Filed: May 16, 2001

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 99-4468(L)

(CR-98-399)

United States of America,

Plaintiff - Appellee,

versus

Anthony Causwell,

Defendant - Appellant.

ORDER

The court amends its opinion filed May 2, 2001, as follows:

On page 4, first full paragraph, line 8 -- the extra “the” in

the middle of the line is deleted.

On page 6, first full paragraph, line 2 -- the number and

words “(1) there must be” are moved to become the first line of the

indented quotation.

For the Court - By Direction

/s/ Patricia S. Connor

Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 99-4468

ANTHONY CAUSWELL,

Defendant-Appellant.

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 00-4194

ANTHONY CAUSWELL,

Defendant-Appellant.

Appeals from the United States District Court

for the District of South Carolina, at Florence.

C. Weston Houck, District Judge.

(CR-98-399)

Argued: December 8, 2000

Decided: May 2, 2001

Before WIDENER, LUTTIG, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion. Judge Widener wrote

a concurring opinion.

_________________________________________________________________
COUNSEL

ARGUED: William Thomas Toal, JOHNSON, TOAL & BAT- ARGUED:

TISTE, P.A., Columbia, South Carolina, for Appellant. Alfred William Walker Bethea, Assistant United States Attorney, Florence,

South Carolina, for Appellee. ON BRIEF: ON BRIEF: ON BRIEF: J. Rene Josey, United

States Attorney, Florence, South Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Appellant Anthony Causwell was convicted of two counts of possession with intent to distribute and distribution of cocaine base in

violation of 21 U.S.C. § 841(a), and one count of conspiracy to possess with intent to distribute and distribution of cocaine base in contravention of 21 U.S.C. § 846. The district court sentenced Causwell

to 300 months imprisonment on each count to run concurrently, and

a ten-year period of supervised release. For the reasons that follow,

we affirm Causwell's convictions and sentence.

I.

Local authorities in Horry County, South Carolina, suspected that

Anthony Causwell was dealing drugs. J.A. 167, 236-37. The police

arranged a "controlled buy," in which Causwell sold approximately

one ounce of crack cocaine to Diana McCarter, a cooperating witness.

J.A. 176, 182-83, 220-21.

Later that same day, the police attempted to stop Causwell's 1991

Ford Expedition, the same car in which he delivered the drugs for the

"controlled buy." J.A. 308. Rather than yielding to authorities, Causwell abandoned his vehicle and fled on foot. J.A. 247, 368. The offi-

 2
cers found large quantities of crack and powder cocaine inside the

Expedition. J.A. 247, 309-10.

Several hours later, Causwell was apprehended at a local casino

and placed under arrest. J.A. 373. He was then taken to the local

"Magistrate's Office" for questioning.1 J.A. 248, 286. At that time,

Causwell agreed to cooperate with police and relate everything he

knew. J.A. 288, 290, 299, 303-305, 390-91. Causwell was primarily

questioned on his involvement in the sale and distribution of crack

and powder cocaine in Horry County. J.A. 330. He admitted that he

had been dealing crack cocaine for quite a while, and had brought at

least 84 kilograms of cocaine into the county. J.A. 331. He further

stated that his source for the cocaine was a man named "Shorty" from

Miami, Florida, and that Shorty was on his way to South Carolina to

deliver at least two kilograms of cocaine to him. J.A. 331.

Causwell then agreed to place a recorded telephone call to Shorty

to discuss the details of the exchange. Agent Cannon, one of the officers present at the interview, testified at trial that the "substance of the

conversation" was that an "individual known as Shorty was in route

to the South Carolina area, that at the time he was still in Florida, I

believe, and he would be arriving the next morning." J.A. 336. Cannon further stated that "according to Mr. Causwell, [Shorty] was

bringing cocaine," but Shorty did not state anything other than "he

had something, but he didn't say an amount." J.A. 337. Within the

next 48 hours, agents arrested Shorty when he attempted to deliver a

car battery filled with cocaine to Causwell. J.A. 342.

Due to the interstate nature of the drug conspiracy, local agents

turned the case over to the federal government for further investigation and prosecution. Approximately two weeks after his arrest, Causwell and Assistant United States Attorney Alfred Bethea entered into

a proffer agreement whereby Causwell promised to provide truthful

information regarding his "involvement in the illegal importation and

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1 In his brief, Causwell argued that he did not receive a Miranda 1 warning prior to questioning. At oral argument, however, Causwell's counsel

abandoned the argument. As a result, we need not address this issue on

appeal. See United States v. Joya-Martinez, 947 F.2d 1141, 1143 (4th

Cir. 1991).

 3
trafficking of controlled substances," and the government agreed not

to use "statements made by or other information provided by [Causwell] during th[e] proffer or discussion . . . in any criminal or civil

case except as provided herein." J.A. 40. The agreement did, however, grant the government the express right to make derivative use

of Causwell's statement, including in the pursuit of"any investigatory

leads." J.A. 41.

At a joint preliminary hearing for Causwell and Shorty, the sole

witness for the prosecution was Joseph Koenig, an agent of the Drug

Enforcement Administration who was present during Causwell's

proffer. Koenig was asked at the hearing whether he had "any other

information . . . to provide to the court at this time." J.A. 54. In

response to that broad question, Koenig launched into a lengthy

monologue discussing the contents of Causwell's proffer. J.A. 54-55.

Specifically, he discussed the business relationship between Causwell and Shorty, including the ordinary procedure for the exchange

of drugs between the two. Much of this testimony was cumulative of

information that the government already possessed prior to Causwell's proffer. Compare J.A. 51-53 with J.A. 54-55. Causwell did not

object to any of the testimony at the time. The magistrate judge concluded, based on Koenig's testimony, that "probable cause ha[d] been

established that a crime has been committed and[that Causwell and

Shorty] committed that crime." J.A. 70.

Despite Causwell's cooperation with the government, he refused to

enter into a plea agreement. He was indicted for two counts of possession with intent to distribute and distribution of cocaine base, and one

count of conspiracy to possess with intent to distribute and distribution of cocaine base. J.A. 34-37. Following the indictment, the government filed an information under 21 U.S.C. § 851, notifying

Causwell that it intended to seek an enhanced sentence due to his

prior convictions for "felony drug offense[s]." District Court Docket

No. 213. Causwell did not file a response denying any of the convictions listed in the information.

The jury returned a guilty verdict on all three counts of the indictment. J.A. 761. The district court sentenced Causwell to 300 months

on each count to run concurrently, and a ten-year period of supervised

 4
release. J.A. 755-57, 762. Causwell filed a timely notice of appeal

challenging his convictions and sentence. J.A. 766.

II.

On appeal, Causwell challenges the district court's decision to

admit the testimony of Agent Cannon regarding statements made by

Shorty during the recorded telephone call from the Magistrate's

Office. Specifically, Causwell contends that the conspiracy terminated once he was arrested and that any statements made by Shorty

after the arrest are inadmissible hearsay because they are not subject

to the co-conspirator exception to the hearsay rule in Fed. R. Evid.

801(d)(2)(E).

Generally, we review a district court's decision to admit a statement under Rule 801(d)(2)(E) for an abuse of discretion. See United

States v. Blevins, 960 F.2d 1252, 1255 (4th Cir. 1992). However,

where a party fails to "object with that reasonable degree of specificity which would have adequately apprised the trial court of the true

basis for his objection . . . and would have clearly stated the specific

ground now asserted on appeal," United States v. Parodi, 703 F.2d

768, 783 (4th Cir. 1983) (internal citations omitted), we review the

district court's decision for plain error. See Fed. R. Crim. P. 52(b);

United States v. Linwood, 142 F.3d 418, 422 (11th Cir. 1998); United

States v. Burton, 126 F.3d 666, 671 (5th Cir. 1997).

At trial, Causwell's counsel objected to Cannon's testimony on the

ground that it was inadmissible hearsay. Yet, when questioned further

by the district court about the nature of his objection, counsel stated

only that Shorty was "not a co-conspirator in this indictment." J.A.

333. The district court immediately rejected Causwell's argument

because whether Shorty was charged or listed in the indictment as a

co-conspirator is not relevant to whether a statement is subject to the

co-conspirator exception in Rule 801(d)(2)(E). See, e.g., United States

v. Zandi, 769 F.2d 229, 235 (4th Cir. 1985).

On appeal, Causwell now challenges the admission of the statements, not on the ground that there was an omission in the indictment,

but rather on the ground that the conspiracy terminated upon Causwell's arrest. The manner in which the government chose to charge

 5
and indict Causwell is factually distinct from the question of whether

his arrest terminated the conspiracy. Therefore, we review the admission of Cannon's testimony for plain error since Causwell never

afforded the district court an opportunity to rule on the objection he

now seeks to assert belatedly on appeal. See Parodi, 703 F.2d at 783

(holding that a litigant fails to properly preserve an objection for

appellate review when he objects under the correct evidentiary rule,

but on a ground different than that asserted on appeal).

Four conditions must be met before a reviewing court may correct

plain error under Fed. R. Crim. P. 52(b): 

(1) there must be an error such as deviation from a legal rule; 

(2) the error must be plain, meaning obvious or, at a minimum, 

clear under current law; (3) the error must affect substantial rights

-- in other words, the error must be so prejudicial as to

affect the outcome of the proceedings in the district court;

and, finally, (4) the reviewing court must determine if the

error "seriously affects the fairness, integrity or public reputation of judicial proceedings."

United States v. Castner, 50 F.3d 1267, 1277 (4th Cir. 1995). We

assume, for purposes of this opinion, that the district court erred in

admitting Shorty's statements under Rule 801(d)(2)(E). Compare

United States v. Pratt, 239 F.3d 640, 644 (4th Cir. 2001) (stating that

the admission of statements from a monitored telephone call from one

conspirator to another "probably did constitute error" because at the

time of the call, the conspirator who agreed to place the call at the

behest of the authorities "was most likely no longer a member of the

conspiracy"), with United States v. Urrego-Linares, 879 F.2d 1234,

1240 (4th Cir. 1989) (holding that the district court did not abuse its

discretion in finding that the conspiracy had not terminated for purposes of Rule 801(d)(2)(E) despite the fact that the defendant had

been arrested and had agreed to place a monitored telephone call to

his co-conspirator). Nevertheless, we affirm the district court because

Causwell has failed to demonstrate that any alleged error below was

"so prejudicial as to affect the outcome of the proceedings in the district court."

Causwell argues that he was prejudiced by the admission of Shorty's statements because Cannon testified that "the substance of the

 6
conversation" at issue was that Shorty was in route to South Carolina,

that he would be arriving sometime early the next morning, and that

Shorty had indicated that he had drugs but did not specify an amount.

J.A. 336-37. According to Causwell, this testimony established that

he was a co-conspirator in the distribution of drugs.

Even if Shorty's statements were hearsay, however, we cannot say

that Causwell was prejudiced or that his "substantial rights" were

affected, because any erroneously admitted testimony was entirely

duplicative of facts already established by admissible evidence. Cf.

United States v. Clarke, 2 F.3d 81, 85 (4th Cir. 1993) (holding that

the admission of cumulative testimony was harmless); see also United

States v. Abadie, 879 F.2d 1260, 1264-65 (5th Cir. 1989) (observing

that the admission of hearsay testimony was not prejudicial to the

defense where it was "largely cumulative to much more damaging

evidence of the same criminal activity"); United States v. Thomas,

879 F.2d 559, 563 n.2 (6th Cir. 1989) (explaining that even if hearsay

testimony should have been excluded, "the effect of the statement was

clearly harmless because it was merely cumulative testimony"). First,

Cannon testified moments earlier that Causwell admitted during his

initial interview with police that he had been dealing drugs for quite

a while, that Shorty was his source for drugs, and that Shorty was on

his way to South Carolina to deliver drugs. Causwell does not dispute

that the statements he made to police during the initial interview were

admissible as admissions by a party-opponent under Fed. R. Evid.

801(d)(2)(A). Second, an audiotape of the entire conversation

between Shorty and Causwell was admitted at trial without objection,

and Causwell does not challenge that ruling on appeal. J.A. 340-41.

Accordingly, we conclude that Causwell has failed to demonstrate

prejudice.

III.

Causwell also seeks remand for a new trial on the ground that the

government breached a proffer agreement in obtaining a conviction.

The government used statements made by Causwell pursuant to a

proffer agreement -- through the testimony of DEA agent Koenig --

at a preliminary hearing to establish probable cause.2 Causwell argues

_________________________________________________________________

2 We review for plain error since Causwell did not object to this testi- 2 

mony at the preliminary hearing. See Fed. R. Crim. P. 52(b).

 7
that the government was prohibited from using any of his statements

made under the proffer agreement against him in "any criminal or

civil case." The government's position is that even if the proffer

agreement was violated, any error made at the preliminary hearing

has no effect on Causwell's subsequent indictment and conviction.

We agree.

For, even if we were to assume that the government breached the

proffer agreement and that that breach rose to the level of a deprivation of a preliminary hearing, Causwell would not be entitled to a new

trial. In Gerstein v. Pugh, 420 U.S. 103 (1975), the Supreme Court

stated that though a probable cause hearing is necessary under the

Fourth Amendment, "a conviction will not be vacated on the ground

that the defendant was detained pending trial without a determination

of probable cause." Id. at 119. Thus, even if Causwell's detention was

illegal, "the manner in which a defendant is brought to trial does not

affect the ability of the government to try him." Matta-Ballesteros v.

Henman, 896 F.2d 255, 260 (7th Cir. 1990) (citing Frisbie v. Collins,

342 U.S. 519, 522 (1952)); see also Gerstein, 420 U.S. at 119 (stating

that an "illegal arrest or detention does not void a subsequent conviction").

We are confident, therefore, that if an outright refusal to provide

a probable cause hearing does not require us to vacate a conviction,

so also the erroneous admission of evidence at such a hearing would

not be grounds for "invalidating an otherwise valid conviction."

United States v. Daniels, 64 F.3d 311, 314 (7th Cir. 1995); see also

Britt v. McKenney, 529 F.2d 44, 46 (1st Cir. 1976) ("The state need

not provide such a probable cause hearing before prosecuting on an

indictment, and an error at such a hearing would not void a subsequent indictment or conviction."). Therefore, even if the government

materially breached the proffer agreement, Causwell is simply not

entitled to the relief he seeks.3

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3 Causwell also asserts on appeal that the government derivatively used 3 

statements he made under the proffer agreement, and that because the

government allegedly breached the agreement at the preliminary hearing,

it had the burden of proving that it did not make derivative use of the

proffer. At the sentencing hearing, the district court reviewed the testi-

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IV.

Prior to argument, Causwell filed a pro se supplemental brief challenging his sentence under Apprendi v. New Jersey, 120 S. Ct. 2348

(2000). Causwell argues that because drug quantity was neither mentioned in the indictment nor proven as an element of the offense, his

sentence violated Apprendi because it exceeded the statutory maximum of 20 years imprisonment set forth in 21 U.S.C. § 841(b)(1)(C).

We grant Causwell's motion to file a supplemental brief, and hold

that Apprendi is not implicated in this case because Causwell's sentence did not exceed the "prescribed statutory maximum." See United

States v. Kinter, 235 F.3d 192, 199-200 (4th Cir. 2000).

"[T]he relevant `maximum' under Apprendi is found on the face of

the statute." Id. at 202. In this case, Causwell was convicted of three

counts that subjected him to the penalties set forth in 21 U.S.C.

§ 841(b), and the district court sentenced him to 300 months imprisonment on each count to run concurrently. Even if we assume that

Causwell's sentence should be determined by section 841(b)(1)(C)

because drug quantity was not charged in the indictment or presented

to the jury -- a question we need not and do not decide today -- his

sentence still falls below the statutory maximum of section

841(b)(1)(C), which provides that "if any person commits such a violation after a prior conviction for a felony drug offense has become

final, such person shall be sentenced to a term of imprisonment of not

more than 30 years."

In this case, the government filed an information pursuant to 21

U.S.C. § 851 listing four state "felony drug offense[s]." District Court

_________________________________________________________________

mony at trial and the witness list to determine whether there was any use

of Causwell's proffer at trial. The court made factual findings and concluded that there was not "one shred of evidence that any statement of

Mr. Causwell, pursuant to the proffer, was used." J.A. 683. Furthermore,

on appeal, Causwell again fails to identify any statements or evidence

adduced at trial that were violative of the agreement. Because Causwell

has failed to meet his burden of proving a breach of the agreement by a

preponderance of the evidence, see United States v. Gerant, 995 F.2d

505, 508 (4th Cir. 1993), we affirm on the reasoning of the district court.

 9
Docket No. 213. The listed offenses fulfill the definition of a "felony

drug offense" because each was "punishable by imprisonment for

more than one year" under South Carolina law. 21 U.S.C. § 802(44).

Causwell failed to file a response to the information or in any way

deny any of the convictions listed within it. See 21 U.S.C. § 851(c)

(requiring a defendant to file a written response if he denies any of

the allegations contained in the information). Therefore, even if section 841(b)(1)(C) provided the relevant "maximum," Causwell's sentence does not exceed the maximum and his Apprendi claim fails.

CONCLUSION

For the reasons stated herein, we affirm Causwell's convictions and

sentence.4

AFFIRMED

WIDENER, Circuit Judge, concurring:

I concur in the result and in much of the reasoning of the majority.

I write separately to express my opinion that plain error analysis

_________________________________________________________________

4 Causwell raises several other issues on appeal that are meritless. First, 4 

Causwell argues that the district court erred in instructing the jury that

either distribution or possession with intent to distribute could support

the verdict when the indictment charged him in the conjunctive. Causwell's argument is without merit, however, because where, as here, a

statute is worded in the disjunctive, federal pleading requires that an

indictment charge in the conjunctive, and it is then proper for the court

to instruct the jury in the disjunctive. See Turner v. United States, 396

U.S. 398, 420 (1970); United States v. Champion, 387 F.2d 561, 563 n.6

(4th Cir. 1967). Second, Causwell argues that he did not receive sufficient notice of the obstruction of justice enhancement imposed by the

district court. We reject Causwell's contention, however, because the

enhancement was included as a sentencing recommendation in the presentence report and Causwell was afforded an opportunity to object and,

in fact, did so both in writing and at the sentencing hearing. See United

States v. Neal, 180 F.3d 115, 126 (4th Cir. 1999). Finally, we have no

jurisdiction to review the degree of downward departure for substantial

assistance imposed by the district court. See United States v. Patterson,

38 F.3d 139, 146 (4th Cir. 1994).

 10
should not have been applied to the district court's decision to admit

Shorty's statements under Federal Rule of Evidence 801.

The majority holds that Causwell failed to preserve his objection

regarding the use of Nigel Geohagen's (Shorty's) statements at trial.

The record reveals that Causwell immediately objected on hearsay

grounds when Agent Cannon referred to a telephone call from Shorty,

and the government responded that Shorty was a co-conspirator,

which was the position taken by the district court.

Of course, this position was patently erroneous. At the moment

Causwell went over to the government, the conspiracy was at an end,

and Causwell became an agent of the United States, the same as a narcotics agent. The obviousness of the error is shown in the following

colloquy between the defense attorney and the court:

Mr. Mecham: He's [Shorty's] not a co-conspirator in this

indictment.

The Court: That doesn't make a difference.

So the objection of Mecham was not only correct, even had it been

inartfully phrased, it was well within Rule 103 because it was "apparent from the context within which questions were asked." Fed. R.

Evid. 103(a)(2). It was at once apparent that a statement of Shorty

with respect to Causwell, was inadmissible as hearsay because the

conspiracy no longer existed.

That being true, the plain error rule should have no application and

the case should have been decided under the standard of harmless

error. See Fed. R. Crim. P. 52. With respect to harmless error, among

other items of evidence, an Horry County officer testified that a car

battery filled with cocaine was delivered from Shorty to Causwell; a

South Carolina law enforcement division officer testified that "large

quantities" of cocaine and crack cocaine were found inside Causwell's abandoned vehicle; and Causwell admitted to an Horry County

officer that he had brought at least 84 kg. of cocaine powder into

Horry County. All of this testimony was without contradiction, and

I am of opinion the government has borne its burden of proof, show-

 11
ing that Causwell's substantial rights were not affected by the admission of Shorty's statements. See United States v. Hastings, 134 F.3d

235, 241 (4th Cir. 1998) (noting the standard in harmless error review

is that the government has the burden of proving substantial rights

were not affected).

 12