United States Court of Appeals
            For the Eighth Circuit
        ___________________________

                No. 15-1236
        ___________________________

             United States of America

       lllllllllllllllllllll Plaintiff - Appellee

                          v.

                   Andre Taylor

      lllllllllllllllllllll Defendant - Appellant
         ___________________________

                No. 15-2269
        ___________________________

             United States of America

       lllllllllllllllllllll Plaintiff - Appellee

                          v.

                   Victor Vickers

      lllllllllllllllllllll Defendant - Appellant
                      ____________

    Appeals from United States District Court
for the Western District of Missouri - Kansas City
                 ____________
                            Submitted: January 13, 2016
                              Filed: February 24, 2016
                                   ____________

Before MURPHY, SMITH, and BENTON, Circuit Judges.
                           ____________

MURPHY, Circuit Judge.

      A jury convicted Andre Taylor of two counts charging distribution of cocaine
and marijuana and two counts based on a murder for hire conspiracy. The jury also
convicted Victor Vickers of conspiracy to distribute marijuana. Taylor and Vickers
each appeal. We affirm their convictions but remand Vickers' case for resentencing.

                                           I.

       Of the twenty defendants charged in the indictment, fifteen entered guilty pleas,
two are fugitives, and three, including Taylor and Vickers, proceeded to trial. Taylor
and Vickers were each charged with one count of conspiracy to distribute 1,000
kilograms or more of marijuana or 5 kilograms or more of cocaine. See 21 U.S.C.
§§ 841(a)–(b), 846. Taylor was also charged with one count of aiding and abetting the
distribution of cocaine, one count of conspiracy to commit murder for hire, and one
count of possession of a machine gun in furtherance of a crime of violence.1 See 

18 U.S.C. §§ 958, 924(c)(1)(B)(ii). The evidence at trial established the
following record relating to these counts.




      1
        Taylor was also indicted on an additional count of aiding and abetting the
distribution of cocaine which was dismissed on the government's motion.

                                          -2-
                                            A.

       Robert Taylor pled guilty to the drug distribution conspiracy and then testified.
He explained that he had introduced Andre Taylor to Charlie "Mike" Williams, a drug
dealer in Mexico who later became Andre Taylor's supplier.2 Williams had agreed
to supply large quantities of marijuana and cocaine to Taylor who planned to sell
them in Kansas City and then forward payment to Williams. Taylor hired a team of
drivers to transport the drugs to Kansas City in trailers filled with inoperative "dummy"
equipment which concealed large loads of drugs hidden beneath the floorboards.
Witnesses testified that up to 27 kilograms of cocaine and 800 pounds of marijuana were
sent in each shipment. Driver Ruben Machiche testified that he had personally
transported thousands of pounds of marijuana for Taylor. Allen Sanchez, who had
supervised the drivers, testified that he had overseen the delivery of over 100 kilograms
of cocaine and between 8,000 and 9,000 pounds of marijuana to Kansas City. According
to Sanchez, he sent over $9 million to Mexico on Taylor's behalf.

       Taylor ran his Kansas City operations out of three houses on Hardesty Avenue.
There, he stored large quantities of drugs and various "tools of the trade" such as
firearms, ammunition, digital scales, plastic bags, and surveillance cameras. Police
executed a search warrant on the houses, and at trial multiple coconspirators testified that
they had purchased marijuana and cocaine from Taylor and had seen large quantities of
drugs in the houses. The government also submitted recordings obtained from wiretaps
on Taylor's cell phones. It sought to authenticate several of those recordings through the
testimony of FBI Task Force Officer (TFO) Mark Corbin, who identified Taylor's voice.
The district court admitted the wiretap evidence over Taylor's objection that the FBI
witness could not identify the voices of persons he had never met such as his.

      Vickers' alleged role in the drug conspiracy was more limited than Taylor's.
Robert Taylor testified that Vickers had asked if he could get involved with his Mexican

       2
           Williams is one of the two defendants in this case who are fugitives.

                                            -3-
drug business, but Vickers was turned down. Testimony at trial showed, however, that
Vickers had purchased several pounds of marijuana from multiple coconspirators,
including Rahmon Allen and Darryl Taylor. The latter was Andre Taylor's nephew and
one of his main customers, and he testified that all of the marijuana he sold to Vickers
had come from Andre Taylor. Other witnesses also testified that Vickers had sold
smaller amounts of marijuana to his own customers, and the government submitted a
wiretap recording in which Vickers could be heard negotiating a marijuana price with
an unidentified third party. There was, however, no evidence that Vickers ever bought
or sold cocaine.

                                            B.

       TFO Corbin testified that two government confidential informants (CIs) had made
nine controlled purchases of cocaine from Taylor, one of which formed the basis for the
aiding and abetting charge against him. Coconspirator Daniel Howard testified that he
had unwittingly served as a middleman for that controlled buy after an unidentified CI
had solicited drugs from him. Howard had called Taylor and asked him to deliver the
drugs to an address where the CI and he were waiting. When Taylor arrived, Howard
took money from the CI, met Taylor in his car, exchanged the money for drugs, and gave
the drugs to the CI.

       Corbin, who had supervised that controlled buy, testified that his surveillance team
had seen Howard come out of the house where the CI was waiting, get into a car, and
then go back inside. He also testified that after the CI contacted him, he field tested the
purchase and the results were presumptively positive for cocaine. The amount of money
he gave the CI was also consistent with the size of the purchase. Because Corbin's
testimony about what the surveillance team had seen exceeded the scope of his personal
knowledge, however, Taylor moved for a mistrial. The court denied that motion but
struck Corbin's testimony about the CI's actions.




                                           -4-
                                           C.

       Witnesses testified that Andre Taylor's apartment was burglarized on New Years
Eve 2011 and that large amounts of cash and drugs were stolen. Robert Taylor testified
that Andre Taylor believed that coconspirator Billy Brown was responsible for the
burglary and offered $10,000 to anyone who would "knock Billy off." Robert Clark, one
of Taylor's customers, similarly testified that Taylor had asked his brother Antwan Clark
to lure Brown to a fake drug deal so that Taylor could "fuck him up" and get his money
back. The government also introduced evidence of a phone call between Taylor and
codefendant Eric Union, who had also been charged with the murder for hire conspiracy.
During that phone call, Taylor told Union that it was "necessary to kill [Brown]."

        Robert Taylor further testified that Andre Taylor had at one point tried to shoot
Brown in south Kansas City, but he had escaped. The government then called Kansas
City police officer Kenneth Woodward, who testified that Brown had come to the police
station and told him that someone had shot at him while he was driving. Woodward
testified that he had examined Brown's vehicle and that it appeared the back windows
had been shot out. Taylor objected, arguing that Woodward's testimony about what
Brown had said violated his right to confront adverse witnesses. The court overruled that
objection and admitted Woodward's testimony.

       The government later called Kenneth Vaughn Cooper, who had pled guilty to the
murder for hire conspiracy. Cooper testified that Eric Union had put him in touch with
Taylor, who had a job for him. Cooper testified that Taylor had asked him to kill Brown,
but he had agreed only to burglarize Brown's house in exchange for a portion of the cash
or drugs inside. The government also introduced evidence of a phone call between
Cooper and Taylor during which Cooper agreed to retrieve a "hammer" (apparently a
gun) from one of Taylor's houses on Hardesty. After intercepting that call, the police
followed Cooper from his home in Kansas to Taylor's house and arrested him as he
departed, recovering a machine gun from his vehicle. While Cooper acknowledged that
he had retrieved a gun from Taylor's house, he maintained that he had only intended to

                                          -5-
use it to burglarize Brown. The government then called Kevin Blum, who testified that
Cooper had told him in jail that he had been arrested for possessing a firearm which he
had intended to use to kill someone.

                                            D.

       The jury convicted Taylor on all counts and Vickers on a lesser included offense
of conspiracy to distribute less than 100 kilograms of marijuana. Vickers' presentence
investigation report indicated that he, his cousin Garron Briggs, and a third unidentified
man were suspected of murdering a man named Edward Ewing while attempting to
recover stolen cocaine and cash. At sentencing the government introduced a video
interview of Ewing's girlfriend, who claimed she had witnessed this murder, and she
identified Vickers as one of the men who had attacked Ewing. One of the investigating
officers then testified that a large sum of money had been stolen from Briggs and that
Ewing may have been accused as a "scapegoat" for the theft.

       Based on this record, the district court found that the Ewing murder was "drug-
related activity" and applied the murder cross reference in the drug trafficking guideline.
That cross reference provides that if a victim is murdered, the court should apply the
guideline for first or second degree murder if doing so results in a greater offense level.
U.S.S.G. § 2D1.1(d)(1). The district court applied guideline § 2A1.1 for first degree
murder in sentencing Vickers, increasing his base offense level from 12 to 43, and it
sentenced him to 60 months in prison, the maximum sentence available. See 21 U.S.C.
§ 841(b).

       Taylor and Vickers appeal, each challenging the sufficiency of the evidence
supporting his conviction. Taylor also appeals the district court's denial of his motion
for a mistrial and the court's evidentiary rulings, specifically focusing on the 24 wiretap
recordings as well as Officer Woodward's testimony. Taylor further argues that
cumulative errors deprived him of his right to a fair trial. Vickers also appeals his


                                           -6-
sentence, arguing that the sentencing court committed procedural error in applying the
murder cross reference.

                                            II.

                                            A.

      We review a challenge to the sufficiency of the evidence de novo, viewing the
evidence in the light most favorable to the verdict, accepting all reasonable inferences
supporting it, and affirming "if there is any interpretation of the evidence that could lead
a reasonable-minded jury to find the defendant guilty beyond a reasonable doubt."
United States v. Scofield, 

, 585 (8th Cir. 2006). We conclude that the
evidence was sufficient to support the convictions of Taylor and Vickers for the
following reasons.

       The government presented sufficient evidence to support Taylor's conviction of
conspiracy to distribute over 1,000 kilograms of marijuana or over 5 kilograms of
cocaine. "To establish that a defendant conspired to distribute drugs under 21 U.S.C.
§ 846, the government must prove: (1) that there was a conspiracy, i.e., an agreement to
distribute the drugs; (2) that the defendant knew of the conspiracy; and (3) that the
defendant intentionally joined the conspiracy." United States v. Conway, 

,
587 (8th Cir. 2014). Here, multiple coconspirators testified that Taylor had agreed to
buy large quantities of marijuana and cocaine from Charlie Williams, to ship those drugs
to Kansas City using a team of drivers, and to distribute the drugs in Kansas City and
send money back to Williams. The government also introduced wiretap recordings of
phone calls in which Taylor discussed his drug related activities, including his business
with Williams, as well as photographs of drugs and "tools of the trade" found by police
while searching his houses. This evidence would allow a jury to find that there was a
conspiracy between Taylor and others to import and distribute marijuana and cocaine in
Kansas City in the amounts charged, that Taylor knew about that conspiracy, and that
Taylor intentionally joined it.

                                            -7-
       Taylor suggests that the coconspirators' testimony is not credible because those
witnesses had a "motive to testify and something to gain." We will defer to the jury's
assessment of witness credibility, however, and a conspiracy conviction may be based
solely on coconspirator testimony. See United States v. Whirlwind Soldier, 

, 870 (8th Cir. 2007). Taylor also asserts that the district court erred in admitting 24
wiretap recordings and argues that without those recordings there would have been
insufficient evidence to sustain his conviction. As discussed below, the district court did
not err in admitting the wiretap recordings, and there was extensive coconspirator
testimony supporting Taylor's conviction for conspiracy to distribute marijuana or
cocaine. See 

also presented sufficient evidence to support Vickers' conviction
for conspiracy to distribute less than 100 kilograms of marijuana. The evidence at trial
showed that Vickers had asked Robert Taylor if he could participate in his Mexican drug
connection, demonstrating that he knew about that operation. The evidence also showed
that Vickers had on multiple occasions purchased resale quantities of marijuana from
coconspirators Rahmon Allen and Daryl Taylor, at least some of which came from Andre
Taylor. Testimony and wiretap evidence further showed that Vickers had sold smaller
amounts of marijuana to his own customers. On this record, a reasonable juror could
find that Vickers had intentionally joined the conspiracy in which his suppliers were
participating. See 

–89.

       Vickers argues that Darryl Taylor's testimony is entitled to little weight because
it was lacking in detail and was uncorroborated by other evidence. Credibility
determinations are "virtually unreviewable on appeal," however, and "in reviewing a
defendant's challenge to the sufficiency of the evidence, witness testimony does not need
to be corroborated." United States v. Keys, 

, 519–20 (8th Cir. 2013)
(internal quotation marks and alterations omitted). Vickers also argues that the evidence
showed at most that he had participated in isolated drug transactions, not that he had
joined a conspiracy. Evidence that he engaged in multiple purchases of resale quantities
of marijuana was, however, "sufficient in and of itself to make a submissible case of a

                                           -8-
conspiracy to distribute." 

. We conclude that sufficient
evidence supported Vickers' conviction.

        The government also presented sufficient evidence to support Taylor's conviction
for aiding and abetting the distribution of cocaine. That offense has three elements:
"(1) the defendant associated [himself] with the unlawful venture; (2) the defendant
participated in it as something [he] wished to bring about; and (3) the defendant sought
by [his] actions to make it succeed." United States v. Ellefson, 

, 863 (8th
Cir. 2005). Here, coconspirator Daniel Howard testified that he had brokered a drug deal
between Taylor and an unidentified government CI in which Taylor had supplied him
with drugs, intending that he then sell them to the CI. TFO Corbin testified that a field
test of the CI's purchase was presumptively positive for cocaine and that the amount of
money he had given the CI was consistent with the amount of cocaine purchased. This
evidence could allow a reasonable jury to find that Taylor had aided and abetted the sale
of cocaine to the CI.

        Taylor contends that Howard's testimony was insufficient to support his aiding
and abetting conviction because it was not corroborated by other evidence. As
previously discussed, however, corroborating evidence is not necessary in a review of
the sufficiency of the evidence. 

. Taylor also asserts that Corbin's
testimony did not prove that the substance exchanged was cocaine because Corbin "may
or may not be the person who sent the item [the CI purchased] to the lab." To the extent
that Taylor is arguing that the government was required to submit a chemical test to
prove that the item purchased was cocaine, we disagree since "[i]t is well established in
this circuit that the identity of a controlled substance can be proven beyond a reasonable
doubt by circumstantial evidence and opinion testimony." United States v. Cole, 

, 927 (8th Cir. 2008). We conclude that sufficient evidence supported Taylor's
aiding and abetting conviction.

      Finally, the government presented sufficient evidence to support Taylor's
convictions of conspiracy to commit murder for hire and possession of a machine gun

                                           -9-
in furtherance of a crime of violence. To convict for conspiracy to commit murder for
hire under 18 U.S.C. § 1958, the government must prove that the defendant "(1) travelled
or caused another to travel in interstate commerce, (2) with the intent that a murder be
committed, (3) for hire." United States v. Delpit, 

, 1149 (8th Cir. 1996).
Here, Taylor caused Cooper to cross the state line between Kansas and Missouri by
directing him to retrieve a firearm from his house on Hardesty. In addition, Taylor asked
multiple people to help him kill Brown, demonstrating that Taylor intended that Brown
be murdered. Finally, Taylor offered to pay $10,000 to whoever agreed to commit that
murder, and he promised Cooper cash and drugs in exchange for his assistance in killing
Brown. On this record, a jury could reasonably find that Taylor had conspired with
Cooper to commit murder for hire.

       Taylor argues that the government failed to prove that Cooper had agreed to kill
Brown, emphasizing that he testified that he intended only to burglarize Brown's house.
We will defer to the jury's assessment of Cooper's credibility, however, and there was
sufficient circumstantial evidence to allow the jury to infer that Cooper had agreed to
commit murder. See, e.g., 

. The evidence showed that Taylor
wanted Brown killed, that he asked Cooper to kill Brown, and that Cooper obtained a
machine gun to take with him to Brown's house. On this record, the jury could
reasonably infer that Cooper intended to use that gun to murder Brown, particularly in
light of Kevin Blum's testimony confirming that intent. See United States v. Wells, 

, 1104 (8th Cir. 2011). We therefore conclude that sufficient evidence
supported Taylor's conviction for conspiracy to commit murder for hire. We also
conclude that sufficient evidence supported Taylor's conviction for possession of a
machine gun in furtherance of a crime of violence, because the record shows that Taylor
possessed the machine gun retrieved by Cooper in furtherance of the conspiracy. See 18
U.S.C. § 924(c)(1).




                                          -10-
                                             B.

      We next address Taylor's arguments that the district court erred in denying his
motion for a mistrial and in admitting 24 wiretap recordings and Officer Woodward's
testimony, as well as his cumulative error argument. None provides a basis for reversal.

        We review a district court's ruling on a motion for mistrial for an abuse of
discretion. See, e.g., United States v. Espinosa, 

, 428 (8th Cir. 2009).
Taylor argues that the district court abused its discretion by denying his motion for
mistrial after TFO Corbin testified about details of a controlled buy he personally knew
nothing about. Even though the trial court has "broad discretion to grant or deny a
motion for mistrial," the admission of a "prejudicial statement is normally cured by
striking the testimony and instructing the jury to disregard the remark." 

district court did strike the improper testimony, and Taylor does not explain why this
failed to cure any prejudice. We conclude that the district court did not abuse its
discretion in denying Taylor's motion for a mistrial.

       We also review a district court's evidentiary rulings for an abuse of discretion,
disregarding errors that do not affect a party's substantial rights. See, e.g., United States
v. Beckman, 

, 477 (8th Cir. 2015). Taylor argues that the district court
abused its discretion by permitting TFO Corbin to identify his voice on 24 wiretap
recordings because Corbin had never spoken with Taylor in person. A witness may offer
"[a]n opinion identifying a person's voice . . . based on hearing the voice at any time
under circumstances that connect it with the alleged speaker." Fed. R. Evid. 901. Here,
the record showed that several of the recorded phone calls were on a phone number that
had been linked to Taylor, and Taylor identified himself during at least one of these calls
which indicates that he participated in it. See United States v. Pruitt, 

, 155
(8th Cir. 1983). Further, a "telephone conversation may be shown to have emanated
from a particular person by virtue of its disclosing knowledge of facts known peculiarly
to him." United States v. Garrison, 

, 1093 (8th Cir. 1999). Here, many
of the recordings included details of Taylor's drug activities and those of other

                                            -11-
coconspirators. On this record, we conclude that there was a sufficient basis on which
Corbin could identify Taylor's voice and that the district court did not abuse its discretion
by admitting these recordings.

       Taylor also asserts that the district court violated his right to confront adverse
witnesses by admitting Officer Woodward's testimony that Billy Brown reported that he
had been shot at. We review Confrontation Clause challenges de novo. 

. The Confrontation Clause bars admission of a witness's testimonial hearsay
statements unless the witness is unavailable and the defendant has had a prior
opportunity to cross examine him. See United States v. Wright, 

, 1170
(8th Cir. 2014). We need not decide whether the admission of Woodward's testimony
violated Taylor's right to confrontation, however, because any error in admitting that
testimony would have been harmless beyond a reasonable doubt. See United States v.
Holmes, 

, 844 (8th Cir. 2010).

       "Evidence erroneously admitted in violation of the Confrontation Clause is
harmless beyond a reasonable doubt as long as the remaining evidence is
overwhelming." 

challenged testimony was relevant only to Taylor's intent
to have Brown murdered, and the government provided overwhelming independent
evidence of that intent. That additional evidence included testimony from multiple
witnesses showing that Taylor sought assistance in killing Brown, as well as a wiretap
recording in which Taylor stated that it was "necessary to kill [Brown]." Further, the
government submitted evidence indicating that Cooper had agreed to murder Brown for
hire, including phone calls in which Taylor asked him to kill Brown and testimony
showing that Cooper had later obtained a machine gun from Taylor's house. On this
record, we conclude that overwhelming evidence independent of Woodward's testimony
established that Taylor had conspired with Cooper to have Brown murdered for hire. See

Any error in admitting that testimony was therefore harmless beyond a
reasonable doubt.




                                            -12-
       Taylor finally argues that cumulative errors deprived him of his right to a fair trial.
"We may reverse where the case as a whole presents an image of unfairness that has
resulted in the deprivation of a defendant's constitutional rights, even though none of the
claimed errors is itself sufficient to require reversal." United States v. Samples, 

, 887 (8th Cir. 2006). On this record, any error that the district court may have
committed was harmless. We affirm Taylor's convictions.

                                             III.

       We finally address Vickers' argument that the district court erred in applying
the murder cross reference in § 2D1.1(d)(1) of the sentencing guidelines for his alleged
involvement in the murder of Edward Ewing. "We review de novo the district court's
application of the Guidelines, and we review for clear error the district court's factual
findings." United States v. Patrie, 

, 1000 (8th Cir. 2015). The guideline
applicable to drug trafficking includes a cross reference providing that if a victim is
murdered, courts should apply the applicable murder guideline in sentencing the
defendant. See U.S.S.G. § 2D1.1(d)(1). Here, that cross reference will only be
applicable if the Ewing murder is relevant to Vickers' offense of conviction under
guideline § 1B1.3.3 See 

We conclude that the district court erred by
applying the murder cross reference because the Ewing murder would not be relevant
conduct under § 1B1.3.

      Subsection (a)(1) of § 1B1.3 specifies that relevant conduct includes all acts "that
occurred during the commission of the offense of conviction, in preparation for that
offense, or in the course of attempting to avoid detection or responsibility for that
offense." U.S.S.G. § 1B1.3(a)(1). In this case, there was no evidence that the Ewing
murder occurred during, in preparation for, or in the course of attempting to avoid


       3
       Although § 1B1.3 does not apply to cross references if the guidelines specify
otherwise, the drug trafficking guideline does not disclaim its applicability. See, e.g.,
United States v. Williams, 

, 772 (11th Cir. 2005).

                                            -13-
detection for the marijuana conspiracy of which Vickers was convicted. Even if the
murder was "drug-related activity" as the district court found, the government alleges
that it arose from the theft of cocaine, not marijuana. In addition, there was no evidence
that either of Vickers' alleged accomplices in the Ewing murder were connected to the
marijuana conspiracy. Based on this lack of evidence, we conclude that the district court
erred to the extent that it found that the Ewing murder was relevant conduct under
subsection (a)(1). See, e.g., United States v. Ewing, 

, 417 (8th Cir. 2011).

       The Ewing murder still could be relevant conduct under subsection (a)(2) of
§ 1B1.3, however. That subsection provides that relevant conduct also includes all acts
that were "part of the same course of conduct or common scheme or plan as the offense
of conviction." U.S.S.G. § 1B1.3(a)(2). This definition, however, "applies only to
offenses for which [U.S.S.G.] § 3D1.2(d) would require grouping of multiple counts."

(internal quotation marks omitted). Section 3D1.2(d) of the
guidelines requires multiple counts to be grouped for sentencing purposes where the
offense level is determined by the aggregate harm caused or if "the offense behavior is
ongoing or continuous in nature." U.S.S.G. § 3D1.2(d). It further provides a list of
offenses that are expressly included in and excluded from grouping. See 

Ewing murder is not relevant conduct under subsection (a)(2) because even if it was part
of the same course of conduct as the marijuana conspiracy, § 3D1.2(d) provides that
murder cannot be grouped with other crimes. 

appears to argue that only the crime of conviction, not the
relevant conduct offense, must be capable of grouping for subsection (a)(2) to apply,
citing our court's decision in United States v. Jackson, 

(8th Cir. 2015).
Jackson did not address that issue, however, and we reject the concept. Our court has
previously recognized that subsection (a)(2) applies if the offense of conviction and the
relevant conduct offense would have been grouped together had the defendant also been
convicted of the latter offense. See United States v. Cole, 

, 658–59 (8th Cir.
2008). As the Cole court explained, "[a] defendant need not be charged with or


                                          -14-
convicted of the [relevant] conduct as long as it could form the basis for a count that
would be grouped with the offense of conviction." 

We conclude based on
this language that the proper focus under (a)(2) is whether both the offense of conviction
and the relevant conduct offense would be grouped under § 3D1.2(d). Notably, nearly
all of the circuit courts to consider this question have reached the same conclusion. See
United States v. Horton, 

, 478 (4th Cir. 2012) (collecting cases). The
Ewing murder is therefore not relevant conduct under (a)(2) because it cannot be
grouped with Vickers' offense of conviction, and we conclude that the district court erred
in applying the murder cross reference when sentencing him. We therefore vacate his
sentence and remand his case for resentencing.

                                           IV.

      For these reasons we affirm the convictions of Taylor and Vickers, but we
vacate Vickers' sentence and remand his case for resentencing consistent with this
opinion.

                        ______________________________




                                          -15-