United States v. Wilson
United States v. Wilson
Opinion of the Court
MEMORANDUM
Mary Wilson (“Wilson”) was convicted of one count of conspiracy to distribute pseudoephedrine and two counts of distribution of pseudoephedrine. She was sentenced to 63 months imprisonment and two years of supervised release. Wilson appeals the district court’s admission of alleged hearsay testimony on the grounds that it did not meet the requirements of the co-conspirator exception and that it violated her rights under the Confrontation Clause. Wilson also challenges the district court’s refusal to admit hearsay evidence under the doctrine of “curative admissibility,” and to offer a proposed jury instruction.
I.
Wilson challenges the district court’s decision to admit testimony given by Brent La Mott regarding statements made by Donald Ware to Shane Meier as a nonhearsay coconspirator statement. We review the district court’s decision to admit coconspirator statements for abuse of discretion and the underlying factual determination that a conspiracy existed and the statements were made in furtherance thereof for clear error. United States v. Shryock, 342 F.3d 948, 981 (9th Cir. 2003), cert. denied, 541 U.S. 965, 124 S.Ct. 1729, 158 L.Ed.2d 411 (2004).
Wilson next argues that the statement was not made “in furtherance of’ the conspiracy. To be “in furtherance of’ a conspiracy, “the statements must further the common objectives of the conspiracy or set in motion transactions that are an integral part of the conspiracy.” Kearns, 61 F.3d at 1426 (quotations omitted), “mere conversation between coconspirators” does not qualify as nonhearsay. United States v. Bibbero, 749 F.2d 581, 583-84 (9th Cir. 1984) (quotations omitted).
Here, Ware’s statement concerned the source of the pseudophendrine pills and it is plausible that the statement was made to convince Meier, a member of the conspiracy, that the source was loyal, consistent and reliable. See Williams, 989 F.2d at 1069 (holding that statements made to keep a coconspirator “informed as to the group’s drug supply” were made in furtherance of the conspiracy); Kearns, 61 F.3d at 1425-26 (holding that statements made to convince a potential co-conspirator of the economic foundation of the conspiracy were made in furtherance thereof). Meier received methamphetamine from Ware, manufactured methamphetamine, and acted as an intermediary, introducing members of the conspiracy. Ware’s statement to Meier about the source of the pills could have been made to “induce enlistment” and/or to “reassure” Meier about the continued existence of the methamphetamine production scheme. See United States v. Yarbrough, 852 F.2d 1522, 1535 (9th Cir.), cert. denied, 488 U.S. 866, 109 S.Ct. 171, 102 L.Ed.2d 140 (1988). On these facts, the district court did not clearly err in finding that the statement was made in furtherance of the conspiracy. We therefore conclude that the district court did not abuse its discretion in admitting La Mott’s testimony as to Ware’s statement to Meier as a coconspirator statement.
II.
Wilson argues that the admission of the hearsay statement provided by La Mott violated her Confrontation Clause rights as articulated in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We review alleged violations of the Confrontation Clause de novo. See Lilly v. Virginia, 527 U.S. 116, 137, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999); United States v. Nielsen, 371 F.3d 574, 581 (9th Cir. 2004).
Although Crawford did not define “testimonial,” id. at 68, 124 S.Ct. 1354, the Court explicitly noted “statements in fur
We conclude that because the district court did not abuse its discretion in admitting Ware’s statement to Meier as a non-hearsay co-conspirator statement, it is not testimonial in nature. See Crawford, 541 U.S. at 56, 124 S.Ct. 1354. The statement was more like a “casual remark to an acquaintance” than the type of “formal statement to government officers” to which the Confrontation Clause applies. Id. at 51, 124 S.Ct. 1354. Wade’s statement was not made “under circumstances which would lead an objective witness reasonably to believe that [it] would be available for use at a later trial” see Parle, 387 F.3d at 1037, because it was made off-hand between coconspirators, in a noncustodial situation, and was overheard by La Mott. In sum, we therefore conclude that the admission of the challenged statement did not violate Wilson’s Confrontation rights.
III.
Wilson argues that under the doctrine of “curative admissibility,” she should have been permitted to introduce two letters Ware sent her when he was in custody that were exculpatory as to Wilson. The district court excluded this evidence as hearsay. We review for an abuse of discretion the district court’s decision to exclude evidence under the hearsay rule, Shryock, 342 F.3d at 981, and whether to admit evidence under the doctrine of curative admissibility, see Nguyen v. Southwest Leasing and Rental Inc., 282 F.3d 1061, 1067-68 (9th Cir. 2002).
The doctrine of curative admissibility provides that “the introduction of inadmissible evidence by one party allows an opponent, in the court’s discretion, to introduce evidence on the same issue to rebut any false impression that might have resulted from the earlier admission.” Nguyen, 282 F.3d at 1067 (citing United States v. Whitworth, 856 F.2d 1268, 1285 (9th Cir. 1988)). As discussed above, the testimony given by La Mott was not inadmissible. We therefore conclude that the district court did not abuse its discretion in refusing to admit the letters from Ware.
IV.
Wilson argues that the district court abused its discretion in refusing to give her proposed “missing witness” jury instruction. Such an instruction is unwarranted “if the defense does not adequately show that the government possesses the sole power to produce the witness.” United States v. Anders, 602 F.2d 823, 825 (8th Cir. 1979); see United States v. Noah, 475 F.2d 688, 691 (9th Cir. 1973). Here, Wilson
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. Although Wilson was sentenced under the then-mandatory United States Sentencing Guidelines, before the Supreme Court issued its opinion in United States v. Booker, - U.S. -. 125 S.Ct. 738. 756-69. 160 L.Ed.2d 621 (2005), her attorney has informed us in supplemental briefing that she does not wish to pursue a limited resentencing remand pursuant to United States v. Ameline, 409 F.3d 1073, 1084-85 (9th Cir. 2005) (en banc).
. As the parties are familiar with the facts, we do not recite them here.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.