                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4204


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

EDY OLIVEREZ-JIMINEZ, a/k/a Daniel,       a/k/a   FNU LNU,   a/k/a
Erasmo, a/k/a Ulysses, a/k/a Jesus,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.  Henry E. Hudson, District
Judge. (3:10-cr-00308-JRS-11)


Submitted:   January 18, 2013             Decided:   February 4, 2013


Before SHEDD, FLOYD, and THACKER, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Andrew A. Protogyrou, PROTOGYROU & RIGNEY, PLC, Norfolk,
Virginia, for Appellant.      Neil H. MacBride, United States
Attorney, Michael R. Gill, Assistant United States Attorney,
Richmond, Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Edy Oliverez-Jiminez appeals from his convictions for

racketeering conspiracy (with murder and kidnapping as predicate

offenses), murder in aid of racketeering, and kidnapping in aid

of   racketeering. 1       On   appeal,      he   contends    that    there    was

insufficient evidence tying him to the kidnapping of Pascual

Ramos and Adrian Ceja and the murder of Ramos.                        He further

asserts that a hearsay statement was improperly admitted as a

co-conspirator’s       statement        made      in    furtherance     of     the

conspiracy.    We affirm.

           Oliverez-Jiminez first contends that the evidence was

insufficient   to   show    that   he    knew     or   reasonably    should   have

known that Ramos and Ceja would be kidnapped and that Ramos

would be murdered in furtherance of a conspiracy to eliminate

the competition.       In support of this argument, Oliverez-Jiminez

contends that (1) witness Sandra Obregon was an admitted liar

and thief who gave uncorroborated and contradictory testimony;

(2) while the evidence showed that Oliverez-Jiminez bought items

at a Family Dollar store which were recovered from the murder

scene, it was reasonable to conclude that he did not know the

      1
       Oliverez-Jiminez was also convicted of a false documents
conspiracy and a money laundering conspiracy.      He does not
explicitly challenge these convictions.   However, we find that
any challenge would be meritless for the reasons discussed in
this opinion.



                                         2
purpose of the items; and (3) neither Ceja nor the Family Dollar

employee was able to identify Oliverez-Jiminez.

             When    a    defendant      challenges      the   sufficiency       of    the

evidence     supporting        the   jury’s     guilty    verdict,       we    view    the

evidence     and     all       reasonable       inferences     in      favor    of     the

Government and will uphold the jury’s verdict if it is supported

by substantial evidence.              United States v. Cameron, 573 F.3d

179, 183 (4th Cir. 2009).              “[S]ubstantial 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.”             Id. (internal quotation marks omitted).

In reviewing for substantial evidence, this court will not weigh

evidence     or     review     witness    credibility.              United    States    v.

Wilson, 118 F.3d 228, 234 (4th Cir. 1997).                          Rather, it is the

role of the jury to judge the credibility of witnesses, resolve

conflicts in testimony, and weigh the evidence.                              Id.; United

States v. Manbeck, 744 F.2d 360, 392 (4th Cir. 1984).                          Appellate

reversal on grounds of insufficient evidence “will be confined

to   cases   where       the   prosecution’s      failure      is    clear.”      United

States v. Green, 599 F.3d 360, 367 (4th Cir. 2010) (internal

quotation marks omitted).

             We find that the evidence was more than sufficient to

tie Oliverez-Jiminez to the murder and kidnappings.                            Regarding

Obregon, we will not second guess the jury’s apparent decision

                                            3
to    credit    her   testimony.       Moreover,   while   Oliverez-Jiminez’s

purchase of the Family Dollar items might have been innocent,

the evidence must be viewed in the light most favorable to the

Government.       Finally, the fact that neither the Family Dollar

employee nor Ceja were able to identify Oliverez-Jiminez is not

proof of his innocence, given the circumstances of their alleged

interaction. 2

               In any event, even viewing these evidentiary issues as

Oliverez-Jiminez argues would not lead to the conclusion that

there was insufficient evidence to show that Oliverez-Jiminez

was involved with the kidnapping and murder.                  To the contrary,

the    record    is   replete   with    evidence    showing    not   only   that

Oliverez-Jiminez knew about the murder and kidnappings, but also

that he participated in them.                Specifically, witness testimony

connected Oliverez-Jiminez to the victims; duct tape, sheets,

and thumb tacks, which were purchased one hour before the crime

at a Family Dollar store located near the murder scene and then

recovered from the murder scene, were tied to Oliverez-Jiminez

by forensic evidence; the murder victim’s phone and the pre-paid

phone used to set up the murder victim were found in the home

       2
       Connie Streetman, who worked at Family Dollar, testified
that the items were purchased by four nervous and anxious
Hispanic males.    The Family Dollar video footage is of poor
quality. Ceja was bound by duct tape, beaten, and threatened by
four or five Hispanic males.



                                         4
where Oliverez-Jiminez lived and where he traveled immediately

after the murder; cell phone records placed Oliverez-Jimininez

near the murder scene at the time of the murder; and Oliverez-

Jiminez made a number of admissions regarding the murder.                               We do

not   review    the    credibility    of       witnesses,         and     we    assume    the

factfinder resolved all contradictions in the testimony in favor

of the Government.         United States v. Sun, 278 F.3d 302, 313 (4th

Cir. 2002).       Given the plethora of evidence against Oliverez-

Jiminez   and    the    deference    due       to    the       decision    of    the    jury,

sufficient evidence supported Oliverez-Jiminez’s convictions.

            Next, Oliverez-Jiminez challenges the admission of a

statement made by co-conspirator Erik Martinez-Ortiz that “they

had fucked up the comptition . . . and that Erasmo [Appellant]

had done it.”         Oliverez-Jiminez contends that the statement was

improperly      admitted    because    (1)          the    statement       was    made     in

Virginia and (2) the Government failed to establish that the

statement was made in furtherance of the conspiracy.

            A statement is not hearsay if it is offered against

the defendant and is a statement of a co-conspirator of the

defendant      “during     the   course        and        in     furtherance       of     the

conspiracy.”      Fed. R. Evid. 801(d)(2)(E). 3                 For a statement to be


      3
       Rule 801 was amended in 2011.                       However, the amendments
were stylistic only.



                                           5
admissible       under   Fed.    R.     Evid.      801(d)(2)(E),         there    “must    be

evidence that there was a conspiracy involving the declarant and

the nonoffering party, and that the statement was made during

the course and in furtherance of the conspiracy.”                            Bourjaily v.

United     States,     483    U.S.     171,    175      (1987)     (internal      quotation

marks omitted).           Accordingly, when the Government shows by a

preponderance of the evidence that (i) a conspiracy existed of

which the defendant and the party were members, and (ii) the co-

conspirator’s          statement       was     made      in      furtherance       of     the

conspiracy, the statement is admissible.                      United States v. Neal,

78 F.3d 901, 905 (4th Cir. 1996).

             Here, while Oliverez-Jiminez does not clearly dispute

it, there was ample evidence to show that Oliverez-Jiminez and

Martinez-Ortiz         were     both     members         of   the     FDE     conspiracy.

Specifically, there was testimony and evidence that Martinez-

Ortiz worked for Oliverez-Jiminez in Little Rock and assisted

him   in    luring     the    victims    to       the   trailer     and   beating        them.

After      the    murder,     both     Oliverez-Jiminez            and    Martinez-Ortiz

relocated to Virginia from Little Rock.

             Regarding the purpose of the statement, Martinez-Ortiz

was speaking to one of the people who was going to replace him

and   Oliverez-Jiminez          in    Little       Rock.      The    statement,          thus,

served as a warning that the murder had created problems.                                   In

addition,        the   statement       would       serve      to    foster       trust    and

                                              6
cohesiveness     amongst     the   group    and    imparted        information

regarding the progress and status of the conspiracy.                   As the

statement was clearly made in furtherance of the conspiracy,

there was no error in the admission of the testimony.

           Based on the foregoing, we affirm Oliverez-Jiminez’s

convictions.     We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

before   the   court   and   argument    would   not   aid   the   decisional

process.



                                                                      AFFIRMED




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