UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 98-20105
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
WENDELL ALBOYD CORNETT AND MARY MARTILLIEA GALLOWAY,
Defendants-Appellants.
Appeals from the United States District Court
for the Southern District of Texas
November 10, 1999
Before REAVLEY, HIGGINBOTHAM and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
This direct criminal appeal arises from the conviction
following jury trial of Appellants Wendell Alboyd Cornett
(“Cornett”) and Mary Martillea Galloway (“Galloway”) for
conspiracy to distribute and possess with intent to distribute
cocaine and cocaine base in violation of 21 U.S.C. §§ 846,
841(a)(1) and 841(b)(1)(A). For the reasons assigned, we affirm
the convictions and sentences of Appellant Cornett and reverse the
conviction and sentence of Appellant Galloway and remand Galloway’s
case to the district court for further proceedings consistent with
this opinion.
I. FACTS AND PROCEDURAL HISTORY
This case presents a complicated set of facts that involve
allegations of drug possession and distribution, money-laundering,
tax evasion, police corruption and exploitation. The grand jury
indicted ten co-conspirators as being part of an elaborate drug
conspiracy. Appellants Cornett and Galloway were tried together
and convicted of performing various roles in the drug conspiracy.1
Detailed evidentiary facts will be recounted as necessary in
subsequent sections dealing with Appellants' specific claims.
Here, we sketch only a general overview of the drug conspiracy.
Cornett owned and operated multiple businesses in the Houston
area. Specifically, Cornett owned an automotive detailing shop
called the House of Colors and a bowling alley pro shop. Galloway
was one of Cornett’s girlfriends. The government, believing that
Cornett was running an elaborate drug smuggling operation behind
the fronts of his legitimate businesses, began a three-year
undercover investigation of Cornett and other suspects. In doing
so, the government used undercover agents, cooperating witnesses,
electronic monitoring and wire taps to gather evidence of Cornett’s
1
Cornett and Galloway were tried with two other defendants who
were also convicted of participation in the conspiracy. One of
these defendants, James Phillips, was granted a new trial by the
district court.
2
drug smuggling operation.
The government began its investigation of Cornett in 1991
when, upon a valid search of an unrelated suspect, records were
found indicating that Cornett had received possession of over 200
kilograms of cocaine. Later in 1991 Cornett and Kevin Nixon
(“Nixon”) purchased the Stadium Bowl pro shop with $13,500 in cash
provided by Cornett. To recompense his share of the purchase
price, Nixon ran the pro shop and conducted errands for Cornett --
including making deliveries of cocaine and returning with packages
of cash. Several witnesses corroborated Nixon’s testimony that he
had made deliveries of drugs for cash for Cornett operating out of
the pro shop.
Cornett used his wife and several girlfriends to assist his
drug enterprise. Specifically, his girlfriend Kim Boutte
(“Boutte”) arranged drug transactions with customers and counted
the cash receipts. Gradually Cornett used Boutte less and less,
however, as his trust and interest in her waned. The government
contends that Cornett then recruited Galloway to oversee the
counting and storing of the drug money.
The facts surrounding Galloway’s involvement in the drug
conspiracy are disputed. The government’s witnesses testified as
to circumstantial evidence ambiguously suggesting differing degrees
of Galloway’s involvement with Cornett and his activities.
Testimony from Nixon and several drug purchasers suggested that
Galloway was responsible for counting the money involved in the
3
drug transactions. Specifically, one witness testified that, when
he went to the hair salon where Galloway and Cornett worked for a
rendezvous with Cornett, Galloway let him in the front door and
escorted him to an upstairs room. He said he entered the room
without Galloway and found Cornett counting, in his estimation,
over $400,000. An audiotaped statement of a co-conspirator
reported that Cornett had made a statement to her in which he
mentioned Galloway in connection with “$500,000.” Another witness
testified that Cornett had told him that Galloway had a money
counting machine and had accurately counted sums in excess of
$21,000 for him. In an attempt to connect Galloway to the drug
money, the government introduced evidence that Galloway received
several expensive presents from Cornett, including a fur coat, a
custom designed diamond ring and a Mercedes Benz; co-signed an
automobile credit application as a reference for Cornett; and on
two occasions wrote checks on her own account (for which Cornett
supplied the cash) to pay Cornett’s creditors. Galloway denied her
involvement in the conspiracy, claiming that she had never seen
more than $1,000 in cash in her life and that she never owned a
money counting machine. It is undisputed, however, that she knew
how to operate such a machine from her experience as a bank
employee. She testified to her belief that any money or presents
she had received from Cornett came from the operations of his
legitimate businesses. Galloway’s experience in bookkeeping and
familiarity with Cornett’s legitimate businesses tends to show that
4
she knew Cornett’s legal income from them was not sufficient to
support their lifestyles.
As Cornett continued to engage in the drug conspiracy, the
government arranged for cooperation with several of the
participants. By 1995 Cornett had sold large amounts of both
powder cocaine and cocaine base to the undercover informants.
Prior to these transactions Cornett had evaded police detection of
his drug operations with the help of James Phillips, a co-
conspirator, who was also a police officer with access to police
records and databases.
Through its network of cooperating witnesses and undercover
agents, the government compiled evidence of the drug conspiracy --
recording over 100 audio tapes of conversation between the
participants. The government argued at the end of the trial that
one of these tapes, Exhibit 1.165, directly implicated Galloway in
the conspiracy. Exhibit 1.165 involves a discussion between Boutte
and a cooperating witness at the bowling alley pro shop. On the
tape they discussed several topics -- mostly limited to bowling
scores and the appearance of persons on the scene. Part of the
tape consisted of Boutte’s laments over Cornett’s exclusion of her
from some of the drug activities and Cornett’s relationship with
Galloway. While mostly unintelligible, the government contends
that this tape directly implicates Galloway because Boutte suggests
her belief that Cornett had entrusted Galloway with storing and
counting $500,000 of Cornett’s drug money. Galloway’s counsel
5
objected to the admission of this tape, but the district court
allowed the tape to be admitted as statements of co-conspirators in
furtherance of the conspiracy under Federal Rules of Evidence
801(d)(2)(e).
Six of the ten indicted co-conspirators pleaded guilty. The
remaining four, Cornett, Galloway, Phillips and Henry DeRousselle
proceeded to a jury trial. The jury convicted Cornett of all
charges except two, and he was sentenced to concurrent life
sentences and concurrent forty year sentences. Galloway was
convicted on the sole count of conspiracy and sentenced to sixty
months imprisonment. Phillips was convicted of conspiracy, but was
granted a new trial by the district court. Similar motions for
acquittal and for new trial by both Cornett and Galloway were
denied. Cornett and Galloway timely appealed their convictions and
sentences.
II. CORNETT
Cornett raises multiple issues on appeal, including jury
misconduct, right to be present at a juror misconduct hearing,
right to cross-examination and ineffective assistance of counsel.2
We have considered the oral arguments of counsel, reviewed the
2
We do not address the ineffective assistance of counsel
argument, however, because an ineffective assistance of counsel
argument should not be raised for the first time on appeal except
in rare cases where the record is fully developed. See United
States v. Crooks, 83 F.3d 103, 108 (5th Cir. 1996). This appeal
does not present such a case.
6
parties’ briefs and the record designated for appeal. The evidence
of Cornett’s guilt as the leader of the conspiracy is ample and
cogent. The issues he seeks to raise on appeal are governed by
well-settled principles of law and are meritless. The jury
misconduct argument is without merit because Cornett has not
demonstrated any prejudice due to the exposure of extrinsic
evidence to the jury. See, e.g., United States v. Kelley, 140 F.3d
596, 608 (5th Cir. 1998). The commencement of a non-evidentiary
hearing regarding possible juror misconduct without Cornett’s
presence was not reversible error because Cornett had no right to
be present at a “conference or hearing upon a question of law” such
as the one conducted by the district court,3 and in any event, any
such right was waived by the presence of his counsel.4 See, e.g.,
United States v. Cowan, 819 F.2d 89, 94 (5th Cir. 1987); United
States v. Provenzano, 620 F.2d 985, 997 (3rd Cir. 1980). The right
to cross-examination argument is without merit because Cornett was
allowed sufficient cross-examination “to expose to the jury the
3
See Fed.R.Crim.P. 43(c)(3). It is undisputed that once the
legal proceeding turned to issues of fact and required cross-
examination, the proceeding was halted so that Cornett could be
present. Thus, any possible error is at most harmless. See United
States v. Stratton, 649 F.2d 1066, 1080 (5th Cir. 1981) (citing
United States v. Walls, 577 F.2d 690, 697) (9th Cir. 1978))
4
We review only under Federal Rule of Criminal Procedure 43
because “it is clear that there is no constitutional right for a
defendant to be present at a conference in chambers concerning
dismissal of a juror.” Provenzano, 620 F.2d at 997 (citing United
States v. Howell, 514 F.2d 710, 713 (5th Cir. 1975)).
7
facts from which jurors, as the sole triers of fact and
credibility, could appropriately draw inferences relating to the
reliability of the witness." United States v. Restivo, 8 F.3d 274,
278 (5th Cir.1993), cert. denied, 513 U.S. 807 (1994). Accordingly,
Cornett establishes no reversible error, and we affirm his
convictions and sentences.
III. GALLOWAY
Galloway raises three issues on appeal -- (1) that the
district court erred in finding that it lacked jurisdiction to
review a motion to reconsider, (2) that the evidence presented was
insufficient to establish Galloway’s guilt beyond a reasonable
doubt, and (3) that the district court erred in admitting Exhibit
1.165 under the co-conspirator definition of non-hearsay in Rule
801(d)(2)(e). Because Galloway’s argument on point (3) has
reversible merit,5 we set aside the conviction and sentence of
Galloway and remand her case for a new trial.6
1. Sufficiency of the Evidence
5
Since we find the admission of Exhibit 1.165 to be reversible
error, we need not address the issue of the timeliness of
Galloway’s motion to reconsider.
6
Since we are reversing for a reason other than sufficiency of
the evidence, remand is proper because “the accused has a strong
interest in obtaining a fair readjudication of [her] guilt free
from error, just as society maintains a valid concern for insuring
that the guilty are punished.” United States v. Fitzpatrick, 581
F.2d 1221, 1224 (5th Cir. 1978).
8
Galloway contends that there was insufficient evidence to
support her conviction of conspiracy. In considering such claims,
the evidence is reviewed “to determine whether a rational trier of
fact, after considering all the evidence and reasonable inferences
drawn therefrom in a light most favorable to the verdict, could
have found the defendant guilty beyond a reasonable doubt.” United
States v. Walker, 148 F.3d 518, 523 (5th Cir. 1998) (citing United
States v. Carillo-Morales, 27 F.3d 1054, 1064 (5th Cir. 1994)).
Under this standard, it cannot be said that the evidence was
insufficient to support Galloway’s conviction as a matter of law.
As discussed infra, while the evidence presented a close case
against Galloway, taking it and all reasonable inferences in the
light most favorable to the verdict, a rational trier of fact could
have found Galloway guilty of conspiracy beyond a reasonable doubt.
Accordingly, we conclude that there was sufficient evidence to
support Galloway’s conviction.
2. Co-Conspirator Statements
This court reviews admission of hearsay evidence under the
non-hearsay definition of Rule 801(d)(2)(e) for abuse of
discretion.7 See United States v. Narviz-Guerra, 148 F.3d 530, 536
7
If an objection under Rule 801(d)(2)(e) does not specify the
grounds for objection, then this court may only review for plain
error rather than abuse of discretion. See United States v.
Burton, 126 F.3d 666, 671 (5th Cir. 1997). Counsel for Galloway
objected to the admission of Exhibit 1.165 multiple times -- when
first proffered by the government, prior to jury deliberations and
in a motion for new trial. Counsel specifically objected to
admittance of the evidence because, inter alia, it was not “in
9
(5th Cir. 1998).
Hearsay is not admissible under the Federal Rules of Evidence
unless it fits an exception. Fed.R.Evid. 802. However, Rule 801
provides that certain statements which would otherwise constitute
excludable hearsay under the general rule of Rule 801(c) are not
hearsay by definition. One such definitional non-hearsay is found
in Rule 801(d)(2)(e), which provides:
A statement is not hearsay if . . . the statement is
offered against a party and is . . . a statement by a
coconspirator of a party during the course and in
furtherance of the conspiracy.
Under Rule 801(d)(2)(e), the proponent of admittance must prove by
a preponderance of the evidence (1) the existence of the conspiracy
(2) the statement was made by a co-conspirator of the party, (3)
the statement was made during the course of the conspiracy, and (4)
the statement was made in furtherance of the conspiracy. See
United States v. Broussard, 80 F.3d 1025, 1038 (5th Cir. 1996)
(citing Bourjaily v. United States, 483 U.S. 171, 175 (1987));
United States v. Means, 695 F.2d 811, 818 (5th Cir. 1983). There
is no dispute as to the existence of the conspiracy, that the
statements made in Exhibit 1.165 were made by a co-conspirator or
that they were made during the course of the conspiracy -- the only
issue properly before the court is whether the statement was “in
furtherance” of the conspiracy. This is sufficient to preserve the
challenge on appeal. Id. That Galloway did not renew the objection
does not alter this result. Cf. Marceaux v. Conoco, Inc., 124 F.3d
730, 733 (5th Cir. 1997).
10
furtherance” of the conspiracy.
The legal standards that define the “in furtherance”
requirement are well-established. A statement must be “in
furtherance” of the conspiracy in order to fit within the non-
hearsay definition of Rule 801(d)(2)(e). However, this Circuit has
consistently held that the "in furtherance" requirement is not to
be construed too strictly lest the purpose of the exception be
defeated. See United States v. Lechuga, 888 F.2d 1472, 1480 (5th
Cir.1989); United States v. Ascarrunz, 838 F.2d 759, 763 (5th
Cir.1988). This rule is not without its limits, however; a
statement is not in furtherance of the conspiracy unless it
advances the ultimate objects of the conspiracy. See United States
v. Snyder, 930 F.2d 1090, 1095 (5th cir. 1991). “Mere idle
chatter”, even if prejudicial and made among co-conspirators, is
not admissible under Rule 801(d)(2)(e). See Means, 695 F.2d at
818. Thus, while the in furtherance requirement is not a strict
one, it is a necessary one, and the proponent of admissibility must
satisfy it by a preponderance of the evidence. See Broussard, 80
F.3d at 1038; see also United States v. Doerr, 886 F.2d 944, 951
(7th Cir. 1989).
Exhibit 1.165 involves a discussion between Boutte and a
confidential informant that took place at the bowling alley pro
shop. The tape is over 50 minutes long and the conversation
recorded covers many topics. A significant portion of the tape
11
involves discussions between the two co-conspirators on such
diverse issues as the bowling prowess of certain friends and
relatives, the appearance of some of the patrons at the bowling
alley, the merits of certain designer outfits and the respective
talents of certain exotic dancers. Amid these conversations,
however, occurred the following dialogue which, although mostly
unintelligible, was offered to connect Galloway to the conspiracy:
Boutte: Somebody taking me away from him.
Informant: Thought you was supposed to be his ace.
* * *
Boutte: ya’ll can’t be mad cause what’s her name never
stole for me . . .
Informant: If you going to bring . . . half a million
dollars. Right ain’t going to steal from you
and he done counted it . . .
Boutte: Now she . . . because she take x amount of
dollars with her . . . always comparing me to
her likeness . . . he thought she was an
angel.
* * *
Informant: She don’t know what she’s buying into . . .
when I called up there yesterday I thought
that was you.
Boutte: He told me he feel like I was just, he feels
like I’m using him. What the hell am I using
him . . .
Informant: It ain’t all peach and cream . . .
Boutte: That’s what I told him . . . me and Kevin
ain’t got no business sitting around talking
about his business . . .
* * *
12
Boutte: [apparently quoting Cornett] - I don’t trust
nobody but my wife . . . well I mean there is
other ladies I trust but I ain’t got to tell
you that cause we gonna get into it . . . Mary
Informant: Mary.
The government contends that this interchange was intended to
further the conspiracy in that it was meant to convey to a
purchaser of the drugs that he should contact a new person
(Galloway) for future drug deals because Boutte had lost favor with
Cornett and Galloway had taken her place. The prosecution argued
that this message is evidenced by the references to Galloway in
connection with the drug money. In finding that the tape was
admissible under Rule 801(d)(2)(e) the district court stated:
The tape says that, essentially, Boutte feels like she’s
being compared to the woman who Cornett bought a Mercedes
for. I hear the word “Mercedes” in there and then they
say “who” and they say “Mary.” And this was all in
connection with the half-million dollars.
It is well-settled that a statement made among conspirators
for the purpose of describing proper sources, avenues or conduits
to promote the conspiracy is “in furtherance” for purposes of Rule
801(d)(2)(e). See United States v. Lechuga, 888 F.2d at 1480
(holding that during a conversation arranging a drug transaction,
a reference to a “Wisconsin Source” as the source of the drugs in
question was in furtherance of the conspiracy). However, in the
cases in which a statement was found to be “in furtherance”, either
the statement itself or the conversation as a whole was intended to
advance, facilitate or promote the ultimate conspiratorial
13
objective. By way of contrast, conversations that represent “mere
idle chatter” or which are mere narratives of past conduct are not
in furtherance of the conspiracy because the statement and the
conversation were not intended to further the conspiracy,
regardless of whether an individual co-conspirator was implicated
in the conversation. See Means, 695 F.2d at 818; see also United
States v. Phillips, 664 F.2d 971, 1027 (5th Cir. 1980) (abrogation
on other grounds recognized by United States v. Huntress, 956 F.2d
1309 (5th Cir. 1992)). The distinction between conversations in
furtherance of the conspiracy and prejudicial statements made in
conversations not in furtherance of the conspiracy has been
recognized in other circuits as well. See, e.g., United States v.
Lieberman, 637 F.2d 95, 102 (2nd Cir. 1980) (“The conversation . .
. smacks of nothing more than casual conversation about past
events. It is difficult to envision how it would have furthered
the conspiracy”); United States v. Santos, 20 F.3d 280, 286 (7th
Cir. 1994) (“These statements are best described as narrative
discussions of past events, which do not satisfy the ‘in
furtherance’ requirement of Rule 801(d)(2)(E)”); United States v.
Roberts, 14 F.3d 502, 514-515 (10th cir. 1993) (“mere narratives
between co-conspirators or narrative declarations of past events
are not in furtherance”); United States v. Urbanik, 801 F.2d 692,
698 (4th Cir. 1986) (“We think that this statement can fairly be
treated only as the sort of idle conversation which though it
14
touches upon, does not ‘further’ a conspiracy”).
In this respect, the present case is factually similar to the
one addressed by the Fourth Circuit in Urbanik. In Urbanik, two
co-conspirators conducted a conversation in furtherance of the
conspiracy. Once they finished the business of the conspiracy, the
two co-conspirators moved to a different part of the house and
began lifting weights. During this weight lifting session one of
the co-conspirators implicated a third co-conspirator. The Fourth
Circuit held that this statement was inadmissible hearsay in that
the statement was not in furtherance of the conspiracy. It was
evident that the conversation was between two co-conspirators and
that it was made during the course of the conspiracy in that they
had just finished conducting the business of the conspiracy.
However, it was also clear that the co-conspirators had ceased the
operations of the conspiracy and had begun engaging in “mere idle
chatter” as they pursued an unrelated activity. In the words of
the Fourth Circuit:
The statement identifying Urbanik as Pelino's
"connection" for marijuana was merely a casual aside to
the discussion of Urbanik the weight-lifter. In no sense
but a most speculative one could it be thought to have
been made to further the purposes of the conspiracy.
Haselhuhn himself testified that this identification of
Pelino's marijuana supplier could have had no effect on
the conspiratorial relationship between him and Pelino.
We think that this statement can fairly be treated only
as the sort of idle conversation which though it touches
upon, does not "further," a conspiracy, and which
accordingly should not be admitted under Rule
801(d)(2)(E). See United States v. Means, 695 F.2d 811,
818 (5th Cir.1983); United States v. Lieberman, 637 F.2d
95, 102 (2nd Cir.1980); United States v. Eubanks, 591
15
F.2d 513, 520 (9th Cir.1979). The requirement that the
statements have been in furtherance of the conspiracy is
designed both to assure their reliability and to be
consistent with the presumption that the coconspirator
would have authorized them.... The requirement is not
satisfied by a conversation ... which amounted to no more
than idle chatter.
Urbanik, 801 F.2d at 698 (citations in original).
In the present case, the context of the admitted statements is
that Boutte and the Informant were discussing a variety of
subjects, which did not concern the conspiracy. The subject of
whether Galloway enjoyed the confidence of Cornett arose out of a
conversation about relationships and trust in relationships -- the
conversation turning to the specific trouble in Boutte’s
relationship with Cornett. The reference to the half-million
dollars and then to Mary cannot reasonably be construed to convey
to the Informant the message that future business in the conspiracy
was to be conducted through Galloway instead of Boutte. Rather,
the reference to Galloway and $500,000 was “a mere casual aside” in
the conversation about Boutte the spurned lover and Galloway the
other woman. That an allusion to the half-million dollars and
Galloway was made in the statement is irrelevant for purposes of
Rule 801(d)(2)(e) because the possible connection was not made in
furtherance of the conspiracy and the statement was not part of a
conversation that itself was in furtherance of the conspiracy.
While this may be the kind of conversation that touches upon the
conspiracy, it cannot fairly be said that it furthered the
conspiracy and thus its admissibility was not authorized by Rule
16
801(d)(2)(e).
This, however, is not the end of the analysis -- for errors in
evidentiary rulings are subject to the doctrine of harmless error.
See Fed.R.Crim.P. 52(a); Phillips, 664 F.2d at 1027. Under a
harmless error analysis, the issue is “whether the guilty verdict
actually rendered in this trial was surely unattributable to the
error.” See Walker, 148 F.3d at 526 (citing Sullivan v. Louisiana,
508 U.S. 275, 279 (1993)). The focus, therefore, is on the effect
that an error may have had upon the verdict actually rendered. Id.
Thus, the error will not require reversal if “beyond a reasonable
doubt the error complained of did not contribute to the verdict
obtained.” Sullivan, 508 U.S. at 279.
Under this standard it cannot be said that the error in
admitting Exhibit 1.165 was harmless. The evidence tending to show
Galloway’s guilt was not unequivocal. One witness testified that
during a drug purchase he made on the street from Cornett, he might
have seen Galloway standing in the doorway of the house from which
Cornett had come. However, his testimony was impeached due to his
long-term drug use and the fact the event occurred late at night
and far from his view, and that he could not be certain whether the
woman in the doorway was Galloway or Boutte. Another witness
testified that, while chastising him for miscounting $21,000 as
$18,000, Cornett told him that Galloway had counted more money than
that accurately. However, the witness admitted that this testimony
was a vague recollection about a statement Cornett made in passing.
17
A third witness testified that Galloway escorted him to the door of
a room at her place of employment in which Cornett was counting
over $400,000. However, there was no direct evidence that Galloway
had seen the money or had knowledge of its source. The government
also introduced evidence of Galloway receiving expensive gifts from
Cornett and writing checks on her account, covered by Cornett’s
cash, to pay his creditors. Galloway, testifying on her own
behalf, disputed all of this evidence -- contending that she had
never counted money except on her previous jobs at a beauty salon
and a bank, had never witnessed a drug purchase, and had not been
present at the house in front of which the drug transaction
described by the drug buyer witness had occurred. Other than
Exhibit 1.165 and the government’s representations of its contents,
no additional evidence or information was presented by the
government with respect to Galloway’s participation in the
conspiracy.
Upon motion for acquittal, the district court noted that the
government had not developed a compelling case with respect to
Galloway’s participation in the conspiracy. Specifically, the
district court stated:
I have to tell you, I think it’s a very, very thin case,
but I don’t think the arguments that you’re making,
though, to the judgment of acquittal, I think they go to
the weight to which the evidence is entitled . . . but I
will tell the Government how thin I think this case is as
against Ms. Galloway. I’m not going to grant [the]
motion at this time . . . but I will tell you, you all
need to make a major argument at the end of the case.
18
The government heavily relied on the statements in Exhibit 1.165
and its representations of them to oppose Galloway’s motions for
acquittal and new trial before the district court. After the
district court’s admonishment, the parties proceeded to closing
arguments. During closing, the government made the following
statement, further representing the contents of Exhibit 1.165 to
the jury and stressing the importance of this particular tape to
the government’s case against Galloway:
For those of you who question, those of you who question,
the involvement of Mary Galloway in this case, there are
more than 100 tapes. There is no way, in reasonable
fashion, you can play all those tapes for a jury. You
have to be selective. If you have some doubt as to Mary
Galloway’s involvement in this criminal conspiracy, you
play -- its almost 50 minutes long, but you have to
listen to it from beginning to the end to get it in full
context. But if you listen to Government 1.165, 165 like
365 days in the year, 165 days in a year, 1.165, you will
hear Kim Boutte and Reginald Sanders discussing her role.
Over nearly -- well over $450,000 in cash had to be
counted and they used her name in discussing the role.
(emphasis added). Also, the government introduced a written
summary description of Exhibit 1.165, which was presented to the
jury, containing the following representation of the substance of
the tape -- “Boutte advised that Mary stored ½ million dollars for
Wendell Cornett and that Cornett purchased a Mercedes.”
The government’s evidence against Galloway was “thin” as the
trial judge observed, because no item of evidence directly linked
Galloway to the conspiracy. Further, the government relied heavily
on the ambiguous audiotape Exhibit 1.165 to give meaning to all of
its evidence concerning Galloway. But the tape is almost
19
unintelligible and the government’s interpretation of the recorded
conversation (both in its written summary of Exhibit 1.165 and in
jury arguments) as containing a statement “in furtherance” of the
conspiracy is not supported by our hearing of the tape or our
reading of its written transcription. Consequently, it cannot
fairly be said that the guilty verdict actually rendered against
Galloway was surely unattributable to the erroneous admission of
Exhibit 1.165 and the government’s highly subjective interpretation
of its contents. Accordingly, the error can not be characterized
as harmless, and the admission of Exhibit 1.165 was reversible
error.
IV. CONCLUSION
For the reasons assigned, the convictions and sentences of
Appellant Cornett are AFFIRMED, and the conviction and sentence of
Appellant Galloway is REVERSED. Galloway’s case is REMANDED to the
district court for further proceedings consistent with this
opinion.
20