                                                                              FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                       June 30, 2009
                     UNITED STATES COURT OF APPEALS
                                                                   Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                      Clerk of Court



    UNITED STATES OF AMERICA,

                Plaintiff-Appellee,

    v.                                                   No. 08-8056
                                                (D.C. No. 2:07-CR-238-ABJ-2)
    CLARENCE REX BURNELL,                                 (D. Wyo.)

                Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before HARTZ, Circuit Judge, BRORBY, Senior Circuit Judge, and
TYMKOVICH, Circuit Judge.



         Clarence Rex Burnell appeals his convictions on one count of conspiracy to

possess with intent to distribute, and to distribute fifty grams or more of

methamphetamine pursuant to 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(viii), 846,

and 851, and one count of distribution of fifty grams or more of

methamphetamine and aiding and abetting pursuant to 21 U.S.C. §§ 841(a)(1),


*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
841(b)(1)(A)(viii), 851, and 18 U.S.C. § 2. He contends that the district court

erred in admitting certain coconspirator statements without making the findings

required by Fed. R. Evid. 801(d)(2)(E) and that the prosecutor committed

misconduct by making improper remarks in his closing argument. We have

jurisdiction under 28 U.S.C. § 1291. With regard to the Rule 801(d)(2)(E) issue,

we hold that the court did not commit reversible error. With regard to the

prosecutorial misconduct argument, we hold that the remarks did not rise to the

level of plain error. Accordingly, we AFFIRM the district court’s judgment.

                                  I. Background

      Mr. Burnell’s jury trial featured the testimony of several cooperating

witnesses. Before the government commenced its case, it made a proffer to

establish the requirements for admitting coconspirator statements as non-hearsay

under Rule 801(d)(2)(E). The court found that the government’s proffer would be

sufficient to establish the Rule 801(d)(2)(E) test, but reserved making findings or

ruling on the admissibility of the testimony until the conclusion of the

government’s case.

      The government’s case generally indicated that Mr. Burnell’s girlfriend,

Barbara Davis, sold methamphetamine to Mr. Burnell and others, sometimes from

Mr. Burnell’s residence, and other times in various Wyoming locations to which

she and Mr. Burnell traveled. There was testimony that Mr. Burnell was present

for some of the transactions, and that the buyers and Mr. Burnell sometimes

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smoked methamphetamine (usually provided by Mr. Burnell) together. Some

witnesses testified that they bought small amounts of methamphetamine from

sources who said they got it from Mr. Burnell. One witness testified that

Ms. Davis had complained about Mr. Burnell failing to pay her for drugs that he

was supposed to sell, and another testified that she complained about Mr. Burnell

owing her money. A witness testified to buying one gram of methamphetamine

directly from Mr. Burnell. Another witness testified that, on one occasion,

Mr. Burnell gave him a quarter or a half of a gram when Ms. Davis did not have

the methamphetamine the witness wanted to buy. And there was testimony that

Mr. Burnell drove Ms. Davis and a witness around town while Ms. Davis sold

about seven grams of methamphetamine to the witness.

      On the last day of its case, the government sought to call a previously

undisclosed witness, Mike Stegena. Mr. Stegena had entered a plea agreement

that week and told the government that he had been present at two

methamphetamine transactions involving Mr. Burnell. Over Mr. Burnell’s

objection, the court allowed Mr. Stegena to testify. Up to that point, the

government’s case had involved small amounts of drugs (the greatest being about

a quarter of a pound), but Mr. Stegena’s testimony involved much larger

quantities. He testified that he was present when Ms. Davis and Mr. Burnell sold

a pound of methamphetamine to Terri Jo Ready for $7,500, and, on another

occasion, when Mr. Burnell and his brother sold two pounds of methamphetamine

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to Ms. Ready for $14,000-15,000. When asked how he knew the quantities of

drugs and the amount of money, Mr. Stegena testified that Ms. Ready had said so

during the transactions. Mr. Burnell objected to the admission of this testimony.

      After the government rested, Mr. Burnell moved for acquittal under Federal

Rule of Criminal Procedure 29. In connection with denying the motion, the court

made certain findings under Rule 801(d)(2)(E):

             I find that the evidence, then, is sufficient to establish that this
      defendant was involved in a drug conspiracy; that the drug
      conspiracy involved Barbara Davis as well as other persons, Dawn
      Bartolic certainly for one, and others in various capacities who
      themselves were involved in still other drug conspiracies as their
      primary source of drugs and controlled substances; and that
      Mr. Stegena, a three-time drug dealer, was apparently allegedly,
      according to his testimony, present when the defendant delivered
      substantial quantities of drugs to a friend in Casper, Wyoming, on
      July 4th, 2005 and again prior to October 10 of that same year.

Aplt. App., Vol. 11 at 768. When the government asked the court to make

findings about Ms. Ready’s statements as reported by Mr. Stegena, the court

found that “those statements were made in furtherance of the conspiracy and in its

course.” Id. at 778.

      The trial proceeded, and the prosecutor concluded his rebuttal closing

argument with the following remarks:

            We are a nation of laws, as the Judge indicated. No one,
      including Mr. Burnell, is above the law. If we are a nation of laws,
      then you really only have one choice, guilty as charged, guilty as
      charged. Don’t give him another opportunity to help poison our
      communities. Thank you.


                                           -4-
Id., Vol. 12 at 896. Mr. Burnell did not object to these statements.

      The jury convicted Mr. Burnell, and the court sentenced him to life

imprisonment.

                                   II. Discussion

                           A. Fed. R. Evid. 801(d)(2)(E)

      Under Rule 801(d)(2)(E), a statement is not hearsay if it is made by “a

coconspirator of a party during the course and in furtherance of the conspiracy.”

Thus, to admit coconspirator statements in accordance with the rule, the trial

court must find “the following elements by a preponderance of the evidence:

(1) that a conspiracy existed; (2) that the declarant and the defendant were both

members of the conspiracy; and (3) that the statements were made in the course of

and in furtherance of the conspiracy.” United States v. Sinclair, 109 F.3d 1527,

1533 (10th Cir. 1997). Mr. Burnell makes a procedural challenge to the

admission of Mr. Stegena’s testimony concerning Ms. Ready’s statements. He

concedes that the district court explicitly found the third element, but argues that

the court never made the required findings on the first or second elements.

      While the district court did find that there was a drug conspiracy involving

Mr. Burnell, see Aplt. App., Vol. 11 at 768, there was no explicit finding that

Ms. Ready was also a member of that conspiracy. We have noted, however, that

“a lack of formal findings may not always require a remand to the trial court. In

some cases, the record may demonstrate ‘without any question that the trial court

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did make the requisite inquiry even though no formal findings appear.’” Sinclair,

109 F.3d at 1533 (quoting United States v. Perez, 989 F.2d 1574, 1582 n.3 (10th

Cir. 1993) (en banc)). This is one of those cases.

      As in Sinclair, the trial court “understood that the government was required

to establish the existence of the conspiracy before the out-of-court statements

could be admitted.” Id. at 1534. The record reflects that the court did engage in

a Rule 801(d)(2)(E) inquiry, and as part of that inquiry, the court specifically

analyzed the admissibility of Ms. Ready’s statements, considering the context of

the statements and how the evidence might fit into the government’s theory of the

case. Aplt. App., Vol. 11 at 762-63. Further, even disregarding Ms. Ready’s

remarks, Mr. Stegena’s testimony that he observed the exchange of drugs for

money between Mr. Burnell and Ms. Ready on two occasions constituted evidence

that Mr. Burnell and Ms. Ready were involved in the same conspiracy. See

Sinclair, 109 F.3d at 1534 (noting evidence that tended to establish the first two

Rule 801(d)(2)(E) elements). The court’s review of Mr. Stegena’s testimony and

the finding that Ms. Ready’s statements were in the course of and in furtherance

of the conspiracy further indicate that the court also found that Mr. Burnell and

Ms. Ready were involved in the same conspiracy. See id. (stating that the court’s

allowance of the out-of-court statements indicated it found the witness’s

testimony sufficiently credible to establish the required elements).




                                         -6-
      We conclude that the trial court did not commit reversible error in

admitting Mr. Stegena’s testimony about Ms. Ready’s statements.

                            B. Prosecutorial Misconduct

      Mr. Burnell also alleges that the prosecutor’s concluding remarks

constituted misconduct. Because Mr. Burnell did not object at trial, we review

this issue for plain error. See United States v. Jones, 468 F.3d 704, 707 (10th Cir.

2006). “In order to grant relief, we must find error that is plain, that affects

substantial rights, and that seriously affects the fairness, integrity, or public

reputation of the judicial proceedings.” Id. (quotation omitted).

      We assume without deciding for purposes of this appeal that the

prosecutor’s remark may constitute “error” that is “plain.” See United States v.

Rogers, 556 F.3d 1130, 1143 (10th Cir. 2009) (“Prosecutors are not permitted to

incite the passions of the jury by suggesting they can act as the ‘community

conscience’ to society’s problems.”), cert. denied, __ S. Ct. __, 77 U.S.L.W. 3669

(June 8, 2009) (No. 08-10223); Wilson v. Sirmons, 536 F.3d 1064, 1120 (10th Cir.

2008) (“It is improper for a prosecutor to suggest that a jury has a civic duty to

convict.” (quotation omitted)), reh’g en banc granted, 549 F.3d 1267 (10th Cir.

2008); Malicoat v. Mullin, 426 F.3d 1241, 1256 (10th Cir. 2005) (“Mr. Malicoat

correctly observes that it is error for a prosecutor to exhort a jury to reach a guilty

verdict based on the grounds of civic duty.” (alteration and quotation omitted)).

We are not convinced, however, that any error affected Mr. Burnell’s substantial

                                           -7-
rights or seriously affected the fairness, integrity, or public reputation of his trial.

      “[W]hen reviewing on a plain-error standard, prosecutorial misstatements,

even if inappropriate and amounting to error, must be so severe as to undermine

the fundamental fairness of the trial and contribute to a miscarriage of justice, in

order to amount to a due process violation.” Jones, 468 F.3d at 709. “An

improper appeal to societal alarm typically does not amount to a denial of due

process.” Jones v. Gibson, 206 F.3d 946, 959 (10th Cir. 2000).

      In Rogers, the prosecutor’s appeal to the community’s conscience was

found, on de novo review, to be harmless because the government had built a

“very strong case”; “the large majority of the prosecutor’s closing argument is

supported in the record”; “the jury was properly instructed that closing arguments

are not evidence”; and “the prosecutor’s narrative was a small piece of a lengthy

closing argument, and was simply not egregious enough to influence the jury to

convict on grounds other than the evidence presented.” 556 F.3d at 1143

(quotation omitted); see also Le v. Mullin, 311 F.3d 1002, 1022 (10th Cir. 2002)

(applying similar factors in holding that state court did not unreasonably apply

federal law in ruling that the proceeding was not fundamentally unfair,

notwithstanding an improper remark). Applying the factors set forth in Rogers,

we conclude that the prosecutor’s remark was harmless, and thus Mr. Burnell

cannot satisfy the plain-error standard.




                                           -8-
                                III.

The judgment of the district court is AFFIRMED.


                                          Entered for the Court



                                          Timothy M. Tymkovich
                                          Circuit Judge


HARTZ, J., concurs in the result.




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