FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCTOBER 26, 2010

JOHN LEY

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 09-16373

Non-Argument Calendar

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D.C. Docket No. 09-00286-CR-T-24EAJ

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

VITALI MAKARENKOV,

Defendant-Appellant.

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Appeal from the United States District Court

for the Middle District of Florida

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(October 26, 2010)

Before EDMONDSON, MARTIN, and COX, Circuit Judges.

PER CURIAM:

Vitali Makarenkov and Stanislaw Satarinov were jointly charged in a twocount indictment. Count One charged conspiracy to possess with the intent to

distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 846 and
841(b)(1)(A). Count Two charged possession with intent to distribute 500 grams or

more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B).

Makarenkov was tried alone. The jury found him guilty on Count One, but of

the lesser-included offense of conspiracy to possess with the intent to distribute 500

grams or more of cocaine. He was found guilty as charged on Count Two. He was

sentenced to seventy-two months on each count, with the sentences to run

concurrently, and a forty-eight month termofsupervised release on each count, to run

concurrently. He appeals.

On appeal, Makarenkov argues that the district court erred in admitting

recorded conversations between Satarinov, a co-conspirator, and a confidential

informant because admission of their statements violated the Sixth Amendment’s

Confrontation Clause and the statements were not admissible under Fed. R. Evid.

801(d)(2)(E). He also argues—and the Government concedes—that the district

court’s written judgment in his case contained a fundamental clerical error in that it

reflected that on Count One he was convicted under 21 U.S.C. § 841(b)(1)(A) when

he was convicted of a lesser-included § 841(b)(1)(B) violation. We affirm, but vacate

and remand for the district court to correct the clerical error in the judgment.

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I.

We review questions of constitutional law de novo. United States v.

Underwood, 446 F.3d 1340, 1345 (11th Cir. 2006) (citation omitted). We review a

district court’s ruling on the admissibility of evidence for abuse of discretion. Id.

(citation omitted). 

Makarenkov argues that the district court erred in admitting out-of-court

statements made by a co-conspirator and a confidential informant in violation of his

rights under the Sixth Amendment. Under the Confrontation Clause, a criminal

defendant “shall enjoy the right . . . to be confronted with the witnesses against him.” 

U.S. Const. amend. VI. In Crawford v. Washington, 541 U.S. 36, 50-51, 124 S. Ct.

1354, 1364, (2004), the Supreme Court held that the Confrontation Clause applied

with equal force to in-court testimony and “testimonial” out-of-court statements. 

However, in Underwood we said that testimonial statements are “statements made

under circumstances which would lead the declarant to believe that the statement

would be available for use at a later trial.” 446 F.3d at 1347 (citation omitted). And,

we upheld the introduction of a co-conspirator’s statements to a confidential

informant, reasoning that the co-conspirator’s statements never would have been

made if he had realized that the informant worked for law enforcement. Id.

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As in Underwood, the statements made by Satarinov to the confidential

informant were not testimonial because the statements were not made under

circumstances in which he would expect his statements to be used in court–he

believed he was speaking to a trusted accomplice in crime. Therefore, the admission

of Satarinov’s statements did not violate Makarenkov’s rights under the

Confrontation Clause. 

Makarenkov argues in the alternative that “even if the admission of the alleged

co-conspirator’s statements did not violateCrawford, the statements were improperly

considered co-conspirator statements under Federal Rule of Evidence 801(d)(2)(E),

as the [G]overnment failed to establish that a conspiracy involving Mr. Makarenkov

existed at the time the statements were made.” (Appellant Br. at 18.) Under

Makarankov’s reasoning, “prior to a party’s entrance into a conspiracy, statements

made by a subsequent co-conspirator do not fall within [the 801(d)(2)(E)] exception

to the hearsay rule.” (Id. at 26-27.) But it is settled law in this circuit that “a

‘declaration of one co-conspirator is admissible against members of the conspiracy

who joined after the statement was made.’” United States v. Lampley, 68 F.3d 1296,

1301 (11th Cir. 1995) (quoting United States v. Tombrello, 666 F.2d 485, 491 (11th

Cir. 1982)). Consequently, Makarenkov’s argument is meritless.

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Makarenkov also argues that the informant’s statements were inadmissible

hearsay because they were offered to prove the truth of the matter asserted. The

informant’s statements, however, were not offered for their truth, but only to place

the investigation and Satarinov’s statements in context. Therefore, they were not

hearsay, and were admissible. United States v. Price, 792 F.2d 994, 997 (11th Cir.

1986) (holding that an informant’s half of a taped conversation was not hearsay

because “[t]he single purpose for admitting the [the informant’s] statements was to

make understandable to the jury the statements made by [the defendant] himself,” and

not to prove that the informant’s statements were true). Accordingly, we hold that the

district court did not abuse its discretion in admitting these recorded conversations. 

Makarenkov argues further that the district court failed to provide a limiting

instruction as to the informant’s statements; one telling the jury that the informant’s

statements were not admitted to prove that what he said was truthful. But,

Makarenkov failed to request the limiting instruction at trial and “the failure of the

court to provide one, sua sponte, [is] not plain error.” United States v. Cross, 928

F.2d 1030, 1051 n.69 (11th Cir. 1991) (citations omitted). “The failure to give a

limiting instruction is error only when such an instruction is requested.” United

States v. Miranda, 197 F.3d 1357, 1360 (11th Cir. 1999) (citation omitted). 

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II.

When faced with a clerical error in the written judgment, we may remand with

instructions to correct that error. United States v. Diaz, 190 F.3d 1247, 1252 (11th

Cir. 1999) (remanding because the judgment reflected the wrong offense). “It is

fundamental error for a court to enter a judgment of conviction against a defendant

who has not been charged, tried or found guilty of the crime recited in the judgment.” 

Id.

Both parties agree, and we have confirmed, that the written judgment reflected

that Makarenkov’s Count One conviction was punishable under 21 U.S.C. §

841(b)(1)(A), when he actuallywas convicted of a lesser-included offense punishable

under § 841(b)(1)(B). Accordingly, we vacate that part of the judgment which

describes the title and section of which he was convicted and remand with

instructions to correct the clerical error in the judgment.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.

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