United States v. Raymond Collins , 577 F. App'x 180 ( 2014 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4457
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RAYMOND COLLINS,
Defendant - Appellant.
No. 13-4458
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDWARD WILSON,
Defendant - Appellant.
Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:12-cr-00502-CMH-1; 1:12-cr-00502-CMH-2)
Argued: March 19, 2014 Decided: July 1, 2014
Before TRAXLER, Chief Judge, and WILKINSON and KEENAN, Circuit
Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Joan Caroline Robin, LAW OFFICE OF JONI C. ROBIN PLLC,
Alexandria, Virginia; Christopher Robert Kennedy Leibig, LAW
OFFICE OF CHRISTOPHER LEIBIG LLC, Alexandria, Virginia, for
Appellants. Michael Phillip Ben'Ary, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF:
Dana J. Boente, Acting United States Attorney, Maya D. Song,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Appellants Raymond Collins and Edward Wilson raise numerous
challenges to their convictions for conspiracy to distribute
five kilograms or more of cocaine and 280 grams or more of
crack, in violation of 21 U.S.C. §§ 841 and 846. We reject each
of these challenges and affirm the convictions for both Collins
and Wilson.
I.
From 2009 to 2012, Collins and Wilson were involved in the
sale and distribution of illegal drugs in the Houston, Texas,
area. Houston-based dealer Christopher Buckner described
Collins and Wilson as business partners in the drug trade who
were like brothers. Buckner’s supplier was Collins, who was
able to obtain and sell large amounts of cocaine—as much as two
kilograms every two days. To facilitate their distribution
operation, Collins and Wilson both had vehicles—Collins a red
pickup truck and Wilson a blue Acura SUV—equipped with hidden
compartments near the console to store drugs, money or handguns,
preventing easy detection.
In 2010, agents employed by the Drug Enforcement Agency
(“DEA”) in northern Virginia were investigating a Virginia
dealer named Stevie Thornton, who had relocated to Houston but
still sought to sell to customers in Virginia. Using an
informant, the DEA set up drug buys from Thornton in Houston and
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conducted surveillance during each of these transactions.
Collins supplied the cocaine to Thornton in two of these deals.
On April 12, 2011, Thornton agreed to sell the Virginia-based
informant four ounces of cocaine that Buckner, in turn, arranged
to buy from Collins. Buckner and Thornton arrived at the
prearranged transaction site, the Taco Cabana restaurant parking
lot, and contacted Collins via Buckner’s cell phone. Collins,
however, informed Buckner that he could not make the meeting and
was sending Wilson to deliver the cocaine. Subsequently, Wilson
arrived at the Taco Cabana in a blue Acura SUV. Buckner paid
Wilson for the cocaine and Wilson gave him the four ounces.
Cell phone records corroborate that Buckner and Collins were in
frequent contact before the deal, and that Collins and Wilson
were in frequent contact before the meeting. Law enforcement
surveillance photos were taken of Buckner and Thornton as well
as Wilson’s blue Acura SUV during the Taco Cabana meeting.
Later, Buckner discussed with Collins the fact that he overpaid
Wilson for the cocaine.
Thornton arranged to have Buckner broker another deal for
the Virginia informant, this time for a half-kilogram of cocaine
supplied by Collins. On June 8, 2011, Buckner and Thornton rode
in Thornton’s tow truck to meet Collins, who was driving his red
pick-up truck. Before the exchange took place, Buckner became
suspicious that they were being watched by law enforcement, so
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Buckner called Collins and aborted the transaction. Law
enforcement agents conducting surveillance arrested Thornton and
Buckner in Thornton’s tow truck as they were leaving.
On March 26, 2012, Collins was arrested while driving
Wilson’s Acura SUV after Houston law enforcement agents
conducting surveillance of a residence observed a blue Acura SUV
arrive. Agents followed Collins to a nearby Wal-Mart parking
lot, where they observed him engage in a transaction with the
driver of a Nissan Altima. Around 9 p.m., shortly after leaving
the Wal-Mart, Collins was stopped by Houston police officer Le.
Officer Le then told narcotics officers involved in the
surveillance that Collins had consented to a search of the Acura
SUV. With the assistance of a K-9 unit, officers found cocaine,
approximately $35,000 in cash, and a .45 caliber handgun in a
hidden compartment near the console in the Acura.
Appellants were both charged with conspiracy to distribute
five kilograms or more of cocaine and 280 grams or more of crack
(count 1), and Collins alone was charged with possession of a
firearm in furtherance of a drug trafficking crime (count 2).
Prior to trial, Collins moved to suppress the evidence from the
search of the Acura SUV. The district court, based largely on
hearsay testimony from narcotics agents at the suppression
hearing, found that Collins had consented to the search and
denied the motion.
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The jury found Appellants guilty as charged. On the
conspiracy count, the jury found that Collins and Wilson
conspired to distribute at least five kilograms of cocaine and
at least 28 grams, but less than 280 grams, of crack.
Appellants both received 240 months’ imprisonment for the drug
conspiracy offense, and Collins received an additional
consecutive 60-month term for his firearm charge.
II.
a.
Appellants first argue that the trial court abused its
discretion by refusing Appellants’ request that prospective
jurors be questioned during voir dire about their ability to
apply the burden of proof and reasonable-doubt standards.
Appellants contend this specific line of inquiry was necessary
in light of their defense at trial that while the evidence might
prove drug activity in Texas, the Appellants nevertheless did
not join the conspiracy as charged by the government. They
proposed these voir dire questions on the basis that reasonable
jurors might naturally be reluctant to return apparent drug
dealers to the streets despite no evidence supporting the
charged offense. The district court declined, stating that it
would “properly instruct the jury in those areas.” J.A. 358.
The court then asked typical voir dire questions relating to
whether any prospective juror had any prior knowledge of the
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facts of or the participants in the case, worked in or was
related to anyone working in law enforcement, or had any
experience as a victim, witness or defendant in a criminal
proceeding. The district court subsequently instructed the jury
as to the government’s burden of proving the charged crimes
beyond a reasonable doubt, and Appellants do not take issue with
this aspect of the charge.
Appellants’ argument is foreclosed by circuit precedent.
In United States v. Jeffery, 631 F.3d 669, 674 (4th Cir. 2011),
we held that a district court is not required to ask questions
in voir dire relating to the reasonable-doubt standard and
burden-of-proof issues when requested by the defendant so long
as the jury is properly instructed at the end of trial. In
Jeffery, as here, the accused submitted voir dire questions
“address[ing] the jurors’ willingness to apply the reasonable-
doubt standard and to hold the government to its burden of
proof,” but the district court declined to ask any questions
specifically addressing the reasonable-doubt standard and
instead asked “fairly standard questions, such as whether the
potential jurors knew about the facts of the case, or whether
they or their family worked in law enforcement.” Id. at 672.
No one contends that the district court failed to properly
instruct on the reasonable-doubt standard or the government’s
burden of proof; we see no cogent basis for concluding that this
7
case falls outside the scope of our settled general rule that
the district court is not required to question prospective
jurors about reasonable-doubt or burden-of-proof issues during
voir dire.
b.
Second, Appellants contend that the district court abused
its discretion by denying their motion to argue the law to the
jury and that the jury, in turn, be allowed to determine the
applicable law according to its own collective conscience.
Appellants expressly acknowledge that Sparf v. United States,
156 U.S. 51 (1895), forecloses the argument that the jury may
independently determine the applicable law. “Public and private
safety alike would be in peril if the principle be established
that juries in criminal cases may, of right, disregard the law
as expounded to them by the court, and become a law unto
themselves.” Id. at 101. As we have explained, Sparf “affirmed
the right and duty of the judge to instruct on the law, and
since that case the issue has been settled.” United States v.
Moylan, 417 F.2d 1002, 1006 (4th Cir. 1969); see id. at 1007(“Since the Sparf case, the lower federal courts-even in the
occasional cases in which they may have ventured to question its
wisdom-have adhered to the doctrine it affirmed.” (footnote
omitted)). We continued to embrace this principle in United
States v. Muse, 83 F.3d 672, 677 (4th Cir. 1996), explaining
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that “a defendant is not entitled to inform the jury that it can
acquit him on grounds other than the facts in evidence.”
Indeed, although “a jury has the power of nullification[,] . . .
defense counsel is not entitled to urge the jury to exercise
this power.” Id. Nevertheless, Appellants ask us to “revisit”
Sparf as if a Fourth Circuit panel could overturn Supreme Court
precedent. As counsel should well know, a panel of this court
does not even have the power to overturn the decisions of
previous panels of our own court, see United States v.
Guglielmi, 819 F.2d 451, 457 (4th Cir. 1987) (holding that only
the en banc court, not a subsequent panel, has the authority to
overturn a previous panel’s published decision), let alone
Supreme Court authority. Accordingly, we reject this argument.
c.
Collins challenges the district court’s denial of his
motion to suppress evidence recovered from a search of his
vehicle. In considering the denial of a motion to suppress, we
review a district court’s legal conclusions de novo and its
factual findings for clear error. See United States v. Branch,
537 F.3d 328, 337 (4th Cir. 2008). We also construe the
evidence in the light most favorable to the prevailing party,
i.e., the government. See id.At the pretrial suppression hearing, the evidence
demonstrated the following. On March 26, 2012, Houston-area
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narcotics officer Ben Katrib, acting on information from a
confidential informant, was conducting surveillance on the
driver of a blue Acura SUV believed to possess one kilogram of
cocaine. Officer Katrib solicited help from DEA agents Matthew
Buchert and Terrence Bryant and advised Deputy James Thomas, the
K-9 handler, that his help might be needed as well. Around 9
p.m., the blue Acura SUV was observed leaving a residence and
arriving at a nearby Wal-Mart, where the driver of the SUV
conducted a brief transaction with the female driver of a Nissan
Altima. Following the transaction, Officer Katrib directed that
the law enforcement agents split up and follow both vehicles.
The Nissan was followed, stopped and searched by Officers
Thomas, Buchert and Katrib; the search of the vehicle and its
driver yielded cocaine powder and marijuana.
Agent Bryant followed the SUV from the Wal-Mart parking lot
and observed the driver of the SUV commit various traffic
violations, including failing to come to a complete stop at a
stop sign and failing to use a turn signal. Agent Bryant, who
was driving an unmarked car, enlisted the help of a Houston
police officer, Officer Le, who was on patrol in the area.
Officer Le conducted a traffic stop of the Acura SUV, which was
being driven by Collins. Agent Bryant observed Officer Le
approach the SUV to obtain standard information such as a
driver’s license and insurance information and then return to
10
his cruiser. After Officer Le returned to the SUV, Agent Bryant
saw Collins exit the vehicle and sit down on the curb “very
calm[ly].” J.A. 133. Agent Bryant testified that, at that
point, “Officer Le told me that the defendant had given consent
to search the vehicle.” J.A. 132. Agent Bryant, however, was
not privy to any discussion between Officer Le and Collins.
Officer Le did not testify at the suppression hearing.
Agent Bryant notified Officers Katrib and Thomas that the
SUV had been stopped, and he began searching the vehicle while
the K-9 unit was in route. When Officer Katrib arrived, he was
advised by officers on the scene that Collins “had granted
verbal consent for the search of the vehicle.” J.A. 157.
Agent Bryant’s initial search of the SUV did not uncover
any contraband. When the K-9 unit arrived 10 to 15 minutes
later, however, the drug dog alerted to the front console, where
officers located a hidden compartment containing a loaded .45-
caliber semi-automatic handgun and approximately 85 grams of
cocaine. Approximately $35,000 was recovered from the Acura SUV
and Collins’ person.
There is no indication that Collins was handcuffed during
the search. According to Officer Katrib, Collins appeared to be
relaxed and confident and even wore a “smirk” during the search.
At no time did Officer Katrib hear or see anything indicating
that Collins wanted to withdraw his consent to the search.
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The district court concluded that the stop of the Acura
SUV being driven by Collins was lawful and that Collins then
consented to the search of the vehicle. Thus, the court denied
the motion to suppress. On appeal, Collins contends that the
government failed to present any evidence that he voluntarily
consented to the vehicle search.
The Fourth Amendment generally prohibits warrantless
searches, but the warrant requirement does not apply where valid
consent to the search is given. See Schneckloth v. Bustamonte,
412 U.S. 218, 219 (1973). “[T]he Government bears the burden of
establishing, by a preponderance of the evidence, that it
obtained valid consent to search.” United States v. Buckner,
473 F.3d 551, 554 (4th Cir. 2007). Of course, consent is valid
only when it is freely and voluntarily given. See Trulock v.
Freeh, 275 F.3d 391, 401 (4th Cir. 2001). “[V]oluntariness of
consent to search is a factual question, and as a reviewing
court, we must affirm the determination of the district court
unless its finding is clearly erroneous.” United States v.
Lattimore, 87 F.3d 647, 650 (4th Cir. 1996) (en banc).
The government relied on hearsay testimony from Agent
Bryant and Officer Katrib to establish that Collins consented to
the search. It is well established, however, that hearsay
testimony is admissible at a suppression hearing. See United
States v. Matlock, 415 U.S. 164, 172-75 (1974) (reversing
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district court’s refusal to admit hearsay at suppression
hearing); United States v, Raddatz, 447 U.S. 667, 679 (1980)
(“At a suppression hearing, the court may rely on hearsay and
other evidence, even though that evidence would not be
admissible at trial.”). When the evidence presented at the
suppression hearing is viewed in the light most favorable to the
government, the totality of the circumstances support the
court’s conclusion that the government obtained valid consent to
search the SUV. Nothing in the record suggests coercive
circumstances when Collins consented to the search. In fact,
the opposite is true. Collins appeared to be calm and even
confident to the point that he was smirking at officers who were
having difficulty locating the evidence hidden in the secret
compartment. No weapons were drawn and Collins was not cuffed
during the search. We perceive no clear error in the district
court’s factual determination that Collins consented to the
search of the vehicle. Accordingly, we affirm the district
court’s denial of Collins’ motion to suppress.
d.
Wilson challenges the sufficiency of the evidence to
support his conviction for conspiracy to distribute five
kilograms or more of cocaine and 28 grams or more of crack. The
verdict of the jury “must be sustained if there is substantial
evidence, taking the view most favorable to the Government, to
13
support it.” United States v. Burgos, 94 F.3d 849, 862 (4th
Cir. 1996) (en banc) (emphasis and internal quotation marks
omitted). “Substantial evidence is evidence that a reasonable
finder of fact could accept as adequate and sufficient to
support a conclusion of a defendant’s guilt beyond a reasonable
doubt.” United States v. Green, 599 F.3d 360, 367 (4th Cir.
2010) (internal quotation marks omitted).
In order to prove conspiracy to distribute cocaine and
cocaine base, the government must show: “(1) an agreement to
distribute . . . cocaine [and cocaine base] . . . existed
between two or more persons; (2) the defendant knew of the
conspiracy; and (3) the defendant knowingly and voluntarily
became a part of th[e] conspiracy.” United States v. Yearwood,
518 F.3d 220, 225-26 (4th Cir. 2008) (internal quotation marks
omitted). “Proof of a conspiracy may of course be by
circumstantial evidence; it need not and normally will not be by
direct evidence.” United States v. Mabry, 953 F.2d 127, 130
(4th Cir. 1991) (internal quotation marks omitted). “Once it
has been shown that a conspiracy exists, the evidence need only
establish a slight connection between the defendant and the
conspiracy to support conviction.” United States v. Brooks, 957
F.2d 1138, 1147 (4th Cir. 1992).
Viewed in the light most favorable to the government, the
evidence supports the conclusion that Wilson and Collins were
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partners in the drug distribution trade together. Co-
conspirator Buckner described Collins and Wilson as being like
“business partners” and “brothers.” J.A. 456. From 2009 to
2011, Collins supplied Buckner with cocaine that Buckner then
redistributed. Collins and Wilson’s enterprise moved a high
volume of drugs; Buckner estimated that Collins was moving two
kilos of cocaine every two days. While Buckner generally dealt
with Collins, he purchased a small amount of cocaine—a half
ounce—from Wilson on at least one occasion. And in April 2011,
Buckner arranged to purchase four ounces of cocaine from Collins
for an acquaintance from Virginia. Shortly before the
transaction was to occur, however, Collins told Buckner that he
could not meet with Buckner. Instead, Collins sent Wilson in
his place to meet with Buckner. Wilson arrived at the Taco
Cabana driving a blue Acura SUV with the cocaine; Buckner
entered the SUV and paid for the cocaine. Moreover, Buckner’s
account of this transaction was corroborated by S.D. Thornton
who bought drugs from Buckner on multiple occasions. Officer
Brian Gavin, who took surveillance photographs, further
corroborated the general details of the Taco Cabana transaction.
Wilson’s Acura SUV was fitted with an after-market secret
compartment behind his console, a feature that was popular among
drug traffickers. Buckner testified that Collins owned a red
15
truck that also had a hidden compartment in which he stored
drugs and a handgun.
Wilson contends that, apart from the Taco Cabana sale,
there is no indication that Wilson engaged in repeated or
routine drug deals or otherwise did anything to join the
conspiracy. The evidence connecting Wilson to the conspiracy,
however, is strong enough to support the jury’s guilty verdict.
There was testimony that Wilson and Collins were like brothers
in their drug distribution business. More importantly, Collins
sent Wilson in his stead to complete the Taco Cabana
transaction. These facts alone are sufficient to connect Wilson
to the conspiracy. *
e.
Next, Appellants seek reversal on the basis that the
district court refused to afford the jury a written copy of the
*
Wilson also argues that in the event we agree that the
evidence was insufficient to convict him, we should then
conclude that the district court erred in calculating drug
quantity under the guidelines. Specifically, Wilson argues that
the district court offered no explanation to support the
determination that he be held accountable for over 150 kilograms
of cocaine. As explained above, however, the evidence was
sufficient to support his conviction. The presentence
investigation report (PSR) calculated the amounts based on the
same evidence supporting Wilson’s conviction and found that
Wilson and Collins, who “were equal partners in the distribution
of illicit drugs,” were “responsible for [446 kilograms] of
powder cocaine.” J.A. 811. The district court specifically
found that the drug quantities were “properly calculated by the
probation officer.” J.A. 781.
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jury instructions. The decision to provide a set of written
instructions to the jury is clearly one that is within the sound
discretion of the trial court and will not be reversed absent an
abuse of that discretion. See United States v. Jones, 353 F.3d
816, 818 & n.2 (9th Cir. 2003) (collecting cases). Appellants
fail to identify any reason requiring the district court to
supply a written copy of the instructions to the jury. The
trial was less than two days long and the jury was presented
with a very limited number of witnesses to consider and issues
to decide. Presuming, as we must, “that a properly instructed
jury has acted in a manner consistent with the instructions,”
United States v. Alerre, 430 F.3d 681, 692 (4th Cir. 2005),
there was no reason in this case to believe the jury could not
follow the court’s oral instructions under the circumstances.
Appellants respond that the jury expressed confusion and
asked to be reinstructed on the issue of drug weight and the
concept of multiple conspiracies. After deliberation began, the
jury sent the following note to the court: “The quantity of
cocaine and cocaine base – do they relate to Virginia only or
anywhere?” J.A. 648. The note was silent with respect to the
issue of multiple conspiracies – it related to calculating drug
quantity. And, significantly, the issue raised in the jury note
was not addressed in the court’s instructions. Thus, giving
those instructions to the jury in written form would not have
17
shed light on the jury’s question. We conclude that the
district court was well within its discretion in declining to
give the jury a written copy of the jury instructions.
f.
Next, Wilson contends that the district court erred in
rejecting his proposed jury instructions regarding the drug
quantity attributable to him. Reviewing the refusal to give a
jury instruction for abuse of discretion, we will reverse only
when the requested instruction “(1) was correct; (2) was not
substantially covered by the court’s charge to the jury; and (3)
dealt with some point in the trial so important, that failure to
give the requested instruction seriously impaired the
defendant’s ability to conduct his defense.” United States v.
Lighty, 616 F.3d 321, 366 (4th Cir. 2010) (internal quotation
marks omitted). “[This Court] review[s] a jury instruction to
determine whether, taken as a whole, the instruction fairly
states the controlling law.” United States v. Hurwitz, 459 F.3d
463, 474 (4th Cir. 2006) (internal quotation marks omitted).
Wilson asked the court to instruct the jury (1) that it
must “make an individualized determination of the quantity of
drugs attributable to each defendant,” J.A. 301, and (2) that
the jury must “bear in mind that guilt is individual” and that
the jury’s “verdict as to each defendant must be determined
separately with respect to him.” J.A. 287. The district court
18
instead adopted the government’s proposed language and
instructed the jury that “the defendants are accountable for the
quantity of controlled substances that they personally
distributed or that they could reasonably foresee that others
would distribute.” J.A. 638.
The district court’s instruction correctly stated the law
as to the drug quantity attributable to an individual defendant
in a drug conspiracy case. In United States v. Collins, 415
F.3d 304, 312 (4th Cir. 2005), we explained that
the sentencing provisions applicable to conspiracies
involving multiple narcotics should be individualized
to reflect a particular coconspirator’s relative
culpability in the conspiracy . . . [and a district
court must] assess the quantity of narcotics
attributable to each coconspirator by relying on the
principles set forth in [Pinkerton v. United States,
328 U.S. 640 (1946)].
Id. (internal quotation marks omitted). Under Pinkerton, a
defendant is liable not only for the amount of drugs that he was
personally involved in distributing, but also for those amounts
distributed by other members of the conspiracy whose actions
were both “reasonably foreseeable and in furtherance of the
conspiracy.” United States v. Blackman, 746 F.3d 137, 141 (4th
Cir. 2014). As required by Collins, the district court properly
instructed the jury on the Pinkerton principles. See Collins,
415 F.3d at 314.
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Nonetheless, Wilson argues that the district court’s
instructions constituted reversible error because, when coupled
with the court’s instruction that “a person who knowingly,
voluntarily, and intentionally joins an existing conspiracy is
responsible for all of the conduct of the coconspirators from
the beginning of the conspiracy,” J.A. 637-38, the court’s
instruction misled the jury into grouping Appellants together
when determining the drug quantity attributable to Wilson alone.
We disagree. To the extent the jury instructions permitted any
confusion as to the individualized assessment of the quantity of
drugs connected to each defendant, the district court’s separate
verdict forms reiterated the jury’s duty to separately determine
whether each defendant was guilty of conspiracy. The special
verdict forms required the jury to determine separately whether
each individual defendant was guilty of conspiring to distribute
cocaine and cocaine base and, if so, the amount attributable to
each individual defendant. Accordingly, Wilson’s proposed jury
instructions were substantially covered by the district court’s
instructions.
g.
Finally, Appellant Wilson argues that the district court
abused its discretion by admitting into evidence a recorded jail
phone call between himself and Collins offered by the government
to show that Collins and Wilson were trying to “get on the same
20
page with respect to the Taco Cabana [drug] deal,” J.A. 540, so
as to “further[] . . . the conspiracy” by “concealing” it,” J.A.
539. The call, as transcribed, proceeded as follows:
Collins: “Another thing that might gotta come, you
know, we gotta see how we gonna put this in order is
about that, . . . whatever they talking about happened
at the Taco Cabana. We gotta . . . to the lawyers
rather, we gotta confirm it or not confirm it, you
know, and [the lawyers] got to work [their] way around
that some type of way and I don’t wanna just say . . .
then, you know, there’s no way they can reform that .
. . You know what I’m saying. . . .
Wilson: Man . . . [unintelligible]
Collins: . . . they’re not gonna go in there and say
“yeah”, it happened, you know what I’m saying, but I
ain[’]t . . .
Wilson: [S]he’s working on that shit right now, but
ain[’]t no need to be reformed dog, the shit is
bullshit.
Collins: It can be bullshit bro, but it’s to the point
about how much the FBI got about that shit and how . .
. you know what I’m saying. And if we just straight up
say, you know what I’m saying I can’t really get at
you but I wanna get a confirmation with you if we on
the same page before I take it there.
J.A. 716 (some internal alterations in original).
Wilson objects to the introduction of the statements by his
co-defendant Collins on two grounds. First, Wilson argues that
the admission of the phone call violated his rights under the
Confrontation Clause. We disagree. The Confrontation Clause
reaches only “testimonial” statements. See United States v.
Jones, 716 F.3d 851, 855 (4th Cir. 2013) (internal quotation
marks omitted). Statements are testimonial when “a reasonable
21
person in the declarant’s position would have expected his
statements to be used at trial – that is, [when] the declarant
would have expected or intended to bear witness against another
in a later proceeding.” Id. (internal quotation marks omitted).
Recorded phone calls from prison clearly are not “testimonial”
per se. See id. (holding that statements made in “casual
conversations” on prison telephone calls were not testimonial
and their admission did not violate Confrontation Clause). We
agree with the government that nothing indicates Collins
expected or intended to “bear witness” against Wilson in the
phone call, as Collins’ statements implicated himself as much as
Wilson to the extent that they implicated anyone at all.
Second, Wilson argues that Collins’ statements constituted
inadmissible hearsay that was not subject to the co-conspirator
exception to the hearsay rule under Rule 801(d)(2)(E) of the
Federal Rules of Evidence. Under this rule, “a statement of the
defendant’s co-conspirator is admissible against the defendant
if it was made during the course of and in furtherance of the
conspiracy.” United States v. Shores, 33 F.3d 438, 442 (4th
Cir. 1994) (internal quotation marks omitted). A co-
conspirator’s statements come in “if the court finds (i) that
the defendant and the declarant were involved in a conspiracy
with each other at the time the statement was made; and (ii)
that the statement was made in furtherance of that conspiracy.”
22
Id. (footnote omitted); see Krulewitch v. United States, 336
U.S. 440, 442 (1949) (holding that an out-of-court statement of
one conspirator may be admitted against his fellow conspirator
only if the statements were “made pursuant to and in furtherance
of objectives of the conspiracy charged”).
Wilson argues that the drug conspiracy was over when the
statement was made as both Appellants were incarcerated. The
government argues that although the statement was made as part
of a separate conspiracy to obstruct justice at the trial, it
was nonetheless related to the charged conspiracy. Even if
these statements were not made in furtherance of the conspiracy
as required by Rule 801(d)(2)(E), we conclude that the admission
of the phone call was harmless. See United States v. Graham,
711 F.3d 445, 453 (4th Cir. 2013) (“The incorrect admission of a
statement under the coconspirator statement exclusion from the
definition of hearsay is subject to harmless error review.”).
“Erroneously admitted evidence is harmless if a reviewing court
is able to say, with fair assurance, after pondering all that
happened without stripping the erroneous action from the whole,
that the judgment was not substantially swayed by the error.”
United States v. Johnson, 587 F.3d 625, 637 (4th Cir. 2009)
(internal quotation marks omitted). As Wilson points out, he
uttered only a single sentence during the phone call which could
be taken to suggest that Wilson disagreed that he and Collins
23
needed to get “on the same page” and “reform” the facts. J.A.
716. In fact, to the extent Wilson’s statement was even
intelligible, a juror could reasonably conclude that Wilson was
denying involvement in the Taco Cabana incident which he
referred to as “bull***t” and that Wilson felt “no need to . . .
reform[]” the facts before trial. J.A. 716. We conclude that
the jury’s verdict in this case could not reasonably have been
swayed by the admission of the largely incomprehensible phone
conversation between Wilson and Collins.
III.
For the foregoing reasons, the judgment below is hereby
AFFIRMED.
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