*

Honorable Richard D. Cudahy, Senior U.S. Circuit Judge for

the Seventh Circuit, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-4259.

UNITED STATES of America, Plaintiff-Appellee,

v.

Leopoldo HERNANDEZ-MIRANDA and Atilano Dominguez, DefendantsAppellants.

March 26, 1996.

Appeal from the United States District Court for the Southern

District of Florida. (No. 93-401-CR-DLG), Donald L. Graham,

District Judge.

Before EDMONDSON and DUBINA, Circuit Judges, and CUDAHY*

, Senior

Circuit Judge.

CUDAHY, Senior Circuit Judge:

Atilano Dominguez, Leopoldo Hernandez-Miranda and two others

served as middlemen in the shipment of a truckload of marijuana.

All four were charged with possession of marijuana with intent to

distribute and with conspiracy to engage in that crime, and

Dominguez and Hernandez-Miranda went to trial on those charges.

The jury returned guilty verdicts against Dominguez on both charges

and against Hernandez-Miranda on the possession charge; but it

acquitted Hernandez-Miranda of the conspiracy charge. Both

defendants appeal their convictions, raising issues about the

sufficiency of the evidence against them. Dominguez also raises an

issue with respect to the jury instructions regarding his theory of

defense. In an unpublished order issued today under Circuit Rule

36-1, we decide all of those issues but address another matter
here. This issue pertains to the admission of testimony containing

out-of-court statements in the government's case against HernandezMiranda. For the reasons set forth below, we find that those

statements were properly admitted as coconspirator's statements.

Some of the most probative evidence offered against HernandezMiranda came from the testimony of Martin Mercado, one of the four

conspirators, who attributed inculpatory statements about the crime

to Hernandez-Miranda. When recounted in Mercado's testimony, these

statements might, of course, have been objectionable as hearsay.

The district court decided that they were not hearsay,

characterizing them as coconspirators' statements not classifiable

as hearsay and admissible under Federal Rule of Evidence

801(d)(2)(E). Therefore, the district court admitted Mercado's

testimony containing these statements.

 Hernandez-Miranda contended at oral argument that his

acquittal on the conspiracy charges operates retroactively to make

the admission of these statements erroneous. He reasons that his

acquittal of conspiracy established that he and Mercado were not

coconspirators and, therefore, that Rule 801(d)(2)(E) does not

apply to Mercado's testimony.

 Several criminal defendants have invoked this reasoning in

our cases. We have regularly rejected this reasoning and continue

to do so. As we noted in United States v. Kincade, "once the court

has determined that the government has made the requisite showing

of a conspiracy, "the admission of testimony under the

co-conspirator exception to the hearsay rule is not rendered

retroactively improper by subsequent acquittal of the alleged
co-conspirator.' " 714 F.2d 1064, 1065 (11th Cir.1983) (quoting

United States v. Cravero, 545 F.2d 406, 419 (5th Cir.1976), cert.

denied, 429 U.S. 1100, 97 S.Ct. 1123, 51 L.Ed.2d 549 (1977)). This

principle applies whether it is the declarant or the witness who is

acquitted of conspiracy. See United States v. Collins, 779 F.2d

1520, 1533 (11th Cir.1986).

The district court here did everything necessary for the

application of this principle. See United States v. James, 590

F.2d 575 (5th Cir.) (en banc), cert. denied, 442 U.S. 917, 99 S.Ct.

2836, 61 L.Ed.2d 283 (1979). After the jury was impaneled and

before the trial began, Hernandez-Miranda advised the court of his

intention to challenge the admission of Mercado's testimony about

his statements. The court then asked the government to proffer its

evidence relating to Hernandez-Miranda's participation in the

conspiracy. This proffer satisfied the district court that there

was sufficient evidence of a conspiracy, and it allowed the

admission of Mercado's testimony. Given this finding by the

district court, the admission of the coconspirator statements was

proper.

The judgment of the district court is

AFFIRMED.