                                                   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.



                               O R D E R



     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UNPUBLISHED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Affirmed by unpublished per curiam opinion.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-
TISTE, P.A., Columbia, South Carolina, for Appellant. Alfred Wil-
liam Walker Bethea, Assistant United States Attorney, Florence,
South Carolina, for Appellee. 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Unpublished opinions are not binding precedent in this circuit.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 pos-
session with intent to distribute and distribution of cocaine base in
violation of 21 U.S.C. § 841(a), and one count of conspiracy to pos-
sess with intent to distribute and distribution of cocaine base in con-
travention 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, Caus-
well 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,
                                       1
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 offi-
cers 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. Can-
non 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 investiga-
tion and prosecution. Approximately two weeks after his arrest, Caus-
well 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
_________________________________________________________________

1 In his brief, Causwell argued that he did not receive a Miranda warn-
ing 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 [Caus-
well] during th[e] proffer or discussion . . . in any criminal or civil
case except as provided herein." J.A. 40. The agreement did, how-
ever, 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 Caus-
well 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 Caus-
well'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 con-
cluded, 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 posses-
sion with intent to distribute and distribution of cocaine base, and one
count of conspiracy to possess with intent to distribute and distribu-
tion of cocaine base. J.A. 34-37. Following the indictment, the gov-
ernment 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 convic-
tions listed in the information.

The jury returned a guilty verdict on all three counts of the indict-
ment. 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 termi-
nated 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 state-
ment 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 specific-
ity 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 state-
ments, not on the ground that there was an omission in the indictment,
but rather on the ground that the conspiracy terminated upon Caus-
well'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 admis-
sion 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 repu-
       tation 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 pur-
poses 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 dis-
trict court."

Causwell argues that he was prejudiced by the admission of Shor-
ty'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
_________________________________________________________________

2 We review for plain error since Causwell did not object to this testi-
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 depriva-
tion 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 convic-
tion").

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 subse-
quent indictment or conviction."). Therefore, even if the government
materially breached the proffer agreement, Causwell is simply not
entitled to the relief he seeks.33
_________________________________________________________________

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

                  8
IV.

Prior to argument, Causwell filed a pro se supplemental brief chal-
lenging his sentence under Apprendi v. New Jersey, 120 S. Ct. 2348
(2000). Causwell argues that because drug quantity was neither men-
tioned in the indictment nor proven as an element of the offense, his
sentence violated Apprendi because it exceeded the statutory maxi-
mum 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 sen-
tence 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 impris-
onment 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 vio-
lation 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 con-
cluded 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 sec-
tion 841(b)(1)(C) provided the relevant "maximum," Causwell's sen-
tence does not exceed the maximum and his Apprendi claim fails.

CONCLUSION

For the reasons stated herein, we affirm Causwell's convictions and
sentence.4
         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,
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. Caus-
well'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 suffi-
cient 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 pre-
sentence 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 nar-
cotics 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 "appar-
ent 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 Caus-
well'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 admis-
sion 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
