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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-12223
Non-Argument Calendar
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D.C. Docket No. 5:11-cr-00014-JA-TBS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NICHOLAS M. RAGOSTA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(May 15, 2013)
Before MARTIN, JORDAN, and FAY, Circuit Judges.
PER CURIAM:
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Nicholas Ragosta appeals his convictions for one count of conspiracy to
possess 100 kilograms or more of marijuana with intent to distribute, one count of
possession of 100 kilograms or more of marijuana with intent to distribute, and one
count of using and carrying a firearm in furtherance of a drug trafficking crime.
See 21 U.S.C. § 841(a)(1), 21 U.S.C. § 846, 18 U.S.C. § 924(c). Mr. Ragosta
asserts that the district court erred by admitting hearsay evidence and Rule 404(b)
evidence. He also contends, for the first time on appeal, that the government
engaged in prosecutorial misconduct.
The government alleged that Mr. Ragosta was involved in a drug heist while
he was a deputy with the Marion County Sheriff’s Office. His first trial resulted in
a hung jury. His second trial resulted in a conviction and a sentence of 180 months’
imprisonment based on evidence that Mr. Ragosta successfully conspired with his
cousin, Andrew Ragosta, and an acquaintance, Robert Abbott, to steal marijuana
from drug dealers. Mr. Ragosta received $30,000 for his participation in the heist,
which took place on May 15, 2009.
I
Both co-conspirators testified against Mr. Ragosta. During an intercepted
phone conversation on July 6, 2009, which Mr. Ragosta challenges as inadmissible
hearsay, Mr. Abbott and Andrew Ragosta discussed the division of proceeds and a
demand from Nicholas Ragosta’s father (Nicola) that more money be paid to his
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sons, Nicholas and Johnny. Over a defense objection, the district court allowed the
government to play the recording for the jury.
We first address Mr. Ragosta’s argument that the district court improperly
admitted hearsay evidence under the co-conspirator exception, see Fed. R. Evid.
801(d)(2)(E), a ruling we review for abuse of discretion. See United States v.
Underwood,
446 F.3d 1340, 1345 (11th Cir. 2006). This exception applies if the
government shows by a preponderance of the evidence (1) that a conspiracy
existed, (2) that the declarant and the defendant were both members of the
conspiracy, and (3) that the statement was made during the course of and in
furtherance of the conspiracy. See
id. at 1345–46.
Mr. Ragosta argues that the second and third elements were not met because
his father was not a co-conspirator and the conspiracy had ended when the
statements were made. The two participants in the phone call (Robert Abbott and
Andrew Ragosta) were clearly members of the conspiracy, as Mr. Ragosta readily
admits. See, e.g., Ragosta Br. at 17 (“Andrew Ragosta was part of the conspiracy . .
. .”). The co-conspirators, however, discussed out-of-court statements by Nicholas
Ragosta’s father, so there is a hearsay within hearsay issue.
The district court did not specifically address whether the father was a co-
conspirator, see R:107 at 34, but we can affirm on any ground that finds support in
the record. See Lucas v. W.W. Grainger, Inc.,
257 F.3d 1249, 1256 (11th Cir.
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2001). As noted earlier, the statements at issue involved the father’s demand that
his sons, Nicholas and Johnny Ragosta, receive more money for their roles in the
conspiracy. We find no error in the district court’s conclusion that the
conversation—including the father’s statement about the distribution of money—
was in furtherance of the conspiracy. See United States v. Turner,
871 F.2d 1574,
1581 (11th Cir. 1989) (conversations among co-conspirators about how proceeds
of theft were going to be distributed were admissible under Rule 801(d)(2)(E));
United States v. Knuckles,
581 F.2d 305, 313 (2d Cir. 1978) (“[I]t is fair to say that
where a general objective of the conspirators is money, the conspiracy does not
end, of necessity, before the spoils are divided among the miscreants.”). We also
conclude that the father—given his active interest in obtaining more money for his
sons—was a member of the conspiracy at the time he made the statement attributed
to him. Accordingly, the intercepted conversation was properly admitted under
Rule 801(d)(2)(E).
II
Next we address Mr. Ragosta’s argument that the district court erred by
allowing the government to introduce a list of records accessed using Mr.
Ragosta’s credentials for DAVID—a database used by law enforcement officers to
search for individuals’ photographs and driver’s license information. Mr. Ragosta
contends that this evidence was irrelevant and prejudicial, and therefore should not
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have been admitted under Rule 404(b). He also asserts that the government failed
to proffer sufficient proof that he was the person who accessed the records.
We generally review a district court’s decision to admit evidence under Rule
404(b) for abuse of discretion. See United States v. Ramirez,
426 F.3d 1344, 1354
(11th Cir. 2005). But our review here is only for plain error because Mr. Ragosta
failed to renew his objection during trial after initially asserting it in a motion in
limine. See United States v. Brown,
665 F.3d 1239, 1247 (11th Cir. 2009) (noting
that an overruled motion in limine is insufficient to preserve an objection for
appeal). Under plain error review, Mr. Ragosta must show (1) that there is error,
(2) that the error is plain, (3) that the error affects his substantial rights, and (4) that
the error seriously affects the fairness, integrity, or public reputation of the judicial
proceeding. See
id. A district court may admit evidence of other crimes, wrongs, or
acts as proof of motive, opportunity, intent, preparation, plan, or other non-
character reasons. See Fed. R. Evid. 404(b). The three-part test for admissibility is
(1) relevance to an issue other than the defendant’s character, (2) sufficient
evidence that the defendant committed the act, and (3) probative value not
substantially outweighed by undue prejudice. See United States v. Edouard,
485
F.3d 1324, 1344 (11th Cir. 2007).
The district court did not err in admitting the evidence. Because the DAVID
searches involved drug-unit officers or potential drug suppliers, the evidence was
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relevant to show Mr. Ragosta’s intent and preparation for the drug conspiracy.
Although there was evidence suggesting that another officer could have conducted
the searches, the government’s burden for admissibility was preponderance of the
evidence. See
id. (“[T]here must be sufficient proof to enable a jury to find by a
preponderance of the evidence that the defendant committed the act(s) in
question.”). A reasonable jury could conclude that Mr. Ragosta conducted the
DAVID searches given the evidence that each officer had a unique DAVID
certificate and Mr. Ragosta’s own testimony confirming that he conducted at least
some of the searches (although his explanation for why he accessed the records
differed from the government’s proffered rationale). See R:108 at 188–92. Any
undue prejudice, moreover, did not substantially outweigh the probative value of
the evidence. We find no error, plain or otherwise, in the district court’s decision to
admit the DAVID evidence under Rule 404(b).
III
Finally, we address the prosecutorial misconduct claim, which we also
review for plain error because Mr. Ragosta raises it for the first time on appeal. See
United States v. Bailey,
123 F.3d 1381, 1400 (11th Cir. 1997). Mr. Ragosta alleges
that the government “altered its evidence at the second trial to defeat [his] alibis.”
Ragosta Br. at 20. To state a claim for prosecutorial misconduct based on the use
of false testimony, Mr. Ragosta must show (1) that the prosecutor knowingly used
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perjured testimony or failed to correct testimony subsequently discovered to be
false, and (2) that the falsehood was material. See United States v. McNair,
605
F.3d 1152, 1208 (11th Cir. 2010).
Mr. Ragosta does not specifically identify what evidence he alleges to have
been “altered” by the government. He points to the testimony of Robert Abbott
regarding the timing of certain events, but provides no real basis for concluding
that his testimony at the second trial contradicted his testimony at the first trial. In
fact, Mr. Abbott consistently testified that he was unsure of the exact time he
arrived home from the heist. Compare R:72 at 101 (testifying at the first trial that
he arrived home at “approximately eight something—I can’t remember the exact
time”), with R:107 at 57 (testifying at the second trial that he couldn’t recall the
exact timeframe he arrived home, but that it was right before dusk).
Mr. Ragosta also claims the government made “inconsistent argument[s]”
about the timing of the heist by arguing at the first trial that it could not “pin down”
the exact time of the drug heist, but subsequently arguing at the second trial that
the heist took place during a specific, narrow timeframe. This argument is
contradicted by the record, which indicates that the government argued at both
trials that the heist could have occurred at certain different times based on phone
records and witness testimony. Compare R:75 at 13 (closing argument at first trial,
noting that “it could have been in various stages of when these things took place”),
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with R:111 at 14 (closing argument at second trial, noting that “it could have been
at several times . . . but let me give you one scenario”). We find no error, much less
plain error, where Mr. Ragosta fails to identify any false or perjured testimony to
form the basis for his prosecutorial misconduct claim.
AFFIRMED.
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