                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 06-3539
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of North Dakota.
Francisca Avila Vargas,                  *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: March 13, 2009
                                 Filed: July 6, 2009
                                  ___________

Before WOLLMAN, RILEY, and COLLOTON, Circuit Judges.
                           ___________

WOLLMAN, Circuit Judge.

       Francisca Avila Vargas was convicted of conspiracy to possess with intent to
distribute a controlled substance, in violation of 21 U.S.C. § 846; distribution of a
controlled substance, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and
engaging in a continuing criminal enterprise, in which she supervised at least five
people and distributed at least 15,000 grams of methamphetamine mixture, in
violation of 21 U.S.C. § 848(a), (b)(1), (b)(2)(A). The district court1 sentenced Vargas
to life imprisonment, the mandatory sentence for her role and the drug quantity

      1
       The Honorable Ralph R. Erickson, United States District Judge for the District
of North Dakota
involved in the continuing criminal enterprise. Id. Vargas appeals, arguing that the
evidence was insufficient to support the finding that the criminal enterprise involved
more than 15,000 grams of a methamphetamine mixture and that the district court
erred in joining her trial with that of her co-defendant, Miguel Garcia. We affirm.

                                           I.

       After Vargas and Garcia were indicted, the government moved to consolidate
their trials. Because Vargas distributed methamphetamine for resale and Garcia
redistributed the drug on behalf of Vargas, much of the evidence overlapped. Vargas
objected to joinder because a statement by Garcia could be used against her at trial and
she would not have the opportunity to cross examine Garcia. The district court
determined that there would be no violation of Vargas’s Sixth Amendment right to
confront a witness so long as Vargas’s name was redacted from the document at issue
and a cautionary jury instruction was given. The joinder motion was granted, and the
case proceeded to trial.

        During the seven-day jury trial, several of Vargas’s coconspirators testified
against her, including Andy Mata, a longtime friend of Vargas and Garcia. Mata
testified that he sold one pound of methamphetamine for Vargas in February 2004.

      Daniel McCracken testified that he met Vargas in March or April 2004 and
began selling marijuana for her. Greater profits could be reaped from the sale of
methamphetamine, however, and he later began to distribute methamphetamine for
Vargas. McCracken was a middleman and the leader of the Fargo, North Dakota,
branch of the drug ring. He worked with several dealers and his cousin, Kelly
McCracken (Kelly), who had his own distribution network.

     In the summer of 2004, Daniel McCracken moved to Vargas’s home in St. Paul,
Minnesota, after Kelly had become violent, potentially drawing the attention of law

                                          -2-
enforcement officials in Fargo. McCracken continued to manage the Fargo branch
from St. Paul, coordinating with Vargas and her couriers to ship drugs to Kelly.
McCracken estimated that he and Kelly moved sixteen pounds of methamphetamine
for Vargas, ten pounds while McCracken lived in Fargo and another six pounds after
he moved to St. Paul. McCracken also testified that he met other distributors for
Vargas, including Mark Crompton and Shane Gladeu, and that the total amount of
methamphetamine he saw Vargas deal was between twenty-five and thirty pounds. “It
could be more, wasn’t less.”

       Shane Gladeu met Vargas through his sister, who was dating Vargas’s son, in
the spring of 2004. Gladeu was addicted to methamphetamine, and he began buying
the drug from Vargas to feed his own addiction and to distribute it in the Grand Forks,
North Dakota, area. When asked for a conservative estimate of the amount of
methamphetamine Gladeu received from Vargas or her couriers, Gladeu answered
“around seven pounds, eight pounds.”

      McCracken testified that he had met Gladeu a few times. Once, at Gladeu’s
home in Crookston, McCracken saw Vargas provide Gladeu with a small amount of
methamphetamine. The men also met once in a parking lot in Fargo, where Gladeu
had two pounds of methamphetamine from Vargas, one of which he delivered to
McCracken.

        In 2003, Mark Crompton met Garcia and started buying methamphetamine from
him. Every week for six months, Crompton bought an eighth of an ounce of
methamphetamine from Garcia, using some and selling some in the Fargo-Moorhead
area. He later bought larger quantities, often selling the drug to Kathleen Matuska.
Crompton testified that Garcia had provided him with two pounds of
methamphetamine before Garcia was arrested in September 2004. Crompton also
testified that Garcia introduced him to Vargas, whom he identified as his source.
After Garcia’s arrest, Crompton received “a good two pounds” directly from Vargas.

                                         -3-
Crompton did not know the other people who were dealing for Vargas, but he had met
McCracken. McCracken testified that he was usually with Vargas when she
distributed drugs to Crompton.

      In December 2004, Vargas called Kathleen Matuska looking for Crompton, and
the two women met to look for him in the Fargo area. That night, Vargas fronted
Matuska an ounce of methamphetamine, which Matuska sold. After Matuska paid for
the ounce, Vargas fronted her a pound. By the time Matuska was arrested, she had
sold more than three pounds of methamphetamine that she received from Vargas.

      The jury found Vargas guilty of all counts. In a special interrogatory, the jury
found that the quantity involved in the continuing criminal enterprise was 15,000
grams or more and that Vargas had supervised eight coconspirators, including
McCracken, Gladeu, and Crompton. As recounted above, the district court sentenced
Vargas to life imprisonment, the statutory mandatory term for her role as a supervisor
in a continuing criminal enterprise involving at least 15,000 grams of
methamphetamine.

                                         II.

       Vargas contends that insufficient evidence supported the jury’s finding that the
criminal enterprise involved at least 15,000 grams of methamphetamine. She argues
that the jury must have relied on McCracken’s testimony to reach that amount and that
doing so resulted in double counting.2


      2
        Both Vargas and the government have briefed this as an appeal from a jury
verdict, arguing that we should view the evidence in the light most favorable to the
verdict. The district court, however, was not required to submit a drug quantity
special interrogatory to the jury because Vargas’s life sentence did not exceed the
statutory maximum prescribed for a conviction of engaging in a continuing criminal
enterprise. See United States v. Jackson, 345 F.3d 638, 647 (8th Cir. 2003)
(concluding that although the district court was not required to submit the principal
                                         -4-
       The coconspirators testified that Vargas distributed the following amounts of
methamphetamine: Mata received one pound; Gladeu received seven to eight pounds;
Crompton received two pounds from Vargas and two pounds from Garcia; Matuska
received three pounds. McCracken testified that he had observed Vargas deal twenty-
five or thirty pounds of methamphetamine:

      Q:       Now, in addition to the 16 pounds you described that you and
               Kelly moved, how much total would you estimate that you and
               Kelly moved along with the transactions that you observed with
               Cynthia, Gladeu, Crompton, and Jake?

      A:       25, 30 pounds.

McCracken’s testimony included amounts from Gladeu and Crompton. As recounted
above, McCracken had met Gladeu only three times and had observed Gladeu with
two pounds of methamphetamine from Vargas. McCracken also testified that he was
usually present when Vargas provided methamphetamine to Crompton. Accordingly,
four pounds must be subtracted to avoid double-counting.3 The total drug quantity




organizer and drug quantity special interrogatories to the jury, it did not err in doing
so); United States v. Webb, 545 F.3d 673, 677 (8th Cir. 2008) (“[A] district court may
impose a sentence based on a drug quantity determination greater than that found by
the jury so long as the sentence does not exceed the statutory maximum of the
convicted offense and the district court’s calculation is supported by sufficient
evidence.); see also 21 U.S.C. § 848(a) (setting the statutory range for the crime of
continuing criminal enterprise from twenty years to life imprisonment); § 848(b)
(mandating life imprisonment for principal administrator, organizer, or leader of
enterprise involving at least 300 times the quantity of a substance described in §
841(b)(1)(B)). The standard of review we apply is not determinative of the outcome
of this case and the evidence is sufficient to support the quantity determination.
      3
          Vargas does not challenge the two pounds that Garcia provided to Crompton.
                                          -5-
range, then, is thirty-six to forty-two pounds or 16,329.3 to 19,050.9 grams of
methamphetamine.4


            Coconspirator       Drug Quantity in      Drug Quantity in
                                    Pounds                Grams
          Mata                          1                    453.6
          McCracken                   25-30           11,339.8 - 13,607.8
          Gladeu                       7-8              3175.1 - 3628.7
          Crompton                      4                   1814.4
          Matuska                       3                   1360.8
          Subtotal                    40-46           18,143.7 - 20,865.2
          Less Amounts                 -2                   -907.2
          Observed by               (Gladeu)
          McCracken                    -2                   -907.2
                                   (Crompton)


          Total                       36-42           16,329.3 - 19,050.9


Having carefully reviewed the record, we conclude that the evidence is sufficient to
support the drug quantity determination.




      4
       Other witnesses testified regarding methamphetamine that they received from
Vargas, and law enforcement officials testified regarding amounts seized from Vargas
and Garcia. Because these amounts were less than one pound and not essential to the
finding that the continuing criminal enterprise involved more than 15,000 grams of
methamphetamine, we have not recounted their testimony in this opinion.
                                         -6-
                                          III.

       Vargas contends that the joinder of her trial with Garcia’s resulted in prejudice.
Specifically, she argues (1) that Crompton’s testimony identifying Vargas as Garcia’s
source violated her Sixth Amendment confrontation clause rights under Bruton v.
United States, 391 U.S. 123 (1968), because she had no opportunity to cross examine
Garcia and (2) that she was prejudiced when witnesses testified against Garcia with
no reference to Vargas because it affected the jury’s ability to separate the evidence
for each of the defendants.

                                           A.

       In Bruton v. United States, the Supreme Court held that the admission of a non-
testifying defendant’s statement that incriminated a co-defendant violated the latter’s
confrontation clause rights. 391 U.S. at 135-36. Bruton, however, does not preclude
the admission of statements by a coconspirator in furtherance of the conspiracy.
United States v. Spotted Elk, 548 F.3d 641, 662 (8th Cir. 2008); United States v.
Singh, 494 F.3d 653, 658-59 (8th Cir. 2007); see also United States v. Coco, 926 F.2d
759, 761 (8th Cir. 1991). Such statements are generally admissible absent
confrontation because they are not testimonial. Spotted Elk, 548 F.3d at 662; Singh,
494 F.3d at 658-59; see also Crawford v. Washington, 541 U.S. 36, 56 (2004) (“Most
of the hearsay exceptions covered statements that by their nature were not
testimonial—for example, business records or statements in furtherance of a
conspiracy.”). Under Crawford v. Washington, the confrontation clause has no
application to out-of-court non-testimonial statements. Whorton v. Bockting, 549
U.S. 406, 420 (2007); Spotted Elk, 548 F.3d at 662; see also Melendez-Diaz v. Mass.,
No. 07-591, 2009 WL 1789486, at *11 (June 25, 2009) (“Business and public records
are generally admissible absent confrontation not because they qualify under an
exception to the hearsay rules, but because . . . they are not testimonial.”). Garcia’s
statement identifying Vargas as his source was not testimonial and thus did not

                                          -7-
implicate Vargas’s Sixth Amendment confrontation clause right. We find no Bruton
error.5

                                           B.

        Vargas has failed to show that the joinder of her trial with Garcia’s resulted in
prejudice. “Misjoinder requires reversal only if it resulted in actual prejudice because
it had substantial and injurious effect or influence in determining the jury’s verdict.”
United States v. Liveoak, 377 F.3d 859, 864 (8th Cir. 2004) (quoting United States v.
Sazenski, 833 F.2d 741, 745 (8th Cir. 1987)). The evidence against Vargas was
overwhelming, and she cannot show that the testimony from four witnesses about
Garcia’s role as a drug trafficker substantially influenced the jury’s verdict. Vargas
argues that the jury could not compartmentalize the testimony related to Garcia alone,
but the jury was instructed to treat Vargas and Garcia separately and give separate
consideration to the evidence pertaining to each defendant. See United States v.
Mickelson, 378 F.3d 810, 818 (8th Cir. 2004) (“The risk of prejudice posed by joint
trials is best cured by careful and thorough jury instructions.”). We conclude that
joinder of the cases was proper and caused no substantial and injurious effect or
influence on the jury’s verdict.

      We affirm the conviction and the sentence.
                      ______________________________




      5
       Vargas does not challenge Crompton’s testimony on hearsay grounds.
Crompton’s testimony was admissible as a statement by a coconspirator during the
course and in furtherance of the conspiracy under Federal Rule of Evidence
801(d)(2)(E).
                                     -8-
