                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 13-1939
                                     _____________

                           UNITED STATES OF AMERICA

                                            v.

                                  FRANKIE TAYLOR,

                                                         Appellant.



                    On Appeal from the United States District Court
                              for the District of New Jersey
                        (District Court No.: 3-11-cr-00452-006)
                   District Court Judge: Honorable Freda L. Wolfson


                       Submitted under Third Circuit LAR 34.1(a)
                                  on January 13, 2014

                            (Opinion filed: March 12, 2014)

               BEFORE: RENDELL, ROTH and BARRY, Circuit Judges



                                      OPINION



RENDELL, Circuit Judge:

      Frankie Taylor was found guilty on three counts of conspiracy to distribute

controlled substances, in violation of 21 U.S.C. § 846. Specifically, he was convicted of
conspiracy to distribute and possess with intent to distribute five kilograms or more of

cocaine, conspiracy to distribute and possess with intent to distribute twenty-eight grams

or more of crack cocaine, and conspiracy to distribute and possess with intent to

distribute one hundred grams or more of heroin. The District Court sentenced him to 132

months for each count, to run concurrently, and five years supervised release.

       Taylor now appeals alleging that the District Court erred in (1) permitting

testimony from Thomas Goodwyn as a co-conspirator regarding a statement made in

furtherance of the conspiracy; (2) considering venue as a question of fact for the jury; and

(3) denying Taylor’s motion for judgment of acquittal. For the reasons that follow, we

will affirm. 1

                                      I. Background

       Taylor worked at a car detailing and repair shop, referred to as “Motor City,”

owned by Carl Barnett. Barnett was the head of a large conspiracy “the purpose of which

was to profit from the distribution of controlled substances, chiefly heroin, cocaine and

cocaine base, in and around Trenton, New Jersey and Morrisville, Pennsylvania.” PSR

¶56. Aside from Taylor, there were 16 other co-conspirators, including Barnett, all of

whom pled guilty to a variety of charges related to the conspiracy.

       During the course of the conspiracy the investigating officers used wire taps and

cameras to monitor Barnett and his associates. Taylor was observed by a “pole camera”

at Motor City putting a plastic bag in a car that another co-conspirator picked up a short


1
 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction
pursuant to 28 U.S.C. § 1291.
                                             2
time later. (Supp. App. 164, 553.) This bag was allegedly filled with drugs. Taylor was

also heard on some wire taps referring to “hip hop.” (Supp. App. 1051.) Taylor

continuously asserted that he was an employee at Barnett’s legitimate Motor City

business and helped Barnett distribute his hip hop/rap music compact discs. He further

contended that he was unaware that the people with whom Barnett associated, were all

involved in a drug dealing conspiracy.

         At the close of the Government’s case, Taylor made a motion for a judgment of

acquittal pursuant to Federal Rule of Criminal Procedure 29. 2 In his motion, Taylor

contended that the prosecution failed to establish proper venue in New Jersey as to all the

counts during its case-in-chief. The District Court dismissed two counts of possession

with intent to distribute, but reserved the remainder of Taylor’s motion, ultimately

denying it following the jury verdict. 3 In denying Taylor’s motion, the District Court

wrote:

         Here, viewed in the light most favorable to the Government, the
         circumstantial evidence presented by the Government was sufficient for a
         reasonable jury to infer that [Taylor], along with other co-defendants, had a
         unity of purpose, intended to achieve a common goal of distributing illegal
         drugs, and agreed to work together towards that goal.

(Taylor App. 13.)




2
  Fed. R. Crim. Pro. 29(a) reads: “After the government closes its evidence or after the
close of all the evidence, the court on the defendant’s motion must enter a judgment of
acquittal of any offense for which the evidence is insufficient to sustain a conviction.”
3
  Under Fed. R. Crim. Pro. 29(b) when a court reserves decision on a motion for
judgment of acquittal “it must decide the motion on the basis of the evidence at the time
the ruling was reserved.”
                                               3
       In particular, the District Court noted Taylor’s discussions with Barnett during

various wiretapped calls in which Taylor referred to “hip hop.” (See Supp. App. 1051 (“I

need some hip hop too.”).) Further, the Court noted that Taylor was videotaped meeting

with a co-conspirator, and both are then joined by Barnett, who arrives to deliver “‘CDs,’

which denoted drugs.” (Taylor App. 14.) According to the District Court, this evidence,

along with other evidence in the record, could reasonably be relied upon by a jury to infer

that Taylor was a part of the conspiracy.

                                       II. Discussion

                        A. Federal Rule of Evidence 801(d)(2)(E)

       On appeal, Taylor’s first argument is that the District Court erred in allowing

Thomas Goodwyn to testify as to the meaning of certain terms used in the course of the

conspiracy. Specifically, Taylor challenges Goodwyn’s testimony regarding the meaning

of “hip hop” (crack-cocaine), “R&B” (powder cocaine), and “CDs” (quantity of drugs).

(Supp. App. 426.)      Taylor urges that Goodwyn’s testimony should not have been

admitted under Fed. R. Evid. 801(d)(2)(E) 4 because (1) it was not a statement so it would

not be considered under the hearsay Rule; (2) it was not made in furtherance of the

conspiracy; (3) Goodwyn was involved in a separate conspiracy so he was not a co-

conspirator with Taylor; and (4) Goodwyn was not offered as an expert in code words.

Appellent’s Br. at 14-22. While Taylor is correct that Goodwyn’s testimony should not



4
  Fed. R. Evid. 801 (d)(2)(E) reads: “A statement that meets the following conditions is
not hearsay . . . [t]he statement is offered against an opposing party and . . . was made by
the party’s coconspirator during and in furtherance of the conspiracy.”
                                             4
have been admitted under Rule 801, the District Court did not commit reversible error

because the testimony was nonetheless admissible.

       A district court’s interpretation of the Federal Rules of Evidence is reviewed de

novo. United States v. Furst, 886 F.2d 558, 571 (3d Cir. 1989). The application of a

particular rule by a district court is reviewed under an abuse of discretion standard.

United States v. Balter, 91 F.3d 427, 437 (3d Cir. 1996). Accordingly, we review the

District Court’s decision regarding whether a statement constituted hearsay for abuse of

discretion. United States v. Duka, 671 F.3d 329, 348 (3d Cir. 2011). We also note that

we can affirm an evidentiary ruling “for any reason supported by the record.” United

States v. Green, 617 F.3d 233, 249 (3d Cir. 2010).

       Under Fed. R. Evid. 802, hearsay is not admissible unless permitted by federal

statute, the Federal Rules of Evidence or the United States Supreme Court. Hearsay is

defined as “a statement that: (1) the declarant does not make while testifying at the

current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter

asserted in the statement.” Fed. R. Evid. 801(c). “Statement means a person’s oral

assertion, written assertion, or nonverbal assertion, if the person intended it as an

assertion.” Fed. R. Evid. 801(a).

       Here, Taylor is correct that Goodwyn’s testimony should not have been considered

as hearsay, as it was not a statement. Goodwyn testified to facts of which he had

personal knowledge. He outlined the words that he and the other co-conspirator with

whom he spoke, Chartoine Oglesby, used to conduct their drug transactions. Neither he,

nor Oglesby, were making an assertion. See Fed. R. Evid. 801(c) Advisory Committee

                                              5
Note (“If the significance of an offered statement lies solely in the fact that it was made,

no issue is raised as to the truth of anything asserted, and the statement is not hearsay.”).

Indeed, Taylor concedes as much in his brief by arguing that the “statement sought to be

admitted was a not an assertion.” Appellant’s Br. at 18. Absent an assertion, there is no

statement under Rule 801(a), which means there is no hearsay.

         The District Court should not have applied rules regarding hearsay to Goodwyn’s

testimony, but this misapplication was harmless error. Goodwyn was testifying as to

words he, himself, used and the definition he ascribed to them. While Goodwyn dealt

only with Oglesby and never met Taylor, Oglesby was heard on multiple wire taps

discussing drugs with co-conspirator Terrence Smith, who frequently spoke with Carl

Barnett. The code words Oglesby used with Goodwyn could reasonably be inferred by a

jury to be the same code words Oglesby, and his other co-conspirators, including Taylor,

used when talking to each other. His testimony was, thus, admissible.

                                           B. Venue

         Taylor’s second contention is that the District Court erred by allowing the jury to

consider the question of venue even though there was no issue of material fact as to

venue.

         Our review of a district court’s determination of venue is plenary. United States v.

Pendleton, 658 F.3d 299, 302 (3d Cir. 2011). Generally, venue is a question of law for

the court to determine. United States v. Perez, 280 F.3d 318, 332 (3d Cir. 2002)

However, a defendant can object to venue and if that objection is based on a factual

dispute, the court has discretion to instruct the jury to decide the question. Id. The

                                               6
government has the burden of proving venue and must do so by a preponderance of the

evidence. Id. at 333.

       Taylor objected to venue at the conclusion of the prosecution’s case-in-chief in his

motion for a judgment of acquittal. The District Court decided that venue was “in issue”

and told Taylor that it would instruct the jury to determine if venue was proper. (Taylor

App. 70.) On appeal, Taylor asserts that venue was not in issue and therefore, the District

Court should have decided the question of venue as a matter of law. Appellant’s Br. at

25.

       A defendant has a constitutional and statutory right to be prosecuted in the district

where the alleged crime was committed. See U.S. Const. art. III, § 2; 18 U.S.C. §

3237(a). 5 With regard to a conspiracy charge, “venue can be established wherever a co-

conspirator has committed an act in furtherance of the conspiracy.” Perez, 280 F.3d at

329.

       Taylor’s argument primarily relies on the holding of Perez. There we wrote:

        [W]here the indictment alleges venue without a facially obvious defect, if
       (1) the defendant objects to venue prior to or at the close of the
       prosecution’s case-in-chief,[ 6] (2) there is a genuine issue of material fact
       with regard to proper venue, and (3) the defendant timely requests a jury
       instruction, venue becomes a jury question and the court must specifically
       instruct the jury on venue.


5
  18 U.S.C. § 3237(a) reads: “Except as otherwise expressly provided by enactment of
Congress, any offense against the United States begun in one district and completed in
another, or committed in more than one district, may be inquired of and prosecuted in any
district in which such offense was begun, continued, or completed.”
6
  If a defendant does not object to venue during, or immediately following, the
government’s case-in-chief, venue is deemed waived. See United States v. Sandini, 803
F.2d 123, 127 (3d Cir. 1986) (“challenge to venue in a motion for acquittal is timely”).
                                              7
Id. at 334.

       Taylor asserts he did not raise an issue of material fact, nor did he request a jury

instruction, and thus, the District Court had only two choices: Either determine venue as

a matter of law or allow the government to reopen its case to cure any venue defect. See

Id. at 335 n.13 (When the government presents no evidence on venue and the defense

objects “the District Court has the discretion to allow the Government to reopen its case.”

(emphasis added))

       As the government points out, Taylor’s contention that the District Court had only

two choices is incorrect. Even if a defendant does not raise a question of fact as to venue,

aside from objecting to it, a district court has discretion to determine that testimony

presented by the prosecution put venue “in issue.” Id. at 335 n.12. In reviewing the

record, the District Court did not abuse its discretion by allowing the jury to consider the

issue of venue. The conspiracy included 16 other individuals, some of whom lived in

Trenton, NJ. Several taped phone calls refer to New Jersey. Taylor is heard talking to

Barnett about Taylor’s cousin telling him that people are talking about Barnett in

Trenton.

       Taylor argues that the government failed to present evidence of any overt act

being committed in New Jersey. As Taylor points out, an “overt act has been defined as

any act in furtherance of the plan.” Appellant’s Br. at 26 (quoting Perez, 280 F.3d at

329). The government counters by pointing to evidence of overt acts as to each count

that, at the very least, provide a basis for a reasonable juror to infer that members of the

conspiracy performed overt acts in furtherance of the conspiracy in New Jersey. We find

                                              8
there was sufficient evidence for a reasonable juror to determine that venue was proper in

New Jersey. The District Court was justified in deciding venue was proper as a matter of

law, but given that Barnett lived in Morrisville, PA and distributed drugs from

Pennsylvania, as established by the evidence, it was well within the District Court’s

discretion to submit the question to the jury.

             C. Fed. R. Crim. Pro. Rule 29 Motion for Judgment of Acquittal

       Finally, Taylor urges that the District Court’s denial of his motion for judgment of

acquittal was erroneous. The District Court reserved Taylor’s motion until after the jury

returned its verdict. “A Rule 29 motion for judgment of acquittal obliges a district court

to review the record in the light more favorable to the prosecution to determine whether

any rational trier of fact could have found proof of guilt beyond a reasonable doubt based

on the available evidence.” United States v. Bobb, 471 F.3d 491, 494 (3d Cir. 2006)

(internal quotations omitted). Rule 29(b) directs that where a district court reserves a

motion, “it must decide the motion on the basis of the evidence at the time the ruling was

reserved.” Fed. R. Crim. Pro. 29(b). We have plenary review of a district court’s

decision to deny a defendant’s motion for judgment of acquittal. United States v. Smith,

294 F.3d 473, 477 (3d Cir. 2002).

       As cited by the District Court, the elements of conspiracy are “(1) a shared unity

of purpose, (2) an intent to achieve a common goal, and (3) an agreement to work

together toward that goal.” Bobb, 471 F.3d at 494 (quoting United States v. Mastrangelo,

172 F.3d 288, 292 (3d Cir. 1999)). When viewing the evidence in a light most favorable

to the prosecution, the conclusion that Taylor was part of the Barnett conspiracy is

                                                 9
difficult to question. Taylor is heard on numerous wire taps talking to Barnett –

including use of the term “hip hop”– he accompanied him to a drug deal, and Taylor’s

name was listed on a pay sheet that included drug quantities. In short, there was ample

evidence for a jury to find that Taylor was a knowing participant in the conspiracy.

                                     III. Conclusion

       While the District Court and the government seemed unclear as to the contours of

Rule 801, the District Court’s mistake as to the admissibility of Goodwyn’s statement

was harmless error. As to venue, the District Court’s decision to instruct the jury was

within its discretion. Finally, the District Court’s decision to deny Taylor’s Rule 29

motion is well supported in the record. Accordingly, the judgment of the District Court is

affirmed.




                                            10
