UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                        No. 99-4451

WARREN WILLIAM JENKINS, JR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, Chief District Judge.
(CR-99-2)

Submitted: February 22, 2000

Decided: March 22, 2000

Before WILKINS, LUTTIG, and TRAXLER, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Michael S. Arif, MARTIN, ARIF, PETROVICH & WALSH, Spring-
field, Virginia, for Appellant. Helen F. Fahey, United States Attorney,
William E. Fitzpatrick, Assistant United States Attorney, Alexandria,
Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION

PER CURIAM:

Warren William Jenkins, Jr., appeals his conviction and sentence
for conspiracy to distribute cocaine base in violation of 21 U.S.C.
§ 846 (1994). Finding no reversible error, we affirm.

Jenkins raises three issues on appeal, asserting that: (1) the Govern-
ment failed to comply with the district court's discovery order by fail-
ing to disclose co-conspirator statements to Jenkins prior to or during
trial; (2) there was insufficient evidence of Jenkins' participation in
the conspiracy to permit the admission of co-conspirator statements
pursuant to Fed. R. Evid. 801(d)(2)(E); and (3) there was insufficient
evidence to prove that Jenkins conspired to distribute crack cocaine.

Because Jenkins failed to object to the Government's alleged fail-
ure to comply with the district court's discovery order, we review for
plain error. See Fed. R. Crim. P. 52(b); United States v. Olano, 507
U.S. 725, 732-37 (1993). Specifically, Jenkins contends that the Gov-
ernment failed to provide him with Jencks* material pursuant to 18
U.S.C. § 3500 (1994). Contrary to Jenkins' assertion, the Government
contends that it participated in an extensive discovery meeting with
trial counsel and provided full "open file" discovery. Because Jenkins
fails to support his claim with any reference to the record or the prior
dealings between the parties, we cannot conclude that plain error
exists. Accordingly, we find that Jenkins has not established that the
Government failed to comply with the discovery order.

We also find that the district court did not err in admitting the testi-
mony of Jenkins' co-conspirators pursuant to Fed. R. Evid.
801(d)(2)(E). Rule 801(d)(2)(E) provides that statements by a co-
conspirator, made during the course of and in furtherance of the con-
spiracy, are not hearsay. Accordingly, when the government shows by
a preponderance of the evidence that a conspiracy existed of which
the defendant was a member, and that the co-conspirators' statements
were made in furtherance of the conspiracy, the statements are admis-
_________________________________________________________________

*See Jencks v. United States, 353 U.S. 657 (1957).

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sible. See United States v. Neal, 78 F.3d 901, 904-05 (4th Cir. 1996);
United States v. Blevins, 960 F.2d 1252, 1255 (4th Cir. 1992).

Jenkins contends that there was insufficient independent evidence
to establish his participation in the conspiracy. Factual findings as to
Jenkins' participation in the conspiracy are subject to a clearly errone-
ous standard of review, and may only be overturned on appeal for an
abuse of discretion. See Bourjaily v. United States, 483 U.S. 171, 181
(1987); United States v. Blevins, 960 F.2d 1252, 1255 (4th Cir. 1992).
Jenkins claims that the only independent evidence of the conspiracy
consists of the testimony of the two police detectives, Detective
Moore and Detective Copeland. He contends that this evidence was
not sufficient for the district court to conclude that a conspiracy
existed.

This argument evinces a misunderstanding of Fed. R. Evid.
801(d)(2)(E) and the relevant case law. To admit a co conspirator's
out-of-court statement under Rule 801(d)(2)(E), the Government must
demonstrate the existence of the conspiracy by evidence extrinsic to
the hearsay statements. See Glasser v. United States, 315 U.S. 60, 74-
75 (1942); United States v. Stroupe, 538 F.2d 1063, 1065 (4th Cir.
1976). The bulk of the evidence presented at trial consisted of in-court
testimony of Jenkins' co-conspirators regarding their personal
involvement in drug transactions with Jenkins. Because this evidence
was not hearsay and was extrinsic to the hearsay statements in ques-
tion, it can be used to establish Jenkins' participation in the conspir-
acy. We find that the testimony of these co-conspirators was
extensive, detailed, and more than adequate to establish that Jenkins
participated in the conspiracy. Once Jenkins' participation in the con-
spiracy was established, the district court did not err in admitting cer-
tain hearsay statements of his co-conspirators pursuant to Fed. R.
Evid. 801(d)(2)(E).

We also find that the evidence, when viewed in the light most
favorable to the Government, was sufficient for a rational trier of fact
to have found beyond a reasonable doubt that Jenkins conspired to
distribute crack cocaine. See United States v. Burgos, 94 F.3d 849,
862 (4th Cir. 1996) (en banc). Accordingly, we affirm Jenkins' con-
viction and sentence. We dispense with oral argument because the

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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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