                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-3743
                         ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                              Modesto Alfredo Torrez

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                      for the District of North Dakota - Fargo
                                   ____________

                            Submitted: March 15, 2019
                               Filed: May 31, 2019
                                  ____________

Before GRUENDER, BENTON, and GRASZ, Circuit Judges.
                         ____________

GRASZ, Circuit Judge.

       Modesto Torrez appeals his conviction for murder in furtherance of a drug
trafficking conspiracy and other related charges, challenging several of the district
court’s1 evidentiary rulings as well as one juror substitution at trial. We affirm.

      1
      The Honorable Ralph R. Erickson, Circuit Judge, United States Court of
Appeals for the Eighth Circuit, sitting by designation at the time of judgment, was a
                                   I. Background

        In 2016, a grand jury indicted Torrez and several alleged coconspirators,
charging Torrez in four of the counts: (1) conspiracy to possess with intent to
distribute and conspiracy to distribute 500 grams or more of a mixture and substance
containing methamphetamine; (2) murder in furtherance of a drug trafficking
conspiracy; (3) causing death by use of a firearm during a drug trafficking crime; and
(4) obstruction of justice. All of the other alleged coconspirators named in the
indictment pled guilty to at least one count of the indictment. Only Torrez proceeded
to trial, which began in late September 2017.

      According to evidence introduced at trial, the investigation into Torrez began
in March 2016 at a Flying J Travel Center in Grand Forks, North Dakota. Police
responded to an emergency call at the Flying J, where they found Austin Forsman
dead in the front seat of a car, shot in the face. Two people who had arrived after the
shooting told police to talk to Aaron Morado. He was one of Torrez’s dealers, and
he routinely sold methamphetamines to Forsman. In March 2016, a dispute
developed between Morado and Forsman because Morado failed to timely supply
meth that Forsman had purchased in advance. While the dispute between the two
men did not turn violent, one of Torrez’s associates ultimately shot Forsman at the
Flying J and then drove Morado to meet up with Torrez and Lorie Ortiz.

       The investigation into this shooting also helped confirm Torrez’s role in an
ongoing drug investigation. In late 2015, police received a tip that a person on
probation in North Dakota had been selling meth in Grand Forks. A probation search
of the house where that person was staying revealed meth, and he later admitted he
obtained the meth from Ryan Franklin. In turn, Franklin told investigators that Torrez


United States District Judge for the District of North Dakota during the trial in this
matter.

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had arranged his meth supply, coordinating two trips to Minnesota where Franklin
obtained five pounds and six pounds of meth, respectively.

       After a five-day trial, a jury found Torrez guilty on three counts and guilty of
aiding and abetting a fourth count (death caused by use of a firearm during a drug
trafficking crime). The district court sentenced Torrez to life imprisonment, and he
timely appealed.

                                     II. Analysis

       Torrez raises five arguments on appeal. First, he argues that evidence of his
prior conviction and supervised release status was improperly admitted. Second, he
argues the district court violated his Confrontation Clause rights when admitting a
laboratory report and related testimony. Third, he argues Lorie Ortiz was not a co-
conspirator and that her statements were inadmissible. Fourth, he argues Ryan
Franklin’s testimony about being motivated to cooperate by someone else’s
cooperation violated the rule on not admitting guilty plea negotiations. Finally, he
argues the district court erred by substituting a juror with the alternate juror.

A.    Prior Conviction Evidence

       Torrez’s challenge to evidence of his prior conviction and other alleged
wrongdoings is unpersuasive because the testimony at issue satisfies Fed. R. Evid.
404(b). “Evidence of a crime, wrong, or other act is not admissible to prove a
person’s character in order to show that on a particular occasion the person acted in
accordance with the character.” Fed. R. Evid. 404(b)(1). “This evidence may be
admissible for another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”
Id. 404(b)(2). Because Torrez raises these objections for the first time on appeal, we
review for plain error. See United States v. Lee, 374 F.3d 637, 649 (8th Cir. 2004).

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      Three statements are at issue on appeal. First, Franklin testified that he started
dealing drugs again because of a debt he owed to Torrez from an older drug
transaction. Second, Franklin’s girlfriend, Sarah Landowski, testified that Franklin
had told her he “had gotten a good opportunity from somebody that just got out of
prison,” referring to Torrez. Third, Sammy Torrez testified that he worked with
Franklin on meth deals because his brother Torrez was at a halfway house in Fargo
and could not participate directly.

       Assuming that any of these references to Torrez’s past involvement with drugs
triggered Fed. R. Evid. 404(b)(1), they were permissible under Fed. R. Evid.
404(b)(2). The first two statements only clarify Torrez’s motive for working with
Franklin. The third statement concerns Torrez’s motive for involving Sammy2 in the
relevant drug transactions. Thus, we see no plain error here in the district court’s
decision to admit the evidence.

B.     Confrontation Clause

        Any violation of Torrez’s Confrontation Clause rights is not plain error because
it did not affect his substantial rights.3 “In all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const.
amend. VI. The “witnesses” in this right are any person who bears testimony against
a defendant. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 (2009). When a
drug analysis report is offered at trial, the defendant has a right to confront the analyst

      2
          We use Sammy’s first name to distinguish him from his brother.
      3
       We do not address the parties’ dispute about whether Torrez’s counsel
knowingly and voluntarily waived his Confrontation Clause rights by not objecting
because even if we found that forfeiture occurred rather than waiver, see United
States v. Olano, 507 U.S. 725, 733 (1993), Torrez cannot satisfy more than the first
two components of plain error review. See United States v. Morrissey, 895 F.3d 541,
554 (8th Cir. 2018).

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who wrote the report. Id. at 311; Bullcoming v. New Mexico, 564 U.S. 647, 662
(2011). Torrez now objects to the admission of a drug analysis report without the
analyst’s testimony. Because he raises this issue for the first time on appeal, we
review the decision to admit the evidence for plain error. See Lee, 374 F.3d at 649.
“Under plain error review, there must be [1] an error [2] that is plain [3] which affects
substantial rights.” Id. The lab report at issue only confirmed about 410 grams of
meth, while the jury found Torrez guilty of a conspiracy involving 500 grams or more
of meth, meaning the jury must have found other evidence persuasive. The most
relevant other evidence would appear to be the numerous witnesses who testified to
meth transactions with Torrez, including the multiple pounds4 of meth he helped
Franklin acquire. The jury must have believed at least one of the other witnesses to
convict Torrez of a conspiracy involving such a large quantity of meth. Because the
jury’s believing other witnesses was both necessary and sufficient to obtain Torrez’s
convictions, admitting the lab report (or testimony about it) could not affect Torrez’s
substantial rights. Thus, we hold no plain error occurred in the admission of the lab
report and related testimony.

C.    Co-conspirator Statements

       The evidence of Lorie Ortiz’s involvement in the drug trafficking conspiracy
was sufficient to admit her out-of-court statements. In order to admit Ortiz’s
statements under Fed. R. Evid. 801(d)(2)(E), the Government needed to show: “(1)
that a conspiracy existed; (2) that the defendant and the declarant were members of
the conspiracy; and (3) that the declaration was made during the course and in
furtherance of the conspiracy.” United States v. King, 351 F.3d 859, 865 (8th Cir.
2003) (quoting United States v. Beckman, 222 F.3d 512, 522 (8th Cir. 2000)). We
review the district court’s decision to admit the evidence for abuse of discretion,


      4
        One pound is approximately 450 grams, which exceeds the amount of meth
in the lab report.

                                          -5-
although we arguably review for clear error the district court’s factual findings on
whether there is sufficient evidence for a jury to find that Ortiz was a co-conspirator.
See United States v. Mayfield, 909 F.3d 956, 961 (8th Cir. 2018).

       As in Mayfield, we need not resolve the standard of review issue to resolve this
case because we see no error here. Ortiz’s out-of-court statement at issue occurred
on the night of Forsman’s murder when, before she and Torrez went to meet up with
others, she called her ex-boyfriend and asked him to come join them “for her
protection” and to bring his gun. Evidence at trial showed Ortiz was often with
Torrez for his drug dealing, she was with Torrez the night of Forsman’s murder, and
she also helped destroy phones involved in the murder. Even if she was only an
accessory after the fact to Forsman’s murder, as Torrez argues, the evidence of her
involvement in the murder is still relevant to her state of mind regarding the drug
conspiracy. See United States v. James, 564 F.3d 960, 963 (8th Cir. 2009) (noting
that other bad acts are relevant to the state of mind of an alleged co-conspirator who
uses a mere presence defense). Her request to her ex-boyfriend would also be in
furtherance of the drug trafficking conspiracy because she wanted protection while
helping Torrez with his dealers and their customers. On this record, the district
court’s finding that Ortiz was a co-conspirator was neither an abuse of discretion nor
clear error.

D.    Guilty Plea Negotiations

       Torrez’s allegation that the district court admitted evidence of guilty plea
negotiations is unpersuasive and may involve invited error. Again, we review
evidentiary rulings for abuse of discretion. See United States v. Watson, 895 F.3d
589, 594 (8th Cir. 2018). However, invited errors are generally unreviewable. See
United States v. Campbell, 764 F.3d 874, 878 (8th Cir. 2014). After the district court
ruled Franklin could not testify that Torrez’s initial cooperation motivated him to
cooperate, Torrez’s counsel agreed to a leading question about whether someone’s

                                          -6-
cooperation motivated Franklin to cooperate. Even if counsel only meant to agree to
the leading format of the question rather than the question itself, we are not convinced
the question was errant. Like the district court, we see no implication of Torrez’s
cooperation from the vague reference to someone else’s cooperation in this record.
Thus, we hold no error occurred here.

E.    Juror Substitution

       The argument about substituting jurors also fails because of invited error.
Torrez’s counsel agreed to swap the juror at issue with the alternate juror. Thus, the
invited error doctrine precludes our review.

                                   III. Conclusion

      For the foregoing reasons, we affirm the judgment of the district court.
                      ______________________________




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