U.S. v. Neal, 94-5588

• Decision Date: 20 March 1996
• Docket Number: No. 94-5588,94-5588
• Citation: 78 F.3d 901
• Parties: 44 Fed. R. Evid. Serv. 192 UNITED STATES of America, Plaintiff-Appellee, v. James NEAL, III, a/k/a Sonny, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 901

78 F.3d 901

44 Fed. R. Evid. Serv. 192

UNITED STATES of America, Plaintiff-Appellee, v. James NEAL, III, a/k/a Sonny, Defendant-Appellant.

No. 94-5588.

United States Court of Appeals,

Fourth Circuit.

Argued Feb. 2, 1996.

Decided March 20, 1996.

Appeal from the United States District Court for the District of South Carolina, at Rock Hill; Charles E. Simons, Jr., Senior District Judge. (CR-94-27)

ARGUED: John Frank Hardaway, Columbia, South Carolina, for Appellant. Marvin Jennings Caughman, Assistant United States Attorney, Columbia, South Carolina, for Appellee. ON BRIEF: J. Preston Strom, Jr., United States Attorney, Columbia, South Carolina, for Appellee.

Before ERVIN and MOTZ, Circuit Judges, and BLAKE, United States District Judge for the District of Maryland, sitting by designation.

Affirmed by published opinion. Judge MOTZ wrote the opinion, in which Judge ERVIN and Judge BLAKE joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

James "Sonny" Neal, III, was convicted by a jury of one count of distribution of cocaine, one count of distribution of cocaine base (crack), and one count of attempted distribution of crack. In this appeal, he contends that the trial court erred in: (1) admitting evidence of unrelated prior bad acts; (2) permitting a witness to testify concerning statements of an alleged co-conspirator; and (3) refusing to grant a judgment of acquittal as to the attempt offense. Finding no reversible error, we affirm.

I.

In September, 1993, police arrested Greg Burris on drug charges. Hoping to receive favorable treatment, Burris agreed to help police in the investigation of Neal, from whom he claimed to have previously purchased crack cocaine. Pursuant to this plan, on October 18, 1993, Burris drove into Neal's neighborhood on the outskirts of Rock Hill, South Carolina with $400 of government funds, intending to purchase a quarter-ounce of crack cocaine from Neal. After failing to find Neal at his home, Burris located Neal nearby at his mother's house. Burris asked to purchase the quarter-ounce of crack from Neal but before the sale could be completed, Neal and his younger brother began fighting. Neal told Burris to return in a half-hour. Upon Burris's return, Neal directed him to a nearby dead-end street. Neal arrived there a few minutes later and told Burris that he had been able to obtain only an eighth of an ounce of crack. ¹ Burris purchased the smaller amount with $240 in government funds. Before parting, Neal agreed to sell Burris a half-ounce of crack the next day.

The next day Burris returned to Neal's neighborhood to purchase the half-ounce and again located Neal at his mother's house. Once again Neal directed Burris to the nearby dead-end street. When Neal arrived a few minutes later with the half-ounce, Burris purchased the drugs with $700 in government funds.

The parties did not meet for a third sale until January 12, 1994. Burris again drove to Neal's neighborhood and located Neal near his mother's house. Burris asked Neal, "Could I get that ounce?" Neal responded, "It would be a little while on that," and told Burris "to come back around 3:00 [p.m.]." The two then parted. While these negotiations were taking place, or shortly thereafter, Michael "Hooley" Douglas, who lives with Neal's sister, saw a van occupied by police officers in the neighborhood. An officer testified that Douglas spotted and recognized the officers as they sat in the van waiting to arrest Neal. Subsequently, when Burris returned to Neal's house at 3:00 p.m., Neal refused to complete the drug transaction. Burris asked, "What about tomorrow?" Neal simply replied, "No happenings."

Later that evening, as Burris was driving in another part of Rock Hill, he was hailed by his cousin, who introduced him to Wilmore Thrower. Burris had heard that Thrower was a street dealer for Neal. Burris testified that after Thrower began bragging about "how much dope he could sell in a day," Burris asked him "could he get me a half an ounce ... and he said, yeah." Just then Neal drove up and summoned Thrower. Burris watched the two engage in a lengthy discussion after which Thrower returned to Burris's car and told him that "he wasn't going to be able to do no deals with [Burris]" because Hooley Douglas had spotted narcotics agents earlier in the day. According to Burris's testimony, Thrower informed him that "whenever Sonny [Neal] tell him [Thrower] not to move anything, he don't move nothing."

On the following day, January 13, 1994, Burris returned to Neal's neighborhood again in hopes of making the one-ounce purchase. Burris found Neal near his mother's house and asked if they could make a deal that day; Neal again said, "No happenings." Burris asked whether he could purchase the drugs from Wilmore Thrower and Neal told him that Thrower "ain't going to be able to do anything either." Burris then drove away. ²

As soon as Burris departed, police officers pulled up to the house. They observed Neal with a white paper bag in his hand standing in the yard talking with a friend. Recognizing the officers, Neal immediately fled to the back of his mother's house and through the back door. The officers followed Neal inside the house where they found the white paper bag in a trash can. Just outside the back door in an otherwise empty garbage can, the officers found an eighth of an ounce of crack. The crack was packaged in a cut-off corner of a plastic sandwich bag tied with red wire--similar to the packaging Neal had used in the previous transactions with Burris. In the back yard officers also found: a large number of plastic bags with their corners cut off; an empty plastic container buried in the ground; and a plastic refrigerator bag containing particles of crack residue. At Neal's nearby house the officers found a sheet of paper with Thrower's name and the telephone number where he could be reached.

A jury convicted Neal of two counts of distribution of a Schedule II controlled substance in violation of 21 U.S.C. § 841(a)(1) (based on the events of October 18 and 19) and one count of attempt to distribute a Schedule II controlled substance in violation of 21 U.S.C. § 846 (based on the events of January 12 and 13).

II.

Neal first contends that the district court erred in permitting government witnesses to make comments portraying him as a high-level drug dealer, or "kingpin." Neal asserts that these statements were irrelevant to the charges brought against him and constituted inadmissible evidence of prior bad acts.

Even if we agreed with Neal that the testimony was inadmissible, Neal invited the error and therefore it provides no basis for reversal. At trial, Neal did not object to any of the statements he now challenges, indeed, most were elicited by his own attorney from a government witness during cross-examination. At one point, the prosecutor even tried to warn Neal's attorney about pursuing a line of questioning relating to the defendant's prior conduct, but Neal's attorney persisted. Under these circumstances, Neal "cannot complain of error which he himself has invited." United States v. Herrera, 23 F.3d 74, 75 (4th Cir.1994) (quotation omitted).

III.

Neal next contends that the district court erred in admitting hearsay testimony. Neal argues that the district court should not have permitted Burris to testify at trial concerning statements made by Wilmore Thrower because the statements did not qualify for admission under Rule 801(d)(2)(E) of the Federal Rules of Evidence. Neal maintains that the statements did not qualify because they were not made during the course of a conspiracy with Neal. Additionally, Neal contends that the district court erred in failing to make an explicit finding that the statements were made in furtherance of the conspiracy.

As noted previously, Burris met Thrower, whom he knew to be a street dealer for Neal, after the third deal with Neal fell through. Thrower told Burris that he could arrange to sell him the crack he wanted. Immediately thereafter, Neal arrived on the scene and conferred at length with Thrower. Burris testified that when the two had finished conversing, Thrower told him that the sale could not take place because police officers were in the neighborhood. Thrower then made the statement that "whenever Sonny [Neal] tell[s] him [Thrower] not to move anything, he don't move nothing." Neal objected to Burris's testimony but, after a hearing, the district court denied the objection. The court ruled that the government had proved that a conspiracy existed between Neal and Thrower and that Burris's testimony was therefore admissible under Rule 801(d)(2)(E).

To admit testimony under this rule, a court must conclude "(1) that there was a conspiracy involving the declarant and the party against whom admission of the evidence is sought and (2) that the statements at issue were made during the course of and in furtherance of that conspiracy." United States v. Blevins, 960 F.2d 1252, 1255 (4th Cir.1992). The government must establish these elements by a preponderance of the evidence. Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 2778-79, 97 L.Ed.2d 144 (1987). A district court's decision to admit such testimony is reviewed for abuse of discretion. Blevins, 960 F.2d at 1255.

Neal's principal argument on this point is that Burris's testimony was inadmissible because the government provided no evidence of the conspiracy independent of the statements themselves. This court has not yet determined whether independent evidence of a conspiracy is required. See United States v. Shores, 33 F.3d 438, 443 n. 4 (4th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1365, 131 L.Ed.2d 221 (1995). However, we have held that an alleged co-conspirator's statements may be considered in determining the existence of the conspiracy. Blevins, 960 F.2d at 1255. In this case we need not resolve whether a co-conspirator's statements alone could provide proof of the...