                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 00-3032
                                ________________

United States of America,                 *
                                          *
             Appellee,                    *
                                          *       Appeal from the United States
      v.                                  *       District Court for the
                                          *       District of South Dakota.
Mario Hugo Arias,                         *
                                          *
             Appellant.                   *

                                ________________

                                Submitted: February 26, 2001
                                    Filed: June 8, 2001
                                ________________

Before WOLLMAN, Chief Judge, HANSEN, and BYE Circuit Judges.
                          ________________

HANSEN, Circuit Judge.

      Mario Hugo Arias, along with four other individuals, was charged with
possession with intent to distribute methamphetamine, conspiracy to distribute
methamphetamine, and use of a communication facility in causing or facilitating the
commission of a felony under the Controlled Substances Act, in violation of 21 U.S.C.
§§ 841 (a)(1), 846, 843(b) (1994) and 18 U.S.C. § 2 (1994). Because Arias's
coconspirators all pleaded guilty, only he proceeded to trial. On May 19, 2000, a jury
convicted Arias on all counts. The district court1 sentenced Arias to 276 months
imprisonment, six years of supervised release, and a $3500 fine. Arias appeals both
his conviction and his sentence asserting that the district court erred in making several
evidentiary determinations and that his sentence violated the Supreme Court’s holding
in Apprendi v. New Jersey, 530 U.S. 466 (2000). We affirm.

                                           I.

       Investigation into the defendant's involvement in this conspiracy case began in
November 1999 when South Dakota law enforcement officials searched the residence
of Lisa Alatorre and Sergio Perez-Rodriquez after receiving information that the
occupants were involved in the distribution of drugs. The search produced, among
other items, 3.5 grams of actual methamphetamine. Officers later searched a storage
locker rented to Perez-Rodriquez, which contained 37.3 grams of actual
methamphetamine and a business card belonging to Arias. After police arrested
Alatorre and Perez-Rodriquez, Perez-Rodriquez agreed to cooperate with law
enforcement. Perez-Rodriquez told police that he received his methamphetamine from
Homero Mondragon-Barrera, who in turn delivered the drugs for Arias. Perez-
Rodriquez knew as early as 1996 that Arias was a supplier of methamphetamine, but
he did not utilize Arias's services until 1999.

      With the assistance of law enforcement, Perez-Rodriquez placed a monitored
telephone call to Arias at a restaurant in South Sioux City, Nebraska. The phone
number at the restaurant corresponded with the phone number listed on Arias's
business card seized from Perez-Rodriquez's storage locker. Because Perez-Rodriquez
was unable to reach Arias at the restaurant, he placed a series of monitored and



      1
       The Honorable Lawrence L. Piersol, now Chief Judge, United States District
Court for the District of South Dakota.
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recorded calls to Arias's cell phone.2 During these calls, the two discussed the
purchase of one pound of methamphetamine and its delivery to Sioux Falls, South
Dakota. Arias told Perez-Rodriquez that Mondragon-Barrera would be the one
transporting the drugs to him on November 23, 1999, and that Mondragon-Barrera
would be driving the same blue Honda that Mondragon-Barrera drove when making
previous deliveries to Perez-Rodriquez. On the day of delivery, Perez-Rodriquez
called Arias to inform him that Mondragon-Barrera had not arrived in Sioux Falls and
was late making the delivery. Shortly thereafter, Mondragon-Barrera called Perez-
Rodriquez and confirmed that delivery was to occur at a Sioux Falls shopping mall.
When Mondragon-Barrera arrived at the mall, law enforcement agents arrested him.
A search of his vehicle uncovered a pound mixture of methamphetamine, containing
60.9 grams of actual methamphetamine, wrapped in duct tape and fishing line hidden
in a compartment in the dash of the Honda. Mondragon-Barrera told agents that
Edward Compos was Arias's supplier and that Arias called upon Compos when Perez-
Rodriquez requested additional drugs. Pursuant to his coconspirators' cooperation with
law enforcement, a jury subsequently convicted Arias of the seven counts charged in
his indictment. He now appeals.

                                           II.

       Arias first contends that the district court impermissibly admitted into evidence
statements made by his coconspirator; specifically, Mondragon-Barrera's testimony
about Mondragon-Barrera's conversation with Campos wherein Campos attributed the
methamphetamine to Arias. We review the district court's evidentiary rulings for an
abuse of discretion. United States v. Melecio-Rodriguez, 231 F.3d 1091, 1094 (8th
Cir. 2000), cert. denied, No. 00-8521, 2001 WL 167809 (U.S. May 14, 2001). The
district court ruled that the testimony was nonhearsay, admissible under Federal Rule


      2
       This cell phone is linked to Arias’s former wife, who stated at trial that she gave
the phone to Arias in April 1999 and has not seen it since.
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of Evidence 801(d)(2)(E). Coconspirator statements are properly admitted if the
government proves by a preponderance of the evidence that (1) a conspiracy existed;
(2) both the declarant and the defendant were members of the conspiracy; and (3) the
declarant made the statement in the course and in furtherance of the conspiracy. United
States v. Whitehead, 238 F.3d 949, 951 (8th Cir. 2001). Statements made "in
furtherance" of a conspiracy include those which identify the coconspirators or the
coconspirators' supply source for the illegal drugs, United States v. Meeks, 857 F.2d
1201, 1203 (8th Cir. 1988), and those statements which discuss a coconspirator's role
in the conspiracy, United States v. Johnson, 925 F.2d 1115, 1117 (8th Cir. 1991).

        Perez-Rodriguez testified that he received his methamphetamine from Arias who
co-owned a restaurant in South Sioux City, Nebraska. When Perez-Rodriguez wished
to arrange a drug transaction, he either called Arias at the restaurant or on a cell phone.
Mondragon-Barrera testified that he had known Arias since 1998 and had transported
drugs to Sioux Falls for him in the past. He further testified that Campos directed him
where to deliver the methamphetamine once in Sioux Falls, but that Arias was the one
who ordered Campos to contact Mondragon-Barrera to make the deliveries. Campos
also told Mondragon-Barrera that Arias was the source of the methamphetamine. Arias
argues that the government did not prove that Campos existed, and therefore, the
district court's admission of Mondragon-Barrera's testimony attributing statements to
Campos was an abuse of discretion. We cannot agree with Arias's assertion. For
statements to be admissible, it is not necessary that the declarant either be a charged
member of the conspiracy or that the declarant be identifiable so long as the statement
itself proves reliable. United States v. Gonzales, 90 F.3d 1363, 1370 n.6 (8th Cir.
1996); United States v. Carr, 67 F.3d 171, 174 (8th Cir. 1995), cert. denied, 516 U.S.
1182 (1996). From our review of the record, the district court's specific finding made
before the evidence was admitted that Campos was a member of the conspiracy is not
erroneous, let alone clearly erroneous.




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       We conclude that the district court did not err in admitting these statements
under 801(d)(2)(E): clearly a conspiracy existed; Arias, Perez-Rodriguez, Campos, and
Mondragon-Barrera were members of that conspiracy; and the statements attributed to
Campos by Mondragon-Barrera were made in furtherance of the conspiracy because
the statements identified the coconspirators, their roles, and the source of the drugs.
Furthermore, given the fact that the defendant was recorded during three different
telephone calls making and confirming the arrangements for the delivery, if there was
any error in the admission of Mondragon-Barrera's testimony about what Campos told
him, it was harmless beyond a reasonable doubt.

        Arias also asserts that the district court erroneously admitted evidence of his
earlier felony drug conviction. Arias pleaded no contest in 1997 to possession of
methamphetamine. Federal Rule of Evidence 404(b) allows for the use of evidence of
Arias's prior unlawful conduct, so long as that conduct is relevant to some issue other
than Arias's penchant toward illegal activity. See United States v. Powell, 39 F.3d 894,
896 (8th Cir. 1994). Arias argues that the government used this evidence solely to
illustrate his propensity to possess a controlled substance and not, as the government
claims, to illustrate his intent to participate in a conspiracy to distribute
methamphetamine.

        "Evidence of other crimes is admissible if '(1) it is relevant to a material issue;
(2) it is similar in kind and not overly remote in time to the crime charged; (3) it is
supported by sufficient evidence; and (4) its potential prejudice does not substantially
outweigh its probative value.'" United States v. Oates, 173 F.3d 651, 659 (8th Cir.)
(quoting United States v. Green, 151 F.3d 1111, 1113 (8th Cir. 1998)), cert. denied,
528 U.S. 890 (1999). In admitting the conviction, the district court concluded that the
evidence was more probative than prejudicial and determined that the amount of
methamphetamine involved in Arias's prior conviction was "clearly not a personal use
amount" and therefore admissible to illustrate Arias's intent to distribute
methamphetamine in the present case. (Trial Tr. at 10.) The district court did not

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abuse its discretion in admitting Arias's prior conviction for possession of
methamphetamine. As a panel of this court stated in United States v. Davidson, 195
F.3d 402 (8th Cir. 1999), cert. denied, 528 U.S. 1180 (2000), "[a] necessary element
of conspiracy to manufacture methamphetamine is knowingly joining such a
conspiracy, and [defendant's] recent convictions for possession of methamphetamine
were relevant to prove that." Id. at 408. We note that even if the district court had
determined the methamphetamine involved in the 1997 conviction to be a personal use
amount, the prior possession regardless of amount would be admissible to illustrate
Arias's intent here. See United States v. Hardy, 224 F.3d 752, 757 (8th Cir. 2000)
(concluding that possession of even personal use amounts of drugs is admissible to later
demonstrate a defendant’s intent to distribute). Moreover, the district court gave an
instruction to the jury limiting its use of the prior conviction evidence to only the issues
of Arias's knowledge and intent. Admission of this evidence was not an abuse of
discretion.

       Arias maintains that the district court further abused its discretion by excluding
evidence discrediting the government's key witness, Perez-Rodriguez. Sergeant Steve
Johnson, a former Sioux Falls narcotics detective, testified that he was involved in the
arrest and prosecution of Perez-Rodriguez in 1996 for possession of methamphetamine.
Defense counsel at trial asked Johnson if Perez-Rodriguez had disclosed his drug
source during the 1996 investigation and whether, at that time, Johnson had found
indicia of drug trafficking such as money orders, mail transactions, or any evidence of
shipping of money, suggesting Perez-Rodriguez was receiving drugs from South Sioux
City. Defense counsel attempted to imply through Johnson's testimony that the lack of
such evidence was proof that Perez-Rodriguez was not truthful about Arias being his
supplier. The district court, however, refused to allow Johnson to testify "to some
conclusion he had in some case in 1996." (Trial Tr. at 259.)

      Contrary to Arias's argument, Perez-Rodriguez's alleged dishonesty was laid
before the jury when he admitted on the witness stand that he had not been truthful to

                                             6
law enforcement officers during their investigation of Arias, and that if it was
necessary, he would lie to help himself. Arias was free to ask Perez-Rodriguez
anything he wished concerning his untruthfulness and whether Perez-Rodriguez
received drugs from Arias in 1996, but Arias never cross-examined Perez-Rodriguez
on the issue. We are unable to see any abuse of discretion in the district court's
handling of this matter and conclude that Johnson's testimony was collateral
impeachment under Federal Rule of Evidence 608(b).

       Finally, Arias argues that where the mandatory minimum sentence is increased
through a district court's finding of drug quantity, the holding of Apprendi v. New
Jersey applies. Given the circumstances presented in this case, we disagree. As a
result of Arias's prior conviction, for which the government had filed its motion
pursuant to 21 U.S.C. § 851 (1994), he was exposed to a statutory maximum sentence
of thirty years imprisonment regardless of drug quantity under 21 U.S.C. §
841(b)(1)(C). Apprendi is simply immaterial here because the district court imposed
a sentence of twenty-three years. See, e.g., United States v. Aguayo-Delgado, 220
F.3d 926, 934 (8th Cir.) (holding sentence within the statutory range authorized by §
841(b)(1)(C) without reference to drug quantity was permissible under Apprendi v.
New Jersey), cert. denied, 121 S. Ct. 600 (2000).

                                          III.

         Accordingly, we affirm the judgment and the sentence imposed by the district
court.




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A true copy.

      Attest:

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




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