                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                 Nos. 03-1765
                                 ___________

United States of America,              *
                                       *
              Appellee,                *
                                       * Appeals from the United States
      v.                               * District Court for the Western
                                       * District of Missouri.
Juan Reyes,                            *
                                       *
              Appellant.               *
                                  ___________

                                 Nos. 03-1939
                                 ___________

United States of America,              *
                                       *
              Appellee,                *
                                       *
      v.                               *
                                       *
Samuel M. Burton,                      *
                                       *
              Appellant.               *
                                  ___________

                             Submitted: November 18, 2003

                                 Filed: March 30, 2004
                                  ___________

Before LOKEN, Chief Judge, McMILLIAN, and BEAM, Circuit Judges.
                             ___________
BEAM, Circuit Judge.

       Operation Cocaine Cowboys was an undercover investigation into a large drug
conspiracy. After hearing evidence arising from that investigation, a jury convicted
Samuel Burton and Juan Reyes (the defendants) of several drug-related crimes. This
appeal's principal issue involves a co-conspirator's out-of-court statements that
implicated the defendants. In essence, both defendants complain that introducing
these statements through government agents violated their Confrontation Clause
rights because when the defendants tried to call the co-conspirator as a witness, he
invoked the Fifth Amendment, and thus the defendants could not question him. Also,
Reyes argues that the evidence was insufficient to support his firearm-related
conviction because he did not possess a firearm in furtherance of and in relation to
a drug trafficking offense. We affirm.1

I.      BACKGROUND

       Although this case involves a factually complex drug conspiracy, we discuss
only the few facts necessary to resolve the issues we address in this opinion. Unless
we note otherwise, we recite and evaluate the facts in the light most favorable to the
government because it prevailed at trial. United States v. Brown, 346 F.3d 808, 813
(8th Cir. 2003).

      An informant approached members of COMET,2 a Missouri drug task force,
and told them of drug activity in a local trailer park. Based on that information,
COMET began Operation Cocaine Cowboys, dispatching undercover officers and
employing informants to investigate the reported drug activity.

        1
       The Honorable Richard E. Dorr, United States District Judge for the Western
District of Missouri.
        2
            COMET stands for the Combined Ozark Multi-Jurisdictional Enforcement
Team.

                                         -2-
       After Reyes's name surfaced during the investigation, Sergeant Cooper,
working undercover with COMET, used an informant to meet Reyes. Early in the
investigation, Cooper told Reyes that Cooper was a drug dealer. After learning that
Cooper was a drug dealer, Reyes gave Cooper a gun and asked him to deliver it to
Reyes's family in Mexico. Reyes and Cooper disagree about the purpose of that
request. Cooper testified that Reyes asked him to deliver the gun to earn Reyes's trust
so the two could engage in drug-related transactions later. In other words, Cooper
told the jury that the gun request was a test he had to pass before Reyes would do
business with him. But Reyes insisted that he only wanted to protect his family in
Mexico, and that he did not request delivery to establish trust for future drug
business. When Reyes later sold Cooper cocaine, he extended him a form of credit
and told Cooper, "I'll trust you."

       Burton's name also surfaced during COMET's investigation. Officers and
informants engaged in drug transactions with Burton. Burton does not contest the
facts surrounding these transactions, but he does contest how the government linked
him (and the transactions) to the larger conspiracy.

       A grand jury indicted the defendants and many other conspiracy participants.
 The jury convicted both defendants on multiple counts. Because the jury convicted
both defendants of conspiracy, each was held responsible for more than just their
individual drug sales.3 In this appeal, the defendants primarily challenge the manner
in which the government introduced (and the district court admitted) evidence linking
the defendants to the conspiracy.

      To link the defendants to the conspiracy, the government offered statements
that Caasimoro Gonzalez made to undercover agents while the conspiracy was


      3
       The jury convicted Reyes of a lesser-included conspiracy offense, which did
not encompass the conspiracy's entire scope.

                                         -3-
ongoing. The grand jury indicted Gonzalez as part of the conspiracy, but he pleaded
guilty before the defendants' trial, though he had not been sentenced at the time of
their trial. The government introduced Gonzalez's out-of-court statements through
agents who testified to what Gonzalez told them about the defendants. The
government did not call Gonzalez as a witness. When the defendants did call him as
a witness, Gonzalez and his counsel told the trial court that he would invoke the Fifth
Amendment as to all questions the defendants wanted to ask. The trial court held a
hearing, asked the defendants what questions they planned to ask, and determined that
Gonzalez's claim of privilege was valid as to all of those questions. So the trial court
did not allow the defendants to call Gonzalez because all he would do was take the
stand, invoke the Fifth Amendment, and step down.

        At trial, the defendants challenged the district court's decision in two ways.
First, they argued that the trial court should allow them to call Gonzalez to the stand
to make him assert his privilege in the jury's presence so they could argue inferences
from his silence. When the trial court refused this request, they argued that the trial
court must strike the statements the government introduced because they were unable
to cross-examine Gonzalez about the statements.

II.   DISCUSSION

       Below we address the issues relating to Gonzalez's out-of-court statements and
Reyes's firearm-related conviction. We have carefully considered the defendants'
additional arguments, and we affirm the district court's decisions on those issues. See
8th Cir. R. 47B.




                                          -4-
      A.     Gonzalez's Out-of-Court Statements

       Although the defendants couch their arguments in terms of the Confrontation
Clause, their reasoning more clearly invokes concerns about their compulsory-process
rights (or simple evidentiary error). We first explain why the Confrontation Clause
does not apply here. Then, we explain why the trial court's actions were ultimately
correct, no matter how the argument is phrased.

       Defendants' argument finds no support in the Confrontation Clause. Gonzalez
did not testify. The defendants were able to (and did) cross-examine the government
agents who recounted Gonzalez's statements. So the only way the defendants can
prevail under the Confrontation Clause is if they can show they had a right to cross-
examine Gonzalez due to the agents' testimony recounting his statements. But no
such right existed because Gonzalez's statements were nontestimonial,4 co-conspirator
statements, which fall within a firmly rooted hearsay exception.5 Bourjaily v. United
States, 483 U.S. 171, 183 (1987). When a statement satisfies the requirements for a
co-conspirator statement under Federal Rule of Evidence 801, both the Rules of
Evidence and the Confrontation Clause allow the government to introduce the
statement through a witness who heard the statement, even if the government cannot

      4
       Burton cites a recent Supreme Court decision to support his Confrontation
Clause argument. Crawford v. Washington, No. 02-9410, 2004 WL 413301 (Mar.
8, 2004). Crawford does not support his argument, however, because co-conspirator
statements are nontestimonial. Id. at *11. Crawford did not provide additional
protection for nontestimonial statements, and indeed, questioned whether the
Confrontation Clause protects nontestimonial statements at all. Id. at *14.
      5
       Federal Rule of Evidence 801 characterizes out-of-court statements by co-
conspirators as exemptions from, rather than exceptions to the hearsay rule. Whether
such statements are termed exemptions or exceptions, the same Confrontation Clause
principles apply. United States v. Inadi, 475 U.S. 387, 399 n.12 (1986).



                                        -5-
show that the co-conspirator is unavailable. United States v. Inadi, 475 U.S. 387, 400
(1986). In short, the Confrontation Clause does not give the defendant the right to
cross-examine a person who does not testify at trial and whose statements are
introduced under the co-conspirator hearsay exclusion. White v. Illinois, 502 U.S.
346, 356 (1992); cf. United States v. Kehoe, 310 F.3d 579, 590-91 (8th Cir. 2002)
(holding that the Confrontation Clause did not guarantee the defendant the right to
cross-examine a speaker whose statements were imputed to the defendant as adoptive
admissions of a party opponent), cert. denied, 123 S. Ct. 2112 (2003).

       Nor did the trial court violate the defendants' compulsory-process rights. The
defendants tried to compel Gonzalez to the stand. But he asserted his Fifth
Amendment privilege, and the trial court correctly held that he did not have to answer
any of the questions the defendants wanted to ask him. Neither defendant contests
the validity of Gonzalez's privilege assertion. And wisely, they do not argue that their
right to compulsory process trumped Gonzalez's Fifth Amendment right. See Culkin
v. Purkett, 45 F.3d 1229, 1233 (8th Cir. 1995); United States v. Robaina, 39 F.3d
858, 862 (8th Cir. 1994). Instead, they argue that the trial court either should have
forced him to assert the privilege in the jury's presence, or when it refused to do so,
should have stricken all testimony about his out-of-court statements.6 Both
arguments are wrong.

      First, this situation differs from the one in which the government seeks to use
a privilege invocation against the defendant who invokes the privilege. Gray v.
Maryland, 796 A.2d 697, 727 (Md. 2002) (Raker, J., concurring). In that situation,
the Constitution forbids any adverse inferences because allowing such inferences
would burden the defendant's right not to incriminate himself. U.S. Const. amend.
V. Here though, the defendants tried to help their case with an inference from another


      6
      Nothing in the record suggests that the defendants requested that the
government grant use immunity to Gonzalez. See infra. n.6.

                                          -6-
witness's privilege invocation. Such tactics implicate the Federal Rules of Evidence,
but not the Fifth Amendment, because no party sought to use Gonzalez's privilege
invocation against him in a criminal proceeding. See United States v. Deutsch, 987
F.2d 878, 884 (2d Cir. 1993).

       But even though arguing the inference would not have violated Gonzalez's
Fifth Amendment right, the Federal Rules of Evidence further limit the defendants'
compulsory-process rights. Taylor v. Illinois, 484 U.S. 400, 410 (1988) ("The
accused does not have an unfettered right to offer testimony that is incompetent,
privileged, or otherwise inadmissible under standard rules of evidence."). Federal
Rule of Evidence 401 requires that the evidence be relevant. And Rule 403 gives the
trial court considerable discretion to exclude evidence when the danger of unfair
prejudice outweighs the evidence's probative value.


       Very rarely will these rules allow a party to argue inferences from a witness's
privilege invocation. See United States v. Doddington, 822 F.2d 818, 822 (8th Cir.
1987) ("[A] defendant does not have the right to call a witness to the stand simply to
force invocation of the right against self-incrimination in the presence of the jury.")
(citing United States v. Lyons, 703 F.2d 815, 818 (5th Cir. 1983)). A third party's
privilege invocation is not often relevant. And even if the party seeking to argue the
inference concocts a reason that the silence may be relevant, the danger of unfair
prejudice usually outweighs the probative value because there is no way the opponent
can test the meaning attributed to the invocation. Deutsch, 987 F.2d at 884. On
cross-examination, a witness who is asked why she invoked the privilege will
undoubtedly respond with another privilege assertion. Also, due to the courtroom
drama an invocation creates, the jury is likely to place far too much emphasis upon
an ambiguous invocation. Id. Thus, absent extraordinary circumstances, trial courts
should exercise their discretion to forbid parties from calling witnesses who, when
called, will only invoke a privilege. United States v. Castro, 129 F.3d 226, 231 (1st
Cir. 1997); Deutsch, 987 F.2d at 884; see Doddington, 822 F.2d at 822. The district

                                         -7-
court in this case did not abuse its discretion when it refused to require Gonzalez to
assert his privilege in the jury's presence.


        Finally, we reject the defendants' argument that, once the district court
prevented the defendants from calling Gonzalez, it should have stricken the testimony
relating to his statements from the record. Defendants rely upon a line of cases that
are much different from this one. See, e.g., United States v. Humphery, 696 F.2d 72,
75 (8th Cir. 1982). In Humphery, the government called a witness, the witness
testified on direct, and then the witness invoked the privilege to prevent the defendant
from cross-examining the witness. See id. In that situation, the trial court must
sometimes strike the testimony because a defendant has a constitutional right to cross-
examine a witness who testifies against him at trial. Id. ("[I]f the witness' refusal to
answer prevents the defendant from directly assailing the truth of the witness'
testimony, the court should strike at least the relevant portion of the testimony."). But
when a statement is admissible as a co-conspirator statement, the Constitution gives
the defendant, at most, the right to confront the witness who recounts the statement.
White, 502 U.S. at 356. That is, the very essence of the firmly-rooted-hearsay-
exception doctrine is that introducing those statements without cross-examination of
the declarant does not violate the Confrontation Clause. While the defendant can call
the declarant as a witness, he cannot do so when, as here, the declarant's only
"testimony" will be an inadmissible privilege invocation. See Taylor, 484 U.S. at
410.7


      7
        We understand the defendants' frustration in this case. The government
offered Gonzalez's statements against them, but they could not call him to the stand.
There is good reason to allow the Fifth Amendment to trump the Sixth, but in many
cases like this one the conflict between those two Amendments can be avoided by a
grant of "use immunity." John G. Douglass, Confronting the Reluctant Accomplice,
101 Colum. L. Rev. 1797, 1874 (2001); see generally Note, The Sixth Amendment
Right to Have Use Immunity Granted to Defense Witnesses, 91 Harv. L. Rev. 1266
(1978). Courts in this circuit cannot grant "judicial" use immunity, United States v.

                                          -8-
      The trial court did not err by refusing to strike the testimony about Gonzalez's
statements. If Gonzalez had been absent from the trial, there is no question the
government could have offered the testimony about his statements. It hardly makes
sense, then, to argue that the trial court should have stricken the government's
testimony after it determined that Gonzalez would only invoke his privilege. In other
words, if the testimony about Gonzalez's statements was admissible without him
being present, it surely did not become inadmissible when the court determined that
Gonzalez would provide no relevant testimony if called.


      B.     Reyes's Firearm Conviction


       The jury convicted Reyes of possessing and carrying a firearm in furtherance
of and in relation to a drug offense. 18 U.S.C. § 924(c). Reyes filed a motion for
judgment of acquittal, arguing that the evidence was legally insufficient to support
this charge. He argues that the court erred when it denied this motion because the
government did not prove that he possessed the gun "in furtherance of" a drug
transaction.


      Our standard of review is deferential. We review the evidence in the light most
favorable to the verdict and draw all reasonable inferences that support the verdict.


Stewart, 122 F.3d 625, 627 (8th Cir. 1997), but they can protect the defendant's right
to compulsory process. The defendants in this case did not request use immunity, and
the trial court had no obligation to request it on their behalf. We pause to note,
however, that in cases like this–where the witness has already pleaded guilty and the
prosecution has already gathered its evidence–the burden of granting use immunity
is not high, and rarely deters the prosecution from granting such immunity when it
needs a witness's testimony. And it is the defendant, not the government, who has
rights to confrontation and compulsory process. Peter W. Tague, The Fifth
Amendment: If an Aid to the Guilty Defendant, an Impediment to the Innocent One,
78 Geo. L.J. 1, 50-51 (1989).

                                         -9-
Brown, 346 F.3d at 813. To succeed, Reyes must establish that, even though his jury
did convict him, no reasonable jury could have found him guilty beyond a reasonable
doubt. See id.


       A reasonable jury could have found that Reyes possessed the gun in
furtherance of and in relation to a drug offense. "The term furtherance . . . should be
given its plain meaning, the act of furthering, advancing, or helping forward." United
States v. Hamilton, 332 F.3d 1144, 1149 (8th Cir. 2003) (internal marks and citations
omitted); cf. Smith v. United States, 508 U.S. 223, 236-37 (1993) (noting that the
term "in relation to" is expansive and includes bartering with a weapon for drugs).
Reyes does not deny that he possessed a firearm. Nor does he deny that he gave the
gun to Cooper. Instead, Reyes and Cooper disagree about why Reyes gave Cooper
the gun. Reyes's appellate arguments were proper in jury argument, but they fail
under our standard of review. Perhaps a reasonable jury could have believed his
version of why he gave Cooper the gun. But we affirm because, given the evidence
presented at trial, a reasonable jury could have found that Reyes was testing Cooper's
credibility, and that such a trust-seeking transaction "helped forward" the later
transaction in which Reyes sold Cooper drugs, telling him that he "trusted" him.


III.   CONCLUSION


       We affirm.
                       ______________________________




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