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                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 12-12223
                         Non-Argument Calendar
                       ________________________

                 D.C. Docket No. 5:11-cr-00014-JA-TBS-1


UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

NICHOLAS M. RAGOSTA,

                                                          Defendant-Appellant.

                     ___________________________

                Appeal from the United States District Court
                     for the Middle District of Florida
                    ____________________________

                            (June 25, 2013)

Before MARTIN, JORDAN, and FAY, Circuit Judges.

PER CURIAM:
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      We initially issued our unpublished opinion in this case on May 15, 2013.

See United States v. Ragosta, No. 12-12223, 2013 WL 1979711 (11th Cir. May 15,

2013). The mandate in that case issued as well. Due to an administrative error,

however, an opinion containing a prior draft of Section I inadvertently issued.

Having discovered this error, we sua sponte recall the mandate, vacate our prior

opinion, and issue this opinion in its stead. See Calderon v. Thompson, 523 U.S.

538, 549, 118 S. Ct. 1489, 1498 (1998) (“[T]he courts of appeals are recognized to

have an inherent power to recall their mandates, subject to review for an abuse of

discretion.”); see also 11th Cir. R. 41-1(b) (“A mandate once issued shall not be

recalled except to prevent injustice.”). Today’s opinion does not change the

outcome of Mr. Ragosta’s appeal or break new legal ground, and is intended

merely to conform the panel’s analysis to existing precedent.

      Nicholas Ragosta appeals his convictions for one count of conspiracy to

possess 100 kilograms or more of marijuana with intent to distribute, one count of

possession of 100 kilograms or more of marijuana with intent to distribute, and one

count of using and carrying a firearm in furtherance of a drug trafficking crime.

See 21 U.S.C. § 841(a)(1), 21 U.S.C. § 846, 18 U.S.C. § 924(c). Mr. Ragosta

asserts that the district court erred by admitting hearsay evidence and Rule 404(b)

evidence. He also contends, for the first time on appeal, that the government

engaged in prosecutorial misconduct.


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      The government alleged that Mr. Ragosta was involved in a drug heist while

he was a deputy with the Marion County Sheriff’s Office. His first trial resulted in

a hung jury. His second trial resulted in a conviction and a sentence of 180 months’

imprisonment based on evidence that Mr. Ragosta successfully conspired with his

cousin, Andrew Ragosta, and an acquaintance, Robert Abbott, to steal marijuana

from drug dealers. Mr. Ragosta received $30,000 for his participation in the heist,

which took place on May 15, 2009.

                                          I

      Both co-conspirators testified against Mr. Ragosta. During an intercepted

phone conversation on July 6, 2009, which Mr. Ragosta challenges as inadmissible

hearsay, Mr. Abbott and Andrew Ragosta discussed the division of proceeds and a

demand from Nicholas Ragosta’s father (Nicola) that more money be paid to his

sons, Nicholas and Johnny. Over a defense objection that the conversation was not

admissible under the co-conspirator exception because the objectives of the

conspiracy had already been accomplished at the time the conversation occurred,

the district court allowed the government to play the recording for the jury.

      We first address Mr. Ragosta’s argument that the district court improperly

admitted hearsay evidence under the co-conspirator exception, see Fed. R. Evid.

801(d)(2)(E), a ruling we review for abuse of discretion. See United States v.

Underwood, 446 F.3d 1340, 1345 (11th Cir. 2006). This exception applies if the


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government shows by a preponderance of the evidence (1) that a conspiracy

existed, (2) that the declarant and the defendant were both members of the

conspiracy, and (3) that the statement was made during the course of and in

furtherance of the conspiracy. See id. at 1345–46.

      Mr. Ragosta argues that the third element was not met because the

conspiracy had ended when the statements were made. The two participants in the

phone call (Robert Abbott and Andrew Ragosta) were clearly members of the

conspiracy, as Mr. Ragosta readily admits. See, e.g., Ragosta Br. at 17 (“Andrew

Ragosta was part of the conspiracy . . .”). Thus, we find no error in the district

court’s conclusion that the conversation—which discussed the further division of

proceeds among the co-conspirators—was in furtherance of the conspiracy. See

United States v. Turner, 871 F.2d 1574, 1581 (11th Cir, 1989) (conversations

among co-conspirators about how proceeds of theft were going to be distributed

were admissible under Rule 801(d)(2)(E)); United States v. Knuckles, 581 F.2d

305, 313 (2d Cir. 1978) (“[I]t is fair to say that where a general objective of the

conspirators is money, the conspiracy does not end, of necessity, before the spoils

are divided among the miscreants.”). Accordingly, the intercepted conversation

was properly admitted under Rule 801(d)(2)(E).

      Mr. Ragosta also now argues that because the topic of the conversation

between co-conspirators Abbot and Andrew strayed to Nicola’s demand that his


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sons be paid more money, the conversation contained inadmissible hearsay within

hearsay—at least insofar as it relayed Nicola’s demand—because Nicola was not

himself a co-conspirator. Mr. Ragosta did not raise this objection at trial, and thus

we review this claim for plain error only. United States v. Brown, 665 F.3d 1239,

1247 (11th Cir. 2011). To meet this burden, Mr. Ragosta must show “(1) there is

an error; (2) that is plain or obvious; and (3) affected [his] substantial rights in that

it was prejudicial and not harmless.” Id. at 1247 n.3 (quotation marks and

alterations omitted). If these three criteria are met, we may reverse for plain error if

“the error seriously affected the fairness, integrity, or public reputation of the

district court proceedings.” Id. Generally, “[w]hen the explicit language of a statute

or rule does not specifically resolve an issue, there can be no plain error where

there is no precedent from the Supreme Court or this Court directly resolving it.”

United States v. Castro, 455 F.3d 1249, 1253 (11th Cir. 2006) (quotation marks

omitted).

      Mr. Ragosta has failed to show that it was plain error to allow testimony

regarding Nicola’s demand. Even if the demand itself was not admissible under

Rule 801(d)(2)(E) because Nicola was not a co-conspirator, it is debatable whether

the demand was hearsay to begin with. See Fed. R. Evid. 801(c)(2) (“‘Hearsay’

means a statement that: . . . a party offers in evidence to prove the truth of the

matter asserted in the statement.”); see also United States v. Mateos, 623 F.3d


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1350, 1364 (11th Cir. 2010) (“If the statement is not hearsay in the first place,

there is no need for it to fit within an exception to the rule against hearsay.”).

Indeed, we have held that a statement intended as an order—such as the one made

by Nicola here—is not hearsay within the meaning of Rule 801. See United States

v. Cruz, 805 F.2d 1464, 1478 (11th Cir. 1986) (holding that an out-of-court

declaration to “bring your supplier” was not hearsay because “[i]t [was] more in

the nature of an order or a request and [thus], to a large degree, not even capable of

being true or false,” and “[was] offered solely for the fact that it was made and the

effect it might have had upon its hearer”). Likewise, we have held in similar

circumstances that a non-conspirator’s recorded statements are not hearsay, and are

admissible against a conspirator, where they are offered for the purpose of

“mak[ing] understandable to the jury the statements made by [the conspirator].”

United States v. Price, 792 F.2d 994, 997 (11th Cir. 1986); see also United States

v. Smith, 918 F.2d 1551, 1559 (11th Cir. 1990) (same).

      Thus, because our Circuit law at least contemplates that Nicola’s demand

was not hearsay, and Mr. Ragosta has failed to produce any Supreme Court or

Circuit precedent “directly resolving [the issue],” the district court did not commit

plain error in allowing statements regarding Nicola’s demand to be introduced

here. Castro, 455 F.3d at 1253. In any event, admitting Nicola’s demand was

harmless, particularly in light of the adverse testimony of the other co-conspirators,


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and the phone records corroborating Mr. Ragosta’s guilt. See Brown, 665 F.3d at

1247 n.3.

                                           II

      Next we address Mr. Ragosta’s argument that the district court erred by

allowing the government to introduce a list of records accessed using Mr.

Ragosta’s credentials for DAVID—a database used by law enforcement officers to

search for individuals’ photographs and driver’s license information. Mr. Ragosta

contends that this evidence was irrelevant and prejudicial, and therefore should not

have been admitted under Rule 404(b). He also asserts that the government failed

to proffer sufficient proof that he was the person who accessed the records.

      We generally review a district court’s decision to admit evidence under Rule

404(b) for abuse of discretion. See United States v. Ramirez, 426 F.3d 1344, 1354

(11th Cir. 2005). But our review here is only for plain error because Mr. Ragosta

failed to renew his objection during trial after initially asserting it in a motion in

limine. See Brown, 665 F.3d at 1247 (noting that an overruled motion in limine is

insufficient to preserve an objection for appeal). Under plain error review, Mr.

Ragosta must show (1) that there is error, (2) that the error is plain, (3) that the

error affects his substantial rights, and (4) that the error seriously affects the

fairness, integrity, or public reputation of the judicial proceeding. See id. A district

court may admit evidence of other crimes, wrongs, or acts as proof of motive,


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opportunity, intent, preparation, plan, or other non-character reasons. See Fed. R.

Evid. 404(b). The three-part test for admissibility is (1) relevance to an issue other

than the defendant’s character, (2) sufficient evidence that the defendant

committed the act, and (3) probative value not substantially outweighed by undue

prejudice. See United States v. Edouard, 485 F.3d 1324, 1344 (11th Cir. 2007).

      The district court did not err in admitting the evidence. Because the DAVID

searches involved drug-unit officers or potential drug suppliers, the evidence was

relevant to show Mr. Ragosta’s intent and preparation for the drug conspiracy.

Although there was evidence suggesting that another officer could have conducted

the searches, the government’s burden for admissibility was preponderance of the

evidence. See id. (“[T]here must be sufficient proof to enable a jury to find by a

preponderance of the evidence that the defendant committed the act(s) in

question.”). A reasonable jury could conclude that Mr. Ragosta conducted the

DAVID searches given the evidence that each officer had a unique DAVID

certificate and Mr. Ragosta’s own testimony confirming that he conducted at least

some of the searches (although his explanation for why he accessed the records

differed from the government’s proffered rationale). See R:108 at 188–92. Any

undue prejudice, moreover, did not substantially outweigh the probative value of

the evidence. We find no error, plain or otherwise, in the district court’s decision to

admit the DAVID evidence under Rule 404(b).


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                                          III

      Finally, we address the prosecutorial misconduct claim, which we also

review for plain error because Mr. Ragosta raises it for the first time on appeal. See

United States v. Bailey, 123 F.3d 1381, 1400 (11th Cir. 1997). Mr. Ragosta alleges

that the government “altered its evidence at the second trial to defeat [his] alibis.”

Ragosta Br. at 20. To state a claim for prosecutorial misconduct based on the use

of false testimony, Mr. Ragosta must show (1) that the prosecutor knowingly used

perjured testimony or failed to correct testimony subsequently discovered to be

false, and (2) that the falsehood was material. See United States v. McNair, 605

F.3d 1152, 1208 (11th Cir. 2010).

      Mr. Ragosta does not specifically identify what evidence he alleges to have

been “altered” by the government. He points to the testimony of Robert Abbott

regarding the timing of certain events, but provides no real basis for concluding

that his testimony at the second trial contradicted his testimony at the first trial. In

fact, Mr. Abbott consistently testified that he was unsure of the exact time he

arrived home from the heist. Compare R:72 at 101 (testifying at the first trial that

he arrived home at “approximately eight something—I can’t remember the exact

time”), with R:107 at 57 (testifying at the second trial that he couldn’t recall the

exact timeframe he arrived home, but that it was right before dusk).

      Mr. Ragosta also claims the government made “inconsistent argument[s]”


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about the timing of the heist by arguing at the first trial that it could not “pin down”

the exact time of the drug heist, but subsequently arguing at the second trial that

the heist took place during a specific, narrow timeframe. This argument is

contradicted by the record, which indicates that the government argued at both

trials that the heist could have occurred at certain different times based on phone

records and witness testimony. Compare R:75 at 13 (closing argument at first trial,

noting that “it could have been in various stages of when these things took place”),

with R:111 at 14 (closing argument at second trial, noting that “it could have been

at several times . . . but let me give you one scenario”). We find no error, much less

plain error, where Mr. Ragosta fails to identify any false or perjured testimony to

form the basis for his prosecutorial misconduct claim.

      AFFIRMED.




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