IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
F I L E D
No. 06-10174 September 17, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff – Appellee
v.
AARON HALL also known as Pops also known as Cat
Defendant – Appellant
Appeal from the United States District Court
for the Northern District of Texas
Before KING, DeMOSS, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
Aaron Hall was convicted of conspiracy to possess and distribute
marijuana and cocaine and sentenced to twelve years in prison. Hall challenges
admission of a co-conspirator statement as hearsay and the sufficiency of the
evidence. We affirm Hall’s conviction because the evidence is factually sufficient
and admission of the co-conspirator statement was harmless error.
I
Hall was a member of a marijuana- and cocaine-trafficking conspiracy in
which various trucking companies would transport marijuana from Mexico to
Laredo and then to the Dallas area. The drugs were subsequently transported
to a house in Grand Prarie, Texas for distribution to purchasers. Cocaine
No. 06-10174
shipments would arrive from a separate source and then be distributed as well.
Hall was one of the last persons in the trafficking chain, taking delivery of
cocaine and marijuana for sale once it reached the Dallas area.
Oscar Daniel Gutierrez, Terry McCallom, and Hall were direct, linear
conspirators: Gutierrez would deliver the drugs to McCallom, who would then
deliver the drugs to Hall. Gutierrez had been a part of the conspiracy since
1994, and McCallom and Hall joined the conspiracy between 2000 and 2001.
Gutierrez and McCallom would contact each other directly, but Gutierrez had
limited contact with Hall.
McCallom also participated in a separate conspiracy in which he grew and
sold hydroponic marijuana. McCallom was arrested in July 2002 in relation to
the hydroponic marijuana conspiracy while he was on probation for a previous
theft conviction. Because he feared he would be imprisoned for this offense,
McCallom arranged a meeting between Gutierrez and Hall so they could
continue the trafficking conspiracy in which the three had joined in McCallom’s
absence. Gutierrez expected a three-hundred-pound shipment of marijuana and
approached Hall about distributing it. Hall stated that he could only sell about
eighty-five pounds and subsequently took delivery of approximately this amount.
The DEA had been monitoring wiretaps on Gutierrez’s phones as part of
an investigation and identified McCallom as a co-conspirator. Using the
hydroponic marijuana arrest as leverage, the DEA convinced McCallom to
cooperate as a witness against other conspiracy members in November 2002. As
part of his cooperation, McCallom allowed the DEA to record a number of phone
conversations, including some between himself and Hall discussing the sale and
distribution of marijuana. McCallom also provided the DEA with a notebook in
which he recorded various drug transactions, including a delivery to
“Pops”—allegedly an alias for Hall.
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McCallom’s cooperation led to the arrests of Gutierrez and Hall. Gutierrez
pleaded guilty. Hall was charged with conspiracy to distribute and possess with
intent to distribute five or more kilograms of cocaine and one hundred or more
kilograms of marijuana.1
At trial, Gutierrez and McCallom testified against Hall, discussing in
detail the operation of the conspiracy. The government sought to introduce
testimony from Gutierrez recounting statements that McCallom had made to
him about Hall prior to a meeting among all three conspirators, and the district
court admitted the evidence over Hall’s objections. The jury convicted Hall of
conspiracy to possess and distribute marijuana and cocaine, and he was
sentenced to twelve years in prison. Hall now appeals.
II
Hall challenges the sufficiency of the evidence, claiming it supports his
defense theory of innocence as much as it supports the prosecution’s theory of
guilt. Conspiracy to distribute or to possess with intent to distribute controlled
substances requires that the government establish “(1) the existence of an
agreement between two or more persons to violate narcotics laws, (2) the
defendant’s knowledge of the conspiracy, and (3) the defendant’s voluntary
participation in the conspiracy.”2
In determining the sufficiency of the evidence, we determine whether,
considering all the evidence in the light most favorable to the guilty verdict, a
rational trier of fact could have found that the evidence established the elements
of the offense beyond a reasonable doubt.3 All reasonable inferences and
1
See 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(ii)(II), (b)(1)(B)(vii).
2
United States v. Fuchs, 467 F.3d 889, 908 (5th Cir. 2006).
3
United States v. Villareal, 324 F.3d 319, 322 (5th Cir. 2003).
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credibility determinations should also be made in the light most favorable to the
verdict.4
At trial, Hall’s counsel argued that McCallom enlisted Hall to assist him
in cooperating with the government. According to this theory, Hall took delivery
of the marijuana at McCallom’s request and did not participate further in the
conspiracy either before or after.
Substantial testimony and evidence demonstrated Hall’s willing
participation in the conspiracy: McCallom testified that Hall distributed
marijuana and cocaine obtained from Gutierrez. McCallom’s drug ledger
chronicled numerous transactions listing drugs and money for “Pops,” an alias
McCallom used for Hall. Gutierrez testified that Hall agreed to take possession
of and distribute a shipment of marijuana at a face-to-face meeting and that
McCallom had previously identified Hall as a marijuana and cocaine customer
who would pay with uniquely bundled cash. Javier Huerta testified that he
delivered marijuana to Hall and later received money and unsold marijuana
from Hall. Huerta also noted that Hall called him to complain that the
marijuana Huerta delivered was a pound less than Hall was supposed to receive.
Michael Gensler, an employee of McCallom, testified that he used a truck rented
by Hall to pick up a shipment of marijuana and that he observed Hall receive a
bag of cocaine from McCallom. Shawn Foster, another of McCallom’s employees,
testified that on multiple occasions he saw bundled cash appear in McCallom’s
office after Hall left, that he delivered marijuana to Hall by leaving it in a van
parked in Hall’s driveway, and that he once saw what he believed to be bags
containing crack cocaine inside Hall’s house. Numerous phone conversations
played before the jury featured Hall discussing the possession and sale of the
eighty-four pounds of marijuana and planning to store a shipment of marijuana
4
Id.
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in his business warehouse. Finally, Hall was arrested in Louisiana after being
stopped for speeding and found in possession of eight ounces of cocaine and four
ounces of marijuana.
Viewing the evidence in the light most favorable to the guilty verdict, a
rational trier of fact could have found that the government proved all elements
beyond a reasonable doubt, and the evidence is therefore sufficient to support
Hall’s conviction.
III
Hall also argues that the district court erred in allowing Gutierrez to
testify regarding Hall’s drug purchasing habits because the statements were
hearsay from McCallom to Gutierrez. The district court held that the
statements were admissible as co-conspirator statements under FED. R. EVID.
801(d)(2)(E).
We review the district court’s evidentiary rulings for abuse of discretion.5
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.”6 But a statement is not hearsay if is it is made “by a co-conspirator
during the course and in furtherance of the conspiracy.”7 To introduce a co-
conspirator statement, the government had to 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.8
The court may consider the content of the statement at issue as a factual basis
5
United States v. Moody, 903 F.2d 321, 326 (5th Cir. 1990).
6
FED. R. EVID. 801(c).
7
FED. R. EVID. 801(d)(2)(E).
8
United States v. Cornett, 195 F.3d 776, 782 (5th Cir. 1999).
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for these elements.9 Hall claims that Gutierrez’s statements were not made
during the course of the conspiracy or in furtherance of the conspiracy.
Assuming arguendo that the district court abused its discretion by
allowing the statements into evidence, the error is still subject to the doctrine of
harmless error.10 The error will not require reversal if “beyond a reasonable
doubt the error complained of did not contribute to the verdict obtained.”11
The disputed testimony recounted limited details about Hall’s drug
purchasing habits: Gutierrez testified that McCallom identified Hall as a
customer who would purchase marijuana and cocaine that Gutierrez had
provided to McCallom. Gutierrez also testified that McCallom told Gutierrez
that Hall was the customer who used a unique form of payment—he would
secure $100 bills in $1,000 stacks with rubber bands and then alternate the
direction that each stack faced as he created a single, larger stack. Gutierrez
testified that he received payment in this manner on at least five occasions.
The challenged portion of Gutierrez’s testimony was merely cumulative of
other evidence introduced without objection. A number of other witnesses
testified—in much greater detail—that Hall purchased illegal drugs from
McCallom. Shawn Foster also testified that Hall would pay with the uniquely
stacked $100 bills. “Error may not be predicated upon a ruling which admits or
excludes evidence unless a substantial right of the party is affected . . . .”12 The
erroneous introduction of cumulative evidence was harmless error.13
9
United States v. Bourjaily, 483 U.S. 171, 181 (1987).
10
Cornett, 195 F.3d at 785.
11
Id.
12
FED. R. EVID. 103(a).
13
See United States v. Allie, 978 F.2d 1401, 1409 (5th Cir. 1992) (“[T]he
videotape was merely cumulative evidence and its introduction constitutes harmless
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For these reasons, Hall’s conviction is AFFIRMED.
error.”).
7