                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 02-2905
                                    ___________

United States of America,                 *
                                          *
             Appellee,                    *
                                          *   Appeal from the United States
      v.                                  *   District Court for the District
                                          *   of Minnesota.
James Lamont Chapman,                     *
                                          *
             Appellant.                   *
                                          *

                                    ___________

                              Submitted: May 14, 2003

                                   Filed: September 29, 2003
                                    ___________

Before MORRIS SHEPPARD ARNOLD, HANSEN, and SMITH, Circuit Judges.
                         ___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

       A jury convicted James Chapman of conspiring to distribute and to possess
with intent to distribute marijuana, see 21 U.S.C. §§ 841(a)(1), 846, and of possessing
with intent to distribute marijuana, see 21 U.S.C. § 841(a)(1). The district court1
sentenced Mr. Chapman to 33 months imprisonment on each count to be served


      1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
concurrently. Mr. Chapman appeals his convictions and sentence. We affirm his
convictions and sentence, but we remand for correction of a clerical error in the
judgment and commitment order.

                                          I.
       This case arises out of Mr. Chapman's participation in a drug distribution
conspiracy with his brother, Craig Chapman (Craig), and another individual,
Francisco Barron. During a routine traffic stop, a Colorado state trooper discovered
that Mr. Barron's trunk contained four duffel bags full of marijuana. Mr. Barron
agreed to cooperate in a controlled delivery, and agents of the Drug Enforcement
Agency (DEA) accompanied him to meet his buyer in Minnesota, where the focus of
the investigation shifted to Mr. Chapman and his brother. Mr. Chapman, Craig, and
Mr. Barron were indicted together. At the time that Mr. Chapman and his brother
were jointly tried, Mr. Barron was a fugitive. The jury convicted both Mr. Chapman
and Craig of the charges against them.

                                              II.
       At trial, the district court, over the objections of both of the Chapman brothers,
permitted DEA Special Agent Kyle Scheer to testify extensively about statements that
Mr. Barron made to him in the course of assisting with the controlled delivery.
Mr. Chapman asserts that Mr. Barron's statements to Agent Scheer were inadmissible
hearsay, and that their admission violated his rights under the confrontation clause
of the sixth amendment. We agree with both of these contentions, but we believe that
the error was harmless beyond a reasonable doubt.

      Agent Scheer testified that Mr. Barron told him that he was transporting
marijuana to Minnesota for an individual named "Arturo" in Arizona, and that he had
done so at least twice before. He also testified that Mr. Barron described the "regular
routine" for the delivery of marijuana to Minnesota, as follows: Upon Arturo's
request, Mr. Barron would obtain a rental car, which Arturo would load with

                                          -2-
approximately 120 to 150 pounds of marijuana. Mr. Barron would drive the loaded
car directly to the Minneapolis area and register at a hotel in Burnsville, usually at the
Super 8; he would then contact the person to whom the marijuana was to be delivered
and make arrangements for the delivery. Agent Scheer in fact testified that
Mr. Barron told him the name of the person to whom he was delivering marijuana on
this trip, and that it was the same person whom he had met on previous trips. Agent
Sheer further testified that Mr. Barron gave him two business cards during the
interview, cards that Agent Scheer used to locate and verify the person to whom the
marijuana was to be delivered.

                                             A.
        We consider Mr. Chapman's evidentiary objection first. At trial, the
government successfully argued that Mr. Barron's out-of-court statements should be
admitted (through Agent Scheer) for the truth of the matters asserted because the
statements were against Mr. Barron's penal interest. The "statement-against -interest"
exception to the hearsay rule provides, in relevant part, that if a witness is
"unavailable" (as the rule defines that term), the witness's statement may be admitted
if the statement "at the time of its making ... so far tended to subject the [witness] to
... criminal liability ... that a reasonable person in the [witness's] position would not
have made the statement unless believing it to be true." Fed. R. Evid. 804(b)(3).

       Since Mr. Barron was a fugitive from justice at the time of trial, we certainly
agree that he was unavailable as that term is defined in the rule, see Fed. R. Evid.
804(a)(5), but we do not agree that Mr. Barron's statements implicating a third party
fall within the relevant hearsay exception. Our careful examination of the
circumstances surrounding Mr. Barron's making of the statements implicating a third
party fails to convince us that a reasonable person in Mr. Barron's position would not
have made the statements unless he believed them to be true. Fed. R. Evid. 804(b)(3);
Williamson v. United States, 512 U.S. 594, 603-04 (1994). " '[A] statement admitting
guilt and implicating another person, made while in custody, may well be motivated

                                           -3-
by a desire to curry favor with the authorities and hence fail to qualify as against
interest' " so that it cannot be admitted against the third party that it implicates.
United States v. Hazelett, 32 F.3d 1313, 1317 (8th Cir. 1994) (quoting Fed. R. Evid.
804(b)(3), advisory committee's notes exception (3)); see Williamson, 512 U.S. at
600.

        We find it particularly telling that Mr. Barron made the statements implicating
a third party in the course of assisting the authorities with a controlled delivery
designed to ensnare the repeat Minnesota buyer, some twenty-four hours into his
custody and after his arrest in Colorado. Mr. Barron had already been caught red-
handed with 191 pounds of marijuana that were discovered during a consensual
search of his car; he had little, if anything, to lose by confessing and implicating
another person. See, e.g., Williamson, 512 U.S. at 604 (separate opinion of O'Connor,
J., in which Scalia, J., joined); Hazelett, 32 F.3d at 1314-15, 1318; United States v.
Mendoza, 85 F.3d 1347, 1352 (8th Cir. 1996). It is no secret that "[s]mall fish in a
big conspiracy often get shorter sentences than people who are running the whole
show ... especially if the small fish are willing to help the authorities catch the big
ones." Williamson, 512 U.S. at 604 (separate opinion of O'Connor, J., in which
Scalia, J., joined). Mr. Barron, by casting himself as a mere mule and serving up the
repeat buyer, could reasonably assume that he would be minimizing his criminal
liability. See Hazelett, 32 F.3d at 1314-15, 1318. Mr. Barron's statements
implicating a third party simply do not satisfy the requirements of the statement-
against-interest hearsay exception, and it was error to admit them.

      We think, moreover, that the government's suggestion on appeal that
Mr. Barron's statements could have been admitted for the non-hearsay purpose of
defending the propriety of its investigation cannot rehabilitate their admission. The
government identifies several places in the pretrial and trial proceedings where the
defendants challenged the integrity of the investigation and the bias of the
government's witnesses. We note, however, that all but three of the challenges

                                         -4-
identified by the government were made outside the hearing of the jury. We further
observe that at the time that Agent Scheer testified about Mr. Barron's statements, the
only remotely similar challenge before the jury was Craig's attorney's vague comment
during his opening statement that the jurors should "look for bias" on the part of
witnesses. Challenges made outside the hearing of the jury, or after Mr. Barron's
statements were admitted, obviously cannot have supplied the basis for admitting his
statements. Cf. United States v. Blake, 107 F.3d 651, 653 (8th Cir. 1997); United
States v. Davis, 154 F.3d 772, 778 (8th Cir. 1998).

       It is true that during a pretrial hearing addressing motions in limine, the
government alluded to the possibility of offering statements by Mr. Barron or a
Colorado investigator who was not available for trial for the non-hearsay purpose of
explaining how the investigation moved from Colorado to Minnesota. Cf. United
States v. King, 36 F.3d 728, 732 (8th Cir. 1994); United States v. Running Horse,
175 F.3d 635, 637-38 (8th Cir. 1999); United States v. Azure, 845 F.2d 1503, 1507
(8th Cir. 1988). When a statement is offered for a limited purpose, however, the
district court will instruct the jury on its limited use. See Running Horse, 175 F.3d
at 638; King, 36 F.3d at 732; Azure, 845 F.2d at 1507; Blake, 107 F.3d at 653.
Though it is normally incumbent upon defense counsel to request such an instruction,
here defense counsel could not do so because Mr. Barron's statements were not
offered or admitted for a limited purpose; they were offered, and the jury was
permitted to consider them, for the truth of the matter asserted.

                                        B.
       We turn now to Mr. Chapman's assertion that his constitutional rights were
violated by the admission of Mr. Barron's hearsay testimony. Relying on Bruton v.
United States, 391 U.S. 123 (1968), and its progeny, the government argues that the
admission of Mr. Barron's hearsay testimony did not violate Mr. Chapman's rights
under the confrontation clause because Mr. Barron's statements were redacted to
eliminate any direct reference to the identity of Mr. Barron's repeat buyer. See

                                         -5-
Bruton, 391 U.S. 123; Richardson v. Marsh, 481 U.S. 200 (1987); Gray v. Maryland,
523 U.S. 185 (1998); United States v. Logan, 210 F.3d 820 (8th Cir. 2000), cert.
denied, 531 U.S. 1053 (2000). We think that the government's argument misses the
mark.

       The Bruton line of cases applies when the government seeks to admit a non-
testifying declarant's out-of-court statement against the same declarant who made the
statement. These cases address the adequacy of confrontation clause protections
when the non-testifying declarant has also implicated a co-defendant, and the
declarant and co-defendant are jointly tried. In those situations the government may
introduce the statement against the declarant without violating the co-defendant's
confrontation clause rights if the statement is sanitized to eliminate all direct
references to the co-defendant and if the jury is instructed to consider the statement
only against the declarant. See Richardson, 481 U.S. at 211; Gray, 523 U.S. at 190-
91; Logan, 210 F.3d at 821. In other words, if Mr. Barron and Mr. Chapman had
been tried jointly, the government could have admitted Mr. Barron's statements
against Mr. Barron without violating Mr. Chapman's confrontation clause rights
assuming Mr. Barron's statements were properly redacted and a cautionary instruction
was given.

       It is an entirely different matter, however, when, as here, the government seeks
to admit a non-testifying declarant's statements against a third party. In that situation,
the third party's confrontation clause rights are protected, and the statements are
admissible, only if the statements bear adequate "indicia of reliability." Ohio v.
Roberts, 448 U.S. 56, 65-66 (1980). "[T]he veracity of hearsay statements is
sufficiently dependable to allow the untested admission of such statements against an
accused when [the statements] 'fall[] within a firmly rooted hearsay exception' or ...
contain[] 'particularized guarantees of trustworthiness' such that adversarial testing
would be expected to add little, if anything, to the statements' reliability." United



                                           -6-
States v. Lilly, 527 U.S. 116, 124 (1999) (plurality opinion) (quoting Roberts, 448
U.S. at 66); United States v. Papajohn, 212 F.3d 1112, 1119 (8th Cir. 2000).

       Four justices of the Supreme Court have opined that "accomplices' confessions
that inculpate a criminal defendant are not within a firmly rooted exception to the
hearsay rule as that concept has been defined in our Confrontation Clause
jurisprudence." Lilly, 527 U.S. at 134 (plurality opinion); see Papajohn, 212 F.3d at
1118-19. The same justices also held in Lilly that the accomplice's statements did not
contain the particularized guarantees of trustworthiness necessary to satisfy the
concerns of the confrontation clause. Lilly, 527 U.S. at 137-39 (plurality opinion);
see also Papajohn, 212 F.3d at 1119-20. Because the facts of this case are like those
in Lilly in all significant and material respects, and since Mr. Justice Scalia concurred
in the judgment in Lilly on the ground that the introduction of the statements there
was a "paradigmatic Confrontation Clause violation," id. at 143 (Scalia, J.,
concurring), we believe that the result in Lilly bars the admission of Mr. Barron's
statements against Mr. Chapman on confrontation-clause grounds.

                                          C.
       Having determined that the admission of Mr. Barron's statements violated both
the rules of evidence and the confrontation clause, we are obliged to consider whether
the error was harmless. "Hearsay rule violations which do not affect constitutional
rights are subject to Fed. R. Crim. P. 52(a) harmless error analysis, while
confrontation right violations are subject to the stricter harmless error test found in
Chapman v. California, 386 U.S. 18, 24 (1967), which requires that the error be
harmless beyond a reasonable doubt, id." United States v. Copley, 938 F.2d 107, 110
(8th Cir. 1991) (citation omitted). Applying the stricter standard established by
Chapman, we find that the admission of Mr. Barron's statements, though unfortunate,
was harmless beyond a reasonable doubt.




                                          -7-
       As the Supreme Court has instructed, we have carefully considered "whether
the guilty verdict actually rendered in this trial was surely unattributable to the error,"
Sullivan v. Louisiana, 508 U.S. 275, 279 (1993), and we are convinced that
Mr. Chapman's conviction cannot be attributed to Mr. Barron's statements. We
believe, rather, that when Mr. Barron's statements are viewed in the context of the
other evidence that was admitted, the only possible inference that the jury could have
drawn was that the "buyer" Mr. Barron spoke of was Mr. Chapman's brother, Craig.

      As we have already indicated, Mr. Barron told Agent Scheer that he had a
"regular routine" for the delivery of the marijuana to the Minnesota buyer.
Specifically, upon arriving in Minneapolis, Mr. Barron would register at a hotel and
contact the buyer. Mr. Barron also revealed that he would be contacting the same
buyer on this trip as on previous trips. Mr. Barron then gave Agent Scheer two
business cards: his own card and Craig's card. Based on this information, and with
Mr. Barron's assistance, investigators set up a controlled delivery at a motel where
Mr. Barron had stayed on previous drug trips.

        Once ensconced in the motel, the investigators supervised and recorded three
telephone calls between Mr. Barron and Craig. These tapes, played for the jury at
trial, reveal that Mr. Barron and Craig conversed with great familiarity. Craig is also
heard on the tape telling Mr. Barron that Arturo (the seller of the drugs) called "four
or five" times to check on Mr. Barron's whereabouts and to tell Craig when
Mr. Barron should be arriving. Ultimately it was Craig who met Mr. Barron at the
motel. Additionally, at Craig's home, investigators later recovered scraps of paper;
written on them was the name "Arturo" with an Arizona phone number and the name
"Rosa" (Mr. Barron's wife's name) with a Mexican phone number.

       We note, moreover, that Mr. Chapman's convictions can very easily be
attributed entirely to evidence unrelated to Mr. Barron's statements to Agent Scheer.
See Copley, 938 F.2d at 110. For example, in the recorded telephone conversations

                                           -8-
between Craig and Mr. Barron, after Mr. Barron inquires whether Craig has the
money, Craig says "Ah, I believe so. I'll check with James. . . . If not, we're so close
it don't make no difference." When Mr. Barron later asks Craig, "Why don't you
come and get this shit?" Craig replies, "Yeah, let me call my bro."

       In fact, before Craig drove to Mr. Barron's motel, investigators observed him
stop at a house where Mr. Chapman was staying. After leaving the house and before
driving to Mr. Barron's motel, Craig was observed placing a box in the trunk of his
car, which was later found to contain a substantial amount of cash. At this house,
investigators also found Mr. Chapman's W-2 employment tax form and a cellular
telephone with the name "James" on the back. In the garage of the house
investigators found a cooler containing at least fourteen bags of marijuana and
numerous plastic bags with marijuana residue, along with Mr. Chapman's pit bull
terrier. Three of Mr. Chapman's fingerprints were recovered from two of the plastic
bags.

       Our careful review of the evidence admitted at trial convinces us that the jury
could only have understood Mr. Barron's statements about a "buyer" as referring to
Craig. This can come as no surprise since Mr. Barron's unredacted statements in fact
name Craig as the buyer, and do not mention Mr. Chapman's name at all. We also
find significantly incriminating the evidence that was properly admitted against
Mr. Chapman. We therefore hold that the error in the admission of Mr. Barron's
testimony was harmless beyond a reasonable doubt.

                                       III.
      We consider briefly some other issues that Mr. Chapman raises.

      Mr. Chapman faults the district court for failing to instruct the jury that
Mr. Barron ceased to be a co-conspirator once he began cooperating with the
government. It is, of course, familiar law that "there can be no indictable conspiracy

                                          -9-
involving only the defendant and [a] government agent[or] informer[]." United States
v. Nelson, 165 F.3d 1180, 1184 (8th Cir. 1999). But Mr. Chapman did not proffer an
instruction on this issue below, and we see no plain error here. The district court is
not required sua sponte to instruct the jury that a drug conspiracy requires the
agreement of at least two persons, excluding government agents; all that is required
is that the district court's instructions adequately define the proof necessary to make
out a conspiracy. United States v. McCoy, 86 F.3d 139, 141 (8th Cir. 1996). The
district court in this case correctly instructed the jury that a conspiracy requires an
agreement between at least two persons to commit an illegal act, and there is more
than ample evidence in the record from which it can be inferred that Mr. Chapman
conspired with at least one person who was definitely not a government agent,
namely, Craig Chapman.

        We also reject Mr. Chapman's assertion that the government failed to prove a
proper chain of custody with regard to the marijuana removed from Mr. Barron's car
in Colorado and with regard to the marijuana found in the cooler in the garage of the
house in Minnesota. Mr. Chapman argues that the evidence was inadequate to ensure
that items analyzed by the chemist were the same as those seized. Mr. Chapman did
not, however, object to the admission of this evidence at trial, and so we again review
his challenge for plain error.

       The Colorado trooper who seized the marijuana bundles from Mr. Barron's car
identified the bundles presented at trial (including the four marijuana bundles that
were later used in the DEA-supervised delivery) as the same as those he seized, by
examining the wrapping paper and the markings on the bundles: He described the
packages as wrapped in "tan flour type shelf paper wrapping with cellophane" and
"wood tunnel type wrapping" marked either with a "T" or with "black weight
markings." He turned these packages over to the Colorado DEA task force. A
Minnesota DEA task force member later testified that he obtained a sample from each
of the four marijuana bundles used in the controlled delivery and transferred them to

                                         -10-
the chemist; this same deputy also testified that he transferred the marijuana
recovered from the cooler in the garage to the chemist. The chemist testified that she
received these items from the deputy.

       "A district court may admit physical evidence if the court believes a reasonable
probability exists that the evidence has not been changed or altered. In making this
determination, absent a showing of bad faith, ill will, or proof of tampering, the court
operates under a presumption of integrity for the physical evidence." United States
v. Cannon, 88 F.3d 1495, 1503 (8th Cir. 1996) (citation omitted). Mr. Chapman fails
to indicate how this evidence has been changed in any important respect and offers
nothing specific to rebut the presumption of integrity. See id.; United States v.
Pressley, 978 F.2d 1026, 1028-29 (8th Cir. 1992). Although there were clearly other
steps in the chain as the evidence moved from Colorado to Minnesota and from its
discovery to court, based on the testimony above we find no plain error in the district
court's admission of the evidence.

       Mr. Chapman next argues that the evidence was insufficient to sustain his
convictions. On appeal from a conviction, we must "view the evidence in the light
most favorable to the verdict, giving the government the benefit of all reasonable
inferences." United States v. Peterson, 223 F.3d 756, 759 (8th Cir. 2000), cert.
denied, 531 U.S. 1175 (2001). We have already rehearsed the evidence against
Mr. Chapman, and we need not repeat it here. We do address, however,
Mr. Chapman's argument that because most of the marijuana found in the cooler
(alongside the bags that contained Mr. Chapman's fingerprints and marijuana residue)
was "shake" (stems, seeds, and particles) with little retail value, it cannot support the
distribution element of the possession with intent to distribute charge.

       Viewing the evidence in the light most favorable to the verdict, we believe that
the jury could have reasonably assumed that the presence of the large quantity of
shake, discovered alongside the bags that the government's drug trafficking expert

                                          -11-
testified are the type used to package marijuana for distribution, demonstrated
Mr. Chapman's intent to distribute the rest of the marijuana in the cooler.
Accordingly, we reject Mr. Chapman's challenge to the sufficiency of the evidence
on both the conspiracy to distribute marijuana and the possession with intent to
distribute marijuana counts.

      We have examined Mr. Chapman's other assignments of error and find them
meritless.

                                          IV.
       Finally, we consider Mr. Chapman's assertion that the judgment and
commitment order contains a clerical error referring to 21 U.S.C. § 841(b)(1)(C) as
the applicable penalty provision instead of 21 U.S.C. § 841(b)(1)(D). The
government agrees with Mr. Chapman's assertion. This clerical error now having
been called to the attention of the district court, we remand the case to the district
court for correction of its judgment. See Fed. R. Crim. P. 36.

                                         V.
      For the reasons indicated, we affirm Mr. Chapman's convictions and sentence,
but we remand so that the district court may correct a clerical error in the judgment
and commitment order.
                       ______________________________




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