                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 07-4629


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

           v.

DARRY WAYNE HANNA,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Florence.   Terry L. Wooten, District Judge.
(4:06-cr-00828-TLW)


Argued:   September 25, 2009                 Decided:   December 2, 2009


Before WILKINSON and DUNCAN, Circuit Judges, and Damon J. KEITH,
Senior Circuit Judge of the United States Court of Appeals for
the Sixth Circuit, sitting by designation.


Affirmed by unpublished opinion.    Senior Judge Keith wrote the
opinion, in which Judge Wilkinson and Judge Duncan joined.


ARGUED: Cameron Bruce Littlejohn, Jr., Columbia, South Carolina,
for Appellant. Thomas Ernest Booth, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Appellee.    ON BRIEF: W. Walter
Wilkins, III, United States Attorney, Columbia, South Carolina,
Rose Mary Parham, Assistant United States Attorney, OFFICE OF
THE UNITED STATES ATTORNEY, Florence, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.




                                2
KEITH, Senior Circuit Judge:

       After a jury trial, Appellant Darry Wayne Hanna (“Darry”)

was convicted of conspiracy to commit mail and wire fraud, in

violation of 18 U.S.C. § 1349; 19 counts of mail fraud, in

violation of 18 U.S.C. § 1341; and two counts of wire fraud, in

violation of 18 U.S.C. § 1343.            The district court sentenced him

to 440 years of imprisonment.             He now appeals his conviction on

grounds that the district court erred:                  (1) in admitting the

extrajudicial      statements      of   decedent   Teresa      Hanna    (“Teresa”);

and    (2)    in   admitting   a    letter    written     by    Hanna’s      brother,

decedent Davy Hanna (“Davy”).             For the reasons that follow, we

affirm the district court’s evidentiary findings.



                                         I.

       This    case   arises   from     the   murder    of     Teresa    Hanna,   and

fraudulent attempts to collect on her life insurance policies

after her death.         Teresa was married to Darry’s brother, Davy

Hanna.       In the early 2000s, serious discord arose between Davy

and Teresa Hanna as a result of their marital problems. Both

Davy   and    Teresa   made    statements     to   this      effect     on   numerous

occasions, and Teresa in particular had informed friends and

acquaintances of her fear that Davy was trying to kill her.

Teresa also told her friends that she thought, when she had

fallen off of the side of a boat a few days earlier, Davy would

                                          3
not    have     rescued     her     from    the     water       if    there      had     not    been

another boat nearby.                On another occasion, she told a friend

that Davy had once said that if he ever wanted to get rid of

her, all it would take was a six pack of beer.

       In the early morning of August 15, 2003 Teresa’s dead body

was discovered lying in her driveway. Teresa had tragically been

shot five times with a .22 caliber rifle and had been killed.

Ronnie        Hanna,     Davy     and      Darry     Hannah’s         father,          discovered

Teresa’s body and called 911.                       Shortly thereafter, paramedics

and state criminal investigators arrived at the scene. When Davy

arrived,       he     immediately       began       to    blame       the     murder      on     Tom

Redmond, Teresa’s employer.

       In August and September 2003, Davy attempted to collect on

Teresa’s multiple life insurance policies using the U.S. Postal

Service.       The     insurance        companies        replied       to        Davy,    and     on

September 26 and October 9, Davy called Reliance and Provident,

two    of     the    insurance      companies,       regarding         the    status       of    his

claims.        In September 2003, Carolina Credit Union paid off the

loan     on    Davy’s       truck    from     the        proceeds      of        Teresa’s       life

insurance policy.

               On October 30, 2003, Davy and his brother Darry were

arrested       and     charged    with     Teresa’s       murder.           On    November       22,

2003,       while    both    Davy    and    Darry        were    in    jail,       Davy     called

Darry’s girlfriend and told her that he would deliver a letter

                                                4
to Darry in a box of soap.           The next day, a jailer seized the

box of soap and Davy’s letter. In the letter, entitled “Our Way

Out,” Davy indicated that he was going to commit suicide and

urged Darry to do the same.          Davy also wrote that each of them

should   write   letters    exculpating     the   other   and    accusing   Tom

Redmond of having murdered Teresa.            On October 20, 2004, Darry

and Davy were formally charged with the murder of Teresa Hanna.

In August 2005, they were acquitted in state court.                 On August

9, 2006, Darry and Davy were indicted on nineteen federal counts

of mail fraud, in violation of 18 U.S.C. § 1341; two counts of

federal wire fraud, in violation of 18 U.S.C. § 1343; and one

federal count of conspiracy to commit mail and wire fraud, in

violation of 18 U.S.C. § 1349.            These counts charged Darry with

participating in the murder of Teresa Hanna in order to recover

proceeds from her life insurance policies.

     Davy   committed      suicide   on    August   26,   2006,    after    his

subsequent detention on federal mail and wire fraud charges.                 In

the fall of 2006, while incarcerated on the same charges as his

brother, Darry made admissions to several of his fellow inmates.

Darry stated that he had agreed to help Davy murder Teresa for

thirty   percent   of   the    insurance      proceeds,    and    Darry     also

complained that Davy should have exculpated Darry in a letter

shortly before committing suicide.



                                      5
     On February 23, 2007, following a jury trial in the United

States District Court for the District of South Carolina, Darry

was convicted on all counts.           He was sentenced to a total of 440

years imprisonment on May 31, 2007.             This appeal followed.



                                        II.

     This    Court    reviews    a    district    court’s    admissions        of   an

extrajudicial statement under the abuse of discretion standard.

See U.S. v. Vidacak, 553 F.3d 344, 348 (4th Cir. 2009).                        Also,

“[U]nder the abuse of discretion standard, this Court may not

substitute its judgment for that of the district court; rather,

[it] must determine whether the district court’s exercise of

discretion, considering the law and the facts, was arbitrary or

capricious.”     U.S. v. Mason, 52 F.3d 1286, 1289 (4th Cir. 1995).

Moreover,     this     Court    has     held    that    “a    district     court’s

evidentiary     rulings    are       entitled    to    substantial      deference,

because a district court is much closer than a court of appeals

to the ‘pulse of the trial.’”                U.S. v. Russell, 971 F.2d 1098,

1104 (4th Cir. 1992).

     If the district court abuses its discretion when making an

evidentiary finding, this Court must determine whether the error

was harmless.        Fed. R. Crim. P. 52(a).           Under this rule, if any

error   is   found,    “[W]e    need    only    be    able   to   say   with    fair

assurance, after pondering all that happened without stripping

                                         6
the erroneous action from the whole, that the judgment was not

substantially swayed by the error.”              U.S. v. Heater, 63 F.3d

311, 325 (4th Cir. 1995)(citing U.S. v. Nyman, 649 F.2d 208, 211

(4th Cir. 1980)).



                                   III.

      It is undisputed that the district court erred in admitting

Teresa’s     extrajudicial    statements       under    the   forfeiture-by-

wrongdoing exception to the hearsay rule.                See Fed. R. Evid.

804(b)(6).    Rule 804(b)(6) admits a statement if it is “offered

against a party that has engaged or acquiesced in wrongdoing

that was intended to, and did, procure the unavailability of the

declarant as a witness.”         Id.       In Giles v. California, 128 S.

Ct. 2678 (2008), decided after the district court’s decision in

this case, the Supreme Court clarified that the forfeiture-by-

wrongdoing exception applies only when a defendant engages in

wrongdoing intended to make a potential declarant unavailable as

a witness.     Id. at 2685.    In other words, it is not enough, for

example, that a defendant murdered a victim with the effect of

preventing    her   testimony;    rather,      the     defendant   must   have

murdered the victim with the intent of preventing her testimony.

Id.   In this case, it is undisputed that Darry allegedly killed

Teresa for the insurance proceeds and not with the purpose of

making her unavailable to testify.             Accordingly, the contested

                                       7
statements cannot be admitted under the forfeiture-by-wrongdoing

exception.

      However,      this       Court    follows     the    settled      rule      that   “in

reviewing the decision of a lower court, it must be affirmed if

the result is correct ‘although the lower court relied upon a

wrong ground or gave a wrong reason.’”                       S.E.C. v. Chenery, 318

U.S. 80, 88 (1943) (citing Helvering v. Gowran, 302 U.S. 238,

245 (1937)); U.S. v. Dunnock, 295 F.3d 431 (4th Cir. 2002).

Teresa’s stated fear that Davy was trying to kill her, and her

statements relating to the dismay she felt stemming from the

negative     tone    of        their    marriage,     were    admissible          on   other

grounds.    Because of this, no reversible error exists here.

      Appellant argues that Teresa’s statements were barred under

the   Confrontation        Clause       of    the   United    States        Constitution.

However, the Supreme Court has ruled that hearsay is not barred

by the Confrontation Clause when the declarant fails to “bear

testimony.”       Crawford v. Washington, 541 U.S. 36, 51 (2004).                         In

Crawford,    the     Supreme       Court      acknowledged     that     a    “person     who

makes   a   casual       remark    to    an    acquaintance,”     such       as    Teresa’s

remarks     to    her     friends       and    acquaintances,         does     not     “bear

testimony”       under    the     Confrontation       Clause.        Id.       Crawford’s

definition of testimony was affirmed in Davis v. Washington, and

most recently in Giles, which held that “statements to friends

and   neighbors”         are    not     testimonial       under   the       Confrontation

                                               8
Clause.      Giles, 128 S. Ct. at 2693; Davis v. Washington, 547

U.S. 813 (2006).        This definition has also been upheld in this

Circuit.     See U.S. v. Udeozor, 515 F.3d 260, 268-270 (4th Cir.

2008)(citing and adhering to Davis and Crawford’s definition of

testimony).

     Moreover, Teresa’s most probative statements are admissible

under the state of mind exception to the hearsay rule. See Fed.

R.   Evid.    803(3).      This   rule     admits   a     “statement     of   the

declarant's then existing state of mind, emotion, sensation, or

physical condition (such as intent, plan, motive, design, mental

feeling, pain, or bodily health). . .”              Id.     While not all of

Teresa’s statements would be admissible under this evidentiary

rule, Teresa’s most probative statements to her friends were

expressions of the general fear and distress she felt at the

time as a result of her relationship with Davy.               For example, a

friend testified that Teresa was “depressed and visibly upset”

during lunch one day soon before she was killed.                       This same

friend also testified of Teresa that, during this same lunch,

“she was crying, and she was shaking.           She was just very scared

acting.”     These statements would have been admissible under Rule

803(3).

     Teresa’s statements regarding the boating accident, while

not admissible under Rule 803(3), appear to have been rendered

harmless     by   the   fact   that   Aftene   Roberts,     one   of    Teresa’s

                                       9
friends,     corroborated       Teresa’s     statements       separately       based   on

her    own   firsthand       experience     of   the   accident.          However,     the

statement in which Teresa told her friend about Davy’s six pack

of beer comment was admitted erroneously, and does not appear to

have been properly admissible under the state of mind exception

or on any other grounds.               Whether admission of this statement

was harmless error turns on a larger analysis of the case as a

whole.

       Under the Federal Rules, “Any error, defect, irregularity,

or    variance   that    does    not      affect    substantial      rights     must   be

disregarded.”       Fed. R. Crim. P. 52(a).                When applying this non-

constitutional harmless error test, this Court has held that

“[e]vidence erroneously admitted will be deemed harmless if a

reviewing     court     is    able   to    ‘say,    with    fair    assurance,     after

pondering     all     that    happened      without    stripping         the   erroneous

action from the whole, that the judgment was not substantially

swayed by the error.’”            U.S. v. Abu Ali, 528 F.3d 210, 231 (4th

Cir. 2008) (citing Kotteakos v. United States, 328 U.S. 750, 765

(1946)).

       Ultimately,      the     government         submitted       all    of    Teresa’s

statements, including her recount of Davy’s six pack of beer

statement, to establish the existence of marital discord between

Teresa and Davy.             This would then serve to help establish the

existence of a motive for Davy to kill his wife.                           But in this

                                            10
case, the government had already accumulated a great deal of

evidence     implicating     Davy’s       motive      to   kill    Teresa    for     the

insurance      proceeds,    as     well     as     evidence       pointing    to     his

subsequent     guilty    conscience.           This   evidence     includes    Davy’s

infidelity, his false statement that he did not have marital

problems, his false statements to the police that he did not

have any life insurance on Teresa, his failure to mention that

he had a second .22 rifle, and the fact that recently fired .22

rifle casings that matched those found near Teresa’s body were

found behind a shed in Davy’s yard, and even Davy’s subsequent

suicide.     Based on this great accumulation of evidence, and in

light of the deferential abuse of discretion standard with which

we   examine     evidentiary       admissions         of   this     type,    and     the

likelihood     that     Teresa’s   most     probative       statements       would    be

admissible on other grounds, we can say, with fair assurance,

that the jury’s judgment was not substantially swayed by the

admission of Teresa’s statements.                  The error that resulted in

the admission of these statements was harmless, and no abuse of

discretion exists here.



                                          IV.

     Appellant also argues that the court erred in admitting

statements from Davy’s “Our Way Out” letter as co-conspirator’s

statements made in furtherance of the conspiracy.                      See U.S. v.

                                          11
Neal, 78 F.3d 901, 905 (4th Cir. 1996).                        Appellant argues that

the conspiracy that he was charged with “was effectively snuffed

out by the arrest of the defendants on the murder charge” on

October    30,   2003.      He   goes    on    to    cite       the   Fifth   Circuit’s

observation that “a defendant’s participation in a conspiracy

normally ends when that person is arrested for his role in the

conspiracy.”      U.S. v. Dunn, 775 F.2d 604, 607 (5th Cir. 1985).

Under the defendant’s theory, when Davy composed “Our Way Out”

on November 21, 2003, the conspiracy no longer existed, so Rule

801(d)(2)(E) could not make the letter admissible.

    Appellee argues that the evidence is relevant non-hearsay

because it was not admitted for the truth of the matter asserted

and was relevant to show the existence of a conspiracy between

the two men in 2003.        Appellee does not, however, argue that the

statements contained in the letter are admissible as statements

of a co-conspirator.        Upon further review, the record shows that

the District Court admitted the statements not as statements of

a co-conspirator, but on other grounds as explained below.

     A    statement   is    nonhearsay        if    it    is    offered   against    the

defendant as a statement by a co-conspirator during the course

of and in furtherance of the conspiracy.                         See Fed. R. Evid.

801(d)(2)(E).       Here,    the   record          does   not    indicate     that   the

District Court found that any of the statements were admissible

under    Rule    801(d)(2)(E).          The    court       stated     that,   although

                                         12
concealment might have been part of the conspiracy, “statements

in    the   letter   would    not    further     the   conspiracy”   because   the

goals of the conspiracy could not be achieved if the double-

suicide proposed by the letter occurred.                 (J.A. 1313-1314.)     The

court later explained that it redacted certain statements from

the letter because “those statements are not co-conspirator’s

statements, or if they are co-conspirator’s statements during

the conspiracy, they are not in furtherance of the conspiracy,

and[,] therefore, they are hearsay and will not be admitted.”

Id. at 1316.         A statement by a co-conspirator is made “‘in

furtherance’ of a conspiracy if it was intended to promote the

conspiracy’s objectives, whether or not it actually has that

effect.”       United States v. Smith, 441 F.3d 254, 262 (4th Cir.

2006).      As the District Court noted, under the facts before us,

Davy and Darry’s goal of obtaining the insurance proceeds would

have    been     rendered    moot    by    the    proposed   double-suicide,    as

neither     of    them   would      have   been    available   to    receive   the

insurance proceeds.

       However, the court found that the unredacted statements in

the letter were admissible, not for their truth, but rather as

evidence of the conspiracy.            (J.A. at 1314.)       It also found that

the statements were admissible to show Davy’s state of mind.

Id.



                                           13
        The   statements      contained         in    the       letter       fit   within     the

confines of Federal Rule of Evidence 803(3), which states that

“[a] statement of the declarant’s then existing state of mind,

emotion,      sensation,      or    physical         condition         [such]      as     intent,

plan, motive, design, mental feeling, pain, and bodily health”

is not excludable as hearsay.                   Fed. R. Evid. 803(3).                     In this

case, the letter shows that Davy had a plan for both he and

Darry to commit suicide and for them both to frame Redmond for

the     crime    by    authoring        corresponding           suicide       notes.         Such

statements show Davy’s apparent mental feeling that the brothers

were in the same situation with regard to the crime and that

they    therefore       had   reason     to     react      in    the     same      way.      This

evidence        is    relevant     to    show        the    brothers’         conspiratorial

relationship regarding the crime.

        This Court has found that circumstantial evidence of the

existence of a relationship is particularly valuable where the

crime alleged is a conspiracy.                  In United States v. Burgos, the

court    explained       that    “by     its    very       nature,       a    conspiracy       is

clandestine and covert, thereby frequently resulting in little

direct evidence of [] an agreement.”                        United States v. Burgos,

94 F.3d 849, 858 (4th Cir. 1996).                           Therefore, “a conspiracy

generally is proved by circumstantial evidence and the context

in which the circumstantial evidence is adduced.”                                    Id.      The

Burgos court further explained that “[c]ircumstantial evidence

                                              14
tending    to    prove        a    conspiracy            may      consist      of     a    defendant’s

‘relationship          with       other       members        of       the    conspiracy.’”              Id.

(citing United States v. Collazo, 732 F.2d 1200, 1205 (4th Cir.

1984)).         Here,    Davy’s             statements         are     relevant           to    show     the

previous    existence             of    the       conspiracy           based    on     the       apparent

nature of the relationship between the brothers as it pertained

to the crime.

      Furthermore,        the          introduction            of     the    statements          did     not

violate Darry’s rights under the confrontation clause because

the   statements        were       not       testimonial.              Testimonial             statements

serve     the    “primary          purpose         .     .     .      [of]     establish[ing]             or

prov[ing]       past    events         potentially           relevant          to    later       criminal

prosecution.”           Davis v. Washington, 547 U.S. 813, 822 (2006).

The statements here were not testimonial because they did not

concern past events.                   Rather, they concerned plans for future

action to be taken by the declarant and his co-defendant.                                                The

Eighth Circuit case of United States v. Spotted Elk, 548 F.3d

641 (8th Cir. 2008), is illustrative on this issue.                                            There, the

appellant’s co-defendant testified at trial that a third co-

defendant       asked     her          to    fabricate            a    story        regarding          their

criminal    activities             and       to    “keep       it”      between        all       the    co-

defendants, including the appellant.                                  Id. at 662.              The court

found that the statements were not testimonial because they were

not “statement[s] of fact, but a proposal of a future course of

                                                    15
action   .   .   .     uttered    not     to      any    official,       but    to    a   co-

defendant.”      Id.    That rationale applies in this case with equal

force.

      Accordingly, the statements contained in the “Our Way Out”

letter were admissible to show Davy’s state of mind, relevant to

the   relationship       between       the    brothers,         and    not    testimonial.

Furthermore,     any    error     in    admitting         the    statements      would     be

harmless in light of the circumstantial evidence against Darry

and    Darry’s    statements       to        several      of     his    prison       inmates

regarding the existence of the conspiracy.

      It is well established that a “presumption of correctness”

is attached to the trial judge’s evidentiary findings in a jury

trial such as this, and the “the likelihood that the appellate

court will rely on the presumption tends to increase when trial

judges   have    lived     with    the       controversy        for    weeks    or    months

instead of just a few hours.”                  Bose Corp v. Consumers Union of

U.S., Inc., 466 U.S. 485, 500 (1984).                     The district court heard

extensive argument on the issue of the admission of this letter–

it    occupied    nearly    150        pages      of     discussion      in    the    trial

transcript.       (J.A.     79A-79TT,         838-873,      1270-1302,         1306-1328.)

The proper and thorough consideration of this issue included an

extensive    discussion      of    both        the      facts    and    the    law.       The

decision to admit this evidence was not an abuse of discretion.



                                             16
                                  V.

     For   the   aforementioned   reasons,   we   affirm   the   district

court’s evidentiary findings and affirm Darry’s conviction.



                                                                 AFFIRMED




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