                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                      UNITED STATES CO URT O F APPEALS
                                                                  October 26, 2007
                                                     Elisabeth A. Shumaker
                               TENTH CIRCUIT             Clerk of Court



 U N ITED STA TES O F A M ER ICA,

          Plaintiff-Appellee,
 v.                                                       No. 06-8078
 ROBERTO CORTEZ, SR.,                             (D.C. No. 01-CR-16-CAB)
                                                        (D. W yoming)
          Defendant-Appellant.




                                OR D ER AND JUDGM ENT *


Before BRISCO E, M cW ILLIAM S, and GORSUCH, Circuit Judges.


      Defendant Roberto Cortez, Sr. (Defendant), appeals his conviction on one

count of conspiracy to possess with intent to distribute, and to distribute,

methamphetamine and marijuana, in violation of 21 U.S.C. §§ 841(a)(1),

(b)(1)(A), and 846; two counts of use of a telephone to facilitate a drug

trafficking offense, in violation of 21 U.S.C. § 843(b); and one count of

possession of methamphetamine with intent to distribute, and aiding and abetting,



      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2.

Defendant argues that (1) the government committed prosecutorial misconduct

and violated his Sixth Amendment Confrontation Clause rights, Fed. R. Evid.

802, and his due process rights by questioning him at trial about incriminating

statements that his son made to law enforcement; (2) the government committed

prosecutorial misconduct and violated his due process rights by improperly

bolstering the testimony of the government’s witnesses; and (3) the district court

abused its discretion under Fed. R. Evid. 801(d)(2)(E) and violated his Sixth

Amendment Confrontation Clause rights by admitting statements made by his

alleged coconspirators. W e have jurisdiction under 28 U.S.C. § 1291 and affirm.

                                          I.

      On January 23, 2001, Defendant was indicted on one count of conspiracy to

possess with intent to distribute, and to distribute, methamphetamine and

marijuana; two counts of use of a telephone to facilitate a drug trafficking

offense; and one count of possession of methamphetamine with intent to

distribute, and aiding and abetting. Defendant was not arrested at that time, as he

could not be found. Three co-defendants were indicted on similar charges. One

of these co-defendants, R oberto Cortez, Jr., was Defendant’s son. The other two

co-defendants were Thomas Sanchez and Eladio Cortez-Chavez, Defendant’s

nephew. Cortez, Jr., and Cortez-Chavez pled guilty on June 1, 2001, and received

sentences of 168 months’ and 108 months’ imprisonment, respectively. Sanchez

                                          2
pled guilty on M ay 31, 2001, and received a sentence of 108 months’

imprisonment. In December 2004, the government placed Cortez, Jr., on escape

status after he failed to return to his prison facility from a furlough. On April 7,

2005, the government arrested Defendant after locating him in Denver, Colorado,

where he was using false identification and a fictitious name. Defendant pled not

guilty to the 2001 charges, and the court held a James hearing 1 to determine the

admissibility of various coconspirator statements at trial. As w ill be discussed in

greater detail when addressing the final issue, the district court concluded that the

statements of the coconspirators w ere admissible at trial.

      Sanchez and Cortez-Chavez, Defendant’s coconspirators, testified at

Defendant’s trial, as did Steve W illiams, a coconspirator w ho had been previously

charged. Each gave a history of their dealings w ith Defendant.

      Sanchez testified that he began selling drugs for Defendant in Casper,

W yoming, in or around 1999. Sanchez was the middleman in several one-pound

methamphetamine deliveries between Defendant, who was the source of the

drugs, and W illiams, a dealer. The three men lived in the same neighborhood in

Casper, and Sanchez served as a translator between Defendant, who spoke

Spanish, and W illiams, who spoke English. Initially, Defendant told Sanchez to

ask W illiams if he would be interested in distributing a pound of




      1
          See United States v. James, 590 F.2d 575, 582 (5th Cir. 1979).

                                           3
methamphetamine for D efendant. W illiams agreed, and Defendant, Cortez, Jr.,

and Cortez-Chavez delivered the drugs to Sanchez. Sanchez then delivered the

methamphetamine to W illiams and returned the drug proceeds to Defendant.

Defendant paid Sanchez several hundred dollars for serving as the middleman in

these drug transactions.

      A few weeks after the successful distribution of the pound of

methamphetamine, W illiams asked Sanchez if he could get more

methamphetamine. Sanchez spoke to Defendant, and once again they arranged

for Sanchez to deliver the drugs to W illiams and the drug proceeds to Defendant.

This pattern w as repeated every couple of weeks for about two months. After tw o

months, W illiams informed Sanchez that he was no longer interested in

purchasing methamphetamine, and Sanchez conveyed the message to Defendant.

      W illiams testified that at some point he began dealing directly with Cortez,

Jr., and Cortez-Chavez. He received one- to three-pound bricks of

methamphetamine from them and re-sold the methamphetamine to his customers.

W illiams was arrested in November 1999 after law enforcement officers searched

his house and found drugs and approximately $30,000 in cash.

      In the fall of 2000, Defendant again contacted Sanchez about selling drugs.

Sanchez agreed, but only wanted to sell marijuana. However, the first delivery of

drugs that Sanchez received contained ten pounds of marijuana and one pound of

methamphetamine. After a discussion with Defendant, Sanchez decided to keep

                                         4
both the marijuana and the methamphetamine, but he had difficulty selling the

methamphetamine because of its poor quality. Eventually, through a series of

phone calls, Defendant agreed to exchange the poor quality methamphetamine for

methamphetamine of better quality, and Cortez, Jr., delivered it. Sanchez

obtained a total of three pounds of methamphetamine and ten pounds of marijuana

from Defendant.

      During this time, Defendant regularly came to Sanchez’s house to collect

money for the drugs. Sometimes, Cortez, Jr., or Cortez-Chavez would stop by to

collect the drug proceeds. In December 2000, law enforcement officers executed

a search warrant at Sanchez’s house and seized both marijuana and

methamphetamine. The agents questioned Sanchez at his residence, and he

informed them that Cortez-Chavez was coming over to pick up drug proceeds.

W hen Cortez-Chavez arrived, Sanchez made up an excuse for not having the

money to pay him, and Sanchez asked Cortez-Chavez to have Defendant call him.

      About twenty minutes later, Defendant called Sanchez and discussed the

poor quality methamphetamine. The agents recorded this conversation in which

Sanchez told Defendant that he was no longer interested in selling drugs.

Defendant informed Sanchez that he w as in Los Angeles, but could get more

drugs if Sanchez wanted to sell more. A few days later, when Defendant called

again, his call was again recorded. During this conversation, Sanchez told

Defendant that he would accept more drugs to sell.

                                         5
      A few days later, Cortez, Jr., and Cortez-Chavez delivered a half-pound of

methamphetamine to Sanchez. Law enforcement officers recorded and observed

the transaction. About one week later, Defendant called Sanchez and asked for

money for the previously distributed methamphetamine. The next day, Sanchez

delivered $5,000 in pre-recorded government funds to Cortez, Jr. A few days

later, Cortez, Jr., delivered another pound of methamphetamine to Sanchez. Law

enforcement officers then arrested Cortez, Jr. and Cortez-Chavez. W hen he was

arrested, Cortez, Jr., w as in possession of the pre-recorded government funds.

      By the time Sanchez and Williams testified at Defendant’s trial, they had

already served their sentences. Cortez, Jr., was on escape status, and as a

consequence, was unavailable to testify.

      Defendant testified at his trial. On direct examination, he denied any

involvement with selling drugs and indicated that his son, Cortez, Jr., sold drugs.

On cross-examination, the prosecutor questioned Defendant about his denial and

the convenience of blaming his then-absent son for the drug distribution:

      Q: Now, with respect to your son, it is your testimony that this was
      all your son; is that correct?

      A: W ell, yes.

      Q: And your son is not here? He’s not available, is he?

      A: No.

      Q: Do you know why?



                                           6
      A: Yes, I do know why.

      Q: W hy?

      A: Because he escaped from prison. That’s what his mom said.

      Q: So it is pretty -

      A: The real thing here is that I don’t know how all that went down.

      Q: I understand. So it is pretty convenient, then, isn’t it, M r. Cortez,
      to— convenient to pinpoint your son as the person involved or
      responsible for the drugs when he is the only one that hasn’t
      appeared in court?

      A: W ell, yes.

ROA, Vol. 6, at 440-41. On re-direct, Defendant’s counsel asked:

      Q: Your son is not here because he’s not here. W as that your doing
      or your fault that he’s not here?

      A: The question again, please.

      Q: W ould you like your son to be here?

      A: W ell, to be honest with you, yes, that would really help us clear
      up a lot of things.

Id. at 452. On re-cross, the prosecutor then asked Defendant:

      Q: M r. Senior [sic], you indicate that if your son were here he would
      be able to clear this all up, is that what you say?

      A: Yes.

      Q: To your favor, correct?

      A: W ell, be it like it may be, but things would be cleared up.

      Q: In other words, he would say that you were not involved with

                                          7
       drugs?

       A: Y es.

       Q: And are you aware that your son gave a statement to law
       enforcement in which he said you distributed multiple pounds of
       methamphetamine?

Id. Defense counsel objected to this final question and stated that he had a Rule

802 motion to make. The district court sustained the objection before Defendant

answered. The prosecution responded to the objection by stating:

       Your Honor, if I may be heard on that issue. I think this witness has
       opened the door about the son implying to the jury that he would
       come in here and clear things up, when the fact of the matter is he’s
       given statements against his father implicating him in the case.

Id. at 453.

       Out of the presence of the jury, defense counsel moved for a mistrial. The

prosecution responded that Defendant opened the door to questioning concerning

Cortez, Jr.’s prior statement inculpating Defendant by indicating that his son

would exonerate him if he were present at trial to testify. The prosecution

asserted that Defendant’s testimony had the potential of misleading the jury

because Cortez, Jr., actually implicated his father in the drug conspiracy in prior

statements to the police. The court denied the motion for a mistrial after

determining that Defendant had opened the door to further questioning by the

prosecution. Defense counsel then requested a jury instruction stating that “any

intimation or suggestion of the statement of [Defendant’s] son is to be



                                          8
disregarded and not considered by you as evidence in any way and - - .” Id. at

462.

       The court agreed to provide a jury instruction on the issue at a later time.

The court provided the following instruction at the close of the case:

       The questions asked by a lawyer for either party to this case are not
       evidence. If a lawyer asks a question of a witness which contains an
       assertion of fact, therefore, you may not consider the assertion by the
       lawyer as any evidence of that fact. Only the answers are evidence.

       You are further instructed that Roberto Cortez, Jr., is unavailable as a
       witness in this matter; therefore, you should not and may not speculate
       about what his testimony might be. Any statements made by either attorney
       concerning what Roberto Cortez, Jr., may have said are not evidence and
       you may not use these statements for any purpose whatsoever in deciding
       the case of the Defendant.

Id., Vol. 1, Doc. 156 at 50. In a separate instruction, the court also instructed the

jury concerning questions by counsel: “Questions, objections, statements, and

arguments of counsel are not evidence in the case, unless made as an admission or

stipulation of fact.” Id. at 45.

       The jury convicted Defendant on all four counts and found, by special

verdict, that the conspiracy involved at least 500 grams of a mixture or a

substance containing a detectable amount of methamphetamine. The district court

sentenced Defendant to 195 months’ imprisonment on the conspiracy and

distribution counts, and forty-eight months’ imprisonment on the telephone

facilitation counts, to run concurrently, followed by five years of supervised

release.

                                           9
                                         II.

            Prosecutorial misconduct— questions regarding Cortez, Jr.

      W here “a defendant’s motion for a new trial or mistrial is based on alleged

prosecutorial misconduct during trial and the defendant objects

contemporaneously, this court reviews for an abuse of discretion.” United States

v. Green, 435 F.3d 1265, 1267-68 (10th Cir. 2006), cert. denied, 547 U.S. 1122

(2006). This court applies a two-part test to determine the merits of a claim of

prosecutorial misconduct. United States v. Apperson, 441 F.3d 1162, 1207 (10th

Cir. 2006), cert. denied, 127 S. Ct. 1003 (2007). “First, we decide whether the

conduct w as improper.” Id. (citations and internal quotation marks omitted).

“Second, we decide whether the conduct, if improper, warrants reversal.” Id.

(citations and internal quotation marks omitted).

      W e are inclined to agree with the government that Defendant opened the

door to the prosecutor’s line of questioning, and we have serious doubts that the

prosecutor’s conduct was improper. H owever, even assuming, arguendo, that the

prosecutor improperly asked Defendant about the incriminating statements from

Chavez, Jr., to law enforcement officers, the prosecutor’s conduct “was not

‘flagrant enough to influence the jury to convict on grounds other than the

evidence presented.’” United States v. LaV allee, 439 F.3d 670, 696 (10th Cir.

2006) (quoting United States v. M eienberg, 263 F.3d 1177, 1180 (10th Cir.

2001)). The second prong of the test for analyzing a claim of prosecutorial

                                         10
misconduct “focuses on ‘whether the prosecutor’s conduct affected the fairness of

the trial.’” Apperson, 441 F.3d at 1207 (quoting United States v. Kravchuk, 335

F.3d 1147, 1153 (10th Cir. 2003)). “Prosecutorial misconduct is considered

harmless ‘unless there is reason to believe it influenced the jury’s verdict.’”

Green, 435 F.3d at 1268 (quoting United States v. Gabaldon, 91 F.3d 91, 94 (10th

Cir. 1996)). “‘In assessing whether the misconduct [influenced the jury’s verdict]

we consider the trial as a whole, including the curative acts of the district court,

the extent of the misconduct, and the role of the misconduct within the case.’” Id.

(quoting Gabaldon, 91 F.3d at 94) (alteration in original).

      In Defendant’s case, the prosecutor’s alleged misconduct was not extensive.

It was an isolated question, to which the court sustained defense counsel’s

objection, and to which Defendant never supplied an answer. Defendant did not

testify further, and the prosecutor did not ask any additional questions on the

subject. “W e ordinarily will not reverse if the misconduct was merely ‘singular

and isolated.’” United States v. Ivy, 83 F.3d 1266, 1288 (10th Cir. 1996) (quoting

United States v. Pena, 930 F.2d 1486, 1491 (10th Cir. 1991)).

      In addition, the district court responded with appropriate curative

instructions. The court instructed the jury that questions asked by the counsel for

either party were not evidence and that because of Cortez, Jr.’s unavailability,

“[a]ny statements made by either attorney concerning what Roberto Cortez, Jr.,

may have said are not evidence and you may not use these statements for any

                                          11
purpose whatsoever in deciding the case of the defendant.” ROA, Vol. 1, Doc.

156 at 50. The court also instructed the jury as follow s:

      W hen the Court has sustained an objection to a question addressed to
      a witness, the jury must disregard the question entirely, and may
      draw no inference from the wording of it or speculate as to what the
      witness would have said if he had been permitted to answer any
      question.

Id., Vol. 1, Doc. 156 at 52. “Jurors are presumed to follow the judge’s

instructions.” U nited States v. Templeman, 481 F.3d 1263, 1266 (10th Cir.

2007); see also United States v. Gordon, 173 F.3d 761, 769 (10th Cir. 1999)

(“Absent evidence to the contrary, we assume the jury follows a curative

instruction.”). The district court’s curative instructions dispelled any prejudice

that might have resulted from the alleged prosecutorial misconduct.

      M oreover, the alleged misconduct played only a minor role in the case as a

whole. “A prosecutor’s improper statement to the jury is harmless unless there is

reason to believe that it influenced the jury’s verdict.” United States v. M aynard,

236 F.3d 601, 606 (10th Cir. 2000) (quoting Ivy, 83 F.3d at 1288). “Thus,

‘[a]bsent a showing of prejudice to the defendant, prosecutorial misconduct alone

will not support a finding that the trial court abused its discretion.’” Id. (quoting

United States v. Novak, 918 F.2d 107, 110 (10th Cir. 1990)) (alteration in

original). The prosecution’s case against Defendant was quite strong. Three of

Defendant’s coconspirators testified against Defendant, his voice was recorded

discussing drug trafficking during the course of the conspiracy, and the

                                          12
government seized large quantities marijuana, methamphetamine, and cash from

the drug distribution ring.

      Defendant relies upon M aynard as support for his prosecutorial misconduct

claim, but such reliance is misplaced. In M aynard, 236 F.3d at 604-06, this court

determined that the government committed prosecutorial misconduct in asking a

defendant about the whereabouts of a man that the defendant had previously

threatened to kill. The government knew that the man w as deceased, and the

defendant responded, in front of the jury, that the m an was dead. Id. This court

agreed with the defendant that the prosecutor’s question was improper, but

determined that reversal of the defendant’s conviction was not warranted because

“there was an overw helming body of evidence developed against the defendant,”

and “the trial judge promptly gave an extremely strong curative instruction to the

jury immediately after the bench conference following [the] testimony.” Id. at

606-07. W hile the curative instruction specifically addressing references to

Cortez, Jr., was not given until the close of evidence, the government’s alleged

misconduct in this case was far less harmful than the misconduct at issue in

M aynard.

      W hen the evidence presented at Defendant’s trial is viewed in its entirety,

we cannot conclude that the prosecutor’s alleged misconduct influenced the jury’s

verdict. In addition, the district court did not abuse its discretion in denying

Defendant’s motion for a mistrial.

                                          13
            Prosecutorial misconduct— alleged bolstering of witnesses

      Defendant next argues that the government improperly bolstered the

testimony of the government’s w itnesses by introducing the plea agreements

signed by the co-defendants who testified at Defendant’s trial.

      Defendant’s argument lacks merit. “It is a due process error for a

prosecutor to indicate ‘a personal belief in the witness’ credibility, either through

explicit personal assurances of the witness’ veracity or by implicitly indicating

that information not yet presented to the jury supports the witness’ testimony.’”

United States v. Jones, 468 F.3d 704, 707 (10th Cir. 2006) (quoting United States

v. Bowie, 892 F.2d 1494, 1498 (10th Cir. 1990)). However, “[i]t is well

established that prosecutors may admit plea agreements, even those which include

truthfulness provisions, without violating the dictates against vouching.” Id.

“‘U se of the ‘truthfulness’ portions of these agreements becomes impermissible

vouching only when the prosecutors explicitly or implicitly indicate that they can

monitor and accurately verify the truthfulness of the witness’ testimony.’” Id.

(quoting Bowie, 892 at 1498).

      Here, the prosecutor did not improperly vouch for Sanchez, W illiams, or

Cortez-Chavez. The prosecutor questioned Sanchez about certain aspects of his

plea agreement. Sanchez testified that he pled guilty to a charge of drug

conspiracy and that, as part of his plea agreement, he agreed to cooperate with the

United States and testify truthfully if called as a witness. Sanchez commented

                                          14
that his sole obligation at trial was to tell the truth and that if he lied, he was

aware that he could be subject to perjury charges. Sanchez also testified that his

sentence was reduced in exchange for cooperating with the government and that

the government had promised to recommend a reduction in his supervised release

if he testified truthfully. The court received Sanchez’s plea agreement into

evidence. The prosecutor’s questioning of W illiams and Cortez-Chavez regarding

each of their plea agreements closely resembled the questioning of Sanchez. A s

regards the prosecutor’s questioning of witnesses, our facts mirror those in United

States v. M agallanez, 408 F.3d 672, 680 (10th Cir. 2005), where we held:

       the record shows that the prosecutor’s references to credibility were
       limited to asking each witness if his or her plea agreement contained
       an obligation to testify truthfully. The prosecutor did no more than
       reveal the language of the plea agreement and the obligations w ithin
       those agreements to testify truthfully. Such actions are not
       prosecutorial misconduct.

Likewise, by questioning its witnesses regarding the terms of their plea

agreements, the prosecution in the present case did not improperly bolster the

witnesses’ testimony. 2



       2
        The government also correctly argues that this court has “regularly
approved the introduction of evidence of a coconspirator’s guilty plea to assess
the coconspirator’s credibility and show an acknowledgment by the witness of
participation in the offense,” so long as the district court instructs the jury that “a
guilty plea by a coconspirator may not be used as substantive evidence of a
defendant’s guilt.” United States v. M assey, 48 F.3d 1560, 1569 (10th Cir. 1995).
In the present case, the court instructed the jury that “[t]he fact that an
accomplice has entered a guilty plea to the offense charged is not evidence of the
                                                                          (continued...)

                                            15
                    Admissibility of coconspirator’s statem ents

      Finally, Defendant argues that a January 2001 statement from Cortez, Jr., to

Sanchez about Defendant being the source of the drugs was not made during the

conspiracy or in furtherance of the conspiracy because, at the time the statement

was made, Sanchez was cooperating with the government. In the alternative, he

argues that even if the district court properly admitted the statement under Fed. R.

Evid. 801(d)(2)(E), 3 the statement was testimonial and its admission violated the

Confrontation Clause of the Sixth Amendment.

      W e review the district court’s decision to admit statements of

coconspirators for an abuse of discretion. United States v. Eads, 191 F.3d 1206,

1210 (10th Cir. 1999). Under Rule 801(d)(2)(E), a statement is not hearsay “if

the court finds: ‘1) a conspiracy existed; 2) both the declarant and the defendant

against whom the declaration is offered were members of the conspiracy; and 3)

the statement was made in the course of and in furtherance of the conspiracy.’”

Eads, 191 F.3d at 1210 (quoting United States v. Caro, 965 F.2d 1548, 1557 (10th

Cir. 1992)). W e review a district court’s finding that a statement was in

furtherance of a conspiracy for clear error. United States v. Gutierrez, 48 F.3d



      2
        (...continued)
guilt of any other person.” ROA, Vol. 1, Doc. 156 at 59.
      3
        Rule 801(d)(2)(E) provides that “[a] statement is not hearsay if . . . [t]he
statement is offered against a party and is . . . a statement by a coconspirator of a
party during the course and in furtherance of the conspiracy.”

                                         16
1134, 1137 (10th Cir. 1995). “In making its preliminary factual determination as

to whether a conspiracy exists, the court may consider the hearsay statement

sought to be admitted, along w ith the independent evidence tending to establish

the conspiracy.” U nited States v. Lopez-Gutierrez, 83 F.3d 1235, 1242 (10th Cir.

1996).

         Prior to Defendant’s trial, the district court held a James hearing to

determine the admissibility of coconspirator statements in accordance with Rule

801(d)(2)(E). 4 At this hearing, Defendant argued that many of the statements

were inadmissible because the conspiracy ended when Sanchez began to

cooperate with the police in December 2000 and that statements made by Cortez,

Jr., and Cortez-Chavez to Sanchez after this date were not in furtherance of the

conspiracy. The court found, by a preponderance of the evidence, that a

conspiracy existed, and that Defendant was a member of this conspiracy, as w ere

Sanchez, Cortez-Chavez, W illiams, and Cortez, Jr. The court determined that

Defendant, Cortez, Jr., Cortez-Chavez, W illiams, and Sanchez made a number of

statements in furtherance of the conspiracy in December 2000 and January 2001,

discussing the delivery and sale of drugs and their distribution, and the court




         4
        “Under Tenth Circuit law, a district court can only admit coconspirator
statements if it holds a James hearing or conditions admission on forthcoming
proof of a ‘predicate conspiracy through trial testimony or other evidence.’”
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)).

                                            17
determined that the statements would be admissible at trial.

      At trial, Sanchez testified that sometime during the week of January 8,

2001, Cortez, Jr., told him that Defendant had supplied the half-pound of

methamphetamine delivered to Sanchez the week before. Defendant objected to

this statement at trial and asserts on appeal that because this statement was

improperly admitted, he is entitled to a reversal of his conviction.

      W e agree with the government that the district court properly admitted the

statement. Rule 801(d)(2)(E) “does not embody a requirement that the statement

in question ‘be made by a coconspirator to a coconspirator.’” United States v.

W illiam son, 53 F.3d 1500, 1519 (10th Cir. 1995) (citations omitted). As this

court held in W illiamson,

      the fact that one party to a conversation is a government agent or
      informer does not of itself preclude the admission of statements by
      the other party— if he or she is a member of a conspiracy— under
      Rule 801(d)(2)(E). Stated alternatively, in deciding whether
      statements are admissible under Rule 801(d)(2)(E), the appropriate
      focus is on whether the statements were ‘made by’ a member of the
      conspiracy, and not on whether the statements were ‘made to’ a
      member of the conspiracy.

Id. (citation and some internal quotation marks omitted). Cortez, Jr., who was a

member of the conspiracy, made the statement at issue, and the district court

admitted the statement against Defendant, who was also a member of the

conspiracy. “Rule 801(d)(2)(E) only requires that the declarant . . . and the

defendant (i.e., the coconspirator on trial against whom the statement is being



                                          18
offered . . .) be members of the conspiracy.” Id.

      M oreover, Cortez, Jr., made the statement in furtherance of the conspiracy.

“Statements by a conspirator are in furtherance of the conspiracy when they are

‘intended to promote the conspiratorial objectives.’” Tow nley, 472 F.3d at 1273

(quoting United States v. Reyes, 798 F.2d 380, 384 (10th Cir. 1986)). These

include “[s]tatements of a coconspirator identifying a fellow coconspirator,” id.

(quoting United States v. Gomez, 810 F.2d 947, 953 (10th Cir. 1987)) (alteration

in original), such as the statement at issue here. In addition, the record shows that

Cortez, Jr., made this statement intending to promote the conspiratorial objective

of distributing and collecting proceeds from the sale of illegal drugs. See Reyes,

798 F.2d at 383-84 (holding that, where a coconspirator told a government

informant that the defendant was “sponsoring the purchase and distribution of

cocaine,” the coconspirator made the statement in furtherance of the conspiracy).

Cortez, Jr.’s statement to Sanchez, identifying Defendant as the source of the

methamphetamine, was in furtherance of the conspiracy, and the district court did

not abuse its discretion in admitting the statement under Rule 801(d)(2)(E).

      Defendant also argues that, even if the district court properly admitted

Cortez, Jr.’s, statement under Rule 801(d)(2)(E), the statement violated

Defendant’s Confrontation Clause rights under the Sixth Amendment. Under the

Supreme Court’s “testimonial” approach to the Confrontation Clause, first

announced in Crawford v. W ashington, 541 U.S. 36 (2004), the Confrontation

                                          19
Clause “bars testimonial out-of-court statements unless the witness is unavailable

and the defendant had a prior opportunity to cross-examine.” United States v.

Ramirez, 479 F.3d 1229, 1249 (10th Cir. 2007) (citing Crawford, 541 U.S. at 68).

“A lthough the Supreme Court declined to precisely define ‘testimonial,’ the Court

explicitly noted that, historically, ‘statements in furtherance of a conspiracy’

present an ‘example’ of ‘statements that by their nature [a]re not testimonial.’”

Id. (quoting Crawford, 541 U.S. at 56, 68). In addition, as we explained in

Ramirez, “the Court in Crawford cited Bourjaily with approval as one of several

recent cases that ‘hew closely to the traditional line.’” Id. (quoting Crawford, 541

U.S. at 58). In Bourjaily v. United States, 483 U.S. 171, 183-84 (1987), the C ourt

held that “the Confrontation Clause does not require a court to embark on an

independent inquiry into the reliability of statements that satisfy the requirements

of Rule 801(d)(2)(E).” W e conclude that Cortez, Jr.’s statement to Sanchez,

identifying Defendant as the source of the methamphetamine, was not testimonial,

and its admission did not violate the Confrontation Clause.

      A FFIR ME D.

                                               Entered for the Court


                                               M ary Beck Briscoe
                                               Circuit Judge




                                          20
