                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
      ___________

      No. 06-2886
      ___________

United States of America,               *
                                        *
            Plaintiff-Appellee,         *
                                        *
      v.                                *
                                        *
David Ruiz Singh,                       *
                                        *
            Defendant-Appellant.        *

      ___________
                                            Appeals from the United States
      No. 06-3056                           District Court for the Southern
      ___________                           District of Iowa.

United States of America,             *
                                      *
            Plaintiff-Appellee,       *
                                      *
      v.                              *
                                      *
Martin Ruiz Singh,                    *
                                      *
            Defendant-Appellant.      *
                                 ___________

                             Submitted: April 10, 2007
                                Filed: July 13, 2007
                                 ___________

Before MELLOY, BOWMAN, and GRUENDER, Circuit Judges.
                         ___________
MELLOY, Circuit Judge.

       Defendants David Ruiz Singh (“David”) and Martin Ruiz Singh (“Martin”)
were convicted by a jury of distributing methamphetamine in violation of 21 U.S.C.
§ 841(a)(1), and conspiring to distribute in excess of 500 grams of methamphetamine
in violation of 21 U.S.C. § 846. Martin was also convicted of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Both defendants argue
that the district court permitted the introduction of inadmissible hearsay testimony
over their objections and in violation of the Confrontation Clause of the Sixth
Amendment. They also argue that the evidence was insufficient to support their
convictions. Because we find that the admission of hearsay testimony was harmless
and not in violation of the Confrontation Clause, and because there was sufficient
evidence to support the convictions, we affirm.

      I. Background

        Martin and David are brothers who were involved in the distribution of
methamphetamine in and around Marshalltown, Iowa, from 1998 through 2004.
Martin worked at a meat packing plant where he conducted a part of his drug trade
and cultivated contacts for buying and selling pound quantities of methamphetamine.
David served the role of enforcer and money collector for the conspiracy. David also
sold smaller, user-quantities of methamphetamine. The brothers were convicted
following a joint trial in which numerous co-conspirators and several police officers
testified. We describe the evidence and testimony introduced against the two men,
and objections to the evidence, as relevant to the present appeal.

      The first prosecution witness was Todd Parrish, a deputy in the Marshall
County Sheriff’s Office. Deputy Parrish testified that he was involved in the
preparation, surveillance, and follow-up activities surrounding a number of controlled
buys, controlled deliveries, and contacts between Martin and a cooperating co-


                                         -2-
conspirator, Mark Carnahan. Deputy Parrish did not physically observe the
interactions between Carnahan and Martin, but he listened to and/or recorded their
conversations from a nearby location. Through his testimony, Deputy Parrish
provided context that helped to corroborate subsequent testimony by Carnahan
regarding the encounters. The controlled encounters took place at David’s residence
and at the meat packing plant.

      The next witness, Detective Burt Tecklenburg of the Marshall County Sheriff’s
Office, was the lead detective on the case. Det. Tecklenburg testified three times
during the trial: he testified before and after cooperating co-conspirator Carnahan, and
he testified as a rebuttal witness after the defense rested its case. In his initial
testimony, Det. Tecklenburg explained his background and introduced a series of
recordings from controlled transactions and encounters involving Carnahan and
Martin.

       Carnahan was the next government witness and the central witness to the
government’s case. Carnahan testified that he met Martin at the meat packing plant
where Martin was a supervisor. Carnahan learned that Martin was selling
methamphetamine, and Carnahan soon began receiving methamphetamine from
Martin on credit. Carnahan sold between seven and ten pounds of methamphetamine
for Martin between 1998 and 1999 or 2000. Martin stopped selling to Carnahan at
that time because Carnahan fell behind on payments to Martin. In 2002, after a
replacement seller for Martin lost his job at the meat packing plant, Martin returned
to using Carnahan to sell methamphetamine. In the 2002-2003 timeframe, Carnahan
sold an additional five to seven pounds of methamphetamine for Martin.

       In addition, Carnahan testified that on at least two occasions, he arranged with
Martin to obtain ounce quantities of methamphetamine from David at David’s
residence and, in fact, met with and received the methamphetamine from David. In
addition, on at least one occasion, David came to Carnahan’s home to demand the

                                          -3-
payment of $900 that Carnahan owed to Martin. David pushed Carnahan down a
hallway and told Carnahan to come up with the $900 or he would take Carnahan’s car.
Also, over the objection of defense counsel, Carnahan testified that Martin told him
David was the money collector or “muscle” for the brothers’ drug-dealing activity.

      Carnahan then explained his involvement in several controlled phone calls,
money deliveries, and drug transactions that Deputy Parrish and/or Det. Tecklenburg
had described. Carnahan described a first controlled purchase in which he called
Martin to arrange a buy, Martin instructed him to come to David’s residence, and
Carnahan went to David’s residence. At David’s residence, Martin gave Carnahan
two ounces of methamphetamine for $1800. Carnahan testified that David was
present for the transaction and that David told Carnahan to “stay a little bit longer
because a white person coming to a Mexican’s house, that doesn’t look good.”

       Carnahan next described a controlled delivery of $900 to David to pay the debt
to Martin, as referenced above. Carnahan received $900 from Det. Tecklenburg and
paid the money to David at David’s residence. Carnahan testified that David told him
to stop delivering drugs to people on credit and to start demanding cash at the time of
delivery to avoid falling behind on his own payments.

      Carnahan also testified about additional controlled encounters with Martin and
David at David’s residence. In one instance, Carnahan again purchased two ounces
of methamphetamine for $1800 and sought to introduce an undercover agent to
Martin. Martin refused to permit Carnahan to bring in the new person on that
occasion. David was present during that transaction but did not actively participate.
On another occasion, Carnahan was to receive methamphetamine from Martin at the
meat packing plant, but Martin pre-empted the workplace delivery by arriving
unannounced at Carnahan’s apartment and delivering the drugs. The final controlled
transaction involving Carnahan was a purchase of one ounce of methamphetamine
from Martin in the employees’ locker room at the meat packing plant.

                                         -4-
       Officers had made audio tapes of the controlled transactions, and the tapes,
where audible, corroborated Carnahan’s descriptions of the encounters. The tapes
were played in court, and Carnahan identified David and Martin’s voices on the
recording from one of the controlled transactions. Carnahan then identified Martin’s
voice on tapes from three different transactions. In order to explain comments on one
of the tapes regarding transactions that preceded Carnahan’s cooperation with law
enforcement officials, Carnahan testified that he had been involved in pound-quantity
methamphetamine transactions with Martin.

       Regarding credibility issues, Carnahan stated that he had been convicted of
drug-related state felonies and that, at the time he commenced his cooperation with
Det. Tecklenburg, he faced the possibility of federal charges that would have carried
a twenty-year mandatory minimum sentence and possible life imprisonment. He
admitted that he used methamphetamine while assisting Det. Tecklenburg. He also
stated that he initially cooperated with Det. Tecklenburg for money rather than for
assistance in avoiding prosecution, but he later cooperated to avoid prosecution.

       Det. Tecklenburg then returned to the stand and testified as to his own role in
the investigation. He provided context for much of Carnahan’s testimony. Over
objections, Det. Tecklenburg testified regarding out-of-court statements Carnahan had
made in which Carnahan described David’s statements implicating Martin in the
conspiracy and in which Carnahan described the encounter with David involving
intimidation related to the $900 debt to Martin. This testimony from Det. Tecklenburg
mirrored the testimony that Carnahan himself provided.

      Diane Pieters testified next. Pieters was a methamphetamine user who obtained
user-quantities of methamphetamine directly from David and from David through
other people on approximately forty occasions. At one point in her testimony, she
stated that another methamphetamine user, Henry Segovia, obtained
methamphetamine for her from David. Defense counsel objected, and the district

                                         -5-
court overruled the objection based on the district court’s belief that Pieters had said
Segovia obtained the methamphetamine for David. Another methamphetamine user,
Christine Torres, testified that she purchased user quantities of methamphetamine
from David on over twenty occasions.

        In addition, co-conspirators Jose Luis Delgado Benitez and Esequiel Gallardo
testified. Benitez testified that he met Martin when he and Martin worked together at
the meat packing plant. Benitez purchased pound quantities of methamphetamine
from Martin and, over objection, said that Martin described having a brother from
California who was in Marshalltown and who collected a debt for him. Gallardo also
met Martin when working at the meat packing plant. Gallardo sold approximately
twenty-five pounds of marijuana to Martin and approximately eight pounds of
methamphetamine. Gallardo testified over objection that Martin told him to deal with
David if he ever needed anything or needed to drop anything off. Gallardo did not
state that he ever actually bought methamphetamine from, or sold methamphetamine
to, David.

      Additional officers testified as to their roles in the preparation and execution of
the controlled transactions and the execution of search warrants. At Martin’s
residence, officers found a digital scale in the kitchen and $472 in cash on Martin’s
person. One of the bills contained a white powdery substance consistent with
methamphetamine.

       Finally, a Marshalltown police officer, Todd Tuttle, described a traffic stop
involving David that took place during the window of time that Carnahan was
cooperating with investigators. Officer Tuttle saw David driving a vehicle with overly
tinted windows, recognized David, and knew that David was driving in violation of
a suspended license. Officer Tuttle activated his lights, and David failed to stop.
Officer Tuttle then activated his siren and David stopped. When Officer Tuttle exited
his car to approach David’s vehicle, David drove away. Officer Tuttle returned to his

                                          -6-
car, pursued David, and David stopped his vehicle again. Officer Tuttle again
approached David’s vehicle and ordered David to exit the vehicle. David then
attempted to drive away and Officer Tuttle, who was hanging onto David’s door, was
dragged a short distance. David then exited his vehicle and refused to obey Officer
Tuttle’s commands. Officer Tuttle used mace on David, but David remained
uncooperative and physically resisted Officer Tuttle. Ultimately, Officer Tuttle
discharged his mace at David eight times and took him into custody. A search of
David’s vehicle revealed 2.2 grams of methamphetamine in the glove box.

      II. Discussion

             A. Confrontation Clause Challenges

       Martin and David argue that it was error to admit testimony from Carnahan,
Gallardo, and Delgado-Benitez regarding incriminating statements that David made
about Martin and Martin made about David. They characterize the testimony from
these witnesses as describing out-of-court statements by non-testifying co-defendants
that should have been excluded under Bruton v. United States, 391 U.S. 123, 137
(1968), and that were admitted in violation of each defendant’s right to cross-examine
witnesses as guaranteed by the Confrontation Clause of the Sixth Amendment. The
district court conditionally admitted the challenged testimony from these witnesses’
regarding Martin’s and David’s statements under Federal Rule of Evidence
801(d)(2)(E) as statements by co-conspirators made in the course of, and in
furtherance of, the conspiracy. In accordance with the procedure set forth in United
States v. Bell, 573 F.2d 1040, 1044 (8th Cir. 1978), the district court subsequently
determined that the government established the existence of a conspiracy by a
preponderance of independent evidence. Based on this determination, the district
court allowed the challenged testimony to stand.




                                         -7-
       Bruton held generally that the admission of an incriminating statement by non-
testifying co-defendant at a joint trial violates the defendant’s rights under the
Confrontation Clause. Bruton, 391 U.S. at 137. Bruton, however, does not preclude
the admission of otherwise admissible statements by a co-conspirator under Rule
801(d)(2)(E). See United States v. Mickelson, 378 F.3d 810, 819 (8th Cir. 2004)
(“However, when the statements are those of a co-conspirator and are admissible
under Federal Rule of Evidence 801(d)(2)(E), the Sixth Amendment and Bruton are
not implicated.”). Further, our court has held that co-conspirators’ statements made
in furtherance of a conspiracy and admitted under Rule 801(d)(2)(E) are generally
non-testimonial and, therefore, do not violate the Confrontation Clause as interpreted
by the Supreme Court. See Crawford v. Washington, 541 U.S. 36, 51-54 (2004)
(providing examples of statements that are testimonial in nature); see also United
States v. Lee, 374 F.3d 637, 644 (8th Cir. 2004) (applying Crawford and stating, “In
contrast to these examples, casual statements to an acquaintance are not testimonial.
Nor are statements to a coconspirator or business records testimonial.”) (internal
citation omitted). In the circumstances of the present case, we believe that the district
court properly admitted the challenged testimony under Rule 801(d)(2)(E) and that the
co-defendants’ out-of-courts statements were not testimonial. Accordingly, there was
no violation of the Confrontation Clause and no error in the admission of the
challenged testimony.

             B. Other Hearsay Objections

      Martin and David challenge as inadmissible hearsay the testimony from Det.
Tecklenburg in which Det. Tecklenburg relayed Carnahan’s prior, out-of-court
description of interactions with David. They also challenge the admission of the
statement by Pieters that Henry Segovia obtained methamphetamine “from” David.
We believe that these challenges have merit.




                                          -8-
       Carnahan’s statement to Det. Tecklenburg was an out-of-court statement
“offered in evidence to prove the truth of the matter asserted,” i.e. that David was
involved in the conspiracy and served in the role of money collector or “muscle” for
Martin. Fed. R Evid. 801(c). David made a timely objection to the admission of this
aspect of Det. Tecklenburg’s testimony, and we find no applicable exclusion to the
hearsay definition nor exception to the general rule of inadmissibility that would
permit Det. Tecklenburg’s testimony. Carnahan was a cooperating informant and his
statement to Det. Tecklenburg was made in that capacity, not in the capacity of co-
conspirator and not in furtherance of the conspiracy. See United States v. Alonzo, 991
F.2d 1422, 1425-26 (8th Cir. 1993) (holding that statements by a cooperating co-
conspirator to known authorities, made after the commencement of cooperation, are
not admissible under Rule 801(d)(2)(E) because such statements are not made “in
furtherance of the conspiracy”).

        Also, it is not clear that Pieters’s testimony regarding an incriminating, out-of-
court statement by Henry Segovia identifying David as a supplier of
methamphetamine was admissible. While Segovia may have been a co-conspirator
within the meaning of Rule 801(d)(2)(E), Pieters’s testimony relaying Segovia’s
statement about David was not admitted under this rule. The district court overruled
defense counsel’s objection to Pieters’s testimony based on the understanding that
Pieters had said Segovia obtained methamphetamine for David. The transcript of the
trial indicates that Pieters actually testified that Segovia claimed to have obtained the
methamphetamine from David. This distinction, while subtle, arguably changes the
impact of the statement from one suggesting David was a user of methamphetamine
to one identifying David as a supplier. It is not entirely clear, however, that this
distinction impacts admissibility. Regardless, we need not dwell on this point further;
if there was error in the admission of Pieters’s testimony, any such error was harmless.

       Error in the admission of evidence only provides a basis for relief if the error
affected the defendants’ “substantial rights.” Fed. R. Crim. P. 52(a); see United States

                                           -9-
v. Sanchez-Godinez, 444 F.3d 957, 961 (8th Cir. 2006) (“An evidentiary error is
harmless if the substantial rights of the defendant were unaffected and the error did
not influence or had only a slight influence on the verdict.”) (citation and internal
quotation marks omitted). Det. Tecklenburg’s hearsay testimony was arguably
harmful because it buttressed Carnahan’s credibility by showing that Carnahan had
made an earlier, consistent out-of-court statement to Det. Tecklenburg that was
identical or similar to his trial testimony. David accurately characterizes Carnahan as
an important government witness at the center of the case and argues that the improper
buttressing of Carnahan’s credibility must have impacted the jury’s deliberations.

       Although David presents a logical chain of reasoning that sets forth a cogent
theory to explain how the hearsay could have been prejudicial, we must view the
evidentiary error in light of the record as a whole. Here, a great deal of properly
admitted testimony and evidence buttressed Carnahan’s credibility and provided
context for the controlled transactions. The audio tapes played in court and the
testimony of other conspirators strongly corroborated Carnahan’s testimony. Properly
admitted testimony from officers provided context and explained the controlled
transactions. Against this backdrop, we do not find that the incremental buttressing
of Carnahan’s credibility by the admission of hearsay through Det. Tecklenburg
affected David’s “substantial rights.” Fed. R. Crim. Pro. 52(a). Also, given the ample
evidence demonstrating David’s involvement in the conspiracy and detailing his
repeated provision of user-quantities of methamphetamine to Pieters and Torres, the
challenged testimony describing a single incident involving Henry Segovia had, at
most, a de minimis impact.

             C. Sufficiency of the Evidence

       In addition, we find the evidence and testimony, as set forth above, sufficient
to support the defendants’ convictions. Both defendants argue the evidence was
insufficient to establish beyond a reasonable doubt that the amount of

                                         -10-
methamphetamine involved in the conspiracy and attributable to each defendant was
greater than 500 grams. Although the controlled transactions involving Carnahan did
not involve 500 or more grams of methamphetamine, multiple co-conspirators—
Carnahan, Benitez, and Gallardo—testified as to their own personal involvement in
the conspiracy. Each of these witnesses testified as to transactions with Martin
involving methamphetamine in amounts in excess of 500 grams. The evidence as
described herein is sufficient to support the jury’s determination that David, as well
as Martin, participated in the conspiracy to distribute in excess of 500 grams of
methamphetamine. To the extent the defendants base their challenges on the jury’s
credibility determinations, such determinations are “virtually unreviewable” on
appeal, and we will not disturb the jury’s assessment in this case. United States v.
Davis, 471 F.3d 938, 948 (8th Cir. 2006) (quotation marks omitted).

      The judgments of the district court are affirmed.
                     ______________________________




                                        -11-
