                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                           Sept. 28, 2009
                            No. 08-15498                 THOMAS K. KAHN
                        Non-Argument Calendar                 CLERK
                      ________________________

                D. C. Docket No. 06-00472-CR-T-17-TGW

UNITED STATES OF AMERICA,


                                                              Plaintiff-Appellee,

                                 versus

MIGUEL A. RENDON,
a.k.a. Coco,

                                                        Defendant-Appellant.


                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                    _________________________

                          (September 28, 2009)

Before BLACK, MARCUS and ANDERSON, Circuit Judges.

PER CURIAM:
      Miguel A. Rendon appeals his conviction for conspiracy to distribute

cocaine, methamphetamine, and marijuana, in violation of 21 U.S.C. §§ 841(a)(1),

841(b)(1)(A), and 846. Rendon asserts the district court abused its discretion when

it (1) admitted out-of-court statements by co-conspirators under Federal Rule of

Evidence 801(d)(2)(E) because those statements were not in furtherance of the

conspiracy, and (2) admitted testimony regarding a suicidal gesture Rendon made

during an interview with law enforcement because its probative value was

substantially outweighed by the danger of unfair prejudice. We address each issue

in turn, and affirm Rendon’s conviction.

                                           I.

      Out-of-court statements offered in evidence to prove the truth of the matter

asserted are generally inadmissible as hearsay. Fed. R. Evid. 801(c), 802. An out-

of-court statement, however, is not hearsay if it is offered against a party and is “a

statement by a co-conspirator of a party during the course and in furtherance of the

conspiracy.” Fed. R. Evid. 801(d)(2)(E). As a prerequisite to the admission of a

co-conspirator’s statement, the Government, as the proponent, “must prove by a

preponderance of the evidence that (1) a conspiracy existed, (2) the conspiracy

included the declarant and the defendant against whom the statement is offered,

and (3) the statement was made during the course of and in furtherance of the



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conspiracy.” United States v. Underwood, 446 F.3d 1340, 1345–46 (11th Cir.

2006). We apply “a liberal standard in determining whether a statement is made in

furtherance of a conspiracy. The statement need not be necessary to the

conspiracy, but must only further the interests of the conspiracy in some way.”

United States v. Miles, 290 F.3d 1341, 1351 (11th Cir. 2002) (internal citation and

quotation marks omitted). “[I]f the statement could have been intended to affect

future dealings between the parties, then the statement is in furtherance of the

conspiracy.” United States v. Caraza, 843 F.2d 432, 436 (11th Cir. 1988) (internal

quotation marks omitted).

      In general, the out-of-court statements made by co-conspirators Jose Ibarra

and Pedro Medina-Villegas to other co-conspirators communicated Rendon’s role

in the conspiracy. These communications helped maintain good working relations

among the co-conspirators and therefore furthered the conspiracy. Id. For

example, Medina-Villegas’s statement to his daughter about Rendon’s drug

customers could have reassured her of Rendon’s role in the conspiracy, and his

statements to his son about a loan from Rendon, or to his daughter about Rendon’s

demand for money for an erroneously delivered package, could have provided

guidance about how those co-conspirators should deal with Rendon, reducing the

risk of a confrontation that would derail the conspiracy. Likewise, Medina-



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Villegas’s statements to co-conspirator Jose Luis Sandoval-Ochoa about the

amount of marijuana Medina-Villegas received and unloaded at Rendon’s property

could have been a tool to encourage Sandoval-Ochoa to take a larger role in the

conspiracy (which he eventually did).

        Finally, although not made to maintain good working relations among the

co-conspirators, Medina-Villegas’s statement to a buyer about where the marijuana

was grown furthered the conspiracy by helping influence the buyer to pay a higher

price. Given the liberal standard for determining when a statement furthers the

conspiracy, we conclude the district court did not err1 by admitting the statements

because they maintained the functioning of the conspiracy. Miles, 290 F.3d at

1351.

                                               II.

        Under the Federal Rules of Evidence, all relevant evidence is admissible.

Fed. R. Evid. 402. Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Fed. R. Evid.

401. Nonetheless, relevant evidence may be excluded if “its probative value is


        1
          The parties dispute the appropriate standard of review as to the challenged evidentiary
rulings in this case. Because we conclude there was no error as to either issue on appeal, the
standard of review is not outcome determinative, and we need not determine whether we review
the district court’s rulings for abuse of discretion or plain error.

                                                4
substantially outweighed by the danger of unfair prejudice.” Fed. R. Evid. 403.

“The term ‘unfair prejudice,’ as to a criminal defendant, speaks to the capacity of

some concededly relevant evidence to lure the factfinder into declaring guilt on a

ground different from proof specific to the offense charged.” Old Chief v. United

States, 117 S. Ct. 644, 650 (1997).

      Rule 403, however, is “an extraordinary remedy which the district court

should invoke sparingly, and [t]he balance . . . should be struck in favor of

admissibility.” United States v. Tinoco, 304 F.3d 1088, 1120 (11th Cir. 2002)

(internal quotation marks omitted; alternation in original). “In reviewing issues

under Rule 403, we look at the evidence in a light most favorable to its admission,

maximizing its probative value and minimizing its undue prejudicial impact.” Id.

(internal quotation marks omitted). “The major function of Rule 403 is limited to

excluding matter of scant or cumulative probative force, dragged in by the heels for

the sake of its prejudicial effect.” United States v. Cross, 928 F.2d 1030, 1048

(11th Cir. 1991) (internal quotation marks omitted).

      In this case, the testimony regarding Rendon’s suicidal gesture to a law

enforcement officer had probative value because the gesture suggested Rendon

wanted to avoid explaining incriminating evidence, which indicated he did not

have an exculpatory explanation. This probative value was not substantially



                                           5
outweighed by the danger of unfair prejudice, see Fed. R. Evid. 403, and thus the

district court did not err in admitting the testimony regarding Rendon’s suicidal

gesture. Accordingly, we affirm Rendon’s conviction.

      AFFIRMED.




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