                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   _____________

                                   No. 97-3130SD
                                   _____________

United States of America,            *
                                     *
            Appellee,                *
                                     * On Appeal from the United
       v.                            * States District Court
                                     * for the District of
Jose Jesus Madrigal, also known      * South Dakota.
as Fat Boy,                          *
                                     *
            Appellant.               *
                                ___________

                              Submitted: May 11, 1998
                                  Filed: August 5, 1998
                                   ___________

Before RICHARD S. ARNOLD, JOHN R. GIBSON, and FAGG, Circuit Judges.
                           ___________

RICHARD S. ARNOLD, Circuit Judge.

       After a jury trial, Jose Jesus Madrigal was convicted of conspiracy to possess
and distribute controlled substances, in violation of 21 U.S.C. §§ 841(a)(1) and 846
(1994), promoting and facilitating an unlawful business activity involving controlled
substances, in violation of 18 U.S.C. §§ 1952 and 2 (1994), and using a communication
device to cause and facilitate possession with intent to distribute, in violation of 21
U.S.C. § 843 (b) (1994). On appeal, Madrigal raises several evidentiary issues and
asserts that the District Court erred in denying his motion for a new trial. We affirm.
                                         I.

       The following is a summary of the facts essential to an understanding of
Madrigal’s arguments on appeal. The indictment against Madrigal and six others
resulted from an investigation, jointly conducted by state, federal, and local law
enforcement officers, into illegal narcotics transactions between individuals in Los
Angeles, California and Sioux Falls, South Dakota. The investigation began after the
arrest of codefendant Jason Nordman in 1994 for possession of methamphetamine.
Authorities in South Dakota determined that Nordman was involved in the distribution
of controlled substances and that he possibly had a California source. The source was
determined to be codefendant Daniel Navarette, who had moved from Sioux Falls to
Los Angeles in the summer of 1994. Before leaving, Navarette and Nordman had
devised a plan whereby Navarette would purchase drugs in Los Angeles and send them
to Nordman for distribution in Sioux Falls.

       Navarette testified that in September 1994 he was introduced to appellant
Madrigal and codefendant Osvaldo Olivares (also referred to as “Valo”) in Los
Angeles, and that the two sold him cocaine and methamphetamine. Trial Transcript
166-73. Navarette then mailed the drugs to Jason Nordman in South Dakota.
Nordman distributed the drugs and then, through Western Union, wired Navarette his
part of the profits and money for more drug purchases. Documentation from Western
Union and United Parcel Service introduced at trial corroborated Navarette’s testimony
that he and the codefendants conducted drug transactions using this system. In
December 1994, Madrigal and Olivares began making trips to South Dakota to deliver
the drugs directly to Jason Nordman.

       In early January 1995, Navarette moved back to Sioux Falls and a few weeks
later he, Jason Nordman, and several others were arrested in a hotel room. Madrigal
and Olivares were in Sioux Falls at the time, but were not present in the hotel room
when the arrests were made. Navarette did not post bond after the January arrest,


                                         -2-
although Nordman did and resumed buying drugs from Madrigal. Navarette testified that
while in jail he continued communicating with Nordman by phone, in person, and through
letters, and that he learned Nordman was still involved in drug trafficking and distribution
with Madrigal. From February until Nordman’s arrest in October, Madrigal and
Nordman continued transacting drug deals, with Madrigal regularly traveling to South
Dakota to make deliveries.

       At trial, Nordman testified about numerous drug transactions with Madrigal and
Olivares, and described some that involved the remaining codefendants, including
Nordman’s wife, Kim Nordman, his sister, Charlotte Nordman, and his sister-in-law,
Deborah Krier. Nordman was arrested in October when he was caught with a package
of drugs Krier had obtained in Los Angeles. Madrigal testified at trial that he knew all
of the codefendants, although he denied delivering drugs to any of them. He said he had
made the visit to South Dakota with Olivares in December at Olivares’s invitation, and
that, over time, he began making the trips himself, picking up envelopes of money from
Jason Nordman in return for $500 paid to him by Olivares.

        In December 1995, a 54-count superseding indictment was filed in the United
States District Court for the District of South Dakota charging Madrigal and seven
codefendants with conspiracy to possess with intent to distribute controlled substances,
21 U.S.C. §§ 841(a)(1) and 846 (1994); possession with intent to distribute controlled
substances, 21 U.S.C. § 841 (a)(1) (1994); interstate travel in aid of racketeering, 18
U.S.C. §§ 1952 and 2 (1994); and use of a communication device to commit felonies
under the Controlled Substances Act, 21 U.S.C. § 843(b) (1994). Madrigal was arrested
in Los Angeles and transferred to the District of South Dakota. Six of Madrigal’s
codefendants pleaded guilty before his trial, and one, Olivares, was a fugitive at the time
of trial. After a jury trial, Madrigal was convicted of the conspiracy count, seven counts
of interstate travel in aid of racketeering, and one count of use of a communication device
to commit a felony under the Controlled Substances Act.



                                           -3-
Madrigal was acquitted on the other counts. The District Court1 denied Madrigal’s
motion for a new trial and sentenced him to 84 months in prison, ordered payment of a
$5,000 fine, and imposed 5 years of supervised release. Madrigal asserts that the District
Court erred with respect to a variety of evidentiary rulings and appeals from the denial
of the motion for a new trial.

                                            II.

       On appeal, Madrigal asserts the District Court erred in admitting Kim Nordman’s
statements that Madrigal had threatened to “have [Jason Nordman] and his whole family
taken out” if Jason did not “make up for the drugs and profit that was [sic] lost” because
of Nordman and Navarette’s arrest and the resulting seizure of drugs supplied to them by
Madrigal. Trial Transcript 331. Madrigal characterizes the statements as inadmissible
evidence of other acts under Federal Rule of Evidence 404(b). He argues that when
examined for its probative value and its prejudicial effect as required by Rule 403,
evidence of the alleged threat was unfairly prejudicial.

      Madrigal contends that this Court’s decision in United States v. Weir, 575 F.2d
668 (8th Cir. 1978), is controlling. In Weir, the defendant was on trial for bank robbery.
At trial, a codefendant testified about incidents in which the defendant threatened to kill
several individuals, including the witness himself, an FBI agent, and another man whom
the defendant suspected of being an informant. The witness also described how the
defendant attempted to kill the suspected informant. The District Court admitted this
testimony as other-acts evidence under Rule 404(b) but expressed concern as to the
correctness of the ruling because of its highly prejudicial nature. We reversed the District
Court, stating,




      1
      The Hon. Lawrence L. Piersol, United States District Judge for the District of
South Dakota.

                                           -4-
      [i]n agreeing with the district court’s original assessment that the prejudicial
      impact of the “other crimes” evidence substantially outweighed its probative
      value, we note the obvious tendency of the testimony of [the witness] to
      suggest to the jury that a decision be rendered on an improper basis. The
      testimony suggested that appellants be convicted of bank robbery because
      they were bad men who had threatened to kill law enforcement agents or
      informers.


Id. at 671 (footnote omitted).

        “Acts committed in furtherance of a conspiracy are admissible as circumstantial
evidence that the agreement existed . . ..” United States v. Dierling, 131 F.3d 722, 730
(8th Cir. 1997) (citing Blumenthal v. United States, 88 F.2d 522, 531 (8th Cir. 1932)),
cert. denied, 118 S. Ct. 1401 (1998). Madrigal was on trial for, among other things,
conspiracy. Unlike in Weir, where the “other acts” described to the jury bore an
attenuated relationship to the charge of bank robbery, Kim Nordman’s testimony bears
directly on whether a drug conspiracy existed. The threat Madrigal made to Kim
Nordman is evidence of an agreement between Madrigal, Jason Nordman, and Daniel
Navarette that Madrigal would supply drugs and Nordman and Navarette would
distribute them. Madrigal threatened to “take out” the Nordmans presumably because
Jason Nordman and Navarette had breached their end of the deal in failing to pay
Madrigal for the drugs he agreed to supply them. According to Kim Nordman, Madrigal
threatened Jason because “someone has to be responsible for it beings [sic] Danny was
in jail.” Trial Transcript 331. See Dierling, 131 F.3d at 731 (evidence held admissible
because it “showed the lengths the conspirators would go to protect their interest in the
long term viability of the conspiracy”) (citing United States v. Meester, 762 F.2d 867,
874 (11th Cir. 1985)). The District Court did not abuse its discretion in concluding that
the probative value of this evidence outweighed its unfairly prejudicial effect.




                                           -5-
                                             III.

        Madrigal argues that the District Court erred in allowing Navarette to testify at trial
about incriminating telephone, in-person, and written communications between Navarette
and Jason Nordman. Madrigal contends these statements were inadmissible hearsay.
Navarette was in jail when these contacts occurred, but Nordman had made bail. On
direct examination by the government, Navarette testified that Nordman told him he was
going to go to California “to purchase some drugs from Jose [Madrigal] and ‘Valo’ ” and
that when Nordman returned he told Navarette he had purchased “a key for the front door
and a key for the back door” from Madrigal and Valo. Appellant’s Brief 30. Navarette
explained these metaphors to mean “a kilo of methamphetamine and one of cocaine.” Id.

        The government argues that under Rule 801(d)(2)(E) Navarette’s testimony was
admissible nonhearsay because it amounts to “a statement by a coconspirator of a party
during the course and in furtherance of the conspiracy.” To avail itself of 801(d)(2)(E)
in introducing Navarette’s testimony, the government must prove by a preponderance of
the evidence that a conspiracy existed, that the defendant and the declarant were
members of the conspiracy, and that the statement was in furtherance of the conspiracy.
United States v. Lewis, 759 F.2d 1316, 1342 (8th Cir.), cert. denied, 474 U.S. 994
(1985). Madrigal asserts that Navarette was in jail when the conversations took place
with Nordman and that once in jail, Navarette renounced any further participation in the
conspiracy. Madrigal reasons that the conspiracy was thereby terminated, and that
801(d)(2)(E) cannot be utilized to admit Navarette’s testimony.

      We may reverse the District Court on this issue only if its findings were clearly
erroneous. See United States v. Alonzo, 991 F.2d 1422, 1425 (8th Cir. 1993). There is
ample evidence that, at the time of the conversations between Nordman and Navarette,
a conspiracy existed, that Madrigal and Nordman were members of it, and that the
statement at issue was made during the course of and in furtherance of the



                                            -6-
conspiracy. Contrary to Madrigal’s assertion, Navarette’s incarceration did not terminate
the conspiracy. See United States v. Williams, 87 F.3d 249, 253 (8th Cir. 1996) (“The
arrest of one coconspirator does not necessarily terminate the conspiracy.”), petition for
cert. filed (U.S. Jan. 19, 1998) (No. 97-9413). Nordman pleaded guilty to conspiracy
and testified about several drug transactions with Madrigal that directly correspond with
Navarette’s trial testimony.
        Navarette’s contention that the only reason he continued discussing Nordman’s
illegal activities with him was out of “curiosity,” is not conclusive of the question of
whether Nordman and Madrigal were acting in furtherance of the conspiracy at the time
Nordman made the statement to Navarette. Appellant’s Brief 28. We have long held that
“[s]tatements of a coconspirator identifying a fellow coconspirator as his source of
controlled substances is [sic] in furtherance of the conspiracy and therefore admissible.”
United States v. Womochil, 778 F.2d 1311, 1314 (8th Cir. 1985). Nordman’s statement
about buying drugs from Madrigal was made in furtherance of the conspiracy. The
District Court did not err in admitting Navarette’s testimony.

                                           IV.

       Madrigal states that “[t]he government refused to disclose any witness statements
taken by the [Assistant United States Attorney]” and that “[the government’s] insistence
not to furnish his notes even for in camera review were [sic] suspicious and troubling.”
Appellant’s Brief 40-41. Madrigal also asserts “[t]he Court was repeatedly requested
to make an in camera review of the [Assistant United States Attorney’s] notes and
memos of interview to assess the Brady, . . . and Jencks in them” but did not grant those
requests. Id. at 41. Madrigal does not identify in his brief the witnesses whose
statements he contends were not divulged. At the hearing on the motion for a new trial,
however, Madrigal argued that the Assistant United States Attorney failed to provide
complete notes from his pre-trial interview with Kim Nordman. Hearing on Post-Trial
Motions 4-13. We assume these are the notes to which Madrigal is referring. Madrigal
also contends that because the government



                                          -7-
refused to produce the notes, the District Court erred in not granting his request to review
the notes in camera.

      Madrigal relies on the Seventh Circuit’s holding in United States v. Marshall that
“[u]pon reasonable argument from counsel, there is a presumption that the court should
conduct an in camera inspection of documents to determine whether the documents are
producible under the Jencks Act.” 985 F.2d 901, 907-08 (7th Cir.), cert. denied, 508
U.S. 952 (1993). The Jencks Act requires the production of any statements made by a
government witness upon motion of the defendant after the witness has testified on direct
examination for the prosecution. See 18 U.S.C. § 3500 (1994). The Act defines those
statements to which it applies as, in pertinent part:

      (1) a written statement made by said witness and signed or otherwise
      adopted by or approved by him [or] (2) a stenographic, mechanical,
      electrical, or other recording, or a transcription thereof, which is a
      substantially verbatim recital of an oral statement made by said witness and
      recorded contemporaneously with the making of such oral statement . . ..


18 U.S.C. § 3500(e)(1)-(2) (1994).

       In United States v. Willis, this Court held that a defendant “failed to raise a
colorable claim” that FBI routine investigation reports concerning conversations that
agents held with a government witness were “ ‘statements’ within the meaning of
Jencks.” 997 F.2d 407, 413 (8th Cir. 1993), cert. denied, 510 U.S. 1050 (1994). In
Willis, our decision turned at least in part on the defendant’s failure to offer a reason why
the government’s assertion that the notes contained no Jencks material should not be
believed. Drawing from Willis, we held in United States v. Malone that the
government’s failure to turn over a Secret Service Agent’s notes from an interview with
a government witness was not a violation of Federal Rule of Criminal Procedure 16
because the agent’s notes “constitute the agent’s impression of his interview with [the




                                           -8-
witness], not a statement by [the witness].” 49 F.3d 393, 396 (8th Cir.), cert. denied, 516
U.S. 877 (1995).

      In light of Willis and Malone, Madrigal has failed to demonstrate why an in camera
review of the notes in question was necessary. He provides no basis for his belief that
the notes contain “statements” as defined in the Jencks Act.

       Madrigal also asserts that the notes should have been reviewed in camera for
possible Brady material. Under Brady, the government’s suppression of material,
exculpatory evidence violates due process. Brady v. Maryland, 373 U.S. 83 (1963). To
establish a Brady violation, a defendant must show that 1) the prosecution failed to
disclose evidence; 2) the evidence was favorable to the defendant; and 3) the evidence
was material. United States v. Van Brocklin, 115 F. 3d 587, 594 (8th Cir. 1997), cert.
denied, 118 S. Ct. 1804 (1998). “Evidence is ‘material’ for Brady purposes if its
cumulative effect would be to undermine confidence in the verdict.” Id. (citing Kyles v.
Whitley, 514 U.S. 419, 434 (1995)). Impeachment evidence may also be subject to
Brady. United States v. Bagley, 473 U.S. 667, 676 (1985).

        Madrigal asserted at the hearing on the motion for a new trial that the notes from
Nordman’s interview may have contained information with impeachment value.
Madrigal contends that because Kim Nordman’s testimony at trial differed from her pre-
trial interview regarding the circumstances under which Madrigal threatened to “take out”
Jason Nordman, the District Court should have reviewed the interview notes for
additional Brady material. We disagree. First, after Kim Nordman testified at trial, she
wrote the prosecuting Assistant United States Attorney, explaining why she had changed
some of her testimony since the interview. Understanding its potential impeachment
value, the government provided the defense with that document, and with the relevant
portion of Kim Nordman’s pre-trial interview. Responding to this argument in its order
denying the motion for a new trial, the District Court stated, and we agree, that “[t]he
prosecutor in this case recognized his obligation . . . under Brady,



                                          -9-
and fulfilled that obligation by providing the defense with a portion of the notes taken
during co-defendant Kim Nordman’s interview with the prosecutor.” Addendum to
Appellee’s Brief 2. The District Court’s ruling is affirmed.

        We have addressed the more substantial of Madrigal’s claims that the government
failed to provide the defendant with full discovery, and reject the others without further
discussion.2

                                           V.

      The judgment of the District Court is affirmed.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




      2
        Similarly, we have carefully reviewed Madrigal’s other arguments that the
District Court erred in evidentiary rulings with regard to: the government’s rebuttal
closing argument; the government’s examination of witnesses at trial; the exclusion
from evidence of documents concerning forfeiture of currency seized from Madrigal;
and the denial of a request that the government advise Madrigal of the order in which
its witnesses would testify at trial. We consider these arguments to be without merit.

                                         -10-
