Unpublished Disposition, 919 F.2d 146 (9th Cir. 1990)

MEMORANDUM^** 

Francisco Jiminez-Perez ("Perez") appeals his conviction, following a jury trial, for conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 846. Perez contends the district court erred by admitting into evidence a co-conspirator's out of court statements under Fed.R.Evid. 801(d) (2) (E), and asserts that this admission violated his sixth amendment right to confront witnesses. Perez also challenges the invocation by his co-conspirators of their fifth amendment privilege against self-incrimination after having already pled guilty. We affirm.

DISCUSSION

I. Admission of Guzman's Out of Court Statements

Perez contends that the district court erred by admitting into evidence under Fed.R.Evid. 801(d) (2) (E) two out of court statements made by Frank Gonzalez Guzman, a co-conspirator, to DEA Special Agent James Baker. Federal Rule of Evidence 801(d) (2) (E) provides that a statement is not hearsay if it is "a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy." Before a statement may be admitted, however, it must be shown: "(1) that the declaration be in furtherance of the conspiracy; (2) that the declaration be made during the course of the conspiracy; and (3) that there is independent proof of the existence of the conspiracy and of the connection of the declarant and the defendant with it." United States v. Perez, 658 F.2d 654, 658 (9th Cir. 1981) (citation omitted).

Perez maintains that the out of court statements by co-conspirator Guzman were not made in furtherance of the conspiracy. We review a district court's determination that statements are admissible under Fed.R.Evid. 801(d) (2) (E) because made in furtherance of a conspiracy under the clearly erroneous standard. United States v. Yarbrough, 852 F.2d 1522, 1535 (9th Cir.), cert. denied, 488 U.S. 866 (1988).

We have previously determined that "statements made to keep a conspirator abreast of a co-conspirator's activities, or to induce continued participation in a conspiracy, or to allay the fears of a co-conspirator are in furtherance of a conspiracy." United States v. Layton, 720 F.2d 548, 557 (9th Cir. 1983), cert. denied, 465 U.S. 1069 (1984). Under this framework, we hold the admission into evidence of both out of court statements by the district court was not clearly erroneous. The first statement, made in the course of a drug sale when Baker noticed another male, later identified as Perez, conducting counter-surveillance, falls squarely within the "to allay the fears of a co-conspirator" and "keep a conspirator abreast of a co-conspirator's activities" language of Layton. Baker testified that upon seeing the man, he feared for his safety, and asked Guzman who the man was. Guzman responded: "Oh, don't worry about it. It's his stuff. He just wants to watch." This statement, which on its face indicates that Guzman felt Baker was worried by Perez's presence, can reasonably be interpreted as being meant to allay Baker's concerns and inform him as to Perez's actions. As such, it was made in furtherance of the conspiracy and was admissible under Rule 801(d) (2) (E).

The second statement also falls squarely within the language of Layton. Guzman, in response to Baker's inquiry as to the source of the drugs while they waited for a subsequent drug transaction to transpire, confirmed that Perez was indeed the source and added that there was no need to worry because the source was often late and made deliveries all over town. The district court could reasonably have inferred that these statements were intended to keep Baker apprised of Perez's activities and to induce his continued participation in the deal. Furthermore, we have held that statements made by a drug dealer to a customer that identifies the dealer's source may be in furtherance of the conspiracy. United States v. Paris, 827 F.2d 395, 400 (9th Cir. 1987).

B. Independent Evidence of Perez's Connection to the Conspiracy

Perez also contends the district court erred in determining that he was connected to the conspiracy. To establish Perez's connection to the conspiracy, however, the government need only show substantial evidence independent of the co-conspirator's statements which demonstrates that Perez has at least a slight connection to the existing conspiracy. Id. at 400. We are satisfied that the government has met its burden. Several DEA Agents testified they observed Perez give to Frank Guevara, another co-conspirator, a tool pouch from the trunk of Perez's car. Guevara then sold the contents of the tool pouch to Agent Baker, who field-tested it and determined it to be heroin. Agents Baker and Faust and Immigration Agent Prejean testified they observed Perez conducting counter-surveillance during the initial drug transaction. Finally, Agent Mockert testified Guzman contacted Perez after the first deal and Guevara contacted him prior to the second transaction. This is sufficient independent evidence to connect Perez to the conspiracy.

Perez next contends the admission of Guzman's out of court statements violated his sixth amendment right to confront witnesses. In two recent cases, however, the Supreme Court has eliminated our prior requirements that before a co-conspirator's statements would be deemed admissible under the Confrontation Clause, the government must either produce the co-conspirator or show that he was unavailable, and the statements must satisfy an independent test of reliability. Bourjaily v. United States, 483 U.S. 171, 182 (1987) (reliability); United States v. Inadi, 475 U.S. 387, 399-400 (1986) (unavailability). "The effect of these two cases is to render the Sixth Amendment requirements for admitting co-conspirator statements 'identical' to those of Rule 801(d) (2) (E)." Paris, 827 F.2d at 400-01. As such, Perez's Confrontation Clause challenge is meritless.

III. Co-Conspirator's Invocation of the Fifth Amendment

Finally, Perez challenges his co-conspirator's invocation of his fifth amendment right against self-incrimination when called to testify on his behalf despite having already pled guilty to one count of a three-count indictment and while sentence was pending. This contention is meritless. We have consistently held that a convicted but unsentenced defendant retains his fifth amendment rights. Paris, 827 F.2d at 399; United States v. Miller, 771 F.2d 1219, 1235 (9th Cir. 1985).

AFFIRMED