Submitted: September 27, 2018
from United States District Court for the District of
Nebraska - Lincoln
LOKEN, GRUENDER, and ERICKSON, Circuit Judges.
convicted Robert L. Mayfield, a California resident, of
conspiracy to distribute and possess with intent to
distribute methamphetamine in the District of Nebraska in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A),
and 846. The district court imposed the mandatory minimum
sentence of 240 months' imprisonment. At trial, three
cooperating witnesses testified that their methamphetamine
supplier, Zachary Love, purchased meth from the "Cali
Boys," brothers "Rob" Mayfield and Anthony
"Duga" Harris. Mayfield appeals, arguing that
out-of-court statements Love made to the cooperators, and
recorded calls that Harris made from jail to "Rob"
at a California telephone number, were inadmissible hearsay
and violated his rights under the Confrontation Clause. He
also argues the evidence was insufficient to convict and the
district court erred in imposing an obstruction-of-justice
sentencing enhancement. We affirm.
The Out-of-Court Statements.
trial testimony established that Zachary Love was released
from jail in the spring of 2014 and soon took up with friends
and fellow meth addicts, including Kenneth Johnson, Angelo
Ybarra, and Marlon Rupert. The four men grew up in Lincoln,
Nebraska, had known each other since school days, and each
had used and sold methamphetamine for many years.
government's first witness was Kenneth Johnson. He
testified that in August of 2014, he twice drove Love to an
apartment on Knox Street, where they purchased meth from a
man Love identified as "Rob." Both times, Rob got
in the back seat with Love, who bought two ounces of meth and
later sold one ounce to Johnson. Johnson identified Rob in
court as defendant Robert Mayfield. Johnson testified that
Love met "Rob" at least three other times and
returned from each meeting with two to four ounces of meth.
Love told Johnson that his suppliers were Rob and
"D," brothers from Sacramento who brought meth to
Lincoln on Amtrak trains.
government's second witness was Angelo Ybarra. He
testified that Love was his meth supplier from July or August
until December 2014. Ybarra went with Love to a Knox Street
apartment twice that fall. Both times, Ybarra gave Love
money; Love entered the apartment alone and returned with two
ounces of meth. A week after the second purchase, Ybarra and
Love went to a different apartment, where Ybarra saw Love
purchase meth from a dealer in the doorway fifteen yards
away. Several weeks later, Ybarra and Love picked up the same
dealer and they drove to a nearby home. Love and the dealer
entered the home, and Love returned with a quarter-pound of
meth. Ybarra testified that Love identified the dealer as
"Rob," and said Rob brought the meth from
California by train. Ybarra also witnessed another user, Tim,
purchase an ounce of meth from the same dealer. Ybarra
identified the dealer in court as defendant Robert Mayfield.
third witness was Marlon Rupert. He testified that Love
supplied him meth in the summer of 2014. On two occasions,
Rupert saw Love with a quarter-pound of meth. Love said his
meth sources were the "Cali boys," brothers Rob and
"Duga" and their cousin Joe. Rupert never
accompanied Love to purchase meth, and never spoke with any
of the "Cali boys" while in Lincoln. However,
months later, while incarcerated at CCA Leavenworth, Rupert
became close with another inmate, Robert Mayfield. Upon
learning that Mayfield came from California and was awaiting
trial on methamphetamine distribution charges in Lincoln,
Nebraska, Rupert "put two and two" together and
asked Mayfield if he was one of the "Cali boys" who
supplied Love. Rupert testified that, although hesitant,
Mayfield admitted to having a relationship with Love.
Mayfield also told Rupert that he and "Duga,"
Anthony Harris, were brothers.
law enforcement witnesses testified that, in February 2015,
Harris was arrested and a warrant search of his apartment on
Knox Street uncovered methamphetamine, distribution
paraphernalia, and firearms. At the close of the
government's case, after the district court overruled
Mayfield's objections, the government played tapes of a
series of phone calls Harris placed from jail to a Sacramento
telephone number after his arrest. In these calls, Harris
spoke to man he identified as "Rob." Harris told
Rob that the police had found "like a teener," or
1/16 of an ounce, at Harris's apartment. During a later
call, Harris told Rob the police had in fact found
"everything," including "the banger." Rob
counseled Harris not to speak to anyone or worry about the
charges, and promised to collect a debt in order to raise
funds for a lawyer.
the start of trial, Mayfield objected that Harris's
statements during these recorded calls should be excluded as
inadmissible hearsay and a violation of his Confrontation
Clause rights. During trial, defense counsel made timely
continuing objections that Love's out-of-court statements
as related by the three cooperating witnesses were
inadmissible hearsay. The government contended that all these
statements were admissible under the hearsay exception in
Rule 801(d)(2)(E) of the Federal Rules of Evidence because
they were made during and in furtherance of the charged
a hearsay exception that the Supreme Court described as
"steeped in our jurisprudence" in Bourjaily v.
United States, 483 U.S. 171, 183 (1987), Rule
801(d)(2)(E) provides that a statement offered against an
opposing party that "was made by the party's
coconspirator during and in furtherance of the
conspiracy" is not hearsay. Before admitting a
coconspirator's statement under Rule 801(d)(2)(E), the
government must establish by a preponderance of the evidence,
and the district court must find, "that there was a
conspiracy involving the declarant and the ...