                Not for Publication in West's Federal Reporter

           United States Court of Appeals
                       For the First Circuit

No. 11-1707

                             UNITED STATES,

                                Appellee,

                                     v.

         CARLOS ROBERTO RODAS, aka Carlos Rodas-Esposito,
                         aka “Don Carlos,”

                        Defendant, Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF RHODE ISLAND

           [Hon. William E. Smith, U.S. District Judge]


                                  Before

                        Lynch, Chief Judge,
                    Souter,* Associate Justice,
                     and Lipez, Circuit Judge.


     John L. Calcagni, III for appellant.
     Donald C. Lockhart, Assistant United States Attorney, with
whom Peter F. Neronha, United States Attorney, was on brief, for
appellee.


                               May 1, 2013




     *
       Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
            SOUTER, Associate Justice.     Carlos Roberto Rodas appeals

his conviction for drug trafficking offenses, raising various

evidentiary and constitutional arguments in support of reversal.

The appeal comes to us as a companion to United States v. Figueroa,

Nos. 11-1701, 11-1702, 2013 WL 388110 (1st Cir. Jan. 30, 2013).

Like its recent predecessor, this case raises no substantial issue,

and the conviction will be affirmed with comparable brevity.

                                      I

            Along with the Figueroa defendants, Rodas was involved in

a criminal conspiracy to import heroin from Guatemala to the United

States.    While his co-conspirators bought the heroin in Guatemala

and sold it in this country, Rodas acted as a courier.                    In

Guatemala, he would swallow heroin wrapped in plastic, which he

would excrete after traveling to Rhode Island.          He ran this gamut

six times.

            The Government’s charges against him on account of drug

trafficking included conspiracy to distribute heroin.              At trial,

the Government provided evidence gained from 133 intercepted phone

calls and extensive surveillance, and it introduced seized heroin

worth over $100,000 and supplies for processing it.                The jury

convicted Rodas on all counts, and the district court sentenced him

to   121   months’   incarceration.       28   U.S.C.   §   1291    provides

jurisdiction over this timely appeal, comprising four arguments.




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                                       II

                                       A

          Rodas     contends    that        introducing     the     incriminating

wiretapped   telephone     calls   against        him     violated    the     Sixth

Amendment’s Confrontation Clause.            He argues that the recordings

contained “testimonial” hearsay, which may not be admitted unless

the defendant had the opportunity to cross-examine the absent

declarant.   The claim is meritless.

          To begin with, Rodas did not preserve this issue in the

district court.      He says that he did so by referring to the

Confrontation Clause during a colloquy on his motion for severance

and by moving to use some selections from the recorded phone calls

in the defense case.      But in neither instance did Rodas squarely

(or tangentially) raise the constitutional issue he now presents,

nor did he ever object to any failure by the district court to make

a decision rejecting his Sixth Amendment claim.                      Our review,

therefore, is only for plain error and goes no further than the

first showing that a defendant must make: that an error occurred.

See United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001).

          “In all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses against him.”

U.S. CONST. amend. VI.         Crawford v. Washington held that the

confrontation     right   guaranteed        by   the    Sixth     Amendment   bars

admission of “testimonial statements of [a witness] absent from


                                   -3-
trial,” unless the defendant has had the opportunity to cross-

examine the person quoted.       541 U.S. 36, 59 (2004).          Thus, “the

threshold   question    in   every   case   is   whether    the   challenged

statement is testimonial.”       United States v. Figueroa-Cartagena,

612 F.3d 69, 85 (1st Cir. 2010).

            The statements admitted against Rodas were not.          We have

recently held that “coconspirator statements . . . are, by their

nature, not testimonial.” United States v. Ciresi, 697 F.3d 19, 31

(1st Cir. 2012); see also United States v. Rivera-Donate, 682 F.3d

120, 132 n. 11 (1st Cir. 2012) (“[S]tatements made during and in

furtherance of a conspiracy are not testimonial . . . .”).                And

because the recorded calls unambiguously contain statements made by

Rodas’s co-conspirators in furtherance of the conspiracy (and Rodas

has not come close to carrying his burden to show otherwise), his

Confrontation Clause argument is foreclosed.

            The conspiracy is also one reason that Rodas fails in his

related claim that the admission of the calls violated Bruton v.

United States, 391 U.S. 123 (1968), in which the Supreme Court held

that “‘powerfully      incriminating    extrajudicial      statements    of a

codefendant’—those naming another defendant” can be “so prejudicial

that limiting instructions cannot work.”           Gray v. Maryland, 523

U.S. 185, 192 (1998) (quoting Bruton, 391 U.S. at 135).                 Bruton

self-evidently has little to do with this case, and even when

Bruton might otherwise apply, it “does not bar the use of a co-


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conspirator statement made in furtherance of the conspiracy.”

United States v. De La Paz-Rentas, 613 F.3d 18, 29 (1st Cir. 2010).

There was no error, plain or otherwise.

                                           B

             Assuming that admission of the phone transcripts was

constitutional, Rodas argues that they should nonetheless have been

excluded under Federal Rule of Evidence 801(d)(2)(E) because there

was inadequate evidence of his involvement in the conspiracy.                     Our

review is for abuse of discretion, and we find none.                     See United

States v. Vázquez-Botet, 532 F.3d 37, 65 (1st Cir. 2008).

             In assessing whether hearsay is admissible as a co-

conspirator statement under Rule 801(d)(2)(E), the district court

must make     four   findings:      “(1)       a   conspiracy   existed;   (2)    the

defendant was a member of the conspiracy; (3) the declarant was

also a member of the conspiracy; and (4) the declarant’s statement

was made in furtherance of the conspiracy.” United States v. Díaz,

670   F.3d   332,    348    (1st   Cir.    2012);     accord    United   States    v.

Petrozziello, 548 F.2d 20, 23 (1st Cir. 1977). The government must

also supply evidence of a defendant’s membership that is extrinsic

to the communications admissible because of the conspiracy itself.

Díaz, 670 F.3d at 348.             Here, the district court found “the

Government     has    met    its    burden         sufficient   to   satisfy      the

Petrozziello requirements, including [presentation of] evidence

that is outside the phone calls themselves so that these phone


                                          -5-
calls can be fully admitted as statements of co-conspirators.”

J.A. 4:257.

           Rodas says that the district court’s finding that Rodas

was a member of the conspiracy ignored a lack of the essential

extrinsic corroboration, but the record more than sufficed.                 The

Government presented evidence that Rodas was photographed with his

co-conspirators at 48 Grant Street in Cranston, Rhode Island,

outside the house where the heroin was seized, that he made six

trips from Guatemala to Rhode Island, and that the timing of

Rodas’s trips to Guatemala corresponded with the actions of the

others in preparing for the arrival of a new supply of heroin.

There was evidence that after his plane reached the United States

on the first leg of the trip to Rhode Island, he would call a co-

conspirator, who would relay the message that he had “crossed the

line” to the others, J.A. 1:320-21, 444-45; shortly thereafter, he

would meet the other co-conspirators at the Grant Street apartment;

and soon after that they would resume selling the drug.               We could

go on, but we need not under the deferential standard of review.

Admitting the calls was not an abuse of discretion.

                                      C

           Rodas next claims that the district court erroneously

denied   his   motion   to   sever   his   trial   from   that   of   his   co-

conspirators.    Our review is for abuse of discretion, see United




                                     -6-
States v. Tiem Trinh, 665 F.3d 1, 17 (1st Cir. 2011), and again

there was none.

          “If the district court decides not to sever [a] trial,

the defendant bears the burden of making a strong showing that

prejudice resulted from the denial of severance, and prejudice in

this context ‘means more than just a better chance of acquittal at

a separate trial.’”     United States v. DeCologero, 530 F.3d 36, 52

(1st Cir. 2008) (quoting United States v. Boylan, 898 F.2d 230, 246

(1st Cir. 1990)).        Severance is only warranted on showing “a

serious risk that a joint trial would compromise a specific trial

right of one of the defendants, or prevent the jury from making a

reliable judgment about guilt or innocence.”               Zafiro v. United

States, 506 U.S. 534, 539 (1993).

          Rodas    relies    on    spillover     prejudice    he    supposedly

suffered from     the   recorded   calls,     which   he   argues    were   only

admissible against his co-defendants, as well as from the admission

of 66 heroin pellets seized from the Figueroa residence. He claims

further prejudicial spillover from evidence of cocaine discovered

in Ervin Figueroa’s car and from the records of calls related to

Ervin Figeuroa’s money laundering charges.            In sum, he argues that

this evidence “prevent[ed] the jury from making a reliable judgment

about guilt or innocence.”        Id.

          The   short    answer    to    these   arguments   is     the   jury’s

supportable finding that he was a conspirator with the others,


                                        -7-
which renders the spillover claims inapposite.                         As explained

before, the calls were properly admitted against Rodas, so there

was no spillover prejudice. And as for the balance of the evidence

Rodas cites, we have held that “the nature of proving a conspiracy

charge is that ‘virtually all the evidence relating to the other

conspirators       [is]    also   directly      relevant     to,   and,    therefore,

independently admissible in, the prosecution’s case against’ the

defendant requesting severance.”                United States v. Saunders, 553

F.3d   81,    85     (1st       Cir.   2009)     (quoting     United       States    v.

Flores–Rivera, 56 F.3d 319, 325-26 (1st Cir. 1995)).                      But even if

we were to assume some of the evidence was not admissible against

Rodas, it was dwarfed by what did properly count against him and

would have been admissible in a solo trial.                        And any possible

prejudice was cured by the district court’s careful limiting

instruction    that       the   jury    consider      the   charges   against       each

defendant individually and require proof of his membership in the

conspiracy by “evidence of the Defendant’s own words or actions.”

J.A. 4:284.

                                           D

             Finally,       Rodas      joins    the    arguments      of    his      co-

conspirators, Ervin and Elio Figueroa, that the wiretap evidence

should have been suppressed on the statutory ground that the use of

a wiretap was not necessary.            For reasons explained in our opinion

in Figueroa, this position is not well taken.                  See Figueroa, 2013


                                          -8-
WL   388110,   at   *1   (finding   that   the    government’s    submissions

“staunchly     support    a   finding      that   other,   less    intrusive

investigative means could not reasonably have been expected to

achieve the goals of the investigation”).

                                     III

           We affirm the judgment of the district court.

           It is so ordered.




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