United States v. Mayfield

909 F.3d 956

UNITED STATES of America, Plaintiff - Appellee

v.Robert L. MAYFIELD, Defendant - Appellant

No. 17-3211

United States Court of Appeals, Eighth Circuit.

Submitted: September 27, 2018

Filed: November 28, 2018

Rehearing and Rehearing En Banc Denied January 14, 2019^*

Sara Elizabeth Fullerton, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, Lincoln, NE, for Plaintiff-Appellee.

John S. Berry, Jr., BERRY LAW FIRM, Lincoln, NE, for Defendant-Appellant.

Robert L. Mayfield, Leavenworth, KS, Pro Se.

Before LOKEN, GRUENDER, and ERICKSON, Circuit Judges.

LOKEN, Circuit Judge.

A jury convicted Robert L. Mayfield, a California resident, of conspiracy to distribute and possess with intent to distribute methamphetamine in the District of Nebraska in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. The district court¹ imposed the mandatory minimum sentence of 240 months’ imprisonment. At trial, three cooperating witnesses testified that their methamphetamine supplier, Zachary Love, purchased meth from the "Cali Boys," brothers "Rob" Mayfield and Anthony "Duga" Harris. Mayfield appeals, arguing that out-of-court statements Love made to the cooperators, and recorded calls that Harris made from jail to "Rob" at a California telephone number, were inadmissible hearsay and violated his rights under the Confrontation Clause. He also argues the evidence was insufficient to convict and the district court erred in imposing an obstruction-of-justice sentencing enhancement. We affirm.

I. The Out-of-Court Statements.

The trial testimony established that Zachary Love was released from jail in the spring of 2014 and soon took up with friends and fellow meth addicts, including Kenneth Johnson, Angelo Ybarra, and Marlon Rupert. The four men grew up in Lincoln, Nebraska, had known each other since school days, and each had used and sold methamphetamine for many years.

The government’s first witness was Kenneth Johnson. He testified that in August of 2014, he twice drove Love to an apartment on Knox Street, where they purchased meth from a man Love identified as "Rob." Both times, Rob got in the back seat with Love, who bought two ounces of meth and later sold one ounce to Johnson. Johnson identified Rob in court as defendant Robert Mayfield. Johnson testified that Love met "Rob" at least three other times and returned from each meeting with two to four ounces of meth. Love told Johnson that his suppliers were Rob and "D," brothers from Sacramento who brought meth to Lincoln on Amtrak trains.

The government’s second witness was Angelo Ybarra. He testified that Love was his meth supplier from July or August until December 2014. Ybarra went with Love to a Knox Street apartment twice that fall. Both times, Ybarra gave Love money; Love entered the apartment alone and returned with two ounces of meth. A week after the second purchase, Ybarra and Love went to a different apartment, where Ybarra saw Love purchase meth from a dealer in the doorway fifteen yards away. Several weeks later, Ybarra and Love picked up the same dealer and they drove to a nearby home. Love and the dealer entered the home, and Love returned with a quarter-pound of meth. Ybarra testified that Love identified the dealer as "Rob," and said Rob brought the meth from California by train. Ybarra also witnessed another user, Tim, purchase an ounce of meth from the same dealer. Ybarra identified the dealer in court as defendant Robert Mayfield.

The third witness was Marlon Rupert. He testified that Love supplied him meth in the summer of 2014. On two occasions, Rupert saw Love with a quarter-pound of meth. Love said his meth sources were the "Cali boys," brothers Rob and "Duga" and their cousin Joe. Rupert never accompanied Love to purchase meth, and never spoke with any of the "Cali boys" while in Lincoln. However, months later, while incarcerated at CCA Leavenworth, Rupert became close with another inmate, Robert Mayfield. Upon learning that Mayfield came from California and was awaiting trial on methamphetamine distribution charges in Lincoln, Nebraska, Rupert "put two and two" together and asked Mayfield if he was one of the "Cali boys" who supplied Love. Rupert testified that, although hesitant, Mayfield admitted to having a relationship with Love. Mayfield also told Rupert that he and "Duga," Anthony Harris, were brothers.

Government law enforcement witnesses testified that, in February 2015, Harris was arrested and a warrant search of his apartment on Knox Street uncovered methamphetamine, distribution paraphernalia, and firearms. At the close of the government’s case, after the district court overruled Mayfield’s objections, the government played tapes of a series of phone calls Harris placed from jail to a Sacramento telephone number after his arrest. In these calls, Harris spoke to man he identified as "Rob." Harris told Rob that the police had found "like a teener," or 1/16 of an ounce, at Harris’s apartment. During a later call, Harris told Rob the police had in fact found "everything," including "the banger." Rob counseled Harris not to speak to anyone or worry about the charges, and promised to collect a debt in order to raise funds for a lawyer.

Before the start of trial, Mayfield objected that Harris’s statements during these recorded calls should be excluded as inadmissible hearsay and a violation of his Confrontation Clause rights. During trial, defense counsel made timely continuing objections that Love’s out-of-court statements as related by the three cooperating witnesses were inadmissible hearsay. The government contended that all these statements were admissible under the hearsay exception in Rule 801(d)(2)(E) of the Federal Rules of Evidence because they were made during and in furtherance of the charged conspiracy.

A. Hearsay Issues. Codifying a hearsay exception that the Supreme Court described as "steeped in our jurisprudence" in Bourjaily v. United States, 483 U.S. 171, 183, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), Rule 801(d)(2)(E) provides that a statement offered against an opposing party that "was made by the party’s coconspirator during and in furtherance of the conspiracy" is not hearsay. Before admitting a coconspirator’s statement under Rule 801(d)(2)(E), the government must establish by a preponderance of the evidence, and the district court must find, "that there was a conspiracy involving the declarant and the nonoffering party, and the statement was made during the course and in furtherance of the conspiracy." Id. at 175, 107 S.Ct. 2775 (quotation omitted).

In United States v. Bell, 573 F.2d 1040 (8th Cir. 1978), we established a procedure to address these issues during a criminal trial, which the district court properly followed in this case. After Mayfield timely objected to Love’s out-of-court statements, the district court provisionally admitted the statements and advised the parties, on the record at a side-bar conference, that the statements were admitted subject to defendant’s objection, that the government was required to prove by a preponderance of the evidence that the statements were made during the course and in furtherance of the conspiracy, that the court will make an explicit determination as to admissibility at the conclusion of the evidence, and that, if the statements are not admitted, the court will declare a mistrial unless a cautionary instruction would suffice. See Id. at 1044. The court adopted the same procedure regarding Harris’s statements in the recorded phone calls before the start of trial.

The district court made its final determination as to admissibility near the end of the government’s case but before the recorded calls were played for the jury. The court found that all out-of-court statements by Love and Harris were admissible under the hearsay exception in Rule 801(d)(2)(E) because the government established, by a preponderance of the evidence, that "A, a conspiracy existed; B, that the defendant and the declarant were members of the conspiracy; and, C, that the declaration[s were] made during the course and in furtherance of the conspiracy." Consistent with controlling precedents, the court ruled that it "may take into consideration the contents of the statements, although the government must prov[id]e independent evidence outside the statements themselves to establish the existence of the conspiracy." See Bourjaily, 483 U.S. at 176-181, 107 S.Ct. 2775 ; United States v. Ragland, 555 F.3d 706, 713 (8th Cir. 2009) ; United States v. Roach, 164 F.3d 403, 409 (8th Cir. 1998), cert. denied, 528 U.S. 845, 120 S.Ct. 117, 145 L.Ed.2d 99 (1999).

In addition to the statements themselves, the court found that independent evidence, "particularly the testimony of Kenneth Lee Johnson," established that Love, Harris, Mayfield, and the three cooperating witnesses were part of a conspiracy still in existence when Harris was arrested and physical evidence was seized at his apartment, and that the challenged statements were made in furtherance of the conspiracy because they "either involved the planning or organizing of the conspiracy, the direction of the conspiracy’s continued operations or efforts to protect and conceal the existence of the conspiracy."

On appeal, Mayfield argues the district court erred in finding that Love and Harris were Mayfield’s co-conspirators, and that their out-of-court statements were made in the course of and in furtherance of the conspiracy. Initially, we note but do not resolve a standard-of-review issue. Many prior cases have said, without analysis, that we review the admission of out-of-court statements under Rule 801(d)(2)(E)"for abuse of discretion." See, e.g., Ragland, 555 F.3d at 713. At first blush, this is a logical application of the general rule that "[w]e review the evidentiary rulings of a district court for abuse of discretion." United States v. Jordan, 260 F.3d 930, 932 (8th Cir. 2001). But admissibility under Rule 801(d)(2)(E)must be based on district court findings . Not...