*

Honorable Wilbur D. Owens, Jr., Senior U.S. District Judge

for the Middle District of Georgia, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 93-8773.

UNITED STATES of America, Plaintiff-Appellee,

v.

Mitchell LAMPLEY, Defendant-Appellant.

Nov. 15, 1995.

Appeal from the United States District Court for the Northern

District of Georgia. (No. 1:91-CR-08-01-RLV), Robert L. Vining,

Jr., Chief Judge.

Before HATCHETT and CARNES, Circuit Judges, and OWENS*

, Senior

District Judge.

HATCHETT, Circuit Judge:

Appellant, Mitchell Lampley, challenges his convictions and

sentence for drug trafficking. Although Lampley raises several

contentions on appeal, only two evidentiary issues require

discussion. We find no error with respect to the district court's

rulings and affirm Lampley's convictions and sentence.

FACTS

Lampley sold marijuana to an individual named Nathaniel Tarver

from the mid-1970s to the early 1980s. Lampley then began to sell

cocaine to Tarver, and continued to do so until the mid-1980s. At

that point, Tarver began to buy his narcotics from other sources.

The two continued to stay in contact, however, and Tarver made a

couple of cocaine purchases from Lampley in the late 1980s.

In the summer of 1990, Tarver contacted Lampley and informed

him of a source that had a large quantity of cocaine. Lampley
initially told Tarver that he was not interested in dealing with

the source. Later in the summer, however, Lampley contacted Tarver

and asked him if the source was still available. Tarver then

arranged a meeting in August 1990, in which he and his source met

with Lampley and Lampley's partner, Jesse Hart. The parties were

unable to make a deal.

Approximately three months later, on November 24, 1990, Tarver

began negotiating a cocaine transaction with Revere Christophe, an

undercover agent of the Drug Enforcement Administration (DEA).

Christophe and Tarver met the next day, November 25, 1990; Tarver

told Christophe that he had several sources that could supply large

amounts of cocaine. On November 29, 1990, Tarver informed

Christophe that he had already contacted two of his sources and

that he needed to know how much cocaine Christophe wanted and what

price he was willing to pay. On December 7, 1990, Tarver and

Christophe engaged in another conversation in which they continued

to discuss cocaine quantities and price. At some point thereafter,

Tarver contacted Lampley and arranged for him to be Christophe's

source.

On December 31, 1990, Tarver and Christophe finally agreed on

a ten-kilogram transaction to take place on January 4, 1991.

Tarver and Christophe discussed the details of the exchange on

January 2, 3, and 4, 1991. On January 4, 1991, Tarver met with

Christophe and gave him a sample of cocaine that Lampley had

provided. Later that day, Tarver, Lampley, and Hart met. While

Lampley and Tarver discussed how to complete the deal with

Christophe, Hart secured the ten kilograms of cocaine. The three
ultimately planned to give Christophe one kilogram initially, and

the remaining nine kilograms at a second delivery. DEA agents

eventually arrested the three coconspirators. Agents found a

kilogram of cocaine in Lampley's car and nine kilograms of cocaine

in Hart's car.

PROCEDURAL HISTORY

On January 8, 1991, a grand jury in the Northern District of

Georgia returned a two-count indictment against Lampley, Tarver,

and Hart. Count I charged them, "and others known and unknown to

the Grand Jury," with conspiring to distribute cocaine in violation

of 21 U.S.C. § 846. Count II charged them with the substantive

offense of possessing cocaine with the intent to distribute in

violation of 21 U.S.C. § 841(a)(1). Tarver subsequently agreed to

cooperate with the government and entered a plea of guilty to Count

I of the indictment on September 20, 1991.

On September 24, 1991, the government informed Lampley of its

intention to introduce extrinsic act evidence pursuant to rule

404(b) of the Federal Rules of Evidence. The notice listed five

instances of prior misconduct: (1) the marijuana transactions

between Lampley and Tarver from the late 1970s to the mid-1980s;

(2) the cocaine transactions between Lampley and Tarver from the

late 1970s to the mid-1980s; (3) a one kilogram cocaine

transaction between Lampley and Tarver in 1989; (4) the

conversations between Lampley and Tarver in 1990 concerning

Tarver's cocaine source; and (5) the meeting between Lampley and
 1

The government subsequently amended its notice. The

amendment essentially changed the details related to the fifth

act of misconduct. In particular, the amended notice changed the

date of the meeting from September 1990 to August 1990. 

Tarver's cocaine source in 1990.1

Because the government intended to introduce these numerous

prior dealings between Lampley and Tarver, Hart moved to sever

their trials. The district court granted his motion. Hart

proceeded to trial first. On October 4, 1991, a jury convicted him

on both counts of the indictment.

Lampley's trial commenced on February 4, 1992. At trial,

despite defense counsel's objection, the district court allowed the

government to introduce tape recordings of conversations between

Tarver and Christophe occurring on November 29, 1990, December 7

and 31, 1990, and January 2, 3, and 4, 1991. Also over defense

counsel's objection, the district court allowed Tarver to testify

about his past dealings with Lampley. After the government

presented its case, Lampley took the stand and presented a "mere

presence" defense; he also denied having any past drug dealings

with Tarver. At the conclusion of the trial, the district court

instructed the jury that it could not consider the evidence of

Lampley's past conduct "to prove that the defendant did the acts

charged in this case, but only to prove the defendant's state of

mind." The jury convicted Lampley on both counts.

CONTENTIONS

Lampley contends that the district court abused its discretion

in allowing Tarver to testify about his past dealings with Lampley.

Lampley also contends that the tape-recorded conversations between
 2

Lampley raises three other contentions on appeal: (1) the

government engaged in misconduct that violated his Sixth

Amendment rights; (2) the evidence against him was insufficient; 

and (3) he was entitled to a sentence reduction pursuant to

U.S.S.G. § 3B1.2. We find that these claims lack merit and do

not warrant discussion. 

Tarver and Christophe constitute inadmissible hearsay and therefore

should not have been admitted into evidence.2

The government responds that Lampley's past dealings with

Tarver were admissible to show Lampley's knowledge and intent. The

government also argues that the tape-recorded conversations are

admissible as statements made in furtherance of a conspiracy.

ISSUES

We discuss the following issues: (1) whether Lampley's prior

dealings with Tarver were admissible under rule 404(b) of the

Federal Rules of Evidence; and (2) whether the tape-recorded

conversations between Tarver and Christophe were admissible under

rule 801(d)(2)(E) of the Federal Rules of Evidence.

DISCUSSION

A. Rule 404(b)

 We review the district court's decision, under rule 404(b),

to admit the evidence concerning Lampley's past dealings with

Tarver for abuse of discretion. United States v. Delgado, 56 F.3d

1357, 1363 (11th Cir.1995).

 Rule 404(b) provides that "[e]vidence of other crimes,

wrongs, or acts is not admissible to prove the character of a

person in order to show action in conformity therewith. It may,

however, be admissible for other purposes, such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or
 3

In Bonner v. City of Prichard, 661 F.2d 1206 (11th

Cir.1981) (en banc ), this court adopted as binding precedent all

decisions of the Fifth Circuit rendered prior to October 1, 1981. 

absence of mistake or accident...." Fed.R.Evid. 404(b). A

three-part test governs the admissibility of rule 404(b) evidence:

First, the evidence must be relevant to an issue other than

the defendant's character; Second, the act must be

established by sufficient proof to permit a jury finding that

the defendant committed the extrinsic act; Third, the

probative value of the evidence must not be substantially

outweighed by its undue prejudice, and the evidence must meet

the other requirements of Rule 403.

Delgado, 56 F.3d at 1365 (citing United States v. Miller, 959 F.2d

1535 (11th Cir.) (en banc ), cert. denied, --- U.S. ----, 113 S.Ct.

382, 121 L.Ed.2d 292 (1992) and United States v. Beechum, 582 F.2d

898 (5th Cir.1978) (en banc ), cert. denied, 440 U.S. 920, 99 S.Ct.

1244, 59 L.Ed.2d 472 (1979)).3

 Lampley contends that none of the

three prongs have been satisfied.

 With respect to the first prong, Lampley contends that the

government never articulated how his prior drug dealings with

Tarver were relevant to an issue other than his character;

furthermore, Lampley argues that the district court never made a

specific finding as to the relevance of this evidence. The record,

however, does not support Lampley's contentions. After defense

counsel stated an objection to the rule 404(b) evidence, the

government specifically responded that defense counsel had argued

that "Mr. Tarver tricked Mr. Lampley. And the evidence is coming

in to show motive and intent." Likewise, the district court made

findings as to relevance. The district court, recognizing that

Lampley was presenting a "mere presence" defense, stated that the
evidence "shows dealings between these parties and it probably

shows the motive that this was not an accidental or unknowing or

unwilling transaction that Mr. Lampley entered into; it shows

intent.... This goes to show motive and intent and it goes to show

knowledge and willfulness." The district court was clearly correct

in determining that Lampley's prior dealings with Tarver were

relevant to the issue of his intent. See Delgado, 56 F.3d at 1365.

 With respect to the second prong, Lampley asserts that

Tarver's trial testimony concerning their prior dealings was

significantly different from the government's account of their

prior dealings as put forth in the rule 404(b) notice. For

example, Lampley points out that: (1) the notice described a

single kilogram cocaine transaction in 1989, but Tarver testified

that he had a couple of half-kilogram cocaine transactions with

Lampley, and he was not certain of their date; and (2) Tarver's

testimony as to what was said at the meeting between Lampley and

Tarver's cocaine source, and his testimony as to when the meeting

occurred, differed from the description of the meeting in the

original notice. Lampley contends that these discrepancies

demonstrated that Tarver was not a credible witness, and therefore,

his unsubstantiated testimony did not sufficiently show that their

prior dealings did in fact occur. We must, however, defer to the

district court's determination that the testimony was credible

enough to allow a jury to find that the prior dealings between

Lampley and Tarver occurred. See United States v. Holland, 874

F.2d 1470, 1473 (11th Cir.1989) ("Credibility determinations made

by the district court are entitled to deference by a reviewing
 4

In a related argument, Lampley contends that the

differences between Tarver's testimony and the rule 404(b) notice

were so great that the notice was essentially ineffective. We

disagree. The government must only provide notice of the

"general nature" of the extrinsic act evidence. Fed.R.Evid.

404(b); see also United States v. Barnes, 49 F.3d 1144, 1148-49

(6th Cir.1995) ("[T]he government's notice must characterize the

prior conduct to a degree that fairly apprises the defendant of

its general nature."). In some instances, Tarver's testimony may

have added or changed certain details, but, in general, his

testimony adhered to the descriptions of the prior bad acts

listed in the notice. 

 5

Rule 403 provides: "Although relevant, evidence may be

excluded if its probative value is substantially outweighed by

the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by consideration of undue delay, waste of

time, or needless presentation of cumulative evidence." 

court.").4

 Finally, with respect to the third prong, Lampley contends

that the district court never engaged in a rule 403 balancing

inquiry, and, if it had, it would have recognized that the

prejudicial nature of some of the extrinsic act evidence

substantially outweighed its probative value.5 Specifically,

Lampley focuses on his marijuana dealings with Tarver in the mid1970s. He contends that these dealings had no probative value

because they were too remote in time (approximately fifteen years

old) and involved different circumstances (they were small

marijuana deals, unlike the instant large cocaine deal). As a

result, he asserts that this evidence could only prejudice him in

the eyes of the jurors. The record, however, does not support

Lampley's contention that the district court did not conduct a rule

403 balancing test. In response to this specific argument

concerning the remoteness and prejudicial nature of the mid-1970s

marijuana transactions, the district court stated:
The ten-year rule only applies to convictions. This is under

404 and I assume Beechum, similar acts which has no bounds by

time. I guess what I will have to do is weigh it as the case

goes on.... You know, on the surface it appears it's probably

going to be admissible, but that doesn't mean it is. But the

ten-year rule does not apply and I will just have to balance

it according to Beechum and 404 and 403.

Thus, the district court was fully cognizant of the appropriate

standard, and we assume that the district court carried out its

intention to conduct the balancing test when it ultimately admitted

the evidence. Furthermore, we cannot say that the district court

abused its discretion in determining that the mid-1970s marijuana

dealings were admissible under rule 403 despite their differing

nature and remoteness in time. See Delgado, 56 F.3d at 1366

(rejecting argument that prior drug dealings were different in

nature); United States v. Pollock, 926 F.2d 1044, 1048 (11th Cir.)

(noting that courts have upheld the admission of rule 404(b)

evidence that "occurred ten and thirteen years earlier than the

charged offense"), cert. denied, 502 U.S. 985, 112 S.Ct. 593, 116

L.Ed.2d 617 (1991).

In sum, the district court did not abuse its discretion in

admitting the evidence of Lampley's past drug dealings.

B. Rule 801(d)(2)(E)

The district court allowed into evidence tape recordings of

conversations that occurred between Tarver and Christopher on

November 29, 1990, December 7 and 31, 1990, and January 2, 3, and

4, 1991. Lampley contends that the statements in these

conversations were hearsay and should not have been admitted.

Out-of-court statements are not considered hearsay, however,

if they were made "by a coconspirator of a party during the course
and in furtherance of the conspiracy." Fed.R.Evid. 801(d)(2)(E).

The determination of whether a statement was made during the course

and in furtherance of a conspiracy "is a determination of fact that

will be disturbed only if clearly erroneous." United States v.

Bazemore, 41 F.3d 1431, 1434 (11th Cir.1994).

 Lampley contends that rule 801(d)(2)(E) does not apply

because a conspiracy did not exist as of the time of the

tape-recorded conversations; in other words, he argues that the

statements were not made "during the course" of the conspiracy.

Lampley, however, ignores the fact that as of November 29, 1990,

the date of the first tape-recorded conversation, Tarver had

already contacted two of his cocaine sources, and therefore, a

conspiracy existed. Although Lampley did not join the conspiracy

until Tarver contacted him, which was sometime after December 7,

1990, all of the tapes were admissible because a "declaration of

one co-conspirator is admissible against members of the conspiracy

who joined after the statement was made." United States v.

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

Holder, 652 F.2d 449, 451 (5th Cir.1981)), cert. denied, 456 U.S.

994, 102 S.Ct. 2279, 73 L.Ed.2d 1291 (1982); see also United

States v. Brown, 943 F.2d 1246, 1255 (10th Cir.1991) (citing cases

from the First, Second, Third, Fourth, Fifth, Seventh, and Ninth

Circuits in concluding that the "prevailing view among the circuits

is that previous statements made by co-conspirators are admissible

against a defendant who subsequently joins the conspiracy"). Thus,

the statements on all of the tapes were properly admitted because

a conspiracy existed when the statements were made and Lampley
subsequently joined that conspiracy.

CONCLUSION

Finding no evidentiary errors under rules 404(b) and

801(d)(2)(E), we affirm Lampley's convictions and sentence.

AFFIRMED.