                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                              January 22, 2013
                                    PUBLISH                  Elisabeth A. Shumaker
                                                                 Clerk of Court
                  UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
       v.                                              No. 11-8049
 TERRENCE RUTLAND,

             Defendant-Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF WYOMING
                 (D.C. NO. 1:10-CR-00077-WFD-1)


Megan L. Hayes, Corthell and King, P.C., Laramie, Wyoming, for Appellant.

Jason M. Conder, Assistant United States Attorney (Christopher A. Crofts, United
States Attorney, and Stephanie I. Sprecher, Assistant United States Attorney,
Casper, Wyoming, with him on the brief) Lander, Wyoming, for Appellee.


Before O’BRIEN, EBEL, and TYMKOVICH, Circuit Judges.


TYMKOVICH, Circuit Judge.


      Does the operation of a drug business out of your home involve interstate

commerce? In this case, Terrence Rutland was convicted in federal district court

on robbery, narcotics, and firearm charges. Rutland contends his federal
conviction for robbery and use of a firearm during a violent felony are invalid,

arguing that the robbery of a drug dealer at his home did not interfere with

interstate commerce because the dealer was not engaged in a business. Rutland

also claims the district court erred by admitting numerous out-of-court statements

as coconspirator statements when there was insufficient evidence of a conspiracy.

      We conclude a drug dealer’s home business is part of interstate commerce,

and the jurisdictional provisions of the Hobbs Act, 18 U.S.C. § 1951, apply to

Rutland’s crimes. We also find no reversible error in the district court’s

evidentiary rulings. Accordingly, exercising jurisdiction pursuant to 28 U.S.C.

§ 1291, we AFFIRM Rutland’s convictions.

                                I. Background

      Charles Jerabek, a drug trafficker in Rock Springs, Wyoming, was robbed

in his home of cash, drugs, a gun, and a few other personal items. He did not

initially report the robbery to authorities. But a few months after the robbery,

Jerabek was arrested in connection with a methamphetamine trafficking

investigation and began cooperating with the authorities. Jerabek informed the

police of the robbery at this time. Rutland soon became a suspect in the robbery.

      Following further investigation, numerous individuals in Rock Springs,

including Rutland, were arrested and charged in connection with the meth

trafficking investigation. Rutland was charged with (1) conspiracy to possess

with intent to distribute, and to distribute, methamphetamine, 21 U.S.C. §§ 841 &

                                        -2-
846 (Count One); (2) interference with commerce by threats or violence (the

robbery charge), 18 U.S.C. § 1951 (Count Two); (3) carrying a firearm during a

drug trafficking crime, 18 U.S.C. § 924(c)(1) (Count Three); and (4) use of a

firearm during a crime of violence, 18 U.S.C. § 924(c)(1) (Count Four). In the

conclusion to his opening brief, Rutland requests that we remand his case for a

new trial on Counts One and Three, but this is the only time he mentions a

challenge to these convictions. Because the only arguments Rutland raises on

appeal pertain to Counts Two and Four, we do not review the propriety of his

narcotics convictions.

      The evidence against Rutland on the robbery charge consisted almost

entirely of the testimony of numerous eyewitnesses and acquaintances. Much of

the testimony was conflicting, and, as Rutland’s counsel established during trial,

many of the government’s witnesses were also facing charges and had entered

plea agreements with the prosecution in exchange for their testimony. That

testimony tended to establish the following.

      Jerabek, a meth dealer in Rock Springs, was at his home using drugs

several days before Christmas in December, 2008. Very early in the morning,

between 2:30 a.m. and 5:00 a.m., Jerabek heard someone kick in his front door.

He confronted the intruder, who was wearing a bandanna over his face and

carrying a pistol. The intruder yelled, “Where is it?” and then either hit Jerabek

with his gun, which caused it to discharge into the wall, or shot Jerabek, grazing

                                         -3-
the side of his head. R., Vol. 3, at 221. In either case, Jerabek suffered a head

injury and lost consciousness. The robber then took a significant quantity of cash

and drugs, a gun, and a few other items and fled.

       Jerabek did not report the robbery to police or seek treatment for his head

injury because he feared the authorities would discover his meth trafficking. He

was unable to leave his house for several weeks because he experienced dizziness

and other symptoms resulting from his injury. As a result, he could not obtain

drugs to sell, and was unable to operate his drug business for roughly two months.

       Witness testimony revealed that a number of individuals associated with the

Rock Springs meth trade discussed robbing Jerabek in the months prior to the

incident. These discussions started when John McIntosh, the brother of Rutland’s

girlfriend, complained to David Burnett, another meth dealer and a competitor of

Jerabek’s, that Jerabek had McIntosh’s gun. McIntosh had sold the gun to

Jerabek but now wanted it back. Burnett also harbored a grudge against Jerabek,

after Jerabek sold him low-quality drugs and borrowed money from him without

repaying it. Burnett offered to help McIntosh repurchase the gun, but Jerabek

refused to return it.

       McIntosh and Rutland, who sold drugs for Burnett and also was his

roommate, decided they would retrieve McIntosh’s gun by force. They went to

Jerabek’s house but called off their plan when they found Jerabek’s girlfriend,

Laurie Hundley, there with Jerabek. After this aborted attempt, Rutland,

                                         -4-
McIntosh, Burnett, and another acquaintance, Daniel O’Connell, continued to

discuss robbing Jerabek to retrieve McIntosh’s gun, and possibly other items.

      Michael Medved, the son of Jerabek’s girlfriend, overheard some of these

conversations. Medved once purchased drugs from Jerabek but began buying

from Burnett after he and Jerabek had a disagreement. Medved asked the men to

warn him before they robbed Jerabek so he could remove his mother from

Jerabek’s house.

      The day of the robbery, Rutland, Rutland’s girlfriend, and Burnett were

discussing the crime. Rutland told Burnett he was going to do it. Burnett offered

to help him, but eventually went elsewhere.

      Also the day of the robbery, either Rutland or Burnett called Medved and

told him “tonight’s the night.” R., Vol. 3, at 376–77. Medved then arranged to

take his mother to visit friends in a nearby town. He dropped her off there and

then left about 4 a.m., returning to his girlfriend’s apartment in Rock Springs.

      Early the next morning, Burnett was awoken by Rutland, who told Burnett

he had robbed and possibly shot Jerabek. Burnett told Rutland he could not stay

with him, and then called O’Connell, who helped Rutland find a hotel room.

Burnett then found Medved and told him what had happened. He also told

Medved that Rutland would pay him to keep quiet about the robbery. Rutland

later gave Medved $2000 in cash.




                                         -5-
      Later that day, Burnett, Rutland, Medved, and several others convened in

Rutland’s hotel room. Ricky Campbell, a friend of Rutland’s, arrived and gave

Rutland a gun. After the robbery, Rutland had thrown his gun into a snowdrift

and later asked Campbell to retrieve it. Rutland then asked Jesse Winner, another

of Burnett’s meth dealers, to dispose of several bags containing the gun, the

clothes Rutland wore during the robbery, and a few other things taken from

Jerabek, including a photo album. Winner later burned these bags in his

backyard.

      Rutland then told Burnett he was going to leave town for a while. He gave

Burnett the cash and drugs he had stolen from Jerabek for safekeeping. Burnett

claimed he received $24,000 in cash and about half a pound of meth from

Rutland. Rutland was later apprehended and charged for crimes arising from his

involvement in the robbery, as well as his participation in Burnett’s meth

trafficking operation.

      At trial, the testimony pertaining to Jerabek’s robbery included numerous

out-of-court statements. Rutland objected to these statements as hearsay. The

district court provisionally admitted them as coconspirator statements pursuant to

Federal Rule of Evidence 801(d)(2)(E) after the government claimed it would

introduce evidence establishing the existence of a drug conspiracy and a




                                        -6-
conspiracy to rob Jerabek. 1 The court later found the existence of both

conspiracies had been established, although it did not identify which specific

pieces of evidence supported its finding or which statements were admissible

pursuant to which conspiracy.

                                 II. Discussion

      On appeal, Rutland argues the district court lacked jurisdiction to prosecute

him for robbery. Rutland was prosecuted under the Hobbs Act, 18 U.S.C. § 1951,

which makes it a federal crime to interfere with interstate commerce by force or

threats. Rutland argues there was an insufficient nexus between Jerabek’s

robbery and interstate commerce to support his Hobbs Act conviction.

      We review de novo whether Rutland’s robbery satisfies the jurisdictional

prerequisites of the Hobbs Act. United States v. Buffey, 899 F.2d 1402, 1407 (4th

Cir. 1990). To the extent Rutland challenges the sufficiency of the evidence

supporting the jury’s verdict that he is guilty of a Hobbs Act offense, we still

review the verdict de novo but construe the evidence and all reasonable inferences

therefrom in the light most favorable to the government. United States v.

Caldwell, 589 F.3d 1323, 1328 (10th Cir. 2009).



      1
        Neither the defense nor prosecution asked for a James hearing. See
United States v. James, 590 F.2d 575, 582 (5th Cir. 1979) (holding a trial court
should not allow a jury to hear out-of-court coconspirator declarations before
holding a hearing, outside the jury’s presence, to determine whether such
statements are admissible under Federal Rule of Evidence 801(d)(2)(E)).

                                         -7-
      Rutland also challenges the district court’s decision to admit numerous out-

of-court statements. He argues there was insufficient evidence to establish the

existence of a conspiracy to rob Jerabek and contends the statements were not

admissible pursuant to any other exception to the hearsay rule.

      We review the district court’s decisions admitting or excluding evidence

for an abuse of discretion. United States v. Parra, 2 F.3d 1058, 1068 (10th Cir.

1993). We review any findings of fact underlying these decisions, such as

whether a conspiracy existed or whether certain statements were made in

furtherance of the conspiracy, for clear error. United States v. Lopez-Gutierrez,

83 F.3d 1235, 1242 (10th Cir. 1996).

      A. Hobbs Act

      The Hobbs Act makes it a federal crime to obstruct, delay, or affect

“commerce or the movement of any article or commodity in commerce, by

robbery or extortion. . . .” 18 U.S.C. § 1951(a). Normally we require the

government to show a robbery had at least a de minimis impact on interstate

commerce to satisfy the commerce element of a Hobbs Act offense. United States

v. Bolton, 68 F.3d 396, 398 (10th Cir. 1995). To make this de minimis showing,

“proving that a robbery depleted the assets of a business engaged in interstate

commerce will suffice.” United States v. Curtis, 344 F.3d 1057, 1070 (10th Cir.

2003). This is usually a simple inquiry since most Hobbs Act cases involve the

robbery of a business, and businesses usually are either engaged directly in

                                        -8-
interstate commerce or purchase or sell goods shipped in interstate commerce.

Bolton, 68 F.3d at 398.

      At trial, the district court allowed the prosecution to meet this requirement

by having the jury determine whether the items Rutland was alleged to have

stolen traveled in interstate commerce. The prosecution argued to the jury that it

should do so because cash usually travels in interstate commerce and because

Jerabek obtained his drugs from a source in Salt Lake City.

      Rutland contends this jurisdictional test is inappropriate in his case because

he robbed an individual, rather than a business, and individuals have a more

tenuous connection to interstate commerce than most businesses. United States

v. Quigley, 53 F.3d 909, 910 (8th Cir. 1995). Although we have never considered

this question, a majority of circuits do, in fact, require a more substantial showing

that the robbery affected interstate commerce to sustain a Hobbs Act conviction

when the victim is an individual. See, e.g., United States v. Diaz, 248 F.3d 1065,

1084–85 (11th Cir. 2001); United States v. Min Nan Wang, 222 F.3d 234 (6th Cir.

2000); Quigley, 53 F.3d at 910–11; United States v. Collins, 40 F.3d 95 (5th Cir.

1994); United States v. Buffey, 899 F.2d 1402 (4th Cir. 1990); United States v.

Boulahanis, 677 F.2d 586, 590 (7th Cir. 1982); but compare United States v.

Lynch, 437 F.3d 902, 909–12 (9th Cir. 2006) (rejecting the need for a heightened

showing when the evidence establishes the crime had a direct effect on interstate

commerce).

                                         -9-
      To sustain a Hobbs Act prosecution for robbing an individual, these circuits

generally require a showing that (1) the victim was directly and regularly engaged

in interstate commerce; (2) the crime somehow depleted the assets of a business

engaged in interstate commerce; or (3) the number of victims or sums involved

were so large there was a cumulative impact on interstate commerce. Collins, 40

F.3d at 100; see also Diaz, 248 F.3d at 1084–85; Quigley, 53 F.3d at 910–11.

Rutland urges us to adopt this standard and argues the government did not meet

that burden here.

      Even if we were to adopt this standard, it is not clear how this helps

Rutland. The government showed Jerabek was engaged in interstate commerce,

albeit illicit commerce. So even if Jerabek was robbed as an individual, the

government still produced enough evidence to meet the standard Rutland

favors—namely, Jerabek was not merely a private citizen, but a drug dealer.

While a majority of circuits have adopted a heightened standard for robberies of

individuals, an even greater number of circuits have found that robberies of

criminal organizations, even solo drug dealers, are robberies of businesses. See

United States v. Walker, 657 F.3d 160, 182 (3d Cir. 2011), cert. denied 132 S. Ct.

1122 (2012); United States v. Capozzi, 486 F.3d 711, 726 (1st Cir. 2007); United

States v. Parkes, 497 F.3d 220, 231 (2d Cir. 2007); United States v. Ostrander,

411 F.3d 684, 692 (6th Cir. 2005); United States v. Rodriguez, 360 F.3d 949,

955–56 (9th Cir. 2004); United States v. Williams, 342 F.3d 350, 355 (4th Cir.

                                        -10-
2003); United States v. Bailey, 227 F.3d 792, 798–99 (7th Cir. 2000); United

States v. Box, 50 F.3d 345, 353 (5th Cir. 1995). These cases generally reason that

although drug businesses are illegal, they are still businesses and frequently

operate in interstate commerce, and robbery still depletes their assets. E.g.,

Walker, 657 F.3d at 181–82.

      The Tenth Circuit has not ruled definitively on this question, although we

did hold in an unpublished opinion that robbery of an illegal drug trafficking

business satisfies the interstate commerce requirement of the Hobbs Act. United

States v. Fields, 157 F. App’x 40 (10th Cir. 2005). We see no reason to depart

from the reasoning of these cases here. To satisfy the Hobbs Act’s jurisdictional

requirement, evidence must be adduced showing the illegal drug operation was

engaged, either directly or indirectly, in interstate commerce and that the robbery

depleted the assets of the drug operation. To that end, in this case the government

produced evidence that Jerabek obtained his drugs from a source in Salt Lake

City, Utah, and that the robbery deprived Jerabek of approximately a half pound

of methamphetamine and between $24,000 and $30,000 in drug proceeds.

      Rutland does not dispute this evidence, or the weight of the precedent

holding that drug businesses, though illegal, are still businesses under the Hobbs

Act. Instead, he argues the current situation is distinguishable because there is no

evidence Jerabek was robbed in his capacity as a drug dealer. See United States

v. Moore, 363 F.3d 631 (7th Cir. 2004), overruled on other grounds by Young v.

                                         -11-
United States, 543 U.S. 1100 (2005). He asserts that the evidence established

Jerabek was robbed to retrieve McIntosh’s gun and money Jerabek owed Burnett,

but not for his drugs or drug proceeds.

      The problem with Rutland’s argument is that there was ample evidence

showing Jerabek was targeted, at least in part, in his capacity as a drug dealer. As

we discuss when analyzing Rutland’s hearsay claims, Rutland planned and

executed the robbery with the help of David Burnett. Burnett was also a drug

dealer, a rival of Jerabek’s, and employed Rutland to sell drugs and collect debts.

Burnett had loaned Jerabek $1800 and was never repaid, and also bought a large

quantity of what turned out to be low-quality drugs from Jerabek. Burnett

disliked Jerabek as a result, and stated while planning the robbery that he wanted

what Jerabek owed him.

      This evidence shows Rutland robbed Jerabek in part to collect on drug-

related debts owed from Jerabek to Burnett. Although there was evidence

Rutland also robbed Jerabek to retrieve McIntosh’s gun, there is no evidence this

was his only motive for robbing Jerabek, or that he did not intend to steal drugs

and drug proceeds in the course of the robbery. Rutland knew Jerabek was a drug

dealer, and that his home was likely to contain drugs and cash. And in the course

of the robbery, he actually stole drugs and cash. This shows Jerabek was

targeted, at least in part, in his capacity as a drug dealer.




                                           -12-
      And regardless of Rutland’s motives, there is solid evidence, which he does

not contest, that his crime actually depleted the assets of Jerabek’s drug business,

which was engaged in interstate commerce. Curtis, 344 F.3d at 1070. “[T]he

effect on commerce of a Hobbs Act robbery may be shown by a reasonably

probable effect on commerce, however minimal.” United States v. Shavers, 693

F.3d 363, 373 (3d. Cir. 2012) (internal quotation omitted).

      The evidence showed Rutland stole not only a gun but also a substantial

amount of drugs, obtained from an out-of-state source, and cash, far more than the

$1800 Jerabek owed Burnett. Jerabek was also unable to operate his business for

approximately two months after the robbery due to the injuries he sustained. This

sufficiently demonstrated the robbery depleted the assets of Jerabek’s drug

business, which operated across state lines, and thus met the de minimis showing

needed to sustain a Hobbs Act violation. Curtis, 344 F.3d at 1070.

      In summary, a rational jury could conclude from this evidence that

Rutland’s conduct satisfied the interstate commerce element of a Hobbs Act

violation. In addition, because we do not vacate Rutland’s conviction on Count

Two, the Hobbs Act violation, we decline to vacate his conviction on Count Four,

for use of a firearm during a violent felony. Rutland’s only argument on Count

Four was that the government could not prove he committed a robbery for which

he could be prosecuted in federal court because his robbery of Jerabek did not




                                         -13-
satisfy the interstate commerce element of the Hobbs Act. Because we find it did,

we will not vacate his firearms charge. 2

       B. Hearsay

       Rutland’s second claim is that the district court improperly admitted

numerous out-of-court statements under the coconspirator exception, Federal Rule

of Evidence 801(d)(2)(E), when there was insufficient evidence of a conspiracy to

rob Jerabek. The court admitted these statements provisionally, conditioning their

admission on the government’s promise to develop proof of a conspiracy through

later testimony. 3




       2
         During oral argument, Rutland’s counsel raised another argument on this
point, namely that if this robbery was committed pursuant to the drug conspiracy,
and not to a separate robbery conspiracy, then his use of a firearm in conjunction
with both the drug conspiracy and the robbery was such closely related conduct
that we should reverse his conviction on Count Four.

       Rutland made this argument at sentencing, but the district court ruled that
regardless of whether the robbery was committed pursuant to the drug conspiracy
or a separate conspiracy, the circumstances underlying each of Rutland’s charges
were factually distinct enough to support separate charges and sentences. Rutland
did not appeal this decision in his opening brief, and mentioned it only in passing
in his reply brief. We will not address his argument now, since we do not address
arguments raised for the first time at oral argument. United States v. Abdenbi,
361 F.3d 1282, 1289 (10th Cir. 2004) (citation omitted). Even if we were to do
so, it would not change the outcome, since we see no error in the district court’s
ruling regardless of whether the robbery and drug conspiracy were related.
       3
        This course of action is permissible, though “we have repeatedly
mentioned ‘our strong preference for James proceedings.’” United States v.
Townley, 472 F.3d 1267, 1273 (10th Cir. 2007) (quoting United States v. Owens,
70 F.3d 1118, 1123 (10th Cir. 1995)).

                                            -14-
         Rutland was charged with only one conspiracy, to possess and distribute

methamphetamine. But at trial, the government argued and the district court

found that there was a second, uncharged conspiracy to rob Jerabek. 4 The district

court found that the declarants and Rutland were members of both conspiracies,

and that the out-of-court statements Rutland complains of were made in the

course of and in furtherance of these conspiracies. The court, however, did not

specify which conspiracy each statement was in furtherance of. Rutland

maintains that no robbery conspiracy existed, and that the statements were

inadmissible pursuant to the drug conspiracy.

         To admit an out-of-court statement as non-hearsay under the coconspirator

exception, the district court must find by a preponderance of the evidence that (1)

a conspiracy existed, (2) the declarant and defendant were both members of the

conspiracy, and (3) the statement was made in the course of and in furtherance of

the conspiracy. United States v. Urena, 27 F.3d 1487, 1490 (10th Cir. 1994).

The court may consider both independent evidence and the statements themselves

when making this finding. United States v. Parra, 2 F.3d 1058, 1069 (10th Cir.

1993).

         4
         The conspiracy supporting the introduction of the out-of-court statement
need not be the same as the conspiracy charged in the indictment, so long as the
statement was in furtherance of the uncharged conspiracy. United States v.
Gigante, 166 F.3d 75, 82 (2d. Cir. 1999); see also United States v. Evans, 970
F.2d 663, 675 (10th Cir. 1992) (holding that a failure to instruct the jury on
additional uncharged conspiracies is not reversible error so long as the jury is
instructed that the government has the burden to prove the charged conspiracy).

                                         -15-
      1. Drug Conspiracy

      Rutland does not contest the existence of the drug conspiracy. Rather, he

argues the many out-of-court statements he complains of were not made in

furtherance of the conspiracy because they pertained to the robbery.

      Rutland asserts that the robbery was not related to the drug conspiracy, so

any plans or statements made about the robbery cannot have been in furtherance

of the drug conspiracy. But as we discussed when analyzing Rutland’s Hobbs Act

offense, there is evidence linking the robbery to the drug conspiracy. This

evidence showed Burnett, who was heavily involved in planning the robbery, had

a prior business relationship with Jerabek. Burnett had loaned Jerabek $1800,

which Jerabek never repaid. 5 Burnett also purchased a large quantity of drugs

from Jerabek that turned out to be of very low quality. Burnett severed his

relationship with Jerabek after this. Rutland sold drugs and collected debts for

Burnett. Although there was no evidence any of the coconspirators specifically

stated they were targeting Jerabek to damage his business, Burnett did say while

planning the robbery that he wanted what Jerabek owed him. The district court

could have inferred from this evidence that one purpose of the robbery was to

collect drug debts Jerabek owed Burnett.



      5
         Burnett testified at one point that he had forgiven the debt when Jerabek
gave him some property in lieu of the money, but he also told numerous people
that Jerabek never paid him back and owed him money.

                                        -16-
      Rutland’s sole response to this evidence is to argue the robbery was not a

reasonably foreseeable consequence of the drug conspiracy. See Bourjaily v.

United States, 483 U.S. 171, 188 (1987) (holding an individual who acts outside

the scope of a conspiracy cannot bind his coconspirators). He maintains that the

drug conspirators agreed merely to buy and sell meth, not to commit robberies or

retaliate against their competition. He also argues the robbery did nothing to

further or promote the drug conspiracy.

      Rutland is correct that the commission of a robbery cannot necessarily be

inferred from an agreement to distribute drugs. But he goes too far in suggesting

that the robbery did nothing to promote the drug conspiracy. On the contrary, the

robbery aided Burnett’s drug operation by allowing him to recover money owed

him by Jerabek or that he lost as a result of prior bad business deals with Jerabek.

The evidence showed that several individual drug conspirators, including

Medved, Burnett, and Rutland, obtained money or drugs as a result of the

robbery, allowing them to increase their drug distribution activities.

      “Because it is difficult to distinguish between a single large conspiracy and

several smaller conspiracies, we will generally defer to the [trier of fact’s]

determination of the matter.” United States v. Fishman, 645 F.3d 1175, 1189

(10th Cir. 2011), cert. denied 132 S. Ct. 1046 (2012) (internal quotation omitted).

The district court found two separate conspiracies, one to distribute drugs and one

to rob Jerabek, but it never found these conspiracies were completely unrelated.

                                          -17-
To the contrary, the evidence shows the two conspiracies were closely related. In

fact, the robbery conspiracy can probably best be described as a sub-conspiracy of

the drug conspiracy, as it involved many of the same members and its goals, at

least in part, were to further the aims of the drug conspiracy.

      The fact that the goals of the two conspiracies were not perfectly aligned

does not preclude a finding that they were related. “The goals of all the

participants need not be congruent for a single conspiracy to exist, so long as

their goals are not at cross purposes. . . .” Fishman, 645 F.3d at 1190 (quoting

United States v. Harrison, 942 F.2d 751, 756 (10th Cir. 1991) (internal quotation

omitted)). Similarly, the goals of the two conspiracies here need not be perfectly

aligned for the conspiracies to be related.

      As Rutland argues, the fact that there were two conspiracies, and not one,

with somewhat different goals, suggests that some conspirators might belong to

one conspiracy and not the other, or some statements may have been made in

furtherance of one but not the other. But we cannot make a blanket finding that

no statements pertaining to the robbery were made pursuant to the drug

conspiracy, or conversely that all such statements were.

      In short, we will evaluate the statements individually to determine whether

the district court’s decision to admit them was an abuse of discretion.




                                         -18-
      2. Robbery Conspiracy

      Although Rutland concedes the existence of the drug conspiracy, he

disputes that the evidence supports the existence of a separate robbery conspiracy.

To prove a conspiracy existed, the district court must find by a preponderance of

the evidence that (1) there was an agreement to violate the law, (2) the declarant

knew the essential objectives of the conspiracy, (3) the declarant knowingly and

voluntarily took part in the conspiracy, and (4) the coconspirators were

interdependent. United States v. Ailsworth, 138 F.3d 843, 850–51 (10th Cir.

1998). Rutland disputes that the evidence established the first and fourth factors,

the existence of an agreement and interdependence.

      Agreement. To prove the existence of an agreement, the government does

not have to prove an express or formal agreement was made. United States v.

Suntar Roofing, Inc., 897 F.2d 469, 474 (10th Cir. 1990). It merely has to show

the coconspirators “tacitly came to a mutual understanding.” Id.

      The evidence of an agreement was as follows: (1) Burnett and Rutland

discussed robbing Jerabek numerous times; (2) O’Connell and McIntosh were

involved in some of these discussions; (3) McIntosh and Rutland attempted to rob

Jerabek on a prior occasion, but called off the robbery when they found Jerabek’s

girlfriend at his house; and (4) O’Connell suggested to the others that they steal

more than McIntosh’s gun from Jerabek.




                                        -19-
      Rutland dismisses this evidence as mere “narrative declarations” or “idle

chatter” that is insufficient to establish the existence of an agreement. United

States v. Doerr, 886 F.2d 944, 951–52 (7th Cir. 1989). But while Burnett said his

discussions with Rutland “weren’t plots and plans” but “just comments,” R., Vol.

3, at 617, no other witness described these statements as speculative or unserious.

Rutland certainly took them seriously. Rather, the statements seem to be exactly

what they purport—discussions of how to rob Jerabek.

      These statements do not necessarily demonstrate the existence of an

explicit agreement to rob Jerabek, but they are sufficient to show the existence of

tacit, mutual understanding. See United States v. Sells, 477 F.3d 1226, 1236 (10th

Cir. 2007) (inferring an agreement based on frequent contacts among the

defendants and joint actions). Thus, the district court did not clearly err by

finding the existence of an agreement.

      Interdependence. We will find interdependence is present if the declarant’s

actions facilitated the actions of other coconspirators or the venture as a whole.

United States v. Powell, 982 F.2d 1422, 1432 (10th Cir. 1992). We also consider

whether the activities of the alleged coconspirators were advantageous to the

activities of other coconspirators, or the success of the venture as a whole.

United States v. Carnagie, 533 F.3d 1231, 1240 (10th Cir. 2008). There must be

proof of affirmative conduct in furtherance of the conspiracy, not merely




                                         -20-
association. Id. at 1429. The government may demonstrate interdependence

using circumstantial evidence. Caldwell, 589 F.3d at 1329.

      The evidence of interdependence was: (1) Burnett, Rutland, McIntosh, and

O’Connell discussed robbing Jerabek on numerous occasions; (2) Rutland and

McIntosh went to Jerabek’s intending to rob him, but called off the plan when

they found Hundley there; (3) either Rutland or Burnett called Medved the night

of the robbery to tell him to get his mother out of Jerabek’s house; (4) Burnett

suggested O’Connell ask Rutland to help him rob Jerabek; and (5) Burnett offered

to help Rutland rob Jerabek.

      This shows the coconspirators did more than speculate about the possibility

of robbing Jerabek, but actually planned a robbery. Although none of the other

coconspirators helped Rutland commit the robbery, only one coconspirator need

commit an overt act in furtherance of the conspiracy to establish its existence.

See United States v. Wardell, 591 F.3d 1279, 1287 (10th Cir. 2009).

      We examine this evidence in more detail below, when discussing whether it

supports each individual alleged coconspirator’s involvement in the conspiracy.

But because the evidence shows affirmative conduct in furtherance of the

conspiracy, beyond mere association, the district court did not err when it

concluded a robbery conspiracy existed.




                                        -21-
      3. Coconspirators

      We must next determine whether the district court’s finding that the

declarants whose out-of-court statements were admitted were members of a

conspiracy was correct. Rutland objected to out-of-court statements made by four

individuals: Burnett, Medved, McIntosh, and O’Connell. He acknowledges that

each of these men was a member of the drug conspiracy, but disputes the men

were also members of the robbery conspiracy.

      A person is a member of a conspiracy if he was aware of the common

purpose, willingly participated in the conspiracy, and intended to advance the

purpose of the conspiracy. United States v. Suntar Roofing, 897 F.2d 469,

474–75 (10th Cir. 1990).

      Burnett. Rutland argues Burnett was not a robbery conspirator because he

testified he had no part in Jerabek’s robbery and said his discussions with Rutland

about robbing Jerabek weren’t “plots and plans.” R., Vol. 3, at 617. Burnett’s

attempt to distance himself from the robbery is undermined by other testimony,

including his own, that he participated in numerous discussions about the robbery,

wanted to recover money from Jerabek through the robbery, offered to help with

the robbery, and suggested the coconspirators involve Rutland in the conspiracy.

Burnett’s involvement in planning the robbery from the very beginning

demonstrates not only that he was aware of the conspiracy and its purpose but

also intended to advance its purpose. His central role in planning the robbery

                                        -22-
convinces us the court did not err in concluding he was a robbery coconspirator.

Thus, Burnett was a member of both conspiracies.

      McIntosh. We can also conclude McIntosh was a robbery conspirator. He

participated in several discussions about the robbery and participated in a failed

robbery attempt with Rutland. Nor does Rutland seriously argue McIntosh was

not a coconspirator. 6 Thus, he was also a member of both conspiracies.

      O’Connell. Several witnesses testified that O’Connell participated in

planning the robbery. O’Connell apparently did not take overt action until after

the robbery occurred, when he helped Rutland cover up the crime. But given the

evidence of O’Connell’s involvement in planning the robbery, he was obviously

aware of its purpose and intended to advance it. Suntar Roofing, 897 F.2d at

474–75; see also United States v. Fox, 902 F.2d 1508, 1517 (10th Cir. 1990).

O’Connell consequently was a member of both conspiracies.

      Medved. The government argued at trial that Medved was a member of the

robbery conspiracy, but the district court sustained an objection to testimony

about certain statements Medved made concerning his role in the robbery on the

grounds that Medved acted primarily out of concern for his mother’s safety, not

because he wished to help the others rob Jerabek. On appeal, the government

      6
        Rutland argues McIntosh was not a coconspirator because the only
evidence was that he retrieved Rutland’s gun after the robbery. Rutland seems to
be confusing McIntosh with Campbell, who retrieved Rutland’s gun. We agree
the evidence is insufficient to support Campbell’s involvement in the robbery
conspiracy, but the government does not argue he was a coconspirator.

                                        -23-
does not argue this ruling was incorrect, and in fact concedes Medved did not

overtly facilitate the robbery. But it also argues Medved’s actions on behalf of

the drug conspiracy contributed to the robbery’s success because he kept its

existence a secret and removed his mother from Jerabek’s house prior to the

robbery. The evidence also showed Medved participated in some planning

discussions, did not warn Jerabek about the robbery despite his close relationship

with Jerabek, and removed his mother from Jerabek’s house on the night of the

robbery, all of which facilitated the robbery conspiracy’s success and

demonstrated that Medved was aware of the robbery conspiracy’s purpose and

participated in it to some degree. Suntar Roofing, 897 F.2d at 474–75.

      Nonetheless, the government does not contest the district court’s ruling on

appeal and concedes Medved took no overt actions on the robbery conspiracy’s

behalf.

      4. Statements

      We now turn to the out-of-court statements Rutland alleges were

improperly admitted. To be admissible under Rule 801(d)(2)(E), a statement must

be made by a coconspirator and be in furtherance of the conspiracy. United

States v. Roberts, 14 F.3d 502, 515 (10th Cir. 1993). A statement is in made in

furtherance of a conspiracy when it is “intended to promote the conspiratorial

objectives.” United States v. Townley, 472 F.3d 1267, 1273 (10th Cir. 2007)

(internal quotation omitted). We have found the following sorts of statements to

                                        -24-
be in furtherance of a conspiracy: (1) statements explaining events of importance

to the conspiracy, id.; (2) “statements between coconspirators which provide

reassurance, which serve to maintain trust and cohesiveness among them, or

which inform each other of the current status of the conspiracy,” United States v.

Smith, 833 F.2d 213, 219 (10th Cir. 1987) (internal quotation omitted); (3)

statements identifying a fellow coconspirator, Townley, 472 F.3d at 1273; and (4)

discussions of future intent “that set transactions to the conspiracy in motion” or

that maintain the flow of information among conspiracy members, United States

v. Gutierrez, 48 F.3d 1134, 1137 (10th Cir. 1995). Mere “narrative declarations

of past events,” however, are not in furtherance. Gutierrez, 48 F.3d at 1137.

      The majority of the out-of-court statements Rutland complains of were

made by Burnett. Medved testified (1) he heard Burnett and Rutland discuss

robbing Jerabek, (2) either Rutland or Burnett called him the night of the robbery

saying “tonight’s the night,” (3) Burnett told Medved the morning after the

robbery that Jerabek had been shot, and (4) Burnett told Medved Rutland would

pay him to keep quiet about the robbery. Medved’s girlfriend testified (5) she

heard Burnett, Rutland, and O’Connell discuss robbing Jerabek to get money

Jerabek owed them. Jesse Winner testified Burnett told him (6) to dispose of a

bag, (7) to burn a photo album stolen from Jerabek, and (8) that popping sounds

from the burning bag of evidence might be .22 shells.




                                         -25-
      Statements 1, 2, and 5 did not pertain directly to the drug conspiracy, but

were in furtherance of the robbery conspiracy. Either they were made by Rutland,

in which case they were admissions against interest under Rule 801(d)(2)(A), or

they were made by Burnett, who was a member of the robbery conspiracy. In

either case, they were admissible.

      Statements 3, 4, and 8, on the other hand, may not necessarily be

admissible pursuant to the robbery conspiracy. They occurred after the robbery,

by which point that conspiracy had ended. United States v. Silverstein, 737 F.2d

864, 867 (10th Cir. 1984). But these statements were made in furtherance of the

drug conspiracy. Statement 3 was made to inform Medved, who was a drug

conspirator, of the status of the robbery. The robbery, as discussed, was intended

in part to further the objectives of the drug conspiracy, and updating Medved on it

served to maintain the flow of information among the coconspirators. Townley,

472 F.3d at 1273. Similarly, statement 4 informed Medved that he would benefit

in the drug conspiracy if he helped conceal the existence of the robbery.

Statement 8 was to Winner, who sold drugs for Burnett and was a member of the

drug conspiracy, and Burnett’s statement maintained the flow of information to

Winner and helped him safely dispose of the robbery evidence, which furthered

the goals of the drug conspiracy. Accordingly, these statements were admissible

pursuant to the drug conspiracy.




                                        -26-
      Statements 6 and 7 were admissible: they were instructions and were not

offered for their truth. Thornburg v. Mullin, 422 F.3d 1113, 1128 (10th Cir.

2005). Thus, it is irrelevant which conspiracy they were made in furtherance of.

      The remaining out-of-court statements Rutland claims were admitted in

error were all testified to by Burnett. Burnett testified (1) Medved asked Burnett

and Rutland for time to get his mother out of Jerabek’s house; (2) O’Connell said

he was going to rob Jerabek, asked whether Burnett wanted anything, and

speculated Burnett would be blamed for the robbery; (3) O’Connell told Burnett

he wanted to transform McIntosh’s plan to steal his gun back from Jerabek into a

full-blown robbery; (4) O’Connell told Burnett he and Rutland were going to rob

Jerabek; and (5) McIntosh said he was going to get his gun from Jerabek.

      Each of these statements except the first was admissible because it was

made by a coconspirator and was in furtherance of the robbery conspiracy. The

government concedes the last statement, by McIntosh, might not have been made

in furtherance of the conspiracy, but argues even if it was not, the statement was

not offered for its truth—that McIntosh wanted to retrieve his gun from Jerabek—

but as res gestae evidence to demonstrate how the conspiracy began and so was

not hearsay under Rule 801(c)(2). See United States v. Kimball, 73 F.3d 269, 272

(10th Cir. 1995). We agree with this explanation; thus, it was not error to admit

it. United States v. Tome, 61 F.3d 1446, 1449 (10th Cir. 1995) (noting appellate




                                        -27-
courts may affirm evidentiary rulings under any Federal Rule of Evidence, not

just the one relied on at trial).

       As for the first statement, by Medved, it was arguably in furtherance of the

robbery conspiracy, but it was nonetheless inadmissible pursuant to that

conspiracy because Medved was not a robbery coconspirator. But Medved was a

drug coconspirator, and we find the statement was also in furtherance of the drug

conspiracy. Although Medved did not agree with the others to rob Jerabek, he

nonetheless facilitated the robbery in a variety of ways in order to maintain his

status as a drug conspirator and to aid the goals of the drug conspiracy, which the

robbery was intended to advance.

       As discussed, he concealed the existence of the conspiracy from Jerabek,

despite his long history with Jerabek and his mother’s close relationship with

Jerabek. More importantly, he asked for a warning so he could remove his

mother from Jerabek’s prior to the robbery. Although this was primarily for

personal reasons, it also helped the robbery and drug conspiracy succeed, and

maintained Medved’s status in the drug conspiracy. Smith, 833 F.2d at 219.

Hence, this statement was admissible pursuant to the drug conspiracy.

       Finally, we note that many of the out-of-court statements Rutland

complains of were made by Burnett and Medved, who both testified at trial and

were cross-examined by Rutland’s attorney. We have held that any error in

admitting coconspirator hearsay statements is harmless when the declarant

                                        -28-
testifies at trial and is subject to cross examination about the statements.

Townley, 472 F.3d at 1274; United States v. Gary, 999 F.2d 474, 479 (10th Cir.

1993) (citing United States v. Wolf, 839 F.2d 1387, 1395–96 (10th Cir. 1988));

see also Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004) (“The

[Confrontation] Clause does not bar admission of a statement so long as the

declarant is present at trial to defend or explain it.”). Both Burnett and Medved

testified and were cross-examined about the subjects of each of these statements,

so even if they were admitted in error, their admission was harmless. 7

                                 III. Conclusion

      For the foregoing reasons, we AFFIRM Rutland’s convictions.




      7
          This rule would not apply to statements by O’Connell, who did not testify
at trial, or McIntosh, who died prior to Rutland’s trial, but as discussed, all out-
of-court statements by these men were properly admitted.

                                         -29-
