UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 98-4159

ANTHONY MCCLINE LAWTON,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Norfolk.
J. Calvitt Clarke, Jr., Senior District Judge.
(CR-97-120)

Argued: October 29, 1999

Decided: December 2, 1999

Before WILKINSON, Chief Judge, and LUTTIG and MICHAEL,
Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Patrick Hugh O'Donnell, KAUFMAN & CANOLES,
Norfolk, Virginia, for Appellant. Laura P. Tayman, Assistant United
States Attorney, Norfolk, Virginia, for Appellee. ON BRIEF: Helen
F. Fahey, United States Attorney, Norfolk, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Anthony Lawton appeals his conviction and sentence for perjury.
For the reasons stated herein, we affirm.

I.

On October 24, 1996, defendant-appellant Anthony McCline Law-
ton ("Anthony") testified as a defense witness at the trial of his youn-
ger brother Avery Lawton ("Avery") for conspiracy to distribute crack
cocaine and heroin and for possession with intent to distribute crack
cocaine. At that trial, the Government contended that Avery "utilized
proceeds from the sale of narcotics to purchase a 1989 Acura Legend
automobile, which was titled in the name of a nominee." J.A. 217.
Anthony, however, testified that he had purchased the Acura, with-
drawing $4,000 of wage-related savings from his credit-union account
at Guardian Federal to make the $4,650 down payment on October
18, 1995. J.A. 166.

In August of 1997, Anthony was indicted for perjury. 1 Waiving his
right to trial by jury, Anthony appeared before the district court on
November 5, 1997. During the course of the trial, the district court
admitted, over the objection of Anthony's counsel, the testimony of
Government witness Jeffrey Hamm. In that testimony, Hamm
repeated his version of an out-of-court conversation that he had with
the leader of the drug conspiracy, Nathaniel Richardson.
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1 18 U.S.C. § 1623 provides in relevant part:

          Whoever under oath [. . .] in any proceeding before or ancillary
          to any court or grand jury of the United States knowingly makes
          any false material declaration [. . .] shall be fined under this title
          or imprisoned not more than five years, or both.

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At the end of this one-day bench trial, the district court found
Anthony guilty of perjury, supplementing its oral ruling with a written
order dated November 10, 1997. On February 19, 1998, the district
court sentenced Anthony to the statutory maximum for perjury -- 60
months.

II.

Anthony's principal contention on appeal is that the district court
erroneously admitted Hamm's testimony about the conversation
Hamm had with Richardson. Specifically, Anthony argues that the
district court erroneously accepted the Government's contention that
Federal Rule of Evidence 801(d)(2)(E) excluded the conversation
from the definition of hearsay.2

Rule 801(d)(2)(E) provides in relevant part:

          A statement is not hearsay if -- [. . .] The statement is
          offered against a party and is [. . .] (E) a statement by a
          coconspirator of a party during the course and in furtherance
          of the conspiracy. The contents of the statement shall be
          considered but are not alone sufficient to establish[. . .] the
          existence of the conspiracy and the participation therein of
          the declarant and the party against whom the statement is
          offered[.]

Id. (emphasis added). As the text of the Rule makes clear, "[t]o admit
evidence as a co-conspirator's statement, a court must conclude [. . .]
that there was a conspiracy involving the declarant and the party
against whom the admission of the evidence is sought." United States
v. Blevins, 960 F.2d 1252, 1255 (4th Cir. 1992) (citing Bourjaily v.
United States, 483 U.S. 171, 175 (1987)) (emphasis added). Such a
conspiracy need only be proven by "a preponderance of the evi-
dence." Id. And, "a district court's decision to admit evidence under
Rule 801(d)(2)(E) may only be overturned on appeal if it constituted
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2 Absent Rule 801(d)(2)(E), the conversation clearly satisfied the defi-
nition of hearsay. See Fed. R. Evid. 801(c) ("`Hearsay' is a statement,
other than one made by the declarant while testifying at the trial or hear-
ing, offered in evidence to prove the truth of the matter asserted.").

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an abuse of discretion." Id. at 1255-56 (citing United States v. Curro,
847 F.2d 325, 328 (6th Cir. 1988)).

A.

We are satisfied that the district court did not abuse its discretion
in admitting Hamm's testimony. Quite possibly, neither the evidence
adduced prior to the admission of Hamm's testimony of his conversa-
tion with Richardson nor Hamm's testimony itself provided a founda-
tion on which the district court could have found, by a preponderance
of the evidence, that Anthony was a member of the drug conspiracy
of which Hamm and Richardson were members. However, a district
court may, in its discretion, conditionally admit"`evidence as to
things said and done by an alleged co-conspirator subject to being
connected up and followed by evidence of the existence of the con-
spiracy.'" United States v. McCormick , 565 F.2d 286, 289 n.5 (4th
Cir.), cert. denied, 434 U.S. 1021 (1978) (quoting United States v.
Vaught, 485 F.2d 320, 323 (4th Cir. 1973)). And, here, evidence
adduced after the admission of Hamm's testimony did supply the req-
uisite foundation for a finding that Anthony was a member of the drug
conspiracy of which Hamm was a part.

There was ample evidence that Anthony lied under oath about the
source of his funds for purchasing the Acura. See infra Part II.B.
Together with Agent Miller's testimony that "drug dealers frequently
use nominees for their assets [to] conceal[] true ownership and
evade[] detection and also [to] veil[] the asset from seizure," J.A. 72,
and the fact that Anthony and Avery were brothers, this evidence suf-
fices to establish the "slight connection between[Anthony] and the
conspiracy" required to find that Anthony was a member of the con-
spiracy. United States v. Burgos, 94 F.3d 849, 861 (4th Cir. 1996) (en
banc).

B.

Even if the district court had erred in admitting Hamm's conversa-
tion with Richardson under Rule 801(d)(2)(E), we would nevertheless
affirm the judgment of conviction, because the error would have been
harmless. In such event, we could say "`with fair assurance, after pon-
dering all that happened without stripping the erroneous action from

                    4
the whole, that the judgment was not substantially swayed by the
error.'" United States v. Ince, 21 F.3d 576, 583 (4th Cir. 1994) (quot-
ing United States v. Urbanik, 801 F.2d 692, 698-99 (4th Cir. 1986)
(quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946))). In
other words, it is "`highly probable that the error did not affect the
judgment.'" Id. (quoting Urbanik, 801 F.2d at 698-99 (quoting United
States v. Nyman, 649 F.2d 208, 212 (4th Cir. 1980))). The perjury
case against Anthony was not remotely "close," and the "closeness of
the case" is "the single most important factor" in the three-prong test
used by this Circuit to implement the foregoing standard, see Ince, 21
F.3d at 583. As the district court correctly observed, the evidence of
Anthony's guilt was "overwhelming." J.A. 236.

The Government made a strong prima facie showing that Anthony
perjured himself in claiming that he made the down payment on the
Acura with his wage-related savings. Anthony conceded, and payroll,
tax, and bank records produced by the Government corroborated, that
from January 1, 1995, until October 18, 1995, Anthony's take-home
pay totaled only $5,587. J.A. 105-06. Bank records and the testimony
of the bank's custodian of records established that,"throughout the
period July 1 of 1995 until December the 31st of 1995, the balance
was almost regularly under $300," and that withdrawals from Antho-
ny's bank account never exceeded $140 in the four months leading up
to the down payment. J.A. 83, 203-04.

Most importantly, by voluntarily taking the stand in his own
defense, Anthony provided some of the most incriminating evidence
against himself. Anthony defended the veracity of his statement that
he withdrew $4,000 of wage-related savings from Guardian Federal
to make the down payment, as follows. Allegedly, he withdrew the
$4,000 in small quantities over a long period of time, rather than
keeping the full amount in the bank until he needed it, so as to avoid
garnishment. However, Anthony failed to produce any evidence of
the garnishment, and could not even recall when he received the letter
of garnishment. J.A. 112. Anthony also claimed that he saved the
money he withdrew under his grandmother's bed, but he could not
recall his grandmother's street address (even though he also claimed
to have lived with his grandmother at some earlier point in time).
When pressed by the prosecutor, Anthony then claimed that his
grandmother had died. J.A. 113-14.

                    5
Given the "illogical" and "very evasive testimony of the defen-
dant," the district court reasonably concluded that the defendant's tes-
timony was "unbelievable and unpersuasive." J.A. 236. Combined
with the prima facie case of perjury presented by the Government, the
substance of Anthony's testimony and the common-sense inferences
to be drawn therefrom established his guilt so clearly that it is "highly
probable" that the admission of Hamm's conversation with Richard-
son did not "affect" or "substantially sway" the judgment of conviction.3

III.

A.

Anthony's insufficiency-of-the-evidence claim is meritless. For the
reasons stated supra in Part II.B, and based on our review of the
entire trial transcript, we conclude that, "taking the view most favor-
able to the Government," there is "substantial evidence" to support the
judgment of conviction. Glasser v. United States, 315 U.S. 60, 80
(1941).

B.

Equally meritless is Anthony's argument that the district court
reversed the burden of proof. Far from requiring Anthony to prove his
innocence, the district court, in commenting on the implausibility of
"the defendant's explanation," J.A. 125, was simply noting that the
defendant's attempt at rebutting the Government's strong prima facie
case failed.

C.

Anthony finally contends that the district court improperly applied
the cross-reference provision in U.S.S.G. § 2J1.3(c) to enhance his
sentence to 60 months. U.S.S.G. § 2J1.3(c) provides:
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3 It is also noteworthy that in its oral and written findings convicting
Anthony of perjury, the district court never referred to the challenged
conversation Hamm had with Richardson.

                     6
          If the offense involved perjury, subornation of perjury, or
          witness bribery in respect to a criminal offense, apply
          § 2X3.1 (Accessory After the Fact) in respect to that crimi-
          nal offense, if the resulting offense level is greater than that
          determined above.

Id. (emphasis added). Specifically, Anthony argues that his perjury
was not "in respect to" Avery's narcotics conspiracy and possession
offenses.

We review this claim for clear error. See United States v. Colbert,
977 F.2d 203, 207 (6th Cir. 1992) (quoted in part by United States v.
Dickerson, 114 F.3d 464, 467 (4th Cir. 1997)). We conclude that the
district court did not commit clear error in applying U.S.S.G.
§ 2J1.3(c) to enhance Anthony's sentence. Our precedent makes clear
that § 2J1.3(c) "applies not only when a defendant, in fact, acts as an
accessory, but also when he attempts `to assist another person to
escape punishment for an offense.'" Dickerson , 114 F.3d at 467
(quoting U.S.S.G. § 2J1.2, comment. (backg'd) (referenced in
U.S.S.G. § 2J1.3, comment. (backg'd))). Here, by testifying (falsely)
for the defense at Avery's trial, in a manner that contradicted the testi-
mony of, and thereby cast doubt on the credibility of, the Govern-
ment's witnesses at Avery's trial, Anthony did attempt "to assist
another person [Avery] to escape punishment for an offense."

For the reasons stated herein, we affirm Anthony Lawton's convic-
tion and sentence for perjury.

AFFIRMED

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