                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-24-2005

USA v. Cooley
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1592




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                                                                    NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     No: 04-1592

                           UNITED STATES OF AMERICA

                                               v.

                                   JOHN COOLEY,

                                          Appellant

                      Appeal from the United States District Court
                       for the Western District of Pennsylvania
                                  (Crim. No. 02-40E)
                       District Judge: Hon. Sean J. McLaughlin

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     May 5, 2005

                  Before: McKEE, SMITH and VAN ANTWERPEN

                             (Opinion filed: May 24, 2005)

                                       OPINION

McKEE, Circuit Judge.

      John Cooley appeals from a judgment of sentence and conviction. For the reasons

that follow, we will affirm the judgment of conviction. However, we will vacate the

sentence and remand for resentencing pursuant to United States v. Booker,     U.S.    , 125

S.Ct. 738 (2005). See United States v. Davis,       F.3d   , 2005 WL 976941 (3d Cir. April

28, 2005).

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                                              I.

       Because we write only for the parties, we recite only the facts and procedural

history that are necessary for the disposition of this appeal. On December 10, 2002, a

grand jury returned a one-count indictment, charging that from January 1992 and

continuing until December 2002, Cooley conspired to distribute more than 50 grams of

crack cocaine in violation of 21 U.S.C. § 846. The jury found him guilty and, thereafter,

the district court sentenced him to life imprisonment. In his appeal, Cooley argues that

the district court erred in certain evidentiary rulings and in sentencing him to life

imprisonment under the Sentencing Guidelines.

                                              II.

       Cooley makes two challenges to the district court’s evidentiary rulings. First, he

argues that the district court erred by excluding as hearsay the testimony of Ricky Pulliam

that Cooley tried to introduce on the last day of trial. Pulliam knew Curas Henry, Henry

was Cooley’s former lover and, according to the government, one of the many people

Cooley supplied crack cocaine to. Pulliam knew that Henry had tried to borrow money

from Cooley. Cooley either refused to loan the money or reneged on the deal. In any

event, Pulliam testified that Henry told him, with respect to Cooley: “I can’t stand that

son of a bitch.” The government objected, claiming that the testimony was hearsay and

the district court sustained the objection. Cooley argues that ruling was error. Henry’s

statement is hearsay because it is an out-of-court statement offered to prove the truth of



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Henry’s assertion that she could not stand Cooley. Arguably, the statement should have

been admitted under the state of mind exception to the hearsay rule. However, even if

the district court erred by not admitting the statement under that exception, the error was

harmless. A non-constitutional trial error does not “warrant reversal in circumstances

where it is highly probable that the error did not contribute to the judgment.” United

States v. Mathias, 264 F.3d 321, 342 (3d Cir. 2001) (citation and internal quotations

omitted). Although the government has the burden of demonstrating this high

probability, United States v. Adams, 252 F.3d 276, 281 (3d Cir. 2001), it does not have to

disprove every reasonable possibility of prejudice. Mathias, 264 F.3d at 342 (citation

omittted).

       Here, it is clear that the exclusion of Pulliam’s testimony did not contribute to the

jury’s verdict. Henry was not a key or critical witness against Cooley. There was

overwhelming evidence from other witnesses that Cooley was a major crack cocaine

trafficker and that he received large amounts of money from that trafficking.

       Cooley’s second evidentiary argument is that the district court erred by allowing

the government to introduce the testimony of John Vergotz. Vergotz testified that his

business is located next door to Cooley’s house and that he had known Cooley for 15

years. Cooley frequented his business. Vergotz testified that Cooley had been employed

for only about 4 years during their 15-year friendship. Vergotz was trying to purchase a

new home, but needed an additional $10,000 for the closing. He discussed the situation



                                              3
with his secretary one day while Cooley was present in his shop, although Vergotz did not

directly discuss it with Cooley.

       Cooley later invited Vergotz to his house. When Vergotz arrived, Cooley gave

him $10,000 in cash. The actual transfer took place in Cooley’s car. Vergotz later repaid

Cooley.

       Cooley argues that Vergotz’ testimony was inadmissible because it was never

linked to a particular drug transaction. He is wrong. A defendant’s access to unexplained

or unaccounted for wealth is strong circumstantial evidence of involvement in illegal

activity. United States v. Chandler, 326 F.3d 210, 215 (3d Cir. 2003). Thus, possession

of large amounts of cash with evidence of narcotics trafficking is generally relevant and

admissible. United States v. Newton, 891 F.2d 944, 948 (1st Cir. 1989). “The touchstone

of the admissibility inquiry is not the amount of money in the defendant’s possession, but

whether defendant’s failure to account for its source tends to support the government’s

claim that the money was obtained through illegitimate means.” Chandler, 326 F.3d at

215. Moreover, the government does not have to demonstrate a connection between the

funds in question and a specific illegal transaction.

United States v. Jackson-Randolph, 282 F.3d 369, 379 (6th Cir. 2002).

       Here, the government’s evidence established that from January of 1992 until

December of 2003, Cooley distributed multiple kilograms of crack. Numerous witnesses

testified that Cooley was paid hundreds of thousands of dollars for that crack. Several



                                              4
witnesses testified that Cooley transported bags filled with cash to his sister’s home in

Virginia for safekeeping. Vergotz testified that Cooley had only two jobs and was

employed for approximately 4 years out of the 15 years he had known Cooley. The

circumstances surrounding the loan and the nature of the transaction was certainly

probative of Cooley’s involvement in drug trafficking.

       For the above reasons, we will affirm the judgment of conviction.

                                            III.

       At sentencing, the district court found that Cooley trafficked in over 1.5 kilograms

of crack cocaine, that he was the leader or organizer of a criminal activity that involved

more than 5 criminal participants, that he possessed firearms during the conspiracy and

that he attempted to obstruct the administration of justice. Pursuant to the Sentencing

Guidelines, the district court sentenced Cooley to life imprisonment – a sentence beyond

the maximum for the crime of conviction.

       In his appeal, Cooley argues that the district court’s sentence violates United States

v. Booker,   U.S.   , 125 S.Ct. 738 (2005). Under Booker, mandatory enhancement of a

sentence under the Sentencing Guidelines based on facts found by the court and not a

jury, violates the Sixth Amendment. Thus, after Booker, the Sentencing Guidelines are

“effectively advisory.” Id. at 757. Accordingly, district courts will now consider the

applicable advisory Guidelines in addition to the factors set forth in 18 U.S.C. § 3553(a).

Id. at 764-65. Booker is applicable to all cases on direct review. Id. at 769.



                                              5
       Cooley did not raise a Sixth Amendment challenge to his sentence in the district

court and Booker was decided after he was sentenced. Nonetheless, pursuant to our

recent decision in United States v. Davis,   F.3d   , 2005 WL 976941 (3d Cir. April 28,

2005), we will remand for resentencing pursuant to Booker.




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