                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 07-1328
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Eastern District of Missouri.
Tonya Johnson Hyles                     *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: November 14, 2007
                                Filed: April 8, 2008
                                 ___________

Before WOLLMAN, JOHN R. GIBSON, and BENTON, Circuit Judges.
                          ___________

BENTON, Circuit Judge.

        A jury convicted Tonya Johnson Hyles (“Hyles”) of conspiracy to use interstate
facilities to commit murder for hire in violation of 18 U.S.C. § 1958(a), aiding and
abetting murder for hire in violation of 18 U.S.C. §§ 2 and 1958, possessing a firearm
in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(I), and
conspiracy to deliver a firearm to a felon in violation of 18 U.S.C. §§ 922(g)(1) and
371. She was sentenced to life imprisonment plus five years, and three years of
supervised release. She argues that her convictions must be vacated because of: 1)
a non-prosecution agreement; 2) insufficient evidence; 3) a variance between the
indictment and the evidence at trial; 4) Government misconduct in closing argument;
5) insufficient verdict to impose a life sentence; and 6) two erroneously admitted
hearsay statements. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

                                          I.

      The facts of this case are set forth in United States v. Cannon, 475 F.3d 1013
(8th Cir.), cert. denied, 128 S. Ct. 365 (2007), and United States v. Tyrese Hyles, 479
F.3d 958 (8th Cir. 2007). Facts are reiterated here as relevant to Hyles’s appeal,
presenting them in a light most favorable to the verdict. See United States v. Birdine,
515 F.3d 842, 844 (8th Cir. 2008).

       On August 10, 2000, in Caruthersville, Missouri, Coy Smith testified against
Tyrese Hyles (“Tyrese”), Hyles’s husband (then boyfriend). After the preliminary
hearing in the state drug case, Tyrese devised a plan to have Smith murdered. He
asked David Carter, his cellmate at the County Jail, to kill Smith. Tyrese promised
to have Hyles bail Carter out of jail and to give Carter a 1984 Pontiac in exchange for
the murder. Carter agreed. That same day, Hyles bailed Carter out of jail, listing the
car as collateral and informing the bondsman that she had just sold Carter the car.

       That afternoon, Hyles asked Samuel Anderson to borrow a gun. Anderson
agreed to give Hyles the gun and said he would bring it to her house. According to
Anderson, Hyles said “that’s fucked up that Coy had testified against Tyrese” and
“that she’s going to get somebody to take care of his ass.” Five to ten minutes later,
Anderson brought a Beretta stainless steel gun to Hyles’s residence. He handed her
the gun and told her to place it in the cabinet. Carter, who was hiding in Hyles’s
house when the gun was delivered, retrieved it from the cabinet and left.

      Carter never killed Smith. Instead, he returned the gun to Anderson a couple
of days later. He was rearrested on August 18 and taken to the County Jail. There,



                                         -2-
he saw Tyrese again. Carter testified that Tyrese said “that it was fucked up, he would
have did it for me.”

       About the same time, Tyrese and Hyles were also arranging to have Amesheo
Cannon kill Smith. Cannon lived with his mother in Memphis, Tennessee, where he
was under parole supervision. Phone records, from the evening of August 10, showed
several phone calls made from Tyrese’s cell at the County Jail to Hyles’s residence
– including calls made at 7:50 and 8:34. There were also four calls from Cannon’s
mother’s house in Memphis, to Hyles’s house in Caruthersville – at 8:11, 8:23, 8:39,
and 8:43. The last call lasted 51 minutes and overlapped with the second call from
Tyrese’s jail cell.

       April Leatherwood, Cannon’s girlfriend, testified that, on August 14, Cannon
called her from Memphis, saying that Hyles was driving him to Caruthersville from
Memphis. Hendrietta Nichols, also Cannon’s girlfriend, testified that she and Hyles
drove to Memphis to pick up Cannon and that Cannon drove them all back to
Caruthersville. A couple of days later, Anderson gave Cannon the same gun he had
originally given Hyles. He testified that he saw Cannon get out of the passenger side
of Hyles’s Pontiac, but could not see the driver. According to Anderson, Cannon
stated that he was going to “take care of that for Tyrese.”

       On August 20, Hyles and Cannon drove by Smith’s house. Hyles was driving
the Pontiac, with Cannon in the passenger seat. Afterwards, Hyles and Cannon went
to the County Jail to talk to Tyrese. They were seen yelling up to Tyrese’s cell
window from outside the jail. The next morning, on August 21, the police found
Smith shot to death in bed.

      Several days later, Cannon told Anderson how he killed Smith, explaining how
he shot Smith one time behind the head and then fired another shot. On August 29
and September 3, Cannon was issued traffic summonses while driving the Pontiac.

                                         -3-
A sheriff’s deputy also recovered photographs from Cannon’s jail cell depicting the
Pontiac, and Tyrese and Cannon posing together.

                                          II.

       Hyles claims that her convictions must be vacated because the Government
violated a non-prosecution agreement.

       This court reviews de novo the interpretation and enforcement of a non-
prosecution agreement. United States v. Glauning, 211 F.3d 1085, 1087 (8th Cir.
2000). Within the context of constitutional safeguards for due process, non-
prosecution agreements may be enforced under principles of contract law. United
States v. Crawford, 20 F.3d 933, 935 (8th Cir. 1994). “Only a material breach is
sufficient to excuse the government of its performance.” Id.

      As relevant here, the proffer letter stated:

            It is my understanding that Tonya Johnson Hyles wishes to
      explore the possibility of cooperating with the U.S. Government. . . .

             Before the Government comes to an agreement with Tonya . . . ,
      she must submit to an interview . . . for the purpose of assessing the
      credibility and value of the assistance, evidence and possible testimony
      that she can provide. Only if the Government determines that your
      client’s information and ability to develop information is honest, reliable
      and worthwhile, will the Government enter into any agreement. . . .

            With respect to and in exchange for your client’s proffer, the only
      promises made on behalf of the Government in consideration for the
      proffer are as follows:




                                          -4-
             (1) Unless otherwise provided herein, any statement made by
             your client will not be used directly against her in the present
             or any subsequent prosecution . . . .

             At this time the Government is not entering into any plea
      agreement or negotiations or representing that it will enter into any plea
      agreement or negotiations. Any plea agreement or negotiations the
      Government may enter into will be determined after the interview and
      shall be left to the sole discretion of the United States Government.

Hyles signed the letter, indicating she understood “there are no promises by the
Government to enter into any agreement.”

      The first indictment against Hyles was dismissed subsequently.               At an
evidentiary hearing on this issue, the FBI agent testified:

             We knew she had been lying. I think at that point, myself and Mr.
      Price felt like she still was not giving us everything she knew. The
      indictment was not dismissed because we thought she was telling the
      truth and telling us everything that she knew about it. That’s certainly
      not the reason for the dismissal of the indictment.

The FBI agent also asserted that the indictment was dismissed because “the trial date
on Ms. Hyles was approaching, was quite near, and we had the issue of pursuing
charges against Mr. Cannon and Mr. Hyles, and those were the primary focus.” The
agent further replied yes to whether Hyles had “stopped being a useful witness on
February 8th of 2005.”




                                         -5-
        The district court1 found that there was no agreement: “The record is clear,
however, based on the proffer letter, defendant’s actions vis a vis the proffer, the
determination by the United States Attorney’s office that defendant had not given
complete, truthful and candid information, and the testimony presented to the Court
that an agreement defendant seeks to enforce was never formed.” The court did not
err in this conclusion.

        The proffer letter was not a non-prosecution agreement. The letter contained
an agreement to “engage in negotiations involving specific concessions” by the
Government in exchange for further cooperation if the Government believed the
information in the proffer was “truthful, candid and meritorious.” The letter also
provided use immunity (with some limitations). However, these provisions do not
amount to a non-prosecution agreement. Moreover, the fact that the Government
dismissed the first indictment does not establish a non-prosecution agreement. The
first indictment was not dismissed due to Hyles’s past cooperation or the expectation
of future cooperation. The Government had concerns about her truthfulness and
decided, instead, to focus on the Tyrese and Cannon prosecutions. Therefore, the
Government did not breach a non-prosecution agreement.

      Hyles contends the district court erred in not making an independent
determination whether she materially breached the agreement. Because there is not
a non-prosecution agreement in this case, the court did not err.

      Hyles further argues the Government violated her Fifth Amendment rights by
using her statements, made under the agreement, against her at trial. At trial, the
Government introduced excerpts from Hyles’s Grand Jury testimony. The proffer

      1
       The Honorable Henry Edward Autrey, United States District Judge for the
Eastern District of Missouri, adopting the report and recommendations of the
Honorable Lewis M. Blanton, United States Magistrate Judge for the Eastern District
of Missouri.

                                         -6-
letter, though, expressly stated: “Further, if your client knowingly provides untruthful
information or if she knowingly withholds the full truth from Government agents . .
. during the course of the proffer, the promise not to directly use what she says against
her shall be null and void. . . .” Because Hyles signed the letter, indicating she
understood it, and the Government believed she was knowingly withholding the full
truth, the use of her Grand Jury testimony against her at trial did not violate her Fifth
Amendment rights. See United States v. McFarlane, 309 F.3d 510, 514 (8th Cir.
2002) (“While [t]he protection given a defendant by an immunity agreement is
coextensive with the protection against self-incrimination afforded by the Fifth
Amendment, the immunity agreement itself governs the scope of the immunity
involved.”) (internal quotation marks and citations omitted).

                                           III.

       Hyles insists that there is insufficient evidence to convict her for: 1) conspiracy
to use interstate facilities to commit a murder for hire or aiding or abetting; 2)
conspiracy to deliver a firearm to a felon; and 3) possession of a firearm in furtherance
of a crime of violence.

       “We review de novo the sufficiency of the evidence, viewing the evidence in
the light most favorable to the jury verdict and giving the verdict the benefit of all
reasonable inferences.” United States v. Birdine, 515 F.3d 842, 844 (8th Cir. 2008).
“We reverse only if no reasonable jury could have found the defendant guilty beyond
a reasonable doubt.” Id. “The standard to be applied to determine the sufficiency of
the evidence is a strict one, and the finding of guilt should not be overturned lightly.”
United States v. Tensley, 334 F.3d 790, 794 (8th Cir. 2003). “If the evidence
rationally supports two conflicting hypotheses, the reviewing court will not disturb the
conviction.” Id.




                                           -7-
                                           A.

       Hyles declares there was insufficient evidence to convict her for conspiracy to
use interstate facilities to commit murder for hire. See 18 U.S.C. § 1958(a)
(“Whoever . . . uses or causes another . . . to use the mail or any facility of interstate
or foreign commerce, with intent that a murder be committed in violation of the laws
of any State or the United States as consideration for the receipt of, or as consideration
for a promise or agreement to pay, anything of pecuniary value, or who conspires to
do so, shall be . . . imprisoned.”).

      To convict for conspiracy to commit murder for hire, the government had to
prove that there was an agreement to kill Smith, that Hyles knew of this agreement,
and that Hyles intentionally joined this agreement. See United States v. Cannon, 475
F.3d 1013, 1020 (8th Cir. 2007). The Government must offer enough evidence to
prove Hyles’s connection to the conspiracy beyond a reasonable doubt. See id., citing
United States v. Lopez, 443 F.3d 1026, 1028 (8th Cir.) (en banc), cert. denied, 127 S.
Ct. 214 (2006). The conspiracy may be shown by direct or circumstantial evidence.
Cannon, 475 F.3d at 1020.

      First, Hyles argues there is no evidence that she used interstate facilities or
commerce with the intent to further or promote the murder for hire. More specifically,
she asserts the evidence did not show that the use of the interstate facilities actually
furthered the conspiracy. This argument is unavailing.

      The Government presented evidence of several phone calls from Cannon’s
mother’s home in Memphis to Hyles’s home in Caruthersville. One call overlapped
with a call from Tyrese’s jail cell. Additionally, Cannon’s two girlfriends testified
that Hyles went to Memphis to pick up Cannon and bring him back to Caruthersville.
The Government also demonstrated that Hyles drove Cannon by Smith’s house and
took Cannon to visit Tyrese at jail the evening before the murder. According to the

                                           -8-
evidence, Hyles (or someone driving her car) took Cannon to get the gun. This
evidence, though circumstantial, is sufficient to show the use of interstate facilities
with the intent to further the conspiracy.

       Second, Hyles contends there is no evidence of a promise to pay anything of
pecuniary value to Cannon. Nevertheless, Hyles concedes that Carter was promised
a vehicle and getting bonded out of jail. The promise to Carter is sufficient to show
“a promise or agreement to pay, anything of pecuniary value.” See 18 U.S.C. §
1958(a). Because this is a conspiracy, the Government was not required to show that
Cannon – the person who committed the offense – was promised something of value.
It met its burden by showing that Carter, another member of the conspiracy, was
promised something of value. Moreover, the Government did show circumstantially
that Cannon received the Pontiac for the murder of Smith. Cannon was stopped and
issued two traffic summonses after the murder while driving the Pontiac, and a
sheriff’s deputy found pictures in Cannon’s jail cell of the car and of Cannon and
Tyrese posing together. Viewing the evidence most favorably to the jury verdict, it
is reasonable to infer that Cannon was given the car in exchange for killing Smith.

      Third, Hyles maintains the Government failed to prove she knowingly joined
a conspiracy with Cannon to murder Smith. To convict Hyles of conspiracy, the
Government had to prove, as one element of the offense, that an agreement existed
among two or more people to accomplish an illegal purpose. See United States v.
Guel-Contreras, 468 F.3d 517, 521 (8th Cir. 2006). The Government did show, and
Hyles does not argue otherwise, that she had an agreement with Carter, Anderson, and
Tyrese, to kill Smith, and that she knew of the agreement and intentionally joined the
agreement. Contrary to Hyles’s assertions, the Government also showed she
knowingly joined a conspiracy with Cannon to murder Smith. The Government
presented evidence that several phone calls were placed from Cannon’s residence to
Hyles’s around the same time Hyles and Tyrese were conspiring with Carter to kill
Smith, that Hyles drove to Memphis to pick up Cannon and bring him to

                                         -9-
Caruthersville a few days before the murder, and that Hyles drove Cannon by Smith’s
house the evening before the murder. Viewing the evidence most favorably to the jury
verdict, this is sufficient to show that Hyles knowingly joined a conspiracy with
Cannon to kill Smith. See United States v. Pizano, 421 F.3d 707, 719 (8th Cir. 2005)
(“Proof of a formal, explicit agreement is not necessary; rather, ‘[t]he government
need only show that those involved operated pursuant to a common scheme or had a
tacit understanding.’”), quoting United States v. Mickelson, 378 F.3d 810, 821 (8th
Cir. 2004).

       Lastly, Hyles objects that her conviction must be vacated because no witness
at trial ever identified her as the person about whom they were testifying.
“‘Courtroom identification is not necessary when the evidence is sufficient to permit
the inference that the defendant on trial is the person who [committed the acts
charged].’” United States v. Capozzi, 883 F.2d 608, 617 (8th Cir. 1989), quoting
United States v. Hoelscher, 764 F.2d 491, 496 (8th Cir. 1985). Viewing the evidence
most favorably to the jury verdict, the evidence was sufficient to show that Hyles
committed the acts charged. Hyles was identified by her attorney in opening
statement, her identity was not contested at trial, and several witnesses testified they
knew Hyles from living in Caruthersville. See Butler v. United States, 317 F.2d 249,
254 (8th Cir. 1963).

                                          B.

       Hyles claims there was insufficient evidence to convict her for conspiracy to
deliver a firearm to a felon. Specifically, she alleges the Government failed to prove
she knew that Carter was a convicted felon and that he was prohibited from obtaining
a firearm. See 18 U.S.C. § 922(g)(1), § 371.

       Viewing the evidence most favorably to the jury verdict, the evidence was
sufficient to show that Hyles knew Carter was a convicted felon. Carter testified he

                                         -10-
lived in Caruthersville his whole life, had known Hyles his whole life, and their
mothers were friends. He stated his past felony convictions, at the time of the murder-
for-hire conspiracy, were burglary, unlawful use of a weapon, shooting into a
dwelling, and drug possession. Also, the bond papers, which Hyles signed, indicated
that Carter was charged with felony stealing.

       The Government was not required to prove that Hyles knew Carter was
prohibited from obtaining a firearm; it had to prove only that Hyles knowingly
provided Carter with a firearm. See United States v. Kind, 194 F.3d 900, 907 (8th Cir.
1999) (“it is well settled in this circuit that the government need only prove
defendant’s status as a convicted felon and knowing possession of the firearm”);
United States v. Lomax, 87 F.3d 959, 962 (8th Cir. 1996) (“[T]he ‘knowingly’
element of section 922(g) applies only to the defendant’s underlying conduct, not to
[her] knowledge of the illegality of [her] actions.”). The Government showed that
Hyles knowingly provided Carter with a firearm to kill Smith, which was sufficient
to convict Hyles for conspiracy to deliver a firearm to a felon.

                                          C.

      Hyles asserts the Government failed to prove that she possessed a firearm in
furtherance of the murder-for-hire conspiracy. See 18 U.S.C. § 924(c)(1)(A).

       “To secure a conviction under § 924(c)(1)(A), the government must present
evidence from which a reasonable juror could find a ‘nexus’ between the defendant’s
possession of the charged firearm and the . . . crime [of violence], such that this
possession had the effect of ‘furthering, advancing or helping forward’ the . . . crime
[of violence].” See United States v. Sanchez-Garcia, 461 F.3d 939, 946 (8th Cir.
2006), quoting United States v. Hamilton, 332 F.3d 1144, 1149-50 (8th Cir. 2003).




                                         -11-
       Possession of a firearm may be either actual or constructive. United States v.
Johnson, 474 F.3d 1044, 1048 (8th Cir. 2007). “Constructive possession of the
firearm is established where the suspect ‘has dominion over the premises where the
firearm is located, or control, ownership, or dominion over the firearm itself.’” United
States v. Smart, 501 F.3d 862, 865 (8th Cir. 2007), cert. denied, 128 S. Ct. 1258
(2008), quoting United States v. Sianis, 275 F.3d 731, 733 (8th Cir. 2002).
“Possession may be joint; it need not be exclusive.” Smart, 501 F.3d at 865.

       Viewing the evidence most favorably to the jury verdict, there was sufficient
evidence that Hyles possessed the firearm. Anderson testified he brought the firearm
to Hyles’s house and handed it to her. He told her to place it in the cabinet, which she
did. After Anderson left, Hyles told Carter the firearm was in the cabinet. Carter
retrieved it and left. This evidence supported actual possession by Hyles.

        Contrary to Hyles’s assertions, there was sufficient evidence that Hyles
possessed the firearm in furtherance of the murder-for-hire conspiracy. When Hyles
asked Anderson to borrow a firearm, she stated, “that’s fucked up that Coy had
testified against Tyrese” and “that she’s going to get somebody to take care of his
ass.” Additionally, she knowingly gave the firearm to Carter, who was hired (bailed
out of jail and given a car) to murder Smith. This is sufficient evidence for a
conviction under section 924(c). See Sanchez-Garcia, 461 F.3d at 946 (possession
must have the effect of furthering, advancing or helping forward the crime of
violence).

                                          IV.

      According to Hyles, a variance exists between the indictment, which alleges one
overall conspiracy, and the evidence at trial, which demonstrates two separate
conspiracies.



                                         -12-
       Because this issue was not raised with the district court, this court reviews for
plain error. See United States v. Olano, 507 U.S. 725, 731-32 (1993). “[B]efore an
appellate court can correct an error not raised at trial, there must be (1) error, (2) that
is plain, and (3) that affects substantial rights. If all three conditions are met, an
appellate court may then exercise its discretion to notice a forfeited error, but only if
(4) the error seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Pirani, 406 F.3d 543, 550 (8th Cir. 2005) (en banc).
The burden is on the defendant to prove plain error. Id.

       “A variance arises when the evidence presented proves facts that are ‘materially
different’ from those [alleged] in the indictment.” United States v. Whirlwind
Soldier, 499 F.3d 862, 870 (8th Cir. 2007), cert. denied, 128 S. Ct. 1286 (2008),
quoting United States v. Harris, 344 F.3d 803, 805 (8th Cir. 2003). The defendant’s
substantial rights are infringed when: “(1) the defendant could not reasonably have
anticipated from the indictment the evidence to be presented against him; (2) the
indictment is so vague that there is a possibility of subsequent prosecution for the
same offense; or (3) the defendant was prejudiced by a ‘spillover’ of evidence from
one conspiracy to another.” United States v. Barth, 424 F.3d 752, 759 (8th Cir.
2005), quoting United States v. Jones, 880 F.2d 55, 66 (8th Cir. 1989).

      Hyles appears to argue she was prejudiced by the spillover of evidence from
one conspiracy to another, insisting the first conspiracy included Tyrese, Carter,
Anderson, and herself, while the second conspiracy only included Tyrese, Cannon,
and herself. Hyles concludes there was no evidence to demonstrate her knowing
involvement in the second conspiracy, or that her actions were in furtherance of that
conspiracy. She claims that because the second conspiracy resulted in Smith’s death,
being not guilty of that conspiracy would significantly lower her sentence. See 18
U.S.C. § 1958(a) (requiring imprisonment of not more than 10 years if personal injury
or death does not result). Assuming without deciding that the facts here show two
conspiracies rather than one, the evidence clearly shows that Hyles participated in

                                           -13-
both conspiracies. See United States v. Pizano, 421 F.3d 707, 720 (8th Cir. 2005)
(“In a case where the evidence shows that the defendant was a member of each proven
conspiracy, the danger of prejudicial spillover ‘is minimal, if not non-existent.’”),
quoting United States v. Scott, 511 F.2d 15, 20 (8th Cir. 1975). Therefore, even if a
variance existed, Hyles’s substantial rights were not infringed.

                                          V.

      Hyles alleges she was denied the right to a fair trial because the Government
engaged in improper closing argument. Specifically, she claims the Government
improperly injected the contents of phone and in-person conversations between Hyles,
Tyrese, and Cannon, none of which were in evidence.

     Hyles also asserts the Government improperly vouched for its own witnesses.
The Government during rebuttal stated:

             You know, he talks about Anderson and Carter and about how
      their stories aren’t entirely consistent, but then on the other hand, he’s
      talking about how we put this whole story together. Well, we must not
      have done a very good job if we can’t get their stories consistent, right?
      Well, the reason their stories are inconsistent in some ways is because
      they are telling the truth . . . .”

The Government reiterated that Carter “told you the truth.”

       The district court has broad discretion in controlling closing arguments. United
States v. Degarmo, 450 F.3d 360, 365 (8th Cir.), cert. denied, 127 S. Ct. 516 (2006).
“To obtain a reversal for prosecutorial misconduct, the defendant must show that (1)
the prosecutor’s remarks were improper, and (2) such remarks prejudiced the
defendant’s rights in obtaining a fair trial.” Id. Because Hyles did not object, this
court will review for plain error. See United States v. Olano, 507 U.S. 725, 731-32


                                         -14-
(1993); United States v. Frokjer, 415 F.3d 865, 873 (8th Cir. 2005). “[I]f an arguably
improper statement made during closing argument is not objected to by defense
counsel, we will only reverse under exceptional circumstances.” United States v.
Mullins, 446 F.3d 750, 758 (8th Cir.), cert. denied, 127 S. Ct. 284 (2006).

       Here, there is no plain error. The phone conversation between Hyles, Tyrese,
and Cannon, took place the evening of Smith’s preliminary testimony. Hyles had
already bailed Carter out of jail, borrowed a gun from Anderson “to get somebody to
take care of [Coy’s] ass,” and given the gun to Carter. The in-person conversation
between these three occurred the night before Smith’s murder. Immediately before
this conversation, Hyles drove Cannon by Smith’s house. Additionally, Cannon had
already received the gun back from Anderson. Based on these facts and other facts
presented at trial, it is reasonable to infer that Hyles was “updating Cannon on where
we are here” and telling Tyrese, “Look who I have here, Cannon is in town.” See
Frokjer, 415 F.3d at 874 (“Prosecutors are entitled to argue reasonable inferences to
be drawn from the facts in evidence during closing arguments.”).

      Moreover, it was not improper during rebuttal for the Government to say its
witnesses were telling the truth. Hyles’s counsel during closing argued Carter’s
testimony was motivated by his desire to get released from jail early and that the
inconsistencies in his testimony was “because he is lying to us.” Hyles’s counsel also
argued that Anderson had similar motivations, implying he also lied. On plain error
review, the Government’s response to these attacks was not improper. See United
States v. Ziesman, 409 F.3d 941, 954 (8th Cir. 2005) (“In closing arguments, a
prosecutor is entitled to make a fair response and rebuttal when the defense attacks the
government’s case.”).




                                         -15-
                                         VI.

        Hyles maintains that because the jury was not asked to come to a unanimous
verdict, or make a determination, as to the factual findings supporting her 18 U.S.C.
§ 1958(a) conviction, her life sentence violated her Sixth Amendment right to a jury
trial and Apprendi v. New Jersey, 530 U.S. 466 (2000). In particular, Hyles insists the
jury did not make a specific finding that death resulted from the murder-for-hire
conspiracy.

       This court reviews de novo constitutional challenges to a sentence. United
States v. Bradford, 499 F.3d 910, 919 (8th Cir. 2007), cert. denied, 76 U.S.L.W. 3454
(U.S. Feb. 25, 2008) (No. 07-7829). In Apprendi, the Court ruled: “Other than the
fact of a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” Apprendi, 530 U.S. at 490; see also Blakely v. Washington, 542
U.S. 296, 301 (2004) and United States v. Booker, 543 U.S. 220, 244 (2005). Section
1958(a) provides that a life sentence may be imposed if death results from violation
of the statute. 18 U.S.C. § 1958(a).

       Here, the jury verdict did not violate Hyles’s Sixth Amendment right to a jury
trial. Jury Instructions 30 and 32 specified one element was that the death of Smith
resulted from the conspiracy to commit murder for hire (Count I), and the aiding and
abetting murder for hire (Count II). Jury Instruction 32, on Count II, expressly stated
that the Government had to prove all the elements of the offense beyond a reasonable
doubt. Jury Instruction 28 also specifically stated this with regard to Count I.
Therefore, for the jury to convict on Counts I and II, the jury necessarily had to find
that the death of Smith resulted. Because the jury returned guilty verdicts on both
counts, the district court properly imposed a life sentence. See id.




                                         -16-
                                        VII.

       Hyles claims the district court erroneously allowed the Government to introduce
two hearsay statements: (1) Leatherwood testified that Cannon called her on August
14 and told her that Hyles was picking him up in Memphis to bring him to
Caruthersville; and (2) Carter testified that Tyrese told him that “he would have did
it for me.”

       Hyles did not object to these statements at trial; this court reviews for plain
error. See United States v. Olano, 507 U.S. 725, 731-32 (1993); United States v.
Eagle, 515 F.3d 794, 802 (8th Cir. 2008).

       An out-of-court statement is not hearsay if it is offered against the defendant
and is a statement of the defendant’s co-conspirators made in furtherance of the
conspiracy. Fed. R. Evid. 801(d)(2)(E); United States v. McKay, 431 F.3d 1085,
1093 (8th Cir. 2005). Though this court interprets “‘in furtherance of the conspiracy’
broadly, ‘a statement that simply informs [the] listener of the declarant’s criminal
activities is not made in furtherance of the conspiracy.’” Id., quoting United States
v. Manfre, 368 F.3d 832, 838-39 (8th Cir. 2004). In order to admit the co-conspirator
statements, the government must establish by a preponderance of the evidence that
“(1) a conspiracy existed, (2) both the declarant and [Hyles] were members of it, and
(3) the declarant made the statement in the course and in furtherance of the
conspiracy.” See United States v. Mahasin, 362 F.3d 1071, 1084 (8th Cir. 2004).

       Here, there is no plain error in admitting the two statements. The government
established that a conspiracy existed, that Cannon, Carter, and Tyrese were
co-conspirators with Hyles in it, and that Cannon’s statement to Leatherwood was
made in the course and in furtherance of the conspiracy. See United States v. Jordan,
260 F.3d 930, 933 (8th Cir. 2001), citing United States v. Johnson, 925 F.2d 1115,
1117 (8th Cir. 1991) (statements identifying participants and discussing various roles

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admissible). Cannon’s statement is admissible also as a hearsay exception to show his
then existing state of mind. See Fed. R. Evid. 803(3) (“statement of declarant’s then
existing state of mind . . . (such as intent, plan, motive, design)”). This statement is
not excluded by the hearsay rule. Id. Moreover, Hyles cannot demonstrate prejudice
because her own witness testified she brought Cannon from Memphis. Hyles also
cannot show any prejudice in admitting Carter’s testimony. Hyles is not directly
implicated in the testimony, and she does not contest that there was a conspiracy
between Tyrese, Carter and herself, to kill Smith.

       Hyles also contends that the statements violated her rights under the
Confrontation Clause of the Sixth Amendment and Crawford v. Washington, 541 U.S.
36 (2004). “The Confrontation Clause bars the admission at trial of the testimonial
statements of a witness who is absent from trial, unless the witness is unavailable to
testify and the defendant had a prior opportunity to cross-examine him.” Eagle, 515
F.3d at 802, citing Crawford, 541 U.S. at 53-54. Here, the statements are non-
testimonial. See id. at 51 (“An accuser who makes a formal statement to government
officers bears testimony in a sense that a person who makes a casual remark to an
acquaintance does not.”). Neither Tyrese nor Cannon were making formal statements,
nor were their “statements elicited in response to government interrogation.” United
States v. Johnson, 495 F.3d 951, 976 (8th Cir. 2007), petition for cert. filed (U.S. Feb.
19, 2008) (No. 07-9456). In other words, they did not bear testimony. See id.
Therefore, Crawford is inapplicable.

                                         VIII.

      The judgment of the district court is affirmed.

                        ______________________________




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