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United States v. David W. Harris, 09-4026.

David Harris appeals his conviction for possession of cocaine with intent to distribute. Harris challenges the district court’s decision to admit testimony against him under Fed. R. Evid. 801(d)(2)(E).

Marc Cannon and Corey Anderson have worked together as drug dealers in Milwaukee, Wisconsin, for fifteen years. During the tail end of this period, Anderson also worked as a confidential informant (CI) for the Milwaukee police. Harris was arrested and convicted of cocaine possession after Milwaukee police discovered a kilogram of cocaine in a green Ford Excursion sport-utility vehicle he drove from his home in Arkansas.

At trial, the prosecution’s case depended primarily on Anderson’s testimony. Anderson testified that during the spring and early summer of 2006, Cannon told Anderson that his cousin was coming to Milwaukee with a significant amount of cocaine. Harris arrived in Milwaukee sometime around June 25, 2006.

The district court sentenced Harris to 120 months’ imprisonment and eight years of supervised release. This appeal followed.

Discussion – Corey Anderson’s Testimony

Harris first objects to the district court’s decision to admit certain portions of Corey Anderson’s testimony under the exception to the hearsay rule for co-conspirator’s declarations. This testimony was mostly hearsay statements by Marc Cannon, such as when Cannon said that “one of his cousins was coming up from down south. Supposed to be bringing some [cocaine] up here;” “[Cannon’s] cousin supposed to come down. He supposed to have a couple [kilograms of cocaine];” and that “his [Cannon’s] cousin was coming down here with some work [some cocaine].”

We review a district court’s decision to admit hearsay statements under the co-conspirator’s exception for abuse of discretion. United States v. Prieto, 549 F.3d 513, 523 (7th Cir. 2008). “In order for a statement made by a member of a conspiracy to be admissible against other members of the conspiracy under Rule 801(d)(2)(E), the government must prove by a preponderance of the evidence that (1) a conspiracy existed; (2) the defendant and the declarant were members of the conspiracy; and (3) the statement was made during the course and in furtherance of the conspiracy.” United States v. Schalk, 515 F.3d 768, 775 (7th Cir. 2008). This Circuit requires that a district court make a ruling on the admissibility of a coconspirator’s statement prior to their introduction at trial. United States v. Santiago, 582 F.2d 1128, 1130-35 (7th Cir. 1978). However, a failure to make the required findings does not necessarily doom the district court’s decision to admit the testimony. “[A] district court’s failure to make Santiago findings will not be reversible error so long as the evidence in the trial record would support such findings.” United States v. Stephenson, 53 F.3d 836, 842 (7th Cir. 1995).

Harris has a two-part qualm with the district court’s decision to admit Anderson’s statements. He first argues that this court should overrule Stephenson and adopt a procedure similar to that used in the Sixth and Tenth Circuits. In those circuits, an appeals court reviewing a district court’s decision to admit statements pursuant to Rule 801(d)(2)(E) first assumes that the evidence is inadmissible and then determines whether the decision to admit it was harmless error beyond a reasonable doubt. See United States v. Mahar, 801 F.2d 1477, 1503-04 (6th Cir. 1986); United States v. Radeker, 664 F.2d 242 (10th Cir. 1981).

This observation, when combined with our need to follow extensive precedent (Stephenson itself relied on prior Seventh Circuit cases that reached the same conclusion, see, e.g., United States v. Nicosia, 638 F.2d 970, 974 (7th Cir. 1980)), proves fatal for the appellant’s first point. The district court should have made an explicit finding on the record with respect to the admissibility of the con-tested statements under Rule 801(d)(2)(E), but its neglect to do so does not rise to the level of a reversible error.

Harris next argues that there is not enough evidence in the record for the hearsay statements to pass muster under the rule in Stephenson. When considering the admissibility of hearsay statements under Rule 801(d)(2)(E), a district court is allowed to consider the statements themselves as evidence of the conspiracy. See Bourjaily v. United States, 483 U.S. 171, 180 (1987) (“We think that there is little doubt that a co-conspirator’s statements could themselves be probative of the existence of a conspiracy and the participation of both the defendant and the declarant in the conspiracy.”).

Notably, Bourjaily did not go so far as to hold that the statements alone could be sufficient to demonstrate a conspiracy and the defendant-declarant’s participation therein without independent supporting evidence in the record. Id. at 181. That is, the record must contain at least some facts confirming the existence of the conspiracy and Harris’s participation in it before we could find the disputed portions of Anderson’s testimony admissible under Rule 801(d)(2)(E).

Both sides agree that the statements, if improperly admitted, were not harmless.

Nonetheless, the preponderance of the evidence on record does support the existence of a conspiracy. First, it is relevant that while Harris was not the owner of the Excursion, he drove it from Arkansas to Milwaukee, and thus there is strong evidence that the cocaine discovered in the car belonged to him. Second, while $8900 found in Harris’s pockets may not exactly equal the street value of a half-kilogram of cocaine, such an exceedingly large quantity of cash is further circumstantial evidence of Harris’s involvement in drug trafficking. Third, the accuracy of some of Anderson’s statements to the police-most importantly, that there was cocaine concealed in the Excursion-corroborate his testimony and adequately bolster his credibility. Finally, Harris’s claim that Detective Pasho’s testimony is contradictory lacks merit.

We therefore defer to the trial court’s decision to characterize Anderson’s testimony as credible, conclude that a preponderance of the evidence on the record supports the existence of a conspiracy, and affirm that the district court properly admitted Anderson’s testimony under Rule 801(d)(2)(E). While the district court should have determined as much pursuant to the procedure set out in Santiago, the absence of such explicit findings in this case is not reversible error. Since the decision to admit evidence was correct, it did not infringe on defendant-appellant’s Sixth Amendment rights.

 For the full opinions visit the 7th Circuit Court of Appeals Web Site

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