                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 05-2638
                                    ___________

United States of America,                *
                                         *
      Plaintiff - Appellee,              *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Arkansas.
Linda Ray Gardner,                       *
                                         *
      Defendant - Appellant.             *
                                    ___________

                               Submitted: January 9, 2006
                                  Filed: May 3, 2006
                                   ___________

Before LOKEN, Chief Judge, HANSEN and MELLOY, Circuit Judges.
                              ___________

LOKEN, Chief Judge.

       A jury convicted Linda Ray Gardner of conspiracy to distribute 500 grams or
more of methamphetamine in violation of 21 U.S.C. § 846. The district court granted
Gardner’s motion for a new trial. The government appealed, and we reversed. United
States v. Gardner, 396 F.3d 987 (8th Cir.), cert. denied, 126 S. Ct. 153 (2005). On
remand, the district court1 sentenced Gardner to 120 months in prison. She appeals,
raising three evidentiary issues. We affirm.



      1
        The HONORABLE WILLIAM R. WILSON, Jr., United States District Judge
for the Eastern District of Arkansas.
                                           I.

       Ruby Eastep was the first of the government’s twenty-three witnesses at trial.
Eastep testified that she was a high school classmate of Gardner who began using
methamphetamine in 1994 while residing in Merced, California. Eastep purchased the
drugs from Mexican suppliers introduced by a friend, Chris Smith. Eastep moved
back to Arkansas in 1994 and began supplying local distributors, including Gardner.
Eastep testified that she made twenty-four trips between California and Arkansas in
the next two or three years, each time delivering Gardner between a quarter-pound and
two pounds of methamphetamine.

        Early in her direct examination Eastep testified that she brought Chris Smith to
Arkansas during this period and that Gardner’s sister, Tina Spears, introduced Smith
to Gardner. Defense counsel objected to this testimony as inadmissible hearsay. See
Fed. R. Evid. 802. The government argued it was testimony excluded from the
definition of hearsay and admissible as “a statement by a coconspirator of a party
during the course and in furtherance of the conspiracy.” Fed. R. Evid. 801(d)(2)(E).
Following the procedure approved by this court, the district court conditionally
admitted the testimony as a coconspirator statement and then found at the end of the
trial that the government had demonstrated by a preponderance of the evidence “(1)
that a conspiracy existed; (2) that the defendant and the declarant were members of
the conspiracy; and (3) that the declaration was made during the course and in
furtherance of the conspiracy.” United States v. Bell, 573 F.2d 1040, 1043 (8th Cir.
1978). On appeal, Gardner argues that the district court abused its discretion in
admitting this testimony because Smith’s introduction to Gardner was not “in
furtherance of” the conspiracy. She argues that the testimony was prejudicial hearsay
because it linked her to a methamphetamine broker from California.

      Later in her direct examination, Eastep testified that she went to California in
1996 to buy five pounds of methamphetamine for Gardner and another Arkansas

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distributor. While there, Eastep had a falling out with Smith and his Mexican
supplier, and they refused to supply Eastep with methamphetamine. Later, Eastep
telephoned Gardner, who said that Smith had already called and would directly supply
her. Thereafter, Eastep was “cut out of the middle,” and Gardner purchased directly
from Smith and his Mexican suppliers. Gardner’s statement to Eastep was not
hearsay; it was an admission by a party admissible under Rule 801(d)(2)(A) of the
Federal Rules of Evidence. It was also far more prejudicial to Gardner’s defense than
the earlier statement by Spears that she introduced Smith to Gardner two years
previously. The introduction provided relevant background because it explained how
Smith knew to call Gardner and offer to supply her directly. But Gardner’s 1996
statement that Smith would be supplying her directly was admissible without the
background statement by Spears.

       In general, statements by coconspirators concerning their distribution of drugs
or their efforts to recruit other conspirators are admissible as in furtherance of the
conspiracy. See United States v. Sanchez-Berrios, 424 F.3d 65, 74-75 (1st Cir. 2005),
cert. denied, 126 S. Ct. 1105 (2006); United States v. Mickelson, 378 F.3d 810, 820
(8th Cir. 2004); United States v. Ortiz-Martinez, 1 F.3d 662, 674 (8th Cir.), cert.
denied, 510 U.S. 936 (1993). Here, even if Spears’s statement that she introduced
Smith to Gardner, standing alone, was only marginally “in furtherance of” the
conspiracy, any error was harmless because other admissible testimony established
that Smith directly supplied Gardner with methamphetamine. See United States v.
Lopez, 384 F.3d 937, 942 (8th Cir. 2004), cert. denied, 126 S. Ct. 1078 (2006); United
States v. Mitchell, 31 F.3d 628, 632 (8th Cir. 1994).

      Gardner further argues that this testimony violated her Sixth Amendment
Confrontation Clause rights because the government failed to demonstrate that the
declarant, Tina Spears, was unavailable. This argument is based upon outdated Eighth
Circuit decisions. See United States v. DeLuna, 763 F.2d 897, 909-10 (8th Cir. 1985);
United States v. Massa, 740 F.2d 629, 638-39 (8th Cir. 1984). Those decisions were

                                         -3-
overruled in United States v. Inadi, 475 U.S. 387, 391 (1986), where the Supreme
Court held that the Confrontation Clause does not require “a showing of unavailability
as a condition to admission of the out-of-court statements of a nontestifying co-
conspirator, when those statements otherwise satisfy the requirements of Federal Rule
of Evidence 801(d)(2)(E).” See also Bourjaily v. United States, 483 U.S. 171, 182-83
(1987); United States v. Reyes, 362 F.3d 536, 540-41 (8th Cir.), cert. denied, 542 U.S.
945 (2004).

                                          II.

       Government witness Mazda Rasasy testified that he began delivering
methamphetamine from California to Gardner in Arkansas after Smith became
Gardner’s supplier. Rasasy testified that he initially drove the shipments to Arkansas,
but his superior told him to fly the drugs to Arkansas after an encounter with law
enforcement. Rasasy then transported the drugs on Southwest Airlines flights
between Sacramento and Little Rock. Toward the end of its case in chief, the
government introduced a Southwest Airlines document showing that numerous flight
reservations were made in Rasasy’s name in the year 2000, including flights
originating or ending in California and Little Rock. The document was authenticated
by the testimony of Lisa Stewart, a Southwest Airlines records custodian. The district
court overruled Gardner’s relevancy objection to this evidence.

       On appeal, Gardner argues the evidence was irrelevant because it failed to show
“who made the reservations, whether any of the reservations were actually used,
whether they were for round-trip or one-way travel, or whether Little Rock was ever
a final destination.” But the evidence was relevant as that concept is defined in Rule
401 of the Federal Rules of Evidence. The numerous airline reservations in Rasasy’s
name were some support for his testimony that he was serving as a drug courier by air
that year. The uncertainties noted by Gardner -- which defense counsel effectively
established on cross-examination -- went to the weight of the evidence, not its

                                         -4-
admissibility. See Contemporary Mission, Inc. v. Famous Music Corp., 557 F.2d 918,
927 (2d Cir. 1977). The district court did not abuse its discretion by admitting this
relevant evidence.

                                         III.

       The government presented evidence connecting Gardner with “Ace,” a debt
collector the Mexican suppliers sent to Arkansas from time to time. The first witness
to establish the connection was Eastep, who testified:

      Q: Now, you’ve testified about someone that you knew as Ace.
         Where did you see Ace?
      A: At Linda’s, Linda Gardner’s house.
      Q: How many times have you seen Ace at Linda Gardner’s house?
      A: Several times. He stayed there for a few weeks when he was there.
      Q: Do you remember approximately when that was?
      A: 2001, I believe.

Gardner objected and moved for a mistrial, arguing that testimony to events in 2001
was improper because it was outside the period charged in the indictment, which
alleged a conspiracy “in or about 1994 through in or about 2000.” The district court
observed that it was “discretionary with the Court” to allow evidence beyond the dates
of the alleged conspiracy. The court then denied the motion for a mistrial, struck
Eastep’s testimony as to 2001, and said it would instruct the jury to disregard the
testimony if Gardner requested that instruction. Gardner declined. Following
Eastep’s unexpected reference to 2001, the government made no further inquiry into
events after 2000 with any witness.

      On appeal, Gardner argues that the court abused its discretion in denying her
motion for a mistrial. See United States v. Hollins, 432 F.3d 809, 812 (8th Cir. 2005)
(standard of review). Gardner cites no authority establishing that the testimony was


                                         -5-
improper, much less grounds for a mistrial. As a general matter, the government
ventures into dangerous territory when it offers evidence of similar wrongdoing
outside the alleged conspiracy period. Such evidence may be excludable under
Federal Rules of Evidence 404(b) and 403. It is reversible error if it constructively
amends the indictment by creating a substantial likelihood the defendant will be
convicted of an uncharged offense. Or it may be a material variance, changing the
evidence but not the charge, in which case its admission is reversible error if the
defendant is prejudiced. See United States v. Johnston, 353 F.3d 617, 623 (8th Cir.
2003), cert. denied, 541 U.S. 1068 (2004).

       In this case, Eastep did not testify to wrongdoing by Gardner in 2001. To be
sure, the innocuous reference to an event in 2001, if pursued by the government in
greater detail, would have raised an inference that the conspiracy lasted beyond the
period alleged in the indictment. At some point, that variance could become material.
But the district court avoided the danger by striking Eastep’s first unanticipated
reference to 2001 and by offering the defense a curative instruction. There was no
further reference to events in 2001, and substantial testimony by later witnesses linked
Gardner and Ace during the period alleged in the indictment. Accordingly, even if
Eastep’s vague reference to an event in 2001 was improper, the district court did not
abuse its discretion in denying Gardner’s motion for a mistrial. Compare United
States v. Cole, 380 F.3d 422, 427 (8th Cir. 2004).

      The judgment of the district court is affirmed.
                     ______________________________




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