                                                              NOT PRECEDENTIAL


                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 13-4766
                                   _____________

                          UNITED STATES OF AMERICA

                                          v.

                            DEREK EUGENE SPRIGGS,
                                               Appellant
                                ______________


            APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                               (1:12-CR-0300-001)
                   District Judge: Honorable Sylvia H. Rambo
                                 ______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 9, 2014
                                 ______________


         Before: RENDELL, GREENAWAY, JR., and BARRY, Circuit Judges
                         (Opinion Filed: November 12, 2014)
                                  ______________

                                     OPINION*
                                  ______________



*
 This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
GREENAWAY, JR., Circuit Judge

       Derek Spriggs (“Spriggs”) appeals his judgment of conviction on the basis that

inadmissible hearsay evidence introduced during the trial was not harmless error and

contributed to his guilty verdict. Because we agree with the District Court that the

admission of the impermissible hearsay evidence was harmless, we will affirm the

District Court’s judgment of conviction.

                           I. Factual and Procedural History

       We write primarily for the benefit of the parties and recount only the facts

essential to our discussion.

       Spriggs went to trial in the Middle District of Pennsylvania on two firearms counts

and two drug counts. At trial, the government called Trooper Jon J. Markle as its final

witness. Trooper Markle testified that he was initially contacted by Corporal Scott Wolfe

who had a confidential informant (“CI”) who could purchase marijuana from an

unindicted co-conspirator, Joshua Arvelo. Trooper Markle met with Detective Wolfe and

the CI. Trooper Markle explained that the plan involved the CI calling Arvelo to arrange

a drug transaction for a quarter pound of marijuana for the sum of $460. Trooper Markle

testified that this phone call occurred in his presence. Further, the CI and Arvelo were to

meet in the parking lot at the Harrisburg East Mall, and then travel to Arvelo’s supplier to

retrieve the marijuana. Trooper Markle then explained that “[t]he plan changed” once the

CI arrived in the parking lot. App. 139. He began to testify that “[t]he confidential

informant [had] advised that --” when counsel for Spriggs objected on hearsay grounds.


                                             2
Id.

       The District Court sustained the hearsay objection, and the trooper stated, “I’ll

rephrase. The plan changed. Mr. Arvelo was bringing the supplier with him --.” App.

140. Counsel for Spriggs objected again, but her objection was overruled. Trooper

Markle also testified that members of the surveillance team observed Arvelo drive into

the parking lot with a male individual, later identified as Spriggs, in the passenger seat.

Trooper Markle and the other officers then approached Arvelo’s car in order to remove

Spriggs from the vehicle. He told Spriggs to put his hands up, but observed Spriggs

move his right hand towards his right pocket area as though trying to hide something or

dispose of an object. At this point, Spriggs was arrested and searched. Spriggs had a

gun, an ounce of marijuana, a digital scale, a cell phone, and $89 in cash in his

possession.

       During deliberations, the jury submitted a note to the Court. The note stated that

they “[n]eed[ed the] transcript of testimony related to CI and change of plans to deliver

the drugs. Instead of bringing buyer to supplier, was [sic] there exact statements

indicating supplier would come along? Were these statements from the CI or did law

enforcement listen in to the conversation?” Id. at 245. Upon receipt of this note, the

District Court stated that it “should have probably granted [defense counsel’s] objection

because . . . it was hearsay.” Id. at 247. The District Court then brought in the jury and

responded to the jury’s note by stating: “There are no exact statements in the record

indicating what the change of plans were. The CI did not testify to the change of plans.

                                              3
Arvelo did not specify exactly what the change of plans were. The trooper only listened

in to the conversation when the initial plan was set up. Are you satisfied with that?” Id.

at 256.

          While the foreperson was unequivocally satisfied, another juror interjected and

said, “My understanding, was there no mention once the change of plan took place, was

there no mention in that, instead of our going there, and that’s the first part of it, I’m

bringing the supplier with me, by anyone? Did the trooper say that is what he was told

by the informant, I’m bringing the supplier with me?” Id. at 256-57. The District Court

responded that “[a]nything that the trooper testified to that he heard from someone else

is hearsay and not admissible.” Id. at 257. The questioning juror now appeared to be

satisfied and said, “[a]nd it’s inadmissible, okay.” Id.

          At the close of a two-day trial, the jury found Spriggs guilty of all counts

contained in the indictment except possession with intent to distribute marijuana.

Spriggs filed a post-trial motion seeking a new trial, which was denied. The District

Court found that although Trooper Markle’s statement was inadmissible hearsay, it

constituted harmless error in light of the additional “substantial” evidence the jury had

to consider. In addition, any error was harmless and further mitigated by the curative

instruction given by the Court in response to the jury’s questions.

           The District Court sentenced Spriggs to an aggregate term of imprisonment of

 240 months, representing a downward variance of 120 months. Spriggs filed a timely

 notice of appeal.


                                                 4
                         II. Jurisdiction and Standard of Review

       The District Court had subject matter jurisdiction pursuant to 18 U.S.C. § 3231.

This Court has appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary

review over challenges that implicate the Confrontation Clause, and if we find a

violation, we consider whether the error was harmless. United States v. Lore, 430 F.3d

190, 208-09 (3d Cir. 2005). Because the nature of the error in this case was testimonial,

and therefore constitutional, we will affirm the District Court if we find that the error is

harmless beyond a reasonable doubt. See Gov’t of Virgin Islands v. Davis, 561 F.3d 159,

165 (3d Cir. 2009); Chapman v. California, 386 U.S. 18, 24 (1967) (where a

constitutional right is violated, a court may affirm only if the error is harmless beyond a

reasonable doubt).


                                       III. Discussion

       Spriggs argues that the District Court erred by admitting Trooper Markle’s

testimonial statement regarding the change in plans noting that Arvelo would bring “the

supplier with him to the location.” App. 140. It is undisputed that this statement is

hearsay, it is testimonial, and as such it is inadmissible. Thus, the only question before us

is whether the admission of such evidence amounted to harmless error. “[B]efore a

federal constitutional error can be held harmless, the court must be able to declare a belief

that it was harmless beyond a reasonable doubt.” Chapman, 386 U.S. at 24.

       To determine whether the error was harmless, we must look at the properly

admitted evidence to evaluate whether there was enough to support the conviction
                                              5
beyond a reasonable doubt. See United States v. Hinton, 423 F.3d 355, 362 (3d Cir.

2005) (holding a Confrontation Clause violation was harmless error because “the jury

verdict . . . would have been the same . . . had [the constitutionally unsound] statements

not been admitted . . . .”). As stated in Sullivan v. Louisiana, 508 U.S. 275, 279 (1993),

when determining whether an error is harmless, “[t]he inquiry . . . is not whether, in a

trial that occurred without the error, a guilty verdict would surely have been rendered, but

whether the guilty verdict actually rendered in this trial was surely unattributable to the

error.”

          Spriggs’ argument relies on the assumption that Arvelo’s testimony was already

suspect because he was a cooperator. He posits that Trooper Markle’s inadmissible

statement bolstered Arvelo’s credibility, ultimately leading the jury to believe Arvelo,

which it may not otherwise have done. We disagree. When we apply the harmless error

analysis, as articulated in Chapman and Sullivan, to the facts of this case we find that the

error in admitting Trooper Markle’s statement was harmless beyond a reasonable doubt.

          Here, Trooper Markle’s single statement about Spriggs being the supplier was not

critical to the Government’s case. Arvelo testified about his relationship with Spriggs,

whereby Spriggs supplied him with marijuana and Arvelo then sold it. Arvelo also

testified about Spriggs supplying him with marijuana on the day in question. Further, the

physical evidence corroborated Arvelo’s testimony that Spriggs was his supplier. When

he was arrested, Spriggs had a number of the tools of the narcotics trafficking trade on his

person, including the loaded firearm, an additional ounce of marijuana, and a digital


                                              6
scale. There were also phone records that established communication between the CI and

Arvelo, immediately followed by contact between Arvelo and Spriggs at the time of the

drug transaction. Spriggs also went to the parking lot with Arvelo for the drug

transaction with the CI, but remained in the car while Arvelo and the CI met. This was

consistent with Trooper Markle’s testimony that that suppliers prefer to be close to their

product or money, but not so close that they can be identified by customers.

       Moreover, while the jury did question the District Court about the statement at

issue in this appeal, the District Court mitigated this issue by instructing the jury that

“[a]nything that the trooper testified to that he heard from someone else is hearsay and

not admissible.” App. 257. The jurors understood this missive, because one of them

verbally responded in open court by saying, “[a]nd it’s inadmissible, okay.” Id. The law

presumes that juries “will follow an instruction to disregard inadmissible evidence

inadvertently presented to it, unless there is an overwhelming probability that the jury

will be unable to follow the court’s instructions, and a strong likelihood that the effect of

the evidence would be devastating to the defendant[] . . . .” Greer v. Miller, 483 U.S.

756, 766 n.8 (1987) (citations and internal quotations marks omitted); see also United

States v. Hakim, 344 F.3d 324, 326 (3d Cir. 2003) (“We generally presume that juries

follow instructions given by the District Court . . . .”).

       Because the evidence lawfully admitted against Spriggs was overwhelming, and

the effect of the inadmissible statement was mitigated by the District Court’s instruction,

we conclude that the erroneous admission of Trooper Markle’s testimony was harmless


                                               7
beyond a reasonable doubt. See Chapman, 386 U.S. at 24.




                                     IV. Conclusion

       For the foregoing reasons, we will affirm the judgment of conviction of the

District Court.




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