UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                     No. 99-4615

KENNETH R. HENSLEY,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Abingdon.
James P. Jones, District Judge.
(CR-98-48)

Submitted: February 29, 2000

Decided: March 30, 2000

Before WILLIAMS and TRAXLER, Circuit Judges,
and HAMILTON, Senior Circuit Judge.

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Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.

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COUNSEL

David L. Scyphers, SCYPHERS & AUSTIN, P.C., Abingdon, Vir-
ginia, for Appellant. Robert P. Crouch, Jr., United States Attorney,
Rick A. Mountcastle, Assistant United States Attorney, Abingdon,
Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

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OPINION

PER CURIAM:

A jury convicted Kenneth R. Hensley of being a felon in posses-
sion of firearms and ammunition in violation of 18 U.S.C.A.
§§ 922(g), 924(a)(2), 924(c) (West Supp. 1999) (count 1), conspiring
with William G. Roark to knowingly make materially false statements
to the Bureau of Alcohol, Tobacco, and Firearms ("BATF") in viola-
tion of 18 U.S.C.A. § 371 (West 1966 & Supp. 1999) (count 2), and
knowingly making a false material statement to the BATF in violation
of 18 U.S.C.A. § 1001 (West Supp. 1999) (count 3). The court sen-
tenced Hensley to a seventy-month prison term on count 1 and con-
current sixty-months terms of imprisonment on counts 2 and 3, to be
followed by a total three years of supervised release.

On appeal, Hensley challenges his convictions and sentences for
conspiracy and making a false statement (counts 2 and 3), on the
grounds that the admission of a nontestifying codefendant's state-
ments violated his Sixth Amendment right to confront the witnesses
against him, that the district court erred in admitting a summary of
events prepared by the government, and that the evidence was insuffi-
cient to support his convictions. Hensley does not challenge his con-
viction and seventy-month sentence for being a felon in possession of
firearms and ammunition. We affirm in part, vacate in part, and
remand.

I.

Taking the evidence in the light most favorable to the government,
see Glasser v. United States, 315 U.S. 60, 80 (1942), testimony at trial
disclosed that on November 8, 1997, officers of the Bristol, Virginia,
police department arrested Hensley for a traffic violation. Before
impounding Hensley's truck, officers searched it and discovered a
loaded 9mm gun under some clothes in a cardboard box behind the

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driver's seat. Because the gun was not stolen, officers unloaded the
gun and left it in the truck. When officers later released Hensley, he
picked up his truck with the gun and ammunition in it.

Because Hensley had been convicted of several felonies, the Bristol
police officers contacted BATF agents. Agent Hall testified that he
executed a search warrant for Hensley's home on November 12,
1997. During the search, Hensley took the BATF agents to his desk
where he had the loaded 9mm gun in the manufacturer's box with an
extra clip and two boxes of ammunition. Hensley told BATF agents
that he did not know the 9mm gun was in his truck but that when he
picked the truck up after his release, he found the gun, took it home,
carried it and the ammunition inside, and reloaded the gun. Hall also
testified that on November 25, 1997, Hensley admitted for the second
time carrying the 9mm gun and ammunition from his truck to his
home. Hall testified that Hensley told BATF agents that the gun
belonged to Roark, who must have left it in the truck after he bor-
rowed the truck.

On December 3, Agent Hall and an investigator from the Virginia
Department of Motor Vehicles ("Bralley") interviewed Roark. Bralley
and Hall each testified that Roark told them that he owned the gun
and ammunition, that he bought the gun at a flea market, that the gun
had a shiny finish, that he forgot to retrieve the gun and ammunition
after borrowing Hensley's truck, and that Hensley called him to see
if he had left the gun in the truck. Hall indicated to Roark that Roark's
story was not true, and Hall left the interview room to retrieve the pis-
tol taken from Hensley. Hall testified that he showed Roark the gun
seized during the search of Hensley's home and that Roark denied
that it was his, stating that the gun he owned was shinier than the one
Hall showed him during the interview. Both Bralley and Hall testified
that Roark then changed his story and told the officers Hensley had
gotten him to lie in order to provide Hensley with an alibi for the gun.
When asked why he first stated that the gun was his, Roark told the
agents that he had met with Hensley at Hensley's attorney's office in
mid-November, where Hensley described the gun and details about its
discovery. Hall quoted Roark to the jury as follows:

          Hensley told him the gun was found--when they found it it
          was loaded, the clip was loaded, the pistol had a silver fin-

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            ish, told him what kind it was, and provided a copy of the
            search warrant to Mr. Hensley which had a description of
            the pistol in the search warrant, said that the, to say that the
            pistol was in the original manufacturer's box, and that it had
            been placed in a box with some clothes in it behind the driv-
            er's seat in the extend cab portion of the truck.

             And Mr. Roark also stated that he asked Mr. Hensley
            where he had gotten the pistol at, and Mr. Hensley said he
            bought it about two years ago from a subject at the flea mar-
            ket, the Banner Star Flea Market in Abingdon.

J.A. 137.

Hall testified that before Roark appeared before the grand jury on
December 11, Roark told him (as he first said in the December 3
interview) that he would tell the grand jury the gun and ammunition
belonged to him. Hall testified that Roark told him that he had talked
to Hensley on December 5 but would not disclose what they dis-
cussed. Roark did not testify at trial.

On these facts, the jury convicted Hensley on all counts. The court
then sentenced Hensley to a seventy-month prison term on the felon-
in-possession conviction (count 1), and to concurrent sixty-month
prison terms on the conspiracy and making false statement convic-
tions (counts 2 and 3), to be followed by three years of supervised
release.1 Hensley filed a timely appeal.

II.

Hensley argues on appeal that the district court erred by admitting
Roark's statements to investigators that implicated Hensley in the
conspiracy in violation of the Confrontation Clause. Because Hensley
_________________________________________________________________
1 Hensley moved for a stay of his sentence pending appeal under Fed.
R. Crim. P. 38(b). The district court granted the motion, finding that
"there is a substantial question that the admission of the codefendant's
confession was plain error[] [p]articularly as to the conspiracy and false
statement charges against [Hensley because] it was the principal evi-
dence of guilt."

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did not object to the admission of Roark's statements during trial, our
review is for plain error. See United States v. Olano, 507 U.S. 725,
732-37 (1993).

The Confrontation Clause of the Sixth Amendment guarantees the
right of a criminal defendant "to be confronted with the witnesses
against him." U.S. Const. amend. VI. The right of cross examination
is included in the accused's confrontation rights. See Bruton v. United
States, 391 U.S. 123, 127-28 (1968). In Bruton, the Supreme Court
held that a defendant's Sixth Amendment right to cross-examine wit-
nesses against him is violated when the defendant is inculpated by an
out-of-court statement by a nontestifying codefendant that is admitted
at their joint trial.2 See id. at 126. "A Bruton problem exists only to
the extent that the codefendant's statement in question, on its face,
implicates the defendant." United States v. Locklear, 24 F.3d 641, 646
(4th Cir. 1994).

Roark's statements to Hall and Bralley--that he fabricated a story
with Hensley about who owned the gun and that he lied in order to
protect Hensley--do, on their face, implicate Hensley in the conspir-
acy to make false statements and the substantive offense of making
false statements to a BATF agent. See id.; United States v. Brooks,
957 F.2d 1138, 1146 (4th Cir. 1992) (finding that Bruton applies only
where nontestifying codefendant's statement is "facially incriminat-
ing"). Because Roark did not testify at his joint trial with Hensley, his
"powerfully incriminating extrajudicial statements" could not be
tested by cross-examination. See Bruton, 291 U.S. at 135-36. There-
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2 This court has held, however, that Bruton does not apply if the non-
testifying codefendant's statement is admissible as a nonhearsay state-
ment under Fed. R. Evid. 801(d)(2)(E). See United States v. Shores, 33
F.3d 438, 442 (4th Cir. 1994). We assume, without deciding, that inde-
pendent evidence of a conspiracy is required. See United States v. Neal,
78 F.3d 901, 905 (4th Cir. 1996); Fed. R. Evid. 801 advisory committee
note. Absent Roark's statements admitted through Hall's and Bralley's
testimony, there is no independent evidence to corroborate the existence
of a conspiracy. See Neal, 78 F.3d at 905. Additionally, the confession
by Roark was obviously not a statement in furtherance of the conspiracy.
Because Roark's statements were not admissible under Rule
801(d)(2)(E), the rule in Bruton applies. See Shores, 33 F.3d at 442.

                    5
fore, a violation of Hensley's Sixth Amendment rights occurred. See
id. at 126.

The admission of Roark's statements against Hensley therefore was
error, and the error was plain. See Olano, 507 U.S. at 732-37. Because
the statements were improperly admitted and resulted in Hensley's
convictions for conspiracy to make false statements and making a
false statement, we find that the admission of the statements was not
harmless error. See Idaho v. Wright, 497 U.S. 805, 823 (1990) (apply-
ing harmless error analysis to Confrontation Clause violations); see
also Neder v. United States, 527 U.S. 1, ___, 119 S. Ct. 1827, 1837
(1999) (stating that "test for determining whether a constitutional
error is harmless . . . is whether it appears`beyond a reasonable doubt
that the error complained of did not contribute to the verdict
obtained'") (quoting Chapman v. California , 386 U.S. 18, 24 (1967)).
Olano's third prong therefore is satisfied--that is, Hensley's substan-
tial rights were affected by the admission of Roark's statements.
Finally, we exercise our discretion to notice the error because the for-
feited error "`seriously affect[s] the fairness, integrity or public repu-
tation of judicial proceedings.'" Olano, 507 U.S. at 732. We therefore
vacate Hensley's convictions and sentences for conspiracy and mak-
ing a false statement and remand to the district court for further proceed-
ings.3 We affirm the district court's judgment in all other respects.

III.

Accordingly, we affirm in part, vacate in part, and remand. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED
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3 In light of our holding, we express no opinion regarding Hensley's
remaining claims on appeal.

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