United States Court of Appeals

Fifth Circuit

FILED

September 17, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-10174

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

2

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. 
No. 06-10174

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).

3

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

rationaltrier of fact could have found thatthe evidence established the elements

of the offense beyond a reasonable doubt.3 All reasonable inferences and
No. 06-10174

4

Id.

4

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
No. 06-10174

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).

5

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 coconspirator 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
No. 06-10174

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

6

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
No. 06-10174

error.”).

7

For these reasons, Hall’s conviction is AFFIRMED.