UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 98-20105

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

WENDELL ALBOYD CORNETT AND MARY MARTILLIEA GALLOWAY,

Defendants-Appellants.

Appeals from the United States District Court

for the Southern District of Texas

November 10, 1999

Before REAVLEY, HIGGINBOTHAM and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

This direct criminal appeal arises from the con viction

following jury trial of Appellants Wendell Alboyd Cornett

(“Cornett”) and Mary Martillea Galloway (“Galloway”) for

conspiracy to distribute and possess with intent to distribute

cocaine and cocaine base in violation of 21 U.S.C. §§ 846,

841(a)(1) and 841(b)(1)(A). For the reasons assigned, we affirm

the convictions and sentences of Appellant Cornett and reverse the

conviction and sentence of Appellant Galloway and remand Galloway’s1 Cornett and Galloway were tried with two other defendants who

were also convicted of participation in the conspiracy. One of

these defendants, James Phillips, was granted a new trial by the

district court.

2 case to the district court for further proceedings consistent with

this opinion.

I. FACTS AND PROCEDURAL HISTORY

This case presents a complicated set of facts that involve

allegations of drug possession and distribution, money-laundering,

tax evasion, police corruption and explo itation. The grand jury

indicted ten co-conspirators as being p art of an elaborate drug

conspiracy. Appellants Cornett and Galloway were tried together

and convicted of performing various roles in the drug conspiracy. 1

Detailed evidentiary facts will be recounted as necessary in

subsequent sections dealing with Appellants' specific claims.

Here, we sketch only a general overview of the drug conspiracy.

Cornett owned and operated multiple businesses in the Houston

area. Specifically, Cornett owned an automotive detailing shop

called the House of Colors and a bowling alley pro shop. Galloway

was one of Cornett’s girlfriends. The government, believing that

Cornett was running an elaborate drug smuggling operat ion behind

the fronts of his legitimate businesses, began a t hree-year

undercover investigation of Cornett and other suspects. In doing

so, the government used undercover agents, cooperating witnesses,

electronic monitoring and wire taps to gather evidence of Cornett’s3

drug smuggling operation.

The government began its investigation of Cornett in 1991

when, upon a valid search of an unrelated suspect, records were

found indicating that Cornett had received possession of over 200

kilograms of cocaine. Later in 1991 Cornett and Kevin Nixon

(“Nixon”) purchased the Stadium Bowl pro shop with $13,500 in cash

provided by Cornett. To recompense his share of the purchase

price, Nixon ran the pro shop and conducted errands for Cornett

--

including making deliveries of cocaine and returning with packages

of cash. Several witnesses corroborated Nixon’s testimony that he

had made deliveries of drugs for cash for Cornett operating out of

the pro shop.

Corn ett used his wife and several girlfriends to assist his

dru g enterprise. Specifically, his girlfriend Kim Boutte

(“Boutte”) arranged drug transactions with customers and counted

the cash receipts. Gradually Cornett used Boutte less and less,

however, as his trust and interest in her waned. The government

contends that Cornett then recruited Galloway to oversee the

counting and storing of the drug money.

Th e facts surrounding Galloway’s involvement in the drug

conspiracy are disputed. The government’s witnesses testified as

to circumstantial evidence ambiguously suggesting differing degrees

of Galloway’s involvement with Cornett and his activities.

Testimony from Nixon and several d rug purchasers suggested that

Galloway was r esponsible for counting the money involved in the4

drug transactions. Specifically, one witness testified that, when

he went to the hair salon where Galloway and Cornett worked for a

rendezvous with Cornett, Galloway let him in the front door and

escorted him to an upstairs room. He said he entered the room

without Galloway and found Cornett c ounting, in his estimation,

over $400,000. An audiotaped statement of a co-conspirator

reported that Cornett had made a sta tement to her in which he

mentioned Galloway in connection with “$500,000.” Another witness

testified that Cornett had told him that Galloway had a money

counting machine and had accurately counted sums in excess of

$21,000 for him. In an attempt to connect Galloway to the drug

money, the government introduced evidence that Galloway re ceived

several expensive presents from Corn ett, including a fur coat, a

custom designed diamond ring and a Mercedes Benz; co-signed an

automobile credit application as a reference for Cornett ; and on

two occasions wrote checks on her own account (for which Cornett

supplied the cash) to pay Cornett’s creditors. Galloway denied her

involvement in the conspirac y, claiming that she had never seen

more tha n $1,000 in cash in her life and that she never owned a

money counting machine. It is undisputed, however, that she knew

how to operate such a mach ine from her experience as a bank

employee. She testified to her belief that any money or presents

she had received from Cornett came from the operations of his

legitimate businesses. Galloway’s experience in bookkeeping and

familiarity with Cornett’s legitimate businesses tends to show that5

she knew Cornett’s legal income from them was not sufficient to

support their lifestyles.

As Cornett continued to engage in the drug conspiracy, the

gov ernment arranged for cooperation with several of the

participants. By 1995 Cornett had sold large amounts of both

powder cocaine and cocaine base to the undercover informants.

Prior to these transactions Cornett had evaded police detection of

his drug operations with the help of James Phillips, a coconspirator, who was also a police officer with access to police

records and databases.

Through its network of coope rating witnesses and undercover

agents, the government compiled evidence of the drug conspiracy

--

recording over 100 audio tapes of co nversation between the

participants. The government argued at the end of the trial that

one of these tapes, Exhibit 1.165, directly implicated Galloway in

the conspiracy. Exhibit 1.165 involves a discussion between Boutte

and a cooper ating witness at the bowling alley pro shop. On the

tape they discussed several topics -- mostly limited to bowling

scores and the appearance of persons on the scene. Part of the

tape consisted of Boutte’s laments over Cornett’s exclusion of her

from some of the drug activities and Cornett’s relat ionship with

Galloway. While mostly unintelligible, the government contends

that this tape directly implicates Galloway because Boutte suggests

her belief that Cornett had entrus ted Galloway with storing and

co unting $500,000 of Cornett’s drug money. Galloway’s counsel2 We do not ad dress the ineffective assistance of counsel

argument, however , because an ineffective assistance of counsel

argument should not be raised for the first time on appeal except

in rare cases where the record is fully developed

. S ee United

States v. Crooks , 83 F.3d 103, 108 (5 t h Cir. 1996). This appeal

does not present such a case.

6 objected to the admission of this tape, but the district court

allowed the tape to be admitted as statements of co-conspirators in

furtherance of the conspiracy under Federal Rules of Evidence

801(d)(2)(e).

Six of the ten indicted co-conspirators pleaded guilty. The

remaining four, Cornett, Galloway, Phillips and Henry DeRousselle

proceeded to a jury trial. The jury convicted Cornett of all

charges except two, and he was sentenced to concurrent life

sentences and concurrent for ty year sentences. Galloway was

convicted on the sole count of conspiracy and sentenced to sixty

months imprisonment. Phillips was convicted of conspiracy, but was

granted a new trial by the district court. Similar motions for

acquittal and for new trial by both Cornett and Galloway were

denied. Cornett and Galloway timely appealed their convictions and

sentences.

II. CORNETT

Cornett raises multiple issues on appeal, including jury

misconduct, right to be present at a juror misconduct hearing,

right to cross-examination and ineffective assistance of counsel. 2

We have considered the oral arguments of counsel, reviewed the3 See Fed.R.Crim.P. 43 (c)(3). It is undisputed that once the

legal proceeding turned to issu es of fact and required crossexamination, the proceeding was halted so that Cornett could be

present. Thus, any possible error is at most harmless. S ee United

States v. Stratton

, 649 F.2d 1066, 1080 (5 th Ci r. 1981) (citing

United States v. Walls , 577 F.2d 690, 697) (9 th Cir. 1978))

4 We review only under Federal Rule of Criminal Procedure 43

because “it is clear th at there is no constitutional right for a

defendant to be present at a conference in chambers concerning

dismissal of a juror.” P rovenzano

, 620 F.2d at 997 (citing United

States v. Howell , 514 F.2d 710, 713 (5 th Cir. 1975)).

7 parties’ briefs and the record designated for appeal. The evidence

of Cornett’s guilt as the leader of the conspiracy is ample and

cogent. The issues he seeks to raise on appeal are governed by

well-settled principles of law and are meritless. The jury

misconduct argument is w ithout merit because Cornett has not

demonstrated any prejudice du e to the exposure of extrinsic

evidence to the jury. S ee, e.g.

, United States v. Kelley

, 140 F.3d

596, 608 (5 th Cir. 1998) . The commencement of a non-evidentiary

hearing regarding possible juror misconduct without Cornett’s

presence was not reversible error because Cornett had no right to

be present at a “conference or hearing upon a question of law” such

as the one conducted by the district court, 3 and in any event, any

such right was waived by the presence of his counsel. 4 S ee, e.g.

,

United States v. Cowan , 819 F.2d 89, 94 (5 t h Cir. 1987); Uni ted

States v. Provenzano

, 620 F.2d 985, 997 (3 rd Cir. 1980). The right

to cross-examination argument is without merit because Cornett was

allowed s ufficient cross-examination “to expose to the jury the5 Since we find the admission of Exhibit 1.165 to be reversible

error, we need not address the issue of the timeliness of

Galloway’s motion to reconsider.

6 Since we are reversing for a reason other than sufficiency of

the evidence, remand is proper because “the accused has a strong

interest in obtainin g a fair readjudication of [her] guilt free

from error, just as society maintains a valid concern for insuring

that the guilty are punished.” United States v. Fitzpatrick , 581

F.2d 1221, 1224 (5 th Cir. 1978).

8 facts from which jurors, as the sole triers of fact and

credibility, could app ropriately draw inferences relating to the

reliability of the witness." U nited States v. Restivo

, 8 F.3d 274,

278 (5 th Cir.1993), cert. denied

, 513 U.S. 807 (1994). Accordingly,

Cornett esta blishes no reversible error, and we affirm his

convictions and sentences.

III. GALLOWAY

Galloway raises three issues on appeal

-- (1) that the

district court erred in finding that it lacked jurisdiction to

review a motion to reconsider, (2) that the evidence presented was

insufficient to establish Galloway’s guilt beyond a reasonable

doubt, and (3) that the district court erred in admitting Exhibit

1.165 under the co-conspir ator definition of non-hearsay in Rule

801(d)(2)(e). Because Galloway’s argument on point (3) has

reversible merit, 5 we set aside the conviction and s entence of

Galloway and remand her case for a new trial. 6

1. Sufficiency of the Evidence7 If an obj ection under Rule 801(d)(2)(e) does not specify the

grounds for objection, then this court may only review for plain

error rather than abuse of discretion. S ee United States v.

Burton

, 126 F.3d 666, 671 (5 th Cir. 1 997). Counsel for Galloway

objected to the admission of Exhibit 1.165 multiple times -- when

first proffered by the government, prior to jury deliberations and

in a motion for new trial. Counsel specifically objected to

admittance of the evidence because, inter alia

, it was not “in

9 Galloway contends that there was insufficient evid ence to

support her conviction of conspiracy. In considering such claims,

the evidence is reviewed “to determine whether a rational trier of

fact, after considering all the evidence and reasonable inferences

drawn therefrom in a light most favorable to the verdict, could

have found the defendant guilty beyond a reasonable doubt.” U nited

States v. Walker

, 148 F.3d 518, 523 (5 th Cir. 1998) (citing United

States v. Carillo-Morales

, 27 F.3d 1054, 1064 (5 th Cir . 1994)).

Under this standard, it cannot be said that the evidence was

insufficient to support Galloway’s conviction as a matter of law.

As discussed infra

, while the evidence presented a clo se case

against Galloway, taking it and all reasonable inferences in the

light most favorable to the verdict, a rational trier of fact could

have found Galloway guilty of conspiracy beyond a reasonable doubt.

Accordingly, we conc lude that there was sufficient evidence to

support Galloway’s conviction.

2. Co-Conspirator Statements

This court reviews admission of hearsay evidence under the

non-hearsay definition of Rule 8 01(d)(2)(e) for abuse of

discretion. 7 S ee United States v. Narviz-Guerra

, 148 F.3d 530, 536furtherance” of the conspiracy. This is sufficient to preserve the

challenge on appeal. Id

. That Galloway did not renew the objection

does not alter this result. C f

. Marceaux v. Conoco, Inc.

, 124 F.3d

730, 733 (5 th Cir. 1997).

10 (5 th Cir. 1998).

Hearsay is not admissible under the Federal Rules of Evidence

unless it fits an exception. Fed.R.Evid. 802. However, Rule 801

provides that certain statements which would otherwise constitute

excludable hearsay under the general rule of Rule 801(c) are not

hearsay by definition. One such definitional non-hearsay is found

in Rule 801(d)(2)(e), which provides:

A statemen t is not hearsay if . . . the statement is

offered against a party and is

. . . a statement by a

c oconspirator of a party during the course and in

furtherance of the conspiracy.

Under Rule 801(d)(2)(e), the proponent of admittance must prove by

a preponderance of the evidence (1) the existence of the conspiracy

(2) the statement was made by a co-conspirator of the party, (3)

the statement was made during the course of the conspiracy, and (4)

the statement was made in furtherance of the conspiracy. S ee

U nited States v. Broussard

, 80 F.3d 1025, 1038 (5 th Cir. 1 996)

(citing Bourjaily v. United States

, 483 U.S. 171, 175 (1987));

United States v. Means

, 695 F.2d 811, 818 (5 th Cir. 1983). There

is no dispute as to the existence of the conspiracy, that the

statements made in Exhibit 1.165 were made by a co-conspirator or

that they were made during the course of the conspiracy

-- the only

issue properly before the court is whether the statement was “in11

furtherance” of the conspiracy.

T he legal standards that define the “in furtheranc e ”

requirement are well -established. A statement must be “in

furtherance” of the conspiracy in order to fit within the nonhearsay definition of Rule 801(d)(2)(e). However, this Circuit has

consistently held that the "in furtherance" requirement is not to

be construed too strictly lest the purpose of the exception be

defeated. See United States v. Lechuga , 888 F.2d 1472, 1480 (5th

Cir.1989); Un ited States v. Ascarrunz , 838 F.2d 759, 763 (5th

Cir.1988). This rule is not without its limits, however; a

statement is not in furtherance of the conspiracy unless it

advances the ultimate objects of the conspiracy. S ee United States

v. Snyder

, 930 F.2d 1090, 1095 (5 t h cir. 1991). “Mere idle

chatter”, even if prejudicial and made among co-conspirators, is

not admissible under Rule 801(d)(2)(e). S ee Means

, 695 F.2d at

818. Thus, while the in furtherance requirement is not a strict

one, it is a necessary one, and the proponent of admissibility must

satisfy it by a preponderance of the evidence. See Broussard , 80

F.3d at 1038; s ee also United States v. Doerr

, 886 F.2d 944, 951

(7 th Cir. 1989).

Exhibit 1.165 involves a discussion between Boutte and a

confidential informant that took place at the bowling alley pro

shop. The tape is over 50 minutes long and the conversation

recorded covers many topics. A significant portion of the tape12

involves discussions between the two co-conspirators on such

divers e issues as the bowling prowess of certain friends and

relatives, the appearance of some of the patrons at the bowling

alley, the merits of certain designer outf its and the respective

talents of certain exotic dancers. Amid these conversations,

however, occurre d the following dialogue which, although mostly

unintelligible, was offered to connect Galloway to the conspiracy:

Boutte: Somebody taking me away from him.

Informant: Thought you was supposed to be his ace.

* * *

Boutte: ya’ll can’t be mad cause what’s her name never

stole for me . . .

Informant: If you going to bring

. . . half a million

dollars. Right ain’t going to steal from you

and he done counted it . . .

Boutte: Now she

. . . because she take x amount of

dollars with her . . . always comparing me to

her likeness . . . he thought she was an

angel.

* * *

Informant: She don’t know what she’s buying into . . .

when I ca lled up there yesterday I thought

that was you.

Boutte: He told me he feel like I was just, he feels

like I’m using him. What the hell am I using

him . . .

Informant: It ain’t all peach and cream . . .

Boutte: That’s what I told him

. . . me and Kevin

ain’t got no business sitting around talking

about his business . . .

* * *13

Boutte: [apparently quoting Cornett]

- I don’t trust

nobody but my wife . . . well I mean there is

other ladies I trust but I ain’t got to tell

you that cause we gonna get into it

. . . Mary

Informant: Mary.

The government contends that this interchange was intended to

further the conspiracy in that it was meant to convey to a

purchaser of the drugs that he should contact a new person

(Galloway) for future drug deals because Boutte had lost favor with

Cornett and Galloway had taken her place. The prosecution argued

that this message is evidenced by the references to Galloway in

connection with the drug money. In finding that the tape was

admissible under Rule 801(d)(2)(e) the district court stated:

The tape says that, essentially, Boutte feels like she’s

being compared to the woman who Cornett bought a Mercedes

for. I hear the word “Mercedes” in there and then they

say “w ho” and they say “Mary.” And this was all in

connection with the half-million dollars.

It is well-settled that a stateme nt made among conspirators

for the purpose of describing proper sources, avenues or conduits

to promote the conspiracy is “in furtherance” for purposes of Rule

801(d)(2)(e). S ee United States v. Lechuga

, 888 F.2d at 1480

(holding that during a conversation arranging a drug transaction,

a reference to a “Wisconsin Source” as the source of the drugs in

question was in furtherance of the conspiracy). However, in the

cases in which a statement was found to be “in furtherance”, either

the statement itself or the conversation as a whole was intended to

advance, facilitate or promote the ultimate conspiratorial14

objective. By way of contrast, conversations that represent “mere

idle chatter” or which are mere narratives of past conduct are not

in furtherance of the conspiracy because the statement and the

conversation were not inte nded to further the conspiracy,

regardless of whether an individual co-conspirator was implicated

in the conversation. See Means , 695 F.2d at 818; see also United

States v. Phillips , 664 F.2d 971, 1027 (5 th Cir. 1980) (abrogation

on other grounds recognized by United States v. Huntress

, 956 F.2d

1309 (5th Cir. 1992)). The distinction between conversations in

furtherance of the conspiracy and prejudicial statements made in

conversations not in furtherance of the conspi racy has been

recognized in other circuits as well. S ee, e.g.

, United States v.

Lieberman , 637 F.2d 95, 102 (2 nd Cir. 1980) (“The conversation

. .

. smacks of nothing more than casual conversatio n about past

events. It is difficult to envision how it would have furthered

the conspiracy”); U nited States v. Santos

, 20 F.3d 280, 286 (7 th

Cir. 1994) (“These statements are best described as narrative

discussions of past events, which do not satisfy the ‘in

furtherance’ requirement of Rule 801(d)(2)(E)”); United States v.

Roberts

, 14 F.3d 502, 514-515 (10 th cir. 1993) (“mere narratives

between co-conspirators or narrative declarations of past events

are not in furtherance”); United States v. Urbanik , 801 F.2d 692,

698 (4 th Cir. 1986) (“We think that this statement can fairly be

treated only as the sort of idle conversation which though it15

touches upon, does not ‘further’ a conspiracy”).

In this respect, the present case is factually similar to the

one addressed by the Fourth Circuit in U rbanik

. In U

rbanik

, two

co-conspirator s conducted a conversation in furtherance of the

conspiracy. Once they finished the business of the conspiracy, the

two co-conspirators moved to a different part of the house and

began lifting weights. During this weight lifting session one of

the co-conspirators implicated a third co-conspirator. The Fourth

Circuit held that this statement was inadmissible hearsay in that

the s tatement was not in furtherance of the conspiracy. It was

evident that the conversation was between two co-conspirators and

that it was made during the course of the conspiracy in that they

had just finished conducting the busin ess of the conspiracy.

However, it was also clear that the co-conspirators had ceased the

operations of the conspiracy and had begun engaging in “mere idle

chatter” as they pursued an unrelated ac tivity. In the words of

the Fourth Circuit:

The statement identifying Urbanik as Pelino's

"connection" for marijuana was merely a casual aside to

the discussion of Urbanik the weight-lifter. In no sense

but a most speculative one could it be thought to have

been made to further the purposes of the conspiracy.

Haselhuhn himself testified that this identification of

Pelino's marijuana supplier could have had no effect on

the conspiratorial relationship between him and Pelino.

We think that this statement can fairly be treated only

as the sort of idle conversation which though it touches

upon, does not "furth er," a conspiracy, and which

accordingly should not be admitted under Rule

801(d)(2)(E). S ee United States v. Means

, 695 F.2d 811,

818 (5 th Cir.1983); U nited States v. Lieberman

, 637 F.2d

95, 102 (2 nd Cir.1980); United States v. Eu banks , 59116

F.2d 513, 520 (9 t h Cir.1979). The requirement that the

statements have been in furtherance of the conspiracy is

designed both to assure their reliability and to be

consistent with the presumption that the coconspirator

would have authorized them.. .. The requirement is not

satisfied by a conversation

... which amounted to no more

than idle chatter.

Urbanik , 801 F.2d at 698 (citations in original).

In the present case, the context of the admitted statements is

that Boutte and the Informant were discussin g a variety of

subjects, which did not concern the conspiracy. The subject of

whether Galloway enjoyed the confidence of Cornett arose out of a

conversation about relationships and trust in relationships

-- the

conver sation turning to the specific trouble in Boutte’s

relationship with Cornett. The reference to the half-million

dollars and then to Mary cannot reasonably be construed to convey

to the Informant the message that future business in the conspiracy

was to be conducted through Galloway instead of Boutte. Rather,

the reference to Galloway and $500,000 was “a mere casual aside” in

the conversation a bout Boutte the spurned lover and Galloway the

other woman. That an allusion to the half-million dollars and

Galloway was made in the statement is irrelevant for purposes of

Rule 801(d)(2)(e) because the possible connection was not made in

furtherance of the conspiracy and the statement was not part of a

conversation that itself was in furtherance of the conspiracy.

While this may be the kind of conversation that touches upon the

conspiracy, it cannot fairly be said that it fur thered the

conspiracy and thus its admissibil ity was not authorized by Rule17

801(d)(2)(e).

This, however, is not the end of the analysis

-- for errors in

evidentiary rulings are subject to the doctrine of harmless error.

See Fed.R.Crim.P. 52(a); Phillips

, 664 F.2d at 1027. Under a

harmless error analysis, the issue is “whether the guilty verdict

actu ally rendered in this trial was surely unattributable to the

error.” S ee Walker

, 148 F.3d at 526 (citing Sullivan v. Louisiana

,

508 U.S. 275, 279 (1993)). The focus, therefore, is on the effect

that an error may have had upon the verdict actually rendered. I d

.

Thus, the error will not require reversal if “beyond a reasonable

doubt the error complained of did not contribute to the verdict

obtained.” Sullivan , 508 U.S. at 279.

Under this standard it cannot be said that the error in

admitting Exhibit 1.165 was harmless. The evidence tending to show

Galloway’s guilt was not unequivocal. One witness testified that

during a drug purchase he made on the street from Cornett, he might

have seen Galloway standing in the doorway of the house from which

Cornett had come. However, his testimony was impeached due to his

l ong-term drug use and the fact the event occurred late at night

and far from his view, and that he could not be certain whether the

woman in the doorway was Galloway or Boutte. Another witness

testified that, while chastising hi m for miscounting $21,000 as

$18,000, Cornett told him that Galloway had counted more money than

that accurately. However, the witness admitted that this testimony

was a vague recollection about a statement Cornett made in passing.18

A third witness testified that Galloway escorted him to the door of

a room at her place of employment in which Cornett was counting

over $400,000. However, there was no direct evidence that Galloway

had seen the money or had knowledge of its source. The government

also introduced evidence of Galloway receiving expensive gifts from

Cornett and writ ing checks on her account, covered by Cornett’s

cash, to pay his creditors. Galloway, testifying on her own

behalf, disputed all of this evidence

-- contending that she had

never counted money except on her previous jobs at a beauty salon

and a bank, had never witnessed a drug purchase, and had not been

present at the house in front of which the drug transaction

described by the drug buyer witness had occurred. Other than

Exhibit 1.165 and the government’s representations of its contents,

no additional evidence or information was presented by the

government with respect to Galloway’s participation in the

conspiracy.

Upon motion for acquittal, the district court noted that the

government had not developed a compelling case with respect to

Galloway’s participation in the conspiracy. Specifically, the

district court stated:

I have to tell you, I think it’s a very, very thin case,

but I don’t think the arguments that you’re making,

though, to the judgment of acquittal, I think they go to

the weight to which the evidence is entitled

. . . but I

will tell the Government how thin I think this case is as

against Ms. Galloway. I’m not going to grant [the]

motion at this time

. . . but I will tell you, you all

need to make a major argument at the end of the case.19

The government heavily relied on the stateme nts in Exhibit 1.165

and its representation s of them to oppose Galloway’s motions for

acquittal and new trial before the district court. After the

district court’s admonishment, the parties proceeded to closing

arguments. During closing, the government made the following

statement, further representing the contents of Exhibit 1.165 to

the jury and stressing the importance of this particular tape to

the government’s case against Galloway:

For those of you who question, those of you who question,

the involvement of Mary Galloway in this case, there are

more than 100 tapes. There is no way, in reasonable

fashion, you can play all those tapes for a jury. You

have to be selective. I f you have some doubt as to Mary

Galloway’s involvement in this criminal conspiracy, you

play

-- its almost 50 minutes long, but you have to

listen to it from beginning to the end to get it in full

context. But if you listen to Government 1.165, 165 like

365 days in the year, 165 days in a year, 1.165, you will

hear Kim Boutte and Reginald Sanders discussing her role.

Over nearly

-- well over $450,000 in cash had to be

counted and they used her name in discussing the role.

(emphasis added). Also, the government introduced a written

summary desc ription of Exhibit 1.165, which was presented to the

jury, containing the following representation of the substance of

the tape

-- “Boutte advised that Mary stored 1⁄2 million dollars for

Wendell Cornett and that Cornett purchased a Mercedes.”

The government’s evidence against Galloway was “thin” as the

trial judge observed, because no item of evidence directly linked

Galloway to the conspiracy. Further, the government relied heavily

on the ambiguous audiotape Exhibit 1.165 to give meaning to all of

its evidence concerning Gallo way. But the tape is almost20

unintelligible and the government’s interpretation of the recorded

conversation (both in its written summary of Exhibit 1.165 and in

jury arguments) as containing a statement “in furtherance” of the

conspiracy is not suppo rted by our hearing of the tape or our

reading of its written transcription. Consequently, it cannot

fairly be said that the guilty verdict actually rendered against

Galloway was surely unattributable to th e erroneous admission of

Exhibit 1.165 and the government’s highly subjective interpretation

of its contents. Accordingly, the error can not be characterized

as harmless, and the admission of Exhibit 1.165 was reversible

error.

IV. CONCLUSION

For the reasons assigned, the convictions and sentences of

Appellant Cornett are AFFIRMED, and the conviction and sentence of

Appellant Galloway is REVERSED. Galloway’s case is REMANDED to the

district court for further proceedings consistent with this

opinion.