produce a grave miscarriage of justice.
Defendant also objects to the portion of Instruction 15 that provided, “the defendant acted
willfully if he seized Deric Baize . . . recklessly disregarding the possibility that the seizure was
constitutionally unreasonable.” Defendant argues that this instruction permitted the jury to
convict if there was only a “possibility” that Baize’s rights were violated. This argument,
however, ignores the fact that, pursuant to a separate instruction, the jury had to specifically find
that Baize’s rights were actually violated, which they did. (PageID # 286.)
D. Redaction of Order Dismissing Charges against Baize
The state-law charges defendant brought against Baize were dismissed after the state
prosecutor and Baize’s defense counsel agreed to a dismissal order, which provided, “[Baize]
stipulates that there was probable cause with respect to the charges herein.” (PageID # 250.) It
is undisputed that Baize was not party to the creation of the order, did not know about the
stipulation, and learned of the dismissal of the case against him over a month after it occurred.
(PageID # 1181.) Baize’s signature is not on the order. (PageID # 250.) See also Def. Resp. to
Gov’t Mot. in Limine at 1-2 (PageID # 254-55) (“[B]oth the defense attorney and the prosecutor
signed the order, . . . signifying their agreement with the contents of the order . . . . [T]he parties
with legal training . . . agreed that probable cause did exist.” (first emphasis added)).
At trial, the government introduced a copy of the dismissal order to prove an element of
malicious prosecution.

Defendant objected, however, because the government proposed

redacting Baize’s purported stipulation from the order. (PageID # 90, 254, 792-93.) The
government asserted that the stipulation in the order would mislead the jury as to a core element
of its case, and that a limiting instruction would be ineffective. (PageID # 1170.) Defendant

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asserted, on the other hand, that a redacted dismissal order would suggest prosecutors’ belief that
probable cause to arrest Baize was lacking. (PageID # 1172-73.) The district court sided with
the government, and defendant now challenges the district court’s ruling.
A district court’s evidentiary decisions are reviewed for abuse of discretion. United
States v. Marrero, 651 F.3d 453, 471 (6th Cir. 2011) (citing United States v. Wagner, 382 F.3d
598, 616 (6th Cir. 2004)). “That is, we will overturn a ruling on the admissibility of evidence
only if the district court ‘committed a clear error of judgment in the conclusion it reached upon a
weighing of the relevant factors, . . . improperly applied the law, or used an erroneous legal
standard.’” Id. (quoting United States v. Haywood, 280 F.3d 715, 720 (6th Cir. 2002)) (brackets
omitted). “The court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”
Fed. R. Evid. 403.
Defendant does not allege that the district court misapplied the law or used an erroneous
legal standard, so we may only overturn the district court’s decision if it committed a clear error
of judgment in the conclusion it reached. Additionally, defendant concedes that the jury was not
bound by the stipulation and needed to make an independent finding whether probable cause
existed. (Def. Br. at 33.)
The district court was entitled to conclude that the probative value of the probable-cause
stipulation was substantially outweighed by its prejudicial effect. The mere fact of dismissal (as
the redacted order reflects) does not communicate that the officer lacked probable cause to arrest.
Rather, dismissal is a function of prosecutorial discretion and could have resulted from any
number of things, such as the prosecutor’s opinion about the ultimate burden of proof. See also

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Def. Br. at 33 (“[T]he complete order more accurately reflects both the prosecutor’s and defense
counsel’s belief that the case could not be proved beyond a reasonable doubt even though
probable cause existed for arrest.”); Trial Tr. at 11:1-7 (“There may have been a concern that,
hey, we might not be able to prove this beyond a reasonable doubt, but that’s not the probable
cause standard.”) (PageID # 1173). This stands in contrast to an unequivocal statement, in a
court document, in which it appeared (inaccurately) that Baize himself stipulated that defendant
had probable cause to arrest him. The district court also gave careful consideration to the
potential consequences of leaving the probable-cause stipulation unredacted, such as a need to
bring in the attorneys in Baize’s prosecution to testify whether the dismissal was ministerial,
which could further confuse the jury. (PageID # 1183-84.) Finally, the district court recognized
the lack of evidence that Baize agreed to any such stipulation. (PageID # 1174-75.) We cannot
say that the district judge committed a clear error of judgment.
Separately, defendant argues that the “rule of completeness” required admitting the
unredacted dismissal order. (Def. Br. at 32-33.) Under that rule, “[i]f a party introduces all or
part of a writing or recorded statement, an adverse party may require the introduction, at that
time, of any other part — or any other writing or recorded statement — that in fairness ought to
be considered at the same time.” Fed. R. Evid. 106. The rule of completeness, however, “allows
a party to correct a misleading impression.” United States v. Adams, 722 F.3d 788, 826 (6th Cir.
2013) (emphasis added) (quoting United States v. Holden, 557 F.3d 698, 705 (6th Cir. 2009)).
The purpose of the rule would not be accomplished if one allegedly misleading impression was
substituted for another, more misleading one. Furthermore, Rule 106 permits inclusion of other
parts of the writing if, “in fairness,” they ought to be considered. The district court’s decision to
redact the stipulation pursuant to Rule 403 amounts to a conclusion that “fairness” would not be

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served by admitting evidence it considered unduly prejudicial. See Merrick v. Mercantile-Safe
Deposit & Tr. Co., 855 F.2d 1095, 1104 n.10 (4th Cir. 1988) (“[T]he ‘fairness’ standard
prescribed by Rule 106 strongly suggests the appropriateness of the type of inquiry more
specifically required by Rule 403.”).
Defendant also claims that a limiting instruction would have eliminated the prejudice that
justified redacting the stipulation. (Def. Br. at 34.) Given that “[w]e grant the district court
‘very broad’ discretion in determining whether the danger of undue prejudice outweighs the
probative value of the evidence,” we disagree. United States v. Poulsen, 655 F.3d 492, 509 (6th
Cir. 2011) (quoting United States v. Vance, 871 F.2d 572, 576 (6th Cir. 1989)). A limiting
instruction “is not . . . a sure-fire panacea” for prejudice.

Haywood, 280 F.3d at 724.

Furthermore, the district court considered defendant’s request for a limiting instruction and
posed it to the government, and the government set forth unrebutted reasons why that would be
ineffective. (PageID # 1177-78.) Accord Fed. R. Evid. 403 advisory committee’s note (“In
reaching a decision whether to exclude on grounds of unfair prejudice, consideration should be
given to the probable effectiveness or lack of effectiveness of a limiting instruction.”).
Relatedly, the district court repeatedly suggested the parties come to an agreement about “some
sort of stipulation to be read to the jury about the dismissal of the case against [Baize]” that
would obviate the need to enter the dismissal order, but defendant did not pursue this option.
(PageID # 1175-76, 1184.) Accord id. (“The availability of other means of proof may also be an
appropriate factor” in a district court’s Rule 403 ruling.).
E. Cross Examination & Defendant’s Fifth Amendment Right
Again, we review evidentiary rulings for an abuse of discretion, reversing “only if the
district court committed a clear error of judgment in the conclusion it reached upon a weighing

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of the relevant factors, . . . improperly applied the law, or used an erroneous legal standard.”
Marrero, 651 F.3d at 471 (brackets omitted). This standard applies to constitutional challenges
to evidentiary rulings. See United States v. Schreane, 331 F.3d 548, 564 (6th Cir. 2003) (citing
Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997)). “Additionally, ‘reversal is appropriate only
if the abuse of discretion was not harmless error,’ that is, only if the erroneous evidentiary ruling
affected the outcome of the trial.” Marrero, 651 F.3d at 471 (quoting United States v. Vasilakos,
508 F.3d 401, 406 (6th Cir. 2007)) (brackets omitted).
Federal Rule of Evidence 608(b)(1) provides:
(b) Specific Instances of Conduct. Except for a criminal conviction
under Rule 609, extrinsic evidence is not admissible to prove
specific instances of a witness’s conduct in order to attack or
support the witness’s character for truthfulness. But the court may,
on cross-examination, allow them to be inquired into if they are
probative of the character for truthfulness or untruthfulness of:
(1) the witness. . . . By testifying on another matter, a witness does
not waive any privilege against self-incrimination for testimony
that relates only to the witness’s character for truthfulness.
See also Fed. R. Evid. 608(b) advisory committee’s note (2) (observing that “the possibilities of
abuse are substantial”; “the overriding protection of Rule 403” applies as a safeguard; and “the
instances inquired into [must] be probative of truthfulness or its opposite and not remote in
time”).
The internal affairs division of defendant’s police department investigated the propriety
of defendant’s arrest of Baize. (PageID # 423.) In 1991 and 1998, too, defendant was the
subject of internal affairs investigations, and in the course of those investigations, he lied to the
investigators. (Def. Br. at 34-35; Def. Reply at 15.)
Defendant argues that permitting cross-examination concerning his lies to internal affairs
investigators in 1991 and 1998 violated both his Fifth Amendment right against self-

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incrimination and Federal Rule of Evidence 608(b).

20

(Def. Br. at 34.)

Over defendant’s

objection, however, the district court permitted the government to elicit defendant’s testimony
admitting these lies. The district court based its ruling on Brown v. United States, 356 U.S. 148
(1958), concluding that defendant’s testimony about his own truthfulness had opened the door to
such cross-examination. (PageID # 418-19.) In Brown, the Supreme Court established the
general rule that a “voluntary witness,” i.e., one who is not compelled to testify, such as
defendant, “could not take the stand to testify in [his] own behalf and also claim the right to be
free from cross-examination on matters raised by [his] own testimony on direct examination.”
Id. at 156.

“[T]he breadth of his waiver is determined by the scope of relevant cross-

examination.” Id. at 154-55.
As proof that defendant “directly” vouched for his own credibility, the government offers
the following testimony from defendant’s direct examination:
Q.

Okay. Well, the allegation is that you lied or misled to the
detriment of Mr. Baize here. Did you lie on that
complaint?

A.

No, sir. What I wrote down was exactly what I observed.

Q.

Okay. Now, what about the — what about the attempting
to elude? We’ve seen the statute. What you wrote about
that is that to evade — after stating the obscenity again, to
evade ran inside the trailer.

A.

Correct.

Q.

Is there anything false about that?

A.

Well, no. I mean, that’s exactly what he did. In order to
avoid me, when I gave him the instruction to stop, that’s
exactly what he did. He turned and ran into the trailer to
avoid.

Gov’t Resp. at 43 (citing Trial Tr. vol. II at 169:10-22 (PageID # 841)).

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On the record before us, as well as the authority offered by defendant, we conclude that
the district court did not abuse its discretion in ruling that defendant waived his Fifth
Amendment right as to his prior statements to police investigators. Defendant’s belief in the
veracity of his charges against Baize was a chief issue in the case against him, and he voluntarily
took the stand to vouch for that belief. Evidence of defendant’s willingness to lie to other police
departments to protect himself from allegations of misconduct is relevant to, and probative of,
whether he would lie to the Bullitt County Sheriff’s Office for the same general purpose. The
evidence is not, as defendant argues, “unrelated to [his] direct testimony and the matter being
tried.” (Def. Br. at 37.)
Defendant claims that his prior statements to investigators were too remote in time. In
support, he cites only Johnson v. Elk Lake School District, 283 F.3d 138, 145 n.2 (3d Cir. 2002).
In Johnson, the plaintiff accused her high school guidance counselor of violating 42 U.S.C.
§ 1983 and state tort law by sexually harassing and abusing her. During cross-examination,
plaintiff’s counsel sought to question the defendant about having lied about making the dean’s
list in college on the resume he submitted when he applied for the guidance counselor job. The
district court sustained the defendant’s objection, stating that the inquiry was too “out in left
field” to have any “immediate bearing on the case.” Id.
The Third Circuit affirmed, applying the abuse-of-discretion standard. It noted that the
remoteness of the lie, which occurred “more than nine years before the trial . . . substantially
diminished its probative value.” Id. The Third Circuit approved the district court’s additional
rationale, acknowledging that the evidence was only “arguably probative” of the defendant’s
truthfulness with respect to defending the sexual-harassment charge; the defendant’s lie,

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“although duplicitous and wrong, was not so indicative of moral turpitude as to be particularly
probative of his character for untruthfulness.” Id.
Johnson is distinguishable. There, the Third Circuit reviewed the district court’s decision
to sustain the defendant’s objection, whereas we are reviewing the district court’s decision to
overrule a similar objection. Compare Johnson, 283 F.3d at 145 n.2 (affirming decision to
prohibit inquiry into nine-year-old evidence of dishonest conduct), with Deary v. City of
Gloucester, 9 F.3d 191, 196 (1st Cir. 1993) (affirming decision to permit inquiry into ten-yearold evidence of dishonest conduct); see also Deary, 9 F.3d at 196 (“[C]lose proximity in time is
not required under Fed. R. Evid. 608(b).”). Importantly, the evidence in Johnson was “out in left
field” vis-à-vis the crime charged; the evidence here, on the other hand, is very similar to
conduct bearing on a core element of Count 2 that defendant addressed during his voluntary
testimony. Although temporal remoteness reduces the probative value of the evidence, it does
not eliminate it, and that probative value is bolstered by the similarities the older evidence has
with the instant crime.
Independent of his Fifth Amendment and Rule 608(b) claims, defendant alleges that he
was prejudiced by the prosecutor’s method of eliciting the testimony about the prior
investigations. On cross-examination, defendant stated that he could not remember the number
of prior lies he told, agreeing that “[i]t was a couple of times” in response to the government’s
suggestion that he had lied “multiple times.” (PageID # 423-424.) On re-direct, defendant said
he lied exactly twice. (PageID # 883.) In its closing argument, however, the government stated
in part that defendant “couldn’t even remember how many times he lied to investigators.”
(PageID # 1018-19.)

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Because defendant testified that he did, in fact, remember how many times he lied, the
government’s closing argument was inaccurate. But this impropriety was harmless, because the
jury heard the defendant on both re-direct and re-cross clarify that he only lied twice.
F. Sentence Enhancement for Physically Restraining Victim
“The district court’s sentencing determinations are reviewed for reasonableness, using a
deferential abuse-of-discretion standard.” United States v. Gray, 692 F.3d 514, 521 (6th Cir.
2012) (citing United States v. Martinez, 588 F.3d 301, 324 (6th Cir. 2009)). “Procedural
reasonableness requires ensuring that ‘the district court committed no significant procedural
error, such as failing to calculate (or improperly calculating) the Guidelines range . . . .’” Id.
(quoting Martinez, 588 F.3d at 324). “When reviewing the district court’s application of the
Sentencing Guidelines, we review the district court’s factual findings for clear error and mixed
questions of law and fact de novo.” United States v. Tolbert, 668 F.3d 798, 800 (6th Cir. 2012)
(quoting United States v. May, 568 F.3d 597, 604 (6th Cir. 2009)).

“The district court’s

interpretation of the Sentencing Guidelines is reviewed de novo.” Id. (citing United States v.
Anglin, 601 F.3d 523, 526 (6th Cir. 2010)).
Over defense counsel’s objection, the district court applied a two-level enhancement to
defendant’s Guidelines range under USSG § 3A1.3. That enhancement applies “[i]f a victim was
physically restrained in the course of the offense . . . .” USSG § 3A1.3 (2016). “Section 3A1.3
does not apply . . . when physical restraint is already an element of the offense — that is, when it
would double-count the physical restraint.” United States v. McCoy, 480 F. App’x 366, 372 (6th
Cir. 2012) (citing USSG § 3A1.3 cmt. n.2). “[I]mpermissible ‘double counting’ occurs when
precisely the same aspect of a defendant’s conduct factors into his sentence in two separate
ways.” United States v. Farrow, 198 F.3d 179, 193 (6th Cir. 1999) (citing United States v.

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Perkins, 89 F.3d 303, 310 (6th Cir. 1996)). In other words, double counting occurs “[i]f a single
aspect of the defendant’s conduct both determines his offense level and triggers an
enhancement . . . .” Id.
Defendant maintains that the enhancement was inapplicable because physical restraint
was an element of the offense. (Def. Br. at 49.) He concedes that we have affirmed application
of the enhancement to a defendant convicted under 18 U.S.C. § 242, see Gray, 692 F.3d at 52122, but he argues that the element of physical restraint was “injected” into the instant case when
the jury had to find that he violated Baize’s right to be free from unreasonable seizures in order
to convict.
The district court did not misapply the Guidelines. Section 2H1.1(a)(3)(A) sets a base
offense level of 10 “if the offense involved the use or threat of force against a person,” which
occurred here when defendant arrested Baize. The district court indicated that it was applying
the § 3A1.3 enhancement due to that arrest and the fact that defendant, through his police report,
caused Baize to be incarcerated for two weeks. (PageID # 1394.) Because the base offense level
and the enhancement each were adequately supported by separate instances of defendant’s
conduct, no double counting occurred.
AFFIRMED.