                             UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                             No. 13-4457


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

           v.

RAYMOND COLLINS,

                 Defendant - Appellant.



                             No. 13-4458


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

           v.

EDWARD WILSON,

                 Defendant - Appellant.



Appeals from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Claude M. Hilton, Senior
District Judge. (1:12-cr-00502-CMH-1; 1:12-cr-00502-CMH-2)


Argued:   March 19, 2014                    Decided:   July 1, 2014


Before TRAXLER, Chief Judge, and WILKINSON and KEENAN, Circuit
Judges.
Affirmed by unpublished per curiam opinion.


ARGUED: Joan Caroline Robin, LAW OFFICE OF JONI C. ROBIN PLLC,
Alexandria, Virginia; Christopher Robert Kennedy Leibig, LAW
OFFICE OF CHRISTOPHER LEIBIG LLC, Alexandria, Virginia, for
Appellants.    Michael Phillip Ben'Ary, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF:
Dana J. Boente, Acting United States Attorney, Maya D. Song,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     Appellants Raymond Collins and Edward Wilson raise numerous

challenges     to   their      convictions       for   conspiracy     to       distribute

five kilograms or more of cocaine and 280 grams or more of

crack, in violation of 21 U.S.C. §§ 841 and 846.                    We reject each

of these challenges and affirm the convictions for both Collins

and Wilson.

                                            I.

     From 2009 to 2012, Collins and Wilson were involved in the

sale and distribution of illegal drugs in the Houston, Texas,

area.       Houston-based          dealer       Christopher    Buckner         described

Collins and Wilson as business partners in the drug trade who

were like brothers.              Buckner’s supplier was Collins, who was

able to obtain and sell large amounts of cocaine—as much as two

kilograms    every       two   days.     To      facilitate   their     distribution

operation, Collins and Wilson both had vehicles—Collins a red

pickup truck and Wilson a blue Acura SUV—equipped with hidden

compartments near the console to store drugs, money or handguns,

preventing easy detection.

     In 2010, agents employed by the Drug Enforcement Agency

(“DEA”)   in     northern        Virginia     were     investigating       a    Virginia

dealer named Stevie Thornton, who had relocated to Houston but

still   sought      to    sell    to   customers       in   Virginia.           Using   an

informant, the DEA set up drug buys from Thornton in Houston and

                                            3
conducted    surveillance        during       each    of    these   transactions.

Collins supplied the cocaine to Thornton in two of these deals.

On April 12, 2011, Thornton agreed to sell the Virginia-based

informant four ounces of cocaine that Buckner, in turn, arranged

to   buy   from   Collins.       Buckner      and    Thornton     arrived    at   the

prearranged transaction site, the Taco Cabana restaurant parking

lot, and contacted Collins via Buckner’s cell phone.                        Collins,

however, informed Buckner that he could not make the meeting and

was sending Wilson to deliver the cocaine.                  Subsequently, Wilson

arrived at the Taco Cabana in a blue Acura SUV.                      Buckner paid

Wilson for the cocaine and Wilson gave him the four ounces.

Cell phone records corroborate that Buckner and Collins were in

frequent contact before the deal, and that Collins and Wilson

were in frequent contact before the meeting.                      Law enforcement

surveillance photos were taken of Buckner and Thornton as well

as   Wilson’s     blue   Acura   SUV   during        the   Taco   Cabana    meeting.

Later, Buckner discussed with Collins the fact that he overpaid

Wilson for the cocaine.

      Thornton arranged to have Buckner broker another deal for

the Virginia informant, this time for a half-kilogram of cocaine

supplied by Collins.        On June 8, 2011, Buckner and Thornton rode

in Thornton’s tow truck to meet Collins, who was driving his red

pick-up truck.       Before the exchange took place, Buckner became

suspicious that they were being watched by law enforcement, so

                                          4
Buckner     called    Collins       and   aborted      the   transaction.          Law

enforcement agents conducting surveillance arrested Thornton and

Buckner in Thornton’s tow truck as they were leaving.

       On   March    26,    2012,    Collins     was    arrested     while    driving

Wilson’s     Acura      SUV    after      Houston      law   enforcement       agents

conducting surveillance of a residence observed a blue Acura SUV

arrive.      Agents followed Collins to a nearby Wal-Mart parking

lot, where they observed him engage in a transaction with the

driver of a Nissan Altima.             Around 9 p.m., shortly after leaving

the Wal-Mart, Collins was stopped by Houston police officer Le.

Officer     Le   then      told     narcotics    officers         involved   in    the

surveillance that Collins had consented to a search of the Acura

SUV.    With the assistance of a K-9 unit, officers found cocaine,

approximately $35,000 in cash, and a .45 caliber handgun in a

hidden compartment near the console in the Acura.

       Appellants were both charged with conspiracy to distribute

five kilograms or more of cocaine and 280 grams or more of crack

(count 1), and Collins alone was charged with possession of a

firearm in furtherance of a drug trafficking crime (count 2).

Prior to trial, Collins moved to suppress the evidence from the

search of the Acura SUV.             The district court, based largely on

hearsay     testimony      from     narcotics    agents      at    the    suppression

hearing,    found    that     Collins     had   consented     to    the   search   and

denied the motion.

                                           5
     The     jury     found      Appellants       guilty       as    charged.        On    the

conspiracy      count,      the     jury    found       that        Collins   and    Wilson

conspired to distribute at least five kilograms of cocaine and

at   least      28    grams,      but     less     than     280      grams,     of   crack.

Appellants both received 240 months’ imprisonment for the drug

conspiracy        offense,        and      Collins        received       an     additional

consecutive 60-month term for his firearm charge.

                                            II.

                                             a.

     Appellants         first     argue    that    the     trial      court   abused       its

discretion      by      refusing    Appellants’         request        that   prospective

jurors be questioned during voir dire about their ability to

apply     the   burden      of     proof     and     reasonable-doubt           standards.

Appellants contend this specific line of inquiry was necessary

in light of their defense at trial that while the evidence might

prove drug activity in Texas, the Appellants nevertheless did

not join the conspiracy as charged by the government.                                     They

proposed these voir dire questions on the basis that reasonable

jurors    might      naturally      be    reluctant       to    return    apparent        drug

dealers    to     the     streets       despite    no     evidence       supporting       the

charged offense.          The district court declined, stating that it

would “properly instruct the jury in those areas.”                              J.A. 358.

The court then asked typical voir dire questions relating to

whether any prospective juror had any prior knowledge of the

                                             6
facts of or the participants in the case, worked in or was

related     to     anyone     working          in       law       enforcement,        or    had     any

experience        as   a   victim,        witness            or    defendant     in    a    criminal

proceeding.        The district court subsequently instructed the jury

as   to    the    government’s       burden             of    proving      the   charged      crimes

beyond a reasonable doubt, and Appellants do not take issue with

this aspect of the charge.

      Appellants’          argument       is    foreclosed            by   circuit         precedent.

In United States v. Jeffery, 631 F.3d 669, 674 (4th Cir. 2011),

we held that a district court is not required to ask questions

in   voir    dire       relating     to        the      reasonable-doubt            standard        and

burden-of-proof issues when requested by the defendant so long

as the jury is properly instructed at the end of trial.                                              In

Jeffery,     as    here,      the   accused             submitted         voir   dire       questions

“address[ing] the jurors’ willingness to apply the reasonable-

doubt     standard      and   to    hold        the      government         to   its       burden    of

proof,” but the district court declined to ask any questions

specifically           addressing         the        reasonable-doubt             standard          and

instead asked “fairly standard questions, such as whether the

potential jurors knew about the facts of the case, or whether

they or their family worked in law enforcement.”                                      Id. at 672.

No   one    contends       that     the    district               court    failed     to    properly

instruct on the reasonable-doubt standard or the government’s

burden of proof; we see no cogent basis for concluding that this

                                                    7
case falls outside the scope of our settled general rule that

the    district    court    is    not      required     to    question   prospective

jurors about reasonable-doubt or burden-of-proof issues during

voir dire.

                                            b.

       Second, Appellants contend that the district court abused

its discretion by denying their motion to argue the law to the

jury and that the jury, in turn, be allowed to determine the

applicable     law      according     to    its   own    collective      conscience.

Appellants expressly acknowledge that Sparf v. United States,

156 U.S. 51 (1895), forecloses the argument that the jury may

independently determine the applicable law.                    “Public and private

safety alike would be in peril if the principle be established

that juries in criminal cases may, of right, disregard the law

as    expounded    to    them    by   the    court,     and    become    a   law   unto

themselves.”       Id. at 101.        As we have explained, Sparf “affirmed

the right and duty of the judge to instruct on the law, and

since that case the issue has been settled.”                      United States v.

Moylan, 417 F.2d 1002, 1006 (4th Cir. 1969); see id. at 1007

(“Since the Sparf case, the lower federal courts-even in the

occasional cases in which they may have ventured to question its

wisdom-have       adhered   to    the      doctrine     it    affirmed.”     (footnote

omitted)).        We continued to embrace this principle in United

States v. Muse, 83 F.3d 672, 677 (4th Cir. 1996), explaining

                                            8
that “a defendant is not entitled to inform the jury that it can

acquit      him        on    grounds      other      than      the    facts      in    evidence.”

Indeed, although “a jury has the power of nullification[,] . . .

defense counsel is not entitled to urge the jury to exercise

this power.”            Id.       Nevertheless, Appellants ask us to “revisit”

Sparf as if a Fourth Circuit panel could overturn Supreme Court

precedent.           As counsel should well know, a panel of this court

does   not       even       have    the     power       to    overturn     the    decisions        of

previous         panels       of    our     own         court,   see      United       States      v.

Guglielmi, 819 F.2d 451, 457 (4th Cir. 1987) (holding that only

the en banc court, not a subsequent panel, has the authority to

overturn         a     previous      panel’s       published         decision),        let     alone

Supreme Court authority.                  Accordingly, we reject this argument.

                                                   c.

       Collins          challenges        the     district       court’s       denial     of      his

motion      to       suppress      evidence        recovered      from     a     search      of   his

vehicle.         In considering the denial of a motion to suppress, we

review a         district         court’s    legal        conclusions      de     novo    and     its

factual findings for clear error.                            See United States v. Branch,

537    F.3d      328,       337    (4th     Cir.    2008).           We   also    construe        the

evidence in the light most favorable to the prevailing party,

i.e., the government.                See id.

       At        the        pretrial      suppression            hearing,        the      evidence

demonstrated the following.                        On March 26, 2012, Houston-area

                                                    9
narcotics    officer         Ben     Katrib,       acting    on    information         from       a

confidential       informant,         was     conducting          surveillance         on    the

driver of a blue Acura SUV believed to possess one kilogram of

cocaine.     Officer Katrib solicited help from DEA agents Matthew

Buchert and Terrence Bryant and advised Deputy James Thomas, the

K-9 handler, that his help might be needed as well.                                   Around 9

p.m., the blue Acura SUV was observed leaving a residence and

arriving    at    a     nearby     Wal-Mart,        where    the    driver       of   the    SUV

conducted a brief transaction with the female driver of a Nissan

Altima.     Following the transaction, Officer Katrib directed that

the law enforcement agents split up and follow both vehicles.

The   Nissan      was       followed,    stopped       and       searched     by      Officers

Thomas, Buchert and Katrib; the search of the vehicle and its

driver yielded cocaine powder and marijuana.

      Agent Bryant followed the SUV from the Wal-Mart parking lot

and   observed        the    driver     of    the    SUV     commit    various         traffic

violations, including failing to come to a complete stop at a

stop sign and failing to use a turn signal.                           Agent Bryant, who

was driving an unmarked car, enlisted the help of a Houston

police    officer,         Officer    Le,    who     was    on    patrol    in     the      area.

Officer Le conducted a traffic stop of the Acura SUV, which was

being    driven       by    Collins.         Agent    Bryant       observed      Officer         Le

approach    the       SUV    to    obtain     standard       information         such       as    a

driver’s license and insurance information and then return to

                                              10
his cruiser.         After Officer Le returned to the SUV, Agent Bryant

saw Collins exit the vehicle and sit down on the curb “very

calm[ly].”       J.A. 133.          Agent Bryant testified that, at that

point, “Officer Le told me that the defendant had given consent

to search the vehicle.”             J.A. 132.       Agent Bryant, however, was

not   privy     to   any   discussion       between   Officer   Le   and    Collins.

Officer Le did not testify at the suppression hearing.

      Agent Bryant notified Officers Katrib and Thomas that the

SUV had been stopped, and he began searching the vehicle while

the K-9 unit was in route.                When Officer Katrib arrived, he was

advised    by    officers     on    the    scene    that   Collins   “had    granted

verbal consent for the search of the vehicle.”                  J.A. 157.

      Agent Bryant’s initial search of the SUV did not uncover

any contraband.            When the K-9 unit arrived 10 to 15 minutes

later, however, the drug dog alerted to the front console, where

officers located a hidden compartment containing a loaded .45-

caliber    semi-automatic          handgun    and   approximately    85     grams   of

cocaine.      Approximately $35,000 was recovered from the Acura SUV

and Collins’ person.

      There is no indication that Collins was handcuffed during

the search.      According to Officer Katrib, Collins appeared to be

relaxed and confident and even wore a “smirk” during the search.

At no time did Officer Katrib hear or see anything indicating

that Collins wanted to withdraw his consent to the search.

                                             11
         The district court concluded that the stop of the Acura

SUV being driven by Collins was lawful and that Collins then

consented to the search of the vehicle.                      Thus, the court denied

the motion to suppress.               On appeal, Collins contends that the

government failed to present any evidence that he voluntarily

consented to the vehicle search.

      The        Fourth   Amendment       generally          prohibits      warrantless

searches, but the warrant requirement does not apply where valid

consent to the search is given.                   See Schneckloth v. Bustamonte,

412 U.S. 218, 219 (1973).             “[T]he Government bears the burden of

establishing,        by   a    preponderance         of     the   evidence,     that   it

obtained valid consent to search.”                    United States v. Buckner,

473 F.3d 551, 554 (4th Cir. 2007).                   Of course, consent is valid

only when it is freely and voluntarily given.                         See Trulock v.

Freeh, 275 F.3d 391, 401 (4th Cir. 2001).                         “[V]oluntariness of

consent to search is a factual question, and as a reviewing

court, we must affirm the determination of the district court

unless    its     finding     is   clearly    erroneous.”          United     States   v.

Lattimore, 87 F.3d 647, 650 (4th Cir. 1996) (en banc).

      The     government       relied    on       hearsay    testimony      from    Agent

Bryant and Officer Katrib to establish that Collins consented to

the   search.        It   is   well     established,         however,    that      hearsay

testimony is admissible at a suppression hearing.                           See United

States      v.    Matlock,     415    U.S.    164,     172-75      (1974)    (reversing

                                             12
district       court’s     refusal        to    admit       hearsay      at    suppression

hearing); United States v, Raddatz, 447 U.S. 667, 679 (1980)

(“At a suppression hearing, the court may rely on hearsay and

other     evidence,        even     though       that       evidence      would     not    be

admissible       at    trial.”).      When       the      evidence     presented     at    the

suppression hearing is viewed in the light most favorable to the

government,       the     totality        of    the       circumstances       support      the

court’s conclusion that the government obtained valid consent to

search     the    SUV.       Nothing       in       the    record      suggests     coercive

circumstances when Collins consented to the search.                                 In fact,

the opposite is true.               Collins appeared to be calm and even

confident to the point that he was smirking at officers who were

having difficulty locating the evidence hidden in the secret

compartment.           No weapons were drawn and Collins was not cuffed

during the search.           We perceive no clear error in the district

court’s    factual        determination         that      Collins      consented     to    the

search    of     the    vehicle.      Accordingly,           we    affirm     the   district

court’s denial of Collins’ motion to suppress.

                                               d.

        Wilson    challenges        the     sufficiency           of   the    evidence      to

support     his        conviction    for        conspiracy        to    distribute        five

kilograms or more of cocaine and 28 grams or more of crack.                                The

verdict of the jury “must be sustained if there is substantial

evidence, taking the view most favorable to the Government, to

                                               13
support it.”            United States v. Burgos, 94 F.3d 849, 862 (4th

Cir.   1996)         (en    banc)          (emphasis       and    internal      quotation        marks

omitted).         “Substantial evidence is evidence that a reasonable

finder      of       fact       could      accept     as    adequate      and       sufficient       to

support a conclusion of a defendant’s guilt beyond a reasonable

doubt.”          United States v. Green, 599 F.3d 360, 367 (4th Cir.

2010) (internal quotation marks omitted).

       In   order          to    prove       conspiracy       to    distribute        cocaine        and

cocaine base, the government must show: “(1) an agreement to

distribute        .    .    .     cocaine         [and    cocaine    base]      .    .    .    existed

between     two       or    more        persons;      (2)    the    defendant        knew      of    the

conspiracy;           and       (3)    the       defendant       knowingly     and       voluntarily

became a part of th[e] conspiracy.”                              United States v. Yearwood,

518 F.3d 220, 225-26 (4th Cir. 2008) (internal quotation marks

omitted).             “Proof          of     a    conspiracy       may    of     course         be   by

circumstantial evidence; it need not and normally will not be by

direct evidence.”                 United States v. Mabry, 953 F.2d 127, 130

(4th Cir. 1991) (internal quotation marks omitted).                                           “Once it

has been shown that a conspiracy exists, the evidence need only

establish        a    slight          connection         between    the   defendant           and    the

conspiracy to support conviction.”                           United States v. Brooks, 957

F.2d 1138, 1147 (4th Cir. 1992).

       Viewed in the light most favorable to the government, the

evidence supports the conclusion that Wilson and Collins were

                                                     14
partners       in     the     drug     distribution         trade      together.       Co-

conspirator Buckner described Collins and Wilson as being like

“business partners” and “brothers.”                        J.A. 456.        From 2009 to

2011, Collins supplied Buckner with cocaine that Buckner then

redistributed.          Collins and Wilson’s enterprise moved a high

volume of drugs; Buckner estimated that Collins was moving two

kilos of cocaine every two days.                      While Buckner generally dealt

with    Collins,       he   purchased        a   small    amount      of   cocaine—a   half

ounce—from Wilson on at least one occasion.                           And in April 2011,

Buckner arranged to purchase four ounces of cocaine from Collins

for     an     acquaintance          from    Virginia.           Shortly      before   the

transaction was to occur, however, Collins told Buckner that he

could not meet with Buckner.                     Instead, Collins sent Wilson in

his place to meet with Buckner.                        Wilson arrived at the Taco

Cabana       driving    a     blue    Acura      SUV     with   the    cocaine;    Buckner

entered the SUV and paid for the cocaine.                          Moreover, Buckner’s

account of this transaction was corroborated by S.D. Thornton

who bought drugs from Buckner on multiple occasions.                               Officer

Brian        Gavin,     who     took        surveillance        photographs,       further

corroborated the general details of the Taco Cabana transaction.

       Wilson’s Acura SUV was fitted with an after-market secret

compartment behind his console, a feature that was popular among

drug traffickers.             Buckner testified that Collins owned a red



                                                 15
truck that also had a hidden compartment in which he stored

drugs and a handgun.

       Wilson       contends       that,   apart    from    the   Taco     Cabana      sale,

there      is    no    indication      that    Wilson      engaged    in    repeated     or

routine         drug    deals   or    otherwise     did     anything       to   join    the

conspiracy.            The evidence connecting Wilson to the conspiracy,

however, is strong enough to support the jury’s guilty verdict.

There was testimony that Wilson and Collins were like brothers

in their drug distribution business.                    More importantly, Collins

sent       Wilson       in   his     stead     to   complete        the    Taco     Cabana

transaction.           These facts alone are sufficient to connect Wilson

to the conspiracy. *

                                              e.

       Next,       Appellants       seek     reversal   on    the    basis      that    the

district court refused to afford the jury a written copy of the

       *
       Wilson also argues that in the event we agree that the
evidence was insufficient to convict him, we should then
conclude that the district court erred in calculating drug
quantity under the guidelines. Specifically, Wilson argues that
the district court offered no explanation to support the
determination that he be held accountable for over 150 kilograms
of cocaine.     As explained above, however, the evidence was
sufficient   to   support  his  conviction.     The  presentence
investigation report (PSR) calculated the amounts based on the
same evidence supporting Wilson’s conviction and found that
Wilson and Collins, who “were equal partners in the distribution
of illicit drugs,” were “responsible for [446 kilograms] of
powder cocaine.”     J.A. 811.  The district court specifically
found that the drug quantities were “properly calculated by the
probation officer.” J.A. 781.



                                              16
jury instructions.       The decision to provide a set of written

instructions to the jury is clearly one that is within the sound

discretion of the trial court and will not be reversed absent an

abuse of that discretion.        See United States v. Jones, 353 F.3d

816, 818 & n.2 (9th Cir. 2003) (collecting cases).                 Appellants

fail   to   identify   any   reason   requiring   the   district    court   to

supply a written copy of the instructions to the jury.                      The

trial was less than two days long and the jury was presented

with a very limited number of witnesses to consider and issues

to decide.     Presuming, as we must, “that a properly instructed

jury has acted in a manner consistent with the instructions,”

United States v. Alerre, 430 F.3d 681, 692 (4th Cir. 2005),

there was no reason in this case to believe the jury could not

follow the court’s oral instructions under the circumstances.

       Appellants respond that the jury expressed confusion and

asked to be reinstructed on the issue of drug weight and the

concept of multiple conspiracies.          After deliberation began, the

jury sent the following note to the court: “The quantity of

cocaine and cocaine base – do they relate to Virginia only or

anywhere?”     J.A. 648.     The note was silent with respect to the

issue of multiple conspiracies – it related to calculating drug

quantity.    And, significantly, the issue raised in the jury note

was not addressed in the court’s instructions.               Thus, giving

those instructions to the jury in written form would not have

                                      17
shed    light     on   the    jury’s       question.         We   conclude      that    the

district court was well within its discretion in declining to

give the jury a written copy of the jury instructions.

                                             f.

       Next,     Wilson    contends        that    the     district    court    erred    in

rejecting       his    proposed      jury    instructions         regarding     the    drug

quantity attributable to him.                   Reviewing the refusal to give a

jury instruction for abuse of discretion, we will reverse only

when the requested instruction “(1) was correct; (2) was not

substantially covered by the court’s charge to the jury; and (3)

dealt with some point in the trial so important, that failure to

give     the      requested        instruction           seriously       impaired       the

defendant’s ability to conduct his defense.”                          United States v.

Lighty, 616 F.3d 321, 366 (4th Cir. 2010) (internal quotation

marks omitted).           “[This Court] review[s] a jury instruction to

determine       whether,     taken    as    a     whole,    the   instruction       fairly

states the controlling law.”                United States v. Hurwitz, 459 F.3d

463, 474 (4th Cir. 2006) (internal quotation marks omitted).

       Wilson asked the court to instruct the jury (1) that it

must “make an individualized determination of the quantity of

drugs attributable to each defendant,” J.A. 301, and (2) that

the jury must “bear in mind that guilt is individual” and that

the    jury’s    “verdict     as     to    each    defendant      must   be    determined

separately with respect to him.”                   J.A. 287.       The district court

                                             18
instead        adopted     the     government’s        proposed        language    and

instructed the jury that “the defendants are accountable for the

quantity        of     controlled     substances        that     they     personally

distributed or that they could reasonably foresee that others

would distribute.”         J.A. 638.

       The district court’s instruction correctly stated the law

as to the drug quantity attributable to an individual defendant

in a drug conspiracy case.              In United States v. Collins, 415

F.3d 304, 312 (4th Cir. 2005), we explained that

       the sentencing provisions applicable to conspiracies
       involving multiple narcotics should be individualized
       to reflect a particular coconspirator’s relative
       culpability in the conspiracy . . . [and a district
       court   must]   assess  the  quantity  of   narcotics
       attributable to each coconspirator by relying on the
       principles set forth in [Pinkerton v. United States,
       328 U.S. 640 (1946)].

Id.    (internal       quotation    marks    omitted).         Under    Pinkerton,   a

defendant is liable not only for the amount of drugs that he was

personally involved in distributing, but also for those amounts

distributed by other members of the conspiracy whose actions

were    both    “reasonably      foreseeable     and    in     furtherance    of   the

conspiracy.”          United States v. Blackman, 746 F.3d 137, 141 (4th

Cir. 2014).          As required by Collins, the district court properly

instructed the jury on the Pinkerton principles.                        See Collins,

415 F.3d at 314.




                                            19
       Nonetheless,      Wilson   argues    that   the   district     court’s

instructions constituted reversible error because, when coupled

with    the   court’s    instruction   that   “a   person   who    knowingly,

voluntarily, and intentionally joins an existing conspiracy is

responsible for all of the conduct of the coconspirators from

the    beginning    of   the   conspiracy,”   J.A.   637-38,   the    court’s

instruction misled the jury into grouping Appellants together

when determining the drug quantity attributable to Wilson alone.

We disagree.       To the extent the jury instructions permitted any

confusion as to the individualized assessment of the quantity of

drugs connected to each defendant, the district court’s separate

verdict forms reiterated the jury’s duty to separately determine

whether each defendant was guilty of conspiracy.                  The special

verdict forms required the jury to determine separately whether

each individual defendant was guilty of conspiring to distribute

cocaine and cocaine base and, if so, the amount attributable to

each individual defendant.         Accordingly, Wilson’s proposed jury

instructions were substantially covered by the district court’s

instructions.

                                       g.

       Finally, Appellant Wilson argues that the district court

abused its discretion by admitting into evidence a recorded jail

phone call between himself and Collins offered by the government

to show that Collins and Wilson were trying to “get on the same

                                       20
page with respect to the Taco Cabana [drug] deal,” J.A. 540, so

as to “further[] . . . the conspiracy” by “concealing” it,” J.A.

539.    The call, as transcribed, proceeded as follows:

       Collins: “Another thing that might gotta come, you
       know, we gotta see how we gonna put this in order is
       about that, . . . whatever they talking about happened
       at the Taco Cabana.    We gotta . . . to the lawyers
       rather, we gotta confirm it or not confirm it, you
       know, and [the lawyers] got to work [their] way around
       that some type of way and I don’t wanna just say . . .
       then, you know, there’s no way they can reform that .
       . . You know what I’m saying. . . .

       Wilson: Man . . . [unintelligible]

       Collins: . . . they’re not gonna go in there and say
       “yeah”, it happened, you know what I’m saying, but I
       ain[’]t . . .

       Wilson: [S]he’s working on that shit right now, but
       ain[’]t no need to be reformed dog, the shit is
       bullshit.

       Collins: It can be bullshit bro, but it’s to the point
       about how much the FBI got about that shit and how . .
       . you know what I’m saying. And if we just straight up
       say, you know what I’m saying I can’t really get at
       you but I wanna get a confirmation with you if we on
       the same page before I take it there.

J.A. 716 (some internal alterations in original).

       Wilson objects to the introduction of the statements by his

co-defendant Collins on two grounds.        First, Wilson argues that

the admission of the phone call violated his rights under the

Confrontation Clause.     We disagree.      The Confrontation Clause

reaches only “testimonial” statements.         See United States v.

Jones, 716 F.3d 851, 855 (4th Cir. 2013) (internal quotation

marks omitted).     Statements are testimonial when “a reasonable

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person       in   the     declarant’s     position   would    have   expected     his

statements to be used at trial – that is, [when] the declarant

would have expected or intended to bear witness against another

in a later proceeding.”            Id. (internal quotation marks omitted).

Recorded phone calls from prison clearly are not “testimonial”

per    se.        See    id.   (holding    that   statements    made     in   “casual

conversations” on prison telephone calls were not testimonial

and their admission did not violate Confrontation Clause).                         We

agree    with       the     government     that   nothing      indicates      Collins

expected or intended to “bear witness” against Wilson in the

phone call, as Collins’ statements implicated himself as much as

Wilson to the extent that they implicated anyone at all.

       Second, Wilson argues that Collins’ statements constituted

inadmissible hearsay that was not subject to the co-conspirator

exception to the hearsay rule under Rule 801(d)(2)(E) of the

Federal Rules of Evidence.              Under this rule, “a statement of the

defendant’s co-conspirator is admissible against the defendant

if it was made during the course of and in furtherance of the

conspiracy.”            United States v. Shores, 33 F.3d 438, 442 (4th

Cir.     1994)      (internal      quotation      marks      omitted).        A   co-

conspirator’s statements come in “if the court finds (i) that

the defendant and the declarant were involved in a conspiracy

with each other at the time the statement was made; and (ii)

that the statement was made in furtherance of that conspiracy.”

                                           22
Id. (footnote omitted); see Krulewitch v. United States, 336

U.S. 440, 442 (1949) (holding that an out-of-court statement of

one conspirator may be admitted against his fellow conspirator

only if the statements were “made pursuant to and in furtherance

of objectives of the conspiracy charged”).

      Wilson argues that the drug conspiracy was over when the

statement was made as both Appellants were incarcerated.                The

government argues that although the statement was made as part

of a separate conspiracy to obstruct justice at the trial, it

was   nonetheless   related   to   the   charged   conspiracy.   Even    if

these statements were not made in furtherance of the conspiracy

as required by Rule 801(d)(2)(E), we conclude that the admission

of the phone call was harmless.           See United States v. Graham,

711 F.3d 445, 453 (4th Cir. 2013) (“The incorrect admission of a

statement under the coconspirator statement exclusion from the

definition of hearsay is subject to harmless error review.”).

“Erroneously admitted evidence is harmless if a reviewing court

is able to say, with fair assurance, after pondering all that

happened without stripping the erroneous action from the whole,

that the judgment was not substantially swayed by the error.”

United States v. Johnson, 587 F.3d 625, 637 (4th Cir. 2009)

(internal quotation marks omitted).          As Wilson points out, he

uttered only a single sentence during the phone call which could

be taken to suggest that Wilson disagreed that he and Collins

                                    23
needed to get “on the same page” and “reform” the facts.                      J.A.

716.      In   fact,   to   the    extent      Wilson’s   statement   was     even

intelligible, a juror could reasonably conclude that Wilson was

denying    involvement      in    the   Taco     Cabana   incident    which    he

referred to as “bull***t” and that Wilson felt “no need to . . .

reform[]” the facts before trial.               J.A. 716.    We conclude that

the jury’s verdict in this case could not reasonably have been

swayed by the admission of the largely incomprehensible phone

conversation between Wilson and Collins.

                                        III.

       For the foregoing reasons, the judgment below is hereby

                                                                      AFFIRMED.




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