United States v. Delon Echols

                             In the

    United States Court of Appeals
                For the Seventh Circuit
                   ____________________
No. 23-1667
UNITED STATES OF AMERICA,
                                                Plaintiff-Appellee,
                               v.

DELON ECHOLS,
                                            Defendant-Appellant.
                   ____________________

       Appeal from the United States District Court for the
                    Southern District of Illinois.
      No. 3:21-cr-30048-SPM-1 — Stephen P. McGlynn, Judge.
                   ____________________

       ARGUED APRIL 4, 2024 — DECIDED JUNE 26, 2024
                ____________________

   Before EASTERBROOK, HAMILTON, and KOLAR, Circuit
Judges.
   HAMILTON, Circuit Judge. A jury convicted defendant-
appellant Delon Echols of attempting to possess a controlled
substance with intent to distribute it. Echols has appealed,
arguing that the district court erred by relying on Federal
Rule of Evidence 801(d)(1)(B) to admit testimony about a
witness’s prior consistent statement after the defense
suggested that the witness had fabricated her story blaming
2                                                    No. 23-1667

Echols for drug shipments addressed to her through the mail.
The problem is that the prior consistent statement was made
after the witness’s alleged motive to fabricate had already
arisen. To be admitted under Rule 801(d)(1)(B) and Tome v.
United States, 513 U.S. 150 (1995), a prior consistent statement
offered to rebut charges of fabrication must have been made
before the motive to fabricate arose.
    In this case, however, the defendant did not raise this ob-
jection at trial, thus forfeiting it on appeal. Our review is only
for “plain error.” We conclude that admission of the prior
statement was an error but did not seriously affect the fair-
ness, integrity, or public reputation of the judicial proceed-
ings. We affirm Echols’ conviction.
I. Factual and Procedural Background
    In May 2019, Delon Echols and his friend Deshawn Burt
were arrested in Utah for possessing marijuana. Burt’s girl-
friend at the time, Renita Burns, drove from southern Illinois
to Utah to bond the two men out of jail. Burns then drove
them back to Mascoutah, Illinois, where she lived with Burt,
her five children, and her nephew. During the thousand-mile
trip, Burns agreed to let Echols live with them temporarily.
Echols moved in sometime around July 2019.
    According to Burns, out of the blue in August 2019, she
found a notice on her mailbox saying she had a package at the
post office. She had not ordered anything but thought that one
of her children might have. Burns went to the post office and
picked up the package. She opened it and found bags that col-
lectively held about two pounds of marijuana and several
hundred Xanax pills, which are supposed to be distributed
through prescription drug channels. She testified that she was
No. 23-1667                                                  3

shocked and upset that someone had sent her unsolicited ille-
gal drugs. Burns resolved to get rid of them. She tossed the
marijuana in a dumpster and gave the Xanax pills to a friend.
   According to Burns, she soon began to suspect that Echols
was responsible for the mysterious package. She later testified
that she had overheard Burt ask Echols, “Why would you
send that to her house in her name?” Echols responded,
“Well, you told me to.”
    Burns testified that she then began to fear another illicit
package might come. So on August 26, she went back to her
friend’s house, picked up the remaining Xanax pills, and
brought them to the local police station. She met with
Sergeant Kyle Donovan to explain the situation and to turn in
the remaining pills.
    On August 28, Burns learned from Burt, who had found
out from a cousin, that a second package would be coming.
Burns found a police officer, told the officer about her situa-
tion, and asked the officer what she should do. The officer ad-
vised her to ask officers at police headquarters for their help.
    Burns went to the police station the next day. She met with
Lieutenant Matt Steinkamp. Burns recounted her story for the
third time and explained that she believed a second package
was coming. She asked Lieutenant Steinkamp what to do. He
told her that the post office could stop her mail and he offered
to go with her to the post office. Burns agreed. The two
walked across the street to the post office and asked the postal
employee to stop Burns’ mail. The postal employee, however,
told Burns that a package was already waiting for her.
   Burns signed for the second package and took it back to
the police station. Lieutenant Steinkamp opened it and found
4                                                 No. 23-1667

two containers filled with vacuum-sealed bags of white pow-
der. The Mascoutah police turned the case over to the federal
Drug Enforcement Agency, who determined that the bags
contained 911.5 grams (about two pounds) of MDMA, also
known as ecstasy.
    This appeal centers on an interview that occurred about
two weeks later. On September 12, DEA Agent Ryan Bandy
interviewed Burns. She told him about the first and second
packages, and she described her belief that Echols was
responsible for their delivery. Based on Burns’ interview,
among other evidence, Agent Bandy settled on Echols as the
most likely culprit.
    A grand jury indicted Echols for attempting to possess
MDMA with intent to distribute in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(C), and 846. The case went to trial.
Witnesses included Burns, Sergeant Donovan, Lieutenant
Steinkamp, Agent Bandy, and the postal worker. Agent
Bandy’s testimony focused primarily on his interview with
Burns. Defense counsel objected to this line of questioning,
arguing that Burns had “testified already” and that Agent
Bandy’s testimony was merely “bolstering” her testimony.
The prosecutor argued that Agent Bandy’s testimony was
admissible as evidence of a prior consistent statement to rebut
defense counsel’s suggestion that Burns had fabricated her
story to protect her boyfriend, Deshawn Burt. The district
court agreed with the prosecution and admitted Agent
Bandy’s testimony. The defense did not mention the timing
issue specifically, nor did the defense identify a time when
Burns’ arguable motive to fabricate had arisen.
No. 23-1667                                                     5

    After three days of trial, the jury returned a guilty verdict.
Echols was sentenced to 70 months in prison and three years
of supervised release. He has appealed.
II. Analysis
   Echols argues that the district court erred by admitting
Agent Bandy’s testimony about what Burns had told him on
September 12. In response, the government contends that
Agent Bandy’s testimony is not hearsay according to Federal
Rule of Evidence 801(d)(1)(B), which provides that a prior
consistent statement offered to rebut an express or implied
charge of recent fabrication is deemed not to be hearsay.
    Whether Echols preserved this issue for appellate review
or not, we need to decide whether the district judge erred in
admitting the prior statement. The admission was an error,
but the consequences depend on whether the defendant pre-
served the issue. We explain first why admission of the prior
statement was an error, second why we review only for plain
error, and third why defendant is not entitled to reversal on
plain-error review.
   A. Tome and the Timing Issue
    To qualify as non-hearsay under Rule 801(d)(1)(B), a wit-
ness’s prior consistent statement must satisfy four elements:
(1) the declarant must testify at trial and be subject to cross-
examination; (2) the prior statement must be consistent with
the declarant’s trial testimony; (3) the prior consistent state-
ment must be offered to rebut an explicit or implicit accusa-
tion of recent fabrication; and (4) the prior consistent state-
ment must have been made before the declarant developed a
motive to fabricate her testimony. Tome, 513 U.S. at 156–58;
Miller v. Greenleaf Orthopedic Associates, S.C., 827 F.3d 569, 574
6                                                  No. 23-1667

(7th Cir. 2016). Only the fourth element, timing, is at issue in
this appeal.
    Echols argues that Regina Burns developed a motive to
fabricate her story before her interview with Agent Bandy.
According to Echols’ theory, Burns learned that her boy-
friend, Deshawn Burt, was involved in sending the packages
to her house, and she decided to blame Echols so her boy-
friend would not be prosecuted.
    Burns’ statement in her interview is just the sort of prior
consistent statement that the Supreme Court held inadmissi-
ble in Tome. The defendant in that case shared custody of his
daughter with his ex-wife. He was charged with sexually
abusing his daughter. He argued that the child and her
mother had concocted the sexual abuse allegations against
him so that the mother could gain full custody. To rebut this
accusation, the prosecution offered six witnesses who re-
counted out-of-court statements the daughter had made de-
scribing the sexual abuse. The Supreme Court held that the
testimony from the six witnesses was not admissible under
Rule 801(d)(1)(B). The Court wrote that Rule 801(d)(1)(B) em-
braced the “prevailing common-law rule for more than a cen-
tury … that a prior consistent statement introduced to rebut a
charge of recent fabrication or improper influence or motive
was admissible if the statement had been made before the al-
leged fabrication, influence, or motive came into being, but it
was inadmissible if made afterwards.” 513 U.S. at 156. This
rule ensured that the prior consistent statements would be
aimed specifically at rebutting the charge of recent fabrication
No. 23-1667                                                          7

rather than merely bolstering more generally the credibility
of a witness subject to impeachment. Id. at 157–58, 165. 1
    Here, Echols argues that Burns developed a motive to fab-
ricate her story in late August, either when she learned from
her boyfriend that a second package was coming or a few
days later when she actually picked up that second package.
Both dates were before she spoke with Agent Bandy on Sep-
tember 12. According to Tome, to be admissible under Rule
801(d)(1)(B), Burns’ prior consistent statements must have
been made before her arguable motive to fabricate arose. We
are not triers of fact, of course, but that theory of a motive to
fabricate seems at least plausible. Because that arguable mo-
tive arose before Burns met with Agent Bandy on September
12, 2019, her statement to him fails to meet the fourth element
of Rule 801(d)(1)(B) and should not have been admitted.
    The two cases cited by the government to challenge this
conclusion are easily distinguishable. In United States v.
Fulford, 980 F.2d 1110 (7th Cir. 1992), Fulford was on trial for
conspiracy to distribute methamphetamine. He sought to
exclude testimony from his co-conspirator, Richard Elmore,
who had made incriminating statements to a police officer
when Elmore was arrested for selling methamphetamine. Id.
at 1112–13. Among other things, Elmore told the officer that
he had purchased $10,000 worth of methamphetamine from
Fulford. At the time of his arrest, Elmore “was given no deal
or other incentive to provide the information and was told
only that his cooperation would be brought to the attention of
the United States Attorney.” Id. After he was indicted,


    1 The language of Rule 801(d)(1)(B) has been revised since Tome was

decided, but not in any way relevant to this case.
8                                                              No. 23-1667

however, Elmore agreed to cooperate with the government in
return for “immunity for all accurate testimony thereafter
rendered.” Id.
    Elmore testified at Fulford’s trial. To rebut Fulford’s
accusation that Elmore had fabricated his testimony, the
government offered and the court admitted the prior
consistent statements that Elmore had made immediately
following his arrest. Id. at 1113–14. Fulford argued that this
testimony was not admissible under Rule 801(d)(1)(B)
because Elmore had fabricated his story to secure favorable
sentences for himself and his brother, who was also involved
in the conspiracy. Id.
    We held that the prior consistent statements were properly
admitted. Id. at 1114. While noting that “reasonable minds”
could differ as to whether Elmore developed his motive to
fabricate when he was arrested or when he later agreed to co-
operate, we chose to focus on the later time because that was
when Fulford asserted that Elmore had developed his motive
to lie. Because Elmore’s post-arrest statements were made be-
fore he entered into his cooperation agreement, they met the
requirements of Tome and were admissible under Rule
801(d)(1)(B). The same reasoning distinguishes the govern-
ment’s other case, United States v. Stoecker, 215 F.3d 788 (7th
Cir. 2000). Because the prior consistent statements in that case
were also made before the arguable motive to fabricate had
arisen, they were properly admitted. Id. at 791. 2


    2 Fulford was decided before Tome, but we had already held that Rule

801(d)(1)(B) embodied the timing requirement adopted in Tome. See Ful-
ford, 980 F.2d at 1114, citing United States v. Lewis, 954 F.2d 1386, 1391 (7th
Cir. 1992).
No. 23-1667                                                     9

   B. Standard of Review
    Having concluded that the district court erred in admit-
ting Burns’ prior consistent statement, the question is whether
that error demands reversal. As we explain next, Echols did
not raise this objection in the district court. We review the is-
sue only for “plain error.” E.g., United States v. Bowling, 952
F.3d 861, 869 (7th Cir. 2020).
       1. Issue Preservation
    To preserve an evidentiary issue for appellate review, a
party must make a timely objection at trial. The objection
must be specific enough to give the opposing party and the
trial judge notice of the basis unless the basis for the objection
is “apparent from the context.” Fed. R. Evid. 103(a); United
States v. Wynn, 845 F.2d 1439, 1442 (7th Cir. 1988). The rule is
designed to enable parties to dispute evidentiary issues in the
context in which they arise, and to give the trial judge—who
has the benefit of observing the presentation of evidence
firsthand and in real time—the opportunity to make a well-
informed ruling.
    In applying this objection requirement, our case law has
developed a few governing principles. First, a party cannot
cast an objection at too high a level of generality. See United
States v. Swan, 486 F.3d 260, 263–64 (7th Cir. 2007) (general
“hearsay” objection did not preserve objection to whether the
witness was an agent of defendant and was testifying to
matters within scope of his authority, as required by Rule
801(d)(2)(D)); United States v. Barker, 27 F.3d 1287, 1292 (7th
Cir. 1994) (general “foundation” objection did not preserve
specific subcategory of a foundation objection, such as
inadequate foundation to introduce physical exhibits, hearsay
10                                                    No. 23-1667

testimony, parol evidence, or expert witness testimony);
United States v. Thomas, 845 F.3d 824, 831 (7th Cir. 2017)
(defense counsel’s objection to entire presentence report at
sentencing did not preserve objection to specific sentencing
enhancement for maintaining a drug house); United States v.
Linwood, 142 F.3d 418, 422–24 (7th Cir. 1998) (defense
counsel’s blanket objection to all jury instructions did not
preserve objection to one particular jury instruction). A party
must articulate her objection with enough specificity to give
the opposing party and the trial judge a fair opportunity to
consider the objection, debate it, and rule on it.
    A party also cannot preserve one specific objection by
making a different specific objection in the trial court. E.g.,
Bowling, 952 F.3d at 868 (objections at trial based on relevance
and improper lay testimony did not preserve Rule 404(b) ob-
jection); United States v. Price, 418 F.3d 771, 779 (7th Cir. 2005)
(objection at trial based on relevance did not preserve Rule
403 objection); United States v. McClellan, 165 F.3d 535, 551–52
(7th Cir. 1999) (objection at sentencing based on sufficiency of
evidence did not preserve objections based on reliability and
uncorroborated hearsay); United States v. Hickerson, 732 F.2d
611, 613 (7th Cir. 1984) (objection at trial to authenticity of
photograph did not preserve relevance objection).
       2. Echols’ Forfeiture
   Echols argues on appeal that Rule 801(d)(1)(B) does not
apply because of a Tome issue. He contends that Renita Burns
developed her motive to fabricate before making her state-
ment to Agent Bandy. Here is the key passage from the trial
transcript:
No. 23-1667                                               11

     Prosecutor:        So let’s talk about your inter-
                        view with Renita. When did
                        that occur?

     Agent Bandy:       I believe September 12th,
                        2019.

     Prosecutor:        Okay. And where did you
                        meet with her?

     Agent Bandy:       At her apartment in Mas-
                        coutah, Illinois.

     Prosecutor:        Did she agree to speak with
                        you freely?

     Agent Bandy:       Yes, ma’am.

     Prosecutor:        All right. Can you tell me
                        what, if anything, she told
                        you that day when you in-
                        terviewed her?

     Agent Bandy:       So the day that we inter-
                        viewed her, we – I just asked
                        her, “Hey, tell me what hap-
                        pened.” And she said that
                        she had met Delon Echols
                        earlier that year –

     Defense Counsel:   Well, Your Honor, I’m going
                        to make an objection. She’s
12                                              No. 23-1667

                        testified already. I mean, I’m
                        not –

     Prosecutor:        Your Honor, I would say that
                        these are prior consistent
                        statements which are admis-
                        sible, as [defense counsel]
                        has previously tried to do
                        prior inconsistent state-
                        ments with Ms. Burns. So at
                        this point, this witness [sic]
                        is proper to admit her prior
                        consistent statements.

     Defense Counsel:   Well, it’s bolstering, but I’m
                        not sure what they’re trying
                        to correct of what she said
                        earlier.

     Prosecutor:        Prior consistent statements
                        are proper where Defense
                        has introduced – has tried to
                        imply a recent fabrication.
                        [Defense counsel] through-
                        out [Renita Burns’] testi-
                        mony has tried to imply that
                        there were fabrications.
                        However, Agent Bandy’s
                        testimony would show that
                        she has been consistent since
                        September 12th, 2019.
No. 23-1667                                                  13

      District Judge:      Yeah. And that – you high-
                           lighted that she did not tell
                           the first officer about meet-
                           ing the defendant in Utah, so
                           I will allow the line of ques-
                           tioning. Your objection is
                           overruled.

    Most specifically, defense counsel objected to improper
bolstering. More generally, the context shows that the objec-
tion was understood to also raise hearsay concerns—the pros-
ecutor relied on Rule 801(d)(1)(B) to get around the hearsay
issue and admit the out-of-court statement. The problem is
that under these circumstances, where the admissibility of the
prior statement depended on a specific timing issue, neither
the bolstering objection nor the implied but obvious hearsay
objection preserved for appeal the specific timing issue under
Rule 801(d)(1)(B). See United States v. Swan, 486 F.3d 260, 263–
64 (7th Cir. 2007) (general hearsay objection did not preserve
defendant’s objection that party-opponent declarant was not
acting within his authority as defendant’s agent as required
by Rule 801(d)(2)(D)). In this case, during the back-and-forth
defense counsel did not raise a timing objection based on
Tome.
    In other words, the defense raised a general hearsay objec-
tion, the prosecutor responded with a seemingly applicable
exception, and the defense did not respond further or raise
the specific timing issue that could defeat the exception. The
defense counsel’s silence in the face of a new ground for ad-
mission did not preserve an objection to that new ground.
Specificity is particularly important for a timing objection un-
der Rule 801(d)(1)(B). To resolve such an objection, the court
14                                                            No. 23-1667

needs to know the objecting party’s theory as to when the wit-
ness’s arguable motive to fabricate arose. If the objecting party
does not identify that theory and timing, and if they are not
obvious from context, the timing issue has not been presented
fairly to the court. An objecting party does not need to use
buzzwords to preserve a specific objection, but the defense
counsel here did not alert the judge to the timing problem that
lies at the heart of this appeal. 3
    Our holding comports with other cases that have ad-
dressed issue preservation under Rule 103 for Rule
801(d)(1)(B) objections. Squarely on point is the First Circuit’s
decision in United States v. Piva, 870 F.2d 753 (1st Cir. 1989),
which was decided years before Tome but after Rule
801(d)(1)(B) had been limited to rebutting charges of “recent”
fabrications. In Piva, the defense raised a general hearsay ob-
jection to a prior consistent statement but did not raise the
timing issue. On appeal, the defense argued that the state-
ment was made after the motive to fabricate had arisen. The
First Circuit deemed the specific objection forfeited: “This
lack of specificity, after the judge believed she had resolved
the objection, precludes appellant from raising this issue for
the first time before us.” Id. at 759.
   Defendant has not cited and we have not found any cases
that directly support Echols’ contention that he preserved his
timing objection. Echols relies heavily upon United States v.
Whitaker, in which we held that an objection to the reliability


     3 We are aware that Rule 801(d)(1)(B) is technically a matter of the

definition of hearsay rather than an “exception,” but we see little practical
difference for purposes of deciding whether the defense preserved the is-
sue.
No. 23-1667                                                    15

of a process for retrieving records sufficiently preserved an
authenticity objection. 127 F.3d 595, 600–01 (7th Cir. 1997).
While the objecting party did not cite the specific rule he was
referencing, we held that explicitness was not needed because
the reason for the objection was “clear from the context.” Id.
at 601. Thus, Whitaker is inapposite to this case because, as
discussed above, context did not make clear Echols’ Tome
objection.
    A Second Circuit decision should be noted because of its
factual similarity to the trial transcript in this case. In United
States v. Quinto, 582 F.2d 224 (2d Cir. 1978), the appellate court
reviewed a Tome timing issue (before Tome was decided) for
abuse of discretion after the defendant’s trial counsel had
argued that the testimony was being offered for “bolstering”
purposes. See id. at 229 n.2. Although reviewing for abuse of
discretion implies that the issue was preserved, the appellate
court did not address issue preservation, so it did not hold
expressly that a “bolstering” objection preserved a Tome
objection. Moreover, whereas Echols’ trial counsel remained
silent after making his bolstering objection, the defense
counsel in Quinto engaged in a lengthy exchange with the trial
judge discussing the finer points of Rule 801(d)(1)(B). Quinto
does not persuade us that Echols’ general hearsay objection
was enough to alert the judge to his theory and to preserve his
Tome objection. The plain-error standard of review applies
here.
   C. Applying Plain-Error Review
    On plain-error review, we reverse only if four require-
ments are met: “(1) an error occurred, (2) the error was plain,
(3) it affected the defendant’s substantial rights, and (4) it se-
riously affected the fairness, integrity, or public reputation of
16                                                            No. 23-1667

the proceedings.” United States v. Thomas, 933 F.3d 685, 690
(7th Cir. 2019), citing United States v. Olano, 507 U.S. 725, 732–
38 (1993).
    The first requirement is met given our conclusion that the
district court erred in admitting Agent Bandy’s testimony un-
der Rule 801(d)(1)(B). So is the second requirement. An error
is “plain” when it is obvious and undebatable. United States v.
Christian, 673 F.3d 702, 708 (7th Cir. 2012). The Tome error here
satisfies this standard. Binding precedent establishes that
Burns’ prior consistent statement was made too late to be in-
troduced under Rule 801(d)(1)(B).
    We assume without deciding that the third element is sat-
isfied because we conclude that the fourth element is clearly
not met. See United States v. Muhammad, 46 F.4th 531, 534 (7th
Cir. 2022) (addressing only fourth element of plain-error test);
United States v. Pulliam, 973 F.3d 775, 781 (7th Cir. 2020) (de-
clining to decide whether third element was satisfied because
fourth element clearly was not). Echols has not shown that
this evidentiary error caused a “miscarriage of justice” or cre-
ated “a substantial risk of convicting an innocent person.”
Pulliam, 973 F.3d at 781, quoting United States v. Maez, 960 F.3d
949, 962 (7th Cir. 2020). 4
    Our review of the record convinces us that Agent Bandy’s
testimony about the prior consistent statement played only a
minor role in this case. Much of what he said merely repeated
testimony that Burns had already offered. The prosecutor did


     4 As we noted in Maez, “defendants can sometimes show an effect on

fairness or integrity without a claim of innocence,” 960 F.3d at 962, citing
Rosales-Mireles v. United States, 585 U.S. 129, 137 (2018), but the error here
did not affect the defendant’s sentence, as in Rosales-Mireles.
No. 23-1667                                                              17

not rely on Agent Bandy’s testimony during closing argu-
ments. The prosecutor focused instead on other evidence con-
necting Echols to the packages.
   Additionally, other evidence remains unchallenged that
connects Echols to the illicit drugs. Most notably, the postal
worker who gave Burns the second package testified that a
man had come in earlier that day asking to pick up the pack-
age of MDMA addressed to Burns. The postal worker identi-
fied Echols as that man.
    The limited impact of Agent Bandy’s testimony contrasts
with other cases in which we have reversed for evidentiary
errors on plain-error review. In United States v. Williams, we
reversed a conviction where an FBI agent—who was
supposed to explain only the background of the police
investigation—testified that the defendant had been
identified as the suspected robber by a confidential informant.
133 F.3d 1048, 1050 (7th Cir. 1998). We held that this evidence
should have been excluded under Rule 403 because its slight
probative value was significantly outweighed by its
prejudicial effect. Id. at 1052. There was a “strong possibility
that the jury made improper use of the evidence” by inferring
the defendant’s guilt. Id. Admitting the evidence was a
reversible plain error even though defense counsel did not
raise a Rule 403 objection at trial. 5

    5 The “course-of-investigation” testimony in Williams about an anon-

ymous informant’s accusation against the defendant was far more damn-
ing than the prior consistent statement here. Later cases show that Williams
correctly deemed the testimony inadmissible and highly prejudicial hear-
say that violated the defendant’s right of confrontation under the Sixth
Amendment. See Crawford v. Washington, 541 U.S. 36 (2004); Jones v.
Basinger, 635 F.3d 1030 (7th Cir. 2011).
18                                                No. 23-1667

    In Echols’ case, however, we find no such “strong possi-
bility” of impermissible inferences. Ample evidence con-
nected Echols to the illicit packages that was untainted by the
prior consistent statement. The prior consistent statement was
a minor detail in the trial that does not require reversal on
plain-error review.
     The judgment of the district court is AFFIRMED.