                      UNITED STATES COURT OF APPEALS
                           For the Fifth Circuit



                                   No. 98-20105


                        UNITED STATES OF AMERICA,

                                                           Plaintiff-Appellee,


                                      VERSUS


      WENDELL ALBOYD CORNETT AND MARY MARTILLIEA GALLOWAY,

                                                        Defendants-Appellants.




            Appeals from the United States District Court
                  for the Southern District of Texas


                              November 10, 1999
Before REAVLEY, HIGGINBOTHAM and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

     This   direct     criminal      appeal    arises    from   the   conviction

following     jury    trial   of     Appellants      Wendell    Alboyd   Cornett

(“Cornett”)     and    Mary    Martillea       Galloway     (“Galloway”)      for

conspiracy to distribute and possess with intent to distribute

cocaine   and   cocaine   base      in   violation    of   21   U.S.C.   §§   846,

841(a)(1) and 841(b)(1)(A).          For the reasons assigned, we affirm

the convictions and sentences of Appellant Cornett and reverse the

conviction and sentence of Appellant Galloway and remand Galloway’s
case to the district court for further proceedings consistent with

this opinion.



I.       FACTS AND PROCEDURAL HISTORY

         This case presents a complicated set of facts that involve

allegations of drug possession and distribution, money-laundering,

tax evasion, police corruption and exploitation.                The grand jury

indicted ten co-conspirators as being part of an elaborate drug

conspiracy.        Appellants Cornett and Galloway were tried together

and convicted of performing various roles in the drug conspiracy.1

Detailed evidentiary facts will be recounted as necessary in

subsequent        sections   dealing   with   Appellants'   specific    claims.

Here, we sketch only a general overview of the drug conspiracy.

         Cornett owned and operated multiple businesses in the Houston

area.      Specifically, Cornett owned an automotive detailing shop

called the House of Colors and a bowling alley pro shop.               Galloway

was one of Cornett’s girlfriends.             The government, believing that

Cornett was running an elaborate drug smuggling operation behind

the      fronts   of   his   legitimate   businesses,   began    a   three-year

undercover investigation of Cornett and other suspects.                In doing

so, the government used undercover agents, cooperating witnesses,

electronic monitoring and wire taps to gather evidence of Cornett’s


     1
   Cornett and Galloway were tried with two other defendants who
were also convicted of participation in the conspiracy. One of
these defendants, James Phillips, was granted a new trial by the
district court.

                                          2
drug smuggling operation.

       The government began its investigation of Cornett in 1991

when, upon a valid search of an unrelated suspect, records were

found indicating that Cornett had received possession of over 200

kilograms of cocaine.       Later in 1991 Cornett and Kevin Nixon

(“Nixon”) purchased the Stadium Bowl pro shop with $13,500 in cash

provided by Cornett.     To recompense his share of the purchase

price, Nixon ran the pro shop and conducted errands for Cornett --

including making deliveries of cocaine and returning with packages

of cash.   Several witnesses corroborated Nixon’s testimony that he

had made deliveries of drugs for cash for Cornett operating out of

the pro shop.

       Cornett used his wife and several girlfriends to assist his

drug    enterprise.    Specifically,    his   girlfriend     Kim   Boutte

(“Boutte”) arranged drug transactions with customers and counted

the cash receipts.    Gradually Cornett used Boutte less and less,

however, as his trust and interest in her waned.        The government

contends that Cornett then recruited Galloway to oversee the

counting and storing of the drug money.

       The facts surrounding Galloway’s involvement in the drug

conspiracy are disputed.    The government’s witnesses testified as

to circumstantial evidence ambiguously suggesting differing degrees

of   Galloway’s   involvement   with   Cornett   and   his   activities.

Testimony from Nixon and several drug purchasers suggested that

Galloway was responsible for counting the money involved in the

                                   3
drug transactions.    Specifically, one witness testified that, when

he went to the hair salon where Galloway and Cornett worked for a

rendezvous with Cornett, Galloway let him in the front door and

escorted him to an upstairs room.            He said he entered the room

without Galloway and found Cornett counting, in his estimation,

over   $400,000.     An   audiotaped       statement   of   a   co-conspirator

reported that Cornett had made a statement to her in which he

mentioned Galloway in connection with “$500,000.”               Another witness

testified that Cornett had told him that Galloway had a money

counting machine and had accurately counted sums in excess of

$21,000 for him.     In an attempt to connect Galloway to the drug

money, the government introduced evidence that Galloway received

several expensive presents from Cornett, including a fur coat, a

custom designed diamond ring and a Mercedes Benz; co-signed an

automobile credit application as a reference for Cornett; and on

two occasions wrote checks on her own account (for which Cornett

supplied the cash) to pay Cornett’s creditors. Galloway denied her

involvement in the conspiracy, claiming that she had never seen

more than $1,000 in cash in her life and that she never owned a

money counting machine.      It is undisputed, however, that she knew

how to operate such a machine from her experience as a bank

employee.   She testified to her belief that any money or presents

she had received from Cornett came from the operations of his

legitimate businesses.      Galloway’s experience in bookkeeping and

familiarity with Cornett’s legitimate businesses tends to show that

                                       4
she knew Cornett’s legal income from them was not sufficient to

support their lifestyles.

      As Cornett continued to engage in the drug conspiracy, the

government     arranged     for    cooperation         with    several   of    the

participants.       By 1995 Cornett had sold large amounts of both

powder cocaine and cocaine base to the undercover informants.

Prior to these transactions Cornett had evaded police detection of

his   drug   operations    with    the   help     of   James   Phillips,   a   co-

conspirator, who was also a police officer with access to police

records and databases.

      Through its network of cooperating witnesses and undercover

agents, the government compiled evidence of the drug conspiracy --

recording    over    100   audio   tapes     of    conversation     between    the

participants.       The government argued at the end of the trial that

one of these tapes, Exhibit 1.165, directly implicated Galloway in

the conspiracy. Exhibit 1.165 involves a discussion between Boutte

and a cooperating witness at the bowling alley pro shop.                   On the

tape they discussed several topics -- mostly limited to bowling

scores and the appearance of persons on the scene.                  Part of the

tape consisted of Boutte’s laments over Cornett’s exclusion of her

from some of the drug activities and Cornett’s relationship with

Galloway.     While mostly unintelligible, the government contends

that this tape directly implicates Galloway because Boutte suggests

her belief that Cornett had entrusted Galloway with storing and

counting $500,000 of Cornett’s drug money.                    Galloway’s counsel

                                         5
objected to the admission of this tape, but the district court

allowed the tape to be admitted as statements of co-conspirators in

furtherance of the conspiracy under Federal Rules of Evidence

801(d)(2)(e).

      Six of the ten indicted co-conspirators pleaded guilty.          The

remaining four, Cornett, Galloway, Phillips and Henry DeRousselle

proceeded to a jury trial.         The jury convicted Cornett of all

charges except   two,   and   he   was   sentenced   to   concurrent   life

sentences and concurrent forty year sentences.              Galloway was

convicted on the sole count of conspiracy and sentenced to sixty

months imprisonment. Phillips was convicted of conspiracy, but was

granted a new trial by the district court.           Similar motions for

acquittal and for new trial by both Cornett and Galloway were

denied. Cornett and Galloway timely appealed their convictions and

sentences.



II.   CORNETT

      Cornett raises multiple issues on appeal, including jury

misconduct, right to be present at a juror misconduct hearing,

right to cross-examination and ineffective assistance of counsel.2

We have considered the oral arguments of counsel, reviewed the


  2
   We do not address the ineffective assistance of counsel
argument, however, because an ineffective assistance of counsel
argument should not be raised for the first time on appeal except
in rare cases where the record is fully developed.     See United
States v. Crooks, 83 F.3d 103, 108 (5th Cir. 1996). This appeal
does not present such a case.

                                    6
parties’ briefs and the record designated for appeal. The evidence

of Cornett’s guilt as the leader of the conspiracy is ample and

cogent.   The issues he seeks to raise on appeal are governed by

well-settled   principles   of   law    and   are   meritless.       The   jury

misconduct argument is without merit because Cornett has not

demonstrated   any   prejudice   due    to    the   exposure   of   extrinsic

evidence to the jury.   See, e.g., United States v. Kelley, 140 F.3d

596, 608 (5th Cir. 1998).    The commencement of a non-evidentiary

hearing regarding    possible    juror    misconduct    without     Cornett’s

presence was not reversible error because Cornett had no right to

be present at a “conference or hearing upon a question of law” such

as the one conducted by the district court,3 and in any event, any

such right was waived by the presence of his counsel.4              See, e.g.,

United States v. Cowan, 819 F.2d 89, 94 (5th Cir. 1987); United

States v. Provenzano, 620 F.2d 985, 997 (3rd Cir. 1980).             The right

to cross-examination argument is without merit because Cornett was

allowed sufficient cross-examination “to expose to the jury the



  3
   See Fed.R.Crim.P. 43(c)(3).   It is undisputed that once the
legal proceeding turned to issues of fact and required cross-
examination, the proceeding was halted so that Cornett could be
present. Thus, any possible error is at most harmless. See United
States v. Stratton, 649 F.2d 1066, 1080 (5th Cir. 1981) (citing
United States v. Walls, 577 F.2d 690, 697) (9th Cir. 1978))
  4
   We review only under Federal Rule of Criminal Procedure 43
because “it is clear that there is no constitutional right for a
defendant to be present at a conference in chambers concerning
dismissal of a juror.” Provenzano, 620 F.2d at 997 (citing United
States v. Howell, 514 F.2d 710, 713 (5th Cir. 1975)).

                                    7
facts   from     which   jurors,   as       the    sole    triers      of     fact   and

credibility, could appropriately draw inferences relating to the

reliability of the witness." United States v. Restivo, 8 F.3d 274,

278 (5th Cir.1993), cert. denied, 513 U.S. 807 (1994). Accordingly,

Cornett    establishes     no   reversible        error,     and      we    affirm   his

convictions and sentences.



III. GALLOWAY

      Galloway    raises   three   issues         on   appeal    --    (1)    that   the

district court erred in finding that it lacked jurisdiction to

review a motion to reconsider, (2) that the evidence presented was

insufficient to establish Galloway’s guilt beyond a reasonable

doubt, and (3) that the district court erred in admitting Exhibit

1.165 under the co-conspirator definition of non-hearsay in Rule

801(d)(2)(e).       Because     Galloway’s        argument      on    point    (3)   has

reversible merit,5 we set aside the conviction and sentence of

Galloway and remand her case for a new trial.6

      1.    Sufficiency of the Evidence



  5
   Since we find the admission of Exhibit 1.165 to be reversible
error, we need not address the issue of the timeliness of
Galloway’s motion to reconsider.
  6
   Since we are reversing for a reason other than sufficiency of
the evidence, remand is proper because “the accused has a strong
interest in obtaining a fair readjudication of [her] guilt free
from error, just as society maintains a valid concern for insuring
that the guilty are punished.” United States v. Fitzpatrick, 581
F.2d 1221, 1224 (5th Cir. 1978).


                                        8
      Galloway contends that there was insufficient evidence to

support her conviction of conspiracy.     In considering such claims,

the evidence is reviewed “to determine whether a rational trier of

fact, after considering all the evidence and reasonable inferences

drawn therefrom in a light most favorable to the verdict, could

have found the defendant guilty beyond a reasonable doubt.” United

States v. Walker, 148 F.3d 518, 523 (5th Cir. 1998) (citing United

States v. Carillo-Morales, 27 F.3d 1054, 1064 (5th Cir. 1994)).

Under this standard, it cannot be said that the evidence was

insufficient to support Galloway’s conviction as a matter of law.

As discussed infra, while the evidence presented a close case

against Galloway, taking it and all reasonable inferences in the

light most favorable to the verdict, a rational trier of fact could

have found Galloway guilty of conspiracy beyond a reasonable doubt.

Accordingly, we conclude that there was sufficient evidence to

support Galloway’s conviction.

      2.   Co-Conspirator Statements

      This court reviews admission of hearsay evidence under the

non-hearsay    definition   of   Rule   801(d)(2)(e)   for   abuse   of

discretion.7   See United States v. Narviz-Guerra, 148 F.3d 530, 536

  7
   If an objection under Rule 801(d)(2)(e) does not specify the
grounds for objection, then this court may only review for plain
error rather than abuse of discretion.      See United States v.
Burton, 126 F.3d 666, 671 (5th Cir. 1997). Counsel for Galloway
objected to the admission of Exhibit 1.165 multiple times -- when
first proffered by the government, prior to jury deliberations and
in a motion for new trial.      Counsel specifically objected to
admittance of the evidence because, inter alia, it was not “in

                                   9
(5th Cir. 1998).

     Hearsay is not admissible under the Federal Rules of Evidence

unless it fits an exception.   Fed.R.Evid. 802.   However, Rule 801

provides that certain statements which would otherwise constitute

excludable hearsay under the general rule of Rule 801(c) are not

hearsay by definition.   One such definitional non-hearsay is found

in Rule 801(d)(2)(e), which provides:

     A statement is not hearsay if . . . the statement is
     offered against a party and is . . . a statement by a
     coconspirator of a party during the course and in
     furtherance of the conspiracy.

Under Rule 801(d)(2)(e), the proponent of admittance must prove by

a preponderance of the evidence (1) the existence of the conspiracy

(2) the statement was made by a co-conspirator of the party, (3)

the statement was made during the course of the conspiracy, and (4)

the statement was made in furtherance of the conspiracy.        See

United States v. Broussard, 80 F.3d 1025, 1038 (5th Cir. 1996)

(citing Bourjaily v. United States, 483 U.S. 171, 175 (1987));

United States v. Means, 695 F.2d 811, 818 (5th Cir. 1983).    There

is no dispute as to the existence of the conspiracy, that the

statements made in Exhibit 1.165 were made by a co-conspirator or

that they were made during the course of the conspiracy -- the only

issue properly before the court is whether the statement was “in



furtherance” of the conspiracy. This is sufficient to preserve the
challenge on appeal. Id. That Galloway did not renew the objection
does not alter this result. Cf. Marceaux v. Conoco, Inc., 124 F.3d
730, 733 (5th Cir. 1997).

                                 10
furtherance” of the conspiracy.

       The   legal      standards   that     define     the   “in   furtherance”

requirement       are    well-established.        A   statement     must   be   “in

furtherance” of the conspiracy in order to fit within the non-

hearsay definition of Rule 801(d)(2)(e). However, this Circuit has

consistently held that the "in furtherance" requirement is not to

be construed too strictly lest the purpose of the exception be

defeated.    See United States v. Lechuga, 888 F.2d 1472, 1480 (5th

Cir.1989); United States v. Ascarrunz, 838 F.2d 759, 763 (5th

Cir.1988).        This rule is not without its limits, however; a

statement    is    not    in   furtherance   of   the    conspiracy    unless    it

advances the ultimate objects of the conspiracy. See United States

v. Snyder, 930 F.2d 1090, 1095 (5th cir. 1991).                       “Mere idle

chatter”, even if prejudicial and made among co-conspirators, is

not admissible under Rule 801(d)(2)(e).                 See Means, 695 F.2d at

818.    Thus, while the in furtherance requirement is not a strict

one, it is a necessary one, and the proponent of admissibility must

satisfy it by a preponderance of the evidence.                See Broussard, 80

F.3d at 1038; see also United States v. Doerr, 886 F.2d 944, 951

(7th Cir. 1989).

       Exhibit 1.165 involves a discussion between Boutte and a

confidential informant that took place at the bowling alley pro

shop.    The tape is over 50 minutes long and the conversation

recorded covers many topics.           A significant portion of the tape


                                       11
involves   discussions   between   the   two    co-conspirators   on   such

diverse issues as the bowling prowess of certain friends and

relatives, the appearance of some of the patrons at the bowling

alley, the merits of certain designer outfits and the respective

talents of certain exotic dancers.             Amid these conversations,

however, occurred the following dialogue which, although mostly

unintelligible, was offered to connect Galloway to the conspiracy:

     Boutte:         Somebody taking me away from him.

     Informant:      Thought you was supposed to be his ace.

                           * * *

     Boutte:         ya’ll can’t be mad cause what’s her name never
                     stole for me . . .

     Informant:      If you going to bring . . . half a million
                     dollars. Right ain’t going to steal from you
                     and he done counted it . . .

     Boutte:         Now she . . . because she take x amount of
                     dollars with her . . . always comparing me to
                     her likeness . . . he thought she was an
                     angel.

                           * * *

     Informant:      She don’t know what she’s buying into . . .
                     when I called up there yesterday I thought
                     that was you.

     Boutte:         He told me he feel like I was just, he feels
                     like I’m using him. What the hell am I using
                     him . . .

     Informant:      It ain’t all peach and cream . . .

     Boutte:         That’s what I told him . . . me and Kevin
                     ain’t got no business sitting around talking
                     about his business . . .

                           * * *

                                   12
     Boutte:           [apparently quoting Cornett] - I don’t trust
                       nobody but my wife . . . well I mean there is
                       other ladies I trust but I ain’t got to tell
                       you that cause we gonna get into it . . . Mary

     Informant:        Mary.

The government contends that this interchange was intended to

further the conspiracy in that it was meant to convey                    to a

purchaser   of   the   drugs   that   he   should   contact   a   new   person

(Galloway) for future drug deals because Boutte had lost favor with

Cornett and Galloway had taken her place.           The prosecution argued

that this message is evidenced by the references to Galloway in

connection with the drug money.            In finding that the tape was

admissible under Rule 801(d)(2)(e) the district court stated:

     The tape says that, essentially, Boutte feels like she’s
     being compared to the woman who Cornett bought a Mercedes
     for. I hear the word “Mercedes” in there and then they
     say “who” and they say “Mary.”      And this was all in
     connection with the half-million dollars.

     It is well-settled that a statement made among conspirators

for the purpose of describing proper sources, avenues or conduits

to promote the conspiracy is “in furtherance” for purposes of Rule

801(d)(2)(e).     See United States v. Lechuga, 888 F.2d at 1480

(holding that during a conversation arranging a drug transaction,

a reference to a “Wisconsin Source” as the source of the drugs in

question was in furtherance of the conspiracy).             However, in the

cases in which a statement was found to be “in furtherance”, either

the statement itself or the conversation as a whole was intended to

advance,    facilitate    or   promote     the   ultimate     conspiratorial


                                      13
objective.    By way of contrast, conversations that represent “mere

idle chatter” or which are mere narratives of past conduct are not

in furtherance of the conspiracy because the statement and the

conversation     were   not     intended    to    further     the   conspiracy,

regardless of whether an individual co-conspirator was implicated

in the conversation.         See Means, 695 F.2d at 818; see also United

States v. Phillips, 664 F.2d 971, 1027 (5th Cir. 1980) (abrogation

on other grounds recognized by United States v. Huntress, 956 F.2d

1309 (5th Cir. 1992)).         The distinction between conversations in

furtherance of the conspiracy and prejudicial statements made in

conversations    not    in    furtherance   of    the    conspiracy     has   been

recognized in other circuits as well.            See, e.g., United States v.

Lieberman, 637 F.2d 95, 102 (2nd Cir. 1980) (“The conversation . .

. smacks of nothing more than casual conversation about past

events.   It is difficult to envision how it would have furthered

the conspiracy”); United States v. Santos, 20 F.3d 280, 286 (7th

Cir. 1994) (“These statements are best described as narrative

discussions     of   past    events,   which     do     not   satisfy   the    ‘in

furtherance’ requirement of Rule 801(d)(2)(E)”); United States v.

Roberts, 14 F.3d 502, 514-515 (10th cir. 1993) (“mere narratives

between co-conspirators or narrative declarations of past events

are not in furtherance”); United States v. Urbanik, 801 F.2d 692,

698 (4th Cir. 1986) (“We think that this statement can fairly be

treated only as the sort of idle conversation which though it


                                       14
touches upon, does not ‘further’ a conspiracy”).

     In this respect, the present case is factually similar to the

one addressed by the Fourth Circuit in Urbanik.    In Urbanik, two

co-conspirators conducted a conversation in furtherance of the

conspiracy. Once they finished the business of the conspiracy, the

two co-conspirators moved to a different part of the house and

began lifting weights.   During this weight lifting session one of

the co-conspirators implicated a third co-conspirator.   The Fourth

Circuit held that this statement was inadmissible hearsay in that

the statement was not in furtherance of the conspiracy.     It was

evident that the conversation was between two co-conspirators and

that it was made during the course of the conspiracy in that they

had just finished conducting the business of the conspiracy.

However, it was also clear that the co-conspirators had ceased the

operations of the conspiracy and had begun engaging in “mere idle

chatter” as they pursued an unrelated activity.    In the words of

the Fourth Circuit:

     The   statement    identifying   Urbanik   as   Pelino's
     "connection" for marijuana was merely a casual aside to
     the discussion of Urbanik the weight-lifter. In no sense
     but a most speculative one could it be thought to have
     been made to further the purposes of the conspiracy.
     Haselhuhn himself testified that this identification of
     Pelino's marijuana supplier could have had no effect on
     the conspiratorial relationship between him and Pelino.
     We think that this statement can fairly be treated only
     as the sort of idle conversation which though it touches
     upon, does not "further," a conspiracy, and which
     accordingly    should  not   be   admitted  under   Rule
     801(d)(2)(E). See United States v. Means, 695 F.2d 811,
     818 (5th Cir.1983); United States v. Lieberman, 637 F.2d
     95, 102 (2nd Cir.1980); United States v. Eubanks, 591

                                15
       F.2d 513, 520 (9th Cir.1979). The requirement that the
       statements have been in furtherance of the conspiracy is
       designed both to assure their reliability and to be
       consistent with the presumption that the coconspirator
       would have authorized them.... The requirement is not
       satisfied by a conversation ... which amounted to no more
       than idle chatter.

Urbanik, 801 F.2d at 698 (citations in original).

       In the present case, the context of the admitted statements is

that   Boutte   and     the    Informant       were   discussing    a    variety    of

subjects, which did not concern the conspiracy.                     The subject of

whether Galloway enjoyed the confidence of Cornett arose out of a

conversation about relationships and trust in relationships -- the

conversation     turning       to   the     specific     trouble        in   Boutte’s

relationship with Cornett.            The reference to the half-million

dollars and then to Mary cannot reasonably be construed to convey

to the Informant the message that future business in the conspiracy

was to be conducted through Galloway instead of Boutte.                       Rather,

the reference to Galloway and $500,000 was “a mere casual aside” in

the conversation about Boutte the spurned lover and Galloway the

other woman.         That an allusion to the half-million dollars and

Galloway was made in the statement is irrelevant for purposes of

Rule 801(d)(2)(e) because the possible connection was not made in

furtherance of the conspiracy and the statement was not part of a

conversation that itself was in furtherance of the conspiracy.

While this may be the kind of conversation that touches upon the

conspiracy,     it    cannot    fairly     be    said   that   it   furthered      the

conspiracy and thus its admissibility was not authorized by Rule

                                          16
801(d)(2)(e).

     This, however, is not the end of the analysis -- for errors in

evidentiary rulings are subject to the doctrine of harmless error.

See Fed.R.Crim.P. 52(a); Phillips, 664 F.2d at 1027.        Under a

harmless error analysis, the issue is “whether the guilty verdict

actually rendered in this trial was surely unattributable to the

error.” See Walker, 148 F.3d at 526 (citing Sullivan v. Louisiana,

508 U.S. 275, 279 (1993)).   The focus, therefore, is on the effect

that an error may have had upon the verdict actually rendered.   Id.

Thus, the error will not require reversal if “beyond a reasonable

doubt the error complained of did not contribute to the verdict

obtained.”   Sullivan, 508 U.S. at 279.

     Under this standard it cannot be said that the error in

admitting Exhibit 1.165 was harmless. The evidence tending to show

Galloway’s guilt was not unequivocal.     One witness testified that

during a drug purchase he made on the street from Cornett, he might

have seen Galloway standing in the doorway of the house from which

Cornett had come.   However, his testimony was impeached due to his

long-term drug use and the fact the event occurred late at night

and far from his view, and that he could not be certain whether the

woman in the doorway was Galloway or Boutte.        Another witness

testified that, while chastising him for miscounting $21,000 as

$18,000, Cornett told him that Galloway had counted more money than

that accurately. However, the witness admitted that this testimony

was a vague recollection about a statement Cornett made in passing.

                                 17
A third witness testified that Galloway escorted him to the door of

a room at her place of employment in which Cornett was counting

over $400,000. However, there was no direct evidence that Galloway

had seen the money or had knowledge of its source.          The government

also introduced evidence of Galloway receiving expensive gifts from

Cornett and writing checks on her account, covered by Cornett’s

cash, to pay his creditors.            Galloway, testifying on her own

behalf, disputed all of this evidence -- contending that she had

never counted money except on her previous jobs at a beauty salon

and a bank, had never witnessed a drug purchase, and had not been

present at the house in front of which the drug transaction

described by the drug buyer witness had occurred.               Other than

Exhibit 1.165 and the government’s representations of its contents,

no   additional   evidence     or    information   was   presented   by   the

government    with   respect    to    Galloway’s   participation     in   the

conspiracy.

      Upon motion for acquittal, the district court noted that the

government had not developed a compelling case with respect to

Galloway’s participation in the conspiracy.              Specifically, the

district court stated:

      I have to tell you, I think it’s a very, very thin case,
      but I don’t think the arguments that you’re making,
      though, to the judgment of acquittal, I think they go to
      the weight to which the evidence is entitled . . . but I
      will tell the Government how thin I think this case is as
      against Ms. Galloway.     I’m not going to grant [the]
      motion at this time . . . but I will tell you, you all
      need to make a major argument at the end of the case.


                                       18
The government heavily relied on the statements in Exhibit 1.165

and its representations of them to oppose Galloway’s motions for

acquittal and new trial before the district court.            After the

district court’s admonishment, the parties proceeded to closing

arguments.       During closing, the government made the following

statement, further representing the contents of Exhibit 1.165 to

the jury and stressing the importance of this particular tape to

the government’s case against Galloway:

      For those of you who question, those of you who question,
      the involvement of Mary Galloway in this case, there are
      more than 100 tapes.     There is no way, in reasonable
      fashion, you can play all those tapes for a jury. You
      have to be selective. If you have some doubt as to Mary
      Galloway’s involvement in this criminal conspiracy, you
      play -- its almost 50 minutes long, but you have to
      listen to it from beginning to the end to get it in full
      context. But if you listen to Government 1.165, 165 like
      365 days in the year, 165 days in a year, 1.165, you will
      hear Kim Boutte and Reginald Sanders discussing her role.
      Over nearly -- well over $450,000 in cash had to be
      counted and they used her name in discussing the role.

(emphasis added).       Also, the government introduced a written

summary description of Exhibit 1.165, which was presented to the

jury, containing the following representation of the substance of

the tape -- “Boutte advised that Mary stored ½ million dollars for

Wendell Cornett and that Cornett purchased a Mercedes.”

      The government’s evidence against Galloway was “thin” as the

trial judge observed, because no item of evidence directly linked

Galloway to the conspiracy. Further, the government relied heavily

on the ambiguous audiotape Exhibit 1.165 to give meaning to all of

its   evidence    concerning   Galloway.   But   the   tape   is   almost

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unintelligible and the government’s interpretation of the recorded

conversation (both in its written summary of Exhibit 1.165 and in

jury arguments) as containing a statement “in furtherance” of the

conspiracy is not supported by our hearing of the tape or our

reading of its written transcription.        Consequently, it cannot

fairly be said that the guilty verdict actually rendered against

Galloway was surely unattributable to the erroneous admission of

Exhibit 1.165 and the government’s highly subjective interpretation

of its contents.    Accordingly, the error can not be characterized

as harmless, and the admission of Exhibit 1.165 was reversible

error.



IV.   CONCLUSION

      For the reasons assigned, the convictions and sentences of

Appellant Cornett are AFFIRMED, and the conviction and sentence of

Appellant Galloway is REVERSED. Galloway’s case is REMANDED to the

district   court   for   further   proceedings   consistent   with   this

opinion.




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