Unpublished Disposition, 940 F.2d 669 (9th Cir. 1988)

MEMORANDUM^* 

Cecil Fuller appeals his jury conviction for conspiracy to possess and distribute cocaine, possession with intent to distribute cocaine, and distribution of cocaine in violation of 21 U.S.C. 841(a) (1) and 846. Fuller contends that: (1) the district court's refusal to allow testimony about an out-of-court conversation deprived him of his entrapment defense; (2) certain statements allowed in by the district court as statements in furtherance of a conspiracy were not statements in furtherance of the conspiracy; and (3) because some jurors were exposed to a newspaper article during the trial, a new trial should have been granted. We affirm.

Fuller sought to introduce the testimony of a woman who had overheard a conversation between Fuller and a government informant at a bar. She was prepared to testify that the government informant tried to convince Fuller to meet with the agent to whom he ultimately sold cocaine by suggesting that Fuller would probably like to date her and could probably convince her to go out with him. Fuller asserts that this evidence was relevant to his entrapment defense. It was excluded as hearsay. Fuller now correctly points out that it was not hearsay because it was introduced as evidence that a given speech act took place and not to prove the truth of anything that was said.

Because Fuller did not assert his present nonhearsay claim in proffering the evidence, however, the district court's exclusion of it can be reversed only for plain error. See United States v. Morris, 827 F.2d 1348, 1350 (9th Cir. 1987), cert. denied, 484 U.S. 1017 (1988).

A review of the record reveals that, even without the testimony, the jury became aware that Fuller wanted to have a personal relationship with Agent Dotwin. It came out over and over again in the cross examination of the government's witness. Further, the proper focus of an entrapment case is not the alleged misconduct of the government but rather the predisposition of the defendant to engage in the criminal activity with which he is charged. United States v. Benveniste, 564 F.2d 335, 340 (9th Cir. 1977). The early conversations with the informant and the taped conversations with Agent Dotwin show that Fuller had extensive knowledge about drugs and thus already had a predisposition towards drug involvement. We therefore find no reversible error in the district court's decision to exclude these statements.

Fuller contends that the district court erred by admitting into evidence under Fed.R.Evid. 801(d) (2) (E) out-of-court statements made by Fuller's son, Darrell, to Rodney Croom, a co-defendant who pled guilty. Croom testified that Fuller's son said that Fuller gave his son the money to get started in the cocaine business. Croom also testified that Darrell, Fuller's son, said that Fuller could launder Croom's money.

The Ninth Circuit uses the clearly erroneous standard when reviewing a district court's determination that statements are admissible under Fed.R.Evid. 801(d) (2) (E) because made "in furtherance" of a conspiracy. United States v. Yarbrough, 852 F.2d 1522, 1535 (9th Cir.), cert. denied, 488 U.S. 866 (1988). Rule 801(d) (2) (E) provides that a statement is not hearsay if it is "a statement by a conspirator of a party during the course of and in furtherance of the conspiracy."

Statements made to induce enlistment or further participation in the group's activities are considered to be 'in furtherance' of the conspiracy. Likewise, statements made to prompt further action on the part of conspirators are admissible under 801(d) (2) (E), as are those made to "reassure" members of a conspiracy's continued existence. Statements made to allay a conconspirator's fears are admissible. More importantly, statements made to keep coconspirators abreast of an ongoing conspiracy's activities satisfy the "in furtherance" of requirement. Id., at 1535-36.

It was not clearly erroneous for the district court to allow Croom's testimony regarding what Darrel Fuller told him about his father, Cecil Fuller.

On August 22, 1988, one month after the verdict, the district court judge held an evidentiary hearing in which he individually questioned each juror about any exposure to extrinsic material they might have had.

When a defendant raises a charge of juror misconduct, the Ninth Circuit independently reviews the conduct at issue. However, if the district court has conducted an evidentiary hearing on the effects of the alleged juror misconduct, the Ninth Circuit "accords substantial weight" to the conclusion reached by the district court regarding the claimed effects. United States v. Armstrong, 909 F.2d 1238, 1244 (9th Cir.), cert. denied, 111 S. Ct. 191, (1990). A defendant is not automatically entitled to a mistrial merely because the jury has received extrinsic evidence. United States v. Smith, 790 F.2d 789, 795 (9th Cir. 1986) (no prejudice to defendant when four jurors admitted that they had read newspaper headlines about trial).

In this case three jurors said they had briefly read a newspaper article. All jurors said that the articles were only briefly discussed or mentioned before deliberations began and that further discussion was squelched.

Fuller argues that because one juror learned of the guilty pleas of others it impaired the defendant's entrapment defense.

However, throughout the trial there was testimony that others were involved in the transactions.

The district court did not err in refusing to declare a mistrial.

We affirm.