USA. v. Pratt

Decision Date03 November 2000
Docket NumberNo. 99-4424,99-4424
Citation239 F.3d 640
Parties(4th Cir. 2001) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DENVER SHELTON PRATT, Defendant-Appellant. . Argued:
CourtU.S. Court of Appeals — Fourth Circuit

Appeal from the United States District Court for the District of South Carolina, at Columbia.

Dennis W. Shedd, District Judge. (CA-98-835-DWS)

[Copyrighted Material Omitted] COUNSEL: ARGUED: Robert Allen Ratliff, Cincinnati, Ohio, for Appellant. Jane Barrett Taylor, Assistant United States Attorney, Columbia, South Carolina, for Appellee. ON BRIEF: J. Rene Josey, United States Attorney, Columbia, South Carolina, for Appellee.

Before WIDENER, MICHAEL, and MOTZ, Circuit Judges.

Affirmed by published opinion. Judge Motz wrote the opinion, in which Judge Michael joined. Judge Widener wrote a concurring opinion.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

Denver Pratt, convicted of participation in a conspiracy to distribute cocaine and sentenced to 136 months imprisonment and five years supervised release, appeals his conviction and sentence. We affirm.

I.

On August 26, 1998, two deputy sheriffs stopped a rental car containing Pratt and Mario Strachan for making an improper lane change. Both Strachan and Pratt appeared nervous and when the officers returned to their patrol car to confer, they determined that the two men had given conflicting stories as to their destination. Based on this, the deputies decided to investigate further. They asked Strachan, who had rented the car, for permission to search the car, but he refused. The officers then retrieved a narcotics detection dog from their patrol car and walked the dog around the rental car. The dog indicated that he detected drugs near the trunk. Based on this, a deputy searched the trunk, where he found approximately fifteen kilograms of cocaine in a duffel bag. The officers arrested Pratt and Strachan and transported them to the sheriff's office to await the arrival of federal agents.

When Drug Enforcement Administration (DEA) agents interviewed Pratt, he admitted to knowing about the drugs in the trunk. He stated that a man known as "Blue" had brought the drugs to the hotel room in Atlanta where Strachan and Pratt had stayed the previous night. The drugs were to be delivered to a man called "Tio" in Columbia, South Carolina. Pratt had made one previous trip with Strachan to deliver drugs to Tio, for which Pratt had been paid $2000. Pratt claimed, however, that on the present trip, he was merely a passenger and Strachan had made all of the arrangements with Blue. Pratt also told the agents that his brother, Dennis Pratt, known as "Pop," had supplied the drugs.

The DEA agents found Tio's phone number in Pratt's wallet and asked Pratt and Strachan to call Tio -whose real name was Theotis Brannon -to set up a controlled delivery. Pratt and Strachan agreed. Pratt made the first call. The DEA agents intended to record the call, but, due to problems with the equipment, only Pratt's voice was recorded. During the call, Pratt told Brannon that he and Strachan had experienced car trouble but would be arriving within a few hours. Strachan then made a second call during which both voices were recorded. In Strachan's conversation with Brannon, Strachan first acknowledged that Pratt had already called Brannon, and then told Brannon that "the stuff's there." Brannon told Strachan that he had already called Pop, Pratt's brother, to tell him that Pratt and Strachan had been delayed.

After making the telephone calls, Pratt and Strachan accompanied the DEA agents to Columbia to make the controlled delivery. Upon reaching their destination, however, Pratt decided that he no longer wished to participate in the controlled delivery. Strachan then proceeded to make the delivery himself, after which co-defendants Theotis "Tio" Brannon and Mario Kikivarakis were also arrested.

A federal grand jury returned an indictment charging Pratt with conspiracy with intent to distribute and conspiracy to distribute cocaine, in violation of 21 U.S.C. S 846 (1994). The indictment also named Mario Strachan, Theotis Brannon and Mario Kikivarakis as co-conspirators. Upon a defense motion, the district court severed Pratt's trial from that of his co-defendants. After a one-day trial, the jury convicted Pratt. At sentencing, Pratt sought a downward adjustment for his minor role in the conspiracy. The district court declined to grant the adjustment and, based on the amount of drugs attributed to Pratt, sentenced him to 136 months imprisonment and five years supervised release.

II.

Pratt argues that the district court erred in admitting statements made by Strachan and Brannon during their recorded telephone conversation. Pratt contends that the recorded conversation between Strachan and Brannon constituted hearsay, not co-conspirator statements admissible under Fed. R. Evid. 801(d)(2)(E) because at the time the challenged statements were made, he was no longer a member of the conspiracy.

Under Fed. R. Evid. 801(c), hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." A statement is not hearsay if it is "a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy" and is offered against that party. Fed. R. Evid. 801(d)(2)(E). In order to admit a statement under 801(d)(2)(E), the moving party must show that (i) a conspiracy did, in fact, exist, (ii) the declarant and the defendant were members of the conspiracy, and (iii) the statement was made in the course of, and in furtherance, of the conspiracy. See, e.g., United States v. Heater, 63 F.3d 311, 324 (4th Cir. 1995). Idle conversation that touches on, but does not further, the purposes of the conspiracy does not constitute a statement in furtherance of a conspiracy under Rule 801(d)(2)(E). See United States v. Urbanik, 801 F.2d 692, 698 (4th Cir. 1986).

Many of the challenged statements in the Strachan-Brannon conversation do not constitute hearsay and thus do not require the protection of Rule 801(d)(2)(E). Hearsay is an out-of-court statement offered to prove the truth of the matter asserted therein. Few, if any, of Strachan's statements were offered to prove the truth of the matter asserted. For example, Strachan's statement that he and Pratt had car trouble was not offered to prove that they actually did experience car trouble; in fact, they did not. Such statements are admissible regardless of whether they meet the requirements of Rule 801(d)(2)(E).

Other statements, particularly from Brannon, however, arguably were admitted to prove the truth of the matter asserted. Thus, we must consider whether they constitute a co-conspirator statement under Rule 801(d)(2)(E). On appeal, Pratt argues that they do not because he was no longer a member of the conspiracy at the time of Strachan's phone call to Brannon. At trial, however, Pratt objected to the introduction of the Strachan-Brannon conversation on the ground that Strachan had withdrawn from the conspiracy, not that he, Pratt, had done so.1 Accordingly, we review the admission of the statements for plain error. See Fed. R. Crim. P. 52(b); United States v. Wilson, 973 F.2d 577, 580 (7th Cir. 1992) (where defendant objected to the admission of taped co-conspirator statements on one basis at trial and a different basis on appeal, second objection was deemed waived).

To reverse for plain error, we must "(1) identify an error; (2) which is plain; (3) which affects substantial rights; and (4) which seriously affects the fairness, integrity or public reputation of judicial proceedings." United States v. Moore, 11 F.3d 475, 481 (4th Cir. 1993) (internal quotation marks omitted).

In the instant case, admission of the statements probably did constitute error because at the time of the Strachan-Brannon phone call, Pratt was most likely no longer a member of the conspiracy. Rather, by that time Pratt had already taken affirmative steps to withdraw from the conspiracy, namely agreeing to make a controlled delivery and telephoning Brannon in an effort to facilitate that controlled delivery. See United States v. Walker, 796 F.2d 43, 49 (4th Cir. 1986) (to establish withdrawal from a conspiracy, a defendant must show affirmative acts inconsistent with the object of the conspiracy and communicated in a manner reasonably calculated to reach his coconspirators).2 While Pratt did not communicate his withdrawal to all of his co-conspirators, he could not do so and still assist in the controlled delivery. A strict adherence to the communication requirement would, in this case, destroy the value of Pratt's cooperation with the DEA agents. This cooperation, of course, was inconsistent with the aims of the conspiracy, and thus signaled a withdrawal from it.

However, given the wealth of other evidence implicating Pratt, even assuming that the admission of this testimony constituted plain error, it did not "seriously affect[ ] the fairness, integrity or public reputation of judicial proceedings," or Pratt's"substantial rights." Moore, 11 F.3d at 481. Law enforcement officers caught Pratt traveling with fifteen kilograms of cocaine; he acknowledged knowing about the cocaine; he admitted that he had been paid for transporting cocaine in the past; and he provided the name and phone number of the individual who was to receive the cocaine. Thus, even without the Strachan-Brannon conversation, which, in fact, barely mentioned Pratt, the evidence against Pratt was substantial. As Pratt has failed to establish that the admission of the conversation affected the outcome of his trial, see id. at 482, the purported error does not require reversal.

III.

Pratt next asserts that the district court erred in twice commenting on the evidence. The first instance occurred during the direct examination of a DEA agent,...

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