United States v. Conrad ( 2007 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0447p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 05-5319
v.
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BETTY SUE CONRAD, -
Defendant-Appellant. -
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Appeal from the United States District Court
for the Western District of Tennessee at Jackson.
No. 03-10104—James D. Todd, Chief District Judge.
Argued: July 19, 2007
Decided and Filed: November 9, 2007
Before: MARTIN and ROGERS, Circuit Judges; HOOD, District Judge.*
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COUNSEL
ARGUED: David W. Camp, LAW OFFICE OF DAVID CAMP, Jackson, Tennessee, for
Appellant. Richard Leigh Grinalds, ASSISTANT UNITED STATES ATTORNEY, Jackson,
Tennessee, for Appellee. ON BRIEF: David W. Camp, LAW OFFICE OF DAVID CAMP,
Jackson, Tennessee, for Appellant. Richard Leigh Grinalds, ASSISTANT UNITED STATES
ATTORNEY, Jackson, Tennessee, for Appellee.
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OPINION
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BOYCE F. MARTIN, JR., Circuit Judge. Betty Sue Conrad appeals her conviction on one
count of conspiracy to possess with intent to distribute in excess of 50 grams of methamphetamine
and two counts of possession with intent to distribute methamphetamine. She argues that the district
court improperly allowed hearsay evidence under the co-conspirator exception and that there was
insufficient evidence to sustain her conviction. For the reasons that follow, we REMAND for
further proceedings as instructed below.
*
The Honorable Denise Page Hood, United States District Judge for the Eastern District of Michigan, sitting
by designation.
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No. 05-5319 United States v. Conrad Page 2
I.
Betty and her husband, Tony, live in a rural area near Huron, Tennessee. At the time of trial,
Betty was 61 years old. Betty and her husband are disabled. Her husband is a paraplegic, resulting
from an automobile accident in 1997. Betty was disabled in a work-related accident in 1987. Both
she and her husband receive Social Security Disability, their only documented income. Since
Tony’s accident, Betty has been his personal care giver. Tony stayed in a hospital bed in the living
room so that he would be able to interact with the family and guests. Betty also slept in the living
room on a daybed. Also living with Betty was her biological grandson, Jason Conrad, whom she
and her husband had adopted. At the time of trial, Jason was approximately 25 years old. Jason had
lived with Betty practically since birth. He maintained a bedroom on the main level of the house,
but also slept in the basement, which had its own bathroom and a separate entrance.
On March 6, 2003, officers from the Lexington, Tennessee police department and
surrounding jurisdictions executed a search warrant at Betty’s home. At the time of the raid, Betty,
Tony, and Jason were present. Police confiscated 18.0 grams of crystal methamphetamine residue
contained in plastic baggies found in the tank of a toilet in the basement, as well as 71.7 grams of
marijuana, also discovered in the basement. Police also found four firearms, a radio scanner, and
$866 in cash. No one was arrested.
On May 10, 2003, a second search warrant was executed at Betty’s home. Betty and Tony,
along with an individual named Gerald Seay, were on the main floor, while Jason and his friend
Patrick Britt were in the basement. During the search, police discovered 1.574 kilograms of
methamphetamine hydrochloride, known as “ice,” in a dog food bag in the garage. In a closet in the
hall, they found a loaded handgun and a cookie tin containing $14,000 in cash. In Jason’s bedroom,
two more firearms were found in the closet. In the back bedroom, which prior to her husband’s
accident had been Betty’s, police discovered a duffel bag containing clothes and bathroom items
along with a digital scale. These items were identified as Gerald Seay’s, as he had been staying in
that bedroom. In the basement, police found more digital scales, a police “call book” (used for
identifying police radio codes), two laptop computers, a police scanner, a GPS system, and a Harley-
Davidson motorcycle. As a result of the search, Jason Conrad, Patrick Britt and Gerald Seay were
arrested.
On May 29, 2003, a third search warrant was executed at Betty’s house. No drug evidence
was collected, but Betty was interviewed by DEA Special Agent Michael Woodham. Woodham’s
testimony regarding this interview and the subsequent report he wrote about the interview provided
the majority of the evidence used to convict Betty. According to Woodham’s testimony, she told
him that Gerald Seay received ice shipments from a Hispanic male whom she knew as Stefan, who
lived in Texas. Seay would call Jason and tell him to go pick up Stefan at the bus station in either
Memphis, Jackson, or Nashville. After picking Stefan up, Jason would bring him back to Betty’s
house, where Seay and Stefan would conduct the drug transaction. Woodham testified that Betty
told him that Seay had convinced her to allow him to conduct the transactions in her home in
exchange for Stefan’s promise to arrange for a doctor in Guadalajara, Mexico to treat her husband.
She provided Woodham with a business card of the doctor.
According to Woodham, Betty also identified Arles Wayne Maness and George Melton as
partners with Seay in the distribution of methamphetamine. Maness (who at the time of trial had
already been convicted of trafficking almost 600 pounds of marijuana) testified at Betty’s trial that
Seay had told him that he gave her $1,000 each time he used her basement to conduct drug
transactions.
Betty testified on her own behalf. She stated that Seay was like a son to her and her husband,
and had been for over thirty years. She also stated that she had worked with Stefan in the 1970s at
No. 05-5319 United States v. Conrad Page 3
a sawmill in Tennessee before he moved to Texas. Stefan, Seay and her husband had all been
friends and after Tony’s accident in 1997, Stefan and Seay had come to visit him. She stated she
had no idea that drugs were being trafficked through her home until after the May 10, 2003 search.
When Jason was released from jail on bond after his arrest on May 10, she was able to have a
conversation with him and “he finally told [her] what they were doing.” According to Betty’s
testimony, Jason told her that he and Seay had been distributing ice for the past year with the help
of Stefan. After this conversation, Betty went to the police station and told the chief of police that
the money found in the house was not hers, but rather belonged to Seay, and that she did not want
anything to do with it because it was drug money. When the police arrived on May 29, 2003 to
execute the third search warrant, Betty wanted to relay what she had recently found out from Jason
to Agent Woodham.
On December 15, 2003, Betty and eight other individuals were indicted by a federal grand
jury in the Western District of Tennessee. She was named in Count 1 for conspiracy to possess and
distribute in excess of 50 grams of methamphetamine between 1993 and June 16, 2003 in violation
of 21 U.S.C. § 846; in Count 2 for aiding and abetting possession with intent to distribute 17.1 grams
of methamphetamine on March 6, 2003 in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; in
Count 3 for aiding and abetting possession of a firearm in furtherance of a drug trafficking crime on
March 6, 2003 in violation of 18 U.S.C. § 924(c)(1)(2); in Count 9 for aiding and abetting
possession with intent to distribute in excess of 50 grams of methamphetamine on May 10, 2003 in
violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; in Count 10 for aiding and abetting possession
of a firearm in furtherance of a drug trafficking crime on May 10, 2003, in violation of 18 U.S.C.
§ 924(c)(1)(2); and in Count 15 for aiding and abetting possession with intent to distribute in excess
of 50 grams of methamphetamine on June 16, 2003, in violation of 21 U.S.C. § 841(a)(1) and
18 U.S.C. § 2.
Betty’s first trial commenced on July 26, 2004. On July 28, it ended in a mistrial with the
jury unable to reach a verdict.
In Betty’s second trial she was charged only with Counts 1, 2 and 9 of the indictment, and
she was found guilty on all three. She was sentenced to 144 months on Count 1, 144 months on
Count 2, and 144 months on Count 9, each to run concurrently. At the time of sentencing Betty was
62 years old.
II.
A. Did the district court err when it allowed the hearsay statement of Gerald Seay to Arles
Wayne Maness to be admitted under the co-conspirator exception.
“Rule 801(d)(2)(E) states that ‘a statement by a co-conspirator of a party
during the course and in furtherance of the conspiracy’ is not hearsay when
introduced against the non-offering party. There are three foundational prerequisites
which must be established to admit a coconspirator’s statements under Rule
801(d)(2)(E): that a conspiracy existed; that [the] defendant was a member of the
conspiracy; and that the declarant’s statement was made during the course and in
furtherance of the conspiracy. These preliminary matters are findings of fact to be
made by the district court pursuant to Fed.R.Evid. 104(a). They must be established
by a preponderance of the evidence, and are reviewed only for clear error.”
United States v. Malizewski, 161 F.3d 992, 1007 (6th Cir. 1998).
Over Betty’s objections, the district court allowed Maness to testify that “Gerald [Seay] said
he gave [Betty] money for us using her basement because her husband was disabled.” The district
court stated the following in support of its decision:
No. 05-5319 United States v. Conrad Page 4
Well, there is a co-conspirator’s exception to the hearsay rule. The practice
this court follows and is followed throughout most of the circuit is that you can let
in a co-conspirator’s exception to the hearsay rule subject to a later determination
that there actually was a prima facie case of a conspiracy.
It seems to me the government has clearly shown a prima facie case of a
conspiracy, and I’m going to let the evidence in under the co-conspirator’s exception
to the hearsay rule. It sounds like it is a statement made by a co-conspirator during
the course and scope of the conspiracy. The objection is overruled.
Betty argues that the government did not prove by a preponderance of the evidence that she
was a member of the conspiracy and that the statement was made in furtherance of the conspiracy.
She further argues that the district court applied the wrong evidentiary standard – prima facie –
instead of the proper preponderance of the evidence standard in deciding these issues. We address
these arguments in turn.
i. Betty as a Member of the Conspiracy
“Before hearsay statements of a co-conspirator can be entered into evidence, a defendant’s
participation in the conspiracy must be established . . . by a preponderance of the evidence.” United
States v. Clark, 18 F.3d 1337, 1341 (6th Cir. 1994) (internal citations omitted). Because hearsay is
presumptively unreliable, sufficient independent and corroborating evidence of Betty’s knowledge
and participation in the conspiracy must be produced to rebut and overcome the presumed
unreliability of the proffered out-of-court statement. See id. (holding that sufficient “independent
evidence is not merely a scintilla, but rather enough to rebut the presumed unreliability of hearsay”).
Despite Betty’s arguments, the government presented sufficient evidence of her participation
in the conspiracy prior to the introduction of Seay’s out-of-court statement. On two occasions,
methamphetamine was found in her home. Agent Woodham testified that Betty herself told him that
Jason and Seay used her house for transacting large quantities of methamphetamine. Woodham
testified that she told him that Stefan traveled from Texas by bus to her house in order to deliver the
methamphetamine to Jason and Seay, and that in exchange for the use of her house, Stefan promised
to arrange for a doctor in Guadalajara, Mexico to treat her husband. The government also presented
evidence that she was like a mother to Seay and Jason Conrad. She even executed a durable power
of attorney on behalf of Seay while he was previously incarcerated for a separate drug offense. She
also lied to police during the May 10 search when she stated that the $14,000 cash belonged to her
as proceeds from a land sale. She later explained that it was Seay’s drug money, and that she was
covering for him in the hopes the police would not confiscate it if they believed it was hers.
This evidence “sufficiently corroborates the out of court statements to establish [Betty’s]
participation in the alleged conspiracy by a preponderance of the evidence.” Id. at 1342.
ii. Out-of-Court Statement Made In Furtherance of the
Conspiracy
“A statement is ‘in furtherance of’ a conspiracy if it is intended to promote the objectives of
the conspiracy. The statement need not actually advance the conspiracy to be admissible.
Additionally, statements which identify the participants and their roles in the conspiracy are made
‘in furtherance’ of a conspiracy.” Id. at 1342 (internal citations omitted). However, out-of-court
statements made after the conclusion of the conspiracy are not made “in furtherance of the
conspiracy,” and are thus not admissible under the co-conspirator exception. See United States v.
Martinez, 430 F.3d 317, 327 (6th Cir. 2005); United States v. Payne, 437 F.3d 540, 546 n.4 (6th Cir.
2006 (“[i]t is crucial that the conspiracy be ongoing . . . ”). Additionally, “mere idle chatter or
casual conversation about past events is not considered a statement in furtherance of the
No. 05-5319 United States v. Conrad Page 5
conspiracy.” United States v. Darwich, 337 F.3d 645, 657 (6th Cir. 2003) (internal quotation marks
omitted).
Seay’s out-of-court statement to Maness that “he gave [Betty] money for [] using her
basement because her husband was disabled,” identified her as a willing participant in the
conspiracy and allayed any fears Maness may have had regarding her loyalty to Seay. Thus, the
substance of Seay’s statement appears to meet the requirement that it be made “in furtherance of”
the conspiracy. See Martinez, 430 F.3d at 327 (statements are made in furtherance of a conspiracy
“when the statements are made to apprise a coconspirator of the progress of the conspiracy, to
induce his continued participation, or to allay his fears.”). The district court, however, did not make
a determination as to when this statement occurred, nor did the government offer any evidence
regarding the context in which Seay’s out-of-court statement to Maness was made. For all this Court
knows, Seay’s statement could have been made after he was arrested and the conspiracy had ended
or was mere “idle chatter.” Accordingly, we find the district court erred in failing to make the
requisite findings regarding the context and timing of Seay’s out-of-court statement before admitting
Maness’s testimony.
We do not believe such error was harmless. Maness’s testimony provided independent
corroboration of Agent Woodham’s testimony that Betty knew what was going on and was allowing
her house to be used for drug transactions in exchange for some benefit. Maness’s testimony also
helped explain the $14,000 cash found in a cookie tin in the closet. Without his independent
corroboration, this case reduces to Woodham’s word against Betty’s, and the jury may have decided
to believe her story over his. Without Maness’s testimony, it cannot be said with any confidence
that the same verdict would have resulted. See Beck v. Haik, 377 F.3d 624, 634-35 (6th Cir. 2004)
(“[I]f one cannot say, with fair assurance, . . . that the judgment was not substantially swayed by the
error, it is impossible to conclude that substantial rights were not affected.” (quoting Kotteakos v.
United States, 328 U.S. 750, 765 (1946)).
iii. Proper Evidentiary Standard
In order for the co-conspirator exception to apply, the three elements under 801(d)(2)(E)
must be proven by a preponderance of the evidence. See Malizewski, 161 F.3d at 1007. In
overruling Betty’s objection to Maness’s testimony regarding Seay’s out-of-court statement, the
district court stated that the government “has clearly shown a prima facie case of a conspiracy,” and
admitted the evidence under the co-conspirator’s exception to the hearsay rule. JA 178. The district
court did not find that the government had proven the three requisite elements by a preponderance
of the evidence, but rather made the generalized finding that a prima facie case of conspiracy had
been presented. The district court never returned to this issue to determine if the government’s
prima facie showing had risen to the level of a preponderance of the evidence on each of the
requisite elements. Accordingly, we find the district court erred in not applying the preponderance
of the evidence standard in determining whether the government had met the requirements for the
co-conspirator exception under 801(d)(2)(E).
The government concedes that the district court applied the wrong evidentiary standard, but
it maintains that this error was harmless. We disagree.
The government relies on this Court’s statement in United States v. Rogers, 118 F.3d 466,
478 (6th Cir. 1997), that “[t]he erroneous admission of a statement by an unindicted co-conspirator
constitutes harmless error when sufficient other evidence demonstrates a defendant’s active
involvement in the conspiracy.” In order for this Court to hold that the district court’s use of the
wrong evidentiary standard was harmless error, it must find that there was sufficient evidence of
Betty’s involvement in the conspiracy. Id. In Rogers, the Court found the evidence was
No. 05-5319 United States v. Conrad Page 6
“overwhelming” that Rogers was involved in the alleged conspiracy. Here, the evidence that Betty
was involved in the alleged conspiracy is not nearly so overwhelming.
No evidence was presented that showed Betty ever handled any drugs. There was no
evidence that she was ever present during a drug transaction. In fact, all of the testimony indicated
that the transactions occurred in the basement and that she was never present. The testimony also
revealed that Seay and Jason were the individuals who arranged for the delivery of the
methamphetamine with Stefan and distributed it from the basement. Agent Woodham’s testimony
and his own report state that Betty told him she had never actually observed any illegal activity or
drugs.
The only evidence outside of the hearsay tying Betty to the conspiracy to distribute
methamphetamine was Woodham’s testimony that she had told him that she had agreed to let her
house be used in exchange for some benefit, and according to Woodham, that benefit was the
prospect of treatment for her husband in Mexico. No other witnesses or evidence was proffered
showing that Betty had knowingly agreed to let her house be used. Maness’s hearsay testimony was
the only independent corroborating evidence of any such agreement.
Accordingly, we hold the district court committed reversible error when it admitted Seay’s
out-of-court statement under the co-conspirator’s exception to the hearsay rule using the wrong legal
standard and without finding that the elements of that exception had been proven by a preponderance
of the evidence. As a result, reversal is necessary because we “lack[] a ‘fair assurance’ that the
outcome of [the] trial was not affected by evidentiary error.” Beck, 377 F.3d at 635.
B. Was the evidence sufficient to sustain Betty’s convictions for conspiracy to distribute
methamphetamine and possession with intent to distribute methamphetamine.
While the district court’s evidentiary error requires remand, we must still independently
address Betty’s argument that the evidence presented at trial was insufficient to sustain her
conviction. Patterson v. Haskins, 470 F.3d 645, 651 (6th Cir. 2006), recently reaffirmed that the
general practice in this circuit is to consider an insufficiency claim “even if a remand is necessary
because of trial error.”
Betty argues on appeal that the evidence was insufficient to support her convictions. When
considering such an argument we do not “weigh the evidence presented, consider the credibility of
witnesses, or substitute [its] judgment for that of the jury.” United States v. M/G Transport Services,
Inc., 173 F.3d 584, 588-89 (6th Cir. 1999). Our task is to determine “whether, after viewing the
evidence in the light most favorable to the prosecution, and after giving the government the benefit
of all inferences that could reasonably be drawn from the testimony, any rational trier of fact could
find the elements of the crime beyond a reasonable doubt.” Id. at 589 (citing Jackson v. Virginia,
443 U.S. 307, 319 (1979)). Thus, she “bears a very heavy burden” in her sufficiency of the evidence
challenge. United States v. Davis, 397 F.3d 340, 344 (6th Cir. 2005) (internal citations omitted).
Betty was convicted on the following three counts: (1) conspiracy to distribute and/or
possess with intent to distribute methamphetamine, (2) possession of methamphetamine with intent
to distribute on March 6, 2003, and (3) possession of methamphetamine with intent to distribute on
May 10, 2003. We analyze each count in turn.
i. Conspiracy to Distribute Methamphetamine
“To sustain a conviction under 21 U.S.C. § 846, the government must prove
the existence of an agreement to violate the drug laws and that each conspirator knew
of, intended to join, and participated in the conspiracy. Although the connection
between the defendant and the conspiracy need only be slight, an agreement must be
No. 05-5319 United States v. Conrad Page 7
shown beyond a reasonable doubt. A tacit or material understanding among the
parties to a conspiracy is sufficient to establish the agreement. A conspiracy may be
inferred from circumstantial evidence which may reasonably be interpreted as
participation in a common plan.”
United States v. Walls, 293 F.3d 959, 967 (6th Cir. 2002) (internal citations and quotation marks
omitted).
Betty argues that there was no evidence that she was a knowing participant in a conspiracy
to distribute methamphetamine — rather, she submits that she was an uninformed, concerned mother
who got caught up in the illicit dealings of her adopted son and a family friend.
The following evidence was presented by the government in support of Betty’s conviction:
• On March 6, 2003, the police found methamphetamine residue in plastic bags
in the basement bathroom of Betty’s house. Officers also found in the
basement a police scanner, a ten-code, a night-vision lens, two television
monitors, two surveillance cameras (one in the basement and one mounted
outside the house), a rifle and a shotgun.
• On May 10, 2003, the police found approximately 1.5 kilograms of pure
methamphetamine in a dog food bag in Betty’s garage. During the same
search police also found in the hall closet a loaded handgun and a metal
cookie tin containing $14,000 cash. Police also discovered a digital scale in
her former bedroom, a police scanner, a surveillance camera, and a monitor
in Jason’s bedroom, and a laptop computer, police scanner and digital scales
in the basement.
• On May 29, 2003, Betty was interviewed by Agent Woodham. His
testimony regarding that interview states that she gave details about the drug
conspiracy between Seay, Jason, and Stefan. In the interview, according to
Woodham, she allegedly indicated that in exchange for use of her basement
for drug transactions, Stefan would arrange for a doctor in Guadalajara,
Mexico, to examine her paraplegic husband.
• Maness testified that Seay had told him he paid Betty $1,000 each time they
used her basement for drug transactions.
While this evidence appears to strongly implicate Betty in the conspiracy, it does not paint
the whole picture. Betty and her husband were both disabled. They slept in the living room on the
main floor. During the March 6 search, all of the evidence seized came from the basement, where
Jason, her 25-year-old adopted son (biological grandson) spent most of his time. During the May
10 search, the drugs were found outside the house, and most of the other seized items came from
Jason’s bedroom or the basement. According to police, a digital scale was found in Betty’s former
bedroom, but the scale was alongside a duffel bag full of clothes belonging to Seay who had been
staying in that bedroom. In fact, the police evidence identification tag stated the scale was found
in Seay’s bedroom. No evidence was presented that connected Betty to any drug transaction or any
of the other items found at the house, and Maness actually testified that he had no reason to believe
Betty knew what was going on except for what Seay had told him regarding the $1,000 payments.
It is true that without Maness’s testimony regarding Seay’s out-of-court statement, the jury
could well have refused to conclude that Betty was involved in a conspiracy. That is why we
concluded above that the error regarding the Maness testimony was not harmless. The evidence
merely shows Betty was present at the house when the drugs were there, but nothing else.
No. 05-5319 United States v. Conrad Page 8
Woodham’s testimony that Betty told him that she agreed to let her house be used in exchange for
possible treatment for her husband by a Guadalajaran doctor is weak at best, and certainly does not
overcome the beyond a reasonable doubt standard. However, if Maness’s statement is deemed
admissible, then it is possible that a rational trier of fact could have concluded Betty was part of the
conspiracy and her conviction should stand.
ii. Possession of Methamphetamine on March 6, 2003
and May 10, 2003
As discussed above, on March 6, 2003, methamphetamine residue was found in plastic
baggies behind the tank of a toilet in the basement bathroom. This area of the house was used
exclusively by Jason. In fact because of Betty’s and her husband’s disabilities they had difficulty
navigating stairs. The government did not present any evidence that Betty used the basement or the
basement bathroom. Nor did it present any evidence that she had actually handled the drugs or
baggies found in the basement. In fact, all of the evidence relating to the March 6 possession points
to Jason, not Betty.
On May 10, 2003, the drugs were found in a dog food bag in the carport. Betty testified she
fed the dog on a regular basis. She had access to the carport and presumably used the carport daily.
No other evidence was presented that showed she knew the drugs were there or intended to possess
or distribute them.
On both counts, the government has failed to present any evidence that Betty knew the drugs
were there or in any way assisted in the possession or distribution of the drugs. In fact, both the
report authored by Agent Woodham and his testimony at trial state that she did not observe any
drugs or any illegal activity. The mere fact that drugs were found outside of her home and in her
basement is not sufficient to sustain a conviction for aiding in abetting in the possession with intent
to distribute these drugs. The government must provide some evidence of Betty’s participation in
these crimes. In United States v. Pena, 983 F.2d 71 (6th Cir. 1993), and United States v. Craig, 522
F.2d 29 (6th Cir. 1975), this Court held that mere presence in a place where drugs were discovered
is not enough to sustain a conviction for aiding and abetting in possession with intent to distribute
illegal drugs. In fact, in Pena, the Court stated that even if the defendant had known illegal drugs
were present, it still was not enough to sustain a conviction. 983 F.2d at 73. In Craig, the Court
found that even where the defendant fled from police officers and possessed a shotgun, without
evidence of his knowledge of and willing participation in the possession of the illegal drugs, a
conviction could not be sustained. 522 F.2d at 31-32. Here, apart from the inadmissible hearsay
evidence, the government presented no evidence of Betty’s participation in the crime other than her
presence at her house where drugs were found. A jury could therefore well refuse to convict.
Again, that is why we found above that the error was not harmless. “The web of inference is too
weak on these facts to permit any rational trier of fact, absent sheer speculation, to find beyond a
reasonable doubt that [Betty] had knowledge of the hidden drugs.” United States v. Morrison, 220
F. App’x 389, 396 (6th Cir. 2007) (internal quotation marks omitted). It appears that she was
improperly lumped together with others who were more culpable. See United States v. Pena, 983
F.2d 71, 73 (6th Cir. 1993) (“guilt by association” not sufficient to sustain a conviction for
possession). But with the the improperly admitted hearsay evidence, there was sufficient evidence
to sustain her conviction on these two counts. Under the principle reemphasized in Patterson,
therefore, we are not required on double-jeopardy grounds to preclude a retrial because of
insufficient evidence.
III.
For the foregoing reasons, we REMAND Betty’s case to the trial court to conduct the
inquiry that should have been made under Rule 801(d)(2)(E). See United States v. Mahar, 801 F.2d
No. 05-5319 United States v. Conrad Page 9
1477, 1503-04 (6th Cir. 1986). In the event the trial court determines on remand that the improperly
admitted out-of-court statement was made in the course of and in furtherance of the conspiracy,
Betty’s conviction will stand and we would have appellate jurisdiction of this case in order to review
the trial court’s finding. If the trial court determines that the out-of-court statement was not made
in the course of and in furtherance of the conspiracy, Conrad is entitled to a new trial. See Lockhart
v. Nelson, 488 U.S. 33, 40 (1988).