## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ Nos. 98-1039/2792

___________ UNITED STATES OF AMERICA, * * Appellee, * * v. * * LAURA TAYLOR, * * Appellant. *

___________ Appeals from the United States District Court Nos. 98-1041/2555 for the Eastern District of

___________ Arkansas, Western Division UNITED STATES OF AMERICA, * [UNPUBLISHED] * Appellee, * * v. * * JAMES TAYLOR, * * Appellant. *

___________ Submitted: June 8, 1998 Filed: August 24, 1998

___________The Honorable Owen M. Panner, United States District Judge for the District 1 of Oregon, sitting by designation. -2- Before RICHARD S. ARNOLD and MORRIS SHEPPARD ARNOLD, Circuit Judges, and PANNER , District Judge 1

___________ PANNER, District Judge.

Laura and James Taylor appeal their convictions and sentences for conspiracy to manufacture methamphetamine. They challenge the sufficiency of the evidence and raise v arious pretrial, evidentiary, and sentencing issues. Additionally, they eac h appeal , pro se, from the denial of post-appeal motions to dismiss the indictment. We affirm.

BACKGROUND InAugust 1995, Mark Tubbs, a North Little Rock police officer assigned to a federal Drug Enforcement Agency (DEA) task force, learned of Laura Taylor's order for 2500 grams of phenylacetic acid, a precursor chemical used to manufactur e methamphetamine. Tubbs obtained the substance and, with Special Agent Jame s Boyce, ma de a controlled delivery of it to the Taylors. The agents informed Laur a Taylor of the nature of the chemical and asked if she had a legitimate use for it. Laura Taylor told them that she was using it to make perfume.

The agents examined the residence and found no evidence of perfum e manufacturing such as bottles, labels, or other equipment. Because Boyce and Tubbs determined that the Taylor s had no legitimate reason to possess the phenylacetic acid, they kept the substance and began proceedings to forfeit it under 21 U.S.C. § 881(a)(2). These proceedings culm

inated in the substance's destruction after the DEA released it to a private waste disposal firm in June 1996.-3-

In December 1995, the Taylors met with Stephen Rodriguez, a resea rch assistant at th e University of Arkansas in Little Rock. Rodriguez has degrees in chemistry and respond ed to the Taylors' advertisement for assistance with perfume manufacturing

. Th e Taylors told Rodriguez that they had problems possessing phenylacetic acid and
as ked him if he would obtain the substance for their use. They also discussed wha t equipment would be required to manufacture perfume. Rodriguez believed that th e Taylors ha d no facilities for making perfume. He and the Taylors made no futur e meeting date. Rodriguez expected that the Taylors would do the necessary gr oundwork in pursuit of the required license. This never occurred.

InJanuary 1996, Laura Taylor met with DEA agent William Bryant regarding the confiscated phenylacetic acid. She gave him a perfume formula at that time

. Although she had previously told Bryant that she had a patent for the formula, sh e never produc ed one. Bryant told her that the DEA needed to view her productio n premises and reminded her that she nee ded a license for the substance. She refused to show Br yant any premises. The day after meeting with Laura Taylor, Bryant learned that the Taylors' phenylacetic acid license application had been rejected.

In Febr uary 1996, Roger Case, a narcotics investigator with the Little Roc k Police Department who works with the DEA, began investigating James Taylor' s involvementwith illegal drug activities. As part of that investigation, Jerrell Alle n Parker , James Taylor's half-brother, secretly tape-recorded several conversation s between James Taylor and himself in the spring of 1996. The tape recordings wer e played for the jury. Laura Taylor participated in at least one conversation in whic h Parker a nd the Taylors discussed obtaining phenylacetic acid in order to mak e methamphetamine. Parker also test ified that in June 1996, James Taylor asked Parker to get rid of some methamphetamine for him. Steve Clemmons, a drug supervisor with t he Arkansas State Police, participated in th e investigation. In an undercover role, he met with James Taylor who expressed-4-

a desire to purchase phenylacetic acid and who agreed to try to pa y Clemmons partially in cash and partially in methamphet amine. James Taylor never told Clemmons that he wanted to produce perfume. James Taylor expressed knowledge about manufacturing methamphetamine and the different "grades" of phenylacetic acid. A couple of weeks later, James Taylor c alled Clemmons and expressed concern that Clemmons was an undercover law enforcement officer. Clemmons responded that the next time he was in town, they would talk about the problem. Clemmons did not contact James Taylor again. On July 9, 1996, Case and several other officers executed a search w arrant at the Taylors' residence. Agents seized several items involved in the methamphetamin e manufacturing process including a large number of hydrogen peroxide bottles, ether, flasks, reaction vessels, Zarcol solvent alcohol, cans of trichlorethylene and acetone, and flasks conta

ining liquid residue. Books entitled "The Anarchist's Cookbook" and "Recreational Drugs" were found, as was a green notebook containing chemica l formulas, or partial formulas, for the manufacture of precursors used in makin g meth amphetamine. James Taylor's fingerprints were found on assorted items o f glassware recovered from the residence during the search, some of which containe d chemicals associated with the methamphetamine manufacturing process. Nick Dawson, a drug chemist for the Arkansas State C rime Laboratory, testified that the items seized from the Taylors' residence showed the presence o f methamphetamine

and of precursor chemicals to manufacturing methamphetamine by the h ydriotic acid-red phosphorous method. Dawson also explained that only ver y small amounts of

phenylacetic acid are needed for its legitimate uses such as perfume manufacturing, the making of a penicillin-type dr ug, and the making of a few fertilizers and herbicides.-5- DISCUSSION I. Motion to Sever Laura Taylor appeals from the district court's denial of her motion to sever which
we re view for an abuse of discretion. United States v. Jones , 16 F.3d 275, 279 (8t h Cir. 1994). If a defendant will be prejudiced by joinder with co-defendants for trial, the c ourt may grant a severance. Fed. R. Crim. P. 14. However, when the charge s against co-conspirators are based on the same acts or evidence, the y are ordinarily tried together. United States v. Wint , 974 F.2d 961, 965-66 (8th Cir. 1992). A defendant
can show such prejudice either by showing that his "defense was irreconcilable with that of his codefendant or th at the jury was unable to compartmentalize the evidence." United States v. Bordeaux , 84 F.3d 1544, 1547 (8th Cir. 1996). We reject Laura Taylor's argument that the jury wa s unable to compartmentalize the evidence in this case. Two defendants were tried on a one-count indictment with straig htforwardevidence and testimony. Although the jury learned that Laura an d James Taylor were married, lived together, and had a child, these facts were insufficient to con fuse the jury as to the evidence against Laura Taylor as a separate defendant

. Th e evidence that directly implicated only Laura Taylor consisted of actions take n regardingthe order of the phenylacetic acid and her participation in a conversation to obtain the substance

to make crystal methamphetamine. This was uncomplicated and easy to separate from other evidence presented in the case. The evidence that directlyimplicated only James Taylor consisted of additional
conver sations with Parker, statements to Clemmons, and fingerprints on glasswar e containing methamphetamine and precursor chemical residue, among other things. This also was easily se gregated. There was no prejudicial spillover. The district court did not abuse its discretion in denying the severance motion.-6-

II. Sufficiency of the Evidence We v iew the evidence in the light most favorable to the jury verdict. Unite d States v. Moore , Nos. 97-2603, 97-2605, 1998 WL 337961, at *1 (8th Cir. June 26, 1998)

. A conviction will be reversed for insufficient evidence only if a "reasonabl e fact-finder must have a reasonable doubt about an essential element of the offense. " United States v. Spence , 125 F.3d 119 2, 1193 (8th Cir. 1997), cert. denied , 118 S. Ct. 1544 (1998). To prevail in a conspiracy trial, the government must prove that ther e was an agreement to achieve some illegal purpose, that the defendant knew of th e agreement, and that the defendant knowingly became a part of the conspiracy. United States v. Bass , 121 F.3d 1218, 1220 (8th Cir. 1997). A. Laura Taylor The jury learned that Laura Taylor ordered the phenylacetic acid in an amount large enough to raise suspicion and inconsistent with the amounts normally used fo r le gitimate purposes. She was unable to produce either a patent for a formula or a license f or the chemical. She never showed the agents her perfume manufacturin g location. The jury could infer that she attempted to bring Rodriguez into the scheme as a source of leg itimacy in hopes that he could obtain the substance and a license for it. She w as unable to show either the agents or Rodriguez that she possessed th e facilities or the knowledge to manufacture perfume. Laura Taylor also participated in at least one conversation with James Tay lor and Pa rker in which they discussed a recipe for manufacturing methamphetamine and the need to locate phenylacetic acid. We agree with the district court that the evidence was sufficient to support the verdict. B. James Taylor James Taylor challenges the admission of Parker's testimony and the admission of Parker's statements as related through Case because there was insufficient proof that he (Taylor) was involved in a conspiracy. He argue s that the district court should have-7-

excluded Parker's statements and that without them, there is insufficient evidence t o sustain his conviction.

We first address Parker's direct testimony and his statements on the tapes that were played fo r the jury. Any out-of-court statements made by one of the defendants
an d played on the tapes or testified to by Parker, including Parker's testimony tha t Jam es Taylor asked Parker to get rid of some methamphetamine for him, were non

hearsay admissions, admissible under Federal Rule of Evidence 801(d)(2)(A).

Unde r Federal Rule of Evidence 801(d)(2)(E), a co-conspirator's out-of-cour t statement is not hearsay if "the trial court is convinced by a preponderance of th e evidence that the challeng ed statement was made during the course and in furtherance of a conspiracy to which t

he declarant and the defendant were parties." United States
v. Moss , 138 F.3d 742, 744 (8th Cir. 1998). Statements made in furtherance of a consp iracy "'must somehow advance the objectives of the conspiracy, not merel y inform the listener of the declarant's activities.'" Id. (quoting United States v. DeLuna , 763 F.2d 897, 909 (8th Cir. 1984)).

In making the preliminary factual determination under Rule 801(d)(2)(E), th e court may examine the

hearsay statements sought to be admitted. Bourjaily v. United States , 483 U.S. 171, 181 (1987). We review the district court's decision to admit coconspirator testimony under Rule 801(d)(2) (E) for clear error. Moss , 138 F.3d at 744.

Base d on the evidence recited earlier, we conclude that the district cour t correctly determined that the evidence established a conspiracy among James Taylor, Laura Taylor, and Parker to manufacture methamphetam ine. Thus, Parker's statements made before trial and played for the jury on the tapes, were properly admitted as nonhearsay statements of a co-conspirator under Rule 801(d)(2)(E).-8-

We next consider Parker's statements related by Case. Case testified that in a July 1996 interview with himself and Boyce, Parker said (1) t hat James Taylor had told Parker that Taylor was manufacturing methamphetamine using ephedrine; (2) tha t Parker had observed Laura and James Taylor eac h with an ounce of methamphetamine in the preceding month; and (3) that Parker had observed methamphetamin e ma nufacturing equipment at the Taylors' residence. As to the first of these thre e statements, there are two levels of hearsay at issue: James Taylor's statement to Parker
an d Parker's reiteration of that statement to Case. While James Taylor's statement to Parker is a non-hearsay admission of a party-opponent, the issue is whether any o f Parker's statements to Case are admissible. Although Rule 801(d)(2)(E) does not require that the statement be made t o another co-consp irator, see , e.g. , United States v. Krevsky , 741 F.2d 1090, 1095 (8th Cir. 1984)(statement to informant), "conspirator statements to a known police agent are admissible under Rule 801(d)(2)(E) only if intended to allow the conspiracy t o continue, for example, by misleading law enforcers." United States v. Alonzo , 99 1 F.2d 1422, 1426 (8th Cir. 1993). Parker's statem ents to Case and Boyce, including his reiterat ionof the statement made to him by James Taylor, and testified to by Case , were not made with the intent of continuing the conspiracy. They are hearsay and i t was error to admit them.

An ev identiary error amounts to harmless error only if, after viewing the entire record, the reviewing court determines that no substantial rights of the defendant were affe cted, and that the error had no, or only slight, influence on the verdict. Unite d States v. DeAngelo , 13 F.3d 1228, 1233 (8th Cir. 1994); Fed. R. Crim. P. 52( a). In this
cas e, we believe the error of admitting these statements was harmless. We furthe r conclude that the admissible evidence was sufficient to support the verdict.Although we attempted to listen to the tapes to hear the disputed statements 2 firsthand, the tapes were apparently redacted of some t he objectionable material before going to the jury. Thus, while we heard the court-related statement, we were unable to verify the accuracy of the other statements. Th e source of our quote is from the trial transcript when the district court read the transcript accompanying the tapes during a sidebar conference with counsel. -9- III. Trial Proceedings While Parker was testifying, the government played tapes of his conversations with James an d Laura Taylor. While the tapes played, the jury followed along with tr anscripts prepared by the government. The tapes were admitted into evidence; th e transcripts were not. Generally, counsel for the government played part of a tape, then stopped it to ask Parker some clarifying questio ns, then continued playing a tape. This occurred throughout Parker's testimony.

The parties represent that James Taylor is heard on the tape stating "I'm going to tell you my lawyer is looking at it. Is that I piss cl ean and get my job right after they arrested me. I have had my job. I have kept my job." He also made a statement about "coming up to court he

re in May." These statements were also in the accompanying

2 transcripts given to the jury while the tapes were played.

Defense counsel objected to this testimony as prejudicial and moved for a mistrial. Th e district court denied the motion and defense counsel refused the district court's offer to give the jury a cautionary instruction to disregard the tes timony. During
a rec ess, counsel for the government highlighted the portions of the transcript s corresponding to the relevant parts of the tapes. When the jury returned, the district court instructed them as follows: Ladies and gentlemen, as you have seen, there are typewritten transcripts of the tape recordings that yo u're hearing. The transcripts also undertake-10-

to identify the speakers engaged in the conversat ion. You were permitted to have the transcripts for the limited purpose of helping you follow the conversation as you listen to the tape recording and also to help you keep track of the speakers. The transcripts, however, are not evidence. Th e tap e recording itself is the primary evidence of its own contents

. Differences in

meaning in what you heard in the recording and what you may have read in the transcript may be used by such things as a n inflection in the speaker's voice. You should re ly on what you hear rather than what you read if you perceive there to be any difference at all.

Later in the trial and using the same procedure, the jury listened to tapes o f Clemmons's discussions with James Taylor. The transcript of these tapes showe d James Tayl or using a racial slur. Finally, of additional concern to James Taylor i s Case' s testimony, in response to Laura Taylor's counsel's request that he read a particular entr

y from a calendar found at the Taylors' residence, that "[o]n August 1 it shows Sonny court, Pope County, 1:00 P.M." James Taylor was known as Sonny.

We review the district court's denial of a motion for a mistrial for an abuse o f discreti on. United States v. Hale , 1 F.3d 691, 694 (8th Cir. 1993). The prejudicia l effect of any improper testimony on a defendant's right to a fair trial is determined by examining the trial context of the erro r and the prejudice it created with the strength of the evidence against the defendant. United States v. Flores , 73 F.3d 826, 832 (8t h Cir.), cert . denied , 116 S. Ct. 2568 (1996). Even if an error has been committed, a curativ e instruction often suffices to correct any undue prejudice. United States v

. Rhodenizer , 106 F.3d 222, 225 (8th Cir. 1997).

We agree wit h the district court that the improper testimony did not create a prejudice which the offered limiting instruction could not have cured. The comments at i ssue were ambiguous. The reference on the tapes to a court date could have been to anyone's court date or to a civil issue. The testimony regarding "Sonny's" upcoming court date could also have been referring to a civil matter. It is far from certain that the-11-

jury would have understood the words "I piss clean" to mean a urinalysis. Even if it did, b ecause James Taylor also discusses keeping his job, he could have bee n mentioning an employment-related urinalysis. The evidence against Jame s Taylor was convincing. Furthermore, even if there had be en prejudice created by the testimony, it could have been corrected by th e curative instruction.

As to the use of the transcripts which were not admitted into evidence, Jame s Taylor only speculates that the jury was exposed t o the racial epithet. The words were not highlighted on the transcript and they were not played on the tape. The jury would have had to read ahead of where the tape was playing to see the remark. Th e transcripts were not admitted into evidence. The trial court instructed the jury that the transcripts were not evidence and to rely only on t he tapes themselves. The transcripts were taken from the jury as soon as the relevant testimony concluded.

We ar e unpersuaded that the jury's receipt of the transcript created undu e prejudice against James Taylor. IV. Sentencing A. Drug Quantity At sentencing, Arkansas State Crime Labora tory chemist Nick Dawson testified that 211.6 grams of d-pseudoephedr ine were present at the Taylors' residence and that practic ally, 105 to 169 grams of methamphetamine could have been made from thi s gross amount. The district court determined that James Taylor was responsible for at least 105 grams of actual methamphetamine, resulting in a base offense level of 32.

The government must prove the quantity of drugs by a preponderance of th e evidence. United States v. England , 966 F.2d 403, 409 (8th Cir. 199 2). We review the-12-

district court's determination of drug quantity for sentencing purposes for clear error. United States v. Hiveley , 61 F.3d 1358, 1362 (8th Cir. 1995). Dawson's testimony established that a 50% yield was 105 grams. James Taylor mistake nly calculates the 50% yield from Dawson's 194-gram theoretical yield figure rath er than the 211.6-gram gross amount. Additionally, under the United State s Sentencing Guidelines for relevant conduct, there was sufficient evidenc e to hold James Taylor re sponsible for the 105 grams of methamphetamine. See U.S.S.G. § 1B1.3(a)(1)(A)-(B) (1997). B. Downward Departure The district court denied motions by Laura and James Taylor for a downwar d departure based on exceptional family circumstances. In reviewin g the transcript of the sentencing h earing, it is clear that the district court correctly determined that it ha d authority to consider a departure based on family circumstances f or each defendant, but declined to do so. We have no jurisdiction to review this determination. United States v. Saelee , 123 F.3d 1024, 1025 (8th Cir. 1997). V. Pro Se Appeal of Post-Appeal Motions Following the filing of appeals in these cases, both Laura and James Taylor filed pro se motions to dismiss the indictment in the district co urt. In addition, James Taylor al so moved, pro se, to dismiss his attorney. The district court denied these motion s because it lacked jurisdiction to consider them. The district court also denied motions to reconsider that denial. In appeal numbers 98-2792 and 98-2555, Laura Taylor and James Taylor a ppeal, respectively, and pro se, the denial of these motions. We affirm.

Onc e the notices of appeal were filed, the district court was divested o f jurisdiction over those aspects of the case involved in the appeal. In re Grand Jury-13-

Subpoenas Duces Tecum , 85 F.3d 372, 375 (8th Cir. 1996). James Taylor's motion to dismiss counsel, who represents him in the primary appeal, is involved in the appeal. The motions to dismiss the indictment are sufficiently related to the heart of the case on appeal. In any event, as discussed below, we affi rm the denials of these motions on their merits.

VI. Pro Se Motions A. Motions to Dismiss Indictment Aft er receiving the district court's orders denying their motions to dismiss th e indictment and J ames Taylor's motion to dismiss his counsel, the Taylors filed similar motions to dismiss here in this court. They argue that the indi ctment must be dismissed for failure to charge an offense other than 21 U.S.C. § 846, which they maintain is a mere penalty statute and not a substantive offense. We disagree. The superseding indictment in the instant case charged that
[o]n or ab out August 1, 1995 and continuing thereafter through on o r ab out July 31, 1996, in the Eastern District of Arkansas, LAUR A TA YLORand JAMES G. TAYLOR did knowingly and intentionall y conspire to manufacture methamphetamine[,] a Schedule II controlle d substance, in violation of Title 21, United States Code, Section 846. First, the indict

ment is a "plain, concise and definite written statement of the essential fact s constituting the offense charged." Fed. R. Crim. P. 7(c)(1). Second, it fairl y informed the Taylors of the charge against them which they had to defend and it will enable them to plead double jeopardy as a bar to further prosecution. United States v. Diaz-Diaz , 1 35 F.3d 572, 575-76 (8th Cir. 1998). Third, we note that "an indictment for c onspiring to commit an offense in which the conspiracy is the gist of the crime " may be less technically precise than an indictment for the substantive offense. United States v. Starr , 584 F.2d 235, 237 (8th Cir. 1978)(citing Wong Tai v. United States , 273 U.S. 77, 81 (1927)).-14-

Under the se standards, the indictment was sufficient. Although citation to 2 1 U.S.C. § 841(a)(1), outlawing the manufacture of a controlled substance, was no t required, even if it were, no prej udice to defendants occurred by its omission. Fed. R. Crim. P. 7(c)(3); cf. United States v. Pad illa , 869 F.2d 372, 381 n.5 (8th Cir. 1989)(no prejudice to defendant under Rule 7(c)(3) when indictment charged only penalt y pro visions of section 841(b)(1)(A)(ii) rather than substantive provision of sectio n 841(a)).

B. "Demand for Suspension of the Rules, and Demand for Preliminary Proceeding"
The Taylors each filed the above-entitled document challenging the subjec t matter jurisdiction of both the district court and this c ourt. This argument has no merit. U.S. Con st. art. III, § 1, cl. 1 (granting Congress the power to ordain and establis h inferi or federal courts); 18 U.S.C. § 3231 (vesting original jurisdiction of all offenses against the laws of the United States in the district courts); 28 U.S.C. § 1291 (vesting juris diction of all appeals from final decisions of the district courts in the courts o f appeals).

Affirmed. A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.