[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 09-16373 FILED
Non-Argument Calendar U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 26, 2010
JOHN LEY
D.C. Docket No. 09-00286-CR-T-24EAJ CLERK
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
VITALI MAKARENKOV,
Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(October 26, 2010)
Before EDMONDSON, MARTIN, and COX, Circuit Judges.
PER CURIAM:
Vitali Makarenkov and Stanislaw Satarinov were jointly charged in a two-
count indictment. Count One charged conspiracy to possess with the intent to
distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846 and
841(b)(1)(A). Count Two charged possession with intent to distribute 500 grams or
more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B).
Makarenkov was tried alone. The jury found him guilty on Count One, but of
the lesser-included offense of conspiracy to possess with the intent to distribute 500
grams or more of cocaine. He was found guilty as charged on Count Two. He was
sentenced to seventy-two months on each count, with the sentences to run
concurrently, and a forty-eight month term of supervised release on each count, to run
concurrently. He appeals.
On appeal, Makarenkov argues that the district court erred in admitting
recorded conversations between Satarinov, a co-conspirator, and a confidential
informant because admission of their statements violated the Sixth Amendment’s
Confrontation Clause and the statements were not admissible under Fed. R. Evid.
801(d)(2)(E). He also argues—and the Government concedes—that the district
court’s written judgment in his case contained a fundamental clerical error in that it
reflected that on Count One he was convicted under 21 U.S.C. § 841(b)(1)(A) when
he was convicted of a lesser-included § 841(b)(1)(B) violation. We affirm, but vacate
and remand for the district court to correct the clerical error in the judgment.
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I.
We review questions of constitutional law de novo. United States v.
Underwood, 446 F.3d 1340, 1345 (11th Cir. 2006) (citation omitted). We review a
district court’s ruling on the admissibility of evidence for abuse of discretion. Id.
(citation omitted).
Makarenkov argues that the district court erred in admitting out-of-court
statements made by a co-conspirator and a confidential informant in violation of his
rights under the Sixth Amendment. Under the Confrontation Clause, a criminal
defendant “shall enjoy the right . . . to be confronted with the witnesses against him.”
U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36, 50-51, 124 S. Ct.
1354, 1364, (2004), the Supreme Court held that the Confrontation Clause applied
with equal force to in-court testimony and “testimonial” out-of-court statements.
However, in Underwood we said that testimonial statements are “statements made
under circumstances which would lead the declarant to believe that the statement
would be available for use at a later trial.” 446 F.3d at 1347 (citation omitted). And,
we upheld the introduction of a co-conspirator’s statements to a confidential
informant, reasoning that the co-conspirator’s statements never would have been
made if he had realized that the informant worked for law enforcement. Id.
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As in Underwood, the statements made by Satarinov to the confidential
informant were not testimonial because the statements were not made under
circumstances in which he would expect his statements to be used in court–he
believed he was speaking to a trusted accomplice in crime. Therefore, the admission
of Satarinov’s statements did not violate Makarenkov’s rights under the
Confrontation Clause.
Makarenkov argues in the alternative that “even if the admission of the alleged
co-conspirator’s statements did not violate Crawford, the statements were improperly
considered co-conspirator statements under Federal Rule of Evidence 801(d)(2)(E),
as the [G]overnment failed to establish that a conspiracy involving Mr. Makarenkov
existed at the time the statements were made.” (Appellant Br. at 18.) Under
Makarankov’s reasoning, “prior to a party’s entrance into a conspiracy, statements
made by a subsequent co-conspirator do not fall within [the 801(d)(2)(E)] exception
to the hearsay rule.” (Id. at 26-27.) But it is settled law in this circuit that “a
‘declaration of one co-conspirator is admissible against members of the conspiracy
who joined after the statement was made.’” United States v. Lampley, 68 F.3d 1296,
1301 (11th Cir. 1995) (quoting United States v. Tombrello, 666 F.2d 485, 491 (11th
Cir. 1982)). Consequently, Makarenkov’s argument is meritless.
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Makarenkov also argues that the informant’s statements were inadmissible
hearsay because they were offered to prove the truth of the matter asserted. The
informant’s statements, however, were not offered for their truth, but only to place
the investigation and Satarinov’s statements in context. Therefore, they were not
hearsay, and were admissible. United States v. Price, 792 F.2d 994, 997 (11th Cir.
1986) (holding that an informant’s half of a taped conversation was not hearsay
because “[t]he single purpose for admitting the [the informant’s] statements was to
make understandable to the jury the statements made by [the defendant] himself,” and
not to prove that the informant’s statements were true). Accordingly, we hold that the
district court did not abuse its discretion in admitting these recorded conversations.
Makarenkov argues further that the district court failed to provide a limiting
instruction as to the informant’s statements; one telling the jury that the informant’s
statements were not admitted to prove that what he said was truthful. But,
Makarenkov failed to request the limiting instruction at trial and “the failure of the
court to provide one, sua sponte, [is] not plain error.” United States v. Cross, 928
F.2d 1030, 1051 n.69 (11th Cir. 1991) (citations omitted). “The failure to give a
limiting instruction is error only when such an instruction is requested.” United
States v. Miranda, 197 F.3d 1357, 1360 (11th Cir. 1999) (citation omitted).
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II.
When faced with a clerical error in the written judgment, we may remand with
instructions to correct that error. United States v. Diaz, 190 F.3d 1247, 1252 (11th
Cir. 1999) (remanding because the judgment reflected the wrong offense). “It is
fundamental error for a court to enter a judgment of conviction against a defendant
who has not been charged, tried or found guilty of the crime recited in the judgment.”
Id.
Both parties agree, and we have confirmed, that the written judgment reflected
that Makarenkov’s Count One conviction was punishable under 21 U.S.C. §
841(b)(1)(A), when he actually was convicted of a lesser-included offense punishable
under § 841(b)(1)(B). Accordingly, we vacate that part of the judgment which
describes the title and section of which he was convicted and remand with
instructions to correct the clerical error in the judgment.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
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