                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 13-4432


UNITED STATES OF AMERICA,

                Plaintiff – Appellee,

          v.

TYRONE JOHNIKEN, a/k/a Hassan Muhammed, a/k/a Roland,

                Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.      James K. Bredar, District Judge.
(1:11-cr-00426-JKB-2)


Submitted:   June 19, 2014                 Decided:   June 27, 2014


Before KING, SHEDD, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Jonathan A. Gladstone, LAW OFFICE OF JONATHAN GLADSTONE,
Annapolis, Maryland, for Appellant. Rod J. Rosenstein, United
States Attorney, Robert R. Harding, Assistant United States
Attorney, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            A federal jury convicted Tyrone Johniken of conspiracy

to   participate     in     racketeering         activity,        in   violation      of    18

U.S.C. § 1962(d) (2012); conspiracy to commit murder in aid of

racketeering, in violation of 18 U.S.C.A. § 1959(a)(5) (West

2012 & Supp. 2013); and conspiracy to possess with intent to

distribute and distribute heroin and cocaine base, in violation

of   21   U.S.C.     §    846    (2012).         The    district       court       sentenced

Johniken    to   life      imprisonment      and       he   now    appeals.         For    the

reasons that follow, we affirm.

            On     appeal,      Johniken     challenges       the      district      court’s

admission     of     the     testimonies          of    two       witnesses        regarding

statements made (1) by one of Johniken’s coconspirators, and

(2) by the victim of the murder.                       “We review a trial court’s

rulings     on     the     admissibility          of     evidence       for        abuse    of

discretion, and we will only overturn an evidentiary ruling that

is arbitrary and irrational.”                United States v. Cole, 631 F.3d

146, 153 (4th Cir. 2011) (internal quotation marks omitted).

Moreover,    “[u]nder       Rule   52   of       the   Federal      Rules     of    Criminal

Procedure, [a]ny error, defect, irregularity, or variance that

does not affect substantial rights must be disregarded.”                              United

States v. Medford, 661 F.3d 746, 751-52 (4th Cir. 2011).                                    An

error has a substantial and injurious effect only if it affected



                                             2
the    verdict;     if       the    evidence          of     guilt      is        overwhelming         or

cumulative, any error is not harmful.                         Id. at 751-52.

            Hearsay is “a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.”                                        Fed. R.

Evid. 801(c).       Hearsay is generally inadmissible.                              Fed. R. Evid.

802.      However,       “[a]       statement          is    not       hearsay       if    it     is    a

statement by a co-conspirator of a party during the course and

in    furtherance       of   the        conspiracy         and    is    offered       against      the

party.”     United States v. Graham, 711 F.3d 445, 453 (4th Cir.),

cert. denied, 134 S. Ct. 449 (2013) (internal quotation marks

and citation omitted); see also Fed. R. Evid. 801(d)(2)(E).                                            “A

statement    by     a    co-conspirator               is    made       in    furtherance          of    a

conspiracy    if        it    was       intended       to     promote         the     conspiracy’s

objectives,       whether          or    not     it        actually         has    that     effect.”

Graham, 711 F.3d at 453 (citations omitted).

            In addition, hearsay statements are admissible where

the    declarant        is   unavailable          to        testify         because       the    party

against whom the statements are offered wrongfully caused the

declarant’s    unavailability              and       did     so    intending         that       result.

Fed. R. Evid. 804(b)(6).                 “Such wrongful conduct includes but is

not limited to murdering a witness.”                             United States v. Jackson,

706 F.3d 264, 267 (4th Cir.), cert. denied, 133 S. Ct. 2782

(2013) (internal quotation marks and citations omitted).                                               In

                                                 3
order for the exception to apply, the desire to keep the witness

from     testifying        must        be   a      reason        for        procuring     the

unavailability of the declarant, but not necessarily the only

motivation.      Id.

            We      have    thoroughly          reviewed     the        record      and   the

relevant legal authorities and conclude that “assuming, without

deciding, that the district court erred, . . . any such error

was harmless.”           Medford, 661 F.3d at 751.                      The evidence of

Johniken’s       guilt     presented        at     trial    was        overwhelming       and

therefore     any      error     did    not       affect    Johniken’s            substantial

rights.    See id. at 751-52.

            Accordingly, we affirm the judgment of the district

court.     We dispense with oral argument because the facts and

legal    contentions       are    adequately        presented          in    the   materials

before    this    court    and    argument        would    not    aid       the    decisional

process.

                                                                                     AFFIRMED




                                              4
