## Facts

- A federal grand jury in the Southern District of Texas charged Wendell Alboyd Cornett and Mary Martillea Galloway, among others, with a cocaine/crack distribution conspiracy under 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(A).
- Cornett owned Houston-area businesses, including an automotive detailing shop and a bowling-alley pro shop; the government alleged these businesses served as fronts for a large drug-smuggling and distribution operation.
- Federal agents conducted a multi-year investigation using undercover activity, cooperating witnesses, electronic monitoring, and wiretaps.
- Evidence against Cornett included testimony that a co-conspirator ran the pro shop, delivered cocaine for Cornett, and returned with packages of cash, corroborated by other witnesses.
- The evidence tying Galloway (described as one of Cornett’s girlfriends) to the conspiracy was largely circumstantial, aside from a 50-minute audio recording made at the bowling alley.
- The recording mostly involved casual conversation; during it, an alleged conspirator stated that Galloway had replaced her in Cornett’s affections and had assumed a role counting and storing cash from drug sales.
- The district court admitted the recording against Galloway as a co-conspirator statement under Federal Rule of Evidence 801(d)(2)(E), and the government emphasized it as the key proof of Galloway’s knowing participation.
- A jury convicted both defendants of the charged conspiracy; Cornett received a life sentence and Galloway received 60 months.

## Issues

1. Whether the district court properly admitted, under Federal Rule of Evidence 801(d)(2)(E), a recorded co-conspirator conversation offered against Galloway as a statement made “during the course and in furtherance” of the conspiracy.
2. If the recording was improperly admitted, whether the error was harmless in light of the remaining evidence against Galloway.
3. Whether Cornett’s asserted trial and sentencing errors required reversal of his convictions or sentence.

## Decision

- The Fifth Circuit affirmed Cornett’s convictions and sentence.
- The Fifth Circuit reversed Galloway’s conviction and sentence and remanded.
- The court held that the recording’s statements about Galloway were not shown to be made “in furtherance” of the conspiracy as required by Rule 801(d)(2)(E).
- Because the government treated the recording as central proof and other evidence against Galloway was minimal and ambiguous, the erroneous admission was not harmless.

## Legal Principles

- A statement is admissible under Rule 801(d)(2)(E) only if the government proves it was made by a co-conspirator during the course of, and “in furtherance” of, the conspiracy.
- “In furtherance” requires that the statement be intended to advance the conspiracy’s objectives; casual conversation, idle chatter, gossip, or narrative descriptions of past events generally do not qualify.
- When an improperly admitted co-conspirator statement supplies a primary link connecting a defendant to the conspiracy, the error is unlikely to be harmless.

## Conclusion

The Fifth Circuit upheld Cornett’s conspiracy conviction based on substantial evidence of operational drug trafficking through business fronts, but reversed Galloway’s conviction because the prosecution relied on a recorded conversation that amounted to social commentary rather than a statement intended to advance the conspiracy, and its admission likely affected the verdict.


United States v. Cornett, 195 F.3d 776 (5th Cir. 1999)