United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-3211
                        ___________________________

                              United States of America

                         lllllllllllllllllllllPlaintiff - Appellee

                                            v.

                                 Robert L. Mayfield

                       lllllllllllllllllllllDefendant - Appellant
                                       ____________

                     Appeal from United States District Court
                      for the District of Nebraska - Lincoln
                                  ____________

                          Submitted: September 27, 2018
                            Filed: November 28, 2018
                                  ____________

Before LOKEN, GRUENDER, and ERICKSON, Circuit Judges.
                          ____________

LOKEN, Circuit Judge.

       A jury convicted Robert L. Mayfield, a California resident, of conspiracy to
distribute and possess with intent to distribute methamphetamine in the District of
Nebraska in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846. The district
court1 imposed the mandatory minimum sentence of 240 months’ imprisonment. At
trial, three cooperating witnesses testified that their methamphetamine supplier,
Zachary Love, purchased meth from the “Cali Boys,” brothers “Rob” Mayfield and
Anthony “Duga” Harris. Mayfield appeals, arguing that out-of-court statements Love
made to the cooperators, and recorded calls that Harris made from jail to “Rob” at a
California telephone number, were inadmissible hearsay and violated his rights under
the Confrontation Clause. He also argues the evidence was insufficient to convict and
the district court erred in imposing an obstruction-of-justice sentencing enhancement.
We affirm.

                         I. The Out-of-Court Statements.

      The trial testimony established that Zachary Love was released from jail in the
spring of 2014 and soon took up with friends and fellow meth addicts, including
Kenneth Johnson, Angelo Ybarra, and Marlon Rupert. The four men grew up in
Lincoln, Nebraska, had known each other since school days, and each had used and
sold methamphetamine for many years.

        The government’s first witness was Kenneth Johnson. He testified that in
August of 2014, he twice drove Love to an apartment on Knox Street, where they
purchased meth from a man Love identified as “Rob.” Both times, Rob got in the
back seat with Love, who bought two ounces of meth and later sold one ounce to
Johnson. Johnson identified Rob in court as defendant Robert Mayfield. Johnson
testified that Love met “Rob” at least three other times and returned from each
meeting with two to four ounces of meth. Love told Johnson that his suppliers were
Rob and “D,” brothers from Sacramento who brought meth to Lincoln on Amtrak
trains.


      1
      The Honorable John M. Gerrard, United States District Judge for the District
of Nebraska.

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       The government’s second witness was Angelo Ybarra. He testified that Love
was his meth supplier from July or August until December 2014. Ybarra went with
Love to a Knox Street apartment twice that fall. Both times, Ybarra gave Love
money; Love entered the apartment alone and returned with two ounces of meth. A
week after the second purchase, Ybarra and Love went to a different apartment, where
Ybarra saw Love purchase meth from a dealer in the doorway fifteen yards away.
Several weeks later, Ybarra and Love picked up the same dealer and they drove to a
nearby home. Love and the dealer entered the home, and Love returned with a
quarter-pound of meth. Ybarra testified that Love identified the dealer as “Rob,” and
said Rob brought the meth from California by train. Ybarra also witnessed another
user, Tim, purchase an ounce of meth from the same dealer. Ybarra identified the
dealer in court as defendant Robert Mayfield.

       The third witness was Marlon Rupert. He testified that Love supplied him meth
in the summer of 2014. On two occasions, Rupert saw Love with a quarter-pound of
meth. Love said his meth sources were the “Cali boys,” brothers Rob and “Duga” and
their cousin Joe. Rupert never accompanied Love to purchase meth, and never spoke
with any of the “Cali boys” while in Lincoln. However, months later, while
incarcerated at CCA Leavenworth, Rupert became close with another inmate, Robert
Mayfield. Upon learning that Mayfield came from California and was awaiting trial
on methamphetamine distribution charges in Lincoln, Nebraska, Rupert “put two and
two” together and asked Mayfield if he was one of the “Cali boys” who supplied
Love. Rupert testified that, although hesitant, Mayfield admitted to having a
relationship with Love. Mayfield also told Rupert that he and “Duga,” Anthony
Harris, were brothers.

      Government law enforcement witnesses testified that, in February 2015, Harris
was arrested and a warrant search of his apartment on Knox Street uncovered
methamphetamine, distribution paraphernalia, and firearms. At the close of the
government’s case, after the district court overruled Mayfield’s objections, the

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government played tapes of a series of phone calls Harris placed from jail to a
Sacramento telephone number after his arrest. In these calls, Harris spoke to man he
identified as “Rob.” Harris told Rob that the police had found “like a teener,” or 1/16
of an ounce, at Harris’s apartment. During a later call, Harris told Rob the police had
in fact found “everything,” including “the banger.” Rob counseled Harris not to speak
to anyone or worry about the charges, and promised to collect a debt in order to raise
funds for a lawyer.

      Before the start of trial, Mayfield objected that Harris’s statements during these
recorded calls should be excluded as inadmissible hearsay and a violation of his
Confrontation Clause rights. During trial, defense counsel made timely continuing
objections that Love’s out-of-court statements as related by the three cooperating
witnesses were inadmissible hearsay. The government contended that all these
statements were admissible under the hearsay exception in Rule 801(d)(2)(E) of the
Federal Rules of Evidence because they were made during and in furtherance of the
charged conspiracy.

       A. Hearsay Issues. Codifying a hearsay exception that the Supreme Court
described as “steeped in our jurisprudence” in Bourjaily v. United States, 

, 183 (1987), Rule 801(d)(2)(E) provides that a statement offered against an
opposing party that “was made by the party’s coconspirator during and in furtherance
of the conspiracy” is not hearsay. Before admitting a coconspirator’s statement under
Rule 801(d)(2)(E), the government must establish by a preponderance of the evidence,
and the district court must find, “that there was a conspiracy involving the declarant
and the nonoffering party, and the statement was made during the course and in
furtherance of the conspiracy.” 

(quotation omitted).

      In United States v. Bell, 

(8th Cir. 1978), we established a
procedure to address these issues during a criminal trial, which the district court
properly followed in this case. After Mayfield timely objected to Love’s out-of-court

                                          -4-
statements, the district court provisionally admitted the statements and advised the
parties, on the record at a side-bar conference, that the statements were admitted
subject to defendant’s objection, that the government was required to prove by a
preponderance of the evidence that the statements were made during the course and
in furtherance of the conspiracy, that the court will make an explicit determination as
to admissibility at the conclusion of the evidence, and that, if the statements are not
admitted, the court will declare a mistrial unless a cautionary instruction would
suffice. See 

The court adopted the same procedure regarding Harris’s
statements in the recorded phone calls before the start of trial.

       The district court made its final determination as to admissibility near the end
of the government’s case but before the recorded calls were played for the jury. The
court found that all out-of-court statements by Love and Harris were admissible under
the hearsay exception in Rule 801(d)(2)(E) because the government established, by
a preponderance of the evidence, that “A, a conspiracy existed; B, that the defendant
and the declarant were members of the conspiracy; and, C, that the declaration[s were]
made during the course and in furtherance of the conspiracy.” Consistent with
controlling precedents, the court ruled that it “may take into consideration the contents
of the statements, although the government must prov[id]e independent evidence
outside the statements themselves to establish the existence of the conspiracy.” See

; United States v. Ragland, 

, 713 (8th Cir.
2009); United States v. Roach, 

, 409 (8th Cir. 1998), cert. denied, 

(1999).

      In addition to the statements themselves, the court found that independent
evidence, “particularly the testimony of Kenneth Lee Johnson,” established that Love,
Harris, Mayfield, and the three cooperating witnesses were part of a conspiracy still
in existence when Harris was arrested and physical evidence was seized at his
apartment, and that the challenged statements were made in furtherance of the
conspiracy because they “either involved the planning or organizing of the conspiracy,

                                          -5-
the direction of the conspiracy’s continued operations or efforts to protect and conceal
the existence of the conspiracy.”

       On appeal, Mayfield argues the district court erred in finding that Love and
Harris were Mayfield’s co-conspirators, and that their out-of-court statements were
made in the course of and in furtherance of the conspiracy. Initially, we note but do
not resolve a standard-of-review issue. Many prior cases have said, without analysis,
that we review the admission of out-of-court statements under Rule 801(d)(2)(E) “for
abuse of discretion.” See, e.g., 

. At first blush, this is a
logical application of the general rule that “[w]e review the evidentiary rulings of a
district court for abuse of discretion.” United States v. Jordan, 

, 932 (8th
Cir. 2001). But admissibility under Rule 801(d)(2)(E) must be based on district court
findings. Not surprisingly, therefore, the Supreme Court concluded its analysis in
Bourjaily, “We have no reason to believe that the District Court’s factfinding on this
point [whether declarant was involved in a conspiracy with defendant] was clearly

(emphasis added). Surely, the proper standard is to
review the district court’s Rule 801(d)(2)(E) factfinding for clear error, and then
review the ultimate decision to admit or exclude the statement for abuse of discretion
(for example, the court has discretion to exclude a statement that is not hearsay under
Rule 801(d)(2)(E) because it is cumulative or unfairly prejudicial, and discretion to
admit a statement that is hearsay under Rule 801(d)(2)(E) for other reasons). The
standard of review is important but does not affect our decision in this case.

       Regarding the out-of-court statements of meth supplier Love, Mayfield argues
there was no independent evidence Mayfield and Love entered into a conspiracy. We
disagree. Both Johnson and Ybarra testified that Mayfield sold methamphetamine to
Love in their presence. This and the circumstantial independent evidence that
Mayfield and Harris were the “Cali boys” was more than sufficient to establish the
existence of a conspiracy involving Love, Mayfield, Harris, and the cooperating
witnesses by a preponderance of the evidence. Mayfield further argues that Love’s

                                          -6-
statements were not in furtherance of the conspiracy but rather were the type of
“merely informative statements and statements made simply to impress the listener”
which are “not generally in furtherance of the conspiracy.” 

(quotation omitted). However, Love’s statements were far more than boasting. They
were “statements that discuss[ed] the supply source for the illegal drugs or identif[ied]
a coconspirator’s role in the conspiracy,” which “are considered statements made in
furtherance of the conspiracy.” 

        Regarding Harris’s statements on the recorded jail calls, Mayfield first argues
the government failed to prove he was the recipient of the calls from Harris. This
argument was not properly preserved -- in raising the issue of the recorded calls before
trial, defense counsel said, “obviously, Mr. Mayfield’s statements are getting in, but
Mr. Harris’s responses, they’re hearsay.” But in any event, the contention is without
merit. There was independent evidence Harris and Mayfield were participants in the
conspiracy. Therefore, if Harris’s comments were made in furtherance of the
conspiracy, their admissibility did not depend on whether the co-conspirator who
received the calls was Mayfield. Of course, in defending the charge, Mayfield could
-- and did -- argue the government failed to prove he was the “Rob” to whom Harris
was speaking.

       Mayfield further argues that Harris’s statements were not made in furtherance
of the conspiracy. The district court acknowledged in its preliminary ruling that “it
is possible to interpret the conversations between Harris and his family as simply
providing reassurance and assistance to a family member who had gotten in legal
trouble.” But after hearing the government’s entire case, the court found that the calls
including Harris’s statements concerned “efforts to protect and conceal the existence
of the conspiracy.” Reviewing the phone call conversations together with the
government’s independent evidence, particularly the circumstances surrounding
Harris’s arrest, we conclude the district court’s finding is well-supported. “Efforts to
conceal a conspiracy actually further that conspiracy, as do statements of reassurance

                                          -7-
which serve to maintain trust and cohesiveness, or inform each other of the current
status of the conspiracy.” United States v. Tremusini, 

, 555 (8th Cir.
2012) (cleaned up).

      For these reasons, we affirm the district court’s ruling that the out-of-court
statements by Love and Harris were admissible under Rule 801(d)(2)(E).

        B. Confrontation Clause Issues. Harris argues that the statements by Love
and Harris were admitted in violation of the Confrontation Clause because neither
testified at trial, depriving Mayfield of his right to cross-examine adverse witnesses.
We review an alleged violation of the Confrontation Clause de novo. United States
v. Dale, 

, 955 (8th Cir. 2010), cert. denied, 

(2011).
Mayfield raised a Confrontation Clause objection to Harris’s statements in the
recorded jail calls before trial. We doubt he preserved this issue in challenging Love’s
out-of-court statements during trial, but we need not decide whether only plain error
review is appropriate because the contention is without merit. See United States v.
Johnson, 

, 504 (8th Cir. 2012) (standard of review).

       The Confrontation Clause bars the “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.” Davis v. Washington,

, 821 (2006), quoting Crawford v. Washington, 

, 53-54
(2004). Neither the Supreme Court nor this court has comprehensively defined the
universe of “testimonial” statements. See United States v. Wright, 

, 823
(8th Cir. 2008), cert. denied, 

(2009). However, prior decisions
interpreting Crawford and Davis make clear that the out-of-court statements here at
issue were not testimonial.

      First, Mayfield argues that Harris’s statements made during the jailhouse
telephone calls were testimonial because they were recorded while Harris was

                                          -8-
detained. However, in United States v. LeBeau, we held that recorded jail calls are
not testimonial if “the primary purpose of the calls was to further the drug conspiracy,
not to create a record for a criminal prosecution.” 

, 981 (8th Cir. 2017),
and cases cited. Second, Mayfield argues that Love’s statements “concerning whether
Mayfield was involved in a drug conspiracy are testimonial.” However, “co-
conspirators’ statements made in furtherance of a conspiracy and admitted under Rule
801(d)(2)(E) are generally non-testimonial and, therefore, do not violate the
Confrontation Clause as interpreted [in Crawford].” United States v. Singh, 

, 658 (8th Cir. 2007); see United States v. Vargas, 

, 1009 (8th Cir.
2009). Mayfield cites no contrary authority.

                          II. Sufficiency of the Evidence.

       Mayfield next argues that, even if the out-of-court statements were properly
admitted, the evidence was insufficient to convict him of participation in the charged
methamphetamine distribution conspiracy, which required proof of (1) the existence
of an agreement among two or more people to distribute methamphetamine, (2) the
defendant’s knowledge of the agreement, and (3) that the defendant knowingly joined
and participated in the agreement. United States v. Whirlwind Soldier, 

,
869 (8th Cir. 2007), cert. denied, 

(2008). We review the sufficiency
of the evidence to sustain a conviction de novo, viewing the evidence in the light most
favorable to the government, accepting all reasonable inferences that support the
government, and resolving conflicts in the government’s favor. United States v.
Morrissey, 

, 549 (8th Cir. 2018). We will reverse “only if no reasonable
jury could have found the defendant guilty beyond a reasonable doubt.” 

      At trial, the government relied on the testimony of the cooperating witnesses;
Harris’s recorded calls; the testimony of police officers describing Harris’s arrest, the
evidence seized at his apartment, and the Lincoln drug market; information extracted

                                          -9-
from Harris’s cell phone; and Amtrak records detailing travel under the name “Robert
Mayfield” from California to Lincoln during 2014 and 2015. On appeal, Mayfield
emphasizes that Love and Harris did not testify, repeatedly challenges the credibility
of the cooperating witnesses, and argues that the lack of “direct” evidence he
distributed methamphetamine means the government failed to prove his guilt beyond
a reasonable doubt. Without question, guilt beyond a reasonable doubt was the
governing standard the jury applied in finding Mayfield guilty. It is the jury that hears
and must weigh the evidence, including the credibility of witnesses who are
cooperating with the government. We again emphasize that the “jury’s credibility
determinations are well-nigh unreviewable because the jury is in the best position to
assess the credibility of witnesses and resolve inconsistent testimony.” United States
v. Hodge, 

, 618 (8th Cir.), cert. denied, 

(2010). We have
“repeatedly upheld jury verdicts based solely on the testimony of conspirators and
cooperating witnesses.” United States v. Delacruz, 

, 1006 (8th Cir.
2017) (quotation omitted). Here, that testimony was corroborated by circumstantial
evidence linking Mayfield to a well-established conspiracy to distribute
methamphetamine. The evidence was more than sufficient.

                               III. A Sentencing Issue.

       Mayfield was subject to a mandatory minimum 240-month sentence because
he had a prior felony drug conviction. See 21 U.S.C. §§ 841(b)(1)(A), 851(a)(1). At
sentencing, the government introduced a report by a Saline County Corrections
Officer that Mayfield, while incarcerated after trial but prior to sentencing, made a
throat-slashing gesture to Marlon Rupert while passing him in the jail hallway.
Mayfield testified that he did not threaten Rupert, that Rupert repeatedly taunted
Mayfield at the jail, and that the officer lied in his report. The district court credited
the officer’s report, found Mayfield’s testimony not credible, and imposed a two-level
enhancement for obstruction of justice. See U.S.S.G. § 3C1.1. The court stated that,
because it was imposing a mandatory minimum sentence, “I will be imposing the

                                          -10-
same sentence regardless of my rulings on either of these enhancements” (the other
enhancement urged by the government was not imposed).

       On appeal, Mayfield argues the district court clearly erred in imposing the
obstruction of justice enhancement. See United States v. Mohamed, 

,
761 (8th Cir. 2014) (standard of review). However, as the district court expressly
stated that it would have imposed the same sentence regardless, any error in imposing
the enhancement was harmless. See United States v. McGee, 

, 737 (8th
Cir. 2018). Mayfield argues the error was not harmless because Congress may amend
the 240-month mandatory minimum sentence, in which case the obstruction
enhancement may prejudice Mayfield’s resentencing. That hypothesis is far too
speculative to warrant disregarding the district court’s clear statement that it intended
to impose the same sentence without regard to the enhancement.

      The judgment of the district court is affirmed.
                     ______________________________




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