United States v. Cory Canzater

• Court: Court of Appeals for the Third Circuit
• Decided: February 3, 2022
• Docket: 20-3070
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________

No. 20-3070 _____________

UNITED STATES OF AMERICA

v.

CORY CANZATER, Appellant

______________

On Appeal from the United States District Court for the District of New Jersey (D.C. Criminal No. 2-18-cr-00578-002) District Court Judge: Honorable Kevin McNulty ______________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on September 23, 2021 ______________

Before: McKEE, RESTREPO, and ROTH, Circuit Judges

(Opinion filed: February 3, 2022) _______________________

OPINION* _______________________

* This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not constitute binding precedent. McKEE, Circuit Judge.

Cory Canzater appeals his convictions for distributing and conspiring to distribute

heroin and crack cocaine. The only issue on appeal is whether the District Court erred in

admitting a recording of a telephone call between three of Canzater’s co-conspirators.

For the reasons that follow, we hold that the challenged evidence was properly admitted

under Federal Rule of Evidence 801(d)(2)(E) and affirm the convictions.

I.

Federal Rule of Evidence 801(d)(2)(E) provides that a statement made by a

“party’s coconspirator during and in furtherance of the conspiracy” is not hearsay if it is

offered against that party.1 For an out-of-court co-conspirator statement to be admitted as

substantive evidence, the district court must find by a preponderance of the evidence

“(1) that a conspiracy existed; (2) the declarant and the party against whom the statement

is offered were members of the conspiracy; (3) the statement was made in the course of

the conspiracy; and (4) the statement was made in furtherance of the conspiracy.”2 To

prove these elements, the government “may rely on the co-conspirators statements

themselves, if they are corroborated by independent evidence.”3

1 United States v. Turner, 718 F.3d 226, 231 (3d Cir. 2013) (quoting Fed. R. Evid. 801(d)(2)(E)). 2 United States v. McGlory, 968 F.2d 309, 333 (3d Cir. 1992) (citing Bourjaily v. United States, 483 U.S. 171, 175 (1987)). 3 Turner, 718 F.3d at 231 (citing Bourjaily, 483 U.S. at 181). 2 Where the district court explicitly finds that a conspiracy existed,4 the appeals

court “review[s] the district court’s findings as to these elements for clear error.”5 Clear

error exists “when giving all due deference to the opportunity of the trial judge to

evaluate the credibility of witnesses and to weigh the evidence, we are left with a definite

and firm conviction that [a] mistake has been committed.”6

To prove the existence of a conspiracy, “the government must establish a unity of

purpose between the alleged conspirators, an intent to achieve a common goal, and an

agreement to work together toward that goal.”7 A conspiracy “can be inferred from

evidence of related facts and circumstances from which it appears as a reasonable and

logical inference, that the activities of the participants . . . could not have been carried on

except as the result of a preconceived scheme or common understanding.”8 However, the

government need not prove that each participant of the conspiracy “knew all of the

conspiracy’s details, goals, or other participants.”9

II.

Canzater challenges the admission of a recording of a three-way telephone call

placed from jail by Ahmad Johnson (the “Johnson Jail Call”), the leader of the drug

trafficking organization (“DTO”) in this case, to two other co-conspirators: his girlfriend,

4 United States v. Cruz, 910 F.2d 1072, 1081 n.11 (3d Cir. 1990). 5 United States v. Ellis, 156 F.3d 493, 496 (3d Cir. 1998). 6 Turner, 718 F.3d at 231 (alteration in original) (quoting Com. Nat’l. Ins. Servs., Inc. v. Com. Ins. Agency, Inc., 214 F.3d 432, 435 n.1 (3d Cir. 2000)). 7 United States v. Gibbs, 190 F.3d 188, 197 (3d Cir. 1999). 8 Id. (omission in original) (quoting United States v. Kapp, 781 F.2d 1008, 1010 (3d Cir. 1986)). 9 Id. 3 Sasha Negron, and his brother, Rahim Johnson.10 Canzater argues that the District Court

erred by admitting the Johnson Jail Call, in which he did not participate, because the call

was evidence of a separate and distinct conspiracy that did not involve Canzater.

The government established the existence of the charged conspiracy through text

messages and phone calls between Canzater and Ahmad Johnson, along with eyewitness

and physical evidence of drug transfers involving Canzater and his co-conspirators in the

DTO. Notably, Canzater and Ahmad Johnson discussed heroin and crack cocaine

(“paper” and “chips”) over a series of text messages just two days before the Johnson Jail

Call. The District Court also reasonably found that the other participants of the Johnson

Jail Call were Ahmad Johnson’s “trusted associates and conspirators” in the same DTO

of which Canzater was a part.11

The statements made during the call about Ahmad Johnson’s supply of drugs were

independently corroborated and thus reliable. Federal agents found heroin and crack

cocaine at Negron’s residence the day after the Johnson Jail Call. Negron and Rahim had

taken the drugs there at Johnson’s direction, which established that Negron and Rahim

were members of the conspiracy. Federal agents also testified about their observations

10 The government contends that Canzater waived his claim that the Johnson Jail Call was inadmissible hearsay because he did not preserve the claim in his opening brief. However, Canzater made a hearsay objection at trial, and then raised a hearsay argument in his opening brief. Therefore, we will not treat the claim as waived. See, e.g., Lippay v. Christos, 996 F.2d 1490, 1497 n.8 (3d Cir. 1993) (finding the defendant did not waive his evidentiary claim where the defendant objected on hearsay grounds at the time of testimony); United States v. Mitchell, 365 F.3d 215, 257 (3d Cir. 2004) (finding the defendant did not preserve his objection for appeal after failing to make any hearsay objection at all at trial). 11 App. 540. 4 from the May 12, 2017 drug deal that Canzater completed on behalf of the DTO, and the

government introduced the heroin and crack cocaine seized from that sale.

Accordingly, the District Court did not commit clear error in concluding that the

government had established Canzater was a member of a conspiracy that included the

participants of the Johnson Jail Call and that the call was made during the course of and

in furtherance of that conspiracy.