                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 10-5115


UNITED STATES OF AMERICA,

                 Plaintiff - Appellee,

          v.

CARLOS TEJADA,

                 Defendant - Appellant.



Appeal from the United States District Court for the District of
South Carolina, at Charleston.      Solomon Blatt, Jr., Senior
District Judge. (2:08-cr-01155-SB-6)


Submitted:   August 25, 2011                 Decided:   September 6, 2011


Before WYNN and     DIAZ,   Circuit   Judges,     and   HAMILTON,   Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


Russell Warren Mace, III, THE MACE FIRM, Myrtle Beach, South
Carolina, for Appellant.     William N. Nettles, United States
Attorney, Peter T. Phillips, Assistant United States Attorney,
Charleston, South Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            After a jury trial, Carlos Tejada was convicted of one

count of conspiracy to possess with the intent to distribute

five kilograms or more of cocaine, in violation of 21 U.S.C.A.

§§ 841(a)(1), (b)(1)(A); 846 (West 1999 & Supp. 2011), and one

count of conspiracy to commit money laundering, in violation of

18    U.S.C.A.   §§ 1956(a)(1)(A)(i),        (a)(1)(B)(i),    1957,    2    (West

2000 & Supp. 2011).           On appeal, Tejada argues that the district

court erred by denying his motion to suppress evidence seized

from his home.        He also contends that the district court erred

by    allowing    the   Government     to    introduce   statements        of   an

unavailable co-conspirator, and by not allowing him to display

his tattoos to the jury during closing argument.                   Finding no

error, we affirm.

            We first address Tejada’s challenge to the denial of

his    motion    to   suppress    evidence   seized   from   his     apartment.

Tejada claims that the affidavit filed in support of the search

warrant was filled with inaccuracies and unreliable information

supplied by a co-conspirator.          He states that the Government was

aware    that    some    of    the   information   provided     by    the       co-

conspirator was false.           He also notes that the co-conspirator

later admitted lying to law enforcement when he gave information

implicating Tejada.



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               This court reviews the factual findings underlying a

district court’s ruling on a motion to suppress for clear error

and the district court’s legal conclusions                         de novo.      United

States    v.    Kelly,      592    F.3d   586,     589   (4th Cir.     2010),     cert.

denied, 130 S. Ct. 3374 (2010).                 When evaluating the denial of a

suppression motion, we construe the evidence in the light most

favorable to the Government, the prevailing party below.                        Id.

               We conclude that the district court did not err in

denying    Tejada’s        motion    to   suppress.          The    co-conspirator’s

statements that were used in the affidavit in support of the

warrant    were      for    the    most   part    corroborated       by   the   police

investigation.        Furthermore, to the extent the information was

inaccurate, there is no evidence that law enforcement was aware

that the statements being used in the affidavit were not true.

Even if the affidavit misrepresented Tejada’s criminal history,

the district court did not err in finding the misrepresentation

immaterial to the probable cause determination.

               We next address Tejada’s challenge to the admission of

evidence       at   his    trial.     The       Government    was    permitted       over

Tejada’s       objection      to     introduce       statements        made     by     an

unavailable co-conspirator as statements made during the course

of and in furtherance of the conspiracy.                  Tejada claims that the

evidence was insufficient to support a finding that he and the

declarant were co-conspirators.                  He also claims the statements

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were testimonial in nature and therefore inadmissible absent an

opportunity to cross-examine the declarant.

              A statement is not hearsay if it is offered against

the    defendant      and   is   a    statement    of   a   co-conspirator     made

“during the course and in furtherance of the conspiracy.”                      Fed.

R. Evid. 801(d)(2)(E).            For a statement to be admissible under

Rule 801(d)(2)(E), there “must be evidence that there was a

conspiracy involving the declarant and the nonoffering party,

and    that    the    statement      was   made   during    the    course   and   in

furtherance of the conspiracy.”                Bourjaily v. United States, 483

U.S.    171,    175     (1987)       (internal    quotation       marks   omitted).

Accordingly, when the Government shows by a preponderance of the

evidence that (i) a conspiracy existed of which the defendant

was a member, and (ii) the co-conspirator’s statement was made

in furtherance of the conspiracy, the statement is admissible.

United States v. Neal, 78 F.3d 901, 905 (4th Cir. 1996).                       This

court reviews the trial court’s admission of evidence for abuse

of discretion.         United States v. Blevins, 960 F.2d 1252, 1255

(4th Cir. 1992).

              We conclude that there was sufficient evidence showing

that the declarant and Tejada were participants in a conspiracy,

and the statements were made in furtherance of that conspiracy.

Several witnesses testified as to the declarant’s and Tejada’s

roles in the conspiracy.              To the extent that Tejada challenges

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the sufficiency of the evidence showing his and the declarant’s

participation in the conspiracy, this argument is without merit.

            The Confrontation Clause of the Sixth Amendment bars

“admission of testimonial statements of a witness who did not

appear at trial unless he was unavailable to testify, and the

defendant had had a prior opportunity for cross-examination.”

Crawford v. Washington, 541 U.S. 36, 53-54 (2004)..                         For such

evidence to be excludable under the Confrontation Clause, it

must be “testimonial,” United States v. Udeozor, 515 F.3d 260,

268 (4th Cir. 2008), and offered for the truth of the matter

asserted, Crawford, 541 U.S. at 59-60 n.9.                        The Supreme Court

indicated    in   Crawford     that       many    hearsay    exceptions     “covered

statements     that    by   their     nature       were     not    testimonial--for

example,    business    records      or    statements       in    furtherance     of   a

conspiracy.”      541   U.S.    at    56       (emphasis    added).     “We      review

alleged     Confrontation      Clause       violations      under     the   de     novo

standard of review.”        United States v. Lighty, 616 F.3d 321, 376

(4th Cir. 2010), cert. denied, 131 S. Ct. 846 (2010).

            For the reasons explained above, the district court

did not err in finding the statements represented those of a co-

conspirator made in furtherance of the conspiracy.                       It follows

that the statements were not testimonial.                   See United States v.

Sullivan, 455 F.3d 248, 258 (4th Cir. 2006).                      Consequently, the



                                           5
district court did not err in admitting the statements despite

the declarant not being available for cross-examination.

              We    next   address    Tejada’s    challenge       to   the   district

court’s   refusal      to   allow     him   to   display    his    tattoos     during

closing   argument.         During    Tejada’s    closing      argument,      counsel

wanted Tejada to roll up his sleeves and show his tattoos to the

jury in an attempt to raise questions about the credibility of

one of the Government’s main witnesses.                     The district court

sustained the Government’s objection to the display.

              Closing argument is limited to the facts in evidence.

Lighty, 616 F.3d at 361.             It is not the time to introduce facts

not already admitted into evidence.               United States v. Waldemer,

50 F.3d 1379, 1383 (4th Cir. 1995).                   When a defendant seeks to

display some physical attribute of his person to a jury for

purposes of supporting his case, the demonstration qualifies as

evidence sought to be introduced.                United States v. Williams,

461 F.3d 441, 446 (4th Cir. 2006).               We review a district court’s

evidentiary determinations for abuse of discretion.                    Id. at 445.

              In the present case, Tejada was seeking to introduce

new evidence showing the presence of prominent tattoos on his

arms   with    the     intention      of    casting    doubt   upon     a    witness’

testimony.         Instead of presenting this evidence during his case

in chief, Tejada sought to have the evidence introduced during

his closing argument, contrary to established rules of trial

                                            6
procedure.      We    find   the   district   court     did   not   abuse   its

discretion in denying Tejada the opportunity to show his tattoos

to the jury during his counsel’s closing argument.

           Accordingly, we affirm the judgment of conviction.               We

dispense     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




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