1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

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ELECTRO NIC CIT

ATION: 2003 FED App . 0327P (6th C ir.) File Name: 03a03 27p.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v.

W ARD W ESL EY W RIGH T , Defenda nt-Appel

lant. X - - - -
> , - - N No. 01-2569

Appeal from the United States District Court for the E astern D istrict of Michiga n at Detr oit. No. 96-80876—Patrick J. Duggan, District Judge.

Argued: August 5, 2003 Decided and Filed: September 12, 2003

Befor e: KEI TH, COL

E, and COO K, Circui

t Judges.

_________________ COUNSEL

ARGUED: Ric har

d J. Amberg, Jr., Waterford, Michigan, for Appellan t. Joseph J. Allen, ASSISTANT UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee. ON BRI EF: Richard J. Amberg , Jr., Water

ford, Mic higan, for Appe llant. Jo seph J. Allen, ASSISTANT UNITED STATE S ATTORNEY, Detroit, Michigan, for Appellee. 2 United States v. Wright No. 01-2569

_________________ OPINION

_________________ R. GUY COLE, JR., C i rcuit Judge. Defendant-Appellant Ward Wesley Wright a ppeals his jur

y conviction and sentenc e for the use of interstate commerce facilities in the commission of mu rder for hire, interstate travel in aid of a c r ime o f violence, and cons

piracy to possess

with inten

t to distrib

ute and to distribute c o caine. Wright raises four arg uments on appeal: (1) the d

istrict c ourt err

ed in deny

ing his mo ti on to dismiss his indictment based on violations of the statute of limitations and the Due Process Clause of the Fif th Amendmen

t; (2) the G overnme

nt is guilty of prose cutorial misconduc

t; (3) the district court erred in deny ing his motion to suppress

evidenc e obtaine d pursu ant to a sear ch warr ant; and (4) the districtcourt erred in admitting hearsay evidence.

For reasons stated below, we AFFIRM the jury conviction and sente nce ente red by the distri ct court

. I. BACKGROUND

A. Fac tual Backgr ound

Brian Ch as e, Ra ymo nd Ke ls ey, and William Arbelaez met while serving

time in a Mi

nnesota prison. A fter all

three had been released in 1992, Chase met Wright while they we re both bouncers at a

bar in Michigan. Wright was a member of the Avenger s Motorcycle Club (the “ Avengers”) and was involved with coca

ine distri

bution thr

ough th e c lub. Arbe laez, a Colomb ian national who trafficked cocaine, began supply ing coc aine to Cha se from Co lombia, a nd Chase in turn be gan se lling co caine to Wright.

In1992, Arbelaez was ar rested o n drug charges in New Mexico. He escaped

from pri son and so

ught to f lee to Colombia. Chase conta cte d Kelsey, a lice nsed pilot, and heNo. 01-2569 United States v. Wright 3

agreed to fly Arbela

ez out of the United

States. Kelsey flew Arbelae z to the United States-Mexico border, and Arbelaez fled to Colombia from there. In 1993, Arbelaez

began supply ing coc aine to Chase from Colombia and Kels ey

became th e pilot o f th e op era ti on. In Fe br ua ry, Ke ls ey f

lew to Los Angeles to re trieve a fifty-kilogr

amshipment of cocaine and then flewto Detroi

t to deliver it to Chase. Chase sold part of the shipment to David “Slap” M oore, amember o f the Ave ngers, who would eventua lly b ecome Chase’s p

rimary distributor. Chase

sold the other part of his shipment to Wri ght, wh o delivered part of his allotment to Chase’s customers an d sold part of h is allotment to his own customers. Shortly afterward, Kelsey

flew twenty- five kilograms of another shipmentto Chase for

distribution. Chase and Kelsey decided not to pay Arbelaez for

the coca ine and to ld

him that it had been seized by Ca

n adian aut horities. In the spring of 1993, Kelsey

made ano ther trip

to Los Angeles and pic

ked up what was suppo sed to be s eventy -five kil ograms

of cocaine. Ho wev er, Chase and Kelsey learned that the shipment contained only sixty-six kilograms. Chase distributed t he drugs wit

hout notifying Ar

belaez of the deficiency and Wright received some of the shipment.

At this point, Moore was no longer distributing cocaine for Chase. Inste ad, Moore introduc ed Chase

to his main
c ustom er in Detroi t, and Cha se supplie d cocaine direc tly t o that customer. Moore wanted a commission from Chase for the sales to his customer, but Chase refused. Moore t ol d Chasethat he “knew how

to take care of business,” and Chase believed that this was a threat and

that Moor

e intende d to kill him. Chase then

discussed the “Moore problem” with Wright and told Wrightthat he was willing to give Moore $40,000 to end the dispute. Chase offered Wright $10,000 to broker the deal with Moore , but Wrig ht was u nab le to arr

ange a deal. Wright t hen s uggested, “Why

don’t you just give me the money and I’ll kill Mr. Moore.” A few da ys later, Wright 4 United States v. Wright No. 01-2569

told Chase that Moore had given another Avenger a gun and $10,000 for a contract mu rder an d that Chas e was the

targe t. Chaseand Kelsey the

ndec ided to kill Moore to end the dispute a nd the per

ceived t hreat.

InJuly 1 993, William

Anderson Burke , a past national pres ident of the Avengers, was involved in a motorcy cl e accident i n Columbus, Ohio. Moore, as an officer in the Avenge rs, traveled to Columbus to awai t Burke ’s relea se fromthe hospital. Chase and Wright de cide d that Wright coul d kil l Moore while he was in Columbus, and Wright agreed to acce pt $50,000 to commit the murder. Wright’s girlfriend, and later wife, Brenda Schneide r, called Moore’s wife to det ermin e what hotel Moore was st aying a t in Columbus.

OnJuly 29, 1993, Wright obtained a .22-caliber pistol and
a car that ha d b ee n p ur ch as ed by C ha se an d K el se y, and drove to Columbus. Wright found Moore’s hotel room in the ea

rly hours of July

30, and a sked Moor

e if he could s tay

the nigh t. After Moore let him in and we nt back to sleep, Wright shot Moore in the head

twi ce. Before leaving , Wright “wiped down” ev ery

th ing and took Moore’s wallet and page r. He called Chase, told him everything was ok ay, and retu

rned to Chase’s house in Michigan. Kelsey, who

was at the house when Wright returned, used
a welding torch in Chase’s g arage to melt th e pager, the wallet, and the gun. Kelsey then piloted a plane, with Chase and Wright as pa ss engers, and the three men dumped the melted objects and Wright’s clothes over L ake Huron. Ch ase paid Wright $50,000 for the mu rder on the evening of July 30.

OnAugust 10, 1993, Wright married his girlfriend, B renda Sc hnei der, in Las Vega s using the alias Arthur Anderson. Wright and his new wife stay

ed in Las Veg as gam

bli ng and Larr y Joe Powell, a

nother A venge r, good friend o f Wright,
an d F BI i nf

or ma nt , w ir ed th em mo ne y.No. 01-2569 United States v. Wright 5

After the murde

r, Arbe laez, who

was still li

vin g in Colombia, wanted C has e and Kelsey to pay him for the twenty-five

kilograms of cocaine “lost” to t he C anadian authorities a nd the nine kilograms of cocaine missing from the seventy-five -kilogram shipment. Arbelaez devised a plan for Chase an d Kelsey to repay him for th e missing cocaine. He decided that they

could steal airplanes and give t hem t o Arbelaez’s cocaine supplier , the Mede llin Carte l in Colombia (the “Cartel”).

InJanuary

1994, Kel sey

flew Cha se and Wright, traveling under the alias of Arthur Anderson, to the island of St. Martin t o meet with

Arbelaez to discuss t

he plane -stealin

g sche me

. Whe nArbelaez failed to show, the

three f lew back to th e United States. Chase and Kelsey then traveled

to Venezuela and Colomb ia

to meet with the Cartel regarding the ty pes of airplanes th at t hey w ant ed s to len . In the spri ng of 1994, Chasespoke with Kelsey, Wrig ht and Burke and they

decided to steal planes together. Arbelaez also had his re lative, E frain Ruiz, join the scheme. Kelsey scouted planes, and Wright and Burke secured aviation

fuel in a hangar for refueling

the plane on the way to C o lombia. On May 7, 1994, the five of themsuccessfully stole a

United States Forest Service plane i n Atlant a. They f

lew the plane to Florida where Chase, Wright and Burke refueled

the plane, which Kelsey

then flew to the Cartel in Colombia.

On October

6, 1994, K

elsey stole ano ther pla

ne in Arkansa s, refuel ed it in Fl orida, and flew it to Colombia. Wright di d no t p art ici pat e in th is th eft . In N ovember 1994, Kelsey picked up cocaine from Arbelaez, and flew it to Chase and Burke in Michigan. However, Chase and Kelsey did not pay Arbelaez the entir

e ship m ent, and were worried that Arbelaez would retaliate. They dec ided to steal another plane to make up for the missing pay ment. On February

18, 1996, Kelsey stole a plane i

nFlorida, and Wright and Burke set up
a refueling site. Kelsey an d Chase th en flew t he plane to Colombia f

or delive ry to the Car

tel. 6 United States v. Wright No. 01-2569

InApril 1996, while attempting to re turn f rom Colombia, Kelsey was arr ested in St . Martin a

nd he ag reed to c ooperat

e with authorities. He then recorded several conversations with Chaseand Bur ke regar ding d rug shi pment s and W righ t ’s involvement

in the drug deals. In O ctober 1996, Cha se and Burke went to Det

roit, be lieving that they were to meet Kelsey fo r a dr ug de li ve ry. Inst ead they were arrested. Kelsey pleaded guilty

to several charges ac

ross several states, including drug tra fficking, stealing planes, and aiding and abetting a murde r for hir e. He wa s sentenc ed to mulitp le terms of imprisonment. In April 1997, gov ernment agents obtained a warrant to search Wright’s Las Vegas apartment where they rec overed evidencel inking Wright to the Moore murder.

B. Proc edural Bac kground Wright was originally

charge d in an indictment with: (1) the use of

interstate commerce facilities in the commission of murder for hire, in violation of 18 U.S.C. § 1958; (2) co ns piracy

in the use

of inters tate commerce f acilitie s in the commission

of murde r for hir e, in viola tion of 18 U .S.C. § 1958; (3) interstate travel in aid of a crime of violence , in violation of

§ 1952(a)(2); and (4) conspiracy to possess

with intentto distribute and to distribute cocaine, in violation of 18 U.S.C. §§ 846, 841(a)(1). However, the Grand Jury returned a First Superseding I

ndictment on April 22, 1997, only charg ing Wrig

ht, Chase and Bur ke wit h Count Four, pa rt ic ip at io n i n t he co ca in e c on sp ir ac y.
OnSeptember 9, 1997, the Government moved to dismiss the i ndi ctment without prejudice as to Wright, arguing that the prosecution of Wright would jeo pardize an ongoing investigation

of the Avengers. The motion was granted. On July 23, 1998, the Government obtained a Third Superseding Indictment

a gain st Wright, charging Wright with all four counts of the original criminal complaint. The Government obtained an order sealing the indictment on the grounds that the ongoing investigation of the Avengers and the protectionNo. 01-2569 United States v. Wright 7

1 By st ipul ati on of

the pa rties, Co unt T wo, co nspira cy to use interstate

commerce faci lit ies i n the commis sion of murder for

hire, was dis missed prio r to the c onc lusion o f W right’s trial. of pote ntia l gover

nment witnesses an

d underc over ag ents required that the indictment be sealed.

Chasepleaded

guilty to conspir

acy to possess

with inten

t to distribute cocaine an d the use of interstate commerce facilities inthe commission of murder for hire. Judgment was entered against him on October 7, 1998.

InDecember 1998, Burke stood trial on the single

count in the First Supersed ing I ndictmen t, partic ipation in

the cocaine
co nspir ac y. He was convicted by a jury and his conviction
was affirme d on appe al to this Court. United States v. Burke
, No. 98-1800 , 2001 WL 392039 (6th Cir. Apr. 9, 2001) (unpublished). In January 2000, the Government revealed the identity of the informant being used in theinvestigation of the Avenge rs, Powell, and on January 25, 2000, the Gover nment obtained an order u

nseal ing the Third Superseding Indic tment. On April 3, 2001, the district c ourt held

a hearing
onWright’s motion to suppress evidence, and t ha t motion
was denied on April 4. On May 8, 2001, t he district court held a hearing on

Wright’s motion to dismiss the indictment based on violations of the statute of limitations, the Due Pro cess Clause, a

nd his rig ht to a spe edy

trial. On

May 9 , 2001, the district court denied that motion.

OnJune 11, 20 01, following eight days of testimony, the jury found

Wright guilty of a

ll three remaining

counts of the Third Supersed

ing I ndictmen t. 1 Both Chase and K elsey testified against him. Wright was sentenced to two terms of l ife imprisonme

nt and one

term of si

xty mon ths o f imprisonme

nt. 8 United States v. Wright No. 01-2569

2 Secti on 3282 read s in relevant part: “(a) In g en eral. --Except as otherwise expre ssl y prov ided by law, no pers on shal l be pr osecu ted, tri ed,

or punished for any offense , not ca pital, unl ess the indi ctmen t i s f ound or the inf ormat ion is i nsti tut ed with in f ive y ears nex t af

ter such o ffense sha ll have been com mitted .” II. ANALY SIS

A. Motio n to Dism iss Wright argue s that the d

istr ict cour t erred

in deny ing his mot io nto dismiss the murder charges in the Third Supersed ing I ndictmen t. He arg ues that th

is indictment was improper ly sealed and challenges thedenial of the motion t

o dis miss based on

the expira

tion of the

statute of

limitati on s and violation of the Due Process Clause. Wright was indicted pursu

ant to the First Superseding Indictment

on April 22, 199 7. This indictment charged Wright only with involv ement in th e c oc ai ne co ns pi ra cy. Uponmotion b y

the Government and after a hear ing, the indictmentwas dismissed without prejudice onSeptember 8, 1997. In s upport of its motion to dismiss, the Government submittedaffida

vits fromtwo FBI ag ents explaining that they
were conducting an ongoing inve stig ation of the Avengers and that their

primary informan

t w as Powell. The Government

argued that proceeding

against Wright at that time w ould

require Powell to testify a nd thus jeopardize the
s afety of Pow ell an d the i nvest igati on of t he Aven ge rs

. Wright did not obje ct to the Government’s request, but asked for the dismissal to be with prejudice.

OnJuly 2 3, 1998, ju st prior to the running of the five-y

ear statu te of limitations on the murder for hire charges, see 18 U.S.C. § 3282, 2 th e Go vernment obtained a Third SupersedingIndictment against Wright a nd moved to seal the indictme n tunder Federal Rule of Criminal ProcedureNo. 01-2569 United States v. Wright 9

3 F eder al Rule o f Crimin al Pro ced ure 6 (e)(4 ) read s in releva nt part: “A magistr ate jud ge to whom an indictment is retur ned may direct that t

he indictment be kept se cret un tilthe def endant i s in c ustody or has been releas ed pending t

rial .” 6(e)(4). 3 In its motion to seal the indictment, the Government stated that the indictmen

t should be seale d becau se “ther

e is danger of harm to potential government wi t nesses, and undercover

agents, if the indictmen

t is disclos ed prior

to the completion of a related criminal investigation.”

The indi ctm ents fro m the L orain Cou nty , Ohio investigations of criminal activities among the Avengers we re unsealed in September 1999, and in January 2000, Powell’s identity as an inf ormant wa s revea

led. Wrig

ht’s i nd ictment
was unseale d immediat

ely and he was notified of the charges agains thim. The G overnme nt states t hat the de lay

betw e en the unsealing of the indictments in the Ohio cas es and the unsealing of Wright ’s i ndictment resulted from the completionof

the arrests of

several members of the Avenge rs inOhio and M ichiga

n, and the time it took

to place Powell in the Witness Protection Program and to secure the safety of Powell’s family.

The decis ion o f a magi strat e judge to seal an indictmen

t is accorded “great deferenc e.” United States v. Burnett, No. 91- 1693, 1992 WL 92669 (6th Cir. Apr. 24, 1992) (per cu riam) (unpu blis hed) (c itin g United States v. Ramey , 791 F.2d 317, 321 (4th Cir. 1987)). We review a district cou r t’s refu sal to dismiss an indictment for an abuse of discretion. United S ta tes v. Middleton , 246 F.3d 825, 841 ( 6th Cir. 200 1); see United States v. Bracy , 67 F.3d 1421, 1425 (9th Cir. 1995 ) (holding that a di str ict court’s decision to dismiss an indictmentbased on a claim of improper sealing is reviewed for abuse of discretion). The factu al findings of the district court are reviewed for clea

r error. United Sta tes v. Bro wn , 169 F.3d 344, 348 (6th Cir. 1999). 10 United States v. Wright No. 01-2569

1. Statute of limitations

The T hird Superseding Indictment wa s unsealed and reopened on January 25, 2000, eighteen months after the statute of limitati ons on Count One, the use of int

erstate
commerce facilities in the commission of murder for

hire, and CountThree, interstate travel in aid of a crime of vi olence, expired. This Court has addressed the legality of sealing indi ctment s only in a brief, unpublished opinion. Burnett , 1992 WL 92669, at *3 (“ A sealed indictment that is not opened until after the expiration o f the statute of limitations will not bar prosecution unless the defendant can show actual prejudice.”) (citi ng United Sta tes v. Sru lowi tz , 819 F.2d 37, 40 (2d Cir.), cert. denied
, 484 U.S. 853 (1987)). Our opinion in Burnett

is consistent with other circ ui t courts that have considered

the issue of sealin g indict ments in more detailed, published opinions. Se

vera l courts have held that when a
s ea led indictment is not opened until after the expiration of the statute

of limitations, the statute ordinarily is not a bar to prosecution

if the indictment was timely filed. See Ram ey , 791 F.2d at 320; United Sta tes v. Mu se , 633 F.2d 1041, 1041 (2d Cir. 1980) (en banc), c ert. den ied , 450 U.S. 984 (1981). Other co urts also have held that the filing of an indictment under seal will toll the statute of limitations if the indictment
was properly sea

led. See Bracy , 67 F.3d at 1 426; United States v. Sharpe
, 995 F.2d 49, 52 (5th Cir. 1993) (per curiam); Srulowitz
, 819 F.2d

at 40. However, the Tenth Circuit holds the minority

position tha

t the se a ling of an indictment does nottoll the statute of limitations . See United States v. T hompso n , 287 F.3d 1244, 1251-52 (10th Cir. 2002) (refusing to follow the other circuits and hol ding that the statute of limitations is not tolled while an indictment is under seal). We follow the

rule in our decision in Burnett

and the ma

jority of our sister ci rcuits in f inding that a

timely filed and proper

ly sealed ind ict ment tolls the statute of limitations. We therefore must consider two factors when dec iding if a sealed indictmentmay

be opene d after

the statut e of lim itation has expired: (1) whether

the indictment was properly se aled, and (2) whether

the defe ndant has shown ac tual pre

judice f rom aNo. 01-2569 United States v. Wright 11

4 W rightasks us to consider the three- part inquiry set fort h in United States v. Thompson
, 104 F. Supp . 2d 1303 , 1306-07 (D . Kan.), modified by , 1 25 F . S upp . 2 d 12 97 ( D. Ka n. 20 00)
, aff’d by , 287 F.3d 124 4 (1 0th Cir. 2002), to determine whether a sealed indict ment tolls the sta tut e of l imi tations. The test

inst ructs courts to consi der: (1) was th e origi nal decis ion to sealthe i ndictment proper; (2) if properly sea led, was the length of ti me the i ndictment was seal ed reasonabl e; a nd (3) was the defendant preju diced by the sea ling of the indictm ent. W e dec line this inv it ati on to adopt the test i n Thompson becaus e th e fa cts of that case are dist ingui shable. In Thompson , th e co urt fo und that the gover

nment had not shown that t

he indi ctment was seal ed for a l egit imat e prosec utori al purpose. Therefore, because we find the lengt hy test in Thompson

unne cessa rily cumbersome, we find that the questi on in t his ca se is better answered without t

he use of the test articulate d by the district co urt in Thompson

. sealed indictment bei ng opened bey ond the statute of limitations

. 4

We first must determine whether the indictment agai ns t Wright was properly

sealed. The Government has the burden of setting forth a justification for sealing theindictment. See Srulowitz
, 819 F.2d

at 41. We have not specifically answered the question of what is a proper purpose fo r s ealing an indictmen t. However, other circui ts have held that any legitima te prosecu

torial pu rpose or public interest may support the seal ing of a

n indictm ent. Se e United States v. DiSalvo
, 34 F.3d 1204, 1218 (3d Cir. 1994 ) (an indictment may be seale d for any

legitima te prose cutoria

l purpose or in the public inte

rest); Sharpe , 995 F.2d at 52 (same); United States v. Richa rd , 943 F.2d 115, 11 8-19 (1 st Cir. 1991) (same); United S tates v. Lakin , 875 F.2d 168, 170 (8th Cir. 1989) (same); Srulowitz , 819 F.2d at 40 (same ); Ramey , 791 F.2d at 321 (same). Accordingly , we look t o th e Government’s request to seal the indictment and evaluate that request to determine whether any legitimate pro s ecutorial purpose or public interest supports the seali ng of the indictmen t. 12 United States v. Wright No. 01-2569

The district court conducted a hearing on Wright’s motion to dismiss and found that the indictment was sealed for a valid purpose a

nd that the

length o f th e sealing was reasonable: “The government’s re as ons with respect to the confidential informant

as set fo rth

today and as se

t forth in the gover nment’s r esponse, in this Court’s opinion, justified the 18-month delay betw een the date of sealing and the date of
unse alin g.” Wright argues that because Powell’s testimony was unnecessarily

cumulative to the testimony of Chase and Kel se y, Powell’s protection was not a legitimate reason f o r sealing the indictment.

We find that

the distri ct court

did not abu se its discreti on in holding th at th e i nd ic tm en t w as pr op er ly s eale d. The protection

of Powell and the need

to avoid compromising an ong oing i nvestig ation fa

lls within the rang e of per missible
reasons for sealing an indictment. See, e.g. , Bracy , 67 F.3d at 1426 (finding that the need to protect the safety

of potential witnesses justified the sealing of an indict ment); DiSalvo , 34 F.3d at 1219 (concluding that the sealing of an indi ctment to avoid compromis ing an u

nrelate d trial wa s a le gitima te prosecutorial purpose). The Government’s investigations of the Aven gers i n O hi o, wh ic h i nv ol ve d P ow el l e xt en si ve ly,
were extremely

important

and resu lted in the indictment and convictionof nineteen individuals on various drug and racketeering char

ges.
As discussed, an indictment may be sealed for a

multitude of reasons, including the protection of potential witnesses involved in an unre lated inv estiga tion. At the time that the indictmentwas sealed, the Government was cond ucting an investigation

of th e Avengers in Ohio and Michigan a nd Powell was an informant who was essential to the investigation. As the Government noted at the hearing on the motion to dismiss, it

decided to dismiss the First Superseding Indictment

inorder to protect the identity of Powell while the investigation

continued. The prosecut orargue d that this decision“was a collective decision up to the highest level of my office, the U.S. Attorney’s offic e here, the U.S. Attorney ’sNo. 01-2569 United States v. Wright 13

office in Cleveland, the Federal Bureau of Investigation

at the highest levels in Detroit and Cleveland. . . .” The Government

concedes that it

thought that the investigation of the Avengers would end in 1997, but that it in fact did notend until late 1999. When the indictment was issued and sealed in1998, the

investig ations we

re conti n ui ng and the Government

wanted the identity

of Powell, an important witness for the c

rim es allege dly

committed

by Wr ight, to remain concealed.

The argument advanced

by Wright

misunderstands the law relatingto the seal ing of a n indictme

nt. Wrigh

t asks this Courtto examine Powell’s testimony ex post facto and det ermine whether

the evide

nce he provided j ustified t h e sealing of the indictment in the first instance. This we decline to do. It is not our task to evaluat e th e testimon y a ctually provided by Powel l at Wright’s trial and

then asc ertain whether it was significant

enough to justify the se aling of the indictme nt. We look only to the evidence pre sented before the magist rate j udge and the district court to determine if the indictmentwas sea

led for a legall y va lid purpos e. Given

this evidence, we find that the in dictment was sealed for the legitima te prosecutorial purpose of protecting the identity of Powell, a Gover

nment informant who was involved in an unrela ted investig ation and

provid ed substantial corrobo rating evidence in Wright’s trial regar ding the murder of Moore. Furthermore, courts ha

ve held that a defendant must show “substan tial, irreparable an d actual prejudice” when a properl y sealed indictment is unsealed bey ond the st atute of limitations

. Edwards , 77 7 F.2d at648; see also United St ates v. Mitch ell , 769 F.2d 1544, 1547 (11th Cir. 1 985)

. This Court in Burnett

stated, “A sealed indictment that is not opened until afte r the expir

ation of the statute

of limi tation s will not bar prosecution unless the defendant can show actual prejudice.” 1992 WL 92669, at *3 (citi ng Srulowitz , 819 F.2d at 40). The Def

endant has the burden of showing that prejudice occurred. Muse , 633 F.2d at 1043-4 4. T he discussion regardi ng actual prejudic e is also r elevant in 14 United States v. Wright No. 01-2569

discussing Wright’s

Due Proc ess claim

and, ac cordingly, will be discussed in the following section.

2. Due Pro cess
A success ful Due Pr

ocess cl aim for pr

e-indic tment d e lay requires that a defend ant es tabli sh: (1 ) prej udice to hi s righ t to a fair trial, and (2) that the delay wa s intentionally caused by the government in order to gain a ta c tic al advantage. United Stat es v. Br own , 667 F.2d 566, 567 (6th Cir. 1982);

see al so Dog gett v. United States , 505 U.S. 647, 651-52 (1992); United States v. Marion , 404 U.S. 307, 32 4-25 (1971). The distr

ict cour t found tha

t Wright fa iled to establish prejudice: Furthermore, the Court is not satisfied thatthe defendant suffered substantial prejudice as a result of the delay

. . . . Defendant

was aware as early

as 1997 tha t the government

was, quote, accusing him, unquot e, wi th conduct relating to charges conta ined in the third supersedingindictment. . . . To the extentthat t he defendant’s primary

alibi witne ss is his wif

e, the Cou rt is notpersuad

ed that he

r memory of rele v ant events has been adversely

affected by

the pas sage of time. The government

alleges that, quote, h er swo rn [g ra nd ju ry] testimony regarding his al l eged a

libi was pr

eserve d in April of 1997, unquote. Wright argues that he was prejudiced by the delay betwe en the time of his

initial arrest in April 1997 and the unsealing of the i ndictment in January 2000 because : (1) his memor y regarding his alibi and the memories of other alibi witnesses had faded; (2) the Government used the delay agains t him in cross-examining his alibi witnes ses, Scott and Charles Ferguson, about their alleged loss of memor y ; (3) ce rtain Avengers refused to testify a s witnesses; (4) records, such as telephone records, wereno longer available; (5) his wife had
a child in the belief that he woul d not be prosecuted; and (6) his wife suffered emotional trauma.No. 01-2569 United States v. Wright 15

Wright’s first claim that he wa s prejudiced because of witnesse s’ loss of m em ory must f ail a s a ma

tter of la w. We have held that

loss of mem

o ry is a n insuffic ient rea son to establish prejudice. Payne v. Rees , 738 F.2d 118, 121-22 (6 th Cir. 1984) (citations omitted). Moreover, as the district court found, Wr ight ca

n provide

no eviden

ce to supp ort his argument that the witnesses’ memories had faded. His wife, Br e nda, testified both at trial and before the grand jury that she and Wright “partied” together at their home on the night of Moore’s murder. It wa s not until trial that Brenda’s memory “faded” and she testified that she w as “lat er informed” that Scott was part ying with them on the nig ht of the murder. Scott and Ferguson, Wright’s ot he r alibi witnesse s, testified in detai l regarding the nig ht of Moore’s murder. Scott

testifie d that she

could not r

ecall c ertain e

vents only after she was confronte d wi th the contradictory testimony of Powell regarding Moore’ s whereabouts on the day after Moore’s death. Furthermore , the record does not support Wright’s assertion that the Government used Scott’s lack of m emory to impeach her. The trial record also lac ks evidence to support Wright’s argument that the Government attempted to im pe ac h F er gu so n b y c halle ng in g h is me mo ry. As with Scott, the Government properly questioned Ferguson to ascertain whether he was re member ing the night that Moore was killed or a different night tha t he spent partying with Wrig

ht. Wright’s claims that witnesses refuse d to testify is without merit. He has presented no evidence conc ern ing who these witnesses are or how the delay inthe indictment corresponds to their ina

bil it y to testify. Similarly , Wright has presented
no evidence that various records beca me unava ilable to him because of the delay. I

ndeed, h e made no requests for any records during the trial. He only vaguely references “telephone record s” in his br ief on ap peal, but present s nothing to support hi s contention that either those records
were not available or t

hat the allegedly

unattainable records were relevant to his defense. 16 United States v. Wright No. 01-2569

Wright’s next claims of prejudice are related to the alleged effect of the delay on his fa

mily. First, Wright arg

ues that he had a child because he believed that he would no t be prosecuted. There is absolutely no c ase l aw to support the argument that the birth of a child c an be use d to suppor t a claim of prejudice from a pre-indictment de la y. Furthermore, his wife became pregna nt before the Fi rst Superseding Indictment

was dismissed in 1997 and theref ore, the delay had no bearing whatsoever

on Wr ight’s family planning decision s. Next, Wr igh t claims that the delay ca used emotional strain on his wife, who testified that she was taking antidepr essantsand oth er me dication s at the time of tria l. Again, Wr ight cancite to no case la w that supp orts his argumentthat emotional trauma to a witness establishes prejudice. Furthermore, Wright cannot support his assertion that his wife’s emotional trauma was a result of the delay , and not sim ply the result of the stress of the trial and a 1 99 9 automobile

accide nt. Wright is unable to satisfy his “heavy burden to prove that pre-indictment

delay ca used actual prejudice.” United States

v. Butz , 982 F.2d 1378, 1380 (9th Cir. 1993). Because Wright is unable to establish prejudice, we need not consider the second part of the Due Pro cess inqu iry , in which a defendant must establish that dela y w as intenti onally

caused i n order t o gain a tact ical ad vantage. Furthermore, Wrig ht’s statute of limitations claim als o must fail because he is unable to show actual prejudice. Accordingly , the district court did not abu se its di scretion

in deny ing Wrig ht’s motion

to dismiss t

h e indictmentbased on violations of the statute of limitations and the Due Process Clause.

B. Prosecutorial Misconduct Wright argues that the improper reference to a Government exhibit and statements made by

the prosecutor during closing
argumen ts rose to th e level o f prosec utorial mi sconduc t. Where a defend ant makes no objection to a prosecutor’s stat ements at trial, the standard of review is plain error.No. 01-2569 United States v. Wright 17

United States v. Collins , 78 F.3d 1021, 1039 (6th Cir. 1996). “To establish

plain er ror, a de fendant

must show ( 1) that a n error occurred in the district court; (2) that the error was plain, i.e., ob vious or clear; (3) that the error af fected defendant’s substanti al r ights; a

nd (4) tha t this adve

rse impac t seriousl y affected the fair ness, inte grity

or public reputation of the judicial proceedings.” United States v. Koebe rlein , 161 F.3d 946, 949 (6 th Ci r. 199 8) (ci ting Johnson v. United States , 520 U.S. 461, 466-67 (1997)). A defendant has the burden of pr oving tha t the obvio

us deviat ion from a

legal r ule was so prejudicial as to affect the outcome of the district court proceedi n gs. United States v. Olano , 507 U.S. 725, 732-34 (1993).

1. Admissi

on of a Gov

ernment exhibit Wright argues that the Government refer enced d ocuments fromthe I nternal Revenue Service in its closing argument that
were not admit

ted into evidenc e. Howe ver, at t rial, de fense counsel acknowledged to thejury that the documents marked Exhibit 56, had been admitted into evidence: “I didn’t ha ve onmy e xhib it li st that I mark the exhibits that come in, Number 56, and so that’s why I spoke out of turn. Ap pa re nt ly, it has bee

n put in, an

d I jus ts crewed up and missed it.” In his reply

brief, Wright acknowledges that “[a] closer exam inati on of the record, after review of the Government’s Brief on Appeal, indicates that the exhibit was

‘ sli pped in’ as Exhibit 56. . . .” Wright’s argument concerning

t he exhibits clearly has been c onceded and there was no prosecutorial misconduct in this instance. 2. The Government’s closing argument

Wri ght also arg ues that the Gover

nment mischaract

eriz e d evidence and deme aned his c ounsel in its closi ng arg ument. First, Wright claims that the Govern men t mischaracterized the testimony of Powell reg arding a conversation between Powel l an d W ri gh t. Pr es um ab ly, Po we ll ’s te st im on y w a s offered to show that Wr

ight acted suspic iously

by r efusing to 18 United States v. Wright No. 01-2569

return to Columbus, the city

where M o or e was murdered, a fewdays afte

r the murder. The Government stated that “[w]h en L arry

Joe Pow ell su

gge sted [ to Wri ght], ‘We better go do wn and fi

nd out wha

t happene d, that’s

you r jo b, ’ ba si ca ll y. What does he (t he Defendant) say ? ‘No, I’m not goingto Col

umbus .’” Wr

ight a rgues t hat this wa s a mischaracterization

of his alleged conversation w ith Powell because Powell testified that the conversation took place as follows: Q. What w as y

our d iscus sion w

ith [Wr ight ]? A. Isaid something to the effect that may be we should go down there. And - Q. Go where , to Columbus ? A. Yeah. Q. For what purpose? A. Just for supp ort.

. . . A. But [Wright] did

n’t want t

o go d own there and I figured, well, he h ad his reason s for n ot wan ting t o go down there. Q. Whatdid he say to y

ouabout why he

didn’t wa

nt to go down? A. Just no. He was firm on not wanting to go down there.

Becau se Wright’s counsel did not object to the Government’s stateme

nts, w e review only

for plain error. Giventhe testimony

of Powell, the Gove

rnment’s statemen ts regarding that testimony were re asonable and there was no obvious deviation from a legal rule. Accordingly , we do not f ind prosecutorial misconduct based on the Government’s ch ar ac te ri za ti on of

Po we ll ’s te st im on y. Next, Wright argues that the Government demea ned defense counsel i

n his closin

g arg uments b y stat ing to the ju ry:
Mr. Amberg, I

have a question for y

ou. How can y

ou be
so fa r o ff ? What you j ust listened to had nothing to doNo. 01-2569 United States v. Wright 19

with what went on in this case. Every re presentation he made virtually was based on the questions he asked, not from the answers that come from the stand. Wright argues that our holding in United States v. Carter , 236 F.3d 777 (6th Cir. 2001), con trol s, and the conduct of the prosecutor

in this case is similar to thatin Carter . In Carter , the prosecutor

misstated the testimony of a key identifica

tion witness and repeatedly

insisted thatdefense counselwas lying about witnesses’ testimony. 236 F.3d at 784-85. We stated: “Whenreview ing chal lenges to a prosecutor’s remar ks at t rial, we examine the prosecutor’s comments withi n th e co ntext of the trial to determine whether such commen t s amounted to prejudicial error.” Id. at 78 3. “[W] e conclude[d] that the prosecu

tor’s miss tatement

of the ev idence i n this cas e

. . . was not

only error b ut also wa s plain

error, ” and “w e also conclude[d] that

the prose cutor’s

claims that defense counsel was ly ing wer e not only error b ut also were pla

inerror.” Id. at 785. We ordered

a new trial because we found that “the pro secutor’s actions a

ffecte d [the Def

endant’ s] substanti a l rightsand wa

r rant reversal.” Id. at 785. No such prosecutorial misconduct occurred during Wrig ht’s trial.

Th e defense

did not obje ct to the G overnme nt’s reb utta l argument and the statements made by the G overnment do not rise to the level of plain error. See Unite d States v . August , 984 F.2d 705, 714 (6th Cir. 1992) (per curiam) (finding that t he de fendant did not object and therefore waived a ny obj ectionto the remarks on appeal unless the rem ark s constituted

plain error or a defect

affecting substantial rights). Inclosing arg

u ments the G overnme

nt critic ized defe

nse counsel for

making representations based on questions posed to witnesses rather than the answers that they provided. The Government

was attempting to show the jur y that the statemen ts made by def

ense counsel wer e no t supported by actual testimony on therecord and the Government’s method of making t his p oint w as proper. Indee d, the Government objected to defen se counse l’s char acteriza tion of the

facts 20 United States v. Wright No. 01-2569

during the defense’s closing statements and the district court agree d that def

ense cou nsel mischaracte

rized fac ts: [Prose cuto r]: Oh, objectio n, Your H onor. Thi s is enough of this. Counse l, 90 percent of what he’ s talking

about is not in evidence in this case. THE COURT: Mr. Amberg, stay with the evidence that
came in t his case

and the ju

ry will be ins tructed

to base their decision –

. . . only on th e evidence that came into this case and y ou will be instructed that

la wye r’s comments are not evidence.

Ac co rd in gl y, we find that the statements made by the pro sec utor

during c losing a

rgumen ts do not constitute pl ain error and we do not find prosecutorial misconduct.

C. Motio n to Suppress
Next, Wright argues that

the district court erred

in denying his motion to suppress evidence seized pursuant to a searc h
warran t. W rightargue s both that the execu

ting ag ents conducted

a gene ral se arch tha t resulted in the seizure of items notlisted on the warrant and that the warrant was ba sed on a stale affidavit.

Inreview ing a challenge to a motion to suppress, we review fa ctual findings for clear error a nd review legal determinations de novo

. United States v. Williams , 224 F.3d 530, 532 (6th Cir. 2000).

1. General search Wright simply argue s that he was the victim of a g eneral warrant because several pieces of e vidence were seized from his residence that were not listed with particular i ty on the search warran t. Thoug h Wright does no t l is t t he “i ll eg al ly” seized evidence, the Governmen t c oncedes that “severalNo. 01-2569 United States v. Wright 21

items”were seized that were not spec ifica lly listed on the warrant cover sheet. The

Government arg

ues that the items
were seized because they we re clearly c ontraband or direct evidence of the crime and subject to seizure under the “plain view” doctrine. At the suppression hearing, the district court found that ag ents “have a

right to seize those things, number one, that are evidence of a crime that a re in plain view. And
se co nd ly, inthis s ituat

ion, I belie ve ha d a ri ght t o seiz e items that related to the two c

rimes tha t were id entified as the ba sis for the search warrant.”

It is well-settled that items to be seized pursuant to a search warrant must be de scr ibed with particularity to pre vent “the seizure of one thi

ng unde r a warr ant describi ng anot

her” in violation of

the Fourth Amendment. Marron v. United States
, 275 U.S. 192, 196 (1927). However , in United States v. Brown , 49 F.3d 11 62, 1169 (6th Cir. 1995), we held that “even evide nce ‘not described in a search warra nt may be seized if it is “re asonably

related to the offense which formed the basis for

the se arch wa rrant .”’” (q uoti ng United States v. Fortenbe rry , 860 F.2d 628, 636 (5th Cir . 1988) (quoting United States v. Munroe , 42 1 F.2d 644, 646 (5th Cir.), cert. denied , 400 U.S. 851 (1970))).

The items seizedin this case were sufficiently related to the two crimes charg ed to fall within the scope of the search
warran t. Wright do es not poin

t to any specific items in his brief on appea l; howeve r, in his brief in

support of his motion to suppress , Wright c laimed tha t the age nts executing the warrant illegally seized

a leather vest in the

Avenge r’s colors, a holster, a r ed addr ess book, a brown address book, a newspaper article, documents, and a letter.

All the items seized were related to the crimes char g ed in th e affi davit attached to the search warra nt because they indicated Wright’s involvement in the drug conspiracy and the murder o f Moore. The vest was e vid ence of Wright’s involveme

nt with the Avengers motorcy

cle club; the holster indicat edWrig ht’s possession of a gun; the address books 22 United States v. Wright No. 01-2569

contained the names and phone numbers o f co-conspirators including Chase an

d other A venge rs; the ne wspaper article about the murder of Moore s ho wed that Wright had an interest in the cr ime; the do cumentslinked Wright to his alias “Arthur Anderson”; and the letter from Chas e desc r ibed the
conn ectionof

Wr ig ht an d C ha se to th e d ru g c on sp ir ac y. Ac co rd in gl y, the itemswere seized pursuant to a valid search warrant and they related directl y to the two crimes charged and the information provided by the a ttached aff

idavit. See United Stat es v. Da le , 991 F.2d 819, 847 (D.C. Cir. 1993) (“[T]he common-s ense re adin g o f the warrant is that the government

could seize a variety of spe cifically identified document s and any other records that related to the [crimes de s cribed in the] affidavit.”). We affirm the decision of the districtcourt denying

Wright’s mo tion to suppress based on his allegation that agents conducted a g eneral search.

2. Stalene

ss of affidavit Wright also argues that because the sea rch warrant was based on information that was stale, the mag istrate j udge di d nothave pro

bable ca use to issue the

warran t. Wright argues that the infor mation co ntained i

nthe affidavit used to secure the warrant was three y

ears old and that there was no probable
cause to believe that Wright’s Las Vegas residence contained any items related to th e crimes charged. A mag istrate’s finding of probable cause for the issuance of a war rant is accorded “great deferenc e.” United States v. Blair , 214 F.3d 690, 696 (6th Cir. 2000) (ci tati ons omitted ). “[W]e must determine whether , in lig ht of t he totality of the circumst ances, the magistrate had a ‘substantial basis’ for concludingthat ‘a search wo uld un cover evidence of wrongdoing.’” Id. (quot ing Unite d States v. Sonagere , 30 F.3d 51, 53 (6th

Cir. 1994)). “[T]he duty of a reviewing court is simply to ensure that the magistrate had a substantia

l basis for concludi ng that probable

cause existed.” Illinois v. Gates , 462 U.S. 213, 214 (1983).No. 01-2569 United States v. Wright 23

Moore was murdered

in 1993 and the drug conspiracy took place b etween 1 993 and 1996. In United States v. Henson
, we stated that “[t]he function of a staleness test in the search warrant context is not to crea

te an ar bitrary time limit a tion within wh ich dis covered facts must be presented to a magistrate.” 848 F.2d 1 374, 1382 ( 6th Cir . 1988). Instead,
we held that the ques t ion of staleness depends on the “inh erentn ature of the crime.” Id. In determining whe ther the informationprovided

to establi sh probab le cause is stale,
we have held that many questions must be considered including the nature of the cr ime and the na

ture of the items to be seiz ed. I

d. (stating that courts should not determine stalene ss “sole ly

by coun ting the day s on a

cale ndar ”). We
a lso have stated that “a court considers the followi ng four factors in deter

minin g wheth er a pro

bable ca use findi ng is stal e: ‘the defendant’s course of conduct; the na ture an d durationof the crime; the nature of the relevant evidence; and any corroboration of

the older and more recent information.’” United States v. He l ton , 314 F.3d 812, 822 (6th Cir. 2003) (citing United States v. Czuprynski , 46 F.3d 560, 567 (6th Cir. 1995) (en banc)).

Inreviewing the totality

of the circumstances, we find that probable cause existed for the magistrate judge t o issue the
warran t. The aff

idavit provided by

Agent Ga ry Boggs requested that agents be allowed to search Wright’s residence for motel records/receipts, a medallion, a passport, and identificationin the name of A rthur And erson. T he affi davit stated that Boggs a

nd other DEA and FBI

agents had been conductingan investigation of a drug distribution organization

within the A venge

rs and tha

t throug h this investigation, they had lea rned that Wright wa s involved

ina cocaine distr ibution conspiracy and a murder for hire. The affida vit describ ed the na

ture of the drug

operati ons with whichWright

was involved. The affidavit stated that Wright and Moore we

re membe rs of the Avenge rs, were involved i

n the same drugco ns pi ra cy, and that the murder of Moore was a part of a dispute within the drug conspira cy . The af

fidavit also stated that Wright was using the alias of Arthur Anderson 24 United States v. Wright No. 01-2569

at the time of

the murder and that

Wright was presently

using the alias in Las Veg as, Nevada, where he reside d at the time of the warrant. Regarding the medallion, the affidavit stated that Moore alway s wore a medallion with the Av engers’ logo and that it had not been found at the murder scen e. Th e affida vit stated that investigators believed that Wright may be in possession of the medallion as a “trophy ” for the murder.

As the district court noted, the inf orm ation regarding the medallionmay have be e n stale because it was unlikely that Wright would have possession of such an item three y ears after the crime . Howeve

r, the oth er infor

mation contained i

n the affida vit was suf

ficient t o support a

fin ding that Wright
was involved in a drug conspiracy and the murder of

Moore. Unde rth e Helton factors, the probable cause deter mination
was not stale because of Wright’s co ndu ct, the continuing nature of the drug cons pi racy, the nature of the evidence regarding the crimes charged, and the corroboration of older
an d more recent information about Wright’s crimes lear ne d throu gh the inves tigation of the Av engers. In

light of the “great defere nce” we give to t he magi strate

judge’s decision, there is nothing

in the af fidavit that leads us to conclude that the mag istrate j udge di d not have a substan tial basis to issue the warrant. There was extensive evidence provi ded in the affida vit for the magistrate judge to conclude that a search of Wright’s house would lead to the seizure of ev idence of wrongd oing. Accordingly , although several y ears passed between the alleged crimes and the iss uance o f the war rant, the information co ntai ned in the affidavit was relevant and timely regar din g the seizure of certain evidence from Wright’s residence. We therefore aff irm the district court’s denial of the motion t

o suppres s.
D. Admission of Evidence

1. Hearsa

y stateme nts
All evidentiary

rulings, including hearsay, are reviewed for abuseof discretion

. T

repel v. Roadway Express, Inc. , 194No. 01-2569 United States v. Wright 25

F.3d 708, 716 (6th Cir. 1999). Wright argues that the district court e rred in admitting a hearsay

statement made by L

eah Moore, the wife of Mo ore. The testimony

was elic ited to show that W

r ight le arned the whereabouts of Moore by having his girlfriend call L eah. Leah testified that she had a conversation

with Bre nda, then-girlf

riend of the Defe ndant,
onthe day of Moore ’s mur de r. She also testified that she heard Brenda relay

the information regarding Moore ’s wherea bouts to Wright. Defens e counsel objected, but the district court overruled the objection. Le ah’s testimony was as follow s:
A. Brenda called me. Q. Brenda who? A. [Wright’s] girlfriend. Q. Did you recog

nize her voice? A. Yes. Q. Was there any

one else in the area of the phone that you could hear

? A. [Wright] was in the background. Q. Wh at di d B re nd a s ay? Mr. Amberg: Hearsay . Objection. [Prose cuto r]: Your Honor, I believe again, the answer

is going to be a question. A question is not hearsay

. THE COURT: Go ahead. THE WITNE SS: She aske d me wher e my husband w as.
The Government argues that L eah’ s testimony about Brenda’s question was not

hearsa y be cause “a question is by definition not hearsay .”

Under the Federal Rules of Evidence, hearsay is defined as “a statement, other than one made by the declaran

t while testifying at the tri al or hea

ring, of fered i n evidenc e to prove the truth of the matter asserted.”801( c). While this Court has not specifically a

ddressed the issue pre sented by Wright,
a question is typically

not hearsay

because it does not assert the truth or f

alsity of a fac t. A question

merely seeks answers 26 United States v. Wright No. 01-2569

and usually has no fa

ctual content. See Quartararo v. Hanslmaier
, 186 F.3d 91, 98 (2d Cir. 1999) (“‘An inquiry is notan “assertion,” a

nd acc ordingly is not and c annot be a hearsay statement.’ United States v. Oguns , 921 F.2d 442, 449 (2d Cir. 1990) (quot ing Inc. Pub. C orp. v. Manhattan Magazine, Inc. , 616 F. Supp. 370, 388 (S.D.N.Y.1985), aff’d
, 788 F.2d 3 (2 d Cir. 1986 ))”); see also United States v. Lewis , 902 F.2d 1176, 1179 (5th Cir. 19 90) ; United Sta tes v. Ve st , 842 F.2d 1319, 1330 (1st Cir. 1988).

Inthis case, Brenda’s question to Leah can be summarized
a s “ Where is y

our husba

nd?” In making that statement, Brenda is not asse

rting any thing. Sh e is only

attemptin

g to extract information from L eah. Thi s inquiry from Br enda is notbeing used to prove the truth of thematter asserted and therefore, as the Go vernment ar gu es , i t i s n ot he ar sa y. Accord ingly, the distr

ict cour t did not ab

use its disc

retion in allowing the testimony to be pr esented.

2. Co-con

spirators st

atements Wright argue s that the d

istrict c ourt err

ed in admitting tape record ings that Kelsey

made with

Chase an

d Burke while Kelsey was cooperating with the Government. Wright arg ues that Ex h ibit 50(a), a recorded conversation betwe en Kelsey and Chase on August 2, 19 96, andExhibit 52, a recorded conversation

between Kelsey

and Burke on September 18, 1996 , were erroneously e ntered into evidence over the defense’s objections . W right ma kes thre e argu

ments rega rding the recordings: (1) that Kelsey was no longer a conspirator

when the record ings w er e made, (2) that Wright
was not a member o f the con spiracy, a nd (3) that the taped conversations were not in furtherance of the conspiracy , but rather just “idle chatter.”

Fed era l Rule of Evidence 8 01(d)(2 )(E) sta tes that a stateme ntis not hea

rsay if “The s tatement

is offer ed aga in s t
a party and is . . . (E) a stateme nt by a cocon spirator

of a par ty during the cour se and

in fur ther ance of the cons piracy .” WeNo. 01-2569 United States v. Wright 27

review factual determinations underly ing statements of
co -conspirators admitted under Federal Rule of Eviden c e 801(d)(2)(E) for clear error. United Sta tes v. Ge ssa , 971 F.2d 1257, 1261 (6th Cir. 1992) (en banc).

The di stri ct cou rt adm itte d the r ecordi ngs, s tati ng:
The Court is satisfied . . . that there is sufficient evidence to support a conspiracy , and the Court is satisfied that the statemen ts as descr

ibed by Mr. Alle n in Exhibits 50(a) and52, are in furtherance of the conspira cy and re lated to the consp i racy a

nd related to Mr. Wright’s involve ment in the conspiracy , if of course, the jury believe s those fa

cts.

We have he ld that the

Government may

use the st atements of co-conspirators gained

from a cooperating conspirator under 801(d)(2)(E) if

th e G ov er nm en t s ho ws by a preponderance of the evidence

“(1)that a

cons piracy exi ste d, (2) that the defendant against whom the hearsay is offered was a

member of the conspi r acy a

nd, (3) that the hearsay

statement was made in the course and in furtherance of the c onspiracy.” Hamilton
, 689 F.2d

at 1268 (quoting United States v. Vinson
, 606 F.2d 149, 152 (6th

Cir. 1979), following United States v. Enright , 579 F.2d 980 (6th Cir. 1978)).

Under Rule 801(d)(2)(E) and Hamilton , the statements of
co -cons pirators gained from a cooperating conspirator may be used by t he Gover nment. The

refore , as a ma

tte r of law, Kel sey’s statements may not be excluded solely because he
was cooperating with the Government at the time that the tape recordings were made. Wright also argues that the Government has not shown that he was a member of conspiracy or that the statements on the record ings were made in furtherance of the conspiracy

. See United States v. Hamilton , 689 F.2d 1262 (6th Cir. 1982). We disagree with Wright’s argument that the Gove rnment did notshow by a pre

ponderance of the evidence t hat he wa s a 28 United States v. Wright No. 01-2569

member of the conspiracy . There was extensive evidence present ed that Wri ght, Kels ey , Chas e, Rui z, and Burke were all involved in the cocaine conspiracy . Kelsey alone testified to Wright’s extensive involvemen t in th e d ru g c on sp ir ac y, which included

arrangi ng sto rage facilities for the drugs and assisting in the stealing of airplanes to pay for shipments of cocaine. Wright was referenced in the conversations between K elsey and Chase and Wright’s role as a conspirator wa s shownby the Governme nt by a prep o nderance of the evidence.

W e also disagree with Wright’s arg ument that the conversations were ju st “id le c hat ter .” In their co nversat ions, Kelse y and Chase discussed how Wright was demanding ei ther money or coc aine for the theft of a plane. In th e conversation

between Kelsey

and Bu rke, they discusse d paying Wright for

the theft of an airplane with 100 kilogra ms of cocaine from a transaction that they were considering. The districtcourt

found these conversations were in furtherance of the c ons piracy

as char ged an d not just “ idle cha

tter.” T his finding of fact

is not clearly er

roneous given the evidence of the conspira

cy provided in this case. See Brown , 169 F.3d at 348. Accordingly , we find that the district

court did not abuse its discre tion in admi

tting the taped re cording s. E. Supplemental Arguments Wright has submitted a pro se

suppleme

ntal b r ief to this Court. In his brief, Wright arg ues that the Government’s applicationof Federal Rule of Criminal Procedure 6(e) (4), the rule authorizin

g seali ng of the indictment, violates of the statute of limitati ons, th e Due Process Clause, and the principles of sep ara tion of powers. Wright’s first two argume nts are mer

ely reiterations of the arguments raised by his at to rn ey i n h is ap pe ll at e b ri ef an d h av e a lr ea dy b een addressed. His last argumen t, t hat the sealing of the indictmentby the magistrat e jud ge violates separation of powers, has never bee n presented previously to the district court or this Court.No. 01-2569 United States v. Wright 29

We do not rev

iew arg uments tha

t are ra ise d for the first time on a ppeal. See Mich. Bell Tel. Co. v. Strand, 305 F. 3 d 580, 590 (6th

Cir. 2002). This Court subscribes to the theory that “[i]n order to preserve the integrity of the app ellate structure, we should not be considered a ‘second shot’ for um, a fo ru m w he re se co nd ar y, back-up theories may be minted for the first time.” Isaak v. Trumbull Sav. &Loan Co. , 169 F.3d 390, 396 n.3 (6 th Ci r. 19 99) (q uoti ng Estate of Quirk v. Comm’r of Internal Revenue , 928 F.2d 751, 758 (6 th Cir. 1991)). Accord

ingly, we dec line to revi ew Wright’s separation of powers argument. Wright also submitted a pr o se “motion for sanctions pursuant to Federal Rules of Appellate Proce dure 38 and 47(b)” on January 16, 2003. He argues that the Government made “multiple

errors ” and “f

alse, misl eading

statemen ts” in the proof brief it submitted to this Court. On J an ua ry 29, 2003, the Government submitted its final br ief to t his Court accompanied

by a letter exp laining that it had corrected the two mistakes in its citations that Wright had noted in his January 16 motion. On June 1, 2003, Wrig ht submitted a letter to this Cour

t that w as constru ed as a motion to issue sanction s. In that letter, Wright arg ued that the Government had made some corrections to citations in its brief, but that several o ther

factual mistakes existed and that the Government’s brief is “riddled with errors.” He arg ues that the changes madewere insufficient to correct all of the errors and therefore the Government should be sanctioned.

Rule 38 is a rul e to prote ct appellees from frivolous appeals

. F ED

. R. A PP

. P. 38. Rule 47(b) states in relevant p art: “No sanction . . . may be imposed for noncompl ianc e with any require ment not in f

ederal law, fed eral ru les, or the local circuit.” F ED

. R. A PP

. P. 47(b). As a matter of law, both rules are who lly ina

pp li ca bl e t o t hi s c as e. Ac co rd in gl y, Wright’s motions for

sancti ons are meritless and we deny both motion s. 30 United States v. Wright No. 01-2569

III. CONCL USION

For the foregoing reasons, we AFFIRM the jury conviction and sentence entered by

the district court.