UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                    No. 95-5578

DAVID LYNN ROGERS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, Chief District Judge.
(CR-94-38-F)

Submitted: July 30, 1996

Decided: August 23, 1996

Before HAMILTON and MICHAEL, Circuit Judges, and
BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

W. James Payne, POWELL & PAYNE, Shallotte, North Carolina, for
Appellant. Janice McKenzie Cole, United States Attorney, Eric Even-
son, Assistant United States Attorney, Raleigh, North Carolina, for
Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Following a jury trial, David Lynn Rogers was convicted of one
count of conspiracy to distribute and possess with intent to distribute
marijuana in violation of 21 U.S.C. § 841(a)(1) (1988), and one count
of criminal forfeiture pursuant to 21 U.S.C. § 853(a)(1), (2) (1988).
Rogers appeals his conviction on several grounds. We find no merit
to his claims; consequently, we affirm.

From 1990 to 1994, Kenneth Spence, Ronnie Musselwhite, and
others were involved with buying marijuana in Louisiana, Alabama,
and Texas, and bringing it to North Carolina and South Carolina for
distribution. Rogers became involved in 1992 when Musselwhite
introduced him to Spence. Rogers began regularly buying between ten
and thirty pounds of marijuana from Spence. Later, Rogers and his
nephew, Keith Rogers, began meeting with Spence and Spence's girl-
friend, Crystal Lazarus, to make purchases of up to forty pounds of
marijuana at a time. These transactions continued through 1994.
Sometimes, Rogers also bought marijuana directly from Musselwhite
from shipments Musselwhite was delivering to Spence. Rogers con-
tinued doing business with both Musselwhite and Spence even after
Spence stopped dealing directly with Musselwhite.

Rogers also had dealings with other people, including Russell Mil-
ler, who sold him marijuana. At other times, Rogers sold Miller mari-
juana he had obtained from Musselwhite.

In September 1993, Musselwhite became an informant for the
North Carolina State Bureau of Investigation ("NCSBI"). In this
capacity, he tape recorded a conversation with Rogers in which they
discussed Musselwhite's loan of shotguns to an unnamed person later
identified as Spence and the arrest of a man in Wilmington, North
Carolina, who had more than 300 pounds of marijuana and $118,000

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in his possession at the time of the arrest. Rogers stated that he knew
that the marijuana had come from the same supplier he had used by
the way it had been packaged. During Rogers' jury trial, portions of
the tape recorded conversation were played for the jury.

The criminal investigation continued into 1994. In early December
1994, Spence's source in Texas delivered between 100 and 200
pounds of marijuana to Spence, who in turn gave Rogers and his cou-
sin seventy-five and one quarter pounds for which they were to pay
him $1000 per pound. Rogers paid $25,000 a few days later. When
Spence was arrested shortly thereafter, his billfold contained a record
stating that "KD" owed him $50,250. Spence testified that the nota-
tion meant that Keith and David Rogers owed him $50,250. During
a warranted search of Spence's home, police found David Rogers'
business card with the pager numbers of both David and his cousin.

The jury convicted Rogers of conspiracy to possess with intent to
distribute marijuana and the court sentenced him to 121 months in
prison. Rogers timely appealed.

I.

Pursuant to Fed. R. Crim. P. 29, Rogers filed a motion for a judg-
ment of acquittal, which the trial court denied. The court then
instructed the jury regarding both single conspiracies and multiple
conspiracies. On appeal, Rogers claims that the district erred in deny-
ing his motion for judgment of acquittal because the evidence at trial
established multiple conspiracies rather than the single conspiracy
charged in the indictment.

The Government bears the burden of proving a single conspiracy
charged in an indictment. United States v. Hines , 717 F.2d 1481, 1489
(4th Cir. 1983), cert. denied, 467 U.S. 1214 (1984), and cert. denied,
467 U.S. 1219 (1984). Whether the evidence shows a single conspir-
acy or multiple conspiracies, however, is a question of fact and is
properly the province of the jury. United States v. Banks, 10 F.3d
1044, 1051 (4th Cir. 1993), cert. denied, ___ U.S. ___, 62 U.S.L.W.
3755 (U.S. May 16, 1994) (No. 93-8404), and cert. denied, ___ U.S.
___, 62 U.S.L.W. 3825 (U.S. June 13, 1994) (No. 93-8056); United
States v. Urbanik, 801 F.2d 692, 695 (4th Cir. 1986). "A single con-

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spiracy exists where there is `one overall agreement,' . . . or `one gen-
eral business venture.' Whether there is a single conspiracy or
multiple conspiracies depends upon the overlap of key actors, meth-
ods, and goals." United States v. Leavis, 853 F.2d 215, 218 (4th Cir.
1988) (citations omitted). Where a jury is properly instructed regard-
ing a single versus multiple conspiracies, a finding of a single con-
spiracy must stand unless the evidence, taken in the light most
favorable to the Government, would not allow a reasonable jury to
reach such a conclusion. United States v. Camps , 32 F.3d 102, 104
(4th Cir. 1994), cert. denied, ___ U.S. ___, 63 U.S.L.W. 3626 (U.S.
Feb. 21, 1995) (No. 94-6853). Here, the record discloses sufficient
evidence for a reasonable jury to find Rogers guilty of participating
in a single conspiracy.

The Government presented several witnesses who testified about
drug trafficking activities from Texas to the Carolinas from 1990 to
1994. Although Rogers claims that nobody participated in the con-
spiracy from beginning to end, Spence testified that his involvement
continued to some extent throughout the entire time span. When Rog-
ers became involved in the drug activities in 1992, he purchased mari-
juana from both Spence and Musselwhite. The evidence showed that
Rogers knew the conspiracy's main purpose and voluntarily partici-
pated in it. A reasonable jury could find from the evidence presented
at trial that all of the co-conspirators in the Carolinas worked with
each other to obtain large quantities of marijuana from Texas. The
fact that the co-conspirators may have competed with one another for
supplies or customers does not disprove the existence of a single con-
spiracy. Banks, 10 F.3d at 1054. Consequently, the district court did
not err by denying Rogers' Rule 29 motion.

II.

Over Rogers' objections, the district court allowed the Government
to introduce at trial the tape recorded conversation between Mussel-
white and Rogers. As the Government notes, Rogers does not object
to the introduction of his portions of the taped conversation; rather,
he objects to the introduction of Musselwhite's statements as inadmis-
sible hearsay.

The taped conversation was introduced as Rogers' statement. Mus-
selwhite's portion of the conversation was needed to enable the jury

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to comprehend the context in which Rogers made his statements.
Thus, Musselwhite's statements were offered not for the truth of the
matters he asserted, but rather to enable the jury to understand Rog-
ers' statements.

Rogers' taped statements were admissible as statements against
interest under Fed. R. Evid. 801(d)(2)(A). Musselwhite's statements
were admissible to establish the context of Rogers' statements and, as
such, were not hearsay. Therefore, the district court did not exceed its
discretion by admitting the tapes into evidence. United States v.
McDowell, 918 F.2d 1004, 1007 (1st Cir. 1990); cf. United States v.
Whittington, 26 F.3d 456, 465 (4th Cir. 1994) (absent extraordinary
circumstances or clear abuse of discretion, appeals court will not
interfere with trial court's evidentiary rulings).

III.

The district court attributed 2000 pounds of marijuana to Rogers
for sentencing purposes. On appeal, Rogers challenges his sentence
calculations, claiming that the district court attributed too much mari-
juana to him.

In drug cases, a "defendant is accountable for all quantities of con-
traband with which he was directly involved and, in the case of a
jointly undertaken criminal activity, all reasonably foreseeable quanti-
ties of contraband that were within the scope of the criminal activity
that he jointly undertook." United States Sentencing Commission,
Guidelines Manual, § 1B1.3, comment. (n.2) (Nov. 1994). A defen-
dant is liable for the acts of his co-conspirators if those acts "fall
within the scope of" the criminal agreement, even if the defendant and
his co-conspirators have not expressly agreed to undertake any partic-
ular act. United States v. Irvin, 2 F.3d 72, 75 (4th Cir. 1993), cert.
denied, ___ U.S. ___, 62 U.S.L.W. 3552 (U.S. Feb. 22, 1994) (No.
93-7103). The Government must establish by a preponderance of the
evidence that a particular amount of drugs may be attributed to a par-
ticular defendant for sentencing purposes. United States v. McDonald,
61 F.3d 248, 255 (4th Cir. 1995). The government may meet its bur-
den by pointing to evidence adduced at trial, and the sentencing court
may consider other reliable evidence without regard to whether it was
or could have been admitted at trial. Cf. id. On appeal, the sentencing

                    5
court's determination of the quantity of drugs attributable to a defen-
dant must be upheld unless clearly erroneous. United States v.
Fletcher, 74 F.3d 49, 55 (4th Cir. 1996), petition for cert. filed, ___
U.S.L.W. ___ (U.S. June 24, 1996) (No. 95-9447).

Rogers' claim that the district court attributed too much marijuana
to him is without merit. The court attributed to Rogers only the
amount of marijuana he received from Musselwhite and Spence. At
the sentencing hearing, Agent Netherland of the North Carolina State
Bureau of Investigation testified that Musselwhite said he had distrib-
uted 1000 pounds of marijuana to Rogers and Spence said he had dis-
tributed 1000 to 1500 pounds of marijuana to Rogers. Although
Rogers claims that Netherland was unable to corroborate these esti-
mates, the agent testified that the amount Spence claimed to have dis-
tributed to Rogers was consistent with the amount Musselwhite said
was distributed at that time. Furthermore, he noted that Crystal Laza-
rus witnessed many of the transactions and therefore could corrobo-
rate Spence's estimates, and that Russell Miller, who dealt with
Musselwhite through Rogers, could verify Rogers' participation in the
drug distributions. Finally, Netherland said that the co-conspirators
with whom he spoke had given consistent statements about their par-
ticipation in the conspiracy and that he had "no reason to doubt . . .
that they would be incorrect on this one individual." In light of the
evidence, we find that the district court did not clearly err in attribut-
ing 2000 pounds of marijuana to Rogers.

IV.

Rogers argues that the district court should have granted him a
two-level decrease in his offense level for being a minor participant
in the conspiracy. See U.S.S.G. § 3B1.2(b) (Nov. 1994). He claims he
is entitled to a lower offense level because he did not become
involved in the conspiracy until "very late" in its existence and was
involved only in the lower echelon of the enterprise. These claims are
without merit.

A minor participant, for purposes of U.S.S.G. § 3B1.2(b), is "any
participant who is less culpable than most other participants."
U.S.S.G. § 3B1.2, comment. (n.3). This Court will not disturb a dis-
trict court's denial of a decrease in offense level under U.S.S.G.

                     6
§ 3B1.2(b) unless that decision was clearly erroneous. United States
v. Terry, 86 F.3d 353, 358 (4th Cir. 1996).

Here, although Rogers did not join the conspiracy until two years
after its inception, he was an active participant from that point on
until his arrest. In general, a drug seller in a drug conspiracy cannot
be considered a minor participant. United States v. Brooks, 957 F.2d
1138, 1149 (4th Cir.), cert. denied, 505 U.S. 1228 (1992). Evidence
presented at trial showed that Rogers' involvement in the conspiracy
included not only buying and selling marijuana, but also arranging for
financing for drug transactions. In light of this evidence, the district
court's refusal to characterize Rogers as a minor participant was not
clearly erroneous.

V.

For these reasons, we affirm Rogers' conviction and sentence. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the Court and argu-
ment would not aid the decisional process.

AFFIRMED

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