United States Court of Appeals,
Eleventh Circuit.
No. 93-8773.
UNITED STATES of America, Plaintiff-Appellee,
v.
Mitchell LAMPLEY, Defendant-Appellant.
Nov. 15, 1995.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:91-CR-08-01-RLV), Robert L. Vining,
Jr., Chief Judge.
Before HATCHETT and CARNES, Circuit Judges, and OWENS*, Senior
District Judge.
HATCHETT, Circuit Judge:
Appellant, Mitchell Lampley, challenges his convictions and
sentence for drug trafficking. Although Lampley raises several
contentions on appeal, only two evidentiary issues require
discussion. We find no error with respect to the district court's
rulings and affirm Lampley's convictions and sentence.
FACTS
Lampley sold marijuana to an individual named Nathaniel Tarver
from the mid-1970s to the early 1980s. Lampley then began to sell
cocaine to Tarver, and continued to do so until the mid-1980s. At
that point, Tarver began to buy his narcotics from other sources.
The two continued to stay in contact, however, and Tarver made a
couple of cocaine purchases from Lampley in the late 1980s.
In the summer of 1990, Tarver contacted Lampley and informed
him of a source that had a large quantity of cocaine. Lampley
*
Honorable Wilbur D. Owens, Jr., Senior U.S. District Judge
for the Middle District of Georgia, sitting by designation.
initially told Tarver that he was not interested in dealing with
the source. Later in the summer, however, Lampley contacted Tarver
and asked him if the source was still available. Tarver then
arranged a meeting in August 1990, in which he and his source met
with Lampley and Lampley's partner, Jesse Hart. The parties were
unable to make a deal.
Approximately three months later, on November 24, 1990, Tarver
began negotiating a cocaine transaction with Revere Christophe, an
undercover agent of the Drug Enforcement Administration (DEA).
Christophe and Tarver met the next day, November 25, 1990; Tarver
told Christophe that he had several sources that could supply large
amounts of cocaine. On November 29, 1990, Tarver informed
Christophe that he had already contacted two of his sources and
that he needed to know how much cocaine Christophe wanted and what
price he was willing to pay. On December 7, 1990, Tarver and
Christophe engaged in another conversation in which they continued
to discuss cocaine quantities and price. At some point thereafter,
Tarver contacted Lampley and arranged for him to be Christophe's
source.
On December 31, 1990, Tarver and Christophe finally agreed on
a ten-kilogram transaction to take place on January 4, 1991.
Tarver and Christophe discussed the details of the exchange on
January 2, 3, and 4, 1991. On January 4, 1991, Tarver met with
Christophe and gave him a sample of cocaine that Lampley had
provided. Later that day, Tarver, Lampley, and Hart met. While
Lampley and Tarver discussed how to complete the deal with
Christophe, Hart secured the ten kilograms of cocaine. The three
ultimately planned to give Christophe one kilogram initially, and
the remaining nine kilograms at a second delivery. DEA agents
eventually arrested the three coconspirators. Agents found a
kilogram of cocaine in Lampley's car and nine kilograms of cocaine
in Hart's car.
PROCEDURAL HISTORY
On January 8, 1991, a grand jury in the Northern District of
Georgia returned a two-count indictment against Lampley, Tarver,
and Hart. Count I charged them, "and others known and unknown to
the Grand Jury," with conspiring to distribute cocaine in violation
of 21 U.S.C. § 846. Count II charged them with the substantive
offense of possessing cocaine with the intent to distribute in
violation of 21 U.S.C. § 841(a)(1). Tarver subsequently agreed to
cooperate with the government and entered a plea of guilty to Count
I of the indictment on September 20, 1991.
On September 24, 1991, the government informed Lampley of its
intention to introduce extrinsic act evidence pursuant to rule
404(b) of the Federal Rules of Evidence. The notice listed five
instances of prior misconduct: (1) the marijuana transactions
between Lampley and Tarver from the late 1970s to the mid-1980s;
(2) the cocaine transactions between Lampley and Tarver from the
late 1970s to the mid-1980s; (3) a one kilogram cocaine
transaction between Lampley and Tarver in 1989; (4) the
conversations between Lampley and Tarver in 1990 concerning
Tarver's cocaine source; and (5) the meeting between Lampley and
Tarver's cocaine source in 1990.1
Because the government intended to introduce these numerous
prior dealings between Lampley and Tarver, Hart moved to sever
their trials. The district court granted his motion. Hart
proceeded to trial first. On October 4, 1991, a jury convicted him
on both counts of the indictment.
Lampley's trial commenced on February 4, 1992. At trial,
despite defense counsel's objection, the district court allowed the
government to introduce tape recordings of conversations between
Tarver and Christophe occurring on November 29, 1990, December 7
and 31, 1990, and January 2, 3, and 4, 1991. Also over defense
counsel's objection, the district court allowed Tarver to testify
about his past dealings with Lampley. After the government
presented its case, Lampley took the stand and presented a "mere
presence" defense; he also denied having any past drug dealings
with Tarver. At the conclusion of the trial, the district court
instructed the jury that it could not consider the evidence of
Lampley's past conduct "to prove that the defendant did the acts
charged in this case, but only to prove the defendant's state of
mind." The jury convicted Lampley on both counts.
CONTENTIONS
Lampley contends that the district court abused its discretion
in allowing Tarver to testify about his past dealings with Lampley.
Lampley also contends that the tape-recorded conversations between
1
The government subsequently amended its notice. The
amendment essentially changed the details related to the fifth
act of misconduct. In particular, the amended notice changed the
date of the meeting from September 1990 to August 1990.
Tarver and Christophe constitute inadmissible hearsay and therefore
should not have been admitted into evidence.2
The government responds that Lampley's past dealings with
Tarver were admissible to show Lampley's knowledge and intent. The
government also argues that the tape-recorded conversations are
admissible as statements made in furtherance of a conspiracy.
ISSUES
We discuss the following issues: (1) whether Lampley's prior
dealings with Tarver were admissible under rule 404(b) of the
Federal Rules of Evidence; and (2) whether the tape-recorded
conversations between Tarver and Christophe were admissible under
rule 801(d)(2)(E) of the Federal Rules of Evidence.
DISCUSSION
A. Rule 404(b)
We review the district court's decision, under rule 404(b),
to admit the evidence concerning Lampley's past dealings with
Tarver for abuse of discretion. United States v. Delgado, 56 F.3d
1357, 1363 (11th Cir.1995).
Rule 404(b) provides that "[e]vidence of other crimes,
wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or
2
Lampley raises three other contentions on appeal: (1) the
government engaged in misconduct that violated his Sixth
Amendment rights; (2) the evidence against him was insufficient;
and (3) he was entitled to a sentence reduction pursuant to
U.S.S.G. § 3B1.2. We find that these claims lack merit and do
not warrant discussion.
absence of mistake or accident...." Fed.R.Evid. 404(b). A
three-part test governs the admissibility of rule 404(b) evidence:
First, the evidence must be relevant to an issue other than
the defendant's character; Second, the act must be
established by sufficient proof to permit a jury finding that
the defendant committed the extrinsic act; Third, the
probative value of the evidence must not be substantially
outweighed by its undue prejudice, and the evidence must meet
the other requirements of Rule 403.
Delgado, 56 F.3d at 1365 (citing United States v. Miller, 959 F.2d
1535 (11th Cir.) (en banc ), cert. denied, --- U.S. ----, 113 S.Ct.
382, 121 L.Ed.2d 292 (1992) and United States v. Beechum, 582 F.2d
898 (5th Cir.1978) (en banc ), cert. denied, 440 U.S. 920, 99 S.Ct.
1244, 59 L.Ed.2d 472 (1979)).3 Lampley contends that none of the
three prongs have been satisfied.
With respect to the first prong, Lampley contends that the
government never articulated how his prior drug dealings with
Tarver were relevant to an issue other than his character;
furthermore, Lampley argues that the district court never made a
specific finding as to the relevance of this evidence. The record,
however, does not support Lampley's contentions. After defense
counsel stated an objection to the rule 404(b) evidence, the
government specifically responded that defense counsel had argued
that "Mr. Tarver tricked Mr. Lampley. And the evidence is coming
in to show motive and intent." Likewise, the district court made
findings as to relevance. The district court, recognizing that
Lampley was presenting a "mere presence" defense, stated that the
3
In Bonner v. City of Prichard, 661 F.2d 1206 (11th
Cir.1981) (en banc ), this court adopted as binding precedent all
decisions of the Fifth Circuit rendered prior to October 1, 1981.
evidence "shows dealings between these parties and it probably
shows the motive that this was not an accidental or unknowing or
unwilling transaction that Mr. Lampley entered into; it shows
intent.... This goes to show motive and intent and it goes to show
knowledge and willfulness." The district court was clearly correct
in determining that Lampley's prior dealings with Tarver were
relevant to the issue of his intent. See Delgado, 56 F.3d at 1365.
With respect to the second prong, Lampley asserts that
Tarver's trial testimony concerning their prior dealings was
significantly different from the government's account of their
prior dealings as put forth in the rule 404(b) notice. For
example, Lampley points out that: (1) the notice described a
single kilogram cocaine transaction in 1989, but Tarver testified
that he had a couple of half-kilogram cocaine transactions with
Lampley, and he was not certain of their date; and (2) Tarver's
testimony as to what was said at the meeting between Lampley and
Tarver's cocaine source, and his testimony as to when the meeting
occurred, differed from the description of the meeting in the
original notice. Lampley contends that these discrepancies
demonstrated that Tarver was not a credible witness, and therefore,
his unsubstantiated testimony did not sufficiently show that their
prior dealings did in fact occur. We must, however, defer to the
district court's determination that the testimony was credible
enough to allow a jury to find that the prior dealings between
Lampley and Tarver occurred. See United States v. Holland, 874
F.2d 1470, 1473 (11th Cir.1989) ("Credibility determinations made
by the district court are entitled to deference by a reviewing
court.").4
Finally, with respect to the third prong, Lampley contends
that the district court never engaged in a rule 403 balancing
inquiry, and, if it had, it would have recognized that the
prejudicial nature of some of the extrinsic act evidence
substantially outweighed its probative value.5 Specifically,
Lampley focuses on his marijuana dealings with Tarver in the mid-
1970s. He contends that these dealings had no probative value
because they were too remote in time (approximately fifteen years
old) and involved different circumstances (they were small
marijuana deals, unlike the instant large cocaine deal). As a
result, he asserts that this evidence could only prejudice him in
the eyes of the jurors. The record, however, does not support
Lampley's contention that the district court did not conduct a rule
403 balancing test. In response to this specific argument
concerning the remoteness and prejudicial nature of the mid-1970s
marijuana transactions, the district court stated:
4
In a related argument, Lampley contends that the
differences between Tarver's testimony and the rule 404(b) notice
were so great that the notice was essentially ineffective. We
disagree. The government must only provide notice of the
"general nature" of the extrinsic act evidence. Fed.R.Evid.
404(b); see also United States v. Barnes, 49 F.3d 1144, 1148-49
(6th Cir.1995) ("[T]he government's notice must characterize the
prior conduct to a degree that fairly apprises the defendant of
its general nature."). In some instances, Tarver's testimony may
have added or changed certain details, but, in general, his
testimony adhered to the descriptions of the prior bad acts
listed in the notice.
5
Rule 403 provides: "Although relevant, evidence may be
excluded if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by consideration of undue delay, waste of
time, or needless presentation of cumulative evidence."
The ten-year rule only applies to convictions. This is under
404 and I assume Beechum, similar acts which has no bounds by
time. I guess what I will have to do is weigh it as the case
goes on.... You know, on the surface it appears it's probably
going to be admissible, but that doesn't mean it is. But the
ten-year rule does not apply and I will just have to balance
it according to Beechum and 404 and 403.
Thus, the district court was fully cognizant of the appropriate
standard, and we assume that the district court carried out its
intention to conduct the balancing test when it ultimately admitted
the evidence. Furthermore, we cannot say that the district court
abused its discretion in determining that the mid-1970s marijuana
dealings were admissible under rule 403 despite their differing
nature and remoteness in time. See Delgado, 56 F.3d at 1366
(rejecting argument that prior drug dealings were different in
nature); United States v. Pollock, 926 F.2d 1044, 1048 (11th Cir.)
(noting that courts have upheld the admission of rule 404(b)
evidence that "occurred ten and thirteen years earlier than the
charged offense"), cert. denied, 502 U.S. 985, 112 S.Ct. 593, 116
L.Ed.2d 617 (1991).
In sum, the district court did not abuse its discretion in
admitting the evidence of Lampley's past drug dealings.
B. Rule 801(d)(2)(E)
The district court allowed into evidence tape recordings of
conversations that occurred between Tarver and Christopher on
November 29, 1990, December 7 and 31, 1990, and January 2, 3, and
4, 1991. Lampley contends that the statements in these
conversations were hearsay and should not have been admitted.
Out-of-court statements are not considered hearsay, however,
if they were made "by a coconspirator of a party during the course
and in furtherance of the conspiracy." Fed.R.Evid. 801(d)(2)(E).
The determination of whether a statement was made during the course
and in furtherance of a conspiracy "is a determination of fact that
will be disturbed only if clearly erroneous." United States v.
Bazemore, 41 F.3d 1431, 1434 (11th Cir.1994).
Lampley contends that rule 801(d)(2)(E) does not apply
because a conspiracy did not exist as of the time of the
tape-recorded conversations; in other words, he argues that the
statements were not made "during the course" of the conspiracy.
Lampley, however, ignores the fact that as of November 29, 1990,
the date of the first tape-recorded conversation, Tarver had
already contacted two of his cocaine sources, and therefore, a
conspiracy existed. Although Lampley did not join the conspiracy
until Tarver contacted him, which was sometime after December 7,
1990, all of the tapes were admissible because a "declaration of
one co-conspirator is admissible against members of the conspiracy
who joined after the statement was made." United States v.
Tombrello, 666 F.2d 485, 491 (11th Cir.) (quoting United States v.
Holder, 652 F.2d 449, 451 (5th Cir.1981)), cert. denied, 456 U.S.
994, 102 S.Ct. 2279, 73 L.Ed.2d 1291 (1982); see also United
States v. Brown, 943 F.2d 1246, 1255 (10th Cir.1991) (citing cases
from the First, Second, Third, Fourth, Fifth, Seventh, and Ninth
Circuits in concluding that the "prevailing view among the circuits
is that previous statements made by co-conspirators are admissible
against a defendant who subsequently joins the conspiracy"). Thus,
the statements on all of the tapes were properly admitted because
a conspiracy existed when the statements were made and Lampley
subsequently joined that conspiracy.
CONCLUSION
Finding no evidentiary errors under rules 404(b) and
801(d)(2)(E), we affirm Lampley's convictions and sentence.
AFFIRMED.
United States v. Lampley
Court: Court of Appeals for the Eleventh Circuit
Date filed: 1995-11-15
Citations: 68 F.3d 1296
Copy CitationsCombined Opinion